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Category: Principal judgment

Parties: Raymond Johnathan Thomas Fritz (Applicant)
Rex (Respondent)

Representation: Counsel:
S Goodwin (Applicant)
F Sullivan (Respondent)
Solicitors:
Rice More & Gibson (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2023/00321480; 2023/00321503; 2023/00321561

Publication restriction: N/A

HEADNOTE

[This headnote is not to be read as part of the judgment]

The Applicant pleaded guilty to a series of armed robberies and an aggravated break and enter offence committed in September and October 2023. He was variously armed with a machete or a long piece of wood. Some of those offences were committed in company.

On 25 October 2024, he was sentenced in the District Court to an aggregate term of imprisonment of 8 years with a non-parole period of 4 years and 3 months. The Applicant seeks leave to appeal against that sentence on two grounds.

First, he says that the Sentencing Judge erred in failing to assess the objective seriousness of an offence carrying a standard non-parole period, being the aggravated break and enter offence contrary to s 112(2) of the Crimes Act 1900 (NSW). Secondly, he contends that the aggregate sentence is manifestly excessive.

The Court (Sirtes J, Free JA and Rigg J agreeing) held, granting leave to appeal and dismissing the appeal:

As to Ground 1:

1. The assessment of objective seriousness is a critical component of the sentencing process whether an offence carries a standard non-parole period or not. However, there is no requirement to place the finding of objective seriousness on a putative range. What is important is to identify the facts, matters and circumstances which bear on the assessment of the gravity of the crime: [25]–[26], [31]–[33].

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39; R v Campbell [2014] NSWCCA 102; Bektasovski v R [2022] NSWCCA 246; 407 ALR 125; Kochai v R [2023] NSWCCA 116; Daher v R [2026] NSWCCA 26, cited.

2. The Sentencing Judge described the facts, matters and circumstances of the offences in some detail and identified those matters which justified her Honour’s characterisation of the offences as “very serious”. In doing so, albeit not in any elaborate or extensive way, her Honour’s approach discloses no error. Her Honour’s remarks were delivered ex tempore and were to be read fairly, not picked over: [34]–[35].

As to Ground 2:

3. The principles concerning manifest excess, including where an aggregate sentence is imposed, are well settled and were not in dispute: [38]–[39].

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221; Lee v R [2020] NSWCCA 244, cited.

4. The Applicant invoked the guideline judgment in R v Henry and there was no suggestion that her Honour misapplied it: [45].
5. There was no misapplication of the totality principle. No error can be gleaned by comparing the indicative sentences with the aggregate sentence. Nor was the Sentencing Judge required to state specifically the degree of accumulation and concurrence applied: [49]–[51].

Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36; Kliendienst v R [2020] NSWCCA 98, cited.

6. The reference to JIRS statistics was of limited utility. Even if the indicative sentences were “arguably high” by reference to like cases, that is not enough to demonstrate that the aggregate sentence is manifestly excessive: [52]–[55].

Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64; Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45; Ahmad v R [2019] NSWCCA 198, cited.

JUDGMENT

1. FREE J****A: I agree with Sirtes J.

2. RIGG J: I agree with Sirtes J.

3. SIRTES J: The Applicant, Mr Raymond Fritz, was sentenced in the District Court at Armidale by Payne DCJ (the Sentencing Judge) on 25 October 2024 for a series of offences carried out on 30 September and 9 and 10 October 2023. Following a 25% discount to reflect his plea of guilty, the Applicant received an aggregate sentence of imprisonment of 8 years with a non-parole period of 4 years 3 months, to date from 10 October 2023. His non-parole period expires on 9 January 2028. His sentence expires on 9 October 2031.

4. Pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), the Applicant seeks leave to appeal against that sentence on two grounds, namely that:

5. the Sentencing Judge erred in failing to assess the objective seriousness of an offence carrying a standard non-parole period; and

6. the sentence is manifestly excessive.

Background

5. The Applicant pleaded guilty in the Local Court to four principal offences contrary to the Crimes Act 1900 (NSW) (the Crimes Act). At sentencing, further offences were taken into account on a Form 1. The table below indicates the offences for which the Applicant was sentenced, the maximum penalty and any standard non-parole period associated with the offence, and the individual sentences indicated pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act), in each case following the application of a 25% discount.

| Sequence | Offence | Maximum penalty | Indicative sentence | | H81339789 | | 1 | Robbery armed with offensive weapon, contrary to s 97(1) of the Crimes Act, with co-offender Wesley Blair. (Goldfish Bowl Bakery) | 20 years | 3 years, 6 months | | 2 | Robbery armed with offensive weapon, contrary to s 97(1) of the Crimes Act, with co-offender Wesley Blair. (Whitebull Hotel) | 20 years | 3 years, 9 months | | 3 | Take and drive conveyance without consent of owner, contrary to s 154A(1)(a) of the Crimes Act. | 5 years | 11 months | | H79035621 | | 2 | Aggravated break and enter and commit serious indictable offence (armed), contrary to 112(2) of the Crimes Act. (Aggravated BES) | 20 years 5 years SNPP | 4 years, 3 months (NPP 2 years, 6 months) | | Form 1 attached to Seq 2 | | Robbery armed with offensive weapon, contrary to s 97(1) of the Crimes Act. | 20 years | | Possess prohibited drug (cannabis leaf), contrary to s 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (the DMTA). | 2 years | | Possess prohibited drug (buprenorphine), contrary to s 10(1) of the DMTA. | 2 years | | Possess restricted substance (pregabalin), contrary to s 16(1) of the Poisons and Therapeutic Goods Act 1966 (NSW). | 6 months |

6. A Statement of Agreed Facts was presented to the Sentencing Judge, a summary of which is as follows.

Goldfish Bowl Bakery armed robbery (30 September 2023, around 2.40 am)

7. The Applicant and his co-offender, Mr Blair, left a house in Armidale around 12.30 am on 30 September 2023 armed, respectively, with a machete and a screwdriver. They followed the victim, an apprentice baker, to his workplace at the Goldfish Bowl Bakery. As the victim approached the front door both men ran at him, yelling and demanding his wallet and phone. The victim surrendered his wallet but refused to hand over his phone. The Applicant tapped the victim’s upper left back with the flat side of the machete. After the victim pushed Mr Blair away, Mr Blair ran at him with a screwdriver. Both offenders then charged at the victim and punched him in the right eye, causing a black eye. When one of the victim’s colleagues appeared at the front door of the bakery from inside, the Applicant and Mr Blair fled, taking the victim’s wallet containing cards and approximately $50 cash.

Whitebull Hotel armed robbery (30 September 2023, around 3.05 am)

8. Shortly after the Goldfish Bowl Bakery armed robbery, the Applicant and Mr Blair met at Central Park. The Applicant proposed robbing the Whitebull Hotel. The victim of this robbery, a cleaner, arrived at the hotel’s rear entrance at around 3.05 am and was approached by the Applicant running towards her wearing a balaclava and carrying the machete. He demanded the hotel key. The victim twice refused to provide the key. Mr Blair then approached the victim from the other side holding the screwdriver and blocking her exit. At this point she surrendered the hotel key. The Applicant then grabbed the victim’s handbag from her shoulder, walked to the driver side of her vehicle, tipped out the contents, located and took a car key.

Take and drive conveyance (30 September 2023)

9. Having taken the car key from the victim, the Applicant got into the driver’s seat of her white Isuzu MU-X, with Mr Blair in the front passenger seat. They drove away. The vehicle was recovered by the police approximately 9.45 am in bushland near the Armidale Apex lookout. It was towed away for forensic examination.

Aggravated break, enter and steal while armed (9 October 2023, around 5.30 am) – Aggravated BES offence

10. At around 5.30 am on 9 October 2023, the Applicant forced his way through the locked door of a unit in Armidale, where the victim and his family were asleep. The victim’s elderly father was in the kitchen and encountered Mr Fritz holding a large piece of wood. The father screamed. This woke the victim who then got up and found the front door open. The Applicant ran from the unit shortly after being seen by the victim’s father. He stole the victim’s wallet containing various cards as well as the house and car keys.

11. The following four offences were dealt with on a Form 1 attached to the Aggravated BES offence committed on 9 October 2023.

Form 1 – Armed robbery (9 October 2023, around 5 am)

12. Approximately 30 minutes prior to the Aggravated BES offence, the Applicant approached another dwelling in Armidale, armed with a piece of wood 1 metre in length and 5 centimetres in thickness. The victim, an 85-year-old man, heard noise outside his residence and opened the front door to find the Applicant standing near the victim’s neighbour’s vehicle in the shared carport. The Applicant was wearing a hat, brown balaclava, brown coat and long brown pants. He told the victim he only wanted money. The victim said he had none. The Applicant then entered the house through the front door, took the victim’s iPhone from his bedroom and took the keys to the neighbour’s Mazda CX-5. This offence was taken into account on a Form 1 in relation to the Aggravated BES offence.

Form 1 – Possession offences (10 October 2023, around 1.48 pm)

13. The Applicant was arrested in the Armidale Coles carpark on 10 October 2023. He was carrying a headphone case containing 0.3 g of cocaine, a small tab of Suboxone brand buprenorphine, and three capsules of pregabalin. I note that while the Applicant was apparently found in possession of 0.3 g of cocaine he was instead charged with possession of that quantity of cannabis leaf. This discrepancy is unexplained but is not presently material.

Analysis of sentencing remarks

14. Her Honour delivered her sentencing remarks ex tempore. This was recently considered by N Adams J (as her Honour then was) in Towers v R [2025] NSWCCA 142 at [12], where her Honour cited the observations of McCallum JA (as the learned Chief Justice then was, and with whom Hamill and Cavanagh JJ agreed) in Lloyd v R [2022] NSWCCA 18 at [11] as follows:

“The judge gave his reasons ex tempore (that is, orally, immediately upon the conclusion of the sentence hearing). The pressures of a court as busy as the District Court of New South Wales require judges to do so when they can and it is commendable when they do. As noted by the Crown, it is appropriate to keep the fact that reasons were given ex tempore in mind when assessing their adequacy: Currie v R [2013] NSWCCA 267 at [49]-[51] (Johnson J) (Currie). However, that is not to say that ex tempore decisions attract a different standard of review; only that the appellate court should understand that shortcomings such as poor structure, unclear expression or failure to refer to an applicable provision or principle may find their explanation in the degree of difficulty that attends the task of mustering one’s thoughts to present an oral judgment in open court. As Simpson J explained in Rotner v R [2011] NSWCCA 207 at [57] (cited in Currie at [50]), a sentencing judgment delivered ex tempore may ‘lack the order and precision of language that can be incorporated into a judgment after the luxury of time for consideration, refinement of expression, and polishing.’”

15. The Sentencing Judge identified the offences and the maximum penalties that each attracted. Her Honour noted the standard non-parole period of 5 years for the Aggravated BES offence was a guidepost and that weight must also be given to the Form 1 matters. Reference was made to the Crown’s citation of this Court’s guideline judgment in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 (Henry) and the 10% discount built into the guideline range of 4 to 5 years’ imprisonment. Her Honour applied a 25% reduction for the utilitarian value of the Applicant’s guilty plea.

16. As to the objective features of the offending, the Sentencing Judge made the following observations:

17. in the Goldfish Bowl Bakery robbery, Mr Blair hit the victim in the eye whilst the Applicant tapped the victim’s back with the flat side of a machete;

18. the victim of the Whitebull Hotel robbery was doing nothing more than attending to her cleaning duties in the early hours of the morning. She provided a victim impact statement which the Sentencing Judge described as a heartfelt document reflecting the adverse effect the offence had and her fear for her safety;

19. the other victims would have equally been traumatised;

20. the father of the Aggravated BES victim was elderly. The victim of the Aggravated BES was asleep in his home at the time; and

21. the offending was characterised, globally, as “very serious”.

22. Although the Applicant had a previous criminal record, her Honour noted that most of that record involved juvenile antecedents. The Sentencing Judge concluded that his record did “not completely deny him leniency”.

23. Her Honour also considered the Applicant’s subjective circumstances concerning his background and upbringing, drug use, his involvement in a buprenorphine program, his partner and their child, Bugmy principles, denunciation, remorse, rehabilitation and remand conditions. Her Honour accepted that his background and upbringing were dysfunctional and disadvantaged. He moved between locations when young and did not have a proper upbringing. The Sentencing Judge also accepted that the Applicant’s drug use developed to counteract the feelings arising from his traumatic background. Her Honour expressly found that principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 had importance in the sentencing exercise. Her Honour found that there must be some moderation of both general deterrence and moral culpability, but that these were not completely extinguished.

24. The Sentencing Judge found the Applicant to be genuinely remorseful and found that he had some prospects of rehabilitation given his age and the fact that he had not spent long periods in custody.

25. As already stated, the victim of the Whitebull Hotel robbery prepared a victim impact statement. The Sentencing Judge accepted harm to the other victims and acknowledged that recognising harm to victims and the community is a sentencing purpose under s 3A of the Sentencing Act.

26. Her Honour made a finding of special circumstances, which were described as “significant”, to assist the Applicant’s reintegration into the community and not returning to illegal drug use. Overall, the Sentencing Judge described this as “a very difficult sentencing exercise” because of the strong subjective case on the one hand and, on the other, the very serious offending which affected multiple victims who were either asleep in their homes or attending work in the early hours of the morning.

27. Ms Goodwin of Counsel, who appeared for the Applicant, also drew the Court’s attention to his subjective circumstances as established through the report of Kris North, forensic psychologist. The findings of the report were largely set forth in the judgment and concern the Applicant’s prior criminal record, severely dysfunctional upbringing, cannabis use from the age of 12, a diagnosis of major depressive disorder (or adjustment disorder and depressed mood), and multiple substance use disorders.

Ground 1

23. The Applicant contends that the Sentencing Judge fell into error by failing to assess the objective seriousness of the Aggravated BES which carried a standard non-parole period.

Principles

24. Division 1A of the Sentencing Act concerns standard non-parole periods prescribed for certain offences. Sections 54A and 54B provide as follows:

54A What is the standard non-parole period?

(1) For the purposes of this Division, the standard non-parole period for an offence is the non-parole period set out opposite the offence in the Table to this Division.

(2) For the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the Table to this Division that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.

54B Consideration of standard non-parole period in sentencing

(1) This section applies when a court imposes a sentence of imprisonment for an offence, or an aggregate sentence of imprisonment with respect to one or more offences, set out in the Table to this Division.

(2) The standard non-parole period for an offence is a matter to be taken into account by a court in determining the appropriate sentence for an offender, without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence for an offender.

(3) The court must make a record of its reasons for setting a non-parole period that is longer or shorter than the standard non-parole period and must identify in the record of its reasons each factor that it took into account.

(4) When determining an aggregate sentence of imprisonment for one or more offences, the court is to indicate and make a written record of, for those offences to which a standard non-parole period applies, the non-parole period that it would have set for each such offence to which the aggregate sentence relates had it set a separate sentence of imprisonment for that offence.

(5) If the court indicates under subsection (4) that it would have set a non-parole period for an offence that is longer or shorter than the standard non-parole period for the offence, the court must make a record of the reasons why it would have done so and must identify in the record of its reasons each factor that it took into account.

(6) A requirement under this section for a court to make a record of reasons for setting a non-parole period that is longer or shorter than a standard non-parole period does not require the court to identify the extent to which the seriousness of the offence for which the non-parole period is set differs from that of an offence to which the standard non-parole period is referable.

(7) The failure of a court to comply with this section does not invalidate the sentence.

25. In Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 (Muldrock) at 132 [29], the High Court considered the operation of Div 1A (as then in force) and observed:

“A central purpose of Div 1A is to require sentencing judges to state fully the reasons for arriving at the sentence imposed. The reference in s 54B(4) to ‘mak[ing] a record of its reasons for increasing or reducing the standard non-parole period’ is not to be understood as suggesting either the need to attribute particular mathematical values to matters regarded as significant to the formation of a sentence that differs from the standard non-parole period, or the need to classify the objective seriousness of the offending. It does require the judge to identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed. The obligation applies in sentencing for all Div 1A offences regardless of whether the offender has been convicted after trial or whether the offence might be characterised as falling in the low, middle or high range of objective seriousness for such offences.”

26. In this Court’s recent decision of Daher v R [2026] NSWCCA 26 (Daher) at [14], N Adams CJ at CL (with whom Boulten J agreed) summarised the effect of the High Court’s observations in Muldrock as follows:

“To summarise, the effect of the decision in Muldrock v The Queen and s 54B(6) of the Sentencing Act is that there is no requirement to place the finding of objective seriousness on a putative range for an SNPP offence. To be clear, it is neither an error to do so nor an error to fail to do so. What is important is to identify the ‘facts, matters and circumstances’ which bear on the assessment of the gravity of the crime(s).”

Applicant’s submissions

27. In the Applicant’s proposed ground of appeal, it seems to be suggested that the Sentencing Judge’s asserted failure to assess the objective seriousness of the Aggravated BES offence was in error because it carried a standard non-parole period, and such offences require that assessment.

28. In his amended written submissions the Applicant acknowledged, including by reference to Daher, that there was no requirement for her Honour to determine where on a hypothetical scale of objective seriousness the offence fell. Nevertheless, whilst he accepted that the Sentencing Judge characterised the totality of the conduct as “very serious”, he submits that her Honour did not specifically assess the objective seriousness of the offence. The “only” three features identified by the Sentencing Judge in relation to that offence were that the victim’s father was elderly, the offence was committed in the home of the victim, and the victim was asleep in the home at the time.

29. The Applicant submits that if the offence were placed on a notional scale, it would fall between the low- and mid-range for offences of this type. This is for six reasons:

30. the weapon, being a large wooden stick approximately 1m long and 5cm thick, was a less serious type of offensive weapon which was far less capable of inflicting serious injury than, for example, a blade;

31. the stick was not in any event used to assist the commission of the offence, noting, however, that by his plea the Applicant accepts at least an intention to use the wooden stick for offensive purposes: see R v Rose [2024] NSWCCA 193;

32. larceny, the underlying serious indictable offence, is at the lower end of “serious indictable offences” within the meaning of s 4 of the Crimes Act because it carried a maximum penalty of 5 years’ imprisonment;

33. the stolen items, being a wallet containing cards and house keys, were not of significant intrinsic value;

34. the Applicant’s presence was brief; he departed shortly after encountering the elderly man; and

35. there is no evidence that the Applicant knew of or intended to encounter the victim’s father. He did not interact with him and departed immediately.

36. The crux of the Applicant’s submission is that the s 112 offence fell between the low and mid-range but the Sentencing Judge did not specifically assess the objective seriousness in these terms.

Crown’s submissions

31. The Crown argues, apparently in response to the inference I have drawn at [27] above, that the assessment of objective gravity is a critical component of the sentencing process for all offences, whether or not they carry a standard non-parole period: R v Campbell [2014] NSWCCA 102 at [27] (Simpson J, Hall J agreeing); Kochai v R [2023] NSWCCA 116 at [47] (N Adams J, Button and Wilson JJ agreeing). I agree.

32. It adds, however, that even for standard non-parole period offences, there is no requirement to assess objective seriousness by reference to a notional range: Muldrock; DH v R [2022] NSWCCA 200 at [58]–[60] (Yehia J, Fagan J agreeing); Bektasovski v R [2022] NSWCCA 246; 407 ALR 125 (Bektasovski) at 129 [11] (Beech-Jones CJ at CL, Kirk JA and Yehia J agreeing). Rather, the Crown contends, a sentencing judge is required to identify the facts, matters and circumstances bearing upon the selection of the appropriate sentence, which must be assessed by reading the whole of the reasons with an emphasis on substance over form. No particular form must be used.

33. In Bektasovski at 129 [10]–[11], Beech-Jones CJ at CL (as his Honour then was) stated as follows:

“[10] The submissions in support of this ground accepted that his Honour identified various factors bearing on the objective seriousness of the offending but contended that his Honour ‘fell short of the proper assessment of objective seriousness of the respective three counts’. The Applicant contended that his Honour’s reasons were ‘absent the assessment of, or reflection upon, the seriousness of the respective offending conduct’ (citing AP v R [2017] NSWCCA 270 at [44] per Lonergan J which in turn cited Gal v R [2015] NSWCCA 242 at [39]).

[11] In Campbell v R [2014] NSWCCA 102 at [27], Simpson J (with whom Hall J agreed), stated that the ‘assessment of objective seriousness is, and has always been, a critical component of the sentencing process’ (citing, inter alia, Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25). Numerous High Court authorities refer to an assessment of the ‘objective seriousness’ or the ‘gravity’ of the offending (eg, Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [70]; Director of Public Prosecutions (Vic) v Dalgliesh (A Pseudonym) (2017) 262 CLR 428; [2017] HCA 41 at [53]; Minogue v Victoria (2018) 264 CLR 252; [2018] HCA 27 at [39]). However, there is no prescribed set of descriptors that must accompany any such assessment. Where a standard non-parole period is prescribed under s 54A of the Sentencing Act, it is common for sentencing judges to locate the objective seriousness of an offence on a hypothetical range of seriousness for such offences. However, that is not obligatory for such offences (s 54B(6); Tepania v R [2018] NSWCCA 247 at [110] per Johnson J). That is even more so with offences that do not carry standard non-parole periods. In some cases an attempt to locate the objective seriousness offence on a hypothetical range of seriousness can be unhelpful (Paterson v R [2021] NSWCCA 273 at [32] to [33]).”

Determination

34. The Sentencing Judge described the nature of the offences in some detail and identified those matters which justified her Honour’s characterisation of the offences as “very serious”. Such a global assessment was unsurprising as the modus operandi of each of these offences was similar. They involved stealing using some form of weapon, whether it be a machete or a large piece of wood. The Applicant has attempted to downplay the “large wooden stick” as being a less threatening or serious weapon when compared to a blade. Even if a machete is, as a general proposition, more threatening than a piece of wood, both can be used to inflict serious harm. The Sentencing Judge was entitled to conclude that the offence involving the use of the wood was very serious.

35. The Sentencing Judge set out the features which informed her assessment as set forth in paragraph [16] above. In doing so, albeit not in any elaborate or extensive way, her Honour’s approach discloses no error. That approach described the “facts, matters and circumstances” of each offence for which the Applicant was to be sentenced. In that context, the gravity of those offences was characterised as “very serious”. I also bear in mind that the remarks were delivered ex tempore and ought not be picked over.

36. For those reasons, I reject this ground.

Ground 2

37. The Applicant also contends that the aggregate sentence of imprisonment is manifestly excessive.

Principles

Manifest excess

38. The principles which govern this question are well established. They have been set down in many judgments of this Court and the High Court. In Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at 241 [443], R A Hulme J (with whom Bathurst CJ, Leeming JA, and Hamill and N Adams JJ agreed) summarised those principles as follows:

“When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].

• Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.

• Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.

• It is not to the point that this Court might have exercised the sentencing discretion differently.

• There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.

• It is for the applicant to establish that the sentence was unreasonable or plainly unjust.”

39. The principles which apply where an aggregate sentence of imprisonment is imposed were summarised by Beech-Jones J (with whom Payne JA and Fagan J agreed) in Lee v R [2020] NSWCCA 244 at [32] as follows:

“Further, with an aggregate sentence, although the indicative sentences specified in accordance with s 53A(2) of the Sentencing Act are not themselves amenable to appeal, they can be a guide to whether error is established in relation to the aggregate sentence (JM v R [2014] NSWCCA 297 at [40] per RA Hulme J with whom Hoeben CJ at CJ and Adamson J agreed and cases cited thereat; ‘JM’). Even if the indicative sentences are considered excessive, that does not necessarily mean that the aggregate sentence is excessive (PD v R [2012] NSWCCA 242 at [44], [82]; BJS v R [2013] NSWCCA 123 at [252]-[254]). The corollary of that proposition is that, even if the indicative sentences are not excessive in their own right, then that does not preclude a conclusion that the aggregate sentence is excessive. In that regard, the principles concerning cumulation, concurrency and totality are still applicable to the sentencing exercise when an aggregate sentence is imposed (Beale v R [2015] NSWCCA 120 at [73]; ‘Beale’). The ‘potentials for accumulation’ of the various notional sentences can be examined to determine whether the ‘aggregate sentence represents a sound exercise of sentencing discretion’ (R v Brown [2012] NSWCCA 199 at [35] per Grove AJ; Beale at [73]), although the absence of any requirement to specify beginning and end dates for each notional sentence may make it more difficult to demonstrate a relevant error in applying those principles (Beale id; Martin v R [2014] NSWCCA 124 at [37]). The ‘principle’, or even ultimate, ‘focus of determination of a ground alleging manifest inadequacy or excess will be whether the aggregate sentence reflects the totality of the criminality involved’ (JM at [40]).”

Guideline judgment

40. Each of the parties’ submissions dealt with the guideline judgment in Henry.

41. In Foaiaulima v R [2020] NSWCCA 270; 285 A Crim R 222 (Foaiaulima) at 243 [127]ff, Rothman J recounted the development and history of guideline judgments in New South Wales. His Honour noted that Pt 3 of the Sentencing Act deals with the process of sentencing and, in s 36, grants this Court jurisdiction to issue guideline judgments. A guideline judgment may contain guidelines that apply generally or to particular matters, such as particular offences or classes of offences.

42. The guideline judgment in Henry deals with penalties for offences in contravention of s 97 of the Crimes Act.

43. In Foaiaulima at 244 [135] – 246 [143], Rothman J observed the following:

“[135] The principles expressed by the High Court in Markarian, Muldrock and Hili & Jones apply with equal, if not greater, force to the manner in which a sentencing judge should approach the guideline judgment in Henry. The sentencing judge should identify all the factors that are relevant to the sentence and determine an appropriate sentence, bearing in mind the guidepost of the maximum sentence imposed by the legislature and, if there be one, the standard non-parole period. The guideline judgment is, as expressed by this Court, a check on the sentence derived, bearing in mind the factors that the Court had in mind in setting the guideline and the factors that a sentencing judge must consider in synthesising each of the purposes of sentencing and arriving at an appropriate sentence.

[136] Unlike the standard non-parole period, the guideline judgment in Henry establishes a range. That range is established on the basis of consideration of past sentences that have been imposed for like offences on like offenders.

[137] In the case of Henry, the Court considered the category of case to which the guideline judgment applied included: a young offender with no or little criminal history; the use of a weapon like a knife, capable of killing or inflicting serious injury; a limited degree of planning; limited, if any, actual violence but a real threat of violence; a victim in a vulnerable position such as a shopkeeper or taxi driver; a small amount taken; and a plea of guilty, the significance of which is limited by a strong Crown case.

[138] After the judgment in Henry, the Court delivered the guideline judgment in Thomson & Houlton, which renders the reference to a strong Crown case as a qualification on the plea of guilty of limited, if any, use. Further, as was made clear by the Court in Whyte, the range is a guideline not a ‘tramline’.

[139] In the judgment of Spigelman CJ in Henry, his Honour made clear that the range, which was between 4 and 5 years for the full term, was one that should ‘generally’ apply and that the figure had been arrived at by drawing on the collective knowledge of the members of the Court and a review of the sentences that had been imposed, including in appeals to the Court. His Honour set out a number of the judgments which had been taken into account. The guideline judgment is not intended to operate to confine the sentencing discretion; the guideline being an ‘indicator’ and a range of sentences to be ‘taken into account’.

[140] The learned Chief Justice in Henry dealt with a number of concepts that have since been the subject of High Court authority. First, consistency in sentencing is obtained by the consistent application of sentencing principles; not numerical equivalence. Further, the pattern of past sentencing is not synonymous with the range of sentences available in a particular case. Nevertheless, as the accumulated wisdom of sentencing judges and appellate courts, the pattern of past sentencing is of considerable significance as guidance to be used and as a ‘yardstick against which to examine a proposed sentence’.

[141] By definition, a guideline judgment is to be taken into account by courts when sentencing offenders. A guideline judgment does not replace or limit the jurisdiction of the sentencing court otherwise provided by the Crimes (Sentencing Procedure) Act.

[142] As the Court made clear in Whyte, supra, in discussing the effect of the judgment of the High Court in Wong, the kind of guideline given in Henry was given ‘for the guidance of primary judges’ and ‘to indicate, subject to relevant discretionary considerations, the order of the sentence that might be expected to be attracted by a certain type of offender who commits a certain type of offence’. If the sentencing court were to take a guideline judgment into account in the manner described by Spigelman CJ in Whyte and extracted in the immediately preceding paragraph, it is being utilised in a manner consistent with the approach to ‘the accumulated wisdom of sentencing judges and appellate courts’ and ‘as a yardstick against which to examine a proposed sentence’. This, as is made clear by the foregoing, was the original statement by Spigelman CJ in Henry.

[143] The ‘range’ to which the Court referred in Henry, is imprisonment for 4 to 5 years. The foregoing ‘range’ includes a 10% discount for a late plea of guilty and the undiscounted range in Henry can be expressed as between 4 years and 5 months and 5 years and 6 2/3 months. If, a 25% discount were implemented, as a consequence of a plea at the earliest possible opportunity (which is the situation effected by the sentencing judge in these proceedings), the ‘range’ is approximately 40 months to 50 months’ imprisonment.”

(Footnotes omitted.)

44. In terms of objective seriousness, the observation of Spigelman CJ in Henry at 368 [99] is worth repeating:

“Armed robbery is not simply a crime against property. It is a crime against persons. Furthermore, the fear engendered by the perpetrator of this crime, together with the continued adverse effects on its victims, establish armed robbery to be a serious crime which requires condign punishment.”

Consideration

Objective seriousness and guideline judgment

45. The Sentencing Judge referred to the guideline judgment in Henry which applied a 10% discount in arriving at the guideline range of 4 to 5 years. Here, her Honour applied a 25% discount. There is no suggestion that the Sentencing Judge misapplied the guideline. The Applicant notes that the corresponding range, after a 25% early plea discount, ranges from 3 years and 4 months to 4 years and 2 months, with a non-parole period ranging from approximately 2 years and 6 months to 3 years and 1 month.

46. The Applicant submits that the Goldfish Bowl Bakery armed robbery ought be assessed as “around mid-range”, whereas the Whitebull Hotel robbery ought fall below that range in the absence of actual violence. I reject this submission. Although violence was inflicted upon the victim in the Goldfish Bowl Bakery robbery, there is no basis to conclude that the Whitebull Hotel robbery was materially less serious. The Applicant ran towards the victim in the middle of the night wearing a balaclava and wielding a machete. He demanded her property and then grabbed her handbag from her shoulder. The threat of violence which this conduct carries is both intended to and likely to terrify the victim into submission. That is consistent with the victim impact statement provided for this offence, which the Sentencing Judge described as “a heartfelt document as to the very adverse effect this extremely distressing event had on her and her fear for her safety”. That is an apt description of the statement. The victim described, in the aftermath of the robbery, suffering “significant psychological distress” and “significant disruption to my daily life”, which caused her to relocate from her previous residence to regain a sense of security.

Double counting

47. It is also necessary to address the Applicant’s submission as to whether there has been “double counting” in relation to the Isuzu MU-X forming an element of both the Whitebull Hotel armed robbery as well as the take and drive conveyance. The Crown submits that, having regard to the absence of any ground asserting error in the factual findings, the assessment of manifest excess must proceed on the basis of the unchallenged findings of the Sentencing Judge, namely, that the taking of the car was part of the armed robbery at the Whitebull Hotel. This is consistent with the charge certificate, the position taken by the Applicant in the sentencing proceedings, and the opening of the remarks on sentence. I see no merit in the argument that there has been double counting and reject this submission.

Totality

48. The Sentencing Judge considered totality to be “a significant feature of this sentencing exercise”. The generality of this statement is criticised by the Applicant on the basis that the Sentencing Judge did not indicate how, if at all, it was applied to the vehicle issue. It appears that this submission is bound up with the ‘double counting issue’. Having rejected that argument, the attack on totality, at least on this basis, similarly falls away. The residual argument as to totality is that the proper application of that principle—making due allowance for the Applicant’s subjective case, particularly his background of dysfunction and disadvantage—leads to the conclusion that the aggregate sentence of 8 years, with a non-parole period of 4 years 3 months, is manifestly excessive.

49. The indicative sentences nominated by the Sentencing Judge are set out in the table at [5] above. The aggregate sentence of 8 years’ imprisonment confirms both a measure of notional concurrency as well as accumulation. The issue of accumulation and concurrence was considered in detail by N Adams J (with whom Simpson AJA and Rothman J agreed) in Kliendienst v R [2020] NSWCCA 98 (Kliendienst) at [76] and following. In essaying the cases concerning this issue, consideration was given to the decision of Button J (with whom McClellan CJ at CL and Garling J agreed) in Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36, where his Honour said at [231]:

“… it is clear that the process of aggregate sentencing, unlike traditional sentencing, does not permit of a mathematical analysis of the degrees to which partial and complete concurrence or accumulation have been adopted by a sentencing judge. All one can really do is look at each of the individual offences for which the offender was to be dealt, consider the indicative sentences (though I appreciate that it is the submission of the Crown that many of these were erroneous as well), and then determine whether the aggregate head sentence and aggregate non-parole period are erroneous in light of that background. The whole point of aggregate sentencing is to free sentencing judges from the task of creating elaborate sentence structures. A logical consequence of that is that this Court is not in a position to undertake an analysis of explicit questions of concurrence and accumulation in the same way that it can analyse traditional sentencing structures.”

50. N Adams J observed in Kliendienst at [85] that:

“A common complaint to this Court when alleging manifest excess (or manifest inadequacy) of an aggregate sentence is to contend that the sentencing judge has erred in the degree of accumulation and concurrence. Such a complaint will be upheld in obvious cases, such as when the aggregate sentence is the same length as one of a number of indicative sentences showing there was no accumulation (as occurred in Rae cited above). But the failure to properly apply the totality principle must be able to be gleaned from the indicative sentences when compared with the aggregate sentence. That will often not be the case. This Court will not intervene where the failure to apply the totality principle is not apparent, nor when there is a complaint that the judge has failed to specifically state the degree of accumulation and concurrence. That this is so can be seen by reference to a number of decisions of this Court addressing this question.”

51. These observations apply here. Reading the entirety of the Sentencing Judge’s reasons I am satisfied that there is no error in the application of the totality principle. Her Honour explicitly referred to the principle’s application to the sentencing exercise. No error can be gleaned by comparing the indicative sentences with the aggregate sentence, and nor was the Sentencing Judge required to state specifically the degree of accumulation and concurrence.

JIRS statistics

52. The Applicant also refers to JIRS statistics. Statistics can be useful but the mere reference to statistics, without an “articulation of what are to be seen as the unifying principles which those disparate sentences may reveal”, is not: see Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at 606 [59] (Gaudron, Gummow and Hayne JJ); Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at 537 [54].

53. This Court (Wilson J, Basten JA and Wright J agreeing) observed in Ahmad v R [2019] NSWCCA 198 (Ahmad) at [48] and [50]:

“[48] Manifest excess cannot be established by pointing to a statistical range of sentence and arguing that the particular sentence falls at or near the top of that range. After all, within any given range of sentence, someone must be at its higher end. That fact alone cannot establish that the sentencing discretion miscarried in that instance by the imposition of an excessive sentence; any more than can a sentence at the lowest end of the statistical range of itself establish manifest inadequacy.

…

[50] Although the general pattern of sentence is a relevant consideration, statistics are of very limited assistance in determining whether a sentencing discretion has miscarried.”

(Citations omitted.)

54. The Applicant candidly acknowledges the limited usefulness of statistics and accepts that his indicative sentences are not ‘out of range’. At best, the Applicant submits that they are “arguably high” by reference to the Applicant’s total criminality and his subjective circumstances, particularly his background of dysfunction and disadvantage.

55. I am unpersuaded by this submission. The Sentencing Judge considered the detailed submissions made on behalf of the Applicant in relation to his subjective circumstances. This is set out in the remarks on sentence. It is the very reason why her Honour described the proceedings as “a very difficult sentencing exercise”. Even if one were to accept that the indicative sentences were “arguably high” by reference to like cases, that is not enough to demonstrate that the aggregate sentence is manifestly excessive: Ahmad at [48].

Determination

56. It follows that I do not agree that her Honour’s discretion miscarried. Neither the indicative sentences, their accumulation, nor the aggregate sentence itself is unreasonable or plainly unjust as would suggest that there has been some misapplication of principle.

57. Ground 2 is not made out.

Conclusion

58. Given the length of the Applicant’s sentence and the interest in finality, I would grant leave to appeal. However, the appeal must be dismissed.

59. Therefore, I propose that the Court:

60. Grant leave to appeal.

61. Dismiss the appeal.

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