DB v Regina; DNN v Regina

Court of Criminal Appeal (NSW)|2006-06-28|Before: McClellan CJ, Adams J, Latham J

The application of s6(3) of the Criminal Appeal Act 1912 8 The interpretation of s6(3) of the Act was not the subject of submissions before us. Its application, where an error going to the exercise of the discretion is demonstrated, has been considered in a number of decisions of this Court. It cannot be said, in my respectful view, that the members of the Court are unanimous on the matter. There is (as I seek to show) no common or, to use the arcane language of computerspeak, default position. Since, in the circumstances here, a different result in my view arises in respect of individual sentences imposed on DB depending on which interpretation of s6(3) is applied, it is necessary for me to deal with the matter. 9 There is, of course, no doubt that the essential prerequisite to quashing a sentence under appeal and substituting the sentence considered by the Court of Criminal Appeal to be correct is the formation of the relevant opinion and the mere identification of an error of law or fact is insufficient. If authority is required for such an elementary proposition, it is sufficient to cite R v Simpson (2001) 53 NSWLR 704. 10 The first part of the requirement is not difficult to apply. It is a fundamental assumption of sentencing jurisprudence that in no case will only one sentence be correct. The sole exception might be life sentences under s 61 of the Crimes Act 1900, not only in principle but also because of the terms of the section itself. In every other case the circumstances will justify a range of sentences, often quite a wide range, that may properly be passed. Although not articulated, so far as I am aware, in the decisions of this Court, it seems to me that it is also fundamental that the minimum sentence that reflects the objective and subjective features of a case and satisfies the purposes of sentencing (such as protection of the public: Veen v The Queen [No.2] (1988) 164 465 at 473) should be that which is imposed. This has been called the principle of parsimony, a phrase that originated in the judgment of Napier CJ in Webb v O'Sullivan (1952) SASR 65 at 66 and has become common in Victoria see, eg, R v Storey (1996) [1998] 1 VR 359 at 366; R v PP (2003) 142 A Crim R 369 at 374. To impose a more severe sentence is, ex hypothesi, to intrude other inappropriate purposes into the administration of criminal justice. It is trite that minds may well reasonably differ as to what this minimum sentence might be in the circumstances of any particular case. Whether one applies this approach or not, it is unarguable that more than one sentence will invariably be warranted in law. This assumption is fundamental to the application of s6(3) of the Act. 11 In Regina v Wayne Ross Oastler, (unreported) NSWCCA 7 October 1992), Lee AJ said, having concluded that the primary judge had made a number of errors in the construction of the sentencing provisions in the Crimes Act 1914 (Cwth) - "However, that does not mean necessarily that the appeal should be upheld on the ground that the sentence is excessive. The question which remains for the Court under s 6(3) of the Criminal Appeal Act 1912 is whether the sentence in fact left by the sentencing judge is excessive or, to use the words of the section, whether another sentence is "warranted in law". In my view, having regard to the seriousness of the crime with which the applicant was charged, his criminal history involving a heavy sentence and only a comparatively few short years ago - a factor which inhibits leniency - and notwithstanding the subjective features including the extensive and significant assistance which he has given to the authorities, the sentence cannot be regarded as excessive."

Gleeson CJ said - "I agree with the orders proposed by Lee AJ, and in particular I agree that, although the applicant has succeeded in demonstrating that some of the steps involved in the process of reasoning of the learned sentencing judge involved some misapprehension on his Honour's part as to the effect of the relevant legislation, nevertheless the sentence ultimately imposed was not excessive. Clarke JA agreed with the comments made by both judges. 12 On the face of it, this suggests that ultimately the only true ground for reducing a sentence is that the sentence under appeal is outside the discretionary available range, that is, it is manifestly excessive (for simplicity I will discuss posited excess, since that is relevant in the present appeal). The demonstrated errors, on this view, are relevant only to the extent that they must be corrected before the question whether the sentence is outside the discretionary range is answered. 13 In Regina v Astill (No 2) (1994) 64 A Crim R 289 at 304 Lee AJ said, in a frequently quoted passage - "When an appeal is brought to the court under s.5(1) it may well be that the court will consider the sentence passed to be "warranted in law'" even though the court may not be in agreement with the weight assigned by the sentencing judge to particular features or his selection of the substantial matters which guide him to his conclusions. In such a case the appeal fails. Even when the court concludes that the judge has made a mistake of law the court may still hold that the sentence is not excessive and should stand. [Emphasis added.] 14 With respect, this does not precisely state the statutory prerequisite where relevant errors have been demonstrated: it is not whether the sentence actually passed is warranted in law but whether another (relevantly) lesser sentence is so warranted. Ex hypothesi, a more lenient or more severe sentence will always be "warranted in law", if that which was imposed is not at the bottom or the top of the discretionary range. 15 R v Cocking [1999] NSWCCA 311 was a case where it was argued that the sentencing judge had committed what might conveniently be called the De Simoni error (R v De Simoni (1981) 147 CLR 383). Sully J cited with emphatic approval the passages from the judgment of Lee AJ in Oastler and Anstill set out above but, as it seems to me, only to the extent that it is vital, when an error of principle is demonstrated, to determine that another, more lenient, sentence was "warranted in law". As I understand Sully J's remarks, his Honour was not there suggesting that, had a more lenient sentence been so warranted, it was necessary to ask whether the sentence appealed from was excessive. Spigelman CJ associated himself with Sully J's "remarks on the proper construction of s6(3) of the Criminal Appeal Act 1912". 16 The crucial qualifier is the requirement, not only that another sentence is warranted in law, but that it also "should have been passed". If this means that it must be shown that the sentence under appeal is outside the discretionary range before the Court can interfere, then, as has been suggested above, the identification of an error of law of whatever significance is irrelevant except in the sense that the question of excess must be considered in light of correct legal principle or the true facts. 17 In AB v The Queen (1999) 198 CLR 111 Kirby and Hayne JJ considered the functions of the Court of Criminal Appeal once error in principle has been established. Kirby J (at 152) concluded that demonstrated error required the entire sentence imposed upon the applicant to be reconsidered so that the Court of Criminal Appeal should exercise its own sentencing discretion in the place of that which miscarried at first instance. Hayne J (at 159-160) referred to the limited task of the Court of Criminal Appeal hearing appeals against sentences which is governed by well-established principles emerging from House v The King (1936) 55 CLR 499 at 504-505. His Honour added - "The difference between cases of specific error and manifest excess is not merely a matter of convenient classification. It reflects a fundamental difference in what the appellate court does. In the former case, once an appellate court identifies an error, the sentence imposed below must be set aside and the appellate court is then required to exercise the sentencing discretion afresh. The offender must be re-sentenced unless, of course, in the separate and independent exercise of its discretion the appellate court concludes that no different sentence should be passed. By contrast, in the case of manifest excess, the error in reasoning of the sentencing judge is not discernible; all that can be seen is that the sentence imposed is too heavy and thus lies outside the permissible range of dispositions. Only then may the appellate court intervene and, in the exercise of its discretion, consider what sentence is to be imposed." 18 The appeal was then remitted to the New South Wales Court of Criminal Appeal to be dealt with in accordance with the reasons of the High Court. In that Court, it was submitted by the Crown that the task of the Court was confined to a consideration of the two matters identified in the judgments of the majority in the High Court in relation to which error had been demonstrated. On the other hand, it was submitted for the applicant that, error having been demonstrated, it was the duty of the Court to reconsider the whole sentence by reference to all the evidence and all the principles which may bear upon it. Barr J (with whom Spigelman CJ agreed), who rejected the Crown's contention, said (at 487) - "[79] …The invariable position in an appeal to this court against sentence is that, if error is shown to exist, the court must exercise its discretion and sentence afresh. It cannot fulfil that function by any partial approach. All the factors relevant to any part of the sentencing must be considered afresh… [80] I conclude that, error having been found, it is the duty of this Court to reconsider the whole sentence by reference to all the evidence and all the principles that may bear upon it. This approach is consistent with the requirement of the Criminal Appeal Act 1912 (NSW), s6(3)…" 19 His Honour noted that this approach was consistent with the judgment of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 505, where their Honours said - "If a judge acts upon a wrong principle...then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so". 20 Barr J then went on to consider the objective and subjective features of the case, from which his Honour derived an overall sentence somewhat more lenient than was imposed at first instance. His Honour did not advert to the consideration whether the latter sentence was excessive, simply stating that the sentence he had independently derived from a consideration of the relevant matters was "appropriate." 21 O'Keefe J approached the resentencing exercise in the same way, although his Honour arrived at a somewhat lower aggregate sentence and was, to that extent, in dissent. 22 The same principle for which I have cited AB was applied by the High Court in a case arising under the s 689(4) of the Criminal Code (WA), which is essentially in the same terms as s 6(3) of the Act. In Lowndes v The Queen (1999) 195 CLR 665 at 671-672 the Court said that "a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion" noting that the "discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice". The question under consideration was whether the sentencing judge had erred in the exercise of the discretion whether to make what was called a "parole eligibility order". The appellant complained that the approach of the Court of Criminal Appeal was to deal with the matter "as though it were entitled to substitute its own discretion for that of the sentencing judge, regardless of whether error had been shown" (ibid at 678). The Court went on to say (at 679) - "…The question for the Court of Criminal Appeal was not whether the sentencing judge had a sufficient reason not to make an order for parole. The question for the Court of Criminal Appeal was whether the making of an order for parole involved error of a kind warranting appellate interference with a discretionary judgment. Unless some material error of fact or law could be discerned in the reasoning of the sentencing judge, then the question for the Court of Criminal Appeal to consider was whether the circumstances of the case were such that the making of a parole eligibility order involved an implied error, or whether, in other words, the circumstances were such as to require the judge not to make an order for parole." 23 The Court concluded that, as the reasoning in the Court of Criminal Appeal "identified no failure on the part of the sentencing judge to advert to any material consideration, no taking into account of any immaterial consideration, and no error on the part of the sentencing judge which justified setting aside his exercise of discretionary judgment and exercising its own discretion…[the] appeal should be allowed." It is clearly implicit that, had error been identified, the Court of Criminal Appeal would have been entitled to exercise its independent discretion on the matter. 24 Before moving on, it is perhaps worth setting out the entire passage in House v The King at 504-505 that deals with the discretion exercised on sentence appeals and includes the above quotation - "…The appeal is a full one on law and fact ( Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan (1931) 46 CLR 73 at 107; R. v. Hush; Ex parte Devanny (1932) 48 CLR 487 at 506). But the judgment complained of, namely, sentence to a term of imprisonment, depends upon the exercise of a judicial discretion by the court imposing it. The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. Unlike courts of criminal appeal, this court has not been given a special or particular power to review sentences imposed upon convicted persons. Its authority to do so belongs to it only in virtue of its general appellate power. But even with respect to the particular jurisdiction conferred on courts of criminal appeal, limitations upon the manner in which it will be exercised have been formulated. Lord Alverstone LCJ. said that it must appear that the judge imposing the sentence had proceeded upon wrong principles or given undue weight to some of the facts ( R. v. Sidlow (1908) 1 Cr App R 28 at 29 ). Lord Reading LCJ. said the court will not interfere because its members would have given a less sentence, but only if the sentence appealed from is manifestly wrong ( R. v. Wolff (1914) 10 Cr App R 107). Lord Hewart LCJ has said that the court only interferes on matters of principle and on the ground of substantial miscarriage of justice ( R. v. Dunbar (1928) 21 Cr. App R 19 at 2 0). See, further, Skinner v. The King (1913) 16 CLR 336, at 340, per Barton J and at 342, per Isaacs J and Whittaker v. The King (1928) 41 CLR 230 at 244-250." [Italics added.]

(I note, in passing, that the word "may" in the last sentence italicised above means, in the context, "is in a position to", distinguishing the situation where the court of appeal does not have the relevant materials and needs to remit the matter back to the lower court for determination in accordance with its judgment.) 25 It seems to me, with respect, that the quoted passage is concerned to demonstrate that it is not appropriate for a court of appeal to interfere with a sentence merely because it would have imposed a different sentence. I do not see how it can be interpreted as suggesting that, even in the face of demonstrated error of law (or fact) the court of appeal should not exercise its own discretion to sentence upon a correct basis just because the sentence passed, as it happens, is not outside the discretionary range. On the contrary, as the italicised passage makes clear, the court of appeal should independently sentence on the proper basis if it has the materials to do so. 26 In Ryan v The Queen (2001) 206 CLR 267, the High Court of Australia held that there was no discernible error in the approach of the sentencing judge to the accused's disclosure of unknown offences in the fixing of the sentence but that the sentencing judge had erred in point of sentencing principle when he denied the prisoner any leniency on account of his otherwise good character. The matter was remitted to this Court for sentencing in accordance with the reasons for judgment. Hayne J concluded his judgment as follows - "[186] In my opinion the appeal should be allowed. The case should be remitted to the Court of Criminal Appeal for that Court to deal with the applicant's appeal, taking into account all relevant factors, including the need for credit to be given for the applicant's good works, character and reputation, and any special disapprobation, distress, and stress arising out of his conviction whilst he was the holder of a prominent position, in the full awareness that it was his exploitation of that position that enabled him to commit the crimes that he did. I would so order." 27 In this Court, Mason P (with whom the other members of the Court agreed) said - "[24] The applicant submits that this Court is bound in the circumstances to proceed to sentence afresh. In principle, this is correct (see R v AB (No 2) [2000] NSWCCA 467). However, no specific error was identified, other than that upon which the successful appeal to the High Court turned. Nor has the applicant argued, let alone demonstrated that the sentences were manifestly excessive in their particulars or their totality. [25] I would go further and state that, apart from the error identified by the High Court, I see no reason to differ from the essence of the reasons given by the judge or this Court in the earlier appeal. Suffice it to say that the offences were very serious, involved significant breaches of trust, and were committed over an extended period of time upon vulnerable young persons for whom the applicant had a special responsibility by virtue of his priestly function. There is considerable evidence that the offences have had significant and lasting impact upon the young victims. … [31] In these circumstances, the issue and the only issue needing to be addressed is the extent to which allowance should be made having regard to the principles expounded by the High Court in relation to the applicant's character. The relevant passages in the majority judgments have already been set out. I consider it unhelpful to parse the separate judgments, although I acknowledge that there may be differences in emphasis as to the relative impact of good character upon this particular sentencing exercise. 28 His Honour then went on to consider all the objective and subjective circumstances of the case, stating, (at [37]) "In view of the principle that when a Court finds error on the part of the sentencing judge it should sentence afresh, I have undertaken the exercise required by that principle." This led to a variation in some sentences but not in others, where his Honour said that he would impose "like sentences". His Honour did not suggest that it was necessary also to consider whether the sentences under appeal were outside the appropriate discretionary range. 29 In R v Johnson [2005] NSWCCA 534 at [29] Hunt AJA (with whom the other members of the Court agreed) rejected a submission that this Court would never intervene unless it formed the view that the sentence imposed was "manifestly excessive" and said that this "is not the correct approach". His Honour went on to say (citing Astill and Oastler) -- "[34]…In cases where the error is apparent, the Court must first consider whether the sentence imposed is outside the appropriate range for the circumstances of the particular case unaffected by that error and, if it is, determine for itself what sentence is warranted in law in substitution for that sentence." 30 His Honour concluded - "[39] Considering all of the relevant material in the case for myself in the way I have outlined, I am not satisfied that the sentences imposed were outside the appropriate range for the circumstances of this case… I therefore would not quash the sentences and impose other sentences in substitution for them." 31 With respect, it seems to me that, since manifest excess or manifest leniency are simply other ways of describing sentences that are outside the appropriate (or discretionary) range, in the result, Hunt AJA applied a test that was in substance the same which he had earlier described as the wrong approach. Furthermore, this formulation is quite different from the approach adopted in the judgments to which I have referred in AB and Ryan, both in the High Court and in this Court, to which Hunt AJA did not refer. Nor did his Honour refer to R v Burke [2002] NSWCCA 353, where Sperling J (Giles JA and Levine J agreeing) said - "[82] For the purpose of determining the effect of the fresh evidence which has been admitted, it is necessary for me to state my understanding of the meaning and operation of s 6(3) of the Criminal Appeal Act 1912… [83] In my understanding, the section operates as follows in the ordinary case, that is, a case not involving fresh evidence. If the sentence is manifestly excessive, in the sense that it exceeds the proper exercise of sentencing discretion, the statutory formula is satisfied and the appellate court must quash the sentence and re-sentence the offender. Where the sentence is not manifestly excessive, the appellate court must quash the sentence and re-sentence the offender if - and only if - (a) the sentence imposed below is vitiated by error, and (b) the sentence is more severe than the appellate court would have imposed and, necessarily, would now impose on re-sentencing the offender. [84] The following passage from Simpson [2001] NSWCCA 534, at [79] is in point. 'Sentencing appeals in this Court frequently proceed as if the statutory trigger for the quashing of a sentence were expressed as follows: "If it is of the opinion that error has occurred in the sentencing process." That is not the statutory formulation. By s6(3) this Court must form a positive opinion that "some other sentence…is warranted in law and should have been passed". Unless such an opinion is formed, the essential pre-condition for the exercise of the power to "quash the sentence and pass such other sentence in substitution therefore" is not satisfied. As the judgments in Dinsdale [(2000) 202 CLR 321] to which I have referred indicate, the exercise of the power in s6(3) further requires the identification of error in the requisite sense.' [85] There is an efficiency built into s 6(3). In an appeal against the severity of sentence, there is no need to resolve a question of error which has been raised as a ground of appeal if re-sentencing by the appellate court would not result in a lesser sentence irrespective of that question. [86] At this point, I should introduce a qualification. What I have said concerning the operation of s 6(3) is, I believe, correct in the generality. However, in special circumstances, some refinement is necessary. For example, if there were error in the sentencing process below which cannot have made any material difference to the result, the appellate court would not intervene, even if it would have imposed a less severe sentence were it re-sentencing the applicant. That is, of course, unless the sentence below was manifestly excessive, in which case the sentence would be set aside on that account and the appellate court would then re-sentence the applicant. [87] That situation is covered if one reads "error" in what I have written as meaning - as I intend it to mean - error contributing to the result. [88] Another example of a special case would be an error which has a narrow and discrete effect on the result, such as, for example, an omission to make an order that the offender is to be released on the expiration of the non-parole period where the sentence is not more than three years. In such a case, the sentence is relevantly more severe than it should have been, in that the offender might be required to serve longer than the non-parole period contrary to law. The appeal would be allowed in such a case, and the error would be corrected by adding the necessary order without the need to re-sentence the applicant afresh, even if the appellate court would have imposed a different sentence were it re-sentencing the applicant afresh. Again, that would be the situation unless the sentence was manifestly excessive, in which case the sentence would be set aside on that ground and the applicant would be re-sentenced. [89] It follows that where fresh evidence has been admitted on an appeal against sentence, that does not mean that the sentence should necessarily be quashed and the offender re-sentenced by the appellate court, even if it is thought that the new material would or might have led the sentencing court to a different result. As Sully J said in W [2001] NSWCCA 172, at [26]: 'It is one thing to say that the primary sentencing Judge, had his Honour been aware of this material, ought to have taken into account, and might well have come on that basis to an end result more favourable to the applicant than the result reached. It is an entirely different thing to say that it necessarily follows in such a case that this Court will, without more, interfere with what in fact happened in the Court below.' [90] In an appeal against sentence based on fresh evidence, s 6(3) operates in the following way in the ordinary run of such cases. [91] If, taking into account the fresh evidence, the sentence is manifestly excessive - in the sense that the sentence, if passed on the evidence before the sentencing court together with the fresh evidence, would be in excess of the proper application of sentencing discretion - the appellate court must quash the sentence and re-sentence the offender. If, however, that is not the case, the appellate court must dismiss the appeal unless, on the evidence before the sentencing court together with the fresh evidence, the appellate court would impose a less severe sentence. In that event, the appellate court should allow the appeal but only if there is also the additional element of material error. [92] The fact - if it be the fact - that the fresh evidence may have resulted in a lesser sentence below, or even that it would have done so, does not mean that the appeal must be allowed and that the applicant must be re-sentenced by the appellate court. I repeat: if the appellate court is of the opinion that it would not impose a less severe sentence on the whole of the evidence, including the fresh evidence, the appeal must be dismissed unless the sentence is manifestly excessive in the sense in which I have used that expression." 32 To the same effect is the judgment of Simpson J in R v Price [2005] NSWCCA 285, where her Honour said (Johnson and Rothman JJ agreeing) - "[52] However, in Johnson , at [29], this Court rejected a submission that the consequence of the decision in Simpson is that the court will never intervene unless the sentence imposed at first instance is shown to have been manifestly excessive (or manifestly inadequate). [53] That leaves open the question of precisely what it is necessary for an applicant for leave to appeal against sentence to establish before this Court can form the s6(3) opinion. Something less than manifest excess or manifest inadequacy will suffice; but the demonstration of error in the sentencing process, is not, of itself, sufficient. [54] Given that, in almost every case, there is a range of sentences that would, without manifest excess or manifest inadequacy, meet the circumstances of the case, it will almost always be the case that: '... some other sentence is warranted in law ...' [55] It may be, that in order to form an opinion that: '... some other sentence ... should have been passed ...' the Court must form the opinion that the identified error was, or the identified errors were, such as to lead to the conclusion that they in fact infected or affected the end result, that is, the sentence selected." 33 In the result, after she identified several significant errors, Simpson J concluded: "I am more than satisfied that another sentence is warranted in law; and I am comfortably satisfied that another, less severe, sentence should have been passed". (I would respectfully point out that Simpson J did not advert to paragraph [34] (infra) of the judgment of Hunt AJA in Johnson which, as I have suggested, seems to contradict the passage referred to by Simpson J. However, this is by the way.) Rothman J added the following - "[70] Once this Court has determined that there is an error in the sentence and some other sentence is warranted in law, it is not necessary to show that the sentence on appeal is manifestly excessive (or, in the case of a Crown appeal, manifestly inadequate). Once error is found and the Court has formed the requisite opinion under s.6(3) of the Criminal Appeal Act , the discretion of the Court in the adjusting of sentence ought not be constrained. It is, in those circumstances, appropriate to exercise afresh the discretion involved in the sentencing process and to do so on the basis of material received during the course of the appeal." 34 Both Burke and Price were cited with approval by Johnson J in Douar v The Queen [2005] NSWCCA 455 (discussed below). With respect, what Sperling J said in Burke and Simpson and Rothman JJ said in Price as to the effect of s6(3) of the Act where error has been demonstrated is persuasive. It follows from that interpretation that, where error of the kind described by her Honour is demonstrated, the phrase "should have been passed" in s6(3) refers to the sentence that the Court of Criminal Appeal thinks to be appropriate and it is unnecessary to be concerned with the question whether, correcting for error, the sentence under appeal is outside the discretionary range. Stating the same proposition somewhat differently, when error is demonstrated in the exercise of the sentencing discretion affecting the result, then the Court must consider what sentence is warranted in law in the correct exercise of the sentencing discretion and (in an appeal against severity) impose that sentence as the sentence that should have been passed if it is less than the sentence appealed from. 35 Although the correctness of Johnson did not fall directly for consideration, it was discussed in Douar v The Queen [2005] NSWCCA 455 (the other members of the Court agreeing with Johnson J) where the applicant contended that if error was established with respect to sentence this Court should resentence him and have regard, in particular, to his assistance to the authorities since October 2004 in fixing penalty. The Crown submitted that, even if error were shown, the propriety of the sentence under appeal should be determined by reference only to the facts as they stood at the time of sentence, relying on the words "and should have been passed" as capable of reference only to the sentence imposed by the Court below. This issue was of particular importance because the applicant had given significant assistance to the authorities sometime after the sentence was imposed. Only after (in the circumstances of the case) an error was identified could facts that occurred after the sentence was passed be taken into account. I have mentioned that Johnson J cited Burke and Price with approval. His Honour also made the following general observation concerning the phrases "is warranted in law" and "should have been passed" - "[119] The strongest argument in favour of the narrow approach advanced by the Crown is the statutory construction argument based upon the use of the past-tense phrase "should have been passed" in s.6(3). Section 6(3) is curiously worded. The section mixes the present and past tenses. The section does not use consistently the past tense - "was warranted in law and should have been passed" nor the present tense - "is warranted in law and should be passed". A mixture of tenses is used. [120] There is an ambiguity in this aspect of the section. Where competing constructions are available, a construction that would promote the purpose or object underlying the provision ought be preferred: s.33 Interpretation Act 1987. The purpose of s.6(3) should be understood against the background of statements of principle concerning the function of a Court of Criminal Appeal on a sentence appeal in cases such as House v The King , AB v The Queen and Dinsdale v The Queen . [121] The ambiguity appears in a section providing for appeals in the criminal context. There is an established practice of this Court whereby the Court receives evidence of post-sentence conduct which will be taken into account, if patent error or manifest excess is demonstrated, for the purpose of determining whether a different sentence should be substituted for the purpose of s.6(3) of the Act. This is a powerful factor which supports the Applicant's submission concerning use of evidence of post-sentence conduct, and which promotes the clear, consistent and effective administration of the criminal appellate jurisdiction under s.6(3) of the Act." 36 Johnson J pointed out that it was unnecessary to decide whether the interpretation of s6(3) expounded in Johnson was correct as, assuming that it was correct, the sentence, at all events, was outside the appropriate discretionary range when the post-sentence facts were considered. However, his Honour's acceptance of the application of AB, Ryan, Burke and Price to the interpretation of s6(3) is inconsistent with the correctness of the interpretation articulated in Johnson. Furthermore, the reasoning in Douar must mean that the words "and should have been passed" do not exclusively refer to the sentence in the District Court but, in a fresh evidence case or where error in the exercise of the discretion is demonstrated, to the opinion of the Court of Criminal Appeal as to the correct sentence in light of the facts as they appear at the time of the appeal. 37 As a matter of general principle, it seems odd that deference should be given to the result in the court below where it was derived by a process demonstrating significant error, whether of fact or law. With respect to those of a different view, this seems to me to be illogical. 38 The question seems, therefore, to come down to whether Johnson should be followed in light of the inconsistent judgments in this Court and the other matters to which I have referred. With respect, I do not consider that Johnson is the last word on the matter; nor does it represent such a consensus that it should be followed unless reconsidered by a five judge Bench although, as mentioned by Johnson J in Douar, it may be timely for the question to be reconsidered by a Bench so constituted. Accordingly, I have approached these appeals upon the basis that the interpretation of s6(3) as expressed in Burke and Price is preferable. 39 One way or another, the necessary prerequisite for the substitution of another sentence by the Court of Criminal Appeal is the identification of error. Where that error is demonstrated by the manifest error in the result, then the Court sentences afresh and substitutes its view of what is the correct sentence. In an appeal by an offender, if an error in principle or fact demonstrates that the sentencing discretion has miscarried, then the Court must sentence afresh. If it determines that the appropriate sentence is a lesser sentence then it should substitute that sentence. Such a sentence, ex hypothesi, will be warranted in law. Accordingly, if the sentence under appeal is at all events at the bottom of the discretionary range, the appeal must be dismissed, as also where the Court is of the view that a lesser sentence is not appropriate. In an appeal by the Crown, the obverse position applies although other considerations might also result in dismissal.

The sentences under appeal 40 I now return to DB's appeal. It follows from what I have said above that, in my respectful view, as error has been identified in matters directly affecting the exercise of the primary judge's sentencing discretion, that discretion miscarried and the question for this Court is not whether the sentences are manifestly excessive. If that were the test, I would conclude that those imposed on counts two and three are not manifestly excessive. However, in my view, the question for this Court is, exercising its independent judgment, what are the appropriate sentences. If they are lesser sentences, it should substitute them for those under appeal. The sentences imposed for counts two and three are certainly not at the bottom of the range of appropriate sentences; accordingly, this Court must consider afresh the appropriate sentences on those counts and, if it considers that lesser sentences are warranted in law, quash the sentences under appeal and impose the sentences that it considers should be passed. 41 As I have mentioned, I respectfully agree with what Latham J has said about the objective circumstances of the offences and the applicant's subjective circumstances. Her Honour has (rightly) described the offences on the Form 1 as serious. Each of them was connected with one of the three substantive counts. Both the learned sentencing judge and Latham J have described the facts of each of the substantive offences in a global way that also covers the matters giving rise to the Form 1 offences. This strikes me, with respect, as an appropriate approach in the circumstances. However, it seems to me to follow that the Form 1 offences should not be counted again and, in this regard, I would respectfully not agree with the last sentence in para 83 of the judgment of Latham J. So far as the sentence on count three is concerned, I agree with Latham J. 42 I also would accept that, in all the circumstances, a utilitarian discount of the order of 20% is appropriate. 43 In respect of count one, taking into account all the matters, both adverse and mitigating, mentioned by Latham J, I would impose an overall sentence of five years. In my view, having regard to the youth of the applicant and the evident need for lengthy supervision, special circumstances warrant a substantial departure from the statutory calculus. Accordingly, I would impose a non-parole period of two years and six months commencing on 5 April 2004 and ending on 4 October 2006 and a balance of term of two years and six months ending on 4 April 2009. 44 Count two is more serious: it is the second such offence committed by the applicant; he played a leading role, producing a pistol and, later a knife; and struck the victim a number of times. I would impose an overall sentence of seven years, comprising a non-parole period of four years commencing on 5 April 2005 and ending on 4 April 2009 and a balance of term of three years ending on 4 April 2012. 45 Count three was committed by five offenders, including DB and DNN. It occurred eleven days after count two. It is significant that DNN, under whose influence DB was, was present. DNN carried a pistol and played the major role. However, DB carried a knife, which he brandished, and threatened the victims. I respectfully agree with Latham J that requirements of parity with the sentence on DNN mandate a reduction in DB's sentence for this offence and with the sentence proposed by her Honour of an overall sentence of five years comprising a non-parole period of two years and a balance of term of three years. Having regard to the other sentences I have proposed, in my view the sentence on count three should commence on 5 April 2008, with the non parole period ending on 4 April 2010 and the balance of term ending on 4 April 2013. 46 Accordingly, the overall effective sentence that I propose is nine years with a non-parole period of six years. The applicant would be eligible for parole on 5 April 2010.

The appeal of DNN 47 Again I respectfully agree with Latham J's judgment identifying the errors made by the learned sentencing judge. I also agree with her Honour's conclusion about the contended for disparity between DNN and Dung Dinh. For the reasons that I have already given, significant errors having been demonstrated, the real question for this Court is whether it would pass lesser sentences than those imposed in the District Court. 48 The facts of count one are set out by Latham J. This was a very serious crime. The first question is whether another lesser sentence is warranted in law. Considering the objective and subjective features of the case, as discussed by Latham J, I would not pass any lesser sentence than that imposed by the learned sentencing judge. In my view, the head sentence of ten years with a non-parole period of six years is the appropriate sentence and, accordingly, I agree with Latham J that the appeal in respect of this sentence should be dismissed. 49 So far as the head sentences for the other offences are concerned I would not, considering the sentences afresh, impose any sentences that were less than those passed by the learned sentencing judge. The non-parole periods have been adjusted to accord with the principle of totality. As Latham J observes, these terms are quite inadequate as a reflection of the gravity of the offences. However, there was no Crown appeal against inadequacy and the applicant did not make any concession in that regard. 50 In K (2000) 111 A Crim R 116, this Court reduced an aggregate sentence but, in doing so, increased the term (without explanation) of one of the component sentences. In refusing special leave to appeal to the High Court of Australia, the Court (Gleeson CJ and Callinan J) said - "The Court of Criminal Appeal in resentencing the applicant produced sentences which resulted in effect in an overall decrease of his sentence by one year. When a Court of Criminal Appeal resentences an offender it commonly happens, and it happened in the present case, that the restructured sentence or sentences is or are imposed with an eye to the ultimate practical outcome on the offender rather than with an eye to technical considerations concerning the relationship between particular offences.

The power exercised by the Court of Criminal Appeal is a discretionary power and this Court would only consider interfering with the judgment of the Court of Criminal Appeal if it appeared that there had been an error of principle on the part of the Court of Criminal Appeal or that irrelevant considerations had been taken into account or that there had been a failure to take into account relevant considerations or that otherwise there had been a miscarriage of justice.

The applicant relied upon three matters. The first concerned the starting date of the sentences imposed by the Court of Criminal Appeal. That was a matter that was completely within the discretion of the Court of Appeal and there is no reason to doubt that the court well understood the practical consequences of what it was doing when it exercised its wide discretionary power in that regard…" 51 I note that in Victoria it has been held in similar circumstances that a particular term in a scheme of sentences might be increased where the overall sentence is not increased providing the appellant is warned, even in the course of argument, that this might occur: R v Lomax [1998] 1 VR 551; R v Coukoulis [2003] VSCA 22. If I may say so, this seems to me to be a desirable practice, even if it might not be obligatory. However, I understand that McClellan CJ at CL and Latham J consider that notice is unnecessary and I feel I should defer to their Honour's views on the matter. 52 As I see it, the question really is whether the mode of accumulation yields an overall sentence that appropriately reflects the totality of the applicant's criminality. I agree with Latham J's view as to the appropriate aggregation and the orders that her Honour proposes in that regard.

53 LATHAM J: The applicants, DB and DNN (DN), seek leave to appeal against sentences imposed upon them on 5 August 2005 in respect of a number of offences of aggravated armed robbery committed between August and October 2003 upon various computer businesses in Western Sydney. The offences each carried a maximum penalty of 25 years imprisonment. 54 Both applicants were part of a wider group of offenders who committed six aggravated armed robberies in all. DB was 16 years old at the time of the offences. He was living in the home of DN, his brother-in-law, who was then 27 years of age. DB was sentenced for his role in three aggravated armed robberies, whilst DN was sentenced for his role in four aggravated armed robberies, only one of which (Count 3 on each indictment, the Burwood Heights offence) was common to both DN and DB. Eleven offences on a Form One document were taken into account on the sentence imposed in respect of the second count on the indictment to which DB pleaded guilty. Nineteen offences on a Form One document were taken into account on the sentence imposed in respect of the first count on the indictment to which DN pleaded guilty. DB received an aggregate sentence of 12 years and 7 months with an aggregate NPP of 8 years. DN received an aggregate sentence of 16 years with an aggregate NPP of 10 years. The sentences were structured as follows :-

Count 1 : NPP 4 years to date from 5 April 2004, balance of term 2 years, expiring 4 April 2010. Count 2 : NPP 6 years to date from 5 April 2005, balance of term 2 years, expiring 4 April 2013. Count 3 : NPP 1 year to date from 5 April 2011, balance of term 4 years and 7 months, expiring 4 November 2016. DN

Count 1 : NPP 6 years to date from 31 October 2003, balance of term 4 years, expiring 30 October 2013. Count 2 : NPP 2 years to date from 31 October 2009, balance of term 4 years, expiring 30 October 2015. Count 3 : NPP 1 year to date from 31 October 2011, balance of term 4 years, expiring 30 October 2016. Count 4 : NPP1 year to date from 31 October 2012, balance of term 6 years, expiring 30 October 2019. 55 All of the offences followed a fairly consistent method of execution. One or more of the offenders would enter a computer store close to closing time, profess interest in the purchase of a computer or a piece of equipment, leave and return a short time later in the company of other offenders, armed with weapons (a pistol and a knife). The owners of the store and, on some occasions, employees, were tied up and threatened, on some occasions struck about the head and body, and robbed of their personal possessions and cash, in addition to a large and valuable quantity of computer equipment. The equipment was taken to DN's home, after which some of it was taken to a receiver of stolen goods. The Form One offences included additional armed robbery offences and offences related to the detention of the victims and the theft of motor vehicles. 56 It will be necessary later in these reasons to examine the relative roles played by each of the applicants in the commission of the Burwood Heights offence, according to the respective Agreed Statement of Facts tendered against each of them. Those statements were the result of plea negotiations between the Crown and the applicant's representatives, which appeared to have commenced close to the day fixed for trial when it became clear that a co-offender, Dung Dinh Nguyen (Dung Dinh), who pleaded guilty and was sentenced on 14 October 2004 (receiving a considerable discount for his offer of assistance), was prepared to give evidence in the Crown case against the applicants. 57 The pleas of guilty were entered by both applicants on 20 October 2004. However, the agreed facts were not "settled" and tendered by the Crown in each case until 18 March 2005. As I have already noted, the sentencing proceedings in respect of each applicant were conducted together over a considerable period of time and involved separate negotiations on behalf of each applicant with the Crown's representative, as one would expect. The outcome presented the sentencing judge with a difficult task when determining the question of parity as between DB and DN with respect to the Burwood Heights offence, leaving to one side the special considerations applying to DB pursuant to s 6 of the Children (Criminal Proceedings) Act 1987. DB's Grounds of Appeal

Failure to Have Regard to s 6 Children (Criminal Proceedings) Act 1987 58 The applicant DB complains that the sentencing judge failed to take account of the principles mandated by section 6 of the Children (Criminal Proceedings) Act, thereby committing a fundamental error in the sentencing process : see R v GDP (1991) 53 A Crim R 112. It is unnecessary to deal extensively with this ground in the light of the concession fairly made by the Crown that his Honour did not articulate the relevant sentencing principles, beyond references to the fact that DB was "a little over 16 at the time of these offences", that the offences could not "be regarded as a juvenile escapade gone wrong", and that despite the applicant's juvenile criminal history, "due allowance" was made for his rehabilitation. It is appropriate to have regard to the full context of these remarks. 59 His Honour recognised that it was "quite likely … that he was influenced to become involved in these matters by his brother-in-law [DN]." His Honour went on to say that, despite the applicant's age, "he himself took an active part in behaving in a brutal fashion towards the victims and that he was just as guilty as anyone else for the way in which they were struck, threatened and ill-treated. This cannot be regarded as a juvenile escapade gone wrong. He took part in a carefully planned series of raids which aimed to secure large amounts of valuable equipment for the purpose of resale. In his case the fact that he appears to have a problem with drugs may have had some part in it. He may have needed money for that. The fact that he was a brother-in-law to [DN] and lived with him may have had something to do with it. …… He may have been young, but as far as I can see he was a willing participant in a very serious venture. Considerable violence was used. A large amount of property was involved and he has a previous criminal record. The significance of that previous criminal record, although a juvenile one, is that it casts some doubt on the extent to which rehabilitation should be regarded as a significant factor. Nevertheless I am making due allowance for rehabilitation in the sentence. 60 His Honour appears to recognise the probability that the applicant was influenced by an adult co-offender, yet goes on to discount that factor on the basis that the applicant was a willing participant. The applicant's prospects of rehabilitation are doubtful, according to his Honour, yet "due allowance" is made. These remarks fall short of a proper consideration of the principles to which a court must have regard when exercising criminal jurisdiction with respect to children, in particular, that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance (s 6(b)), and that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind (s 6(e)). In fact, in relation to the Burwood Heights offence, the applicant received a sentence greater than that imposed upon DN. 61 As was noted by Hulme J. in R v DM [2005] NSWCCA 181, this Court in R v Hearne (2001) 124 A Crim R 451 ; [2001] NSWCCA 37 pointed out that the principle underpinning the practice of imposing lesser sentences on youthful offenders than those imposed on adults who commit similar crimes lies in the recognition of the immaturity of youth. The fact that the applicant may have been a willing participant does not dispose of the need to have regard to the extent to which his relative immaturity made him vulnerable to the influence of an older family member, particularly one upon whom he was dependent for food and shelter. 62 Similarly, the general principle that greater weight may be given to a juvenile's prospects of rehabilitation, at the expense of general deterrence, was not discussed in the course of the remarks on sentence. Thus, it remains unclear whether his Honour accepted the principle in making "due allowance" for rehabilitation, or whether his Honour determined that the general principle did not apply in the particular circumstances of the case. 63 This ground has been made good. Taking Irrelevant Matters into Account 64 This ground complains of an inappropriate comparison drawn by the Judge between the applicant, DN and Dung Dinh. Whilst the ground is expressed in terms of the Judge erroneously having regard to the more extensive criminality of these two named offenders, it is in reality a complaint about the Judge's treatment of the applicant as a relevant co-offender for the purposes of parity, when (it is submitted) no, or very little, parity existed. It is submitted that his Honour evinced his approach to the assessment of the applicant's criminality, relative to that of DN and Dung Dinh, by the remark, "he should receive a lesser sentence than [DN] and Dung Dinh Nguyen, but it should nevertheless be a significant one." 65 In order to understand the genesis of this remark, it is appropriate to refer to other aspects of the proceedings, conducted jointly against DB and DN. As noted above, a period of some five months elapsed between the pleas of guilty and the tender of the agreed statement of facts in respect of each of the applicants on 18 March 2005. When the matter next came before the court on 6 May 2005, the transcript records a lengthy exchange between his Honour and counsel appearing on behalf of DN. His Honour expressed his concern that the statement of facts relied upon by the Crown in the case against DN appeared to be at odds with the account given by Dung Dinh, insofar as the latter had nominated DN as the "ringleader". 66 Further, his Honour expressed dissatisfaction with the apparent contradictions between the statement of facts outlining the role undertaken by DN in the various offences and the statement of facts outlining the role undertaken by DB in the offences with which he had been charged. At one point in this discussion, his Honour asked the Crown's representative "well then, comparing him [DN] and [DB], who is more serious, him or DB?" The Crown appropriately responds that DB stood to be sentenced for three offences, whereas DN stood to be sentenced for four offences. 67 Shortly thereafter, his Honour says :- Well I must say I cannot understand the significance of somebody having three, and somebody having four. On the facts that I've read, the person who was most threatening of all in this series of escapades was the current offender [DN]. He was the one with the gun, although as it turned out it didn't have any ability to fire. He was the one that was threatening people and hitting people and doing things to people. ……………………………………………………………………….. I have indicated my concerns about these facts and the very real situation, is one of the reasons you've tried to get one judge to deal with everybody in this situation, involved in the situation, is so that you don't get widely disparate sentences and that's obviously a sensible thing but if different versions are put up as a basis for sentencing people it is a very difficult thing to work out how you give sentences that aren't disparate or could be the situation. ……………………………………………………………………….. Now I want you to understand I have not come to any firm conclusion about these matters, otherwise I would be sentencing today. But clearly you have got to have the opportunity to deal with whether particular matters are aggravating or not. Now you should understand you may -- have you a sentence in the first matter Dung Dinh Nguyen ? Counsel : I've seen that your Honour, yes. His Honour : And you will see that I said that for his part in all this it should be something like a 20 year starting point and that was reduced for all sorts of various facts. Now one of the factors I think I will be raising with you is what should the starting point be, why shouldn't it be 20 years or something close to it , should it be more, should it be less. If there's something about his involvement or the other involvements that would make it less, is that a wrong starting figure anyway. (T/S pp 5-11) 68 The matter next came before his Honour on 13 May 2005. On that day his Honour handed down a document titled "Consolidated Facts re Dung Dinh Nguyen" and his Honour's remarks on sentencing that offender. At that time, his Honour said "I am not going to discuss them today. The Crown ought particularly take up my concerns I think because a lot of the problems I see arise from the Crown's position." It should be noted that Dung Dinh was sentenced in respect of 12 charges and 13 further offences on a Form One, arising out of all six robberies. The agreed facts tendered against him implicated the applicant and DN in all six armed robberies. 69 The matter was then stood over to 17 June 2005. On that day, the Crown's representative directed his Honour's attention to the Crown's written submissions, a copy of which were made available to this Court. For present purposes, the Crown submissions addressed the so-called parity issue thus :- Should your Honour make a specific finding that in the sentencing proceedings relating to [DN], for example, that he was the ringleader in each of the four armed robberies in which he was involved, the Crown submits that this would not necessarily mean that the head sentence imposed upon him would be longer than that imposed in the sentence of Dung Dinh Nguyen. The reason for this is that each co-offender is being dealt with for some, but not all, of the multiple offences. 70 The Crown's submissions then referred to R v Hoole (unreported) NSWCCA 17 March 1989 and R v Zabul [2001] NSWCCA 455. Both of these decisions rejected appeals against sentence on the basis of apparent disparity, the former in circumstances where a number of offenders were co-offenders in relation to some, but not all, of a series of offences. 71 In amplifying the written submissions, the Crown confirmed that it was relying only upon the agreed statement of facts in respect of each applicant, notwithstanding the fact that Dung Dinh had previously been sentenced for his part in all six aggravated armed robberies and had provided a statement indicating the evidence he was prepared to give against each applicant. Furthermore, the Crown's written submissions acknowledged that his Honour could not proceed to sentence either of the applicants by reference to the statement of facts tendered in the proceedings against Dung Dinh because that statement was not before the court in the instant proceedings. 72 Ultimately His Honour was persuaded that the Crown's approach was justified :- All I can do is take the view, I think, that the Crown has presented to me the case which to the fullest extent to which it can prove, and therefore I must sentence on that basis. ….. Now what it means is, as it seems to me when we come to page 4, [DN] is not charged with a couple of matters that [DB] is charged with, but his role is clearly described. I can describe, it seems to me, what [DN] did in [DB's] case, but I cannot deal with [DN] as if he did those things because he has not been charged with them. ….. It accords with common sense that I say it's [DN] because he is the only other man it could be, but he is not charged with those matters so he can't be convicted of those matters. …. If people are dealt with for different crimes on different facts, sometimes parity's got very little to do with it. ……………………………………………………………….. And indeed you see the submissions of the Crown have settled a problem that I had and it is this, that Dung Dinh Nguyen was charged with a very large number of offences, many more than these people were. And I couldn't follow why that was, why he was charged with these and these other people weren't, and he said that your client was the ringleader. If he was, where are all these other offences, why is he not there with all these other offences too if he's the ringleader? So the having as the ringleader for half of it wouldn't seem to make any sense, and the Crown's submissions I think have cleared up my mind on that. So I will sentence them on the basis that they are both in reality equally culpable in respect of those matters to which they're jointly charged. But they're not jointly charged totally with the same offences. For those in which they're separately charged, well they're separately liable. (T/S pp 11-14)

73 The foregoing demonstrates that, despite earlier misgivings, his Honour intended to approach the assessment of the applicant's criminality without regard to the material placed before the court on the sentencing of Dung Dinh. It appears that his Honour accepted that parity was not a live issue. However, an examination of the remarks on sentence in relation to both the applicant and DN, in the light of his Honour's adoption of a nominal starting point of 20 years imprisonment in the case of DN and Dung Dinh, establishes the validity of the applicant's complaint in this Court. 74 When sentencing DN, his Honour found that he could draw "no real distinction between [him] and Dung Dinh Nguyen when [considering] criminality." His Honour went on to say, "having regard to the disclosed role of [DN], his activities also would require as a starting point a twenty year sentence." His Honour then applied a 20% discount for the pleas of guilty to that starting point, arriving at an aggregate sentence of 16 years. The error in that approach is explored further below. 75 In the applicant's case, his Honour determined that he should receive a lesser sentence than DN and Dung Dinh, applied a 20% discount for the pleas of guilty and arrived at an aggregate sentence of 12 years, indicating a starting point of 15 years. That approach is disclosed by these words, namely, "there will be an overall sentence of 12 years with a non parole period of 8 years. That makes some allowance for special circumstances and takes into account a discount of 20 percent from what the starting point should have been had there been no plea of guilty." (ROS 11) 76 Leaving to one side the application of a discount to an aggregate sentence in contravention of the principles established by Pearce v The Queen (1998) 194 CLR 610, his Honour in my view erred in assessing the applicant's criminality relative to that of Dung Dinh and DN, neither of whom stood to be sentenced with respect to the same offences as the applicant (but for the Burwood Heights offence), nor for the same number of offences on indictment or on the Form One. The applicant was not a relevant co-offender to whom parity principles applied, even if a determination had been made that the nature of the offences required the applicant be sentenced as an adult. 77 The Crown did not contend that there was a hierarchy of offenders that should find expression in the sentences to be imposed, quite the contrary. In addition, the error was compounded by a further erroneous finding in relation to DN, that is, that his objective criminality was equal to that of Dung Dinh (see below). Was the Sentence Manifestly Excessive ? 78 The arguments in support of this ground follow from the failure to accord greater weight to the applicant's rehabilitation than to considerations of punishment and general deterrence, and from the failure to distinguish the applicant's criminality from that of his brother-in-law and Dung Dinh. It should be stated at the outset that the sentence imposed in respect of the Burwood Heights offence appears anomalous for the reasons given on grounds one and two of this appeal. I turn to a consideration of the applicant's role in each of the offences and the subjective case advanced on his behalf. 79 In respect of Count one on the indictment, the applicant was one of four offenders who entered a computer outlet in Lidcombe at about 6 p.m. on 1 September 2003. The agreed facts stated that an unnamed offender was in possession of a pistol. The owner of the business was threatened with the pistol, then bound and gagged. He was struck by one of the offenders and robbed of his wallet, cash, credit cards, a mobile phone and car keys. An employee of the business was also threatened by an offender in possession of a pistol. That employee was also bound and gagged and robbed of his mobile phone, keys and wallet. A quantity of computer equipment valued at approximately $50,000 was taken from the store and loaded into the delivery van. The delivery van was later retrieved and the applicant's fingerprints were found within it. 80 At about 5:30 p.m. on 9 October 2003, the applicant and a co-offender entered a computer store at Petersham (Count 2). After making an enquiry, both persons left the store, returning approximately 10 minutes later. The applicant produced a pistol, pointed it at the owner's head and told him not to move. The applicant struck the victim in the head with the butt of the pistol whilst the other offender began punching him. Both offenders dragged the store-owner from the desk into a store area where he was again threatened with the pistol. When the owner failed to co-operate both offenders struck him. The applicant searched the victim and removed his wallet, a quantity of cash and the Nokia mobile phone. The applicant went into the kitchen and returned with a knife with which he threatened the victim. The applicant was seen to take a Sony VCR, Sony video camera and telescope. A quantity of other computer items were stolen, along with the victim's motor vehicle. In mid-January 2004, the victim identified the applicant as the offender who was armed with a pistol and later the knife. 81 At about 6:30 p.m. on 20 October 2003 five offenders, including the applicant and DN, entered a computer outlet at Burwood Heights (Count 3). The applicant entered the premises carrying a knife, in the company of an offender who was carrying a pistol. The agreed facts in the applicant's case nominated DN as the offender who pointed the pistol at the victim's head and told him to lie on the ground. The victim and his wife were bound and gagged and robbed of a quantity of cash, wallet, mobile phone and car keys. At this point, the applicant brandished the knife at both victims and threatened the store owner in these terms, "sit down. Do you want to be dead?" The applicant took part in loading a quantity of computer items into a truck. The offenders were interrupted by the arrival of a friend of the victim, who attempted to leave but was accosted by DN. The latter pointed a pistol at the visitor and said "do you want to die or go inside?" The visitor was escorted to the kitchen where he was told to sit on the ground. DN kicked him to the right side of the head and then bound and gagged him. DN searched the visitor and removed his wallet, a quantity of cash, a mobile phone and a set of keys. DN then threatened the store owner by placing his pistol against the side of the victim's head, cocking it and saying "do you want to die?". The store owner was struck with the pistol a short time later by an unnamed offender. As the offenders were leaving, DN returned to the store room and said to the victims "don't call the police. I know you have a daughter and I know where you live. If you call the police, your daughter will die." The value of the equipment stolen on this occasion was approximately $50,000. 82 Whilst it might be said that the applicant's role in respect of Count one on the indictment did not involve the infliction of violence or threats by him, the same cannot be said of the applicant's role in respect of Counts two and three. The offence constituted by Count two was particularly serious, given the fact that the applicant acted together with one other offender and was directly responsible for a significant amount of violence in the course of the commission of the offence. Similarly, the applicant directly threatened the victims of the Burwood Heights offence with a knife. 83 Notwithstanding the applicant's youth, these were objectively very grave offences in which the applicant took an active and prominent role. The sentence in respect of Count two must also reflect the considerable number of serious offences, the subject of the Form One. 84 The applicant had acquired an unenviable criminal history since the age of 15. In April 2002, the applicant was sentenced to concurrent control orders in respect of two counts of aggravated assault with intent to rob. In June 2003, the applicant was placed on 12 months probation and sentenced to a community service order in relation to a number of motor vehicle offences. The applicant was therefore under the supervision of the Department of Juvenile Justice at the time of the commission of these offences. In January 2004, the applicant was sentenced to a further control order of 12 months with a non parole period of six months in relation to a number of serious motor vehicle offences. 85 The applicant therefore stood to be sentenced as a young offender with a relatively serious criminal history who had breached conditional liberty and entered late pleas of guilty. In my view, the objective gravity of each offence justified the imposition of a head sentence above the range identified in R v Henry & Ors. [1999] NSWCCA 111 ; 46 NSWLR 346. 86 The applicant's subjective case was presented through the applicant's evidence, the Juvenile Justice Report and a psychologist's report. The applicant left school in Year 9 but failed to find employment. The applicant commenced using cannabis, ecstasy and amphetamines at ages 11 and 12. He resided with his parents and sisters, except for the two years between 2002 and 2003, when his parents travelled to Vietnam and left him in the care of his sister and her husband, DN. The bulk of the applicant's offending occurred during this period, although there were appearances at the Children's Court in 2001. 87 The Juvenile Justice Report indicated that the applicant's response to supervision was poor. In summary, the Juvenile Justice Report assessed the applicant as "still relatively immature, vulnerable in that he had associated with negative friends who have had either past or present involvement in the criminal justice system" and lacking "adequate family support and guidance." 88 The psychologist's report indicated that the applicant was the product of "emotional neglect, physical abuse and isolation." The applicant's significant behavioural problems, drug habit and antisocial lifestyle were said to be a product of his upbringing. His offending was considered by the psychologist to be "the result of undue influence and peer pressure." 89 The material before his Honour was therefore capable of ameliorating the application of the guideline in Henry and bringing the applicant within the general principles applicable to the sentencing of juvenile offenders. However, those general principles ought to be moderated in the light of the objective gravity of the applicant's offences, particularly those involving the actual infliction of violence by the applicant : R v Pham & Ly (1991) 55 A Crim R 128 ; R v TJP [1999] NSWCCA 408 ; R v Stanley [2003] NSWCCA 233. 90 For these reasons, I do not regard the sentences imposed by his Honour in respect of Counts one and two on the indictment as manifestly excessive. His Honour was required to reflect a significant number of serious offences on the Form One when sentencing the applicant in respect of Count two. Whilst these sentences are stern, I do not regard them as beyond the legitimate sentencing range available to his Honour. The sentence imposed in respect of Count three requires separate consideration. 91 In the agreed statement of facts tendered against DN, the Burwood Heights offence was described in starkly different terms. On entry to the premises, DB was carrying the pistol and another unidentified offender was carrying the knife. An unidentified offender (not DN) approached the store owner, pointed the pistol at his head and told him to lie on the ground. The offender who pointed the knife at both the victims and told them to "sit down, do you want to be dead?" was not identified. 92 DB was, however, identified as the offender who questioned the victims as to the location of the money, untied the victim's feet and directed her to the front of the store where DB was observed to remove approximately $500 from a cabinet. DB is also identified as the offender who enters the storeroom to question the victims at a time when, according to the statement of facts tendered against DB, he was outside loading a truck with stolen items. An unidentified offender is said to have pointed the pistol at the victim's face at a time when DN said "do you want to die or go inside?" Similarly, an unidentified offender is said to have kicked the victim twice to the right side of the head and bound and gagged the victim. An unidentified offender entered the store room and asked the victim where the laptops were kept. That same offender (not DN) said "do you want to die?" and placed his pistol against the side of the victim's head and cocked it. DB is identified as the offender who strikes the victim with the pistol. As the offenders were leaving the premises, an unidentified offender returns to the store room to threaten the victims in English and Mandarin in the terms which were attributed to DN in the agreed statement of facts tendered against DB. 93 In summary, the Judge was called upon to sentence the applicant on the basis that he was only in possession of a knife, with which he threatened the victim on one occasion in the course of the robbery, and that his role was otherwise restricted to loading computer items into the truck. DN was depicted as a much more aggressive offender who directly threatened the victims with a pistol, inflicted corporal violence upon them, and explicitly threatened the victims shortly prior to leaving the premises. On the basis of this statement of facts, the applicant's criminality ought to have been reflected by a lesser sentence than that imposed upon DN. 94 By way of contrast, the statement of facts tendered in the case against DN disclaimed any actual violence on his part, disclaimed the possession of a pistol or knife and disclaimed the threat towards the victim's daughter. According to this "version" of the facts, DB plays a much more substantial role, both in terms of the theft of money from the premises and the infliction of actual violence upon the victim with the pistol. 95 This offence was the only offence, of those for which the applicant and DN stood to be sentenced, to which the principle of parity applied, yet his Honour was confronted with two largely irreconcilable accounts, each of which sought to portray the respective applicants in the most favourable light. It does not surprise me that his Honour expressed some frustration in the circumstances. His Honour was not of course bound by the respective agreed statements of facts : GAS v The Queen [2004] 217 CLR 198. 96 However, in the course of his remarks on sentence in each case, his Honour largely recites the agreed statement of facts and makes no attempt to resolve the patent inconsistencies. Accepting therefore that his Honour proceeded to sentence the applicant on that basis, there would appear to be no justification for a sentence in respect of Count three in excess of that imposed upon DN. 97 Turning to the question of totality, his Honour accumulated by one year the sentence in respect of Count two upon the sentence imposed in respect of Count one. However, the sentence imposed in respect of Count three was accumulated wholly upon the non parole period of the sentence imposed on Count two. All three offences were committed within the month of October 2003. 98 Some accumulation was required in order to adequately reflect the totality of the applicant's criminality, but in my view the aggregate sentence is in all the circumstances manifestly excessive. It cannot be allowed to stand in the face of the identified error of which ground two complains. Re-Sentencing 99 It is not necessary to consider whether a lesser sentence on Count three is warranted in law and should have been passed. That issue only arises where a ground of manifest excess has not been made out, but specific errors in the exercise of the sentencing discretion have been identified, and the Court is required to determine whether a lesser sentence should be imposed. Here, that question, in so far as Count three and the aggregate sentence are concerned, has already been answered in the affirmative. 100 The applicant did not tender any affidavit evidence relating to his progress since sentence was imposed. Therefore, the question whether lesser sentences in respect of Counts one and/or two are warranted in law and should have been passed must be determined on the basis of the material before the Judge at first instance. Having regard to the objective and subjective matters I have canvassed above, I am of the view that no lesser head sentence is warranted in law for each of those offences. However, I would impose a non parole period of 3 years in respect of Count one, and a non parole period of 4 years in respect of Count two, in order to reflect the special circumstances arising out of the applicant's youth and his need for extensive supervision. 101 I turn then to a consideration of the totality of the applicant's criminality. In my view, an aggregate sentence of 10 years, with a non-parole period of 6 years is the least sentence capable of reflecting the applicant's extensive criminality. I would grant leave to appeal, allow the appeal, quash the sentences imposed below and impose the following sentences in lieu :-

Count one : non parole period of 3 years to date from 5 April 2004, expiring 4 April 2007, with a balance of term of 3 years to date from 5 April 2007, expiring 4 April 2010.

Count two : non parole period of 4 years to date from 5 April 2006, expiring 4 April 2010, with a balance of term of 4 years to date from 5 April 2010, expiring 4 April 2014. The offences on the Form One are taken into account in determining the sentence on this Count.

Count three : non parole period of 2 years to date from 5 April 2008, expiring 4 April 2010, with a balance of term of 3 years to date from 5 April 2010, expiring 4 April 2013. The applicant is eligible for release to parole on 5 April 2010. DN's Grounds of Appeal Sentencing the Applicant as the "Ringleader" 102 In the course of the remarks on sentencing this applicant, his Honour said:- In my opinion, the facts to which I have referred establish that the principal offender in this group was the current offender, DN Nguyen. It is clear that he was the directing party. People went back to his premises, he decided what should stay and what should go, and it is reasonable to suppose that as the person directing the operation, he had a large part in planning it. All of them bear equal responsibility for what occurred but he should be viewed as somebody who is to be regarded as a man who thinks, plans and acts, who does not hesitate to cause fear, and who did what he did, together with others, for the purpose of getting large sums of money.

103 As I have noted above, his Honour initially took the view that this applicant was the "ringleader" because the co-offender Dung Dinh had nominated him as such, albeit the latter had pleaded guilty to 12 similar offences including 13 offences on a Form One. However, during the proceedings on 17 June 2005, there was a lengthy exchange between his Honour and counsel for the applicant wherein his Honour said, "so I accept what you're saying. I'm not going to make a finding he's a ringleader." The Crown's representative also submitted that his Honour should sentence the applicant solely on the basis of an agreed statement of facts that did not portray the applicant in that role. It is clear that his Honour departed from that understanding. 104 It is not necessary to canvass this ground in any further detail in the light of the Crown's concession in this Court that it was not open to his Honour to sentence the applicant on the basis that he was the "principal offender" and the "directing party". Alleged Disparity with Co-offender 105 The applicant submits that, when one has regard to the objective criminality of Dung Dinh Nguyen and the sentence imposed upon him, relative to the sentence imposed upon the applicant for fewer offences, a disparity exists such as to give rise to a justifiable sense of grievance on the applicant's part. 106 It is not necessary to refer at length to the Judge's remarks or to repeat the observations at par 73 above. It is sufficient to note that Dung Dinh committed two aggravated armed robberies with which the applicant was not charged and that the twelve counts on the indictment to which he pleaded guilty also included detention charges (it appears that there were six aggravated armed robbery charges and six detention charges arising out of the commission of the robberies). The respective Form One offences were also of a similar nature. 107 Dung Dinh received a 60% discount for his early pleas of guilty and his offer of assistance. In my view, that discount is generous, although I would not regard it as outside the Judge's discretion, given Dung Dinh's voluntary presentation to police and the extensive information he provided to them, before police were aware of the identity of any of the offenders. There was a sound basis for inferring that Dung Dinh's presence in the cells, on the day the matters were listed for trial against the applicants, was a powerful factor in the decision to enter pleas of guilty. 108 Unfortunately, his Honour adopted the same approach to the application of that discount as I have noted above, namely it was applied to the aggregate nominal 20 year sentence, resulting in an aggregate sentence of 8 years, with an aggregate non parole period of 4 years and 9 months. His Honour then imposed sentences for the individual offences to meet this pre-determined outcome, in contravention of the principles outlined in Pearce. There was no Crown appeal against these sentences, but it must be said that the outcome for Dung Dinh was, if not unreasonably disproportionate to the nature and circumstances of so many serious offences, very close to it : s 23(2) Crimes (Sentencing Procedure) Act 1999.

109 Against this background, it is not surprising that the applicant's counsel sought to invoke parity principles, but in my view they have no application to the circumstances of this case. There is no meaningful comparison that can be made between the applicant's offending and Dung Dinh's offending. On any view, Dung Dinh's objective criminality outweighed the applicant's. The applicant's real complaint is that, by adopting a nominal starting point of a 20 year aggregate head sentence for both Dung Dinh and the applicant, his Honour sentenced the applicant and Dung Dinh as though parity did apply, when plainly it did not.

110 To the extent that "disparity" has arisen, it flows from the fundamentally flawed proposition that their objective criminality was equal. For these reasons I have come to the conclusion that a lesser aggregate sentence than was imposed is warranted in law. The question remains whether lesser individual sentences ought to be imposed. The Offences Committed by DN 111 The applicant's subjective circumstances were favourable. He was 28 years of age at sentence and had been married for three years with a new-born daughter. He was described as intelligent and articulate with good English skills, as well as fluency in other languages including his native tongue (Vietnamese). He had been employed in a computer firm as a technician in 1996-7 and had been employed as a data entry clerk for five years after that. He claimed to have a gambling problem, although he had voluntarily given up employment to look after his pregnant wife. His computer skills were crucial to the theft of the most valuable and saleable items during the commission of the offences. 112 Count one on the indictment was a robbery committed on a computer store in South Strathfield at approximately 8 p.m. on Friday 15 August 2003. The applicant drove with Dung Dinh and two other persons to the premises. One offender entered the store, spoke to the owner, examined a modem for sale and left the store. Approximately 5 minutes later three offenders entered the store while the fourth remained outside. 113 Over the course of this offence, the victim was threatened with a pistol, bound around the ankles and hands by duct tape, which was also placed over the victim's eyes, and struck a number of times to the head. The applicant was not named as the perpetrator of any of these assaults. However, it was the applicant who asked for the store's laptops and CPUs. Demands were also made by an offender for the victim's credit cards and PIN numbers. When no satisfactory response to these demands was forthcoming, another offender produced a knife and cut the victim twice across his forehead. The offenders carried various pieces of computer equipment out of the store and into a waiting vehicle at the direction of the applicant. 114 On returning to the applicant's home, the applicant decided which pieces of equipment he wanted. The other offenders drove to a house in Bankstown where the remainder of the equipment was sold to a known receiver of stolen goods. The victim of this offence was able to free himself. Computer equipment to the value of approximately $80,000 was stolen and $2000 cash from the day's takings together with the victim's MasterCard and mobile phone had also been stolen. 115 Having regard to the objectively serious nature of this offence, the role of the applicant in selecting the computer equipment, and the 19 offences taken into account on the Form One, I am not persuaded that a lesser sentence than that imposed, namely a head sentence of 10 years, with a 6 year non parole period, is called for. It should be remembered that the Form One contained, amongst other offences, six additional armed robbery offences. There can be no doubt it is a severe sentence, but adherence to the Henry guideline would suggest a sentence in excess of 5 years for the count on indictment, unaffected by the need to impose an additional penalty for a large number of very serious offences on the Form One. 116 The applicant was not a young offender in the Henry sense. His criminal history was not extensive, but he had been convicted of three counts of Receiving in October 2000 and one count of Goods in Custody in May 2003, in respect of which he was fined. The discount of 20% for the plea of guilty appears to me to be generous in the circumstances, although I accept that the method of its application to the aggregate sentence may not have given the applicant the full measure of that benefit, in any event. There was very little in the way of evidence of remorse over and above statements to that effect in the Pre Sentence Report and in a letter written to the court by the applicant. 117 The second count on the indictment was also committed upon a computer store that had been visited by the applicant and Dung Dinh earlier in the day. Two offenders, including the applicant, entered the store. The applicant assaulted the store owner and held a pistol to the side of his head whilst the other offender assaulted the owner's wife with a large knife or short sword. Both victims were taken to the rear of the store where their hands were bound and personal items were taken from them. The applicant made a call to a third offender who entered the store armed with a pistol in the company of Dung Dinh. 118 A store technician and, later, a delivery driver, arrived and were also robbed of their cash and credit cards. All four victims had their hands tied behind their backs. The offenders removed a large quantity of computer equipment (worth $35,000) from the store and took it to the applicant's house where it was divided amongst them. 119 The head sentence of 6 years for this offence is entirely appropriate, particularly since it was committed within two months of the first offence, demonstrated a significant degree of planning and directly involved the applicant in making threats to a victim by the use of a firearm. 120 I have already dealt with the circumstances surrounding the commission of the third offence at pars. 91 - 92. Even allowing for the absence of any reference in the facts tendered against the applicant to threats directly made by him or to the possession of weapons by him, this was an offence at the upper end of the range for offences under s 97(2) of the Crimes Act 1900. In my view, there could be no complaint about a head sentence of 5 years for this offence. 121 The fourth offence on indictment was committed a week after the third offence. Four offenders, including the applicant, entered a computer store shortly after 6pm. A pistol was held to the head of a salesman by one offender and both the salesman and the store manager were bound and gagged. They were robbed of their personal effects. The applicant directed the other offenders to take certain computer equipment, to the value of $30,000, which was loaded into a waiting van. The applicant stole the store manager's car, while the salesman's car was stolen by another offender. Both vehicles were left at the applicant's property but moved the following day. The applicant kept the wheels and stereo system from one of the vehicles. The applicant determined which items of computer equipment were to be kept, the balance going to the receiver at Bankstown. 122 The sentence of 7 years for this offence is also appropriate, given its place in a spree of highly organised armed robberies, in company with others, and invariably attended by the infliction of actual violence. 123 As in the case of DB, a measure of accumulation was called for, but the non parole period on Count two was wholly accumulated on the non parole period for Count one. Moreover, the structure of the sentences imposed on Counts two, three and four demonstrate the error in the approach adopted by his Honour. The respective non parole periods for those offences are simply inadequate as a reflection of objective gravity. 124 The totality of the applicant's criminality was of a high order, however it could not have equalled Dung Dinh's for the reasons outlined above. The fact that the applicant's legal representatives were able to obtain a very favourable result, in terms of the number of counts on the indictment ultimately presented against him, could not be ignored. Yet it is difficult to escape the impression that the Judge did so. His Honour was confronted with a highly artificial and somewhat cynical exercise in charge bargaining, wherein little or no regard was paid to glaring inconsistencies in the description of offences as between co-offenders. Nonetheless, his Honour was required to confine himself to the case presented against each offender when assessing the objective gravity of each offence and the totality of each offender's criminality. In failing to adopt that approach, his Honour imposed an aggregate sentence on the applicant that was manifestly excessive in all the circumstances.

Re-Sentencing 125 Leaving to one side the manifest excess of the aggregate sentence, the applicant has established errors in the sentencing exercise that trigger the application of s 6(3) of the Criminal Appeal Act 1912 in respect of each of the four Counts. The applicant placed no additional material before this Court for the purposes of re-sentencing. 126 As the foregoing discussion makes clear, there is no basis in my view for reaching the conclusion that a lesser head sentence is warranted in law and should have been passed in respect of each Count. Consistent with the obligation upon this Court to sentence according to Pearce, it is necessary to impose non parole periods for Counts two, three and four that reflect the objective gravity of the individual offences. An increase in the non-parole periods imposed below is arguably not a lesser sentence. However, s 6(3) allows the Court to impose a more severe sentence where it is of the view that such other sentence is warranted in law and should have been passed. As the following makes clear, the overall result is nonetheless favourable to the applicant : see "K" v The Queen HCA S171/2000.

127 Returning then to the aggregate sentence, some adjustment of the accumulation of the individual sentences is called for. Taking into account the applicant's subjective circumstances, and the fact that these sentences represent the applicant's first custodial sentence, I regard an aggregate sentence of 12 years, with an aggregate non parole period of 8 years, as appropriate. Accordingly, I would grant leave to appeal, allow the appeal, quash the sentences imposed below and impose the following sentences in lieu :-

Count one : taking into account the offences on the Form One, a non parole period of 6 years is imposed to date from 31 October 2003, expiring 30 October 2009, with a balance of term of 4 years, expiring 30 October 2013. Count two : a non parole period of 3 years is imposed to date from 31 October 2005, expiring 30 October 2008, with a balance of term of 3 years, expiring 30 October 2011. Count three : a non parole period of 3 years is imposed to date from 31 October 2007, expiring 30 October 2010 with a balance of term of 2 years, expiring 30 October 2012. Count four : a non parole period of 3 years is imposed to date from 31 October 2008, expiring 30 October 2011, with a balance of term of 4 years expiring 30 October 2015. The applicant is eligible for release to parole on 31 October 2011. **********

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CITATION: DB v Regina; DNN v Regina [2007] NSWCCA 27

R v Simpson (2001) 53 NSWLR 704 Veen v The Queen [No.2] (1988) 164 465 Webb v O'Sullivan (1952) SASR 65 R v Storey (1996) [1998] 1 VR 359 R v PP (2003) 142 A Crim R 369 Regina v Wayne Ross Oastler, (unreported) NSWCCA 7 October 1992 Regina v Astill (No 2) (1994) 64 A Crim R 289 R v Cocking [1999] NSWCCA 311 R v De Simoni (1981) 147 CLR 383 AB v The Queen (1999) 198 CLR 111 House v The King (1936) 55 CLR 499 Lowndes v The Queen (1999) 195 CLR 665 Ryan v The Queen (2001) 206 CLR 267 R v Johnson [2005] NSWCCA 534 R v Burke [2002] NSWCCA 353 CASES CITED: R v Price [2005] NSWCCA 285 Douar v The Queen [2005] NSWCCA 455 K (2000) 111 A Crim R 116 R v Lomax [1998] 1 VR 551 R v Coukoulis [2003] VSCA 22 R v GDP (1991) 53 A Crim R 112 R v DM [2005] NSWCCA 181 R v Hearne (2001) 124 A Crim R 451 ; [2001] NSWCCA 37 R v Hoole (unreported) NSWCCA 17 March 1989 R v Zabul [2001] NSWCCA 455 Pearce v The Queen (1998) 194 CLR 610 R v Henry & Ors. [1999] NSWCCA 111 ; 46 NSWLR 346 R v Pham & Ly (1991) 55 A Crim R 128 R v TJP [1999] NSWCCA 408 R v Stanley [2003] NSWCCA 233 GAS v The Queen [2004] 217 CLR 198 "K" v The Queen HCA S171/2000

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