R v Killick

Court of Criminal Appeal (NSW)|2001-04-03|Before: O'Keefe J, Smart AJ

The applicant and Dudko ran across the road and into the car park of a building at the corner of Talavera Road and Christie Street, North Ryde. At gunpoint the applicant commandeered a car being driven by Mr Peter Bax and told him that he (Killick) wanted him to take him somewhere, threatening to shoot Mr Bax in the leg. The applicant and Dudko climbed into Mr Bax's car and the applicant directed him to Kurraba Road, Neutral Bay, where Mr Bax was required to and did leave the car. The applicant drove off. Mr Bax's car was later found abandoned in Berry Street, North Sydney.

On 9 May 1999 the applicant and Dudko were arrested at Bass Hill Tourist Park. A cocked and loaded pistol and another pistol, both unlicensed, were found in the cabin which they occupied.

17 The applicant was born on 13 February 1942. He has a lengthy record. It begins in the Children's Court in 1959 when he was placed on a good behaviour bond. In 1960 he was dealt with in a number of courts for a number of dishonesty offences. In August 1960 a sentence of 12 months hard labour for stealing and breach of recognizance was confirmed. In November 1960 he received 18 months hard labour for breaking, entering and stealing and 4 months for escaping.

18 In June 1966 he was sentenced to 5 years imprisonment for robbery under arms. There was a further count of robbery under arms for which he was sentenced to a further 12 years. The non-parole period was 5 years. In December 1972 he was sentenced to 2 years 6 months with a non-parole period of 6 months for armed robbery. There were further dishonesty offences in 1973. In December 1981 he was sentenced to 3 years 6 months imprisonment on each of two counts of armed robbery. There were some further dishonesty offences in 1983. On 16 June 1986 he was sentenced for three offences of armed robbery. He was sentenced to a total of 12 years penal servitude with a non-parole period of 8 years. He received concurrent sentences of 1 year for possessing a shortened firearm and a replica pistol. On 31 January 1992 he received a sentence of 2½ years for stealing with actual violence whilst armed with a dangerous weapon. There was a recommendation for immediate release to parole. Apparently he was released to be of good behaviour. In October 1993 for firearms offences and possession of goods stolen outside New South Wales the applicant was placed on a 5 year good behaviour bond. It should be noted that apart from a traffic matter of no present consequence the applicant has not been in trouble from 1993 to 1998.

19 The applicant's record does not assist him in his plea for leniency. The armed robbery at Mittagong was in breach of the bond granted by the District Court by about five days.

20 Professor Plimer, Professor of Geology at the University of Melbourne, said that he first met the applicant in early 1994 when he was asked by a friend to assist the applicant. Professor Plimer was told that the applicant had just come out of prison and was trying to establish his career as a writer. Professor Plimer agreed to look at some of the applicant's writings and to discuss some of them with him. From about May/June 1994 to 1998 Professor Plimer saw the applicant about a dozen times. The applicant was keen to break away from his childhood past and not to be incarcerated. He was trying to rehabilitate himself. Professor Plimer said that the applicant was extremely disappointed in 1998 when, after having gone through a selection process, been checked for a position with Juvenile Justice and been offered that position, the offer was withdrawn. The applicant was desperately looking for employment.

21 The applicant believed he was coping well but that changed after he received a visit from police in late August 1998 and was informed that an outstanding warrant for his arrest existed for breach of parole in 1993. He was on parole until July 1994 for a bank robbery committed in Brisbane in 1983. He had no idea such warrant existed and was fearful of being extradited to Queensland. He told Dr L Brown, psychiatrist, that he was worried about leaving Ms Dudko as she had been threatened by her ex-husband and he (the applicant) believed her to be in fear of her life. In his oral submissions he elaborated on the difficulties he and Ms Dudko experienced including problems as to the custody of Ms Dudko's child and questions of access. There were Family Court proceedings and apprehended violence proceedings.

22 He said that he had tried to sort out his difficulties with Corrective Services in Queensland. During this period he became much more depressed and he developed a sense that "no matter what I do I will end up in gaol". He and Ms Dudko had mounting financial difficulties and he wanted to provide for her. He told Dr Brown of feeling under "enormous stress" and that whenever he experienced feelings of anxiety and depression he is more likely to behave in a criminal fashion. Dr Brown records: "He acknowledges that his behaviour during the two bank robberies may have traumatised or greatly distressed those in the banks at the time but said that he had never had any intention of using the gun he carried, but rather viewed it as a 'bluff' to facilitate the robbery. Similarly, he denied any intention of shooting the off duty policeman who gave chase after the second robbery saying that he deliberately fired into the air so that he would not hit this gent but would rather frighten him away." 23 The judge found that the applicant never intended to shoot in such a way as to be likely to kill or wound any of the people at whom he appeared to be shooting but he intended to convince the bank officers and the off duty constable that if they did not either fall in with his wishes or chased him, he would shoot them.

24 The applicant's childhood years were characterised by his father's excessive alcohol intake and his domestic violence towards the applicant's mother. As a result she became progressively nervy and frail over the years. She committed suicide when the applicant was aged 17. As he had a close relationship with her this impacted heavily upon him and he left home. He performed poorly at school.

25 Dr Brown summarised her opinion thus: "In summary, I find that Mr Killick has and continues to suffer with a life-long personality disorder associated with antisocial traits and a compulsive gambling disorder which is currently in remission but active during much of his adult life. During the commission of the alleged offences during January 1999 to May 1999 I do not find Mr Killick to be suffering from any superimposed mental illness. His capacity to dissociate and disconnect his emotions and fear of consequences of his actions are consistent with a mental coping mechanism rather than a psychiatric illness and would not have affected his ability to reason his activities or cause him to commit the alleged offences. Certainly when in such a dissociated state it may be harder for him to restrain his behaviour given that he is less likely to respond to internal prohibitions but up until entering such a state he maintains full awareness of the wrongfulness of his behaviour and has the ability to refrain from it. I therefore do not find any psychiatric illness which would render him mentally incompetent either at the time of commission of the alleged offences or at the time of interviewing Mr Killick." 26 In her later report of 29 November 2000 Dr Brown adhered to what she had written in her earlier report. She added that the applicant's reports of a continuing pattern of generalised anxiety and worry about difficulties in maintaining contact with Ms Dudko and his reports of elevated blood pressure during periods of emotional distress are the main features of his current mental state. Dr Brown thought that he appeared to be coping adequately within the prison system. Although the first report of Dr Brown appears not to have been tendered before the judge, this seemed to be an oversight and it was necessary to have the first report to understand fully the second report. The Crown did not object to it being in evidence before us.

27 On 12 December 2000 Dr B Pascoe reported: "In summary, Mr Killick has essential hypertension (as with many others in the general population) which has been at times quite difficult to control, and at unacceptably high levels. Such high levels carry a risk of stroke and of increased stress, over a long period of time, to the heart. It certainly was quite clear that during his stay in Long Bay Gaol his blood pressure was very satisfactory, but that conditions at Goulburn Gaol, in some way or other, did appear to aggravate the situation leading to poor control of the blood pressure.

As regards prognosis, I believe that his blood pressure will be able to be satisfactorily controlled and will not lead to complications. His life expectancy is therefore good and compares favourably with that of the general population, provided blood pressure control continues to be good." This report was not before the judge but should have been. The Crown did not object to this Court receiving it.

The judge found that there was "no more than the ordinary risk attending to any other prisoner of this prisoner mounting a future unsuccessful escape, especially one of such an extraordinary variety as the one" in the present case.

29 As to rehabilitation the judge said that in view of the applicant's past record he was "a long way from being anywhere near on the path of rehabilitation." The judge formed an adverse view of the applicant's reliability and his capacity to rehabilitate himself. The judge assessed the applicant as an unreliable candidate for rehabilitation. The judge thought that the applicant had been a Jekyll and Hyde character during his life.

30 The judge, after a review of the applicant's tragic and deprived early years found:

"As a result of all those early misfortunes, very few, if any, of which could be blamed on him, unfortunately he has grown up to be a person whom I regard as manipulative and always on edge and in each instance which has been revealed in the evidence in this case, eager to pursue self exculpation." 31 The judge emphasised the importance of deterrence and punishment in the present case. He stated that he applied the principle of totality and found special circumstances. The judge did not specify what the special circumstances were but said that it was in the light of R v Carrion 113 A Crim R 39 that he found special circumstances. I am not sure what the judge had in mind and there is no point in speculating.

32 The judge stated that he took into account the applicant's pleas of guilty. He referred to this Court's decision in R v Thompson (2000) 49 NSWLR 282, As at January 1999 the Crown had not been able to establish that the applicant was responsible for the Mittagong armed robbery in October 1998. As they were separate offences committed over three months apart the sentences for these would not normally be concurrent. The judge held that for his level of co-operation as to the Mittagong bank robbery the applicant should be given the advantage of that sentence and the one for the Bowral bank robbery being served concurrently. The judge held that in respect of all other offences the Crown had a great deal of evidence against the applicant and that it was inevitable that he would have been convicted had he contested any of the other counts.

33 The judge also noted that the applicant had been kept in segregation because of his high risk classification due to his escape.

34 At the start of his submissions the applicant withdrew Appeal Ground 4. He said that most of the points made under the ground were inherent in the other grounds. He wanted to rely on some of the points made under that ground in relation to other grounds. However, it is convenient to deal with the points made under Ground 4 under that heading. The applicant made lengthy written and oral submissions and referred the Court to a number of authorities which he contended justified a lesser sentence.

35 Appeal Ground 1 reads: "His Honour erred on some points of law in explaining his reasons for sentence."

36 The applicant complained that the judge made it clear that apart from the Mittagong bank robbery he was not given any discount for his early pleas of guilty. He submitted that he should have been given a discount for the utilitarian value of his pleas of guilty at the earliest opportunity. The applicant contended that he was entitled to "the full 25 per cent for utilitarian value for early guilty pleas on all charges." The Crown may have had some difficulty in proving that the applicant committed the Mittagong armed robbery if it had not been for the applicant's admissions. There was a problem as to identification.

37 The judge referred to Thomson. Instead of adopting a conventional approach he made the lengthy sentence for the Mittagong bank robbery concurrent rather than cumulative. The judge imposed lenient sentences and lenient non-parole periods in respect of the majority of the offences. The non-parole period of 7 years for the Bowral bank armed robbery and the non-parole periods of 2½ years for the escape and 3½ years for assaulting the pilot were lenient. The head sentences were well below the maximum penalties and contained substantial measures of leniency. Further, as will become apparent, the law regarding the accumulation of sentences results in a reduction of the total of the head sentences. Allowing for the applicant's pleas of guilty at the earliest opportunity and his co-operation lesser sentences could not reasonably have been imposed.

The request for lesser sentences or further leniency other than in relation to the Mittagong armed bank robbery must be rejected. However, even allowing for the concurrency, a sentence of 11 years does not allow for the value of the applicant's admissions and plea on this count. Each sentence must be correct in itself. Thus the sentence of 11 years on this count is manifestly excessive. The correct sentence was one of 9 years. The other sentences when viewed separately and confined to the particular offence for which they were imposed are not fairly open to challenge. 38 The applicant complained that the judge over-stated the applicant's adverse criminal record. The judge was referring to broad categories of offences. However, the applicant recognized that this was not a major point. The applicant's record was a very poor one and one which negated any claim for leniency on that account. 39 Appeal Ground 2 reads: "His Honour gave no weight to important mitigating circumstances."

40 It was the applicant's "very strong submission that the catalyst behind my return to crime was the unexpected announcement by police on 26 August 1998 that it was proposed to extradite me to Queensland to serve a 2½ year sentence for not reporting on parole in 1993 for a 1984 charge". The applicant relied on the affidavit of Ms Dudko and the evidence of Professor Plimer and Ms Warner. The applicant complained that the judge dealt with a similar submission too sceptically and harshly when he said: "It seems that Mr Killick complains of five or maintains five propositions in this regard. First that his Queensland parole reporting requirements had been transferred to the Chatswood police station prior to 1993. Secondly, in 1993 he received a five year good behaviour bond in the Sydney District Court. Thirdly, the detectives in charge of his case in Sydney told him that his Queensland parole obligations had become subsumed in the 1993 Sydney District Court bond. Fourthly, he had, if I can use the every day expression, gone 'straight' from 1993 to 1998 and fifth and finally, the news in May 1998 that he was to be extradited to Queensland and sent back to gaol there for a further two and a half years devastated him and it was put, although this was not the turn of phrase, it was put that that announcement was the straw that broke the camel's back. The argument he puts is that he was being extradited because he had stopped reporting to the Chatswood police station after he got his 1993 bonds. Whilst it may well be the case that the Queensland document in 1998 cites that as a reason for revocation of parole it would seem to me, with respect, that quite apart from that the offences of which he was convicted in 1993 in the Sydney District Court, namely the possession of weapons without a permit, themselves were clearly a breach of that bond and he well knew it, he knew what breaching a bond was and in my view he has fixed upon the Queensland notification and, in effect, used it for a purpose that it could not realistically or logically be used by way of a plea of mitigation. Quite apart from whether or not he was given the wrong legal vice (sic) by a Sydney detective, he had already committed a breach of his Queensland parole by committing the offences which gave rise to that 1993 bond in Sydney and I have got no doubt that with his background and acquaintance with the courts of three States and with the intelligence about which a lot of the evidence provides fulsome support, that he would have known that he was always at risk of extradition to Queensland whether or not he had continued to report to the Chatswood detectives. In any event I only have his say so about the advice that he attributes to the Sydney detectives and I must say I don't have any confidence in his say so." 41 Even accepting that the applicant was devastated on 26 August 1998 when the police told him he had to go back to Queensland to serve some 2½ years, and it was grim news, that provides no sustainable or credible explanation for him committing two grave armed bank robberies, one in October 1998 and one in January 1999 and discharging a firearm maliciously. 42 The judge correctly declined to attach weight to this matter other than as part of the history of the offences. The applicant did not give evidence and it was reasonably open to the judge to reject the case being advanced on the applicant's behalf. 43 The applicant complained that the judge did not take into account that with the extradition he will serve a sentence of 30 years 8 months (including the time he spent in custody before his escape) and not just 28 years 2 months. The applicant reminded the Court of his age. If he is released on parole in New South Wales at the expiration of 15 years he will be 72 years of age. At that point having to serve a further 2½ years would be harsh. When considering the question of totality regard must be had to the present intention of the Queensland authorities to extradite the applicant to serve about 2½ years for an offence committed in 1984. There are no State boundaries when considering the question of totality: Mill v The Queen (1988) 166 CLR 59 at 67. Allowance has to be made for the long deferment of a sentence.

44 While the head sentences on the various separate offences total 28 years, the law as to the accumulation of sentences and the sentencing structure adopted by the judge will result in the actual head sentences imposed in succession amounting to a total of 22 years. This is because each second and subsequent sentence imposed commences at the expiration of the non-parole period of the previous sentence. The statutory provisions are reviewed later. This factor has to be taken into account when considering the present intention of the Queensland authorities to extradite the applicant. The remarks of the judge do not suggest that he took into account adequately the present intentions of the Queensland authorities.

45 The applicant stressed that he was likely to serve the whole of his sentence in maximum security and that the gaol authorities would not consider lowering his security after some years because of his escape and the warrant for his extradition. Prisoners who have escaped are usually held in tighter security for a number of years. Having regard to the applicant's age and health, this will impact upon him and the effect will be worse as he grows older. The judge expressed in detail his view that the applicant was unlikely to try to escape again. Unfortunately by his escape the applicant brought a severer form of punishment upon himself. The Court is aware that gaol classifications are reviewed from time to time even for prisoners who have escaped.

46 Appeal Ground 3 reads: "His Honour disregarded important evidence regarding rehabilitation." In his written submissions the applicant has set out his personal history in considerable detail. The applicant accepted that he has a bad criminal record. He has referred to his tough, unstable childhood and that between 1960 and 1973 he spent 11½ years in maximum security prisons. He was bitter about losing his youth. The applicant pointed out that he spent half of the 18 years from 1973 to 1991 in gaol.

47 The applicant submitted that from May 1985 until October 1998 he had managed to turn his life around, the only setback being some charges of possession of a firearm and a charge of possession of goods stolen outside New South Wales about March 1993. He acknowledged that of the 13½ years from 1985 to October 1998 he had spent 6 years in prison. The applicant particularly stressed the period from 1993 to October 1998 during which he made strenuous efforts to rehabilitate himself and to obtain employment. The applicant's point was that a person, even if he had a bad criminal record, does not do all that he did if he was still intent on crime rather than rehabilitation. The applicant placed much reliance on the evidence of Professor Plimer and Ms Warner.

48 The applicant submitted: "… my commitment to rehabilitation in the 5 years prior to the bombshell announcement of extradition was far more sincere than that of most armed robbers who come before the court. And since my arrest in May 1999 I have been in segregation and unable to work. But in 2000 I completed a short story writing course and am midway through a novel writing course."

49 The applicant complained that the judge had not even accepted that the applicant had been living a lawful life between October 1993 and October 1998 and had thereby erred. The applicant further complained that the judge's description of him as a "manipulative conman" and the judge's assessment that the applicant had doubtful rehabilitation prospects could see the applicant turned down for parole. The Parole Board will look at the applicant's crimes and his conduct and attitudes since May 1999 and determine in 2012 or 2013 whether he should be released. In the meantime he will be monitored by the authorities. 50 The judge was not unmindful of what the applicant had done since 1993. The difficulty for the applicant lies in the crimes he has committed from October 1998, They make his claims as to rehabilitation seem rather thin. This ground is not established.

51 Appeal Ground 4 reads: "His Honour was given material containing prejudicial accusations which weren't relevant to the case." This ground was formally withdrawn as earlier mentioned but it is convenient to deal with the points mentioned which were relied on under the other grounds.

One of the recorded interviews between the applicant and the police contained questions and answers relating to his escape and questions by the police (or allegations) as to whether the applicant had abducted a man and his vehicle from Victoria and forced the man to drive to Sydney. The applicant strenuously denied that allegation and has since been cleared of any involvement in that offence. The applicant was concerned that the judge may have been influenced by the allegations especially in view of the wide media coverage, perhaps subconsciously.

52 There is no indication in the judge's remarks that he was so influenced. Judges are used to disregarding unproved allegations and only taking into account what has been proved. Judges are also used to disregarding what appears in the media,

53 The applicant complained that at pages 7 and 14 of his remarks the judge stated that he (Killick) shot at the off duty police officer. At page 7 the judge said "The next offence is that he shot at a person to prevent his (Killick's) lawful apprehension. The offence was maliciously discharging a firearm with intent to prevent lawful apprehension. On page 14 the judge referred to the officer continuing to pursue the applicant "despite the fact that three shots were fired at him on different occasions." As to the first shot the officer said "He then fired a shot from his gun towards me." As to the second shot the officer said, "He then jumped the fence near the railway line and I followed him, he turned and fired another shot at me." As to the third shot the officer said "I saw him prop and hide behind some sort of metal partition and he began yelling something out at me and came from behind that partition and aimed the pistol at me and fired a s shot."

54 The officer said that on each occasion when the applicant fired a shot at him he was no more than 10 metres away from him. There is some point in the applicant's s remark to the officer, "If I was a killer you'd be dead mate." In the context "shot at me" means "shot in my general direction." Any shot fired would have been harrowing for the officer as indeed it was.

55 The judge held that while the applicant did not intend to kill or wound he did intend to convince the off duty police officer that he would shoot him if the officer did not stop chasing him. Having regard to the evidence before the judge and the manner in which the judge dealt with the matter the appellant has no valid ground of complaint on this account.

56 The applicant's complaint that the judge was affected by the extensive media coverage of his case portraying him, in effect as a dangerous villain, is without substance.

57 Mr Killick contended that throughout most of his reasons for sentencing the judge either ignored or tried to demolish all factors in his favour and then highlighted the aggravating factors. The applicant pointed to some of the colourful language used by the judge and his description of him and his co-accused as miscreants. The helicopter escape was most unusual and the conduct of the applicant as revealed in the evidence was very bad. The judge regarded some of the submissions advanced by the applicant as specious. He was entitled to do so. Similarly he was entitled to regard some of the alleged mitigating factors and the alleged rehabilitation as lacking substance and weight,

58 There is no substance in the various complaints made.

59 Appeal Ground 5 reads: "The sentence is manifestly excessive for the amount of criminality involved."

The applicant submitted that although by law any sentence for escape has to be cumulative, the sentence of 5 years for the escape and that of 7 years for assaulting a member of aircrew should be concurrent with each other due to the common elements in each charge. The assault was part of the conclusion of the escape. He submitted that with the two cumulative sentences he was being punished twice for overlapping acts and being exposed to double jeopardy. He contended that his escape was completed when he jumped aboard the helicopter. Once he took a gun in his hands the assault commenced.

60 I disagree that the sentences for these offences should be concurrent. Two serious and distinct offences had been committed and each warranted a substantial and separate sentence. A man does not receive concurrent sentences because he committed the offence while making good his escape. For example, a man who shoots and kills somebody while making his escape or perfecting it does not receive concurrent sentences. A sentence for escape is always separate but regard is had to all matters when applying the principle of totality.

61 The applicant further submitted that because the commandeering of Mr Bax's vehicle was still part of the venture which began with the escape the sentence for that offence should be concurrent with the sentences for the escape and the assault of a member of the aircrew. I disagree. Each of the offences was quite distinct and was properly the subject of a separate sentence. Those sentences should have been cumulative as each represented a separate and serious incident of criminality. Concurrent sentences would not adequately reflect the criminality involved. In any event the sentence for the escape must be cumulative. Of course that is taken into account when applying the principle of totality. The applicant contended that if the sentences for the offences of escape, assault member of aircrew and detain for advantage were made concurrent but cumulative upon the sentences for the armed robberies, the resulting totals would correctly reflect the totality of the criminality. I do not agree.

62 The applicant referred to a number of cases claiming that the sentences which he received were excessive by comparison. There is no point in reviewing these. The correct approach is to apply the principles of sentencing to the facts of the present case, including the criminality which they reveal.

63 He submitted that the judge had attached too much weight to the overwhelming nature of the events that had occurred from October 1998 to March 1999 and insufficient weight to what he had done, how he had behaved and the efforts he had made in the five years prior to October 1998 to rehabilitate himself. Nor, he contended, had the judge attached sufficient weight to his age and that if he is extradited to Queensland when aged 72 years he will face another 2½ years in gaol. On a totality basis he was looking at sentences totalling 30½ years and not less than 17½ years in gaol. I have not overlooked that the applicant may be able to seek relief on the basis that the mere process of extradition of itself, involves such exceptional oppression and hardship to him that the process should be stayed: Lavelle (1994) 72 A Crim R 402 at 413-414.

64 The mixture of offences in this case is unique. The criminality revealed by the armed robberies, the discharge of the firearm in the general direction of the pursuing off duty constable, the escape, the assault on the pilot and the detaining of Mr Bax for advantage at gun point is of a very high order. In respect of each of the sentences other than that for the armed bank robbery at Mittagong the sentences imposed by the judge are moderate for the criminality involved. Lesser sentences could not have been imposed. The judge erred in not fixing a non-parole period in respect of the sentence for the armed bank robbery at Mittagong. There was no good reason not to do so and the effect of not doing so was to subject the applicant to a minimum period in gaol of 19 years contrary to the judge's intention. A non-parole period of 5 years should be fixed for that sentence.

65 I agree with the Crown's submission as to special circumstances, namely, that where a person has been in custody for a very long time and/or is a recidivist, he needs a great deal of extended supervision when released. That applies with particular force in this case where the applicant relapsed after 5 years. The Crown submitted that if ever there was a case where a person ought to be supervised for a very lengthy period this was such a case. I agree. The Crown accepted that special circumstances were correctly found in this case.

66 The judge dated the sentences from 9 May 1999, the date of the applicant's recapture. This does not allow for the fact that the applicant was in prison from 20 January 1999 to 25 March 1999 on the charges the subject of the first indictment. The applicant is entitled to credit for this period of 2 months 5 days. This means that the sentences should start on 4 March 1999.

67 Section 55 of the Crimes (Sentencing Procedure) Act 1999 provides:

55 (1) In the absence of a direction under this section, a sentence of imprisonment imposed on an offender: (a) who, when being sentenced, is subject to another sentence of imprisonment that is yet to expire (b) in respect of whom another sentence of imprisonment has been imposed in the same proceedings, is to be served concurrently with the other sentence of imprisonment and any further sentence of imprisonment that is yet to commence. (2) The court imposing the sentence of imprisonment may instead direct that the sentence is to be served consecutively (or partly concurrently and partly consecutively) with the other sentence of imprisonment or, if there is a further sentence of imprisonment that is yet to commence, with the further sentence of imprisonment.

(3) A direction under this section has effect according to its terms.

(4) 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. (5) This section does not apply to: (a) a sentence of imprisonment imposed on an offender in relation to an offence involving an assault, or any other offence against the person, committed by the offender while a convicted inmate of a correctional centre, or (b) a sentence of imprisonment imposed on an offender in relation to an offence involving an escape from lawful custody committed by the offender while an inmate of a correctional centre." 68 The judge correctly directed that certain of the sentences of imprisonment be served consecutively under s.55(2). Under s.55(4) a reference to a sentence of imprisonment is taken to be a reference to the non-parole period of the sentence where, as here, non-parole periods have been set. The effect of these provisions where there is a series of consecutive sentences with non-parole periods fixed is that subsequent sentences commence on the expiration of the non-parole period of the immediately preceding sentences. Thus, for example, if there is an initial sentence for 10 years with a non-parole period of 7 years the next sentence of, say, 8 years with a non-parole period of 6 years commences at the expiration of 7 years, the balance of 3 years of the initial sentence is subsumed in the non-parole period of the next sentence. Where there is a series of consecutive sentences this can have the effect of reducing the overall length of the head sentences quite markedly 69 In Pearce v The Queen (1998) 194 CLR 610 (at 624) McHugh, Hayne and Callinan JJ said: "A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well, of course, as questions of totality,"

70 In Pearce the majority of the Court (at 624) acknowledged that looked at overall it could well be said that the effect of the sentences imposed was not disproportionate to the criminality of his conduct. Nevertheless, it insisted that two individual sentences which it considered flawed should be corrected. The individual sentences fall for consideration not just their overall effect.

71 In Mill v The Queen, (supra at 63) the High Court said as to the principle of totality: "Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred."

72 In the present case because of s.55 and the Crimes (Sentencing Procedure) Act 1999 and the structure of the sentences imposed problems of especial difficulty arise.

73 Taking the head sentence of 13 years on the Bowral armed bank robbery charge with a non-parole period of 7 years and concurrent sentences on the Mittagong armed bank robbery charge and maliciously discharge firearm, there would be a starting point for the next sentence of 4 March 2006. This would lead to the following result: (i) End of non-parole period for first group of sentences (First indictment) - 3 March 2006

(ii) Non-parole period of 3½ years for assault pilot starting on 4 March 2006 - 3 September 2009

(iii) Non-parole period of 2 years for detain for advantage starting on 4 September 2009 - 3 September 2111

(iv) Non-parole period 2½ years for escape starting on 4 September 2111 - 3 March 2114

74 As the head sentence for the escape was 5years this would result in head sentences expiring on 3 September 2116. All other head sentences would be subsumed in the non-parole periods. This creates two major problems. First it produces total head sentences of 17 years 6 months. That is manifestly inadequate for the criminality involved in these offences. Secondly, it does not take into account that on the Mittagong armed bank robbery, the sentence of 11 years (without a non-parole period) was excessive and that the sentence should have been one of 9 years with a non-parole period of 5 years for the reasons mentioned earlier. 75 From the judge's handwritten endorsements on the indictments and his reasons it appears that the judge simply added up the head sentence he imposed on each count and these sentences totalled 28 years. He made no allowance for the provisions of s.55 and overlooked that each subsequent sentence had to commence on the expiration of the non-parole period of the former sentence.

76 As there has been no Crown appeal against any of the sentences this Court should not extend any of the individual sentences imposed by the judge. However, in the correction of errors it is permissible for this Court to re-adjust the structure of the sentences, ensuring thatg the applicant is not worse off overall. He will be better off after the re-structure as he will be serving lesser sentences overall and a lesser non-parole period.

77 The sentence for the Mittagong armed bank robbery still remains wholly concurrent with other sentences but it will not be wholly concurrent with the sentence for the Bowral armed bank robbery. It is partly concurrent with that sentence and partly concurrent with the charges of maliciously discharging a firearm and assaulting a member of air crew. The charge of maliciously discharging a firearm is not wholly concurrent with the sentence of 13 years for the Bowral armed bank robbery but is partly concurrent with that sentence and partly concurrent with the sentences for the Mittagong armed bank robbery and the charge of detaining for advantage.

78 As to the sentence of 13 years for the Bowral armed bank robbery I have commenced that sentence from 4 September 2009. That means it will expire on 4 September 2022. I have fixed a non-parole period of one year. That is not long enough but if the non-parole is extended that will result in a corresponding decrease in the effective overall sentence. For example, if the non-parole period were made 5 years, an increase of 4 years, the sentence would have to start 4 years earlier, that is from 4 September 2005. There is no satisfactory solution to the problems raised. I have taken the view that it is desirable that the total of the sentences should adequately reflect the criminality involved so far as this is possible given the terms of the legislation. As to this sentence of 3 years, special circumstances exist arising out of the accumulation of the sentences. The applicant will be serving non-parole periods of 14 years given the adjustment for the error in the sentence for the Mittagong armed bank robbery.

79 This case has revealed some acute and difficult problems arising out of s.55(2) and (4) of the Act. It is desirable that it be given further consideration by the Legislature. There is no easy solution. Consideration may need to be given to empowering a court at the end of the sentencing exercise for a number of offences with consecutive sentences to add parts of the head sentences which would otherwise have been subsumed in the non-parole periods and therefore effectively extinguished.

80 I propose the following orders: (a) Extension of time within which to seek leave to appeal granted. (b) Leave to appeal against sentences granted. (c) Appeal allowed in part. Sentences quashed. In lieu of the sentences imposed the applicant is sentenced as follows: (i) On the charge of detain for advantage, a sentence of 3 years imprisonment commencing on 4 March 1999 with a non-parole period of 2 years commencing that day and ending on 3 March 2001.

(ii) On the charge of assault member of air crew a sentence of 7 years imprisonment commencing on 4 March 2001 with a non-parole period of 3 years 6 months commencing that day and ending on 3 September 2004.

(iii) On the charge of maliciously discharging a firearm with intent to prevent lawful apprehension a sentence of 7 years imprisonment fixed term commencing on 4 September 2003 and ending on 3 September 2110.

(iv) On the charge of armed robbery at the Mittagong bank a sentence of 9 years imprisonment commencing on 4 September 2005 with a non-parole period of 5 years commencing that day and ending on 3 September 2010.

(v) On the charge of armed robbery at the Bowral bank a sentence of 13 years imprisonment commencing on 4 September 2009 with a non-parole period of one year commencing that day and ending on 3 September 2010 (vi) On the charge of escape a sentence of 5 years imprisonment commencing on 4 September 2010 with a non-parole period of 2 years 6 months commencing that day and ending on 3 March 2013. (vii) On the charge of steal motor vehicle a sentence of 6 months fixed term commencing on 4 March 1999

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : R v Killick [2002] NSWCCA 1 FILE NUMBER(S) : CCA 60864/00 HEARING DATE(S) : 2 and 3 April 2001 JUDGMENT DATE : 4 January 2002

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