ground (1): manifestly excessive?
31 In written submissions, counsel who then represented the applicant argued that:
"... when regard is had to the maximum penalty, the absence of aggravating factors and the presence of multiple mitigating factors indicates that a sentence of three years' imprisonment is manifestly excessive for Count 1."
32 She contended that, had the assault offence been the only offence for which the applicant was to be sentenced, there would have been compelling reasons for not imposing any form of custodial sentence. Counsel implicitly recognised, however, that the robbery charges carried virtually an inevitability of a prison sentence, which would make a non-custodial sentence in relation to the assault offence impracticable. In that circumstance, she submitted, a short fixed term of, perhaps, three months' imprisonment would adequately have met the demands of sentencing principle.
33 The total sentence imposed was almost half of the maximum available. This was in the context of an offender who displayed (as counsel described them) "multiple mitigating factors", and no aggravating factors; an offender who was entitled to the benefit of the principles relating to the sentencing of youthful offenders; who was entitled to the benefit of his prior good character; and who was entitled to the benefit of the finding of remorse and contrition (which did not, perhaps, explicitly recognise the extent of the applicant's remorse and contrition as described by his employer). Further, he was entitled to (and received) the benefit of a reduction of his sentence by reason of his plea of guilty. But this, in reality, makes the argument even more compelling. The judge expressly stated that, but for the plea of guilty, the sentence would have been one year longer. In other words, in relation to a first offence, by a young offender with a strong subjective case, the sentence imposed would, but for the plea of guilty, have been more than half - 57% - of the maximum available. That raises the question of where the applicant's offence stands on the scale of objective gravity. It was a serious instance of this offence. While the fact that it was committed in company did not aggravate it (that being an element of the offence, and built into the maximum penalty provided) the sheer number of participants was relevant to the assessment of objective gravity, moving it towards the upper end of seriousness. And while the injury to Mr Costagliola may not have been as serious as is, regrettably, sometimes seen, particularly after incidents such as the one here under consideration, it has to be borne in mind that the applicant was charged with causing actual, not grievous, bodily harm. That fact is also built into the maximum penalty provided. It would not have taken very much more for the injuries to have fallen into the classification of grievous bodily harm - by which I mean that it is possible to see the injury as towards the top of the range of injuries sustained after offences of this kind. Nevertheless, in my opinion, a sentence of 57% of the maximum could be seen, in all the circumstances, as disproportionate.
34 Counsel also drew attention to another passage in the remarks, in which his Honour, in drawing distinctions between the two offenders, said:
"There are significant differences between the situations of these offenders. One is the matter of comparative criminal histories, to which I have referred, which is in Afele's favour, and there is the question of age, which, similarly, is marginally in his favour ." (emphasis added)
35 It is true that this observation was made specifically in relation to parity considerations to which I will shortly come. I accept, as was submitted, that it would appear from this passage that the applicant was given inadequate recognition of those sentencing principles relating to youthful offenders. Age was not "marginally" in his favour; he was at the very lowest age range of offenders sentenced in adult courts.
36 I have concluded that a starting point of 57% of the maximum penalty available reduced by 25% in recognition of the plea of guilty represents a sentence appropriate to the objective gravity of the offences, but it does not reflect the strong subjective case, which entitled the applicant to some reduction.
37 I have, after some hesitation, come to the view that this ground of appeal has been made out. Regrettably it avails the applicant little. That is because the manner in which all sentences were structured took the sting out of the disproportionately high sentence. Firstly, the finding of special circumstances meant that the non-parole period, which would otherwise have been two years and three months was reduced to two years; and, secondly, the partial concurrency of the subsequent sentences had the effect of reducing the effective sentence for this offence to a fixed term of one year. Except for the period of one year between 29 July 2004 and 28 July 2005, the sentence is entirely subsumed in those subsequently passed. Had the applicant stood for sentence only on the assault offence, the error would, of course, have been of considerable significance. But its effect has been swallowed by subsequent events.
38 Counsel then submitted that, apart from parity considerations, it would have been open to his Honour, in respect of the assault offence, to have made a Community Service Order. In my opinion the concession that the robbery offences called for a full-term period of custody was a concession properly made. A Community Service Order would have been quite inappropriate and, as counsel said, impracticable, in the light of the need for a full-time custodial sentence in relation to the robbery offences.