The sentences are markedly more lenient than would have been imposed on an adult offender.
20 In Qing An [2007] NSWCCA 53 the appellant was convicted after trial of 8 counts of armed robbery committed on massage parlours by the use of a knife in some offences and a replica pistol in others. He received an overall sentence of 12 years with a non-parole period of 10 years. This Court found that the sentences were manifestly excessive. The Judge had sentenced by increasing the sentences for particular offences even though the seriousness of the conduct in each case was the same and this was held to be an error of principle. So, for example, a sentence of 6 years was imposed for the first count but a sentence of 9 years was imposed for counts 9 and 10. It was held that sentences of 8 and 9 years were outside the available range and the overall sentence was excessive. There was also a consideration of parity with a co-offender. The appellant was sentenced to an overall term of 10 years and 6 months with a non-parole period of 7 years 6 months. Unlike the present applicant the appellant in that case was not on conditional liberty at the time of the offending.
21 There are other decisions of this Court where sentences have been reduced for multiple counts of armed robbery by two-person benches. With respect to the opinions of the judges comprising those benches, the sentences imposed appear to me to be manifestly inadequate as representing the seriousness of multiple armed robberies. For example, I cannot accept that an overall sentence of 9½ years with a non-parole period of 5½ years can adequately reflect the criminality of 7 armed robberies, 2 attempted armed robberies and 13 similar offences taken into account on a Form 1: R v Antecki [2001] NSWCCA 312.
22 However taking account of the sentences that have been considered by this Court and in particular the decision in Qing An, it does seem to me that the overall sentence imposed upon the applicant is outside the range that appears to have been established notwithstanding my view that the range is generally too low for sentences for a large number of armed robberies.
23 In relation to the ground based upon parity, in my opinion this Court should refuse to entertain such a ground of appeal in circumstances similar to this case. Cavanagh was sentenced for only one offence that he committed with the applicant. The other two offences were taken on a Form 1. True it is that Cavanagh received a fixed term of 4 years 6 months for that offence, being count 3 on the applicant's indictment. But a fixed term represents the equivalent of a non-parole period and, in Cavanagh's case, it was after a discount for a plea of guilty. Yet the applicant received a sentence with a non-parole period of 1 year six months for that offence after trial. Of course a strict parity argument cannot be sustained on that basis.
24 The real complaint is that Cavanagh received an effective sentence of 14 years imprisonment with a non-parole period of 10 years for four offences of armed robbery and the joint offence committed with the applicant and having five offences of armed robbery, two of them committed with the applicant, on a Form 1. The applicant argues that he should have received a lesser sentence having regard to the greater criminality for which Cavanagh was sentenced. That is not, in my opinion, a legitimate sense of grievance arising from a lack of parity between co-offenders. It is no more relevant to compare the sentence imposed upon Cavanagh than it is to compare the sentence imposed upon some other offender who received a lesser sentence than the applicant did yet committed more offences. The argument in such a case is not concerned with parity but is one based upon a consideration of the available range. If the sentences being compared are within the available range and the difference is a result simply of the exercise of discretion within the range, there is no legitimate sense of grievance for this Court to address.
25 However, the sentence imposed upon Cavanagh does confirm the view that I had already formed that the overall sentence imposed upon the appellant is excessive.
26 In my opinion none of the individual sentences is excessive. A sentence of 7 years seems to me to appropriately reflect the criminality of the offence taking into account that the applicant was on parole at the time. The offences were aggravated as his Honour found and there was little by way of mitigation. The only basis for a finding of special circumstances is the fact that there will be an accumulation of sentences. In my opinion the overall non-parole period should be three quarters of the period the applicant is to spend in custody. The overall sentence should be 10 years with an overall non-parole period of 7 years 3 months. The non-parole period is three quarters of the 11 years sentence taking into account the 12 months accumulation with the balance of parole. The applicant will be eligible to be considered for release to parole on 13 November 2014.
27 I propose the following orders. The application for leave is granted and the appeal allowed in part. The sentence for count 1 is confirmed. In respect of count 2 the term of 7 years, made up of a non-parole period of 4 years 6 months and a balance of term of 2 years 6 months, is confirmed but is to date from 14 August 2009 with the non-parole period to expire on 13 February 2014. In respect of count 3 the sentence is quashed and in lieu a term of 7 years is imposed to commence on 14 August 2010 and made up of a non-parole period of 4 years 3 months to expire on 13 November 2014 and a balance of term of 2 years 9 months from 14 November 2014.
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