R v Nobile [2006] VSCA 211

R v Nobile [2006] VSCA 211 - VSCA 2006 case summary — Zoe

[4]

1 I have had the considerable advantage of reading in draft the reasons for judgment of Coldrey, A.J.A. and with respect I agree with his Honour that the appeal should be dismissed. I add the following observations.

Ground: Cumulation

2 I do not consider that the judge was in error in cumulating parts of the sentences imposed on the Counts preferred under the first presentment on the base sentence imposed under the second presentment.

3 Whatever the reach of the rule in Nikodjevic,[1] it does not apply, as such, to a case like the present where the sentencing judge must sentence a prisoner on a multiplicity of counts preferred under several presentments. To the contrary, in such a case it accords with the logic of the rule in Nikodjevic for the sentencing judge to do what the judge did in this case: by taking as the base sentence the largest sentence imposed, whichever be the presentment under which that count has been preferred, and then cumulating upon it other sentences imposed in respect of counts preferred under the same presentment and then other sentences imposed in respect of counts preferred under the other presentments, in order ultimately to produce an aggregate total effective sentence for all presentments.

4 So to say is not to imply that there may not be other ways in which the exercise might be undertaken. Another possible technique would be to deal with each presentment separately, taking a base sentence under each presentment and cumulating upon it the other sentences or parts of other sentences imposed under the same presentment, in order to produce a total effective sentence for each presentment, and then taking the largest of those and adding to it the others or parts of the others as the occasion dictates.

5 As Coldrey, A.J.A. observes, it may have been preferable if the judge had not described as a "total effective sentence" the sum of the parts of sentences cumulated under the first presentment. It is a practice that ought to be avoided in the future. But in my view, it was not an error. The term "total effective sentence" is not a statutory concept. It is a term of convenience. And, logically, there is no reason why the judge should not have described the sum of the parts under the first presentment as a total effective sentence, even though it was not a total effective sentence in the sense in which that term is ordinarily understood. At worst the judge's use of the term in that fashion was a case of giving the wrong name to the right approach, and whatever vice there may be in that, it did not vitiate his Honour's exercise of discretion.

6 In my view ground 1 fails.

Ground 2: De Simoni

7 I am equally unimpressed by the contention that the judge erred in treating as circumstances of aggravation matters which it is said would have warranted conviction for a discrete offence of affray.

8 Contrary to the submissions advanced on behalf of the appellant, it is not a universal rule that a judge when sentencing for an offence specifically preferred in a presentment may never have regard to relevant actions of the prisoner that strictly speaking constituted a separate uncharged offence.[2] The rule as expressed in R. v. De Simoni[3] is that the judge may not take into account circumstances of aggravation which would have warranted a conviction for a more serious offence. Of course, as is pointed out in R. v. Newman and Turnbull, that does not mean that a sentencing judge may always take into account circumstances of aggravation which would have warranted a conviction for a less serious offence, but it does mean that where the circumstances of aggravation would have warranted a conviction for a less serious offence it is a matter of fairness and degree whether they may properly be taken into account as part of the circumstances surrounding the offence charged. Accordingly, assuming that the aggravating circumstances in this case could have constituted a separate offence of affray, and I am inclined to think that they could,[4] in my opinion they so belonged and gave meaning to the offence with which the appellant had been charged, and the offence of affray that they may have constituted was so much less serious than the offence with which the appellant was charged, that it was fair and it was correct for the sentencing judge to take them into account.

9 In my view ground 2 fails.

Ground 3: Totality

10 It was submitted on behalf of the appellant that the sentences of four years' imprisonment which were imposed on Counts 2, 3 and 11 on the second presentment were manifestly excessive, given that the appellant pleaded guilty, was remorseful and, as the judge accepted, had acted instinctively out of panic and fear of being taken again into custody. I do not accept that submission.

11 These were particularly serious instances of the offence of recklessly engaging in conduct placing a person in danger of death. In fact it is difficult to imagine instances of the offence any more serious than firing a loaded pistol at close range in the direction of policemen endeavouring to effect a lawful arrest in discharge of their duty. It is not a mitigating circumstance of the offences that the appellant may have acted in panic or out of fear of being arrested. Indeed, but for the fact that it constitutes a separate offence of resisting arrest, it would be a seriously aggravating circumstance.

12 Given the circumstances, and the fact that the judge imposed a sentence of only 40% of the maximum penalty, I can only assume that the judge must have taken into account and given very considerable weight to all of the ameliorating considerations to which counsel referred us.

13 It was submitted on behalf of the appellant that the total effective sentence was a crushing sentence, destructive of any prospect of rehabilitation, which went beyond what is necessary for the case and that, in order to avoid that result, the judge should either have reduced the sentences imposed on the individual counts, particularly counts 2 and 3 on the second presentment, or ordered a greater degree of concurrency as between them and also a greater degree of concurrency as between the sentences imposed on Counts 2 and 3 and the sentences imposed on Counts 4, 8 and 11.[5]

14 I do not accept that submission either. The fact is that the appellant committed these offences while he was on parole and therefore was required to serve the period of 14 months of the balance of his parole. When that is added to the total effective sentence imposed by the judge below it may be that the appellant may serve as long as 13 years and two months in gaol and will serve not less than 10 years and two months. As was submitted on behalf of the appellant, that is a very long time, particularly for a relatively young man of 27 years of age. But that is the consequence of the gravity of his offending, and the statutory requirement that his sentence be served cumulatively on the uncompleted sentence. It is not manifest excessiveness. As Callaway, J.A. observed in R. v. Aleksov,[6] the question of whether a total effective sentence offends the principle of totality is often one of impression. In the circumstances of this case, my impression is that a total effective sentence of 13 years is not a crushing sentence.

15 In my view, ground 3 fails.

[5]

16 On 11 November 2005 at the Melbourne County Court the appellant, Damien Mark Nobile, pleaded guilty to a number of offences contained in presentment T00996199 ("the first presentment"). A count of burglary (count 1) and of theft (count 2) respectively encompassed burglaries committed between 5 October 2004 and 14 January 2005 on residential premises throughout the metropolitan area, and the property stolen therefrom. The 56 acts of burglary involved are listed in schedule 1 which was attached to the first presentment and which I attach to my reasons. I similarly attach schedule 2 which lists the property stolen which was valued at some $483,988. The appellant also pleaded guilty, on this presentment, to two counts of obtaining property by deception (counts 3 and 4). The property involved in these counts is set out in schedules 3 and 4 respectively.

17 Additionally, the appellant pleaded guilty to a further count of attempting to obtain property by deception (count 5); aggravated burglary (count 6); and attempted burglary (count 7). Finally, on this presentment, the appellant pleaded guilty to "a rolled up count" of handling stolen goods between 7 January and 14 January 2005. These were goods recovered by investigating police the owners of which could not be identified. The items involved are listed in schedule 5.

18 There were 129 separate charges which were confined to eight counts for the purpose of the appellant's plea to this presentment. The learned sentencing judge had before him a summary of each of the offences with which the appellant was charged (Exhibit A) and, as with the schedules, I attach it to these reasons.

19 It is sufficient to note that the burglaries were committed in the daytime upon premises throughout the Melbourne Metropolitan area and as far afield as Eltham, Park Orchards, The Basin, Sassafras and Warrandyte North. The appellant did not completely ransack the premises involved, and he was selective in what he took, namely items readily disposable for money, which was predominantly used to support his heroin addiction. The appellant's modus operandi was to visit the premises wearing a suit and tie carrying housebreaking tools including screwdrivers and a jemmy in a leather satchel. In the course of these activities two stolen vehicles were used but when one was recovered and the other broke down, taxis were utilised.

20 During the three months involved in the activities the subject of this presentment, the appellant had no fixed place of abode and predominantly rented motel rooms.

21 At the time of the commission of these offences the appellant was 26 years of age. He will turn 27 in September of this year.

22 The appellant admitted five findings of guilt for theft and handling stolen goods in an appearance at the Magistrates' Court in 1996 and, in the years thereafter, 123 convictions from seven appearances in various Magistrates' Courts. These were predominantly offences of dishonesty including burglary, theft and handling stolen goods but also included escaping from lawful custody, aiding a prisoner in escaping, resisting arrest, and carrying an unregistered hand gun whilst unlicensed.

23 On 29 October 2003 at the Melbourne Magistrates' Court, the appellant had been sentenced for 66 offences including 11 charges of burglary, 11 charges of theft, 6 charges of obtaining property by deception, numerous charges of forging and uttering prescriptions for drugs of dependence, and one charge of resisting a police officer in the lawful execution of his duty. On that occasion he was sentenced to an aggregate term of imprisonment of 2 years with a minimum non-parole period of 12 months. The appellant commenced to commit the offences to which he pleaded guilty on the first presentment shortly after his release on parole on the 6 September 2004 sentence.

24 Before listing the sentences imposed on the first presentment, it is sensible to turn to presentment T00113841 ("the second presentment") to which the appellant also pleaded guilty on 11 November 2005.

25 As a result of negotiations between the Crown and the defence, the appellant pleaded guilty to 11 counts arising from events which occurred on 14 January 2005. These may be summarised as follows.

26 The Doncaster Criminal Investigation Unit had set up an operation to investigate the large number of burglaries, the subject of the first presentment. On 14 January 2005 Senior Detectives Paul Leighton and Igor Tomazic were in Wellington Street, Collingwood sitting off a property with which the appellant had some association. As they departed from that venue at about 11.30 a.m. Senior Detective Leighton observed a taxi passing in the opposite direction. Believing that the appellant was a passenger, the taxi was intercepted by police who had activated the lights and siren of their vehicle. The appellant was asked to step out of the vehicle and was asked whether he was, in fact, Damien Nobile. Although he denied this, he was told that he was under arrest for burglary and an attempt was made to handcuff him. Thereafter a violent struggle took place in the course of which all three men fell to the ground. The appellant was reacting with such violence that the police were unable to control him and, as the struggle continued, were calling out to members of the public to contact 000. Next, in the course of the struggle, the appellant pulled the revolver carried by Mr Tomazic from its holster. A round was discharged in close proximity to both detectives narrowly missing Detective Leighton's head. In their statements, each policeman described the fear and horror they felt during the struggle with someone holding a loaded pistol. Indeed, Mr Leighton described seeing the revolver pointing towards his face. He managed to grab hold of the top of the firearm in an attempt to point it away from his direction. In the course of this struggle the appellant was saying to him: "I'm going to shoot you." Ultimately, the appellant broke free from the two policemen and, while they were still on the ground, he pointed the firearm at them from about five metres away and uttered the words: "I will fucking shoot - I will fucking kill you."

27 This series of incidents was the subject of counts 1 to 4 on this presentment namely, theft of the hand gun (count 1); recklessly engaging in conduct that placed Igor Tomazic in danger of death namely, the discharging of the firearm (count 2); the same charge in relation to Paul Leighton (count 3); and finally, using a firearm to resist arrest (count 4).

28 The appellant then ran into Smith Street, and at its intersection with Johnston Street he entered a blue Commodore sedan which was stationary. He directed the driver to travel in a westerly direction along Johnston Street. The driver of that vehicle, a Mr Sang Van Tran, was in fear at the time. He realised that the appellant had a firearm and, accordingly, did what he was told. The kidnapping of Mr Tran constitutes count 5, whilst count 6 was the using of a firearm in the commission of an indictable offence namely, the kidnapping.

29 By this stage a number of police units were in pursuit of the appellant. That pursuit continued in a southerly direction along Brunswick Street then into Victoria Parade, Spring Street and, ultimately, to Flinders Lane. There were now numerous police units involved and Flinders Lane was effectively blocked at both ends. The blue Commodore drove down the northern footpath of Flinders Lane in an apparent attempt to avoid the police vehicles. However, it collided with one such vehicle. A standoff ensued with the Commodore being surrounded by a number of police members calling on the appellant to surrender. In fact, he swapped places with Mr Tran and, having got behind the wheel, rapidly reversed the Commodore back up the footpath. In doing so the vehicle struck Constable Jonas Todd. The vehicle also collided with a number of motor bikes and a parking meter. That driving gave rise to a summary charge of dangerous driving. The collision with Constable Todd gave rise to a charge of recklessly causing injury (count 7). The path of the Commodore being blocked at a point adjacent to the Sofitel Hotel, the appellant alighted from the vehicle, ran into the hotel area, up an escalator into the shopping plaza attached to the hotel and into a ladies fashion store. Here, a further confrontation took place in which the appellant was asked on a number of occasions to surrender and put his gun down. Ignoring these calls, he ran from the store and into Collins Street. This refusal to accede to the police demands to surrender constituted count 8. In Collins Street the appellant entered a taxi which was parked at a nearby taxi rank. The taxi drove off slowly before the driver, Abdul Akram, ran from it. This interaction with Mr Akram gave rise to count 9, common assault.

30 This left the appellant alone in the taxi and he moved across into the driver's seat of the vehicle. As this was occurring a Constable James Donovan unloaded the rounds from his revolver onto the roadway and, using the butt of his revolver, attempted to smash a window of the taxi. Mr Donovan then entered the taxi through the rear passenger door and placed the appellant in a headlock. The object of this action was to prevent the appellant from seeing where he was going and to give other police members the opportunity of arresting him. The two men struggled as the taxi continued to travel down Collins Street. Mr Donovan recalled observing the appellant with the firearm in his right hand and his finger on the trigger. The appellant brought the firearm around his left shoulder and pointed it towards Mr Donovan's head. At the same time he uttered the threat: "Fuck off or I'll shoot you." The appellant discharged the firearm in Mr Donovan's general direction. The bullet exited through the front passenger window before lodging in the side of a parked food delivery van. It narrowly missed a number of other police who were around the taxi at this time and it was estimated there were approximately 100 members of the public in the immediate vicinity. Shortly after the firearm discharged the taxi mounted a tram safety rail which caused it to flip over onto its roof. The appellant and Donovan were still inside the taxi struggling. In the course of that struggle Constable Donovan managed to disarm the appellant. Other police assisted in the arrest of the appellant who was taken to the Royal Melbourne Hospital where he received treatment for injuries occasioned in the collision at the tram stop.

31 This last series of events attracted charges of theft of a taxi (count 10) and a further charge of recklessly engaging in conduct placing a person, in this case James Donovan, in danger of death (count 11).

32 On 15 January, the appellant was discharged from hospital and interviewed by police. He said, amongst other things, that he was affected by heroin at the time of these incidents.[7] Asked what had made him do what he did, the appellant responded: "I was just scared. I know they had me under arrest for the burglaries I've committed and I was already sort of running from the police, trying to hide from you and just scared." He said he didn't know why he had fired the police gun twice at police officers although he was aware a person being hit by a bullet would stand a very good chance of being killed.

33 On the first presentment the appellant was sentenced as follows: on counts 1 and 2 (the rolled up counts of burglary and theft) to a term of imprisonment of 30 months. On each of counts 3 and 4, obtaining property by deception, a sentence of 6 months' imprisonment was imposed; on count 5, attempting to obtain property by deception, 3 months' imprisonment was fixed. Count 6, aggravated burglary, attracted a penalty of 12 months' imprisonment; count 7, attempted burglary 3 months' imprisonment; and the sentence on the final count which involved the handling of stolen goods, was one of imprisonment for 8 months.

34 In terms of cumulation the learned sentencing judge stated:

[7]

35 On the second presentment the appellant was sentenced to the following terms of imprisonment. On count 1, the theft of a hand gun, 1 year; on counts 2 and 3, recklessly engaging in conduct in discharging a firearm which placed Tomazic and Leighton respectively in danger of death, 4 years on each count; on count 4, making use of a firearm with intent to resist arrest, 2 years; on counts 5 and 6, being those of kidnapping Mr Tran and carrying a firearm at the time of the kidnapping, 4 years and 1 year respectively; on count 7, recklessly causing injury to Todd, 9 months; on count 8, being the second occasion on which a firearm was used to resist arrest, 2 years; on count 9, the common law assault of Mr Akram, 6 months; on count 10, the theft of the taxi, 6 months; and on count 11, recklessly engaging in conduct being the discharging of a firearm which placed Donovan in danger of death, 4 years.

36 Finally, in respect of the summary charge of driving in a manner dangerous, the appellant received 4 months' imprisonment, his licence was cancelled and he was disqualified from obtaining a licence for a period of 2 years.

37 In relation to the second presentment, the learned sentencing judge ordered that 1 year of the sentences imposed on counts 2, 5, 6 and 11 and 6 months of the sentences imposed on counts 4 and 8, and 2 months of the sentences imposed on counts 7 and 9, be served cumulatively on the sentence imposed on count 3 and on each other. This produced a total effective sentence in respect of this presentment of 9 years and 4 months.

38 His Honour then ordered what he described as the total effective sentence of 2 years and 8 months which he had imposed on the first presentment be served cumulatively with the total effective sentence imposed on the second presentment. This resulted in a total aggregate sentence of 12 years' imprisonment with a non-parole period of 9 years being fixed.

39 In order to place the sentences imposed in context, it should be noted that the maximum penalties for burglary, theft, and obtaining property by deception is 10 years in each case. Attempting to obtain property by deception carries a maximum of 5 years as does attempted burglary, whilst aggravated burglary has a maximum penalty of 25 years and handling stolen goods 15 years. Insofar as the second presentment is concerned, reckless conduct endangering life and using a firearm to resist arrest each carry a maximum penalty of 10 years; carrying a firearm in the commission of an indictable offence, recklessly causing injury and common assault each carry a 5 year maximum; whilst the maximum sentence for kidnapping is 25 years. For completeness I should add that driving in a manner dangerous has a 2 year maximum penalty.

40 The appellant's appeal, which is against the total aggregate sentence imposed upon him, proceeded on three grounds. These were as follows:

[11]

(a) The sentences in respect of [the second presentment] imposed on counts 2, 3 and 11 were manifestly excessive.

(b) The sentencing judge gave insufficient weight to the principle of totality, particularly with respect to the orders for cumulation and the fact that the appellant was already undergoing sentence for breach of parole.

(c) The sentencing judge gave insufficient weight to the appellant's prospects of rehabilitation.

(d) The sentencing judge gave insufficient weight to the conditions and circumstances in which the appellant would be required to serve his imprisonment.

41 Turning to ground 1, it is clear that no base sentence was fixed by the sentencing judge on the first presentment. It is also clear that the failure to fix a base sentence for the purpose of cumulation may be regarded as constituting a sentencing error. In R. v. Nikodjevic[8] there was a 29 count presentment in which a number of terms of imprisonment were partially cumulated upon each other and were added together to form what was asserted to be a total effective sentence. The essential vice of this approach was the absence of any base sentence upon which that cumulation could occur.

42 In the present case, had a base sentence been fixed on the first presentment, it would logically have been on count 1, the burglary offence, for which a term of imprisonment of 30 months had been fixed. Cumulation of the magnitude directed by the sentencing judge would then have resulted in an aggregate sentence of 4 years and 2 months. It is trite to say that this would not have benefited the appellant. However, unlike Nikodjevic's case, the sentencing judge was dealing with two presentments and, although the language he used in referring to a total effective sentence and the manner in which he ordered its cumulation upon the total effective sentence arrived at on the second presentment, may be characterised as inappropriate, his Honour's intention was, in my view, quite clear. What the sentencing judge effectively intended to do was to cumulate a portion of the sentences imposed on four of the counts in the first presentment (1, 2, 6 and 8) with count 3 of the second presentment. In this regard, it should not be forgotten that the listing of the offences on two presentments was solely an administrative and procedural convenience.

43 Where an appellate court is able to discern the intent of a sentencing judge and is satisfied that any flaw in the application of the procedural requirements involved in passing sentence did not affect the aggregate sentence imposed, the court should be slow to conclude that there has been a material error. Accordingly, in the circumstances disclosed in this case, I would not uphold this ground.

44 Insofar as ground 2(b) is concerned, the complaint made is that the sentencing judge impermissibly punished the offender for an uncharged act.

45 The principles applicable in this area of the law are tolerably clear.[9] A person should not be punished for an offence for which he or she has not been convicted and discrete and serious offences should, if the Crown seeks to rely upon them in the sentencing process, be included on the presentment. It is, however, one thing to postulate such a requirement when the circumstance of the offences are clearly discrete; it is quite another to prohibit a court from taking into account aggravating aspects of a substantive offence charged on the presentment.

46 The comments of the sentencing judge upon which this ground is based are found at paras. [28] and [67] of his sentencing remarks. The first passage followed a description of how the bullet fired towards the policeman Donovan had lodged in a nearby car. It reads:

[15]

49 This again is a statement of fact. The appellant had terrified and harmed not only the police officers who endeavoured to arrest him but also civilians such as Mr Tran and Mr Akram. These were the consequences of the appellant's offending and they were intimately bound up with the substantive offences he had pleaded guilty to committing.

50 The offences upon which the appellant was presented and to which he pleaded guilty were clearly the subject of negotiation: for example, those relating to the discharge of the firearm at police officers. It was not suggested that the offence of affray was considered in this process. Nonetheless, it was the contention of counsel for the appellant, on the basis of the passages to which I have referred, that the fair and proper thing for the Crown to have done would have been to add a count of affray to the presentment. The combination of the failure of the Crown to do so, and the treatment of this aspect of the appellant's conduct by the sentencing judge, produced sentencing error.

51 For the sake of argument I will assume that the offence of affray could be committed by one person[10] and that the offence could be constituted by the actions of the appellant in Collins Street. I will further assume that the phrase "members of the public" in para. [67] extends beyond Messrs. Tran and Akram. Nevertheless, for the Crown to add a further offence based on the circumstances surrounding the substantive events charged, would, in my view, have been unrealistic, superfluous, and arguably an abuse of process. Indeed, when one considers the potential consequences for the appellant if he had had to face an additional charge, the artificiality of this ground is manifest.

52 In any event, I reiterate my earlier comments that the facts described by his Honour were so inextricably intertwined with the offences actually charged on the presentment as not to offend the basal principles to which I have referred.

53 I turn to ground 3.

54 Under the rubric of manifest excess it was first argued that the sentences of 4 years on counts 2, 3 and 11 were manifestly excessive both individually, and in the cumulation of 1 year of counts 2 and 11 upon count 3. It was pointed out that these sentences constituted 40% of the maximum of 10 years for the offence of reckless conduct endangering life and had to be seen in the context of the guilty plea of the appellant at the earliest opportunity; the appellant's remorse; the lack of planning

and premeditation involved in the offences; the appellant's instinctive panic and fear of returning to prison which caused a gross overreaction upon his interception by the police;[11] and the fact that the appellant would necessarily serve his sentence in a highly protected and onerous environment. Additionally it was submitted that the appellant was a relatively young man who had been subjected to serious abuse in his youth within the setting of a dysfunctional family. These experiences had, in turn, given rise to psychological problems and substance abuse. It was also put that the appellant's prospects of rehabilitation were not "bleak" as the sentencing judge had found.

55 Insofar as these submissions were directed specifically to the sentences for reckless conduct endangering life, it is appropriate to examine the gravity of these offences. Clearly, the appellant could have faced even more serious charges for the conduct which he perpetrated. As it was, the appellant's actions in discharging a firearm on two different occasions at separate locations in the direction or vicinity of policemen attempting to effect a lawful arrest constituted serious examples of this offence.

56 As a matter of public policy it was very important that the sentences imposed were calculated to deter the appellant and other persons who might be minded to resort to potentially fatal armed force to prevent their lawful apprehension by the police. Members of the police force ought to be able to perform their lawful duties on behalf of the community without the threat of lethal violence. In this case the police response to the appellant's activities was restrained. However, the potential for the exchange of shots in public places was a very real one. Such a danger needs to be addressed and, as far as is possible, minimised. Further, the traumatic effect of the appellant's actions upon the policemen involved is vividly revealed in their Victim Impact Statements. Additionally, it should not be overlooked that, at the time of these incidents, the appellant was on parole for offences which included a charge of resisting a police officer in the lawful execution of his duty. As was articulated in R. v. Kerbatieh[12]:

[20]

61 Specifically, it was submitted that concurrency was appropriate in relation to counts 2, 3, 4, 8 and 11 i.e. reckless conduct endangering life (counts 2, 3 and 11) and using a firearm to resist arrest (counts 4 and 8). It was put that this should have occurred because the 14 January conduct represented a continuing episode of offending and there were common elements (or aspects) to the above offences.

62 In relation to the breach of parole, the information supplied to the sentencing judge, and reflected in his reasons for sentence, was that the appellant's parole was cancelled by the Adult Parole Board in November 2004 for non-compliance with parole conditions and further, upon his arrest on 14 January 2005, he commenced to serve the unexpired period of his October 2003 sentence being 1 year 2 months and 29 days.

63 I should interpolate that subsequent inquiries of the Parole Board have indicated that the appellant commenced this sentence on 18 January 2005. Consequently, at the time of the imposition of the present sentence, he was to be credited with four days of pre-sentence detention and had served 303 days of the unexpired portion of the October 2003 sentence.

64 Indeed, on the basis of other information supplied by the Parole Board, the appellant would have completed the October 2003 sentence on 11 April 2006.

65 In any event, the appellant had to serve at least 1 year and 2 months of the unexpired parole period. It follows that, given the operation of s.16(3B) of the Sentencing Act 1991, the appellant would be required in the absence of exceptional circumstances (which was conceded) to effectively serve a head sentence of 13 years and 2 months and a minimum period of 10 years and 2 months in prison. This, it was submitted, offended the principle of totality and constituted a crushing sentence.

66 In response to these submissions the respondent pointed out that the sentencing judge had specifically adverted to the various issues raised by the appellant. At para. [80] of his sentencing remarks, his Honour said:

[22]

67 The respondent reiterated that the cumulation on counts 3 and 11 was modest; and the same submission was made as to the 1 year cumulation for the offence of kidnapping Mr Tran (count 5). Further, it was put that 6 months' cumulation of each of the offences of using a firearm to resist arrest (counts 4 and 8) was appropriate since these counts represented conduct which was discrete from that of reckless conduct endangering life (counts 2, 3 and 11).

68 It was pointed out that count 8 involved the totally separate incident which occurred in the Sofitel shopping plaza whilst count 4 involved the additional threat to kill the policemen Tomazic and Leighton made by the appellant after he had fired the shot in their direction and before he decamped into Smith Street.

69 The appellant did not single out any other specific sentence either being of excessive length, or as requiring concurrency. Indeed, in my view, it could not be said that some modest cumulation of the offences of recklessly causing injury to the policeman Todd (count 7) and the assault on Mr Akram (count 9) were not warranted.

70 Moreover, no argument was addressed to the sentences imposed on the first presentment. Given the plethora of criminal activity engaged in by the appellant over a period of 102 days, occurring as it did during a period of parole, these sentences may be regarded as lenient. Further, they bespeak the sentencing judge's awareness of the totality principle.

71 The mitigating factors which existed in this case, and to which the judge had regard, have previously been listed. Insofar as there was reliance upon the appellant's prospects of rehabilitation and custodial hardship, it is clear that the judge had regard to both.

72 It was submitted, however, that his Honour's finding that the appellant's prospects of rehabilitation were bleak[18] were not justified and that the sentencing judge should have shared the "guarded optimism" expressed by the clinical psychologist Mr Patrick Newton, who presented a report on behalf of the appellant. Mr Newton's prognosis was as follows:

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Judgment (169 paragraphs)

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