Ballard v R

1. [1]

   BEAZLEY JA: I agree with the reasons and orders proposed by Harrison J.

2. [2]

   HALL J: I agree with Harrison J.

3. [3]

   HARRISON J: The applicant pleaded guilty on 30 September 2009 to the following offences:

4. [4]

   The drug offence carried a maximum penalty of 15 years imprisonment with no standard non-parole period. The firearms offence carried a maximum penalty of 14 years imprisonment with a standard non-parole period of 3 years.

5. [5]

   Pursuant to s 166 of the Criminal Procedure Act 1986 there were six related offences before the sentencing court. They were possessing shortened firearm, possessing prohibited weapon, possessing prohibited firearm, possessing prohibited drug, receiving stolen goods and possessing prohibited plant. His Honour took these offences into account on two forms when sentencing the applicant in accordance with s 32 of the Crimes (Sentencing Procedure) Act 1999.

6. [6]

   His Honour King DCJ sentenced the applicant to a fixed term of imprisonment of 2 years and 6 months from 11 May 2009 for the drug offence. He sentenced the applicant to a period of 4 years imprisonment for the firearms offence with a non-parole period of 2 years and 6 months commencing on 11 May 2011 and expiring on 10 November 2013 and a balance of term of 1 year and 6 months commencing on 11 November 2013 and expiring on 10 May 2015. The overall effective sentence was therefore one of 6 years imprisonment commencing on 11 May 2009 and expiring on 10 May 2015 with an effective non-parole period of 4 years and 6 months commencing on 11 May 2009 and expiring on 10 November 2013.

7. [7]

   The applicant seeks leave to appeal against these sentences upon the following grounds:

Agreed facts

1. [8]

   The facts were not in dispute. On 11 May 2009 police executed search warrants at the applicant's home and that of his mother. Police found a total of 23.04g of methylamphetamine at the two locations. The applicant admitted that the drug was his and that he had it for the purpose of sale. Also present at his house were so-called indicia of supply such as mobile phones, electronic scales, resealable plastic bags and lists of names with amounts of money, as well as just over $1,000 in cash. The drug found at the applicant's house was divided into 12 small packages weighing a total of 3.02g and two packages weighing a total of 6.06g. The remaining 13.42g were found at his mother's house, divided into two packages. Count 1 relates to the applicant's possession of the total quantity of the drug for the purpose of supply.

2. [9]

   Also found were 0.7g of cannabis leaf and a cannabis plant, which the applicant said were for his personal use. (The sentencing judge and the Crown apparently accepted that). These items were the subject of the possession offences on Form 1B.

3. [10]

   An amount of property, including a watch, a laptop computer and some cosmetics were also located. The latter still retained security tags from Woolworths Ltd. The computer was worth $1,400 and the cosmetics had a retail value of $12,950. This property was the subject of the receiving offences on Form 1B.

4. [11]

   Police located a rifle that had been modified to resemble a walking stick, the subject of Count 2 on the indictment. The rifle was not loaded and no live ammunition for it was located. Spent .22 cartridges and holes in the kitchen door consistent with .22 calibre projectiles were found. The rifle had been shortened by the removal of the stock. Possession of that weapon was the subject of the relevant offence on Form 1A.

5. [12]

   A homemade mace and a non-functioning paint ball pistol were also found. These became the subject of the remaining offences on Form 1A. The sentencing judge expressed the view that these offences were of a level of seriousness that would have had them dealt with summarily.

6. [13]

   There was no reference in the agreed facts to the involvement of any other person in the supply of prohibited drugs. There was no explanation given concerning the provenance of the items that were the subject of the receiving offence.

Ground 1

1. [14]

   The applicant did not give evidence at the sentencing hearing. It is apparent that the sentencing judge's assessment of the objective seriousness of the offending behaviour was significantly influenced by his Honour's view of whether or not the applicant acted alone or in concert with others in the supply of drugs. The issue was the subject of comment in a psychiatrist's report from Dr Furst, upon which the applicant relied. Part of that report is as follows:

2. [15]

   His Honour's remarks on sentence included the following passages:

3. [16]

   The applicant submitted that it flowed from his Honour's rejection of the applicant's assertion to Dr Furst that others were involved in the supply of drugs, that his Honour also rejected Dr Furst's opinion that "cognitive deficits…would have made him more vulnerable to the suggestions of others and were substantial contributing factors in his offending behaviour". This was said to be important because such reasoning affected both the assessment of the objective criminality of the offending behaviour as well as the extent to which the need for general deterrence might have been ameliorated.

4. [17]

   The applicant complained that in taking this approach the sentencing judge improperly and erroneously denied him the opportunity to explain his level of involvement in the activities concerned. The applicant submitted that what he told Dr Furst was exculpatory, in the sense that it indicated that he was not the instigator of the drug offences but was led by others. The Crown had not objected to Dr Furst's report and the Crown declined what the applicant's written submissions described as "the opportunity to cross-examine him". The Crown did not suggest that what he told Dr Furst should be given little or no weight because it was in the form of a statement to Dr Furst. The Crown's submissions did no more than suggest that the applicant's involvement in the supply of drugs was not merely impulsive and that he involved himself knowing full well what he was doing and to support his own addiction. The Crown did not seek to distinguish between a case where others were involved in that activity and one where they were not.

5. [18]

   The applicant referred to well known authority dealing with the need for sentencing judges to exercise caution when faced with untested but self-serving exculpatory material. His Honour referred to these cases in his remarks on sentence. In R v Elfar [2003] NSWCCA 358, Whealy J said this at [25], [28] - [29]:

6. [19]

   More recently this Court returned to the same issue in Alvares v R; Farache v R [2011] NSWCCA 33. The usual authorities were considered and helpfully reviewed. At [49] - [58] Buddin J, with whom the other members of the Court agreed, said this:

7. [20]

   The applicant contended that in the present case the evidence was not plainly inconsistent or contrary to common sense or the agreed facts. The Crown did not object to the evidence and made no submissions about the force it had or the weight that should be given to it. The applicant was not "cross-examined". The applicant submitted that in those circumstances it was "even more clearly incumbent upon the judge to inform the parties of his preliminary attitude, invite submissions and provide the opportunity for further evidence". He failed to do so. The applicant argued that in the events that occurred he had been denied a fair hearing, particularly as he had been willing to enter the witness box and give evidence if required. The applicant went as far as to suggest that his Honour's failure infected the entire sentencing process with error, including in particular his Honour's assessment of the objective seriousness of the offences and the relevance and significance of the applicant's uncontested cognitive difficulties.

8. [21]

   I am unable to accept these submissions. The applicant's argument proceeds upon the basis that his Honour was somehow obliged to accept the version given to Dr Furst because the Crown did not object to his report or ask to cross-examine the applicant. However, his Honour was not obliged to approach the task at hand by placing an uncritical reliance on material contained in tendered reports or other third party statements where the applicant chose not to give evidence: see Qutami and TS v R [2007] NSWCCA 194 at [30]. The applicant's decision not to give evidence was a forensic choice taken with a presumed knowledge and understanding that the authorities were to this effect. In deciding not to enter the witness box he ran the risk that evidence given by others of what he had said to them, in a clinical setting or otherwise, would and could be treated by the sentencing judge with appropriate circumspection. His Honour was not required to underline the authenticity of that approach before deciding not to accept the evidence in whole or for all purposes. Moreover, the applicant is not entitled to expect some special status because the Crown declined his offer to enter the witness box to be cross-examined. The applicant made a decision not to give evidence. Responsibility for the consequences of that decision rests with him. The Crown cannot be criticised for not responding to the applicant's offer to be cross-examined when there was nothing to be cross-examined about. His Honour was therefore confronted with the consequences of two competing forensic decisions and was entitled to treat the evidence that came before him upon the assumption that the parties, but in particular the applicant, knew and understood what they were. Any views that his Honour might thereafter have formed or expressed about the reliability of the applicant's assertions to Dr Furst were the reasonable and logical product of that process.

9. [22]

   It should also be emphasised that the agreed facts made no reference to any other offender being involved in the commission of the offences. His Honour made specific comment about that fact. It would otherwise have been obvious to the applicant that there was potentially a tension between those facts and the version of events proffered by him to Dr Furst. There existed in those circumstances the unremarkable possibility that his Honour might arrive at his decision, such as the one he arrived at in fact, by reference to the whole of the evidence as it was presented to him. The applicant took the procedural risk that his failure to give a first hand account of the events in question would thereby leave his Honour free, in accordance with authority, to approach the hearsay material with "considerable caution". That is what he did. That led his Honour to reject a version of events suggesting that the applicant acted in concert with others who influenced him. His Honour otherwise accepted Dr Furst's medical opinion concerning the applicant's cognitive impairment.

10. [23]

    There was no denial of procedural fairness because his Honour approached the matter in this way. No error has been demonstrated. This ground of appeal should be rejected.

Ground 2

1. [24]

   His Honour found that the quantity of drug that was the subject of the charge was "substantially less than the commercial quantity" of 250g. He then said the following:

2. [25]

   The applicant was being sentenced for possession of 23.04g of methylamphetamine for the purpose of supply. The applicant emphasised that the principles referred to in cases such as R v Gu [2006] NSWCCA 104 and R v Harmouche [2005] NSWCCA 398 applied and, absent exceptional circumstances, called for a full-time custodial sentence if the offender was involved in drug trafficking to a substantial degree. The applicant submitted that a single instance of the possession of 23.04g of methylamphetamine would not necessarily indicate trafficking to a substantial degree. He conceded that his Honour was undoubtedly entitled to take into account the surrounding circumstances when considering this question, including the evidence that the offence was not an isolated incident. The applicant also conceded that his Honour's finding that he was involved in trafficking to a substantial degree and ought to be sentenced to full time imprisonment was clearly open to him.

3. [26]

   However, the applicant contested his Honour's finding that the applicant was involved in a "significant commercial operation". He submitted that in coming to that conclusion his Honour failed to have regard to the following matters. First, the drug was of a very low purity. Secondly, no cutting compounds or mixing equipment were located. Thirdly, the uncontested evidence was that the applicant had been selling to support his own drug addiction and was a "user/dealer". Fourthly, the absence of any evidence to indicate that any stolen goods said to have been the proceeds of earlier supplies had ever been sold or disposed of. Fifthly, the evidence of the value of the stolen goods was the retail value, which would have been considerably higher than the value of the goods in the hands of the applicant. Finally, the indicia of supply were consistent with street level supply.

4. [27]

   The applicant contended in all of these circumstances that a finding that he was involved in a "significant commercial operation" was not open to his Honour. He submitted that his Honour's assessment of the objective seriousness of the offence therefore miscarried. It was submitted that his Honour should have found that the applicant's level of criminality fell towards the lower to lower-middle end of the scale for an offence of this type.

5. [28]

   The following responses should be noted. There was evidence that goods to a value of more than $12,000 had been exchanged for drugs as part of the applicant's operation. He had drugs stored in two locations. He had record keeping books consistent with the fact of earlier transactions. There were other indicators of the existence of a commercial drug supply operation. His Honour appears to have used the word "commercial” in its ordinary or generic sense, and not in the sense used in the Drug Misuse and Trafficking Act.

6. [29]

   The Crown emphasised that low purity was not inconsistent with a commercial operation. The absence of cutting compounds or mixing equipment only spoke to the level of the operation conducted by the applicant, not to its commerciality. The existence of stolen goods suggested that the sale of drugs by the applicant was not limited to the circumstances associated with his addiction or use. The comparison between the retail value of the goods and the value to the applicant failed to take account of the commercial realities of the transaction in which such goods were traded and the particular value that must have been ascribed to them for that purpose. Street level supply is nonetheless a commercial operation.

7. [30]

   The offence of supply was not an offence attracting a standard non-parole period so that it was not necessary for his Honour to make a finding of where the subject offence fell on a hypothetical scale of objective seriousness: Sivell v R [2009] NSWCCA 286 and Georgopolous v R [2010] NSWCCA 246 at [32]. It was not, however, an error for his Honour to have done so: Nguyen v R [2011] NSWCCA 127 at [40].

8. [31]

   In my opinion, his Honour made findings that were reasonably open to him. A sentence of 2 years and 6 months against the background of a maximum penalty of 15 years imprisonment is wholly unexceptionable in the circumstances of this case. This is particularly so having regard to the fact that in passing sentence for this offence his Honour took into account in addition the matters contained on the Form 1B. I am unable to detect any error either in his Honour's approach or in the conclusions that he reached.

Ground 3

1. [32]

   In his remarks on sentence his Honour referred to the firearms offence in terms that included the following:

2. [33]

   The applicant contended that the formulation of the finding in this way was itself indicative of error. This was because his Honour was required to decide whether the offence fell within, above or below the mid-range and, if above or below, to what extent. The applicant contended that his Honour's formulation implied a degree of variation within the mid-range itself, which is inconsistent with the task. The applicant relied on R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575 at [13] as follows:

3. [34]

   The applicant also argued that his Honour had failed to consider a number of factors relevant to an assessment of the objective seriousness of the offence including the nature of the firearm compared to other prohibited firearms including machine guns. His Honour should also have considered the fact that the weapon was of a small calibre and was neither automatic nor semi-automatic. The weapon was not loaded and no ammunition was found.

4. [35]

   His Honour made no findings of what, if anything, the applicant kept the weapon for or why it had been modified. The possession of the gun was wholly consistent with the applicant's statement to police that he liked weapons. The applicant asserted that his Honour's failure to make a finding one way or the other about the purpose for which the applicant possessed the weapon caused the exercise of his discretion to miscarry. There had been competing contentions advanced before his Honour about whether the weapon had anything to do with drugs, which his Honour failed to decide.

5. [36]

   In Mack v R; Mack v R [2009] NSWCCA 216 at [40], Davies J identified a number of matters of the type that the applicant contended the sentencing judge in the present case should have taken into account when determining the objective seriousness of a firearms offence. Davies J said this:

6. [37]

   The applicant submitted in this particular case there had not been a finding that the firearms were kept for drug related purposes which was a significant matter in relation to the objective seriousness of the firearms offence.

7. [38]

   The applicant also submitted that if the objective seriousness of the offence fell within the mid-range, his Honour should have given reasons for not applying the standard non-parole period. The only matter identified was the plea of guilty. The applicant contended that his Honour should have considered and decided whether or not any of the applicant's subjective circumstances, including his brain injury and his need for special programs of rehabilitation, also provided reasons.

8. [39]

   More particularly, the applicant contended that in the light of a finding of objective seriousness in the mid-range and the application of a 25 per cent discount for the plea of guilty, the sentence imposed necessarily indicated error. This was because the starting point for the sentence was 5 years and 4 months before the application of the 25 per cent discount. Absent special circumstances, a "usual" 75 per cent non-parole period would have been 4 years, or 1 year longer than the standard non-parole period for this offence. The applicant submitted that given his Honour's finding that the offence fell within the mid-range of objective seriousness, even at the upper end of that mid-range, his Honour has necessarily fallen into error: he should have determined a non-parole period of no more than 3 years if the offence fell within the mid-range or a starting point, apart from special circumstances, of 4 years. A discount of 25 per cent would have produced a term of 3 years and a non-parole period, absent special circumstances, of 2.25 years. The non-parole period that his Honour imposed was 2.5 years.

9. [40]

   The Crown contended that because his Honour found that the objective seriousness of the offence was at the higher end of the mid-range it justified a sentence with a non-parole period greater than the standard 3 years for this offence. The Crown also emphasised that his Honour was required to take account of the three matters on the Form 1 as well. The Crown referred to Attorney General's application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518 and submitted that the appropriate sentence for Count 2 could not be determined in isolation from the matters on the Form 1. The Crown contended that the applicant's submissions incorporated that mistake.

10. [41]

    In this case only one firearm was found. It does not appear to have been in the possession of the applicant for any particular purpose. Certainly none was suggested and none was established. It may simply have been the case that the applicant’s avowed affection for weapons was the true explanation. There was also no obvious or distant relationship or connection between the drug offence and the weapon concerned. It is difficult to conceive of any. The applicant’s commercial drug enterprise was not dependant upon the use of force or the threat of it. The two offences have no discernible or apparent connection. There was simply no evidence, which would show any relationship between the possession of the firearm and the drug industry being carried on by the applicant. There does not appear to have been any attempt by the applicant to conceal the firearm upon the premises so as to avoid discovery.

11. [42]

    Clearly minds may differ about the level of objective seriousness of this offence. His Honour formed the view that the firearm and its idiosyncratic modifications were “sinister”. His Honour was undoubtedly well placed to express that view. Having regard to the wide range of firearms that falls to be considered within the terms of the section defining this offence, I would for my part have thought that its position in the scheme of objective seriousness was below the middle of the range. I am not, however, prepared to say that his Honour fell into error in exercising his discretion in this respect. On the other hand, I do consider that there is scope for acknowledging the existence of different views about this in considering the extent to which the firearms offence and the drug offence should be accumulated. This is dealt with under grounds 5 and 6 referred to later in these reasons.

12. [43]

    I would reject this ground of appeal.

Ground 4

1. [44]

   The applicant complains that even though his Honour found special circumstances in relation to the firearms offence, the only circumstance considered was the fact of accumulation. Accordingly, the departure from the statutory ratio was only sufficient to produce an overall effective sentence with a non-parole period of 75 per cent of the total sentence. The applicant submitted that his Honour does not appear to have considered whether or not there were any other special circumstances that were referable to the firearms offence. The applicant contended that his Honour ought to have considered his long standing addiction to drugs, his cognitive deficits and the fact that those deficits meant that he was likely to require special rehabilitation programs. This was also the first lengthy period of imprisonment, which might amount to a special circumstance justifying a departure from the statutory ratio in relation both to the firearms offence and the overall effective sentence as well.

2. [45]

   His Honour dealt with this matter in his remarks on sentence as follows:

3. [46]

   The Crown emphasised that merely because his Honour consciously determined that the appropriate non-parole period for the totality of offending was one of 4 years and 6 months it did not mean that he failed somehow to consider whether or not there were or may have been other relevant special circumstances. His Honour was not obliged to outline his reasons for not varying the ultimate ratio of 75 per cent. This Court has made it clear that the allocation of the non-parole and parole periods following a finding of special circumstances is generally a matter for the discretion of the sentencing judges. See, for example, Clarke v R [2009] NSWCCA 49 at [13] per McClellan CJ at CL and R v Cramp [2004] NSWCCA 264 at [31] to [36] per Spigelman CJ.

4. [47]

   The applicant was burdened with long-term drug addiction, cognitive deficits requiring treatment and the likely consequences to him of adjustment following his first lengthy period of imprisonment. It is certainly arguable that a combination of these features may have entitled his Honour to allow for a longer period on parole had he so desired. The question for determination in this Court is whether it was reasonably open to his Honour to refrain from varying the statutory ratio to any greater extent than he did. The manner and extent to which his Honour may have factored any of these matters into the way that he structured the applicant's sentences was entirely for him to determine. It cannot in my opinion be said that there is any demonstrated error affecting the way that his Honour did so.

Grounds 5 & 6

1. [48]

   It was the applicant's case that the total non-parole period vastly exceeded the totality of the criminality involved in the two sets of matters, even taking into account the matters on the forms. In the circumstances the overall effective sentence was said to be manifestly excessive. The applicant complained about his Honour's approach to both totality and the extent of accumulation.

2. [49]

   Neither of the offences fell into the upper half of the range of objective seriousness. The offences taken into account on the two forms were described as "relatively minor". They could have been dealt with summarily. The applicant's subjective case was described as "relatively positive". He had a generally minor record of convictions, an unfortunate background and a serious medical condition. He had pleaded guilty and had accepted responsibility for his actions. On the other hand he had been on conditional liberty for a firearms offence.

3. [50]

   His Honour imposed a fixed term of 2 years and 6 months for the drug offence. The amount of methylamphetamine (23.04g) possessed by the applicant was less than ten per cent of the highest amount of the drug capable of amounting to this offence. The applicant had no prior convictions for drug supply. He received the benefit of a 25 per cent discount for his plea of guilty. The maximum penalty was 15 years. The applicant submitted that this sentence was manifestly excessive.

4. [51]

   The sentence for the firearms offence carried a maximum penalty of 14 years and a standard non-parole period of 3 years. The applicant was sentenced to 4 years with a non-parole period of 2 years and 6 months, which would have been 3 years but for the finding of special circumstances. The weapon in question was a .22 calibre shortened rifle, disguised but not loaded and without ammunition. He received the benefit of a 25 per cent discount for his plea of guilty. The applicant submitted that this sentence was manifestly excessive.

5. [52]

   The applicant referred this Court to statistics for equivalent offences. Caution must be exercised in the way that these statistics are applied.

6. [53]

   The Crown conceded that his Honour's decision not to commence the sentence for the firearms offence until 2 years into the non-parole period of the supply prohibited drug offence was clearly one of the major factors that resulted in the total non-parole period of 4.5 years.

7. [54]

   In R v AZ [2011] NSWCCA 43 at [85], Johnson J said the following:

8. [55]

   These comments are pertinent in the present case. The sentence necessary to reflect the criminality for the drug supply offence could not comprehend or reflect the criminality for the firearms offence. There was clearly a need for partial accumulation. The question is whether or not 2 years partial accumulation was excessive. In R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38 at [52], Hall J said:

9. [56]

   The Crown quite properly conceded that his Honour's approach produced what the Crown described as "a stern total effective sentence for the totality of the criminality involved". The Crown maintained that the sentence was not however manifestly excessive in the result.

10. [57]

    I disagree. Even though the drug offence and the firearms offence were separate and distinct acts of criminality, and deserving of recognition as such in the penalty that is imposed for each offence, I consider that the manner in which the sentences have been accumulated has in terms of totality resulted in a sentence that is manifestly excessive. The drug offence consisted in a series of related or interconnected ongoing commercially oriented acts. The firearm offence was, by comparison, a passive offence apparently not directed to or associated with any demonstrated criminal intent or activity. While it must be clearly accepted and understood that the firearms offence is made out even in the absence of such collateral characteristics, it does seem to me that the community's disapprobation of this particular offence can be adequately recognised if the sentences remain as imposed but with a greater degree of concurrence between them. This is in my view a preferable course to adopt than one that attempts to vary the particular sentences imposed by his Honour, which, as I have indicated, are in my view not individually vulnerable to attack.

11. [58]

    In forming the views I have formed I have had regard to other decisions of this Court dealing with similar offences. For example, in Tran v R [2010] NSWCCA 183, the applicant had been convicted of two offences under s 7(1) of the Weapons Prohibition Act 1998 and s 7(1) of the Firearms Act 1996 respectively. He was sentenced following an appeal to a period of imprisonment on the first count consisting of a non-parole period of 6 months with a balance of term of 2 months and on the second count to a period of imprisonment consisting of a non-parole period of 3 years and 2 months with a balance of term of 1 year and 1 month. Hislop J recited the facts that gave rise to these charges at [5] and [6] as follows:

12. [59]

    His Honour's view of the gravity of the offences in the case before the Court is exposed later in his reasons for judgment at [13] -[19] as follows:

13. [60]

    A comparison of the objective criminality involved in that case with the corresponding weapons offence committed by the applicant in the present case in my view significantly favours the applicant.

14. [61]

    I have also had regard to what was said by Mason P in R v Hammoud [2000] NSWCCA 540 at [7] - [11] on the question of concurrence and accumulation in the light of R v Pearce [1998] HCA 57; (1998) 194 CLR 610 as follows:

15. [62]

    More recently Howie J expanded upon the principles of concurrence and totality in Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27] as follows:

16. [63]

    His Honour drew upon what was said by this Court in R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481 at [11] - [13] in these terms:

17. [64]

    I am conscious of the fact that the exercise of the sentencing discretion, as with any discretion properly exercised, is prone, if not likely, legitimately to produce different and varying results. I have reaffirmed the sentencing judge's analysis of the seriousness of the weapons offence and the sentence that he imposed. However, as I have indicated, it is my view that in terms of the principle of totality it is not only legitimate but also necessary to increase the level of concurrence of the sentences for that offence and the drug offence, having regard to the circumstances of, and sentences imposed in, comparable cases with comparable offences, such as in Tran. I consider that his Honour accumulated the sentences excessively. Whilst deserving of recognition as a discrete and separate act of criminality, and even warranting the description "sinister", the weapons offence can be backdated by 1 year without derogating from the impact of the sentence imposed by his Honour for that offence. In my opinion, a proper application of the principle of totality drives me in this case to that conclusion.

Conclusions and orders

1. [65]

   Although the individual sentences imposed upon the applicant by his Honour were appropriate, the total effective sentence was excessive because of the way in which the overall sentence was structured. I consider that his Honour erred in his approach to totality and the extent of accumulation by ordering that the sentence for the firearms offence should commence on 11 May 2011. That does not of itself mean that this Court should intervene. The Court must be satisfied that some other sentence is warranted in law: s6 (3) Criminal Appeal Act 1912. In my opinion some other sentence is warranted. I consider that the commencement date for the firearms offence should be 11 May 2010.

2. [66]

   Accordingly I would propose the following orders:

3. [67]

   It follows that the overall effective sentence remains the same but that the effective non-parole period is reduced to 3 years and 6 months. The first date upon which the applicant will become eligible for parole is 10 November 2012.