[22] It is important to place the comments in Keyte and Rajapaski in context. In Keyte there was a two and a half year delay between the applicant's arrest and sentence. In Rajapaski there was almost a four year delay between the applicant's arrest and sentence. By way of contrast, the passage of 11 months between the date of arrest (but for five days) and the jury's verdict of guilty represents a relatively speedy resolution of the applicant's fate. In my view, the applicant was not entitled to any mitigation of an otherwise appropriate penalty because of his bail conditions."
48 I do not consider that the respondents' bail conditions are relevant to an inquiry concerning the application of the Henry guidelines at all. They are certainly not referred to in the judgment. The conditions upon or under which offenders are released on bail are many and varied and the extent to which any standard or usual range of conditions could be assembled as normal or not onerous would be limited. In one sense, except in the case of the most extremely onerous conditions, such as those involving house arrest or de facto home detention, or the continuance of the onerous bail conditions for an unusually long time, there is little that attracts favourable consideration to the grant of bail as a factor warranting amelioration of an otherwise appropriate penalty. There is every reason to give credit for time served on remand but that is not in any way comparable with conditional liberty.
49 Her Honour was in error to take this matter into account in a way that permitted or warranted a departure from Henry in the present case.
Ground 3
50 During the course of her remarks on sentence her Honour observed "none of these young offenders committed this offence as a result of a serious ongoing addiction to drugs and in order to satisfy that addiction". Her Honour also said, "I also take into account the subjective circumstances surrounding each of these prisoners which it seems to me distinguishes them somewhat from the subjective circumstances of those referred to in the Henry guideline". However, none of the guideline factors includes a reference to offenders who have a serious ongoing drug addiction. There was therefore no basis for a conclusion that there was a "marked difference" between each respondent's case and the guidelines. It was therefore not appropriate to distinguish Henry on such a ground. According to the Crown's submissions, the practical result of this error was that the lack of a drug addiction had been inappropriately taken into consideration in reducing the starting point for the sentences with the respondents being credited with an additional allowance for their excellent prospects of rehabilitation.
51 Without in any way wishing to be dogmatic about it there is a respectable argument that serious addiction to illicit drugs, and the need through illegal means to acquire funds to purchase them, would be more likely to explain the commission of the present offences than would otherwise be the case. The sanguine commission of armed robbery does not to my mind appear any less serious because the perpetrators were unaffected and uninfluenced by the ravages of a drug dependency. The regular deliberations and procedures of the Drug Court recognise the need for special solutions for the treatment of drug dependant offenders. Her Honour was in error to adopt an approach that gave credit to the respondents in the circumstances of the present case for their absence of addiction. Henry expressly suggests no such approach and none should be implied.
Ground 4
52 The Crown accepted that the respondents co-operated with the police and did so at an early stage. However, they did not turn themselves in until police had visited the home of one of them three days after the date of the offences. The Crown contended that her Honour erroneously mistook the facts and treated the mistaken facts as matters to be taken into account in mitigation.
53 With respect to Ground 4 the respondents contended in effect that her Honour's remark was "off the cuff" and not intended to be taken literally. This approach seems to me to miss the point. Howsoever described, the fact is that if her Honour was intending to suggest that the respondents should be given the benefit of having surrendered to the police at the earliest opportunity and in particular in circumstances where the prospect, let alone the likelihood, of their apprehension had not materialised, she was mistaken in that regard.
54 It is not to my mind an exercise involving exquisite subtlety to appreciate that an unprovoked and guileless surrender says more about an offender's contrition and remorse, and is more relevant to considerations of mitigation, than a latter day confession made in the shadow of approaching detection. The delay of three days was certainly small. However, the competing inferences are fairly blunt and were clearly apparent on the facts of the present case. This is not the same thing as recognising that the respondents were entitled to, and were given, an unchallenged discount of 15 per cent for their early pleas of guilty. It will be recalled that one of the characteristics of the class considered in Henry was that there was a plea of guilty. Presumably her Honour gave a discount below the sentences that she would otherwise have imposed because of the timing of the pleas.
55 The issue is to some extent minor in the scheme of things. I would not have considered in the absence of other factors that her Honour's remarks amounted to an error warranting intervention by this Court in a Crown appeal.
Ground 5
56 Whilst a decision whether or not to accumulate sentences in relation to multiple offences is an exercise of discretion, it is a discretion to be exercised in accordance with established principle. It is not wholly unconstrained. The effective overall sentence must be a proper period of incarceration having regard to the total criminality involved: see R v AEM [2002] NSWCCA 58 at [70]. In Pearce v The Queen [1998] HCA 57, (1998) 194 CLR 610 at [45] McHugh, Hayne and Callinan JJ said, "[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".
57 Her Honour determined that there would be "an overall term of imprisonment of two years in each case". She found that each of the three cases was "truly exceptional" and determined that each of the sentences be suspended. Any accumulation of the sentences would have precluded the possibility of suspension: s 12 Crimes (Sentencing Procedure) Act 1999.
58 Her Honour referred to this issue in her remarks on sentence in the following terms:
"I am conscious that there are two offences for which I must sentence each of the offenders. It is true that taken strictly, the second offence involving [the customer] is slightly less serious in terms of its objective seriousness because he cannot be properly classified as vulnerable. However, each of these offences was committed within the same sixty seconds to two minutes. Each of them represents the commission, in effect, of one offence and it seems to me there is little to be gained in trying to impose a different sentence for each to take into account the fact that one is slightly less serious than the other. Because they are part of the one criminal enterprise nonetheless, the sentences should be served concurrently ."
59 The Crown contended that the italicised portion of the passage just quoted was erroneous and that her Honour's discretion miscarried because she failed to take into account the fact that whether as a matter relevant to the question of concurrence or otherwise there were two victims. In R v Wilson [2005] NSWCCA 219 at [38], Simpson J said, with respect to a challenge to sentences that were partially cumulative:
"[38] In my opinion, it was not only well open to his Honour to accumulate one sentence upon the other two; I doubt that would have been correct not to do so. There were, in fact, three separate offences committed, even though all were committed as part of the same event. In this context the Crown appropriately reminded the Court of the purposes of sentencing set out in s3A of the Sentencing Procedure Act . The first purpose so specified is ensuring adequate punishment for crime; others here relevant include crime prevention by deterrence, denunciation, making an offender accountable, and recognition of the harm done to the victim and the community. To fail to accumulate, at least partially, may well be seen as a failure to acknowledge the harm done to those individual victims. I would reject this ground of the application."
60 To similar effect in R v XX [2009] NSWCCA 115 at [52], Hall J helpfully summarised the relevant principles. The Crown submitted that the totality of the criminality in both offences could not be wholly encompassed in the sentence imposed for one only of the offences. This is what has occurred. Her Honour's failure in the circumstances to impose sentences that were at least partially accumulated is in the Crown's submission one additional factor that has led to the imposition of an overall sentence that is manifestly inadequate.
61 There were two discrete offences involving separate victims. One of the victims, the shopkeeper, was the sort of victim in a vulnerable position expressly contemplated in Henry. The other victim, the customer, was not in the class of vulnerable victims expressly contemplated in Henry. Even so, from what one can see of him on the CCTV footage, he was apparently unarmed, dressed in insubstantial clothing, and of slight build. The CCTV footage depicts the robbery of the shopkeeper but not that of the customer. The robberies occurred almost simultaneously and if not simultaneously they were only separated by a matter of seconds. Her Honour was clearly of the view that they were both part of the same course of criminal conduct so as to warrant little or no accumulation. As discussed above, this is contrary to the approach highlighted in cases such as R v Wilson (supra) and R v XX (supra). Moreover, in the particular circumstances of this case, the principle of totality effectively mandates that some accumulation of the sentences would be required in the event that this Court were otherwise minded to resentence the respondents.
62 This putative error is not to my mind determinative of this appeal. On one view her Honour's decision not to accumulate the sentences for the separate offences preserved for her the ability to impose sentences of two years for all offences that could still be wholly suspended. Any accumulation of those sentences, even to a minor degree, would have made that impossible. However, even assuming that the way in which her Honour's discretion was exercised in this regard could not be criticised, the failure to impose a custodial sentence amounted to a fundamental miscarriage of her sentencing discretion. This is because her Honour recognised, but failed to give meaningful effect to, the objective seriousness of the offences.
Ground 6
63 The principles enunciated in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 are well known. In appellate review of sentencing it will commonly be the case that the appellate court's authority to intervene will derive from a conclusion that the resulting order is so disproportionate to the matter to which it relates as to afford the foundation for concluding that in some way the exercise of the powers of the primary judge had miscarried. In the present case the Crown submitted that the disproportion arises from manifest inadequacy, both in terms of length and the fact of suspension.
64 Her Honour remarked as follows:
"On the basis of those findings it seems to me that, leaving aside the question of discounts that are available, these offences committed by these offenders fall below the circumstances referred to by the Court of Criminal Appeal in the Henry guideline case."
65 It was in those circumstances that her Honour commenced with a starting point of three years discounted by 35 per cent to allow for the pleas of guilty and assistance to the authorities, thereby arriving at a sentence of 2 years for each offence. Her Honour found that each offender's case was truly exceptional and determined to suspend the sentences. As already noted, her Honour ordered that they should be served concurrently.
66 The Crown submitted that the discretion miscarried at what was described as "a fundamental level" when her Honour undervalued the gravity of the offences viewed objectively. It was contended that there were no matters that diminished the seriousness of the offences so that they could in any way be considered as falling below the guideline principles.
67 Her Honour appears also to have found that the "impaired judgment" of each of the offenders to which Dr Jacmon adverted was evident to some extent in the commission of the offences. The Crown submitted that to the extent that she did so it should be given little weight. This was because the respondents acknowledged their respective willing involvement in the offences.
68 Her Honour's description of the offences as "serious" does not correspond to the imposition of sentences that reflect that description. The courts have for some considerable time enunciated clearly a policy that armed robbery is to be treated as a very serious criminal offence. In R v Stefanovski (Court of Criminal Appeal, 9 June 1994, unreported) the Court cited the remarks of Carruthers J in R v Broxham (Court of Criminal Appeal, 3 April 1986, unreported) as follows:
"The prevalence of the offence in respect of which the applicant was sentenced is a matter of grave social concern…It is now well recognised that the victims of such armed robberies or attempted armed robberies may suffer devastating psychological damage consequent upon the trauma necessarily involved with the commission of such offences. In these circumstances sentencing judges would be recreant to the trust which the community places in them, if they were not to impose sentences consistent with the seriousness and prevalence of such offences."
69 In R v Spiero (1979) 22 SASR 543, King CJ said at 548-9:
"It must be made clear beyond misunderstanding that when a person engages in robbery while armed with a weapon he can expect when apprehended and convicted a long period in prison. Armed robbery is a crime which leaves little scope for leniency even when mitigating factors are present."
70 The Chief Justice in Henry (supra) also said this at [99]:
"[99] … Armed robbery is not simply a crime against property. It is a crime against persons. Furthermore, the fear engendered by the perpetrator of this crime, together with the continued adverse effects on its victims, establish armed robbery to be serious crime which requires condign punishment."
71 In R v Chamma [2009] NSWCCA 92, a Crown appeal involving the robbery of a convenience store by co-offenders late on a Saturday evening, the Court allowed the appeal, quashed the sentence of periodic detention and re-sentenced the respondent to full-time custody. Buddin J said at [21]:
"[21] The Crown submitted that notwithstanding the respondent's reduced culpability as a principal in the second degree and as someone who did not know of the use, or intended use of the knife, a sentence of full-time custody was nevertheless called for. The Crown relied upon this Court's decision in R v Goundar (2001) 127 A Crim R 331, in which Wood CJ at CL with whom other members of the Court agreed, referred to R v Govinden (1999) 106 A Crim R 314 and went on to say: