41 There is a lack of precision in the Judge's treatment of the aggravating circumstances relied upon by the Crown, immediately after the remarks summarised at [23]. As to s 21A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (actual or threatened use of violence), the Judge noted that actual violence was a circumstance of aggravation charged against the respondent (as was the fact that the offence was committed in company), so that the threats of violence added little by way of aggravation to the Detain for Advantage offence. Next, the Judge accepted that the use of weapons was an aggravating factor (s 21A(2)(c)) of "the offence". It would appear that the Judge was once again referring to the Detain for Advantage offence, since there was no evidence before the court as to the possession by the co-offenders of the tomahawk and knife during the commission of the Aggravated Break Enter and Steal offence. The circumstances of aggravation relied upon for that charge was the commission of the offence in company.
42 The Judge then noted that the loss of $20,000 caused by "the offence" was substantial (s 21A(2)(g)). The loss of approximately $20,000 could only have been referable to the Aggravated Break, Enter and Steal offence, but that factor was also an incident of Count 2 of the committal charges, yet there was no mention of it in this context.
43 By way of contrast, when dealing with s 21A(2)(j) (offence committed while on conditional liberty) the Judge said "that is so of this offence and indeed of all of the offences for which he is to be sentenced". Lastly, the Judge noted s 21A(2)(n) (planned or organised criminal activity) and accepted that the respondent was involved in some limited planning, but that "most of the planning was carried out by his co-offenders". This was an aggravating feature of both of the offences on indictment and of Counts 2 and 3 on the committal document, but her Honour appears to have confined her remarks to the offences on indictment. There was no further discussion of s 21A(2) in the remarks on sentence.
44 In R v Tadrosse [2005] NSWCCA 145, Howie J (with whom Grove J and Hall J agreed) emphasised the importance of isolating those aggravating factors that apply to each individual offence, where the court is sentencing an offender on a number of offences. Howie J said at [22] - [23]:-
If there was a general aggravating feature that applied to all the offences, then it operated in determining the sentence to be imposed for each of the offences. As the principle enunciated in Pearce v The Queen has been taken as requiring that the court determine the appropriate sentence for each offence before considering the question of totality, so his Honour was required to consider the effect of any aggravating or mitigating factor when determining the appropriate sentence to be imposed for each offence before him. If an aggravating factor applied to one or more of the offences but not all of them, then clearly his Honour was required to indicate in respect of which offence or offences that aggravating feature was being taken into account.
The aggravating or mitigating factors do not necessarily apply globally to all the offences for which sentence is being passed: they may do so or they may not.
45 Her Honour did refer to Pearce later in the remarks on sentence, but only in the context of considering totality. After determining a discount of 15% for the offences on indictment and a discount of 25% for the offences the subject of the committal, on account of the respondent's pleas of guilty, the Judge dealt at length with the respondent's subjective case and then came to a consideration of the sentences to be imposed.
46 The Judge's response to the Crown submission, namely, that the respondent's significant criminal history dictated that greater weight be placed upon the principles of deterrence, retribution and protection of the community, was to highlight the period between 1991 and 2002 when the respondent abstained from criminal behaviour and to accept the respondent's assertion that he had been drug-free since 2003. As to the former, the respondent was at liberty for a period of four and a half years out of those eleven years, a fact acknowledged by the Judge. As to the latter, the respondent continued to commit offences after 2003, albeit not offences of violence, a fact also acknowledged by the Judge. In summary, the Judge said "Obviously the seriousness of the crimes require adequate punishment and deterrence, but rehabilitation plays a part in the manner in which the sentences are constructed."
47 The Judge then indicated that, because the offences on indictment were committed on the same day and at the same time, the sentences for those offences would be concurrent. As the Crown submissions made clear, that was a course that was open to her Honour in the exercise of her discretion, but the full text of the Crown submissions bears repeating:-
The other matters …the Cooma matters, the Crown says are in themselves serious matters. But nowhere near as serious as the matters involving Adam's Tavern. Yet your Honour will have to - when your Honour ultimately comes to sentencing, in accordance with Pearce, give every offence a sentence and then your Honour will come to a consideration of accumulation and concurrence and the Crown submits that … some degree of accumulation is required in relation to those other matters, the fraud and drug matters committed by this offender.
In relation to the offence at Adam's Tavern, particularly ... the specially aggravated detain for advantage. Because I think your Honour is aware of the authorities of both Pearce and … Hammoud, that says there's no bar on your Honour running offences committed at the same time concurrently. And it might be ultimately what your Honour wants to do in this situation. Because the Crown says that the most serious of those offences is the specially aggravated detain. … But it's a particularly serious offence because the 25 year maximum penalty come into play because of the fact that there was an assault occasioning actual bodily harm, the fact that they were in company.
48 Later, the Crown submitted:-
[If] at the end of your Honour's consideration of the sentences and whether or not they should be concurrent or accumulated your Honour feels that the sentence your Honour imposes is one that will be excessive or crushing, it's at that point that your Honour then brings the totality principle to bear upon your Honour's judgment.
49 The clear thrust of these submissions, which were undoubtedly correct, was that her Honour was required to fix sentences befitting the objective and subjective criminality of each offence, taking into account the Form One offence in relation to the Specially Aggravated Detain for Advantage, the further Form One offences in relation to the Cultivate Cannabis, and the relevant aggravating circumstances in so far as they applied to individual offences. Then, and only then, could questions of accumulation or concurrency be addressed. However, the Judge determined that fixed terms would be imposed for the fraud and cultivate offences, and that those sentences would be subsumed into the sentences to be imposed for the offences on indictment, before the individual sentences for each offence were assessed.
50 The Judge then proceeded to nominate "the starting point" for each offence. A sentence of eight months for the Cultivate Cannabis offence was reduced to six months after applying the discount for the plea of guilty. A sentence of this order, having regard to six offences on a Form One, before the application of the discount, for a relatively sophisticated, planned operation, committed whilst on bail for other serious offences was wholly inadequate. The respondent had established a sizable plantation with the assistance of heat lamps, chemicals, ventilation devices and a watering system. There is nothing in the remarks on sentence that indicates where on the spectrum of objective gravity this offence lies. A sentence of less than four years at first instance would be, in my view, lenient. The respondent's subjective circumstances were not so compelling that a reduction to less than a quarter of that penalty could be justified.
51 A sentence of twenty months was nominated for Count 2 of the committal charges, the more serious of the Obtain Financial Advantage by Deception charges. The Judge acknowledged the loss to the bank and the degree of planning inherent in the offence, but a sentence of less than half the maximum penalty, before the application of the discount for the plea of guilty, for an offence displaying these characteristics and committed whilst on conditional liberty is nonetheless excessively lenient.
52 A sentence of six months was then fixed for Count 1 of the committal charges, but no reduction from this sentence was made for the plea of guilty. Assuming that her Honour had already applied the discount, the starting point of eight months also appears unduly lenient for an offence committed whilst on conditional liberty. Whilst there was no loss to the bank in this instance, the respondent received a substantial sum on the strength of his deception, namely, that he was employed full-time with a reputable company and was therefore capable of meeting his commitments.
53 Her Honour then turned to the offences on indictment. A sentence of eight years imprisonment was nominated for the Specially Aggravated Detain for Advantage, reduced to six years and ten months after the application of the discount for the plea of guilty. The Judge fixed a non-parole period of four years and six months, after finding special circumstances. Despite stating that account was taken of the Form One offences when arriving at this sentence, with respect to her Honour, it could not have been a realistic appraisal of the criminality represented by those offences. The Form One documents contained a number of serious offences in their own right, yet the starting point was in the lower third of the range available for this offence.
54 Accepting that the Judge should only have taken into account one offence, that of Armed Robbery of the keys, I am nevertheless of the view that the sentence on this count was manifestly inadequate. The Judge's recounting of the aggravating factors in relation to this offence earlier in the remarks was not, in my view, translated into a sentence that properly reflected its objective gravity, particularly when the respondent's subjective factors did little to mitigate his criminality.
55 This was an offence that objectively warranted a sentence in the order of half the maximum penalty, before account was taken of the offence on the Form One. The respondent played a direct and pivotal role. He held a gun at the victim while his co-offenders broke into the Tavern, only leaving after threatening the victim. The respondent's attention to the victim's wound did very little, if anything, to ameliorate the victim's plight. Nor can the respondent's protestations to the psychologist, that he did not expect anyone to be hurt, justify the extension of any leniency, given that the respondent went to the victim's home in the company of other offenders who were armed with various weapons. A sentence of 14 years imprisonment, before the application of a discount for the plea of guilty, would have been well within the sentencing discretion.
56 The Judge then fixed a term of three years imprisonment for the Aggravated Break Enter and Steal to be served concurrently with the detention offence. Once again, this sentence was well below what was appropriate to reflect the objective gravity of such an offence, committed whilst on conditional liberty, exhibiting a high degree of planning and involving the loss of a substantial sum. The respondent's claim that he was not involved to any extent in the planning of the offence is of limited relevance. Section 21A(2)(n) fixes upon this characteristic of the offence, not the degree to which an individual offender contributes to the planning. Given the 20 year maximum penalty for this offence, a sentence of 8 years imprisonment at first instance would have been more than justified.
57 Her Honour then said:-
Under the Pearce principles of totality, I then have to consider to what extent the sentences are to be served concurrently or cumulatively and the start date of the sentences. … In the circumstances of this case, and taking into account principles of totality, and the manner in which the sentences have been constructed, in the exercise of my discretion I have determined that his sentences should start from the date on which he was arrested, which is 13 December 2005 (see R v Callaghan [2006] NSWCCA 58).
58 The Judge's stated approach overlooks the fact that her Honour had already determined that the sentences would be served concurrently and had fixed individual sentences in order to achieve that result. Only the sentence for the Cultivate offence was fixed to commence on 13 December 2005. The sentences for Counts 1 and 2 of the committal document were made wholly cumulative upon that sentence, but concurrent with each other. Both sentences for the offences on indictment were fixed to commence on 13 December 2006, so that the net effect was an aggregate sentence of 21 months imprisonment for the offences on the committal document and an aggregate sentence of six years and ten months for the offences on indictment. The latter aggregate sentence was made partly concurrent with the former to the extent of 9 months.
59 Such an outcome for four quite discrete periods of offending represented by these offences did not comply with the requirements of Pearce. The respondent's offending occurred in October 2002, early 2003, the latter half of 2004 and mid 2005. The overall result, a total non parole period of five and a half years and a balance of term of two years and four months, failed to reflect the respondent's significant and extensive offending. Both the individual sentences for the various offences and the aggregate sentence are manifestly inadequate. The extent of the inadequacy is so great that I do not consider this an appropriate matter for the exercise of this Court's discretion to refuse to intervene.
Re-Sentencing
60 I have already noted above the appropriate sentences in respect of each offence. The individual sentences and the aggregate sentence will however be less than ought to have been imposed at first instance, because of the double jeopardy inherent in Crown appeals.
61 The respondent's subjective case remains unchanged. The Crown took no issue with the extent of the discount allowed on account of the pleas of guilty, nor with the Judge's finding as to special circumstances.
62 I would propose the following sentences, after the application of a discount of 15% with respect to the offences on indictment, and after the application of a 25% discount with respect to the offences on the committal document:-
Indictment Count 1 - Taking into account the offence on the Form One, a sentence of 11 years imprisonment, comprising a non parole period of 7 years and 4 months, with a balance of term of 3 years and 8 months.