Cummins v R

Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2016/303518 Publication restriction: Nil Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 29 June 2018 Before: Wilson SC DCJ File Number(s): 2016/303518

Judgment

1. BATHURST CJ: I agree with the orders proposed by Price J and with his Honour's reasons.
2. PRICE J: The applicant, Paul James Cummins, seeks leave to appeal against the sentence imposed on him by Wilson SC DCJ ("the judge") in the District Court on 29 June 2018.
3. The applicant pleaded guilty in the District Court to the following offences: 1. Count 1: On 9 October 2016, did assault Arie Broekhuizen with intent to take a motor vehicle and took and drove a motor vehicle, namely a Holden Commodore, without the consent of the owner of the motor vehicle, Arie Broekhuizen, contrary to s 154C(1)(a) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is 10 years imprisonment with a standard non-parole period of 3 years. 2. Count 2: On 9 October 2016, did rob Jerome San Juan of $4,444 cash, the property of J.R. Enterprises Pty Ltd whilst armed with an offensive weapon, namely a knife, contrary to s 97(1) of the Crimes Act. The maximum penalty for this offence is 20 years imprisonment. A standard non-parole period has not been prescribed. 3. Count 3: On 10 October 2016, did steal a Toyota Hiace van, the property of Mamata Pty Ltd, contrary to s 154A(1)(a) of the Crimes Act. The maximum penalty for this offence is 5 years imprisonment. A standard non-parole period has not been prescribed. 4. Count 4: On 10 October 2016, did rob Marina Strougaris of certain property, namely $700 in cash, the property of Australia Post trading as the Ashfield Post Office, whilst being armed with an offensive weapon, namely a knife, contrary to s 97(1) of the Crimes Act
4. The applicant asked the judge to take into account on sentence for count 2, an offence of attempted armed robbery on 9 October 2016 which had been placed on a Form 1. When sentencing the applicant for count 4, his Honour was also asked to take into account on a Form 1 two offences of robbery whilst armed with an offensive weapon on 10 October 2016.
5. A discount of 10% was allowed by the judge for the utilitarian value of the pleas of guilty.
6. His Honour indicated the following sentences he would otherwise have imposed after the 10% discount.

• Count 1: 3 years 7 months imprisonment;
• Count 2: 5 years 4 months imprisonment, taking into account the offence on the Form 1;
• Count 3: 1 year 9 months imprisonment;
• Count 4: 7 years 2 months imprisonment, taking into account the offences on the Form 1.

1. The applicant was sentenced to an aggregate term of imprisonment of 14 years with a non-parole period of 8 years commencing on 30 April 2017.
2. The applicant's notice of appeal identifies the following grounds: "(1) His Honour erred by taking into account Form 1 offences when assessing the objective seriousness of the principal offences of armed robbery offences in count 1 and 2. (2) His Honour erred by taking into account as an aggravating factor that the offences involved multiple victims and a series of criminal acts pursuant to s 21A(2)(m) of the Crimes (Sentencing) Procedure Act 1999. (3) His Honour erred by convicting the applicant of the Form 1 offences and in his consideration of these offences. (4) In respect to counts 1, 2, and 4 his Honour erred by taking into account the threatened use of violence as an aggravating factor, pursuant to s 21A(2)(b) of the Crimes (Sentencing) Procedure Act 1999, when this was an element of the offences charged. (5) His Honour erred in his application of 'the principle of totality' in the aggregate sentence imposed. (6) The aggregate sentence is manifestly excessive."

The facts of the offences

1. A statement of agreed facts was placed before the judge which has been conveniently summarised in the Crown's written submissions as follows: "On 9 October 2016 at about 2:20pm the applicant approached the open driver's window of a silver Holden Commodore that was parked in Campsie, wearing a hooded top and a black mask around his face. The car's owner Arie Broekhuizen was in the reclined driver's seat with the keys in the ignition, and his wife was sitting beside him reading a newspaper. The applicant said, 'Get out of the car'. Mr Broekhuizen did not react. The applicant then said, 'If you don't get out of the car, I'll shoot you'. Mr Broekhuizen and his wife got out of the car, and the applicant got in and drove away (Count 1). The applicant drove to the Crocodile Farm Hotel on Liverpool Road at Ashfield and parked at the rear. At about 2:30pm he walked into the hotel, wearing a cap and a hood over his head, and entered the gaming area. He approached staff member Jerome San Juan and said, 'Give me the money'. Mr San Juan said, 'What?', and the applicant replied, 'I've got a knife'. The applicant walked to the main bar area and told the manager, Christopher Redford, who was behind the bar, to open the till. Mr Redford refused. The applicant pulled out a knife to shoulder height and yelled to Mr Redford, 'Open the Keno register' (offence on Form 1 attached to Count 2). While Mr Redford opened the till, the applicant went back to the gaming area and again approached Mr San Juan. Producing a knife and holding it by his side, the applicant slapped Mr San Juan on the forehead. Mr San Juan opened the till and the applicant removed a total of approximately $4,444 (Count 2). The applicant got into a silver sedan and drove away. This offence was recorded by CCTV cameras. The following day at about 1:30pm, a courier, Wares Mahmud, went to Canterbury Leagues Club in Belmore to make a delivery. He left his white Toyota Hiace van unlocked with the keys in the ignition in the loading dock area while he delivered a package on foot to a person in the loading dock. The applicant got into the van and drove it away (Count 3). At about 3:30pm that afternoon the applicant entered the post office on Level 4 of Ashfield Mall on Liverpool Road, Ashfield, wearing a cap and a hood over his head and latex gloves. A number of customers and staff were in the post office. The applicant climbed over the counter. Staff Member Marina Strougaris said, 'You're not allowed back here'. The applicant turned to another staff member, My Lien Vuong, produced a knife, and said, 'Give me your money'. Ms Vuong opened the till and handed the applicant $450 (second offence on Form 1 attached to Count 4). The applicant turned to Ms Strougaris and said, 'Give me the cash'. Ms Strougaris refused. The applicant stepped closer to her, pointed the knife at her and said, 'Give me your cash'. Ms Strougaris opened her till and later gave the applicant $700 cash (Count 4). The applicant approached staff member Lisa [Johnson] at another till. Holding the knife about 7cm from Ms Johnson, he removed cash from the open till (first offence on Form 1 attached to Count 4). The applicant jumped back over the counter and left the post office, having taken approximately $1,200. This offence was also recorded by CCTV cameras. The applicant was arrested the next day, 11 October 2016, after police had observed him using each of the stolen vehicles referred to in Counts 1 and 3."

Subjective circumstances

1. The applicant was born on 3 April 1977 and was 39 years old when the offences were committed. He gave evidence before the judge and the written material which was tendered in his case included a report of Dr Richard Furst, a forensic psychiatrist, various hospital discharge summaries and certificates of completion from the Equips Aggression Program.
2. The applicant's prior criminal history disclosed for three counts of armed robbery and an offence of stalking, that the applicant was sentenced in the District Court to an aggregate term of imprisonment of 4 years 3 months commencing on 20 January 2014 and expiring on 19 April 2018 with a non-parole period of 2 years 1 month. For an offence of damage to property, the applicant was sentenced in the Local Court to 1 month imprisonment commencing on 14 March 2017.
3. Dr Furst reported that the applicant had a history of mental illness dating back to at least 2003, suffering from psychotic symptoms which included hearing "voices" and "weird thoughts". The applicant told Dr Furst that he believed his initial symptoms were triggered by his drug use and he recalled feeling "very paranoid" at the time. Dr Furst recounted various admissions that the applicant had to Rozelle Hospital and to Concord Hospital between 2003 and 2012 for drug-induced psychosis and increasing paranoia. He had been case managed under the care of the Croydon Community Mental Health team, seeing Dr Ferguson, a psychiatrist, every one to three months, apart from his previous period in custody from 2014 to 2016. During this period of incarceration he was treated with Seroquel, an antipsychotic medication.
4. Dr Furst reported that the applicant's drug use had included cannabis, ecstasy and MDMA. He had also used "ice" (methylamphetamine) on and off from the age of 18-19 years and heroin from the age of 25-27 years.
5. As to the commission of the offences, Dr Furst stated: "[The applicant] regretted his offending actions, as outlined in the agreed facts; however, he also blamed Centrelink for not paying him enough money when he was released from custody in March 2016 and the delays and ultimate rejection of his application to reinstate his Disability Support Pension for his decision to commit the offences in question. He said, 'the whole time I was thinking it was unacceptable for them to do that. I don't want to be put in that situation again… earning an extra $200 [per fortnight]. A little bit goes a long way'."

Some findings by the judge

1. The judge assessed the objective seriousness of the offending in relation to count 1 in which his Honour observed that the applicant had threatened to shoot the complainant and his wife before stealing the vehicle to be "approximately mid-range, if not slightly below, as submitted by the Crown."
2. His Honour said "in relation to the second count in which there were two victims and an amount stolen of $4,444", that he considered the seriousness of the offending as being slightly below the mid-range.
3. As to count 3, the judge noted there was no threat or harm caused to the complainant and considered the offending to be in the low range of objective seriousness.
4. In respect of count 4, his Honour said: "It is my view that given the number of victims in relation to that offending together with a degree of planning by use of [the] hoodie, hat and gloves, the offending falls at about the mid-range of offending for that type of offence."
5. In having regard to other factors in determining the seriousness of the offending, his Honour remarked that: "…it is of significance that the offending involved at least the threatened use of violence in relation to the first three counts although it might be observed that in relation to count 1, the threat was that he would shoot the complainant and his wife, in relation to count 2 the threat was inferred rather than expressed by reason of the fact he was carrying a knife and in relation to count 3 there was no threat of violence or use of weapon. In relation to count 4, again, the threat was implied or inferred rather than expressed by reason of the presence of a knife."
6. The judge said that he had also taken into account that the offending involved multiple victims and a series of criminal acts "and it was undoubted that the offending was committed for financial gain".
7. When referring to mitigating factors, his Honour remarked that it was: "…arguable that the offending did not involve any organised or planned criminal activity although [he noted] that [the applicant] was wearing gloves on at least one occasion and it seems on all occasions was wearing a cap and/or hoodie so as to disguise his appearance, that shows some small degree of planning on his part".
8. The judge gave careful consideration to Dr Furst's report, noting the psychiatrist's diagnosis of schizophrenia, substance use disorder and personality disorder and his opinions that the applicant would require ongoing psychiatric treatment and/or rehabilitation over the longer term and his risk of re-offending was considered as being medium to high.

A report by the judge to the Court of Criminal Appeal

1. The judge provided a report to this Court, which responds to grounds 1 and 3 of the Appeal. The judge seeks to inform the Court that he does not accept the applicant's complaint in ground 1 and provides some justification for the matters identified in ground 3. The foundation for the report appears to be s 11 of the Criminal Appeal Act 1912 (NSW). Section 11 relevantly provides: 11 Judge's notes and report to be furnished on appeal The judge of the court of trial may, and, if requested to do so by the Chief Justice, shall, in case of any appeal or application for leave to appeal, furnish to the registrar the judge's notes of the trial, and also a report, giving the judge's opinion upon the case, or upon any point arising in the case: Provided that where shorthand notes have been taken in accordance with this Act, a transcript of such notes may be furnished in lieu of such judge's notes.
2. The circumstances in which a s 11 report may be made by a sentencing judge were most recently considered in Zhang v R. [2] In disregarding a report made by the sentencing judge seeking to explain why there was no reference in the sentencing judgment to a 25% discount for an early guilty plea, Hoeben CJ at CL (Fullerton and Davies JJ agreeing) cited what was said in R v Sloane [3] by Wood CJ at CL at [9]: "9 The purpose of a Report to the Court of Criminal Appeal is not to justify or to explain why a Judge has dealt with a matter in a particular way. The proper place for the exposure of reasoning of this kind is in the Reasons for Sentence, and nowhere else. The reasons for that are obvious: (a) the Reasons for Sentence are the published statement of the Court, addressed to the community at large, as well as to those immediately involved in the case, as to why an offender was dealt with in a particular way; (b) the provision of an explanation directed to the Court of Criminal Appeal, after a sentence is handed down and an appeal is lodged, risks conveying an impression that the Judge, whose decision has been appealed, is seeking to justify or to support it. 10 An important function of a Report under s 11 of the Criminal Appeal Act is to inform the Court of Criminal Appeal of any problems which might have emerged during the trial, which either do not appear on the face of the record, or which are imperfectly or ambiguously recorded. 11 Another permissible and relevant function of such a Report is its use, by a trial Judge, to raise any matters of irregularity or otherwise, which may give cause for significant doubt in relation to a guilty verdict, and which again are not apparent upon a bare reading of the record. 12 A third permissible reason for such a Report is its provision, in response to a specific request from the Court of Criminal Appeal, in relation to any matter which may be of concern to it. 13 Otherwise, in times where there is in existence an adequate system for Court reporting, occasion for the provision of a s 11 Report should only arise in exceptional circumstances. Its use in order to justify, or to explain a decision for which reasons should have been provided, is not such a circumstance."

Ground 1: His Honour erred by taking into account Form 1 offences when assessing the objective seriousness of the principal offences of armed robbery offences in counts 2 and 4

1. The applicant submitted that the judge erroneously took into account the Form 1 offences when assessing the objective seriousness of counts 2 and 4 and erred in sentencing on the basis that the principal offences charged involved more than one victim.
2. As the Form 1 offences were relevant only to the weight to be given to personal deterrence and retribution, the applicant argued that the judge erred by considering the totality of the criminality for both the principal offence and the Form 1 offences when determining the objective seriousness of the principal offence.
3. Whilst accepting that the judge may have not expressed himself felicitously in his sentencing judgment, the Crown argued there was nothing to suggest that the judge increased the objective seriousness of the principal offences by the impermissible use of the Form 1 matters. The Crown pointed out that the judge had been reminded by the applicant's counsel in the sentencing proceedings of the danger of double counting. Furthermore for counts 2 and 4, the offences on the Form 1 were of the same type as the principal offence and were factually intertwined with it. Each was a serious offence with a 20 year maximum penalty and involved a separate offence from the principal offence. Each would lead to a sentence significantly longer than would be required if it were not taken into account.

Consideration

1. It has long been established that an offence on a Form 1 is not relevant to the assessment of the objective seriousness of a principal offence. A Form 1 offence may be taken into account by the sentencing judge giving greater weight to personal deterrence and retribution: Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002; [4] RL v R. [5]
2. Before determining the objective seriousness of the offending of the second count to be slightly below mid-range, his Honour referred to there being "two victims" and the amount stolen being $4,444 (see [22] above).
3. The violence in count 2 was confined to Mr San Juan in whose presence the applicant had produced a knife and had slapped on the forehead before Mr Juan had opened the gaming till. The applicant then removed approximately $4,444.
4. In the offence of attempted armed robbery on the Form 1 which his Honour was asked to take into account on sentence for count 2, the applicant had threatened Mr Christopher Redford with a knife at shoulder height demanding that he open the Keno register.
5. In my respectful opinion, his Honour incorrectly stated that there were "two victims" in count 2, when the sole victim of that offence was Mr San Juan.
6. His Honour made the same error in count 4 before deciding that the objective seriousness of that offence was at about the mid-range. In the passage quoted at [24] above, his Honour founded that assessment on the "number of victims together with a degree of planning by the use of the hoodie, hat and gloves". (Emphasis added.)
7. The sole victim of the applicant's violent offending in count 4 was Ms Strougaris who at knife point opened the till and gave the applicant $700. Ms Johnson was the victim of the applicant's violence in the first offence of armed robbery on the Form 1 and Mr Vuong was the victim of the applicant's violence on the second armed robbery on the Form 1. The judge was asked to take into account these further offences when sentencing for the principal offence, being count 4.
8. Although it is true, as the Crown points out, that the judge was cautioned against increasing the assessment of the objective seriousness of a principal offence by taking into account the Form 1 matters during the sentencing proceedings on 15 June 2018, the judge did not sentence the applicant until 29 June 2018.

Ground 2: His Honour erred by taking into account as an aggravating factor that the offences involved multiple victims and a series of criminal acts, pursuant to s 21A(2)(m) of the Crimes (Sentencing) Procedure Act 1999

1. The applicant pointed out that s 21A(2)(m) of the Crimes (Sentencing) Procedure Act 1999 (NSW) ("CSP Act") provides that it is an aggravating factor that the "offence involved multiple victims or a series of criminal acts". The applicant contended that the judge erred when considering the seriousness of the offending by taking into account in a global fashion that the offending involved multiple victims and a series of criminal acts. The applicant submitted that the offences charged related to only one victim and did not involve a series of criminal acts.
2. The Crown submitted that the judge did not state that he considered "a series of criminal acts" as aggravating the objective seriousness of the sentence to be imposed with respect to any offence. Rather, his Honour was briefly discussing the offending conduct.

Consideration

1. The focal point of the applicant's complaint is the following passage in the sentencing judgment: "I have also taken into account that the offending involved multiple victims and a series of criminal acts and it is undoubted that the offending was committed for financial gain."
2. Section 21A(2)(m) of the CSP Act provides that the court can take into account as an aggravating factor that "the offence involved multiple victims or a series of criminal acts". As Howie J explained in R v Tadrosse: [6] "…the aggravating factor in s 21A(2)(m) is concerned with the situation where a single offence contains a number of allegations of criminal acts that are part and parcel of a single course of criminal conduct."
3. It would be an error for the judge to take into account all of the applicant's offending in increasing the objective seriousness of any of the four counts to which the applicant had pleaded guilty. Unless an aggravating factor applied to all of the offences, the judge was obliged to indicate in respect of which offence or offences that aggravating factor was taken into account. [7] It should however be said that did not preclude all of the offences being considered when the judge came to questions of general deterrence; personal deterrence; protection of society; retribution and prospects of rehabilitation.
4. It is far from clear how the judge took into account the "multiple victims and a series of criminal acts" but his references to "threatened use of violence" (s 21A(2)(b)); "a record of previous convictions" (s 21A(2)(d)); "the emotional harm" (s 21A(2)(g)); "financial gain" (s 21A(2)(o)) and then to "mitigating factors" (s 21A(3)), suggest that his Honour adopted a check-list approach to his sentencing task. Although his Honour did not explain how the multiple victims and series of criminal acts were taken into account, they appeared in his Honours' sentencing judgment under the heading "Objective Seriousness".
5. At a later stage in the judgment, the judge said the applicant's previous convictions "…may be taken as aggravating factors pursuant to s 21A(2)(d)". Nowhere else in the judgment did his Honour expressly refer to factors of aggravation.
6. I am not persuaded that the multiple victims and series of criminal acts were taken into account as aggravating factors. However, I am satisfied that the judge had regard to the multiple victims and series of criminal acts as increasing the objective criminality of all of the offending for which the applicant was being sentenced. In my respectful opinion, the judge was in error in doing so.

Ground 3: His Honour erred by convicting the applicant of the Form 1 offences and in his consideration of these offences

1. The applicant's complaint is that when pronouncing sentence, the judge said: "You are convicted of the seven offences set out in the Crown sentence summary and the Form 1 documents which I have described in detail in these remarks on sentence."
2. The Crown submitted that his Honour's pronouncement of convictions including the Form 1 offences was merely an infelicitous remark. However, these remarks being part of a reserved judgment and the specific errors identified in grounds 1 and 2 do not support this argument.
3. I would uphold this ground of appeal.

Ground 4: In respect to counts 1, 2 and 4 his Honour erred by taking into account the threatened use of violence as an aggravating factor, pursuant to s21A(2)(b) of the Crimes (Sentencing) Procedure Act 1999, when this was an element of the offences charged

1. The applicant referred to his Honour's remarks quoted at [25] above. Particular reference was made to his Honour's statement that it was "of significance that the offending involved at least the threatened use of violence" when determining the seriousness of the offending. The applicant argued that in the context of the judge's remarks his Honour took this factor into account as an aggravating factor under s 21A(2)(b) of the CSP Act.
2. The applicant submitted that his Honour erred by taking into account the inferred threat of violence as an element of the offence charged in counts 2 and 4, which was impermissible double counting. A further argument was that in respect of count 1, his Honour erred in taking into account the threatened violence as a matter of aggravation.
3. The Crown submitted that there was nothing to suggest that the matters complained of by the applicant had been taken into account as aggravating factors. All his Honour did was freely discuss the features of the offending conduct and give careful consideration to the nature of the threats the applicant employed in each case.

Consideration

1. Counts 2 and 4 are offences of armed robbery. The threatened use of violence is a necessary element of armed robbery and cannot be taken into account as an aggravating factor as this would amount to impermissible double counting. The nature and the extent of the threat (as opposed to the bare threat) can legitimately be regarded as a factor which increases the seriousness of an offence. [8]
2. In stating that in count 2 "the threat was inferred rather than expressed by reason of the fact that he was carrying a knife" and in count 4 "…again, the threat was implied or inferred rather than expressed by reason of the presence of a knife", the judge was doing no more than considering the circumstances in which the violence was threatened.
3. As to count 1 which is an offence contrary to s 154(1)(a) of the Crimes Act, his Honour was entitled to take into account the threat, that the applicant would shoot the complainant and his wife, in assessing the objective seriousness of the offence.
4. I would reject ground 4 of the appeal.

Ground 5: His Honour erred in his application of the principle of totality in the aggregate sentence imposed

1. The applicant submitted that although the judge said that he had regard to the question of totality, he did not give the principle any real practical effect and any notional accumulation must have been manifestly excessive. The applicant placed emphasis on the importance of the totality of the criminality; pointing out that the offences were committed over a short period of two days and were part of a continuing and related course of conduct.
2. The applicant argued that by looking at the length of the individual indicative sentences and considering them together, it was evident that there could only have been very little downward adjustment in the light of totality. The applicant contended that the indicative sentences were themselves harsh, given his subjective case and the findings of objective seriousness, which called for careful consideration of notional accumulation and the extent of any downward adjustment in light of the total criminality.
3. The Crown referred to the judge's remarks that he had regard to the principles of totality, concurrency and accumulation, and submitted that his Honour had allowed a measure of partial concurrency by imposing an aggregate sentence of 14 years that was less than the sum of each of the indicative sentences.
4. The Crown argued that while the four offences took place over two consecutive days, they constituted separate serious offences against different victims. While a degree of concurrency would be appropriate between the sentences for counts 1 and 2 and between the sentences for counts 3 and 4 to reflect the degree of connection between each of those pairs of offences, temporal proximity was not determinative.
5. It was put to this Court by the Crown that count 1, in particular, represented serious distinct criminality and it was open to the judge to find the sentence for count 2 could not comprehend and reflect it. The Crown submitted that it was also relevant that while the applicant took each of the vehicles (counts 1 and 3) a short time before committing the armed robberies (counts 2 and 4) he did not use the vehicles solely for committing the armed robberies. Instead of abandoning the vehicles he kept them and was using them when he was arrested one or two days later.

Consideration

1. His Honour recognised in the passage quoted at [36] above that in imposing an aggregate sentence, he was obliged to have regard to the requirements of Pearce v The Queen [9] ("Pearce"). In Pearce, McHugh, Hayne and Callinan JJ said at [45]: "…A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality."
2. Whether sentences are imposed concurrently or consecutively are a matter for a sentencing judge's discretionary judgment guided by the principle of totality. [10] Such a discretionary judgment is only reviewable in this Court in accordance with the principles of House v The King. [11]
3. The question is whether his Honour properly applied the totality principle. The arithmetical debate in this Court does little to resolve the issue. As Button J observed in Truong v R; R v Le; Nguyen v R; R v Nguyen [12] at [231]: "…the process of aggregate sentencing, unlike traditional sentencing, does not permit of a mathematical analysis of the degrees to which partial and complete concurrence or accumulation have been adopted by a sentencing judge".
4. Turning to the applicant's argument that the offences were committed over a short period of two days and were part of a continuing and related course of conduct, the question to be posed is not one of temporal proximity but whether the sentence for one offence can comprehend and reflect the criminality of the other offence. If it cannot, there should be at least partial accumulation otherwise there is a risk that the total sentence will fail to reflect the total criminality of the offences. [13] In R v Harris, [14] the Court (McClellan CJ at CL, Hulme and Hislop JJ) when discussing the totality principle said at [44]−[45]: "44 Implementation of the principle of totality is perhaps the most common circumstance where concurrency of sentences is justified. However it is important that that principle be properly understood and applied. Perhaps the leading statement of it is an extract from D A Thomas, Principles of Sentencing endorsed in Mill v R (1988) 166 CLR at 59 at 63:- 'The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences to review the aggregate sentence and consider whether the aggregate sentence is 'just and appropriate'.' 45 Two points may be made. Firstly, the principle is expressed in terms of coming back from the result of a simple aggregation. Secondly, if each individual sentence is appropriate for the criminality of the offence to which it relates, prima facie additional criminality requires an increase in sentence. Obviously the totality principle imposes limits to that last proposition but those limits will rarely if ever go so far as to justify wholly concurrent sentences for all of a series of offences such as those here. Subject to those limits, in general, sentences significantly cumulative should be imposed for separate serious offences of which those here are all examples."

Ground 6: The aggregate sentence is manifestly excessive

1. It is unnecessary to decide this ground. As specific error has been identified, it is this Court's duty to re-sentence, "unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed". [18]

Re-Sentence

1. No additional material was tendered on re-sentence.
2. The maximum penalty for counts 2 and 4 is 20 years imprisonment and for count 3, 5 years imprisonment. The maximum penalty for count 1 is 10 years imprisonment with a standard non-parole period of 3 years. These legislative guideposts are to be borne in mind when considering the appropriate sentence, having regard to the objective circumstances of each offence, the applicant's subjective case and the totality principle.
3. In the sentencing proceedings before the judge, the applicant's counsel accepted that the armed robberies (counts 2 and 4) were more objectively serious than in the Henry guideline. The applicant argued in this Court that although there were a number of factors in the present case not incorporated in the guideline, the indicative sentences, particularly for count 4, were nevertheless well above the range discussed in Henry.
4. The applicant was referring to the guideline judgment for s 97(1) offences in R v Henry [19] and the seven characteristics which Spigelman CJ identified as generally having a sentencing range between four and five years.
5. The characteristics that the offending in counts 2 and 4 share with the Henry guideline are: the weapon, the limited degree of planning, limited actual violence (count 2), no actual violence (count 4) but in each count a real threat of actual violence and a vulnerable victim. Factors outside the seven characteristics are: the applicant is not a young offender with no or little criminal history; his prior criminal history includes three counts of armed robbery; he was on parole at the time for those offences and there were related Form 1 matters to be taken into account.
6. It is trite to observe that the Henry guideline is not to be applied as a standard. [20] The appropriate sentence depends upon the circumstances of the case.
7. In the exercise of my sentencing discretion, I agree with his Honour's assessment of where each of the four offences stood on the objective scale of seriousness notwithstanding the errors that have been identified in upholding grounds 1 and 2. Counts 1, 2 and 4 are serious offences. I take into account on sentence for count 2, the Form 1 offence of attempted armed robbery and for count 4, the two Form 1 offences of armed robbery, by giving greater weight to personal deterrence and retribution.

1. In assessing the aggregate sentence, I have fixed an appropriate sentence for each offence and considered questions of cumulation or concurrence and totality. The aggregate term of imprisonment is 11 years 6 months. The minimum term of imprisonment will be a period of 6 years 6 months.
2. Accordingly, I propose the following orders: 1. Leave to appeal granted. 2. Appeal against sentence allowed. 3. The sentence imposed in the District Court of New South Wales on 29 June 2018 is quashed. 4. In lieu thereof, Paul James Cummins is sentenced to 11 years 6 months imprisonment consisting of a non-parole period of 6 years 6 months, commencing on 30 April 2017 and concluding on 29 October 2023, with a balance of term of 5 years which will expire on 29 October 2028.
3. N ADAMS J: I agree with the orders proposed by Price J for the reasons provided by his Honour.

Endnotes

1. (2006) 66 NSWLR 566; [2006] NSWCCA 242.
2. [2018] NSWCCA 82.
3. [2001] NSWCCA 421; 126 A Crim R 188.
4. (2002) 56 NSWLR 146; [2002] NSWCCA 518.
5. [2018] NSWCCA 274.
6. (2005) 65 NSWLR 740; [2005] NSWCCA 145 at [29].
7. R v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCCA 145 at [22].
8. Dougan v R [2006] NSWCCA 34; (2006) 160 A Crim R 135 at [26]-[29]; Hamze v R [2006] NSWCCA 36 at [26].
9. (1998) 194 CLR 610; [1998] HCA 57.
10. R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481 at [13].
11. (1936) 55 CLR 499 at 505; [1936] HCA 40.
12. [2013] NSWCCA 36
13. Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41; R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38 ("R v XX").
14. [2007] NSWCCA 130; (2007) 171 A Crim R 267.
15. Vaovasa v R [2007] NSWCCA 253; (2007) 174 A Crim R 116 at [15] ("Vaovasa").
16. R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38 at [52]; Vaovasa v R [2007] NSWCCA 253; (2007) 174 A Crim R 116 at [16].
17. (2016) 256 CLR 656; [2016] HCA 17 at [64].
18. Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [35].
19. (1999) 46 NSWLR 346; [1999] NSWCCA 111 at [162]
20. R v Franks [2005] NSWCCA 196.
21. R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242; R v M.A.K, M.S.K [2006] NSWCCA 381.
22. DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177].
23. Mill v The Queen (1988) 166 CLR 59; [1998] HCA 70.
24. [2013] NSWCCA 280 at [52];
25. See also: Hutchen v R [2015] NSWCCA 101 at [40].
26. Crimes (Sentencing Procedure Act) s 53A(2)(b). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 July 2019