R v McHarg

Court of Criminal Appeal (NSW)|2011-02-23|Before: Whealy JA, Hidden J, Johnson J, Mr CJ

File Number(s): 2009/61484; 2009/137073; 2009/238256 Publication restriction: --- Decision under appeal Citation: --- Date of Decision: 2010-09-24 00:00:00 Before: Robison DCJ File Number(s): 2009/61484

5In passing sentence for the fourth offence (robbery in company), the sentencing Judge took into account on a Form 1 a further offence of robbery in company. 6The total effective sentence of imprisonment for all offences comprised a non-parole period of three years and 11 months commencing 27 April 2009 and expiring 26 March 2013, with a balance of term of three years commencing on 27 March 2013 and expiring on 26 March 2016.

Grounds of Appeal 7A Notice of Appeal was filed by the Crown on 27 October 2010 upon the ground that the sentences were manifestly inadequate. In accordance with usual practice ( R v JW [2010] NSWCCA 49; 199 A Crim R 486 at 496-497 [33]-[38]), the Crown filed a document on 28 January 2011 giving notice of additional grounds of appeal. The Crown relies upon the following grounds of appeal: (a) Ground 1 - his Honour erred in failing to give proper consideration to the standard non-parole period as a guidepost in relation to the offence of reckless wounding in company. (b) Ground 2 - the resulting non-parole period and total sentence imposed on the reckless wounding in company offence is manifestly inadequate. (c) Ground 3 - his Honour erred in imposing an aggregate sentence that failed to properly reflect the objective seriousness of the total criminality. (d) Ground 4 - his Honour's failure to adequately accumulate the sentences produced an aggregate sentence that is manifestly inadequate.

Facts of Offences 8An Agreed Statement of Facts was tendered in the District Court, revealing the following facts. The offences will be referred to in chronological order. They were committed over a 10-month period between 6 December 2008 and 25 October 2009. The Form 1 Offence - 6 December 2008 9About 11.00 pm on Saturday, 6 December 2008, the victim, Gregory Mitchell, attended the Leumeah Railway Station after completing work for the day. The victim entered the platform from the western side of the Railway Station. 10At the time, a co-offender, Corey Mogford, appeared to be using the public phone on the platform. As the victim walked past Mogford, the victim and Mogford said "Hi" to each other. The victim continued to walk along the platform towards a drink-vending machine. As he walked along the platform, a further co-offender, Benjamin Jeffreys, and the Respondent, who had been sitting together on a seat, got to their feet as the victim walked past them. 11The victim purchased a drink from the vending machine. A few moments later, the victim heard someone say ''Hand over your stuff" . The victim looked behind him and saw both co-offenders approaching him. Mogford stopped about five metres from the victim. Jeffreys approached the victim and said "Hand over your stuff, I'm not kidding" . Jeffreys lifted up his jumper and exposed a black-handled knife with a 15-centimetre blade wedged in his pants. Mogford then said "Don't worry mate, all three of us have knives" . 12Jeffreys then ordered the victim to empty his pockets. The victim handed to Jeffreys his Sony mobile phone, a black leather wallet and his backpack. Whilst this was occurring, the Respondent was a short distance away at the entrance to the platform, keeping watch and ready to assist his co-offenders if required. 13After the victim handed his property to Jeffreys, Mogford jumped on the tracks and crossed to the eastern platform of the Railway Station. Jeffreys did the same a few seconds later, followed immediately by the Respondent. 14The victim contacted police and provided a statement in relation to the incident. 15The whole incident was captured on CCTV footage which clearly depicted the Respondent and his co-offenders. Events Leading Up to the First and Second Offences - 26-27 January 2009 16The Respondent became criminally involved in a serious incident which commenced with offences committed by others upon a pizza delivery man. Although the Respondent did not arrive on the scene until later (see [27] below), to place his offences in context, it is appropriate to describe events which preceded his criminal involvement. 17At 10.51 pm on Monday, 26 January 2009, a telephone order was placed with the Pizza Hut hotline for pizzas, garlic bread and drinks to be delivered to an address in Mount Pritchard. The name "Sonny" was provided and a mobile number [x]. At 10.52 pm, [x] was contacted to confirm the order. 18The Liverpool Pizza Hut store processed the order. The victim, Paritosh Upadhyay, was working as the delivery driver at the Liverpool store that night. He drove his personal vehicle, a Hyundai Excel Sprint hatchback, to the Mount Pritchard address arriving at about 11.15 pm. The victim was wearing a red Pizza Hut cap and a red Pizza Hut collared polo shirt, bearing the nametag "Pat" . 19The victim exited his vehicle with the food in a black Pizza Hut hot bag, and was carrying a black Pizza Hut bum bag. As he approached the Mount Pritchard premises he heard someone yell out, "Oi" . The victim turned around and saw three males. One of the males said, "It's my pizza" . The victim walked towards the three males and placed the hot bag on the bonnet of his car. At the same time, Kyal Sukkar, produced a black handgun and pointed it at the victim's face. 20Sukkar said "Give me your car key, pizza and all the cash you have" . Frightened that he would be hurt, the victim handed over his car keys and $35.00 from his bum bag. Sukkar handed the car keys to one of his co-offenders who opened the car's doors, and said "Get in the back of the car" . The second male, who was wearing gloves, entered the front passenger seat. Sukkar got into the backseat with the victim, while the third male sat in the driver's seat. When the offenders spoke to one another, they referred to each other as Nos. 1, 2 or 3. 21Sukkar told the victim to remove his glasses and said "Don't look at me or try to observe me, otherwise you can describe me to the cops" . Sukkar punched the victim once in the face to his left cheekbone causing immediate pain. He pushed the victim's face away, so that the victim would not look at him. 22The third male started the car and drove away. Sukkar made the victim pull his shirt over his face. He told the victim to remove his bum bag from around his waist and then took it from the victim. He searched the victim's pants, locating the victim's wallet. He told the victim to open his wallet. He complied, showing Sukkar that he had no cash. Sukkar told the victim to hand over his key cards. The victim handed Sukkar two key cards in his name (an ANZ card and a Commonwealth Bank Bankcard) as well as a Commonwealth Bank MasterCard in his wife's name. Sukkar grabbed the victim's wallet and went through it, removing two driver's licences, and a Parramatta RSL membership card. He also removed the victim's shirt and handed his cap to the third male who was driving. 23On patting down the victim's pants, Sukkar located the victim's mobile phone and house keys and said "Give them to me" . The victim gave them to Sukkar because he was fearful that he would hurt him. About 10 minutes later, the third male stopped the car and directed the victim to drive. The victim was not allowed out of the vehicle and was forced to squeeze through the space between the two front seats into the driver's seat. While the victim was driving, Sukkar said "We are on Hoxton Park Road. Where's the nearest ATM?" The victim said "George St, or Macquarie St, Liverpool" . He was first directed to an Aldi supermarket which was closed and then given other directions. The third male said "We can go to any petrol station" , but Sukkar said "No, there's cameras there" . 24The victim was given more directions, and about 10 minutes later, the vehicle arrived at Casula Mall and he was told to park a short distance from the Commonwealth Bank ATM. Sukkar handed the second male the victim's key cards. The second male told the victim to get out of the car and followed him to the ATM, saying "Don't try to run or escape" . The second male handed each of the key cards to the victim and made him print a balance receipt for each. He then directed the victim to withdraw $200.00 from one account, and either $160.00 or $180.00 from the other account. The victim told the second male that his wife's MasterCard was linked to one of the accounts and the money had already been withdrawn. 25They walked back to the car where the victim re-entered the driver's seat and was directed towards the Hume Highway and onto the M5, before being told to do a u-turn. The victim did not know where he was, but heard the offenders saying something about Minto. He heard one of the offenders speaking on the telephone stating their location. About 20 minutes later he was directed to a house and told to stop. The second and third males went into the house. The Respondent's First and Second Offences 26About five to 10 minutes later, the victim heard people approaching the car and turned to look in that direction. Sukkar then punched the victim to the side of the face causing him pain. 27It was at this point that the Respondent arrived on the scene. It may be inferred that he was notified of the location by telephone and decided to join his friends. 28The Respondent entered the vehicle. The victim heard a different voice in the backseat. The victim was again directed to drive and, about 25 minutes later, was told to stop at a location that he did not recognise but knew to be in Mount Pritchard. 29The victim was directed to walk towards a reserve while the males followed him. He heard the males discussing breaking the victim's legs and hands, and heard Sukkar say "Don't kill him" . A short time later, they arrived at a sports field where the males began assaulting the victim. The victim was punched to the back of the head with such force that it caused him to fall to the ground. He was picked up and punched in the nose, causing him to fall to the ground again. The victim put his arms up to his face to protect his head and pretended to be unconscious. 30One of the males stabbed the victim in the back. More than one of the males kicked him. He heard one of the males ask "Are you alive?" The victim was rolled over, and one of the males stuck a small pruning knife into the victim's left arm. Despite being in considerable pain, the victim remained silent as he was scared. He opened his eyes for a brief moment and saw one of the males holding a broken glass bottle. At some point, the offenders removed the victim's shoes and socks and threw them into a nearby bush. One of the males said "Where's the key?" The key was then grabbed from the victim's right hand. The males then left. 31After waiting for five minutes, the victim ran to a nearby house in Florence Street, Mount Pritchard and was helped by a resident who contacted police, who arrived at about 3.00 am. The victim had been detained for a period of about three-and-a-half hours. 32As a result of the assaults, the victim sustained bruising and swelling to his face, small abrasions to his left arm, and several small lacerations to his back where he was stabbed with the bottle. 33The Respondent was questioned by police on 4 February 2009. The Respondent said that on Australia Day evening "I was pissed. I don't remember. I think I was here, yeah I was here all night". 34When police left his house, the Respondent told a neighbour "They rang me while I was at my sister's place [at Eagle Vale] and told me they kidnapped a Pizza Hut guy and asked if I wanted to get picked up. I said, 'yeah'" . The Respondent told the neighbour that the victim was being "smart" as they drove towards Mt Pritchard. The Respondent said that the victim "kept putting on his blinkers and wouldn't turn them off, so we would punch him in the face" . The Respondent said that, when they got back to the Mt Pritchard area, "we took him to a park and bashed him. I knocked him out. He was out for about two seconds. We stabbed him three times with a broken beer bottle; once in the leg and twice in the back". The Third Offence - 8 February 2009 35About 12.45 am on Sunday, 8 February 2009, the victim, Andrew Donno, was at Bondi Beach with his girlfriend and two other persons, when he received a telephone call from Michael Boyden. Boyden was with the Respondent at Liverpool Railway Station and he said that they wanted to meet up with the victim for a drink. 36The victim, in company with his girlfriend and other persons, commenced to travel to Liverpool Railway Station. During that time, the victim received a telephone call from the Respondent. The Respondent was informed that they were only 15 minutes away. 37At about 1.30 am, the victim and others arrived at Liverpool Railway Station in a green Audi. They met up with the Respondent and Boyden who were in the company of four other persons. The group discussed having a drink and Boyden invited them all back to his house at Lurnea. The group entered two taxis and the green Audi, and then travelled to Boyden's premises. 38There the group consumed alcohol before they decided to obtain some cannabis. The Respondent, Boyden, the victim and others walked around the Lurnea area for the purpose of purchasing cannabis. Cannabis was obtained near Brain Ave, Lurnea, and the group went to a nearby park where the cannabis was smoked using a porcelain bong. 39During this time, some of the group had left. The Respondent, Boyden and the victim, along with three or four other people, then walked to Amalfi Park in Riley Street, Lurnea. The group walked to the centre of the park where the victim was confronted by the Respondent, Boyden and an unknown male. The Respondent questioned the victim about being a "snitch" . At that point, the victim was punched to the head by the unknown male. The Respondent and Boyden commenced to punch and kick the victim to the head and body. 40The victim was knocked to the ground a couple of times but regained his feet. During the assault, the Respondent stabbed the victim three times - once in the back around the left shoulder and twice in the upper thigh. 41All persons then ran from the area. Boyden returned to his premises. 42In his evidence at the sentencing hearing, the Respondent agreed that the offence with respect to the victim, Andrew Donno, had occurred because the Respondent believed that he had "snitched" on him in relation to the "detaining of the Indian man" some few days before (the first offence), and the Respondent volunteered that they were "fighting over a girl as well" (T20, 24 September 2010). 43The victim staggered through Amalfi Park for approximately 20 to 30 metres, before collapsing near a fence. Police and ambulance officers arrived. The victim told police that "Micko" and "Nathan" had attacked him. He was conveyed to Liverpool Hospital for treatment. The victim was found to have three puncture wounds - two to the right thigh and one to the left shoulder. 44During this time, the Respondent attended Boyden's address and admitted to stabbing the victim. Boyden told the Respondent to "fuck off" . The Respondent then left the area. 45Police attended Liverpool Hospital, where they spoke briefly to the victim who, at the time, could not give a version due to medication he had been administered. 46At about 9.15 am that morning, police travelled along Bigge Street, Liverpool and observed the Respondent entering Liverpool Railway Station. Police called out to the Respondent who walked quickly away. Police followed the Respondent to the concourse area, losing sight of him momentarily. 47The Respondent was arrested and cautioned. He was taken to Liverpool Police Station where he was taken into custody. 48At about 3.30 pm that afternoon, the victim was released from Liverpool Hospital and he gave a brief version of events to police. 49On 18 February 2009, the Respondent was charged with the third offence. He was refused bail by police. On 19 February 2009, the Respondent was granted conditional bail at the Liverpool Local Court and was released that day. The Fourth Offence - 25 October 2009 50The Respondent was arrested on 17 June 2009 and charged with the first and second offences. He was refused bail by the police. Later that day, he was granted conditional bail at the Liverpool Local Court. The Respondent was unable to meet those conditions, and he remained in custody until 23 September 2009 when the bail conditions were varied and he was released. 51At about 12.55 am on 25 October 2009, the victim, Mahbubur Ruman, boarded a train at Circular Quay bound for Warwick Farm. He sat in the downstairs section of the carriage attached to the guard's compartment. There were others passengers in the carriage at the time of boarding. As the train pulled into Cabramatta Station, the victim observed that all other passengers in the downstairs section had left the train. 52At about 1.50 am, the train pulled into Warwick Farm Railway Station. The victim walked to the doors situated closest to the guard's door to exit the train. He observed about seven males at the end of the carriage who were watching him. The victim felt nervous. 53The victim left the train and began to walk towards the station exit. CCTV footage showed the Respondent, and his co-offender, David Boyden, along with five other persons leave the train, and follow the victim. On leaving the train, the Respondent and his co-offenders attempted to conceal their faces with clothing and hats. 54At the bottom of the exit ramp, the Respondent and two co-offenders pushed the victim to the ground. The victim's forehead hit the ground, causing him pain. The group surrounded the victim. One of the group yelled "Get everything from him" . One of the offenders yelled, "Where's your fucken mobile or you'll be in trouble?" In fear of being attacked further, the victim told the group to take everything and pleaded with them not to hurt him. 55The victim was forced to lay facedown while the Respondent, Boyden, and another male offender forcibly removed his backpack. Inside the backpack was a wallet, containing several bank and identification cards, $500.00 in cash, as well as a black Motorola mobile phone, some books, house keys and car keys. 56One of the offenders yelled, "Where is your car?" The victim indicated towards the Liverpool side of the station. The victim's car was in fact parked on the other side of the station. The victim got to his feet and ran across the road to some townhouses, where he raised a resident who called police, who arrived a short time later. 57CCTV footage showed all the offenders run from Warwick Farm Railway Station towards the Hume Highway railway overpass, and then towards Forbes Street, Warwick Farm. The footage depicted one of the unknown males enter the carpark and try to open one of the vehicle's doors with a key. He then walked off. 58Police circulated the CCTV footage to all members of the NSW Police Force. 59At about 7.40 pm on Tuesday 27 October 2009, the Respondent attended Liverpool Police Station to report on bail. He was placed under arrest, cautioned and taken to the charge room where he was introduced to the Custody Manager. His rights under Part 9 Law Enforcement (Powers and Responsibilities) Act 2002 were explained to him. Police seized his clothing. 60The Respondent agreed to participate in an electronically recorded interview, during which he made full admissions of his involvement in this incident. He identified himself, David Boyden and Brooke Crawley on the CCTV footage. The Respondent told police that he had been drinking in the city with Boyden and Crawley and was drunk. The Respondent said that he had only met the other four offenders on the train. 61The Respondent told police that he did not originally want to participate in the robbery, but only did so because he thought that the unknown offenders would turn on him. He said that he attempted to cover his face so that the victim would not be able to identify him. 62The Respondent told police that during the robbery, he took a train ticket from the victim's pocket and did not receive any other proceeds from the robbery. The Respondent said that during the commission of the offence, all he had said to the victim was "Don't look at me" . He recalled hearing someone yell "Get everything from him" , and agreed that the victim would have been scared. The Respondent said "I know it was the wrong thing to do, but he didn't get hurt anyway. I know that sounds bad, but" . 63On 27 October 2009, the Respondent was charged with the offence of robbery in company (the fourth offence). Bail was refused. 64On 12 April 2010, whilst in custody on remand, the Respondent was arrested and charged with the Form 1 offence of robbery in company committed on 6 December 2008. 65The Respondent has been in continuous custody since 27 October 2009.

The Respondent's Subjective Circumstances 66The Respondent was born in April 1990. He was between 18 and 19 years' old at the time of his offences, and was 20 years' old at the time of sentence. 67The Respondent's criminal history commenced in 2005. It contains offences of shoplifting, damaging property, driving offences, goods in custody, being in custody of a knife in a public place (two offences) and driving a conveyance without consent of the owner. 68The Respondent was placed on probation or bonds with Juvenile Justice supervision by the Children's Court in July 2005, November 2006, February 2008 and April 2008. The November 2006 bond required the Respondent to attend drug and alcohol programs as directed. 69The Respondent appeared before the Liverpool Local Court on 27 November 2008 with respect to charges of being carried in a conveyance taken without consent of the owner, shoplifting and damaging property. On each charge, he was placed on a bond under s.10 Crimes (Sentencing Procedure) Act 1999 , conditional upon accepting the guidance of a psychiatrist, psychologist or counsellor, taking medication as prescribed and attending for counselling, rehabilitation or educational development in accordance with medical advice. 70The Respondent's mother gave evidence that she was aware that he was subject to a good behaviour bond, but did not know about the conditions attached to the bond granted on 27 November 2008 (T13, 24 September 2010). 71All the Respondent's offences which are the subject of this Crown appeal were committed whilst he was subject to the 27 November 2008 bonds. The Form 1 offence and the first, second and third offences were also committed whilst the Respondent was subject to bonds imposed in the Children's Court on 11 February 2008 and 7 April 2008. 72In between the Form 1 offence (6 December 2008) and the first and second offences (26-27 January 2009), the Respondent appeared in the Children's Court on 19 December 2008 on call-up for sentence for an offence of driving a conveyance without the consent of the owner. He was ordered to perform 50 hours community service. 73Between the first and second offences (26-27 January 2009) and the third offence (8 February 2009), the Respondent appeared at the Liverpool Local Court on 2 February 2009 and was fined $300.00 for an offence of being in custody of a knife in a public place. 74Between the third offence (8 February 2009) and the fourth offence (25 October 2009) the Respondent: (a) appeared at the Campbelltown Children's Court on 6 April 2009 on a call-up with respect to drive conveyance taken without consent of the owner and fail to appear - he was sentenced, respectively, to a control order for four months commencing on 11 March 2009 and a 14 day control order; (b) appealed against the sentences of 6 April 2009 to the Campbelltown District Court which, on 14 May 2009, varied the control order on the drive conveyance charge to one of two months and five days commencing on 11 March 2009 and expiring on 15 May 2009. 75In addition, the fourth offence (robbery in company committed on 25 October 2009) was committed whilst the Respondent was on bail granted on 19 February 2009 (for the third offence) and 23 September 2009 (for the first and second offences). 76Not only was it the case that the Respondent's offences were all committed whilst he was subject to conditional liberty in the form of bonds or bail, or both, but he appeared from time to time before different courts for sentencing or appeal hearings between 27 November 2008 and 14 May 2009. It may readily be inferred that the court appearances and orders which imposed conditional liberty did not operate so as to put a brake on the Respondent's pattern of serious violent offending. 77There was no presentence report from the Probation and Parole Service before the sentencing Court. 78Both the Respondent and his mother gave evidence at the sentencing hearing in the District Court. In addition, a report of Mr Watson-Munro, psychologist dated 19 August 2010 was tendered by the defence. The Respondent had been found in possession of drugs by correctional officers and gave evidence that he found the drugs in the court holding cells and picked them up thinking that they were cigarettes. The sentencing Judge rejected this evidence (ROS, page 12). His Honour observed (ROS, page 12): "He [the Respondent] resents authority. He does not like to be told what to do by those who have the responsibility for his custody, care and control." 79His Honour noted that Mr Watson-Munro had not been provided with the documents relating to the Respondent's behaviour in custody, and observed that he could only speculate as to Mr Watson-Munro's response if he had been made aware of it. 80His Honour accepted that the Respondent had a background of turmoil in his life as a young child. The Respondent had an appalling upbringing and a disjointed family and a history of alcohol and drug use (ROS, page 13). The sentencing Judge accepted that the Respondent had a psychological problem and needed help (ROS, pages 14-15). His Honour accepted the Respondent's evidence that he felt sorry for what he had done and considered that the psychological report indicated an element of remorse and contrition and that the Respondent was remorseful (ROS, page 12). 81The sentencing Judge had regard to the Respondent's youth and said "if there are any prospects of rehabilitation they should be carefully considered and encouraged if those prospects exist" (ROS, page 14). 82His Honour noted that, although the Respondent had not been formally diagnosed with ADHD, he believed that he suffered from it and that the psychological report of Mr Watson-Munro indicated that, to an extent, it explained his criminal behaviour (ROS, page 13). 83The Respondent's mother gave evidence that he would be offered an apprenticeship by his father on his release from custody (ROS, page 14). 84The sentencing Judge found special circumstances on the basis of the Respondent's drug problems, his age, his psychological problems and "matters of that kind" (ROS, page 16).

Some Findings in the Remarks on Sentence 85The sentencing Judge commenced his remarks on sentence with a recital of the maximum penalties for the various offences and the standard non-parole period applicable to the third offence (ROS, pages 1-2). 86With respect to the first, second and third offences, his Honour allowed a 15% discount for the Respondent's pleas of guilty. A discount of 25% was allowed on the fourth offence for the Respondent's plea of guilty (ROS, page 2). 87His Honour then made findings of fact in accordance with the summary of facts set out earlier in his judgment (ROS, pages 3-11). 88With respect to the Respondent's criminal history, his Honour said (ROS, page 11): "There is [a] criminal history. It is not helpful as far as this offender is concerned. I take it into account to the limited extent I can, per se it is not strictly speaking an aggravating feature. But it is there before me, I take it into account. For someone so young he is certainly no stranger to the criminal justice system, but nevertheless it is important to take it into account to the extent that I am permitted to do so." 89His Honour had regard to the remarks on sentence of his Honour Judge Cogswell SC when sentencing Kyal Sukkar on 15 April 2010. Sukkar was 19 years' old and was said to have "a negligible criminal record" . He was sentenced for specially aggravated detain for advantage under s.86(3) Crimes Act 1900 , armed robbery under s.97(1) Crimes Act 1900 and aggravated break, enter and steal under s.112(2) Crimes Act 1900 . Offences of car theft and intentional destruction of a car were taken into account on a schedule in passing sentence for the s.86(3) offence. The total effective sentence was one of imprisonment for six years and six months with a non-parole period of three years and six months. 90Robison DCJ observed that "questions of parity certainly arise" but that "it should be borne in mind that parity having regard to the authorities does not mean that a sentence should be identical" but that "the court needs to be careful to ensure as far as possible that a justifiable sense of grievance does not occur" (ROS, pages 11-12). 91His Honour observed that all the offences had occurred whilst the Respondent was subject to conditional liberty and that "these are matters of significance, they are aggravating features and cannot be ignored" (ROS, page 11). 92With respect to the third offence (reckless wounding in company), his Honour referred to aggravating and mitigating factors for the purpose of s.21A Crimes (Sentencing Procedure) Act 1999 (ROS, pages 15-16). His Honour considered that there was an element of gratuitous violence involved in the offence, and found further aggravating features were that the offence was committed when subject to conditional liberty, a weapon was used, a vulnerable victim was involved and, to the extent to which it can be taken into account, the Respondent had a previous record (ROS, page 15). 93His Honour accepted the Crown submission that the reckless wounding in company offence was "around about the mid range" (ROS, page 15). 94Reference was made to the Respondent's youth and his Honour observed that "there are prospects of rehabilitation" (ROS, pages 15-16). 95His Honour stated that he had applied his mind to the principles in Pearce v The Queen [1998] HCA 57; 194 CLR 610 and had considered whether each of the sentences should be concurrent or consecutive or partially so, and had then stepped back and looked at the entire result of the sentences for the purpose of considering totality (ROS, page 16). 96As mentioned earlier, his Honour found special circumstances. 97When initially announcing the sentences, his Honour purported to set a fixed term of imprisonment of three years for the third offence (reckless wounding in company), for which a standard non-parole period applies. His Honour's attention was then drawn to the necessity to set a non-parole period (s.45(1) Crimes (Sentencing Procedure) Act 1999 ; Hristovski v R [2010] NSWCCA 129 at [7]), and his Honour then varied that sentence to one comprising a non-parole period of 18 months with a balance of term of 18 months.

Grounds 1 and 2 - Alleged Errors With Respect to the Third Offence of Reckless Wounding in Company 98It is appropriate to consider these grounds together, both of which relate to the reckless wounding in company offence (the third offence), for which a standard non-parole period applies. Submissions 99The Crown submitted that the offence imposed in respect of the reckless wounding in company offence was very lenient and suggested that the sentencing Judge had paid scant regard to the standard non-parole period of four years. 100The Crown pointed to the finding that it was a mid-range offence and that a discount of 15% was allowed for the Respondent's plea of guilty. The Crown pointed as well to the sentencing Judge's initial imposition of a fixed term of three years' imprisonment, with his Honour declining to set a non-parole period because the structure of the sentence to be imposed made it inappropriate. After his Honour's attention was drawn to the requirement to fix a non-parole period flowing from s.45(1) Crimes (Sentencing Procedure) Act 1999 , his Honour proceeded to impose, for this offence, a total term of imprisonment of three years with a non-parole period of 18 months. It was submitted that his Honour's original intention was to fix, in effect, a minimum term of three years' imprisonment for the third offence, but that this was transformed to a non-parole period of 18 months with a balance of term of 18 months to satisfy the requirement in s.45(1): R v Dunn [2004] NSWCCA 346 at [161]; Hristovksi v R at [65]. 101The Crown submitted that both the non-parole period imposed for the third offence, and the manner in which it had been reached after his Honour's initial error, indicated that the non-parole period had been calculated without any consideration of the standard non-parole period as a guideline. 102The Crown submitted that a non-parole period of 18 months for an offence of this nature is so far below the standard non-parole period as to be manifestly inadequate. It was submitted that the Respondent's subjective features were not such as to explain such a departure from the standard non-parole period. 103It was submitted further that the total sentence imposed for the third offence, which of itself was 12 months less than the standard non-parole period, was manifestly inadequate given the circumstances of the offence. 104Mr Smith, counsel for the Respondent, submitted that the sentencing Judge had taken into account the standard non-parole period. He pointed to the sentencing Judge's agreement with the Crown submission that the appropriate range for this offence was "around about the mid range" and his finding that "it approaches that [the mid-range] at the very least" (ROS, page 15). 105Mr Smith submitted that there are a number of reasons to depart from the standard non-parole period - the plea of guilty, the finding as to objective seriousness, the finding of special circumstances, the Respondent's youth and the fact that the sentence for this offence was part of a structured approach for sentencing the Respondent to give appropriate regard to his overall criminality. 106Mr Smith submitted that offences against s.35(3) Crimes Act 1900 cover a diverse range of both offending behaviour and the consequences of that behaviour. He submitted that the injuries in this case, described as three puncture wounds, although serious, were towards the lower end of the spectrum because there was no evidence of any ongoing or permanent effects from those injuries. He submitted that the sentencing Judge took into account the fact that the offence was committed in breach of conditional liberty. 107Mr Smith acknowledged the change from the original sentence imposed for this offence, but submitted that it would be unfair to suggest that the sentencing Judge set the resulting non-parole period without any consideration of the standard non-parole period as a guidepost. 108Mr Smith submitted that the more pertinent issue was that contained in the second ground of appeal, namely whether the actual sentence imposed for this offence was manifestly inadequate. He emphasised the principle of totality which may involve the lowering of individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed: Mill v The Queen [1988] HCA 70; 166 CLR 59 at 63; Johnson v The Queen [2004] HCA 15; 205 ALR 346 at 356 [26]. He submitted that the length of the non-parole period must also be considered in the light of the finding of special circumstances and in the context of totality. He emphasised that the Respondent's youth and rehabilitation were very significant factors on sentence, with considerations of general deterrence and retribution being less significant than they would have been in relation to an older offender. 109Whilst acknowledging that the sentence imposed for the reckless wounding in company offence was lenient, Mr Smith submitted that it was not manifestly inadequate. Decision 110In approaching these grounds of appeal, it is necessary to keep in mind his Honour's alteration of an original fixed term of imprisonment for three years for this offence, later transformed into a non-parole period of 18 months with a balance of term of 18 months. Although his Honour's attention was drawn to the terms of s.45(1) which required that a non-parole period be fixed, it is not at all clear that his Honour had initially selected the fixed term of three years upon the basis that that period should be the equivalent of the non-parole period, in accordance with what was said in R v Dunn and Hristovski v R . 111His Honour was aware of the standard non-parole period for this offence and had made a finding concerning the objective seriousness of the offence. 112I agree with Mr Smith that the real complaint by the Crown with respect to this offence is that contained in Ground 2, namely that the non-parole period and the total sentence for this offence were manifestly inadequate. It is to that ground that I now turn. 113It is the case that a diverse range of offending behaviour is capable of constituting an offence under s.35(3) Crimes Act 1900 . It is necessary to consider the particular circumstances of this case. The sentencing Judge's finding was, in reality, one that the offence lay at about the mid-range of objective seriousness or just below it. That finding is not challenged by the Crown on this appeal. 114This offence was committed in the early hours of 8 February 2009. At that time, the Respondent was subject to conditional liberty by way of bonds imposed on 11 February 2008 (for offences including being in custody of a knife in a public place), on 7 April 2008 and 27 November 2008. In addition, on 2 February 2009, the Respondent had been fined $300.00 in the Liverpool Local Court for an offence of being in custody of a knife in a public place. 115The facts of the third offence suggest a degree of planning where the victim, Mr Donno, was requested by the Respondent and his co-offender to travel from Bondi Beach to meet up with them in the Liverpool area. Having met, they travelled to the co-offender's house at Lurnea. Alcohol and cannabis were consumed. Thereafter, the Respondent, the victim and others walked to a park at Lurnea. In the centre of the park, the victim was confronted by the Respondent and two other men. The Respondent questioned the victim about being a "snitch" with respect to the first offence committed a few days before. The victim was punched to the head by one of the men. The Respondent and Boyden commenced to punch and kick the victim to the head and body. The victim was knocked to the ground a couple of times, but regained his feet. 116During the assault, the Respondent stabbed the victim once in the back around the left shoulder and twice in the upper thigh. 117An appropriate inference is that the victim was sufficiently injured in the attack so that he staggered a relatively short distance before collapsing, thereafter requiring medical assistance. 118Accordingly, the Respondent committed this offence in the following circumstances: (a) in company with other persons - an element of the offence; (b) by stabbing the victim three times during the course of a physical assault, in which the victim was punched and kicked by persons including the Respondent; (c) with the motive being to question and punish the victim for his assistance to police about the serious offence committed days earlier by a number of persons, including the Respondent; (d) whilst being subject to several good behaviour bonds; (e) one of those good behaviour bonds was for an offence of having custody of a knife in a public place, with the Respondent having been fined, as well, in the Local Court for a similar offence only six days prior to the commission of the subject offence. 119In reality, the Respondent has very little operating in his favour by way of subjective circumstances. He had an unhappy family history and a substantial history of offending in the Children's Court. There was no presentence report before the District Court nor any indication of the contents of Department of Juvenile Justice reports which would have been provided to sentencing courts for his juvenile offending. 120It seems apparent that some evidence concerning the Respondent's background had been placed before the Liverpool Local Court on 27 November 2008, culminating in the granting of a 12-month bond upon condition that the Respondent accept the guidance of a psychiatrist, psychologist or counsellor, and that he should take medication as prescribed and attend counselling, rehabilitation or educational development in accordance with medical advice. However, it does not seem that any significant action was taken to implement these conditions with the Respondent's mother not being aware of their existence (see [70] above). 121It is necessary to make allowance for the Respondent's youth at the time of this offence (18 years and nine months), the objective seriousness of the crime and the Respondent's subjective circumstances. It is necessary to keep in mind, as well, the fact that this was one sentence amongst several being imposed, and that the sentencing Judge had regard to the principle of totality (see [108] above). 122Has the Crown established that the sentence is manifestly inadequate, that is, that the sentence is unreasonable or plainly unjust ( Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 370-371 [27])? 123It is, of course, a basic principle that, absent error, the Court of Criminal Appeal may not substitute its own opinion for that of the sentencing judge merely because (if it be the case), the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her own discretion: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at 671-672 [15]. 124Nor is appellate intervention on the ground of manifest inadequacy justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where error is established in accordance with the principles in House v the King [1936] HCA 40; 55 CLR 499 at 505: Hili v The Queen [2010] HCA 45; 85 ALJR 195 at 207-208 [58]. 125I am satisfied that the sentence imposed for this offence was manifestly inadequate. The sentence was unreasonable or plainly unjust. The Crown has demonstrated error in the determination of this sentence. 126The maximum penalty for the offence was imprisonment for 10 years with a standard non-parole period of four years. This was a planned offence where the victim was taken to a place and stabbed by the Respondent as a means of punishment for his assistance to police over the serious offence committed days before. 127Having regard to the objective seriousness of the crime, the Applicant's subjective circumstances, the 15% discount for his plea of guilty and a finding of special circumstances (for the reasons given at [84] above), I am satisfied that a total sentence of four years' imprisonment with a non-parole period of not less than two years and six months was required for this offence. I do not accept the submission for the Respondent that the sentence imposed was lenient but not manifestly inadequate. 128In reaching this conclusion, I have effectively considered Grounds 1 and 2 together, although it is Ground 2 which is the operative ground giving rise to this conclusion.

Grounds 3 and 4 - Alleged Error in the Aggregate Sentence and the Approach to Accumulation 129Once again, it is appropriate to deal with these grounds of appeal together. Submissions 130The Crown submitted that when proper regard was had to the objective seriousness of the various offences for which the Respondent was to be sentenced, and his subjective circumstances, the total effective sentence imposed upon the Respondent was manifestly inadequate. It was emphasised that all offences were committed whilst the Respondent was subject to conditional liberty and that the first offence (specially aggravated detain for advantage in company and inflict actual bodily harm) constituted another and discrete serious offence of violence on the Respondent's part, committed only days before the reckless wounding in company offence. Whilst acknowledging that the Respondent joined in this offence a considerable time after the co-offender Sukkar had initiated it, the Respondent himself then committed significant acts of violence upon the victim. 131The Crown submitted that the sentencing Judge ought to have taken into account the principles in Veen v The Queen (No. 2) [1988] HCA 14; 164 CLR 456 at 477 in passing sentence. 132Further, the Crown noted that the sentencing Judge had not mentioned, in his remarks on sentence, the principles of personal or general deterrence. 133The Crown submitted that at least one manifestly inadequate sentence had been imposed (reckless wounding in company) and that a total effective accumulation of only eight months as between the various sentences was itself manifestly inadequate. 134Mr Smith accepted that the manner in which the sentencing Judge had structured the sentences was generous to the Respondent. He submitted, however, that this did not mean that such a structure was erroneous. He submitted that the sentencing Judge was confronted with the difficult task of sentencing a young adult offender in relation to a number of serious offences. Although the sentencing Judge knew that a period of effective imprisonment had to be a number of years, there were factors bearing upon the issues of accumulation and totality, as well as the finding of special circumstances, which properly took into account the Respondent's youth and need for a lengthy term of supervision to assist his rehabilitation. 135Mr Smith submitted that the requirement of totality, in the circumstances of this Respondent, meant that the sentences imposed had to be concurrent to a more significant degree than might be appropriate in other cases. Although acknowledging that minds may differ as to whether or not there should have been accumulation to a greater extent, he submitted that the approach adopted by the sentencing Judge was open in the circumstances of the case. 136Mr Smith submitted that the total effective sentence imposed on the Respondent was a long one, and that it was open to the sentencing Judge to impose such a sentence in this case. Decision 137Insofar as the Crown suggests error with respect to his Honour's approach to concurrency, accumulation and totality, I bear in mind the principles expressed by Howie J in Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at 47 [27]: "In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both." 138I have already expressed the view that the sentence imposed for the reckless wounding in company offence was manifestly inadequate and that a total sentence of four years' imprisonment, including a non-parole period of two years and six months, was the appropriate sentence for that offence. 139I approach the Crown appeal with respect to the issues of accumulation, concurrency and totality with that conclusion in mind. 140The practical effect of his Honour's sentences was that a total effective non-parole period of three years and 11 months with a balance of term of three years was fixed for three discrete and serious offences of violence. 141The first offence committed on 26-27 January 2009 involved the Respondent joining in the detention of the unfortunate pizza delivery driver, and a cowardly attack upon him in a park at night by a number of young men, including the use of a broken bottle and a pruning knife as weapons. Although the Respondent had not been party to the entire incident, it is clear that the Respondent joined in and became an active participant in it, knowing that the victim was a pizza delivery driver. This was a terrifying experience for the vulnerable victim. This Court has emphasised the seriousness of crimes of this type. Persons delivering pizzas are vulnerable to robberies because they are alone, carry cash and attend private homes and offences against them are often planned: R v Ferenc [2009] NSWCCA 126 at [21]. Added to this was the Respondent's offence involving unlawful use of the victim's vehicle. The period, purpose and circumstances of detention rendered this a serious offence under s.86(3): Jeffries v R [2008] NSWCCA 144; 185 A Crim R 500 at 511-512 [78]ff; Allen v R [2010] NSWCCA 47 at [20]-[22]. 142The third offence of reckless wounding in company was committed days after the first and second offences. It was connected to those offences, but not in a manner that favoured the Respondent. The victim was attacked by the Respondent to punish him for his perceived assistance to police concerning the first offence. 143The fourth offence (robbery in company), committed eight months later on 25 October 2009, involved the robbery of the victim who had alighted from a train in the early hours of the morning, only to be followed by the Respondent and others. The Respondent and others pushed the victim to the ground, his property was taken and the offenders, including the Respondent, enquired as to the location of the victim's car. The incident came to an end only when the victim got to his feet and fled across the road to a nearby house to seek help. 144The Respondent demonstrated, through his commission of these offences, a preparedness to engage in serious offences of violence over a number of months in 2009. The use of a knife in an offence of violence is a significant matter of aggravation: R v Reid [2005] NSWCCA 309; 155 A Crim R 428 at 436 [25]. 145The fourth offence and the Form 1 offence both involved the commission of an offence of robbery in company by a group of young men upon a person using the public transport system at night. In R v JW at 523 [207], McClellan CJ at CL, Howie J and I said with respect to offending of this type: "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". 146The youth of the Respondent was a significant issue on sentence. Nevertheless, the Respondent fell to be sentenced as an adult offender. It was important that the objective seriousness of his offences not be overshadowed by his youth and the undoubted desire to take steps to foster his rehabilitation. It remained necessary as well to have regard to issues of personal and general deterrence. In relation to crimes of violence committed on the streets by groups of young persons, consideration of general deterrence should be given substantial weight, notwithstanding the youth of the offenders: AI v R [2011] NSWCCA 95 at [69]. 147Given the Respondent's past history of committing offences despite non-custodial sentencing orders in the Children's Court, and his commission of these offences whilst subject to conditional liberty by way of bonds or bail (or both), specific deterrence remained a significant factor on sentence. 148General deterrence was a significant factor on sentence having regard to statements of this Court concerning robbery offences committed upon persons in and around the public transport system, and the use of knives in the commission of offences of violence. 149The total effective sentence passed with respect to the Respondent was a substantial one. For a young adult offender, a non-parole period of three years and 11 months with a balance of term of three years is substantial. 150An assessment of the appropriateness of the total sentence must take into account all the factors to which reference has been made. It is necessary to have regard to the objective seriousness of the offences as well as the Respondent's subjective circumstances, including his youth. 151The Respondent committed, over a period of months, a range of serious crimes of violence against different victims. Regrettably, the experience of the courts is that these are crimes very frequently committed by young men. It is not uncommon to find those young men operating in groups. 152In addition, intoxication by one substance or another is not an uncommon scenario for offences of this type. Regrettably, as well, the personal background of many young persons, who commit repeat offences of this type, have been fractured and unhappy. 153It is clear that a constructive and firm approach to rehabilitative measures may serve not only the personal interest of the young adult offender, but also the public interest, if those measures operate to reduce or remove the prospect of future criminality by that person. 154The purposes of sentencing contained in s.3A Crimes (Sentencing Procedure) Act 1999 are diverse. There must be a reasonable proportionality between a sentence and the circumstances of the crime: R v Dodd (1991) 57 A Crim R 349 at 354. 155It is now necessary to pose the question raised by Grounds 3 and 4. The Crown contends that the total effective sentence, incorporating the levels of accumulation ordered by the sentencing Judge, is manifestly inadequate. The Crown must establish that the total effective sentence is unreasonable or plainly unjust. It is not enough that this Court would have exercised its sentencing discretion in a manner different to the sentencing Judge (see [122]-[124] above). 156If called upon to sentence the Applicant at first instance, I would have imposed sentences with a greater degree of accumulation. However, I am not satisfied that the Crown has made good Grounds 3 or 4. The exercise of discretion with respect to accumulation was lenient, but not erroneous. 157I would reject Grounds 3 and/or 4.

Discretionary Considerations 158Error has been demonstrated in accordance with Ground 2, but not Grounds 3 and/or 4. 159This Court retains a residual discretion to reject the Crown appeal for reasons other than double jeopardy: R v JW at 515 [150]. 160In my view, no discretionary basis has been demonstrated for this Court to decline to intervene in the circumstances of this case.

Resentencing the Respondent 161I am satisfied that the sentence with respect to the reckless wounding in company offence is manifestly inadequate and that a substitute sentence should be passed. 162There ought be an additional measure of accumulation to reflect the increased sentence on the third count. Otherwise, the relationship between the sentences for the other offences will remain. 163The practical outcome of the Crown appeal will see an increase in the effective overall non-parole period for all the Respondent's crimes to one of four years and three months commencing on 27 April 2009 and expiring on 26 July 2013 with an effective overall balance of term of two years and eight months commencing on 27 July 2013 and expiring on 26 March 2016. The effective non-parole period will represent about 61% of the effective head sentence. 164Although the outcome of the Crown appeal will see an increase of four months only in the total effective non-parole period, this is both appropriate and necessary to reflect the objective seriousness of the third count, taken with the other offences which fell for sentence. 165I propose the following orders: (a) Crown appeal allowed with respect to the third count only; (b) sentence imposed upon the Respondent at the Parramatta District Court for the third count on 24 September 2010 is quashed; (c) in lieu thereof, the Respondent is sentenced for the third offence, reckless wounding in company, to a non-parole period of two years and six months commencing on 27 January 2011 and expiring on 26 July 2013, with a balance of term of 18 months commencing 27 July 2013 and expiring on 26 January 2015. 166The earliest date upon which the Respondent will be eligible for release on parole is 26 July 2013.

Addendum (12 August 2011)

WHEALY JA, HIDDEN AND JOHNSON JJ : Since judgment in this appeal was published, it has come to the attention of the Court that a number of calculation errors had been made in paragraphs [163] and 165 which require amendment under the slip rule. It is common ground as between the Crown and counsel for the Respondent that amendments should be made to those paragraphs to overcome those errors. Amendments have been made to the judgment to reflect this position.
The parties invited the Court to make a further order consequential on the partial success of the Crown appeal. The effect of the orders of the Court made on 25 May 2011 was to quash the sentence imposed for the third offence and to resentence the Respondent for that offence, with the new sentence commencing on 27 January 2011. In the District Court, the sentence for the third offence operated first in time, commencing on 27 April 2009.
As a result of resentencing the Respondent for this offence only, it is necessary to vary the commencement date of the sentence imposed for the fourth offence, so that one of the sentences imposed upon him operates for the entirety of the period covered by the total effective sentence.
It is open to the Court to make an order under s.7(1A)(a) Criminal Appeal Act 1912 varying the sentence imposed for the fourth offence in this way, and the parties invite the Court to do so in this case. The making of such an order is a necessary consequential step in light of the decision of the Court on the Crown appeal. It is appropriate that the Court should make such an order.
Accordingly, in addition to the orders of the Court made on 25 May 2011, an order is made under s.7(1A)(a) Criminal Appeal Act 1912 varying the commencement and expiration dates of the sentence imposed for the fourth offence, so that for that offence, the sentence of imprisonment for a fixed term of three years commenced on 27 April 2009 and will expire on 26 April 2012.

Amendments 12 August 2011 - Addendum added DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 August 2011

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