Regina v Aaron John Lee Maher Regina v Dwayne Eric Welsh Regina v Craig Vincent Lardner Regina v Ronald Priestly

Court of Criminal Appeal (NSW)|2005-02-02|Before: Dunford J, Kirby J

CITATION: Regina v Aaron John Lee Maher Regina v Dwayne Eric Welsh Regina v Craig Vincent Lardner Regina v Ronald Priestly [2005] NSWCCA 16

JUDGMENT OF: Dunford J at 1, 66; Kirby J at 65

DECISION: Extension of time allowed. Leave to appeal granted. Appeals allowed. Applicants re-sentenced.

Crimes Act 1900 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002, No 90

Bugmy v The Queen (1990) 169 CLR 525 Lowe v The Queen (1984) 154 CLR 606 Pearce v The Queen (1998) 194 CLR 610 Postiglione v The Queen (1998) 189 CLR 295 R v Canino [2002] NSWCCA 76 R v Close (1992) 65 A Crim R 55 CASES CITED: R v Fajka [2004] NSWCCA 166 R v Hammoud (2000) 118 A Crim R 66 R v Mailes [2004] NSWCCA 394 R v McCormack & Ors [1981] VR 104 R v Tiddy (1969) SASR 575 R v Wheeler [2000] NSWCCA 34 Veen v The Queen (No 2) (1988) 164 CLR 465

Regina v Aaron John Lee Maher Regina v Dwayne Eric Welsh PARTIES: Regina v Craig Vincent Lardner Regina v Ronald Priestly

FILE NUMBER(S): CCA 2004/2205; 2004/2206; 2004/2299; 2004/2532

W Dawe QC - Respondent R Button - Applicant (Maher) COUNSEL: R Hulme SC - Applicant (Welsh) T Evers - Applicant (Lardner) G Turnbull - Applicant (Priestly)

S Kavanagh - Respondent South Eastern Aboriginal Service - Applicant (Maher) SOLICITORS: Mark Anthony Douglass - Applicant (Welsh) South Eastern Aboriginal Service - Applicant (Lardner) Adamson Solicitors - Applicant (Priestly)

19 - IN THE COURT OF CRIMINAL APPEAL 2004/2205 2004/2206 2004/2299 2004/2532

REGINA v AARON JOHN LEE MAHER REGINA v DWAYNE ERIC WELSH REGINA v CRAIG VINCENT LARDNER REGINA v RONALD PRIESTLY Judgment 1 DUNFORD J: The applicants, Aaron John Lee Maher, Dwayne Eric Welsh, Craig Vincent Lardner and Ronald Priestly each seek leave to appeal against the sentences imposed on them by his Honour Judge Shadbolt in the District Court at Sydney on 12 and 17 December 2003 following their pleas of guilty to riot contrary to s 93B of the Crimes Act 1900; and in the case of the applicant Priestly, a further charge of maliciously inflict grievous bodily harm with intent to inflict grievous bodily harm contrary to s 33 of the same Act.

2 The applicants were all prisoners involved in a riot at Goulburn Gaol on 16 April 2002. The applicants Lardner, Maher and Welsh were each sentenced to imprisonment expressed by his Honour as "one year's imprisonment of a total of 4 years" cumulative on the sentences they were then currently serving, whilst the applicant Priestly was sentenced to imprisonment for "two years with a total sentence of four" for riot and "12 years of a total of 16 years" for maliciously inflict grievous bodily harm with intent, such sentences also cumulative on those he was already serving and cumulative on each other. When I say cumulative on other sentences, I mean cumulative on the non-parole periods of the other sentences.

3 The applicant Priestly was sentenced along with a co-offender, James Sonny Paulson, on 12 December 2003 and the others along with co-offenders Barker and Mansfield on 17 December 2003.

4 His Honour's extensive Remarks on Sentence on each occasion, insofar as they dealt with the circumstances of the offences, approach to sentencing generally and in respect of riot in particular, were virtually identical and only varied when dealing with the additional charges laid against Priestly and also Paulson.

5 Before proceeding further, it should be noted that in expressing the sentences in the way in which he did, his Honour appears to have had in mind s 44 of the Crimes (Sentencing Procedure) Act 1999 in its current form as introduced by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002, No 90 but the amendments to s 44 effected by that Act only apply in respect of offences committed after 1 February 2003 although the amendments to s 21A apply to sentencing after that date irrespective of when the offence was committed.

6 In the circumstances of this case his Honour should therefore have first fixed the term of the sentence (the head or total sentence) and then the non-parole period. In each case his Honour summarised the facts as follows.

"The circumstances giving rise to these offences were that at 3:30pm on Wednesday 16 April 2002 the prisoners, with 29 other inmates of unit 4 at Goulburn Prison, were mustered. They were to enter the unit where they were to receive their food and be locked in their cells. The unit comprises two floors with a walkway on the first with a single staircase leading from the ground floor to that walkway. Mesh extended across the void and there was a central walkway at the head of the stairs which went from one side of the cell block to the other.

There had been a general practice not to require inmates to enter their cells immediately on arriving at them, but to permit them five minute's grace to wander from cell to cell, making final arrangements before locking them down for the afternoon and night. Officer Madden recalls a different tone to the behaviour of the inmates and more noise than usual as they entered the cell block that afternoon and ascended the staircase.

All officers were present on the walkway to supervise the prisoners. They were Sharon Madden and Robert Hursey who took up their posts at one end and Timothy Swain and Anthony Marks who took up their position at the other.

The situation had then been engineered that the four officers in pairs, separated by the length of the cell block, were together separated from all other officers by a narrow staircase with a metal sliding gate at its head, with a total muster of prisoners now commanding that staircase.

At this stage the prisoner Paulson ran across the wire mesh and, arriving at the position where Officers Hursey and Madden stood, assaulted them with a didgeridoo. In this assault, Mr Hursey was knocked unconscious. Officer Madden lay on top of him to protect him but was also hit by Paulson with the didgeridoo, which had now become in his hands an offensive weapon, which he wielded in a pile-driving fashion.

Other inmates joined in this attack and kicked both officers but one prisoner, Severn, pulled Ms Madden into a cell telling her to hide under the bed. He told her he was not going to hurt her and left the cell and locked her in. It was here that she remained for the rest of the riot.

Immediately the riot commenced, Officers Marks and Swain ran down the landing towards their injured colleagues. Inmates emerged from several cells and Mr Swain was knocked to the floor. As he lay there he was struck by a number of inmates who were armed with weapons. Officer Marks tried to assist Mr Swain but he himself was struck on the head and fell to the ground. Paulson, who had by this time travelled form one end of the cell block to approximately the middle, struck Mr Swain with his didgeridoo and the prisoner Davis struck him with a wooden table leg. The prisoner Priestly jumped from the railing on to his head and repeatedly kicked him and stomped on him. These blows to the head rendered him unconscious. Officer Marks who was doing his best to protect Mr Swain was struck on the back of the head with a table leg wielded by Davis.

The prisoner Davis was not alone in his efforts. Other inmates were joining in this attack, but Davis was seen to kick both officers in what was described as a frenzy.

Prison officers including the Special Emergency Response Team (SERT) had by this time arrived and were attempting to climb the only flight of stairs. They were opposed by prisoners who threw tables, liquid bleach, mops and other items on top of them and drove them back. Officers had, however, grabbed one inmate whom they brought down the stairs with them in their retreat.

At this stage other better armed officers arrived. One of the officers, Mr Preston, described the use by gas by Officer Simpson and almost immediately the rioters backed off to cells where they were immediately locked down.

The riot had lasted five or six minutes but it sequel was disastrous for the four officers who had been trapped. Officer Swain suffered severe brain damage which has left him dysphasic and suffering from dyspraxia. He has been rendered totally incapable of reading and writing. He can speak only in the most limited manner and then, hesitatingly. His intelligence has been severely reduced. He is capable now of little more than minor domestic tasks. Never more clearly has the effect on collateral victims of crime been demonstrated. Not only is his life utterly shattered but also the lives of those around him who must care for him in the coming years.

Sharon Madden has suffered from deep depression and post-traumatic stress disorder to a particularly grave degree. Officer Marks was severely wounded and concussed and he too has suffered grave psychological injury.

I am satisfied beyond reasonable doubt that the events that day were planned. A lock in a gate leading from the cell block to the riot gear store had been spiked with a piece of wood. Weapons in the form of table legs were to hand and there was no particular incident which might have been regarded as the spark which ignited smouldering discontent." 7 His Honour then referred to the underlying causes of the riot by way of background and the parts played by each of the offenders in the riot, a subject to which I shall return in due course. He also considered their past records which he found in each case disentitled them to any leniency and provided little hope of rehabilitation, and took into account their personal backgrounds and circumstances, including their aboriginality in each case.

8 At p 19 of his Remarks on Sentence on 17 December his Honour noted that since the riot all the applicants had been kept in the Special Purposes Unit at Goulburn Gaol or on strict protection with consequent loss of privileges, and that after the riot occurred the inmates were left in their cells naked for 18 hours.

9 Whilst I can appreciate the necessity for their clothes to be taken for forensic examination as part of the investigation into the riot, and whilst I can have some understanding of the annoyance, anger and frustration of the prison officers occasioned by the riot and the serious physical attacks on some of their members, there is no reason why they could not have been supplied with other clothes, and to keep persons, even prisoners serving lengthy gaol sentences, in their cells naked for eighteen hours cannot be justified on any basis.

10 It is reminiscent of barbaric medieval forms of torture and such vindictive, inhuman, non-curial punishment was totally illegal. I record my utter horror that such conduct occurs in this community, in this day and age, even in a place such as Goulburn Gaol.

11 In relation to the offence of riot, his Honour concluded that excluding the actual injuries sustained by Officers Swain, Hursey and Madden, because those assaults sounded in other charges, the riot should be regarded in comparison to other prison riots and riots generally as toward the lower end of the scale.

12 Having regard to this, that is the objective seriousness of the riot, and allowing a twenty per cent discount for the utilitarian value of the pleas of guilty, he concluded that the offence sounded in a total sentence of four years.

13 In dealing with the applicants who were sentenced on 17 December, his Honour then went on at p 17 of his Remarks on Sentence as follows: "In saying this, I have had regard to the fact that riot is an offence quite distinct from others and certainly distinct from offences in which a prisoner has become involved by way of common purpose. Riot only becomes an offence because there are twelve or more people and in consequence of which must be looked at as an entity in itself for which all participants must bear the total responsibility for the disturbance of the peace and the fear engendered.

The part each played can be distinguished in the non-parole period. In this respect it is ill fitting to s 44 of the Crimes (Sentencing Procedure) Act. I gain some support for this view from R v McCormack & Ors [1981] VR 104." 14 He gave effect to this approach by sentencing each of the applicants to a total sentence of four years for riot, fixing a non-parole period for the applicant Priestly, whom he regarded as one of the principal offenders, of two years, and for the other three applicants a non-parole period of one year. Then in the case of the applicant Priestly and his co-offender Paulson, he dealt with the malicious inflict grievous bodily harm with intent offences.

15 It is convenient to first deal with the appeal of the applicant Priestly who was sentenced, as I say, at the same time as Paulson. Both pleaded guilty to maliciously inflict grievous bodily harm with intent in respect of Mr Swain, and Paulson also pleaded guilty to maliciously inflict grievous bodily harm with intent of Robert Hursey and malicious wounding of Ms Madden.

16 For maliciously inflict grievous bodily harm with intent of Mr Swain, they each received sentences which, though differently expressed, amounted to imprisonment for sixteen years with a non-parole period of twelve years, whilst for maliciously inflict grievous bodily harm with intent to Robert Hursey, Paulson received an effective sentence of twelve years with a non-parole period of nine years, and for malicious wounding of Ms Madden a sentence of five years three months with a non-parole period of four years. All these sentences were ordered to be served concurrently with each other but cumulatively on the non-parole period for the riot.

17 His Honour found (pp 14 to 15 of 12 December): "In the case of both these men (that is Priestly and Paulson), the damage they inflicted on Mr Swain and Mr Hursey was extreme, the ferocity of the attacks could be seen from the descriptions which have been given of it; Paulson attacking the recumbent figure of the officer with maniacal force and, in relation to Priestly, his jumping on the head and thorax of Mr Swain and then his kicking of the unconscious officer as he lay on the walkway.

These were not the only two men who attacked Mr Swain…..and there appeared absolutely no doubt that these offenders intended the damage which they did in fact cause.

In all the circumstances, having regard to what was said in Veen v The Queen (No 2) (1988) 164 CLR 465, this, by the damage alone, has to be seen as a crime in the band of the most serious. The fact that it was a custodial officer in an exposed situation taken utterly by surprise by the turn of events and who had been in no sense provoking the attack made upon him, confirms me in this view.

The assault by Paulson on Robert Hursey was grave but not as grave as that on Swain. One can only say that Mr Hursey was extraordinarily lucky in receiving injuries which did not leave him permanently injured. Such was the ferocity of the attack that, whilst not of a view that the assault upon him lies at the top band, it nevertheless lies towards the top of any scale constructed for it.

The malicious wounding of Ms Madden had for her a particularly bad outcome. Whilst her wounds are healed, she remains considerably injured in her psychological make-up which appears to be a permanent state of affairs."

18 It is conceded that a head sentence of four years with a non-parole period of two years was within the range for the riot, but the applicant Priestly seeks leave to appeal on the following grounds: 1. The sentencing judge erred in law in accumulating the sentences imposed on the two counts with each other (accumulation). 2. The sentencing judge erred in law in imposing a sentence on count 2 (GBH with intent) which was such as to give rise to a justifiable sense of grievance when compared with the sentence imposed on the co-offender James Sonny Paulson (parity). 3. The sentencing judge erred in law in accumulating both sentences with each other and on the sentence being served by the appellant thereby failing to give any or sufficient weight to the principle of totality (totality).

19 The applicant is aged twenty-nine years and presents a pathetic case. He comes from a deprived aboriginal background (see pp 10-11 of the Remarks on Sentence) and has an extensive record dating back to 1992 with a number of property offences and also a number of crimes of personal violence, including assault, assault police, assault occasioning actual bodily harm, assault prison officer, malicious wound with intent to do grievous bodily harm and murder. For this last matter he was sentenced on 26 June 2000 to fifteen years from 15 August 1999 with a non-parole period of twelve years, to expire on 14 August 2011.

20 Since then he was sentenced on 11 April 2003 to a further concurrent sentence of six months from 15 August 2011 to 14 February 2012 for assaulting a prison officer in the execution of his duty and affray.

21 Since the age of ten he has only spent about a year out of prison and it is said he can be considered institutionalised.

22 It was submitted on his behalf that the learned sentencing judge failed to make any allowance for contrition on his part and that some contrition should be gleaned from the plea in the face of Mr Swain's cognitive difficulties, which were hardly tested when he gave evidence.

23 However, his Honour observed that the terms of the remarks attributed to the applicant by the author of the Pre-Sentence Report suggested an absence of remorse, an attempt to justify his conduct and an apparent lack of appreciation for the seriousness of his conduct.

24 There was no expressed evidence of remorse and, as to the timing of the pleas, there is much force in the Crown's submission that the presentation of Mr Swain in the witness box in his disabled state must surely have been a matter that weighed heavily upon the decision of the applicant to plead guilty.

25 The timing of the pleas is open to the observation that he accepted the inevitability of conviction in the face of an overwhelming Crown case and that the sight of Mr Swain in the witness box at his trial would inevitably have led to conviction and a heavier sentence in the light of that poor man's condition.

26 On the subject of accumulation, s 56 of the Crimes (Sentencing Procedure) Act provides that sentences for offences involving assaults or any other offence against the person committed by an offender whilst a convicted inmate of a correctional centre, are to be served consecutively with the sentence or sentences being or to be served unless the sentencing judge gives a direction that it be served concurrently or partly concurrently with that other sentence. 27 Subs 3(A) introduced by Act No 13 of 2002, s 3, sch 5[4] now provides that such a direction may not be given unless the Court is satisfied there are special circumstances justifying such a direction. However, that amendment only applies to offences committed after 13 January 2003 and was not applicable in the present case. It was, therefore, open to his Honour to give a direction irrespective of whether special circumstances were shown. 28 In any event, I would have thought that the two offences, that is, the riot and maliciously inflict grievous bodily harm with intent, arising substantially out of the same incident, would have constituted special circumstances within the meaning of the subsection, at least in respect of those two offences vis a vis each other. The issue in the present case is whether the sentences for riot and malicious wound with intent should have been made wholly or partly concurrent.

29 There is no fixed rule about accumulation or concurrency of sentences. Generally sentences in respect of offences arising out of separate unrelated incidents are made cumulative whilst sentences arising out of the same incident are often made concurrent or partly concurrent: R v Hammoud (2000) 118 A Crim R 66 at 67 per Simpson J (Mason P agreeing).

30 The matter was given attention by the High Court in Pearce v The Queen (1998) 194 CLR 610 where the appellant had been sentenced in respect of two offences committed as part of a single episode of criminality but where there were some elements common to both offences but also some which were peculiar to one or other of the offences. In that case, McHugh, Hayne and Callinan JJ at [49] observed: "To make the sentences imposed on the two counts wholly concurrent may also be said to reveal error in that to do so failed to take account of differences in the conduct which was the subject of punishment on each count." 31 In the present case, the offences of 16 April were totally separate and unrelated to the murder charge in respect of which he was serving the sentence and the assault prison officer and affray, which sentence is cumulative on the non-parole period for murder, and absolutely no reason has been shown why the concurrent sentences should not be wholly cumulative on those sentences.

32 As to the sentences for riot and maliciously inflict grievous bodily harm with intent, both arose out of the same incident but the elements of the offences were different. Section 93B (riot) involves: (a) 12 or more persons present together, (b) the use or threat of unlawful violence, (c) a common purpose, and (d) conduct such as to cause a person of reasonable firmness to fear for his personal safety,

whilst s 33 (maliciously inflict grievous bodily harm with intent) involves: (a) malice, (b) the infliction of grievous bodily harm, and (c) an intent to do grievous bodily harm

33 It can thus be seen that the elements are quite disparate, but in discussing the aggravating features of grievous bodily harm, his Honour (Remarks on Sentence at p 15), included that the offenders were acting in company and accordingly it was submitted that the riot was, in the case of the applicant Priestly, entirely subsumed by the maliciously inflict grievous bodily harm offence.

34 I do not agree. In considering the riot, his Honour was vigilant to ensure that he did not take into account the injuries inflicted, and although the s 30 offence was aggravated by the fact that this applicant was acting in company and as part of a common purpose, those features were not elements of the offence of riot. Moreover, the participation of Priestly in the riot extended beyond his assault on Mr Swain.

35 There were, however, some common features in the combination of persons for a common purpose and the use or threat of violence and I would, accordingly, make the sentence for maliciously inflict grievous bodily harm partly concurrent and partly cumulative on the non-parole period for the riot to the extent of one year.

36 Parity. The applicant Priestly complains that he has a justifiable sense of grievance as explained in Lowe v The Queen (1984) 154 CLR 606 in that whereas both he and Paulson received sentences of sixteen years with a non-parole period of twelve years for the assault on Mr Swain, Paulson was at the same time sentenced to wholly concurrent terms for serious assaults on officers Hursey and Madden with the result that Paulson received for three serious assaults the same sentence as Priestly received for one serious assault.

37 Unlike in Lowe and Postiglione v The Queen (1998) 189 CLR 295, the complaint here is not that different sentences were imposed for the same offence, but that in effect the same sentence was imposed for a different number of serious offences. Nevertheless the relevant principles are similar, but one must bear in mind what Brennan J said in Lowe at 617: "The sentencing of co-offenders always requires a comparison of their conduct and antecedents. The imposition of comparable sentences upon co-offenders whose respective conduct and antecedents warrant disparate sentences is unjust. Similarly the imposition of disparate sentences upon co-offenders whose conduct and antecedents are comparable is unjust. A justifiable sense of unfair treatment is produced in either case ... as regard must be had to the comparative gravity of the conduct of co-offenders and to their respective antecedents, an appealable error is not shown by an offender who merely points to a lesser sentence imposed upon his co-offender." In Postiglione at 309, Dawson and Gaudron JJ, with whom Kirby J agreed, approved what had been said by the South Australian Full Court in R v Tiddy (1969) SASR 575 at 577: "Where other things are equal, persons concerned in the same crime should receive the same punishment and where other things are not equal a due discrimination should be made." 38 The principle of parity is a manifestation of a consideration of justice that points to the imposition of comparable sentences on co-offenders whose conduct and antecedents are comparable. It requires a comparison by the court of the criminal conduct and antecedents of the co-offenders. If they are comparable the principle applies. If they are not, it does not: R v Canino [2002] NSWCCA 76 at [20].

39 His Honour's Remarks on Sentence at pp 9-10 noted that Paulson's record was less extensive than Priestly's, but considered the part he played in the riot and assaults exceeded that of Priestly. In particular, his Honour noted that although they both had extensive records, Priestly's record included a number of crimes of personal violence, whereas such was not a feature of Paulson's record.

40 He considered that each of them should be treated as having played a leading and vicious part in the disturbance and therefore imposed the same sentences on them. In other words, he balanced the greater part played by Paulson against the considerably worse record of Priestly so as to result in them receiving the same effective sentences.

41 Not only was Priestly currently serving a sentence for murder, but the learned sentencing judge also made a finding that he was "a very dangerous offender". No such finding was made in relation to Paulson. In addition, Paulson had positively evidenced some remorse for the present offences, a finding which his Honour did not make in relation to the present applicant other than in a most perfunctory manner.

42 The Crown, therefore, submitted that such distinctions provided for the similarity of sentence which the applicant received compared with the greater number of serious offences on the part of Paulson. There is much to be said for the submissions of the Crown in this regard.

43 It was appropriate to take into account the more serious criminal record of the applicant Priestly compared with that of Paulson although Paulson was being sentenced for a greater number of offences; but after some consideration I have come to the conclusion that notwithstanding those features to which I have referred the imposition of identical sentences did not sufficiently reflect the fact that Paulson was being sentenced for three serious assaults compared with one by the applicant.

44 I have already referred to partial concurrency of the malicious inflict grievous bodily harm with intent offence with the riot. In order to reflect what I perceive to be the justifiable sense of grievance which the applicant Priestly may perceive, I would consider it appropriate to reduce his sentence for maliciously inflict grievous bodily harm by a further year. In effect, that will give him a two-year reduction compared with the sentences imposed on Paulson and, allowing for the other matters to which I referred, this I consider would be a better reflection of the criminality involved by them respectively in light of their prior records.

45 Totality. Finally, it is submitted on behalf of the applicant Priestly that the injustice claimed by reference to the parity issue is further emphasised when one considers totality and the effectively crushing sentence that sees the applicant Priestly's earliest release date as 2026 and that of Paulson as 2017. In the light of what I propose, Priestly's earliest release date would now become 2024. 46 The principle of totality is designed to ensure that when multiple offences are involved a total aggregate sentence is not excessive, having regard to the criminality involved: R v Close (1992) 65 A Crim R 55 at 59.

47 However, it is also necessary to maintain public confidence in the administration of justice and a person who commits a series of deliberate discrete offences must not be left with the idea that he or she can escape effective punishment for successive offences, each of which contributed to a whole course of deliberate criminal behaviour: R v Wheeler [2000] NSWCCA 34 at [36]-[37] or that such person has some form of quasi or partial immunity to commit further offences because the appropriate accumulation of sentences will be crushing.

48 In the case of the present applicant, he has continued to commit further discrete offences, both inside and outside gaol, notwithstanding the sentences imposed on him from time to time. He should not in these circumstances receive any leniency by reason of the principle of totality just because the appropriate accumulation of sentences results in a very long period of continuous incarceration. Personal as well as general deterrence and protection of the community remain important components in the sentencing calculus and it is not here suggested that a shorter overall sentence or a shorter overall non-parole period will facilitate his rehabilitation.

49 As regards his specific complaint that the sentences imposed would result in Paulson being possibly released in 2017 and him not being released before 2026, now 2024, it is to be borne in mind that the applicant has been convicted of, and is serving a sentence for, murder whilst Paulson is not. In those circumstances, a difference of seven years does not strike me as out of proportion.

50 I turn now to the applications for leave to appeal by the applicants Maher, Welsh and Lardner. Although the grounds of appeal are not expressed in identical terms and relate only to the head sentence, no complaint being made in respect of the non-parole period, they are essentially the same in each case and are that his Honour assessed the head sentence, which he expressed as a "total", by reference only to the objective seriousness of the riot in itself and the pleas of guilty, and disregarded the roles of the particular applicants in the offence, the aggravating and mitigating factors relevant to each applicant under s 21A and the circumstances in which each applicant was detained whilst in custody. His Honour took those matters into account only in fixing the non-parole period.

51 It is contended that this error resulted in the fixing of manifestly excessive head sentences which were unfair on parity principles in that they were equal to the head sentences imposed on the co-offenders Paulson and Priestly, who were the ringleaders and planners of the riot.

52 It is not necessary to set out in detail the subjective circumstances of these applicants. They were all aborigines from deprived and usually violent backgrounds, addicted to alcohol and/or drugs, of low intelligence with only limited education and each with extensive criminal records, though not as extensive as those of Paulson or Priestly.

53 In sentencing these applicants and others on 17 December 2003, his Honour noted their respective parts in the riot. Welsh admitted placing chairs across the top of the stairs and a table at the top of the stairs to stop the officers coming up, Lardner threw objects down the stairs at Prison Officer Preston and others, and Maher poured liquid (unspecified) from buckets down the stairs. It was not suggested by the Crown that any of these applicants injured anybody.

54 I am satisfied that in not taking into account in fixing the head sentence the parts played by the individual offenders, the aggravating and mitigating matters under s 21A and the individual subjective circumstances, including the nature of their incarceration, but limiting consideration of these matters to the fixing of the non-parole period, his Honour was in error.

55 The degree of objective criminality in an offence has always been relevant in fixing the head sentence while s 21A expressly requires that the matters specified therein be taken into account in determining the appropriate "sentence". "Sentence" is a reference to the total sentence, not only to the non-parole period: R v Mailes [2004] NSWCCA 394 at [21].

56 As to the degree of participation of each offender in the riot, in R v McCormack [1981] VR 104, the case referred to by his Honour, after observing that in the case of a riot each offender is not sentenced for his individual acts considered in isolation, but is sentenced for having, by deed or encouragement, been one of a number engaged in a crime against the peace, the Court at 109 went on to say: "Whilst this is the basic approach, it is open to the sentencing judge at his discretion to take into account the actual conduct of an offender in the riot, by way of aggravation."

and at 112 it was pointed out that it was inappropriate to allow leniency only on the non-parole period, and not also on the head sentence. See also R v Fajka [2004] NSWCCA 166 at [27]-[29]. 57 Moreover, in Bugmy v The Queen (1990) 169 CLR 525 at 513, Mason CJ and McHugh J said: "... the considerations which the sentencing judge must take into account when fixing a minimum term will be the same as those applicable to the setting of the head sentence. Obviously, the weight to be attached to these factors and the way in which they are relevant will differ due to the different purposes behind each function." 58 The Crown, correctly in my view, concedes that his Honour was in error in the approach that he took. As a result of this error, I am satisfied that his Honour imposed head sentences which were manifestly excessive in the circumstances which give rise to a justifiable sense of grievance when compared with the head sentences imposed on Paulson and Priestly on the count of riot and that this Court should intervene.

59 Bearing in mind the head sentences imposed on Paulson and Priestly, which already reflect a discount for the utilitarian value of the pleas of guilty, I consider that those sentences should be taken as a reference point, and I would sentence the applicants to head sentences of two years in the case of the applicants Maher and Lardner, but in respect of the applicant Welsh, who appears to have played an even lesser role in that he was not throwing objects at anyone and did not directly confront correctional officers, and that the case against him depended entirely on his own admissions, I would sentence him to a head sentence of eighteen months.

60 I would not interfere with the finding of special circumstances within s 44(2) nor with the non-parole period of one year in the case of these three applicants.

In respect of the applicant Priestly, I would grant an extension of time for filing of the application for leave to appeal. I would grant leave to appeal and allow the appeal. I would quash the sentences imposed by the District Court and in lieu thereof I would sentence the applicant as follows: (a) On the count of riot, a sentence of imprisonment for four years with a non-parole period of two years, such sentence to commence on 15 February 2012 with a non-parole period to expire on 14 February 2014. (b) On the count of maliciously inflict grievous bodily harm with intent, I would sentence the applicant to imprisonment for fifteen years with a non-parole period of eleven years, such sentence to be served partly concurrent with the sentence for riot and to commence on 15 February 2013 and expire on 14 February 2028. The non-parole period would expire on 14 February 2024. I find special circumstances within s 44(2) in the accumulation of sentences. The earliest date on which the applicant will be eligible for release on parole will be 14 February 2024.

62 In respect of the applicant Maher, I would grant an extension of time for the filing of an application for leave to appeal. I would grant leave to appeal. I would allow the appeal, quash the sentence imposed by the District Court and in lieu thereof I would sentence the applicant to imprisonment for two years with a non-parole period of one year, such sentence to be deemed to have commenced on 5 February 2002. I note that the non-parole period expired on 4 February 2003 and that the head sentence expired on 4 February 2004. I find special circumstances within s 44(2) on account of the applicant's age, parity with other offenders and his deprived background.

63 In relation to the applicant Welsh, I would grant an extension of time for the filing of an application for leave to appeal. I would grant leave to appeal and allow the appeal. I would quash the sentence imposed by the District Court and in lieu thereof I would sentence the applicant to imprisonment for eighteen months, such sentence would be deemed to have commenced on 15 September 2003 and to expire on 14 March 2005.

I would fix a non-parole period of 12 months and note that such non-parole period expired on 14 September 2004 and that the head sentence will expire on 14 March 2005. I find special circumstances on account of the applicant's age, parity with other offenders and his deprived background. Pursuant to s 50 of the Crimes (Sentencing Procedure) Act , I would order that the applicant be released on parole subject to the conditions contained in the Regulations and note that he has already been admitted to parole.

64 In respect of the applicant Lardner, I would grant an extension of time for the filing of an application for leave to appeal. I would grant leave to appeal and allow the appeal. I would quash the sentence imposed by the District Court and in lieu thereof sentence the applicant to imprisonment for two years with a non-parole period of one year, such sentence to be deemed to have commenced on 30 June 2003. I note that the non-parole period expired on 29 June 2004 and that the head sentence will expire on 29 June 2005. I would order that the applicant be released on parole, subject to the conditions contained in the Regulations. I find special circumstances on account of the applicant's age, parity with other offenders and his deprived background.

65 KIRBY J: I agree with each of the orders and with the reasons provided.

66 DUNFORD J: The orders will, accordingly, be as I have indicated.

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Judgment (91 paragraphs)

Cases Cited (9)

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