Buadromo v R

Ground 2: manifestly excessive 33 A number of matters were advanced in support of the argument that the overall sentence was manifestly excessive. It was explicitly conceded that no individual sentence was manifestly excessive. 34 Reliance was placed upon the similarity of the offences that involved dwelling houses and stealing therein - four of the six offences on the indictment. Two of them, it was observed, were committed on the same night. In all cases, the occupants of the homes were asleep. In reliance upon my own decision in R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66, it was argued that these similar features should have pointed towards concurrency rather than accumulation. 35 This represents a misunderstanding (though, perhaps, an understandable one) of what was said in Hammoud. Each of these six offences was quite discrete. They were not committed as part of a single criminal enterprise, which is what I had in mind when I made the remarks in Hammoud. Nothing that was said in Hammoud requires or justifies a finding in this case that accumulation rather then concurrency was erroneous. 36 It was also pointed out that, while the applicant was party to a joint criminal enterprise in respect of the fifth and sixth offences, he was not the offender who wielded the sledgehammer, and was not the offender who went to the victim's car. This may be so, but, again, in my opinion, it would not justify a finding that the judge was in error in his approach to the facts of the offences. 37 A further argument concerned the evidence of intellectual disability. It was pointed out that, during the proceedings on sentence, the sentencing judge expressed some surprise at this conclusion of Dr Hayes, in such a way as to suggest disagreement. However, his Honour nowhere rejected the conclusion. Indeed, he made no reference to the conclusion in his remarks on sentence. But, in any event, it was accepted that his intellectual functioning did not reduce his moral culpability; it was, rather, submitted that, in such circumstances, general deterrence is of less relevance. This is a well-known principle: see R v Champion (1992) 64 A Crim R 244; R v Engert (1995) 84 A Crim R 67; R v Wright (1997) 93 A Crim R 48. But I find nothing in the remarks on sentence nor the approach of his Honour to indicate that the evidence of the applicant's intellectual disability was not given due weight in the circumstances. I am not persuaded that the sentences, in total, were manifestly excessive. 38 However, for the reasons I have already given, I am satisfied that there was error in the structure of the sentences following the finding of s44 special circumstances. Accordingly, in my opinion, the appeal should be allowed to that extent, and one sentence varied to yield an overall non-parole period of seven and a half years, which would mean a balance of term of three years and nine months, the total term remaining at eleven years and three months. Regrettably, the only way that I can see to achieve this is to reduce the non-parole period imposed in respect of the most serious of the offences (the attempted armed robbery in company) that resulted in the longest sentence. I say this is regrettable because it will give the impression of a non-parole period imposed in respect of a serious offence that is quite disproportionate to the gravity of the offence, and will not, on its face, comply with the requirements of Pearce v The Queen [1998] HCA 57; 194 CLR 610. In the context of all offences and sentences, however, what I propose will yield a just result, and give effect to the finding of special circumstances. 39 Accordingly, I propose the following orders: