SUPREME COURT OF QUEENSLAND

[1]  McMURDO P:  The applicant, Nathan James Talakai, pleaded guilty in the District Court at Brisbane on 20 May 2008 to a large number of charges contained in three indictments and to some summary offences.  The prosecution entered a nolle prosequi in respect of count 12 on the first indictment which contained 15 counts.  The offences in that indictment to which Mr Talakai pleaded guilty occurred between 9 August 2006 and 25 January 2007.  They were three counts of burglary and stealing (counts 1, 2 and 5), one count of wilful damage (count 3), two counts of unlawfully using a motor vehicle (counts 4 and 8), one count of entering a dwelling with intent at night (count 6), one count of robbery with personal violence while armed (count 7), one count of entering a dwelling with intent (count 9), one count of entering a dwelling with intent by break (count 10), one count of unlawful entry of a vehicle for committing an indictable offence and threatening to use actual violence (count 11), one count of demanding property with menaces with intent to steal (count 13), one count of entering a dwelling with intent by break at night (counts 14), and one count of robbery with personal violence (count 15).  The second indictment related to three offences, all committed on 28 January 2007: burglary by breaking in the night (count 1A), robbery (count 2A), and unlawfully using a motor vehicle (count 3A).  The third indictment related to two counts of serious assault committed on 29 January 2007 (counts 1B and 2B).  The summary offences to which Mr Talakai pleaded guilty were possessing tainted property, five counts of obstructing police, assaulting police, and breach of a domestic violence order.  Mr Talakai was sentenced to an effective term of eight years imprisonment imposed on counts 6, 7, 14, 15, 1A and 2A.  He was sentenced to lesser concurrent sentences on the remainder of the counts.  A period of 478 days of pre-sentence custody between 29 January 2007 and 20 May 2008 was declared as time already served under the sentence.  A parole eligibility date was set at 28 September 2009.  Mr Talakai applies for leave to appeal against his sentence, contending that it was manifestly excessive.

The sentencing proceedings

(a)Antecedents

[2] Mr Talakai was 25 years old at the time he committed the offences and 27 at sentence.  He had relevant prior convictions.  Most of his criminal history was committed in New South Wales and the record of his prior convictions tendered at sentence is not easy to comprehend.  It seems, however, he was first sentenced to six months imprisonment for eight property offences in the Newcastle Local Court on 8 September 1999.  On 21 September 1999 in the Newcastle Local Court he was sentenced to six months imprisonment for demanding property with menaces with intent to steal, common assault and larceny.  On 10 January 2001 in the Goulburn Local Court he was sentenced to two months imprisonment for assaulting an officer in the execution of duty.  In the Goulburn Local Court on 6 June 2001 he was sentenced to 14 days periodic detention for stealing property in a dwelling house and three counts of "obtain money etc by deception".  On 28 March 2002 in the Newcastle Local Court a number of summary offences were said to have been taken into account in the District Court, apparently on 22 March 2002, when he was sentenced to four years and six months imprisonment with a non-parole period of two years and three months with a condition that he participate in a young offenders program on one count of robbery.  He was also sentenced to lesser concurrent sentences in respect of two  further counts of robbery; three counts of demanding property with menaces were taken into account.  On 30 June 2005 in the Central Local Court he was sentenced to 254 days imprisonment commencing on 19 October 2004 for assault with an act of indecency and stealing property in a dwelling house.  In the Brisbane Magistrates Court on 30 January 2007 he was fined $100 without convictions for two counts of failing to appear in accordance with his bail undertakings. 

(b)The present offending

[3] The circumstances surrounding the offences which concern this application were set out in a schedule of facts tendered at sentence.  Count 1 occurred on 9 August 2006 when a neighbour alerted police after seeing Mr Talakai break into the complainant's home.  A police dog located Mr Talakai hiding in a garage at the rear of the complainant's premises.  He was arrested, declined to take part in a police interview and was granted bail.  He committed the remainder of the offences whilst subject to one or more bail undertakings.

[4] He committed the second count of burglary and stealing on or about 9 November 2006.  He broke into the 23 year old female complainant's home whilst she was sleeping and stole property, including hand bags and a credit card.  When the complainant woke up during the offence and confronted him, he left.  She telephoned police who subsequently located his fingerprints on the outside of the front door which he had shut behind him.  He was apprehended on 30 December 2006 when riding a stolen push bike (the summary offence of possessing tainted property).  He attempted to evade police and later threatened them.  Police used capsicum spray and arrested him after a short struggle (one of the summary offences of obstructing police).  He declined to take part in an interview and denied committing count 2 even when told that his fingerprints were located on the front door.  On 1 January 2007 he was granted bail in respect of count 2 as well as counts 5 to 8, the details of which are set out below. 

[5] Count 3 occurred on or about 12 November 2006.  Mr Talakai's girlfriend, Ms Melissa Ward, sought refuge during an argument with him in a rented home unit.  He pursued her, pulled off an aluminium flyscreen on a partially open window and pushed the window open further and broke it.  On 30 November and 16 December 2006 he obstructed police (two summary offences of obstructing police). 

[6] On 17 December 2006 police were pursuing Mr Talakai on foot.  The complainant in count 4 had left the keys to his car in the ignition as he was putting rubbish in a nearby bin.  Mr Talakai ran into the complainant's vehicle and drove it about ten metres until the complainant reached inside the driver's window and grabbed the keys.  Mr Talakai ran from police, who caught up with him.  They finally subdued him with capsicum spray (count 4 and the summary offences of obstructing police and assaulting police). 

[7] Counts 5 to 8 were committed whilst Mr Talakai was subject to two separate bail undertakings.  The burglary and stealing offence (count 5) was committed on 27 December 2006 and property worth $1,800 was taken.  At about 11 pm on 27 December 2006 the complainant in counts 6 to 8 awoke to see Mr Talakai standing beside him armed with a pair of scissors and demanding drugs.  Later he also demanded the keys to the complainant's car.  He took property valued at $890.00 and the complainant's car which was later located in Kingston.  He was charged with these offences on 30 December 2006 and again placed on bail. 

[8] He committed a series of burglary offences on 21 January 2007 when he was subject to multiple bail undertakings.  The complainant in count 9 resided in a dwelling for adults with intellectual difficulties.  Mr Talakai left the house without any property when confronted by a support worker.  When arrested on other matters on 29 January 2007 he told police that he was on drugs at the time and he entered the house looking for something to steal. 

[9] Count 10 occurred when Mr Talakai approached the 29 year old male complainant in the hallway outside the front door of his unit.  He claimed to be looking for "Barry" or "Brian" and asked "Where's the gear?"  When the complainant told him he had the wrong house, he left without taking any property.  Later when interviewed by police, he said he went to the house looking for drugs and had stepped inside the unit just past the front door. 

[10]  Later that day, Mr Talakai demanded that the 28 year old male complainant in counts 11 and 13 drive him to Salisbury train station.  The complainant feared for his safety and believed that Mr Talakai was indicating that he was armed with a concealed weapon under his clothing.  The prosecutor referred to this offence as "car jacking".  After the complainant had driven Mr Talakai some distance, he ordered him to stop and demanded his wallet.  The complainant gave it to him because he feared that if he did not he would be harmed.  When Mr Talakai saw the wallet was empty he gave it back.  As he left the vehicle he told the complainant "your house is being watched" (counts 11 and 13). 

[11]  On 25 January 2007 at about 1.45am, Mr Talakai opened the front door of the dwelling of the 19 year old complainant in counts 14 and 15 and told him he was looking for "Dave" or "Steve".  The complainant told him there was no-one of that name there and tried to close the door.  Mr Talakai pushed it open and shoved the complainant backwards into the house.  He told him to remain calm.  He took the complainant's mobile phone and removed $10 worth of coins from his wallet.  He took a $10 note from the purse of the complainant's mother.  The complainant said there was no other money in the house.  Mr Talakai tipped out the contents of bags looking for property to steal.  He finally left with a carton of milk and the complainant's MP4 player, instructing the complainant to clean up the mess (counts 14 and 15). 

[12]  I turn now to the offences on the second indictment containing three counts.  On 28 January 2007 at about 8.30 pm the 32 year old male complainant returned home and parked his car in his garage.  Mr Talakai had entered the dwelling by kicking in the front door.  He asked the complainant repeatedly "Where's Timmy, who are you?"  He took the complainant's car keys and told him to face the wall.  He took the complainant's wallet and removed $45 cash, dropping the wallet to the floor.  He demanded further cash but the complainant said he did not have any.  He took the complainant's mobile phone and property including a laptop computer, jewellery and sunglasses.  Mr Talakai left in the complainant's car which was located a few days later in Woodridge.  Police interviewed Mr Talakai when he was in custody.  He participated in a record of interview and admitted he committed these offences to get money for drugs (all three counts on the second indictment).

[13]  On the following day 29 January 2007, police officers Christian Ferguson and Rebecca Sycz were in a marked police vehicle stopped at a red light.  They noticed Mr Talakai acting aggressively towards his girlfriend, Melissa Ward, who was holding a small child.  Five days earlier on 24 January 2007, a domestic violence order had been issued in the Caboolture Magistrates Court naming Mr Talakai as the respondent and Ms Ward as the aggrieved person.  The police officers approached Mr Talakai and requested his particulars.  They made checks which revealed he had given them a false date of birth and was wanted on outstanding warrants.  He fled.  Police officer Ferguson chased him and told him to stop.  He continued to run, colliding with a member of the public.  Police officer Ferguson tackled him to the ground.  Mr Talakai struggled and kicked police officer Ferguson in the face.  Mr Talakai got to his feet.  Police officer Ferguson continued to struggle with him.  Mr Talakai yelled "fuck off", and "fucking let me go".  Police officer Sycz told him to stop struggling or she would use capsicum spray.  He continued to struggle and she used the spray on him.  She tried to grab his hair.  He continued to struggle with police officer Ferguson.  She managed to put handcuffs on one of his arms.  He punched her in the cheekbone and eye socket.  A member of the public assisted the police officers to handcuff him.  The police officers suffered some minor bruising and abrasions and neck and back strain. 

[14]  Ms Sycz's victim impact statement was tendered: Mr Talakai's offending had a particularly detrimental impact on her because that day she was on her first operational shift for 18 months after sustaining a permanent back injury.  She was very angry at the physical and emotional effect of his irresponsible offending on her and others.

[15]  The total amount of property taken or damaged in all the offences was $15,247 of which $10,332 remained outstanding at sentence. 

[16]  The prosecution proceeded by way of a committal hearing with hand-up witness statements without cross-examination.  Mr Talakai indicated at an early stage that he would plead guilty. 

(c)Counsel's submissions at sentence

[17]  The prosecutor at sentence emphasised the following matters.  The aggravating features of the offending were its persistent and recidivist nature which involved the targeting of private dwellings and occupants.  The majority of the offences were committed in breach of bail orders.  A sentence in the range of eight to nine years imprisonment was appropriate.  A sentence at the lower end of that range, namely one of eight years imprisonment, was appropriate because of Mr Talakai's early plea of guilty and co-operation with the authorities.  Mr Talakai committed the offences whilst on bail.  For that reason, no parole eligibility date should be fixed so that he would be eligible after four years.  Taking into account the pre-sentence custody, that would make him eligible for parole on 29 January 2011.

[18]  Defence counsel at sentence emphasised the following matters.  Mr Talakai was part of a concerned and law abiding family in the Tongan community.  His father was a minister of religion and would have attended court but was overseas at the time of sentence.  Mr Talakai's mother was present in court.  He became involved with drugs and a negative peer group at about age 14.  He had a very supportive partner of four years, Ms Ward, who attended court with their 19 month old daughter.  Mr Talakai's present offending occurred in circumstances where his relationship was troubled and he again turned to drugs for solace.  He committed offences to obtain money to fund his drug habit.  Since Mr Talakai had been in custody, he had stopped taking drugs and had gained great insight into the role of substance abuse in his offending.  Defence counsel tendered extracts from Mr Talakai's diaries which gave some credence to that claim.  Counsel also tendered a letter from Mr Talakai to the judge.  It referred to the loss of his 14 year old brother in a factory fire when he was 12 as a triggering factor leading to his anti-social, adolescent behaviour.  Mr Talakai articulately explained that whilst in custody he believed he had gained insight into his offending and had developed tools to help him lead a better life.  He felt guilty about not being able to support his partner, who had stood by him.  He wanted to "[be] there" for his baby daughter and to live a "pro-social life" by improving his education.

[19]  Mr Talakai's father wrote a letter to the judge, expressing his love and support for his son, despite his drug problem, his belief that his son was truly remorseful and stating that he would support his son to become a new and responsible person to his own family, to the community and to the country.

[20]  Mr Talakai's partner, Ms Ward, also wrote to the judge explaining that their relationship had been good until Mr Talakai began using drugs.  Since he had been in custody and drug free, his attitude and behaviour had improved dramatically.  He now deeply regretted his past actions.  He had expressed a desire to live drug free and to intimately involve himself in raising his daughter.  When Mr Talakai is released from prison they both intend to have counselling to strengthen their relationship.  For their daughter's sake, they were committed to leading a healthy lifestyle and to supporting each other.

[21]  Promising references were tendered from prison chaplains, from a teacher at the Woodford Correctional Centre and from an Alcoholics Anonymous voluntary visitor at Woodford Correctional Centre, together with a number of educational certificates related to course completed in custody.  They included the following comments:  "his behaviour sets a good example for younger inmates"[1]; "endeavouring to better himself … is doing well and wants to be rid of the past habit to leave the Correctional Centre with a right state of mind, and a healthy body";[2] and "Nathan is a very conscientious student and has a positive attitude towards his work.  He is always polite and helpful towards his classmates and has always exhibited respect in his dealings with me."[3]  The assessment of program performance in Access 10 English recorded:  "Nathan is both conscientious and capable.  He always works to the best of his ability in class, and produces a high standard of work. …  Nathan gets on well with teachers, tutors and his peers. …  He has a mature attitude which has a positive effect in the classroom. …  Nathan is keen to succeed in his studies and never has any problems with motivation. …  Nathan is not afraid to ask questions and always accepts the advice of both teacher and tutors. …  I am certain that Nathan will apply the same self-discipline upon his release, and should succeed with whatever new career path he chooses to take".

[22]  Defence counsel submitted that a head sentence in the range of four to six years imprisonment was appropriate and that the judge should impose either a five year sentence suspended after a fixed period or a sentence of no more than six years imprisonment with parole eligibility after one-third.

(d)The sentencing judge's approach

[23]  In sentencing Mr Talakai, the learned primary judge referred to the following matters.  There were serious aspects to the offending which would have been terrifying for the victims who were menaced by him.  Whilst Mr Talakai was still relatively young, he had a concerning criminal history for like offences.  He had previously been sentenced to four years imprisonment for robbery.  Mr Talakai was making efforts to rehabilitate himself as the references and certificates indicated.  The persistent serious offences placed community protection as a paramount consideration.  Whilst Mr Talakai had not committed any overt and serious violence, and was only armed on one occasion, "the offences must have been extremely concerning to the complainants who were confronted in their own homes".  The judge determined that a sentence of eight years imprisonment was appropriate in relation to the more serious offences but that the plea of guilty and rehabilitative efforts warranted parole eligibility after one-third, namely on 28 September 2009.

Counsel's submissions in this application

[24] Mr M A Green, on behalf of Mr Talakai, made the following submissions.  The sentences imposed gave insufficient weight to Mr Talakai's personal circumstances and especially his efforts at rehabilitation over an extended period of time.  His mother and partner were present both at sentence and at the appeal hearing to support him.  The effective sentence of eight years imprisonment with parole eligibility after one-third was appropriate to give effect to Mr Talakai's plea of guilty.  The combined effect of the mitigating features applicable in Mr Talakai's case, however, warranted a parole eligibility date after one-quarter of the head sentence as was recognised by Fraser JA in R v Leu; R v Togia.[4]  The most serious of Mr Talakai's offences were those that could be loosely categorised as "home invasion" offences, but Mr Talakai's offending was at the lower range of such offences.  Leu supports an effective head sentence of seven years imprisonment with parole eligibility after one-quarter, namely 28 October 2008. 

[25]  Mr M J Copley for the respondent contends that a head sentence of only seven years imprisonment with parole after one-quarter would be a manifestly inadequate punishment for Mr Talakai's persistent serious offending in the light of his previous criminal history.  Mr Talakai was fortunate that none of the offences of which he was convicted were declared to be serious violent offences.  The application should be refused.

Conclusion

[26] Leu and the cases referred to in it are of no real assistance in determining the appropriate sentence in this case.  The distinctive and concerning aspects of Mr Talakai's offending were manifold.  First, it was persistent and he breached multiple bail undertakings.  Second, he committed 19 indictable and eight summary offences.  Third, the offences of burglary, robbery, "car jacking" (count 11) and serious assault were particularly concerning.  Mr Talakai's offending terrorised a number of complainants in the safety of their own homes.  Fourth, Mr Talakai had a concerning prior criminal history for like matters, especially the robbery offences for which he was sentenced in 2002 to an effective term of four and a half years imprisonment.  Whilst none of the offences, when considered individually, could be considered grave examples of offences of robbery, home invasion, "car jacking" or serious assault, the sheer number of offences, the commission of most of them whilst he was subject to bail undertakings and his prior convictions for like offences made the totality of his offending serious.  For reasons of general and personal deterrence, Mr Talakai's sentence for this serious recidivist offending required a lengthy term of imprisonment.  A head sentence in the range of six to nine years imprisonment was appropriate to reflect the totality of his criminality.

[27]  That said, there were also significant mitigating features.  Mr Talakai pleaded guilty at an early stage and co-operated with the authorities.  Although he was not a youthful first offender, he was still comparatively young so that rehabilitation remained a real possibility.  It is evident that all this offending was drug related.  Since his detention in custody, he has made impressive efforts to improve his rehabilitative prospects.  His diary extracts and the letters and certificates tendered at sentence powerfully supported his counsel's submission that he had made significant progress toward rehabilitation.

[28]  Mr Green's contention on appeal, that the combination of Mr Talakai's guilty plea, co-operation with the authorities and rehabilitative efforts and prospects required the giving of a parole eligibility date after one-quarter instead of one-third of the head sentence, is misconceived.  It is neither desirable nor possible to mandate any mathematical formula for the appropriate discount to be applied for various mitigating factors.  Whether a parole eligibility date is set, and, if so, when it is set, will inevitably vary depending on the relevant circumstances in each individual case. 

[29]  In Mr Talakai's case, however, the overall head sentence imposed, eight years imprisonment with parole eligibility after one-third, did not give sufficient credit to the combined mitigating features, the most important of which was his promising and well-documented prospects of rehabilitation.  This error warrants the granting of the application and the allowing of the appeal.  This Court should now re-sentence him. 

[30]  On the one hand, Mr Talakai's persistent serious offending over a six month period whilst subject to multiple bail undertakings and his prior criminal history for like offences, demanded the imposition of a substantial term of imprisonment.  On the other hand, when he committed these offences he was in the grip of substance abuse and he has since made real and sustained efforts at rehabilitation.  This was consistent with an impressive body of evidence tendered at sentence.  He also pleaded guilty and co-operated with the authorities.  The combination of these powerful mitigating features warranted the imposition of a head sentence towards the lower end of the range and also the setting of a parole eligibility date after serving about one-third of that sentence.  An appropriate head sentence to reflect the totality of Mr Talakai's criminality is seven years imprisonment.  An effective sentence of seven years imprisonment with parole eligibility after one-third means that if Mr Talakai has genuinely rehabilitated himself, he will have a lengthy period of supervision and support in the community under the strictures of parole; if he fails in his efforts at rehabilitation, the community will be protected by the suspension of his parole order and his subsequent return to custody for a lengthy period.[5]

[31]  I would grant the application for leave to appeal, allow the appeal to the extent of setting aside, first, the sentences of eight years imprisonment imposed on counts 6, 7, 14 and 15 on the 15 count indictment and counts 1 and 2 on the three count indictment, and second, the parole eligibility date set at 28 September 2009 on the 15 count indictment and the three count indictment.  Instead, on counts 6, 7, 14 and 15 on the 15 count indictment and counts 1 and 2 on the three count indictment, I would substitute a sentence of seven years imprisonment.  I would also set a parole eligibility date on the 15 count indictment and the three count indictment after one-third of that seven year sentence, namely two years and four months, that is, on 29 May 2009.  I would otherwise confirm the sentence imposed upon him at first instance.

[32]  CULLINANE J:  I agree with the reasons of Atkinson J in this matter and the order proposed by her.

[33]  ATKINSON J:  I have had the considerable advantage of reading the reasons for judgment of McMurdo P.  Unfortunately I have reached a different conclusion from the President.  In my view the applicant has not shown that the sentence was manifestly excessive nor that there was an error in the overall sentence imposed.  In those circumstances I would refuse the application for leave to appeal. 

[34]  I adopt the account of the circumstances of the applicant’s offending set out by the President.  There are, as the President says, a number of aggravating circumstances.

[35]  The applicant was sentenced on 27 counts, 19 of which were contained on three indictments and eight summary matters.  The offences were persistent over a period which commenced on 9 August 2006 and concluded on 29 January 2007 when the applicant was arrested and then denied bail. 

[36]  The most serious offence was robbery with personal violence while armed; but all of the applicant’s offending had serious aspects.  All of the offences other than count 1 were committed whilst he was on bail.  All of the offences which occurred after 17 December 2006 were committed whilst he was subject to a second grant of bail.  All of the offences committed after 30 December 2006 were committed after a third grant of bail.  Notwithstanding three grants of bail the applicant continued to offend.  The applicant only ceased offending once he was finally detained in prison without bail. 

[37]  Many of his offences involved breaking into private dwellings at times when he might expect residents to be home; breaking in violently; and frightening or threatening people in their own homes.  The first offence which he committed after his first release on bail involved breaking into a private residence at night after 10.00 pm when he might expect there to be residents at home.  As with other offences of breaking in, his method of entry into the house was quite violent.  He entered the dwelling by kicking in the front door, ripping it off its hinges. 

[38]  One of the houses he broke into was a share house occupied by adults with intellectual disabilities, one of whom was awoken by the applicant rummaging through his drawers. 

[39]  The most serious offence was committed on 27 December 2006.  The circumstances were particularly frightening for the complainant.  He awoke at about 11.00 pm on the night of 27 December 2006 to find the applicant standing beside him armed with a pair of scissors demanding “Where’s the drugs?”  As well as taking cash, a store gift card and vouchers he stole the complainant’s car keys, pushed the complainant out of the way onto the bed, approached another person in the house brandishing the scissors and asking him for his mobile telephone, wallet and car keys.  He left in the complainant’s motor vehicle which was not located by the police for another couple of days.

[40]  When the applicant entered a dwelling in the early hours of the morning of 25 January 2007, he pushed the door open pushing the complainant, who was trying to shut the door, backwards.  After he entered the dwelling he pushed the complainant on the chest.  He stole from the complainant and from the complainant’s mother’s purse and roamed through the house looking for other things to steal.  The burglary on 28 January 2007 involved kicking in the front door, stealing cash, a mobile phone, a laptop, rings, a gold chain, sunglasses and the complainant’s motor vehicle.

[41]  A number of offences involved his taking cars where the driver was present or temporarily absent.  On 21 January 2007 the applicant made out that he was armed and threatened a man who had parked his motor vehicle.  The man, who feared for his safety, was made to drive the applicant through a number of streets.  The applicant then demanded his wallet. 

[42]  Some of the offences occurred in the context of aggression or threats against his then girlfriend Melissa Ward.  The court’s acceptance of her support for him and optimism about his good prospects must be tempered by his history of threats and aggression towards her.  The offences against Ms Ward included one count of wilful damage when the applicant pulled off an aluminium flyscreen and smashed a glass window to enter a unit into which Ms Ward had fled during an argument with the applicant.  A temporary domestic violence order was taken out in respect of his behaviour to Ms Ward. 

[43]  On a number of occasions he attempted to evade and threaten police.  They were forced to use capsicum spray to subdue him on a number of occasions.  The applicant successfully escaped when police were attempting to restrain him and when they endeavoured to serve a domestic violence order on him. 

[44]  The last of the offences occurred on 29 January 2007 when the police observed the applicant standing on the side of the road acting aggressively towards Ms Ward who was holding a small child.  At that time he was subject to a domestic violence order which had been issued in the Magistrates Court naming the applicant as the respondent and Ms Ward as the aggrieved only five days earlier.  He ran away from the police colliding with a member of the public. 

[45]  Once he was tackled by the police he struggled to his feet and kicked a male police officer in the face.  As the struggle continued a female police officer sprayed him with capsicum spray and attempted to grab his hair at which time he attempted to punch her.  When she secured one of his arms with handcuffs and attempted to pull him from the other officer, the applicant punched her in the head making contact with the right side of her head near the cheek bone and eye socket.  A member of the public assisted the police to handcuff the applicant. 

[46]  Both police officers sustained injuries.  One had minor bruising to the right cheek, a muscle strain of the neck, bruising of the right hip and lower back strain and abrasions of the right forearm and left thumb.  The other had abrasion on the right forearm, right chin, bruising on the right and left hand and chin and muscular strain of the neck.  The victim impact statement prepared by the female police officer showed the devastating effect of the incident on her.

[47]  An analysis of the offending does not suggest that the head sentence of eight years imprisonment for the most serious of the offences was manifestly excessive.  As the President observed in paragraph [26] of these reasons, a head sentence in the range of six to nine years imprisonment was appropriate to reflect the totality of the applicant’s criminality. 

[48]  I also agree with the President that there were significant mitigating features in the applicant’s favour including his plea of guilty at a relatively early stage after a full hand up committal and his earnest attempts at rehabilitation once he was in prison.

[49]  However against that is his serious criminal history including previous offences of violence and dishonesty, the fact that he was 25 at the time he committed these offences, his persistent offending whilst he was on numerous bail undertakings, that his offending ceased only when he was finally imprisoned with no prospect of release on bail, that nothing ceased his offending other than his imprisonment, that he did not endeavour to rehabilitate himself prior to his imprisonment and that the support offered by his partner must be considered cautiously in view of his previous history of domestic violence against her. 

[50]  The applicant has the advantage of an upright and supportive family and he is obviously making genuine attempts in prison to rehabilitate himself.  Those efforts will no doubt increase his prospects of being granted parole when he becomes eligible for parole.

[51]  In all of the circumstances I am not persuaded that the sentence imposed was manifestly excessive.  The head sentence imposed was within range and the parole eligibility date after he had served a third of his sentence gives adequate recognition to his mitigating circumstances.  I would therefore refuse the application for leave to appeal.