9 Part of that decision has been subsumed into s.439 of the Act, and it is clear from an examination of the judgment that his Honour did take into account the high level of co-operation and the fact of the plea of guilty insofar. His Honour averted to the fact of the plea of guilty and that it was taken into account, and also the other provisions of s.439 which is when the person pleaded guilty and in one case here it was at arraignment not at the magistrate's Court, or indicate an intention to plead guilty, which one could infer from the co-operative way in which the applicant co-operated with the police in this matter.
10 The primary point to which the application refers is that as referred to by counsel for the applicant in a decision of Panowitcz, this Court then presided over by Finlay J with Levine J examined a similar decision of Coleman DCJ where it was noted that his Honour did not specifically advert to the principles in Ellis and taking that and other matters into account, the Court allowed an appeal from a sentence imposed by his Honour.
11 It is of course as set out in s.439 of the Act, the Court must only advert to a failure to apply a credit or a reduction of a plea of guilty, or an indication of an intention to plead guilty, if in fact the Court does not so apply. That, however, does not detract from the matter that the Court in not referring to R v Ellis in fact should have failed to apply a principle of law which was applicable to this case. In respect of the first and second offences there has, in my view, been an error by his Honour in not applying the principles of R v Ellis.
12 The difficulty however in this particular application, is that the task of this Court, which if it is of the opinion that some other sentence in this case less severe is warranted in law should have been passed should quash the sentence and pass such other sentence in substitution therefor and otherwise should dismiss the appeal.
13 The difficulty in the case insofar as his Honour has applied the principles in R v Pearce, is that in the first three offences in failing to give a credit by reduction for the assistance provided in respect of that matter is that the Court has therefore imposed a sentence which for that offence is too high, is manifestly in error. Similarly for the second offence. However, the third offence insofar as the second and third offences for the purposes of the R v Pearce is the more serious of the three offences, warrants in fact a more severe penalty because it is not, as it were, infected by the failure to take Ellis into account. His Honour in applying R v Pearce has the difficult task therefore of accumulating for sentencing purposes, three separate penalties. His starting point was, in my view, too low in the first of the three sentences. Similarly, in the second of the three sentences but in effect, because of the non-application of Ellis to the third, his final sentence was in fact not so affected.
14 In my view therefore, the manifest error is in the first two. But taking into account the fact that the total of the three sentences was intended to be accumulative to reflect the totality of criminality of the three offences, it is my view that in terms of the sentence which is the effective sentence, namely the third sentence, is not such as to warrant intervention by this Court.
15 I am of the view that although a less severe sentence is warranted in law on the first two, that in fact because of the seriousness of the accumulative effect of the three that the third sentence should not be quashed and should stand.
16 In my view the Court should intervene to grant leave and should allow the appeal only insofar as it affects the first and second sentences and should re-sentence reflecting those two only and that in effect the third sentence should stand and I would propose therefore that the first and second sentences be quashed and in lieu of the first sentence now taking into account the principles of Ellis that in terms of the Crime Sentencing Procedures Act, a sentence of imprisonment is the only sentence.
17 I would sentence the prisoner to imprisonment for a non-parole period of three years and an additional term of one and a half years. On the second sentence I would impose a term of imprisonment of three and a half years and an additional term of two years. On the third offence I would not interfere but I think perhaps although in sentencing terms it is different terminology, I would not interfere with that term.
18 Accordingly, on the first count the appellant is sentenced to imprisonment for a term of four and a half years to comprise a non-parole period of three years commencing on 24 January 1999 and expiring on 23 January 2002 and an additional term of two years expiring on 23 July 2003. For the second sentence the appellant is convicted and he is sentenced for a term of five and a half years comprising a non-parole period of three and a half years to commence on 24 January 1999 and to expire on 23 July 2002 and a non-parole period of two years to expire on 23 July 2004. That sentence to be served concurrently with the first sentence which I have imposed. The third sentence will therefore remain as imposed.
19 HULME J: I agree with the orders proposed and with his Honour's reasons, subject to one possible qualification. I am not sure that they were expressed in precisely the terms required under the recent legislation. That is a matter which we will fix up in the formal order of the Court. In effect, the orders of the Court are that leave to appeal is granted. The sentence imposed on the first and second counts is quashed. In respect of the first charge the applicant is sentenced to imprisonment for a period of four and a half years, including a non-parole period of three years, both the full term and the non-parole period to commence on 24 January 1999. The second count is sentenced to imprisonment for a full term of five and half years, including a non-parole period of three and a half years. Both such periods commencing on 24 January 1999.