R v Quin

Crimes Act 1900 s 33 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 3A, s 21A(2)(c), s 44(1), s 44(2)

House v The King (1936) 55 CLR 499 R v Alameddine [2004] NSWCCA 286 R v Fidow [2004] NSWCCA 172 R v Gordon (1994) 71 A Crim R 459 CASES CITED : R v Heron [2006] NSWCCA 215 R v Johnson [2004] NSWCCA 140 R v Simpson (2001) 53 NSWLR 704 R v Wall [2002] NSWCCA 42 R v Way (2004) 60 NSWLR 168 Versluys v R [2008] NSWCCA 76

PARTIES: Regina Kayne Quin

COUNSEL: P Ingram (Applicant) S Corish (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT JUDICIAL OFFICER: McLoughlin DCJ

LOWER COURT MEDIUM NEUTRAL CITATION: Regina v Kayne QUIN

IN THE COURT OF CRIMINAL APPEAL 2006/6442

TOBIAS JA JAMES J PRICE J

17 February 2009 R v Quin Judgment 1 TOBIAS JA: I agree with Price J. 2 JAMES J: I agree with Price J.

3 PRICE J: The Crown appeals against what is asserted to be the manifest inadequacy of a sentence imposed upon the respondent in the District Court by the sentencing Judge. 4 The respondent had pleaded not guilty to a charge on an indictment that [he] on 18 May 2006 at Broken Hill did maliciously inflict grievous bodily harm upon Jeffrey Mark Hands with intent to do grievous bodily harm to him contrary to s 33 of the Crimes Act 1900 (the first count). The respondent was also charged in the alternative with maliciously inflicting grievous bodily harm upon Mr Hands contrary to s 58 of the Crimes Act (the second count). On 29 November 2007, the jury returned a verdict of guilty on the first count. 5 On 17 May 2008, the sentencing Judge sentenced the respondent to a term of imprisonment of 5 years consisting of a non-parole period of 2 years 6 months commencing on 29 November 2007 and expiring on 28 May 2010 with a balance of term of 2 years 6 months commencing on 29 May 2010 and expiring on 28 November 2012. 6 The earliest date the respondent is eligible for release to parole is on 28 May 2010. 7 An offence contrary to s 33 of the Crimes Act is punishable by 25 years imprisonment. A standard non-parole period of 7 years applies. 8 The principles relevant to Crown appeals against sentence were summarised by Wood CJ at CL in R v Wall [2002] NSWCCA 42 at [70]: "…it is important to note the principles which apply in relation to the determination of a Crown appeal against sentence: (a) The normal restriction upon appellate review of the exercise of a discretion, as set out in House v The King (1936) 55 CLR 499, applies to Crown appeals against sentence: Dinsdale v The Queen (2000) 202 CLR 321; with the result that this Court cannot merely substitute its opinion, as to the appropriate sentence, for that of the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665 at 671; rather, it may interfere only where error either latent or patent is shown; R v Tait (1979) 46 FLR 386 at 388; and Wong and Leung v The Queen (2001) 76 ALJR 79 at para 58 and 109. (b) Appeals by the Crown should generally be rare; Malvaso v The Queen (1989) 168 CLR 227 at 234, and unless there is a clear error of principle identified, it would be exceptional for the Court to interfere: R v Baker [2000] NSWCCA 85. (c) A Crown appeal against sentence is concerned with establishing matters of principle " for the governance and guidance of courts having the duty of sentencing convicted persons ": per Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 but this power extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing, that is, where the sentence is definitely outside the appropriate range for the case in hand: Everett v The Queen (1994) 181 CLR 295 at 299; Dinsdale v The Queen (2000) 202 CLR 32, at paras 61 and 62, and Wong & Leung v The Queen at para 109. (d) The Court has a lively discretion to refuse to intervene even if error has been shown, and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal: R v Allpass (1993) 72 A Crim R 561, R v Papazis (1991) 51 A Crim R 242 at 247, and Wong and Leung v The Queen at para 110. (e) A sentence which is imposed as a consequence of a successful Crown appeal will generally be less than that which should have been imposed by the sentencing court: R v Holder and Johnston (1983) 3 NSWLR 245 at 256, and will generally be towards the lower end of the available range of sentence: Dinsdale v The Queen at para 62."

The Findings of Fact 9 The sentencing Judge found the following facts (ROS 1-3): The facts giving rise to the commission of this offence are that on 17 May 2006 the victim, Geoffrey Hands, along with his workmates, Jason Ryan, Tim McKeller and Anthony Owens, all from Bathurst, all of whom had been working doing contract roofing work within the Broken Hill area. In the evening they went to the Social Democratic Club where they drank alcohol and met up with Bree Lithgow and some of her friends. The Mundine/Green fight was on that evening and the men had gone down to watch it. Bree Lithgow was a local girl who became friendly with Mr Ryan. The males were asked to leave the Democratic Club following some animosity between them and some local men. The group then went across to Mario's Palace Hotel where they watched the fight. Again a group of males was seen to be watching them. The victim and his friends drank a lot of alcohol and Mr Owens returned to their motel, the Old Willyama, during that part of the evening. When the fight was over Miss Lithgow went into Argent Street, there were many people in the street. The offender arrived and joined his friends, Corey Meahan and others and as Mr Ryan proceeded down the street Meahan engaged in an argument with him, with a fight ensuing outside Torpy's store between Meahan and Taylor, with the result that a shop window was broken after Ryan made contact with it. Ryan became separated from McKeller, Lithgow and Hands. They could not find him, went to the motel to look for him before returning to the area around Al Fresco's restaurant at the corner of Argent and Oxide Streets. On this corner the victim was spoken to by Mr Quin who had threatened him. Mr Quin made a mobile telephone call telling some people to "get up here, we have some Bathurst wankers to bash". The victim noticed he was wearing a grey jumper with a hood. While they were looking for Ryan, the police arrested Meahan after he ran into Al Fresco's subsequent to the fight and broken window. That arrest took place at about 11.45pm. Lithgow and McKeller found Ryan who had cut his leg. An ambulance took him to hospital with Lithgow. About that time Mr McKeller told Mr Hands to go to the motel to get Mr Owens. Mr Hands crossed Argent Street to the opposite side from Al Fresco's and walked east towards the motel. He noticed the man in the grey jumper walk along the opposite side in the same direction. As he then moved further he saw other men following the man in the grey jumper. Outside the Working Man's Club this man crossed the street and confronted him, calling out that it was on and pushed him. The victim struck him in return. The victim was then punched three times to the face by that man, who is the offender, fell to the ground and during the altercation he saw others approaching from either side. While he was on the ground he was struck and kicked by persons. At one time he was struck on both sides of the jaw and felt great pain. He was dragged by the jumper and he was kicked and lost consciousness. When he woke up he was alone and bleeding from facial injuries. He had been left in that condition by the offender and his cohorts.

The victim then went to the motel, woke the proprietor, was taken to hospital. At hospital it was ascertained that he had a fracture to the jaw in two places, a fracture to the left eye socket and a nasal fracture requiring a six hour operation during the course of which he was required to have molar teeth removed and three sets of screws inserted with a plate in the jaw. 10 His Honour found that matters which added to the seriousness of the offence were the commission of it in company and whilst the respondent was subject to conditional liberty. The respondent had been placed on a 12 month good behaviour bond on 30 May 2005 for an offence of common assault. On the same day, he had been sentenced to 100 hours community service for malicious damage to property. His Honour further detailed the circumstances of the respondent's conviction of malicious wounding in company, for which he had been placed on a nine month good behaviour bond in August 2004.

Subjective circumstances 11 During the proceedings on sentence the respondent gave evidence. Reports from Anna Robilliard, a psychologist, and Professor David Greenberg, a psychiatrist, were tendered as was a Probation and Parole pre-sentence report. 12 The respondent was born on 21 April 1986 and was 20 years old at the time of the commission of the offence. He had a dysfunctional family background, and his parents separated when he was an infant. He rarely saw his father and had been cared for mostly by his mother who had multiple male partners. As a child he lived an unsettled life and had attended ten different schools. He left school after completing year 10. 13 On leaving school, he worked as a roustabout and then as a shearer. He then obtained employment as a field technician with mining companies in Broken Hill. Testimonials as to his good character and work ethic were tendered during the sentencing proceedings. He had been in a stable relationship for 5 years and his girlfriend remained supportive of him. 14 The respondent had abused alcohol from the age of 16 years. Professor Greenberg diagnosed an alcohol abuse disorder and anger management issues. 15 The sentencing Judge during his remarks on sentence quoted from Professor Greenberg's report which included the psychiatrist's assessment that the respondent's prognosis: (ROS at 7): "Is dependent on him abstaining from alcohol for an indefinite period and seeking counselling for his anger management difficulties and other personality problems." 16 His Honour considered the Probation and Parole report and noted that since his incarceration on 29 November 2007, the respondent had complied with correctional centre routines, had neither caused trouble nor had any institutional misconducts recorded against him. His Honour noted that the author of the report had said: " He was a young man who had problems in the past and now appears to have a bright future within the mining industry. On a personal level his family appears to be highly supportive of him and he seems to be in a stable relationship. While [the respondent] maintains his innocence of the current offences before the court, he acknowledges the need to address his alcohol abuse, binge drinking issues, and appears to have gained some insight into the problems his previous offending behaviour has caused him." 17 His Honour accepted the evidence that had been given as to the respondent's increased maturity since the offence occurred and his employment in the mining industry. His Honour accepted that he was a good worker and was "a young man with great potential, good work ethics, and capable of being a young leader who could influence his peers in a positive way." 18 His Honour quoted extensively from the psychologist's report which included the following passage: "[the respondent] has sound goals and future perspective. He also has the support of immediate family members and girlfriend. With this level of structure and support [the respondent's] progress is positive. He is a young man who has taken responsibility for supporting himself from an early age and he has done so in demanding circumstances. He does not have an extensive criminal record, nor does he appear to have entrenched antisocial attitudes and values. Excessive drinking affects good decision making and reduces behavioural self control and this appears to be at the centre of [the respondent's] involvement in this matter." 19 The sentencing Judge observed, however, that the jury's verdict was a correct one and the respondent had shown "little contrition by his continued denial of involvement." During the trial the respondent had admitted he was at the scene of the attack but maintained that he played no role in it and denied that he struck the victim. Upon sentence he acknowledged that no one deserved the injuries that the victim had suffered.

Dealing with the appeal 20 There is one ground of appeal which is that the sentence is manifestly inadequate. The Crown also points to what are said to be a number of individual errors made by the sentencing Judge. It is appropriate to first consider the individual errors alleged by the Crown. 21 During his sentencing remarks, his Honour said (ROS at 5): "Notwithstanding the violence and the matters of aggravation to which I have referred, I am of the view that this offence is below the middle of any scale constructed for such an offence, principally because of the absence of any weapon." (italics added) 22 The Crown submitted that the assessment of the objective seriousness of the offence as below the middle range of objective seriousness was in all the circumstances erroneous. The Crown contended that the presence of a s 21A factor serves to aggravate an offence but the corollary does not follow and the fact that no knife, chair, ashtray or gun was used to inflict injury does not cause the offence per se to be less than mid-range in seriousness. The Crown pointed out that the principal reason why the sentencing Judge had concluded in the passage quoted at [21] above that the offence was below the middle of the range of objective seriousness was the absence of a weapon. 23 The actual or threatened use of a weapon is an aggravating factor to be taken into account in determining the appropriate sentence for an offence: s 21A(2)(c) of the Crimes (Sentencing Procedure) Act 1999. 24 The respondent on the other hand submitted that the sentencing Judge had incorrectly found that the victim had been kicked. This was a matter, it was said, that was relevant to the assessment of the objective seriousness of the offence. Although such an incorrect finding was made, the respondent contended that the sentencing Judge correctly characterised the offence as being below the middle of the range. 25 The sentencing Judge said during his sentencing remarks (ROS at 2): "The victim was then punched three times to the face by that man, who is the offender, fell to the ground and during the altercation he saw others approaching from either side. While he was on the ground he was struck and kicked by persons . At one time he was struck on both sides of the jaw and felt great pain. He was dragged by the jumper and he was kicked and lost consciousness." (italics added) 26 And (ROS at 3): "The offence was committed in company, such company being organised by the offender as can be seen by reference to the mobile phone and was committed by the offender when he was on conditional liberty. The violence was cowardly because of the numbers attacking the person on his own and then when he was knocked to the ground the use of the boots as a weapon. These are matters which add to the seriousness of the offence." (italics added).

27 And (ROS at 4): " There were no weapons used on this occasion in this assault except for the use of the fist and feet and arranging for a large number of persons to assist the offender in the carrying out of this very violent assault." (italics added) 28 No evidence was given during the trial that the victim was kicked. The victim made no such complaint nor was it submitted by the Crown that he had been kicked. 29 It was his Honour's duty to determine the facts relevant to sentencing the respondent. The finding that the sentencing Judge made that the victim had been kicked was not open on the evidence. His Honour, with respect, in assessing the objective gravity of the offence erred in taking into account that the victim had been kicked.

30 It is important to emphasise that the absence of a weapon (and in my opinion the use of boots to kick another may be readily characterised as the actual use of a weapon) is not a matter of mitigation: Versluys v R [2008] NSWCCA 76 per McClellan CJ at CL at [37]. As was said in Versluys it does not necessarily follow that where hands (in the present case fists) have been used by an assailant instead of a weapon that the offence is less serious than if a weapon was used. This may particularly be considered to be the case when a single victim is attacked by a number of assailants even though the method of assault was confined to the use of fists. 31 The respondent's criminality was aggravated by the fact that the offence was committed in the company of other persons whom he had summonsed, with the intention that the victim was to be attacked. It was the respondent who led the attack punching the victim causing him to fall to the ground whereupon he was savagely set upon. As a result of the attack, the victim suffered serious facial and dental injuries. 32 A determination of where the subject offence lies on the scale of seriousness of an offence of its type is essentially one of fact and as such is reviewable in this Court only on the principles stated in House v The King (1936) 55 CLR 499. As was said by Simpson J in R v Johnson [2004] NSWCCA 140 at [36]: " For the Crown to succeed on this aspect of the appeal, it is necessary that it establish that the finding, which is essentially one of fact, was not open to his Honour. The finding, being an evaluation is akin to an exercise of discretion and may only be held to be wrong if it can be shown that some wrong principle was applied, or irrelevant consideration taken into account (or a relevant consideration overlooked) or that the finding itself simply was not open on the evidence: House v The King …" 33 It is well recognised that s 33 of the Crimes Act covers a wide variety of offences and a diversity of injuries: see R v Heron [2006] NSWCCA 215 per Hoeben J at [54]. The finding of fact which the sentencing Judge made that the victim had been kicked enhanced the gravity of the offence and was favourable to the Crown's argument that the assessment of objective seriousness of the offence as being below the middle range was erroneous. Serious as the injuries to the victim were and the number of persons present at the time of their infliction, I am not persuaded, that an assessment that the objective seriousness of the offence as being below the mid-range of objective seriousness was not open on the evidence. In my opinion, however, the objective seriousness of the offence could not be characterised as being less than slightly below the middle of the range. 34 The Crown further contended that the sentencing Judge had incorrectly double counted subjective features as justifying a departure from the standard non-parole period and then used the same features to find special circumstances and to lower the non-parole period again. The respondent contended that the authorities cited by the Crown such as R v Fidow [2004] NSWCCA 172 and R v Alameddine [2004] NSWCCA 286 did not prohibit the consideration of the same or similar factors in relation to both special circumstances and the standard non-parole period. They are, the respondent submitted, in reality discussions about the same issue which was how long should the offender spend in prison. 35 In R v Fidow Spigelman CJ said at [18]: "In R v Simpson (2001) 53 NSWLR 704, this Court identified the wide range of factors capable of constituting special circumstances. Nevertheless, on each occasion in which s 44(2) of the Act is invoked, it is necessary for the sentencing judge to make a decision, as noted in Simpson at [68] that the circumstances are sufficiently special for the statutory proportion to be reduced. Section 44(2) requires the 'decision' to be that the statutory proportion of one-third be "less". 'Double counting' for matters already taken into account in reducing the head sentence, and therefore already reflected in the non parole period, must be avoided. (see Simpson at [47]). Almost all matters capable of constituting special circumstances have usually been taken into account in determining the head sentence and sentencing judges should ensure that double counting does not occur." 36 Whilst it is true that what was said by the Chief Justice in Fidow at [18] cautioned against the double counting of matters already taken into account in reducing the head sentence and then in the finding of special circumstances to vary the statutory proportion of the non-parole period, sentencing Judges, in my view, should also take care to ensure against double counting when a matter is taken into account in departing from the standard non-parole period and then as a special circumstance justifying a variation in the statutory proportion between the non-parole period and balance of the term of the sentence thereby further reducing the mandatory period of imprisonment. Section 44(1) of the Crimes (Sentencing Procedure) Act provides that the balance of the term of the sentence should not exceed one-third of the non-parole period unless there are special circumstances, in which case reasons must be given: s 44(2). 37 This Court said in R v Way (2004) 60 NSWLR 168 at [110]: "While many of the factors which qualify as special circumstances will be taken into account as factors specifically listed in s 21A in determining the appropriate non-parole period, it does not necessarily follow that its work is fully done at that stage, although caution will need to be exercised so as to avoid inappropriate double counting." (underlining added). 38 The Court explained in Way at [112] that while there are separate considerations involved for s 44(2) of the Crimes (Sentencing Procedure) Act and for reasons for not imposing the standard non-parole period, the relevant steps can be taken simultaneously. By avoiding a two stage process, the risk of double counting is reduced. 39 The sentencing Judge recognised that the Court was required to impose the standard non-parole period of 7 years unless it was determined that there were reasons for departing from the standard non-parole period. The reasons for imposing a shorter non-parole period, his Honour said, were (ROS at 12): "1. There were no weapons involved. 2. The offender has taken very positive and big steps in maturing and settled into the workplace since this offence. 3. I accept that as evidence of a real prospect of rehabilitation and I accept that which all of the reporters have written in relation to his prospects of rehabilitation. 4. I accept the support that has been proffered by his family and community in relation to the way they see his future, for the offender is a young man in need of supervision, direction and involvement. He needs direction in relation to anger management, alcohol abuse, and the psychological assistance of which Ms Robilliard speaks. 5. That the pre-meditation upon the offence was short term. 6. The offender is a young man, well regarded by family and community. 7. The violence in the Green-Mundine fight which was telecast that night appeared to have moved a number of persons in the streets of Broken Hill to violence as there were a number of fights, but did not necessarily involve this offender, to which the police were called after the Green-Mundine fight was over. I make this comment in saying that I am of the view that any premeditation was limited. 8. It is the offender's first custodial sentence. 9. The offender has put himself into protective custody." 40 His Honour then went on to say (ROS at 13): "It has been submitted that I should find special circumstances. For the same reasons that I have found for not sentencing the offender to the seven years non-parole period, for those same reasons I find special circumstances."

41 His Honour then sentenced the respondent to imprisonment consisting of a non-parole period of 2 years 6 months and a balance of term of 2 years 6 months. The effect of his Honour's finding of special circumstances was to increase the balance of term of the sentence from the statutory ratio of 1 year 3 months to 2 years 6 months with a corresponding reduction in the non-parole period from 3 years 9 months to 2 years 6 months. The same matters which were said to justify a departure from the standard non-parole period of 7 years resulted in the alteration of the statutory ratio under ss 44(1) and (2) of the Crimes (Sentencing Procedure) Act. The approach adopted by his Honour and the non-parole period which was set suggests that the same matters which had been taken into account in departing from the standard non-parole period were then taken into account as special circumstances in further reducing the non-parole period. It was, in my respectful opinion, erroneous for his Honour to 'double count' in this way. I am satisfied that the second ground of individual error alleged by the Crown has been established. 42 The Crown next argued that his Honour placed undue emphasis on the respondent's subjective factors such as rehabilitation although he continued to deny responsibility for the offence. The respondent on the other hand submitted that the sentencing Judge, in a difficult sentencing exercise, balanced the objective gravity of the offence with the circumstances of the respondent and arrived at a sentence which was open to him.

43 His Honour correctly identified the commission of the offence by the respondent whilst he was subject to conditional liberty for an offence which had involved violence to be a factor of aggravation and noted that little contrition had been shown by his denial of involvement. However, his Honour accepted that the respondent who was 20 years old at the time of the commission of the offence had good prospects of rehabilitation if he overcame his alcohol abuse and dealt with his anger management issues. There was evidence that the respondent whilst on bail had taken positive steps towards his rehabilitation in the 18 months which had elapsed between the commission of the offence and the trial. He had obtained employment in the mining industry. His Honour found that the respondent had taken "very positive and big steps in maturing," had "settled into the work place" since the offence and was a young man "well regarded by family and community". All of these findings were open to his Honour on the evidence. 44 The prospects of rehabilitation have long been recognised as an important consideration in sentencing of offenders and the promotion of the rehabilitation of the offender is one of seven purposes of punishment set out in s 3A of the Crimes (Sentencing Procedure) Act. Important as the positive steps taken by the respondent towards his rehabilitation and his relatively young age were in the sentencing exercise, it was incumbent upon the sentencing Judge not to give undue weight to these considerations in the balancing process and to have proper regard to the serious objective circumstances of the respondent's offending and to all of the purposes of punishment in s 3A. 45 In R v Gordon (1994) 71 A Crim R 459 Hunt CJ at CL said at 469 (with whom McInerney and Sully J J agreed): "What all those principles make clear is that rehabilitation (or reform) - the hope that the offender will be released back into the community a better person than when he or she left it - is only one of the purposes of punishment and that, even when some measure of rehabilitation has been achieved, such a subjective consideration remains necessarily subsidiary to the need for the sentence to act as a deterrent to the public." 46 Where there has been a gang attack upon a single victim, sentencing Judges, in my view, should ordinarily give more weight to considerations of personal and general deterrence, the protection of the community and denunciation than to rehabilitation. Gang attacks invariably involve multiple acts of viciousness, randomly directed at the victim's person with the high potential of serious injury being inflicted. 47 Whilst his Honour referred to "the requirements for general and specific deterrence" as necessitating a sentence of imprisonment, it seems to me that his Honour gave too much weight to the respondent's prospects of rehabilitation. I am satisfied that the third ground of individual error alleged by the Crown has been established. 48 Although error has been identified, the question to be determined is whether the sentence is manifestly inadequate. 49 The maximum penalty for the offence for which the respondent had been found guilty by the jury is 25 years imprisonment with a standard non-parole period of 7 years. The objective and subjective features referred to by his Honour, in my respectful opinion, did not justify in the circumstances of the case the substantial departure from the standard non-parole period to a non-parole period of 2 years 6 months and inappropriate 'double counting' occurred. Too much weight was given by his Honour to the respondent's prospects of rehabilitation and the sentence imposed does not adequately reflect the gravity of the offence. This was a serious crime. At the respondent's instigation the victim who was walking alone in the early hours of the morning was viciously attacked by the respondent and his fellow assailants. The victim was bashed and left unconscious. The respondent at the time was subject to a good behaviour bond for an offence of common assault. To my mind, a sentence of 5 years imprisonment with a non-parole period of 2 years 6 months is not merely lenient but is manifestly inadequate. The non-parole period "must itself appropriately reflect the criminality involved in the offence": R v Simpson (2001) 53 NSWLR 704 per Spigelman CJ at [63]. In this case, the non-parole set by his Honour failed to do so.

Intervention 50 Even if error is shown, this Court has a discretion to refuse to intervene and in deciding whether to exercise that discretion, the Court is to have regard to the double jeopardy that the convicted person faces as a result of a Crown appeal. 51 The respondent submitted that the Court should exercise its discretion not to intervene as the offence was committed on 18 May 2006 and the Crown appeal was not heard until 12 December 2008 during which time the respondent has lived with the uncertainty of outcome. 52 The uncertainty which the respondent faced prior to the jury's verdict was a consequence of his pleas of not guilty and the present uncertainty as to whether the term of the sentence is to be increased is an inevitable consequence of most Crown appeals. This is not a case where there has been delay by the Crown in the prosecution of the appeal nor is it a case where a non-custodial sentence was imposed by the sentencing Judge. I am not of the opinion in the circumstances of this case that the Court should exercise its discretion not to intervene. 53 I am satisfied that the Crown appeal should be upheld. Re-sentencing 54 When re-sentencing, the Court is obliged to have regard to the principles of double jeopardy and to the obligation to impose the minimum sentence which a Court might have imposed at first instance rather than a sentence that the Court itself considers to be the appropriate sentence. 55 I have concluded that the minimum sentence that might have been imposed is a term of imprisonment of 5 years 6 months consisting of a non-parole period of 3 years 2 months with a balance of term of 2 years 4 months. 56 The finding that the offence fell slightly outside the middle range of objective seriousness and the respondent's subjective features justify the departure from the standard non-parole period and the balance of term reflects the special circumstances of the respondent's first time in custody and the nature of the custody. 57 Accordingly the orders that I propose are:

(1) The sentence is set aside. (2) The conviction is confirmed. (3) The respondent is sentenced to a term of imprisonment of 5 years 6 months consisting of a non-parole period of 3 years 2 months commencing on 29 November 2007 and expiring on 28 January 2011 with a balance of term of 2 years 4 months commencing on 29 January 2011 and expiring on 28 May 2013.

The earliest date on which the respondent will be eligible for release to parole is 28 January 2011.

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