The JIRS statistics and other cases
41In Hili v R ; Jones v R [2010] HCA 45, especially at [48] - [49], the High Court criticised the use of the Judicial Commission's statistics for the purpose of considering the appropriateness of the sentence under consideration in that case. I would not suggest in the present case that either the sentencing judge or this Court should "interpolate the result of the instant case on a graph that depicts the available outcomes" (ibid). The criticism of such sentencing statistics was made in the context of the observation -
...[N]ot only is the number of federal offenders sentenced each year very small, the offences for which they are sentenced, the circumstances attending their offending, and their personal circumstances are so varied that it is not possible to make any useful analysis or graphical depiction of the results.
42Regrettably, as (for example) the analysis in R v Henry (1999) 46 NSWLR 346 illustrates, armed robberies demonstrate a marked similarity of characteristics, both in respect of facts and the subjective features of the offenders though, of course, there are also substantial variations. It seems to me that in this area of crime the cases are of such a kind, the experience of the Court in respect of them so extensive and the numbers of cases in the sample so substantial that the statistics are indeed useful. This conclusion is supported by a comparison of those statistics with the particular cases which I discuss below. The sample would, of course, include cases very much less serious than the present and one would reasonably expect cases very much more serious than those under consideration here present, since although undoubtedly serious, they are not marked by any particular feature of unusual gravity.
43The statistics collated by the Judicial Commission of consecutive and non-consecutive terms for sentences imposed on all offenders for offences under s 97(2), having the large sample size of 235, show the median sentence at six years with eight outliers at ten years, seven at 12 years and three at 16 years; the median fixed term/non-parole period (sample 133) is 30 months with three outliers at six years, four at seven years and one each at eight, nine and twelve years (this relates only to non-consecutive terms) . The table of consecutive terms (multiple offences) for this offence (since Pearce v The Queen (1998) 194 CLR 610), a substantial sample of 102 cases, shows a slightly higher trend, with the median sentence of seven years with outliers of, one case of 14 years, one case of 16 years and one case at 18 years. The figures for consecutive and non-consecutive terms (multiple offences, sample size 154) are not significantly different. The table for the non-parole period or fixed term in respect of non-consecutive terms for multiple offences is a sample of 52 (sufficient to be useful) ranging fairly evenly between 12 months and five years, with one case at two years, three at seven years, one at nine years and one at 12 years.
44Counsel for the applicant tendered a table of selected s 97(2) cases considered by the Court of Criminal Appeal listing 20 examples, three of which involve fewer offences than were committed by the present applicant. It may be helpful to refer to several of these. In R v Evans [2000] NSWCCA 20, a two Judge bench of this Court (Grove and Greg James JJ) dismissed an appeal against the severity of sentences for seven counts of aggravated armed robbery comprising an overall term of nine years with a minimum term of six years, all served concurrently. The sentencing judge applied a discount of 50% for assistance to authorities. The offender was aged in his mid 20s and became involved in a gang of criminals recruited by the father of his girlfriend. He had no prior criminal record, had disclosed his involvement in the offences of which he was a suspect but where the police were not in possession of relevant evidence. It was held that the starting point of 18 years imprisonment was manifestly excessive. A starting point of 15 years was adopted resulting, after discount, in the substitution of the sentence in respect of each offence of seven years and six months imprisonment with a non-parole period of five years, all sentences to be served concurrently. The judgment does not contain any details of the underlying facts.
45In R v Bavadra [2000] NSWCCA 292 the Director of Public Prosecutions appealed against the inadequacy of sentences imposed following pleas of guilty to two counts of robbery whilst armed with an offensive weapon, two counts of robbery in company and three counts of robbery whilst armed with a dangerous weapon, taking into account 11 matters on a Form 1. In respect of the s 97(2) offences, the offender was sentenced to ten years with a non-parole period of six years, whilst in respect of the two other offences under this section he was sentenced to fixed terms of five years and six years respectively to be served concurrently with the first offence. For the two charges of robbery whilst armed with an offensive weapon, (s 97(1)) he was sentenced to fixed terms of four years to be served concurrently with the other sentences. The remaining two charges of robbery in company resulted in fixed terms of three years imprisonment also to be served concurrently with the remaining sentences. The offences occurred over a seven month period. The armed robbery offences involved use of a hand gun to rob a bank with four other co-offenders, in the course of which bank staff were also threatened with a Stanley knife and forced to lie on the floor, and the robbery of a convenience store using a hand gun by the offender in company with three others, the victim being stabbed in the hand and leg by one of the co-offenders, the robbery of a liquor store using a shortened double barrelled shotgun in the company of another offender, the robbery of another liquor store using a knife which was held to the neck of an employee, the robbery of a bank using a meat cleaver in the company of four others, the robbery of a video store in the company of three others, one of whom pointed a shotgun at an employee whose hands were bound, and the robbery of a newsagency, accompanied by another offender, involving the use of a knife. The Form 1 offences comprised robbery in company, robbery whilst armed with an offensive weapon, robbery whilst armed with a dangerous weapon and being carried in a conveyance without the consent of the owner together with four other offences of robbery whilst armed with an offensive weapon, in each case a knife, committed at a service station, at a caf and a bank and two offences of robbery whilst armed with a dangerous weapon, in each case a hand gun and committed at cafs, one count of assaulting a police officer with intent to resist lawful apprehension. Subjectively, the offender was aged 21 years at the time of the offences and had a history of offending from the age of 16, together with a history of alcohol and drug abuse. There was some doubt about whether he was truly remorseful or contrite as distinct from merely being concerned about the impact of the sentence upon himself and his relationship with his child. He was given "some credit" for his plea of guilty although conviction would have been highly likely in any event. The individual sentences were held to be manifestly inadequate; and the total overall sentence involving a minimum term of six years and an additional term of four years could not reflect the total criminality, so that the concurrency of the sentences was in error. The outcome of the appeal was to extend the total sentence to 12 years with a non-parole period of eight years. Of course, it must be borne in mind that this sentence (and the sentences which were varied upwards) remained less than those that might have been properly imposed at first instance because of the double jeopardy principle that then applied. A discount of 15% was given in respect of the pleas of guilty. It is worthwhile to note the approach of the court, which was to impose fixed terms of imprisonment except for the final sentence that was to be served partly concurrently and partly consecutively with the sentences imposed on the other counts.
46In R v Itamua [2000] NSWCCA 502 the offender pleaded to 42 offences of robbery whilst armed with a dangerous weapon committed during a five month period, and an offence of assault with intent to rob whilst armed with a dangerous weapon. In respect of one of the charges, taking into account a further offence of possessing a loaded firearm in a public place, the offender was sentenced to a term of 18 years imprisonment with a non-parole period of 12 years and, in respect of the others, to fixed terms of three years imprisonment. All sentences were to be served concurrently. The offender sought to appeal against the severity of the first sentence. In respect of the sentence under appeal, the sentencing judge said that it was intended to reflect the total criminality of all the charges, which he found to be one episode of criminality and that, given the length of the sentence he proposed to impose in respect of that charge, the other sentences should be concurrent. Smart AJ summarised the position as follows:
[41] Thus, it can be seen that the appellant attended at thirteen hotels or clubs. In addition to the robbery of these, some thirty one individuals were the victims of an armed robbery. In some instances the evidence establishes that the appellant engaged in the preparations for the offence, driving co-offenders to the scene of the robbery knowing that a robbery was to take place, waiting for them, driving them away knowing a robbery had been committed and participating in the proceeds of the offence. In other instances the appellant's involvement was even greater as he participated physically in the carrying out of the armed robberies in some of the hotels or clubs.
47The Court, by majority, concluded that it was necessary to re-sentence the appellant in order to conform with Pearce, supra, especially at 623 - 4 by McHugh, Hayne and Callinan JJ; see also Mill v The Queen (1988) 166 CLR 59 at 62 - 63. Smart AJ (with whom Sheller JA agreed) concluded that the concurrent sentences for a fixed term of three years were almost all manifestly inadequate and that, on the other hand, the sentence of 18 years with a non-parole period of 12 years was manifestly excessive. One of the problems of re-sentencing the offender was that there was no appeal either by the offender or by the Crown in respect of the concurrent fixed term sentences, so that the Court was bound to proceed on the basis that those sentences could not be disturbed. The principal charge involved the entry by up to five offenders, wearing balaclavas or other disguises, into a tavern armed with a long barrelled hand gun, a semi-automatic pistol, a baseball bat and a club-lock. Everyone was ordered into a back room and one man hit in the ribs with the baseball bat and another on the face, their hands were tied behind their backs and one victim was also hit on the right side of the head with the bat. The barman was grabbed by the hair and the manager taken away. One of the patrons, aged 17, was hit with the club-lock. The offender had driven the robbers to the tavern in return for part of the proceeds later being given to him. He made extensive admissions, pleaded guilty and named some of his co-offenders but declined to name most. He was 20 or 21 when the offences were committed, having no prior convictions in Australia but a conviction in New Zealand for break, enter and steal. It is doubtful whether the Crown would have been able to prove all the offences to which he pleaded guilty without his admissions. Smart AJ concluded that the proper sentence on the principal charge was 14 years imprisonment with a non-parole period of eight years. His Honour added that, had the Court been able to do so, he would have increased the sentences on the other counts of armed robbery, in respect of two of them to sentences of equal length to that imposed on the principal charge and, in respect of the others, concurrent sentences of 12 years with a non-parole period of eight years and 14 years with a non-parole period of eight years. On the charge of assault with intent to rob whilst armed with a dangerous weapon he would have imposed a fixed term of six years imprisonment. As I read his Honour's calculation, the sentences would have been partly concurrent and partly cumulative and resulting ultimately in an overall effective sentence of 18 years with a non-parole period of 12 years. Because this outcome was not open, Smart AJ proposed that the reduced sentence of 14 years with a non-parole period of eight years should be cumulative on the concurrent fixed three year terms, so that the effective overall term was 17 years with a non-parole period of 11 years.
48In R v Berrell [2003] NSWCCA 85, the offender pleaded guilty to six counts of armed robbery with a dangerous weapon, namely a replica pistol. In respect of each of five counts the sentence was five years with a non-parole period of three years and four months and, in respect of the sixth, taking into account six further offences of robbery whilst armed with a replica pistol, one offence of assault with intent to rob, aggravated robbery and three offences of assault, the sentence was ten years imprisonment with a non-parole period of six years and eight months. The appeal was heard by Studdert J and Smart AJ. The offender was 33 years of age when the offences were committed over a two month period. He had a lengthy criminal history including dishonesty offences, all of which were dealt with in the Local Court. It was accepted that he committed the offences to support himself, his partner and his partner's drug habit. There was psychiatric evidence that the offender suffered from a paranoid depressive illness which had improved since his arrest. There was evidence of substantial rehabilitation. In dismissing the appeal, Smart AJ, with whom Studdert J agreed, said as follows:
[49] The sentences had to be and were proportional to the high degree of criminality revealed. Unfortunately, the offences merited heavy sentences. The sentences imposed are not out of line with sentences imposed in other cases where there has been a large number of armed robberies. Considerably higher sentences would have been imposed if the judge had not attached significant weight to the applicant's subjective features.
49I have looked at the other cases contained in the table produced by counsel for the applicant. It is not necessary to set them out. It is sufficient to say that, making all allowances for differing circumstances, both objective and subjective, especially the different numbers of offences dealt with, they lend support in a general way both to the conclusion that the applicant's sentences were manifestly excessive and to the appropriateness of the sentences I propose.
50It remains to mention Henry , in which Spigelman CJ undertook a review of a large number of armed robbery sentences in a variety of jurisdictions with particular reference to cases in this State. His Honour's view (with which the other members of the Court, except Hulme J, agreed) was ([162] - [165], omitting formatting) -
[In respect of a] [y]oung offender with no or little criminal history [using a] [w]eapon like a knife, capable of killing or inflicting serious injury [, with a] [l]imited degree of planning [and] [l]imited, if any, actual violence but a real threat thereof [, where the] [v]ictim was in a vulnerable position such as a shopkeeper or taxi driver [, a] [s]mall amount was taken [and a] [p]lea of guilty limited by a strong Crown case [, an appropriate sentencing range] should generally fall between four and five years for the full term.
His Honour pointed out that he had -
[165] ... 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.
51Of course, in a number of obvious respects the present offences are significantly more serious than those which would fall within the description to which the Chief Justice referred. Nevertheless, with all appropriate qualifications, the Henry guideline is useful as part of the general material to which the Court should look for the purpose of attempting to identify an appropriate sentencing range, however indeterminate the borderline might be within which the sentencing discretion is rightly exercised.