5 The Applicant was born in March 1967 and has a regrettable criminal history. This includes a number of driving offences including driving whilst disqualified, a number of offences of dishonesty, possession of prohibited drugs and the supply of a commercial quantity of drugs. Evidence before his Honour indicated the Applicant had been a drug addict for a substantial period, that prior to his offending he had developed a very heavy drug habit and, at the time of offending, was "hanging out" and withdrawing badly from heroin.
6 His Honour accepted that the offences were committed on the spur of the moment, that the Applicant was remorseful and had "some prospects of rehabilitation" although his Honour referred to these as a "mere possibility of rehabilitation". His Honour declined to find special circumstances.
7 Evidence before his Honour indicated that the Applicant had had an extremely poor childhood and that during time in custody between May 1995 and May 1998 the Applicant had participated in drug and alcohol courses and relapse prevention, HIV and stress and anger management. After his arrest in September 2003 and prior to sentence he had again participated in some drug and alcohol group programs.
8 It was submitted on behalf of the Applicant that in light of his age, antecedents, background and drug problems, the relativity between the total effective sentence imposed on the Applicant and the parole period, only some 14% or thereabouts of the former, the inference should be drawn that Judge Armitage overlooked the effect of accumulation in the structuring of the sentences. Reference was made to R v Lindon [2003] NSWCCA 152 and R v Reicher [2003] NSWCCA 300. In that latter case where the effective non-parole period also represented 90% of the effected sentence I drew such an inference although it should also be observed that I also relied on the Applicant's age, the fact that he hadn't been in prison for previous 30 years, and to the fact that in that case one would have anticipated the usefulness of a supervision over a not insignificant period on release from custody.
9 In this case, although the failure of the sentencing Judge to provide any reasons for fixing an effective non-parole period at more than 75% of the effective head sentence, is surprising, there are factors which would well have inspired his Honour to take the course he did. These include the very serious nature of the Applicant's conduct towards his victim and of the effect on her - matters which, in light of the Applicant's history more than justify the length of the non-parole period fixed. There were also the facts that the Applicant had participated with no long term benefit in drug and alcohol programs previously and there was little to indicate that a lengthy period on parole was likely to be of benefit to him.
10 In making this last observation I do not ignore the fact that in a report from Miss Duffy of Duffy Barrier Robilliard, psychologists she observed "(the Applicant) will also require close probation and parole service supervision upon release, and continuing drug and alcohol counselling in the community. Should there be any more intensive rehabilitation programs offered within the prison system, it would be to his advantage if he could attend." His Honour did not say whether or not he accepted this evidence. For myself, I would think that, having regard to the Applicant's history, whether he would derive any benefit from more than the 6 months parole period Judge Armitage fixed is problematic.
11 Thus there are not the number of factors which there were in R v Reicher to induce one to the conclusion that in determining the sentences he imposed, the effective period during which the Applicant will be eligible for parole was the result of the topic being overlooked. It may also be observed that the conclusion of Judge Armitage's remarks on sentence was in terms:-
" I sentence you to total term of imprisonment of three years to date from 7 December 2005 to expire on 6 December 2008. Subject to the Crimes (Sentencing Procedure) Act you will be released on parole on 6 March 2008."
12 The juxtaposition of the two dates argues against the significance of them being overlooked.
13 However, in the end result I do not find it necessary to decide what is the explanation for the result. The Applicant's offending was, as I have indicated, extremely serious. Though recognising these are not the sole criteria, the requirements of general and personal deterrence and retribution are such that no lesser non-parole period inherent in the sentences under appeal was required. No doubt if the Applicant is genuine about reform, at the end of the 6 month parole period which Judge Armitage directed the Applicant will be able to continue his efforts towards rehabilitation with the assistance of some organisation other than the Probation and Parole Service.
14 I am satisfied that no sentence less severe than that imposed on the Applicant was warranted and should have been passed and in that situation Section 6 of the Criminal Appeal Act requires that the Court dismiss the appeal.
15 STUDDERT J: I agree. The order of the Court will be what is proposed by Justice Hulme.