R v Warne[2015] QCA 9

SUPREME COURT OF QUEENSLAND

1. GOTTERSON JA:  I agree with the order proposed by Morrison JA and with the reasons given by his Honour.

2. MORRISON JA:  The applicant seeks leave to appeal in respect of sentences imposed upon him on 9 May 2014, on his plea of guilty, on two counts on an indictment and two summary offences.  The offences, and the sentences imposed are as follows:-

1. count 1 – burglary by breaking, whilst armed, and in company; seven years imprisonment;
2. count 2 – causing grievous bodily harm with intent to do grievous bodily harm; seven years imprisonment;
3. unlawful use of a motor vehicle between 20 March 2012 and 23 March 2012; six months imprisonment;
4. unlawful use of a motor vehicle on 21 March 2012; six months imprisonment; and
5. parole eligibility date set at 9 June 2015; set to reflect one-third of the seven year term, taking into account 316 days of pre-sentence custody^[1] declared as time served, and allowing a further reduction of five months out of an additional 10 months served but which was not declarable or declared.

3. Both of the indictable offences occurred on 29 August 2012 in circumstances to which I will come shortly.  Not surprisingly those two counts were the focus of the applicant’s submissions to this Court.

Circumstances of the offences

4. A Schedule of Facts was tendered by agreement, as Exhibit 3.^[2]  This revealed the background to the events which occurred on 29 August 2012.  There were three co‑accused, the applicant, Ashley Bottrell (Bottrell) and Bryan Cutts (Cutts).  Their actions were against the complainant, David Gonsalves (Gonsalves), who was known to the applicant and his co-accused, and referred to by them by his nickname of “Bail” or “Bale”.
5. Gonsalves had been in a relationship with Tiffany Porter (Porter), but this had broken down amidst accusations that Gonsalves had been violent and controlling of her.  The break-up was not amicable.  Porter moved in with the applicant’s sisters.  The applicant had an interest in Porter and had taken on her complaints about Gonsalves as his own.
6. Gonsalves had been in a relationship with a Olivia Fitzgerald (Fitzgerald), who had previously been in a relationship with Cutts.  Fitzgerald was with Gonsalves at his mother’s house on 29 August 2012.  The break-up of the relationship between Cutts and Fitzgerald was not amicable and there were unfriendly text messages between them.  Gonsalves rebuked Cutts for troubling Fitzgerald, and Cutts took offence at this.  A series of text messages on the morning of the offences reveal Cutts abusing Fitzgerald, threatening her with violence and rebuking Gonsalves when he intervened.^[3]
7. Following the text exchange between Fitzgerald, Cutts and Gonsalves, Cutts contacted Bottrell on 29 August 2012.  Cutts complained about Gonsalves “put or [putting] the hard word on me this morning cause i was terrorising this slut that kept annoying me”.^[4]  Cutts then revealed he was trying to find Gonsalves’ address which he thought was somewhere in Lawnton.
8. Cutts responded to Bottrell that he was going to bring his “toy”:  “Im bringen ma toy incase he gets lippy”.^[5]  Cutts gave Bottrell Gonsalves’ number and invited Bottrell over.
9. There were also text messages involving the applicant and Fitzerald, on 29 August 2012.  This included telling Fitzgerald that “We got car load bale is getting it today”, and “Were hunting him down now guna put led in him”.^[6]
10. Within the two weeks before 29 August 2012 one Steven Olsen (Olsen) had hired a motor vehicle which was due to be returned on 21 August 2012.  The vehicle was not returned because Cutts intervened and obtained the vehicle from Olsen by coercion, threatening that he and another man would “come over and smash your head in in front of your kids, if not I will go around to your missus house and do the same thing there”.^[7]  Cutts obtained the vehicle, and used it to drive to Gonsalves’ house on 29 August 2012.
11. At 3.30 pm on 29 August 2012 Gonsalves and Fitzgerald were asleep in his bedroom, located at the front of the house.  Gonsalves could hear banging on the windows at the front of the house and when he looked out of the window he could see four or five pairs of male legs walk past the window and towards the garage.  He went to the glass door at the front of the house and could not see anyone outside.  At that point Fitzgerald was still asleep.  Gonsalves then went to the back door, which was a timber framed door with glass panels on the top half.  He saw four males standing in the rear yard, and recognised three as they were previous friends or acquaintances of his.  They were Cutts, Bottrell and the applicant.  The fourth was a tall man unknown to Gonsalves.
12. The applicant, Cutts and Bottrell were yelling, and were being aggressive towards Gonsalves.  The applicant kicked the rear door in.  At that point Gonsalves went to his room to retrieve a knife.  He yelled at the others to get out of his house.  He then walked towards the applicant with the knife by his side, as he was telling them to get out of the house.
13. The applicant backed away, fell over slightly, then ran out the back door.  Gonsalves tried to close the rear door but was unable to do so.
14. At that point the applicant told Cutts and Bottrell: “He’s got a fucking knife, get the gun, get the gun, shoot him”.  Cutts then fired the gun and the bullet went through the closed rear door and struck Gonsalves in the right forearm.  Gonsalves called out to his next door neighbour saying that he had been shot.  Bottrell then threw a citronella candle at the door and it smashed.  The four men then left, going back through the carport area.  Gonsalves saw them drive away and got on his bicycle to chase them, but could not catch them.
15. Gonsalves was treated at the PA Hospital, and the fragment of the bullet which was in his forearm was removed and kept for analysis.  He had suffered a .5 centimetre by .5 centimetre diameter wound on his right forearm.  He was treated with intravenous antibiotics, intravenous fluids and operated upon to remove the projectile from his arm.  The treating doctor classified the injury as being grievous bodily harm, because the projectile was retained inside the wound and presented a significant risk for the development of infection, namely potential sepsis, which left untreated could lead to loss of life or limb.^[8]
16. Analysis at the rear of the house showed that a single shot had been fired into the external wooden laundry door.  The bullet had struck the middle vertical grill and perforated the glass panel.  As a result of perforating the laundry door, the bullet fragmented and those fragments entered the laundry and struck various services and objects within the laundry.  The absence of perforations on the screen door indicated that it was open when the wooden door was struck by the bullet.  Analysis on the metal fragments indicated a shot from a .22 rimfire cartridge.
17. On 31 August 2012 police arrested the applicant.  His phone was seized.  The applicant declined to be formally interviewed, but admitted that he was present during the shooting.

Antecedents and history of the applicant

18. The applicant was born on 23 October 1991.  He was therefore 20 years and 10 months at the time of the offence, and about 22 years and seven months at the time of sentencing.
19. The applicant had a fairly extensive criminal history commencing with offences when he was just over 16 years old.  The earlier offences included attempted entry of premises with intent, trespass and traffic matters.  When he was 18 the applicant was convicted of stealing and entering premises with intent to commit an indictable offence, and was put on a probation period of 18 months.  That was followed by offences for stealing and drug related offences, culminating in him being re‑sentenced because he was in breach of his probation order.  On 18 August 2011 the applicant was sentenced to two months imprisonment suspended for 12 months.  In November 2011 the applicant breached his conditions and the suspended sentence was fully invoked.  In December 2011 he was convicted of assault or obstructing a police officer, and failure to appear in accordance with his undertakings.  When he was almost 21, in June 2012, the applicant was convicted of stealing, unlawful possession of motor vehicles, and more relevantly to the current matter, assaults occasioning bodily harm.  In addition there were a large number of charges concerned with receiving tainted property, drug related charges, traffic charges, charges concerning a failure to appear, and one charge of unlawful possession of weapons.  The applicant was sentenced to 12 months imprisonment with a parole release date set at 22 August 2012.
20. The applicant had therefore only been released on parole for about six or seven days when the current offences were committed.
21. Counsel for the applicant placed a number of matters before the learned sentencing judge, without objection.  They included the following:-
    1. during the 20 months that the applicant had been in prison^[9] he had been able to “clean himself up” from his connection with drugs;
    2. the applicant had done a number of courses whilst in custody, including some vocational ones in work safety and courses provided for drug offenders;
    3. he had been in a five year relationship which had produced a daughter; the daughter lived with her mother, but visited him in prison, in company with his parents; and
    4. his parents were supportive of him; a reference from them was tendered, setting out that he was intending to move back in with his parents, and maintain contact with his daughter and other family members; that family lived in Nanango, which would force a break between the applicant and the people he had been associating with in the drug culture.^[10]

Approach of the learned sentencing judge

22. The applicant and Cutts were sentenced at the same time.  In terms of culpability the learned sentencing judge treated them both as being “very similar” because whilst Cutts fired the gun, it was at the applicant’s request.^[11]  His Honour noted a number of features about the events including:
    1. each of the applicant and Cutts (who fired the gun) bore ill will towards Gonsalves;^[12]
    2. having noted the degenerating content of the text messages leading up to 29 August 2012, the texts of that day were reviewed ending with the one from the applicant saying (as his Honour put it), “We’re hunting him down now.  Gonna put lead in him”;^[13] his Honour regarded that as having all the hallmarks of someone intending to do serious physical harm to Gonsalves;
    3. as to the actual events, his Honour noted that the applicant was not under immediate threat once he had retreated out of the back door of the house, referring to the fact that Gonsalves tried to close the door;^[14]
    4. having again noted that whilst Cutts was the shooter, he was acting at the request of the applicant, his Honour said that they were fortunate more serious injuries were not caused, and fortunately not a death; and
    5. his Honour accepted that if Gonsalves had not undergone surgery to remove the projectile, he was at risk of developing an infection, possibly sepsis, and losing a limb.^[15]
23. The circumstances in which the offence occurred were summarised in this way by the learned sentencing judge:

“Summarising then, you two went to his house with intent to injure him, and you, [the applicant], boasted about shooting him or intending to shoot him.  You broke in.  The circumstance of which the gun came to be fired was not one of self defence.  It was not a case of shooting someone who was immediately menacing you with a knife.  The victim was behind a closed door.  For all you cared, he could have been shot in the heart.  He could have been shot in the head.  You really did not care.  You intended to seriously injure him by shooting him.  Fortunately for him, he was shot in the arm and he did not suffer more serious injuries.  That was more good luck than anything.  This is not a case where someone delivered a hammer blow to a kneecap or even shot someone in the kneecap or in a foot or in a hand.  It was an indiscriminate shot, intended to hit him.”^[16]

24. Having reviewed the applicant’s criminal history the sentencing judge noted that the present offences were committed only seven days after the applicant had been released on parole.  Not surprisingly the sentencing judge said that committing a home invasion seven days after release on parole “says to me that you learnt very little from your time in [gaol]”.^[17]  His Honour then reviewed the prospects of the applicant returning to his family in Nanango and the fact that the applicant’s criminal history was not as serious in some respects as that of Cutts.  He then said:

“But you are slightly older, and so, all things being equal, you have an unfortunate similar background of a criminal history and a disregard of the law and having not learnt lessons”.^[18]

25. The impact of the use of a gun in the offence meant that the offences were more serious than otherwise would be the case.  His Honour said:

“As I have already said, the offences that are on the indictment are extremely serious.  They have the hallmarks of offences committed by young criminals.  The use of a gun is particularly disturbing.  In this country, we don’t have the same gun violence that is a blight upon American society.  But the use of guns has to be deterred by substantial penalties.  I am not concerned with their possession, I’m concerned with their actual use and the use to inflict injury.  There’s no simple gradation.  Any use of a weapons [sic], whether it’s a baton, a hammer, a knife, or a gun, is serious.  But the use of guns is disgraceful and the courts of the State, acting on behalf of the community, have to denounce such conduct by appropriately severe sentences.  And they should do so on people of any age, taking into account of course their particular circumstances.”^[19]

26. The nature of the injuries inflicted on Gonsalves was the subject of comment by the sentencing judge:

“Of course, the fact that the complainant’s injuries were not on the life threatening scale and have not been as permanent as injuries in some other cases affects the punishment that will be imposed upon you.  If the injuries had been more serious, the punishment would have been more serious.  The actual injuries and their aftermath are obviously a relevant factor but they are only one of many factors that I have to take into account in imposing a just sentence.  And I take into account that these relatively less serious injuries were more the result of good luck than good management.  Still, I take them into account.  Police investigated matters.  They revealed that the bullet had become fragmented and, hence, the victim’s good luck.”^[20]

27. The learned sentencing judge expressly took into account the applicant’s youth.^[21]  His Honour recited a number of cases standing for the proposition that courts take into account that because young people are thought to have better prospects of rehabilitation, they are entitled to more leniency than otherwise would be appropriate.^[22]  His Honour proceeded on the basis that although the applicant had the benefit of youth and a potential for rehabilitation, he did not fall within the description in Sharkey, of youthful offenders with limited criminal histories.  Nonetheless, his Honour took the view that the applicant was still entitled to leniency on the account of youth.^[23]

The applicant’s submissions

28. The sole ground of the application was that the sentence was manifestly excessive.  Three main points were made in respect of that.  First, it was submitted that too much weight was placed upon the fact that a gun was used.  Secondly, it was contended that insufficient recognition had been given to the limited nature of the injury inflicted.  Here it was said that the injury was “barely sufficient to satisfy the definition of grievous bodily harm and there was no permanent injury, nor any substantial life threatening injury”.^[24]  Thirdly, it was submitted that an analysis of comparable cases supported a lower range of sentence than that which was imposed.  Here reference was made to R v Laing,^[25] R v Granato,^[26] and R v W.^[27]  Fourthly, it was submitted that an issue of parity of sentence had arisen when one compared the sentence imposed on Cutts with that imposed on the applicant.  It was said that the applicant arguably received a greater punishment than Cutts.  Finally, it was contended that a starting point of eight years gave insufficient weight to the timely plea of guilty, the limited nature of the injury, the applicant’s limited criminal history, the applicant’s youth, the fact that Gonsalves was not defenceless and the applicant was not the shooter, and the fact that Cutts was in possession of weapons other than the one used in the attack, which distinguished Cutts from the applicant.

Discussion

29. In my view the applicant’s contention that too much weight was placed on the fact that a gun was used, cannot be accepted.  This was a planned serious home invasion, committed in company and whilst one of the co-offenders was armed with a loaded gun.  Not only was the gun taken there, it was discharged, at the express request of the applicant.  There was evidence supporting the learned sentencing judge’s acceptance that the taking of the gun was planned.  The hearing proceeded on the basis that the applicant was going to get the bullets in exchange for drugs.^[28]  In the hour before the offences occurred the applicant texted that Gonsalves “is getting it today” and “were hunting him down now guna put led in him”.^[29]  Then after the event the applicant texted Porter telling her that he had helped to get “dickhead of ya back”, and “i told u i was guna even before i got out i keep my word …”.^[30]  That message was clearly indicating that he had told Porter even before he was released from prison that he was (somehow) going to get Gonsalves off Porter’s back.
30. Further, not only was the gun taken to the home invasion, it was discharged at the request of the applicant.  When that happened none of the participants, particularly the applicant, were in danger.  The applicant had actually invaded the home, but then retreated outside the rear door.  True it is that that was in the face of Gonsalves arming himself with a knife, but once the applicant was out of the door Gonsalves tried to shut the door, with himself inside.  Notwithstanding that fact, the applicant urged that Cutts shoot Gonsalves, which he did.  As the learned sentencing judge referred to it, it was an indiscriminate shot, intended to hit Gonsalves.^[31]  The indiscriminate nature of the shot does not, in my view, lessen its seriousness.  For all that the applicant and Cutts knew, the bullet could have killed Gonsalves, or hit someone else.
31. The learned sentencing judge did not overstate the importance of the gun.  The passages referred to from the sentencing remarks demonstrate that his Honour was acutely conscious of the fact that the gun and its use made this offence very serious indeed.  I respectfully agree with that view.
32. The second submission was that insufficient recognition was given to the limited nature of the injury inflicted.  I do not think this ground can be sustained.  It is plain that the hearing proceeded on the basis that the injury satisfied the definition of grievous bodily harm.  It was only a matter of luck that the bullet fragmented and injured Gonsalves’ arm, requiring surgery.  The learned sentencing judge referred in more than one place to the fact that the injuries were less serious than they might have been, not life threatening and not as permanent as injuries in other cases.^[32]  His Honour was correct, with respect, to take the view that the low level of injuries, and the fact that they were not life threatening or permanent, was a fortuitous event.  I do not detect in the sentencing remarks that insufficient recognition was given to the limited nature of the injuries.  Whilst the actual harm inflicted is a relevant consideration, it is only one consideration.  That was the way it was treated here, with the far more serious aspect being a home invasion in company, the presence of a weapon, the indiscriminate shooting of that weapon at the urging of the applicant, and the fact that grievous bodily harm was intended to be caused, and was.
33. The comparable cases were reviewed by the learned sentencing judge, at some length.  The first was Laing.  That involved a much older offender, being 62 when the crime was committed and 64 at sentence.  He had a minor criminal history which was of no relevance.  It did not involve a plea of guilty, but was a sentence after trial.  The offender broke into a house, armed with a hammer.  Whilst the victim was asleep the offender attacked him with the hammer, breaking his kneecap and then hitting his head four times.  There was evidence of threats to the welfare of the victim beforehand.  Very serious injuries were caused, which would have a continuing adverse affect on the quality of the victim’s life.  He had ongoing difficulties with mobility.  The offences were characterised as involving “premeditation of an armed attack upon a defenceless elderly man in his own home” and a “particularly vicious attack for which the appellant has no remorse”.^[33]  This Court did not interfere with the sentence of six and a half years imprisonment, saying that it was within range and “distinctly moderate, bearing in mind the circumstances”.^[34]
34. In my view Laing does not support the contention that a seven year term of imprisonment for the applicant is manifestly excessive.  Laing involved more serious injuries by far, but the applicant has a more serious criminal history.  As the court in Laing acknowledged, a range of appropriate sentences between five and eight years imprisonment was appropriate for that case.^[35]
35. Granato involved a 33 year old offender with no relevant prior criminal history.  He pleaded guilty to burglary and a malicious act.  The burglary involved him entering the victim’s dwelling with intent to do grievous bodily harm, and striking him with a baton, a baseball bat and a club lock.  At the time he was accompanied by two other men.  He was sentenced to five years imprisonment with a recommendation for release after 21 months.
36. The background to the offending in Granato was a falling out between the victim and the offender, over some dogs.  In a related confrontation the victim lost his temper and punched the offender, although there was no suggestion that the blow was violent or damaging.  A week later the offences occurred.  The victim was asleep and woken by a blow to his jaw.  At that point the offender was standing over him armed with a baton, and he proceeded to strike the victim all over his body.  Another of the men used a baseball bat in similar fashion, and the third used the club lock.  The applicant suffered substantial injuries including a fractured skull, a pneumothorax and lung contusions, and a compound fracture of the little finger.  The injuries ended the victim’s amateur boxing career, which had previously had some promise.
37. This Court accepted the description of the offence as involving:

“a violent revenge motivated home invasion, the product of planning with the adverse features of there having been an attack in numbers with weapons on a sleeping man”.^[36]

Further, the injuries “were of severe order but fortunately they have not resulted in significant residual disability”.^[37]

38. The Chief Justice^[38] referred to it as “offending of … disturbing gravity”.  He went on:

“Notwithstanding the applicant’s pleas of guilty, his lack of history, and the references in his favour, a term at least of the order of that imposed was, in my view, appropriate.”^[39]

39. Whilst Granato involved a young offender, and injuries inflicted in a home invasion, there are distinguishing features which make it, in my view, unhelpful in terms of determining the appropriate sentence for the applicant.  First, although the injuries were more serious, the offender had no relevant criminal history, unlike the applicant.  The nature of the weapon used also distinguishes Granato.  There it was a baton, a baseball bat and a club lock, whereas here the applicant made use of a gun.  Further, the passage referred to from the remarks of the Chief Justice make it clear that a higher sentence would still have been in range.  I do not regard Granato as supporting the contention that the applicant’s seven year sentence was manifestly excessive.
40. W involved a young offender, aged 21 years.  He had a criminal history involving offences of wounding, assault occasioning bodily harm and assault.  The offender and two co-offenders inflicted a beating on the victim, which involved stabbing him.  The victim had earlier caused considerable trouble at the residence of one of the co-offenders.  They chased him away, cornered him in a dark place and delivered the beating.  At the time they were armed with a pool cue, a baseball bat and a knife.  The offender was described as an active and enthusiastic participant and the victim received life threatening injuries from which he fortunately recovered.
41. W did not involve a plea of guilty, but a trial.  The jury could not determine which of the co-offenders had stabbed the victim and the offender was sentenced on the basis that he was involved in an assault of some seriousness knowing that the others were armed, and that the intentional causing of grievous bodily harm was a probable consequence.  He was sentenced to four and a half years imprisonment.  An appeal from that sentence was based upon grounds that the parity principle required a lesser sentence, given the sentence imposed on the co-offenders.  However, the co‑offenders’ sentences (two years imprisonment suspended after three months) were the product of undertakings given under s 13A of the Penalties and Sentences Act 1992 (Qld), on a plea of guilty.  The Chief Justice^[40] considered that there was no requirement of parity for two reasons.  Firstly, the offender was convicted of doing grievous bodily harm with intent, whereas the co-offenders were dealt with for doing grievous bodily harm simpliciter.  Secondly, the offender had a serious relevant prior criminal history, which was not the case in the co-offenders.^[41]  For those reasons the court did not interfere with the sentence imposed.
42. There are distinguishing features between W and the applicant’s case, which make W unhelpful.  It was not a home invasion committed in company, and whilst armed with a gun.  Home invasion cases, where the offenders are armed, have been recognised as calling for stronger sentences from the court.^[42]  Further, the appeal turned on a point concerning the parity principle, which makes the finding unhelpful.
43. The final case referred to was R v Marks; ex parte Attorney-General of Queensland.^[43]  In that case the offenders were charged with attempted murder, or alternatively unlawful wounding with intent to do grievous bodily harm.  They were acquitted of the attempted murder charge, and convicted on the other charge.  The relevant offender was sentenced to five years imprisonment, which the Attorney-General contended was manifestly inadequate.  The offender had learned that the victim engaged in a sexual relationship with the offender’s girlfriend, about six weeks before the commission of the offence.  On the night of the offence the offender and his brother went to the victim’s house demanding that he open the door.  He refused.  The victim then heard the front glass door smash, at which he grabbed a steel bar and swung at the door when he saw a hand come through the broken glass.  The victim saw someone running behind a wall, and then a gun pointed in his direction, at which he turned and ran.  He was hit in the back by a bullet, and then hit by another bullet.  He heard further shots being fired, and people laughing.  He sought assistance from neighbours and was taken to hospital.  He had sustained a pneumothorax and a haemothorax.  He was admitted to intensive care and underwent surgery.  He was in hospital for six days and suffered considerable pain.  At the time he thought he was dying.  Shrapnel from the bullets remain inside his body.
44. The weapon in that case was a sawn off .22 calibre semi automatic self-loading rifle.  Evidence revealed it had been discharged on at least seven occasions.
45. The offender was about 30 years of age and had some criminal history, but only one offence directly of a violent nature.  That had been an offence of robbery and recklessly causing serious injury, involving a savage attack on an air hostess.  He was sentenced to two years imprisonment.
46. The President^[44] described the offence as “undoubtedly most serious”.  The central feature of that was the taking of a weapon and discharging it with intent to do grievous bodily harm.  The President said: “It is only good fortune that saved the complainant from death”.^[45]
47. It was important in that case that grievous bodily harm was not alleged by the prosecution, and therefore the offender could not be sentenced on that basis.^[46]  That limitation was reflected in the President’s comment that:

“Comparable sentences for the offence of grievous bodily harm with intent to do grievous bodily harm are not directly apposite and are of limited assistance in determining the appropriate sentence here”.^[47]

48. The court took the view that the sentencing judge had taken a “rather sympathetic view” of the offender in the sentence imposed, and noted that it was an Attorney-General’s appeal.  The President went on:

“Those factors cannot however take away from the fact that this sentence involved dangerous and reprehensible conduct in going to the complainant’s home at night with a loaded semi-automatic weapon and then discharging it on a number of occasions, on at least one of which there was an intent to do grievous bodily harm.”^[48]

49. The court considered the sentence manifestly inadequate.  As the President said:

“In all the circumstances a sentence of at least seven years’ imprisonment was appropriate in this case in the absence of a declaration under part 9A, Penalties and Sentences Act 1992.”^[49]

A sentence of seven years imprisonment was imposed.

50. In my view Marks is of some assistance, though limited.  It was a more serious case in that multiple shots were fired, causing more serious injuries.  However, the charge was not that of grievous bodily harm, but unlawful wounding with intent to do grievous bodily harm.  It involved premeditation and the use of a weapon during a home invasion.  The offender was relatively young at the time of the offence, but did not have the benefit of a plea of guilty.  Like the applicant, he had a relevant criminal history, but limited to one offence directly of a violent nature.  More importantly, it was an Attorney-General’s appeal.  In such an appeal the substituted sentence will usually be moderated for that very reason.  It is in that context that the substituted sentence of seven years should be seen.  In my view that is why Marks lends some support for the sentence imposed on the applicant.
51. In my view there is no insult to the parity principle in this case.  It is contended that the applicant was given a seven year sentence cumulative on the additional 10 months which was served but not declarable.  Cutts was also sentenced to seven years, but, it was contended, his sentence included other serious offences which had been committed a week earlier.^[50]
52. There are a number of reasons why this contention should not succeed.  First, neither counsel for Cutts nor counsel for the applicant submitted to the learned sentencing judge that there should be any distinction in the head sentence.  In fact, counsel for the applicant disavowed any such submission.^[51]  Secondly, there are differences between the circumstances of Cutts and that of the applicant; Cutts had a more serious criminal history, but he was younger; and the applicant committed his offences whilst on parole, which was not the situation with Cutts.  Thirdly, there is a difference between Cutts, who actually shot the gun, and the applicant, who urged it to be done.  Whilst the sentencing judge was correct to take the view that that made them culpable to the same extent, it is a relevant difference between the two.  Fourthly, the text messages from the applicant showed that before the offences were committed, he was talking about putting lead into Gonsalves.  His later texts also indicated that the plan to get Gonsalves off Porter’s back was one that he had voiced whilst he was still in prison and before his release on parole.
53. Notwithstanding those differences, Cutts and the applicant both participated in the same home invasion, both activated by ill will towards Gonsalves,^[52] and the injuries were caused by Cutts firing the weapon but at the urging of the applicant.  Notwithstanding the different times spent in pre-sentence custody,^[53] in my view the learned sentencing judge was correct to impose the same head sentence on each of Cutts and the applicant.
54. I do not consider that there is any substance in the applicant’s contention that the sentence miscarried in terms of setting a parole eligibility date for the applicant by reference to only half of the non-declarable time spent in custody.  Each of Cutts and the applicant had declarations made in respect of the time that could be declared as pre-sentence custody pursuant to s 159A of the Penalties and Sentences Act 1992.  The applicant’s additional non-declarable 10 months in custody was the product of the fact that he committed the present offences whilst on parole.  As a consequence his parole was suspended and he had to serve the remainder of his previous sentence, namely 10 months.
55. The applicant’s contention is that he should have had the benefit of the 10 months non-declarable time, by way of a reduction in the head sentence.^[54]  However, that was not an obligatory approach.  The applicant’s parole eligibility date was set five months earlier than would otherwise have been the case, in order to take into account part of the non-declarable period of time spent in custody.  The learned sentencing judge referred to it in this way:

“I take into account that, although the period of approximately 10 months that was spent up until 27 June 2013 in custody was serving out another sentence that was, in part, because of these offences.  I don’t consider it’s appropriate that I should, as it were, treat the whole of that ten months as pre-sentence custody because, after all, you should have to pay a price for the offences that you committed and your breach of parole. … However, it would be unfair not to bring them into account.”^[55]

And:

“However, I take into account, as I said I would, the fact that you have been in custody for a further 10 months in the circumstances I earlier described.  I’m not going to give you full credit for that.  I’m going to reduce what would be a further 18 months that you’d be required to be in prison until eligible for parole by reducing it by a further five months.”^[56]

56. With respect I think there is force in two points made by the respondent in answer to the applicant’s contentions on this point.  The first is that if the applicant had not served the 10 months remaining on the prior sentence, before being sentenced for the present offences, the sentence imposed for the present offending would have been served cumulatively because of the effect of s 156A of the Penalties and Sentences Act 1992.  In that sense the applicant has received a considerable benefit.  Secondly, if the applicant received a lower head sentence and a parole eligibility date was set to take account of “the entire 20 months pre-sentence custody”,^[57] the result would fail to adequately recognise that the offences were committed whilst on parole.  In that way the intention behind s 156A of the Penalties and Sentences Act 1992 would be circumvented.
57. In my view it has not been demonstrated that the learned sentencing judge’s exercise of sentencing discretion miscarried on this ground.

Conclusion

58. For the reasons expressed above I do not consider it has been demonstrated that the sentence imposed was manifestly excessive.  The application is refused.

59. McMEEKIN J:  I have read the reasons of Morrison JA.  I agree with those reasons and the order proposed.