The Queen v Andersen[1998] QCA 272

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

 C.A. No.  90 of 1998

Brisbane

[R. v.  Anderson]

THE QUEEN

v.

GARRY CHARLES ANDERSON

(Applicant) Appellant

McPherson J.A.

Thomas J.A.

Ambrose J.

Judgment delivered 11 September 1998

Separate reasons for judgment of each member of the Court, Ambrose J dissenting in part.

APPEAL AGAINST CONVICTION DISMISSED.  APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED.  APPEAL AGAINST SENTENCE ALLOWED.  SENTENCE IMPOSED BELOW ON COUNTS 1 AND 2 SET ASIDE AND IN LIEU THEREOF CONCURRENT SENTENCES OF SIX YEARS IMPRISONMENT IMPOSED WITH A RECOMMENDATION UNDER S. 157(2)(a) PENALTIES & SENTENCES ACT, THAT THE PERIOD THE APPLICANT MUST SERVE BE UNTIL 27 JUNE 2001.  SENTENCE IMPOSED BELOW ON COUNT 3 SET ASIDE AND IN LIEU THEREOF A CONCURRENT SENTENCE OF THREE YEARS IMPRISONMENT IMPOSED.

CATCHWORDS: CRIMINAL - Evidence of possession by appellant of guns consistent with (but not identified as) guns stolen - circumstantial evidence - whether trial judge warned jury adequately concerning evidence of accomplices with criminal convictions - s. 632(3) Criminal Code - schizophrenic witness - whether special warning necessary as to special risk of unreliability - Bromley v The Queen (1986) 161 CLR 315 distinguished - effect of sentence on previous sentence current at the date of sentencing - error in sentencing process - totality principle - oppressive effect of cumulative sentence to commence after completion of unexpired portion of previous sentence.

Bromley v The Queen (1986) 161 CLR 315

R v Coss (CA 262 of 1994, 15 March 1995)

R v Dinaro (CA 323 of 1997, 21 October 1997)

R v Stirling (CA 205 of 1996, 17 September 1996)

R v Laman (CA 142 of 1997, 21 October 1997)

Counsel: Mr A Rafter for the applicant/appellant

Mr D Meredith for the respondent

Solicitors: Legal Aid Queensland for the applicant/appellant

Director of Public Prosecutions (Queensland) for the respondent

Hearing Date: 4 June 1998

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 11 September 1998

1. I agree that, for the reasons given by Thomas J.A., this appeal against conviction should be dismissed. I also agree with the orders proposed by his Honour for varying the sentences imposed on the appellant.

REASONS FOR JUDGMENT - THOMAS JA

Judgment delivered 11 September 1998

1. The appellant was convicted in the District Court at Townsville of a number of offences involving breaking, entering and stealing a quantity of firearms, coins, gold nuggets, jewellery and other property. The relevant items were taken from the house and adjoining steel shed on a property situated at Majors Creek on 4 March 1996. The stolen property included 45 firearms of various kinds ranging from semi-automatic pistols to shot-guns and a jungle carbine rifle. They included about 35 hand-guns. There was also a substantial quantity of coins, gold nuggets in containers, money, jewellery (including 33 particular items) and miscellaneous property including liquor, binoculars and knives.
2. Only three grounds of appeal were pursued. However before dealing with them it will be necessary to present a short statement of the evidence to which the grounds of appeal relate. This is the evidence of Joanne Arthur, Darryl Arthur, Giovanna Anderson, David Robinson and Michael Brenton.

1.  Joanne Arthur: She and the next witness (Darryl Arthur) were married on 24 February 1996 which it will be noted was about one week before the relevant property was taken. At material times the appellant lived with one Tanya Miller, his co-accused. On an occasion prior to 10 March 1996 Joanne and Darryl Arthur visited the appellant and Miller at Miller’s flat. Joanne recalls Darryl saying to her in the presence of the appellant “You should see the little gun that Garry gave Tanya”. There was no denial from the appellant that he had done so.

A few days later Joanne Arthur again went to Miller’s flat. On this occasion the appellant produced a blanket with six to eight hand-guns on it, saying to Joanne and Darryl Arthur “Pick one, it’s my wedding present to you”.

Joanne Arthur soon after this spent a period in prison.  Shortly after her release at the end of July 1996 the appellant visited her.  The evidence revealed that there had been considerable publicity about this incident in the Townsville area at that time.  During this visit Joanne Arthur said to the appellant, “. . . if anyone, Tanya would give you up on this,” to which he replied, “No she won’t.”

2. Darryl Arthur:  His evidence included a conversation with the appellant in which the appellant said that he would get a 9mm pistol for him the next day.  The appellant later asked him to go around to his flat.  When he did so, he and the appellant went next door into the flat of Gavin Munt (another co-accused).  There the appellant gave Darryl Arthur a handgun that the witness described as a Colt Narenko 45 automatic.  The inventory of stolen property indicates that the property taken included a Narenko 45 semi-automatic pistol.  The appellant said he could not get him a 9mm as he had promised but knew that Darryl Arthur liked 45s.  Darryl then asked could Joanne have one too.  The appellant then gave him a second 45.  Munt then said (in the presence of the appellant) that “he’d done this place over in Majors Creek and they’d got some hand-guns and some jewellery.”

While Joanne was in prison, the appellant visited Darryl Arthur and asked for one of the 45s back, as he had a buyer for it, and said that he would replace it in a couple of days.  A few days later Darryl Arthur went with the appellant to a place 10 km north of Townsville which he believed to be government property.  The appellant dug up a green ammunition box and a green haversack.  These were taken to a caravan park where approximately 12 hand-guns were emptied onto the floor of a caravan.  The guns were then packed in bags, placed in the boot of the car and the men returned to the appellant’s flat.  The guns were then hidden in the roof of Munt’s flat next door.

Darryl Arthur also gave evidence that he was present on three occasions when the appellant supplied guns to a person named Karl Sinclair.

3. Giovanna Anderson: This witness is the half sister of the appellant.  In early March 1996 she received a visit from the appellant in company with Munt and Tanya Miller.  Tanya showed Giovanna a quantity of gold rings, chains, necklaces and some cash, asking her to hide them.  Giovanna did so by burying them in the adjoining allotment.

On another occasion shortly afterwards she was visited by the same three persons.  In the presence of the appellant she read aloud an article from the Townsville Bulletin describing the theft from the property at Majors Creek.  She read out that guns, jewellery and ivory had been stolen.  At this point the appellant said that they only took firearms and jewellery, not ivory.

4. David Robinson: The appellant, after his arrest, was in custody at the Correctional Centre at Wacol.  He approached Mr Robinson on 11 April 1997, not long after his arrest, asking Robinson whether he could ring a female named Karyn on a Townsville telephone number.  Robinson made the call and spoke initially to a person called Michael Brenton.  The appellant then spoke to that person.  Mr Robinson overheard the appellant say “Mate, I need you to do something urgently for me.  It’s very important.  I want you to go round and see Spider, cops saw me today and they want to get Spider and Tanya.  You have to go and see Spider and tell him to keep his mouth shut and say nothing.  It’s very important man”.  He continued “Do you know where Margaret is?  Get Margaret to see Tanya and tell her to get out of sight and hide for a while.  Will you do that tonight?  It’s important.”  He then asked “What’s the address there?” and Robinson heard him repeat “222 Melton Terrace”.  He concluded the conversation with the words “You will see Spider tonight, won’t you?  It’s important.”  There was evidence that Munt’s nickname was Spider.

5. Michael Brenton: This witness gave his account of the same telephone conversation.  It differs slightly from Robinson’s version but includes the fact that the appellant wanted him to give a message to Tanya and Spider that the police were looking for them and that they were not to say anything.

3. The appellant did not give or call any evidence.

GROUNDS OF APPEAL

1. Admissibility of evidence of telephone call made by the appellant from prison on 11 April 1997.

4. Objection was taken to the reception of this evidence, on the ground that its prejudicial effect outweighed any value and ought to have been excluded by the learned Trial Judge. His Honour admitted the evidence, indicating that he would warn the jury not to draw any adverse inference on account of the fact that the appellant was in prison. His Honour in due course gave such a direction.
5. The connection between the appellant, Miller and Munt was an important part of the Crown case and the evidence in question was capable of showing that the appellant knew that those persons had information that might be damaging to him. The complaint on behalf of the appellant is that it was prejudicial because of the fact that the jury knew he was in prison at the time he made the call. It is an extraordinary submission when it is obvious that the appellant had to have been arrested in order to be brought before the Court, and a jury would hardly be surprised that a person charged with those offences did not get immediate bail. In any event, the warning given by the learned Trial Judge was adequate.
6. There is no merit in this ground.

2. Admissibility of evidence of Mr and Mrs Arthur concerning unidentified guns seen in the presence of the appellant. 

7. The submission is that such evidence should have been excluded because there was no evidence that the guns seen by those persons were the same as the guns taken from the Majors Creek property.
8. In my view, this evidence was properly received as part of a circumstantial case. As has often been observed, it is not necessary that each item of evidence in a circumstantial case independently prove the charge or even that it must point unequivocally in only one direction (compare R v Berrill [1982] Qd R 509, 526-527). Guns are relatively uncommon objects, and the appellant’s apparent possession of multiple guns in the circumstances described by Darryl Arthur at a time subsequent to the stealing of multiple firearms which these guns generally (although not specifically) matched is a sufficiently incriminating circumstance to justify its reception against the appellant. I do not doubt that the possession of a considerable sum of money by a person following the stealing of a considerable sum of money would be admissible although far from conclusive evidence, notwithstanding the fact that serial numbers could not be matched to those of the stolen notes. The possession of guns, which is a less common phenomenon than the possession of money would, I think, amount to a particularly suspicious circumstance in the context of the evidence in question here, and the absence of some special explanation might tend to strengthen the case that the appellant was involved in the Majors Creek theft.
9. As in most circumstantial cases, the combination of the individual observations, all of which tend to point in the one direction against an accused person, is the basis upon which a valid conviction may be established. Counsel for the appellant accepted that, at least some of the guns described in evidence in these matters fitted a broad description of the stolen items. In my view such evidence was plainly admissible.

3. Failure by the Trial Judge to warn the jury in relation to the evidence of Mr and Mrs Arthur and Ms Anderson.

10. These persons were cross examined at some length in relation to their criminal convictions and their credit was, not surprisingly, attacked by defence counsel. It would seem from the evidence of the gifts or loans of hand guns to Mr and Mrs Arthur that they could be regarded as receivers of those items and arguably accomplices, although obviously their involvement was after the event.
11. The learned Trial Judge adequately put before the jury the poor character of these witnesses and the effect of their convictions for dishonesty. He also told the jury to take into account the fact that Mr and Mrs Arthur received firearms knowing them to be stolen. With respect to all three witnesses, he told the jury that their evidence should be considered with caution and that it should only be acted upon if the jury considered it could be regarded as reliable.
12. Under Section 632 of the Code (as amended) a Judge is no longer required by any rule of law or practice to warn the jury that it is unsafe to convict on the uncorroborated testimony of one witness. Section 632(3) precludes a Judge from warning or suggesting in any way to the jury that the law regards any class of complainants as unreliable witnesses. It is still however the case that Trial Judges give appropriate warnings to the jury in relation to the evidence of accomplices, usually by drawing attention to a tendency on the part of such persons to do whatever might be best suited to minimising their own role or exculpating themselves. It is not the case however that Courts have restored any requirement of directing juries to search for corroboration before acting on the evidence of anyone who might be regarded as an accomplice. For my part, I should regard any such trend as undesirable.
13. In the present case, it is difficult to see what additional meaningful warnings the Trial Judge should have given, and counsel for the appellant was in difficulty in identifying the particular additional directions that might be said to be necessary. In my view, the warnings and directions given by the learned Trial Judge in relation to these witnesses were adequate.
14. It was finally submitted that the learned Trial Judge erred in failing to give a special warning to the jury on the basis that Giovanna Anderson was a schizophrenic.
15. In the course of her evidence, Giovanna admitted that she suffered from schizophrenia. There was however no medical evidence to give meaning to the term or to suggest the nature or extent to which that condition might affect this witness’s reliability. The evidence is limited to Ms Anderson initially volunteering to the cross examiner that she was schizophrenic, that she had been on medication but was not on medication at that time; further questioning elicited that she had been “cleared” by her psychiatrist; that with her disease she does have memory lapses; that she had come to be able to handle the disease herself; and that she was not in need of medication at the time when she gave her statement to the police. We were referred to Bromley v. The Queen (1986) 161 CLR 315, 319 where Gibbs CJ said:

“If it appears that a witness whose evidence is important has some mental disability which may affect his or her capacity to give reliable evidence, common sense clearly dictates that the jury should be given a warning, appropriate in the circumstances of the case, of the possible danger of basing a conviction on testimony of that witness unless it is confirmed by other evidence”.

16. However, the evidence in the present case does little more than add the label “schizophrenic” to Ms Anderson with a concession that she has memory losses. Unlike the situation in Bromley, there was no evidence that she was suffering from a schizophrenic attack either at the time she gave evidence or at the time about which she gave evidence. Schizophrenia, like many other conditions, involves questions of degree, and a wide variety of symptoms.
17. In the absence of expert testimony, it is difficult to see how a Trial Judge could take the matter any further than counsel had elicited from the witness. Indeed, a Trial Judge is in no better position than a jury on an issue of this kind. The assumption of some superior knowledge or experience by Courts on the subject of schizophrenia would be an unwarranted imposition on the jury. The need for special direction such as Gibbs CJ considered necessary in Bromley, arises when the evidence reveals a special risk of unreliability that needs to be emphasised by the Trial Judge. However, in the present case, the matter was adequately before the jury. The true issues were unreliability and poor memory, not some additional non-specific risk to be taken into account because of the label “schizophrenia”.
18. It does not seem that any particular request was made by counsel for a special direction on this topic, and once again it is difficult to think of anything that the learned Trial Judge could have done other than to direct the jury’s attention to that particular aspect of the evidence. In my view, no error is shown in relation to this particular issue.
19. The appeal against conviction should be dismissed.
20. The applicant was convicted of three offences -

1. breaking, entering and stealing;
2. house breaking;
3. stealing.

21. The learned sentencing Judge imposed six years imprisonment on each count, to commence on 30 May 1999, which was erroneously taken by his Honour to be the completion date of the appellant’s current sentence. It would seem that his Honour was supplied with incorrect information as to the current completion date of various sentences that had previously been imposed upon the appellant and which were still current at the date of sentencing.
22. It was conceded on the appeal that his Honour did not have jurisdiction to impose six years on the third matter, as the maximum sentence for that offence is three years. It was also conceded that his Honour failed to fix a new parole date, as required by s. 157 of the Penalties & Sentences Act. Counsel are in agreement that error has occurred in the sentencing process and that it is appropriate that this Court should now determine and impose the appropriate sentence.
23. To do this is a task of surprising complexity. This is produced by the variety of sentences imposed previously, some of which were cumulative, and by the circumstance that the present offences were committed when the appellant was on parole in respect of earlier offences. This led to the suspension of his parole and his return to custody on former sentences before he was dealt with on the present matter.
24. I propose to state briefly the matters relevant to the determination of what might ordinarily be thought to be the appropriate range of sentence for offences of the present severity, having regard to this man’s prior criminal history and other antecedents. I shall then analyse the effect of pre-existing sentences so that the overall effect of the additional sentences that must now be imposed can be seen. In the end, a sentence must be fashioned which will not, in combination with other sentences, be unfairly oppressive, or offend the totality principle (R v Coss (CA 262 of 1994, 15 March 1995); R v Laman (CA 142 of 1997, 21 October 1997)).
25. The applicant was thirty years old at the relevant time, and has a fairly extensive criminal history. The most serious prior offence was armed robbery in company for which he was sentenced on 20 May 1993 to five years imprisonment with eligibility for consideration of parole after serving fifteen months. He was released after serving two years and four months of that sentence, and was on parole when the present offences were committed.
26. The value of the property stolen in the present matters was between $85,000.00 and $90,000.00. Most of this (approximately to the value of $65,000.00) remains unrecovered. The nature of the property taken is a relevant matter, as the availability of hand guns, especially in the hands of persons of dubious character, is a serious threat to law and order. This was an extremely impudent and dangerous venture.
27. The appellant went to trial on all matters and there does not appear to have been the least hint of remorse. The offence involved the opening of safes and the forcing of very secure doors, followed by the ransacking of the house. In short, the case affords a serious example of the offences of house breaking and breaking, entering and stealing, by a person with a fairly serious criminal history. Counsel for the Crown, on the appeal, submitted that although a sentence of six years imprisonment might be regarded as at the top of the available range for offences of this kind, it could be justified having regard to the above circumstances. The reference to an “available range” is of course not to the statutory maximum which was at the material time life imprisonment for housebreaking (s. 419); the submission refers to the level of sentences fairly consistently recognised by the courts as appropriate for offences of comparable severity. On the other hand, counsel for the applicant submitted that a sentence of three years imprisonment (cumulative upon the existing sentences) would appropriately meet the situation, given the combined effect of the sentences that must be served. Of course the appropriate sentence will be very directly affected by the question of when it is to commence.
28. The applicant had been released on parole after serving two years and four months of a five-year term. Upon suspension and eventual cancellation of his parole, he became obliged to serve the remaining two years and eight months of that sentence. He commenced to serve it when he was returned to custody on 31 January 1997. The time served between that date and the date of the present sentences (a little over a year) is therefore not regarded as pre-sentence custody on the present matters. In addition to his obligation to serve the balance of the original sentence, before being dealt with on the present matters he had been sentenced to an additional four months for escape from custody (cumulative) and three months for breach of the Bail Act (also cumulative).
29. It follows that if the present sentences are to be made cumulative upon those he was already serving, it would not commence until 30 April 2000. A six-year cumulative term which would not end until 30 April 2006 would in my view be manifestly excessive. Although some cumulative effect seems appropriate in the present exercise having regard to the sequence and separate criminality of the various offences, the oppressive effect of cumulative sentences is well recognised, especially when a cumulative sentence is ordered to commence after completing the unexpired portion of a previous sentence when the benefit of parole and remission is completely lost (R v Coss (CA 262 of 1994, 15 March 1995); R v Stirling (CA 205 of 1996, 17 September 1996); R v Dinaro (CA 323 of 1997, 21 October 1997)).
30. The total criminal conduct which needs to be assessed consists of the armed robbery in company and related offences committed in 1992, a breach of the Bail Act (which was thought serious enough to warrant three months cumulative) apparently committed before he was dealt with on the armed robbery charge, his commission of the present offences on 4 March 1996, a variety of minor offences committed in 1996 which appropriately attracted concurrent short-term sentences, and his escape from legal custody (for which he was sentenced to four months cumulative) which occurred on 27 May 1997 after he had been arrested on the present matters. It can be seen that the criminality with which we are concerned is that which was engaged in over two relatively short periods namely 1992-1993, and 1995-1996. As at the sentencing date for the present matters (27 February 1998) he had already served a little under three and a half years. The question then is how much more is justifiable? The sentence must reflect in some way that the present offences were committed whilst he was on parole, and that some of the offences, of their very nature, call for cumulative treatment.
31. It seems to me that the situation would best be met by imposing a relatively severe concurrent sentence, which in this instance should be one of six years, at the same time allowing for a relatively small cumulative effect to be included by reason of his commission of other offences including his escape from custody. This can be achieved by a postponement of his parole eligibility date of four months beyond the half way mark of the concurrent six-year sentence.
32. I would therefore propose that on Counts 1 and 2 (the breaking, entering and stealing, and housebreaking charges) the sentences below should be set aside and replaced with concurrent sentences of six years imprisonment with a recommendation (under s. 157(3)(a) of the Penalties & Sentences Act) that the period the applicant must serve be until 27 June 2001. This is a period three years and four months after the date upon which the present sentences are taken to have commenced, namely 27 February 1998.
33. With respect to Count 3 (stealing) the sentence below should be set aside and replaced with a concurrent sentence of three years imprisonment.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

 C.A. No. 90 of 1998

Brisbane

Before McPherson J.A.

Thomas J.A.

Ambrose J.

[R v Anderson]

THE QUEEN

v.

GARRY CHARLES ANDERSON

(Applicant) Appellant

REASONS FOR JUDGMENT - AMBROSE J.

Judgment delivered 11 September 1998

1. I have had the advantage of reading the reasons for judgment of Thomas J.A. in this matter.
2. I agree for the reasons he has given that the appeal against conviction should be dismissed.
3. I turn to the application for leave to appeal against sentence. I agree that the imposition of a six year sentence on the stealing count when at the material time the maximum penalty was three years, and the failure of the learned sentencing Judge to make a recommendation for eligibility for parole after having imposed cumulative sentences, require this Court to intervene to correct that error and omission, nevertheless, I am unpersuaded on the whole of the material that the cumulative sentence of six years on each of the breaking, entering and stealing and housebreaking counts is manifestly excessive.
4. The serious nature of the offences for which he was sentenced must be considered in the light of the serious offence in respect of which he had been released upon parole only six months prior to the commission of these offences.
5. In my view the appellant has a significant criminal history. The first serious offence was breaking and entering a dwelling house with intent in September 1985. He was convicted and received a probation order on that occasion. Subsequently he was convicted of various other offences involving dangerous driving, driving an unregistered vehicle and driving a vehicle with false number plates. At that time he apparently had no driver’s licence.
6. In December 1992 he was again convicted of breaking, entering and stealing.
7. On 20 May 1993 he was convicted of robbery whilst armed with an offensive weapon and in company. He was also convicted of assault with intent to steal. On this occasion he was sentenced to imprisonment for five years with a recommendation that he be eligible for parole after serving 15 months. At that stage a recommendation was made that while in prison he receive treatment and counselling for drug dependency problems.
8. Apparently while in custody he was convicted of another charge of assault occasioning bodily harm committed in December 1991 and with breaking and entering a dwelling house with intent committed in August 1992. The sentences imposed for those offences were sentences concurrent with that imposed for armed robbery in 1993.
9. The appellant was released upon parole on the five year sentence imposed for robbery in company with violence, two years and four months after imposition of that sentence - that is on 25 September 1995.
10. It was on 4 March 1996 that the appellant committed the offences for which he was sentenced on 27 February 1998 and in respect of which he seeks leave to appeal.
11. Police officers first interviewed the applicant in respect of the offences (of which he was convicted in February 1998) in April 1997. At that time he was in custody in the Sir David Longland Correctional Centre in Brisbane. It was on 11 April 1997 that he was arrested on the three charges of which he was convicted and for which he was sentenced in February 1998.
12. On 27 May 1997 the applicant with four other prisoners escaped from lawful custody and was sentenced on 28 May 1997 to four months imprisonment cumulative with the sentence of five years previously imposed for armed robbery in company with violence.
13. As Thomas J.A. has observed, the applicant has displayed no hint of remorse for the offences of which he was convicted. The value of the unrecovered stolen property is about $65,000. He has been given the opportunity of probation on a number of occasions and also was granted parole after serving two years and four months of the five year sentence imposed for robbery in May 1993.
14. It was only six months after release upon parole for the serious offence of robbery in company with violence that he committed the offences for which he has most recently been sentenced. Those offences involved the breaking and entering of a shed and the stealing of firearms kept in it and the breaking and entering of a dwelling house with intent, and the theft of a lot of property including valuable items of jewellery and some firearms. Most significantly however, the offences involved the theft of a large number of weapons, including concealable firearms which the evidence indicates the applicant took pains to hide and to make available to persons for use in what may be inferred to be criminal activities.
15. The applicant was apprehended only as a consequence of information given to the police by some of his criminal associates with knowledge of his commission of these offences.
16. All told, thirty handguns of various kinds were stolen, together with seven rifles, some of military style and a pump action shotgun.
17. It is clear from the evidence that the applicant was involved in the sale of these weapons and having regard to his criminal antecedents and his obvious willingness to dispose of them to persons who were prepared to pay for them, the learned sentencing Judge adverted to the very significant number of concealable firearms which the applicant had stolen and secreted away. Only two of the stolen handguns have been recovered. None of the other weaponry has been traced. His Honour unsurprisingly referred to the potential for the use of these weapons to assist in the commission of further crimes. Obviously crimes of violence including robbery etcetera would be furthered by the use of such weaponry. His Honour observed:-

“The theft of firearms of this nature obviously can lead to the commission of crime and the vending of such firearms is a serious aspect and feature of the evidence as well.”

19. His Honour observed that the opening of two safes and the forcing of entry through doors “in a very secure home” led to the conclusion that:-

“it may well have been that pre-planning involved a knowledge that the firearms in the volume that were taken were likely to be located at that scene”.

In imposing the sentences his Honour observed:-

“--- However the serious nature of these charges as has been suggested to me combined with your criminal history makes a period of custody necessary to punish you for your involvement and more particularly to deter any like-minded person from committing further offences of this nature.”

20. As I read his Honour’s observations, they were directed not merely to the significant value of property stolen but also to the large number of concealable firearms and other firearms which had been stolen for the purposes of “vending” them to other criminally minded persons to assist them in crimes involving violence. In my view that inference was clearly open.
21. I am unpersuaded that sentences of six years imprisonment on Counts 1 and 2 to be served cumulatively with the other sentences for robbery, escape from custody etcetera are manifestly excessive.
22. It is clear that the breach of bail and the escape from lawful custody each required a cumulative sentence and the length of each sentence in my view could not be and has not been challenged.
23. In my view the offences against which the applicant seeks leave to appeal were of a completely different nature from that of the robbery offence in respect of which he had been released on parole six months before he committed them. In my view, a cumulative sentence is called for. Although it is conceded that a sentence of six years is towards the upper end of the range, it must be kept in mind that the maximum penalty for housebreaking with intent was at the time the offence was committed fourteen years imprisonment (s. 419) and similarly, for breaking and entering the shed which involved breaking into safes etcetera to permit the stealing of many weapons the maximum penalty was fourteen years imprisonment (s. 421).
24. The applicant has a significant criminal history which includes offences of violence.
25. The applicant was released upon parole on 25 September 1995. His parole was suspended on 4 October 1996 and he was returned to custody on 31 January 1997.
26. To avoid the contention that the imposition of a six year cumulative sentence upon the five year sentence imposed for robbery in company with violence might appear manifestly excessive for the reasons canvassed by Thomas J.A., I would instead of imposing a concurrent sentence and lengthening the period for eligibility for parole, confirm the cumulative sentences of six years imprisonment on each of the first two counts upon which the applicant was convicted. However, I would make a recommendation that the applicant be eligible for parole at a slightly earlier date than might otherwise be the case. I would recommend that he be eligible for parole on 27 February 2002.
27. A consequence of such an order will hopefully be that some form of supervision will be exercised over the applicant for several years if he be released in 2002.
28. It would not achieve the desired deterrence in this sort of case to extend leniency to an offender with the criminal history of this applicant who, by a careful , planned and executed effort with the assistance of others, has procured an arsenal of weapons, many of them automatic and semi-automatic, most of which have not been recovered. In my view deterrence requires the imposition of a significant cumulative sentence; the interests of both the applicant and the community would be best served if he were subject to the constraints of a parole order for a significant period of time.
29. I would therefore allow the appeal. I would confirm the sentence of six years imposed by the learned sentencing Judge on each of Counts 1 and 2. I would make those sentences cumulative with those already imposed upon the applicant prior to 27 February 1998. With respect to Count 3, I would set aside the sentence of six years and impose in lieu a sentence of three years imprisonment. That sentence I would make concurrent with the sentences imposed upon Counts 1 and 2 but of course cumulative upon the sentence of five years imprisonment imposed on 20 May 1993.
30. I would make a recommendation that in respect of all sentences of imprisonment imposed upon the applicant up to the present time, he be eligible for parole on 27 February 2002.