27 Dealing first with the ground that the sentence imposed upon Phillipp Black is manifestly excessive, his counsel argues that there were a number of significant mitigating factors which call for a sentence lower than that imposed. He submits that at the time of sentencing the applicant was 24 years of age, and although he had some prior convictions, he had not been previously sentenced to a term of imprisonment. It was submitted to the sentencing judge that incarceration had had a salutary effect upon the applicant and it would appear that the judge accepted this submission. It is argued that the applicant had a difficult and traumatic childhood, his parents being alcoholics who separated when he was aged 14 years. He had difficulties at school having completed Year 10 at Dimboola Secondary School at the age of 18. It was put before the judge that a close friend had died when the applicant was aged 19 years and shortly thereafter his grandmother, to whom he was close, died. He was aged 20 years, and it was said that her death caused him depression and exacerbated his addiction to drugs. He had medical problems having been infected with Hepatitis. It was argued before the sentencing judge that despite being found guilty of intentionally causing injury to one Bissett, the applicant had maintained a close friendship with Bissett. It was asserted on the plea that the applicant had ceased to use alcohol and drugs at the time of his trial and had the support of his parents, who were present throughout the trial. Furthermore, it was argued that the applicant had suffered the additional stress of facing a second trial through no fault of his own.[4] It was argued that in such circumstances the sentence of a term of imprisonment of 18 months with a minimum of 12 months failed to take into account the mitigating matters in question or to give sufficient weight to those mitigating factors.
28 Whilst it is true that there were some matters of mitigation, there was no evidence of any remorse by the applicant before the sentencing judge and no discount for any plea of guilty was applicable. There were aggravating factors in the commission of the offences being in particular the fact that the offending took place in the company of two others. As the sentencing judge observed it was clear from the evidence before him at the trial that the occupants of the house and in particular, the two young boys who were present in the house at the time of the incident were terrified by what took place. The judge observed that the applicant, in company with others, chose to offend in the manner that he did as a means of continuing a dispute. The applicant and the others knew that there was a woman and at least one child present in the house but chose to invade it for the purpose of inflicting violence. The judge stated that, the consideration of general and specific deterrence was important and he stated that it was appropriate that sentences that manifest the Court's denunciation of conduct involving the violent invasion of other people's homes be imposed. In my view these were important sentencing considerations in all the circumstances of this case.
29 In my view, in such circumstances the sentence of 12 months' imprisonment for the burglary cannot be said to be outside the range of appropriate sentences. Likewise the sentence of nine months' imprisonment on each of the offences of intentionally causing injury, in all the circumstances of this case, is well within the range of sentences open to the sentencing judge. The accumulation of three months of each such count upon other, and upon the count of burglary, likewise appears to me to be well within the range of sentencing options open to the sentencing judge as does the total effective sentence of 18 months' imprisonment.
30 The second ground upon which the applicant relies is that the sentencing judge was in error in not imposing a non-parole period lower than 12 months.[5] It is submitted on behalf of the applicant that he was a young man who had found imprisonment particularly difficult and that given his medical problems, a lengthy period on parole would have satisfied the sentencing requirement. Furthermore it is submitted that given the applicant's relatively young age, his lack of extensive prior convictions and his health problems, together with the fact that previously he had not spent time in custody, the trial judge should have imposed a sentence that allowed the applicant a greater opportunity of rehabilitating himself in the community.
31 In my view the non-parole period of 12 months in all the circumstances of this case cannot be said to be an erroneous disposition.
32 The third and fourth grounds upon which the applicant relies are that the sentencing judge erred in failing to apply the principles of parity properly, and in particular, erred in imposing the same minimum sentence as that imposed upon the co-offender Watts.
33 The arguments advanced on behalf of Phillipp Black in regard to parity concentrated particularly on the differences between him and Phillip Watts in both the parts played by both of them in the crimes and in the personal factors relevant to both of them. Reliance was placed upon the fact that Watts had played a leading role in the events in question, and that it was he who was found by the judge to have inflicted injury upon the victim Bissett. Furthermore, reliance was placed upon the fact that Watts was 35 years of age at the time of sentence and had 160 prior convictions. By comparison, Phillipp Black was aged 24 years at the time of sentence and had had far fewer prior convictions, some of which related to events in his late teenage years. The fact that Phillipp Black suffered from hepatitis C and that the sentencing judge regarded the time that he had already spent in prison as "salutary" are matters relied upon in arguing that greater parity should have applied as between him and Watts. It will be recalled that Watts was sentenced to 18 months' imprisonment on the count of burglary, whereas Phillipp Black was sentenced to 12 months. Watts was sentenced to 12 months on each count of intentionally causing injury, whereas Phillipp Black was sentenced to nine months on each count. After cumulation, Watts was sentenced to a total effective sentence of two years' imprisonment with a minimum of 12 months to be served before being eligible for parole. Phillipp Black was sentenced to a total effective sentence of 18 months' imprisonment with a minimum of 12 months to be served before being eligible for parole. There was thus clear disparity in terms of the head sentence which reflected the differing circumstances of the two offenders.
34 However, it is submitted on behalf of Phillipp Black that the fact that both he and Watts were directed to serve the same minimum period before being eligible for parole reflects a lack of parity.
35 On behalf of the respondent, Mr Holdenson contends that it is necessary to consider the pre-sentence detention which fell outside s 18 of the Sentencing Act 1991 and which was applicable to both Watts and Phillipp Black. As stated above, in sentencing each of the three applicants the judge stated that in addition to 75 days pre-sentence detention he was taking into account the earlier period of custody which he stated was "almost 12 months from 4 February 2004 until 29 January 2005". He stated specifically that he proposed taking that period into account in the exercise of his sentencing discretion. Clearly in doing so his Honour was relying upon R v Renzella.
36 It is now clear that the actual period of pre-sentence detention which fell outside s 18(1) of the Sentencing Act and which was to be taken into account in accordance with Renzella was the period between 4 February 2004 and 17 January 2005, a period of 12 days less than that calculated by the judge. The Renzella pre-sentence detention was a total period of 11 months and 13 days.
37 On the other hand, the prosecution concedes that the declaration of 75 days pre-sentence detention made under s 18(1) of the Sentencing Act should have been a declaration of 90 days.
38 Accordingly, taking into account the period of 11 months and 13 days the effect of the sentence imposed on the applicant Watts was that he was sentenced to a head sentence of 2 years 11 months and 13 days with a non-parole period of one year 11 months and 13 days, before allowance was made for s 18(1) Sentencing Act pre-sentence detention. The effect of the sentence imposed on Phillipp Black was that his head sentence became 2 years 6 months and 13 days with effectively the same non-parole period as that imposed on Watts of 1 year 11 months and 13 days.
39 Whilst it is true, as submitted by Mr Holdenson, that the effective head sentences imposed upon each of the applicants Watts and Phillipp Black reflects appropriate parity, the head sentence is but one component of the sentences. As stated in R v Postiglione[6] a proper comparison involves a consideration of all components, of which one "which is susceptible of easy comparison is the non-parole period".
40 It is arguable that the differences between the part played in the commission of the crime, the disparity in ages and the criminal background between Watts and Phillipp Black called for some disparity between the non-parole period. On the other hand the sentencing judge was clearly impressed by the steps taken by Watts in terms of rehabilitation. He found that Watts had good prospects of rehabilitation. Furthermore, he observed that Watts became involved in the criminal conduct partly by reasons of "misguided loyalty" to his two younger co-offenders. On the other hand, Phillipp Black had a recent conviction for intentionally causing injury for which he had been placed on a suspended sentence and which was still operative at the at the time of the commission of the offences. He made no positive finding as to prospects of rehabilitation save for "some optimism" in the event that Phillipp Black resolved firmly to make use of his time in custody and work at his rehabilitation upon release.
41 In the end result and taking into account those circumstances I am not convinced that the lack of disparity of the non-parole period fixed by the sentencing judge is manifest and would engender a justifiable sense of grievance or give the appearance to an objective observer that justice has not been done.[7]
42 Furthermore taking into account all the circumstances including the fact that the head sentence has now been served, no good purpose is to be served by variation of the declaration of pre-sentence detention pursuant to s18(1) of the Act made by the sentencing judge.
The application to appeal against sentence by Steven John Black
43 The grounds upon which Steven John Black relies are as follows: