Grounds 2-4
9 These grounds can conveniently be dealt with together. The ultimate submission which was advanced is that the sentence which was imposed was manifestly excessive given that the offence itself was at a low level of objective seriousness. Allied to that submission was a contention that her Honour gave the Henry guideline judgment a greater degree of prominence than the circumstances warranted.
10 The sentencing judge's approach is apparent from the following passage which appears in the Remarks on Sentence:
The offence is an objectively serious one attracting, as it does, a maximum penalty of twenty years imprisonment and a guideline judgment to ensure that salutary sentences are imposed when appropriate. That guideline judgment of The Queen v Henry , which is directed at the offence of armed robbery, has been held to be equally applicable to the offence of robbery in company, attracting the same maximum penalty. It calls for the imposition of sentences commencing in the range of four to five years when there are a number of factors present, which are set out in that judgment.
11 The factors, to which her Honour refers, that were identified in R v Henry (1999) 46 NSWLR 346 are set out below:
"(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." (at para 162)
12 Her Honour was correct in concluding that the Henry guideline judgment is equally applicable to an offence of robbery in company: R v Murchie [1999] 108 A Crim R 482; R v Osborne [2001] NSWCCA 371; R v Lesi [2005] NSWCCA 63. Moreover, there is authority for the proposition that the Henry guideline also applies to an offence of the kind presently under consideration: R v Stanley [2003] NSWCCA 233.
13 The sentencing judge described the offence as falling "below the mid-range of objective seriousness, towards the lower end". Her Honour found that the victim, being a shopkeeper, was vulnerable although she observed that there was no evidence that he had suffered "substantial ongoing emotional harm". Putting to one side that factor as well as the applicant's antecedents, all the other factors identified in Henry as being relevant to an assessment of the seriousness of the offence, pointed in the applicant's favour. There was minimal planning, there was no loss of property, there was no violence inflicted or any "real threat thereof", and nor was a weapon used. Moreover, the assault which was relied upon to establish one of the necessary elements of the offence, was said to arise from the applicant's aggressive tone when he instructed the victim to "put all the money in the bag". Indeed, when those factors are considered in combination, it becomes readily apparent that this was an offence that lay at the very lowest end of the spectrum of offences of this kind.
14 The applicant placed some emphasis upon the fact that he did not have a weapon. In R v Black [2001] NSWCCA 41 James J, with whom Whealy J agreed, said:
When a judge is sentencing an offender, not for armed robbery but for some other kind of aggravated robbery, the guideline judgment of the Court of Criminal Appeal in R v Henry for sentencing for offences of armed robbery may well afford some assistance. However, I do not consider that, where a sentencing judge is sentencing for some kind of aggravated robbery other than armed robbery, and even though all of the characteristics set out in para (162) of the Chief Justice's judgment in Henry are satisfied, apart from the characteristic that the offender was armed, a sentencing judge is required to adopt as a starting point or as a prima facie sentence a sentence of four to five years and then to enquire whether any circumstances are present which would permit or require him to impose a heavier or a lighter sentence.
The characteristic that the offender should have been armed was stated by Spigelman CJ in para (162) of his judgment in Henry as "(having a) weapon like a knife capable of killing or inflicting serious injury". I accept the submission made by counsel for the applicant that this characteristic, that the offender should have been armed with a weapon capable of killing or inflicting serious injury, is an important characteristic which distinguishes the kind of offence which the Chief Justice was considering in Henry from the kind of offence for which the applicant was being sentenced. [at paras 12-13]
15 In R v Perese (2001) 126 A Crim R 508 Hulme J said:
So far as the other matters listed are concerned, the absence of a weapon such as a knife or gun argues significantly for lesser criminality than an offence which involves such a weapon. I appreciate that under s 97(1) of the Crimes Act both robbery in company and robbery whilst the offender is armed with an offensive weapon or instrument carry the same maximum penalty, but experience and the authorities show that the risks associated with the mere presence of a lethal weapon in the stressful circumstances of a robbery are such that it is a seriously aggravating circumstance. [at par 25]
16 McClellan J (with whom Beazley JA agreed) said:
The decision in Henry concerned the offence of armed robbery and the principles which it provides must be understood as particularly relevant to an offence which involves a weapon (at 380-181). Because the present matter did not involve a weapon, the guidelines set out in Henry were of less utility than might otherwise have been the case. [at para 66]
17 The applicant also contended that although the guideline judgment is not to be treated as a "straight jacket", the sentencing judge had proceeded as if it were. Reference was made in this context to the observations of Spigelman CJ in Legge v R [2007] NSWCCA 244, in which his Honour remarked that "the authorities in this court make it quite clear that a guideline is not a tramline" (at para 59).
18 Obviously enough, the applicant's antecedent criminal history had to be brought into account. As I indicated earlier, her Honour was of the view that the appropriate starting point was a sentence of 6 years. Such a conclusion can only have been arrived at were her Honour to have taken the view that the applicant's criminal history required that the starting-point for the sentence should be above the range identified in Henry. If, as seems apparent, her Honour approached the matter in that fashion, then she clearly fell into error. Indeed, given the low level of objective gravity of the offence committed by the applicant, the Henry guideline should not, in my view, have assumed the prominent role in the sentencing exercise which it evidently did even allowing for the applicant's antecedents and the vulnerability of the victim. Nor should it be overlooked, that the plea of guilty contemplated in Henry was for a late plea "of limited value": see R v Thomson and Houlton (2000) 49 NSWLR 383 at 419. By way of contrast, the applicant received a discount of 25% which is at the top of the range identified in Thomson (supra).
19 Accordingly, I am of the view that the applicant has made good his submission that the sentence which was imposed was manifestly excessive. In re-sentencing the applicant, I have had regard to the additional affidavit material which indicates that the applicant has been spending his time in custody in a productive fashion. I would, as the sentencing judge did, make a finding of "special circumstances".