R v Benecke[2024] QCA 86

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  I agree with Crowley J and the orders his Honour proposes.
2. [2]
   BODDICE JA:  I agree with Crowley J.
3. [3]
   CROWLEY J:  On 31 July 2023, the applicant pleaded guilty to an offence of arson and to Commonwealth offences of using a carriage service to make threats and improper use of an emergency call service.  He was sentenced to three years’ imprisonment for the arson offence. For each of the Commonwealth offences he was sentenced to six months’ imprisonment.  The sentences for the Commonwealth offences were ordered to commence on the date of sentence.  The sentence for the arson offence was made cumulative upon the balance of an existing sentence of nine years’ imprisonment that had earlier been imposed upon the applicant on 3 November 2017, for an offence of manslaughter.  The sentencing judge fixed the date of the applicant’s parole eligibility as 28 May 2025, being the full-time expiry date for his existing sentence.
4. [4]
   The applicant seeks leave to appeal against the sentence imposed for the arson offence.  He makes no complaint about the length of that sentence, nor as to the order that it be served cumulatively upon his existing sentence. His challenge is limited to the parole eligibility date fixed by the sentencing judge.
5. [5]
   At the commencement of the hearing of the application, the applicant sought leave to adduce further evidence in respect of the details of the sentence he is presently serving. The further evidence included an amended pre-sentence custody certificate.  The respondent did not oppose leave being granted.  The Court indicated that it would consider the issue of leave to adduce the further evidence concurrent with considering whether to grant the applicant leave to appeal his sentence.
6. [6]
   The applicant seeks to advance two grounds of appeal.  The first ground contends that by fixing the date for his parole eligibility as the date of the full-time expiry of his sentence for the manslaughter offence the sentence is manifestly excessive.  The second ground contends that the sentencing judge was led into error by being wrongly told that the applicant was serving a total period of imprisonment of 12 years, 10 months and 12 days, when he was in fact serving a total period of 14 years.

The offending

7. [7]
   The facts for sentence were set out in two agreed statement of facts that were tendered by the prosecution at the sentence hearing.
8. [8]
   The arson offence was committed in the early hours of the morning on 14 September 2021.  The applicant was homeless and living on the streets at the time.  He was using an area on the verandah of a second-hand shop for shelter.  He struck a match and used it to light a piece of paper, which he in turn then used to light a cigarette he had found on the ground.  After lighting the cigarette, he threw the lit piece of paper away, near where there were cardboard boxes or paper which then caught fire.  The fire spread and the building was destroyed.  The value of the damage to the property was estimated to be $670,000.
9. [9]
   The applicant was sentenced on the basis that he had not deliberately burnt the building but that he was entirely reckless about his disposal of the lit piece of paper.
10. [10]
    In his sentencing remarks, the sentencing judge noted it was not said that any person was in the building at the time of the fire and so there had been no particular danger to any member of the public in that way, but nevertheless there had been a danger to the fire crews that had attended, and the fire had caused significant damage.
11. [11]
    The Commonwealth offences were committed two days later, on 16 September 2021.  That offending involved the applicant ringing the watchhouse at Ipswich and making threats to kill people, stating that he had guns and ammunition, and ringing the triple zero emergency number to make similar threats.
12. [12]
    The applicant was arrested later that morning and remained in custody until the date he was sentenced.

The applicant’s background and antecedents

13. [13]
    The applicant was 48 years of age when he committed the offences and 50 at the time of sentence.  He had experienced an extremely detrimental and deprived upbringing.  He had been the subject of abuse within his family at the hands of his father and also his mother, who had apparently attempted to kill him at a very young age.  As a result, he had been placed into foster care.  His father was said to be a violent alcoholic who had been violent to all members of the applicant’s family including the applicant and his siblings.
14. [14]
    The applicant’s education was fairly limited.  He had attended school at BoysTown from about the age of 12, but was again subjected to physical abuse as well as sexual abuse.  He absconded from that institution at age 15 and was then homeless and living on the streets.  He had no formal employment history in the community, although he had undertaken work whilst in custody.  He was a regular drug user.  He had self-harmed in various ways throughout his life.
15. [15]
    A psychologist’s report tendered on behalf of the applicant noted that he had previously been diagnosed with a number of disorders during childhood.  The psychologist expressed the view that the applicant likely met the criteria for a range of other disorders in his teens, which also remained current.  The sentencing judge doubted the accuracy of all the past diagnoses but accepted that the applicant would qualify for diagnoses of post-traumatic stress disorder and depressive illness, conduct disorder, anti-social personality disorder and perhaps a borderline personality disorder.  The sentencing judge did not accept that that the psychologist was qualified to diagnose the applicant as having a schizophrenia spectrum disorder.
16. [16]
    The sentencing judge also noted that the psychologist offered opinions about the applicant’s mental functioning at the time of the commission of the offences, but he doubted the psychologist was qualified to provide those opinions.  He rejected the psychologist’s opinion that if the applicant continued to engage with support his prognosis was positive.
17. [17]
    Having regard to the applicant’s background, upbringing and personal circumstances, the sentencing judge stated that he had no doubt that the applicant’s conduct over a very long period of time had seen him largely institutionalised and his behaviours in the community had seen him commit many, many offences and be sentenced to many terms of imprisonment.  He noted the applicant had not been medicated at the time of his recent offending and that he had admitted to being affected by substances when he committed the offences.
18. [18]
    In addition to his mental health issues, the applicant also suffered from chronic back pain, prostate cancer and sclerosis of the liver due to hepatitis C.
19. [19]
    The applicant had entered early pleas of guilty to each of the offences, which the sentencing judge accepted was evidence of his cooperation in the administration of justice.  He had apologised for his conduct and expressed remorse in letters he had written to the owners of the destroyed building and to the police and emergency call operators.  He had made efforts to address his mental health whilst in custody.  The sentencing judge accepted the applicant’s letters of apology and his compliance with mental health treatments since he had been in custody as some evidence of remorse on his part.
20. [20]
    The applicant had what the sentencing judge described as ‘a lengthy and concerning criminal history’ which involved past periods of incarceration in both New South Wales and Queensland.
21. [21]
    His New South Wales criminal history included convictions for unlawful use of a motor vehicle, breaking entering and stealing, robbery whilst armed, escaping lawful custody and robbery whilst armed and in company, and kidnapping.  He had been sentenced for those offences, by the District Court at Lismore in 1997, to a minimum term of three and a half years’ imprisonment, with an additional term of two years and two months.
22. [22]
    His Queensland criminal history contained past convictions for various offences including burglary offences, unlawful use of motor vehicle offences, dishonesty offences, wilful damage offences and some minor drug offences.  In addition, his criminal history disclosed two particular occasions where he had been convicted and sentenced for offences that were highly relevant to the sentencing exercise.
23. [23]
    The first occasion was in respect of sentences imposed by the District Court on 24 October 2011, for a number of serious offences, including three offences of arson, assault occasioning bodily harm, wilful damage and robbery with actual violence, in company and with personal violence.  A sentence of five years’ imprisonment was imposed for the most serious arson offences, with lesser concurrent sentences of imprisonment being imposed for the other offences.  A total of 415 days, between 4 September 2010 and 23 October 2011, were declared as time already served under the sentences imposed.  An order was made that the applicant would be eligible for parole on 3 May 2012, after serving one-third of the head sentence.
24. [24]
    During the sentencing hearing the prosecutor told the sentencing judge that the previous arson offence for which the applicant received the five-year sentence of imprisonment had been committed by him in similar circumstances to the arson offence for which he now stood to be sentenced.  The previous offence had also involved a shop that had burnt down as a result of a fire started by the applicant.  On this point, the written submissions tendered on behalf of the applicant further elaborated:

“In respect of the earlier arson offence, the defendant instructs that, at that time in 2010, he was homeless and engaging in drug use and made a campfire in a steel bin next to a camping supplies shop where he was sleeping for shelter.”

25. [25]
    The second highly relevant occasion where the applicant had previously been sentenced concerned the sentence imposed for the manslaughter offence by the Supreme Court on 3 November 2017.  On that occasion the applicant was sentenced to nine years’ imprisonment.  A period of 748 days of pre-sentence custody, between 17 October 2015 and 2 November 2017, was declared as time already served under the sentence imposed.  The applicant’s parole eligibility date was fixed as 17 October 2018.
26. [26]
    According to the pre-sentence custody certificate tendered at the sentencing hearing, the applicant had been released on parole in respect of that sentence on 27 January 2021.  However, very shortly thereafter, the Parole Board suspended his parole on 4 February 2021.  A parole supervision report tendered by the prosecution advised that the applicant’s parole was suspended because he had been uncontactable by the authorities, had left his approved accommodation without consent and had failed to attend for the fitting of an electronic monitoring device.
27. [27]
    Because his parole had been suspended, each of the offences the subject of the present application were committed whilst the applicant was unlawfully at large, between 4 February and 16 September 2021.  The pre-sentence custody certificate calculated that period as 224 days.
28. [28]
    The sentencing judge recorded in his sentencing remarks that the applicant had been actively avoiding being taken into custody, because his parole had been suspended, when he committed the offences.  His Honour further noted that whilst the applicant had been in custody for 10 months and 14 days since his arrest, he had been returned to custody to serve out his earlier sentence and therefore he had not solely been in custody on remand.

Submissions as to penalty made at the sentencing hearing

29. [29]
    Two prosecutors appeared at the sentencing hearing, one for the State in respect of the arson offence and one for the Commonwealth in respect of the other offences.
30. [30]
    The State prosecutor submitted that a cumulative sentence was warranted for the arson offence.  By reference to authorities, he submitted that the appropriate range of sentence for the offence was between three to five years’ imprisonment.  However, he accepted there would need to be moderation of the sentence to reflect the totality of the applicant’s sentence and to avoid a sentence that would be crushing.  In his written submissions that State prosecutor initially submitted that a sentence of two to three years, made cumulative on the applicant’s existing manslaughter sentence, would be appropriate.  Subsequently, in oral submissions, he said that his ultimate submission was for a cumulative sentence of one to two years’ imprisonment.
31. [31]
    The applicant’s counsel did not cavil with the prosecutor’s submission about the appropriate range of sentence otherwise applicable for the arson offence However, she urged the sentencing judge to take a different approach, submitting for a global sentence of four years’ imprisonment in respect of all the offences, with a declaration that 15 months of the pre-sentence custody was time already served, and an order for immediate parole eligibility.  The applicant’s counsel submitted that the sentence for which she contended was appropriate having regard to the principle of totality and the need to avoid a crushing sentence.

Ground 2: Was the sentencing judge led into error in respect of the length of the sentence the applicant was serving?

32. [32]
    It is convenient to deal with this ground first before considering whether the sentence is manifestly excessive.
33. [33]
    The applicant’s complaint under this ground is premised on an assumption that the sentencing judge misunderstood the facts relating to the total period of imprisonment that the applicant had been serving as at the date of sentence.
34. [34]
    The applicant says the sentencing judge must have erred in this way because the pre-sentence custody certificate contained wrong information, which was reiterated in written submissions tendered by the Commonwealth prosecutor during the sentencing hearing.
35. [35]
    The particular information recorded in the pre-sentence custody certificate, described as “Other notes for sentencing court in relation to current period of incarceration", stated:

3. “•
   Prisoner currently serving a 12-year, 10 month and 12 day total period of imprisonment, commencing on 24/10/2011. Parole Eligibility date 17/10/2018.

3. •
   Fulltime Expiry of Sentence of 28/05/2025.”

36. [36]
    The date of 24 October 2011 referred to in the certificate was the date when the applicant was previously sentenced in the District Court to five years’ imprisonment.
37. [37]
    The applicant submits the information in the certificate was wrong because it did not include a period of 415 days of pre-sentence custody that was declared as time already served by the applicant when he was sentenced on 24 October 2011.  Hence, the applicant submits, the actual total period of imprisonment that he had been serving as of 31 July 2023 was 14 years.  The amended pre-sentence certificate obtained by the applicant now includes specific reference to the 415 days of pre-sentence custody.
38. [38]
    On this basis, the applicant argues that the sentencing judge erred and it therefore falls for this Court to exercise the sentencing discretion afresh.  The applicant submits that in doing so the Court would set aside the sentence imposed at first instance, but only in respect of the parole eligibility date fixed, and would resentence the applicant by fixing parole eligibility as at the date of the hearing of his application for leave to appeal.
39. [39]
    The respondent concedes the details of the sentence the applicant was currently serving were wrongly stated in the pre-sentence custody certificate and the sentencing judge erred in the way the applicant contends.  Nevertheless, it submits that the Court would not exercise the sentencing discretion afresh, as no other lesser sentence is warranted in law.
40. [40]
    In my view, the premise for the applicant’s argument is misconceived and the respondent should not have made the concessions that it did.  There are a number of reasons why this is so.
41. [41]
    Firstly, I do not consider the pre-sentence custody certificate tendered at the sentencing hearing stated wrong information about the total period of imprisonment the applicant was serving.  Whilst the certificate did not refer to the 415 days of pre-sentence custody that had been declared as time already served when the applicant was sentenced on 24 October 2011, that did not make the information that was provided incorrect.  The certificate accurately stated that the applicant was serving a 12 years, 10 months and 12 days total period of imprisonment, commencing on 24 October 2011, with a full-time expiry date of 28 May 2025.  At most, the information was incomplete.  But it was not wrong.
42. [42]
    Secondly, the pre-sentence custody certificate was not the only source of information the sentencing judge had about the past sentences that had been imposed.  The applicant’s criminal history had been tendered by the State prosecutor.  It clearly and unequivocally contained the relevant details of the five-year sentence of imprisonment that had been imposed in the District Court in 2011, including the period of 415 days of pre-sentence custody, between 4 September 2010 and 23 October 2011, which was declared as time already served, and of the nine-year sentence of imprisonment that had been imposed in the Supreme Court in 2017.  His Honour had also received transcripts of the sentencing remarks of the judges that had sentenced the applicant on each of those occasions.  The sentencing remarks for the manslaughter offence recorded that the applicant had committed that offence whilst on parole for the sentences imposed by the District Court in 2011 and that since 3 April 2015 until 16 October 2015 he had been returned to custody to serve out his parole.  The sentencing judge expressly referred to the applicant’s criminal history, and to each of these previous sentences in particular, in his sentencing remarks.
43. [43]
    Thirdly, the sentencing judge did not refer at all to the information contained in the pre-sentence custody certificate, or to the Commonwealth prosecutor’s written submission about it, in his sentencing remarks.  There is nothing else contained within his Honour’s sentencing remarks that suggests he was mistaken as to the facts of the sentence the applicant was serving.
44. [44]
    In these circumstances there is no basis to infer that the sentencing judge erred in the way the applicant suggests, and this ground fails.

Ground 1: Was the sentence manifestly excessive?

45. [45]
    A ground of appeal contending that a sentence is manifestly excessive involves a challenge to the discretionary judgment exercised by the sentencing judge.  Such a challenge is constrained by the principles espoused in House v The King.^[1]  Absent specific error, what must be established by an appellant is that interference by the appellate court is warranted because on the facts of the case the result reached by the sentencing judge is unreasonable or plainly unjust, such that it may be inferred there has been a failure to properly exercise the discretion which the law reposes in the court of first instance.
46. [46]
    An assertion that a sentence is manifestly excessive is a statement of a conclusion rather than a complaint about a line of reasoning.  It is a conclusion that does not admit of lengthy exposition or elaboration, as the sentence either is, or is not, plainly unreasonable or plainly unjust.^[2]
47. [47]
    Whilst an assertion of manifest excess ordinarily implies that error of some unknown kind has vitiated the exercise of the sentencing discretion, the applicant here seeks to explain the result by submitting that the sentencing judge failed to adequately apply the principle of totality when fixing the applicant’s parole eligibility date.  In that respect, the applicant says that the sentencing judge failed to properly take into account that, by imposing a cumulative sentence for the arson offence, the applicant would become subject to an aggregate period of 17 years’ imprisonment and that by the time he became eligible for parole he would have served 13 years and one month (77 per cent) of that total period.
48. [48]
    As a result, so it is submitted, fixing the parole eligibility date renders the sentence manifestly excessive.
49. [49]
    The High Court noted in Mill v The Queen,^[3] that the principle of totality requires a sentencing judge who imposes a number of sentences upon an offender to consider questions of accumulation or concurrency and to review the aggregate sentence arrived at to ensure it is “just and appropriate”.  The Court observed that to achieve that end, a sentencing judge might, amongst other things, lower the individual sentences below what would otherwise be appropriate to reflect the fact that a number of sentences were being imposed.
50. [50]
    The principle of totality is not restricted in its application simply to situations where the same sentencing judge imposes sentences for multiple offences on the one occasion.  Another situation to which it applies is where a sentencing judge sentences an offender who is serving an existing sentence.  In such a case, the following statement made by Hunt CJ at CL in R v Gordon^[4] is apposite:

“When a custodial sentence is to be imposed which will be cumulative upon, or which will overlap with, an existing custodial sentence, the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable.”

51. [51]
    The applicant relies upon this statement of principle and further cites R v WBK^[5] in support of his argument.  In that case, the Court considered the application of the principle of totality in circumstances where s 160F of the Penalties and Sentences Act 1992 requires the fixing of a new parole release or eligibility date in respect of an offender’s total period of imprisonment, as opposed to a discrete term of imprisonment.  The sentencing judge at first instance had sentenced the offender to a term of imprisonment in circumstances where he was already serving an existing sentence.  Although the sentencing judge fixed a date for the offender’s parole eligibility, Lyons SJA concluded that she had failed to comply with s 160F because she had fixed the parole eligibility date by reference only to the new term of imprisonment she had imposed and not by reference to the offender’s total period of imprisonment.^[6]  Her Honour also determined that the sentencing judge had failed to properly take into account matters of totality when setting the parole eligibility date.^[7]
52. [52]
    In a separate judgment agreeing with Lyons SJA, Boddice J (as his Honour then was) stated:

“Whilst a proper exercise of the sentencing discretion may, in an appropriate case, involve the sentencing judge reasoning towards a parole release or eligibility date by reference to that part of the sentence to be served in actual custody, such reasoning must occur having given due regard to any existing periods of imprisonment.”

53. [53]
    The applicant contends that the sentencing judge failed to have regard to these principles when imposing the sentence for the arson offence.
54. [54]
    The applicant’s argument on this issue is, in part, founded upon the same argument that I have already rejected in respect of his second ground of appeal.  I reiterate, there is simply no basis to conclude that the sentencing judge was ignorant of the fact that by imposing a cumulative term of three years’ imprisonment for the arson offence the applicant would be serving a new aggregate period of 17 years’ imprisonment.  Similarly, there is also no basis for the assertion that the sentencing judge failed to consider that period when fixing the applicant’s parole eligibility date.
55. [55]
    I do not consider that it has otherwise been demonstrated that the sentencing judge failed to adequately apply the principle of totality when fixing the applicant’s parole eligibility date.  The sentencing judge was clearly mindful of the need to impose sentences that would give effect to the principle of totality and avoid a crushing sentence.  In my view, this is borne out by the sentencing remarks.
56. [56]
    At the commencement of his sentencing remarks, the sentencing judge stated:

“I will tell you the sentence I am going to impose is effectively three years imprisonment. I will impose that for the arson offence, but I will order that that sentence commence at the expiry of your current sentence, so that it is cumulative with your current sentence. That will extend your full-time release date until the 28^th of May 2028. I will order that you be eligible for release on parole as at the 28^th of May 2025, that is, at the completion of your current sentence.”^[8]

57. [57]
    The effect of the sentence ultimately imposed by the sentencing judge was that although the applicant’s existing sentence was extended by three years, he would become eligible for parole immediately upon the date of the full-time expiry of the existing sentence he was serving.  In other words, his Honour did not require the applicant to serve any part of that sentence in actual custody.  The only period of imprisonment that he would be required to serve was the balance of the existing manslaughter sentence for which he had been returned to custody after his parole had been suspended and he had reoffended.
58. [58]
    Later in his sentencing remarks, rejecting the submissions made on behalf of the applicant as to the appropriate sentence to be imposed, the sentencing judge stated:

“I understand the defence submissions were that you should get a sentence in the range of four years imprisonment but that that should be concurrent with your existing term, and with a portion of your pre-sentence custody declared time served, and the submissions were to the effect that to do otherwise would be to impose a term which was a crushing one, extending your full-time release date to a point which did not take account of all of your personal circumstances.

I do not accept those submissions. It seems to me that you have demonstrated over a long period of time that you remain a continuing danger to the community. You have shown no inclination to comply with efforts made to supervise you in the community and deal with the issues that have led to you offending, and in the circumstances that you have been returned to custody and continue to serve out the sentence imposed for that earlier offence, that a sentence cumulative upon your existing term is appropriate. It is separate and distinct offending and of a serious order, and the period that you have been back in custody has counted, every day of it, towards your earlier sentence.

In those circumstances I am satisfied, even reducing the sentence to take account of your pleas of guilty, the circumstances that you did not deliberately set this fire, and that no particular person was in danger, nevertheless, a sentence of three years imprisonment cumulative upon your existing term is appropriate in all of those circumstances…

I am satisfied that the offence of arson warrants a significant term of imprisonment to record the seriousness of it, the community’s disapproval of it, to serve the purpose of general deterrence, but, more importantly, protection of the community by way of personal deterrence, and it is in those circumstances that I structure the sentences in the way that I have outlined.”^[9]

59. [59]
    The applicant does not challenge any of the sentencing judges’ reasoning, which clearly revealed the factors that led his Honour to impose a cumulative sentence and fix parole eligibility at the end of applicant’s existing sentence.  But neither could he, having regard to the nature and circumstances of his current and past offending and the obvious relevance and importance of the sentencing purposes identified by the sentencing judge.  The arson offence was serious.  It carried a maximum penalty of life imprisonment.  The applicant had relevant prior convictions.  Each was an aggravating factor to be taken into account.  He had committed the offences whilst unlawfully at large after his parole order had been suspended.  This was a serious aggravating circumstance.  Protection of the community and deterrence, both personal and general, were to be given significant weight.
60. [60]
    Although the applicant had spent a lengthy period in custody before being sentenced, all of that time was spent serving his existing sentence.  None of it was solely attributable to being on remand for the offences for which he was sentenced.  The sentencing judge took the period of pre-sentence custody into account but did not declare any part of it as time already served under the sentence imposed under s 159A of the Penalties and Sentences Act.
61. [61]
    Although the 2020 amendment made to s 159A to remove the words “and for no other reason”^[10] now permits a sentencing judge to make a declaration in respect of a period of pre-sentence custody that is both time on remand and time served under an existing sentence, it remains a matter within the discretion of the sentencing judge.^[11]  It was open to his Honour to take the approach he did in circumstances where the applicant had failed to comply with his parole order, his parole had been suspended, and, by operation of s 209(1) of the Corrective Services Act 2006, upon being sentenced to the three-year term of imprisonment for the arson offence his parole was taken to have been automatically cancelled on the date he committed that offence.  That the applicant would now be required to serve the remaining approximately 22 months’ balance of his existing sentence for the manslaughter offence was entirely reasonable.
62. [62]
    One further matter should be noted in respect of the sentencing judge’s approach to requiring the applicant to serve the balance of his existing sentence before he would become eligible for parole.  The respondent submitted that an ordinary expectation for an offender having breached their parole by further offending is that they may be required to serve the remainder of that sentence in custody.  The respondent emphasised the following statement made by Fraser JA in R v Johnson:^[12]

“The sentencing judge’s discretion to fix the date for parole eligibility was not fettered, but the ordinary expectation resulting from the applicant having breached his parole under the 2011 sentence is that he would be required to serve at least the remainder of that sentence in custody. Where a term of imprisonment for offences of this character is imposed upon an offender with the benefit of some subjective mitigating circumstances who enters an early plea of guilty and is not subject to any other sentence, the parole eligibility date is commonly fixed at about the one-third mark of the term.”

63. [63]
    The respondent further submitted that this was an important principle and invited the Court to state that it remained applicable notwithstanding the amendment to s 159A.
64. [64]
    In my view it is strictly unnecessary for the Court to make any express statement to that effect.  The amendment of s 159A provides a sentencing judge with the ability to make a declaration in respect of pre-sentence custody in a wider range of circumstances than was previously the case.  Whilst that means it is possible to make a declaration in respect of pre-sentence custody in a case such as the present, it remains the fact that a sentencing judge has an unfettered discretion with respect to fixing a date for parole eligibility.  The proper exercise of that discretion in any given case will be determined according to the circumstances of the offence and offender in question.  It will always be a significant factor relevant to the exercise of that discretion that an offender has further offended whilst on parole.
65. [65]
    In my opinion, the fixing of the applicant’s parole eligibility date as 28 May 2025, being the full-time expiry date for his existing sentence for the manslaughter offence, did not produce a manifestly excessive sentence.  On the contrary, in my view, the approach taken by the sentencing judge was a sound exercise of the sentencing discretion having regard to the circumstances of this case.

Orders

66. [66]
    I would order:

1. The applicant be given leave to adduce further evidence.
2. The application for leave to appeal against sentence be granted.
3. The appeal be dismissed.