Sentencing
12 On 4 March 2003 the applicant pleaded guilty in the Local Court to the charge of aggravated robbery and the charge of aggravated stealing of a motor vehicle. On 28 March 2003 he pleaded guilty before the Chief Judge of the District Court to the charge of resisting arrest by use of an offensive weapon. On 16 May 2003 the applicant appeared before the District Court and adhered to these pleas of guilty. The sentencing hearing was adjourned until 4 July 2003 when the applicant was charged with the offence of armed robbery, that is to say the first offence committed on 12 October 2002, and pleaded guilty to that charge.
13 In his remarks on sentence, Judge Kinchington noted that when the applicant was arrested on 17 April 2003 for the robbery of 12 October 2002 he denied participating in the robbery. Turning to a consideration of the subjective material placed before him on the applicant's behalf, the sentencing Judge said:
"You are a single man now aged or about to turn thirty-two. You were born on 27 August 1971. You are no stranger to the criminal justice system, first having come under notice in about November 1998 when you were charged with the offence of robbery being armed with an offensive weapon and a further charge of concealing a serious offence. Initially you were dealt with by a judge of this Court but on appeal the sentence he submitted you to was increased to a sentence of three years' imprisonment in respect of the robbery charge and I think, two years' imprisonment in respect of the other charge and it was directed that these sentences be served by way of periodic detention.
You also have a conviction for possessing a prohibited drug and two driving offences. At the time you committed the first of these offences in October 2002 you were still serving the three year periodic detention sentence in respect of the previous robbery charge.
You are the second youngest of seven children, all of whom got on well together. However, it would seem that although a good provider your father was prone to be violent both towards you and your brothers and sisters and also you mother, until in your mid teens you confronted your father and his conduct in that regard stopped.
You had a reasonable education and completed your Higher School Certificate. During your school days you worked in the family business and after leaving school it would seem you first of all gained employment as a labourer for about twelve months before obtaining a licence to work as a security officer where you stayed for approximately six years before leaving as you found that job too stressful.
You had begun experimenting with cannabis in your mid teens. Thereafter you experimented with other drugs and ultimately tried heroin and by the time you committed your offences in October 2002 you were well addicted to that illicit drug. You had commenced using heroin when aged eighteen and by the time you were twenty-five you were a habitual user thereof. As I have said earlier you had been a poly-drug user for many years up to the time of your arrest in both October and subsequently in January this year. Over the years you have made a number of attempts to get off your dependency on drugs and you entered rehabilitation programmes. One you stayed in for eight months, I think the others only a matter of days. You were unsuccessful in combating your drug problems. In the course of your evidence you have indicated you wish to get off drugs and that you have made a resolution to do so. both while in gaol and following your release from gaol. You have the support, you say, of your brothers and sisters and you certainly you have the support of your mother because she has been in court every day during the sentencing proceedings and your father is also here today, so you obviously have the support of both of them and I have no doubt you have the support of your brothers and sisters. They will help you maintain your resolve, I anticipate, to change your life around.
You have shown in your past endeavours, first of all as a security officer, and secondly, while you were serving your periodic detention sentence, that you can do something for yourself because in 2002 you had been working as a security officer for a large insurance company. Unfortunately for you, you had to give that job up for a combination of reasons, one of which was stress; another was because you had broken up with your girlfriend whom you had been associated with for some time through her ill-health and her family's opposition to you and this put you under a further stress. As a result it would seem you returned to the use of illicit drugs and ultimately became a heroin user again. It would seem you have been making some progress towards your own rehabilitation and may have been successful if you had been able to hold down that job for a longer period and if your girlfriend had not become ill, so it would seem you do have the capacity to do something towards your own rehabilitation if you can maintain your will to achieve that objective.
You have told me in the course of your evidence that each of these offences, that is, the offences in October and the three offences in January this year, were all as a result of impulsive conduct on your part. To some extent I find that hard to believe because in regard to the first offence you had a plastic bag in your possession and you had a knife in your possession which, according to you, was not a real knife, but an imitation knife that you carried to protect yourself if the need arose. That need apparently had arisen because you were getting into trouble with loan sharks from whom you had borrowed money to support your drug habit. I am unable to say whether the explanation you have given for the possession of that knife, or whether the knife was not a real knife, is true or not.
As I have indicated, your actions in committing all of these criminal offences do not look to me to be impulsive, and although to some extent the events of 18 January 2003 do have the hallmarks of being somewhat impulsive, I do not think your first offence was an impulsive one. I think it might have been brought about by desperation by you needing money at that time. In any event, you have pleaded guilty to each of those four charges, although I hasten to add it would seem you had little alternative because in each case the Crown had a strong case against you. However, I accept your pleas of guilty as some sign of your remorse and contrition for your criminal conduct on those four occasions and I propose to discount the sentence I must subject you to, in this case by twenty per cent, not only because of your guilty pleas herein but because of the utilitarian value of those pleas.
In arriving at that discount I acknowledge that you have been in custody since 18 January this year and that during that time you seemed to have taken on your own initiative steps towards your own rehabilitation. You have told me you now want to put your dependence on illicit drugs behind you once and for all and to do everything you can to lead a law-abiding life following your release from prison.
I also note from what you have told me that the material that has been placed before me that life in gaol has not been good to you. You are presently in protective custody as a result of an incident that occurred following your arrest for the robbery charge in respect of which you were sentenced to periodic detention. You were apparently assaulted by a number of inmates and you presently have an action against the Department of Corrective Services seeking compensation for the injuries you sustained in that assault. That action is presently pending in this court. Anyone who has to serve a sentence in protective custody certainly does it harder than those who are in the general prison population and I will take this factor into consideration because it is clear from what you have said you will remain in protective custody for some years to come, if not for the whole of the period you will be in prison."
14 The sentencing Judge turned to consider the sentences to be imposed and said:
"You have committed in all four serious criminal offences on two separate occasions. In those circumstances, the concepts of totality of sentencing, specific and general deterrence and the question of whether I should direct that the sentences I propose to subject you to should be served concurrently or partially cumulatively or totally cumulatively, have to be considered. As I have said, all of these offences were serious criminal offences. In the first you used a knife, or what your victim thought to be a knife, and was put in great fear. When you took the car from Mrs Perez you produced a syringe which must have caused her a great deal of fear and trepidation. When you robbed Ms Lahoud of the $20 in the cash bag a struggle ensued and she lost some artificial fingernails that were attached to her fingernails. No doubt a degree of violence was imposed upon her by you in getting that cash bag off her, and finally in regard to the struggle you had with Mr Hassan, you again produced a syringe. He was very quick minded. The production of the syringe did not deter him from taking action to subdue you until security people arrived.
In addition, the first offence was in no way connected to the last three offences and one of the last three offences was in no way connected to the other two offences, so you have caused me a great deal of concern as to what I should do with you from the point of view of concurrent sentences, cumulative sentences and the total period that I should ensure you remain in gaol.
In addition, all of these offences were committed in he circumstances of aggravation which, as I previously indicated, would have caused a great deal of fear and apprehension to each of your victims. In addition, you were serving a sentence of periodic detention at the time you committed the first robbery. That sentence, I am told, has been revoked and you are now subject to serving the balance of it in a full time manner. In all of these circumstances it seems to me that the objective criminality displayed by you in each case, even bearing in mind the explanations you have given to me, results in me coming to the conclusion that the criminality was between the mid to high range of criminality in regard to these offences. I cannot overlook the fact that the periodic detention sentence was imposed in regard to a robbery charge offence which had been committed a short time before these offences were committed, that is, in 1998 or thereabouts.
Your criminal actions are becoming far too common in this State. The community has an abhorrence to those persons who commit criminal actions using syringes, particularly in this day and age, and the possible consequences of someone receiving a needlestick injury.
Bearing in mind the provisions of s21A of the Crimes (Sentencing Procedure) Act [which lists under the headings General, Aggravating factors and Mitigating factors the matters to be taken into account in determining the appropriate sentence for an offence] and bearing in mind the subjective material to which I have been referred, it seems to me I must impose an overall salutary sentence on the offender. In saying that I do not mean that I have started in fixing an overall term; I have not. What I have done, in accordance with the law, is fix sentences which I think are appropriate in regard to each of the criminal offences committed by the offender. I have regard of what the Court of Criminal Appeal said in Regina v Tozer (2003) NSWCCA 72 and as a result I have fixed on sentences which will be served partially concurrently and partially cumulatively on each other."
15 His Honour stated the sentences and continued:
"I have fixed all of those sentences to be served by way of a fixed term because they will, in effect, run concurrently and be subsumed by the sentence of ten years for the robbery charge. I have done so bearing in mind the concepts of totality, the fact that the offender will be required to serve those sentences while in protective custody and after allowing for that fact, together with a discount on sentence of some twenty-five per cent for his pleas of guilty herein and for the other reasons I have previously indicated. I have fixed a non-parole period because it seems to me an appropriate one in the circumstances for these offences and particularly because the offender will need professional help and guidance following his release from custody if he is to have a real chance of becoming a law-abiding citizen.
Finally, I note the effect of these sentences will mean the offender will be incarcerated in prison for a period just in excess of ten and a half years before he will be eligible for release on parole. He will obviously have to earn his parole and that will depend upon the way he behaves while in gaol."
16 The principal grounds upon which the applicant seeks leave to appeal are, as numbered in the notice of appeal, that (2) the sentence imposed on the aggravated robbery of 18 January 2003 and (3) the total sentence imposed were manifestly excessive.
17 In Pearce v The Queen (1998) 194 CLR 610 at 624 the High Court emphasised that 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. In the present case, it is striking that for the first offence of robbery armed with a knife the sentence imposed was for a fixed term of four years whereas for the third offence of robbery using corporal violence, described by his Honour as a struggle for a few seconds which caused some minor injuries to Ms Lahoud, the applicant was sentenced to ten years imprisonment with a non-parole period of six and a half years. The difference is not explained in the remarks on sentence. Judge Kinchington said, rightly, that all four charges were for serious criminal offences. In the first the applicant used a knife and the victim was put in great fear. Of the third, his Honour referred to the robbery of $20, the struggle and a degree of violence to Ms Lahoud. Looked at alone the two sentences were cumulative and together resulted in an effective sentence of fourteen years and a non-parole period of ten and a half years.
18 In careful written submissions, Mr Hamill of counsel for the applicant referred to the guideline judgment R v Henry (1999) 46 NSWLR 346 at 380. In a case of an offence of armed robbery characterised by a young offender with no or little criminal history, a weapon like a knife capable of killing or inflicting serious injury, a limited degree of planning, limited, if any, actual violence but a real threat thereof, a victim in a vulnerable position such as a shopkeeper, a small amount taken, and a plea of guilty, the significance of which was limited by a strong case, the sentence imposed should fall within the range of four to five years imprisonment for the full term. Of course, in the present case, the applicant was not a young offender and had a criminal history including a previous conviction for the offence of robbery while armed with an offensive weapon. Mr Hamill referred to several comparable cases decided since Henry.
19 The Crown correctly made the point articulated by Hunt CJ at CL in R v Morgan (1993) 70 A Crim R 368 at 371 that it is wrong to compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) simply because the two offenders may have similar characteristics and may have committed similar crimes. As Hunt CJ at CL stated:
"What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range."
20 The maximum penalty for the offence charged in the third count is twenty years and within the meaning of s95 a robbery in circumstances of aggravation means the circumstances, immediately before or at the time of or immediately after the robbery, involved the alleged offender using corporal violence on any person however minor the injuries inflicted may be. I am persuaded however, that a sentence of ten years imprisonment for this offence was, giving full weight to the objective and subjective considerations I have quoted from the remarks on sentence, outside the range of a proper exercise of the sentencing discretion. In my opinion, the sentence for the third count must be quashed. It follows due to the way the overall sentence was structured that, at least to this extent, the total sentence was manifestly excessive.
21 In coming to that conclusion, I have accepted the objective and subjective findings made by the sentencing Judge. Mr Hamill did not challenge these findings. However, further material has been put before the Court, without objection, to be considered on re-sentencing.
22 The applicant's first ground of appeal is to suggest that the sentencing Judge failed to give effect to a remark which I have quoted, namely that he had fixed all the sentences to be served by fixed term because they would in effect run concurrently and be subsumed by the sentence of ten years for the robbery charge. While perhaps not clearly expressed, I am satisfied that his Honour did what earlier he had said he intended to do, namely, fix sentences he considered appropriate in regard to each of the criminal offences committed, to be served partially concurrently and partially cumulatively on each other.
23 The third ground of appeal which necessarily succeeds, leaves it open to this Court to consider in re-sentencing each sentence to determine whether it should be reduced. Except for one matter to which I will return, nothing need be said further about the fourth and fifth grounds that the sentencing Judge erred in failing to give any adequate weight to the subjective and mitigating circumstances including the pleas of guilty and that his Honour erred in his approach to the questions of totality and accumulation by failing to apply the High Court's decision in Pearce v The Queen.
24 In working out the degree of partial cumulation, his Honour broke the offences into three groups; the first being the charge for the October 2002 offence, the second being the charge of car jacking on 18 January 2003 and the third being the charges for the other offences committed on 18 January 2003. For those last two charges the sentences were cumulative. The sentence on the second charge was cumulative partly on the sentence for the first charge and partly on the sentences for the third and fourth charges.