R v Booth[1999] QCA 100

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane

[R v Booth]

THE QUEEN

v

DAVID JOHN BOOTH

Appellant

   (Applicant)

McPherson JA

Thomas JA

White J

Judgment delivered 30 March 1999

Separate reasons for judgment of each member of the Court, each concurring as to the order made.

APPEAL AGAINST SENTENCE ALLOWED. TERM OF IMPRISONMENT IMPOSED IN RESPECT OF EACH OF THE OFFENCES CHARGED IN COUNTS 1, 2, 5 AND 6 OF THE INDICTMENT REDUCED FROM 12 YEARS TO 10 YEARS.

REASONS FOR JUDGMENT - McPHERSON JA

Judgment delivered 30 March 1999

1. On 17 September 1998, the appellant pleaded guilty in the District Court at Toowoomba to a total of seven counts charging offences, of which four had been committed on 15 May 1998 and the other three some five days later on 20 May 1998. In each of the series of offences committed on those two days, there were charges of burglary with circumstances of aggravation (counts 1 and 5), armed robbery (counts 2 and 6), and unlawful use of a motor vehicle (counts 4 and 7). In addition, among the offences committed on 15 May there was a further charge (count 3) of breaking, entering and stealing. The applicant was sentenced to imprisonment for 12 years on counts 1, 2, 5 and 6 (burglary and armed robbery) and 3 years on each of the other three offences.
2. All sentences were to be served concurrently, but they were ordered to be cumulative upon an existing sentence or sentences of 9 years and 3 years imposed on 21 August 1992, with a recommendation for parole after 3 years, for earlier offences committed by the applicant of armed robbery and breaking, entering and stealing. In that instance the target of the robbery was a shop or a shopkeeper from whom some $14,000 was taken. Since that date, he has also been sentenced (on 24 August 1992) to imprisonment for 3 months for a drug offence committed in July 1992, and on 19 January 1994 to a further three months for assaulting a prison officer and occasioning bodily harm, which was to be cumulative on his existing sentences.
3. The applicant was released on parole on 8 July 1996, and it was while he was on parole that he committed the subject offences in May 1998, after which he was arrested and returned to custody on 22 May 1998. The committal proceedings for the subject offences were only partly completed when the applicant notified his intention of pleading guilty, and he was committed for sentence to the District Court.
4. The learned sentencing judge regarded the offences committed on 15 May and 20 May 1998 as being very serious. The complainant Mrs Boyce was asleep in the bedroom of her flat when, at about 3.15 am on 15 May, the applicant entered thorough an open window. He was dressed in dark clothing, gloves and a balaclava, and armed with a sawn-off shotgun which was loaded. He terrorised the complainant at gun point for about an hour. He ransacked her bedroom, threatened to kill the family dog and cat, and ordered her to get him something to eat, which she did. He took her wages of about $200 from her purse. He did not disturb the children who were sleeping in an adjoining room, but he forced her at gun point to allow him into the premises next door, which was an accountant's office where the complainant worked. There he stole $211 in petty cash (count 3). During the time this was going on, which was for about an hour or so, he insisted on asking her personal questions about herself and her family. Eventually he found the keys to her car, and drove off in it (count 4), taking some clothing with him.
5. Five nights later on 20 May 1998 he entered a dwelling occupied by a Mr and Mrs Balderson. They were a couple, aged in their sixties, who were acting as caretaker managers of a motel while the proprietors were on leave. On this occasion, he was again dressed in dark clothing and a balaclava, and was carrying a loaded shotgun. The complainant couple woke up to find the applicant in the bedroom pointing the gun at, and only about six inches away from, Mr Balderson's head. He forced Mrs Balderson to bind her husband's hands with tape, and demanded to know where the safe was. From time to time he menaced them with the gun and accused them of lying, and he persistently insulted them. At one stage, he threatened to shoot one of them, and asked them to choose who it should be. He ransacked various drawers, and helped himself to a bottle of beer from the fridge. He found some money, about $400 to $500 in amount, which he pocketed, and he took another $1,760 from somewhere else. After an hour or so, he drove off in the Baldersons' car.
6. Later, an astute detective worked out that the applicant was probably an experienced criminal. From personal identifying marks or features noticed by his victims, he was traced through information supplied by Corrective Services. Some other incriminating evidence was found, and the applicant was arrested, charged, and later pleaded guilty.
7. The ordeal which all three victims underwent, during which they naturally feared for their lives, was quite devastating. They are people who have worked hard to earn a living and to raise their families under conditions of some difficulty. Mrs Boyce has now had a recurrence of the post-traumatic distress disorder which she suffered when the family home at Charleville was flooded some time earlier. She is nervous and unable to sleep. Relations with her husband have deteriorated. He conducts a transport business, and is often away during the week. A psychiatrist to whom she was referred says she is now suffering from a major depressive disorder. The effects on Mr and Mrs Balderson have been similar, and at least as severe. He has had heart trouble in the past, which was exacerbated by what he went through. He is suffering from a post-traumatic stress disorder, and, although it is said not to be major, he is now in a state of depression. Mrs Balderson has become fearful and tense, suffering headaches and fits of nausea. She has lost interest in most of her former activities, and is suffering from a major depressive disorder. Their matrimonial relationship has deteriorated. This is all more or less what one would expect when ordinary law-abiding people, who are used to trusting other members of society, are treated in this threatening and abusive fashion by a complete stranger who suddenly intrudes on their private lives and menaces them in this way.
8. The applicant was 26 years old when these offences were committed, and 27 when sentenced. He has an extensive record of criminal convictions, including in 1990 unlawful use of a motor vehicle, as well as four convictions for breaking and entering. In November of that year he was placed on probation for 18 months, but he contravened its terms in 1991. In 1992 he was convicted of the armed robbery and the drug offences already referred to. Some little time before that, he was assessed and found to have "a severe personality disorder which is mainly antisocial, but there are borderline and paranoid traits". The medical practitioner at the hospital who carried out the assessment considered him to be a dangerous man because of his lack of concern for or feelings for anyone in the community. In reporting his opinion, he said that psychiatry had nothing to offer the applicant unless he himself was prepared to change and seek help of his own accord. In that report, the applicant is recorded as having said that he had been expelled first from primary school for putting a child in a garbage bin (where he remained for a day and a half), and later from high school for locking another child in a locker. He is also reported to have said that he hates authority figures, and hates being told what to do.
9. The medical officer's diagnosis or prognosis has, as his Honour observed, proved prophetic. It was a matter which, on sentencing, was relevant under s 9(4)(a) and (b) of the Penalties and Sentences Act. The circumstances of the subject offences also provide a graphic illustration of the applicant's behaviour. It was said that he committed the robberies to obtain money to buy amphetamines to which he is addicted; but he could have taken the money on either of these occasions without putting his victims through the ordeal he imposed on them. It is difficult to avoid the conclusion that he enjoyed having them at his mercy and under his power. He may hate authority but is not averse to exercising it over others. A week or so after he had raided Mrs Boyce's flat, and on the very evening on which he was later arrested, he telephoned her at her home causing her further unnecessary distress. He had presumably noted her telephone number or her name when he was in her flat on 15 May. His conduct in doing so went beyond mere callous indifference or unconcern for her feelings and suggests that he enjoys taunting other people.
10. Offences of this general kind are becoming increasingly common. In R v Peter Stinton (CA 289 of 1998; Feb 2, 1999) the applicant was sentenced in Townsville to imprisonment for 10 years for an offence that was very similar to these. In one sense, it was worse because several offenders took part in it. There was, however, only one such incident, not two as there were here, and the applicant, who was 19 years old, eventually co‑operated with the police, and gave evidence designed to clear his brother (who was not a participant) of suspicion at the trial of his accomplices. In this Court, the sentence was reduced to 8 years to better reflect the applicant's plea of guilty. On that footing, an effective sentence of 12 years for the offences committed by the present applicant on two separate occasions against different victims might, although perhaps high, be thought comparable, given that the appellant had a prior criminal history, including an earlier offence of robbery for which he was on parole at the time these offences were committed. A question might then have arisen as to whether, in fixing that term of imprisonment of 12 years, the learned sentencing judge's decision took sufficient account of the applicant's relatively early decision to plead guilty. His Honour expressly said he had taken it into account; but, if so, he must, as Mr Moynihan for the Crown acknowledged on appeal, have started from an even higher base penalty of some 14 or 15 years imprisonment before arriving at the sentence imposed of 12 years.
11. I would have been content to consider this application on that footing alone; but Mr Martin SC for the applicant and Mr Moynihan of counsel urged the Court to resolve it on a broader basis, which, according to Mr Martin, is that the learned judge had failed to take into account the "totality" principle of sentencing, and that he had, in the result, imposed a sentence on the applicant that was "crushing".
12. For this purpose a summary of the effect of the sentences imposed becomes necessary, beginning with the sentence of 9 years and 3 months imposed on 17 August 1992. Disregarding remissions, his full-time release date would then have been 17 October 2001. On 8 July 1996 he was in fact released on parole after serving 3 years and 11 months after sentence, but returned to custody on 22 May 1998 after his arrest on the subject offences. Under s 187 and 190 of the Corrective Services Act 1988 the effect of his being sentenced for these offences on 17 September 1998 was to cancel his parole and require him to serve the balance of the initial 1992 sentence and the sentences subsequently imposed, which is said to produce a total balance of 5 years and 4 months yet to be served resulting in a full‑time release date of 22 September 2003.
13. Turning now to the subject offences, those charged in counts 1, 2, 5 and 6 (burglary and robbery), of which the applicant was convicted on 17 September 1998, are offences against a provision or provisions of the schedule (items 45 and 42) to the Penalties and Sentences Act 1992. Because those offences were committed while the applicant was, within the meaning of s 156A(1)(b)(ii) of that Act, released on parole, it was mandatory that the sentence of imprisonment imposed in respect of them be ordered to be served cumulatively "with" (or, as I would prefer to say, "upon") any other term of imprisonment he was liable to serve: see s 156A(2). That meant that the concurrent 12 year terms imposed in respect of the counts of burglary and robbery in counts 1, 2, 5 and 6 had to be cumulative on balance of the term of 5 years and 4 months remaining to be served under the earlier sentences when the applicant's parole was cancelled on his conviction on 17 September 1998. Adding on the term of 12 years for the sentences imposed on that date takes his full-time release date under all the sentences to 22 September 2015.
14. In addition, those offences were "serious violent offences" within the meaning of Part 9A of the Penalties and Sentences Act 1992. That is because they were, within the meaning of s 161A(a) and the schedule, offences which had, in terms of s 161A(a)(ii), attracted sentences of imprisonment of 10 years or more. Even if they had been visited with sentences of less than 10, but more than 5 years imprisonment, they would have been declared to be convictions of serious violent offences within the meaning of s 161A(b) of Part 9A: cf R v Collins (CA 238 of 1998; Sept 18, 1998). So much was, indeed, frankly conceded by Mr Martin SC on behalf of the applicant before us. The consequence of being convicted of a serious violent offence like that is that the applicant is, by force of s 166(1)(c)(i) of the Corrective Services Act 1988, not eligible for parole until after he has served 80% of the concurrent 12 year sentences imposed in respect of each of the burglaries and robberies; that is to say, until after serving approximately 9.6 years of those concurrent 12 year terms. By virtue of s 157(7) of the Penalties and Sentences Act 1992, the court sentencing him for a serious violent offence is absolutely precluded from making a recommendation for release on parole that is inconsistent with s 166(1)(c) of the Corrective Services Act. Sections 156A and 161A and the cognate statutory provisions referred to were introduced into the legislation by amendments which came into force from 1 July 1997, which was well before the subject offences were committed in May 1998.
15. In the result, therefore, the applicant will, under the sentences re-activated and imposed by virtue of his convictions for the subject offences on 17 September 1998, not be eligible for parole until a date which Mr Moynihan calculates to be in about April of the year 2013. It is this sentence, or its overall effect, that is submitted by Mr Martin SC to contravene the totality principle and to involve imposing on the applicant the "crushing" burden of which he complains.
16. In Mill v The Queen (1988) 166 CLR 59, 63, the High Court adopted the following statements of the principle taken from a leading textbook:

"The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong; when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'."

Having referred to that passage with approval, their Honours went on in Mill to say:

"Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred."

In the present case the question is whether, in sentencing the applicant, his Honour was required but failed to take account of that principle either generally, or specifically by adjusting the sentence he was imposing in such a way as to offset the effect of the statutory provision in s 156A(2) of the Penalties and Sentences Act that requires the subject sentences to be made cumulative on the balance of the 1992 sentence which the applicant was bound to serve on cancellation of his parole; and also by adopting a similar approach to the statutory provision in s 166(1)(c)(i) of the Corrective Services Act making him ineligible for parole until he has served 80% of the subject sentences. Only in that way, it was said, could the totality principle be given its necessary operation and effect.

17. There is to my mind little doubt that his Honour took the totality principle into account generally in arriving at the concurrent sentences of 12 years imposed in respect of counts 1, 2, 5 and 6. In his sentencing remarks, he expressly said he did. Moreover, although a sentence of 12 years imprisonment for a single count of burglary or a single count of robbery might have appeared excessive, his Honour was here confronted with charges of each of those two offences committed, in the circumstances described, on two different nights some five days apart. It would not have been illegitimate to sentence the applicant to lesser terms of imprisonment for each offence committed on those two separate occasions, and then to order that those sentences be served cumulatively. Instead, in deference to the totality principle, his Honour arrived at an effective head sentence of 12 years for all four offences of burglary or robbery committed on those two occasions, and ordered that they be served concurrently. No doubt the sentences of 3 years imposed in respect of the other three offences also contributed something to the overall head sentence of 12 years but they are effectively masked by the longer head sentence.
18. The real question now is whether his Honour ought specifically to have applied the totality principle so as to arrive at a different and lesser head sentence having regard to the circumstance that the statutory provision now requires: (1) that the subject offences be made cumulative on the 1992 sentence; and (2) that parole eligibility be deferred until 80% of the 12 year sentence had been served. The relevance of the totality principle to sentences being imposed for offences committed while on parole for an earlier sentence not yet fully served has been recognised in this Court on more than one occasion. For example, in Clements (1993) 68 A Crim R 167, 174, Pincus JA said that the totality principle is capable of application to a matter where there was a substantial gap (in that case, of four years) between two groups of offences. The circumstances, said his Honour:

"that the appellant was serving terms of imprisonment for one group of offences when sentenced for the other made it necessary to consider whether the whole of the punishment was appropriate. This is not to say that in every case the totality principle would require that the prisoner be given a lesser sentence for the second offence or group of offences than would otherwise have been appropriate; the question must always be whether the total is proper."

See also Larsen (1989) 44 A Crim R 121, 126, to which Pincus JA referred in that case.

19. The matter was considered again in Coss (1995) 78 A Crim R 550, 555-556, where Pincus JA re-iterated the views he had stated in Clements. In Coss, Thomas J, who agreed generally with the reasons of Pincus JA in that case, said (78 A Crim R 550, 559):

"However quite apart from any obligation under s 157, a sentencing judge needs to consider the point at which parole will be considered, and if the automatic half-way effect of s 166 of the Corrective Services Act seems inappropriate, to specify the appropriate non-parole period. The pitfall may arise in cases where an offender is already serving a prison term and where it is intended to impose a cumulative sentence.  In cases where the offender has served less than half of the first sentence a prima facie reasonable result may be obtained if one adds together the old and the new sentence and specifies half of that as the new non-parole period.  However, in a case like the present where the first sentence has gone beyond its halfway point (apparently upon the offender's own choice) the application of such a formula will produce the result that he will have a parole eligibility less than halfway through the new sentence. In other words, it can produce an artificial abatement with the effect that the overall result is too light."

The decision of this Court in R  v Laman (CA 142 of 1997; Oct 21, 1997) is only one of many instances of the application of this principle in Coss. Ever since that decision, the sentencing practice has generally conformed to the course suggested by Thomas J as being productive of "a prima facie reasonable result", subject to the qualification also suggested by his Honour in a case where the first sentence has gone beyond its halfway point. That was not the case here because the applicant had not served half of his 1992 sentence; so that it was the prima facie rule, rather than the qualification, that would have applied to the applicant under that practice.

20. The question is, however, whether that approach is still permissible having regard to the new sentencing regime introduced by the statutory provisions to which I have been referring in July 1997, which was well before the subject offences were committed in May 1998. It is self-evident that the practice recommended in Coss can no longer be followed in the face of the mandatory provisions of the Penalties and Sentences Act. Section 157A(2) now requires that the sentences for the subject offences must be ordered to be served cumulatively upon any other term of imprisonment that the offender is liable to serve. Did the application of the totality principle nevertheless require his Honour here to adjust the head sentence by reducing its duration so to offset the impact of the change in the law effected by s 157A(2)? In my respectful opinion, it did not. In its application to a case of this kind, the totality principle contemplated that the sentencing tribunal would moderate the effect or consequences of making the two sets of sentences cumulative, and would ordinarily do so preferably by making them concurrent: see the passage from Mill, above. Now s 156A(2) expressly requires the sentences being currently imposed to be served cumulatively upon those already being served or liable to be served. It would have been a wrong exercise of the sentencing discretion to attempt to circumvent that quite specific legislative direction by reducing the sentence currently being imposed so as to reinstate the practice which s 157A(2) has plainly displaced. In the present context, the only relevant function of the totality principle in sentencing for offences committed some time apart formerly was to offset the impact of ordering them to be served cumulatively. Ordering that they be cumulative is what the sentencing judge is now required by s 156A(2) to do in the case of sentences for offences committed on parole.
21. This was evidently the view formed by the learned sentencing judge in the present case. He said he took into account the observations of Pincus JA in Clements and adopted the remarks in Larsen on which they were based; but he said he also took into account the amendments to the sentencing legislation effected by s 156A of the Penalties and Sentences Act and by Part 9A of that Act. It seems that he did not perform the exercise suggested in Coss; but in my respectful opinion he was not required, or indeed permitted, to do so by the new statutory regime for sentencing introduced by the legislation in 1997. In arriving at his conclusion on this matter, his Honour also referred to the recent decision of the Court of Appeal in R v Robinson (CA 72 of 1998; May 26, 1998). It was another case in which the provisions of Part 9A with respect to serious violent offences and the concomitant provisions deferring parole were considered. In the course of the joint reasons of Pincus JA and White J, the following passage appears in Robinson:

"Mrs Clare argued that a court should not react to a change in the parole provisions such as that presently in issue by designing sentences to avoid it.  We agree with that proposition, but it is difficult to see that it applies in the present case."

In sentencing for the subject offences, his Honour referred to the decision in Robinson, although he did so in the context of the need to take into account, "for calculation purposes only", the incomplete balance of the sentence imposed in 1992 for the earlier armed robbery. The proposition accepted in Robinson, although obiter, lends some support to the conclusion that a court in sentencing must apply the cumulating provision in s 156A(2) according to its terms, and not attempt to design a sentence which will avoid it.

22. This leaves for consideration the impact of the statutory provisions deferring release on parole in the case of sentences which are, or are declared to be, serious violent offences. As to that, the remarks in Robinson of Pincus JA and White J, although still strictly obiter having regard to the particular circumstances of and result in that case, are directly in point. Reliance was also placed on the decision in Siganto v The Queen (1998) 73 ALJR 162, where the High Court considered certain recent Northern Territory legislation which effected a deferral of parole until 70% of the sentence had been served in the case of serious sex offenders. Gaudron J, who in some other respects dissented from the majority opinion, held that what she called the parity principle (which her Honour would otherwise have applied) had been specifically displaced by the provisions of s 55 of the Sentencing Act 1995 (NT), which introduced the system of deferring parole (73 ALJR 162, 172 cols 1C to 2A). By "parity principle" in this context I understand her Honour to have meant that sentences imposed on different persons for the same offence should be consistent; that is, the so-called "tariff" penalty. I do not read the reasons of the majority of their Honours in Siganto as precisely deciding the point determined by Gaudron J: but the majority did hold that it was still proper in sentencing in the Territory to take into consideration the pattern or "tariff" of sentences imposed before the introduction of that legislation. Their Honours also specifically rejected a submission that "equal justice" required that the offender should not be punished more severely if he were being sentenced after rather than before the new Act. The fact that, after the statutory changes to the sentencing system, he would now be treated differently from others who had previously offended and been sentenced was, their Honours said, "not relevantly inequality before the law. It is a consequence of a change in the law" (73 ALJR 162, 165 col 2 F-G). The same observation applies, perhaps with even greater force, in the applicant's case before us. He cannot insist on the same level of sentence, or the same expectation of early release, as that which prevailed before the statutory sentencing regime was changed in 1997. In his case, the harsher or more severe sentence, to which he is now required to submit, was not the consequence of any error in sentencing discretion on the part of the judge below, but of a change in the law, which it is not part of the proper function of the sentencing court to be astute in avoiding by imposing a reduced sentence designed to defeat or frustrate it.
23. Mr Martin submitted that the upshot of the various sentences imposed on his client between 1991 and 1998 is that he will now serve a total of some 21 years for these offences of robbery he has committed during that period; or, to express it in a another way, a cumulative series of sentences of 7 years for each of the three sets of those offences, while at the same time his prospects of early parole are limited to about the last 2½ years of the final sentence imposed. Mr Martin may be correct in characterising this as a "crushing" burden on the applicant. But it may well be that it was precisely with the intention in mind of imposing such a crushing burden on an offender in circumstances like these that the amending legislation was enacted. Particular provisions of s 9(2) and especially of s 9(4) strongly suggest that it was the interests and the protection of victims and of the public that were a prominent factor in precipitating the legislative amendments. A comparison of the burdens that will be borne in this instance by the applicant and by his victims and their relatives suggests that his will not be the only burden, and that theirs will not be light.
24. For all that, I remain persuaded that, without some more readily identifiable reduction than that allowed for on account of the applicant's plea of guilty coming as it did at a fairly early stage, the sentencing discretion must to some limited extent have miscarried. I would therefore allow the appeal against sentence by reducing from 12 years to 10 years the term of imprisonment imposed in respect of each of the offences charged in counts 1, 2, 5 and 6 of the indictment.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 338 of 1998

Brisbane

Before  McPherson JA

Thomas JA

White J

[R v Booth]

THE QUEEN

v

DAVID JOHN BOOTH

(Applicant) Appellant

REASONS FOR JUDGMENT - THOMAS JA

Judgment delivered 30 March 1999

1. I agree with the reasons of McPherson JA and White J and with the orders proposed by McPherson JA.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 338 of 1998

Brisbane

Before  McPherson JA

Thomas JA

White J

[R v. Booth]

THE QUEEN

v.

DAVID JOHN BOOTH

(Applicant) Appellant

REASONS FOR JUDGMENT - WHITE J

Judgment delivered 30 March 1999

1. I have read the reasons for judgment of McPherson JA and with respect agree with his Honour’s analysis of the amendments made to the Penalties and Sentences Act 1992 in 1997 insofar as those amendments apply to this application.
2. The legislature in passing the amendments to the Penalties and Sentences Act clearly intended that a different sentencing regime should be applied in respect of sentences imposed for offences designated serious violent offences, ss. 9(3), 156A(2), 161D and s. 166(1) of the Corrective Services Act 1988.
3. Reference to the New South Wales Sentencing Act 1989 and its interpretation may be instructive. That Act abolished the system of remissions which operated similarly in that state to the system of remissions in Queensland as well as the concepts of “head sentence” and “non-parole period”. The Act provides that in their stead a sentencing court when sentencing a person to imprisonment for an offence is required to set a minimum term of imprisonment that the person must serve and set an additional term during which the person may be released on parole. The additional term may not exceed one-third of the minimum term unless a court decides that there are special circumstances. The object of this new Act was to promote truth in sentencing which is similar to the impetus for the Queensland amendments.
4. In R v Maclay (1990) 19 NSWLR 112 the Court of Criminal Appeal (Gleeson CJ, Hunt and Loveday JJ) considering the new Act for the first time and after an extensive review of the history of parole in New South Wales against the changing pattern of sentencing legislation and the case law interpreting it said of the new system at p. 122:

“The remissions system is abolished.  The concepts of ‘head sentence’ and ‘non-parole period’ are also done away with, although it is understandable that persons accustomed to considering sentencing patterns in those terms will see a relationship between minimum terms and what used to be called ‘non-parole period’ and between minimum terms plus additional terms and head sentences.  Nevertheless, it is important to observe that the Act introduces a fresh approach to sentencing and it would be unfortunate if old habits of thought were to be allowed completely to control the operation of what is evidently intended to be a new system.  Many, perhaps most, sentencing principles will continue to be as relevant to the new legislation as they were to the old, but it is a new and different system that has been introduced.”

5. Mr Martin SC who appeared for the applicant does not seek to retain any old habits in respect of this sentence. He submitted that the new regime for serious violent offences does not abolish the totality principle but confines it to the head sentence or combined head sentences when considering overall criminality. He accepted that Part 9A and s. 161(1)(c) of the Corrective Services Act may not be taken into account further to reduce what would otherwise be an appropriate head sentence under the sentencing tariff which applied prior to the amendments. It must be kept in mind that notwithstanding the new serious violent offence provisions, s. 9(1) still applies when sentencing such an offender who must be punished “in a way which is just in all the circumstances”. For that reason I agree with McPherson JA that some greater allowance ought to have been made for the early plea of guilty which saved the complainants, who have suffered continuing symptoms of distress because of these attacks, from giving evidence.
6. I agree with the orders proposed by his Honour.