R v THOMPSON

Court of Criminal Appeal (NSW)|2007-04-05|Before: Hulme J, Hall J

JUDGMENT OF: Handley AJA at 1; Hulme J at 2; Hall J at 51

PARTIES: Regina Luke Edward THOMPSON

COUNSEL: Crown: Mr R Herps Respondent: Mr A Cook

1 - IN THE COURT OF CRIMINAL APPEAL 2006/2633

HANDLEY AJA HULME J HALL J Friday, 3 August 2007

R v Luke Edward THOMPSON Judgment 1 HANDLEY AJA: I agree with Hulme J. 2 HULME J: On 3 June 2005 the Respondent, in company with another man, entered the Caltex service station at Coonabarabran at about 9pm. An employee of the service station, a Franz Ludiwig came to the counter. As he did so, the two men started shouting "Give me the money". Ludiwig pushed one of the men who was on the counter and said, "Get out of it". Ludiwig then noticed that the other male had a knife in his hand. That person pointed the knife at Ludiwig and demanded the money. The male who had tried to climb over the counter leaned over and punched the left side of Ludidwig's face, causing a wound which the sentencing judge described as "superficial". Ludiwig moved away from the console area. The males took the tray of cash out of the till and carried it away, scattering some contents en route. Later checking revealed that about $569.00 had been taken. 3 The Respondent was arrested on 10 June 2005. While at the police station and after he had been charged, he escaped from custody. During the course of the police pursuit further offences which came to be included on a Certificate under s166 of the Criminal Procedure Act were committed. Those of present relevance are assaulting an officer in the execution of duty, 2 of resisting an officer in the execution of duty, and escaping from lawful custody. 4 In furtherance of his escape, the Respondent entered a motor vehicle pushing the driver out in an endeavour to decamp. However, the Respondent was unable to start the vehicle, was confronted by police and again arrested. 5 The Respondent was charged with robbery with wounding and what may conveniently be referred to as car-jacking. He pleaded not guilty but on 15 March 2006 a jury convicted him of both. At some stage he pleaded guilty to the offences on the s166 certificate to which I have referred. Other offences on that certificate were remitted to the Local Court. 6 On 23 June 2006 a sentence hearing was conducted before Judge O'Connor QC and on 15 September 2006 his Honour sentenced the Respondent. The sentences imposed were:- 1. For the offence of car-jacking, imprisonment for a non-parole period of 18 months commencing on 10 June 2005 with a balance of term of 18 months. 2. In respect of each of the offences of assaulting an officer in the execution of duty, the 2 offences of resisting an officer in the execution of duty and escaping from lawful custody, imprisonment for 6 months from 16 March 2006; and 3. In respect of robbery with wounding, imprisonment for a non parole period of 2 years commencing on 10 December 2006 with a balance of term of 2 years. 7 Thus the effective sentence was one of 5½ years, including a non-parole period of 3 years. The sentences imposed in respect of the second group of offences were effectively subsumed with the sentence on the car-jacking charge. The sentence on the robbery with wounding charge was entirely cumulative to the non-parole period imposed for car-jacking.

8 The first offence arises pursuant to s154C of the Crimes Act and carries a maximum period of imprisonment of 10 years. Pursuant to s54B of the Crimes (Sentencing Procedure) Act a standard non-parole period of 3 years has been prescribed. The offence of robbery with wounding arises pursuant to s96 of the Crimes Act and carries a maximum penalty of 25 years imprisonment. Having regard to the issues that arose in the appeal, it is unnecessary that I summarise the provisions relevant to the offences mentioned in the second numbered sub-paragraph. Those offences occurred shortly after the Respondent's arrest on the robbery offence and were all associated with escaping after being charged.

9 By Notice of Appeal dated 15 November 2006 the Crown has appealed against the "sentence" imposed on the ground that "the said sentence is manifestly inadequate." That notice was served on the Respondent on 16 November, no prior notice that the Director was minded to appeal having been given. No explanation for the delay has been provided. As the matter was presented to this Court, the Crown has limited its appeal to the sentence imposed with respect to the offence of robbery with wounding, relying on the following grounds:- "(A) The learned sentencing judge erred in his application of the Henry guideline in relation to the sentence for aggravated robbery. (B) That as a consequence of A, the learned sentencing judge erred in his application of the principle of totality. (C) The learned sentencing judge erred in placing too much weight on the fact that the offender suffered from bi-polar disorder, and (D) That the learned sentencing judge failed to give adequate weight to the seriously aggravating feature that the respondent was on three bonds at the time of the offences were committed." 10 The Respondent did not give evidence on sentence but Judge O'Connor seems to have largely accepted the contents of the Pre-Sentence Report and a report of a psychiatrist, Dr Allnutt. His Honour accepted that the Respondent is an Aboriginal; since the age of 11 or 12 the Respondent spent considerable time in Juvenile Detention Centres; he left school in year 9; at age 13 or 14 he started using speed and at age 17 progressed to heroin and cocaine continuing this addiction until his arrest. Since then he has been on the methadone program. He has been in a relationship for some years with a partner who remains supportive. After leaving school the Respondent had worked for some time on farms and fruit picking but at the time of the offences he was unemployed. 11 The Respondent has not attended drug rehabilitation or detoxification programs. The Respondent told Dr Allnut that at the time of the offences he was using drugs, probably morphine and speed and feeling depressed. Dr Allnutt recorded that on being questioned about his drug abuse the Respondent responded as follows:- "His words were "I want to stop taking drugs very badly". On stating this to me he was clearly highly emotional and tearful. I concluded that his tearfulness related to his awareness of the significant impact that substances have had on his life and the degree to which he was motivated to stop using substances…" 12 The Respondent's mother suffers from schizophrenia. She has been admitted to hospitals on a number of occasions and the Respondent, while a child, found her illness an extremely difficult circumstance to tolerate. 13 Dr Allnut concluded that the Respondent suffered from bipolar affective disorder which manifested itself in episodic, exaggerated fluctuations in mood … involving on the one hand increased energy, a sense of euphoria, grandiosity, racing thoughts, a reduced need for sleep, irritability and agitation and on the other, depressed mood with reduced appetite, impaired sleep and concentration and reduced motivation and energy. Dr Allnut recorded the Respondent had recounted episodes like these since his incarceration and in circumstances where, according to what the Respondent told the doctor, he had not abused any substances. 14 Dr Allnut also observed:- "Complicating your client's presentation has been a long history of substance abuse dating back to early adolescence involving a wide variety of substances including cannabis, heroin, cocaine, alcohol and speed. It appears that your client has pursued a quite significant drug abuse lifestyle and this (sic) manifested symptoms consistent with tolerance and withdrawal. His substance abuse has had a major impact on his psycho social functioning and developmental course to the extent that he can be diagnosed with Polysubstance Abuse and Dependence. … He does not manifest any major mental medical problem although I have not formally physically examined him. … You client has been exposed to a difficult developmental course. His experiences … have impacted on him psychologically. He is experiencing quite significant difficulties in addressing his life experiences at this stage and … requires a period of psychological counselling and support in order to address his losses." 15 Dr Allnut also recommended the Respondent be referred to a psychiatrist for assessment and for a trial of mood stabilising medication. 16 Judge O'Connor accepted the history given by the Respondent to Dr Allnut, accepted as genuine the Respondent's desire to be drug free, and accepted Dr Allnutt's diagnosis and treatment proposal. His Honour also said that he regarded the mental health of the Respondent as a significant mitigating factor and that, accordingly, issues of general deterrence were of less weight. 17 The Respondent's need for psychiatric and drug counselling also led his Honour to make a finding of special circumstances.

18 Referring to the Respondent's convictions, his Honour observed:- "They are relevant and operate to demonstrate a continuing disobedience to the law and depriving him of any undue leniency. Such offences are also of relevance to the offender's prospects of rehabilitation …"

19 His Honour declined to assess the Respondent's prospects of rehabilitation as "good" but said he believed they were reasonable. His Honour continued:- "I say this on the basis of his young age and the fact that drugs have been a dominating issue in the past and he has resumed, of his own volition whilst in prison, the methadone program".

Ground A 20 Although acknowledging that weight had to be given to the fact that offences under s96 were inherently more serious than offences under s97(1), his Honour compared the robbery offence with the circumstances envisaged in the guideline case of R v Henry (1999) 46 NSWLR 346. He remarked that the Respondent's criminal conduct spanned some 2 years and expressed the view that it fitted within the description of "little criminal history". He observed that the knife was small and not placed against the victim's throat and that the one punch caused but superficial injury. His Honour acknowledged that the Respondent had not pleaded guilty. He remarked that the $560 stolen while not small, was not a large sum and said that he regarded the robbery as slightly below the mid-range of objective gravity. His Honour also observed that he regarded the car-jacking offence as "below the mid-range, somewhere between the bottom and middle of the range of objective seriousness". 21 In support of the first ground, the Crown submitted that the offence was committed in company, there was actual violence, the Respondent was not a person with little or no criminal history, the amount taken was not small and the Respondent did not plead guilty and, in light of these matters, the offence and need for punishment were significantly more serious than as contemplated in R v Henry. 22 I do not agree with all of these criticisms. The violence falls within that contemplated in R v Henry, at [162] "limited, if any, actual violence but a real threat thereof", and the amount taken was, in the context of armed robbery offences, small (though the Respondent can claim little credit for that). On the other hand, the Respondent was in company and pleaded not guilty - 2 factors which were not present in the group of typical factors identified in R v Henry and which do argue for a heavier sentence than the guideline of 4 to 5 years imprisonment there indicated. 23 Furthermore, Judge O'Connor's statements that the Respondent's "criminal history spans some two years" and that it fitted within the description of "little criminal history" were wrong.

24 The Respondent was born in January 1985. A Pre-Sentence Report indicates that the Respondent also spent some appreciable time in juvenile detention centres. His Antecedents Report reveals the following:- In August 2001 he was charged with assault occasioning actual bodily harm and contravening an apprehended violence order and in February 2002 and two control orders described as "9 months non-parole period: 3 months commencing 07/02/2002 concluding 06/05/2002" were imposed. In November 2002 he was charged with behaving in an offensive manner in or near a public place or school. On 1 January 2003 he was charged with wilful and obscene exposure in or near a public place or school. On 20 January 2003 he was charged with breaking, entering and stealing. On 24 September 2004 in respect of this and the two further offences to which I have just referred, three 2 year bonds were imposed. In March 2003 he was charged with resisting or hindering a police officer in the execution of duty and on 22 July 2004 sentenced to one month's imprisonment from 23 June to 22 July 2004. Also in March 2003 he was charged with maliciously destroying or damaging property and on 22 July 2004 was sentenced to imprisonment for 3 months from that date. On 2 February 2004 the Respondent was charged with assault occasioning actual bodily harm and on 22 July 2004 he was sentenced to imprisonment for 12 months commencing 19 February 2004 a period which, according to his Honour's remarks, included 4 months non-parole. On 2 February 2004 he was also charged with maliciously destroy or damage property and also on 22 July 2004 sentenced for this offence to imprisonment for 3 months from 22 July 2004. On 12 February 2004 the Respondent was charged with stealing a motor vehicle and on 25 June 2004 sentenced to 12 months imprisonment including a non-parole period of 5 months commencing on 12 June 2004. In January 2005 the Respondent was charged with some traffic offences including driving a vehicle which was unregistered and uninsured and driving while unlicensed. Fines were imposed. 25 A record that was also before Judge O'Connor of the Respondent's custodial history indicates he was in prison from 7 May to 10 June 2003, from 13 February to 18 October 2004 and since 11 June 2005. That history also reveals the commission of a number of offences while incarcerated. In March 2004 there was an offence described as "fight or other combat", in September 2004 one of fail to comply with the Corrective Services routine, in June 2005 one of stealing, in August 2005 one of either failing or refusing to supply urine or having drugs in his urine, in December 2005 another of "fight or other combat" and in January 2006 of delivering or receiving an unauthorised article. 26 Four of these offences might be regarded as minor but both by reason of the penalties imposed - 42 days off amenities and in the case of the last also off contact visits - and their inherent nature, the offences involving urine and an unauthorised article are appreciably serious. 27 The Antecedent's Report shows that the Respondent's record has extended over at least 4 years, double the period his Honour assessed. Furthermore, while that record is less than that of many offenders, the regularity of offending, except when incarcerated, means that the record does not come within the expression "little". It displayed, as his Honour said elsewhere in his remarks, "a continuing disobedience to the law". Ground B 28 This ground was that, as a consequence of errors in the application of the R v Henry guideline, Judge O'Connor erred in the application of the principle of totality. I confess to seeing no basis for this claim succeeding unless it be that the overall sentence is manifestly inadequate. That is an issue which is best left until the other grounds are dealt with.

Ground C 29 In the case of Ground C - that his Honour erred in placing too much weight on the fact that the Respondent suffered from bi-polar disorder - a decision again depends on an assessment of the adequacy of the sentence imposed. His Honour's remarks on this topic reveal no patent error and the Respondent's mental state was clearly a matter which tended to make considerations of general deterrence of less weight than would otherwise have been the case.

Ground D 30 The Crown is correct in its submission that the fact the offending was committed in breach of three bonds - imposed in September 2004 - is a seriously aggravating circumstance. However, the factor was referred to by Judge O'Connor in the context of s21A(2)(j) of the Crimes (Sentencing Procedure) Act where the circumstance is referred to as a circumstance of aggravation and his Honour said that he proposed to take it into account as such. Whether Judge O'Connor failed to give this feature adequate weight can only be determined by reflecting on the ultimate sentence.

Was the sentence manifestly inadequate? 31 Before turning to further consider the matters to which some reference has previously been made, it is appropriate to say something about his Honour's conclusions that the Respondent's prospects of rehabilitation were reasonable, "on the basis of his young age and the fact that drugs have been a dominating issue in the past and he has resumed, of his own volition whilst in prison, the methadone program". The last of these provided no basis for his Honour's conclusion. His Honour referred to evidence that the Respondent was on a methadone program on days before and after the robbery offence, so it is hardly correct to say the Respondent resumed the program in prison and, while the Respondent is not to be criticised for continuing it there, that program is one which does little more than substitute a legal drug for illegal ones (unless an addict manages over a period to reduce his dosage). So long as a person remains on a methadone program, addiction to drugs remains. 32 Of course, any serious determination on the part of the Respondent to give up drugs is a hopeful sign so far as his rehabilitation is concerned. The Respondent appears to have impressed Dr Allnutt in this connection but it is impossible to believe that he has not already had chances in this regard. Furthermore, although it is not possible for this Court to resolve the issue, the Respondent's statement to Dr Allnutt that he had not abused any substances while in prison is difficult to reconcile with the notation in the prison records that the Respondent had failed a urine test in August 2005. 33 Relevant to the prospects of the Respondent freeing himself of his addiction is his mental condition. Dr Allnutt did not say that this condition would prevent the Respondent succeeding in this regard but it clearly is a relevant factor. 34 That mental condition has another relevance also. While his Honour was correct in saying that the condition resulted in general deterrence being given less than usual weight, the condition also has a bearing on the weight to be given to personal deterrence and protection of society - see Veen v The Queen (No 2) (1987-1988) 164 CLR 465 at pp 476-8. The Respondent's record indicates that he is a recidivist and that relatively lenient sentences and conditional liberty have not been sufficient to induce him to behave as persons need to behave in a civilised society. He has not learnt as more rational persons might have done and I would incline to the view that whatever reduction in the weight to be given to general deterrence was at least made up by an increase in the weight to be given to personal deterrence and the protection of society. 35 The Respondent's robbery offence was close enough to that considered in R v Henry to make comparison appropriate. However, once it is recognised that the Respondent was not entitled to even the limited discount for pleading guilty contemplated in R v Henry - see R v Thomson and Houlton (2000) 49 NSWLR 283 at [161] and weight is given to the Respondent's record and to the fact that his offending was committed in the face of three grants of conditional liberty, the conclusion is unavoidable that the sentence of 4 years, the bottom of the range indicated in R v Henry, was manifestly inadequate. The fact that the offence of which the Respondent was found guilty carries a maximum penalty of 25 years rather than the 20 years maximum for which Henry was liable argues, although in the circumstances here, weakly in the same direction. 36 The sentence imposed on the Respondent for his robbery offence should not have been less than 6 years. 37 In this connection the Crown referred also to a decision in R v Johnson [2004] NSWCCA 446 where this Court imposed a sentence of 4½ years for a robbery under s97(2) of the Crimes Act. This Court has said on many occasions that it is not appropriate to argue an issue of severity simply by comparison with the facts in one or a limited number of other cases and although the decision in that case was made after a review of a substantial number of previous cases referred to in the report, I do not propose to indulge in such a comparison here. R v Johnson does however provide some support for the Crown contention. 38 That said, this is a Crown appeal and the constraints and discretions inherent in such an appeal arise. There also arises for consideration some evidence placed before this Court in the form of an affidavit from the Respondent's solicitor annexing a number of reports form Justice Health, Department of Corrective Services records and a further report, dated 11 February 2007, from Dr Allnutt. While it is unnecessary to detail the contents of the first 2 groups, they undoubtedly confirm that the Respondent has had symptoms of psychological or psychiatric conditions while incarcerated. Dr Allnutt's report refers to the Respondent having used cannabis "a few months ago" and that the Respondent was still interested in entering a drug and alcohol program. Dr Allnutt's opinion was that the Respondent was still continuing to manifest ongoing symptoms of hypomania and symptoms of a "resolving Bipolar Affective Disorder", that his mental state had progressed and he was improving but remained prone to impulsive behaviour. Dr Allnutt continued:- "Should he recommence the use of substances and/or become non-adherent to his medication, his risk of responding aggressively to relatively minor provocations would increase. … Should he be released to the community, I would recommend that he initially be released to a psychiatric hospital as an inpatient and then step down to the community thereafter, probably under a community treatment order at least initially. I would recommend that he commence a mood stabiliser." 39 While this fresh material brings the information concerning the Respondent's mental state up to date, it does nothing to lessen my assessment of the need for personal deterrence and weight to be given, within the limits stated in Veen v The Queen (No 2), to protection of the community. 40 A second matter raised in argument against the Crown is the topic of delay. It was pointed out that the Respondent had been arrested on 10 June 2005; he was found guilty on 15 March 2006; he was not sentenced until 15 September 2006; the Notice of Appeal was not signed until 15 November 2006; there had been no prior notice to the Respondent that the Crown was contemplating an appeal; and the appeal did not come on for hearing until 5 April 2007. There was no material before the Court to explain these delays and in particular the 6 months between conviction and sentence and the 2 months before the Notice of Appeal. In the absence of evidence the first of these cannot be held against the Crown but the second can. 41 Counsel for the Respondent referred the Court to the remarks of Heydon JA, with whom Levine J and Carruthers AJ agreed, in Hernando [2002] 36 A Crim R 451 where his Honour referred at some length to a number of authorities on the topic of delay. Particular reference was made by counsel to some of the terms used in paragraph [18] where his Honour said:- Sentences which are so lenient that on their face they reveal appellable error are not only intrinsically undesirable, but carry the further disadvantage of having a cruel impact on the respondents who are beneficiaries of a legally flawed generosity. The Crown is in no way to be criticised for seeking to challenge totally unsatisfactory sentences, at least if this is done speedily. Even where particular appellate courts decide against a further term of imprisonment, the impact on the respondents of the uncertainty in the period between when the Crown gives notice of its desire to appeal and the time when the appeal is decided must be agonising. Those respondents may deserve greater punishment than they received at the sentencing stage, but not that type of punishment. In the context of civil cases Lord Griffith famously spoke of the "strain" imposed on personal litigants, the "anxieties" occasioned by facing new issues, and "the raising of false hopes": Ketteman v Hansel Properties Pty Ltd [1987] 1 AC 189 at 220. These factors obviously press down even more heavily on accused persons facing Crown appeals occasioned by erroneous sentencing. 42 I do not for one moment doubt that delay is calculated to impose strain on Respondents in matters such as this. Ordinary human experience outside the field of the criminal law makes such a conclusion inevitable. However, I cannot refrain from observing that in the above passage, and in some others in this area, the matter seems to me to have been put more strongly than the circumstances warrant. Every serious offender faces the strain that his offending may lead to him being caught and imprisoned. Yet many, such as the Respondent, go on offending time after time, indeed in some cases, as a professional occupation. Given this reality which the courts face day after day, terms such as "cruel" and "agonising" seem to me to substantially overstate the situation of many offenders faced with a Crown appeal. 43 Immediately prior to the commission of his robbery offence the Respondent was, as I have said, the subject of 5 grants of conditional liberty. Despite this, and pursuant to what was clearly a plan involving a degree of premeditation and in collaboration with a co-offender, he embarked on the robbery. The jeopardy of a gaol sentence - as he must have known, possibly lengthy - was not enough to deter him. 44 Heydon JA also quoted from R v Hallocoglu (1992) 29 NSWLR 67 at 80 where it was said that:- "A Crown appeal will not be dismissed simply because of delay. It will only be dismissed if that delay has caused prejudice to the respondent: R v Cuc Thanh Pham (1991) 55 A Crim R 128 at 136, 138" 45 With respect to those who participated in the decision in R v Hallocoglu, it does not seem to me that R v Cuc Thanh Pham or other cases go so far. Rather, while prejudice is relevant, it is not essential. In this case there is no evidence of prejudice beyond such anxiety as may be inferred, particularly in light of the Respondent's mental condition. 46 R v Cuc Thanh Pham makes clear that the other circumstances of the case are also relevant. Included in those is the extent of the inadequacy in sentence. I have indicated that, for the robbery charge, it should have been a minimum of 6 rather than 4 years, i.e. 50% longer. However, such a period would have required that pursuant to considerations of totality, there be some concurrence of the sentence for robbery with that imposed for car-jacking. The extent of that concurrency should have been 6 months. 47 Given the accumulation of sentences there should also have been an increase in the balance of term for the robbery offence at the expense of the non-parole period for that offence and a finding of special circumstances arising from that accumulation. 48 However, having considered the matters which argue to the contrary, I am nevertheless of the opinion that the appeal should be allowed and the Respondent sentenced to the minimum sentence that should have been imposed by Judge O'Connor. I am particularly influenced in this regard by the fact that the Respondent has not learnt from the leniency that has been extended to him in the past and the fact that, whatever the mental problems he has, he still has enough reasoning power to appreciate the benefits to be derived from offending and put plans in that regard into effect. It is important that there be demonstrated to him that, in addition to the benefits that may be derived from offending, there are also serious disadvantages. 49 In reaching these conclusions as to the sentence that should have been imposed on the Respondent by Judge O'Connor and that should now be imposed, I have had regard to the lists of aggravating and mitigating circumstances contained in s21A of the Crimes (Sentencing Procedure) Act. However, having regard to the issues canvassed in the appeal, it is not necessary that I refer to these seriatim or to a greater degree than I have done. 50 I accordingly propose that the Court make the following orders:- (i) Allow the Crown Appeal (ii) Confirm the sentences imposed by Judge O'Connor on 23 June 2006 in respect of all offences other than robbery with wounding; (iii) Quash the sentence imposed by Judge O'Connor on 23 June 2006 in respect of the offence of robbery with wounding. (iv) In respect of the offence of robbery with wounding, sentence the Respondent to imprisonment for a non-parole period of 4 years and 3 months and a total term of 6 years, both such periods to commence on 10 June 2006. (v) Record as the date upon which it appears that the Respondent shall become eligible for parole, 10 September 2010. 51 HALL J: I have had the considerable benefit of reading in draft the judgment of Hulme J. 52 I respectfully agree with his Honour's analysis and reasons and the orders proposed by him. 53 The learned sentencing judge, in his detailed remarks on sentence, accurately identified the relevant material facts and matters concerning the objective criminality of the offence, the aggravating and mitigating circumstances that fell for determination under s.21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) and those that arise for consideration in applying the guideline judgment in Regina v Henry (1999) 46 NSWLR 346, in particular, the matters referred to therein by Spigelman CJ at 380 - 381. 54 The analysis undertaken by Hulme J, particularly in relation to Grounds (A), (C) and (D) relied upon by the Crown, seem to me to essentially indicate that there is no identifiable error of principle or error of law apparent in the learned sentencing judge's remarks on sentence, but that inadequate weight was given to the particular factors to which Hulme J refers. 55 It is, of course, a well-accepted principle that in the determination of a Crown appeal against sentence, the 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: Regina v Wall [2002] NSWCCA 42 at [70]. 56 In Dinsdale v The Queen (2000) 202 CLR 321, Kirby J stated (at 341) that it is conventional for an appellate court to impose a substituted sentence towards the lower end of the range of available sentences. 57 In determining what sentence should be imposed by this Court in this appeal, I have given consideration as to whether the sentence proposed by Hulme J or some lesser sentence would properly give effect to the abovementioned principle. Having done so, and, having considered the concurrency of the sentences that has been proposed by Hulme J, I consider that the sentence proposed, namely, a non-parole period of four years and three months and a total term of six years, with both periods to commence on 10 June 2006, can be said to be a sentence that is located towards the lower end of the range of available sentences. I have so concluded, having regard to the Henry guideline of four to five years and, given the circumstances and facts that reveal a degree of planning, a significant criminal history, that the offence was committed in company and that the respondent was convicted at trial.

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