The sentencing judge's remarks
39 The sentencing judge observed that the respondent was to be sentenced in relation to 6 counts on the indictment together with 4 charges on the Form 1. His Honour accepted that the various offences were serious and identified the fact that count 4, count 5 and charge 2 on the Form 1 were all offences which had been perpetrated on the same victim. His Honour appropriately identified the maximum penalty for each offence.
40 His Honour noted in particular that count 5 was a very serious offence attracting a maximum penalty of 25 years. He stated that the series of offences was clearly disturbing and that count 5 was particularly brutal. His Honour accepted that many of the offences would have been terrifying for the victims. His Honour also accepted that count 3 was aggravated by the fact that it occurred in the home of the victim Ms Kityanyong.
41 The sentencing judge accepted that the pleas of guilty were not entered at the earliest opportunity but acknowledged the Crown's concession that the respondent was nevertheless entitled to a 20% discount for the utilitarian value of the plea. Observing that the respondent had pleaded guilty, his Honour correctly identified the fact that the standard non-parole periods were not directly relevant but remained relevant as a "guide post". He accepted an obligation to make a finding in relation to the relative objective seriousness of each of the offences. In this respect his Honour said that count 1 was "towards the bottom of the range for offences of its type." He said that in relation to counts 2 and 6 they were "about the middle of the range, perhaps a little lower." In respect of count 5 his Honour found that that count was "above the middle of the range for offences of its type, but not by much, given that those offences always are serious." His Honour noted that the particular features of count 5 were:
"i. the persistent nature of the attacks on the victims;
ii. the nature and extent of the stabbings, although noting wounding is an element of the offence; and
iii. the vulnerability of the victims by reason of their occupation as service station attendants (s 21A(2)(1) of the Crimes (Sentencing Procedure) Act 1999."
42 The sentencing judge found that the respondent is a relatively young man and at the time of sentencing had only just turned 20 years of age. His Honour determined that he had a dysfunctional upbringing notwithstanding the substantial efforts of an aunt to neutralise the effects on him of an "environment which was characterised by violence, alcoholism and drugs" which had been "the prevailing theme of the respondent's life to date." It is apparent that the respondent has received little formal education, having been expelled from school. He does have artistic talent which the judge described as "works of significance and his ability is obvious."
43 The sentencing judge concluded that the background of the respondent disclosed a history that is "all too familiar for young Aboriginal men on the mid-north coast of New South Wales and in other parts of rural New South Wales." His Honour referred to the principles described by Wood CJ at CL in R v Fernando (1992) 76 A Crim R 58 concerning the sentencing of persons with a particularly disadvantaged and deprived background, such as many indigenous offenders. The sentencing judge indicated that he would bear these principles in mind when sentencing the respondent.
44 His Honour was conscious of the fact that there was a need for general deterrence, indicating however that he shared "the scepticism of many that general deterrence might not be the great forensic weapon that others in other sections of the community believe it is." He also acknowledged that in sentencing young people, general deterrence may play a lesser role than the possibility of an offender's rehabilitation.
45 The sentencing judge recognised that the task before him was difficult. He identified that "clear and stark tension between the subjective features of the case and … the brutal reality of the objective seriousness of the crimes."
46 The sentencing judge also recognised that the decision of this Court in R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 was important and said he would bear it in mind. His Honour found the circumstances of the offences involving robbery, that is counts 3, 4 and 5, were more serious than those identified in the guideline judgment, observing that:
"… almost all of the features that are identified in Henry appear here, or at least in some of the offences. There are features that are well beyond Henry such as the amounts of money taken (which) could never be characterised as a small amount, so that, to an extent, Henry is of limited assistance."
47 His Honour also said that he would have regard to the matters relevant to the offence of break and entering referred to by this Court in R v Ponfield [1999] NSWCCA 435; (1999) 48 NSWLR 327.
48 The sentencing judge also recognised that counts 5 and 6 were offences committed when the respondent was at large on a bond. His Honour correctly identified this as an aggravating feature on these counts.
49 His Honour concluded that:
"… what all these crimes represent is the conduct of a young man out of control, ignoring the rights of others and oblivious to a person's rightful understanding that they are entitled to go about their affairs without being assaulted and attacked and injured, seriously injured."
50 The sentencing judge found that there were special circumstances because of the fact that he committed the offences, the respondent had only just turned 18. His Honour found that there were some prospects of rehabilitation and furthermore being required to impose a separate sentence for each offence (Pearce v R [1998] HCA 57; (1998) 194 CLR 610) recognised the need to adjust the sentences to reflect an appropriate sentence for the overall criminality involved.