Sentence Reduced for Administering Intoxicating Substance and Sexual Assault

The Court of Criminal Appeal reduced sentences for administering an intoxicating substance and aggravated sexual assault, finding the original sentences imposed by the District Court to be excessive and not in line with the severity of the offences.

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: [NAME_1] v R [2012] NSWCCA 228 Hearing dates: 12 October 2012 Decision date: 01 November 2012 Before: Hoeben JA at [1] Johnson J at [2] [NAME_2] at [3] Decision: (1) Leave to appeal be granted. (2) Appeal allowed. (3) Set aside each of the sentences imposed by the District Court on 11.03.11 and, in lieu thereof, sentence the applicant as follows: (a) for the offence under s 38 of the Crimes Act 1900 to a fixed term of imprisonment of 5 years commencing 11.02.10 and expiring 10.02.15; (b) for the offence under s 61J(1) of the Crimes Act 1900 comprising count 4 on the indictment to a term of imprisonment comprised of a non-parole period of 6 years commencing 11.02.12 and expiring 10.02.18 with a balance of term of 2 years commencing 11.02.18 and expiring on 10.02.20; (c) for the offence under s 61J(1) of the Crimes Act 1900 comprising count 2 on the indictment to a term of imprisonment comprised of a non-parole period of 5 years commencing 11.02.13 and expiring 10.02.18 with a balance of term of 3 years commencing 11.02.18 and expiring on 10.02.21. Catchwords: CRIMINAL LAW - sentencing - application for leave to appeal - administering an intoxicating substance - aggravated sexual intercourse without consent - taking into account a fact not found beyond reasonable doubt - whether [NAME_3] error - whether instinctive synthesis approach adopted - whether manifestly excessive - cumulation and concurrency of sentences for offences arising out of a single incident. Legislation Cited: - Crimes Act 1900 - s 38, s 61J - Crimes (Sentencing Procedure) Act 1999 - Div 1A Pt 4, s 44(2) - Criminal Appeal Act 1912 - s 6(3) Cases Cited: - Butler v R [2012] NSWCCA 23 - Markarian v R [2005] HCA 25; 228 CLR 357 - [NAME_3] v R [2011] HCA 39; 244 CLR 120 - R v [NAME_3] [2010] NSWCCA 106 - R v Street [2005] NSWCCA 139 - R v [NAME_4] [2004] NSWCCA 131; 60 NSWLR 168 - Ruttley v R [2010] NSWCCA 118 Category: Principal judgment Parties: [NAME_5] (Applicant) Crown (Respondent) Representation: Counsel: [redacted] [NAME_8] (Respondent) Solicitors: [redacted] [NAME_12] (Respondent) File Number(s): 2009/039737 Decision under appeal Jurisdiction: 9101 Date of Decision: 2011-03-11 00:00:00 Before: Sorby DCJ

Judgment 1HOEBEN JA: I agree with [NAME_2] and the orders which he proposes. 2JOHNSON J: I agree with [NAME_2]. 3BEECH-[NAME_2] J: This is an application for leave to appeal from a sentence imposed by the District Court. 4On 28 June 2011 a [NAME_13] found the applicant guilty of counts 1, 2 and 4 of a five count indictment. Count 1 charged the applicant with an offence under s 38 of the Crimes Act 1900 of administering to [NAME_14] an intoxicating substance, namely Alprazolam, with the intention of enabling him to commit an indictable offence, namely sexual assault. 5Count 2 charged the applicant with an offence under s 61J(1) of the Crimes Act of having sexual intercourse with [NAME_14] without her consent and knowing that she was not consenting in circumstances of aggravation, namely that she was a person under the age of sixteen years. [NAME_14] was fourteen years old. 6Count 4 charged the applicant with another offence under s 61J(1). As I will explain, it involved the same [NAME_15] and arose out of the same circumstances. 7Counts 3 and 5 of the indictment were in the alternative to counts 2 and 4. They need not be considered further. 8In respect of count 1 [NAME_16] sentenced the applicant to imprisonment for a period of seven years commencing 11 February 2010 and expiring 10 February 2017. In respect of count 2, the applicant was sentenced to a term of imprisonment of ten years consisting of a non-parole period of seven years and six months commencing on 11 February 2013 and expiring on 10 August 2020 with a balance of term of two years and six months. In respect of count 4, the applicant was sentenced to a term of imprisonment of twelve years comprised of a non-parole period of eight years commencing 11 February 2014 and expiring on 10 February 2022 and a balance of term of four years. 9The combined effect of the three sentences was that the applicant received an accumulated non-parole period of twelve years commencing 11 February 2010 and expiring 10 February 2022 and a balance of term of four years expiring on 10 February 2026.

The offences 10The following description of the events and circumstances surrounding the offence is taken from [NAME_16]'s judgment. Subject to one matter which is the subject of ground 3 and to which I will return, there was no dispute concerning the facts. 11After finishing school on 4 November 2008 [NAME_14] went to [ADDRESS] to meet up with some friends. She arrived sometime between 4pm and 6pm. After meeting her friends, she consumed some wine. At approximately 9.30pm she and a friend went to a [NAME_17]. While outside, she became involved in an argument between a [NAME_18] man and a [NAME_19], neither of whom [NAME_14] knew. A scuffle occurred and one or other or both of them struck [NAME_14]. 12At this point the applicant (then aged thirty-four years) who was also near the [ADDRESS], intervened. He did not know [NAME_14]. He pulled the [NAME_18] man from [NAME_14] and fought with him. 13After the fight ended, [NAME_14] and the applicant began to talk. They decided they would look for the male and [NAME_20] involved in the fight, but were unsuccessful. They sat down near the wharf and continued talking and consuming wine. At some point there was a discussion about the pill "Xanax" (Aprazolam) and the applicant offered her a tablet. According to [NAME_16], the applicant told [NAME_14] words to the effect that it would "get her more aggravated for a fight". [NAME_14] consumed half a tablet. As she felt it was not having any effect she consumed the remainder. Some time later she consumed another tablet provided by the applicant. She continued to consume wine. The applicant topped up [NAME_14]'s drink about four or five times during the evening. There was a dispute about whether the applicant had surreptitiously slipped [NAME_14] a further Xanax tablet into her drink, to which I will return. The provision of the Xanax tablets to the applicant was the conduct the subject of count 1 on the indictment. 14At some point the applicant started to feel dizzy. She left the group and located a bathroom. On her [NAME_4] back from the bathroom she walked into a [NAME_17] and drank some water. She returned to where she was last seated but could not find her friends or the applicant. By this time it was past 11.30pm. 15The [NAME_15] then walked towards the bus stop and saw the applicant. The applicant asked [NAME_14] to go back to his place. He told her that he had "pot and pills back at his house". They hailed a taxi. Shortly after arriving at the applicant's home [NAME_14] passed out on a couch. 16The [NAME_15]'s next recollection was waking up naked with the applicant in his bed. She had no recollection of how she came to be in the bedroom or how her clothes were removed. She recalled waking up three or four times during the night but could not recall the exact sequence of events. 17On one occasion she woke to find the applicant performing cunnilingus upon her. This conduct constituted count 2 of the indictment. 18She drifted back to sleep and later awoke to find the applicant on top of her with his penis in her vagina. This conduct constituted count 4 of the indictment. She also recalls waking up at one point when [NAME_21] was licking her left breast and another when he was kissing her on the mouth. 19According to [NAME_16], [NAME_14] described "these episodes as waking up and then falling back to sleep again, as if she was passing out". [NAME_16] said that [NAME_14] "felt that she was unable to move or speak" and noted that she had stated in her interview "I was too out of it, and I couldn't really say, like, anything". 20The [NAME_15] woke up in the afternoon of the following day still naked and in the applicant's bed. She could not find her clothes or mobile telephone. The applicant gave her some clothes. She dressed and left. She took the Xanax bottle, which she later gave to the police. She walked to Manly wharf. Eventually she made a telephone call to her father from a public phone box. He collected her. He had been attempting to contact her since the previous evening. According to [NAME_16], her father described [NAME_14] as affected by "something or other". Her speech was slurred. Although he could not smell alcohol, he "perceived that there was something 'wrong' with her". 21When she arrived home [NAME_14] went straight to bed. She slept the whole night and woke up the next morning. That morning her sister observed that [NAME_14] looked as if she had been crying. She asked [NAME_14] why she was upset and [NAME_14] told her what had happened the night before. They contacted a youth worker and a complaint was made to the police. A limited examination was carried out at [COMPANY_22]. A urine sample revealed the presence of Alprazolam. 22Xanax is the brand name for Alprazolam. Alprazolam is a benzodiazepine which is prescribed to treat anxiety disorders and panic attacks. Common side effects of the drug are drowsiness, sedation, and lack of co-ordination. The sedating effects can impair cognition, consciousness and awareness, and result in retrograde amnesia. Alcohol exacerbates the common side effects of Alprazolam. The ingestion of alcohol and Alprazolam can severely compromise the ability to repel any unwanted sexual advances. 23The applicant has been prescribed Xanax since 10 July 2008. [NAME_16] stated that he had received a prescription for Xanax "on 4 November 2009" and the prescription had been filled on the same day at a [NAME_23]. This appears to be a typographical error. Presumably it was meant to be a reference to 4 November 2008.

The Sentencing Judgment 24I note eight points concerning [NAME_16]'s judgment. 25First, [NAME_16] characterised the circumstances surrounding the first count as "very serious". [NAME_16] found that the applicant knew the effect that Xanax was likely to have on [NAME_14], but he had told her it would have the opposite effect. Thus, [NAME_16]'s findings and the [NAME_13]'s verdict amount to a conclusion that the applicant induced [NAME_14] to take the Xanax tablets by lying about their effect for the purpose of sexually assaulting her. [NAME_16] found that [NAME_14] was "immature and foolish" and that the applicant took advantage of that in order to commit an offence "upon a person who is half his age". Not surprisingly, [NAME_16] found that specific and general deterrence, as well as retribution, deserved significant weight in sentencing for count 1. 26Second, [NAME_16] also described the circumstances surrounding both aggravated sexual assaults as serious. [NAME_16] characterised the offence involving cunnilingus as falling slightly "below the midrange of objective seriousness for such offences" and the offence involving penile penetration at the "mid-range of objective seriousness for such offences". [NAME_16] noted that no violence was involved in the offences, that both offences were opportunistic with no significant planning involved and that, based on the recollection of the complainant, they were "not of long duration". In my view little weight should be given to this latter conclusion given the drugged state of [NAME_14] and the fact that she slipped in and out of consciousness during the night she spent in the applicant's bed. 27Third, [NAME_16] described the applicant's subjective circumstances. At the time of sentencing he was thirty-six years of age. He had left school during year 12. By the age of seventeen or eighteen he was consuming a large quantity of drugs. He had held a number of manual jobs for theatres and TV shows building sets and stages on a casual and full time basis. Although not referred to by [NAME_16], the testimonials from his family indicated that his upbringing was severely disrupted in his early teen years when his mother, who had the care of him, developed paranoid schizophrenia, as did his older brother shortly afterwards. 28Fifth, [NAME_16] referred to an extract from a psychologist's report which detailed a history of illicit substance abuse from his late teens. A testimonial from his father stated that his abuse of drugs had commenced prior to then. 29Sixth, [NAME_16] also referred to the psychologist's report as describing him as having suffered from "anxiety for a number of years" for which he had been prescribed medications (including Xanax). The psychologist's report referred to him as having an anxiety disorder. 30Seventh [NAME_16] described the applicant's antecedents as not assisting him. [NAME_16] noted that he had served gaol time for a number of offences including driving furiously, drive while disqualified, intimidating a police officer, assault occasioning actual bodily harm and break and enter. However [NAME_16] also noted that the applicant had not been convicted for any offences as serious as those the subject of this application. None of his antecedents were sexual offences. 31Eighth, there was uncertainty about the total sentence that [NAME_16] considered to be appropriate for count 1. At one point in [NAME_16]'s judgment he stated that the "appropriate sentence" was seven years and he would "not set a parole period as it would be subsumed in the overall sentence that I intend to impose". Later [NAME_16] said that he did not set a parole period for this offence "because it is subsumed in the total term I intend to impose". These passages appear to suggest that [NAME_16] considered that seven years represented an appropriate total sentence, i.e. a combination of what would otherwise be a non-parole period and an additional term. 32However, in imposing sentence [NAME_16] stated that he sentenced the applicant "to a period of non-parole of seven years to date from 11 February 2010 and conclude on 10 February 2017". As [NAME_16] did not specify an additional term, [NAME_16] effectively imposed a fixed term of imprisonment for seven years. Based on this, I understand that [NAME_16] sentenced the applicant on the basis that the appropriate sentence for count 1 was a non-parole period of seven years, and an additional term which need not be specified as it would be subsumed into the sentences on counts 2 and 4. It was most likely meant to reflect the ratio referred to in s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (the "Sentencing Act") (75%). If that were the case, the balance of the additional term would be two years and four months.

New ground three - erroneous basis for sentencing on count 1 33At the hearing of the appeal, Senior Counsel for the applicant, [NAME_6], sought and was granted leave to add an additional ground of appeal which alleged that, in sentencing the applicant on count 1, [NAME_16] erred in taking into account that the applicant had "without her knowledge spiked one of the complainant's drinks". It is convenient to consider this ground first. 34Ms [NAME_7] SC submitted that [NAME_16] did not accept one part of [NAME_14]'s evidence in which she alleged that the applicant had surreptitiously placed a further Xanax tablet in her wine, but nevertheless sentenced him on the basis that that aggravating fact was established. 35In recounting the evidence given at the trial concerning the circumstances of the offences, [NAME_16] stated: "There was evidence from the complainant that when [NAME_21] topped up the complainant's last cup of alcohol, he slipped a further Xanax tablet into the complainant's drink. That drink was given to the complainant, the cup was filled to the top, and the complainant was unaware of what [NAME_21] had done. The evidence was that when the complainant began to drink the wine, she saw a whole pill at the bottom of the cup. The complainant described the pill as white and she saw bubbles around its surface; she immediately discarded the drink and dissolving tablet. However, I do not find that those facts are proved beyond reasonable doubt, because of the evidence of [NAME_24], called by the Crown, and also the evidence of [NAME_27], both gave evidence in relation to the rapid disintegration of Xanax. [NAME_27] conducted an experiment in relation to a tablet of Xanax, placing it in a glass of wine; and he gave evidence that the tablet began to disintegrate almost immediately, within about ten seconds." (emphasis added) 36Later in the sentencing judgment, when [NAME_16] was characterising the applicant's conduct in relation to count 1, [NAME_16] stated: "[NAME_21], after giving the complainant a tablet, without her knowledge spiked one of the complainant's drinks, which he was topping up with alcohol, with a second tablet which when observed at the bottom of the glass, the complainant did not consume. The purpose of [NAME_21] giving the tablets to the complainant was for the tablet to produce the effect it had on the complainant so [NAME_21] was able to sexually assault the [NAME_28] of fourteen." (emphasis added) 37In my view, [NAME_6]'s complaint has been made good. [NAME_16] did not accept so much of [NAME_14]'s evidence that suggested that the applicant slipped a further Xanax tablet into her drink without her knowledge. However, [NAME_16] erroneously sentenced the applicant on the basis that he had so found, i.e. that the applicant had "spiked" one of her drinks. 38Further, I consider that this mistake was material in the overall assessment of the seriousness of the applicant's conduct. On the facts that were found by [NAME_16], the applicant supplied two Xanax tablets to [NAME_14] which she knowingly consumed, but only after the applicant had lied to her about their effect. This conduct was undeniably reprehensible. However, to sentence the applicant on the basis that, in addition to that conduct, he had surreptitiously placed a further tablet in her drink without her knowledge was to act on a version of the facts that was even more serious than that which the facts properly found suggested. In my view this constitutes an error that warrants a reconsideration of the applicant's sentence on this count. 39I would uphold ground 3.

Ground 1 - Counts 2 and 4 - [NAME_3] error 40The Table in Division 1A of Part 4 of the Sentencing Act specifies a standard non-parole period of ten years for offences under s 61J of the Crimes Act. Ground 2 of the appeal contends that, in sentencing the applicant on counts 2 and 4, [NAME_16] erred in attaching to the standard non-parole period for those offences a significance that the statutory scheme does not justify. 41At the time of the sentence hearing, [NAME_16] was bound to apply Division 1A in accordance with the decision of this Court in R v [NAME_4] [2004] NSWCCA 131; 60 NSWLR 168. [NAME_16] specifically referred to the decision in [NAME_4] in his sentencing judgment. The decision in [NAME_4] was also applied by this Court in subsequent judgments including R v [NAME_3] [2010] NSWCCA 106. That judgment was successfully appealed in the High Court: [NAME_3] v R [2011] HCA 39; 244 CLR 120. 42In [NAME_3] the High Court found, inter alia, that this Court's decision in [NAME_3] had reflected the analysis of Division 1A of Part 4 in R v [NAME_4] and that, in this respect, [NAME_4] was wrongly decided: "25 ... It follows from that acceptance that [NAME_4] was wrongly decided. As will appear, it was an error to characterise s 54B(2) as framed in mandatory terms. [ADDRESS] is not required when sentencing for a Div 1A offence to commence by asking whether there are reasons for not imposing the standard non-parole period nor to proceed on assessment of whether the offence is within the mid-range of objective seriousness. ...

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 the hypothesised offence answering that description and, in the event that it does, by inquiring if there are matters justifying a longer or shorter period." (emphasis added) 43Ms [NAME_7] SC contended that [NAME_16] erroneously adopted the approach endorsed by [NAME_4] but disapproved of by the High Court in [NAME_3]. In effect she submitted that [NAME_16] adopted a two stage approach to sentencing that commenced by "asking whether there are reasons for not imposing the standard non-parole period" and then considering what answer to that question was warranted by a consideration of the factors relevant to sentencing. 44The Crown resisted this submission. It submitted that merely referring to [NAME_4] in a sentencing judgment did not of itself convey error. The Crown relied on the following statement in Butler v R [2012] NSWCCA 23 at [26] per Davies J (with whom Whealy JA and Rothman J agreed): "Merely showing that a sentencing judge sentenced pre [NAME_3] following the dictates of [NAME_4] will not be sufficient to demonstrate error. What should be ascertained in each case is whether a reliance on [NAME_4] has sufficiently infected a sentence with such error that this Court must intervene. Ordinarily this might occur in cases when an applicant is found guilty by a [NAME_13] with the result that the sentencing judge will consider that a two-stage process must be applied and that the standard non-parole period is mandatory unless factors could be found to justify a variation from it. It is far less likely that intervention will be required from this Court where a sentence has been imposed following a plea of guilty and the sentencing judge has referred to the standard non-parole period as simply a guide or yardstick." (emphasis added) 45I have already noted that [NAME_16] cited this Court's decision in [NAME_4]. In the sentencing judgment, [NAME_16] cited [NAME_4] and described the process to be adopted as follows: "In relation to the two sexual assault matters, I am bound by the standard non-parole periods, there being verdicts after trial ... Each s 61J offence carries a standard non-parole of ten years. R v [NAME_4] (2004) 60 NSWLR 168 mandates that for each of the sexual assault offences, I must ask the question, 'are there reasons for not imposing the standard non-parole period?' which is answered by considering the objective seriousness of the offence, which I did earlier in these remarks, and the circumstances of aggravation and mitigation set out in s 21A, which I have also done. I now have to consider the just and appropriate sentence to impose, having regard to all circumstances of [NAME_21]; and the circumstances of the offence which I have set out earlier." (emphasis added) 46Merely because [NAME_16] stated that he was "bound" by the standard non-parole periods is not suggestive of error. The standard non parole periods form part of the relevant legislative scheme and, in that sense, they are binding on all the courts to whom the legislation is directed. However, in my view [NAME_16] did err by [NAME_16] asking whether "there are reasons for not imposing the standard non-parole period". It was precisely that approach that was disapproved by the High Court in [NAME_3] at [25]. Adopting the phraseology of Davies J in Butler at [26] in this case, after a [NAME_13] verdict, [NAME_16] approached the matter on the basis that "the standard non-parole period [was] mandatory unless factors could be found to justify a variation from it". 47The Crown pointed to the last paragraph of the extract set out in [45] as indicating that [NAME_16] applied an instinctive synthesis approach, as opposed to a two stage approach to sentencing (see Markarian v R [2005] HCA 25; 228 CLR 357 at [51] to [56], per McHugh J). I disagree. When read with the paragraph that immediately precedes it, it is clear that [NAME_16] did not merely refer to the standard non-parole period as "simply a guideline or yardstick", but instead commenced with the standard non-parole period and then sought to find factors which, to quote Davies J in Butler, could "justify a variation from it". [NAME_16]'s consideration of "all the circumstances" was undertaken in that context. 48It follows that I would uphold ground 1 of the appeal.

Ground 2 - Manifestly Excessive 49Ground 2 of the appeal alleges that both the individual sentences for the three offences and their combined effect were manifestly excessive. Given that I have already found that there was invalidating error with each of the three sentences it is not necessary to consider this ground. I address below the appropriate sentence that I consider the applicant's conduct and circumstances justifies. It suffices to state that I consider that a different sentence is warranted (cf s 6(3) of the Criminal Appeal Act 1912). Further in my view, at the very least the total combined sentence comprising a twelve year minimum term and an additional term of four years was manifestly excessive. The applicant's conduct was obviously reprehensible but having regard to the total criminality involved a sentence of sixteen years is likely to have an unduly crushing effect on the applicant.

Revised Sentence 50At the hearing of the appeal, [NAME_6] read an affidavit from the applicant which was sought to be relied upon if the Court proposed to re-sentence. No objection was taken to the affidavit by the Crown. In his affidavit the applicant describes his ongoing struggle with his anxiety disorder. He describes his difficulties in obtaining psychiatric or psychological help in custody. He states that he is attempting to address his anxiety without the use of medication. He states that he has the ongoing support of his family. He does not address his offending conduct. His affidavit does not advance matters much beyond the position considered by [NAME_16]. His difficulties in dealing with anxiety in custody were anticipated at that time. 51I have described the circumstances surrounding count 1 above. He was prescribed with Xanax that very day and had his own legitimate use for the drug. The opportunity for the applicant to meet [NAME_14] arose out of a random confrontation with other strangers that she became engaged in. At some point after the applicant provided her with Xanax (Alprazolam) he left her and apparently sought to take the bus home before they met up again. These considerations suggest that his administration of the drug to her was not part of some previously determined plan or modus operandi that was put into effect that evening. 52Nevertheless, a [NAME_13] found that a [NAME_29] drugged a [NAME_30] with the intention of sexually assaulting her and then carried through with that intention. Such conduct demands a heavy sentence. The applicant's antecedents do not include any sexual offences but they are otherwise of not much assistance to him. His difficulties with anxiety have been discussed. It was not suggested that they have any connection with his offending conduct and they do not otherwise weigh much in his favour when considered against the seriousness of the conduct that he engaged in. 53One matter that needs to be borne in mind in fixing the sentences for these offences is the age of [NAME_14]. It was an element of the offences for which he was convicted for counts 2 and 4. This does not preclude it from being considered a circumstance of aggravation of count 1. However, it reinforces that considerations of totality need to be carefully considered in determining cumulation and concurrency for the offences in this case. 54For count 1, I consider that a fixed term sentence of five years imprisonment is appropriate. I do not propose that a non-parole period be fixed, as it would in any event be subsumed in the sentences that I propose for counts 2 and 4. This sentence equates to an overall sentence of six years and eight months for this offence (see Ruttley v R [2010] NSWCCA 118 at [43] per Simpson J, McClellan CJ at CL and Fullerton J agreeing). 55For counts 2 and 4, and bearing in mind the commencing guidance derived from the standard non-parole of ten years, I propose that the applicant be sentenced to a term of eight years imprisonment for each offence. Subject to what follows, that would ordinarily translate to a non-parole period of six years and an additional term of two years each. 56It is not appropriate that there be complete concurrency with all of these sentences. If that were to occur then there would be no effective separate penalty for the administration of the drug to [NAME_14]. I consider it appropriate that the sentence for count 4 commence two years after the sentence for count 1. Further, although they were part of the same course of conduct, the starting dates for counts 2 and 4 should be staggered by a year to reflect the separate criminality involved.

Accordingly, the commencing date for the sentence for count 2 will start one year after the commencing date for count 4. However the non-parole period for count 2 will be reduced under s 44(2) of the Sentencing Act to ensure that the ratio of the balance of term to the combined non-parole period better approximates to the statutory ratio referred to in that provision (see R v Street [2005] NSWCCA 139 at [37] to [39]). 57The effect of all the sentences that I propose is that the applicant receives a combined non-parole period of eight years expiring 10 February 2018 and an additional term of three years, expiring 10 February 2021. 58Accordingly I propose the following orders: (1)Leave to appeal be granted. (2)Appeal allowed. (3)Set aside each of the sentences imposed by the District Court on 11 March 2011 and, in lieu thereof, sentence the applicant as follows: (a)for the offence under s 38 of the Crimes Act 1900 to a fixed term of imprisonment of 5 years commencing 11 February 2010 and expiring 10 February 2015; (b)for the offence under s 61J(1) of the Crimes Act 1900 comprising count 4 on the indictment to a term of imprisonment comprised of a non-parole period of 6 years commencing 11 February 2012 and expiring 10 February 2018 with a balance of term of 2 years commencing 11 February 2018 and expiring on 10 February 2020; (c)for the offence under s 61J(1) of the Crimes Act 1900 comprising count 2 on the indictment to a term of imprisonment comprised of a non-parole period of 5 years commencing 11 February 2013 and expiring 10 February 2018 with a balance of term of 3 years commencing 11 February 2018 and expiring on 10 February 2021.

********** 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: 01 November 2012