Ryan v R

Facts of the offences

1. The following facts are extracted from the remarks on sentence ("ROS"). Between November 2006 and March 2007, KM lived with her mother and siblings, next door to the applicant and his partner. [1]
2. In December 2015, KM was interviewed by officers from Liverpool Joint Investigation Response Team (JIRT). In that interview she disclosed two incidents involving the applicant.
3. The incident that comprised count 1 was that one day in 2007, when KM was five years old, she had changed out of dirty clothes into other clothes but had put them on back to front. The applicant assisted her to rearrange her clothing and in doing so he touched her on the inside of her vagina. She said that it made her "feel scared" and "she did not know what was happening". The applicant only ceased what he was doing as she was moving and pushed him away. That incident occurred at his house. [2]
4. Count 2 on the indictment was described by KM as involving the applicant luring her to an attic and that he "pulled his dick out", told her to touch it, pushed her to the floor, pulled down her underwear and "tried to stick it in". The applicant was found not guilty of that offence, however her Honour observed that had an alternative verdict to a charge of attempt been available, it would have been open to the jury to find the applicant guilty of that offence. [3]
5. The victim involved in count 3, GF, was the daughter of a friend of the applicant. The applicant and GF's mother had previously been in a relationship which had finished, but the families remained in contact. Sometimes GF stayed overnight at the applicant's house in a kind of extended family arrangement. [4]
6. On an occasion when GF was at the applicant's home alone with him between January 2012 and December 2012, GF described that the applicant: "… removed his, "rude bit", from his pants and he told her to "suck it". She described his "rude bit" as his, "vagina" but she placed an X on the diagram of a male in the location of a male's penis. She described the offender's penis as, "purple" but wasn't able to recall any other details. After the offender had told her to "suck it" he grabbed her head and he pushed it on it. "He got the back and pulled my hair real tight and then he pushed it onto it and he holded it. My head was hurting and I didn't want to but he pushed my head harder". She described his "rude part" in her mouth saying that he, "kept pushing my head and then kept going up and down. It was tasting gross. I could taste some yucky stuff, I don't know what yucky stuff. When she was asked if she could remember seeing any yucky stuff she replied "Yeah, after he was done he- there was some white stuff and he done it on the floor in the room and put a towel over it." [5]
7. Other conduct of the applicant referred to by her Honour was led as relationship evidence at the trial which described GF's evidence that the applicant would insert his fingers into her vagina, and that this had occurred on a number of occasions and it "didn't feel well." [6] Her Honour noted that GF had given evidence that this would occur in her grandparents' home while others were present. It occurred inside and outside the house, in the lounge room and in the back living room. She was unable to be specific as to when these incidents occurred, but recalled it had happened the last time the applicant visited the family home. [7] This evidence led her Honour to conclude that count 3 was not an isolated offence.
8. Her Honour observed that the applicant had ingratiated himself with GF's and KM's families, and then in the context of providing childcare "of sorts", took advantage of both young girls, to sexually assault them. [8]

Proceedings on sentence

1. The Crown tendered the applicant's criminal and custodial history, various Facebook messages between himself and KM, the victim impact statement of GF (which GF also read to the court) and a presentence report dated 22 February 2017 attaching a psychologist's report of the same date.
2. The Crown relied upon the Facebook messages as admissions of guilt in the trial as to his conduct with KM. The Facebook messages included the following: The applicant: "Just everything how u felt about me when u were younger how u feel about me now if I really did hurt you I really did fall in love with the day I meet you I was so dirty u were so young so when things happen I thought it was cause I was so in love with you n u loved as well so I thought so when I came over there last I tried to give u a cuddle n jumped away from me broke my heart so bad" KM replied: "Why did u do it" The applicant: "Well ok one thing did I hurt you in any way cause I really tried not to I only wanted to do what you wanted to do n what was fun n felt good for you n I it made me so happy been with you like that n I really thought u liked it to that's y I only did things I thought u liked n I really truly fell madly in love with you it just suck that u were young at the time n I know ur only 13 now but I still have a whole of that love for you please b honest on everything n how felt n feel or is it u hate me so much for that just remember please I don't think I ever hurt you if u no then it did happen I used to get so happy when u used to called me up the stirs use to think mad she really does love me" "I know it's wrong but to think I hurt someone so much that I love n still love so much I know what's done is done but for me I hoped it was a life thing just being with always n I know ur only 13 but I can't help how I feel or u can't help how fall in love with thats y I think I feel like killing myself cause I know I can never hav. Again n it suck it kills me a little everyday" "Yeah I know it's just hard the one you love the most doesn't want u n is a bit on the young side I put it out to you so u now know probs fucked myself big time with this but fuck it I like you I love you I know ur young work around no has or will ever know n please trust me I'd never push you to do something you would never want to do so u have power u want me u got it u don't tell me fuck off u want to just play n fun with each other none of anything u don't want to do so I could 20 years over just saying this but i truly believe u r worth everything u ca" … "Well I thought u had fun n love it loved me as I loved you was heaps cut at the age gap but yeah" "N now I think I know u hated it or am I wrong? Just want u to say how u felt back then n now not talking is making me want to end it sorry It's not like any1 knows what we r talking about I hope but I feel like killing myself I hate it" [9] …
3. The applicant gave evidence in the trial. Her Honour observed that he was not a particularly impressive witness and that he tried to distance himself from the Facebook messages, saying that he could not explain how those messages were sent from his phone. Her Honour also observed that he admitted to lying to police during his record of interview. She concluded that his evidence was "contradictory and at times fanciful" and that in denying posting the Facebook messages to KM, he tried to distance himself from them, "giving highly implausible explanations". [10]

This appeal

1. The applicant has raised three grounds of appeal: 1. the sentencing judge erred by treating the standard non-parole period as having determinative significance in the sentencing exercise; 2. the sentencing judge erred in giving effect to the finding of special circumstances in relation to count 3 by extending the additional term, rather than reducing the non-parole period; and 3. the sentence is manifestly excessive.

Ground 1: the sentencing judge erred by treating the standard non-parole period as having determinative significance in the sentencing exercise

1. At ROS page 14, her Honour stated: "The maximum penalties imposed by the legislature for these offences and the standard non-parole periods set reflect the community and legislature's concern to ensure that judges who sentence offenders for these types of offences are not merciful. The most serious offence is the forced fellatio with ejaculation [count 3]. It is a matter I find that falls within the midrange of objective seriousness as envisaged by the legislature and I can see no reason why I should depart from the standard non-parole period imposed by the legislature. The digital penetration of a five-year-old girl is also an objectively serious offence indeed [count 1]. One that only ceased when the child was able to struggle and get away. It is an offence falling just below the midrange of objective seriousness."
2. The sentencing judge then went on to impose a non-parole period of 12 years in respect of count 1, and 15 years in respect of count 3. The non-parole period imposed for count 3 equals the standard non-parole period of 15 years.
3. Section 54B of the Crimes (Sentencing Procedure) Act 1999 (NSW) as amended after Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 provides: 54B Consideration of standard non-parole period in sentencing (1) This section applies when a court imposes a sentence of imprisonment for an offence, or an aggregate sentence of imprisonment with respect to one or more offences, set out in the Table to this Division. (2) The standard non-parole period for an offence is a matter to be taken into account by a court in determining the appropriate sentence for an offender, without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence for an offender. (3) The court must make a record of its reasons for setting a non-parole period that is longer or shorter than the standard non-parole period and must identify in the record of its reasons each factor that it took into account. (4) When determining an aggregate sentence of imprisonment for one or more offences, the court is to indicate and make a written record of, for those offences to which a standard non-parole period applies, the non-parole period that it would have set for each such offence to which the aggregate sentence relates had it set a separate sentence of imprisonment for that offence. (5) If the court indicates under subsection (4) that it would have set a non-parole period for an offence that is longer or shorter than the standard non-parole period for the offence, the court must make a record of the reasons why it would have done so and must identify in the record of its reasons each factor that it took into account. (6) A requirement under this section for a court to make a record of reasons for setting a non-parole period that is longer or shorter than a standard non-parole period does not require the court to identify the extent to which the seriousness of the offence for which the non-parole period is set differs from that of an offence to which the standard non-parole period is referable. (7) The failure of a court to comply with this section does not invalidate the sentence.
4. As stated in Muldrock at [28]: "Nothing in the amendments introduced by the Amending Act requires or permits the court to engage in a two-stage approach to the sentencing of offenders for Div 1A offences, commencing with an assessment of whether the offence falls within the middle range of objective seriousness by comparison with an hypothesised offence answering that description and, in the event that it does, by inquiring if there are matters justifying a longer or shorter period."
5. As conceded by the Crown in its written submissions, even on a fair reading of the complete remarks on sentence, her Honour appears to have given determinative significance to the standard non-parole period in respect of count 3, rather than treating it as a yard stick in the manner required by Muldrock.
6. Error has been demonstrated, and ground 1 must be upheld.

Ground 2 - The sentencing Judge erred in giving effect to the finding of special circumstances in relation to count 3 by extending the additional term, rather than reducing the non-parole period.

1. Ground 2 was also conceded by the Crown. The sentencing judge by her remarks on sentence clearly intended the non-parole period for the sentence for count 3 to be 15 years but erroneously calculated the date when that non-parole period ended as 4 August 2030, a period of only 13 years.
2. The sentencing judge initially sentenced as follows: "For [Count 1] you are sentenced to a non-parole period of 12 years commencing 5 August 2015, expiring on 4 August 2027 and to a total term of imprisonment for 17 years commencing 5 August 2015, expiring on 4 August 2032. For [Count 3] you are sentenced to a non-parole period of 15 years commencing 5 August 2017, expiring on 4 August 2030 and a total term of imprisonment for 19 years commencing 5 August 2017, expiring on 4 August 2036. That represents a total non-parole period of 15 years commencing 5 August 2015, expiring 4 August 2030 and a total term of 21 years commencing 5 August 2015, expiring on 4 August 2036. You are eligible for release to supervised parole on 4 August 2030." [11]
3. The overall non-parole period was also incorrect as the non-parole period in fact set by her Honour is 17 years; 2015 to 2032.
4. This non-parole period is in effect 81% of the total sentence which does not reflect the finding of special circumstances made [12] although a non-parole period that expired in 2030 would, because that would reflect 71% of the total sentence.
5. The sentencing judge then returned after a short adjournment and compounded the error by varying the sentence this way: "It has been drawn to my attention that I had not in fact afforded the offender a finding of special circumstances in the way in which I partially accumulated the sentence I will therefore resentence him. The effect is to his advantage in that he will be spending a year less in custody but then will be adding a year of extended parole. So for [Count 1] the sentence remains the same. That is the non-parole period is 12 years commencing 5 August 2015, expiring on 4 August 2027 with a total sentence of 17 years from 5 August 2015, expiring on 4 August 2032. For [Count 3] a 15 year non-parole period commencing 5 August 2016, expiring on 4 August 2031 and a total term of 21 years, 5 August 2016 expiring on 4 August 2037. So that represents a non-parole period of 16 years, 5 August 2015, expiring on 4 August 2031. A total term of 22 years, 5 August 2015, expiring on 4 August 2037 and he is therefore eligible for release to parole on 4 August 2031." [13]
6. Although this adjustment led to a 72.7% ratio between the non-parole period and sentence, this was achieved by increasing the head sentence for count 3 from 19 years to 21 years, adjusting the commencement date of count 3 to 2016 (rather than 2017) and as a result, increased the total sentence from 21 to 22 years.
7. The applicant submitted that: "Various decisions of this Court have held that it is erroneous to reflect a finding of special circumstances by increasing the total sentence rather than reducing the non-parole period. See: R v Tobar; R v Jan [2004] NSWCCA 391 at [36]-[39]; R v Huynh [2005] NSWCCA 220 at [35]; and Markham v R [2007] NSWCCA 295 at [29]."
8. As submitted by the Crown in conceding error: "Having set a non-parole period for Count 3 of 15 years and maintained that non-parole period when re sentencing, her Honour extended the additional term. Although her Honour indicated that this was to the advantage of the applicant, this was not necessarily so: Musgrove v R [2007] NSWCCA 21 at [42]. Section 44(1) of the Crimes (Sentencing Procedure) Act provides: Unless imposing an aggregate sentence of imprisonment, when sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence). The error the applicant contends for was explained by Simpson J in Musgrove v R at [44]: That the non-parole period is now, by s 44(1), required first to be set does not necessarily mean that it must first be determined: see Moffitt, p 122, R v P [2004] NSWCCA 218; R v Tobar. Indeed, in the light of the discretion conferred by subs(2), it is difficult to see how the sentencing duty could properly be discharged by the determination first of the non-parole period. To determine, initially, the non-parole period, before determining the total sentence, would, in my opinion, (where special circumstances are then found) be conducive to error of the kind exposed in Huynh. A finding of special circumstances, after the determination of the non-parole period, would provoke an extension, beyond proper limits, of the balance of term. Sentencing judges need to be wary of taking a course that might lead to that error. Yet, on too literal an application of the section, that kind of error is rendered likely. The section appears to enjoin a sentencing judge firstly to fix the non-parole period, as the minimum term to be served in custody; and then to consider the question of special circumstances. It is obvious that, if special circumstances are found, the temptation will be to extend the balance of term rather than, as was held in Moffitt and cases thereafter to be the correct course, to reduce the non-parole period. [Emphasis in the original.]"
9. It is clear her Honour has engaged in the erroneous approach identified and so ground 2 has also been made out.
10. Given grounds 1 and 2 are established there is no need to deal with the manifest excess ground and this Court will proceed to re-sentence, taking into account all the submissions made on that ground by both parties.

Re-sentence

1. The offender is now 41 years old. He has been in custody since 5 August 2015.
2. The sentencing judge made a finding that the applicant has a sexual interest in young girls of the age of five and that the offending for which she sentenced him indicated that he acted upon that sexual interest when the opportunity arose or he felt so inclined. [14]
3. In respect of count 1 involving KM, the sentencing judge determined that offending fell just below the mid-range of objective seriousness and count 3 involving GF fell within the mid-range of objective seriousness. [15] There is no challenge to these findings.
4. The sentencing judge concluded that she could make no finding of remorse or contrition given that the applicant maintained his innocence, and that his prospects for rehabilitation based upon the pre-sentence and psychologist's reports were, at best, mediocre. [16]
5. Reference was made to a long-standing problem with drugs and alcohol abuse and some mental health issues which needed addressing. [17] There was reference to a history of drug use by age 13 and regular use by age 15.
6. There was reference to past employment and a back injury that was said to have resulted in the need for the applicant to have ibuprofen, [18] which was said by his counsel to be the drug found in his cell that led to one of the misconduct charges in custody.
7. The applicant's record as an adult involving larceny, assault, shoplifting and driving with an illicit drug present in his blood was noted, [19] together with an observation that the latter offence was committed at a time when the applicant would have the court believe that he no longer took illicit substances.
8. The sentencing judge concluded the applicant's record was not such as to disentitle him to leniency and that the offending for which she was sentencing him were the most serious matters. [20]
9. The sentencing judge noted that general and specific deterrence loomed large given he had sexually assaulted two little girls where he violated them by becoming a trusted family "friend", and in respect of count 3, the child was under his authority at the time. [21]
10. Additional evidence offered before this Court comprised an affidavit of the applicant sworn in January 2019 stating that he had been a trusted sweeper whilst in custody and that he had completed a training course as a barista, a course in creative arts and an EQUIPS course which included a course relating to drug addiction.
11. An affidavit tendered by the Crown referred to additional drug related offences in May, August and December 2018 comprising refusing/fail drug sample, possess drug and possess drug implement. Submissions were made by the applicant explaining that these offences related to tobacco and ibuprofen use.
12. Little is added to or taken away from the applicant's subjective case by any of this additional material. It is equivocal.
13. As submitted by the Crown before this Court, the offending involved two five year old girls who were well below the upper age limit of 10 years for offences of this type. The offender ingratiated himself with the families, using that friendship and closeness to access and assault these little girls.
14. The Facebook messages to KM who was 13 years old at the time the applicant sent them, evidence a continued manipulative sexual focus on KM, and shows a disturbing lack of insight into the inappropriateness of his attitude to this child.
15. The conduct involved in count 3 was forced fellatio using physical force on a 5 year old child, pulling her hair and pushing her head onto his penis, hurting her head and ejaculating into her mouth.
16. The offences were five years apart and the victims entirely unrelated. There is distinct and separate criminality involved in each of the offences.
17. The submissions offered on behalf of the applicant on sentence were directed to the manifest excess ground and comprised largely a comparison examination of other cases dealing with s 66A offences where the sentences imposed for those offences were less than those imposed upon the applicant. [22] Reference was made in that context to a number of decisions that dealt with penalties for what were submitted to be instances of offending relevantly comparable to the applicant's offending.
18. The remarks by Bellew J (Macfarlan JA and Adamson J agreeing) in MLP v R [2014] NSWCCA 183 are apposite to the problems created by such an approach: "41 Firstly, consistency in sentencing is not demonstrated by, and does not require, numerical equivalence. What is sought is consistency in the application of the relevant legal principles: Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520 at [48]-[49]. 42 Secondly, in seeking consistency, other cases may establish a range of sentences which have been imposed. But the sentences imposed in other cases do not mark the outer bounds of the permissible sentencing discretion. They stand as a yardstick against which to examine a proposed sentence. What is important are the unifying principles which such sentences reveal and reflect: Barbaro v R; Zirilli v R [2014] HCA 2; (2014) 305 ALR 323 at [41]. 43 Thirdly, the presentation of sentences passed in the form of numerical tables and graphs is of limited use: Hili (supra) at [48]. This is because reference to the lengths of sentences passed says nothing about why the sentences were fixed as they were. 44 Consistent with such statements of principle, this Court has emphasised the need to adopt a careful approach when asked to utilise statistics: R v Nikolovska [2010] NSWCCA 153 at [117] per Kirby J, Beazley JA (as her Honour then was) and Johnson J agreeing. A similarly careful approach is required when the Court is asked to compare a sentence imposed in one case with a sentence imposed in another: RLS v R [2012] NSWCCA 236 at [132] per Bellew J, McClellan CJ at CL and Johnson J agreeing. The need to take care in each instance arises, in part, from the fundamental fact that there will inevitably be differences, both in terms of the objective circumstances of offending and the subjective circumstances of the offender, between one case and another."
19. The cases referred to by both the Crown and counsel for the applicant serve to illustrate these well-identified concerns. I am not persuaded that the cases cited provide any useful guide for what is an appropriate sentence for this offender.
20. The recent legislative history of s 66A of the Crimes Act is important to bear in mind. The legislative intent is clear from the upwards trend in setting the maximum potential penalties for this type of offending. As outlined in TO v R (2017) 265 A Crim R 191; [2017] NSWCCA 12 at [249] to [253] per Fagan J: "249 Up to 31 January 2003 s 66A provided for an offence of sexual intercourse with a child of under 10 years carrying a maximum sentence of 20 years. From 1 February 2003 that was increased to 25 years. From 1 January 2009 to 28 June 2015 the original form of the offence was located in subs (1) for which the maximum penalty remained at 25 years but an aggravated form of the offence was created in subs (2) with a maximum of life. Circumstances of aggravation included that the victim was under the authority of the offender, actual or threatened infliction of bodily harm, commission of the offence in company and a number of other factors. This was the form of the section under which the appellant was charged, on the basis of his position of authority as the complainant's stepfather. From 29 June 2015 the separate aggravated form of the offence was repealed. The original form has since then been retained in subs (1) but with a maximum penalty of life imprisonment, expressly subject to the Court's power under s 21 Crimes (Sentencing Procedure)Act 1999 (NSW) to impose a finite term of years. 250 Pursuant to ss 54A-54D of the Crimes (Sentencing Procedure) Act the standard non-parole period for the offence, including in its aggravated form as enacted between 1 January 2009 and 28 June 2015, has been 15 years at all times since standard non-parole periods were introduced. For the s 66B offence the maximum penalty was 25 years. No standard non-parole period was prescribed for these offences at the time they were committed. 251 The legislative developments referred to at [249] have followed a consistent trend upwards in setting the range of severity of punishment which the courts have been empowered to impose for sexual intercourse with very young children. This no doubt reflects increased community awareness of the lifelong harm done to the victims of such acts, universal abhorrence of this crime, alarm arising from publicity regarding its prevalence and corresponding legislative determination that heavier penalties should be available and be applied to achieve denunciation, general deterrence and protection of the community. 252 In fulfilling their duty to give effect to the will of the Legislature in this regard the courts have recognised significant variation in the degree of objective seriousness which may be exhibited from one instance of this crime to another. Any form of sexual intercourse with a child under 10 years is an appalling act but it may, for example, be much worse when accompanied by violence and induced fear or when it is part of a repetitive course of abuse. The crime may be more serious if the victim is of an age well below 10 years rather than just below. If the perpetrator is a close family member, for example the child's natural father, the offence may be objectively worse because of the greater damage that may be done to the child's sense of security. There are numerous other variables."
21. Whilst error has been found in her Honour's approach to the non-parole period in her sentencing here, it is clear that even post Muldrock, standard non-parole periods do have a potentially significant role particularly where there are, as here, limited positive mitigating factors. In RJA v R [2014] NSWCCA 89 at [23], R A Hulme J stated: "23 I accept the force of the respondent's submission that even after Muldrock the standard non-parole period, like the maximum penalty, prescribed for an offence remain important legislative guideposts in the assessment of sentence: see, for example, AB v R [2013] NSWCCA 273 at [87]; Koh v R [2013] NSWCCA 287 at [106]; and Muldrock itself at [27]. Where an offence is found to be in the middle of the range of objective seriousness the standard non-parole period may have greater significance: Filippou v R [2013] NSWCCA 92 at [116]. In R v Nguyen [2013] NSWCCA 195, a case where there was a finding of "mid-range offending", it was accepted (at [63]) that the standard non-parole period may be a more significant factor in sentencing where there is little operating in the offender's favour. But I am not persuaded that the present appellant can be said to have little operating in his favour. Findings of prior good character and a low probability of re-offending are not insignificant."
22. Her Honour's conclusion regarding concurrence and accumulation reflected a significant degree of concurrence, despite the offending taking place some years apart and involving different victims. I accept the submission made by the Crown in this appeal that this was an approach generous to the offender. I have allowed for an accumulation of 1 year in the proposed sentence.
23. The sentencing judge's finding about special circumstances appears on page 15 of the ROS: "I am asked to make a finding of special circumstances and I will do so because there will necessarily be a partial accumulation of the sentences to be imposed in respect of each victim. Two very little girls who were sexually assaulted years apart."
24. I accept the argument made by counsel for the applicant that there were some complexities with how the finding of special circumstances translated into the sentence her Honour gave. Her Honour observed that she had not in fact afforded the offender special circumstances in the way she had partially accumulated the sentence, because a non-parole period expiring in 2032 amounted to 81% of the total sentence, although a total non-parole period expiring in 2030 reflected 71% of the total sentence and could be said to reflect a finding of special circumstances.
25. The finding her Honour made about special circumstances [23] quoted in paragraph [68] above appears to be a reflection of the mathematical complications associated with an accumulated sentence, rather than an acceptance of the submission made on behalf of the offender that there would be a need for the offender to adjust back into the community after sentence and that after a lengthy sentence he would need a "longer period of adjustment under supervision". [24]
26. Either way, I adopt her Honour's conclusion that there are special circumstances and I have adjusted the non-parole period for count 3 to reflect that matter. The length of the total non-parole period that I propose reflects 73.6% of the total head sentence.
27. For count 1, I propose a non-parole period of 9 years commencing 5 August 2015 and expiring 4 August 2024, with a balance term of 3 years commencing 5 August 2024 and expiring 4 August 2027.
28. For count 3, I propose a non-parole period of 13 years, commencing 5 August 2016 and expiring 4 August 2029, with a balance term of 5 years commencing 5 August 2029 and expiring 4 August 2034.
29. I have allowed for an accumulation of 1 year.
30. The sentence I propose is therefore a total non-parole period of 14 years commencing 5 August 2015 and expiring 4 August 2029 with a balance term of 5 years expiring on 4 August 2034.
31. The applicant is eligible for release on parole on 4 August 2029.

Orders

1. I propose the following orders: 1. The applicant's appeal against sentence is allowed. 2. The sentence imposed by Judge English in the District Court on 23 March 2017 is set aside. 3. That the applicant be re-sentenced as followed: 1. Count 1: a non-parole period of 9 years commencing 5 August 2015 and expiring 4 August 2024, with a balance term of 3 years commencing 5 August 2024 and expiring 4 August 2027. 2. Count 3: a non-parole period of 13 years commencing 5 August 2016 and expiring 4 August 2029, with a balance term of 5 years commencing 5 August 2029 and expiring 4 August 2034. 1. The total effective sentence under the orders proposed will be a non-parole period of 14 years commencing 5 August 2015 and expiring 4 August 2029 with a balance term of 5 years expiring on 4 August 2034. 2. The earliest date upon which the applicant will be eligible for release on parole will be 4 August 2029.

Endnotes

1. ROS page 5.
2. ROS pages 5-6.
3. ROS page 6.
4. ROS page 2.
5. ROS pages 3-4.
6. ROS page 3.
7. ROS page 3.
8. ROS page 7.
9. Appeal Book pages 40-45.
10. ROS pages 7-8.
11. ROS page 15.
12. ROS page 15.
13. ROS pages 15-16.
14. ROS page 8.
15. ROS page 14.
16. ROS page 11.
17. ROS page 11.
18. ROS page 9.
19. ROS page 12.
20. ROS page 12.
21. ROS page 12.
22. Appeal Book page 14.
23. ROS page 15.
24. Proceedings on sentence at T9. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 August 2019