Ground 2: Misapplication of the Henry guideline judgment
39The sentencing judge expressly noted that he considered the guideline judgment in R v Henry when determining the appropriate sentence. His Honour referred to the following matters:
(i)The maximum penalty in the present case was higher than the offence with which the Court was dealing in R v Henry;
(ii)The weapon used was incapable of causing any injury (although the victim was unaware of that fact);
(iii)The guideline judgment in R v Henry was based upon a plea of limited utility and here, there was no plea of guilty to the robbery offence;
(iv)Unlike the guideline judgment in R v Henry, the applicant is not a young offender with little or no criminal history.
40The applicant submits that there were a number of relevant factors that the sentencing judge did not take into account in his consideration of R v Henry. In particular, the sentencing judge, it is submitted, did not take account of the applicant's momentary intention to rob, the low objective seriousness of the offence and the inept execution of the offence. Further, the applicant submits that his Honour's remarks gave undue weight to R v Henry and thereby narrowed the range available to him in the exercise of his discretion.
41His Honour (ROS, p 6) said:
"Of course I should look at the Henry guideline in determining the appropriate sentence. There are a number of matters to be said about that guideline and its relationship with the present case. Firstly, the maximum penalty is higher. Secondly, this is not a weapon like a knife or working firearm. As I have said, a couple of times I think, this weapon was incapable of causing any injury at all. Of course Mr Xu was not to know that and so he was no doubt at least apprehensive at seeing the offender in possession of what to him must have looked like a real firearm.
The Henry guideline is based on a plea of limited utility. Here there was no plea of guilty to the robbery matter, but, as I have mentioned before, there were pleas of guilty to other matters and the issue in relation to the robbery matter was very limited indeed. Finally, when I compare this matter to the Henry guideline, Mr Murray is far from a young offender with little or no criminal history. It is therefore necessary for a substantial period of imprisonment to be imposed upon him, even though he was at the time not functioning as well as he would have been had he not been toxicated [sic] or affected by drugs." (Emphasis added)
42The applicant's submission is essentially based upon the use of the word "therefore". The applicant submitted that not all of the factors to which the Court referred in R v Henry had been considered by his Honour and that, by use of the word "therefore", his Honour was referring to his youth and criminal history, which, according to the applicant, were not alone sufficient to justify a sentence at the high end of the R v Henry range.
43In my view, the word "therefore", where used by his Honour refers not only to the applicant's age and criminal history, but to each of the factors recited by his Honour in analysing R v Henry. Of more concern is his Honour's overall approach to the guideline judgment. His Honour has considered R v Henry in "determining the appropriate sentence".
44A guideline judgment is a tool or servant; not a master. It is to be used by sentencing judges as one more factor that allows sentences to be fixed, bearing in mind the need for equal justice and consistency in sentencing. It is not a mandated outcome from which sentencing judges subtract or to which they add in a mathematical exercise: see Markarian v R [2005] HCA 25; (2006) 228 CLR 357; Muldrock v R [2011] HCA 39; (2011) 244 CLR 120; Pearce v R [1998] HCA 57; (1998) 194 CLR 610 at [46].
45Ultimately the imposition of a sentence is a process of instinctive or intuitive synthesis that takes account of a range of factors and the purposes of sentencing (in this case set out in s 3A of the Crimes (Sentencing Procedure) Act 1999): see Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465. In Veen (No 2) at 476, the Court (Mason CJ, Brennan, Dawson and Toohey JJ) said:
"The purposes of criminal punishment are various: protection of society, deterrents of the offender and of others who might be attempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guide posts to the appropriate sentence but sometimes they point in different directions."
46In R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252, this Court confirmed that a guideline judgment should not be used to confine a sentencing court's discretion and in that sense ought not be used as a "rule" or "presumption". Rather, a guideline judgment is to be used as a "check" or "guide".
47It is also appropriate to reiterate the passage from the majority in Markarian, supra, at [37] (per Gleeson CJ, Gummow, Hayne and Callinan JJ):
"[37] In general, a sentencing court will, after weighing all of the relevant factors, reach a conclusion that a particular penalty is the one that should be imposed. As Gaudron, Gummow and Hayne JJ said in Wong:
'Secondly, and no less importantly, the reasons of the Court of Criminal Appeal suggest a mathematical approach to sentencing in which there are to be "increment[s]" to, or decrements from, a predetermined range of sentences. That kind of approach, usually referred to as a "two-stage approach" to sentencing, not only is apt to give rise to error, it is an approach that departs from principle. It should not be adopted.
It departs from principle because it does not take account of the fact that there are many conflicting and contradictory elements which bear upon sentencing an offender. Attributing a particular weight to some factors, while leaving the significance of all other factors substantially unaltered, may be quite wrong. We say "may be" quite wrong because the task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at an "instinctive synthesis". This expression is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features.
In R v Thomson, Spigelman CJ reviewed the state of the authorities in Australia that deal with then "two-stage" approach of arriving at a sentence, in which an "objective" sentence is first determined and then "adjusted" by some mathematical value given to one or more features of the case, such as a plea of guilty or assistance to authorities. As the reasons in Thomson reveal, the weight of authority in the intermediate appellate courts of this country is clearly against adopting two-stage sentencing and favours the instinctive synthesis approach. In this Court, McHugh and Hayne JJ, in dissenting opinions in AB v The Queen expressed the view that the adoption of a two-stage approach to sentencing was wrong. Kirby J expressed a contrary view. We consider that it is wrong in principle. The nature of the error can be illustrated by the approach adopted by the Court of Criminal Appeal in these matters. Under that approach, the Court takes, for example, the offender's place in the hierarchy and gives that a particular significance in fixing a sentence but gives the sentencer no guidance, whatever, about whether or how that is to have some effect on other elements which either are to be taken into account or may have already been taken into account in fixing the guideline range of sentences. To take another example, to "discount" a sentence by a nominated amount, on account of a plea of guilty, ignores difficulties of the kind to which Gleeson CJ referred in R v Gallagher when he said that:
"It must often be the case that an offender's conduct in pleading guilty, his expressions of contrition, his willingness to co-operate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of inter-related considerations, and an attempt to separate out one or more of those considerations will not only be artificial and contrived, but will also be illogical."
So long as a sentencing judge must, or may, take account of all of the circumstances of the offence and the offender, to single out some of those considerations and attribute specific numerical or proportionate value to some features, distorts the already difficult balancing exercise which the judge must perform.' (emphasis in original)
...
[39] Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, in which, for example, the circumstances of the crime have to be weighed against one or a small number of other important matters, indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. An invitation to a sentencing judge to engage in a process of 'instinctive synthesis', as useful as shorthand terminology may on occasions be, is not desirable if no more is said or understood about what that means. The expression 'instinctive synthesis' may then be understood to suggest an arcane process into the mysteries of which only judges can be initiated. The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends. This case was not however one of them because of the number and complexity of the considerations which had to be weighed by the trial judge."
48His Honour has taken the guideline range in R v Henry and subtracted (or added) by distinguishing some features, without considering all of the factors together and thereafter utilising R v Henry as a "check" or "guide" to that process. The process does not permit of a comparison with the hypothetical offence and offender to which reference was made in R v Henry, by identifying matters justifying a longer or shorter period than the guideline or constraining the exercise of discretion to a process that confines the outcome to the upper or lower range there identified: see by analogy Muldrock, supra, at [27], per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; and Wong v R [2001] HCA 64; (2001) 207 CLR 584 at 611 - 612, per Gaudron, Gummow and Hayne JJ. Moreover, the comparison made by his Honour omits the special and bizarre circumstances of the commission of the offence, already described.
49In my view, the process undertaken by the sentencing judge impermissibly used the guideline judgment as more than a "check" or "guide" to the sentence otherwise obtained. This ground of appeal, in my view, has been made out.