28 It was submitted that this exchange indicated an acceptance by the Crown Prosecutor, of the proposition that the head sentence, which in fact was imposed, would have been an appropriate sentence for the offence for which the respondent was to be sentenced. I am by no means persuaded that it goes so far, or that the Crown Prosecutor could be taken to have accepted the arguments which had been advanced by Mr Broadhead of counsel for the respondent. The passage is somewhat obscure, at the best and, in any event, it was up to his Honour to determine what was the appropriate sentence.
29 On appeal, the Crown Prosecutor has indicated that, although the appeal is primarily conducted by reference to the question of accumulation, it also reserves the argument that the sentence as a whole was inappropriate to reflect the objective criminality involved.
30 Notwithstanding the discretion reserved for Crown appeals, I am persuaded that the sentence imposed was so lenient as to manifest a material error of law, thereby requiring this court to intervene, being a case of the kind noted in R v Alpass (1993) 72 A Crim R 561, Griffiths v The Queen (1977) 137 CLR 293 and Dinsdale v The Queen (2000) 74 ALJR 1538 where an appellate court might properly intervene.
31 Error having been demonstrated, it is appropriate for the court to re-sentence not only in relation to accumulation but also in relation to the sentence itself if it reaches the view that the sentence was inappropriate. In that regard I do not consider the Crown should be precluded from maintaining the argument that the sentence was inadequate. The principles of double jeopardy, however, means that any substituted sentence should be towards the lower end of the range of sentences appropriate for the offence.
32 I would allow the Crown appeal both by increasing the sentence, and the extent of accumulation upon the pre-existing sentence so as to reflect the totality of the criminality involved in accordance with the decisions in Pearce v The Queen (1988) 194 CLR 610, and in R v WHS NSWCCA, 6 April 1995.
33 This will also necessitate adjusting the non-parole period to one that appropriately reflects the applicant's personal circumstances, and the fact of accumulation. In doing so, the sentence which I propose will remain below that which I would have imposed at first instance, paying respect, in this regard, both to the principle of double jeopardy and the delays which have affected the sentencing of the respondent, not all of which have been of his own making.
34 I would propose that the Crown appeal be allowed, that the sentence be quashed, and that in lieu thereof the respondent be sentenced to imprisonment for five years and six months to date from 16 March 2002 and to expire on 15 September 2007, to be served partially concurrently with and partially cumulatively upon the pre-existing sentence. I would fix a non parole period of three years and three months to date from 16 March 2002 and to expire on 15 June 2005, that being the earliest date on which the respondent would be released to parole.
35 MEAGHER JA: I agree.
36 GREG JAMES J: I agree.
MITCHELL
37 WOOD CJ AT CL: The applicant was the offender who actually took possession of the drugs and the video recorder. It was his understanding that, if there was any resistance to the surrender of the drugs, then he and the co-offenders would "punch on", an expression which he explained in his ERISP as meaning that he would "bash someone". His role in the robbery was significant, so far as he lent himself wholeheartedly to Kollas' plan, in following him into the premises, and in threatening some of the residents so as to seize their drugs.
38 Judge Hosking correctly categorised the offence as a "extremely serious one" that called for specific and general deterrence. In relation to the former his Honour expressly noted that, for a young man of twenty-one, the applicant had a significant criminal history, including offences of dishonesty and, further, that he was on two forms of conditional liberty at the time of the offence. That related to the circumstances that he was on parole for break, enter and steal matters, and subject to a recognisance. Of some relevance in this regard was the circumstance that his earlier imprisonment, and later release to parole, had followed cancellation of a periodic detention order, and that a recognisance which he had entered on 12 February 1999, had also been breached leading to the imposition of a further recognisance, which was current at the time of this offence.
39 This was itself a matter which had to be reflected in the sentence for the reasons noted in R v Richards [1981] 2 NSWLR 464.
40 His Honour made reference to all of the relevant subjective circumstances, including those relating to the applicant's co-operation with police, his early plea, for which he was allowed a discount of one year upon the sentence which had otherwise been considered appropriate of six years. His Honour, additionally, made it clear that, in arriving at a starting point of six years, he had paid reference to the guideline decision in R v Henry (1999) 46 NSWLR 346, noting that the applicant fell outside the type of offender there under consideration, in so far as he had a criminal history of some significance and that this offence had involved very real violence.
41 It was first submitted that the sentence was excessive, irrespective of any question of parity, in that his Honour failed to give the applicant the benefit of the applicant's early plea, and in that regard had fallen into error in making reference to the strength of the Crown case.
42 It is not correct that an early plea will automatically lead to a reduction of twenty-five per cent. So far as such a proposition seems regularly to be advanced upon appeal to this Court, it involves a misreading of the decision in R v Thomson and Houlton (2000) 49 NSWLR 383. That case proposed a guideline range of between ten and twenty-five per cent, depending on matters such as the timing of the plea and matters of the kind discussed in R v Sharma [2002] NSWCCA 142.
43 The simple fact that his Honour referred, in the course of his reasons, to the fact that the Crown case was strong does not necessarily mean that he fell into the error noted in R v Carter [2001] NSWCCA 245. Even assuming that he had fallen into error, the discount of one year, which was equivalent to a discount in the order of seventeen per cent upon the six year sentence which his Honour had selected as a starting point, in my view, adequately reflected the plea. The sentence was well within the range for an offence of its kind where there was an early plea.
44 In relation to parity, it was submitted that, by reason of the more central role played by Kollas and the partial concurrency of the sentence imposed by his Honour Judge Coorey, the applicant was entitled to maintain a justifiable sense of grievance.
45 The parity principle of sentencing established in Lowe v The Queen (1985) 154 CLR 606 and in Postiglione v The Queen (1997) 189 CLR 295 requires, as a condition precedent to appellate intervention, that there should be a marked disparity between the sentences imposed on co-offenders of a degree of kind which gives rise to a justifiable sense of grievance. A sentence which offends that principle should be reduced. That may occur notwithstanding that it is otherwise appropriate, or within the permissible range of sentencing options (per Mason J in Lowe at 612 and per Dawson and Gaudron JJ in Postiglione at 301) and R v Anderson NSWCCA 25 March 1993 per Justice Hunt, Chief Judge at Common Law at p 4. The Court, however, still retains a discretion to intervene in those circumstances, if to do so would be to produce a sentence which was totally inappropriate to reflect the objective criminality involved.
46 In determining whether the parity principle has been observed, as the judgments of Gibbs CJ (at 610) and of Mason J (at 613) in Lowe and of Dawson and Gaudron JJ (at 301), and of Kirby J (at 338) in Postiglione show the different circumstances of co-offenders, including the part which each played in the offence, as well as their subjective circumstances such as age, background, previous criminal history, remorse, rehabilitation prospects and the like, must be considered.
47 That follows from the circumstance, as Dawson and Gaudron JJ confirmed in Postiglione (at 301) that the parity principle is "an aspect of equal justice". Equal justice requires, as their Honours pointed out, that "like should be treated alike, but that, if there are relevant differences, due allowance should be made for them."
48 The principle is enlivened only where the disparity is such as to give rise to a justifiable sense of grievance, or to the appearance of justice not having been done. As Kirby J pointed out in Postiglione (at 337):
"So long as the sentencing Judge has taken into account the relevant considerations of law and fact, the appellate court will not ordinarily intervene merely because some arguable discrepancy appears between the sentencing of otherwise apparently connected or like offenders."