There was also a favourable psychological report and material from the prison authorities in Queensland prior to the appellant's release on parole on 30th November 2003. His Honour observed that there was no doubt that the appellant took advantage of the time that he was in custody in an attempt to get his heroin problem behind him. Unfortunately, he relapsed on his return to Melbourne, in circumstances to which I shall refer in more detail later, and committed these serious, but unplanned and relatively impulsive, offences.
7 Counsel for the appellant and the respondent filed helpful outlines of submissions, which they supplemented by oral argument. Mr Hughan argued ground 1 first. At the time of the offences the appellant was on parole. Accordingly, there existed the possibility at the time of sentencing that the Parole Board would cancel his parole and require him to serve some or all of the outstanding period. The judge was required to take that possibility into account, in accordance with the decision of this Court in R. v. Orphanides[1]. No reference to the principle for which Orphanides stands was made in the course of the plea or the sentencing remarks. It is to some extent counter-intuitive. I readily assume that the learned and very experienced judge took s.16(3B) of the Sentencing Act 1991 into account, but the transcript and the sentence imposed show that ground 1 is made out.
8 Mr Hughan argued grounds 2 and 3 together. He emphasised that the appellant had made substantial efforts toward rehabilitation between the time he was released on parole and the commission of the offences and again whilst he was on bail. The offences themselves were impulsive, committed within a short time and not well planned. Both of them, counsel submitted, were towards the lower end of the scale. No one was placed in physical danger and, in the case of the attempted armed robbery, the appellant desisted as soon as the security screen was activated. He was fully co-operative with the police and pleaded guilty at the first opportunity. The judge accepted that he was genuinely remorseful. His remorse was no doubt explained in part by the circumstances that contributed to his fall from grace after his return to Melbourne. They are referred to in the psychological report of which I have already made mention and were summarised by counsel on the plea. On his return to Melbourne the appellant was prescribed morphine for pain caused by brachial plexus damage. The morphine was detected in urine sample tests provided to his parole officer, who insisted that he wholly cease its use. There was a dispute over that issue between the appellant and the parole officer and the pain continued, mainly at night. In March the appellant was put on antidepressant medication after he began to suffer flashbacks. It was in that context that he decided to return to heroin and commit these offences as a means of financing its purchase.[2]
9 In case the sentencing discretion was re-opened, Mr Hughan informed us of the appellant's present position. The Parole Board did cancel his parole on 2nd March 2005. The outstanding parole period is two years five months and three days. The appellant is serving that sentence in Victoria. Since being returned to prison, he has completed a life skills course and a drug rehabilitation course and has been accepted for an intensive drug rehabilitation course of some 15 weeks' duration beginning in January 2006. He is a maintenance billet and has accepted the responsibilities of a peer educator. He retains the support of his family and it is said that a job remains open to him when he is released.
10 As the judge said and as Mr Southey pointed out in his submissions, these were serious crimes, committed by a man who had not long been released after serving a substantial term of imprisonment for virtually identical offences. In my opinion a measure of cumulation was well within his Honour's discretion, especially as there were different victims of the two offences. I refer not just to the banks but to the bank staff, who were put in fear. The sentences were nevertheless stern when all the circumstances, including the appellant's prospects of rehabilitation and his efforts in that direction, are taken into account. But we need not decide the grounds relating to manifest excess, because the failure of counsel to alert the judge to the Orphanides point, and its consequently being overlooked, re-open the sentencing discretion.
11 Taking into account the seriousness of the offences, but also the mitigatory factors to which Mr Hughan referred, I would re-sentence the appellant to three years' imprisonment on count 1 and affirm the sentence of two years' imprisonment on count 2. In the interests of totality with the Queensland sentence, I would permit those sentences to be served concurrently with each other, making a total effective sentence of three years' imprisonment, and fix a non-parole period of two years. The sentence and the non-parole period would be deemed to be imposed on 8th February 2005, but s.16(3B) of the Sentencing Act will apply.