R v Anthony Hili (No 2) [2010] NSWCCA 195
R v Harris [2007] NSWCCA 130
R v Henry (1999) 46 NSWLR 346
[1999] NSWCCA 111
R v Thomson and Houlton (2000) 49 NSWLR 383
Source
Original judgment source is linked above.
Catchwords
R v Anthony Hili (No 2) [2010] NSWCCA 195
R v Harris [2007] NSWCCA 130
R v Henry (1999) 46 NSWLR 346[1999] NSWCCA 111
R v Thomson and Houlton (2000) 49 NSWLR 383
R S HULME AJ: The Court has before it appeals by the Crown against sentences imposed on three offenders who, together or in different combinations, participated in a number of offences of robbery whilst armed with an offensive weapon or attempts to commit such an armed robbery.
Each offender was aged 18 at the time of offending and had no previous convictions. Phegan ADCJ imposed aggregate sentences - a course permitted by s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW). In the case of Mr Schaafhausen the sentence imposed was imprisonment for 5 years including a non-parole of 2 years and 6 months commencing on 24 October 2014. In the case of each of Messrs Faaoloii and Tuala the sentence imposed was of imprisonment for 4 years and 6 months including a non-parole period of 2 years and 3 months commencing on 24 October 2014.
R v Faaoloii, Schaafhausen & Tuala [2016] NSWCCA 263 | Case summary | Zoe
The modus operandi adopted in the offending was to drive to a location near the premises intended to be robbed, generally a 24 hour service station, and gain entry to the premises with faces covered, one offender being armed with a crowbar and the other with a painted, but presumably realistic, cap gun. Sometimes entry was gained through an unlocked door although on most occasions glass in or adjacent to a front door was smashed with the crow bar. Demands and threats were made to employees and monies or other items were taken. Sometimes one of the offenders was more active or more aggressive than the others, but given the nature of the joint criminal enterprise that occurred on each occasion the particular part played by one rather than another is of limited importance.
A short account with reference to some distinctive features of each offence is as follows.
The first offence was on 7 October 2014 at about 5.40am at the United Service Station at Bonnyrigg and about $600 and cigarettes worth about $2,000 were taken. Messrs Schaafhausen and Faaoloii entered the premises while the door was unlocked. Mr Faaoloii was armed with a crowbar and Mr Schaafhausen with the gun with which he threatened the service station employee on a few occasions. Mr Tuala was not involved.
The second offence occurred on 8 October 2014 at about midnight at the BP Service Station at Bonnyrigg. Mr Faaoloii used the crowbar to smash the front door. Mr Schaafhausen was armed with the gun which was used to threaten the console operator. About $450 was taken. Again Mr Tuala was not involved.
The first Form 1 matter and which involved all three Respondents was an attempted armed robbery at the AHU Coles Express Service Station at Cabramatta and occurred at about 2.30am on 8 October 2014. Mr Tuala smashed the front door with the crow bar. He and Mr Faaoloii who was armed with the gun entered the premises and the console operator was threatened with the gun. Perhaps because he had isolated himself from the offenders, he refused to open the register or a door (presumably to the console area) and the offenders left empty handed. Sometime before the attempted robbery, Mr Schaafhausen was observed to be keeping watch or scouting.
Messrs Schaafhausen and Faaoloii asked that this Form 1 offence be taken into account with the second offence charged. Mr Tuala asked that it be taken into account with the eighth offence charged.
The third offence charged occurred on 8 October 2014 at about 2.55am at the United Service Station, Prariewood. Again entry was gained by the smashing of glass. On this occasion Mr Schaafhausen was armed with the crowbar and Mr Faaoloii with the gun which was pointed at the employee on duty. All three offenders entered the premises and money, cigarettes and groceries were taken.
The fourth offence charged occurred on 10 October 2014 at about 2.50am at the Seven Eleven Service Station at Campbelltown and involved all three offenders. Again entry was gained by the smashing of the front door. The glass on seven of the nine fridges inside the premises was also smashed and a combination lock on a security door was damaged. Mr Schaafhausen was armed with the crowbar and Mr Faaoloii with the gun.
On hearing the front door glass smash, the console operator had retreated to a cool room. Mr Faaoloii dragged him out by the collar of his jacket and hit him on the back of the head. Mr Faaoloii also seemed angry when the operator was unable to open the safe, pointed the gun at the operator and said "Open the safe or I'll shoot you." Money, cigarettes and groceries were taken. The console operator suffered a minor laceration to his left hand.
The fifth offence charged occurred on 15 October 2014 at about 3am at the Seven Eleven Service Station at Minto. The console operator went outside to tidy the grounds where he was accosted by Messrs Schaafhausen and Faaoloii. The latter pushed the gun into the right side of the operator's body as both offenders forced him back into the store. Later the gun was again pointed at the operator's chest while demand was made that the safe be opened. When the operator told Mr Faaoloii he did not have the key to the safe, Mr Faaoloii became angry, slammed his fist on the counter, kicked a nearby tin and repeated "give me the money or I'll kill you." After the offenders had obtained possession of the money that seemed to be available, Mr Faaoloii told the operator "lay down on the floor and don't call the police" and the offenders departed. In excess of $525 and groceries were taken. Inside the premises Mr Schaafhausen was armed with the crowbar and all three offenders were involved.
The sixth offence charged occurred on 17 October 2014 at about 2.30am at a McDonalds' restaurant at Green Valley. A fourth offender was also involved. In the restaurant were three employees and several customers. Mr Schaafhausen, carrying the crowbar, forced one employee into a corner of a store room saying "keep your head down or I'm going to kill you". Mr Faaoloii grabbed the manager and pointed the gun towards the manager's face, forcing him into the office and demanding that he open a safe. Later similar demands were made for the opening of a cash register. Mr Tuala had remained outside keeping watch. The fourth and unknown offender took a female employee into a store room said he was not going to hurt her but demanded she open the registers at the front of the store. About $3,000 was taken.
The aspect involving the unknown offender and the female employee was treated as a separate instance of armed robbery and included on a Form 1. This was the second Form 1 matter and, as participants in a joint criminal enterprise, involved all three Respondents. All three Respondents asked that this Form 1 offence be taken into account with the sixth offence charged.
The next offence, also an attempted robbery, was also the subject of a Form 1 in the case of all three offenders. The offence occurred in the early hours on 20 October 2014 at the Fast and Easy Service Station, Liverpool. Mr Schafhausen was armed with the crowbar and Mr Faaoloii with the gun. Again the glass in the front door was smashed and the attendant on duty was threatened with the gun and crowbar. The employee ran into the office, pulled down a roller door and pressed a duress alarm. The offenders left empty handed, Mr Tuala only commencing to enter the premises as the others left. Mr Faaoloii had cut his knee while climbing through the broken glass door, later presenting at the Liverpool Hospital for surgery on a laceration to the knee. He did not actively participate in later offences. All three Respondents asked that this Form 1 offence also be taken into account with the sixth offence charged.
The seventh offence charged occurred on 22 October 2014 at about 2.30 am at the United Service Station at Prairewood, the same premises as had been the subject of the third offence charged. Again the front door was smashed with a crow bar and Messrs Schaafhausen and Tuala entered. Mr Schaafhausen was armed with the gun, threatened one of the two employees on duty and forced him to the ground where the gun was held against his neck. The items taken were some $1,700 worth of cigarettes, some condoms and at least $350.00.
The eighth offence charged occurred at about 2.30 am and also on 22 October 2014 and was at the United Service Station at Minto. While using the crowbar to smash the front door, Mr Tuala called to the console operator to open the door or "I'll smash you as well". The operator then opened the door. Mr Schaafhausen pointed the gun at the operator who was told to open the cash register. He did so. Some $800, cigarettes and condoms were taken.
A fourth incident included on Forms 1 was an attempted robbery on 22 October 2014 which occurred a short time later at the Budget Petrol Station, Moorebank. Mr Tuala smashed the front doors with the crow bar but, the console operator having active the duress alarm and said "cops", the offenders left empty handed. Mr Schaafhausen was armed with the gun. Messrs Schaafhausen and Tuala asked that this offence be taken into account with the seventh offence charged.
The last offence occurred in the early hours of 24 October 2014 when an attempt was made to rob the Seven Eleven Service Station at Casula. Mr Tuala smashed the front door with the crow bar. At this time the offenders were the subject of police surveillance, their activities were interrupted and they were arrested. Mr Schaafhausen was in possession of the gun. Mr Faaoloii had remained in the vehicle. This offence also was the subject of a Form 1 in the case of all three offenders. All three offenders asked that this offence be taken into account with the third offence charged.
Insofar as the information provided details of the amounts and items taken I have referred to this above. Otherwise the information is not included in the appeal papers and seems not to have been before Phegan ADCJ.
Mr Schaafhausen was involved in all of the eight offences charged and the five included on Forms 1.
Mr Faaoloii was involved in all of the offences charged except those the subject of counts 7 and 8. He was involved in all of the Form 1 offences except the attempted robbery of the Moorebank Budget Petrol station on 22 October, and which I have referred to as the subject of the fourth Form 1.
Mr Tuala was involved in all of the offences charge except those the subject of counts 1 and 2. He was also involved in all of the five Form 1 offences.
His Honour recorded that each of the offenders pleaded guilty at a "very early stage" and "at the earliest opportunity" and that each gave evidence during the sentence hearing. Each was the subject of a report by Dr Furst, a consultant psychiatrist.
Mr Faaoloii completed his Higher School Certificate and was described as "a keen and capable sportsman". His family life was disrupted in consequence of his father being imprisoned, neglectful and violent towards the offender. His parents separated when he was 10. Thereafter he did have some support from an uncle and his maternal grandfather although in 2008 his mother was diagnosed with bi-polar disorder.
He became frustrated in consequence of a breakdown of a 4 year relationship and not being able to obtain a job after completing his HSC. He was also affected by being informed of the molesting of three of his sisters by his paternal grandfather, information which made him concerned that he had not done more to protect them. He began binge drinking which induced him to become aggressive. He commenced using steroids and progressed to ecstasy. His motivation in offending was to feed his drug and alcohol habits although the easy money provided an opportunity to provide financial support for his family.
Dr Furst diagnosed him as having an adjustment disorder with depressed mood and a substance use disorder attributable to the events that led to Mr Mr Faaoloii's offending. Dr Furst detected no intellectual disability or major mental illness.
Mr Schaafhausen completed year 12 and then worked as a plumber, a trade which he intends to pursue. He was a rugby league player of considerable potential and the subject of a number of favourable references. Inter alia, he was described as a positive role model and a mentor to younger players.
His Honour observed that Mr Shaafhausen displayed a complete inability to deal with adverse circumstances constituted in part by the breakdown in a 5 year relationship and turned to illegal drugs and alcohol from about February 2014. His offending was at least in part to feed these addictions. Dr Furst diagnosed him also as having an adjustment disorder.
Mr Tuala is the eldest of four children. He completed year 12. Due to ill-health on the part of his father, Mr Tuala was under some pressure to provide financial support for his parents and undertook part time work while still at school. His employment was disrupted when without reasonable notice he left Australia to attend birthday celebrations in his home land of New Zealand and was not available on his return.
In consequence he felt under stress and engaged in increased alcohol consumption and gambling. He became desperately in need of money to fund these habits, became aware of the plans of his co-offenders and joined them as a way of making easy money. He was diagnosed by a psychologist Danielle Hopkins with "borderline intellectual function" - a condition Phegan ADCJ regarded as contributing to his offending.
His Honour accepted that Mr Tuala was remorseful, had a genuine commitment not to reoffend and had support from his family, the broader Samoan community and one of his previous school teachers.
The above is a brief account of some of the Respondents' subjective circumstances. Phegan ADCJ remarked that until the beginning of 2014 their characters were impeccable and referred to "compelling evidence of good character" of a degree he had rarely experienced. There was no challenge to these conclusions and accordingly it is unnecessary for me to detail the evidence here. It is sufficient to say that the evidence supports his Honour's assessment of it.
In approaching the sentencing task, Phegan ADCJ remarked:-
It would in my view be inappropriate, given the proximity of the offences in time, to attempt to allocate an appropriate sentence even on an indicative basis, for each and every offence. My decision is therefore that the offences should be approached on this basis. First of all there should be an indicative sentence determined on the basis of what represents the most appropriate sentence for the more serious instances of the kind that have involved all of the ingredients I have just identified. I will then differentiate between the offence which occurred between 7 October and 10 October 2014, which I regard as essentially one group of offences that can be bracketed together followed by those offences committed on 17 and 20 October which form a second category and thirdly the offences committed on 22 October.
With regard to the appropriate starting point, and I emphasise this because I foreshadowed that there are a number of different general considerations that all have to be brought to bear before the actual sentences are determined, but as a starting point and in order to identify what I regard as a sentence appropriate to the typical case, that is a case in which weapons were used and threats were made including threats of a quite serious kind, where the proceeds of the offence were substantial and where therefore the relevant factors arising from the decision in Henry were particularly prominent. The appropriate sentence in regard to those offences is one of three years and six months in total.
In his remarks his Honour never specified the offences that he regarded as the "more serious instances" and it is not clear which offences his Honour so regarded. "The ingredients … just identified" were "weapons …threats made, in some instances threats of death or of serious harm, and … quite significant proceeds from a number of offences". However the same weapons, gun and crowbar were used in all offences and in all offences was the gun pointed at the employee present. In the offence the subject of counts 4 there was an express threat to shoot and in the offences the subject of counts 5 and 6 an express threat to kill. In the offence the subject of count 7 there was an express threat to "smash" the employee and the gun was held against his neck. Later his Honour identified the offences the subject of counts 1, 6 and 7 as "typical occasions" when amounts well in excess of a small amount were taken.
His Honour then went on to compare the offences with the category of case that was the subject of the guideline judgment in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111. His Honour drew attention to differences, some operating in one direction and some in others and reiterated that for "the typical case in the history of this matter, the appropriate sentence, is one of three years and six months".
His Honour then addressed a number of matters referred to in s 21A of the Crimes (Sentencing Procedure) Act inter alia observing:-
Under s 21A(3)(g) the offender is unlikely to re-offend. I note that in the cases of Faaoloii and Schaafhausen, Dr Furst's view of this are guarded in the sense that he is not absolutely confident about the unlikelihood of re-offending, although as I noted when dealing with his reports, that he does indicate that such likelihood is certainly diminished by appropriate rehabilitation measures which will be included in the conditions of sentence. In those circumstances I regard this as a further mitigating factor.
The offender has good prospects of rehabilitation, whether by reason of age or otherwise (s 21A(3)(h)). Again this is a case of three very young offenders. The prospects of rehabilitation are good. Again, Dr Furst is guarded in regard to the first two or the three offenders but again his qualifications are themselves qualified by recognition of the likely benefit of appropriate rehabilitation measures. I accept on all of the evidence that there are good prospects of rehabilitation in the case of all three offenders.
His Honour then accepted that all Respondents were remorseful and continued":
For all of those reasons I have struck the sentence of the typical case at the lower end of the Henry range which, in my view, is the appropriate point at which to determine the sentence of all three offenders.
His Honour then addressed the multiplicity of offences. He expressed the view that the offences of 7, 8 and 10 October were within such a short period of time that any sentences imposed for them should be served concurrently. He accepted a submission that there had then been time for reflection by the offenders and took the view that the offences committed on 15th to 20th October should be treated as a second group, the sentences for offences within this second group being also concurrent with each other but aggregated to some extent with the sentences imposed for offences within the first group. His Honour determined that the extent of aggregation should be 12 months.
His Honour then adverted to the absence of Mr Faaoloii from the offences of 22 October and thought that the sentences for the offences of that date should be the subject of a further aggregation of 6 months. So it was that he arrived at the sentence of 5 years for Mr Schaafhausen and, subject to some further remarks, also for Mr Tuala.
In those further remarks his Honour took the view there should be reduction, inter alia because Mr Tuala had commenced offending later than the others. So it was that Mr Tuala finished up with the same 4 years and 6 months sentence as Mr Faaoloii.
Some other features of his Honour's reasoning must be mentioned. After he imposed the aggregate sentence on Mr Faaoloii, and then made a finding of special circumstances, his Honour remarked, "I also take into account in the sentence I have imposed of the matters on Forms 1" (sic). After sentencing Mr Schaafhausen and also made a finding of special circumstances, his Honour remarked, "I have taken into account the matters of the Forms 1". His Honour made no reference to Forms 1 or special circumstances when sentencing Mr Tuala even though the sentence he imposed required such a decision and reasons for it - see Crimes (Sentencing Procedure) Act, s44(2). His Honour had previously on a number of occasions recognised the existence of the Forms 1 but at no stage had complied with the terms of s 33.
Each of the Forms 1 contains a printed statement, with variation of the offender and offence, to the effect:-
This is to certify that, in dealing with Charlton Reeves Schaafhausen for the offence of Robbery Armed with an offensive Weapon H56170321 [Count 2] of which the person has been found guilty, the Court has taken into account the offences admitted by the person numbered 1 in the list of the back of this document."
Immediately under that statement, each Form 1 has been dated 30 March 2016 and is signed by his Honour.
The Court was also provided with the formal District Court records of the orders made and sentence warrants for each Respondent. These last mentioned documents contain statements as to the sentences imposed that differ from statements in the formal records and also differ from the statements of the sentences contained in his Honour's remarks. The reason for the discrepancy, which should obviously never have occurred, is not apparent but nothing turns on it in these appeals.
However, the terms of the formal records are significant. After recording the name of the particular offender and judge, the type of matter, date, court and appearances the documents proceed (I quote that relating to Mr Faaoloii by way of example):
You are sentenced to a term of imprisonment of two years and 3 months commencing 24 October, 2014 and expiring on 23 January 2017. Balance of sentence to commence at the expiration of the NPP and expire on 2 April, 2019.
You will be eligible for release to parole on the expiration of the NPP period, subject to the supervision of Community Corrections with particular regard to...
I find special circumstances.
Take into account the matters on the Form Ones.
I recommend the attention of Corrective Services to the recommendations in Dr Furst's report of 17/10/2015 in particular to...
Indicative Sentences:
Count 1 3 year 6 months
Count 2 3 year 6 months
Count 3 3 year 6 months
Count 4 3 year 6 months
Count 5 3 year 6 months
Count 6 3 year 6 months
The document then bears the signature of Phegan ADCJ.
Other matters to be noted are that the offenders were all arrested on 24 October 2014 and have been in custody ever since. Each entered his plea at the Campbelltown Local Court on 10 June 2015. They were sentenced on 30 March 2016. The Notice of Appeal was lodged on 29 April 2016. Mr Schaafhausen's non-parole period is due to expire on 23 April next year. The non-parole period for the others is due to expire on 23 January next year.
The Crown has advanced 4 grounds of appeal:
1. His Honour erred in his approach to indicative sentences when imposing an aggregate sentence.
2. His Honour erred in failing to take into account or failing to properly take into account the offences on the Forms 1.
3. His Honour erred in his approach to assessing the seriousness of the offending and the Henry guideline.
4. The sentence imposed is manifestly inadequate.
Ground 1
1. His Honour erred in his approach to indicative sentences when imposing an aggregate sentence.
Section 53A of the Crimes (Sentencing Procedure) Act provides, inter alia:
(2) A court that imposes an aggregate sentence of imprisonment under this section on an offender must indicate to the offender, and make a written record of, the following:
(a) the fact that an aggregate sentence is being imposed.
(b) the sentence that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 or any other provision of this Act) had separate sentences been imposed instead of an aggregate sentence.
(3) …
(5) An aggregate sentence of imprisonment is not invalidated by a failure to comply with this section.
In Khawaja v R [2014] NSWCCA 80 at [18], with the concurrence of Leeming JA and Button J, I remarked:
Section 53A(2) is clearly directed to ensuring transparency in the process of imposing an aggregate sentence and in that connection, imposing a discipline on sentencing judges.
The passage I have set out above from his Honour's remarks commencing "it would in my view be inappropriate" makes it inescapable that his Honour elected not to accept that discipline and made a deliberate decision not to comply with the requirement of s 53A.
In so concluding, I am not unconscious that there are passages in his Honour's remarks that can be said to argue in the opposite direction but his Honour's selection of 3 years and 6 months as appropriate to "the more serious instances" without any statement of the sentence appropriate to less serious instances or consideration of a difference in sentence between those offences that had a Form 1 offence taken into account and those that did not confirm the conclusion I have drawn from his Honour's unambiguous statement. Certainly his Honour had in mind that a sentence of 3 years and 6 months was appropriate for a "typical case" of the Respondents' offences considered individually but, despite the simplicity of doing so, nowhere does his Honour indicate to the offender(s) "the sentence that would have been imposed for each offence … had separate sentences been imposed instead of an aggregate sentence". Given his Honour had earlier referred to some offences as "more serious" it is impossible to regard all of the offences as within his reference to "typical".
And while a "failure" to comply with s 53A is stipulated not to invalidate a sentence that reflects that failure, it is impossible to avoid the conclusion that a deliberate decision to disregard the dictates of the statutory provision is such a departure from what the law requires that the sentence imposed in consequence is one imposed otherwise than in accordance with law.
This conclusion is unaffected by the contents of the formal District Court record. The references therein to "indicative Sentences" are not an accurate reflection of what his Honour said in his sentencing remarks.
It is an elementary principle of sentencing that it is to be done in open court and the reasons for the sentence imposed then delivered - see R v CJP [2003] NSWCCA 187 and the cases therein cited. It is inconsistent with that principle for a judge to record something different from what occurs in the formal proceedings. The inherent power which exists to alter a judgment after it is delivered extends only to alterations that do not affect the substance - see R v Glyn Morgan Jones; R v Anthony Hili (No 2) [2010] NSWCCA 195 - and, even assuming the section applied, there was no attempt made to use the statutory power conferred by s 43 of the Crimes (Sentencing Procedure) Act.
There is a further matter to which I should refer. Section 101A of the Crimes (Sentencing Procedure) Act provides:
A failure to comply with a provision of this Act may be considered by an appeal court in any appeal against sentence even if this Act declares that the failure to comply does not invalidate the sentence.
The effect of this section was considered in R v Tuncbilek [2004] NSWCCA 139 at [33] and Panetta v R [2016] NSWCCA 85 at [35]-[37]. Those cases have made it clear that, in the event of an appeal, a "failure to comply" does not have the effect of validating a sentence affected by that failure.
I would uphold this ground.
Ground 2
1. His Honour erred in failing to take into account or failing to properly take into account the offences on the Forms 1.
So far as is presently relevant, ss 32, 33 and 35 of the Crimes (Sentencing Procedure) Act provide:
32(1) In any proceedings for an offence (the principal offence), the prosecutor may file in the court a document that specifies other offences with which the offender has been charged, but not convicted, being offences that the offender has indicated are offences that the offender wants the court to take into account when dealing with the offender for the principal offence.
33(1) When dealing with the offender for the principal offence, the court is to ask the offender whether the offender wants the court to take any further offences into account in the dealing with the offender for the principal offence.
33(2) The court may take a further offence into account in dealing with the offender for the principal offence:
1. (a) if the offender:
2. (i) admits guilt to the further offence, and
3. (ii) indicates that the offender wants the court to take the further offence into account in dealing with the offender for the principal offence, and
4. (b) if, in all of the circumstances, the court considers it appropriate to do so.
35(1) If a further offence is taken into account under this Division:
(a) the Court is to certify, on the list of additional charges, that the further offence has been taken into account, and
(b) …
Again the objects of the statutory provisions include ensuring transparency in the sentencing process and, in that connection, imposing a discipline on sentencing judges. Although by the certification by his Honour on the Form Ones, his Honour appears to have complied with the requirements of s 35, it seems to me that the only proper conclusion from his remarks at the time of sentencing that I have set out is that he did not do so. Expressly, in the case of Mr Faaoloii, and impliedly in the case of Mr Schaafhausen, his Honour took the Form 1 offences into account in his determination of the aggregate sentences. In the case of Mr Tuala, his Honour did not take the Form 1 offences into account at all or, more probably, did so in the same way as he had for Mr Faaoloii and simply forgot to mention the fact. Even if the terms of the legislation do not, the decision in Doumit v R [2011] NSWCCA 134 at [14] makes it clear that a Form 1 offence is to be taken into account for a principal offence and not in respect of a total term for multiple offences.
In that connection there are the passages I have quoted that appear after the imposition of sentences on Messrs Faaolii and Schaafhausen. Secondly, having reached the conclusion by comparison with the guideline in R v Henry that an appropriate sentence for what he referred to as a typical case in the history of the matter was one of 3 years and 6 months, his Honour never compared such a case with one that had a Form 1 to be taken into account also and indeed never referred to what might be the impact of a Form 1 offence on any one of the Respondents' offences.
I do not need to rely on it but the bald statement in the formal District Court record, "Take into account the matters on the Form 1" tends to support the view that it was not in relation to particular offences that his Honour took the Form 1 offences into account.
I would uphold this ground.
[3]
Ground 3
His Honour erred in his approach to assessing the seriousness of the offending and the Henry guideline.
In R v Henry this Court indicated that sentences for offences having seven characteristics nominated (at [162]) should generally fall within the range of 4 to 5 years. The characteristics were:
(i) Young offender with no or little criminal history;
(ii) Weapon like a knife, capable of killing or inflicting serious injury;
(iii) Limited degree of planning;
(iv) Limited, if any, actual violence but a real threat thereof;
(v) Victim in a vulnerable position such as a shopkeeper or taxi driver;
(vi) Small amount taken;
(vii) Plea of guilty, the significance of which is limited by a strong Crown case.
The Court recognised that aggravating and mitigating factors would justify a sentence below or above the range.
Subsequently in R v Thomson and Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 the Court indicated that reflected in the R v Henry guideline was a discount of the order of 10% for an offender's guilty plea. In Thomson and Houlton itself the Court held that that was an appropriate discount for a late plea but a discount of 25% might well be appropriate for a plea at an early stage.
In the comparison which he made Phegan ADCJ recognised that the Respondents' offences fulfilled the first, third, fourth, fifth and seventh of the characteristics nominated in R v Henry. While acknowledging the crowbar, but also that it was generally not used to threaten the victims, his Honour took the view that the weapons contemplated in R v Henry were more serious than those used by the Respondents but that some of the amounts taken were well in excess of a "small amount". His Honour expressed the view that these factors tended to cancel each other out and accordingly the more serious of the Respondents' offences fell within the guidelines. Then, adverting to R v Thompson and Houlton and his view that the Respondents were entitled to a 25% discount, his Honour concluded that the sentence appropriate for what he regarded as one of the Respondents' "more serious" offences was a sentence of 3 years and 6 months.
So far as that comparison goes, it was in my view unexceptionable. The criticism made of his Honour's remarks was that his Honour then gave further weight to the Respondents' good character, their youth and the impact on the Respondents that a sentence fully reflecting the totality of offending would have, and ignored the fact that the offences were committed in company (a matter recognised in R v Henry as possibly aggravating) and, to a large extent, ignored that each offence was not isolated.
Certainly the fact that the offences were committed in company, particularly company made apparent to the victims, was an aggravating feature. On the other hand it must be remembered that R v Henry is but a guideline and the purposes of sentencing are not simply to punish but also to promote the rehabilitation of the offender. In the exercise of the wide sentencing discretion which judges have, a sentencing court is required to make an assessment of the offender and the description in R v Henry of "young offender with no or little criminal history" is so broad that it cannot be definitive of what, vis-à-vis the offender the court is to consider. It was entirely proper for his Honour to have regard to the Respondents' good character, their youth and the impact on them of a sentence more proportionate to the totality of their offending. Whether his Honour placed undue weight on these factors is more appropriately dealt with in consideration of the next ground.
I would reject this ground.
[4]
Ground 4
The sentence imposed is manifestly inadequate.
There is no doubt that his Honour derived a very favourable view of the Respondents. The age of the Respondents means that each has an opportunity of re-establishing a worthwhile life for himself and there is no doubt that the longer they are imprisoned, the more that opportunity is liable to be reduced. They were entitled to have taken into account the fact that, prior to about the beginning of 2014, each had led a blameless life.
However, the interests of the Respondents are not the only ones to be considered and it was in an attempt to balance the competing interests that arise in the case of armed robbery offences that the guidelines in R v Henry were stated.
And one has only to reflect on what was said in R v Henry to reach the conclusion that this ground is made out. I have indicated that I regard his Honour's derivation from that case of a sentence of 3 years and 6 months for one offence as reasonable and acknowledged that there were some further matters to be taken into account. However, Messrs Faaoloii and Tuala committed not one but ten offences and Mr Schaafhausen committed thirteen. In a number of these, victims were threatened with death and must have been terrified. No matter what the subjective circumstances of the Respondents, against these matters sentences of respectively 4 years and 6 months and 5 years were manifestly inadequate.
His Honour's errors were compounded by the non-parole periods he fixed. At 50% of the head sentences they were, if not unprecedented, extraordinarily lenient and the result manifestly inadequate. About, or a little more than, 25% of a proper head sentence would still have provided adequate time on parole.
There can be no doubt that one of the errors his Honour made was to group the sentences as he did and indicate that the sentences within each group would be concurrent. In that connection remarks in Qing An v R [2007] NSWCCA 53 at [66]-[67] may usefully be quoted:
66. There may be circumstances in which such an approach is appropriate. However, I do not consider that it is appropriate in a case such as the present where the number of offences is not so numerous that to deal with them individually would be cumbersome. Indeed, in a case such as the present, involving eight offences, six of which were committed on separate occasions, there is a danger in failing to deal with each offence separately in that the criminality involved in the individual offences may be overlooked or become lost in the attempt to assess the totality of the seriousness of the offences.
67. As was pointed out in Pearce v The Queen (1998) 194 CLR 610; [HCA 57 "totality is considered after the individual sentences are imposed. In Pearce, McHugh, Hayne and Callinan said (at [45]):
"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."
Whether intended or not, the practical effect and the clear message of his Honour's approach were that no punishment was being imposed for the second and subsequent offences in each group. To take by way of example the offences on 7, 8 and 10 October. Whatever sentence was appropriate for the offence of 7 October, the further offending on 8 and 10 October required some increase in sentence. The fact that the three offences occurred within a period of a few days did not justify proceeding in effect as if the later offences had not occurred. On those further days more damage was done to premises, more property was stolen and more persons were threatened. The criminality in those subsequent offences was effectively ignored and went unpunished.
Similar error affects the other grouping of offences by his Honour. This ground is made out.
[5]
Other Matters
Even though in a Crown appeal error is shown, the Court has a discretion whether to interfere, the onus being on the Crown to show that that discretion should be exercised. In this case the Court was urged not to do so. It was submitted that the principles of sentencing by way of aggregate sentences and for robberies are well known and there is no need for further instruction by way of "principles for the governance and guidance of courts having the duty of sentencing convicted persons". This case demonstrates either that such principles are not well known or, for whatever reason, not adhered to. I am satisfied that the errors in the sentencing of the Respondents are so gross that the only appropriate course for this Court to adopt is to allow the appeals and re-sentence.
In so doing it is well to bear in mind the remarks of Sully J endorsed by this Court in R v Harris [2007] NSWCCA 130 at [46]:
… (there) is the need to ensure public confidence in the administration of criminal justice; and, in particular, to ensure that there does not emerge in the community at large a perception that there is not all that much to choose between the person who commits one or two offences, and the person who commits six or seven offences, for the reason that somehow or other they all manage to finish up with effective sentences between or among which there is hardly anything in practical terms to choose.
It needs to be clearly understood by all concerned that a person who commits a deliberate series of discrete offences, - and the present applicant's case, is a good example of this kind, - he must not be left with the idea that by intoning references to the principle of totality as though it were some magic mantra, he can escape effective punishment for the offences which follow successively one upon another throughout the whole course of a studied and deliberate course of criminal behaviour.
If this Court is to impose an aggregate sentence as, in my view, is appropriate, it must comply with the terms of s 53A. The sentences I would impose for each offence were I to impose separate sentences are:
Mr Schaafhausen
Counts 1, 4, 5, 8 - imprisonment for 3 years and 6 months.
Counts 2, 3, 6 and 7 - imprisonment for 3 years and 9 months.
Mr Faaoloii
Counts 1, 4, 5 - imprisonment for 3 years and 6 months.
Counts 2, 3 and 6 - imprisonment for 3 years and 9 months.
Mr Tuala
Counts 4, 5 - imprisonment for 3 years and 6 months.
Counts 3, 6, 7 and 8 - imprisonment for 3 years and 9 months.
The reason for the longer period for some counts is that they relate to offences where a Form 1 matter was taken into account. Of course there were also other differences, such as the value of what was stolen, but in the circumstances I have chosen not to differentiate on that ground.
Appreciating that the principle of totality precludes simply adding together whatever sentences are appropriate for each of a Respondent's offences, nevertheless the ultimate sentence should reflect some punishment for each offence. I would propose as an aggregate sentence for each offender one calculated by adding to the period of 3 years and 6 months Phegan ADCJ determined a period of about 6 months for each offence charged other than the first. Logic suggests the offences in respect of which a Form 1 offence was taken into account should attract higher increments as an incident of this aggregation but given the magnitude of the result in any event I would not make this differentiation.
The result would be a head sentence for Mr Schaafhausen of 7 years and for Messrs Faaoloii and Tuala of 6 years.
Interference with the non-parole periods is more complicated because, particularly in the case of Messrs Faaoloii and Tuala, the non-parole periods Phegan ADCJ imposed are soon to expire. Certainly the Respondents have known for some time of the Crown appeals but no doubt have otherwise been expecting to be released to parole in January of next year. They are still young and not hardened criminals and to be informed at this stage that release is to be postponed for a substantial period would undoubtedly be traumatic and might well interfere with their rehabilitation.
In the result and notwithstanding that I regard the non-parole periods imposed by Phegan ADCJ as also manifestly inadequate, I would propose that in the exercise of this Court's discretion, there be no interference with those periods. If the Respondents conduct themselves properly, those periods will have served a purpose. If the Respondents do not, then the increased full terms that I propose will operate.
In proposing as I have, I am conscious that the non-parole periods will be even smaller proportions of the total sentences than in the case of the sentences under appeal.
However, the factor that principally inspires my view that there should be no interference with the non-parole periods - the likely imminent occurrence of the Respondents' release on parole - see Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [43] - has no significant bearing on the length of the appropriate total sentences. Thus it is that in the exercise of this Court's discretion in Crown appeals, I have regarded it as proper to increase the total sentences but not the non-parole periods.
I propose the following orders:-
Mr Schaafhausen
(i) Crown appeal allowed;
(ii) Set aside the sentence imposed by Phegan ADCJ on 30 March 2016, and in lieu thereof;
(iii) Sentence the Respondent to a non-parole period of 2 years and 6 months commencing on 24 October 2014 together with a balance of term of 4 years and 6 months years commencing on 24 April 2017;
(iv) Record as the date upon which it appears to the Court that the Respondent shall become eligible for parole, 24 April 2017.
Mr Faaoloii
(i) Crown appeal allowed;
(ii) Set aside the sentence imposed by Phegan ADCJ on 30 March 2016, and in lieu thereof;
(iii) Sentence the Respondent to a non-parole period of 2 years and 3 months commencing on 24 October 2014 together with a balance of term of 3 years and 9 months commencing on 24 January 2017;
(iv) Record as the date upon which it appears to the Court that the Respondent shall become eligible for parole, 24 January 2017.
Mr Tuala
(i) Crown appeal allowed;
(ii) Set aside the sentence imposed by Phegan ADCJ on 30 March 2016, and in lieu thereof;
(iii) Sentence the Respondent to a non-parole period of 2 years and 3 months commencing on 24 October 2014 together with a balance of term of 3 years and 9 months commencing on 24 January 2017;
(iv) Record as the date upon which it appears to the Court that the Respondent shall become eligible for parole, 24 January 2017.
[6]
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Decision last updated: 25 November 2016