REGINA v. DUNCOMBE [2001] NSWCCA 483

JUDGMENT 1 SHELLER, JA: I agree with Greg James, J. 2 DOWD, J: I agree with Greg James, J. 3 GREG JAMES, J: This is an appeal by the New South Wales Director of Public Prosecutions pursuant to s.5D of the Criminal Appeal Act 1912 against sentences pronounced on the respondent in the District Court at Albury on 6 September 2001 by Patten DCJ. 4 The respondent, Gordon Andrew Duncombe was sentenced on two counts, one of assaulting a police officer in the execution of his duty, and one of break enter and steal on 1 November 2000. He had pleaded guilty to these charges. 5 In addition, he sought that the court take into account, which it did, various charges on a Form 1 comprising five counts of receiving, two counts each of break enter and steal and drive whilst licence cancelled and one count each of drive with the special range prescribed concentration of alcohol, drive whilst unlicensed, use unregistered vehicle and use uninsured vehicle. These offences were taken into account on the sentence for the crime of break enter and steal. The offences of receiving, drive while licence cancelled, drive while unlicensed and that of drive with the special range prescribed concentration of alcohol were factually unrelated to the facts of the offences charged in the indictment. 6 The offender had pleaded guilty when arraigned before the trial judge. 7 The offence of break enter and steal is punishable, in the absence of aggravating circumstances, by a maximum penalty of imprisonment for 14 years; that of assaulting a police officer by a maximum penalty of imprisonment for five years. 8 His Honour sentenced the respondent as follows:- "Upon the charge of assaulting Mr. Thomas, a police officer in the execution of his duty, I sentence him to imprisonment for six months and two weeks, the sentence to commence on 2 November 2000 and expire on 15 May 2001. Upon the charge of break enter and steal from the shop of Mr. Thomas, trading as the Rand General Store at Kindra Street, Rand, I take into account the charges on the Form 1. I sentence the prisoner to imprisonment for a term of three years, to commence from 15 May 2001 and expire on 14 May 2004. I set a non-parole period of nine months, which will expire on 14 February 2002, and I direct that the prisoner be admitted to parole on that date." 9 The learned trial judge found the facts of the offences in accordance with the submissions put to him by the Crown. In summary, his findings were that the respondent, together with co-offenders, drove in a motor vehicle bearing stolen number plates from Albury to Rand where the co-offenders broke into and stole from the Rand Bowling Club, the Rand Rural Supplies Store and the Rand General Store. 10 The respondent assisted by carrying the goods from the first two premises. The respondent had agreed to drive the others, as he was aware he would receive money from their enterprise. 11 From the bowling club they stole a number of kegs and slabs of beer and a small sum of money. From the rural supply shop they stole some cash, oil and grease-based products. From the general store they stole a quantity of cigarettes, cigarette lighters and $218 in cash. 12 The respondent had previously warned the others that the general store was owned by a police officer who resided in an attached house. Awakened by the activities of the thieves, the officer confronted them. They ran to the van where the respondent was still sitting in the driver's seat. The officer drove his vehicle from the store and stopped it in front of the van in order to prevent the three offenders from leaving the scene. The respondent drove his van into the officer's car "putting him in fear". That last conduct was said to constitute the offence charged of assaulting the police officer in the execution of his duty. 13 The respondent, together with the co-offenders in the van, decamped, but shortly afterwards gave himself up to police. 14 A large quantity of the items stolen were recovered. When interviewed, the respondent informed the police he had participated in this activity to obtain money to locate his de facto wife who had been reported missing. The van was unregistered, uninsured and the respondent's licence had also been cancelled. 15 The break enter and steal count to which the respondent pleaded guilty related to the activities at the Rand General Store. The other break and enter offences on the Form 1 related to the other premises in Rand. The offences of receiving were committed in the previous October at Albury. The receiving offences were committed about two months previously at Lavington and Albury. 16 In his remarks, the learned trial judge described the respondent's antecedents as not assisting his case. His Honour was euphemistic. 17 The respondent was born on 27 February 1968 and it appears has spent all but a year or two of his life since he was 16 years of age in custody. He came forward for sentence aged 33. He has an appalling record for a variety of offences including numerous break enter and steal offences and offences involving dishonesty. He has frequently committed driving offences. A sentence had been imposed upon him for a number of offences, including one of aggravated break enter and steal in the District Court on 13 February 1998 of imprisonment for six years with a two year non-parole period. He had apparently been released from custody on or about 2 February 2000 and was on parole during the commission of various offences in the year 2000 including those dealt with by his Honour. As a consequence he had been returned to custody in the circumstances I will refer to later. 18 The learned trial judge noted that the respondent had been in custody for most of the period since his arrest and was informed by the prosecutor that custody was relevant to those matters so sentence was dated from 2 November 2000, the day of arrest. 19 The trial judge made a number of findings in the respondent's favour. He described those as including "quite compelling subjective circumstances". He found that the respondent had a very disadvantaged upbringing, he having been subjected to violence and sexual abuse. He said:- "His father was Aboriginal and it is plain that many of the circumstances identified by Mr. Justice Wood in Fernando are applicable to his situation." 20 He found that in recent years the respondent had become heavily involved with illegal substances, noting that in 1993 according to a psychiatrist, Dr. Thomas Clark, the respondent had had an amazing history of institutionalisation, neglect and abuse but who, despite that, had retained a resilience of character and fortitude, he, up to that time, having not taken to drugs or alcohol and maintaining a healthy body. 21 His Honour noted that since 1993, at least to some extent, that situation had changed. He noted a willingness in the respondent to put aside his drug abuse, to maintain his long-standing de facto relationship and his relationship with the two children, although accepting that there was a difficulty as to the continuance of the de facto relationship. 22 His Honour found that he had, in custody, proved to be a model prisoner, acquiring skills and having been employed on a work release programme by international cable manufacturers. Those employers, in a reference, spoke "extremely glowingly indeed of his capacity as a worker and as a leader". His Honour accepted that, following the release to parole in February 2000, the respondent had obtained employment for about six months prior to being retrenched and that the retrenchment caused the shortage of funds, which the respondent claimed led to the crimes for which he stood for sentence. 23 Having regard to the very tragic background of the respondent and the suggestion he has firmly decided to re-order his life, his Honour expressed himself as extending to him a degree of leniency, which his antecedents would perhaps not otherwise justify. 24 I interpolate that it appears that his Honour, at this point, was applying the principles enunciated by Chief Justice King in Osenkowski v. The Queen (1982) 30 SASR 212 at 212-213. That decision, which concerned a Crown appeal against inadequacy of sentence, emphasised that such appellate provisions as are here invoked should not be used unduly to circumscribe the sentencing discretion of judges and that there must always be a place for the exercise of mercy and leniency. That principle has frequently been recognised in the High Court and the Courts of Criminal Appeal of all the States of Australia. 25 Indeed, the High Court in Everett v. The Queen (1994) 181 CLR 295 has emphasised that discretion and more recently in Regina v. Dinsdale (2000) 74 ALJR 1538 and Regina v. Wong & Leung [2001] HCA 64 has underlined the breadth of discretion to be exercised by the trial judge. I shall turn again to those considerations later in this judgment. 26 His Honour then turned to a further matter and, in particular, referred to the sentences passed upon the co-offenders who, at least in respect of the offences charged on indictment and as to some of the offences referred to in the Form 1, were the principals in the first degree. Goodall was noted as having a very significant record of criminal antecedents but having received a sentence of 12 months with a four month non-parole period in the Local Court. The trial judge had sentenced Wolhar, who did not have a criminal record as bad as that of the respondent, but his Honour was of the view that a parity should be preserved between the two. Such a course is explicable by reference to factors his Honour did not expressly note, that is, that the offender was not the creator of the nefarious scheme nor the principal in the first degree as far as the break and enter offences were concerned. 27 His Honour appears to have had regard to what the High Court said concerning parity and inconsistency of sentence between co-offenders in Lowe v. The Queen [1984] 12 A. Crim. R. 408 and applying those principles was of the view that the respondent should receive the same sentence as Mr. Wolhar. There is no information with which we have been provided to suggest that there has been a Crown appeal in the case of Wolhar. 28 The effect of his Honour's sentence was that, taking into account the matters on the Form 1, his Honour sentenced the respondent to imprisonment for a term of three years on the break enter and steal count commencing from 15 May 2001 and expiring on 14 May 2004. A non-parole period of nine months, expiring on 14 February 2002 was provided. But the total head sentence was three years, six months and two weeks. That was in consequence of his Honour making the sentence to which I have referred cumulative upon a sentence of six months and two weeks on the assault police count, that sentence having been expressed to commence on 2 November 2000 and to expire on 15 May 2001. His Honour directed that the respondent be admitted to parole on 14 February 2002 and ordered that his parole be supervised by the Probation and Parole Service, in particular, in respect of treatment for drug abuse. 29 At the conclusion of his remarks on sentence, his Honour asked the Crown whether anything further should be put to him. Nothing was put to suggest that he had fallen into error or that in any way there was any technical problem with his sentence. Before parting with the matter, his Honour informed the respondent that it was his expectation that if the respondent committed further offences, he would go back to serve the balance of his sentence should he be released at the expiration of the non-parole period. 30 However, we are now informed that on 14 August 2001, ie., before this respondent was sentenced, the Parole Board had revoked the parole order relating to the respondent's 1998 sentence and that this matter was not referred to his Honour by the Crown. Indeed the transcript records the Crown Prosecutor's response to his Honour specifically seeking to ascertain the situation. His Honour was informed that the respondent's prior custody was solely related to these offences. His Honour appears to have fixed the sentence and non-parole period commencement dates in reliance on what he was told. It now appears that the respondent had been in custody solely referrable to these matters only from 2 November 2000 to 14 August 2001, although that custody was interrupted by his detention following arrest for other offences to which I will refer later. 31 It is apparent that the revocation of the respondent's parole was in consequence of the commission of the very offences here charged and not for other offences committed after his release. He had been released to parole on 1 February 2000, and returned to custody on 2 May 2000 after having been charged with larceny and take and drive conveyance without consent of owner. He had been also charged on 15 February 2000 with possession of car breaking implements. He was released when he was placed on a bond for these three offences in the Local Court on 10 May 2000. Thus he was on these bonds as well as on parole when the crimes for which he was sentenced were committed. These matters require the sentence to contain a significant deterrent component (Regina v. Readman (1990) 47 A. Crim. R. 181). 32 In consequence of that revocation, however, the respondent is required to serve the balance of parole of two years, five months and 19 days from 14 August 2001 until 1 February 2004 unless re-admitted to parole earlier. In effect, that means that the respondent is liable to serve in custody the entire term of Patten DCJ.'s sentence less some three months. He has lost the benefit of the non-parole period ordered by his Honour and of most of the parole period. This sentence is thus substantially more severe in effect than his Honour intended, as the respondent will not receive the benefit of release to parole his Honour ordered. 33 It is submitted on behalf of the Crown that in those circumstances the impact of double jeopardy might be perhaps less than it might usually be in other cases of Crown appeals. For myself I would not accept that the Crown should be entitled to utilise that circumstance in the way submitted. I do not see that the fact his Honour was not informed of the true position and that the applicant had to serve the balance of the previous sentence would diminish the impact on the offender of the exposure to possible re-sentencing inherent in a Crown appeal. 34 I note that the Crown does not contend that because that parole was revoked the sentences became inadequate because a substantial portion of them will also be served while serving the remainder of the prior sentence in custody. The Crown submits that any sentences for these offences should commence, as the trial judge directed these sentences should commence, on 2 November 2000. Thus, the sentences for these offences in the Crown's submission should be concurrent with the sentences on which parole was revoked. I will return to this matter later also. 35 As to the trial judge's findings concerning the respondent's prior circumstances, the Crown submissions refer explicitly to material contained in the reports of Dr. Clark and Mr. W. John Taylor which had been tendered in evidence and in particular the following submission was made:- "His Honour was provided with report of Dr. Thomas O. Clark (25 March 1993, prepared for then current sentence proceedings) and of Mr. W. John Taylor (26 August 1996, prepared for some pending claim by the respondent for victims compensation). According to those reports, the respondent is the third child in a family of seven children (as he told Mr. W. John Taylor); or fifth of eight (as he told Dr. Thomas O. Clark). His father was aboriginal (Taylor) or half aboriginal (Clark) and his mother white. He grew up in Inverell. His father died when he was about six (Taylor) or about 15 (Clark). The respondent became a state ward at age six or seven (Taylor) or about 15 (Clark). His Honour accepted that the respondent had endured a 'very disadvantaged upbringing which, subjected him to violence and sexual abuse'. As to employment, he told Mr. Taylor (in 1996) that he had only had two jobs since leaving school, both for three months or less. They were on a dairy farm and a trout farm. In 1993 he told Dr. Clark he had had a few jobs, and had worked on a trout farm at one time and had worked as a brickie's labourer. Dr. Clark's 1993 report relayed from the respondent that he had not indulged in alcohol or drugs 'to a severe degree'. This was confirmed as to alcohol in Mr. Taylor's 1996 report. As to drugs ,Mr. Taylor reported that he had commenced using amphetamines at age 16 or 17; stopped after about a year; then smoked cannabis; then commenced heroin abuse in gaol, but only occasionally. He told Mr. Taylor he had not used any drugs 'for some time'." 36 The Crown attacked the sentences in a number of ways. The Crown relied on the inconsistencies in the histories and that the report material before his Honour, including the Probation & Parole report, were not current as providing no satisfactory explanation for the re-offending and no basis for his Honour's expectations of the offender's prospects of rehabilitation. 37 It was submitted that the sentences imposed by his Honour were manifestly inadequate both individually and in their total effect and particular criticism was made of the shortness of the non-parole period. It was submitted that the sentences failed to reflect the objective gravity of the offences, particularly in the light of the respondent being on parole, in breach of bonds, and with a prior record of like offences. 38 In support of the Crown's submissions, our attention was drawn to the decision of the Court of Criminal Appeal re Attorney-General's Application No. 1 under s.26 of the Criminal Procedure Act, Regina v. Ponfield (1999) 48 NSWLR 327. In that decision it was held that it was appropriate for the court to formulate a sentencing guideline judgment as appropriate to offences under s.112 of the Crimes Act 1900 by indicating relevant sentencing considerations without establishing a starting point or developing a range. 39 In that matter, Grove, J., with whom the Chief Justice and Sully, J. agreed, noted that he remained unpersuaded of a general pattern of leniency which would attract the issuance of a specific guideline judgment, particularly one prescribing a specific range of sentences as the seriousness of the offences to which s.112 may apply varies almost infinitely from case to case and so do the relevant circumstances to be taken into account. 40 That decision was recently referred to by the High Court in Wong & Leung v. The Queen [2001] HCA 64. As I understand the joint judgment in the High Court, insofar as their Honours did not disapprove entirely of guideline judgments, there was an acceptance that the approach taken in Ponfield (supra) was appropriate. In Ponfield (supra) it was held that the court should regard the seriousness of an offence contrary to s.112 as enhanced and reflect that enhanced seriousness and the quantum of sentence by reference to certain factors relevantly for this case, if, (1) the offence is committed whilst the offender is at conditional liberty, eg., on parole; (2) the offender has a prior record, particularly for like offences. 41 That decision does not, in my view, support the submission that his Honour fell into any particular error. It is plain that his Honour adverted to the matters in the present case to which the relevant criteria in Ponfield (supra) were applicable. 42 The Crown referred to his Honour having failed to indicate the precise extent to which the respondent had benefited from a discounting of his sentence for a plea on the utilitarian basis identified in Regina v. Thomson & Houlton (2000) 49 NSWLR 383. The suggested error of his Honour failing to assign a specific value to the offender's plea is not one of which, in my view, the Crown can be heard to complain. No assistance was given to him at trial in this regard nor is precise specification always essential. 43 It is contended that his Honour fell into error by not identifying with more precision and detail the circumstances identified by Mr. Justice Wood in Regina v. Fernando (1992) 76 A Crim. R. 58 which were said to be applicable to this respondent's situation, although it was conceded that it was open to his Honour to apply the last of the eight propositions stated by Justice Wood in Fernando (supra at 62-63) which emphasised that full weight must be given to the competing public interest in rehabilitation of the offender and the avoidance of recidivism, whilst not losing sight of the objective seriousness of the offence in the midst of what might otherwise be attractive subjective circumstances. However, the Crown submitted that little leniency should have been extended to the respondent by the trial judge to enable rehabilitation or the avoidance of recidivism. 44 That submission emphasises the respondent's past record and the offences committed by him since being released on parole. 45 The Crown contended that his Honour had erred in failing to indicate the precise manner in which he took into account the offences listed on the Form 1 and referred to his Honour's failure to give reasons so as to comply with s.44(2) of the Crimes (Sentencing Procedure) Act 1999. Insofar as the sentence on this count is submitted to be manifestly inadequate, considering the total culpability relevant to the offences for which sentence was passed on this court: see Regina v. Morgan (1993) 70 A. Crim. R. 368, I will deal with the submission later. I do not understand the criticism to be that the sentence was in error as failing to include a sufficient and identifiable component for the offences on the Schedule. Further, I understand that the gravamen of the complaint based on s.44 is not the failure to give reasons but the length of the non-parole period which matter, again, I will consider later. Therefore, I do not consider these matters in this particular case would warrant intervention. 46 The Crown submitted that his Honour's failure to make an express finding of special circumstances and to make a record of the reasons for finding special circumstances suggested an error of substance but it was plainly within his Honour's judgment that there were many circumstances which his Honour would have been entitled to regard as "special" or as falling within those identified by Wood, J. in Fernando (supra) and that authority does not bind his Honour to express reasons in these regards with that degree of precision. 47 It was submitted that his Honour had erred in sentencing on the basis of any parity with the sentence passed on Wolhar given that Wolhar had pleaded guilty to only one count of break enter and steal (the respondent had pleaded guilty to only one count of break enter and steal). Wolhar had also pleaded guilty to one count of malicious wounding (he stabbed Officer Thomas in his right forearm with a screwdriver) and Wolhar's Form 1 contained six driving offences and three goods in custody offences together with the remaining two counts of break enter and steal. It was particularly put forward that Wolhar was not at the time of the commission of the offences subject to a bond or parole as was the respondent. This is, of course, the major difference between the two situations, although there remains some considerable difference not to the respondent's disadvantage between the roles played by the two. I do not consider that in this respect his Honour erred in such a way as would warrant intervention, having regard to the principles applicable to Crown appeals to which I will turn later in this judgment. 48 In my view, there remains to consider, however, three substantial matters. Firstly, whether the sentence imposed in respect of the offence of assaulting the police officer was itself so inadequate as to show that, in totality, the sentences were manifestly inadequate. Secondly, whether the sentence for the break and enter offences in the circumstances in which they were committed whilst so recently released on parole and on bonds so recently imposed, was similarly inadequate and lastly whether there was error as to the proportion the non-parole period bore to the sentence as a whole, particularly having regard to the respondent's continued offending after being given the opportunity inherent in the lenient sentencing treatment he had so recently been afforded. 49 In Regina v. Pont [2000] NSWCCA 419, I said:- "The notice of appeal asserts as the ground of appeal that the sentence "is inadequate". By this ground, I understand that it is intended to assert "error in point of principle" (see per Barwick, CJ. in Griffiths v. The Queen (1977) 137 CLR 293 at 310) as would amount to "the kind of manifest inadequacy or inconsistency in sentencing standards" ( Everett v. The Queen (1994) 181 CLR 295 at 300 and Regina v. Barbara (CCA, unreported 24 February 1997)) as would warrant the exercise of the exceptional power vested in the Director by s.5D by appealing to invoke the court's function to lay down principles for the governance and guidance of sentencing courts in such circumstances as applied in this case ( Griffiths (supra) at 310). That kind of error would be found in the course taken by the primary judge in consequence of such findings of fact as were properly open and made. The appeal does not call for any re-hearing to re-determine findings open on the facts: Histollo Pty. Limited v. Director-General of National Parks & Wildlife Service (CCA, unreported 10 December 1998). The appeal is against the exercise of a discretion which recognises that a range of sentences might be appropriate in any case and that judges might legitimately differ in philosophy, approach and result: see Spigelman, CJ. in Regina v. Jurisic (1998) 45 NSWLR 209 and Kirby, P. in Regina v. Hayes (1987) 29 A. Crim. R. 452. I understand the ground to assert not merely that there has been disclosed some error of principle such that the sentencing discretion has been improperly exercised even though that error might not be able to be identified (see Cranssen v. The King (1936) 55 CLR 509 at 519-520), but that the error contended for is such as to show that the sentence in its duration or nature is so far outside the permissible range of the exercise of a proper discretion as to require the intervention by this court, at least in the absence of matters going to the exercise of the court's well known discretion to refrain from intervening (see, eg., Regina v. Morrow [1999] NSWCCA 64; Regina v. Holder (1983) 3 NSWLR 245 at 225-226; Hayes (supra); Regina v. Allpass (1994) 72 A. Crim. R. 561; Regina v. Haughton [2000] NSWCCA 62; Regina v. Kalache [2000] NSWCCA 2). On an appeal such as this, the court, in its discretion, may dismiss the appeal and, if upholding it, would ordinarily impose a sentence which might be at the bottom of the range or less than that which ought to have been imposed at first instance: see Kalache (supra); Regina v. Webster [1999] NSWCCA 313, provided that, having regard to the necessity to denounce the error, the discretion and the other matters to be taken into account on re-sentencing, it might properly do so. In considering the exercise of those discretions, it is necessary to have regard to other matters such as the double jeopardy in which the respondent has been placed ( Holder (supra); Regina v. Warfield (1994) 34 NSWLR 2000); any delay in instituting the appeal; the extent to which the sentence imposed below has been served ( Regina v. Morris (CCA, unreported 10 March 1989)); the extent of error detected in the original sentence and whether, if that sentence did not involve full-time custody, a re-sentencing to full-time custody is now appropriate ( Allpass (supra)). In Haughton (supra), Barr, J., with whom Fitzgerald, JA. and Abadee, J. agreed, referred to one circumstance which might call for the exercise of the discretion not to intervene:- 'When this court hears an appeal by the Crown against what is said to be the severity of sentences, the court is not free to take the course it might if sentencing at first instance. A residual discretion exists which favours the respondent to any such appeal if the sentence is found to be below the range of sentencing discretion, but not so far below it that the court considers that it ought not to interfere.' Further to what Barr, J. has noted in Haughton (supra), an occasion for the exercise of discretion in particular arises where error is detected in that a sentence is below the range of a proper sentencing discretion, but where the sentence which might be imposed on appeal, having regard, in particular, to those matters appropriate to be considered by the appellate court and the necessity to denounce error in the original sentence, would involve only a limited increase or limited change in the nature of the sentence but which would have a disproportionately onerous effect in the individual circumstances of the respondent Crown appeals exist for the correction of errors having general effects (see Everett (supra) and Griffiths (supra)). It follows, since the imposition of sentence is individual in effect, that the correction of such errors of general significance will have a specific impact on the respondent. Insofar, however, as the error proceeds from a failure in the sentencing process below and because its correction may have an impact, in the circumstances, of a particularly onerous kind, provided that the error may be properly corrected and the original criminal conduct as well as the leniency with which it has been treated properly denounced, then it is open to the court to avoid occasioning, by the re-sentencing process, consequences which in their effect would be unduly onerous. This is since the necessity to re-sentence is due to the judicial error, a failure in the process, rather than to any fault of the respondent and, in particular, so as to avoid that failure producing untoward hardship." 50 As to asserted error of manifest inadequacy, in Wong & Leung (supra), Gaudron, Gummow and Hayne, JJ. said, at paras.57-58:- "The actual sentence which a court imposed on an offender reveals very little about the reasons which the court had for fixing that sentence. Contrary to submissions made on behalf of the Attorney-General of the Commonwealth (intervening in support of the respondent) the sentence itself gives rise to no binding precedent. What may give rise to precedent is a statement of principles which affect how the sentencing discretion should be exercised, either generally or in particular kinds of case. It is, therefore, fundamentally wrong to speak of 'quantitative aspects' of discretionary decisions. So much is, or should be seen as, no more than a statement of elementary principle. If, however, further elucidation of the principle is necessary, it is evident in cases like House v. The King (1936) 55 CLR 499 and the discussion of when an appellate court may conclude that a trial judge's exercise of discretion has miscarried. Reference is made in House to two kinds of error. First, there are cases of specific error of principle. Secondly, there is the residuary category of error which, in the field of sentencing appeals, is usually described as manifest excess or manifest inadequacy. In this second kind of case appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons. It follows that for a court to state what should be the range within which some or all future exercises of discretion should fall, must carry with it a set of implicit or explicit assumptions about what is, or should be regarded as, the kind of case which will justify a sentence within the specified range. It is those assumptions that may reflect or embody relevant principles, not the result." 51 Considerations as to Crown appeals have been set forth in such decisions as Regina v. Allpass (1994) 72 A. Crim. R. 561; Osenkowski (supra); Everett (supra) and Regina v. Kalache (Lesley) (2000) 111 A. Crim. R. 152, noting the discretion not to uphold such an appeal notwithstanding that error might be made out: Regina v. Warfield (1994) 34 NSWLR 200 and the recognition of the element of double jeopardy: Allpass (supra) so that, where the difference between the original sentence and that which might be substituted is not great, or where the effect of the substitution considering what has occurred in the meantime, might be to put such matters as rehabilitation at risk the appeal may be dismissed. See Regina v. Moffitt (1990) 20 NSWLR 114. We have also been referred by the respondent to certain of these principles as enunciated in Regina v. Lansdell (Court of Criminal Appeal, unreported 23 May 1996). 52 His Honour, no doubt in consequence of failing to turn his mind expressly to the necessity of identifying and enunciating the special circumstances and his reasons for reducing the non-parole period, imposed a non-parole period which is 36% of the effective total sentence rather than 75%, as s.44 of the Crimes (Sentencing Procedure) Act 1999 would require in the absence of special circumstances. It is complained that his Honour imposed a non-parole period of less than half of the statutorily mandated minimum proportion. 53 Although it was contended that there was no evidence before his Honour to justify a finding that the respondent or the community would benefit from a longer period of parole supervision, there was some material before his Honour of the respondent's remorse and his willingness and intention to turn around his life and of other matters which were capable of being held to be special circumstances. I have already noted the Crown's submission as to how this material should be regarded. 54 His counsel had, without objection from the bar table apparently, informed the trial judge of his employment since release on parole and his industriousness. 55 The respondent's account of his actions to the parole officer was set forth in the Probation & Parole report which was before his Honour and gave rise to that officer reaching the following conclusion:- "Mr. Duncombe present as an intense young man that has matured during this sentence, he stated he has 'reached the crossroads in life'. He appears to have adjusted in the latter term of his sentence and become constructive in terms of participating in program/courses for self-development. Mr. Duncombe appears genuinely motivated and has been very co-operative with all staff. He has shown a positive outlook for his future along with his excellent work record, which should go well for future employment. He also realises he needs support to re-establish himself within the community. In addition, Mr. Duncombe stated he sees himself as a different person. He is more confident within himself, a confidence he has acquired during this sentence. He further stated he recognises the importance of the continuing support of his family, who seem to have recognised this change, and are willing to assist him in whatever way they can. He is aware of the consequences of even the slightest transgression if he released (sic) on parole and that his past behaviours have been unacceptable. This Service has concerns emanating from Mr. Duncombe's past supervision and offence history and lack of drug and alcohol programs. However, during this term of imprisonment Mr. Duncombe appears to have seriously commenced the process of significant personal change and articulated clearly his desire to remain out of gal. With some reservation, this Service recommends that Mr. Duncombe be granted parole as a Special Category Parolee - accommodation, employment and associates, and be subject to the following suggested conditions: 1 to 9, 12, 15, 16, 23." 56 Whatever doubt the subsequent events have thrown upon this material, there was in this report and in those of Dr. Clarke and Mr. Taylor some evidence of the respondent's expressed willingness to try to avoid recidivism such as allowed his Honour to find as he did. 57 There is now admitted on the appeal on the question of the exercise of discretion or on re-sentencing, the respondent's affidavit, the statement of his mother-in-law and the report of a psychologist. Those materials go a long way to support the trial judge's findings and to enable this court, were it minded to intervene, to exercise the relevant discretion and, if it were minded to re-sentence, to do so in a way designed to avoid placing impediments in the way of the respondent's rehabilitation and taking up his family responsibilities. The psychologist's report and recommendations are most helpful. 58 In considering whether to intervene and, if so, the extent of intervention, regard must be had to whether the eventual product of sentence would still reflect an acceptable parity with co-accused. See generally Dinsdale (supra at 1538 at para.62). The circumstances of the commission of these offences whilst on parole, on bonds and in the context of the past history of like offences, taken in combination, distinguish the respondent's position from that of the relevant co-accused. 59 The respondent's record is appalling and his offences since leaving gaol and whilst on parole demonstrate a breach of trust and put in doubt the views of the parole officer to which his Honour had regard. But I do not consider his Honour erred on what material was before him in deciding to impose a non-parole period of less than 75% of the total sentence. Except in the respects I have mentioned, that is to say, the particular sentences in respect of the assault police charge and the break and enter charge and the degree of disconformity of the non-parole period to the statutory proportion, I consider there was no error of substance. I do not consider that the technical errors the Crown has asserted the trial judge fell into are such, even if made out, particularly considering how the Crown conducted its case below, to warrant intervention. 60 Accepting his Honour's findings, I am however of the view that the sentence of six months and two weeks for the offence of assaulting Mr. Thomas, particularly involving, as it did, the use of a car in the way in which the respondent used the car, is manifestly inadequate such as to show an otherwise undisclosed error of principle so that the sentence does not reflect the gravity of the crime. That sentence is entirely outside the appropriate range of sentences for that crime. The respondent's role in the commission of the assault on the police officer was more prominent than his role in the break and enter offences. But I also consider that the sentence for the break and enter offence for the same reason is unacceptably inadequate, considering the offence was committed on parole whilst on bonds by an offender with such a record including for like offences recently committed and allowing for the Form 1 offences. It is necessary that the sentence for each crime reflect its criminality in the total sentence: Pearce v. The Queen (1998) 103 A. Crim. R. 372. In my view, both of the sentences are inadequate and the total sentence is inadequate. 61 Taking into account all relevant matters to which I have referred and, notwithstanding the material filed on his behalf on this appeal and the submissions of the respondent, I consider that this court should intervene and re-sentence. In each case I consider that at first instance a substantial sentence of actual imprisonment should have been imposed in excess of that which was imposed. The public are entitled to expect that those who continue to offend, disregarding the opportunities offered by sentencing courts to achieve rehabilitation will receive substantial punishment. His Honour erred in failing to have adequate regard for the sentences to reflect the culpability of the conduct of the respondent. It is only because of the well known restraint in Crown appeals and in deference to the trial judge's intent to assist the prospect of the respondent's avoidance of recidivism that I consider that a sentence as short as that I propose should be imposed. In my view, a sentence no shorter than five years taking into account the matters on the Form 1 on the break enter matters is required and a sentence of 12 months is called for on the assault police count, properly balancing all considerations on re-sentencing. The sentence for the break and enter offence should be cumulative on the sentence for the assault, the sentence for which should commence, however, on the day nominated by his Honour, ie., 2 November 2000. The cumulation is appropriate to produce a total sentence reflective of the total culpability for all the offences (including those on the Form 1): see Regina v. Harris [2001] NSWCCA 322. In consequence, the commencement date of the later sentence will be 2 November 2001 and expire on 11 November 2006. There will thus be an effective head sentence of six years. 62 Having regard to the special circumstances which include the tragic background found by his Honour, the suggestion of the respondent's decision to re-order his life, the necessity for support from the Probation and Parole authorities to avoid recidivism and achieve rehabilitation, the sentences passed on the co-accused the recent estimable work history and the respondent's previous personal circumstances (which I apprehend was what his Honour identified with the matters referred to by Wood, J. in Fernando (supra)), and the material provided to this court in the respondent's affidavit; the affidavit of his solicitor; the statement of his mother-in-law, Mrs. Hegarty; and the most valuable report of Margaret Johnson psychologist, I would, as his Honour did, vary the proportion of non-parole period to the total sentence from that provided by s.44 of the Crimes (Sentencing Procedure) Act 1999 but not to the extent his Honour did. I would, however, vary the proportion substantially to the respondent's advantage should he, as the material filed on his behalf on the appeal would suggest will be the position, avoid re-offending. In the circumstances of this case, the appropriate mechanism to achieve such an effect as designed to conform to all relevant requirements would be to make the 12 months sentence for assault a fixed term and to commence a non-parole period of three years with the commencement of the second sentence. Thus, although the non-parole period would be 75% of that second sentence, the proportion of non-parole period to the total sentence would be less. 63 I have concluded, having regard to the principles of restraint involved in Crown appeals, that a non-parole period some what shorter than would otherwise be the case but substantially greater than that his Honour imposed would avoid the upholding of the appeal setting at naught the expectations of his Honour and the hopes engendered by the material filed in this court but, on the other hand, would meet that which is necessary so that the sentence will reflect the objective circumstances and total culpability in the context of the respondent's subjective circumstances. Thus, the sentence I propose would achieve a synthesis of all relevant matters: see the joint judgment in Wong & Leung (supra) in the High Court. In addition, I propose that a copy of Ms. Johnson's report be provided to the Corrective Services Department with a view to that Department and the Probation & Parole Service considering its contents and recommendations. 64 The orders I propose therefore are that the appeal be upheld; the sentence imposed in the District Court be quashed; and the respondent re-sentenced as follows. On the count of assaulting a police officer, to imprisonment for a fixed term of 12 months to commence on 2 November 2000 to expire on 1 November 2001. On the count of break enter and steal, and taking into account the matters on the Form 1, to imprisonment for a term of five years to date from 2 November 2001 and to expire on 1 November 2006, a total sentence of six years imprisonment. On the latter sentence, I would impose a non-parole period of three years to date from 2 November 2001. The respondent would be eligible for release on parole at the end of the non-parole period but that parole should be subject to the supervision of the Probation & Parole Service. I would order that the report of Ms. Johnson be sent to the Department of Corrective Services, as I have proposed. The first possible release date would be 2 November 2004. ********

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