FACTS
10 The facts of the offences were not in dispute and an agreed statement of facts was tendered. The facts found by the Judge for the Hurstville robbery (count 1) were as follows (ROS at 6-7):
" I will deal first of all with the offence jointly committed by Mr Baleiovalau and Mr Kinikini on 25 February 2005. At about 3.50pm on that day three men crossed the road heading towards the Qantas Staff Credit Union in Hurstville. They were all disguised, wearing scarves and caps and also gloves. A fourth man remained outside in the car. Seeing this, staff inside the credit union locked the doors, some or all of the three offenders smashed the glass window near the teller's area with a sledgehammer, two to them went inside and one remained in the foyer. That person was armed with a sawn-off .22 rifle. Some members of the public saw him and tried to take a photo. He chased them, forced them to lay on the ground in the foyer and threatened them while still holding the rifle.
There were at least seven staff members inside the bank area. They had retreated to the office area at the approach of the offenders. The three offenders went inside the bank and started smashing drawers, then the third offender went back outside and patrolled the foyer area whilst armed with a shotgun. The other two emptied the cash drawers into bags they had with them. They left quickly through the hole they had smashed in the glass with the sledgehammer. During these events the third offender threatened a staff member who had come from another part of the credit union. In all, the offenders took the sum of $40,005 in cash from the drawers. They were inside the bank for a short period only. They escaped in the black car driven by the fourth man, which was a car which had previously been stolen."
11 The Judge found that although the actual role played by the applicant and Kinikini could not be discerned, they were part of the joint criminal enterprise and were equally liable. None of the stolen money was recovered.
12 The facts found by the Judge for the Parkside robbery (count 2) were as follows (ROS at 15-16):
Three of them then walked to Parkside Automobiles… Mr Lesi was carrying a shotgun sticking out the back of his jumper and [the applicant] had changed clothes which had been observed during earlier surveillance. Mr Kinikini was waiting with the car but I accept that this was because he had an injured leg at the time. The Crown alleges that the third man who went to Parkside Automobiles was Mr [P]. Mr Lesi and [the applicant] confronted the nineteen year-old James Anastasakis who worked in the car yard with his father and brother who was aged twenty-one. His father owned the car yard. Mr Lesi pulled out the shotgun and pointed it at James and asked how many people worked there. He was told there was one in the workshop and one in another room. Mr Lesi went in search of them. [The applicant] was holding a handgun pointed at the ground when Mr Paul Anastasakis, the twenty-one year old brother, came out from the office. The two young men were forced to the ground by him. [The applicant] pointed the gun at one of them and told him not to look at him. He told them that they just wanted cars.
The owner, Mr Anastasakis senior, was brought from the nearby office and the offenders demanded keys to two cars. There were some discussions about batteries needing to be connected to the cars and in due course a silver Commodore was started and paper work was demanded and given to the offenders for cars. [The applicant] ripped out the phones and told the owner not to call the police. The offenders left with two stolen cars from the premises, one being driven by [the applicant] and the third man driving another. Mr Kinikini drove away in the car in which they had originally arrived ."
13 The Judge accepted that the stolen vehicles were to be used in connection with a planned armed robbery of the Qantas Credit Union at Hurstville later that day which was foiled as the police who had telephone intercepts and surveillance on the offenders moved in and prevented the planned robbery.
14 Count 3 was the conspiracy to commit the armed robbery of the Qantas Staff Credit Union that was foiled by the police. The degree of planning included arranging for the obtaining of a sledgehammer and the planning to steal a car to use in the armed robbery.
15 The facts of the Rosehill robbery (Form 1 count 2 Kinikini) were that on 7 April 2005, Kinikini, Lesi and another man entered the Rosehill Hotel at about 1.40pm. Kinikini was armed with a silver pistol and one of his co-offenders with a shortened shotgun. All three were disguised. During the robbery, the hotel manager was struck a heavy blow to his lower back, knocking him to the floor. Kinikini pulled him to his feet, forced him back to the change booth where he put money into a bag. The hotel licensee was grabbed by the shirt by Lesi and led through the hotel. A hotel patron was confronted by the third co-offender who was holding the shortened shotgun. Other hotel patrons who had been playing poker machines were directed by Kinikini, whilst holding the silver pistol, to get on the floor. Lesi took the hotel licensee to the office where the safe was opened. When the alarms were activated, the offenders fled from the hotel. In all, $3,761 was stolen in this robbery. Both the licensee and manager were injured in the robbery.
16 The Judge described the offence as being (ROS at 13):
"…probably the most serious of the offences that are before me one way or the other today. "
Subjective circumstances
17 The applicant was born in Fiji on 13 February 1980. He was 25 years old at the time of the offending and 27 years old on sentence. The applicant was an only child who came to Australia in 1993 and lived with members of his family in this country. The Judge said (ROS at 25):
" He left high school about half-way through year ten and had had trouble with truancy. He has had a very limited employment history and …has only ever worked for about four weeks. He seems to have survived by committing offences in the past and with help from his extended family. He was a user I accept of heroin fairly significantly from the age of eighteen and he also used cocaine and ecstasy and other drugs."
18 The Judge observed that there was no evidence that he committed the offences to fund a drug addiction or that he was in fact addicted to drugs. Her Honour accepted, however, that he continued or recommenced using drugs when released to parole and that the offences were committed with a view to obtaining funds some of which would have been spent on drugs. Her Honour assessed "his prospects of rehabilitation [to be] only fair given his history."
19 The Judge remarked that the applicant had a serious criminal record which commenced with a goods in company offence in January 1997 "and then in 1997 aggravated armed robbery and robbery in company offences which gave rise to the sentences for which he was on parole at the time he committed the matter before me." Her Honour was referring to the sentences imposed upon the applicant in the District Court at Sydney on 15 December 2000 by Sorby DCJ when he was sentenced for three counts of aggravated armed robbery and two counts of aggravated robbery. Further counts of aggravated robbery, robbery in company and stealing a motor vehicle were taken into account on sentence on a Form 1. A total effective sentence of 8 years imprisonment was imposed commencing on 6 October 1999 and expiring on 5 October 2007 with a non-parole period of 5 years expiring on 5 October 2004.
20 The applicant had been admitted to parole on 5 October 2004. The Judge found as a factor of aggravation the commission by the applicant of the Hurstville robbery whilst on parole. Her Honour noted that he had been released to parole "just four months before he committed this offence" and the sentences for which he had been sentenced in 2000 involved "similar offences".
21 The applicant was arrested on 12 April 2005 when police foiled the plan to carry out a second Hurstville robbery. His parole was revoked on 28 April 2005 to date from 12 April 2005. He was ordered to serve the balance of parole being 2 years 5 months and 24 days. The Judge noted that this sentence did not expire until 9 (sic) October 2007. Her Honour said (ROS at 33):
"There should, however, be some partial accumulation for the sentences I will impose and that balance of parole. In fact he has now served almost the whole of the head sentence imposed on him of eight years for those earlier offences. Taking that into account and the considerations of totality I propose to commence his sentence from twelve months after the date of his arrest, that is from 12 April 2006."
22 Save for the argument advanced by the applicant for Ground 2, there is no challenge to the commencement date of the applicant's sentence for the Hurstville robbery. It was conceded that her Honour's approach was consistent with Callaghan v R (2006) 160 A Crim R 145.
23 Kinikini was born on 14 May 1982. He was 22 years old at the time of the offending and 25 years old when sentenced. He had migrated to Australia from Fiji with his family when he was 8 years old. He completed his Higher School Certificate and commenced tertiary studies hoping to be a physical education teacher but was not able to continue. He worked for a while as a labourer and security guard. The Judge accepted that he had been a significant user of illegal drugs probably since 2002. The Judge observed that there was no evidence that he was a hopeless addict. Her Honour noted that at the time Kinikini committed the offences and was relapsing into drug use he was also acquiring qualifications as a fitness instructor and was considered to be a talented rugby player. Her Honour assessed his prospects of rehabilitation to be reasonable.
24 The Judge said that Kinikini had "a serious criminal record including convictions for similar matters". Kinikini's prior criminal history relevantly reveals that in the District Court at Sydney on 9 April 2003 he was sentenced for a count of obtaining money by deception to a fixed term of 6 months imprisonment, for a count of robbery to 2 years 3 months imprisonment commencing on 26 August 2002 and expiring on 25 October 2004 with a 12-month non-parole period expiring on 25 August 2003 (an offence of obtaining money by deception being taken into account on a Form 1) and for one count of armed robbery to imprisonment for 3 years 9 months expiring on 8 January 2007 with a non-parole period of 16 months expiring on 8 August 2004.
25 The applicant had been released to parole on 8 August 2004. The Judge observed that Kinikini had been released to parole for little more than 6 months when he committed the Hurstville robbery which was an aggravating factor.
26 Kinikini was arrested on 12 April 2005 and his parole was revoked from that date. No actual period was set for the balance of his parole as by the time it was considered by the Parole Board the sentence had expired. As the Judge explained (ROS at 33):
" He had nonetheless been in custody for these matters bail refused and after having had his parole revoked since 12 April 2005. At that stage he had served only sixteen months of a three year and nine months sentence with eight months out on parole and would have faced one year and nine months balance of parole, albeit that that formal sentence was never imposed. In those circumstances and taking into account issues of totality I propose to commence the sentences for him nine months after he came into custody, so that effectively one year of his earlier sentence will be served concurrently with the sentences I will impose. The commencement date for him will then be 12 January 2006."
27 During the remarks on sentence, the Judge said (ROS at 31):
" So, when looking at the subjective circumstances of all of the three offenders they are a little different, there is in reality, it seems to me, no substantial distinction in sentencing terms in the subjective circumstances of each of the prisoners. Neither is there any distinction argued nor apparent in relation to the respective roles each of them played in the offences which are joint offences. Further, their criminal records are very similar and they were all on parole at the time…"