R v JW [2010] NSWCCA 49 | Case summary

R v JW [2010] NSWCCA 49 | Case summary | Zoe

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Barton v The Queen (1980) 147 CLR 75 Carroll v The Queen [2009] HCA 13; (2009) 83 ALJR 579 Comptroller-General of Customs v D'Aquino Bros Pty Ltd (1996) 130 FLR 383; (1996) 85 A Crim R 517 Cooke v Purcell (1988) 14 NSWLR 51 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Director of Public Prosecutions (NSW) v Lombard [2008] NSWCCA 110; (2008) 184 A Crim R 565 Director of Public Prosecutions (SA) v B (1998) 194 CLR 566 Director of Public Prosecutions (Vic) v Josefski [2005] VSCA 265; (2005) 13 VR 85 Everett v The Queen (1994) 181 CLR 295 Gadsden v R [2005] NSWCCA 453 Green v The United States 355 US 184 (1957) Griffiths v The Queen (1977) 137 CLR 293 House v The King (1936) 55 CLR 499 Island Maritime Ltd v Filipowski [2006] HCA 30; (2006) 226 CLR 328 Kirk v Industrial Relations Commission (NSW) [2010] HCA 1 Lowe v The Queen (1984) 154 CLR 606 Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 Malvaso v The Queen (1989) 168 CLR 227 Maxwell v The Queen (1996) 184 CLR 501 McDermott v The King (1948) 76 CLR 501 McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 Peel v The Queen (1971) 125 CLR 447 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 R v Allpass (1993) 72 A Crim R 561 R v Amohanga & Rai [2005] NSWCCA 249; (2005) 155 A Crim R 202 R v Apostilides (1984) 154 CLR 563 R v Baker [2000] NSWCCA 85 R v Birlut (1995) 39 NSWLR 1 R v Clarke (1996) 2 VR 520 R v Cuthbert (1967) 86 WN (Pt 1) (NSW) 273 R v Deng (1996) 136 FLR 201 CASES CITED : R v Donaldson (1968) 87 WN (Pt 1) (NSW) 501 R v Giam (No 2) [1999] NSWCCA 378; (1999) 109 A Crim R 348 R v Govinden [1999] NSWCCA 118; (1999) 106 A Crim R 314 R v Hallocoglu (1992) 29 NSWLR 67 R v Halmi [2005] NSWCCA 2; (2005) 62 NSWLR 263 R v Hayes (1987) 29 A Crim R 452 R v Henry (1999) 46 NSWLR 346 R v Holder & Johnston (1983) 3 NSWLR 245 R v Hoschke [2001] NSWCCA 317 R v Howard (1992) 29 NSWLR 242 R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10 R v Jurisic (1998) 45 NSWLR 209 R v King (1925) 25 SR (NSW) 218 R v Lacey [2009] QCA 274 R v Osenkowski (1982) 5 A Crim R 394 R v Rose (NSW Court of Criminal Appeal, 23 May 1996, unreported) R v Spathis [2001] NSWCCA 476 R v Taylor [2000] NSWCCA 442 R v Tleige (NSW Court of Criminal Appeal, 19 November 1982, unreported) R v Tobar [2004] NSWCCA 391; (2004) 150 A Crim R 104 R v Voisin (1918) 1 KB 531 R v Wall [2002] NSWCCA 42; (2002) 71 NSWLR 692 R v Wilton (1981) 28 SASR 362; (1981) 4 A Crim R 5 R v Wright [2009] NSWCCA 3 R v Zamagias [2002] NSWCCA 17 Strong v The Queen [2005] HCA 30; (2005) 224 CLR 1 The Queen v Lee (1950) 82 CLR 133 The Queen v Tait (1979) 46 FLR 386 United States v DiFrancesco 449 US 117 (1980) Western Australia v Atherton [2009] WASCA 148 Western Australia v Bennett [2009] WASCA 93 Western Australia v Cunningham [2008] WASCA 240; (2008) 190 A Crim R 430 Western Australia v Wallam [2008] WASCA 117; (2008) 185 A Crim R 116 Whittaker v The King (1928) 41 CLR 230

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The Factual Findings 5 His Honour summarised the Agreed Statement of Facts as follows: "The agreed facts are in evidence; I will give a short précis of them. At 10.35pm on 16 January 2008 the victim, Alan Sin, arrived at Allawah train station and walked along a path. The three co-offenders were sitting on a park bench. As the victim walked past the offenders, one of them kicked him in the back from behind and he fell to his knees. The first offender then put a knife to the victim's throat, holding it in his right hand with the blade very close. The first offender said, 'Give me all your money; where's your money?' The victim removed his wallet from his pocket and took all the cash totalling $100 which he handed to the first offender who placed it in a pocket. The first offender was described by the victim as an Islander approximately sixteen years of age wearing a white hooded jumper and a white baseball cap with a large rim. The offender said to the victim, 'Is that all you've got?' and then kneed him in the right side which unbalanced him. He supported himself on his left hand as a second offender came up and also put a knife to his throat with his left hand whilst holding him in a gridlock around the chest. This offender said, 'Where's your phone?' The victim was unbalanced. He instinctively raised his hand to grab the blade when he felt it touch his throat, in doing so cutting three of his fingers. The third offender then said, 'How much money did you give us?' and the victim replied, 'It's a lot.' The first male patted his pockets as another said, ''Where's your phone?' The third offender was given the phone and then threw it away saying, 'Go fetch.' All three offenders ran away to the station. CCTV footage tracked the offenders' movements to Rockdale Station. They left the station, turned left into the street after looking around and walking away. The victim of the first robbery was treated by a Dr O'Connor and his wound was cleaned and dressed with Steri-Strips and it did not require stitches. These facts relate to the first charge on the indictment. The second offence: at around 11.10pm on the same evening the second victim, Mohammed Islam, alighted a train at Rockdale Station and rang his uncle. He asked his uncle to meet him at the station to walk him home. He walked into the street to meet his uncle. The second victim and his uncle then walked together along the street where they saw the three offenders this time sitting on a wall. They did not take much notice of them. After passing them the second victim, Mr Islam, felt that they were being followed and he has asked his uncle to check. They increased their walking pace and were nearly running. They ran towards their home and noticed the offenders were getting closer. The victim stopped at his house and opened the front gate to enter whilst his uncle ran up the side of the house. When the offenders reached the house the victim noticed they were all approximately fifteen to sixteen years of age. The first offender was wearing a black hooded jumper with the hood up over his head making it difficult to see him in the dim light. He stood outside with the other offender. The victim could not describe this offender. The third offender was skinny, had short brown hair and light skin. He was shorter than the victim, probably 160 centimetres tall, and wearing a white tee-shirt. He walked though the front gate and came up the stairs towards the victim. 'What do you want?' the victim said. The third offender replied, 'I need money, give me money'. The victim said, 'I will give you money, this is my house, I will give you money.' The third offender then reached the top of the stairs and approached the victim who said he looked to be drunk and had glazed eyes. This offender reached into his pants and produced a flick-knife with a white handle and flicked it open. He said, 'I want money.' The blade was about twenty centimetres long. He held it in his right hand near his body rather than pointing it at the victim. The victim grabbed the knife with both hands saying, 'I will give you money, I'm just going to call the police.' One of the other offenders said, 'Let's go.' The victim released the knife and he stepped away from the third offender. This offender ran away. As he did, the other two also left. In this offence the victim suffered a small wound to his left index finger and another to his right index finger with a slight right wrist strain. Following the arrest of all three on 17 January 2008, a ten centimetre serrated knife was found on this offender. Whilst being placed in the police caged truck a further knife fell out of his right pants' leg. This had a jagged blade and a light-reddish wooden handle. It was about twenty centimetres in length. Both knives were of the flick-knife variety." 6 It will be necessary to refer to additional facts to deal with particular grounds of appeal. 7 An important aspect of the case concerned the subjective circumstances of the respondent. A number of expert reports were tendered on his behalf and his mother also gave evidence. North DCJ made findings of fact based on this evidence to which I will further refer below. His Honour also referred to the sentencing proceedings for the two co-offenders - JC and JM. 8 In addition to the Agreed Statement of Facts his Honour had before him a statement by the first victim. Furthermore, evidence was called from the co-offender JM. Some of this evidence, as will be seen, expanded upon, and was not consistent with, the contents of the Agreed Statement. 9 His Honour made the following specific findings: "The agreed facts in this matter that I have to decide refer to the first, second and third offender, without nominating participants. The combined effect of exhibit 4, a statement of the first victim, and the evidence of JM is that on sentence I am left without any evidence of this offender actually producing or using a knife in either robbery. I recognise that on arrest he was found to be carrying two knives, an unnecessary abundance, one might think. However, it fits with all of the other subjective evidence that this offender may not be the brightest or the most entrepreneurial of the three young men. If I had been left with just the agreed facts, then perhaps I could not have come to this decision regarding the production or use of a knife by this offender." 10 His Honour went on to refer to the evidence of JM and said: " … in his evidence in the incident which he gave before me he did not put a knife in this offender's grasp during the first incident. In the second incident, not only did he not put a knife in the grasp of this offender, but he agreed that because the offender at the time was overweight, weighing as much as 105 kilograms, in the chase up the street to the second victim's house he lagged well behind. Indeed, the attempted armed robbery carried out by JC at that stage with the wounding may nearly have been completed by the time this offender arrived on the scene. That is slightly different to the agreed facts where the second victim says that he sees three people aged about fifteen or sixteen outside his house." 11 With respect to both offences his Honour formed the opinion that the offender's role was not as serious as either of his co-offenders. On the basis of the evidence before him, North DCJ indicated that he was driven to make findings of fact that were not the same as those made about the respondent's conduct by the judge who sentenced the two co-offenders. 12 His Honour set out and made findings about the subjective circumstances of the offender to which I will further refer below. A report of a clinical psychologist, Mr Peter Champion, identified the risk factors in the respondent's prognosis. His Honour took this Report into account when expressing his conclusions about the subjective circumstances of the offender, as follows: "Given the guarded prognosis of Mr Champion and the lack of any proper explanation for why a boy hitherto without any criminal antecedents should commit such objectively serious crimes it is difficult to assess his prospects of rehabilitation. These offences have clearly penetrated his consciousness and I am heartened by the fact that he has not only remained trouble free, but has acknowledged his remorse to Mr Champion and in the background reports. Eighteen months is a considerable period in any teenager's life and I trust that he has learnt enough from this dreadful first experience with crime and the legal system to decide not to re-offend. As mentioned, both these crimes are objectively serious: innocent victims at night going about their everyday lives were accosted shortly after leaving a railway station; both were wounded, albeit fortunately not seriously. The offenders acted in company and they showed a disregard for public safety. There must have been some degree of planning in both offences, although it can hardly be described as sophisticated. They had knives, although there is no evidence that this possession was initially for the purpose of committing robberies." 13 His Honour went on to state, on the basis of the submissions made to him by both the prosecution and the defence, that there was a standard non-parole period for this offence. His Honour made further findings as required by s 21A of the Crimes (Sentencing Procedure) Act based on this assumption. This assumption was not correct. Nevertheless, it explains why his Honour expressed some findings in this particular context. 14 His Honour said: "I take into account that the offender was only fifteen at the time and due to his age and intellectual disabilities which I have canvassed he may not be fully aware of the consequences of his actions. I believe given his eighteen months of trouble-free behaviour since his arrest that he does have reasonable prospects of rehabilitation. Further, the midrange of seriousness covers a broad spectrum and I am of the view that neither offence falls within the midrange of objective seriousness of an aggravated offences of this type, and of this offender, taking into account the facts that I have found regarding his complicity an the subjective features, I assess it to fall well below that middle range. I would not have found this had the wounding been more deliberate and serious in each case. As stated, the standard non-parole period remains relevant to sentence: the law is quite clear that other than in exceptional circumstances a sentence of full-time imprisonment is warranted for offences of this kind. The offender is a child. Because these offences are so serious he is to be sentenced at law; that is, in accordance with adult penalties. The sentencing considerations relevant to children are to be taken into account as well as those that normally attend the sentencing procedure. Section 6 of the Children (Criminal Proceedings) Act 1987 sets out the principles to be applied when sentencing children for all offences, including serious children's indictable offences; see The Queen v GDP (1991) 53 ACR 112. How to apply these principles and the extent to which they should be applied is a matter for balance and judgment. With young people, rehabilitation assumes a greater importance than general deterrence and punishment. It is desirable that young people be allowed, if possible, to continue their education and employment and reside at home with family; see The Queen v Smith (1984) CrimLR 70. In DB (2007) 167 ACR 393, the CCA reaffirmed the principle that in sentencing juvenile offenders regard should be had to their immaturity and vulnerability and the importance of rehabilitation. This is an important aspect of this matter given the young age of the offender, his complete lack of criminal antecedents both before and after these charges and his undoubted disabilities. At the time of these offences, being fifteen, he was a long way from adulthood; all the evidence clearly demonstrates his lack of capacity to properly consider the consequences of his actions. This is a matter in which I find that general deterrence and punishment which usually follow such objectively serious crimes should be subordinated to rehabilitation. Taking into account his young age, his immaturity, his good character, his remorse, his eighteen months of strict bail and moves towards rehabilitation, his intellectual and physical deficits, I am satisfied that together they constitute exceptional circumstances. Accordingly, except for what follows, I do not propose to impose a term of full-time imprisonment." 15 Prior to imposing the sentence his Honour said: "In relation to the first charge and taking into account the discount for the plea, I will impose a sentence of twenty-four months imprisonment. I intend to order that this sentence be wholly suspended. On the second charge, also a very serious offence, it is appropriate to impose a sentence that will allow his rehabilitation to continue and to be focused along the lines suggested in the background report by Juvenile Justice and Mr Champion. I will order the offender complete a community service order of eighty hours that will allow him to participate in both educational and counselling programs recommended by the Juvenile Justice system."

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Competency of the Appeal 16 The respondent submits that the appeal is incompetent on the basis that the notice of appeal failed to expressly state any ground relied upon in support of the appeal. The Crown contends that there is no requirement that the Director of Public Prosecutions set out grounds of appeal in the notice which initiates a Crown appeal. It submits that, for the purposes of apprising the Court and any party of the basis of the appeal, it is sufficient to identify grounds in written submissions. Alternatively, the Crown seeks the leave of the Court to file a document, attached to the Crown's written submissions, amending the notice of appeal. 17 The respondent makes no complaint that it has received inadequate notice of the grounds of appeal as supplied in the form of written submissions. The complaint is that there has not been a valid notice of appeal and, accordingly, that the appeal is incompetent. 18 Appeals to this Court are a creature of statute. The issue falls to be determined in accordance with the law of statutory interpretation. Failure to comply with a statutory requirement does not necessarily render proceedings invalid. The issue remains one of statutory interpretation as to the effect of the relevant failure. (See Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [92].) 19 The provision invoked by the Crown is s 5D of the Criminal Appeal Act 1912 which provides relevantly: " … the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any sentence pronounced by the court of trial in any proceedings to which the Crown was a party …" 20 As can be seen, there is no reference to a ground of appeal in this section. This is in contrast with s 5 which confers a right of appeal on a convicted person in the following terms: "5(1) A person convicted on indictment may appeal under this Act to the court: (a) against the person's conviction on any ground which involves a question of law alone; and (b) with the leave of the court … against the person's conviction on any ground of appeal which involves a question of fact alone, or question of mixed law and fact, or any other ground which appears to the court to be a sufficient ground of appeal; and (c) with the leave of the court against the sentence passed on the person's conviction." 21 Parliament made express provision in Pt 4 of the Criminal Appeal Act for procedural matters including, relevantly, the following section: "10(1) The following provisions apply to an appeal, or application for leave to appeal, under this Act against the person's conviction or sentence: … (c) The appeal, or application for leave to appeal, is to be made in accordance with the rules of court, which may include: (i) provision with respect to any statement of grounds of appeal, transcripts, exhibits or other documents or things to accompany the appeal or application; …" 22 The terms of s 10(1)(c)(i) strongly suggest, save where there is a reference to a "ground of appeal" as in s 5 of the Act, the absence of grounds in a notice of appeal will not, of itself, undermine the validity of the notice. That is, of course, subject to any rule actually made pursuant to s 10(1)(c). 23 The relevant rules are 23C and 23E of the Criminal Appeal Rules which relevantly provide: "23C A notice of appeal against conviction, or a notice of application for leave to appeal against sentence, may not be filed, except with the leave of the Court or the Registrar, unless it is accompanied by the following: (a) a statement of the grounds for appeal, … 23E(1) Notice of an appeal under section 5C, 5D, 5DA, 5DB or 5F (2) of the Act is to be sent to the Registrar by the appellant. (2) The appellant is to serve a copy of the notice referred to in subrule (1) on the respondent as soon as practicable after sending the notice to the Registrar." 24 As this Court has indicated on a previous occasion (Director of Public Prosecutions (NSW) v Lombard [2008] NSWCCA 110; (2008) 184 A Crim R 565 at [2]) r 23E of the Criminal Appeal Rules makes no reference to a notice of a Crown appeal containing grounds. This is in contrast to r 23C, with respect to, relevantly, an application for leave to appeal against sentence. To repeat, that rule expressly states that any such notice "may not be filed, except with the leave of the Court or the Registrar, unless it is accompanied by … a statement of the grounds for appeal". 25 Rule 23C implements the express requirement of an appeal "on any ground" referred to in s 5(1)(a) and (b). Such a requirement is understandable in a statutory context where leave of the court is required, as in s 5(1)(b) and (c). An appeal under s 5D does not require leave. 26 The inference that an absence of grounds in a notice of a Crown appeal does not affect the validity of the appeal is reinforced by r 77 which provides: "Where provision as to any matter of procedure is not contained in these rules, the Court or a judge may direct what proceedings are to be taken." 27 Nevertheless, there can be no doubt that the identification of the basis of a Crown appeal is of significance, not only on procedural fairness grounds for the respondent to such an appeal, but also in terms of informing the Court of the basis of the appeal. The notice of appeal should be regarded as a formal document which contains within itself the issues to be determined on the appeal. Precision in this respect may, for example, be of significance if the matter arises in another forum, for example, in the High Court on a special leave application or in a further application for leave to appeal if leave had once been refused. 28 In this criminal justice context it is important that there be a formal document identifying precisely what was before the Court of Criminal Appeal. It is the notice which forms the record of the court upon which the parties join issue. (See R v Halmi [2005] NSWCCA 2; (2005) 62 NSWLR 263 at [51].) 29 That issues of this character are not solely concerned with matters of procedural fairness was recently affirmed by the High Court in Kirk v Industrial Relations Commission (NSW) [2010] HCA 1 where the Court said: "[26] The common law requires that a defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged, but also of the particular act, matter or thing alleged as the foundation of the charge … In more recent times the rationale of that requirement has been seen as lying in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he or she is called upon to meet." (Emphasis added.) 30 In my opinion, parallel reasoning applies to an appeal in criminal proceedings. A formal document identifying the grounds of that appeal ought to be brought into existence in any Crown appeal. 31 The criminal law context is such as to often support a conclusion that Parliament intended failure to comply with a procedural requirement as going to the validity of the proceedings. (See, eg, R v Birlut (1995) 39 NSWLR 1 at 5-6; R v Deng (1996) 136 FLR 201 at 205-206; R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10 at [90]-[91].) However, on the basis of my analysis of the statutory context above, Parliament did not intend that failure to identify grounds of appeal in the document initiating a Crown appeal under s 5D of the Act would render the appeal invalid. 32 This appears particularly by force of s 10(1)(c)(i), as confirmed by a comparison between r 23C and r 23E. Furthermore, the rules themselves make express provision for procedural defects of any character as follows: "76 Non-compliance by an appellant with these rules, or with any rule of practice, shall not, unless otherwise ordered by the Court or a judge, prevent the appeal being prosecuted, but the Court or a judge may make such amendments and give such directions as may be required." 33 In my opinion, this rule applies in the circumstances of a notice of appeal of the kind originally filed in the present case. This Court should acknowledge as a desirable "rule of practice", within the meaning of r 76, that a Crown appeal should identify grounds of appeal in the notice of appeal. However, that practice does not require such grounds to be identified when the notice is first filed. This is an issue of proper practice, not of the validity of the appeal. 34 Mr T Game SC, who appeared for the respondent, relied upon some observations in the High Court in Carroll v The Queen [2009] HCA 13; (2009) 83 ALJR 579. That was a case in which the notice of appeal identified the relevant ground as being that the sentence was "manifestly inadequate". The Court noted at [8] that no allegation of a more specific character was contained in the notice and added: "If a case of specific error of any of those kinds was to be made it would have been necessary to identify the asserted error in the grounds of appeal." 35 I accept, of course, that the grounds of appeal have to be identified at some stage. The High Court's observations do not imply that the failure to identify grounds at the time of the filing of the notice of appeal renders the notice invalid and the appeal incompetent. 36 Mr Game SC submitted that the Court should not grant leave to amend. He did not, however, submit that his client had been denied procedural fairness by reason of notice of the grounds of the appeal being given in the form of written submissions. His submission emphasised the significance of the identification of grounds of appeal. However, in the present case, those grounds were identified in advance of the oral hearing. In the absence of any suggestion that a procedural fairness issue arose, I can see no reason why the Court should not exercise its power under s 76 to permit the amendment. 37 I should indicate that, even if my analysis above was wrong and there was no valid notice of appeal, I would have given the appellant leave to file a notice of appeal containing the above grounds returnable instanter. Mr Game SC accepted that this was permissible and did not suggest that there would be any denial of procedural fairness in doing so. However, it is not necessary to take that course. 38 Leave should be granted to amend the notice of appeal by identifying the following grounds, as sought by the Crown: "1 His Honour erroneously formed the view that a standard non-parole period (of seven years) applied to the sentencing of the respondent. 2 His Honour treated as a matter in mitigation a matter which it was not open to him to find on the balance of probabilities, that is, that the respondent did not produce a knife. 3 His Honour failed to have appropriate regard to the principles applicable to sentencing offenders for crimes committed as part of a joint criminal enterprise. 4 His Honour fashioned the sentence for Count 1 of 24 months imprisonment, to enable him to order that it be suspended. 5 His Honour erred in forming the view that there were, in the case of the respondent, 'exceptional circumstances' such that his sentence of imprisonment on Count 1 be suspended. 6 His Honour failed to impose a sentence in respect of Count 2 which reflected the objective seriousness of the offence. 7 His Honour erred by having regard to irrelevant factors when determining the objective seriousness of the offence with the result that the sentencing exercise was unduly distorted. 8 His Honour failed to impose a sentence which properly reflected the objective seriousness of Count 1. 9 Gave too much weight to subjective circumstances."

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Issues on the Appeal 39 This appeal raises an important issue for the administration of criminal justice, namely the interpretation of the statutory provision which abolished the doctrine of double jeopardy with respect to a Crown appeal against sentence. It is for that reason that the Court has been constituted as a bench of five. I will consider this issue first. 40 Constitutional issues were raised by the submissions originally filed by the Crown as to the proper interpretation of s 68A. In the event, by reason of submissions made on the part of the Attorney General, intervening in these proceedings in response to a notice issued under s 78B of the Judiciary Act 1903 (Cth), and whose submissions were in large measure adopted by the Crown, it will not prove necessary to determine the constitutional questions. 41 The Crown's written submissions identified each of Grounds 1 and 2 as "patent" errors, whereas Grounds 3 to 9 were said to be reasons why the sentencing judge "fell into error". As I understand the distinction sought to be made in this submission, the two "patent" errors constituted, of themselves, errors of principle. I will consider each in turn. 42 As to the seven other grounds, as I understand the Crown's submissions, each is said to constitute what is often referred to, by way of contrast with a "patent" error, as a "latent" error. The latter kind of error is not said to constitute an error of principle of itself. It is a term applied to an error within the last category in House v The King (1936) 55 CLR 499, namely as the basis for an inference that the exercise of the sentencing discretion miscarried as reflected primarily in the alleged inadequacy of the sentence imposed. 43 Grounds 3 and 7 raise distinct issues, with which it is convenient to deal separately. It is appropriate to consider each of the other grounds in the context of the respective offences, ie, Grounds 4, 5, 8 and 9 with respect to the First Offence and Grounds 6 and 9 with respect to the Second Offence.

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The Double Jeopardy Issue 44 A sentencing principle commonly referred to in terms of "double jeopardy" has always applied to Crown appeals. The Crown invokes s 68A of the Crimes (Appeal and Review) Act 2001, inserted by the Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2009. 45 That section provides: "68A(1) An appeal court must not: (a) dismiss a prosecution appeal against sentence, or (b) impose a less severe sentence on any such appeal than the court would otherwise consider appropriate, because of any element of double jeopardy involved in the respondent being sentenced again. (2) This section extends to an appeal under the Criminal Appeal Act 1912 and accordingly a reference in this section to an appeal court includes a reference to the Court of Criminal Appeal." 46 Section 16 of Sch 1 to the Crimes (Appeal and Review) Act, inserted by the 2009 Amendment Act, provides that the new s 68A: " … extends to an appeal that was commenced but not finally determined before the insertion of the section." 47 With respect to the scope of s 68A, the principal submission on the part of the Attorney was stated in writing as follows: " … the words 'any element of double jeopardy' in s 68A refer to the principle that an appeal court may apply a discount in sentencing an offender because the offender is being sentenced twice. It is evident that this is the only element of double jeopardy addressed in s 68A." 48 In the course of advancing this submission, reliance was placed on an Agreement in Principle Speech (a new name for a Second Reading Speech) made by the Parliamentary Secretary on the Amendment Bill in the New South Wales Legislative Assembly on 23 September 2009. This was in the same terms as the Second Reading Speech tabled in the New South Wales Legislative Council on 22 September 2009. In each case, the Parliamentary Secretary identified the practice under the double jeopardy principle to the effect that "the Court will … give an automatic discount because the offender is being sentenced a second time for the same offence". 49 Mr J Griffiths SC, who appeared for the Attorney General, characterised the "discount" referred to by the Parliamentary Secretaries in written submissions as amended in oral argument, as follows: "The discount was intended to reflect the distress and anxiety of facing sentence again irrespective of the circumstances of the particular offender." 50 I note at this stage that, as the authorities to which I will shortly refer indicate, it is not appropriate to confine the double jeopardy principle to a "discount". The double jeopardy principle was also deployed in significant degree to the exercise of the discretion not to intervene and resentence the applicant at all. Furthermore, an issue has arisen as to whether s 68A affects references in the case law to the "rarity" of Crown appeals. 51 Mr D Arnott SC, who appeared for the Crown, also submitted that s 68A "excludes only the distress and anxiety of facing sentence a second time". The Crown, correctly in my opinion, distinguished between distress and anxiety of facing sentence for the first time, which is an inevitable concomitant in most cases of a conviction, and the additional distress and anxiety caused by the possibility of a harsher sentence on appeal. 52 The Crown accepted that the anxiety and distress of an offender facing a term of imprisonment may be relevant, by reason of the subjective circumstances of that particular offender. It submitted that s 68A was not directed to that consideration. I agree that such anxiety and distress may be relevant to resentencing. It is capable of being a significant indication that considerations of personal deterrence are not to be given significant weight. That appears to be the case on the facts of the matter before the Court. 53 The original Crown submission, which submitted that a wider range of matters relevant to the exercise of the sentencing discretion fell within the double jeopardy principle, was withdrawn. The matters withdrawn were: " … damage to reputation, legal costs, negative effects on third parties such as family members, completion of the sentence by the respondent or his or her imminent release from custody, delay by the Crown in lodging the appeal or in notifying the respondent of the appeal, errors by the Crown representative at sentencing that led the sentencing judge into error or acquiescence in the sentence by the Crown, and 'tinkering' with the sentence (that is, where there is only a small difference between the sentence at first instance and 'what should have been')." 54 The words "double jeopardy" are deployed in different senses. (Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [9]; Island Maritime Ltd v Filipowski [2006] HCA 30; (2006) 226 CLR 328 at [41].) When used in the context of sentencing, the principle of double jeopardy encompasses the element of distress and anxiety which a respondent suffers from being exposed to the possibility of a more severe sentence. The significance of such distress and anxiety is affirmed in the case law. 55 For example, in R v Hayes (1987) 29 A Crim R 452 at 469, Kirby P expressed the view that a Crown appeal against sentence was not strictly a form of double jeopardy but added: " … in a practical sense, there is a species of double jeopardy. The prisoner's liberty, pocket and reputation are put in jeopardy both before the sentencing judge and before the appellate court … In addition, the prisoner suffers the anxiety and stress caused by the situation of uncertainty arising from the delay in resolving his or her position …"

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(See also Cooke v Purcell (1988) 14 NSWLR 51 at 58.) 56 In the joint judgment of McHugh, Hayne and Callinan JJ in Pearce supra at [10], their Honours stated that "if there is a single rationale for the rule or rules that are described as the rule against double jeopardy, it is that described by Black J in Green v The United States". 57 In Green v The United States 355 US 184 at 187-188 (1957) Black J said: "The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty." 58 Although those observations were not made in the context of an appeal against sentence, they nevertheless clearly applied to such an appeal. 59 The passage from Green was referred to with approval in the majority opinion in United States v DiFrancesco 449 US 117 at 127-128 (1980), in a context of determining whether or not a statutory provision permitting an appeal by the executive against a sentence violated the Double Jeopardy Clause in the Fifth Amendment of the Constitution of the United States. 60 The Court majority opinion stated at 133 that there were "fundamental distinctions between a sentence and an acquittal". The Court went on to say at 136: "We have noted above the basic design of the double jeopardy provision, that is, as a bar against repeated attempts to convict, with a consequent subjection of the defendant to embarrassment, expense, anxiety and insecurity, and the possibility that he may be found guilty even though innocent. These considerations, however, have no significant application to the prosecution's statutorily granted right to review a sentence. This limited appeal does not involve a retrial or approximate the ordeal of a trial on the basic issue of guilt or innocence … To be sure, the appeal may prolong the period of any anxiety that may exist, but it does so only for the finite period provided by the statute. … The defendant's primary concern and anxiety obviously relate to the determination of innocence or guilt, and that already is behind him. The defendant is subject to no risk of being harassed and then convicted, although innocent." 61 DiFrancesco was a five/four decision. The dissentients rejected the majority view that an appeal against sentence "exposes the defendant to minimal incremental embarrassment and anxiety" (149) and added "To the convicted defendant, the sentencing process is certainly as critical as the guilt-innocence phase. To pretend otherwise … is to ignore reality" (150). 62 Although there is no constitutional dimension in Australian law in this respect, the case law in this nation appears to be more in accord with the minority opinion in terms of an assessment of the level of anxiety and insecurity occasioned by a Crown appeal against sentence. Whether this was an accurate assessment of the psychology of offenders no longer needs to be considered. 63 It was a common ground in this Court that prior to exercising the discretion conferred by s 5D of the Criminal Appeal Act 1912, the Court must identify error on the part of the sentencing judge of the kind for which the most frequently cited authority is House v The King supra at 505. This principle was established in the very first case to come before this Court shortly after s 5D was introduced into the Criminal Appeal Act. (See R v King (1925) 25 SR (NSW) 218.) The extent of the discretion was stated to be more wide ranging by the High Court in Whittaker v The King (1928) 41 CLR 230. However, the principle that error had to be found in cases under s 5D was clearly established by the High Court in Griffiths v The Queen (1977) 137 CLR 293 and has been affirmed on numerous subsequent occasions including in a unanimous High Court judgment. (See Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15].) 64 Once an error of principle has been identified, the result is that an offender has not been sentenced in accordance with law. Prima facie, it is the duty of the Court of Criminal Appeal to resentence. There are, however, discretionary considerations which arise as the words "may in its discretion" in s 5D make clear. Section 68A removes some such considerations. The issue before the Court is to identify the scope of that section. As the "double jeopardy" principle was a creation of the Courts, the task of statutory interpretation can only be undertaken by reference to the course of judicial decision-making. The intention of Parliament when enacting s 68A was to remove a judicially created sentencing principle.

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The Double Jeopardy Case Law 65 The judgment of Barwick CJ in Griffiths v The Queen introduced the idea of an additional element, over and above the application of the error principle, in the case of a Crown appeal. This consideration was not at first identified in terms of double jeopardy. Barwick CJ noted at 310 that, what the Court held in that case, to be a misinterpretation of the decision of the High Court in Whittaker supra, "Had led to much more frequent appeals by the Attorney-General than might properly have been expected". 66 His Honour went on to state at 310: "On my view of the proper meaning of s 5D in the context of the Criminal Appeal Act , an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons." 67 To similar effect were the observations of Murphy J when his Honour, referring to the function of a court of criminal appeal under s 5D, said at 331: "Its discretion not to vary may be and should be used to minimise the increasing of primary sentences, and to discourage frequent Crown appeals, so that the appeals may be invoked only rarely as the extraordinary remedy that was intended, and that it was until recent years." 68 Although the orders of the High Court in Griffiths were unanimous, the other three members of the High Court, Stephen, Jacobs and Aickin JJ, made no observations about the frequency of Crown appeals. 69 The observations of Sir Garfield Barwick in Griffiths reflect his general attitude to Crown appeals, which he had described in Peel v The Queen (1971) 125 CLR 447 at 452 in the following way: "They cut across time honoured concepts of criminal administration". Peel involved the issue as to whether or not s 5D of the Criminal Appeal Act was picked up by s 68(2) of the Judiciary Act (Cth) so that the Commonwealth Attorney-General had a right to appeal from an allegedly inadequate sentence in a Commonwealth criminal case. Barwick CJ found that s 68(2) should not be so interpreted. He was in dissent on this issue. 70 The approach of Barwick CJ to Crown appeals was reflected in subsequent High Court authority, eg, "represents a departure from traditional standards of what is proper in the administration of criminal justice". (Malvaso v The Queen (1989) 168 CLR 227 at 234 per Deane and McHugh JJ. See also the reference to departure from "time honoured concepts" in the joint judgment of Brennan, Deane, Dawson and Gaudron JJ in Everett v The Queen (1994) 181 CLR 295 at 299.) 71 So far as I am aware, the first occasion on which the element of restraint in the case of a Crown appeal was identified in terms of the terminology of double jeopardy was in the influential joint judgment of the Federal Court of Australia on appeal from the Supreme Court of the Northern Territory in The Queen v Tait (1979) 46 FLR 386. The bench on this occasion included both Brennan J and Deane J, then members of the Federal Court, elevated to the High Court in 1981 and 1982 respectively. 72 After affirming the error principle, the joint judgment stated at 388: " … a Crown appeal raises considerations which are not present in an appeal by a defendant seeking a reduction in his sentence." 73 Their Honours added at 388-389: "A Crown appeal puts in jeopardy 'the vested interest that a man has to the freedom which is his, subject to the sentence of a primary tribunal' (per Isaacs J in Whittaker v The King. ) The freedom beyond the sentence imposed is, for the second time, in jeopardy on a Crown appeal against sentence. It was first in jeopardy before the sentence in court." 74 Their Honours went on to identify certain examples of injustice that could arise in the context of what their Honours called "double jeopardy": "It would be unjust to a defendant to expose him to double jeopardy because of an error affecting his sentence, if the Crown's presentation of the case either contributed to the error or led the defendant to refrain from dealing with some aspect of the case which might have rebutted the suggested error." (at 389) "It would be unjust to a defendant, whose freedom is in jeopardy for the second time, to consider on appeal the case made against him on a new basis - a basis which he might have successfully challenged had the case against him been fully presented before the sentencing court". (at 389) " … there would be few cases where the appellate court would intervene on an appeal against sentence to correct an alleged error by increasing the sentence if the Crown had not done what was reasonably required to assist the sentencing judge to avoid the error, or if the defendant were unduly prejudiced in meeting for the first time on appeal the true case against him". (at 390) 75 The first application of the terminology of double jeopardy after Tait, was in the judgment in R v Wilton (1981) 28 SASR 362; (1981) 4 A Crim R 5. This was a judgment of King CJ, one of the most respected criminal appeal judges of the time. 76 In Wilton, the Crown sought to raise on appeal a contention with respect to sentencing that was not put to the sentencing judge. The learned Chief Justice said at 367-368: "The consequences of allowing the prosecution to do so are serious. The respondent has faced the prospect of deprivation of his liberty by way of imprisonment and has been spared, subject to observance of the conditions of the bond. If the prosecution is allowed to raise the contention he must again face the prospect of imprisonment. This is what the Federal Court meant in R v Tait and Bartley (1979) 24 ALR 473 by 'double jeopardy'. In my opinion, this court should allow the prosecution to put to it, on an appeal against sentence, contentions which were not put to the sentencing judge, only in exceptional circumstances which appear to justify that course." 77 Prior to Tait's case, New South Wales case law on Crown appeals did not employ double jeopardy language. (See, eg, R v Cuthbert (1967) 86 WN (Pt 1) (NSW) 272; R v Donaldson (1968) 87 WN (Pt 1) (NSW) 501.) The first occasion of which I am aware on which the terminology of double jeopardy was adopted in this Court was in R v Tleige (NSW Court of Criminal Appeal, 19 November 1982, unreported). 78 In Tleige, Street CJ, with whom Lee and Lusher JJ agreed, said: "In determining what the quantum of sentence should be we have, as not infrequently occurs in the case of Crown appeals, borne in mind that the respondent has been twice in jeopardy in the matter of sentence. It will be distressing in the extreme for him to suffer the sentence passed on him some time ago being increased. This leads us to determine a sentence which is more lenient than would properly be appropriate if the matter were coming forward for sentence for the first time." 79 In a frequently cited judgment of this Court the terminology of "double jeopardy" was adopted in R v Holder & Johnston (1983) 3 NSWLR 245 where Street CJ said at 255-256: "An important element in determination of a Crown appeal is the exercise of the residual discretion to dismiss an appeal notwithstanding that error of one or other of the categories mentioned above may have been established by the Crown. This discretion is a real and live discretion. In practice, it is exercised not infrequently. It enables the Court to keep an ultimate control by protecting a convicted person against unfairness or injustice if that would flow from an adverse appellate decision. It is in this ultimate discretionary field that considerations of what has been called double jeopardy are of particular relevance. Within this field, also, the court's understandable reluctance to detect manifest inadequacy may be given, so to speak, a second opportunity of operating in the convicted person's favour." 80 I note that Street CJ does not identify "double jeopardy" as in any way exhausting what his Honour calls the "discretionary field", being the "residual discretion to dismiss an appeal notwithstanding that error … may have been established by the Crown". 81 Street CJ went on to refer to the second, discrete, aspect of the double jeopardy referable not to the discretion as to whether or not to intervene but in terms of the approach to determining the appropriate sentence once the decision to intervene has been taken. 82 His Honour said at 256: "Not only does the Court of Criminal Appeal have a discretion to dismiss a Crown appeal albeit that manifest inadequacy is established, but also the sentence passed on a successful Crown appeal does not always represent the full measure of sentence which might have been passed upon the convicted person at first instance." 83 There are numerous cases in this and other courts of criminal appeal in which the courts have stated that the fact that an accused on a Crown appeal is subject to "double jeopardy" is relevant both to the exercise of the discretion whether to intervene at all and also to the determination of what sentence should be imposed once the decision to intervene has been made. A third issue is whether references to the "rarity" of Crown appeals, flowing from the observations in Griffiths set out at par [67] above, also reflect the double jeopardy principle. I will deal with each of these three matters separately. 84 Some of the authorities from other states on the double jeopardy principle must be treated with care because the legislative regime in a number of States differs in significant respects from that applicable in New South Wales. For example, in some states there is a requirement that leave be granted before a Crown appeal against sentence can proceed. In New South Wales there is a clear distinction in the legislative scheme between the leave requirement for a sentence appeal under s 6 of the Criminal Appeal Act and the absence of any such requirement in s 5D of that Act. Accordingly, Crown appeals in a statutory context where leave is required, may give rise to a broader range of considerations than those to which it is appropriate to have regard where an appeal lies as a right.

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The Discretion to Intervene 85 R v Holder & Johnston authoritatively established for this State that the Court retains a discretion to dismiss a Crown appeal to be exercised on the basis of "unfairness or injustice". As this formulation itself indicates, the discretion is not one to be exercised on the basis of a narrow range of considerations. Numerous authorities affirm the existence of such a discretion. However, the principle of double jeopardy, now abolished by statute, is only one basis on which this discretion can be exercised albeit, perhaps, the most frequent basis upon which it has historically been exercised. 86 Subject to its scope of application, this aspect of double jeopardy was not controversial in this case. The Second Reading speeches by the Parliamentary Secretaries in each House said: "Under the current common law principles that apply to Crown appeals against sentence, the appeal court has a wide discretion to refuse to intervene and adjust the sentence, even where an error has been shown. In considering whether to intervene, the court currently takes into account the fact that the person is facing 'double jeopardy' in the sense that they are re-sentenced for a second time." 87 Counsel for the respondent contended that the discretion not to intervene remained extant on the basis of considerations not falling within the concept of double jeopardy. This submission should be accepted. 88 The courts of criminal jurisdiction, including courts of criminal appeal, have always been astute to exercise what can be described as a supervisory jurisdiction over the executive branch of government's involvement in the administration of criminal justice, with respect both to police investigations and to criminal prosecutions. This approach has been manifest in a number of different ways including the exercise of the inherent jurisdiction to prevent abuse of process or the exercise of the discretion to reject otherwise admissible evidence. 89 A clear example is the power exercised to stay criminal proceedings on the basis that an abuse has occurred on the part of the police or of the prosecution. Historically, a particularly significant example was the formulation of the Judges' Rules for the admissibility of criminal confessions. (See the outline of the history of the Rules at Practice Note (Judges' Rules) (1964) 1 WLR 152, G Abrahams Police Questioning and the Judges Rules, (1964) Oyez Publications, esp at 12-19; The Honourable Justice F M Neasey "The Rights of the Accused and the Interests of the Community" (1969) 43 Australian Law Journal 482 at 493-495.) 90 The Judges' Rules were a creation of the judiciary at the commencement of the twentieth century. The only relevant authority the judges had to exercise was the discretion to reject the tender of a confession into evidence. Rejection of such evidence would, in many cases, lead to an acquittal. The Rules were never applied as if they were binding. (See R v Voisin (1918) 1 KB 531 at 539-540; McDermott v The King (1948) 76 CLR 501 esp at 507; The Queen v Lee (1950) 82 CLR 133 at 154; Neasey supra at 486-493.) Nevertheless, the use of the Rules as non-binding guidelines recognised the institutional imperative of the police force to secure convictions. The English judges who adopted the Rules clearly understood that impeding the ability of the force to do so would constitute a powerful internal institutional discipline upon police conduct, of a character which may not have occurred by other means of regulation of such conduct, eg, disciplinary proceedings, which depend on action by other branches of the executive government. 91 Not dissimilar considerations arise with respect to ensuring proper conduct on the part of prosecutors and prosecutorial institutions. Notwithstanding the general principle that the prosecution does not have any interest in either a conviction or a particular sentence, it is nevertheless appropriate to recognise that an institutional imperative to ensure success in prosecutions does exist. There may be prosecutorial conduct which does not constitute an abuse of process, but nevertheless manifests an inappropriate approach to the conduct of a prosecution. 92 Accordingly, conduct by the Crown with respect to sentence hearings and Crown appeals may be taken into account in exercising the discretion as to whether to intervene at all. Such matters are not, in my opinion, limited to considerations of double jeopardy. The responsibility of the prosecutorial authorities for the fair, just and proper administration of the criminal justice system is such that many forms of inappropriate or unfair conduct can be taken into account in the exercise of the power and discretion vested in a Court. 93 In this regard, I would include such matters as the contribution the Crown made to sentencing error by the sentencing judge and an attempt to conduct an appeal on a different basis to that advanced below. Both of these matters were identified in the judgment of The Queen v Tait as manifestations of the double jeopardy principle (see at [74] above). I do not believe they are so restricted. Nor is the issue of delay in instituting a Crown appeal so restricted. As the Crown conceded in this Court, each of these three matters do involve double jeopardy considerations, but they involve additional considerations. It is only resort to the former which s 68A proscribes. 94 I am reinforced in this view by the situation in Queensland where the double jeopardy principle has not applied, because the statute providing for a Crown appeal states that the court has "an unfettered discretion" to vary the sentence. Even in such a context, the Queensland Court of Appeal has held that delay and the conduct of the prosecution of the sentence are factors which may lead the court to resentence at the lower end of the range. (See R v Lacey [2009] QCA 274 at [150].) 95 Accordingly, s 68A, whilst removing the double jeopardy element from the exercise of the discretion to intervene, leaves other aspects untouched. On this basis, there remains a residual discretion to reject a Crown appeal, notwithstanding the abolition of the double jeopardy principle. The Court of Criminal Appeal must continue to recognise in a real and practical way the Crown's responsibility for the proper administration of the criminal justice system.

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The Substituted Sentence 96 The second element of double jeopardy, being the constraint on the sentence the Court imposes if it decides to intervene, is well established. It has been expressed in a number of different formulations: "towards the lower end of the range of available sentences" ( Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at [62] per Kirby J); "the least sentence that could properly have been imposed" ( R v Rose NSW Court of Criminal Appeal, 23 May 1996, unreported per Gleeson CJ, applied in R v Jurisic (1998) 45 NSWLR 209 at 232); "one which is at the bottom of the range"( R v Giam (No 2) [1999] NSWCCA 378; (1999) 109 A Crim R 348 at [28] per Dunford J); "usually requires a discount to be applied by this Court … the extent of that discount varies according to the individual circumstances subjective to the respondent" ( R v Hallocoglu (1992) 29 NSWLR 67 at 80 per Hunt CJ at CL); "a sentence that is somewhat less than the sentence it considers should have been imposed at first instance" ( R v Allpass (1993) 72 A Crim R 561 at 562 per Gleeson CJ, Hunt CJ at CL and McInerney J); "there is no tariff for the discount for the double jeopardy involved" ( Comptroller-General of Customs v D'Aquino Bros Pty Ltd (1996) 130 FLR 383 at 403; (1996) 85 A Crim R 517 at 538); "generally less than that which should have been imposed by the sentencing court" and "generally … towards the lower end of the available range" ( R v Wall [2002] NSWCCA 42; (2002) 71 NSWLR 692 at [70] per Wood CJ at CL, with whom Meagher JA and Bell J agreed). 97 It is unnecessary to attempt to reconcile these different formulations. The basic principle was well established and, as the joint judgment of Gleeson CJ, Hunt CJ at CL and McInerney J in Allpass supra expressly stated at 562, the reduction in the sentence that the Court considered ought to have been imposed is an application of the double jeopardy principle. 98 This aspect of the concept of double jeopardy was not controversial in the submissions in this Court. It was clearly a sentencing principle applicable to each individual case in which the exercise of a discretion under s 5D arises. It has been removed by s 68A. The intention to do was made quite clear in the Second Reading speeches, where each Parliamentary Secretary said in each House: " … even where appeal courts have decided to intervene and impose a new sentence, under this principle they have historically imposed sentences that are less than that which they would otherwise have imposed, again on the basis that the prisoner is facing being sentenced for the second time. The Double Jeopardy Law Reform Working Group, which reported to COAG, considered this issue. They gave weight to the argument that, where an appeal court finds that a sentence imposed at first instance is inadequate, but through the operation of sentencing principles (in particular the principle of 'sentencing double jeopardy') the inadequacy remains uncorrected, this does not serve the community's interest in seeing crimes appropriately punished. The Government agrees, and the provision in the bill make sure that where an offender has received too lenient a sentence because of an error made by the sentencing court, an appropriate sentence will be imposed on appeal, because the court will not be bound to give an 'automatic discount' because the offender is being sentenced a second time for the same offence."

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The Issue of "Rarity" 99 The third matter which arises in the present context is whether or not the observations of Barwick CJ in Griffiths supra, set out at [66] above, as to the "rarity" of Crown appeals are within the double jeopardy principle abolished by s 68A. The Crown submitted that references to "rarity" did not constitute a sentencing principle. 100 There appears to be no authority which indicates how the "rarity" proposition can be deployed as a sentencing principle applicable in an individual case. It is not clear how the Court would determine that, in some quantitative manner, over some period of time, the position has been reached that Crown appeals have become too frequent. Presumably, when that is determined to have occurred, the Court should act in some way with respect to the case before it. I have not identified any analysis of how that would be reflected in the decision in an individual case other than by the exercise of the discretion not to intervene in a decision or to impose a more lenient sentence than would otherwise be imposed. Both these matters are clearly within s 68A. 101 In the basal New South Wales authority on double jeopardy, R v Holder & Johnston, Street CJ did not reiterate the observations of Barwick CJ in Griffiths to the effect that Crown appeals should be "rare". Rather he quoted from the judgment of Jacobs J in Griffiths at 327, who said with respect to s 5D: "The trial judge is given a wide discretion from the circumstance that a Court on appeal will not likely conclude that another sentence should have been passed. The incorrectness of the sentence must be manifest … But if it does so conclude it must interfere in the case of a defendant's appeal; it may in its discretion interfere in the case of an appeal under s 5D." 102 There is no reference to any consideration of the frequency of Crown appeals. Jacobs J's reasons, Street CJ said at 253, "stated the law in this regard as it has always been understood and applied in this Court". 103 Street CJ added at 255: " … courts are understandably more ready to ascribe error where the ground is manifest excess than where the ground is manifest inadequacy. It would, however, be wrong for courts to adopt a posture of discouraging the bringing of Crown appeals whether by direct statements to this effect or by reluctance to entertain them fairly and properly. The legislature has specifically provided for a Crown appeal against sentence. It is the province of the Crown law authorities to determine whether in any given case to bring such an appeal. It is the duty of the court to decide it. If rights under a statute are used oppressively so as to amount in effect to a misuse, then it is both right and proper for a court to say so. But the mere fact that the Crown exercises its right to appeal falls far short of justifying expressions of judicial disapprobation." 104 Subsequent to these remarks, the High Court reinforced the significance of Barwick CJ's observations on "rarity". At first, such references were made in cases from South Australia and Tasmania where the relevant statute contained a requirement of leave, unlike s 5D of the New South Wales Act. 105 However, in Malvaso v The Queen supra at 234, the joint judgment of Deane and McHugh JJ identified a Crown appeal against sentence as being "in a practical sense … contrary to the deep-rooted notions of fairness and decency which underlie the common law principle against double jeopardy". Their Honours quoted the passage from Griffiths in which Barwick CJ referred to "rarity" and added at 234-235: "In such a case, the court entrusted with the jurisdiction to grant or refuse such leave should give careful and distinct consideration to the question whether the Attorney-General has discharged the onus of persuading it that the circumstances are such as to bring the particular case within the rare category in which a grant of leave to the Attorney-General to appeal against sentence is justified."

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Their Honours stated at 234 that the observations of Barwick CJ in Griffiths : " … should be accepted as representing general and authoritative guidance to the Courts of Criminal Appeal of this country." 106 This passage indicates that the observations so endorsed are to be applied as a sentencing principle. It is by no means clear that Barwick CJ intended that to be the case. His Honour had said Crown appeals "should be a rarity". The word "should" is ambiguous. It can suggest either obligatory or advisable conduct. Nor is it clear that the admonition was directed to the judiciary. It is the executive which determines whether an appeal is instituted. 107 As Griffiths itself was an appeal from New South Wales, to which s 5D applied, there can be no doubt that in Malvaso their Honours intended to apply this proposition to s 5D, notwithstanding the absence of a leave requirement. 108 The reasoning in the joint judgment of Deane and McHugh JJ in Malvaso was adopted by the majority of the High Court in a joint judgment of Brennan, Deane, Dawson and Gaudron JJ in Everett v The Queen (1994) 181 CLR 295. Their Honours were again concerned with a statutory provision requiring leave. The joint judgment reiterated the double jeopardy basis for the approach to a Crown appeal when it said at 299: "An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed." 109 The joint judgment then expressly adopted the passage from Malvaso at 234-235, which I have quoted at [105] above, including the reference to "rare category". The joint judgment also set out the extract from Barwick CJ in Griffiths. There is nothing in the reasoning in Everett to suggest that the adoption of the "rarity" references turned on the requirement of leave in the Tasmanian Act. 110 Written submissions for the respondent challenged the proposition that the references to "rarity" of Crown appeals was based on the double jeopardy principle. The submission referred to the sentence in Barwick CJ's judgment set out at [66] above, which referred to the purpose of a Crown appeal being "to establish some matter of principle" and "to lay down principles". These references are, in my opinion, a reference to the error principle. It can be readily accepted that the error principle does involve a significant restraint on the number of Crown appeals. However, in that respect, the frequency of appeals must be tied to the frequency of error. 111 In both the judgment of Deane and McHugh JJ in Malvaso and in the joint judgment in Everett, the reference in Barwick CJ's judgment in Griffiths to establishing a "matter of principle" (ie the error principle) was expressly extended to encompass "manifest disparity or inconsistency in sentencing standards" (Malvaso supra at 234) or to "what is necessary to avoid … inadequacy or inconsistency in sentencing standards." (Everett at 300.) (See the authorities referred to by Wood CJ at CL in R v Wall [2002] NSWCCA 42; (2002) 71 NSWLR 692 at 70.) The clarification that manifest inadequacy or inconsistency involve correction on a matter of principle, will be of significance in terms of determining whether or not Crown appeals are, as a matter of fact, "rare". 112 A useful synthesis of the principles established by the High Court is set out by Charles JA in R v Clarke (1996) 2 VR 520 at 522: "Occasions may arise for the bringing of a Crown appeal (a) where a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as constitute error in principle ( Everett at 300); (b) where it is necessary for a court of criminal appeal to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons ( Griffiths at 310); (c) to enable the courts to establish and maintain adequate standards of punishment for crime; (d) to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be correct; (e) to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience (as to the last three, see Osenkowski at 213); (f) to ensure, so far as the subject matter permits, that there will be uniformity in sentencing ( Everett at 306)." 113 The frequency and significance of these matters can change over time. The criminal justice system has altered in critical and relevant ways over the 35 or so years since the judgment in Griffiths was handed down. 114 First, the size and nature of the judiciary has changed. The judiciary is considerably larger today and is a much more heterogeneous body in terms of gender, social origin and attitude than it once was. Issues of consistency arise more often in such circumstances. 115 Secondly, statutory intervention in the sentencing process has transformed the exercise of the discretion from the broad based, unguided discretion that existed at the time Griffiths was decided. Legislation has imposed detailed requirements, both of process and content, which considerably increase the complexity of the task and, accordingly, multiply the prospect of error and of inconsistency. The unguided, unfettered discretion which was the norm in 1976 has been transformed. 116 As a result, numerous Crown appeals now turn on alleged non-compliance with statutory requirements by sentencing judges. The experience of this Court with respect to the somewhat convoluted provisions of the Crimes (Sentencing Procedure) Act, eg, as to the identification and treatment of the statutory list of aggravated and mitigating factors or the process of assessment and application of the system of standard non-parole periods with respect to most serious crimes, arise frequently in this Court in appeals by both the Crown and by offenders. The circumstances in which errors of principle are likely to be committed and manifestly inadequate sentences imposed have expanded. 117 These changes in the criminal justice system are such that one would expect an increase in the number of Crown appeals in this Court. I set out below how that increase has manifested itself over the last 20 years. In my opinion, the increase is not unreasonable in the circumstances I have identified. Crown Appeals Filed in NSW CCA 1990-2009 1990 46 1991 73 1992 37 1993 63 1994 62 1995 67 1996 54 1997 67 1998 77 1999 83 2000 82 2001 93 2002 93 2003 115 2004 100 2005 102 2006 86 2007 96 2008 75 2009 88

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118 When the legislation introducing s 68A was enacted, the overall objective was expressed by each Parliamentary Secretary in the following manner: " … where an appeal court finds that a sentence imposed at first instance is inadequate, but through the operation of sentencing principle (in particular the principle of 'sentencing double jeopardy') the inadequacy remains uncorrected, this does not serve the community's interest in seeing crimes punished appropriately." 119 However, the Parliamentary Secretary in each House went on to state: "Crown appeals on sentence are, and should continue to be, rare." 120 In part, this could be understood to reflect an aspiration that sentencing error and manifestly inadequate sentences are not expected to occur often. However, primarily it should be treated as an indication about the approach to be taken on the part of the Director of Public Prosecutions in the exercise of his or her discretion to institute such appeals. In this respect it is a statement directed to the executive, not to the judiciary. Whatever the expectation or intention, the words cannot bind the Court when determining the scope of the "double jeopardy" principle which was, after all, created by the judiciary, not by Parliament. 121 There is a tension between the 'rarity' proposition and the reluctance of courts to interfere with a prosecutorial discretion. (See, eg, Barton v The Queen (1980) 147 CLR 75 at 94-95; R v Apostilides (1984) 154 CLR 563 at 571-575; Maxwell v The Queen (1996) 184 CLR 501 at 512-514, 534.) 122 In Maxwell, Dawson and McHugh JJ said at 512: "Our courts do not purport to exercise control over the institution or continuance of criminal proceedings, save where it is necessary to do so to prevent an abuse of process or to ensure a fair trial." 123 In the context of a Crown appeal against sentence, it is the double jeopardy principle that constitutes the element of unfairness or injustice that could be seen to be an equivalent justification for constraining the Crown's discretion under s 5D. For the courts to go further could raise constitutional issues, because of the possibility of compromising the integrity of the judicial process by the perception of judicial involvement in prosecution decisions about steps in the criminal justice process. (See Maxwell supra at 534; Director of Public Prosecutions (SA) v B (1998) 194 CLR 566 at [21]; Island Maritime Ltd v Filipowski supra at [81].) 124 Insofar as references to "rarity" were to be understood as applicable to sentencing in an individual case then, in my opinion, those references should now be regarded as no longer applicable by reason of the abolition of the double jeopardy principle. There are a number of judicial observations which clearly link such references to the double jeopardy principle. I will set out only three. 125 Gleeson CJ, Hunt CJ at CL and McInerney J in Allpass supra at 562 referred to Barwick CJ's observation about rarity and added: "One reason for this is the element of double jeopardy that is involved in such appeals. Rules designed to safeguard against double jeopardy are deeply embedded in our system of criminal justice …" 126 Similarly, Kirby J said of the references to "rarity" in Dinsdale supra at [62]: "The attitude of restraint reflected in such remarks has often been justified on the basis that a Crown appeal against sentence puts the prisoner in jeopardy of punishment for a second time …" 127 Finally, Maxwell P, who characterised the "rarity" principle as the "cardinal rule" in Director of Public Prosecutions (Vic) v Josefski [2005] VSCA 265; (2005) 13 VR 85 at [13], added: "It is the common law's abhorrence of double jeopardy which explains why a Crown appeal on sentence should only occur in the 'rare and exceptional case'." 128 I should refer to my own observations in R v Baker [2000] NSWCCA 85 at [19]: "The authorities make it clear that Crown appeals should be rare. It may be that present practice does not reflect that restriction, nevertheless, successful Crown appeals should be rare."

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Interstate Case Law 131 The Crimes (Appeal and Review) Amendment (Double Jeopardy) Act which introduced s 68A in the Crimes (Appeal and Review) Act implemented an agreement in principle, at the level of the Council of Australian Governments, to reform the law with respect to double jeopardy. This was consequent upon earlier amendments abrogating the principle of double jeopardy with respect to conviction appeals in limited circumstances. The agreement included amendment of the principle of double jeopardy with respect to sentencing. 132 A number of States have enacted this aspect of the agreement and, in general where such an agreement exists at a national level, it is desirable that the amendments, insofar as they constitute a uniform regime, should be interpreted in a uniform manner. However, in critical respects there is no uniform regime, because of the differences amongst the pre-existing provisions for Crown appeals. Nevertheless, it is pertinent to refer to interstate authority for guidance, whilst recognising the different legislative regimes that exist. 133 The only interstate provision which has received substantial interpretation is s 41(4)(b) of the Criminal Appeals Act 2004 (WA), which relevantly states: "The appeal court deciding an appeal that does or may require it to impose a sentence, or to vary a sentence imposed, on a person for an offence (whether the appeal was commenced by the person or by the prosecutor) … (b) must not take into account the fact that the court's decision may mean that the person is again sentenced for the offence." 134 This concise language does not employ the terminology of "double jeopardy". Accordingly, the case law is not directly applicable to s 68A. However, in the event, this provision has been interpreted to cover the same field. 135 In the first case, Western Australia v Wallam [2008] WASCA 117; (2008) 185 A Crim R 116, McClure JA, with whom Miller JA agreed, expressly indicated that this amendment was "intended to exclude the double jeopardy principle as a relevant consideration …" (at [29]). However Murray JA suggested that it had a more limited application. His Honour said that it excluded only the specific facts stated and that "… it leaves substantially unaffected the general principle by which the court will be guided in its approach to an appeal against sentence by the prosecution …" (at [121]). 136 In Western Australia v Cunningham [2008] WASCA 240; (2008) 190 A Crim R 430 Miller JA, with whom the other members of the Court agreed, referred to s 41(4)(b) as leading to the conclusion that "prosecution appeals are no longer subject to the 'double jeopardy' principle …" (at [21]). A similar conclusion was reached in Western Australia v Bennett [2009] WASCA 93. 137 The position in Western Australia was put beyond doubt in Western Australia v Atherton [2009] WASCA 148. Buss JA said: "[149] In my opinion, s 41(4)(b) applies generally on the hearing of a State appeal against sentence. The provision does not merely abrogate the common law principle of moderation in relation to the new sentence to be imposed upon the appeal being allowed. It abrogates generally the common law principles applicable to State appeals against sentence." 138 His Honour went on to refer to the previous cases of Wallam, Cunningham and Bennett and concluded: "[160] It is beyond argument that in Cunningham and Bennett this Court held unanimously that s 41(4), as amended, abrogated generally the common law principles applicable to State appeals against sentence." 139 To similar effect were the observations of Miller JA at [382]-[385]. His Honour specifically rejected views expressed in that case by Pullen JA to the effect that "the common law principles relating to the frequency and proper role of prosecution appeals are not affected by s41(4) of the Criminal Appeal Act" (at [385]). This was a reference to the views expressed by Pullen JA with respect to the case law on "rarity". 140 In a number of respects the Western Australian legislature regime differs, but there is nothing in the Western Australian case law which would suggest a different conclusion to that to which I have come with respect to the scope of s 68A.

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(v) Section 68A prevents the Court from having regard to the frequency of Crown appeals as a sentencing principle applicable to an individual case by taking either step referred to in (iii) or (iv), or otherwise. 142 It is necessary to deal with a particular Crown submission on the approach the Court should take to the exercise of its jurisdiction under s 5D after s 68A has removed double jeopardy considerations. The Crown submitted that, once error was identified, the Court was obliged to embark on the resentencing exercise. There were not, Mr Arnott submitted, two stages to the exercise: ie, whether to intervene and then to determine what sentence to impose, but only one question. That one question is: "What is the correct sentence and is this significantly different to the one under appeal?" 143 The Crown went on to note that the Court could decide not to intervene if to do so amounts to "mere tinkering". Mr Arnott emphasised, it was necessary for the Court of Criminal Appeal, having identified relevant error, to determine what sentence ought to have been imposed and then to assess whether or not there is a "marked difference" between that sentence and the sentence actually imposed and, if there was such a "difference", the Court should proceed to resentence. 144 The obligation to compute and articulate the actual sentence which the appellate court would impose was said to flow from the reasoning of the High Court in McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121 as further explained by McHugh J in Strong v The Queen [2005] HCA 30; (2005) 224 CLR 1. 145 Both McGarry and Strong involved a sentencing regime in which there was more than one element in the sentence. These cases have no relevant analogy to a Crown appeal. The reference in McGarry at [9] to the appellate court being 'obliged' itself to resentence the offender, provides no support for the Crown's contention. 146 As I have indicated above, there is a long line of authority which distinguishes, on a Crown appeal, between the discretion to intervene and the sentence to be imposed. That distinction remains after the enactment of s 68A. There are circumstances in which the discretion will be exercised without the appellate court determining what an appropriate sentence should be. Nothing in McGarry or Strong suggests the contrary.

[55]

Ground 2 151 The Crown asserts that it was not open to his Honour to conclude that the respondent did not produce a knife. This is a reference to the finding that his Honour made as set out at [9] above to the effect that, on the whole of the evidence before him, "I am left without any evidence of this offender actually producing or using a knife in either robbery". As I have also set out, his Honour said that he may not have been able to draw this conclusion if he only had the Agreed Statement of Facts before him. His Honour said that in a context where the Crown had itself indicated, by calling JM, that it would not rely only on the Agreed Facts. 152 In oral submissions to this Court the Crown submitted that although his Honour was entitled to conclude that he could not decide whether JW had a knife or not, he was not entitled to conclude as a positive fact that he did not have a knife. 153 In written submissions the Crown characterised the matter it sought to raise under Ground 2 as a "patent" error. A finding of fact that was not open could be an error of principle, which entitles this Court to intervene. I approach this ground of appeal on the narrow basis so advanced by the Crown. I set aside any consideration of what weight is to be given to the identification of the particular person who wielded the knife in the context of a joint criminal enterprise. 154 In my opinion, the characterisation by the Crown of his Honour's reasoning as being to the effect that it constituted a finding "as a positive fact that he didn't have the knife" is not accurate. What his Honour said was that, by reason of the introduction of the oral evidence of JM which blurred the clarity of the evidence which appeared on the face of the Agreed Statement of Facts: "I am left without any evidence of this offender actually producing or using a knife in either robbery." 155 This is not, in my opinion, a finding of positive fact that he had no knife. It is appropriate to characterise it in the form that the Crown said was acceptable, ie, "That his Honour was entitled to conclude that he was unable to decide whether JW had a knife or not". 156 Mr D Arnott submitted that the passage to which I have referred, which appeared at the top of a page of his Honour's Remarks should be understood in the context of what his Honour went on to say at the bottom of that page and on the next page, being the passage which I have set out at [10] above. I am unable to accept that this passage constitutes a positive finding that the respondent had no knife. 157 Ground 2 should be rejected.

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Ground 3 158 Ground 3 is applicable to both offences. It alleges failure to apply sentencing principles applicable in the case of a joint criminal enterprise. It was not pressed as a separate error of principle, although in its terms it could be so regarded. Rather it was advanced as one of the "reasons" why "his Honour may have fallen into error". 159 The Crown submissions did not identify with any specificity what aspect of his Honour's reasons manifested the alleged error. The Court was not directed to any of the authorities on sentencing offenders for crimes committed as part of a joint criminal enterprise. No particular principle with respect to a sentencing for such cases was either identified or linked to any part of his Honour's reasons. 160 With respect to Ground 3, the Crown invoked the observations of Carruthers AJ (with whom Beazley JA and Wood CJ at CL agreed) in R v Hoschke [2001] NSWCCA 317 as follows: "[18] Insofar as the factual matters are concerned, it is, in my view, sufficient to notice the fact that criminal law has always looked with great disfavour upon robbery in company. If two persons agree to perform a joint criminal enterprise, such as in the instant case of robbery of an unarmed, innocent bystander, then it is inappropriate to attempt to assess with any degree of precision the role which each played in the consummation of the criminal enterprise." 161 It may be the case that the particular role of a person engaged in a joint criminal enterprise does not always need to be identified with "precision", because of the responsibility each participant in such a joint enterprise must bear for the acts of any other participant in carrying out that enterprise. Nevertheless, it is always relevant to refer to the particular conduct of each such participant with a view to identifying the level of culpability for which each must be sentenced. (See, eg, Lowe v The Queen (1984) 154 CLR 606 at 609; R v Howard (1992) 29 NSWLR 242 at 254-259; R v Spathis [2001] NSWCCA 476 at [193]-[197]. See generally A Dyer and H Donnelly, "Sentencing in Complicity Cases - Part 1: Joint Criminal Enterprise", Sentencing Trends and Issues, No 38, Judicial Commission of New South Wales, June 2009.) I do not understand the brief observations in Hoschke to qualify this well established principle. 162 A more complete statement of the applicable principles is set out by James J, with whom McClellan CJ at CL and Adams J agreed, in R v Wright [2009] NSWCCA 3, as follows: "[28] If this conduct by other persons was done in the carrying out of a joint criminal enterprise to which the respondent was a party, then the respondent was to be sentenced for that conduct under the principle that a party to a joint criminal enterprise is to be sentenced for the full range of the criminal acts done by any of the parties to the joint criminal enterprise in the carrying out of the enterprise R v Cotter & Ors [2003] NSWCCA 273 especially per Carruthers AJ at 90. [29] However, the respondent was not necessarily to receive the same punishment as would have been appropriate if he had himself personally performed all of those acts. In each case it depends on the circumstances whether a person who is criminally liable for an act as a principal in the second degree or as an accessory should be regarded as equally culpable, less culpable or even more culpable than the person who actually performed the criminal act. See the discussion by the High Court in GAS v The Queen (2004) 217 CLR 198 especially at 209 (23). [30] A case to which the Court was referred on the present appeal was R v Mitchell, R v Gallagher [2007] NSWCCA 296. In Mitchell and Gallagher the two respondents to the Crown appeal against sentence had jointly attacked the victim, punching, kicking and stomping on him. It was found that Mitchell was the primary offender in the attacking of the victim, although Gallagher had also punched the victim to the head and kicked him as he lay on the ground. The Court of Criminal Appeal accepted that Gallagher's objective criminality was less than Mitchell's, even if not to a very substantial degree, and that, apart from differences in the subjective circumstances of the two offenders, Gallagher's lesser objective criminality should be reflected in a lesser sentence." 163 The Crown's factual submissions on Ground 3 turned on his Honour's observations that the respondent in this case "played a less prominent role than his two co-offenders" and that his "role was not as serious as either of his co-offenders". It was not suggested that these particular observations by his Honour constituted an error of principle. However, it was submitted that it was not appropriate for his Honour to differentiate the sentence to be imposed on the respondent to "any marked degree" from that of his co-offender JC. 164 His Honour was clearly aware of the fact that the crimes were committed as part of a joint criminal enterprise. In the passage I have set out at [12] above his Honour said, to repeat: "The offenders acted in company and they showed a disregard for public safety. There must have been some degree of planning in both of offences, although it can hardly be described as sophisticated. They had knives, although there is no evidence that this possession was initially for the purposes of committing robberies." 165 The Crown's submissions did not identify any specific respect in which his Honour's differentiation of the comparative roles of the respondent and his co-offenders was impermissible in accordance with the principles identified in the passage in Wright set out above. As his Honour explained, he made findings of fact quite different from those made by the sentencing judge who sentenced the co-offenders. In particular, in terms of personality, maturity and actual conduct on the evening, the evidence before North DCJ was such as to permit an inference that the respondent was less dominant than his co-offender JC. 166 Whilst recognising that some differentiation in culpability amongst co-offenders in a joint enterprise is often appropriate, there are limits to which this can occur with respect to the objective seriousness of the offence, because of the existence of the common purpose to commit the offence. Differences in subjective circumstances will, however, result in differences, sometimes significant differences, in the end result. 167 The Crown has not established that his Honour's exercise of his discretion erred on the basis identified in Ground 3.

[59]

The First Offence 173 Grounds 4, 5, 8 and 9 relate to the first offence. Collectively they are directed to establishing the proposition that the exercise of the discretion miscarried on the basis of an inference from each, or some combination, of these grounds. 174 Although no separate ground of appeal asserts that the result was that the sentence was manifestly inadequate, that is clearly the thrust of the grounds of appeal and of the submissions made. The Crown's primary submission is that the sentence of two years for the offence was inadequate of itself. (Grounds 8 and 9.) Furthermore, it submits the sentence ought not to have been suspended, even if the sentence of two years was within the range. (Grounds 4 and 5.) 175 Grounds 8 and 9 which refer to an alleged failure to recognise the objective seriousness of the offence and the giving of too much weight to the subjective circumstances of the offender are two sides of the same coin, in the sense that one or other explain why his Honour imposed the sentence that he did. 176 The fact that it was common ground before his Honour that a standard non-parole period applied (see my discussion of Ground 1 above), is also relevant to one of the other matters about which the Crown complains in this respect. In the absence of a standard non-parole period it would have been necessary for his Honour to have regard to the guideline judgment of this Court in R v Henry (1999) 46 NSWLR 346. The fact that his Honour did not do so was, in the circumstances, not inappropriate, as the Crown conceded. First, he was not asked to do so. Secondly, that guideline has, in relevant respects, been superseded by the standard non-parole period. (C/f R v Tobar [2004] NSWCCA 391; (2004) 150 A Crim R 104 at [55].) However, as this alleged error was caused by the Crown, this Court should not intervene on the basis of his Honour's failure to have regard to the guideline judgment unless it is satisfied that the sentences, or either of them, were manifestly inadequate. 177 The facts constituting the first offence are of a considerable degree of gravity. The use of the knife with threats made, the presence of three offenders and the actual infliction of injury are such as would suggest that a sentence of two years would manifestly fail to reflect the objective gravity of the offence save in the circumstance of an exceptionally strong subjective case. The ultimate objective is the protection of the community and that would, in a case of this character and notwithstanding the youth of the respondent, require the principle of general deterrence to be given substantial weight. Nevertheless, there are circumstances in which the protection of the community is best served by exercising a degree of mercy where it appears that the prospect of a particular offender re-offending may be aggravated rather than diminished by requiring the offender to serve a custodial sentence. 178 It is clear that his Honour did give substantial and, in critical respects, determinative weight to the subjective circumstances of the respondent. However, in my opinion, his Honour was, in the particular circumstances of this case, entitled to do so. Specifically in his remarks on sentence his Honour identified the following: As a child the respondent was exposed to domestic violence and sexual abuse. He has learning difficulties and a low IQ and has been assessed in the bottom 14 percentile of the population. Since his arrest some eight months before sentence he had been on strict bail, including a curfew that kept him at home each evening, and he has not breached bail or re-offended. His physique changed since the CCTV photos taken at the time of the crimes, specifically, he has lost some 30 kilograms. 179 His Honour made the findings set out in the passage that I have set out at [12] above and applied the principles he identified in the passage set out at [14] above. 180 These findings were open to his Honour and, in my opinion, were such as to make it open to his Honour to reach the conclusion that, notwithstanding the gravity of the offence, a sentence of two years imprisonment was permissible. This sentence was, on his Honour's findings, within the range, albeit at the bottom of the range. This was a case in which the frequently quoted observations of King CJ in R v Osenkowski (1982) 30 SASR 212 at 212-213; (1982) 5 A Crim R 394 at 394 could legitimately be applied. 181 As to Ground 4 the Crown's submission is to the effect that his Honour fashioned the sentence so that it could be suspended, because the Court cannot suspend a sentence of greater than two years. However, nothing appears on the face of the reasons which could justify that criticism of his Honour. It is an inference only available if the two year sentence is itself manifestly inadequate. For the reasons set out above, that is not, in my opinion, the case. 182 With respect to his Honour's decision to suspend the sentence, the Crown submitted that his Honour erred in holding that the facts identified in the last paragraph set out at [14] above were such as to constitute "exceptional circumstances" for the purpose of suspending the sentence. This was a reference to a line of authority which states that in the case of an armed robbery a non-custodial sentence will not be imposed unless there are "exceptional circumstances". However, the approach in Osenkowsi to which I have referred, on the basis of the findings to which I have applied that approach, was such that his Honour could conclude that the circumstances were sufficiently exceptional to justify suspending the sentence. (C/f R v Govinden [1999] NSWCCA 118; (1999) 106 A Crim R 314 at [35]; Gadsden v R [2005] NSWCCA 453 at [36].) 183 In the circumstances identified by his Honour, particularly the subjective circumstances to which I have referred, his Honour's decision to suspend the sentence was not outside the range of the proper exercise of his discretion. I refer particularly to the evidence before his Honour as to the manner in which the respondent had behaved for a period of some 17 months on bail, and the level of his anxiety about the threat of incarceration. It was open to conclude that a suspended sentence would serve the purposes of personal deterrence in the circumstances of this case. 184 It was also open to his Honour to conclude, on the evidence, that the respondent's prospects of rehabilitation were good and would not be assisted by a custodial sentence. 185 As Howie J, with whom Hodgson JA and Levine J agreed, observed in R v Zamagias [2002] NSWCCA 17 at [32]: " … although the purpose of punishment is the protection of the community, that purpose can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender at the expense of deterrence, retribution and denunciation. In such a case a suspended sentence may be particularly effective and appropriate." 186 In the case of the offence presently under consideration general deterrence is of significance. (See, eg, R v Taylor [2000] NSWCCA 442 at [49].) Nevertheless, in the particular circumstances of this case that consideration did not require an actual period in custody. 187 Each of the grounds of appeal with respect to the first offence should, in my opinion, be rejected.

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The Second Offence 188 With respect to the second offence, his Honour imposed a Community Service Order of 80 hours. His Honour was obliged to impose a distinct sentence with respect to the particular offence in accordance with Pearce v The Queen (1998) 194 CLR 610. 189 For the reasons I have already discussed above, Grounds 3 and 7, insofar as each was relied upon with respect to the second offence are not made out. Grounds 6 and 9 are, as I have indicated above, mirror images of each other in the sense that his Honour's alleged failure to reflect the objective seriousness of the offence was, in large measure, determined by the weight that he gave to subjective circumstances. 190 In my opinion, the Community Service Order which his Honour made was not within the range of the permissible exercise of discretion in this case. The offence was a serious one, even on the basis of his Honour's finding that, by reason of his inability to run fast, the respondent arrived at the crime scene after some of the acts of the joint criminal enterprise had been carried into effect. This fact was not sufficient to substantially decrease the seriousness of the offending conduct in circumstances where, by reason of the commission of the first offence, the respondent was clearly aware of the probability that a knife would be used. Furthermore, he participated actively in the chase in circumstances where the victim knew that, irrespective of who was the first of the co-offenders to catch him, the others were close behind. 191 In my opinion, the sentence imposed manifestly fails to recognise the respondent's responsibility for the acts of his co-offenders done in performance of the joint criminal enterprise. I would uphold grounds 6 and 9. 192 The Court had additional evidence before it for the purpose of resentencing. Generally, this evidence updated the evidence that was before the sentencing judge. The respondent himself gave evidence of the change in his lifestyle referring particularly to the fact that he no longer associated with his co-offenders. His mother gave evidence as to the stress and anxiety manifested by the respondent, which indicates that the objective of personal deterrence is already being served. 193 The psychologist, Mr Peter Champion, who gave evidence before the sentencing judge, provided an updated report. As I have noted in the passage set out at par [12] above, his Honour referred to Mr Champion's "guarded prognosis" in the report before him. In the new report Mr Champion repeats his earlier "guarded" prognosis, but added: " … his compliance and lack of offending since being charged are I think positive signs, and give some basis for increased optimism in terms of him avoiding offending." 194 Mr Champion went on to contrast his earlier assessment with what appeared to him on this latter occasion and said: "I thought him somewhat more calm and co-operative on this occasion, more measured in his responses, whilst still at time dogmatic and oppositional. This may in part reflect a measure of maturation, but also I suspect reflects the emotional impact of the events of this year. His attempts to complete Year 10 and then find and maintain employment have been positive signs, though it would seem that his personal limitations in concert with his level of tension and preoccupation with the legal proceedings has tended to undermine his ability to see these endeavours through to a successful conclusion." 195 Furthermore, Mr Champion added: "His prognosis continues to be guarded simply because of the personal history and his limitations, though his compliance with bail conditions and the like for some 22 months, the lack of offending during that time and the fact that he was able to work for a period of time, do I think give some grounds to optimism in terms of re-offending, though I suspect that he will continue to struggle with various aspects of his personal life for some time to come." 196 The report from the New South Wales Department of Juvenile Justice which was before North DCJ was dated 7 February 2009. The Court sought an updated report if, as has come to pass, it were to allow the appeal in any respect and proceed to resentence. In general terms the new report of 28 January 2010, affirmed the thrust of the earlier report. However, the update was significant in two respects. 197 First, the new report indicated that the respondent's relationship with his immediate family had improved. Secondly, it affirmed that the respondent had severed ties with the group with which he had been associating at the time of the offences. He had cut his ties with his co-offenders and was spending more time with his family. 198 Furthermore, the new report notes: "While the offences which JW were charged with appear to have some degree of peer influence, JW accepts responsibility for his actions." 199 The Court was informed that, upon the Crown filing notice of this appeal, the Community Service Order sentence, together with the supervision by the Department of Juvenile Justice, was suspended. This occurred on 7 October 2009. The Court questioned the basis for this action. In the new report from the Department of Juvenile Justice it is acknowledged that this was an error. Accordingly, on 24 December 2009 the respondent's community service and Juvenile Justice supervision resumed. The Court was informed that up to the date of the new report on 28 January 2010, the respondent's response to the supervision had been satisfactory. He had up to that date completed 25 out of the 80 Community Service hours originally imposed. No doubt he has completed more, perhaps substantially all, of the original order. 200 There is some differentiation between the conduct of the offender in the first and second offences, even on his Honour's generous findings of fact in favour of the respondent. However, the differentiation in the respondent's culpability for the two offences is at best marginal. The injury inflicted on the victim of the first offence was more severe and there was no actual robbery on the second occasion. Accordingly, the charge was for attempt. Nevertheless, the degree of violence and aggression was of a similar order of magnitude. 201 It is, in my opinion, appropriate to impose the same sentence as was imposed for the first offence, namely imprisonment for two years which would be suspended subject to conditions. Although the first offence was somewhat more objectively serious, it is not appropriate to compare the two sentences. In my opinion, the first sentence was, as I have indicated, at the bottom of the permissible range. The new sentence for the second offence is, in my opinion, the correct sentence to be imposed at this time, in view of the additional subjective material before the Court and taking into account that he has already served at least a significant part of the sentence originally imposed. 202 The practical effect will be that the respondent will be at risk of imprisonment, if he should re-offend, for an additional seven months. Although this is, in my opinion, still a lenient result because of the seriousness of the offence, in all of the circumstances of this case it is an appropriate outcome. 203 The respondent has been under the supervision of Juvenile Justice. He has now turned 18 but the Court understands that it is not necessary for his supervision to be assumed by the Probation and Parole Service. That is fortunate as continuity is clearly important. 204 The orders I propose are:

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4 The sentence in Order 3 is suspended, pursuant to s 12 of the Crimes (Sentencing Procedure) Act upon the respondent entering into a bond for two years to be of good behaviour during the period of the bond to place himself under the supervision of the New South Wales Department of Juvenile Justice and obey any reasonable conditions imposed upon him by the Department, including conditions as to education or employment to appear before the Supreme Court of New South Wales if called upon to do so at any time to advise the Registrar of the Criminal Listing Directorate of any change of residential address 205 ALLSOP P: I agree with the reasons of the Chief Justice and with the orders proposed by his Honour. 206 McCLELLAN CJ at CL, HOWIE and JOHNSON JJ: We have received the benefit of reading the draft judgment of the Chief Justice. We agree with the orders he proposes but not with the whole of his Honour's reasons. The difference between his judgment and ours is only in the different assessments of the adequacy of the sentence imposed for the first offence. In our opinion both sentences were manifestly inadequate. There was, in our view, no basis upon the facts or the personal circumstances of the respondent that a sentence other than full-time custody could be justified. They were unjust so far as the community is concerned. In particular they failed adequately to denounce the respondent's conduct or to deter other young men from like behaviour. 207 It is important to bear in mind that the offences were committed by a group of young men on persons using the public transport system at night. There is no doubt that in the first offence the group were waiting for a likely candidate to rob as he made his way through a secluded park from the station. The group then went to another station and again selected a likely victim and chased him to his home. But even there he was not safe. Crimes of violence committed in those circumstances warranted severe punishment notwithstanding the age of members of the group or the other sentencing principles that apply to the sentencing of young offenders. Persons who are required to use public transport at night should be considered as vulnerable and protected by the sentences imposed in the courts. 208 In R v Kelly [2005] NSWCCA 280; 155 A Crim R 499, a case concerning an offence of violence committed at a railway station at night, Johnson J wrote:

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This statement has been adopted recently by this Court with respect to the protection of citizens who use public transport late in the evening, thereby placing themselves in a position of some vulnerability: R Ibrahimi [2005] NSWCCA 153 at paragraphs 22-24. 209 We agree with the final outcome of the appeal only after considerable hesitation. Of course the sentence now proposed could not have been possible at first instance. In effect it results in cumulative suspended sentences. But because the respondent can avoid serving a custodial sentence by complying with the terms of the bonds imposed both by this Court and by the sentencing judge, such a result would have been manifestly inadequate had it been imposed at first instance. However, as the Chief Justice has identified, this Court retains the discretion in relation to its response to a Crown appeal by the words in s 5D of the Criminal Appeal Act 1912. We agree with all the Chief Justice has written about the effect of s 68A of the Crimes (Appeal and Review) Act 2001. 210 In our opinion the sentence that the Chief Justice proposes can only be justified in light of the events that have occurred since the original sentences were imposed. In particular the period of 7 months that has transpired since North DCJ sentenced the respondent is a considerable period of time in the life of a juvenile who was aged 15 years at the time of the offences. In the meantime he has been carrying out his Community Service once it was brought to the attention of those responsible for its supervision that it should not have been suspended as a result of the Crown bringing an appeal to this Court. He had at the time of the writing of the most recent Juvenile Justice report, which is dated 28 January of this year, completed 25 hours of Community Service. We presume he has completed more hours since then. The latest report shows that the respondent has been complying with his supervision and attempting to address issues in his life. The report indicates that the respondent would "benefit from continuing to develop greater insight into this offence and strategies to reduce the likelihood of re-offending in the future". He should now be given that opportunity by the Court exercising its discretion and imposing a lesser sentence than was warranted at first instance. 211 It is unnecessary that we set out the facts of the offences or the subjective circumstances relating to the respondent again, as we gratefully adopt what the Chief Justice has written in that regard. Nor do we wish to address all the grounds of appeal. It is enough that we have concluded that, for whatever reason, the sentences fell outside the proper exercise of the sentencing judge's discretion. But we do believe that some of the grounds have merit. 212 The first ground refers to the fact that the Judge was misinformed about the application of a standard non-parole period. We find difficulty with the Crown relying upon such an error when it was partly responsible for the Judge's mistake. But the fact that his Honour could impose the sentences he did under a belief that a standard non-parole period of 7 years applied, indicates how far he underestimated the seriousness of the offending and the extent to which he was overborne by the subjective case of the respondent. Had the standard non-parole period applied, we would not be agreeing to the outcome proposed by the Chief Justice. 213 With respect, we agree with what the Chief Justice has written about sentencing offences committed by offenders acting under a joint criminal enterprise. But in assigning roles to the specific participants, the sentencing judge should not lose sight of the fact that they were all participants in the crime. Here both crimes were robbery with wounding. Regardless of who had the knife that was used upon the victims or regardless of whether the offender might not actually have been at the scene when the second offence occurred, he was a participant in two armed robberies. By his plea of guilty to the offences he contemplated, not only that knives would be used, but also the possibility that the victims might be wounded in those offences being carried out. There was no suggestion that his co-offenders overbore the respondent in any way or that his culpability in being a participant in such serious offences was diminished. In those circumstances the fact that the offender might not have been more culpable than one of the other participants was of limited significance. In our opinion that finding could not justify the imposition of a sentence other than one of full-time custody. 214 We do not agree that the subjective factors recounted by the Chief Justice and relied upon by the sentencing judge could justify the sentences imposed for either offence even when they are taken together with the findings of fact in relation to the commission of the offences. It has been established that for armed robbery offences it would only be in exceptional circumstances that other than a sentence of actual custody could be imposed. We do not believe that the subjective factors in this case could have led to the imposition of the sentences imposed even had the charges been armed robbery or robbery in company. But the charges here were armed robbery with wounding and they were serious examples of their kind. In our opinion it would be very rare indeed that subjective factors could result in such exceptional circumstances that a custodial sentence could be avoided for an active participant in an offence of this nature. Yet here there were two offences. 215 But the subjective factors in this case were not of the quality that could in our opinion justify either the sentence imposed or the suspension of that sentence on the first count. The fact that the respondent had learning difficulties and a low IQ seems to us to have little relevance having regard to the nature of the offences committed. His Honour even went so far as to suggest that the respondent "may not have been fully aware of the consequences of his actions". There was not, in our opinion, the slightest basis for that view. We do not understand how the respondent's limited intellect or learning difficulties would impede his understanding that he was engaged in two separate planned attacks upon a person making his way home from a train station. As we have indicated, the pleas of guilty indicated that he contemplated that, as a result of the attacks, the victims may be wounded. His Honour's statement is indicative of the over-emphasis he placed upon the respondent's subjective case. 216 The fact that the respondent had not re-offended was of little significance seeing that he was on bail. The conditions of that bail were hardly onerous considering his age. He had to report to the police three times a week, he was not to approach certain persons or associate with his co-offenders, he was under a curfew between 7.00pm and 7.00am, later changed to 9.00pm and 6.00am and he was at other times to be in the company of a parent or an adult nominated by a parent. The respondent was fortunate to be granted bail so serious were the offences and such was the likelihood that he would have to serve a custodial sentence. No doubt bail was granted on the basis that he was pleading not guilty to the offences yet, as shown by his very late pleas of guilty, he was in truth a participant in both offences. 217 We agree with what the Chief Justice has written about the Director's failure to specify grounds in the Notice of Appeal. ********* - 2 - IN THE COURT OF CRIMINAL APPEAL 2008/12871

R v JW

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