19 The present case seems to me to be one precisely of "two independent crimes committed on different occasions". I do not accept the submission that the two matters ought, as it were, to have been run together in a way that might have been thought appropriate had they been separate matters, but matters arising from a common factual background, or from a common course of criminal conduct. Nor do I think that it was appropriate to run the two discrete crimes together in a way that might have been appropriate had the sentencing Judge been dealing in a particular way with the thorny question of cumulative or concurrent sentences. I would myself not accept the submission that attacks the present sentence upon the basis that it did not give effect to the requirements of the law as to totality.
20 The attack made upon the present sentence in connection with the issue of "special circumstances" is not, as I think, so easily disposed of. It is convenient to begin by noting, as the submissions put for the applicant both note and emphasise, that the remarks on sentence do not in terms advert to the matter of "special circumstances".
21 It is true that there is reasonably long standing authority in this Court for the proposition that a primary sentencing Judge should in fact make a point "normally" of adverting in terms to the factor of "special circumstances". See R v Boo Too & Anor. I think that the decision of Boo Too cannot be taken so far as to support a proposition that the mere failure to make a specific reference to "special circumstances" will always, and in every case without exception, indicate the existence of appealable error.
22 I think that a fair reading of the decision in Boo Too warrants the view that it acknowledges in a broad practical sense the simple fact of appellate life, which is that in the absence of some fairly precise reference to "special circumstances", there will be almost inevitably a contention that the factor has either been overlooked, or not given sufficient weight; so that it is better from a broad practical point of view for every sentencing Judge to bow to the inevitable, and to make some specific reference, however formal, to "special circumstances". That is not to say, of course, that in any particular case there ought not to be some consideration given in fact to the matter of "special circumstances".
23 I would not myself infer that the learned sentencing Judge, a Judge of considerable experience if I may observe, simply overlooked the matter of "special circumstances" altogether. The impression that I have from reading what his Honour had to say in the remarks on sentence is that his Honour tended to see as artificial an extended consideration of "special circumstances" on the given facts of the present case: that is to say, in light of the facts that the applicant, having been released to parole for an expected additional term of two years, had not gone past three days of that parole before committing another serious offence.
24 It cannot be gainsaid that there were present on the given facts of the present case many things capable as a matter of law of constituting "special circumstances" in the relative statutory sense. The question for present decision seems to me to be whether it can be inferred from the remarks on sentence, comparatively brief as they are, that the learned sentencing Judge gave properly considered weight to those matters.
25 Because of the considerations with which I commenced the present judgment I am reluctant to hold that his Honour did not give "special circumstances" proper weight in the relevant scheme of things. But I have come, albeit reluctantly, to the view that the end result reached by his Honour warrants the drawing of an inference that his Honour cannot in fact have correctly collated and analysed the material available, - on the evidence before his Honour such as it was, - on the matter of "special circumstances".
26 I think that in connection with "special circumstances" it was indeed a matter calling for anxious consideration that the present applicant had gone into custody in 1995 at a time when he was aged 16 years, and that he had been aged a little more than 19 years when he committed the later offence. The effect of the 1995 and the 1999 sentences, if left to stand as they are at present, would be that the applicant, at the end of the completion of both such sentences, would have served all his late adolescence and some significant years of his young manhood, in unbroken custody.
27 That is a matter which I think needs, as I have said, careful and anxious consideration in the general scheme of things; and it is that consideration, as much as any other, which disposes me to the view that the factor of "special circumstances" did not, in the event, receive in the present case the weight that it ought properly to have been given. I shall return presently to say something more about the consequence which seems to me to flow from that conclusion.
28 Before doing that, I would advert briefly to the third of the principal submissions put in support of the application: that is to say, that the learned primary Judge misconceived and misapplied the guideline judgment in Henry. It is not necessary to set out in fine detail what his Honour actually said upon that point. I think a fair reading in context of what his Honour said indicates nothing more than that his Honour apprehended correctly that the decision, although it did not apply to a case on all fours with the case before his Honour, nonetheless was based upon a process of reasoning which might have been thought relevant in general terms, and helpful in some more particular senses, to the sentencing exercise upon which his Honour was embarking.
29 I do not think that it is correct to suppose that his Honour simply took the guideline judgement, treated it as though it was binding upon him, and applied it indiscriminately and inappropriately to the facts of the present case.
30 It is now necessary to consider what this Court should do in order to correct the error deriving from the inappropriate weighing of "special circumstances".
31 The first question to be decided in that regard is whether the overall sentence of five years and four months should be disturbed. I am of the opinion that it should not. I think that an overall sentence of that extent is entirely warranted by the objective gravity of the offence in question, even when that is appropriately counter-balanced by the subjective case to be made for the applicant.
32 Where I think it is possible to do something in aid of the applicant is in the apportionment of sentence between the minimum term and the additional term. In that regard it is fair to take note of the fact that the applicant while in custody has made marked efforts to deal with an alcohol problem from which he undoubtedly suffers, and otherwise to take advantage of the opportunities for rehabilitation that have been made available to him.
33 I think that his case, when one considers it in light of the report lately made available by Dr Westmore, is one in which it is fair to say that the applicant needs a longer than usual additional term, and a correspondingly shortened minimum term.
34 There is no point in pretending that that adjustment can be made in any precisely mathematical way. The Court must do its best to form a fair, but practical, judgment as to what the justice of the case might be thought to require. I myself am of the view that justice would be served by reducing the minimum term from four years to three years; and by extending the additional term from one year and four months to two years and four months.
35 I do not pretend that that is a perfect solution to a difficult problem; but I think that it holds in as practical a balance as an appellate Court can do, the need to vindicate the rule of law; the need to deter offences of the kind in question; but the need, also, to take account of the applicant's age; the conditions of his confinement; the steps that he has taken towards rehabilitation; his prospects, if he is given proper guidance and assistance, for further and hopefully complete rehabilitation.
36 I propose that leave to appeal against sentence be granted. I propose that the sentence imposed in the Court below be quashed, and that in its place the applicant be sentenced to imprisonment for five years and four months divided between a minimum term of three years, to commence on 22 September 1998 and to expire on 21 September 2001, and an additional term of two years and four months, to commence on 22 September 2001.
37 I would, myself, append to those orders a recommendation that Dr Westmore's report of 12 May 2000 should be placed with the applicant's correctional services file; and that all proper steps should be taken to ensure that he receives the assistance and the opportunities to which Dr Westmore refers, in particular at pp 4-5 of his report, under the heading "Opinion and Conclusions".
38 I propose orders accordingly.
39 ADAMS J: I agree and have nothing to add.
40 SULLY J: The orders of the Court, then, will be as I have announced them; and they will be accompanied by those recommendations.