Foaiaulima v R

r 2002, 5815 (Robert Debus, Attorney-General) Category: Principal judgment Parties: Natasha Foaiaulima (Applicant) Crown (Respondent) Representation: Counsel: J. Brock (Applicant) C. Curtis (Respondent)

Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions NSW (Respondent) File Number(s): 2018/170437 Decision under appeal Court or tribunal: District Court Jurisdiction: Crime Date of Decision: 2 May 2019 Before: Shead DCJ File Number(s): 2018/170437

Judgment

1. BATHURST CJ: I have had the advantage of reading the judgments of Johnson J and Rothman J in draft. Like Johnson J, I gratefully adopt Rothman J's summary of the facts, the grounds of appeal and the submissions made to this Court.
2. As Rothman J points out, grounds 1 and 2 of the grounds of appeal overlap, in essence involving the proposition that the sentencing judge misapplied the guideline judgment in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 ("Henry").
3. Rothman J found error in that the sentencing judge dealt with the question of objective seriousness and the range of sentence available in two stages. First, in considering the issue by reference to the Henry guidelines, and then separately considering aggravating and mitigating circumstances over and above those which were referred to in the guideline judgment (judgment Rothman J at [144]-[146] below).
4. The approach adopted by the sentencing judge is, I think, open to two possible interpretations. The first is that she determined the seriousness of the offence by reference to where it fell within the Henry guidelines, and then subsequently considered additional aggravating and mitigating factors to determine to what extent she should depart from the determination made in accordance with those guidelines. If that was the approach she took, then I would respectfully agree with Rothman J that her approach was erroneous: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]-[31].
5. There are aspects of the remarks on sentence which support Rothman J's conclusion. First, the sentencing judge dealt with the Henry factors separately from the other aggravating and mitigating factors required to be considered under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Procedure Act). Second, she warned herself against double counting when separate analysis was made by reference to the Henry guidelines and to the specific factors in s 21A of the Sentencing Procedure Act, referring to the pre-Muldrock case of R v Street [2005] NSWCCA 139. Third, and most importantly, she stated that "the appropriate head term is towards the lower end of the range that is applied in Henry".
6. Notwithstanding, I do not think that considering the judgment overall the sentencing judge adopted this approach, but rather treated the Henry guideline as a guidepost to which she had account in determining the sentence, in accordance with the instinctive synthesis approach referred to in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51]; see also Muldrock at [26]-[28]. There are a number of reasons for this conclusion.
7. First, s 42A of the Sentencing Procedure Act requires the guideline judgment to be taken into account: see Moodie v R [2020] NSWCCA 160.
8. Second, unlike standard non-parole periods, the guideline judgment in Henry refers to a range of sentences determined by the particular factors referred to in the judgment of Spigelman CJ in that case. To take the guideline into account, it is necessary to give some consideration to where within the Henry range the particular offence stood.
9. Third, her Honour's remarks immediately after she dealt with the guideline shows, in my opinion, that after she considered where the offence fell within the Henry range she did not conduct a separate assessment but rather took that into account as part of the overall instinctive synthesis process. That is apparent from the following remarks from the sentencing judgment: "I have considered the authorities and the relevant principles guiding the assessment of the objective seriousness of offences of this kind, including the Henry guideline. I am mindful that such an assessment must be made by reference to all of the facts and circumstances of the case."
10. Fourth, in dealing with the sentencing approach the sentencing judge specifically referred to the approach required by Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14, Markarian and Muldrock, describing Henry as one of the aspects which bear upon the question of sentencing.
11. In these circumstances, I do not consider that grounds 1 and 2 of the grounds of appeal have been made out.
12. So far as ground 3 is concerned, I do not consider that her Honour's assessment that the degree of planning was greater than that in the Henry guideline demonstrated error. The facts set out by her Honour in the sentencing judgment demonstrate in my view that it was open to her to conclude that the planning involved was somewhat greater than the limited degree of planning referred to in the Henry guidelines.
13. I agree with both Rothman J and Johnson J, essentially for the reasons given by Johnson J, that the sentence was not manifestly excessive.
14. It follows that leave to appeal should be granted but the appeal dismissed.
15. JOHNSON J: I have had the advantage of reading in draft the judgment of Rothman J. I gratefully adopt his Honour's summary of the facts, the grounds of appeal and of the submissions made in this Court with respect to the grounds of appeal. I have reached a different view to his Honour concerning the outcome of the appeal.

Guideline Judgments

1. Rothman J has outlined helpfully (at [127]ff), the origin of guideline judgments in New South Wales, the guideline judgment in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 and subsequent decisions of the High Court of Australia and of this Court concerning sentencing principles.
2. As Rothman J has noted at [130], the last guideline judgment dealing with sentencing for a particular offence was delivered in 2004 (for high range PCA offences). In the Keynote Address to the Sentencing Conference 2008, entitled "Consistency in Sentencing" (2008) 9 TJR 45 at 53, Spigelman CJ explained why guideline judgments had fallen into disuse: "In New South Wales the system of guideline judgments was first established by the Court of Criminal Appeal but was reinforced by supportive legislation. It is a system which has ceased to grow because of the introduction into our sentencing legislation of a scheme of indicative 'standard' non-parole periods, providing the same guidance in legislative form. The scheme of the legislation is such as to cover virtually every offence that was capable of being the subject of a guideline judgment. Such judgments are not prescriptive in character but they do establish a system in which sentencing judges have to take the guideline into account as a check or indicator or guide, with a requirement to address the guideline and to articulate reasons for its applicability or inapplicability to the case in hand. The principal objective of a guideline judgment is to promote consistency."
3. The standard non-parole period scheme was enacted by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002, which also introduced ss.3A and 21A into the Crimes (Sentencing Procedure) Act 1999. In a judgment which declined to issue a guideline judgment for assault police offences under s.60(1) Crimes Act 1900, Spigelman CJ (Wood CJ at CL, Grove, Sully and James JJ agreeing) noted the enactment of ss.3A and 21A as well as the creation of the standard non-parole period scheme, which did not apply to s.60(1) Crimes Act 1900 offences: Re Attorney General's Application under s.37 Crimes (Sentencing Procedure) Act 1999 (No. 2 of 2002) (2002) 137 A Crim R 196; [2002] NSWCCA 515 at [13]-[17], [54]-[61]. The introduction of ss.3A and 21A bore on the question whether the Court should issue a guideline judgment. Spigelman CJ said at [55]-[61]: "56 The list of aggravating factors [in s.21A] is stated in a form which has not hitherto been required to be taken into account by sentencing judges. The guideline proposed is basically derived from this list of aggravating factors plus three specific additional ones, based on circumstances that often arise with respect to offences under s60(1). 57 Further, this Court did not receive submissions about the impact of s3A of the 1999 Act which also takes effect from 1 January 2003. It is arguable that some of the 'purposes of sentencing' which must now guide sentencing decisions constitute a change of pre-existing sentencing principle. 58 For example, 'prior' case law refers to the role of sentencing to protect the community, but that objective was often said to be achieved by means of rehabilitation, deterrence or retribution. Section 3A(c) now suggests that this should be regarded as a separate 'purpose' and one concerned with protection of the community 'from the offender'. 59 It may also be arguable that s3A(c) - making the offender 'accountable' - introduces a new element into the sentencing task. The same may be true of the reference to 'harm' to 'the community' in s3A(g). 60 In the absence of argument, I would not wish to be understood to be expressing a view on these matters. The possibility that prior sentencing principle may need to be reviewed does, however, support the conclusion that the present application is premature. 61 The guideline is sought at a time when the new identification of the purposes of sentencing and the specification of a list of aggravating factors has not been considered by any court. What, if any, effect this new regime will have on the sentencing pattern for offences under s60(1) of the Crimes Act must be a matter of speculation."

The R v Henry Guideline Judgment

1. Before considering her Honour's sentencing remarks, it is appropriate to refer to the structure of the R v Henry guideline judgment which bears upon the approach taken by the sentencing Judge in this case.
2. In R v Henry, Spigelman CJ stated at [161]-[165]: "161 In the cases now before this Court, the Crown has propounded a starting point for New South Wales of six years full term, in circumstances where there is a plea of guilty. 162 It appears from the cases that come to this Court, including the present proceedings, that there is a category of case which is sufficiently common for purposes of determining a guideline: (i) Young offender with no or little criminal history; (ii) Weapon like a knife, capable of killing or inflicting serious injury; (iii) Limited degree of planning; (iv) Limited, if any, actual violence but a real threat thereof; (v) Victim in a vulnerable position such as a shopkeeper or taxi driver; (vi) Small amount taken; (vii) Plea of guilty, the significance of which is limited by a strong Crown case. 163 Whilst it is possible to determine a starting point in a case of this kind, i.e. a sentence of X years imprisonment, I do not believe that the Court should do so. Rather, I propose the Court should identify a narrow sentencing range within which this Court would expect sentences in such cases to fall. 164 There are two principal reasons why a sentencing range is appropriate for this offence: (i) The seven characteristics identified above do not represent the full range of factors relevant to the sentencing exercise. (ii) Many of the seven identified characteristics contain within themselves an inherent variability, eg different kinds of knives or weapons in (ii); extent of 'limited actual violence' in (iv); degree of vulnerability in (v); amount in (vi). 165 In my opinion sentences for an offence of the character identified above should generally fall between four and five years for the full term. I have arrived at this figure after drawing on the collective knowledge of the other four members of the Court with respect to sentence ranges. I have also reviewed the sentences which this Court has imposed on occasions when it has intervened, including in Crown appeals where the principle of double jeopardy applies. The proposed range is broadly consistent with this body of prior decisions in this Court."
3. It will be observed that the seven factors referred to by the Chief Justice in R v Henry at [162] (see [32] above) involve a mixture of objective features (factors (ii), (iii), (iv), (v) and (vi)) and subjective features (factors (i) and (vii)).

The Sentencing Remarks

1. The sentencing Judge had reserved judgment at the conclusion of the sentencing hearing. Her Honour's judgment is a well-structured and thoughtful sentencing decision which addresses all aspects bearing upon the process of instinctive synthesis in this case. As required by law, her Honour had regard to the R v Henry guideline judgment.
2. It is necessary to read her Honour's sentencing remarks fully and fairly for the purpose of considering the grounds of appeal: Hawat v R [2020] NSWCCA 121 at [32].
3. Her Honour recited the facts of the offences (ROS2-6) before turning to evidence given at the sentencing hearing including the evidence of the Applicant (ROS6-9). Her Honour outlined the Applicant's subjective case, including her background and upbringing, education, employment history, medical history, substance abuse history, social and relationship history and her criminal history (ROS9-14). The sentencing Judge then addressed the Applicant's attitude to the offending and the formulation and recommendations of Megan Godbee, forensic psychologist, in a report tendered in the defence case on sentence (ROS14-15). Reference was then made to the Crown and defence submissions on sentence (ROS15-20).
4. It was at this point in the sentencing remarks that her Honour referred to the R v Henry guideline judgment, which had played a significant part in submissions made on sentence. It was necessary for her Honour to have regard to it and she did so (ROS20-23). Her Honour noted (at ROS24-25) that the R v Henry guideline judgment applied to an offence of robbery in company as well as armed robbery under s.97(1) Crimes Act 1900.
5. Her Honour then considered (at ROS25-26) what were described as "the Henry factors". In doing this, the sentencing Judge was considering the seven factors referred to by Spigelman CJ in R v Henry at [162] (see [32] above). As noted earlier, the seven factors identified by Spigelman CJ were not confined to objective features of an offence. They included a mixture including subjective factors being "young offender with no or little criminal history" and "plea of guilty, the significance of which is limited by a strong Crown case". In the later decision of R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [161], Spigelman CJ clarified the reference to a late plea of guilty in the R v Henry guideline judgment noting that, where there is an early guilty plea, all other things being equal, the sentence should be lower than that suggested in the range.

Aspects of the Offence

1. Her Honour had particular regard to the CCTV footage depicting the commission of the offence. This is a further example of cases where the offence was captured by CCTV so that the sentencing court (and this Court on appeal) has an opportunity to observe the actual offence being committed: R v Mulligan [2016] NSWCCA 47; R v Amati (2019) 279 A Crim R 73; [2019] NSWCCA 193 at [17]. This is an important aspect on sentence when CCTV footage is available. The Court is not restricted to a written narrative only. The members of the Court have viewed the CCTV footage for the purpose of determining the appeal.
2. Her Honour described what was depicted in the CCTV footage (at ROS6 and 27) and made findings which were not challenged in this Court.
3. The victim and her two companions were sitting peacefully on a train on a Sunday afternoon travelling to the Royal Easter Show.
4. The Applicant was present with a number of other persons including two female companions and at least one male companion. The Applicant and her two female companions were all large women.
5. The events depicted in the CCTV footage, and as described in the Agreed Statement of Facts, provide a good example of the intimidation which flows from a number of persons placing themselves close to the victim especially when their intimidating presence is exacerbated by words. In this case, there was an element of racist abuse directed by one or more persons in the Applicant's group to the young victim and her friends who were South Korean.
6. From the time the Applicant and her companions engaged with the victim and her friends until the end of the incident, some nine minutes passed. The incident commenced because one of the Applicant's companions said that she wanted to sit in the seats occupied by the victim and her friends although there was an ample number of empty seats elsewhere in the carriage. When this directive was not accepted by the victim with the reasonable response that there were other seats free, the incident escalated into one of intimidation accompanied by laughter on the part of the Applicant and her companions and use of insulting language.
7. The Applicant struck the victim at one point, with the Applicant and her companions thereafter leaving the train at a station. The victim and her friends were no doubt relieved at this development. However, a short time later, the Applicant and her companions got back on the train and the Applicant violently attacked the victim from behind, pulling her hair and pushing her in an aggressive way before taking her mobile phone.

Sentencing for Offences of Violence Committed Against Users of Public Transport

1. This Court has emphasised the need for appropriate punishment, and the importance of general deterrence, where crimes of violence are committed against persons using the public transport system: R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49 at [207]-[208]; Hampton v R (2014) 243 A Crim R 193; [2014] NSWCCA 131 at [51]; R v Dennis [2015] NSWCCA 297 at [2]-[3], [65]. Comments in these cases were made in the context of offences committed against persons using public transport late at night. Upon that basis, counsel for the Applicant sought to confine what was said in those cases given that the present offence occurred on a Sunday afternoon. It was also submitted that this was not a case of a planned attack where the Applicant had determined to select someone on the public transport system and laid in wait to locate a victim.
2. I do not consider that the distinction sought to be made by counsel for the Applicant provides any assistance in this case. Persons use the public transport system as a necessary part of daily life. The community is entitled to expect that significant punishment will be visited upon those who commit crimes of violence, whether planned or random, directed to members of the public using public transport whether by day or night.
3. What was said in the authorities (at [64] above) concerning protection of members of the community on public transport applies equally to offences of violence directed to innocent members of the public, who have done nothing to attract attention or provoke an offender in circumstances where the victim is, in effect, confined on the public transport system and thus exposed to an attack by a person such as the Applicant who is minded to offend in this way.
4. This was not a spontaneous offence which ended in a short period of time. What commenced with the Applicant and her companions directing their attention to the victim and her friends then became, over a period of nine minutes, a course of conduct involving physical and verbal intimidation and two incidents of violence directed to the victim.
5. In giving effect to the purposes of sentencing under s.3A Crimes (Sentencing Procedure) Act 1999 in this case, it was necessary, amongst other things, for the sentencing Judge to ensure that the Applicant was adequately punished for the offence (s.3A(a)) by the imposition of a significant sentence of imprisonment which would deter the Applicant and other persons from committing similar offences (s.3A(b)) and also serve to denounce the conduct of the Applicant (s.3A(f)) and recognise the harm done to the victim of the crime and the community (s.3A(g)). There is harm to the community when public confidence in the safety of the public transport system is undermined by the commission of an offence such as this against users of public transport.

Error Has Not Been Demonstrated

1. The sentencing Judge had regard to all relevant factors in reaching a head sentence and non-parole period, including the question of totality given sentences of imprisonment imposed for the Applicant's later offences. A finding of special circumstances was made with the non-parole period constituting about 65% of the head sentence.
2. I do not agree with Rothman J that the structure and content of her Honour's sentencing remarks disclose error as asserted in Ground 1. In my view, a fair and complete reading of her Honour's sentencing remarks discloses that regard was had to the R v Henry guideline judgment, together with all other matters which were relevant on sentence. I would not uphold Ground 2 as I do not accept that her Honour's sentencing remarks were inadequate or indicated a misapplication of legal principle. Nor would I uphold Ground 3 as no error is demonstrated in her Honour's finding with respect to planning having regard to the circumstances of the case.
3. To make good the claim of manifest excess contained in Ground 4, it is necessary for the Applicant to demonstrate that the sentence was unreasonably or plainly unjust: Markarian v The Queen at [25]. I am not persuaded that the sentence imposed upon the Applicant in this case was manifestly excessive.
4. In my view, none of the grounds of appeal have been made good. The sentence of imprisonment was an appropriately substantial one in this case. The sentence lay within the reasonable exercise of sentencing discretion having regard to all factors which bore upon the fixing of sentence in this case.
5. If error had been demonstrated in accordance with Ground 1 based upon the contention that the R v Henry guideline judgment had been, in some way, misapplied, it would be necessary to consider the question of resentencing under s.6(3) Criminal Appeal Act 1912. If that point had been reached, I would have formed the view that no lesser sentence is warranted in all the circumstances of the case. I would adopt the careful findings made by the sentencing Judge with respect to the objective gravity of the offence, the Applicant's subjective circumstances and other factors bearing on sentence including the importance of general deterrence.
6. I am not persuaded that the Applicant has made good any of the grounds of appeal. Although leave to appeal against sentence should be granted, the appeal should be dismissed.

Relevant procedural and factual history

1. The sentence proceedings were based on Agreed Facts, which were Exhibit 1 in the proceedings, and CCTV footage of the assault (Exhibit 2).
2. At approximately 4:30 PM on 1 April 2018, the victim was travelling on the train in the company of two friends. They entered the upper area of the train and sat down on a three-person seat. The applicant and the applicant's two younger cousins were also on the train.
3. One of the applicant's cousins said to the victim that she wanted to sit on the seat occupied by the victim. The victim told her she could sit elsewhere, given the carriage was largely empty. The applicant's cousin became aggressive to the victim and her friends. The applicant and her cousin took up some seats further along the carriage. From there, the applicant's group verbally and racially abused the victim and her friends.
4. After some time, the applicant moved to take up a position behind the victim. Soon after, the applicant was joined by one of her cousins. Over the course of some minutes, the applicant and her cousins (and at one stage an unknown male) intimidated the victim, including mimicking acts of violence behind the victim's back. This lasted for approximately five minutes.
5. The applicant and her cousin then swapped positions. The applicant gestured to her cousin to pull the hair of the victim. The cousin pulled the victim's hair and the applicant lent over in an unsuccessful attempt to take the victim's phone from her hand. During this attempt, the applicant punched the victim to the head. The applicant and her two cousins then left this area of the train and got off the train at Glenfield and started walking across the platform. .
6. Shortly after leaving the train, the applicant re-entered the train with one of her cousins. The applicant ran up the stairs and punched the victim. At the same time, the applicant grabbed at the victim's handbag, resulting in the strap of the bag breaking. The applicant's younger cousin, at the same time, moved closer and punched the victim. During this physical assault, the applicant took the victim's mobile phone and left the train with her cousin.
7. On the platform of the train station, the applicant met up with other persons who had, seemingly, been on the same train, one or more of whom had been depicted in the CCTV footage of the train. The victim and her friends pursued the applicant and the others and unsuccessfully demanded the return of the mobile phone.

Submissions at first instance

1. During the course of the sentence proceedings, as already indicated, the Crown tendered Exhibit 1, which included: a summary of the charges; committal forms and the Court Attendance Notice; the Form 1 offence document; the applicant's Criminal and Custodial History; the Victim Impact Statement; and a Pre-Sentence Report for the applicant. As already indicated, there is CCTV footage of the entire incident. [2]
2. The author of the Pre-Sentence Report observed that the applicant had "a reasonable level [sic] insight into her behaviour, which she attributed to the use of alcohol and negative peers". [3] Further, the Report indicates that the applicant "verbalised being regretful for her actions towards the victim" and "demonstrated a degree of victim empathy". Her behaviour in custody had been satisfactory, although past engagement with Community Corrections had been "borderline". The applicant was assessed as having a medium risk of reoffending.
3. The applicant's case below paid specific attention to remorse and psychiatric and medical evidence. The applicant gave evidence and a Psychological Report by Ms Megan Goodbee, of 19 December 2018 [4] , was tendered. Also tendered were medical records from Riverstone Medical Practice [5] and certificates confirming programs completed by the applicant in custody. [6] During the course of the evidence, the applicant relied upon a letter of remorse that was provided to the Court. [7]
4. Amongst other matters, the Psychological Report noted that the applicant demonstrated remarkably low self-esteem [8] and had symptoms consistent with a depressive experience. [9] The applicant provided accounts to the psychologist of engaging in self-harm in the past. [10]
5. The applicant was exposed to alcohol abuse by her father and domestic violence. She described "nearly daily hidings." [11] Her childhood was marked by instability. [12] The applicant left home at an early age. Her difficulties with anger may be a function of the lack of safety that she experienced as a child by virtue of a heightened fight or flight response, according to the psychologist. [13]
6. The applicant's education ended in year 10 and was followed by unemployment [14] and the applicant described problematic alcohol consumption from the age of 17, which involved binge drinking. [15] The applicant maintained that her regular drinking stopped in about March 2018, as a result of the encouragement of a pro-social friend. The offending for which she was to be sentenced occurred on a day when, according to the applicant, she broke that abstinence and consumed alcohol. [16]

Remarks on Sentence

1. During the course of the Remarks on Sentence, which were thorough and well crafted, the learned sentencing judge referred to the CCTV footage and concluded that it appeared to suggest that the applicant was the ringleader of the group. [17] The sentencing judge also accepted the history and major findings set out in the Psychological Report, to which reference has been made.
2. However, the sentencing judge did express a qualification in relation to the applicant's account, given to the psychologist, in that her account of the offending revealed a lack of insight and an attempt to shift some blame to the victim. [18] Later in the Remarks, the learned sentencing judge accepted that the applicant was "somewhat" remorseful, noting, in particular, that the applicant had made full admissions to the police, had entered a plea of guilty or indicated a plea of guilty at the earliest opportunity and provided a letter of apology. [19]
3. The sentencing judge then described the guideline in Henry, in the precise terms set out in the New South Wales Sentencing Bench Book. [20] Her Honour noted that the guideline judgment is a check, guide or indicator and that it is not a tramline. [21]
4. Her Honour then specifically applied the guideline to the current case under the heading "Applying the Henry factors to this case" [22] , which is summarised in the below table: Henry guideline at [162] Foaiaulima (at ROS 25-26) i. Young offender with little or no criminal history i. The applicant met the description of a young offender with little or no criminal history ii. Weapon like a knife, capable of killing or inflicting serious injury ii. There was no weapon used (although the offence was committed in company) iii. Limited degree of planning iii. There was planning "above" the "limited" planning described in Henry - noting that the applicant positioned herself behind the victim and directed her co-offenders to position themselves in strategic locations iv. Limited, if any, actual violence but a real threat thereof iv. The applicant applied actual violence with significant force v. Victim in a vulnerable position such as a shopkeeper or taxi driver v. The victim was "somewhat… vulnerable" because she was commuting on a train and had no opportunity to leave vi. Small amount taken vi. There was a small amount taken vii. Plea of guilty, the significance of which is limited in a strong Crown case vii. The plea was earlier than in Henry and "had greater utilitarian effect"

1. After the comparison summarised in the foregoing table, her Honour concluded that the "appropriate head term is towards the lower end of the range that is applied in Henry". [23] Earlier in her Remarks on Sentence, her Honour had said that "on balance, this case is approximately on par with Henry in so far as the relevant factors expressed in the guideline judgment are concerned". [24] As noted by her Honour, Spigelman CJ proposed a "starting point" [25] in Henry for an offence of the character set out in the judgment of a sentence that "should generally fall between four and five years for the full term". [26]
2. After dealing with the Henry guideline, her Honour dealt with the objective seriousness of the offending and concluded that it fell within "the mid-range in the scale". [27] Her Honour did not accept a submission from the Crown that the Victim Impact Statement demonstrated harm that aggravated the offence as a result of the application of s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW). [28] I agree with that conclusion.
3. Her Honour also made the following comments: 1. Her Honour noted that the applicant was subject to a Good Behaviour Bond at the time of the offending and noted that as an aggravating factor pursuant to s 21A(2)(j) of the Sentencing Procedure Act; [29] 2. There was a plea of guilty at the earliest possible opportunity which attracted a 25% discount for utilitarian value; 3. Her Honour also accepted that the applicant had shown some remorse; 4. In relation to the mitigating fact of a lack of planning, her Honour considered the offence to be "relatively opportunistic" and with no "degree of sophisticated, well thought-out planning associated with the offending"; [30] 5. Her Honour was guarded as to the offender's prospects of rehabilitation and her likelihood of achieving a reduced propensity to reoffend"; [31] 6. Her Honour considered parity and determined that the applicant's involvement was substantially greater than her co-offenders; [32] 7. Her Honour dealt with the fact that the applicant also received a 3 month sentence after her remand for unrelated offending and considered concurrency of 1 month was warranted to meet the aims of totality; [33] 8. Her Honour found special circumstances and varied the legislative ratio such that the result was that the non-parole period represented 65% of the head sentence; [34] and 9. Her Honour made an order for compensation to the victim for the iPhone. [35]

Submissions on Ground 1 and 2 (Henry Guideline)

1. The applicant dealt with Grounds 1 and 2 together, for the obvious reason that they deal with the same or similar points. The applicant submits that the time spent by her Honour, in her Remarks, in describing and dealing with Henry and the remarks that followed are reflective of the emphasis that the sentencing judge appears to have placed on that guideline in determining the final term of imprisonment. The remarks, according to the applicant's submission, were not delivered ex tempore and involved the use of careful headings.
2. During the course of the Remarks on Sentence, her Honour, the sentencing judge, expressed the view that the appropriate head term was towards the lower end of the range that applied as a result of the guideline judgment in Henry. The applicant submitted that such a proposition may be ambiguous, as her Honour did not identify the "range" to which she was referring. The applicant submits that the Henry guideline, on a superficial level, refers to a sentence for a "typical" Henry case as falling between 4 and 5 years' imprisonment, which incorporates a discount for a late plea of guilty.
3. This Court, in R v Hemsley, [36] has made clear that the discount incorporated in the Henry guideline was 10% for a late plea of guilty. Later, the Court noted that the undiscounted range in Henry may be expressed as between approximately 4 years and 5 months and just under 5 years and 7 months. [37]
4. The applicant submits, which submission is arithmetically correct, that, alternatively expressed, if all matters are equal with Henry, a plea at the earliest opportunity, for which a discount of 25% is to be provided, would be reflected in a range between 3 years and 4 months to 4 years and 2 months of imprisonment.
5. The starting point for her Honour's sentence was 5 years and 8 months' imprisonment and, the applicant submits, such a starting point does not reflect a head sentence that can be described as at the lower end of the range applied in Henry. In real terms, the final sentence, according to the applicant, is not only at the upper end of the range, but exceeded it.
6. Such a head sentence is inconsistent with her Honour's acknowledgement that, where other factors are equal, an early plea of guilty should result in a sentence lower than the range referred to in Henry. [38]

Submissions on Ground 3 (Planning)

1. The applicant submits, in relation to this ground, that the sentencing judge erred in elevating the level of planning involved in this offence beyond that contemplated by Henry. In doing so, the applicant refers to the judgment of R S Hulme J in which his Honour explained that the level of planning referred to in the guideline will rarely involve less than some hours' duration. [46] His Honour dissented in Henry.
2. The applicant submits that the planning involved in this offence was not only limited but extremely unsophisticated: there was no evidence of premeditation; the genesis of the interaction with the victim was a puerile response by a co-offender to a perceived insult from the victim; the offence was executed in direct view of CCTV cameras; there were a number of other passengers in the immediate vicinity when the offence occurred; and the initial attempt to secure the property failed during the first assault and the offenders returned to obtain the mobile phone. The sentencing judge stated that the offences were committed in a relatively opportunistic fashion and there was no degree of sophistication or "well thought out planning".
3. The Crown relies upon the CCTV footage and the comment by the sentencing judge, after viewing the footage, that her Honour was satisfied that the applicant had "constructed an intentional ploy to rob the victim", that she "orchestrated the act" and that "her intentions were clear from the outset". [47]
4. The Crown submits that these findings are borne out by an examination of the CCTV footage, which shows the applicant gesturing to her co-offenders, including (as agreed on the facts) directing her co-offender to pull the victim's hair back so that she could punch and then rob her. The duration over which these events occurred is, according to the Crown submission, demonstrative of some degree of planning.
5. The Crown further submits that the sentencing judge's finding as to the degree of planning involved in the offence was an evaluative judgement carried out by her Honour in "performing the task of finding facts and drawing inferences from those facts". The Court, according to the submission, would, as a consequence, be slow to interfere. [48] The Crown submits that the applicant has not shown that the sentencing judge's finding was not open.

Submissions on Ground 4 (Manifest Excess)

1. The applicant submits that the sentence imposed is manifestly excessive. There is no compelling basis, according to the applicant, identified by her Honour that warranted a starting sentence that went beyond the Henry range. In fact, using the Henry factors, it is submitted that the offence in this case represents offending either in the lower end or below the notional exemplar in Henry.
2. The applicant has emphasised that the robbery did not engage a weapon as a significant point of differentiation of the Henry exemplar. It is accepted that the offence was committed in company, but that is of lesser significance than being threatened with a knife or firearm. Moreover, the actual violence used was relatively brief, physically unimpressive and did not result in any significant physical injury.
3. On this Ground, the Crown submits that the applicant's submissions rest entirely on a fundamental contention that the guideline in Henry dictates a different outcome and, in so doing, the applicant is elevating the Henry guideline to more than a check or guidepost. Rather, according to the Crown, the applicant's use of the Henry guideline renders it a matter with determinative significance, which is contrary to authority.
4. The Crown also referred to judgments of the Court that have held that the threat involved in an "in company" offence is broadly equivalent to a threat whilst armed with a weapon, contrary to the applicant's submission.
5. The Crown submits that the applicant's objective case was not strong: she had prior convictions for assault and larceny offences; the offending could be seen as an escalation of past offending; the applicant was on a Bond; the applicant lacked insight into her offending behaviour, blaming the victim for provoking her; [50] the applicant was not motivated to undergo rehabilitation for her binge drinking and anti-social peer influences; [51] her risk of re-offending was medium; [52] and she had guarded prospects of rehabilitation. [53] Essentially, the Crown submits that the sentence imposed was well within an acceptable range, given the unchallenged finding that the objective seriousness of the offending was at the mid-range and the maximum penalty is 20 years; the applicant was the ringleader; the significant violence involved on two occasions; and the applicant's weak subjective case.

Guideline Judgments

1. Part 3 of the Crimes (Sentencing Procedure) Act deals with the process of sentencing and contains the provisions of Div 4, commencing with s 36 that grants the Court jurisdiction to issue guideline judgments. As the legislature has made clear, in the definition of "guideline judgments", such a judgment may contain guidelines that apply generally; or guidelines that apply to particular courts or classes of courts; particular offences or classes of offences; particular penalties or classes of penalties; or particular classes of offenders (but not particular offenders). [54]
2. Thus far, guideline judgments have dealt with the discount to be provided on a plea of guilty; [55] the manner of treating a Form 1; [56] and to particular offences. Those guideline judgments that deal with particular offences deal with the particular penalties or classes of penalties that ought to be imposed.
3. The guideline judgment in Henry, supra, is a guideline judgment that deals with the particular penalties for offences in contravention of s 97 of the Crimes Act. Other guideline judgments dealing with penalties include those dealing with break, enter and steal, in contravention of s 112(1) of the Crimes Act; [57] dangerous driving, in contravention of s 52A of the Crimes Act; [58] and high-range PCA. [59]
4. As can be seen from the foregoing, the latest guideline judgment dealing with the sentence to be imposed for a particular offence was in 2004. The judgment in Henry was in 1999 and the judgment in Whyte was in 2002.
5. Since the handing down of the guideline judgments, the legislature introduced standard non-parole periods for a number of sentences. In introducing standard non-parole periods, the then Attorney General deliberately omitted standard non-parole periods for those offences for which there were guideline judgments and made reference to the continuation of the guideline judgments for use by a court when sentencing for the offences which they cover. [60]
6. Since the introduction of both guideline judgments and standard non-parole periods, the High Court has had occasion to discuss the proper use of standard non-parole periods in sentencing and the proper approach to the achievement of consistency in sentencing. [61]
7. In the course of its judgment in Muldrock, the High Court overturned the judgment of this Court in R v Way [62] and, in doing so, the High Court confirmed the intuitive synthesis approach to sentencing by citing, with approval, the comment of McHugh J in Markarian v The Queen [63] and recited the following sentence: "[T]he judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case." (Emphasis added in the extract in Muldrock at [26].)

Consideration

1. The Remarks on Sentence involved the sentencing judge dealing with objective seriousness and the range of sentence that is available in two quite distinct parts. First, as can be seen from the foregoing, her Honour dealt with the guideline judgment in Henry and each of the factors that led the Court to issue the guideline by determining whether and to what extent each of the factors in Henry were applicable to the applicant.
2. In so doing her Honour concluded that "the appropriate head term is towards the lower end of the range that is applied in Henry". At an earlier stage, as already stated, her Honour remarked that "on balance, this case is approximately on par with Henry in so far as the relevant factors expressed in the guideline judgment are concerned". It seems to me that this latter expression is an acknowledgement of the applicability of the guideline judgment, but it may mean more.
3. After dealing with the applicability of the Henry factors to the applicant, her Honour set out that which her Honour determined were aggravating and mitigating circumstances, seemingly over and above those that were factors included in the guideline judgment in Henry.
4. I accept that the Court's reasons do not necessarily reflect simultaneous thought processes and the sequence with which matters are dealt in either reasons or Remarks on Sentence do not necessarily correspond with the order in which the reasons lead to the result at which a sentencing judge arrives. [77] Nevertheless, such an explanation does not explain two quite distinct assessments of objective seriousness and comparison with the Henry guideline.
5. Over and above the foregoing, there is a lack of clarity in the statements by her Honour in or to the effect that the case is "on par" with Henry and, at a later stage, that the head term is "towards the lower end" of the range there expressed. Neither term is fully explained or clear. The lack of clarity is exacerbated by the ultimate determination of the sentencing judge that the starting point of the sentence should be significantly higher than the undiscounted range to which Henry refers.
6. The bifurcation of the assessment of objective seriousness, whether compared with the factors in Henry or more generally, is an approach which, in my view, is inconsistent with the principles established by the High Court and to which reference has already been made. All of the issues associated with objective seriousness should be factored into the determination of the issue and, at that point, if there is to be a comparison with the factors in Henry, to which some reference will be made later in these reasons, the objective seriousness of the offence committed, and its relationship to those factors and matters to which the Court had regard in Henry, can be assessed.

Re-sentencing

1. The facts have already been described. The victim and her friends were riding on public transport to the Easter Show and were entitled to ride in peace and without being assaulted and robbed.
2. The attack itself was unsophisticated and opportunistic. It involved minimal planning, but the evidence discloses that the applicant was the ringleader and such planning as was involved was the product of the applicant's organisation.
3. The applicant was 22 years' of age at the time of the offence, which is the outer limit of an immature and not fully developed thinking. This is confirmed in the Psychological Report.
4. The plea of guilty was indicated at the earliest possible opportunity and was coupled with full admissions to the investigating police. The Pre-sentence Report recorded her as demonstrating insight into the factors contributing to her offending, being the use of alcohol and her peers. She has also expressed a degree of victim empathy.
5. The applicant has a criminal history, but it does not reflect serious violent offending. This is the applicant's first imprisonment in any adult prison. She has completed a number of courses and is employed in prison. [81] The applicant had a deprived and violent childhood.
6. Only a small amount of property was taken; no weapons were used or possessed; and the applicant was on conditional liberty at the time of the offence. I accept and agree with the learned sentencing judge's finding of special circumstances.
7. I take the view that the applicant's prospects of rehabilitation very much depend on her association with peers and, were it not for that issue, would consider her prospects better than reasonable. Because of that issue, I accept that the applicant's prospects are guarded, even though the applicant has recognised that her association with peers is a major contributing factor to her offending.
8. In terms of the offences with which s 97(1) of the Crimes Act deals, this offence is below mid-range. The maximum sentence is 20 years' imprisonment, which is a guidepost to the sentence to be imposed. In my view, taking into account both the objective seriousness and the subjective circumstances of the offender and, taking the Henry guideline into account as a "guide" or "check", [82] I would fix a starting point for the head sentence at 5 years. In doing so, I take account of the Form 1 offence, disposing of stolen goods, in fixing the foregoing sentence. I consider that no sentence, other than one of imprisonment, is appropriate. A starting point of the head sentence of 5 years is the middle of the undiscounted "range" described in Henry.

Endnotes

1. R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111.
2. Exhibit 2 in the proceedings.
3. Sentencing Assessment Report dated 4 February 2019 under the signature of Cathryn Veal, at p.2.
4. Exhibit 3 in the proceedings.
5. Exhibit 4 in the proceedings.
6. Exhibit 5 in the proceedings.
7. Exhibit 6 in the proceedings.
8. Psychological Report of Ms Megan Goodbee, 19 December 2018, Exhibit 3, at [2].
9. Ibid, at [24].
10. Ibid, at [25].
11. Ibid, at [8].
12. Ibid, at [9].
13. Ibid, at [28].
14. Ibid, at [10]-[11].
15. Ibid, at [13]-[16].
16. Ibid, at [15].
17. Remarks on Sentence at 6.3.
18. Remarks on Sentence at 14.5.
19. Remarks on Sentence at 19.2.
20. Judicial Commission of New South Wales, Sentencing Bench Book, at [20-250]-[20-258].
21. Remarks on Sentence at 23.
22. Remarks on Sentence at 25
23. Remarks on Sentence at 26.7.
24. Remarks on Sentence at 17.8.
25. Henry, supra, at [169]
26. Henry, supra, at [165].
27. Remarks on Sentence at 27.8.
28. Remarks on Sentence at 31.5.
29. Remarks on Sentence at 30.9.
30. Remarks on Sentence at 32.3.
31. Remarks on Sentence at 33.
32. Remarks on Sentence at 34.
33. Remarks on Sentence at 35-38.
34. Remarks on Sentence at 38.
35. Remarks on Sentence at 38-39.
36. [2004] NSWCCA 228, at [30]
37. R v Harris [2011] NSWCCA 105, at [93].
38. Remarks on Sentence at 23.5.
39. Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25.
40. Lee v R [2016] NSWCCA 145, at [26].
41. Fedele v R (2015) 257 A Crim R 78; [2015] NSWCCA 286, at [85]; Hawat v R [2020] NSWCCA 121, at [33].
42. Remarks on Sentence at 6.
43. Remarks on Sentence at 14.
44. Remarks on Sentence at 26-27.