21 The learned sentencing judge took into account a number of subjective features which were advanced on behalf of the respondent. Principal amongst those matters was the fact that the respondent had for a long time before the commission of the first of the offences which I have referred to above had been addicted to the drug heroin. He had a criminal history which his Honour described as not being shocking. At the time of sentence he was 27. While in the past he had a difficult relationship with his parents his father gave evidence on his behalf in the sentencing proceedings. His father acknowledged the difficulty confronting the respondent in dealing with his drug addiction but promised his full support in assisting his son.
22 In its submissions the Crown conceded that the individual sentences passed by his Honour could not be the subject of challenge. In my view this is not necessarily so. In my view the fixed terms of three years for the robbery at North Sydney and the crime of malicious wounding at Vincentia are exceptionally lenient. However, as the Crown had mounted no challenge to the individual sentences passed I shall make no further reference to this aspect.
23 In Pearce v The Queen (1998) 194 CLR 610 in the judgment of McHugh, Hayne and Callinan JJ at 623 the following statement of principle is found:
"A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality."
24 While it is true that his Honour made no specific reference to Pearce in his remarks on sentence the fact is that he did fix what he found to be an appropriate sentence for each offence. While the Crown has submitted that his Honour while dealing correctly in terms of procedure with the first step adumbrated by the High Court in Pearce he failed to consider properly questions of cumulation or concurrence as well as the question of totality, however, in his remarks on sentence his Honour did observe:
"When sentencing the prisoner I look at the overall criminality of all the offences and I have elected to deal with it in that way."
25 On the other hand, his Honour made no reference to the power imposed upon him by s 55(2) of the Crimes (Sentencing Procedure) Act 1999 to impose sentences which could be served consecutively or partly concurrently and partly consecutively. As may be seen from the analysis of his Honour's sentencing order which I have set out above his Honour in fact did not accumulate any of the sentences for the various crimes but in fact dealt with all concurrently.
26 There was no issue that his Honour's sentence was lenient. However, even undue leniency will not on a Crown appeal of itself be sufficient cause for this Court to interfere. Before this Court will interfere with a sentence passed on a Crown appeal it must be satisfied that the totality of the respondent's criminality is so far from being reflected in the sentence passed that 'a material error in point of principle' is established. See R v Bragias (1997) 92 A Crim R 330 @ 331.
27 The objective facts which I have narrated above demonstrate a major breach of the criminal law by the respondent when he his offences are viewed in totality. So much so that I am of the view that the total sentence passed was not merely lenient but did in fact represent a material error in point of principle. Accordingly, I am of the view that this Court should interfere.
28 In interfering this Court must pay due regard to the concept of double jeopardy. In so doing the sentence which this Court would impose on a successful Crown appeal will in the most part not represent the sentence which should have been passed in the first instance. Here I am of the view that his total criminality would require that he serve a minimum term of no less than five years. However, because of the concept of double jeopardy this Court should discount that figure. In my view a discount of six months for double jeopardy would be appropriate. It may be seen that as at the date of hearing of this appeal, namely 2 August 2001, the respondent had been incarcerated for a period of almost three years. Indeed with the exception of the sentence for the robbery at Vincentia the terms of imprisonment imposed for his other offences being fixed terms were to expire on 5 August 2001 - before these reasons are given. An appropriate sentencing order in this case would involve the exercise of the powers to impose consecutive sentences given by s 55(2) of the Crimes (Sentencing Procedure) Act 1999 to which I have made reference earlier in these reasons. Utilising that power I would commence the sentence of six years imprisonment with a non-parole period of three years and six months imposed by his Honour in respect of the charge of robbery whilst armed at Vincentia to commence, not as his Honour set the commencement date on 6 August 1998, but on 6 August 1999. This would mean that the respondent would be eligible to be released on parole on 5 February 2003. Accordingly, I propose the following orders:
- Appeal upheld.
- Sentencing order varied by quashing the sentence of six years imprisonment consisting of a non-parole period of three years and six months commencing on 6 August 1998 and expiring on 5 February 2002 and substituting in lieu thereof a sentence of six years imprisonment with a non-parole period of three years and six months commencing on 6 August 1999 and expiring on 5 February 2003.
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