could only be understood to mean that he did not wish to hear from Mr Hamill SC unless he disagreed with the Crown submission. This was a clear indication by the Judge of his acceptance of the length of the non-parole period conceded by the Crown. In the course of the ensuing argument by Mr Hamill SC for a shorter non-parole period, there was no indication by the Judge foreshadowing the possibility that he might impose a non-parole longer than a further 12 months.
32 In Parker v DPP (1992) 28 NSWLR 282 Kirby P said (at 296):
"It used to be said that "silence" in a judge was "a counsel of perfection": see The Queen v Watson Ex parte Armstrong (1976) 136 CLR 248 at 294. However, at least in the case of a trial judge sitting without a jury that view has now been disapproved by the High Court of Australia: see Vakauta v Kelly (1989) 167 CLR 568 at 571. Respectfully, I strongly endorse the view there expressed. Fair procedure requires, at least for important decisions and those critical to the determination of a case, that considerations of importance to the judicial officer's conclusions should be drawn to the notice of the parties affected or their representatives so that a fair opportunity is presented for contrary argument to persuade the judicial decision-maker to a different view."
33 In the present case, it was open to the Judge to indicate that either his views were tentative or that he neither accepted nor rejected the Crown concession. Such an indication would have afforded counsel the opportunity to dissuade the Judge from imposing a lengthier sentence. With respect to his Honour, his inadvertent failure to do so denied the applicant procedural fairness.
34 Mr Hamill SC identified in this Court the submissions which might otherwise have been made before the Judge and provided a list of authorities.
35 In his remarks on sentence, the Judge did not refer either to the Crown's concession or to the applicant's submissions as to the non-parole period. The possibility that he failed to consider the submissions or simply overlooked them when he came to impose sentence arises from his Honour's failure to mention them. They were important submissions which the Judge was obliged to carefully consider. A reference, however brief, to the submissions in the sentencing remarks would have indicated that his Honour had taken them into account.
36 The fourth ground of appeal is that the sentence imposed is manifestly excessive in the particular circumstances of the case. The applicant in written submissions contends that if the Judge applied a total discount of 60-65 per cent to the sentence the undiscounted starting point must have been a total effective sentence of 15 years (based on a 60 per cent discount) and a total sentence for the s 97(2) offence of 12-14 years. The applicant contends these 'starting points' are manifestly excessive in the circumstances and refers to the applicant's compelling case of rehabilitation.
37 The Crown submits that the applicant's contentions assume that the Judge applied the 'aggregate approach' to the discounts rather than the 'successive approach'. Applying the 'successive approach', the total discount of 52 per cent would result in a starting point of slightly over ten years for the s 97(2) offence and in respect of the s 97(1) offences a term in excess of ten years. The Crown submits that if the Judge began with excessive starting points, they are founded upon a number of particularly generous approaches by him considerably favouring the applicant. In the final step, the Crown contends that the Judge got it right being conscious of the need to ensure that the sentence for each offence and the overall sentence, including the non-parole period, were not "unreasonably disproportionate to the nature and circumstances of the offence".
38 The Judge determined the applicant was to receive the "full discount" for his plea "under Thompson (sic) for the pleas (sic) utilitarian benefit." (ROS at p 7).
39 His Honour was referring to the utilitarian value of the plea of guilty attracting a discount at the top of the range of 10-25 per cent: R v Thomson; R v Houlton (2000) 49 NSWLR 383. The Judge further determined that the applicant's assistance to the authorities entitled him to a 40 per cent discount on his sentence.
40 The Judge did not specify a notional starting point for the undiscounted sentences nor did he state whether the separate discounts were calculated on a successive or aggregate basis. With respect to his Honour he should have done so.
41 This Court continues to encourage sentencing Judges to make the process of giving credit for pleas of guilty and assistance to authorities transparent: R v Thomson; R v Houlton (supra) at [162], R v Lynn [2004] NSWCCA 222 at [14], R v Sutton [2004] NSWCCA [at 16] and [17], R v Waqa (No 2) [2005] NSWCCA 33. As was said by Dunford J in Waqa (supra) at [12] and [13]:
"12 In the light of these authorities, I am not convinced that the only manner in which a number of separate discounts may properly be calculated is on a successive and not an aggregate basis. What is important is that the Judge makes it clear which method he is adopting.
13 The important consideration is to make the process of giving credit for pleas of guilty, assistance to the authorities etc, transparent: R v Thomson (2000) 49 NSWLR 383 at [162]. This is best achieved, in my opinion, by the Judge specifying a notional starting point before specifying the discount or discounts allowed, otherwise the offender may get the impression that although a percentage discount has been specified, no such discount has been in fact been (sic) allowed: R v Mako [2004] NSWCCA 90 at [21], R v Lynn [2004] NSWCCA 222 at [13], R v Sutton [2004] NSWCCA 225 at [16] - [17]."
42 Without guidance from his Honour it is difficult to fathom what were the starting points of the sentences imposed. It is unnecessary in my view to thoroughly understand how the sentences were arrived at to deal with this ground of appeal.
43 In his sentencing remarks, his Honour referred to a number of considerations in R v Henry (1999) 46 NSWLR 346, the guideline Judgment on armed robbery offences and applied "Henry as a starting point". (ROS at 8).
44 Mr Hamill SC submits in further written submissions to this Court that an appropriate starting point for a sentence on count one was five years which was "the top of the guideline in Henry taking into account on the one hand, the greater sum taken and, on the other, the earlier plea" and an appropriate starting point on count two was six years the incremental increase in the penalty "to take into account that the applicant was no longer a first offender". To those starting points the discount of 40 per cent for assistance would be applied, the plea having been taken into account in coming to the individual sentences.
45 The two offences of armed robbery contrary to s 97(1) of the Crimes Act 1900 (counts 1 and 2) committed by the applicant were significantly more serious than the characteristics considered to be the usual case in Henry (supra) at [162-165].
46 The armed robbery of the Lansvale Sports Club was relatively sophisticated and well-planned. It seems that the offenders used the Chubb security uniforms, the bonnet of the car and the bleeding hand as a ruse to gain access to the Club. Staff were terrorised by pistols being pointed at their heads and were forced to lie on the floor. A member of staff was taken to the office and then to the bar area where he was forced to open safes. A large amount of cash was stolen.
47 The armed robbery of the Allawah Hotel although not as sophisticated as the first offence was well-planned. The applicant and co-offender utilised the early hours of the business day to enter the hotel and terrorise staff and a member of the public by pointing pistols at them. Cable ties were used to tie the hands of two employees behind their backs. A member of staff was forced to open two safes and a large amount of cash was stolen. It was the applicant's second offence.
48 The criminality of the applicant in the commission of these offences was very serious and little assistance can, in my opinion, be derived from 'Henry'. An offence contrary to s 97(1) of the Crimes Act 1900 is punishable by 20 years imprisonment. Notwithstanding the strong subjective circumstances of the applicant, an undiscounted starting point for each of these offences in excess of ten years was well within an appropriate range.
49 The notional undiscounted starting point of the sentences imposed by the Judge for the offences contrary to s 97(1) of the Crimes Act 1900 if the discounts were calculated on a 'successive basis' (52%) was five years and two and a half months. Calculated on an 'aggregate basis' (60%) the notional starting point is six years and three months. Each of these starting points suggests to me that the sentences for these offences were lenient.
50 The maximum penalty for the armed robbery committed at Sefton (count 6) was 25 years imprisonment whereas the maximum considered in Henry was 20 years. The applicant and a co-offender entered the chemist shop in mid afternoon and pointed pistols at members of staff. Two members of the public were in the pharmacy at the time. Members of the staff were forced to open the till, hand over cash and viagra at gunpoint. This offence, to my mind, was the least serious of the three armed robberies notwithstanding that it attracted a higher maximum penalty. It remains nevertheless a very serious offence.
51 The notional undiscounted starting point of the sentence imposed by the Judge for the offence contrary s 97(2) of the Crimes Act 1900 if the discounts were calculated on a 'successive basis' (52%) was 10 years and five months. Calculated on an 'aggregate basis' (60%) the notional starting point is 12 years and six months. A starting point for this offence in excess of nine years in my view was beyond an appropriate range.
52 The Judge imposed concurrent sentences for the armed robberies committed at the Lansvale Sports Club and at the Allawah Hotel. These were serious separate offences with different victims. With respect, in my opinion, his Honour was wrong to do so. In R v Wilson [2005] NSWCCA 219 Simpson J in considering the question of accumulation remarked [at 37] and [38]:
"37 It is well established that questions of accumulation are, subject to the application of established principle, discretionary. What is important is that, firstly, an appropriate sentence is imposed in respect of each offence; and, secondly, that the total sentence imposed properly reflects the totality of the criminality.
38 In my opinion, it was not only well open to his Honour to accumulate one sentence upon the other two; I doubt that would have been correct not to do so. There were, in fact, three separate offences committed, even though all were committed as part of the same event. In this context the Crown appropriately reminded the Court of the purposes of sentencing set out in s 3A of the Sentencing Procedure Act . The first purpose so specified is ensuring adequate punishment for crime, others here relevant include crime prevention by deterrence, denunciation, making an offender accountable and recognition of harm done to the victim and the community. To fail to accumulate, at least partially, may well be seen as a failure to acknowledge the harm done to those individual victims." (Emphasis added)
53 The armed robberies at the club and the hotel were discrete offences. They were offences, as I have observed, during which staff were terrorised at gunpoint and large amounts of cash were taken. The concurrency of the sentences failed to recognise the separate criminality involved, the harm done to those persons who had the misfortune to be present at the time of the offending and the establishments which lost money. Whilst his Honour may have had in mind the principle of totality the sentences should have at least been partially accumulated. A sentencing Court must take care to avoid any suggestion when applying the totality principle that there is some kind of discount for multiple offending: R v M.A.K, R v M.S.K [2006] NSWCCA 381 at [18]: R v Knight (2005) 155 A Crim R 252 at [112]. The error identified, however, favoured the applicant.
54 A composite discount for the plea of guilty (either 60-65 per cent [the 'aggregate approach'] or 52 per cent [the 'successive approach']) was in a range normally regarded as appropriate for a plea and assistance to authorities of a very high order: see R v Sukkar [2006] NSWCCA 92 per Latham J [at 54] and Howie J [at 3]: see also R v Pham [2006] NSWCCA 288 and SZ v R [2007] NSWCCA 19. The applicant's assistance to authorities was significant and there was evidence before the Judge that the applicant's sentence would be served on protection.
55 The applicant's solicitor in an affidavit deposed to her understanding of the restrictive conditions of the applicant's incarceration as did Detective Adams. This evidence conflicted to some extent with Mr Watson-Munro's recitation in the report dated 6 April 2006 of the conditions experienced by the prisoner at the Special Purpose Centre at the Long Bay Prison Complex.
56 Whilst the applicant was entitled to a significant discount for his past and future assistance and for the conditions in which his sentence was to be served, the discount determined by the Judge, to my mind, more than adequately recognised the leniency to which the applicant was entitled.
57 The Judge, furthermore, considered the added severity of the sentence to be served in protective custody together with the "prisoner's rehabilitation" were special circumstances to enable him to vary the statutory ratio (ROS at p 7). The added term of the total effective sentence equates to 50 per cent of the non-parole period.
58 The need to serve the sentence on protection was a circumstance taken into account by the Judge in favour of the applicant in the determination of the discount for assistance and in the finding of special circumstances. His Honour in twice taking into account this circumstance was 'double counting'.
59 Spigelman CJ said in Regina v Fidow [2004] NSWCCA 172 at [18]:
"Double counting' for matters already taken into account in reducing the head sentence, and therefore already reflected in the non-parole period, must be avoided…… Almost all matters capable of constituting special circumstances have usually been taken into account in determining the head sentence and sentencing judges should ensure that double counting does not occur."