Re R v Allan Christopher Ward [1985] FCA 469 (13 December 1985)

FEDERAL COURT OF AUSTRALIA

Re: THE QUEEN
And: ALLAN CHRISTOPHER WARD
No. ACTG46 of 1985
Criminal Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Sheppard J.
Neaves J.
Miles J.

CATCHWORDS

Criminal law - appeal against inadequacy of sentence - respondent convicted of kidnapping, two charges of using offensive weapons with intent to prevent lawful apprehension and six charges of wilfully and unlawfully damaging Commonwealth property - overall period of four years' imprisonment considered too low - period increased to eight years - non-parole period of one year increased to three years.

Crimes Act 1900 (N.S.W.) in its application to the Australian Capital Territory, ss. 33B and 90A

Crimes Act 1914, s. 29

HEARING

CANBERRA
13:12:1985

ORDER

The appeal be allowed.

The sentences imposed and the orders made by the Supreme Court of the Australian Capital Territory on 1 July 1985, except so far as the same are hereinafter confirmed, be set aside.

In respect of each of the two charges under s. 33B of the Crimes Act 1900 (N.S.W.) in its application to the Australian Capital Territory, the respondent be sentenced to periods of imprisonment of four years.

The sentence of four years' imprisonment imposed upon the respondent by the Supreme Court of the Australian Capital Territory in respect of a charge under s. 90A of the Crimes Act 1900 (N.S.W.) in its application to the Australian Capital Territory be confirmed.

The sentences of twelve months' imprisonment imposed upon the respondent by the Supreme Court of the Australian Capital Territory in respect of each of six charges under s. 29 of the Crimes Act 1914 (Cth) be confirmed.

The sentences imposed upon the respondent in respect of the charges under s. 33B of the Crimes Act 1900 (N.S.W.) in its application to the Australian Capital Territory and the charges under s. 29 of the Crimes Act 1914 (Cth) be served concurrently and commence on 1 July 1985.

The sentence imposed upon the respondent in respect of the charge under s. 90A of the Crimes Act 1900 (N.S.W.) in its application to the Australian Capital Territory commence at the expiration of the terms of the sentences imposed upon the respondent in respect of the charges under s. 33B of the Crimes Act 1900 (N.S.W.) in its application to the Territory.

The period of three years from 1 July 1985 be fixed as the period during which the respondent is not to be eligible to be released on parole.

There be liberty to apply.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

This is an appeal by the Crown against the inadequacy of sentences imposed by the Supreme Court of the Australian Capital Territory (Gallop J.) in respect of a number of offences committed by the respondent on 24 and 25 January 1985 at Civic in the Australian Capital Territory. The respondent was charged with one charge of kidnapping one Graham Thompson contrary to s. 90A of the Crimes Act 1900 (N.S.W.) in its application to the Australian Capital Territory ("the Crimes Act (N.S.W.)"), two charges of using an offensive weapon, namely, a self-loading automatic rifle, with intent to prevent his lawful apprehension contrary to s. 33B of the Crimes Act (N.S.W.) and six charges of wilfully and unlawfully damaging certain property belonging to the Commonwealth contrary to s. 29 of the Crimes Act 1914. The Commonwealth property damaged was in each case a police motor vehicle.

After committal pursuant to s. 90A of the Court of Petty Sessions Ordinance 1930, the respondent pleaded guilty to each charge. On the kidnapping charge the respondent was sentenced to four years' imprisonment. On the offensive weapons charges he was sentenced to twelve months' imprisonment on each charge. On each of the six charges of wilful and unlawful damage, he was sentenced also to twelve months' imprisonment. His Honour directed that the sentences be served concurrently. He fixed a period of twelve months from 1 July 1985 during which the respondent would not be eligible for parole.

Section 90A of the Crimes Act (N.S.W.) provides for a maximum penalty of twenty years' imprisonment except where it is shown that the victim of the kidnappingwas liberated without substantial injury. In that event the maximum period of imprisonment is fourteen years. In the present case there was no question but that the maximum period was twenty years. The penalty provided for in s. 33B of the Crimes Act (N.S.W.) is ten years and that for an offence under s. 29 of the Crimes Act is two years.

The facts were not in issue. At about 5.30 p.m. on 24 January 1985 Mr. Thompson was attending to a customer in his barber's shop on the first floor of 3 East Row, Canberra City. In addition to conducting a barber's shop on the premises, Mr. Thompson sold sporting equipment including firearms. The respondent approached the counter and enquired if Mr. Thompson had any automatic rifles. Mr. Thompson told him that he had a couple and the respondent left saying that he would return. He came back about five minutes later just as the customer, who had had his hair cut, was about to leave. The respondent asked Mr. Thompson if he could look at a Unique brand .22 calibre semi-automatic rifle with a five shot magazine clip attached. Mr. Thompson handed the rifle to the respondent who asked Mr. Thompson to demonstrate how it operated. He did so and placed the rifle on the counter.

Mr. Thompson turned to say goodbye to the customer as he was walking out the door and the respondent picked up the rifle and cocked it. Mr. Thompson asked the respondent if he had finished with the rifle. The respondent said that it was loaded. With his finger on the trigger he pointed the weapon at Mr. Thompson's chest. Mr. Thompson said that he believed that the respondent had in fact loaded the rifle and was fearful that he intended to shoot him.

At that time another customer came up the stairway leading to the shop. He was standing at the entrance. The respondent asked Mr. Thompson for the keys and Mr. Thompson gave them to him. He told the new customer that the shop was closed. He locked the door and the customer left.

The respondent pointed the rifle at Mr. Thompson and ordered him to stand in the middle of the shop with his hands in the air. Mr. Thompson complied. The respondent asked him for ammunition. Its whereabouts was pointed out by Mr. Thompson and the respondent picked up two cartons of Expert brand .22 calibre standard velocity ammunition and proceeded to load the magazine. According to Mr. Thompson, he appeared quite agitated and nervous and said, "I was going to do this tomorrow morning but I changed my mind". The respondent asked for a silencer which Mr. Thompson said he did not have. He then demanded a more high powered rifle such as a .308 calibre or a .30 calibre. Mr. Thompson did have these in stock but had the presence of mind not to tell the respondent that there was in fact a more powerful weapon on the premises.

By this time the Police had been alerted, apparently by the customer who had been turned away, and two police officers arrived at the scene. They saw that the respondent was inside the shop with a rifle. More Police were then called. Mr. Thompson said that the respondent was still pointing the rifle in his direction when he removed a second rifle, a Sportco .22 calibre rifle, from the racks and threatened to shoot Mr. Thompson if he moved. The respondent placed the first rifle on the counter, pointing it in Mr. Thompson's direction. He loaded the Sportco rifle. He then picked up both rifles, one in each hand with fingers on the triggers and pointed them at Mr. Thompson. He asked for shotguns and ammunition, but Mr. Thompson said that they were out being repaired and he did not have any ammunition for shotguns anyway. The respondent ordered Mr. Thompson to sit on a chair in the middle of the room and threatened to shoot him if he moved. Mr. Thompson did as he was told.

About this time the respondent looked out the front window and noticed police vehicles in East Row. He telephoned the Police at the Civic Police Station, at the same time continuing to point one of the rifles at Mr. Thompson. The respondent spoke on the telephone for some minutes and stated that he had the owner of the shop as a hostage and demanded to see his former girl friend, Karen Hamilton; otherwise he would start shooting. He said, "I am not joking". He then fired a shot into the ceiling of the shop. He continued, "If you do not get that guy away from that back window, I'll waste him". He was referring to one of two police officers who had come to the rear of the premises and taken up a position there.

Some minutes later, while Mr. Thompson was still seated about 1.5 metres from the respondent, the respondent fired three shots past Mr. Thompson towards the rear window of the shop. The two police officers previously referred to left, fortunately without injury. Another three shots were fired in the same direction.

According to Mr. Thompson, the respondent then became very agitated and broke a window at the front of the shop. Over the course of the next nine to ten hours, using one of the rifles which was fitted with a telescopic lens, he fired a hail of shots into East Row towards police vehicles parked in the Bailey Arcade area and in the nearby bus interchange. He also fired other shots into the ceiling of the shop premises. It was subsequently established that in excess of 100 rounds had been fired and the respondent admitted to having fired approximately 137 rounds throughout the incident. The count was based on the number of rounds that had been taken from boxes of ammunition in the premises. As a result of the shots which were fired, six police vehicles sustained damage to windows, body panels and tyres. Those are the vehicles which are the subject of the wilful damage charges pursuant to s. 29 of the Crimes Act. The total damage to the vehicles amounted to $3,219.

During the period the respondent made a number of threats to shoot the Police if they attempted to enter the shop. From about 6.40 p.m. until 8.30 p.m., Sergeant Holst, who was the principal police negotiator at the scene, had numerous telephone conversations with the respondent. Karen Hamilton also spoke with him on the telephone. Mr. Thompson had lengthy conversations with the respondent concerning his problems with Karen Hamilton. Mr. Thompson said that he attempted to convince the respondent to surrender to the Police. Ultimately, at about 8.40 p.m., the respondent agreed to release Mr. Thompson. He emerged physically unharmed, but in a very distressed state. Mr. Thompson said that during the time he was held in his premises he was in grave fear of being shot. He was examined that evening by a Dr. Eaton, who found that apart from abnormally high blood pressure, Mr. Thompson was in good condition. However, he did advise Mr. Thompson to consult his own general practitioner, which Mr. Thompson did. We shall refer to Mr. Thompson's medical condition a little later on.

After Mr. Thompson's release, the police continued their surveillance of the shop into the early hours of Friday, 25 January 1985. Sergeant Holst spoke to the respondent on the telephone from time to time. He also spoke to him through a loud hailer from the street.

Shortly before 4 a.m. on 25 January, the respondent demanded to see Karen Hamilton. The police officers agreed, provided he put down his rifle and came out of the shop. He refused to do so. However, a short time afterwards, after a further conversation with Sergeant Holst, he agreed to surrender. He emerged unarmed at the bottom of the staircase on to the footpath. He was taken into custody.

As a result of his experiences Mr. Thompson suffered a serious psychiatric illness. The detail of this need not be gone into. There is no issue about it. His psychiatrist says that there is hope that he will make a complete recovery in due course. That had not occurred some five months after the incident when the doctor gave evidence.

The shooting occurred at a time of the day when it might have been expected that substantial numbers of people would be about in the nearby streets. Moreover, the respondent, by his conduct, threatened the bus interchange from where buses are despatched to various parts of the suburbs in Canberra. As his Honour said:-

"To hold Mr. Thompson captive in his own store for
several hours before releasing him and to
discharge on his own count 137 rounds of
ammunition into the street and inside the
premises, is atrocious terrorism of a high order,
and the fact that that was done in the very heart
of Civic here in Canberra gives rise to aspects
of very extreme danger to the police and
certainly extreme danger to Mr. Thompson".

And we would add, to members of the public also.

In evidence are an antecedents report prepared by Detective Sergeant Heathcote, a pre-sentence report prepared by Mr. Darryl Perkins, the Acting Assistant Director, Community Based Corrections and Ms. Jan Mundy, a probation and parole officer, and two reports of Dr. William Knox, a consulting psychiatrist, one dated 23 May 1985 and the other 28 June 1985. Ms. Mundy and the accused gave oral evidence. Evidence was also received from a Mr. G.A. Collier who is the Chief Custodial Officer at the Belconnen Remand Centre where the respondent was confined.

All this evidence discloses a very sad state of affairs. It was this evidence that made his Honour's task a most difficult one. We have the same difficulty as faced his Honour.

The respondent was born on 12 March 1961 and was thus almost 24 years of age at the time of the commission of the offences. At the ages of 15 and 16 he was before the Court as an uncontrollable child. At the age of 15 he was dealt with for the possession of cannabis. In 1978, when he was 17 years of age, he was charged with taking and using a motor vehicle and with breaking, entering and stealing. He was released on probation upon entering into a recognizance to be of good behaviour for two years. Another condition was that he accept treatment directed by a Dr. Moloney and that he consult a doctor as requested. Seven months later he was again before the Court on a charge of taking and using a motor vehicle. He was released on probation, again on certain conditions. No action was taken in respect of the breach of the previous recognizance. On 30 August 1984 he was found guilty of common assault and dealt with under s. 556B of the Crimes Act (N.S.W.). He was again released on a recognizance, this time on condition that he be of good behavour for a period of twelve months. He was bound by that condition at the time that the offences in question were committed.

The respondent came to Canberra in 1975 with his mother. His father had committed suicide in 1963 when the respondent was two years of age. He continued education commenced in Sydney at the Woden Valley High School and left at the end of his fourth year. Shortly after his move to Canberra the respondent's behaviour tended towards defiance of authority. His record earlier referred to then commenced. In 1977 he left home and resided at the Y.M.C.A Hostel until August 1979. After leaving the Hostel he lived in several "group houses" until 1981. In 1982 he married his wife with whom he had been living since 1981. In October 1983 he commenced his relationship with Karen Hamilton. At that time he began drinking heavily and violently assaulted his then wife on several occasions. She left him in November 1983. The respondent continued his relationship with Miss Hamilton. In February 1984 the respondent followed his wife to Queensland to attempt a reconciliation. This failed and his wife returned to Canberra. The respondent remained in Queensland until June 1984. It was his wife whom he assaulted on 30 August 1984. The respondent claimed this occurred after he had attempted a further reconciliation.

However, he had continued his relationship with Miss Hamilton. She gave birth to their son in October 1984. The baby died a few hours after birth. This caused great distress to both Miss Hamilton and himself. She left him a few weeks prior to January when the present offences were committed. She resided with her family. He threatened to commit suicide.

The respondent has been employed in many short term positions which have involved him in doing labouring work, cleaning and the work of a storeman. He has received unemployment benefits on numerous occasions.

The respondent's health has been poor since he was a young child. He has defective vision and is required to wear thick lensed glasses. When he was eleven he had two serious attacks of meningitis and also became an asthmatic. In 1976 he had a kidney removed following a lengthy period of renal problems. In their evaluation of the respondent Mr. Perkins and Ms. Mundy say:-

"Mr. Ward's early life has been associated with
family trauma, financial insecurity and ill
health. He presents as a man whose emotional
deprivation has manifested itself very strongly
in him as an adult.

Mr. Ward impresses as an immature man who is
strongly egocentric and insecure. He describes
himself as "a highly sensitive person who is
possessive and jealous" of Ms. Hamilton. He
appears to have little realisation of how
anti-social his past behaviour has been and feels
that he is justified in endangering others in
order to achieve a reconciliation with Ms.
Hamilton".

It is not practicable to set out the whole of Dr. Knox's reports but it

should be understood that we have given the entirety of them careful consideration. However, we do refer to some of what Dr. Knox has said. Under the heading "Personality" he said:-

"There is ample evidence pointing towards very
significant personality disturbance in Mr. Allan
Ward. Your client is not secure in interpersonal
relationships and tends to keep to himself. He
has very poor control over his emotions and at
times behaves irrationally in the face of
overwhelming emotional needs.

Your client is a very mistrustful, insecure
person, and usually attempts to adopt a dominant
role in his relationships with others so as to
guarantee their affection. Your client is
frequently jealous when threatened with loss of
individuals whom he cares for.

Your client attempts to be a self-sufficient
individual apart from his need for a close
one-to-one relationship with a woman. I believe
your client is frequently anxious and tense.

Your client reacts badly to attempts by
authorities to exert control over him. This has
been the case with his mother and more recently
with police officers and counsellors. Your
client very deeply resents any attempts to
influence his behaviour".

Later Dr. Knox said:-

"Your client is a most insecure individual and
feels very threatened in the face of discipline
and authority from others. Your client has
behaved rebelliously in the past in the face of
authority.

While there are some sociopathic traits in your
client's personality, fundamentally I believe
your client is a very immature, insecure
individual who fears that he will not be able to
obtain and give love to close others. This
disturbance in your client's interpersonal
relationships flows from past inadequacies in his
upbringing, amongst which can be included the
early death of his father.

I believe your client behaved as he did to
guarantee his security needs. Due to his
immaturity and poor emotional control however
your client behaved most inappropriately in
attempting to obtain love and affection for
himself.

Given your client's poor trust and negative
attitude towards past helpers, I do not believe
your client will benefit usefully from
psychotherapy. Nonetheless some attempt should
be made by a skilled counsellor to help your
client discipline his behaviour in the future,
and gain some insight into his emotional
difficulties.

I believe your client is likely to continue with
considerable personality disturbance for several
years. Your client would benefit from a stable
interpersonal relationship, but due to disturbed
behaviour on his part he is likely to disrupt
such a relationship to his disadvantage. Your
client may also be inclined to choose unstable
partners with emotional problems of their own.

It is not possible, given this man's personality
disturbance, to offer any guarantee that he would
not behave inappropriately again in the future if
one again faced with extreme insecurity in
respect of emotional relationships. Your client
is not capable of adult, rational control over
himself at times of high emotion. This is likely
to continue to be the case for several further
years".

In his second report a little over a month later Dr. Knox expressed more

optimistic views. Amongst other things he said:-

"I believe your client still has deep traits of
dependency in his make-up which are likely to
cause trouble in the future. Nonetheless a more
mature thread in this individual's personality
has developed, and he has at least opened the
door to some useful future counselling. I
believe this should be followed up in Mr. Ward's
case.

I believe your client is still at some future
risk of inappropriate behaviour in circumstances
of emotional stress for him. Nonetheless he
would hopefully be able to engage in counselling
to undertake what emotional growth is possible in
his personality, so as to avoid any future
recurrence of the behaviour of late 1984 and
early 1985".

This being a challenge to an exercise of his Honour's discretion, we should

pay great attention to what he has said and, particularly, to his impressions of the evidence which was led before him. Amongst other things he said:-

"I think there is much in Mr. Salmon's submission
on behalf of the accused that he did not go into
the store with the intention of holding the
proprietor hostage for several hours and
discharging the gun as he did out into the
street, causing such extensive damage to police
property and other property. But the situation
developed and being consumed in his own selfish
emotions at the time, the accused has committed
very serious offences indeed."

His Honour referred extensively to Dr. Knox's reports. having done so, he

said:-

"I must say that Dr. Knox has expressed eloquently
the sort of impression that I had, having seen
the accused give evidence and heard him
articulate his present attitude to the offences
and to his own self. I was fortified in my
initial impression when Dr. Knox's reports were
put in evidence, tending to confirm the
impression that I had formed myself.

I observed encouraging signs of maturity and
insights into his own failings and
irresponsibilities. And I am corroborated in
that by Dr. Knox's report, he being of course,
far more qualified that I am to make such
observations. I take account of the fact that
the accused has spent five months and one week in
custody. That is quite a long time, but I think
it is necessary to impose a further term of
imprisonment to reflect the community's attitude
to this sort of behaviour".

After announcing the sentences which he proposed to impose his Honour

said:-

"I have given earnest consideration to the time
when I can order that you become eligible for
parole. You have heard what I have said about
the encouraging signs about your own ability to
respect the property of others and not be
consumed with your own self-interest.

I think you are sincere about that, and I propose
to give you an opportunity to demonstrate it. I
specify a period of 12 months from today, during
which you will not be eligible for parole. That
means, as I am sure your counsel and solicitor
will advise you, that if you are industrious and
of good behaviour, in 12 months time you will be
eligible to be released. But there will still be
an unexpired portion of your sentences to be
served, and you will go back in and serve that
unexpired portion if you breach that parole which
you will have earned in 12 months time.

So, it is up to you. There is a very substantial
inducement being offered to you to do your 12
months imprisonment, and then get out into the
world and show that you can be a responsible
citizen. If you fail, if you forget that you are
on a bond in effect, that you are on parole, like
you forgot before, then you go back and you do
the other three years. Do you follow all that?"

The respondent said that he did.

There is no challenge to his Honour's decision other than that it itself indicates a manifestly inadequate assessment of the seriousness of the crimes with which the respondent was charged. It is appropriate at this point to refer to what was said in Channon v. The Queen (1978) 20 A.L.R. 1 by Brennan J. when a judge of this Court. His Honour said (pp. 5-6):-

"The necessary and ultimate justification for
criminal sanctions is the protection of society
from conduct which the law proscribes.
Punishment is the means by which society marks
its disapproval of criminal conduct, by which
warning is given of the consequences of crime and
by which reform of an offender can sometimes be
assisted. Criminal sanctions are purposive, and
they are not inflicted judicially except for the
purpose of protecting society; nor to an extent
beyond what is necessary to achieve that purpose.
In R. v. Cuthbert (1967) 86 W.N. (Pt. 1) (N.S.W.)
272 at 274, Herron C.J., in a judgment in which
Sugerman and Walsh JJ.A. agreed, said: "The
function of the criminal law and the purposes of
punishment cannot be found in any single
explanation, for it depends both upon the nature
and type of offence and the offender. But all
purposes may be reduced under the single heading
of the protection of society, the protection of
the community from crime. The sentence should be
such as, having regard to all the proved
circumstances, seems at the same time to accord
with the general moral sense of the community and
to be likely to be a sufficient deterrent both to
the prisoner and others; per Jordan C.J., R. v.
Geddes (1936) 36 S.R. (N.S.W.) 554; 53 W.N. 157.
Courts have not infrequently attempted further
analysis of the several aspects of punishment (R.
v. Goodrich (1952) 70 W.N. (N.S.W.) 42, where
retribution, deterrence and reformation are said
to be its threefold purposes). In reality they
are but the means employed by the courts for the
attainment of the single purpose of the
protection of society.'

Retribution, deterrence and reformation are
related, however, to the specific conduct in
respect of which the offender is sentenced.
Deterrence (whether of the offender or others)
from committing other kinds of crime, reformation
in respect of other failures, or retribution for
other kinds of social misconduct, are not
purposes to which the judicial discretion in
sentencing is directed. But a sentence which is
imposed with the object of deterring the offender
from committing offences of the same kind again,
and with the object of rehabilitating him by
reducing or eliminating the factors which
contributed to the conduct for which he is
sentenced serves the appropriate purpose,
provided the sentence is apt to secure those
objects. Where the object of the sentence is to
reduce or eliminate a psychiatric abnormality
which has contributed to the commission of the
offence mere imprisonment would rarely achieve
the desired result. Where psychiatric treatment
is available to prisoners when the judge directs
that it be available, and where that treatment
offers a reasonable prospect of reducing or
eliminating the relevant abnormality, a sentence
of imprisonment coupled with a direction that
treatment be available is a sentence which may
properly be imposed. That is to say, the
sentence is proper in the objective which it
seeks to secure, and proper in the means selected
to secure that objective. It would be a curious
sentencing policy which sought the rehabilitation
of offenders by mere incarceration, but renounced
rehabilitation as an objective if it could be
assisted by treatment during incarceration. In
either case, the protection of society and
(subject to the conditions to which I refer
below) the interests of the offender, are
advanced".

The emphasis is his Honour's.

We are confronted with a difficult exercise of judgment. It is not a question of what sentence we ourselves would have imposed if we had had the task which faced his Honour. It is a case of evaluating whether his Honour's sentence is so low as to warrant this Court's interference. Having reflected upon the matter we have come to the conclusion that this is a case which warrants our intervention. We think, however the matter is looked at, that a term of imprisonment of not less than eight years is required to mark the serious view which must be taken of the criminal conduct in question bearing in mind the numbers of offences committed and the maximum sentences which are provided for them.

Looked at individually we think that the penalties imposed in respect of the kidnapping and wilful damage charges ought not to be disturbed. The kidnapping was a serious offence which has had grave consequences for Mr. Thompson. On the other hand he was held for no more than three hours, he was physically unharmed and he was voluntarily released by the respondent. His Honour found, and we see no reason to disturb his finding, that the respondent did not originally intend to hold Mr. Thompson as hostage. That was not part of his plan. Further factors to be weighed in the balance are the respondent's plea of guilty, his apparent genuine contrition for his actions, his background and his psychological problems. Notwithstanding that the maximum period of imprisonment for the kidnapping charge was twenty years, we are not persuaded that a sentence of four years' imprisonment was, in the circumstances, manifestly inadequate. In this regard we have taken into account, as did his Honour, that the respondent had spent five months and one week in custody at the time he was sentenced.

There was no challenge to the periods of imprisonment imposed in respect of the wilful damage charges and we need say no more of them.

Where we have the misfortune to differ from his Honour is in the penalties he imposed in relation to the offensive weapons charges. We are satisfied that a term of imprisonment of one year in each case was manifestly inadequate. We have recounted the facts of the matter. They speak for themselves. Over a period of some ten hours more than 130 bullets were fired into public streets in the heart of Canberra. A more dangerous course of conduct could scarcely be imagined. We therefore propose to allow the appeal in relation to the offensive weapons charges and to substitute for the sentences imposed by his Honour periods of imprisonment of four years in each case.

The next question is whether the sentences should all be served concurrently. In a sense we are concerned with one overall incident which began shortly after 5.00 p.m. on 24 January 1985 and concluded at about 4.00 a.m. the following day. But the kidnapping was over after only three of the hours in question. Furthermore, it seems unlikely that the conduct of the respondent would have been very different if Mr. Thompson had not been held. He would still have conducted his siege and otherwise behaved as he did.

In those circumstances we think that we should treat the kidnapping charge separately from the offensive weapons and wilful damage charges. We propose, therefore, to direct that the sentence for the kidnapping will commence at the expiration of the terms of imprisonment imposed in respect of the offensive weapons charges. The periods of imprisonment imposed in respect of them will be served concurrently. The periods of imprisonment imposed in respect of the wilful damage charges will also be served concurrently and will themselves be served concurrently with those imposed in respect of the offensive weapons charges.

The remaining, and even more difficult question, is the length of the parole period which should now be fixed. His Honour fixed a period of one year. He did so for the reason that he thought, particularly because of his own assessment of the respondent, confirmed as it was by much of what Dr. Knox had said in his second report, that the respondent was unlikely to commit similar conduct again and should be released at an early stage. Undoubtedly his Honour was moved to act as he did because of the very great sympathy he must have had for the respondent bearing in mind his earlier life and the difficulties which he had encountered.

The decision to increase the overall period of imprisonment to which the respondent is sentenced to eight years, makes it very difficult, if not impossible, for us to follow his Honour's course in relation to the non-parole period. But we should nevertheless give effect to the sentiment which lay behind what his Honour did. In the circumstances we propose to substitute for the non-parole period fixed by his Honour a period substantially less than we would, but for his Honour's findings, have thought appropriate.

In reaching our conclusion, we have, however, felt bound to take into account some countervailing matters. Notwithstanding that the second report of Dr. Knox was more optimistic than the first, it is clear that he has misgivings about the likely behaviour of the respondent in the future. He speaks, for instance, of the respondent's being still at some future risk of inappropriate behaviour in circumstances of emotional stress. The case does not appear to be one where we would be justified in directing, assuming we had the power to do so, that the respondent receive psychiatric treatment whilst he is in prison. Dr. Knox's opinion seems to be that this is unlikely to be of great benefit to him. We think, however, that we should indicate to the appropriate authority that the respondent should, from time to time, have psychiatric examination and, if it appears that treatment or counselling may be of help to him, he should have it.

Having given the matter due consideration, we have reached the conclusion that the non-parole period fixed by his Honour should be increased to three years.

In summary then, we confirm the sentences imposed by his Honour in respect of the kidnapping and wilful damage charges. We allow the appeal in relation to the offensive weapons charges and substitute for the sentences imposed by his Honour, sentences of imprisonment of four years in each case. All sentences are to be served concurrently except that imposed for kidnapping which will commence at the expiration of the period of imprisonment imposed in relation to the offensive weapons charges. We substitute a non-parole period of three years for that fixed by his Honour.