e) if the Court substitutes its own sentence for an inadequate sentence below that sentence will generally be less than that which should have been imposed and in any event towards the lower end of the available range.
34 It should be noted that it was not submitted on behalf of the appellant that His Honour was in error in finding, for the purpose of fixing a non-parole period, that special circumstances existed in the case of each respondent on account of age and the need to maximise prospects of rehabilitation.
35 The only ground of appeal is that the sentences are manifestly inadequate. The major thrust of the submissions on behalf of the Director of Public Prosecutions was that the totality of the sentences does not reflect the overall seriousness of the criminal conduct on the part of any of the respondents. To support that submission, it was put that His Honour, in relation to the offence of armed robbery, had failed to apply the principles enumerated in the guideline judgment of Henry, that His Honour allowed an excessive discount for the plea of guilty and that His Honour had erroneously directed that all sentences be served concurrently. These specific matters may be dealt with in turn.
36 In relation to Henry, Judge Dodd said:
"In that guideline judgment various matters were identified as going either to the aggravation or mitigation of the offence, including the nature of the weapon; the vulnerability of the victim; the position on a scale of impulsiveness or planning; the intensity of threat or use of force; the number of offenders; the amount taken; the effect on the victims; the age of the offender; any previous record; whether there was any cooperation with authorities; a guilty plea in the absence of a strong Crown case; efforts at rehabilitation; whether the offence was committed on bail and the socio-economic condition of the accused. Various of these matters are present in these cases. I take them into account in all respects already referred to or to be referred to later in these remarks on sentence."
37 The guideline judgment in Henry is frequently cited to challenge the severity of a sentence for armed robbery longer than "four or five years for the full term" or where there are mitigating factors which are said to be absent in Henry itself and which compel a sentence shorter than four or five years. In principle there is no reason why it should not be relied upon to challenge the inadequacy of a sentence which is less than four or five years, or where there are aggravating circumstances which compel a substantially longer sentence than four or five years. However, as was said by Spigelman CJ in Henry, guidelines are "indicative only", and similar statements have been made repeatedly by this Court since.
38 It is no doubt correct that there were aspects of the armed robberies for which the respondents were sentenced that make those offences more serious than the offences disclosed in Henry. These included an element of substantive planning (although the individual contributions to the planning by each of the respective respondents is another matter), there was very substantial violence (for which separate counts were charged), a substantial amount of money and other property was taken, family members were threatened and so on. It is to the whole of the circumstances that one repeatedly returns when assessing the criminality of any of the offences. Whilst the sentences for armed robbery must be seen to be lenient, even very lenient, in the light of Henry and otherwise, the ultimate question for this Court (as it was for His Honour) was to ensure that the offenders received an adequate sentence for the overall conduct.
39 The principles laid down in Henry were all recognised by His Honour and there is no reason to conclude that they were misapplied with regard to the sentences for two discrete offences of armed robbery.
40 Turning to the submission that there was an excessive discount for the pleas of guilty, it may be noted that His Honour was careful to distinguish between the respondents who received the discount and the co-offender, Simon Huynh, who was convicted on two counts after trial and received no discount.
41 The submission that His Honour allowed an excessive discount for the pleas of guilty also relied to some extent on the discount allowed in Henry where a 10 per cent reduction was allowed for what was said to be a late plea. The discount which His Honour expressly allowed in the present case was 25 per cent for KM and 15 per cent for the other respondents for the "utilitarian value" of the plea, and it is not otherwise apparent that His Honour took the plea to indicate remorse. In proceeding in this fashion His Honour was clearly endeavouring to follow the guideline judgment in R v Thomson and Houlton [2000] 49 NSWLR 383; 115 A Crim R 104.
42 It is true that the pleas of guilty were not, on the face of it, offered at an early stage but, in the case of the respondents other than KM, it is not to be overlooked that they were tendered only in anticipation of the Director of Public Prosecution amending the charges in the indictment to which they had pleaded not guilty. Nor should it be overlooked that this development took place after KM had acknowledged his guilt two days previously at what was agreed by prosecuting counsel to be the earliest available opportunity.
43 In R v SY & Anor [2003] NSWCCA 291 Howie J (with whom Ipp J agreed) pointed out at [86] that:
"It does not always follow that a plea is entered at the first opportunity simply because the plea occurs after negotiations with the Crown once the offender has been committed for trial. Clearly there will be occasions when the nature of the bargain struck does indicate that the offender could not reasonably have been expected to plead guilty before the opportunity to plead to some less serious charge. But that is not always so and it behoves the sentencing judge to look at the situation realistically in determining the value of the plea on the utilitarian basis."
44 Further, as was held in R v Dib [2003] NSWCCA 117, even though the plea to a lesser offence may have been made at the earliest opportunity, that occasion may be long after the person is first charged with the greater offence, with reduced advantage to the administration of justice, in which case there may be justification for a smaller discount.
45 However, opinions will differ about when an "earliest opportunity" arises and the extent or quality of its utilitarian value. A judge who has sat during a trial which is brought to a premature conclusion by pleas of guilty to an amended indictment will be often in a better position to evaluate both aspects and to express that evaluation in the reduction or discount.
46 A more specific criticism levelled at the discount factor in His Honour's sentences is that it amounted to "double discount". The submission is that the guideline sentence in Henry already incorporates a discount factor for a late plea of guilty and that in so far as His Honour purported to follow Henry it was wrong to incorporate a further discount for the utilitarian value of the plea in accordance with Thomson.
47 There is some merit in this criticism to the extent that His Honour's remarks may lead to the conclusion that such was the line of reasoning followed. However, the remarks are not clear in that regard, and taken as a whole would indicate rather that the ultimate decision in relation to each discrete sentence factored in both the utilitarian value of the plea and to the extent that the circumstance allowed otherwise, the remorse demonstrated by the plea and mentioned in the pre-sentence reports. It was not as if His Honour began with a notional sentence and then reduced it to an unspecified term for the bare plea and then reduced it again by a specified proportion for the utilitarian value. To have done that may have indicated error.
48 Clearly Judge Dodd kept a close interest in the somewhat protracted and complex developments leading to the pleas of guilty and reminded himself correctly of the principles. In the circumstances his assessment of the discount for the pleas of guilty should be set aside only if it were one which was not reasonably open. It was reasonably open and his decision should not be overturned for error in the discount given for the pleas of guilty.
49 Whilst it has not been shown that there was any appellable error in the calculation of the appropriate sentence for any one of the discrete offences, there remains the question whether the sentences viewed as a whole adequately reflect the seriousness of the criminal conduct of any particular offender. As already indicated, the sentences for armed robbery viewed in isolation are in themselves lenient, a matter which immediately raises the consideration of the further question whether it was appropriate for His Honour to direct that they all be served concurrently. The result is that, subject to the outcome of the appeal, each of the respondents will serve a total sentence no longer than the sentences imposed for the single offence of maliciously inflicting grievous bodily harm on Minh with intent to cause grievous bodily harm. In my view, and leaving the particular circumstances of KM to one side, that is an excessively lenient outcome not justified on an overall view of the offences committed and the subjective circumstances of any of the offenders.
50 His Honour did not overlook the matter of overall seriousness and possible accumulating of sentences. He said:
"I must, in accordance with the High Court judgment in Pearce, fix an appropriate sentence for each offence. In my view in each of your cases, these offences, although multiple offences, were committed as part of a continuous episode of criminality that is committed in the course of one extended episode. I must therefore take care to ensure that the overall effective sentence is appropriate, having regard to the offences committed in the course of that episode, and to the extent that there are common elements in the offences I must be careful not to duplicate the sentences. In that respect I have regard to the physical harm inflicted on each of the victims". (at p19)
51 An acknowledgment of awareness of the decision in Pearce has become perhaps an inevitable feature of the remarks of a judge faced with the task of sentencing an offender for multiple offences. It has had plenty of attention in this Court, since it has been seen as inconsistent with some previous sentencing practices. The principle is considered to be embodied in the judgment of McHugh, Hayne and Callinan JJ at 623-4:
"A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality." (emphasis added)
52 In this Court the principle in Pearce has been applied and followed as "imperative and authoritative direction from the High Court to sentencing judges": R v Musso [2002] NSWCCA 487 at [31] per Sully J. In Hammoud (2000) 118 A Crim R 66, at [67] Simpson J (with whom Mason P agreed) said that as a result of Pearce the question of whether to accumulate sentences for multiple offences had taken on "a new dimension" and that previous sentencing practices which avoided the need for "elaborate exercises in the accumulation of sentences" could no longer be followed. Accordingly it is necessary to fix an appropriate sentence for each offence before considering questions of accumulation, concurrence or totality.
53 Pearce has not been followed in the same way elsewhere in Australia. The Queensland Court of Appeal in R v Nagy [2003] QCA 175 considered that the ratio of Pearce was limited to the question of double jeopardy as it arose in the facts of the case, and that the decision was not intended to overrule Griffiths v The Queen (1989) 167 CLR 372 in which Gaudron and McHugh JJ (Brennan and Dawson JJ appearing to agree at 377-388) said at 393:
"It is well established that in sentencing a person in respect of multiple offences regard must be had to the total effect of the sentence on the offender. This may be done through the imposition of consecutive sentences of reduced length with or without other sentences to be served concurrently or through the imposition of a head sentence appropriate to the total criminality with all other sentences to be served concurrently."
54 A similar approach appears to have been taken in Western Australia: see Kilner v R [1999] WASCA 189, and in Victoria: see R v El-Kotob (2002) 4 VR 546; (2002) 132 A Crim R.
55 Nevertheless, whilst it is sometimes difficult, if not artificial, to assess the criminality of an offence in isolation when it is only one of what are, in law, separate offences but inextricably part of the same conduct, the exercise must be undertaken. It may be that in undertaking that exercise, and being anxious to avoid double punishment, a judge may just overlook the need for the sentences as a whole to reflect the seriousness of the offender's conduct as a whole. In particular, whilst the totality principle is familiar enough and applied commonly enough in favour of an offender in order to avoid an excessive or crushing punishment, it is not to be disregarded for the converse purpose of assessing whether the overall effect of the sentences is sufficient having regard to the usual principles of deterrence, rehabilitation and denunciation.
56 In particular, when there is a series of offences, some committed on one victim, others committed on another victim, there is a special need to ensure that concurrency of sentence does not gloss over that feature, a point made by Hulme J in Cotter [2003] NSWCCA 273 at [69]. Allowing for the flexibility that must be accorded to the notion that the offences in the present matter were committed by the respondents "in the course of one extended episode", the very length of the episode itself, the seriousness of the variety of offences committed, with the consequent terror that must have been experienced by the victims, dictates that the total length of the sentences to be served had to exceed five years. In other words, if His Honour was of the view as his remarks suggest that the need to avoid duplicating the sentences by reason of common elements in the offences, meant that there should be no accumulation of sentence, His Honour was in error. If that was not what His Honour meant, then the overall effect of the concurrency of the sentences was simply and manifestly inadequate.
57 Subject to what appears below, what this Court ought to do in general terms is to rearrange the sentences by partial accumulation so that each respondent will be sentenced to an effective term of imprisonment which is at the bottom end of the range appropriate to his criminality in the events which occurred and to the subjective circumstances.
58 The practical effect, as far as Hoang Viet Tran and Linh Van Nguyen are concerned, is that their effective overall sentences should be increased by two years to seven years imprisonment with an effective non-parole period of four years.
59 In the case of John Nguyen, he was not directly involved in acts of violence, and he was not convicted of the offence of armed robbery of The Phong Nguyen (although he did admit his involvement on a form 1). With regard to the separate armed robbery of Minh's vehicle and registration papers, that was committed in the company of Simon Huynh, who was sentenced to three years for that offence after trial. In the circumstances, it would be appropriate that John Nguyen be sentenced to an effective term of six years and three months with a non-parole period of three years and six months.
60 In the case of KM, notwithstanding that he was dealt with even more leniently than the others, there are substantially different subjective circumstances as outlined above. Further, it happened that he became eligible for parole on the day of the hearing of the appeal. The Court was told that the Parole Board had made enquiries of the Director of Public Prosecutions whether the decision to release on parole should take into consideration that the appeal was to be heard on the day the decision was likely to be made. The Director of Public Prosecution had nothing to put to the Parole Board on that matter. The Court was further told that KM had indeed been released and that, although he was not bound to do so, attended to accept the decision of the Court on his liability to be taken back into custody. As a discretionary matter, the Court should not impose this further hardship on him or increase the length of the unserved part of his sentences. The appeal in his case should be dismissed.
61 In order to give effect to the principle in Pearce, I would propose that the re-sentencing of each of the three respondents proceed in the following way: