The Queen v Nadich [2012] NTCCA 4

PARTIES:	THE QUEEN

	v

	NADICH, Reuben

TITLE OF COURT:	COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:	CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO:	CA 11 of 2011 (21018605)

DELIVERED:	29 February 2012

HEARING DATE:	7 February 2012

JUDGMENT OF:	RILEY CJ, SOUTHWOOD and BLOKLAND JJ

APPEALED FROM:	KELLY J

CATCHWORDS:

APPEAL AGAINST SENTENCE – Crown Appeal – intent to cause serious harm – shotgun wound – manifestly inadequate – cumulation – totality – appeal allowed

Criminal Code s 177(a), s 414(1A)
Sentencing Act s 43(6), s 43(7), s 50

The Queen v Martyn [2011] NTCCA 13
R v Partridge (2008) 102 SASR 233
R v Readman (1990) 47 A Crim R 181
Bukulaptji v The Queen (2009) 24 NTLR 210
Hatch (1997) 95 A Crim R 46
Postiglione (1997) 189 CLR 295
Nguyen (Unreported) VSC 24 October 1991
R v Wilson [2011] NTCCA 9
Everett (1994) 181 CLR 295
Allpass (1993) 72 A Crim R 561
DPP v Coleman (2001) A Crim R 415
R v Tait (1979) 146 FLR 386

REPRESENTATION:

Counsel:
	Appellant:	M McColm
	Respondent:	I Read

Solicitors:
	Appellant:	Office of Director of Public Prosecutions
	Respondent:	Northern Territory Legal Aid Commission

Judgment category classification:	B
Judgment ID Number:	Sou1202
Number of pages:	23

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

The Queen v Nadich [2012] NTCCA 4
No. CA 11 of 2011 (21018605)

	BETWEEN:

	THE QUEEN
	Appellant

	AND:

	REUBEN NADICH
	Respondent

CORAM:	RILEY CJ, SOUTHWOOD and BLOKLAND JJ

REASONS FOR JUDGMENT

(Delivered 29 February 2012)

RILEY CJ:
[1]	I agree that the appeal should be allowed for the reasons expressed by Southwood J.  I agree with the sentence proposed by his Honour.
SOUTHWOOD J:
Introduction
[2]	On the evening of 29 May 2010 the respondent shot PW in the back of his left shoulder and left arm with a 12 gauge shotgun at a distance of two to three metres from him.  The victim suffered serious harm.  At the time the respondent was subject to the operational period of a suspended sentence of imprisonment for drug offences.  
[3]	On 21 July 2011, following a plea of guilty, the respondent was convicted of the crime of cause serious harm with intent to cause serious harm contrary to s 177(a) of the Criminal Code.  The maximum penalty for this offence is imprisonment for life.  The respondent was sentenced to six years imprisonment.  In addition, the suspended sentence of imprisonment that was imposed by the Supreme Court on the respondent on 14 May 2010 was revoked and the offender was ordered to serve the balance of that sentence of one year, three months and five days in actual imprisonment.  Six months of the latter sentence was ordered to be served cumulatively on the sentence of six years imprisonment that was imposed for the offence of cause serious harm with intent to cause serious harm which gave a total sentence of six years and six months imprisonment commencing on 31 May 2010.  A non-parole period of three years and three months was fixed by the sentencing Judge.
[4]	The appellant appealed against the sentences of imprisonment imposed by the Supreme Court on 21 July 2011.  The grounds of appeal were as follows.
1.	The learned sentencing Judge erred by imposing a sentence which was manifestly inadequate in all the circumstances of the case.
2.	The learned sentencing Judge erred by not ordering the balance of the sentence on file 20909913 [the drug offences] be served [wholly] cumulatively.
[5]	On 7 February 2012 the Court allowed the appeal.  Following are my reasons for doing so.
The offending
[6]	The respondent was born in Darwin on 30 August 1987.  He is 24 years of age.  At the time of the offending he was 22 years of age.  He is an only child who was raised by his mother.  He has never met his father.  He has lived in Alice Springs for most of his life.
[7]	The respondent completed year 10 of high school.  After he left school at the age of 16 years, he obtained casual employment in the hospitality industry and later the security industry in Alice Springs.
[8]	The offender has a problem with the misuse of substances.  He first tried cannabis when he was 16 years of age and did not like it.  He tried it again when he was 18 or 19 years of age at a party with a group of friends and he started to smoke it fortnightly on weekends, but he soon got into a habit of smoking the dangerous drug three or four times a week.
[9]	In addition to his substance misuse, the appellant has a number of psychological problems.  He has very poor problem solving ability.  He exhibits an adjustment disorder, with mixed anxiety and depression, Anti-social Personality Disorder and borderline Personality Disorder and he has limited cognitive abilities.  
[10]	The respondent moved to Adelaide when he was 20 years of age at the invitation of a friend who arranged for accommodation and got him a security job in nightclubs.  He began regularly taking amphetamines, ecstasy and crystal methamphetamines.  He also used cannabis after work.  He developed a serious dependency on the drugs and he could not afford to maintain his dependency.  As a result his drug dealer offered him credit if he sold drugs in Adelaide and he accepted the offer.  He was ultimately arrested in Adelaide and found to be in possession of a substantial quantity of drugs.  After his arrest he was granted bail and he returned to live with his mother in Alice Springs.
[11]	On 20 March 2009 the respondent committed two offences under the Misuse of Drugs Act in Alice Springs.  He unlawfully supplied 505 grams of ecstasy, which is a commercial quantity of the drug, and he unlawfully supplied 410.6 grams of cannabis.
[12]	The circumstances of the respondent’s drug offending were as follows.  Before 20 March 2009 he made arrangements to purchase half a kilogram of ecstasy and two pounds of cannabis from a person in Adelaide.  He agreed to make that purchase on credit.  He arranged for a person named C to collect the drugs in Adelaide and convey them to him Alice Springs.  At about 7.30 pm on 20 March 2009, C contacted the respondent and advised him that he had arrived in Alice Springs with the drugs and he arranged to meet him at the Power and Water Station on the Stuart Highway.  The respondent then arranged for a person named W to drive him to the meeting point.  They met C and obtained the drugs.  The respondent placed the drugs into the footwell of the front passenger seat of the motor vehicle he was travelling in and W and he drove off.  Police stopped the motor vehicle on the Stuart Highway near the front of the 8AH radio station; they located the drugs and arrested the respondent.  The respondent had hoped that by selling the drugs in Alice Springs he would be able to liquidate his drug debt in South Australia.
[13]	The respondent pleaded guilty to two counts of supplying dangerous drugs and on 14 May 2010 Olsson AJ sentenced him to an aggregate sentence of imprisonment of two years and five months which was back dated to 20 March 2009.  The sentence of imprisonment was suspended on 14 May 2010.  It was suspended on the following conditions.
1.	The respondent shall accept the supervision of the Director of Correctional Services and obey all reasonable directions as to reporting, residence, employment and counselling.
2.	The respondent will enter into employment arranged or agreed upon at the direction of a probation officer, and shall notify the probation officer of any intention to change that employment.
3.	The respondent shall not associate with any person specified in a direction by a probation officer.
4.	The respondent shall not frequent or visit any place or district specified in a direction by a probation officer.
5.	The respondent shall not consume a dangerous drug and he shall submit to urinalysis testing as directed by a probation officer for the purpose of detecting dangerous drugs.
[14]	Under s 40(6) of the Sentencing Act Olsson AJ fixed an operational period of two years from 14 May 2010.  His Honour warned the respondent that if he failed to comply with the conditions of his suspended sentence, it was almost inevitable that he would be required to serve the full sentence in prison.
[15]	At 5.00 pm on 29 May 2010 the respondent received a telephone call from JC who asked him to go to his residence at Tony Auto Wreckers and he did so.  At that residence he met up with JC and BG.  Either JC or BG produced some crystal methamphetamine, and the respondent smoked half a gram of crystal methamphetamine.  It was very strong and the respondent got “high”.  The respondent’s consumption of the crystal methamphetamine was a breach of the conditions of his suspended sentence.  
[16]	JC then suggested that they should go to Wiggly’s Waterhole to shoot some kangaroos to get meat for his dogs and they left in BG’s Toyota Land cruiser.  They took with them a single barrel 12 gauge shotgun and Winchester Super X shells.  They drove north along the Stuart Highway, turned right opposite Quarry Road and then drove towards Wiggly’s Waterhole.  After travelling a short distance they stopped, took out the gun and fired some shells.
[17]	Meanwhile the victim, PW, and his partner, ES, had driven down to the area between Wiggly’s Waterhole and Junction Waterhole in their Toyota four wheel drive.  Their plan was to have a meal and to camp out for the night.  They arrived at their campsite at 3.00 pm and unloaded their swags and cooking gear.  There was no gun in their car.  They made a fire, had a couple of drinks and talked and listened to music.
[18]	At around 6.00 pm BG drove his Land cruiser to where the victim and his partner were camped and BG parked it several metres from them.  JC was in the front passenger seat and the respondent was in the rear.  At the time the victim and his partner were inside their Toyota trying to get their iPod to play some music.  The victim left his motor vehicle and approached the driver’s side of BG’s Land cruiser and asked what was going on.
[19]	Either BG or JC said, “You are right mate; we thought you were blackfellas and we were going to shoot you”.  The victim had a conversation with the occupants of the Land cruiser and one of them said to him, “You guys having a root?”  The victim changed his tone and the conversation became a little heated.  BG started to apologise and said they were moving on.  
[20]	The victim then started to walk back to his motor vehicle.  He had turned his back to the three men and had just walked past the front of the Land cruiser when the respondent aimed the shotgun at him and pulled the trigger.  The victim was hit in the back of his left shoulder and the upper region of his left arm.  He sustained extensive injuries to his chest and upper left arm from the shotgun blast.  At the time he fired the shot the respondent was inside the motor vehicle and was a distance of two to three metres from the victim. 
[21]	BG panicked and immediately accelerated the Land cruiser away from the crime scene.  As he did so, the front of the Land cruiser struck the victim on the hip.  The Land cruiser travelled away for 270 metres before stopping so the driver’s side window, which had been damaged during the incident, could be removed.  The Land cruiser with all three men inside was then driven back to Tony’s Auto Wreckers.
[22]	On 31 May 2010 the police executed a warrant at the respondent’s premises and arrested him.  On 2 June 2010 the police conducted an interview with the respondent which was electronically recorded.  The respondent lied to police.  He told them that he had not been involved in the incident.  On 10 November 2010 the respondent’s lawyers organised for the respondent to be further interviewed by the police.  He told the police he had lied during the first interview and he wanted to change his story.  He then told the police further lies.  He told the police that JC shot the victim.
[23]	The victim was admitted to the intensive care unit at the Alice Springs Hospital and treated for a gunshot wound to his left arm and left side of his chest and a fractured left arm.  X-rays showed that he had numerous shotgun pellets in his left arm and chest close to his heart.  A large part of his upper left arm and shoulder had suffered significant damage.  A plastic shotgun wad was removed from his left arm.
[24]	The victim was later evacuated to the Royal Adelaide Hospital, where he underwent open chest surgery to have several shotgun pellets removed from his chest.  Dr Marcus Wagstaff of the Royal Adelaide Hospital noted that upon admission the victim had sustained a fracture of his left humerus with multiple shotgun pellets in his left arm and chest, one being close to the left ventricle of the heart but had not penetrated it.  He had lost five centimetres of radial nerve in his left arm, 75 percent of his triceps muscle and a small area of his biceps muscle.  He had significant nerve damage to his left arm and hand.  He subsequently went through a number of procedures of reconstructive surgery.  His left humerus was fixed with plate and screws and his radial nerve was reconstructed with nerve grafts taken from both legs, and there was a skin graft taken from his left thigh.  It was later found that he had also suffered a fractured pelvis when he had been struck by the Land cruiser.  The victim was discharged from hospital on 18 June 2010 but he continued to receive rehabilitation treatment.  When last seen at the Royal Adelaide Hospital on 12 January 2011 it was noted that he had some extension in his left wrist due to tendon transfer but there was no apparent recovery of the radial nerve in extending the fingers or thumb.
[25]	Victim impact statements from both the victim and his partner were tendered in evidence.  The victim stated that he was in excruciating pain for months after he was shot.  He had constant pain all day every day for 12 months.  The pain caused him insomnia and he became short tempered.  He has had extremely limited movement in his left wrist, thumb and fingers and he has not been able to grasp objects without a custom made hand/finger support.  He is unable to lift large objects involving both of his arms.  He was unable to continue working as a diesel mechanic, a trade in which he had been employed for over 20 years.  He has been unable to participate in leisure and sporting activities including riding motorbikes, off road racing, boxing, running and riding his pushbike.  He now has no feeling in the sides of both feet due to nerve removal and he cannot walk around barefoot.  He has extensive scar damage to his legs, ankles and left arm.  He no longer likes to wear shorts or singlets in public.  He has been unable to work for five months and he has been unable to keep up with his mortgage payments.  He was forced to sell all of his assets and spend all of his savings.  He has suffered from severe anxiety, stress and depression.
[26]	In her victim impact statement the victim’s partner stated that she is incredulous as to how something so mindless, so senseless and so cruel could happen.  She was terrified and she has never before been so vulnerable, helpless and afraid.  She had to wait one and a half hours for the ambulance to arrive and all this time she had to watch her partner who was in extreme pain.  She has suffered emotional trauma and depression.  Her relationship with the victim has been adversely affected.  She suffers from flashbacks.
The principles applicable to a Crown appeal
[27]	The principles applicable to a Crown appeal were recently canvassed by the Court of Criminal Appeal in The Queen v Martyn.  Their Honours stated:
It is fundamental that the exercise of the sentencing discretion is not disturbed on appeal unless error in that exercise is shown.  The presumption is that there is no error and the appellate court does not interfere with the sentence imposed merely because it is of the view that the sentence is insufficient or excessive.  It interferes only if it be shown that the sentencing Judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence.  The error may appear in what the sentencing Judge said in the proceedings or the sentence itself may be so excessive or inadequate as to manifest such error.  In relying upon manifest inadequacy it is incumbent upon the appellant to show that the sentence was not just inadequate but manifestly so.  The appellant must show that the sentence was clearly and obviously, and not just arguably, inadequate.
The right of the Crown to appeal against a sentence is conferred by s 414(1)(c) of the Criminal Code.  Section 411(4) provides that the Court, if it is of the opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefore and in any other case shall dismiss the appeal.
With effect from 27 April 2011 s 414(1A) of the Criminal Code provides: 
In exercising its discretion on an appeal made under subsection (1)(c) involving a sentence imposed after the commencement of this subsection, the Court must not take into account any element of double jeopardy involving the respondent being sentenced again when deciding whether to do either or both of the following: 
(a)	allow the appeal; and
(b)	impose another sentence.
This provision was considered in R v Wilson where it was said that s 414(1A) of the Criminal Code has the following effect upon Crown appeals in the Northern Territory:
(a)    The section removes any need for the Court of Criminal Appeal to give consideration to ensuring that Crown appeals are "rare and exceptional”.  Responsibility in that regard rests with the Director of Public Prosecutions.
(b)    The Court must not take into account any element of double jeopardy involving the respondent being sentenced again when deciding whether or not to allow a Crown appeal.
(c)    The Court must not take into account any element of double jeopardy involving the respondent being sentenced again when deciding whether to impose another sentence.
(d)    The Court must not reduce the sentence which it otherwise believes to be appropriate on the basis of double jeopardy arising from the respondent being sentenced again.
(e)    Apart from double jeopardy considerations, the Court retains a residual discretion to determine that, despite error having been established and being satisfied that a different sentence ought to have been passed, a Crown appeal should be dismissed or a reduced sentence should be imposed.
(f)    Factors that may be relevant to the exercise of the residual discretion to dismiss an appeal, despite inadequacy of sentence, include the presence of unfairness arising from such matters as delay, parity, the totality principle, rehabilitation and fault on the part of the Crown.
Ground 1 – manifestly inadequate
[28]	In my opinion, the sentence imposed on the respondent for the crime of intentionally cause serious harm is so inadequate as to manifest error.  The sentence is so disproportionate to the objective seriousness of the offending as to shock the public conscience.
[29]	The offending is extremely serious.  It involved a motiveless act of violence which occurred without provocation and had horrendous consequences for the victim and his partner.  The victim who was completely unknown to the offender and his friends was shot in the back with a 12 gauge shotgun at close range and he and his partner were callously left in a remote part of the bush without any assistance.  The victim was shot in front of his partner.  Both his life and his partner’s life have been shattered by what occurred.  The offence was committed in aggravated circumstances.  The respondent was serving the operational period of a suspended sentence of imprisonment which was imposed on him by Olsson AJ on 14 May 2010.  It was a condition of the suspended sentence that the respondent shall not consume dangerous drugs and he was warned by Olsson AJ that if he did not adhere to the conditions of his suspended sentence it was almost inevitable that he would be required to serve the full sentence.  
[30]	The sentencing Judge in the Court below found that the moral culpability for the offending was very high and that the respondent had not accepted full responsibility for his crime.  He told elaborate lies to the police and the offender displayed a complete and utter lack of empathy for a fellow human being.  
[31]	In my opinion, the offending is very much towards the top of the range of such offences.  As the sentencing Judge found, it was pure blind luck that the victim did not die.  The sentencing objects of punishment and deterrence are the primary sentencing objects.  The crime was a very dangerous crime which was committed by a person who was leading the life of a criminal and the respondent showed an absolute disregard for the Court orders that had been imposed on him.
[32]	Counsel for the respondent argued that the sentence imposed by the sentencing Judge was within the range of other comparable offences to which the Court was referred.  However, this submission cannot be sustained.  There is no established tariff for such offences and this case is distinguishable from the other cases to which the Court was referred.  This case involved the use of a 12 gauge shotgun with Winchester Super X shells.  This is a very powerful weapon capable of causing death or great harm at close range.  The offender was a complete stranger to the victim.  The offender shot the victim in the back for no apparent reason at all and the victim had no opportunity to protect himself or avoid being hit.  He was shot at random while he and his partner were harmlessly going about their own lives and enjoying the common Northern Territory pastime of camping in the bush.  The victim sustained extensive injuries which have had dreadful consequences for the victim and his partner.  There was gross invasion of the victim’s right to safety and security.  The offence was committed in aggravating circumstances.
Ground 2 – concurrency
[33]	Counsel for the appellant also submitted that the sentencing Judge erred by not ordering that the balance of the restored sentence of imprisonment imposed for the drug offences be served wholly cumulatively on the sentence of imprisonment that was imposed on the respondent for the offence of cause serious harm with intention to cause serious harm.  Counsel for the appellant did so on the grounds that the crime of cause serious harm with the intent to cause serious harm was unrelated to the drug offences committed by the appellant.  The crime was committed about 15 days after the respondent was released from prison and the respondent had been warned by Olsson AJ that if he did not adhere to the conditions of his suspended sentence or committed another offence the suspended part of his sentence of imprisonment for the drug offences would be restored in full.
[34]	In order to resolve this submission it is necessary to have regard to s 43(6) of the Sentencing Act which states:
Where a court orders an offender to serve a term of imprisonment that had been held in suspense, the term must, unless the court otherwise orders, be served: 
(a) 	immediately; and 
(b) 	concurrently with any other term of imprisonment previously imposed on the offender by that or any other court.
[35]	The exercise of the discretion created by s 43(6) involves a consideration of different factors and principles to those which arise when considering whether to wholly or partially restore a suspended sentence of imprisonment under s 43(7) of the Sentencing Act.  The principles relevant to the decision whether to wholly or partially restore a suspended sentence of imprisonment were considered by the Court of Criminal Appeal in Bukulaptji v The Queen.  At par [35] Riley J, as his Honour then was, stated some of the factors for consideration include:
(a)	the nature and terms of the order suspending the sentence;
(b)	the nature and gravity of the breach and, particularly, whether the breach may be regarded as trivial;
(c)	whether the breach evinces an intention to disregard the obligation to be of good behaviour or to abandon any intention to be of good behaviour;
(d)	whether the breach demonstrates a continuing attitude of disobedience of the law;
(e)	whether the breach amounted to the commission of another offence of the same nature as that which gave rise to the suspended sentence;
(f)	the length of time during which the offender observed the conditions;
(g)	the circumstances surrounding or leading to the breach;
(h)	whether there is a gross disparity between the conduct constituting the breach and the sentence to be restored;
(i)	whether the offender had been warned of the consequences of a breach; and
(j)	the level of understanding of the offender of his obligations under the terms of the order suspending the sentence and the consequences of a breach.
[36]	In Bukulaptji v The Queen the Court of Criminal Appeal did not consider s 43(6) of the Sentencing Act and factor (e) is not ordinarily considered to be a factor which of itself supports concurrency or partial concurrency of sentences of imprisonment.
[37]	The provisions of s 43(6) are similar to the provisions of s 50 of the Sentencing Act.  Both sections maintain the presumption of concurrency.  Subsection 43(6) of the Sentencing Act creates a presumption that a restored suspended sentence of imprisonment is to be served concurrently with any other term of imprisonment previously imposed on the offender.  The presumption may be rebutted by a sentencing Judge ordering otherwise.  Before a sentencing Judge can order otherwise he or she must be moved or persuaded or have reason to do so.  Otherwise the ordinary rule of concurrency applies. 
[38]	When a sentencing judge is sentencing an offender for breach of a suspended sentence of imprisonment, the sentencing Judge is determining whether all or any of the original sentence is to be restored in the light of events subsequent to the imposition of the original sentence.  This may include noncompliance with conditions such as the requirement to be of good behaviour.  If the offender has also been sentenced for subsequent offending, the sentencing exercise is the same as any sentencing exercise involving multiple offences.  The guiding principle in determining whether a restored suspended sentence of imprisonment should be served concurrently or cumulatively or partly cumulatively on any other term of imprisonment which has been imposed is the principle of totality.  The principle of totality requires that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved.  An offender should be sentenced for what, viewing the circumstances broadly and reasonably, can be characterised as the offender’s criminal conduct.  In Nguyen Crockett J articulated the principle as follows:
What the principle of totality stands for … is that, after orders have been made for concurrency or cumulation, the effective sentence which is left as that to be served by the prisoner must be one which bears due proportion to the total content of the criminality of the offender being sentenced, having regard to the part played by him in each of the offences and the respective degree of gravity which ought to be assigned to each of those offences.
[39]	There is a strong argument that the sentences of imprisonment in this case should have been made wholly cumulative.  The drug offences and the offence of causing serious harm with intent to cause serious harm are all serious offences.  The offences are the product of separate and independent courses of criminal conduct which were separated by a significant period of time.  There were truly two separate courses of criminal conduct.   The offences are offences of a different kind and there were separate invasions of the community’s right to peace and order and safety and security.  Each incursion of the community’s rights was grave enough to merit separate punishment.  Further, the respondent had been persistently engaging in criminal conduct.  He was not deterred from engaging in criminal conduct either by being arrested in South Australia or by the suspended sentence he received in the Northern Territory.  The commission of the offence of cause serious harm with intent to cause serious harm after consuming crystal methamphetamine within 14 or 15 days after being released from prison on suspended sentence demonstrates that any expectation of rehabilitation of the prisoner had not been realised and he was not entitled to any mercy.
[40]	However, consistent with the principles enunciated by the Court of Criminal Appeal in R v Wilson, counsel for the respondent argued that this ground of appeal should not be entertained by the Court because the Crown made no submission before the sentencing Judge that the sentences should be wholly cumulative.  There is a lot of force in this submission.  Counsel for the Crown did not suggest during the course of the appeal that the point contained in this ground of appeal had been pressed at all before the sentencing Judge.  
[41]	In R v Wilson the Court of Criminal Appeal noted that in enacting s 414(1A) of the Criminal Code it was the intention of the Parliament that the amendment was not intended to affect the underlying principles in relation to prosecution appeals, including that prosecution appeals should be rare and brought only to establish some point of principle.  It was observed that an appellate court would only intervene where sentencing error was identified and, even if error is established, the discretion vested in the Court to refuse to intervene remained.  
[42]	An appellate court has an overriding discretion which may lead it to decline to intervene, even if error has been shown in the original sentencing process.  In this connection, the conduct of the Crown during the plea on sentence may be a matter of significance.  An important principle that is applicable in Crown appeals against sentence is that the Crown must not blow hot and cold.  It is not open to the Crown to adopt one attitude upon a plea and seek to adopt an opposing attitude upon a Crown appeal.  In R v Tait Brennan, Deane and Gallop JJ said:
Although the existence of error is the common ground which entitles the appellate court to intervene in appeal by the Crown and by the defendant, there would be few cases where the appellate court would intervene on an appeal against sentence to correct an alleged error by increasing the sentence if the Crown had not done what was reasonably required to assist the sentencing judge to avoid the error, or if the defendant were unduly prejudiced in meeting for the first time on appeal the true case against him.
[43]	The sentencing Judge gave the following reasons for partially cumulating the wholly restored suspended sentence of imprisonment for the drug offences.  
“I […] do not think that the restored suspended sentence should be completely concurrent with the sentence for the present offence.  The two offences were of a different kind and unrelated.  Having regard to the totality principle and the need to ensure that the sentence imposed on you is not crushing, I direct that the restored sentence be served as to six months cumulatively and concurrently as to the balance.”
[44]	As her Honour considered all of the relevant issues and the Crown made no submissions during the course of the plea before her Honour that the sentences for the offence of cause serious harm with intent to cause serious harm should be wholly cumulative, I accept counsel for the respondent’s submission.  This ground of appeal cannot succeed. 
Re-sentence
[45]	I would adopt a starting point of imprisonment of 12 years.  As a result of the offender’s plea of guilty, I would reduce this sentence by two years and six months which is a reduction of slightly more than 20 percent.  That gives a sentence of nine years and six months imprisonment which is to commence on 31 May 2010.  I would order that six months of the wholly restored suspended sentence of imprisonment imposed by Olsson AJ for the drug offences is to be served cumulatively on the sentence of imprisonment to be imposed for the crime of intentionally cause serious harm.  That gives a total sentence of imprisonment of 10 years.  I would fix a non-parole period of 7 years.
[46]	The probation and parole officer who prepared a pre-sentence report for this Court stated that the respondent continues to lie and downplay his role in the offending.  He presents as a victim and minimises the severity of his behaviour.  He has been evaluated as posing a considerable risk to the community.
[47]	The principal sentencing objects are punishment, denunciation and both personal and general deterrence.  The respondent’s conduct demonstrates defiance of the law and poor prospects of rehabilitation.  It is incumbent upon this Court to make it clear to the community that such offending will result in a substantial period of imprisonment.  The offender and others must be discouraged from committing the same of similar offences in the future. 
[48]	In partially cumulating the restored sentence of imprisonment for the drug offences, I have taken into account the provisions of s 43(6) of the Sentencing Act and the principle of totality.  In my opinion, the sentence of 10 years imprisonment with a non-parole period of 7 years is justly proportionate to the whole of the respondent’s criminal conduct.
BLOKLAND J:
[49]	For the reasons given by Southwood J, I agree the sentence is manifestly inadequate.  The particular objective factors that take this offending into the most serious range for offences of this type are the random senseless use of a lethal weapon and the catastrophic consequences for the victim and his partner.
[50]	Further, I agree with His Honour that it is not appropriate to interfere with the approach taken by the learned sentencing Judge to the question of accumulation or concurrency of the restored term given the way the case was presented to Her Honour.  In any event, Her Honour outlined valid reasons why she considered partial accumulation to be appropriate in all of the circumstances.
[51]	On re-sentencing, without the plea of guilty I would have sentenced the respondent to 10 years imprisonment for the count of cause serious harm with intent to do so.  With the plea I would have sentenced the respondent to 8 years imprisonment and would have accumulated 6 months of the fully restored term of the suspended sentence.  The total effective term would have been 8 years and 6 months.  I would have set a non-parole period of 5 years.
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