R v Gibbons

Judgment 1EMMETT JA: This is an appeal by the Crown against a sentence imposed on the respondent by a judge of the District Court. The respondent was charged with five counts of robbery whilst armed with an offensive weapon, being a knife. He pleaded guilty to those five counts. The sentencing judge imposed an aggregate sentence for all offences, consisting of imprisonment for five years and six months, with a non-parole period of three years. 2I have a read in draft form the reasons of R S Hulme AJ, in which his Honour sets out the circumstances of the offences. It is significant that the offences occurred within two months after the respondent had entered into seven bonds undertaking to be of good behaviour. The offences could not be described as uncharacteristic aberration. Rather, they exhibit a continuing attitude of disobedience of the law. 3I agree, for the reasons given by R S Hulme AJ, that the sentence imposed by the District Court is manifestly inadequate. I agree that, for the reasons given by his Honour, the appeal should be allowed and the sentence imposed by the District Court should be quashed. I agree with the sentence and orders proposed by R S Hulme AJ. 4R A HULME J: I agree with R S Hulme AJ. 5R S HULME AJ: This is a Crown appeal against a sentence imposed by North DCJ on 14 November 2012. The Respondent to the appeal had pleaded guilty to five counts of robbery whilst armed with an offensive weapon, namely a knife. Taking advantage of s 53A of the Crimes (Sentencing Procedure) Act 1999, his Honour imposed an aggregate sentence of imprisonment for 5 years and 6 months including a non-parole period of 3 years, both such periods commencing on 26 August 2012. 6The five offences were committed within the period 7 - 25 January 2012. In the first the Respondent robbed a service station attendant of $150 in cash and $152 of cigarettes. 7In the second the Respondent robbed a drive-in bottle shop attendant of $1,226.85. 8In the third he robbed a supermarket attendant of $1,650. 9In the fourth he robbed another supermarket attendant of $1,050. 10In the fifth offence he robbed a service station attendant of $800. 11According to a Statement of Agreed Facts, shortly prior to each of the offences the Respondent had been at a friend's place in Cessnock. On at least four of these occasions he was there with a view to purchasing drugs but lacked sufficient money to do so. On the first occasion he rode a push bike to the service station something under a kilometre away. On the second he drove a vehicle to the scene of the offence. On the third he walked some 3.5 kilometres to the supermarket. On the fourth he took a 20 minute bus ride and on the fifth he travelled about 11.5 kilometres to the scene of the offences. 12The knife used in the first 4 offences was a 30cm long kitchen knife taken from the friend's house. That used in the fifth offence was a similar large kitchen knife. Prior to embarking on the fourth offence, the Respondent dressed in a hooded jumper with clothes on underneath so he could change his appearance at short notice. On a number of occasions the Respondent waited in or in the vicinity of the relevant premises for customers to leave or for the circumstances to be otherwise propitious. 13Each of the offences was captured on CCTV and in some cases the footage was of high quality. The Respondent was arrested on 26 January 2012. He then participated in an ERISP in which he made full and frank admissions and provided information to assist police to locate the knives which he had disposed of. 14The Respondent who was born in March 1983 has a not inconsiderable criminal history. In 2002 he was fined for offences of driving with a mid-range PCA and for dangerous driving. In 2003 he was subjected to 2 community service orders for driving a conveyance taken without the consent of the owner and driving whilst disqualified and placed on three 18 month bonds for destroying or damaging property, assaulting an officer in the execution of his duty and resisting or hindering police. Later in the year he was called up and sentenced to 2 months imprisonment for breach of those bonds and also for common assault. 15In 2006 he was sentenced to imprisonment for 4 months in respect of one count of larceny and a second of driving whilst disqualified. Of more significance is the fact that in that year he was also sentenced to imprisonment in respect of two counts of attempted aggravated robbery and 2 counts of robbery armed with an offensive weapon. In respect of the first two of these offences the sentences imposed were of imprisonment for 3 years 11 months including a non-parole period of 1 year and 7 months. In respect of the third and fourth the sentences were imprisonment for 3 years including non-parole periods of 15 or 16 months. Because of staggered commencing dates the effective non-parole period was 2 years and 4 months concluding on 9 February 2008. 16In April 2008 he was sentenced to the rising of the Court in respect of a number of offences including possessing a prohibited drug. He was also sentenced to 4 months in prison for a third offence of driving whilst disqualified. In April 2010 he was convicted for the fourth time of driving whilst disqualified and given an 8 months suspended sentence. 17The Respondent was again in custody from 2 October 2011 to 11 November 2011 when seven suspended sentences were imposed on him for 2 counts of common assault, 1 count of assault occasioning actual bodily harm, 1 count of stalking or intimidating and 3 counts of destroying or damaging property. Conditions of the bonds were supervision by the Probation and Parole Service which was "asked to consider full time residential rehabilitation if thought desirable". In May 2012, as a result of the offences with which this Court is concerned, he was called up on those bonds and sentenced to largely concurrent periods of imprisonment, commencing on 26 January 2012. The longest of these periods was 16 months and the longest non-parole period concluded on 25 October 2012. 18North DCJ accepted that the Respondent had a disruptive and complex upbringing after his father left home and his mother died when he was 10. His Honour also recounted that the Respondent had told the author of the Pre-sentence Report that he was subjected to violence by a stepfather and eventually ran away from home at the age of 14. 19The Pre-sentence Report stated that the Respondent appeared to respond best to strict monitoring and intensive supervision although he had primarily demonstrated a poor response to past supervision. However, there had been an extended period of stability and progress in 2009 and 2010. During this period the Respondent rose from being a casual worker to full time head chef at a winery. He returned to that position on release from custody in 2011 but his work performance declined and he resigned. According to the Pre-sentence Report the Respondent was then participating in an opiate replacement program. The report goes on to say that at the time of the subject offences, the Respondent had missed his program doses for 3 days, was taken off the program and then missed an appointment with his prescribing doctor. 20The report also records the Respondent had a long standing dependence on opiates and to a lesser extent amphetamines and had undertaken intervention programs in custody and that despite supportive attempts from his partner, after the Respondent's release from custody in late 2011 his drug abuse became uncontrollable. 21In evidence the Respondent acknowledged that in the 6 to 8 weeks before committing the October 2011 offences he was using drugs, and that he had continued to do so and though he had previously found the Probation and Parole Service of assistance, he did not seek that organisation's help in 2011. Although he considered entering a rehabilitation program he did not. 22His Honour said he was willing to accept that the Respondent was genuinely remorseful and had some insight into the impact of his crimes. He continued: "I found the offender's evidence quite impressive despite his very troubled background, criminal antecedents and the seriousness of these matters. The real issue apart from ensuring any sentences send a clear deterrent message to the wider community and to the offender himself, are the questions of re-offending and rehabilitation. ...From the way in which he gave evidence I do accept that he, at least at this time is genuine about keeping away from drugs and of course the criminality associated with them. Whether or not he is at the crossroads only time will tell. The Crown does not concede that the Court would find special circumstances in this case. However, having listened to him carefully in evidence I think that, for the benefit of the community and of the offender, a longer period on parole may well be of benefit. If he re-offends then his future is bleak as he will serve any unexpired parole period and be sentenced on any new matters, no doubt to gaol. ..." 23His Honour went on to find special circumstances in a need for longer than normal supervision in the community, in the Respondent's long-standing drug addiction and, because of the length of incarceration (contributed to by partial accumulation with the sentences consequent on the breach of bonds), that he was likely to become further institutionalised. Thus it was that he imposed the non-parole period that he did. 24Otherwise his Honour made no findings as to the Respondent's prospects of rehabilitation. 25It is clear that the focus of attention in the submissions made to North DCJ was how the Respondent's offences compared with the circumstances hypothesised in the guideline judgment in R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 where the Chief Justice said that for an offence having the characteristics identified, sentences should generally fall between 4 and 5 years for the full term. Those 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. 26Later authority - see R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [161] - has made clear that the plea of guilty contemplated in (vii) was one entered late, and likely to attract a discount of the order of 10%. 27North DCJ recorded that the Respondent's plea was entered at the earliest reasonable opportunity and the Respondent was entitled to a 25% discount. His Honour noted a submission by the Crown that with the 25% discount the adjusted sentencing range in accordance with Henry for full term imprisonment would range between 3 years and 4 months and 4 years and 2 months. He went on to say, "given my finding in relation to the objective seriousness of the matter, I think that in each case a full term of 3 years and 9 months is appropriate." The difference between this period and the 5½ years imprisonment imposed was because, as has been said, his Honour elected to impose an aggregate sentence referable to all offences. 28In arriving at the decision that the sentence should commence on 26 August 2012 his Honour took into account 40 days the Respondent had spent in prison between 2 October 2011 and 11 November 2011 when he was released on the seven s 12 bonds. 29In written submissions the solicitor appearing for the Crown below submitted that, except for his criminal history and the fact his plea was entered earlier than contemplated in that case, the Respondent answered the description of the typical offender referred to in R v Henry. She submitted however that because of the suspended sentences that the Respondent was subject to at the time, his criminality fell outside the R v Henry guidelines. 30For his part the solicitor for the Respondent conceded that the Respondent was not young and while the breach of the 7 bonds was an aggravating factor, that was offset by the early plea and accordingly the sentencing range referred to by the Chief Justice applied. North DCJ said that he accepted that submission and believed that the offences fell "squarely within the Henry guideline". Later his Honour referred to each of the 5 counts as being a "typical Henry case". 31Notwithstanding that conclusion, his Honour did observe that the Respondent had a significant criminal history and in that respect his situation was more serious than the typical Henry offender, and that there had been some planning and time to reflect, although the offences were unsophisticated. His Honour described the average amount taken of just under $1,000 as a "relatively small amount". His Honour also remarked that "a need to acquire funds to support a drug habit...is not itself a matter of mitigation, however I do find that it can be taken into account in regard to the impulsivity of the offences and the extent of any planning." "Further, his objective criminality is to some extent reduced by the fact that I accept that he committed the offences to purchase drugs and not to fund some other serious criminal venture. Finally, I accept that his state of mind and his capacity to exercise judgment was clouded by the urgent need to acquire prohibited drugs." 32It is difficult to avoid the conclusion that, despite what he had earlier said, his Honour did in fact allow the Respondent's drug addiction to operate as a matter of mitigation. Certainly his Honour erred in regarding the objective criminality as reduced because the Respondent had not in mind some more serious offending - see Grove J in Saddler v R [2009] NSWCCA 83 at [3]; Simpson J in SKA v R; R v SKA [2009] NSWCCA 186 at [194]. 33His Honour erred also in concluding that each of the Respondent's offences could be characterised as a "typical Henry case". At age 28 the Respondent was neither "a young offender" nor one with "no or little criminal history". Nor did all of the Respondent's offences reflect merely a "limited degree of planning". In this connection I have in mind to some degree the 3rd and 5th, but particularly the 4th offence. I also have doubts whether the amounts of $1,226.85 and $1,650 answer the description of "a small amount taken" although I note that in R v Kelly [2010] NSWCCA 259 at [62] and [67] Kirby J regarded $1,100 as a "small amount" and $2,000 as "approximately the same". There are authorities that argue to the contrary - see also R v Harris [2011] NSWCCA 105 at [15] and [88] and Hampton v R [2010] NSWCCA 278 at [48]. 34However, in that the concessions of counsel for the Crown who appeared below may have led his Honour into error in some of these respects, it would not be appropriate to rely on them in deciding whether to allow a Crown appeal and I put those aside. There remains the Respondent's criminal history and his breach of the 7 good behaviour bonds incidental to his 7 suspended sentences. As I have indicated, the Crown relied on these breaches as taking the Respondent outside the Henry guideline but his Honour thought that they merely offset the extra 15% discount the Respondent was regarded as entitled to. Though recognising the Respondent's criminal history, nowhere does his Honour seem to have given it any weight or indeed seriously considered it. 35And the 2 matters, the previous criminal history and the breach of the bonds need to be considered together. Of course the Respondent is not to be again punished for offences in his past but that past throws considerable light on how he should be dealt with for the subject offences. 36The 4 convictions for driving whilst disqualified tend to demonstrate an attitude of disobedience to the law whenever it suits the Respondent. So do his offences in 2003. His 2006 convictions for robbery must have brought home to him the evils of that sort of activity. Yet he chose to repeat it within 2 months of entering into 7 bonds undertaking to be of good behaviour. And that repetition was not merely in spur of the moment decisions. In some cases his offending was after embarking on a journey giving him plenty of time to reflect on the crime he had made a deliberate choice to commit in breach of his bonds. And despite having found the Probation and Parole Service of assistance in the past, in 2012 he preferred to offend rather than seek assistance again. His record invites reflection on remarks of the High Court in Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 at [14]: "The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind." 37I do not ignore the presence of the word "may" in that passage and North DCJ's favourable remarks concerning the Respondent although it is fair to say that many offenders, facing a substantial gaol sentence in consequence of their drug taking, would at that time be genuine about abstaining in the future. It is to be noted that his Honour refrained from any opinion as to the Respondent's prospects of rehabilitation. 38The Respondent's offending in the face of not one but 7 good behaviour bonds might also be compared with remarks in this Court in the case of R v Speeding [2001] NSWCCA 105; 121 A Crim R 426. There the offender had pleaded guilty to 5 charges of robbery whilst armed with an offensive weapon and one charge of robbery simpliciter. He had been arrested and charged and released on bail after the fourth offence, so was on conditional liberty when he committed the last 2 offences. At the time of offending he was 19. His life had significantly deteriorated over the preceding 2 years following the death of a family member and he had become drug, alcohol and gambling addicted but had some prospects of overcoming the first 2 of these addictions. In fact, the original sentencing judge was satisfied that the offender had made "a quite significant break" from his heroin addiction. A Crown appeal against an effective sentence of 5 years and 3 months including a non-parole period of 2 years and 9 months was allowed, both periods being increased by 2 years. In the course of reasons with which the other members of the Court agreed Giles JA remarked, at [21]: "Further, the respondent's continuance of his deliberate course of criminal behaviour after he came under police notice, and after he had been charged with the robbery of 15 May 2000 and given the benefit of bail, was more than foolhardy. It showed a contempt for the law and the processes of the law, and a particular contempt when, having the benefit of bail conditioned upon being of good behaviour, the respondent soon engaged in two further offences. It is well-established, see for example R v Richards (1982) 2 NSWLR 464 at 465, that severely deterrent sentences will be imposed on those who abuse their freedom on bail by taking the opportunity to commit further crimes. This the respondent did." 39Against the R v Henry guideline of 4 to 5 years imprisonment, even reduced on account of the Respondent's plea to 3 years and 4 months to 4 years and 2 months as suggested to North DCJ by the Crown, his Honour's indicative sentence of 3 years and 9 months is impossible to reconcile with Giles JA's remarks and for which there is plenty of other authority - see e.g. R v Henry & Barber [1999] NSWCCA 107 at [28] and [29] and the cases there cited. 40However, this being a Crown appeal, it is not enough merely to find error. The question remains whether the sentence ultimately imposed was manifestly inadequate. 41In support of the contention that it was not, counsel for the Respondent, while submitting that the legitimate objective of consistency in sentence "is not demonstrated by, and does not require, numerical equivalence" - see Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520 at [48] - drew the Court's attention to 4 cases. 42In one of those cases, R v Hamilton [2000] NSWCCA 31, the offender had also pleaded guilty to 4 counts of offences against s 97(1). Each offence involved the robbery of a service station employee who was threatened with a knife. On one occasion the employee and an 8 year old boy were pushed. Amounts taken varied between $60 and $350. The offender was 21 at the time and of generally good character until a drug addiction overwhelmed him. This Court allowed a Crown appeal, and but for the imminent expiry of the non-parole period imposed at first instance, would have imposed a sentence of 5 years including a non-parole period of 3 years. The Court did not suggest that this sentence was below the bottom of the range appropriate for the offending and, so it was submitted, sufficiently close to that imposed on the Respondent as to demonstrate that the full terms of the indicative and ultimate sentences here under appeal are not manifestly inadequate. 43I do not find the argument persuasive. The difference in the ages and in the records of the 2 offenders and the fact that Hamilton was not on conditional liberty are clear and significant points of distinction. 44In a second case, R v Kelly [2010] NSWCCA 259, the offender had been convicted of 5 armed robberies, at least most of which were more serious than the Respondent's offences. Individual sentences varying between 3 years and 9 months and 6 years were imposed, the aggregate sentence being 7½ years including a non-parole period of 5 years. Mr Kelly was on parole at the time. However Mr Kelly had a mental illness that was regarded as relevant in contributing to the commission of his offences, in rendering him an inappropriate vehicle for general deterrence or at least as moderating that consideration, and resulting in a custodial sentence weighing more heavily upon him than the population generally. Because of this illness, the weight of which was not quantified, the individual sentences imposed on Mr Kelly provide limited if any guidance as to the sentences appropriate to the Respondent's offending. However, once one recognises, as seems to have been the case, that Kelly's mental illness had the effect of reducing his sentence from what it otherwise would have been, the result argues in favour of the sentence here being too low. A fortiori is this so when Mr Kelly's youth - he was 20 at the time of offending - was regarded as a mitigating factor. 45The third case, R v Renton [2002] NSWCCA 74 was a decision of a 2 judge bench dismissing an offender's appeal against a sentence of imprisonment for 6 years including a non-parole period of 3 years imposed for 7 counts of robbery whilst armed with an offensive weapon. In my view this Court should maintain its stance that decisions of 2 judge benches are not authoritative but in any event in that case the offender had been pressured to commit the offences, the adequacy of the sentence imposed did not arise for consideration in this Court, and I find the case of no persuasive value. 46In the fourth, R v Henry & Barber [1999] NSWCCA 107 Simpson J, in whose reasons 3 other members of the Court agreed said that, having regard to a first offence committed by Henry it would be appropriate to sentence him more severely for the second and indicated that an increase from 5 years imprisonment for the first offence to 5½ years imprisonment for the second offence was an appropriate increase. Henry had a limited criminal record, was 23 at the time of the first offence, on a recognisance at the time of both offences and on bail at the time of the second. In fact concurrent sentences, each of 5½ years including non-parole periods of 3½ years were imposed. Relying on this matter, counsel for the Respondent submitted that if 6 months extra was sufficient for a second offence in Henry's case, it could not be said that the 21 month difference between the indicated sentences of 3 years and 9 months and the 5 ½ years ultimately imposed for 5 offences was erroneous. 47Reference may also be made to R v Smith [2007] NSWCCA 100 where this Court upheld a Crown appeal and imposed a sentence of imprisonment for 5½ years including a non-parole period of 3 years and 9 months on an offender who had pleaded guilty to 6 offences against s 97(1) of the Crimes Act 1900. Four other offences were taken into account but were of a minor nature and may presently be disregarded. 48All offences had been committed during a 6 week period and all involved the offender, in company with others, entering business premises at night and demanding money from the attendants, some of whom were punched. On one occasion a knife was used as a threat. The offender was 18 at the time of the offences. At the time of offending he was a daily drug user and had not sought help for those issues. Evidence indicated that he had significant psychiatric or psychological issues. His only previous conviction was for assault some 2 months prior to the s 97 offences and for which he was placed on a good behaviour bond. He had been arrested after the first offence and given bail. The other 5 offences were committed during the currency of this bail. 49In a judgment agreed to by the other members of the Court, Simpson J remarked, at [66], [68]: "Multiplicity of offences plainly calls for a total sentence well in excess of the four to five years so promulgated [in R v Henry]. While it may be correct that each individual sentence could fall appropriately within the four to five year range, it must also be recognised that, as the offending continues, each succeeding offence calls for a greater punishment than the earlier, if only by way of personal deterrence. ... I would not disturb the finding of special circumstances, and would, accordingly, impose an overall non-parole period of three years and nine months. Even this is barely adequate to recognise the criminality involved, or the affront to the victims. I propose it in acknowledgement of the well-known principles applicable to sentencing after a successful Crown appeal. I also have in mind the respondent's youth, and that the offences were committed over a short space of time." 50In arriving at her decision Simpson J referred to R v Speeding [2001] NSWCCA 105; 121 A Crim R 426 to which I have referred above. Her Honour did not identify which of the principles applicable to sentencing after a successful Crown appeal she had in mind. Sometimes the Court imposed the lowest sentence that should have been imposed at first instance. Sometimes it imposed one that was lower - see R v Kalache [2000] NSWCCA 2; (2000) 111 A Crim R 152 at [205] - [207] for a collection of cases evidencing each approach. Of course the recent changes to the law concerning double jeopardy mean that many of those principles are now out of date. 51In the above discussion, I have referred to each of the cases to which the Court was taken in argument by way of comparison. There are differences between each of them and the circumstances here and I do not find any decisive. Nor have I thought it necessary or appropriate to trawl through the vast number of cases where other offenders have been sentenced for multiple offences under s 97(1). I am content to approach the matter upon the basis of the statutory provision, the principles to which reference has been made, and the guideline in R v Henry. 52Is the sentence here manifestly inadequate? In my view it is. 53Accepting that the R v Henry guideline range should be reduced as the Crown suggested to North DCJ, I am unable to accept that the sentence for one offence should be as low as 3 years and 9 months as North DCJ held. Even assuming that it was appropriate for his Honour to start from the bottom of that range, the extra 5 months implicit in the 3 years and 9 months term gives scant recognition to either the fact that the offence breached 7 good behaviour bonds or the Respondent's regrettable record - two factors that were very relevant to determining the appropriate sentence. The indicative sentence for each offence should not have been less than 4½ years. And while I appreciate that period is but 9 months more than his Honour fixed, the 9 months is almost double any allowance his Honour made for these factors. 54Nor am I able to accept that the 21 months increase to 5½ years for all offences was within his Honour's sentencing discretion. While it may be that a 6 months increase for a second offence by Henry was regarded as appropriate in that case, it does not follow that that period is appropriate in all cases, or even generally sufficient, particularly when that period is in due course effectively divided into a non-parole and parole eligibility terms. 55Twenty-one months represents a little more than 5 months for each of the Respondent's second to fifth offences, which even North DCJ thought individually merited sentences of 3 years and 9 months imprisonment. I appreciate that considerations of totality have to be taken into account but the periods are grossly disproportionate. The matter is a fortiori if, as was said in R v Smith, succeeding offences (with the same characteristics) call for greater punishment than an earlier one. 56The non-parole period of 3 years fixed by North DCJ is 55% of the total sentence of 5½ years. If one combines the sentence his Honour imposed with the 7 months consequent on the breach of bonds, the effective non-parole period of 3 years and 7 months represents 59% of the total effective sentence of 6 years 1 month. 59% of 21 months is a little over 12 months so effectively the time the Respondent was required to serve by way of a non-parole period for each of the second to fifth robberies was a little over 3 months. These sorts of periods provide little by way of deterrence to an offender once he has committed one robbery. 57The question then arises whether this Court should interfere. The High Court has made it clear that the primary purpose of Crown appeals is to lay down principles not the general correction of errors - Green v R; Quinn v R [2011] HCA 49; (2011) 244 CLR 462 at [1], [36]. In my view the Court should intervene and allow the appeal. It is important that it be generally understood that second and subsequent offences will be met with significant punishment. 58The sentences that were imposed by North DCJ were manifestly inadequate. The least sentence that should have been imposed on the Respondent for his 5 offences was one that broadly accords with the sentences in R v Speeding and R v Kelly, viz imprisonment for 7 years. The non-parole period should be 4 years, a period that roughly maintains the relativity between the head sentence and the non-parole period fixed by North DCJ. In expressing the matter thus I am intending to reflect North DCJ's decision to impose an aggregate sentence. This Court should adopt the same approach. Were I imposing individual sentences of the Respondent for each of his offences I would have made each sentence of 4 years and 6 months imprisonment. 59Before I proceed to formulate the orders to be made there is however, one further possible error by North DCJ to which I should advert, albeit an error which would not have caused me to allow the Crown appeal. His Honour recorded that the Respondent had served 40 days in custody before the 7 suspended sentences and bonds were imposed and seems to have taken that fact into account in choosing to commence the Respondent's sentence from 26 August 2012 rather than the date when the sentences, originally suspended, expired, viz 26 October 2012. If his Honour did so he was in error. That period of custody was referable to the offences in respect of which the suspended sentences were imposed and may have influenced the court sentencing at that time to sentence as it did. The 40 days was not relevant to North DCJ's sentencing. However, there were other bases on which his Honour could have chosen 26 August 2012 and I would date the sentence I propose from the same date. 60An affidavit of the Respondent referring to his activities in custody, to the impact on him and his family of the Crown appeal, and to difficulties his family has in visiting him in Junee was read during the hearing of the appeal. In accordance with sentencing principles not all of these matters are relevant but I have taken account of those that are. The orders I would suggest are: (i) Appeal allowed; (ii) Quash the sentence imposed by North DCJ on 14 November 2012; (ii) Pursuant to s 53A of the Crimes Act 1900, sentence the Respondent in respect of each of the 5 counts of armed robbery to an aggregate sentence of imprisonment for 7 years commencing on 26 August 2012; (iv) Set an aggregate non-parole period of 4 years commencing on 26 August 2012 and expiring on 25 August 2016; (v) Record as the date when it appears to the Court that the Respondent will first become eligible for parole 26 August 2016.