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(a) Aggravated dangerous driving (CC 2016/11783), contrary to s 7A(1) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT);

(b) Burglary (CC 2016/12673), contrary to s 311 of the Criminal Code 2002 (ACT);

(c) Damage property (CC 2016/11880), contrary to s 403 of the Criminal Code 2002 (ACT);

(d) Damage property (CC 2016/11881), contrary to s 403 of the Criminal Code 2002 (ACT);

(e) Damage property (CC 2016/12690), contrary to s 403 of the Criminal Code 2002 (ACT);

(f) Hindering police from lawful investigation by threatening another (CC 2016/12804), contrary to s 32(2)(c) of the Crimes Act 1900 (ACT);

(g) Using an offensive weapon likely to endanger life to prevent his lawful apprehension (CC 2016/11788), contrary to s 27(4)(b) of the Crimes Act 1900 (ACT); and

(h) Culpable driving causing grievous bodily harm (CC 2016/11828), contrary to s 29(4) of the Crimes Act 1900 (ACT).

6. The appellant was committed to the Supreme Court for sentence. In addition, pursuant to s 90B of the Magistrates Court Act 1930 (ACT), 11 related summary offences were transferred to the Supreme Court. These summary offences were:

(a) Failing to appear in accordance with a bail undertaking (CC 2016/11787), contrary to s 49 of the Bail Act 1992 (ACT);

(b) Using an unregistered vehicle (CC 2016/11779), contrary to s 18(1) of the Road Transport (Vehicle Registration) Act 1999 (ACT);

(c) Using an uninsured vehicle (CC 2016/11780), contrary to s 17(1) of the Road Transport (Third-Party Insurance) Act 2008 (ACT);

(d) Driving while disqualified (CC 2016/11781), contrary to s 32(1) of the Road Transport (Driver Licensing) Act 1999 (ACT);

(e) Failing to stop a vehicle for police (CC 2016/11782), contrary to s 5C of the Road Transport (Safety and Traffic Management) Act 1999 (ACT)

(f) Driving while disqualified (CC 2016/11829), contrary to s 32(1) of the Road Transport (Driver Licensing) Act 1999 (ACT);

(g) Using an unregistered vehicle (CC 2016/11830), contrary to s 18(1) of the Road Transport (Vehicle Registration) Act 1999 (ACT);

(h) Using an uninsured vehicle (CC 2016/11831), contrary to s 17(1) of the Road Transport (Third-Party Insurance) Act 2008 (ACT);

(i) Aggravated dangerous driving (CC 2016/11853), contrary to s 7A(1) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT);

(j) Resisting a public official (CC 2016/11854), contrary to s 361 of the Criminal Code 2002 (ACT); and

(k) Driving with a prescribed drug in his oral fluid (CC 2016/12413), contrary to s 20(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT).

7. Upon conviction, the appellant was in breach of five suspended sentences imposed by the Supreme Court on 13 May 2016. These suspended sentences were imposed in respect of the following offences:

(a) Theft (CC 2014/5181);

(b) Aggravated burglary (CC 2014/5180);

(c) Ride motor vehicle without consent (CC 2014/5177);

(d) Furious/reckless/dangerous driving (CC 2014/5176); and

(e) Driving while disqualified (CC 2016/5175).

8. On 23 February 2017, Mossop J imposed the following sentences:

(a) Aggravated burglary (CC 2014/5180): the appellant was sentenced to 5 months and 20 days’ imprisonment commencing on 8 October 2017 and ending on 27 March 2018. (b) Theft (CC 2014/5181): the appellant was sentenced to 4 months’ imprisonment commencing on 28 December 2017 and ending on 27 April 2018.

(c) Driving while disqualified (CC 2014/5175): the appellant was sentenced to 4 months’ imprisonment commencing on 28 January 2018 and ending on 27 May 2018.

(d) Furious/reckless/dangerous driving (CC 2014/5176): the appellant was sentenced to 4 months’ imprisonment commencing on 28 February 2018 and ending on 27 June 2018.

(e) Ride motor vehicle without consent (CC 2014/5177): the appellant was sentenced to 5 months’ imprisonment commencing on 28 April 2018 and ending on 27 September 2018.

(f) Hindering police from lawful investigation by threatening another (CC 2016/12804): the appellant was sentenced to 5 months’ imprisonment commencing 28 September 2018 and ending on 27 February 2019.

(g) Failing to appear in accordance with a bail undertaking (CC 2016/11787): the appellant was sentenced to 2 months’ imprisonment commencing on 28 February 2019 and ending on 27 April 2019;

(h) Burglary (CC 2016/12673): the appellant was sentenced to 15 months’ imprisonment commencing on 28 April 2019 and ending on 27 July 2020.

(i) Damage property (CC 2016/12690): the appellant was sentenced to 1 month imprisonment commencing on 28 April 2019 and ending on 27 May 2019.

(j) Aggravated dangerous driving (CC 2016/11783): the appellant was sentenced to 5 months’ imprisonment commencing on 28 April 2020 and ending on 27 September 2020. His Honour noted the automatic disqualification period of 12 months.

(k) Using an offensive weapon likely to endanger life to prevent his lawful apprehension (CC 2016/11788): the appellant was sentenced to 3 years’ imprisonment commencing on 28 April 2020 and ending on 27 April 2023.

(l) Damaging property (CC 2016/11880): the appellant was sentenced to 4 months’ imprisonment commencing on 28 April 2020 and ending on 27 August 2020.

(m) Damaging property (CC 2016/11881): the appellant was sentenced to 4 months’ imprisonment commencing on 28 April 2020 and ending on 27 August 2020.

(n) Using an uninsured vehicle (CC 2016/11780): the appellant was fined $425 and allowed 7 days to pay.

(o) Driving while disqualified (CC 2016/11781): the appellant was sentenced to 5 months’ imprisonment commencing on 28 April 2020 and ending on 27 September 2020. His Honour noted the automatic disqualification period of 24 months. (p) Failing to stop for police (CC 2016/11782): the appellant was sentenced to 2 months’ imprisonment commencing on 28 April 2020 and ending on 27 June 2020. His Honour noted the automatic disqualification period of 3 months.

(q) Using an unregistered vehicle (CC 2016/11779): the appellant was fined $425 and allowed 7 days to pay.

(r) Culpable driving causing grievous bodily harm (CC 2016/11828): the appellant was sentenced to 4 years’ imprisonment commencing on 28 October 2022 and ending on 27 October 2026. His Honour noted the automatic disqualification period of 24 months.

(s) Driving while disqualified (CC 2016/11829): the appellant was sentenced to 5 months’ imprisonment commencing on 28 October 2022 and ending on 27 March 2023. His Honour noted the automatic disqualification period of 24 months.

(t) Using an unregistered vehicle (CC 2016/11830): the appellant was fined $425 and allowed 7 days to pay.

(u) Using an uninsured vehicle (CC 2016/11831): the appellant was fined $425 and allowed 7 days to pay.

(v) Aggravated dangerous driving (CC 2016/11853): the appellant was sentenced to 4 months’ imprisonment commencing on 28 October 2022 and ending on 27 February 2023. His Honour noted the automatic disqualification period of 12 months.

(w) Resisting a public official (CC 2016/11854): the appellant was sentenced to 1 month imprisonment commencing on 28 October 2022 and ending on 27 November 2022.

(x) Driving with a prescribed drug in his oral fluid (CC 2016/12413): the appellant was fined $225 and allowed 7 days to pay and disqualified from driving for 12 months.

9. The total sentence imposed by his Honour was nine years and 20 days. Five months of this period was concurrent with the sentences that had been imposed in the Magistrates Court. It was necessary for Mossop J to reset the non-parole period. His Honour reset the non-parole period at five years and nine months, making the appellant eligible for release on 7 August 2022.

10. The appellant is no stranger to the court system. His numerous visits have included one matter in this Court (Williams v The Queen [2016] ACTCA 15). At [10] of its judgment, the Court usefully described the appellant’s (then) criminal history:

…The appellant had previously been convicted of numerous offences in both the Territory and New South Wales, including: common assault (numerous convictions); assault occasioning actual bodily harm (multiple convictions); maliciously inflict grievous bodily harm; trespass on premises; negligent driving; drive while licence suspended; aggravated burglary – intent to commit theft; dishonestly taking a motor vehicle without consent; driving while disqualified (multiple convictions); using unregistered/uninsured motor vehicle; possess drug of dependence; possess prohibited drug; dangerous driving; not stopping vehicle if signalled by police; using unregistered vehicle; larceny; receiving stolen property; goods in custody suspected of being stolen; possessing housebreaking implements; custody of an offensive implement in a public place; resisting or hindering police; and, destroying or damaging property.

11. The offences which are the subject of this appeal have obviously added to this extensive record.

12. The facts behind the eight primary offences are set out in the judgment and in the Crown Statement of Facts, which was tendered during the sentencing hearing. It is not necessary to repeat the facts in detail here. However, a short summary of the eight indictable offences is appropriate.

13. On 7 October 2016, the police attended the appellant’s house to execute a search warrant. He was not at home at the time but contacted police after he was informed of their presence. In the course of the conversation, the appellant threatened to harm a woman who was with him.

14. On 1 November 2016, the appellant broke into commercial premises in Fyshwick.

15. On 6 November 2016, while police were searching for the appellant, he drove away from a residence. In doing so, he collided with a police vehicle. In his getaway, he drove directly at a policeman on a motorcycle. The officer took evasive action and jumped off the motorcycle. The appellant’s vehicle collided with the motorcycle. In fleeing the scene, the appellant drove in a dangerous manner through an area in which there were a number of pedestrians.

16. On 8 November 2016, the police again attempted to arrest the appellant, who was seated in his motor vehicle. Once again, there was a collision with a police vehicle. A police officer was struck by the appellant’s vehicle as he fled the scene. The officer suffered a fracture in his lower back, a sprain to his left ankle, damage to a finger and his right hand and also a number of cuts and bruises. The back injury was still affecting him at the time of the hearing.

17. His Honour had access to a Pre-Sentence Report which gave details of the appellant’s subjective circumstances. These are set out in the judgment at [33] and onwards. His Honour also described the appellant’s mental health history and his use of illicit drugs.

18. The number of offences involved, combined with the need to deal with the breaches of the suspended sentences, created a complex task for his Honour. As far as the breaches were concerned, his Honour thought it appropriate to impose the sentences that had previously been imposed in the Magistrates Court. His Honour was plainly alive to the principles of totality. He was also careful to take into account the pleas of guilty and apply a discount to each of the respective sentences.

19. The discounts applied will be returned to below.

20. As this Court understands it, the appellant’s primary concern is that the overall sentence, and the non-parole period of five years and nine months, is simply too long.

21. The principles relating to whether or not a sentence, or an accumulation of sentences, results in a manifestly excessive sentence have been repeated in many Australian cases.

22. Notably, in the appellant’s earlier case, the Court said this at [37]:

The principles that apply in relation to the appeal ground that a sentence is manifestly excessive are well settled. They were recently summarised by the Court in Dalton v The Queen [2015] ACTCA 48 at [18] in the following terms: The principles that apply in relation to the appeal ground that a sentence is manifestly excessive are well settled. They include the following: - Manifest excess is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the primary Judge: Dinsdale v The Queen (2000) 202 CLR 321 (Dinsdale). - The relevant test is whether the sentence is unreasonable or plainly unjust: House v The King (1936) 55 CLR 499; Dinsdale at [6]; Melham v The Queen [2011] NSWCCA 121 (Melham). A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long is a sentence which is erroneous in point of principle because it has not been imposed according to the rules of reason or justice: Barbaro v The Queen; Zirilli v The Queen (2014) 305 ALR 323 at [61]. - In approaching the task of establishing that the sentence is unreasonable or plainly unjust, the Court does so within the context that there is no one single correct sentence, but rather that the process of sentencing involves due allowance for differences of judicial opinion at first instance whilst still acting in accordance with principles: Melham at [85]. - It is not enough to establish that a sentence is manifestly excessive that the members of the appeal court would have imposed a different sentence: Markarian v The Queen (2005) 228 CLR 357 at [28]; R v Abbott (2007) 170 A Crim R 306 at 309 [14]; Balthazaar v The Queen [2012] ACTCA 26 at [61].

23. More recently, in CX v The Queen [2017] ACTCA 37 (‘CX’) the Court made the following observations at [25]:

A claim of manifest excess or manifest inadequacy calls into question what is a quintessentially discretionary decision, preservation of which is of vital importance to the administration of criminal justice: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15]. Whether a sentence is “manifestly excessive” must be considered in the context of the legislated maximum penalty that applies to the “worst possible case” and provides a “yardstick” for assessing the appropriate penalty in a particular case; the objective seriousness of the particular offence and the subjective circumstances of the offender are also critical to deciding whether a sentence lies within the available range: Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 at [20]–[23]. See also Dalton v The Queen [2015] ACTCA 48 at [18].

24. In Samani v The Queen [2017] ACTCA 23 at [15] – [16], the Court provided this summary:

In Zdravokovic v The Queen [2016] ACTCA 53, the ACT Court of Appeal, at paragraphs [51] and [52], made the following remarks about identifying manifestly excessive sentences: A sentence appeal alleging manifest excess calls into question what is a quintessentially discretionary decision. Error may be inferred if the sentence is “manifestly excessive” in the sense that it is “unreasonable or plainly unjust”: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 per Gleeson CJ and Hayne J at [6]. But “manifest excess” is not established just because the appeal court would have imposed a more lenient sentence: R v Ellis (1993) 68 A Crim R 449 at 461 per Hunt CJ at CL; Balthazaar v The Queen [2012] ACTCA 26 at [61]. When deciding whether a sentence is “manifestly excessive”, the legislated maximum penalty that applies to the “worst possible case” must be considered; it provides a “yardstick” for assessing the appropriate penalty: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [31]. The objective seriousness of the particular offence, the subjective circumstances of the offender, relevant statutory provisions (including the sentencing purposes in s 7 of the Sentencing Act) and any sentencing pattern applicable to the offence type are also important considerations when deciding whether a sentence lies within the available range. In R v AB [2017] NSWCCA 88, the New South Wales Court of Criminal Appeal, at paragraphs [57] and [58], described the principles in this way: The principles on which an appellate court will determine that a sentence is manifestly excessive or inadequate are well-established. An appellate court is not entitled to interfere with the exercise of the sentencing discretion merely because it would have arrived at a different result: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]. For a sentence to be set aside as being manifestly inadequate, it must be unreasonable or plainly unjust after taking all relevant matters into account: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6], [22]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [58]-[60].

25. In Barrett v The Queen [2016] ACTCA 38, the Court made these practical observations at [32] – [34]:

When deciding whether a sentence is “manifestly excessive”, the legislated maximum penalty that applies to the “worst possible case” must be considered; it provides a “yardstick” for assessing the appropriate penalty: Markarian v The Queen (2005) 228 CLR 357 at [31]. The objective seriousness of the particular offence, the subjective circumstances of the offender, relevant statutory provisions (including ss 7 and 33 of the Crimes (Sentencing) Act 2005 (ACT)) and any sentencing pattern applicable to the offence type are also important considerations when deciding whether a sentence lies within the available range. It is for the appellant to satisfy the Court that, individually and/or collectively, the sentences imposed by the sentencing judge were unreasonable, plainly unjust or outside the available sentencing range.

26. Turning to totality, the Court in CX continued at [28]:

Having imposed sentences that were appropriate for the individual offences, the primary judge had to accumulate the sentences to achieve a total sentence that appropriately reflected the total criminality. Questions of concurrency and accumulation are discretionary matters for a sentencing judge and there may be a variety of means to achieve a total sentence that appropriately reflects the totality of the criminal behaviour. As questions of accumulation are intuitive, the level of transparency that can be provided by the sentencing judge is limited.

27. In O’Brien v The Queen [2015] ACTCA 47 the Court summarised the principles applicable to sentencing for multiple offences at [26]:

The relevant principles in relation to the fixing of sentences for multiple offences and the consideration of totality are also well settled. They include the following: - When sentencing for multiple offences, the sentencing judge must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Pearce v The Queen (1998) 194 CLR 610 at 623-624. - The principle of totality requires the sentencing judge to review the aggregate sentence, look at the totality of the criminal behaviour and consider whether the aggregate is “just and appropriate” for all the offences: Mill at 63. - A countervailing factor is the need to ensure that there does not emerge a perception that there is no difference between a person who commits one or two offences and a person who commits six or seven offences: R v Wheeler [2000] NSWCCA 34 at [36]. The Court must avoid any suggestion that what is being offered is a discount for multiple offending: R v Knight (2005) 155 A Crim R 252 at [112]; R v MAK (2006) 167 A Crim R 159 at [18]. - Where offences are discrete and independent, the sentence for one offence cannot comprehend and reflect the criminality of the other. In such circumstances, the sentences should be at least partly cumulative; otherwise there is a risk that the total sentence will not reflect the total criminality of the two offences. Where, however, the offences are not separate and distinct, but are part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both, in which case the sentences should be concurrent, or at least partly concurrent: Cahyadi v The Queen (2007) 168 A Crim R 41 at [27].

28. A prison sentence of nine years and 20 days is a long sentence. A non-parole period of five years and nine months is also lengthy. Sentences of this magnitude can only be justified by significant criminal conduct.

29. Although some of the offences, particularly the driving offences, may be viewed as less serious criminal conduct, the difficulty faced by this appellant is not that any one or more of the less serious offences attracted an overtly excessive sentence. The overall length of the head sentence arises because of the number of offences concerned and the need to achieve at least a degree of accumulation to recognise that the offences are separate.

30. Most of the sentences of imprisonment were five months or less. There were only three that were longer. There was a sentence of 15 months for burglary, a sentence of three years for use of an offensive weapon likely to endanger life to prevent lawful apprehension and a sentence of four years for culpable driving causing grievous bodily harm.

31. The facts behind the burglary were that in the early hours of 1 November 2016 the appellant broke into commercial premises in Fyshwick. He smashed a glass window, “moved furniture and miscellaneous equipment around, searched all drawers and cupboards within the office area, and an interior glass door was smashed” (Statement of Facts, [26]).

32. His Honour said this about the sentence for the burglary, at [52]:

The maximum penalty for the offence of burglary, contrary to s 311 of the Criminal Code 2002 (ACT) is 14 years’ imprisonment, a fine of $210,000 or both. The circumstances of this offence are in the low-to-mid range of objective seriousness. Although this is the first conviction of the offender for this offence, his previous offending conduct included an aggravated burglary in 2014 for which the Court of Appeal resentenced him to one year and eight months’ imprisonment which was suspended after one year and two months. This is one of the breach matters which I have dealt with above. He also committed an aggravated burglary in 2011, for which he was sentenced to a period of 12 months’ imprisonment, suspended after six months. The appropriate sentence for this offence is 18 months, which I will reduce to 15 months on account of the plea of guilty.

33. It is immediately apparent that his Honour has taken account of the significant maximum punishment for the offence and imposed a sentence consistent with his assessment of the objective seriousness of the burglary. His Honour’s observation that this was the first conviction for this particular offence is perhaps generous when considering that the appellant had previous convictions for aggravated burglary and, moreover, had breached the terms of the sentence previously imposed.

34. Having arrived at a sentence of 18 months, his Honour then reduced it to 15 months to take account of the plea of guilty. A sentence of 18 months, against the background of the maximum sentence, the facts of the offence and the appellant’s criminal history, could not be said to be “unreasonable, plainly unjust or outside the available sentencing range”.

35. The offensive weapon charge arose from the appellant trying to evade the police on 6 November 2016. He firstly reversed into a marked police vehicle. He then headed for the roadway. The Statement of Facts continues, at [38]:

The offender continued reversing his vehicle towards the roadway before making a deliberate turn to aim his vehicle directly into the path of a fully uniformed police officer on a fully marked Yamaha police motorcycle. The police motorcyclist, fearing for his safety, took evasive action and disembarked from his motorcycle. The officer was still connected to his motorcycle via the radio cable attached to his helmet when the offender rammed into the police motorcycle.

36. In fixing the sentence for this offence, his Honour said at [55]:

The maximum penalty for the offence of using an offensive weapon likely to endanger human life to prevent his lawful apprehension contrary to s 27(4)(b) of the Crimes Act is 15 years’ imprisonment. The definition of weapon in the Crimes Act is sufficiently broad to encompass the use of a vehicle in this manner. The circumstances of this offence are aggravated by the fact that the vehicle was driven at a police officer and by the fact that in the circumstances the vehicle was an extremely dangerous weapon. I consider the offending conduct to be in the mid-to-upper range of objective seriousness for an offence of this type. The appropriate penalty for this offence is imprisonment for a period of three and a half years, reduced to a period of three years on account of the plea of guilty.

37. Once again, his Honour’s approach includes an appropriate comparison with the maximum penalty, an unimpeachable statement of the objective severity of the offence and a discount for the plea of guilty. This offence involved a police officer who, in the course of his duty, was subjected to a very real threat of serious injury. On one approach, the sentence might be regarded as lenient.

38. The sentence for the culpable driving offence attracted the longest term of imprisonment, namely four years. Once again, the facts involved the appellant driving a vehicle to escape from police. A Sergeant Barrett ran towards the appellant’s then stationary vehicle when, as related in the Statement of Facts, the following occurred:

…the offender accelerated forward striking sergeant Barrett, causing the officer to fall onto the bonnet of the offender’s vehicle before landing on the ground. The offender has then continued to accelerate his vehicle forward narrowly missing striking Sgt Barrett a further time.

39. Sergeant Barrett sustained fractures to his spine and was unable to work for some time. In a Victim Impact Statement, he described the ongoing effects of the injuries which extended to his family and social relationships as well as to financial loss. His Honour made these observations when fixing the term, at [62] – [63]:

The maximum penalty for culpable driving causing grievous bodily harm contrary to s 29(4) of the Crimes Act is 10 years’ imprisonment. In addition, an automatic licence disqualification period of 24 months or longer period, if the court so orders, applies to this offence. The conduct of the offender was extraordinarily aggressive and dangerous. That is vividly illustrated by the aerial video that was tendered. The injuries to Sergeant Barrett were significant but he could easily have suffered injuries that were fatal, having regard to the manner in which he was driven at. The offence is aggravated by the fact that it occurred during the course of an attempt to escape from police in circumstances where it was clear that the police required him to stop. The offence is also aggravated by the fact that the offender continued driving after Sergeant Barrett had been thrown from the bonnet of the vehicle. I consider this offence to be in the mid-to-upper range of objective seriousness for the offence. The offender’s moral culpability was extremely high and clearly a significant penalty involving a strong element of deterrence is warranted. The appropriate penalty is imprisonment for a period of four and a half years reduced to a period of four years on account of the plea of guilty. I will note the automatic disqualification period of 24 months.

40. This is another offence involving a police officer doing his duty. The distinction here is that this officer was actually struck and seriously injured by the appellant’s conduct. The Court cannot see any basis upon which a sentence of four years’ imprisonment on these facts can be seen as outside an appropriate range.

41. There is, however, a mathematical difficulty arising from the sentence for this offence. The original sentence was four and a half years (at [53] of the judgment) which was reduced to four years after the discount for the plea of guilty. His Honour had earlier said at [6], that he would apply a discount of “approximately 15%”. Four years and six months less 15% should produce a deduction of just over eight months. Notwithstanding that his Honour used the word “approximately”, it appears that the full extent of the intended discount has not been applied. The actual discount applied is closer to 11%. Against the relevant background, a 4% difference does not fall within the bounds of “approximately” 15%.

42. Although the Crown accepted that the discount was not as envisaged, it submitted that there should not be any change because the appellant already had the benefit of “significant leniency”, so that no injustice flowed from the error. The Court disagrees with this submission. A specific error has been identified. It no doubt arose from a simple mistake in calculation.

43. His Honour intended that there should be a 15% discount and it should be applied. A consequent adjustment to the sentence will need to be made. The Court’s intervention on this point should not be seen as an intervention in the sentencing judge’s discretion but rather as a simple correction, akin to the application of the ‘slip rule’.

44. As can be seen from the detail of the sentences, the 48 month sentence occurs at the end of the sentencing structure. Accordingly, a reduction of two months will only affect the head sentence and not have any impact upon concurrency or accumulation. The new end date will be 27 August 2026.

45. Having reduced the head sentence by two months, the Court considers it appropriate to also reduce the non-parole period by a similar period. Accordingly, the non-parole period will expire on 7 June 2022.

46. On the topic of discounts, the Court, on 13 February 2018, asked the respondent to provide further submissions on the possibility that a 15% discount was erroneous in that it should have been greater, perhaps in the region of 25%.

47. There is no table of set discounts to be applied in any particular set of circumstances. The extent of a discount is a discretionary consideration. Nevertheless, it is important that persons considering a plea of guilty at an early opportunity can expect that their plea will attract a significant discount. Such persons should also be confident that they will be dealt with in accordance with the principle of equality before the law. They are entitled to expect that, if other offenders plead guilty and receive a particular discount on their sentence they might, without more, expect a similar discount.

48. As the respondent conceded, a discount of 25% might be considered a ‘normal’ result for an early plea, which almost inevitably carries with it significant utilitarian value. However, the respondent pointed out a difference in this case which it submitted took it out of a ‘normal’ classification.

49. The trial judge accepted that the appellant had entered his plea at the earliest reasonable opportunity. Although any trial would not have been particularly complex, it would no doubt have been fairly lengthy having regard to the number of witnesses that would have been required. In addition, Sergeant Barrett, who had suffered serious injuries, did not need to give evidence. His Honour remarked at [5]:

In the circumstances, 7 December 2016 was the earliest date at which he could reasonably be expected to have entered a plea. Although it was not the first possible date for most of the charges, it was the earliest reasonable date, having regard to the seriousness of the offences and the failure to bring all of the charges on the first or second occasion upon which he appeared. Applying the provisions of s 35 of the Crimes (Sentencing) Act 2005 (ACT), I have applied a discount of approximately 15 per cent on account of the plea of guilty. I will indicate the actual discount in relation to each of the sentences later in these reasons. In discounting the sentence by reason of the early guilty pleas, I have taken into account the strength of the prosecution case against the offender, having regard to the fact that these offences were ones in relation to which there was no attempt to avoid detection and the number of witnesses and other evidence, including video evidence that was available.

50. At first sight, the above passage would suggest that his Honour had not stated any specific reason for not allowing a larger discount. However, as the respondent pointed out, his Honour did refer to s 35 of the Crimes (Sentencing) Act 2005 and his remarks were made against the background of the discussion that had taken place during the sentencing hearing.

51. It is first necessary to set out s 35:

S 35 Reduction of sentence – guilty plea (1) This section applies if – (a) an offender pleads guilty to an offence; and (b) based on the information currently available to the court, the court considers that there is a real likelihood that it will sentence the offender to imprisonment. (2) In deciding how the offender should be sentenced (if at all) for the offence, the court must consider the following matters: (a) the fact that the offender pleaded guilty; (b) when the offender pleaded guilty, or indicated an intention to plead guilty; (c) whether the guilty plea was related to negotiations between the prosecution and defence about the charge to which the offender pleaded guilty; (d) the seriousness of the offence; (e) the effect of the offence on the victims of the offence, the victims’ families and anyone else who may make a victim impact statement. Note For who may make a victim impact statement, see s 49. (3) The court may impose a lesser penalty (including a shorter nonparole period) on the offender than it would otherwise have imposed if the offender had not pleaded guilty to the offence. (4) However, in deciding any lesser penalty, the court must not make any significant reduction for the fact that the offender pleaded guilty if, based on established facts, the court considers that the prosecution’s case for the offence was overwhelmingly strong. (5) For subsection (2)(b), the earlier in the proceeding that the guilty plea is made, or indication is given that it will be made, the lesser the penalty the court may impose. (6) A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence. (7) In this section: available documents, in relation to the offence, means any of the following: (a) any written statements or admissions made for use as evidence at a trial that would have been admissible as evidence at the trial for the offence; (b) depositions taken at any committal proceeding for the offence; (c) any written statements or admissions used as evidence in any committal proceeding for the offence; (d) any other relevant written documents. defence means – (a) the offender; or (b) any lawyer representing the offender. established facts means facts established by – (a) evidence given at the trial; or (b) available documents; or (c) admissions by the offender; or (d) submissions made by the prosecution or defence.

52. This section was recently examined in this Court in Cranfield v The Queen [2018] ACTCA 3. The Court said at [38]:

The context and terms of s 35 (2) of the Crimes (Sentencing) Act 2005 (ACT) support the proposition that the primary policy consideration that determines the degree of discount for a plea of guilty is the utilitarian value of the plea, which will be largely determined by the timing of the plea. If offenders are to have the incentive to enter a plea of guilty, carrying with it all of the benefits that flow to victims, witnesses and court resources, they should have a reasonable expectation that a plea will be productive of a meaningful reduction in their sentence. However, a ‘normal’ discount may be inappropriate having regard to the other considerations in s 35(2) or other circumstances, including those identified by Howie J in Borkowski. (R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1)

53. Turning to s 35(4), this subsection may be seen as a fetter on the general discretion that the court exercises in sentencing an offender. When the subsection is applicable, it would generally be accepted that the sentencing judge would specifically refer to it, if it was productive of a decrease in the discount that would normally be applied. When one examines the above quoted passage from his Honour’s judgment concerning the discount that does not seem to have been the case here.

54. His Honour’s comments, however, must be seen against the background of what occurred during the hearing. These passages from the transcript are important:

[Counsel for the appellant]…Finally, your Honour, I would ask you to take into account that he did plead guilty at, if not the earliest, the relatively earliest opportunities. Certainly the evidence against him in respect to some of the offences is particularly strong but, nonetheless, I would ask your Honour to take into account the utility of the plea as an expression of a willingness to assist the administration of justice by resolving the matter relatively quickly and also as an indication of remorse… (T 12.27 – T 12.32) … [Counsel for the Crown]: Yes, that’s correct. Now, under subsection 35(2) of the Crimes (Sentencing) Act as well, the seriousness of each offence and the effects on the victim must also be taken into account when assessing the value of the offender’s pleas and in your Honour deciding any lesser penalty to impose because of the pleas, subsection 35(4) prohibits the making of any significant reduction if the court considers the Crown’s case for the offence was overwhelmingly strong…

55. The above passages provide the context to his Honour’s comments about the discount and reveal that his Honour was proceeding on the basis that the Crown case fell within subsection (4). There was certainly no demurrer expressed by counsel for the appellant in response to the Crown’s statement, nor did he propose any specific discount which would suggest disagreement with the Crown’s characterisation of the case as “overwhelming”.

56. This case perhaps provides a salutary lesson to persons advising clients on pleas of guilty that a 20% or 25% discount for an early plea in the Magistrates Court might not be forthcoming if the Crown’s position is that the offender is facing a case that falls within the bounds of s 35(4). An enquiry of the Crown could be in order.

57. It also highlights the need for judges to clearly address any specific submission that the prosecution case is “overwhelmingly strong” within the meaning of s 35(4) so that offenders may understand why they did not receive a ‘normal’ discount for their plea of guilty.

58. Turning now to the head sentence, his Honour made the following comments about his approach to concurrency and accumulation at [70] – [72]:

I have already indicated that the penalties for the offences committed on 1 November should be concurrent with each other. While in the absence of questions of totality, it might have been appropriate to make the sentences for offences committed on each of the other relevant days partially cumulative, I consider that having regard to questions of totality, the sentences for the offences committed on each separate day should be wholly concurrent with each other. That would result in total head sentences that could be summarised as follows: (a) the existing Magistrates Court sentence of 16 months; (b) the reimposed suspended sentence of sentences of 11 months and 20 days; (c) the 24 October offence is two months; (d) the 7 October offence is five months; (e) the 1 November offence is 15 months; (f) the 6 November offence is three years; (g) the 8 November offence is four years. If these groups of offences were cumulative upon each other, the total sentence would be 11 years and one month. In my view, an element of concurrency should be introduced so as to reduce the totality of the sentence to reflect the overall criminality of the courses of conduct for which I am sentencing the offender today and the relationship between the offences on 1, 6 and 8 November 2016. I will therefore make the sentences for the offences on 6 November 2016 concurrent to the extent of three months with the sentences for the offences on 1 November 2016. I will also make the sentences for the offences on 8 November 2016 concurrent to the extent of six months with the sentences for the offences on 6 November 2016. Finally, I consider, having regard to the relationship between the drive whilst disqualified offences, the subject of the sentences in the Magistrates Court and the two additional drive whilst disqualified offences, there should be a period of five months concurrency as between the overall sentence that I impose today and the sentence imposed by the Magistrates Court. Having regard to the chronological manner in which the sentences will be imposed, that will be achieved by introducing a degree of concurrency between the reimposed sentences resulting from the breach of the Good Behaviour Order and the sentence of the Magistrates Court. This has the overall effect of reducing the total head sentence, including that of the Magistrates Court, by a period of nine months which brings it to a period of nine years, 11 months and 20 days.

59. His Honour obviously gave significant consideration to the principles of totality against the background of the number of offences that he was dealing with. In addition, he rejected his initial approach, which produced a head sentence of 11 years and one month. His Honour recognised that a sentence of this length would offend the principles of totality and so he introduced a greater degree of concurrency to produce the final result.

60. It is evident from cases like CX that there is no formula for concurrency and accumulation; rather, it is within the discretion of the sentencing judge to do his or her best to achieve a just outcome. In Barrett the Court said, at [48]:

When sentencing for multiple offences, the sentencing judge must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Pearce v The Queen (1998) 194 CLR 610 at 623–624. There is no single correct approach to the structuring of multiple sentences, and there may be a variety of acceptable ways in which to implement the totality principle in a particular sentencing exercise: R v TW (2011) 6 ACTLR 18 at [83] per Penfold J.

61. When one adds to this discretion the need to take into account the appellant’s previous criminal record, it becomes apparent that, in this case, the overall result, while stern, cannot be seen as manifestly excessive.

62. The Court will make orders to correct the mathematical error identified above. The appeal is otherwise dismissed.

63. The Court makes the following orders:

(a) The sentence in respect of culpable driving causing grievous bodily harm (CC 2016/11828) is reduced from 48 months to 46 months, commencing on 28 October 2022 and ending on 27 August 2026.

(b) The head sentence is amended to expire on 27 August 2026.

(c) The non-parole period is set to expire on 7 June 2022.

(d) The appeal is otherwise dismissed.

I certify that the preceding sixty-three [63] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Chief Justice Murrell, Justice Burns and Justice Elkaim.

Associate:

Date: 27 February 2018