Ground of Appeal 7:
54 This ground of appeal raised the second limb of Pearce to the effect that a sentencing judge, having passed a series of sentences each properly calculated in relation to the offence for which it is imposed, and each properly made consecutive in accordance with the principles governing consecutive sentences, is required to review the aggregate sentence and to consider whether the aggregate is just and appropriate. The Crown submission is that not only were the individual sentences in respect of counts 1 and 4 inadequate, but that the end result, ie a non-parole period of 7 years with a balance of term of 4 years, offended the principle of totality in that it was patently inadequate.
55 The Crown submitted that there was insufficient cumulation and that the objective seriousness of the criminality involved was such that a substantially longer overall sentence than that awarded was required. The Crown submitted that in effect his Honour allowed the respondent's subjective case to overwhelm the objective circumstances of the offending and failed to properly take into account matters such as general and specific deterrence in the overall context of objectively very serious offences.
56 It was on this question that the respondent joined issue with the Crown. While implicitly conceding that his Honour may not have properly taken into account the objective seriousness of the offences in counts 1 and 4, and may not have given proper effect to the Form 1 matters in respect of count 1, the respondent submitted that the aggregate sentence properly reflected his criminality. He stressed that sentencing was essentially a discretionary matter and although the individual sentences in respect of some counts may have been somewhat lenient, the total effect of the sentences was well within the range of sentences available to his Honour.
57 The respondent pointed to various aspects of the offences which made it clear that he was under the influence of heroin at the time. He submitted that his early addiction was a matter which was exculpatory and that otherwise his untreated drug addiction was relevant as providing an explanation for his previous record of serious criminal offences and of these offences. In particular, the respondent submitted that the age at which he became addicted to heroin made it clear that his addiction should not be regarded as a matter of personal choice but was attributable to circumstances for which he was not primarily responsible. His ability to exercise appropriate judgment or choice at the age of 14 was patently incomplete.
58 In summary, the respondent submitted that while the sentences were lenient they were not manifestly inadequate. He submitted that taken with his previous periods of imprisonment they represented a substantial additional punishment. The respondent submitted that in accordance with the sentences passed by his Honour, upon his release at the conclusion of the non-parole period of 7 years, he would have spent 17 of the last 21 years in custody. The respondent submitted that to impose any greater sentence for these offences would impose a crushing burden upon him.
59 The respondent submitted that even if there were error in his Honour's approach to sentencing, the head sentence and non-parole periods were within the appropriate range and that this Court ought in the exercise of its discretion not intervene to re-sentence. Alternatively, the respondent submitted that if the Court were minded to intervene, it should have regard to the material in his affidavit to the effect that he had recently commenced a methadone program which may well be the first step in breaking the cycle of addiction which has blighted his life over the years. The respondent submitted that under those circumstances in the exercise of its discretion, this Court should exercise restraint by not substantially increasing the aggregate non-parole period.
60 I am satisfied that the Crown has made out this ground of appeal. Not only did his Honour's sentencing discretion miscarry in the manner previously indicated in respect of the individual sentences for counts 1 and 4, but his Honour's aggregate sentence and its structure offend the principle of totality. Even allowing for appellate restraint in Crown appeals, there is a need to re-sentence.
61 As McHugh J said in Everett and Phillips v The Queen (1994) 181 CLR 295 at 306:
"The jurisdiction to hear a Crown appeal against sentence is conferred on a Court of Criminal Appeal so that that Court can ensure that, so far as the subject matter permits, there will be uniformity of sentencing. Uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice in any jurisdiction. Sentences that are higher than usual create justifiable grievances in those who receive them. But inadequate sentences also give rise to a sense of injustice, not only in those who are the victims of the crimes in question but also in the general public. Inadequate sentences are also likely to undermine public confidence in the ability of the Courts to play their part in deterring the commission of crime. To permit the Crown, as well as convicted person, to appeal against sentences assists in maintaining confidence in the administration of justice."