R v Volante[2021] QCA 109

SUPREME COURT OF QUEENSLAND

1. [1]
   SOFRONOFF P:  I agree with the reasons of Ryan J.
2. [2]
   McMURDO JA:  I agree with Ryan J.
3. [3]
   RYAN J:  The applicant pleaded guilty to offending which included a home invasion, an assault, woundings and drug offences.  The primary judge sentenced the applicant to six and a half years’ imprisonment, with parole eligibility at the one-third mark, for his criminality overall.  Her Honour declared that the applicant’s 339 days of pre-sentence custody were to be taken as time already served under the sentence.
4. [4]
   The applicant applied for leave to appeal against sentence.  On 21 April 2021, this Court granted leave; allowed the applicant’s appeal; and made orders which had the effect of reducing the overall sentence to five years’ imprisonment, to be suspended after the applicant has spent 22 months in custody, with an operational period of five years.
5. [5]
   These are my reasons for joining in the order of the Court.

Applicant’s antecedents

6. [6]
   The applicant was born in New Zealand.  He was 19 years old when he offended and 20 years old at sentence.  His father came to Australia from New Zealand to work in 2011.  Between 2011 and 2015, as an 11 to 15 year old, the applicant spent half his time in Australia with his father and half his time in New Zealand with his mother.  From 2015, he lived in Australia full time.
7. [7]
   The applicant has a four-page criminal history.  His first conviction was for offences committed in 2017, when he was 17.  His mother died in 2018 and thereafter his criminal conduct escalated in frequency and seriousness.  He has been convicted of drug offences; offences of violence; breaches of domestic violence protection orders; property damage; stealing; and the unlawful possession of weapons, including knives.
8. [8]
   His previous violent offending included his accusing his domestic partner of infidelity and head-butting her (assault occasioning bodily harm).  On 21 December 2018, he was sentenced for that offence and numerous others to nine months’ imprisonment, with immediate parole release.  His pre-sentence custody of 44 days was declared as time served under that sentence.
9. [9]
   His response to parole supervision was poor.  While he did not breach, he failed to demonstrate meaningful engagement and was considered unsuitable for further community based supervision.  His parole order expired on 6 August 2019.  Just three days later, he committed the most serious of the present offences (the home invasion).

The applicant’s personal circumstances

10. [10]
    The applicant had a dysfunctional upbringing.  His parents had children with multiple partners.  He has “approximately” 12 siblings.  His father, whom the applicant described as “disturbed”, beat him and chained him up “like a dog”.  He left his father’s home when he was 15 or 16.  He does not know where his father is now living and, as mentioned, his mother is deceased.
11. [11]
    He left school in Year 11.  He had occasional, unskilled, employment.  He did not have a particular problem with drugs – although he consumed cannabis and “recreational” drugs on occasions.  He hoped to “run a business” upon his return to New Zealand (after his almost inevitable deportation) and “[get] his life straight”.

The offending

Indictment 388/20 – offences committed on 9 August 2019

12. [12]
    Indictment 388/20 charged the applicant with burglary, with violence, whilst armed and in company (count 1); assault occasioning bodily harm in company (count 2); and wounding (count 3).
13. [13]
    At midday on 9 August 2019, the applicant, his co-accused Lenden, and up to 10 other men entered a house occupied by the three complainants and others.  The three complainants were asleep.  They were Casas (aged 23), his friend Stace (aged 25) and Stace’s brother in law, Chatto (aged 44).  The complainants knew the applicant.  He had lived with them for a period of time.
14. [14]
    The applicant was armed with a knife, which had a 30 cm blade.  The offenders had bandanas over their faces.  They all had New Zealand accents.  Two days before the home invasion, the applicant told Stace that his younger brother was a “snitch”.
15. [15]
    After entering the complainants’ house, one of the offenders hit Casas in the left side of the face with an object – waking him up.  Casas was punched in the face multiple times.  He laughed at his assailant who became angry and stomped twice on Casas’ face.  Casas rolled over to protect himself.  He was stomped on the back of his head, his shoulders and his ribs.  The applicant was standing over Casas with a knife.  He said “Stop hitting [Casas], let’s get [Stace]”.  Two offenders continued to stand over Casas but the rest of them went with the applicant into Stace’s bedroom.
16. [16]
    Casas suffered pain to his shoulder and chest wall; bruising and swelling to his scalp; and bruising over the area of his fourth rib.  The assault upon him was covered by count 2.
17. [17]
    The applicant stabbed Stace in the foot to wake him up, causing a deep wound (1.5 cm x 0.5 cm x 1 cm) between his fourth and fifth toes (count 3).  Lenden stood over Stace with both fists clenched.  The applicant said, “You’ve messed with the wrong person.  I’m going to get your little brother next”.  Lenden and other offenders screamed similar things.  They punched and kicked Stace, including in the mouth.  The applicant swung his knife – trying to stab Stace in the stomach area.  Stace moved, pushed Lenden away, and got off the bed.  He called to Chatto for help.
18. [18]
    Chatto ran downstairs.  The offenders began to run away but Chatto managed to clench one of them.  Another offender hit Chatto on the elbow with a bottle.  Chatto let the first offender go and chased the other one.  Casas also gave chase.  On his way out of the property, the applicant raised his hands and yelled, “It wasn’t me.  I didn’t do anything”.  As Lenden left the house, he apologised to Stace and told him not to “charge” the applicant “or people will come back to your house”.
19. [19]
    Casas suffered no fractures during the assault but he required non-prescription pain relief.  Stace’s wound was irrigated, compressed and fixed with glue.

Indictment 387/20 – offence committed on 9 August 2019

20. [20]
    About seven and a half hours after the home invasion, the applicant committed another offence of wounding.  The complainant, Wiadrowski (aged 24), had known the applicant since the beginning of 2019.
21. [21]
    At 7.26 pm on 9 August 2019, the complainant agreed to lend money to “Sarah” and arranged to meet her at a post office.  The complainant drove there with two friends.
22. [22]
    He waited in his car in the driver’s seat as Sarah and another woman approached.  The complainant gave Sarah money and she and her companion walked away.  The applicant then appeared at the driver’s window.  He was wearing knuckle dusters.  He punched the complainant in the nose, inflicting a 2 cm star shaped wound which bled.  Apart from the bleeding, the complainant experienced throbbing pain and had trouble seeing out of one eye.  His wound was later clean and dressed.  He was given an injection to prevent tetanus.  He was advised that the wound had to be closed with stitches but he did not agree to that procedure.

Summary offences – committed on 19 August 2019

23. [23]
    After the commission of the above offences, police searched for the applicant at a certain address on 19 August 2019.  Upon their arrival, he hid something in the garden.  Police conducted an emergent search.  The found Alprazolam in the garden and a homemade bong, scissors and scales in the applicant’s bedroom.  The medication and the drug paraphernalia were the subject of two summary possession offences.

Co-operation with the authorities

24. [24]
    Beyond pleading guilty, the applicant did not otherwise co-operate with authorities.  He declined to be interviewed about any of his offending.  He was remanded in custody.

Immigration status

25. [25]
    The applicant is a New Zealand citizen.  The primary judge was reminded that, in accordance with section 501 of the Migration Act 1958 (Cth), if the applicant were sentenced to 12 months’ imprisonment or more, he would fail the character test and be subject to mandatory deportation.
26. [26]
    The sentence in contemplation in this matter was a sentence of more than three years’ imprisonment.  A sentencing court cannot, in the case of a sentence over three years’ imprisonment, fix the date upon which an offender is to be released on parole.  A sentencing court may only fix the date upon which the offender is eligible to be released on parole.  The timing of the offender’s release on parole is then a matter for the parole authorities.  As was recognised in R v Shrestha (1991) 173 CLR 48, which was considered in R v Abdi [2016] QCA 298, the likelihood of deportation is relevant to the parole authority’s decision to release an offender on parole.

Submissions on penalty made at first instance

27. [27]
    At first instance, the prosecutor observed that the applicant’s pleas of guilty and his youth were circumstances that operated “in his favour”.  However, his offending was serious and aggravated by his prior convictions and the fact that it commenced within six (sic) days of the expiration of his parole supervision.  The home invasion was planned.  It was instigated by the applicant and only ceased when Chatto intervened.  The others in the house at the time included an eight month old baby.  The applicant was violent again, in a premediated way, hours later.
28. [28]
    The prosecutor submitted that an appropriate head sentence fell between four and five years’ imprisonment, approaching the matter globally.  The prosecutor referred to R v Leu; R v Togia [2008] QCA 201; R v Amato [2013] QCA 158 and R v Sokol [2011] QCA 20 in support of her submission.
29. [29]
    Defence counsel asked the primary judge not to impose a “crushing” sentence.  He asked her Honour to proceed on the basis that there was hope for the applicant’s rehabilitation.  He reminded the primary judge that the applicant would be inevitably deported.  He submitted that a head sentence between four and five years’ imprisonment was appropriate and asked the primary judge to suspend it.  He acknowledged that that would mean that the applicant would not be supervised in Australia.

Sentencing at first instance

30. [30]
    During the prosecutor’s submissions the primary judge expressed the view that the applicant’s offending was “all about thuggery”.  Her Honour found the flavour of the applicant’s offending “quite chilling”.
31. [31]
    Her Honour expressly signalled to defence counsel that she saw differences between the authorities to which the prosecutor referred and the applicant’s case.  She told defence counsel that, “at the moment”, she considered the appropriate sentence to fall between six and seven years’ imprisonment.  She invited him to address her further.
32. [32]
    Rather than address her Honour further, defence counsel said that he had made his submissions about the sentencing “range” and would not repeat himself.  He added that the applicant had been on remand for 13 months; held in maximum security and unable to do any courses.  He also added that another consequence of the applicant’s offending was that he would be “kicked out of Australia”.
33. [33]
    In her sentencing remarks, her Honour described the present offending as an escalation of the applicant’s criminal conduct and stated, incorrectly, that it was “committed on parole and only six days after release”.
34. [34]
    Her Honour said the level of violence involved was shocking and described the applicant’s cruelty as cowardly.  She described the detail of the offending and the applicant’s antecedents.  Her Honour was aware that, upon his release from prison, the applicant was likely to be deported.
35. [35]
    Had the prosecutor asked her to, her Honour would have considered making a declaration that the applicant had been convicted of a serious violent offence, with the consequence that, for a sentence of imprisonment of five years or more, his eligibility for parole would not arise until he had served 80 per cent of it.  However, the prosecutor did not ask her Honour to make such a declaration.  For that reason, and because of the applicant’s pleas of guilty; his age; and his inevitable deportation, her Honour considered it “better to leave the timing of [his] release to the parole authorities”.  Her Honour explained that she hoped the knowledge that the applicant’s rehabilitation would be assessed by the parole authorities prior to his release would provide an incentive for him to work on the issues underpinning his violence.
36. [36]
    The primary judge sentenced the applicant as follows –

37. [37]
    Her Honour explained that the sentence imposed for the burglary offence was intended to encompass the totality of the applicant’s offending.  The terms of imprisonment were to be served concurrently, to commence on the day the applicant went into custody.  Her Honour declared the 399 days of the applicant’s pre-sentence custody as time already served under the sentence.  Her Honour fixed 18 October 2021 as the applicant’s parole eligibility date – that is, 26 months after the date the applicant was taken into custody, or one-third of the way into his six and a half year (78 months) period of imprisonment.

Error at first instance

38. [38]
    Her Honour was wrong to proceed to sentence on the basis that the applicant committed the present offences whilst on parole and only six days after his release.  The applicant was re-offending only days after his parole supervision ended but he did not offend whilst subject to a parole order.  As the respondent properly acknowledged, the primary judge mistook the facts; and this Court was required to allow the appeal and exercise its own discretion in re-sentencing the applicant.

Authorities referred to by the prosecutor at first instance

39. [39]
    Had defence counsel responded to the primary judge’s invitation to address her on the authorities, it might have been appreciated that the sentence imposed in Amato, of seven years’ imprisonment, with parole eligibility at the half-way mark, was imposed for offending which was significantly more serious than the applicant’s offending.
40. [40]
    Amato involved a home invasion committed by three offenders, two of whom were armed with double barrelled shotguns; a protracted physical assault upon a 27 year old man; violent threats to a 20 year old woman; ransacking and robbery.  It was described as an exceptionally serious example of a home invasion offence.
41. [41]
    The offenders removed a security screen to enter the complainants’ house.  The complainants hid in a wardrobe and called “000”.  Amato threatened to shoot through the door of the wardrobe unless it was opened.  Amato entered the wardrobe and struck the man on the nose with the butt of his gun.  The co-offender Janissen pointed his gun at the woman.  Amato hit the man on the head with the bottom half of a pool cue, causing him to bleed from the head and fall onto a bed.  Amato demanded to know where $40,000 was.  The complainant denied knowing about the money.  Amato continued to hit him in the face with the pool cue.  The complainant rolled over to protect himself.  Amato repeatedly struck him on the back of his legs and middle of his back with the pool cue.  The applicant called out to Janissen (who had left the room), “[g]rab the butcher knife.  I’m going to give him a circumcision”.  He pushed the shotgun into the complainant’s crutch.  Janissen returned to the room and pointed the shotgun at the woman who pleaded to be allowed to leave.  Amato said that if she kept asking, he would hit her.  He continued to hit the male complainant while Janissen made numerous threats.  The male complainant suffered abrasions, lacerations (which required stitches), un-displaced minor fractures to his facial bones and bruising.
42. [42]
    Janissen made the complainant woman go into the garage where she said her purse was.  The garage had been ransacked.  Janissen threatened to bash the woman whilst the third offender continued to search the garage.  She could hear hitting sounds and the moans of the male complainant.  Amato was hitting him in the head with the shotgun at the time.  He told the complainant that he wanted $10,000 by Monday and not to call the police because he knew where the complainant’s family and friends lived.  The three offenders stole items of property from the house and left.
43. [43]
    Amato pleaded guilty to burglary by breaking, in the night, with violence, while armed, in company, with property damage; assault occasioning bodily harm in company; armed robbery in company with personal violence; and armed robbery in company.  He was 29 when the offences were committed and 30 at sentence.  He had a criminal history and had previously spent time in custody.  He committed the offences in the context of his return to methylamphetamine use having lost his job.
44. [44]
    The primary judge started from a notional head sentence of nine years’ imprisonment.  His Honour sentenced the applicant to, in effect, seven years’ imprisonment, with parole eligibility arising three years and two months after the sentence date.  Having spent 120 days in presentence custody (taken as time already served), the applicant would become eligible for parole after he had served one half of the effective sentence of seven years’ imprisonment.
45. [45]
    Amato applied for leave to appeal against sentence on the ground that it was manifestly excessive.  He did not complain about the head sentence but submitted that his parole eligibility date ought to have been fixed after he had served one-third of seven years.  His application was refused.
46. [46]
    In considering his application for leave to appeal, Fraser JA with whom Holmes JA and Mullins J (as their Honours then were) agreed, endorsed the sentencing judge’s succinct summary of the aggravating features of the applicant’s offence which justified a notional head sentence of nine years’ imprisonment – before taking into account the applicant’s pleas of guilty –

“… this is an exceptionally serious example of a home invasion and violence; three people, two of you armed, and a terrible beating of somebody in his bedroom while his partner lay cowering on the floor.  It was protracted, it was at night, there were threats, it was brazen and it was very violent.”

47. [47]
    Fraser JA was unpersuaded by the applicant’s argument about his parole eligibility date.  It was open to the sentencing judge to be doubtful that the applicant’s plea demonstrated real remorse.  The sentencing judge was also entitled to take into account all other aspects of the applicant’s personal circumstances as well as the circumstances of the offence, including that it had been committed whilst the applicant was on parole.  The sentence was not reduced on appeal.
48. [48]
    R v Leu; R v Togia involved less serious offending than the present offending.  Leu and Togia were brothers aged 20 and 23 at the time of the offences.  The complainant was their drug dealer.  Leu threaten to bash him after they had been exchanging threats.  He and Togia drove to the complainant’s house.  Leu was armed with a vacuum cleaner pipe.  Togia was armed with a wooden stake.  They burst through the door of the complainant’s house and shouted at, punched and kicked him.  The complainant’s girlfriend jumped on top of the complainant to protect him from the assault.  Togia pushed her out of the way.  He thrust the stake towards the complainant – striking him on the right side of the face and scarring him.  Togia hit the door of a cupboard with the pipe he was holding and it smashed into a fish tank.  He stole cannabis from the complainant.  One of the applicants stole money from the complainant.  Togia warned the complainant not to go to police.  Leu and Togia fled when a neighbour shouted.
49. [49]
    Leu and Togia made admissions to the police.  The complainant’s injury was relatively minor.  His facial scar would fade.
50. [50]
    Leu and Togia were charged with burglary by breaking, in the night, with violence, while armed, in company, with property damage; assault occasioning bodily harm, while armed, in company; common assault; and armed robbery in company with personal violence.
51. [51]
    Leu and Togia pleaded guilty at an early stage.  They expressed contrition and remorse.  They had good references and good prospects of future employment.
52. [52]
    Leu had a previous conviction for armed robbery, in company, with personal violence.  He was a party to a robbery during which the principal offender threatened to slash the complainant’s face with a knife.  He was heavily intoxicated at the time.  The complainant handed over $30.  Leu was sentenced to two years’ probation and 200 hours of community service.  He complied with the conditions of his probation overall, but did breach the order.  He failed to attend community service on a number of occasions.  Leu was subject to the probation and community service orders when he committed the offences.  Togia’s only prior conviction was for stealing, for which he was fined.
53. [53]
    The primary judge described the offences as “premeditated, thuggish and extremely violent”.  At first instance, the applicants were sentenced to five years’ imprisonment, with eligibility for release on parole after three years.  The applicants’ pre-sentence custody of 202 days was declared as time already served under that sentence.  Leu was not separately punished for breaching his probation and community service orders by the commission of the offences.
54. [54]
    The Court of Appeal found that the primary judge erred in fixing a parole eligibility date at a point beyond the half way mark of the sentence, without allowing counsel the opportunity to be heard about it, and without giving reasons for taking that exceptional course.  The primary judge also erred in imposing the same sentence on each applicant.
55. [55]
    In exercising the sentencing discretion afresh, Fraser JA, with whom Keane JA and Lyons J agreed, considered numerous authorities – noting that the maximum penalty for the robbery and burglary counts was life imprisonment.  At [44], his Honour said –

“This examination of broadly comparable decisions leads me to conclude that for these applicants, whose premeditated home invasion at night in company with each other included a robbery and the use of weapons by both in an assault that caused minor bodily harm to an occupant who was in dispute with one of the applicants related to the complainant’s supply of drugs, the sentencing range falls between three and five and a half years imprisonment.”

56. [56]
    Leu was resentenced to, effectively, four and a half years’ imprisonment with parole eligibility after 16 months (two months short of the one-third mark).  Togia was resentenced to, effectively, three and a half years’ imprisonment with parole eligibility after 12 months (also two months short of the one-third mark).  The same pre-sentence custody declaration was made.
57. [57]
    R v Sokol concerned a wounding by “glassing” at a leagues club.  Sokol was 31 and without significant criminal history when he committed the offence.  He was intoxicated at the time.  He did not know the complainant.  After slight provocation on the part of the complainant, Sokol punched him while holding a glass.  The glass shattered upon impact, leaving the complainant with a five to seven centimetre laceration, which required sutures, and left a visible scar, which the complainant covered with his sideburns.  He pleaded guilty to the offence and was sentenced to two years’ imprisonment, with parole release after eight months (that is, at the one-third mark).
58. [58]
    In my view, the authorities relied upon by the prosecutor at first instance supported the imposition upon the present applicant of a sentence in the order of five years’ imprisonment, for the applicant’s offending considered globally, upon his pleas of guilty.
59. [59]
    That proposition is reinforced by reference to the authorities relied upon by the applicant’s counsel on this application which are discussed below.

Applicant’s authorities – Broome, Granato, Nolan

60. [60]
    The applicant in R v Broome [2015] QCA 119 was convicted after a trial of burglary in the night, two counts of assault occasioning bodily harm, and common assault.  He was sentenced, in effect, to five years’ imprisonment.  He applied for leave to appeal against sentence, contending that his bad criminal history overwhelmed the sentencing process.
61. [61]
    Broome entered the downstairs area of a house uninvited, looking angry and carrying a stick, or nulla nulla, 80 to 90 centimetres long.  He confronted a group of men.  He hit M, who required crutches to walk, in the head and arms.  He swung the nulla nulla at K, who tripped and fell to the ground.  He hit K in the arm when K blocked Broome’s blows and struck at the bench K managed to hide under.  He then chased J down the street but lost him.  He did not return to the house.
62. [62]
    M suffered a laceration to the top of his head which required six staples, and bruising and abrasions to his left forearm.
63. [63]
    Broome was 41 when he offended.  He was an Indigenous man who had spent much of his early adult life in jail.  His lengthy criminal history included convictions for rape and break and enter offences in 1989, for which he was sentenced to seven years’ imprisonment; and convictions for rape and break and enter offences in 1996, for which he was sentenced to 12 years’ imprisonment.  He was ordered to serve a sentence of four years’ imprisonment for property offences cumulatively upon that 12 year sentence.  He was released from prison in 2008 and his offending thereafter was not as serious.
64. [64]
    On appeal, Broome’s criminal history was treated as a relevant consideration – in its own right and as informing the relevant consideration of community protection.  It justified a more severe penalty than one which would have been imposed on an offender without his history.  But the sentence of five years’ imprisonment was disproportionate to his offending.  It was reduced to a sentence of four years’ imprisonment which Henry J recognised as a heavy penalty, having regard to the seriousness of the offending.
65. [65]
    R v Granato [2006] QCA 25 involved a violent, revenge-motivated home invasion.  Granato knew the complainant.  During an argument about dogs, the complainant lost his temper and punched Granato.  A week later, Granato, armed with a baton, and two others, armed with a baseball bat and a Club Lock, entered the complainant’s house early in the morning as he slept.  They intended to do him grievous bodily harm.
66. [66]
    The complainant was woken by a blow to his jaw.  Granato and his co-offenders beat him over all over his body with their weapons.
67. [67]
    The complainant was able to escape and ran naked to a neighbour’s house.  He suffered substantial injuries including a fractured skull, a small pneumothorax and lung contusions and a compound fracture of the little finger.  These injuries ended the complainant’s promising boxing career.  He had been training for the Athens Olympics.
68. [68]
    Granato pleaded guilty to burglary and malicious act with intent. He was sentenced to five years’ imprisonment, with a recommendation for post-prison community based release after 21 months (one month after the one-third mark).  His application for leave to appeal that sentence was refused.
69. [69]
    The applicant in R v Nolan [2009] QCA 129 was convicted after a trial of burglary, assault occasioning bodily harm in company and unlawful use of a motor vehicle.
70. [70]
    Nolan was 21 when he offended and 23 at sentence.  He had a “concerning criminal history for one so young” including property offences resulting in the loss of almost $49,700 and offences arising out of a police chase, in which he drove a stolen car.  He had a bad traffic record.  The offences were committed while he was on parole immediately after his release from prison.  His offending breached two suspended sentences.
71. [71]
    He and two other offenders smashed open the locked front door of the complainant’s house.  Nolan punched the complainant in the face a number of times.  He bruised the complainant and caused a minimally displaced fracture of the left zygoma.  He and his co-offenders stole jewellery and took the complainant’s car which the applicant drove whilst disqualified.
72. [72]
    The applicant had been in custody for 170 days before he was sentenced, but none of that time was declared to be time served under the sentence.  He was sentenced to concurrent terms of five years’ imprisonment and ordered to serve the whole of one of the terms of suspended imprisonment (18 months) concurrently with the five year terms.  (He was not dealt with for breach of the other.)  The applicant was also disqualified from holding or obtaining a driver’s licence for five years.
73. [73]
    Nolan applied for leave to appeal against sentence on the ground that it was manifestly excessive.  His counsel argued that comparable decisions demonstrated that a sentence as severe as five years’ imprisonment for a home invasion was reserved for cases involving higher levels of violence, more serious injuries or the use of weapons.
74. [74]
    Fraser JA, with whom Chesterman JA and Dutney J agreed, accepted the contention that the sentence (which was effectively one of five and a half years’ imprisonment) was manifestly excessive.  The sentence was reduced to four years and three months imprisonment, with no pre-sentence custody declaration and no order concerning a parole release date.

Re-sentencing the applicant

75. [75]
    The applicant is a young offender with a concerning criminal history.  His father was disturbed and violent.  He suffered the instability of living between two countries.  He left home as a teenager.
76. [76]
    There was a risk of serious injury when he committed the home invasion, armed with a knife and in the company of a large number of people.  But notwithstanding their numbers, the applicant and his co-offenders ran away when Chatto, a mature man, appeared.  The injuries inflicted on the complainants, while not trivial, were not as serious as those inflicted in the matters of Amanto, Sokol, Broome and Granato.  However the applicant went on to offend in a pre-meditated and violent way only hours after the home invasion.  He committed less serious offences a couple of weeks later.
77. [77]
    A sentencing court must impose a sentence which is just in all of the circumstances.  In the present case, the circumstances include those mentioned above as well as –

    1. (a)
       the applicant’s almost inevitable deportation – thereby depriving him of the opportunity to make a life for himself in Australia;
    2. (b)
       his being returned to New Zealand as a young man without a mother to receive him and with only distant relationships with his siblings; and
    3. (c)
       uncertainty about the time he will spend in immigration detention prior to his deportation.
78. [78]
    In my view, bearing in mind all relevant considerations, the applicant’s offending, considered globally, called for a sentence of five years’ imprisonment.
79. [79]
    In my view, it was appropriate to impose that sentence in respect of the burglary.  A sentence of five years’ imprisonment took into account the whole of the applicant’s offending but was not “crushing” in light of the applicant’s age (cf Fraser JA at [20] – [21] in Nolan).
80. [80]
    Because of the sentence imposed at first instance, the primary judge did not have to consider whether it was appropriate to partially suspend it, or to fix the applicant’s parole eligibility date.  However, during an exchange with defence counsel, her Honour acknowledged that partial suspension was “commonly an appropriate approach to take with someone who is to be deported” where the sentence imposed was five years’ imprisonment or less.
81. [81]
    Because the applicant will almost inevitably be deported upon his release from custody, the potential for meaningful parole supervision is illusory.  I considered partial suspension of the five year sentence more appropriate than fixing a parole eligibility date.
82. [82]
    The parole eligibility date was therefore set aside and it was ordered instead that the period of imprisonment of five years be suspended after the applicant has served 22 months of it.  I did not consider any other variation of the sentence imposed at first instance to be necessary.