The Crown appeal
21 Three main arguments were advanced by the Crown. The first concerned the "global" non-parole period purportedly fixed by His Honour. Although counsel for the respondent attempted to support the specified non-parole period by proposing a construction of its terms that enabled it to fit with the head sentences, I am satisfied that the Crown's argument is unarguably correct. No fewer than four of the five of the sentences which carried a non-parole period were specified to commence at a date later than 6 August 2001, the purported commencement date of each non-parole period. Further, the full terms of three of the sentences (those imposed with respect to the third, fifth and sixth counts) were for periods less than the fifteen months identified as the non-parole period.
22 What counsel for the respondent proposed was that the sentences could and should be interpreted in such a way as to specify a non-parole period of three months in relation to each of the robbery, assault and break, enter and steal charges. In my opinion such a construction is not available. The words used do not permit variation to such an extent.
23 However, counsel for the respondent also argued that, if the sentences require correction, the proper remedy is to remit the matters to the judge pursuant to s43 of the Sentencing Procedure Act. If this were the only error the argument would have some merit. But the Crown has argued that other errors infect the sentencing process. The Crown has argued that the sentences, in total, were manifestly inadequate to meet the seriousness of the crimes. In support of this argument the Crown has pointed to specific error, as well as to the sentences themselves, which, it argued, were patently inadequate for the circumstances.
24 One factual matter to which the Crown referred involved the passages extracted above concerning the consequences on the respondent's classification of the escape. As observed above, the observations were made without direct evidence. In order to clarify this matter this Court accepted a letter from the "Inmate Classification and Case Management Branch" of the NSW Department of Corrective Services. The author of the letter provided some of the regulations governing administration of the sentences relating to security classification and escape risk classifications. The author explained that inmates subject to the escape legislation can progress to minimum security rating in accordance with Departmental classification policy. He proceeded to give a brief outline of the process whereby this might be done. In my opinion this correspondence establishes that the judge proceeded to sentence on the basis of a factual error. Further, as the Crown pointed out, the respondent had been made aware of the consequences of escape in the undertaking that he signed. The judge made no mention of this in the sentencing remarks.
25 Another error appears in relation to the application of the discounts already mentioned. By s23 of the Sentencing Procedure Act the sentencing court is permitted to reduce a sentence by reason of assistance to authorities. This provision gives statutory recognition to the principles developed in and subsequent to Cartwright. However, sub-s (2) requires the court to take into account certain matters; and, by sub-s (3), the court is enjoined not to impose a sentence that, by reason of the discount, would be unreasonably disproportionate to the nature and circumstances of the offence.
26 The total of the full terms of the six sentences imposed is two and a half years. The non-parole period, as imposed, expires on 5 November 2002. Since each sentence imposed was for a term of less than three years, by s50 of the Sentencing Procedure Act the sentencing judge was obliged to make an order directing the respondent's release on parole at the end of the non-parole period. The judge made such a direction. The respondent would therefore be entitled to release on parole on 5 November 2002. The non-parole period in respect of the sentences to which he was subject at the time of his escape expires on 16 January 2002. They, too, being sentences of less than three years, the respondent was entitled (other sentences apart) to release on parole on that date.
27 As the Crown pointed out, all this means that, effectively, for all six offences the respondent was sentenced to a term that extends his existing sentence by 10 months. I accept the Crown's submission that such a term is, in the circumstances, manifestly inadequate and of itself bespeaks error. The offence of escape has a particular seriousness because it was an escape from a minimum security establishment. This involved a breach of trust on the respondent's part, and also has wider implications for the administration of Corrective Services facilities, potentially throwing into jeopardy beneficial and humanitarian custodial arrangements. It is unnecessary to comment further on the three offences of violence; I would simply observe that a term of imprisonment of 11 months and another of 18 months for offences as serious as counts 3 and 4 are, in each case, manifestly inadequate. So also is the sentence of 13 months in relation to count 5, the assault with intent to rob whilst armed with an offensive weapon.
28 It is, in my opinion, necessary that this Court set aside the sentences imposed and re-sentence the respondent. Against the possibility that the Court might take this course, affidavit evidence was admitted. The respondent deposed to his contrition about the offences and his plans for his future on his release. Those plans include ridding himself of his drug addiction and living with his step-father and his present wife and children in Queensland. He intends that his girlfriend will also live with the family. The availability of this accommodation to him was confirmed in affidavits sworn by his step-father's wife, and a letter from his step-father. In my opinion the evidence affords confirmation of the sentencing judge's assessment that the respondent does have prospects of rehabilitation and that this is an important time in his life in this respect. I am also conscious of the respondent's youth and the unsatisfactory circumstances of his early life and adolescence. Also relevant to the re-sentencing process is that, in relation to two of the offences (the break, enter and steal and the car stealing) the prosecution had little or no evidence to support a conviction and it was the respondent's admissions that enabled those prosecutions to proceed. For this he is entitled to consideration above and beyond that which ordinarily applies to a plea of guilty: R v Ellis (1986) 6 NSWLR 603. He is entitled to a separate and identified discount in relation to the assistance to the authorities that he has given: see Cartwright. Further, he is entitled to a reduction in sentence by reason of his willingness to facilitate the course of justice in pleading guilty: R v Cameron [2002] HCA 6; unreported, 14 February, 2002.
29 Finally, it is to be borne firmly in mind that these sentences are imposed following a successful Crown appeal, and that the sentences selected should therefore be at the lower end of the range which would otherwise be applicable.