Ground two - the sentencing judge erred in finding to be present certain aggravating factors for the purposes of s 21A(2) of the Crimes (Sentencing Procedure) Act 1999.
25 It was submitted for the applicant that the Judge erred in having regard to the threatened use of force as a factor aggravating the offence of robbery committed on 23 September 2006. The threatened or actual use of force to compel the victim to part with the property, the Court was reminded, was an element in the commission of the offence.
26 When considering aggravating factors to be found in s 21A(2), the Judge said:
"There was in this particular instance a threatened use of violence and a threatened use of a weapon, although I concede of course that he did not actually have a weapon that he could have used. But there was certainly a threatened use of violence and a threatened use of a weapon."
27 It appears that the Judge did take into account the threatened use of violence as an aggravating factor and was in error in doing so. A threat of the use of violence is an element of the offence of robbery and could not be taken into account as an aggravating factor: R v Way (2002) 60 NSWLR 168 at [106]; Hamze v Regina [2006] NSWCCA 36 at [28] and double counting is prohibited: R v Wickham [2004] NSWCCA 193 at [22]-[24]. It was open to the Judge, however, to consider the nature of the threatened use of violence. As was explained in Hamze by Giles JA at [29]:
"…while the bare fact of threatened use of violence could not be taken into account, that did not preclude regard to the nature of the threatened use of violence in considering the seriousness of the offence."
28 In the present case, the applicant ordered the shop assistant to open the till stating that he had a pistol under his jumper. He held his right arm underneath his jumper. The manner in which the applicant threatened the shop assistant increased the seriousness of the offence. I might add that a threat of the use of a weapon is not an element of a s 94 offence.
29 Although the Judge erred, it seems to me, that his error would not have materially affected the sentence imposed.
Ground three - the sentences are manifestly excessive.
30 Although the ground of appeal is expressed in this way, the applicant did not contend that the sentence for the robbery in company was excessive. The complaint was confined to the sentence for the s 94 offence.
31 The applicant referred to the undiscounted starting point of 10 years imprisonment and submitted that in light of the maximum penalty of 14 years imprisonment, the starting point did not correspond with the Judge's assessment of the objective seriousness of the offence when he said that each of the offences fell "significantly short of the worst in their category" (ROS at 2).
32 It was submitted that the additional criminality involved in the offences on the Form 1 was not such that required a substantial increment to the sentence. Whilst acknowledging that the commission of the offences in breach of conditional liberty was an aggravating factor, a countervailing consideration was the applicant's mental illness. General deterrence was of less relevance. Although the sentence for the robbery in company was not excessive, the imposition of an excessive sentence for the robbery resulted in an aggregate sentence which was manifestly excessive.
33 The Crown submitted that the sentence for the s 94 offence, although stern, was within the Judge's sentencing discretion. The sentence imposed for the robbery in company was, it was argued, manifestly lenient. The total aggregate sentence, the Crown contended, was an appropriate reflection of the applicant's total criminality.
34 As the Judge was sentencing the applicant for two offences, he was obliged to fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well as questions of totality: Pearce v The Queen (1998) 194 CLR 610.
35 The offence of robbery was objectively a serious one. The threatened use of the pistol and the applicant's aggression understandably caused the shop assistant to fear being assaulted or shot. This offence was committed three days after his release to parole for an offence of robbery in company which was an aggravating factor. The offence of intimidation being one of the offences on the Form 1 was a serious offence in its own right and called for an increased sentence. The applicant had walked into the H & R Block office stating that he had a gun and had demanded money and property. His prior history of like offences entitled the Judge to give more weight to considerations of retribution, personal deterrence and the protection of the community.
36 The Judge accepted that the applicant was suffering a mental illness and found that he was "not fully appreciative of the activity that he was then engaged upon". He expressly considered what has been said by this Court in R v Hemsley [2004] NSWCCA 228 as to the four ways in which mental illness may be relevant to his sentencing task. His Honour recognised that the applicant's mental illness reduced his moral culpability for the offence and moderated the consideration to be given to general deterrence. The maximum sentence for this offence is 14 years imprisonment. In view of the Judge's findings concerning the applicant's mental illness, the indicated undiscounted starting point of 10 years imprisonment was in all the circumstances, to my mind, manifestly excessive. The undiscounted starting point should not have been more than 8 years.