R v McKeon

R v McKeon - [2004] NSWCCA 232 - NSWCCA 2004 case summary — Zoe

[43]

The sixth application again concerned the witness Nathan Kain. Pursuant to leave granted, the Crown cross examined the witness. The witness said he was in Sydney in December 2000 to obtain some drugs. In the course of his evidence the witness responded to a question asked by the trial judge in the following passage (T 390-391): "Q. All right. But Mr Kain the point about it is this-- A. But it's the same things you know. Q. I know Mr Kain-- A. I don't want to hear her. I want to go to my cell. Q. Mr Kain just a minute. Just a minute. Can you please just listen to me because this is the point that is being put to you-- A. But she knows I'm a bank robber, she called me." Counsel then made the sixth application that the jury be discharged. This application was made upon the basis that the witness was an admitted bank robber and drug user and that he was associated with the appellant. Hence the appellant was prejudiced, it was argued. At the commencement of his evidence the witness said that he knew the appellant but he did not say anywhere in his evidence that he was associated with the appellant in any criminal activity. The Crown has correctly pointed out that the jury rejected the evidence that the witness gave as to his possible involvement in the robbery on 21 December 2000. This application for the discharge of the jury prompted her Honour to give this direction (T 396): "There's one further matter that I should raise with you and again, I only do this by way of ensuring, as I said to you at the beginning of the trial, that the accused, both of the accused receive a fair impartial and objective assessment of the Crown case against them on your part and I know that you've been very attentive and I accept without reservation that you understand the importance of that duty. In relation to the witness who is giving evidence now, Mr Nathan Kain, the issue in this trial has to do with Mr Morgan Kain and Mr McKeon. It has nothing whatsoever to do with what this witness may have done in his past. Now, you may not like people who take heroin and you may not like the sort of lifestyle that Mr Kain appears to be indicating to you that he's led. That has absolutely nothing to do with whether or not at the end of the day the Crown has proved beyond reasonable doubt that it was these two accused who were in the Westpac Bank at Picton on 21 December. Whatever you think of Mr Nathan Kain, whatever you make of his evidence is a matter for you but you must not, you must not form any adverse inference against either of the accused based on some dislike that you may have in relation to Mr Nathan Kain. Now, I just wanted to give you that caution, as I said, I know you understand the importance of being impartially and objective." In my opinion, the above direction was appropriate and adequate to address counsel's concern, and her Honour was correct to refuse the application of counsel. 12 The crimes charged, and in particular the bank robbery, amounted to a joint criminal enterprise involving two offenders. The witnesses in the Crown case gave evidence involving both offenders. It seems to me that it was in the interests of justice in avoiding the risk of inconsistent verdicts that the appellant and his co-accused be tried together on both counts in the indictment. Further, it seems to me, that it was in the interests of the accused and of justice that the various witnesses be examined and cross examined before the same tribunal of fact charged with the assessment of the reliability of those witnesses. The importance of these considerations was very recently addressed by this court, differently constituted, in Skaf & Ors [2004] NSWCCA 74: see the joint judgment of the court at [112]. 13 The court must however always be alert to guard against the risk of positive injustice that may arise in the circumstances of a particular case where there are co-accused: see Middis (unreported, Hunt J, 27 March 1991) where his Honour addressed the relevant principles. Nevertheless, it is ordinarily desirable that those concerned in a particular crime should be dealt with at the one trial: see Patsalis (1999) 107 A Crim R 432 and the remarks of Kirby J at 434. 14 In my opinion, it was entirely appropriate that the appellant and his co-accused were tried together, and nothing occurred during the course of the trial to change this. I consider each of the applications for the discharge of the jury was correctly refused and there was nothing in the way the evidence emerged at this trial which created a risk that the trial might miscarry. 15 Accordingly, I do not consider that ground 1 has been established.

[44]

Ground 2: The verdict in the trial was unreasonable - incapable of being supported by the evidence 16 I earlier reviewed the evidence in the Crown case. 17 So far as the evidence of description given by those who saw the armed offender in the bank and as he left is concerned, there were discrepancies in the descriptions of that armed offender. In particular, counsel for the appellant has drawn attention to discrepancies in the evidence as to the colour of the appellant's eyes. On the other hand, Ms Cameron gave a description of observation which was anything but inconsistent with the evidence of the appellant's appearance at the time when, according to Ms Cameron, he had removed the balaclava. 18 The timing of the appellant's arrival at the hotel at Rosehill when he had the booking under a false name fitted in with the travelling time from Picton, where the armed robbery had been committed. 19 The evidence reviewed linked the appellant to the backpack which was dropped in the carpark at Tweed Heads and the jury could reasonably link the content of that bag to him. The jury could reasonably find that the Nike T shirt was his. The jury could also reasonably conclude that the distinctive tracksuit pants found in it were the tracksuit pants captured by the bank video film. The jury could also conclude that the balaclava in the pack was entirely consistent with the balaclava worn by the same offender. Then there was the evidence that at the time of arrest the appellant had in his room a pair of running shoes matching the distinctive shoes worn by one of the offenders, and under the bed clothing there was detected the scanner which matched what the witness Mr Watt-Bright had seen being carried outside the bank. 20 In addition there was a considerable body of evidence which placed the appellant and the co-accused in each other's presence between 21 December 2000 and 16 January 2001. 21 It seems to me that when one has regard to all the evidence in the Crown case, it was open for the jury to be satisfied beyond reasonable doubt as to the guilt of the appellant, and in my opinion ground 2 fails.

[47]

(ii) charging robbery whilst armed with a dangerous weapon, namely a handgun, of the property of City Coast Credit Union. 23 Both men were found guilty by the jury of both offences. 24 The Crown case was that the motor vehicle used in the robbery as a getaway vehicle was stolen from the Carlingford Court shopping centre on 5 December 2001. 25 On the following day a person armed with a gun robbed the City Coast Credit Union in the Westfield Shopping Centre at Warrawong of $7639. Whilst that robbery was taking place, a second man was keeping watch outside. The men joined up and left the scene in the stolen car. It was the Crown case, accepted by the jury, that the appellant was the gunman and the co-accused was the man who kept watch. 26 Ms Perrine was a teller on duty at the credit union premises at about 3.45 pm on 6 December. Her evidence was that she was approached by a man dressed in a baseball cap and wearing dark glasses. He was waving what appeared to be a gun. He told her it was a robbery, threw a plastic bag to her and told her to fill it with money. She complied with this demand, as did other tellers nearby. The gun was described as dull silver and the tip was orange. 27 A second teller also saw the gun. Ms Harris described it as silver, but she only saw it briefly as it was waved about. Ms Harris described the offender as about six feet tall or more, with short dark hair, and a normal voice with an Australian accent. 28 Ms Suthers, who was a supervisor at the counter, described the offender as between twenty and thirty and as having lightish skin, thin to medium build and being roughly five foot ten tall. She said he had "a thin face, withdrawn type face". 29 Detective Thomas gave evidence that the appellant was about 180 centimetres tall and thirty-seven years of age. 30 There were security cameras at the credit union premises and a number of still photographs of the offender were taken. In addition there was a video which showed the offender, on the Crown case the appellant, joining up with the co-offender after the robbery. 31 Ms Popovski was in the shopping centre during her late lunch break and noticed a man who she identified from photographs presented by the police on 20 February 2002 as the co-offender, Morgan Kain. Ms Popovski expressed herself as being "ninety-eight percent certain" of that identification. Ms Popovski said her attention was drawn to the co-offender because he was intently watching a security guard who walked past the credit union premises. She observed a second man joining Kain and that second man had a baseball cap on and a long sleeved shirt. He was hunched over holding a plastic bag to his stomach and Ms Popovski heard Kain say to him "Hurry up, the security guard is just down there". Ms Popovski followed them and saw them enter a motor vehicle and noted the registration number, UKW 218. That was the number of the vehicle which was stolen the day before from Carlingford Court shopping centre. Ms Popovski ran to a security guard and gave him the number. 32 Evidence was led by the Crown that one and a half hours before the robbery the appellant, in company with a second man, withdrew money from the appellant's account at the Commonwealth Bank, Wollongong. Without objection the Crown led from the bank officer that she had dealt with the appellant. The security camera at the bank took two black and white photographs and there was no dispute but that these were photographs of the appellant. 33 The Commonwealth Bank officer who dealt with the appellant gave a description of Kain and later selected his photograph from a number of pictures provided by the police as being the appellant's companion at the time the money was withdrawn. 34 The Crown introduced into evidence the Commonwealth Bank photos and photos from the credit union robbery. The two sets of photos invited the conclusion that the body shape and size of the robber matched the body shape and size of the appellant. The credit union photo showed part of the left running shoe being worn by the robber and that appears to be similar to the distinctive running shoes the appellant was wearing when he attended at the Commonwealth Bank. Whilst the robber is shown wearing a sloppy joe at the credit union premises, his photo there taken shows part of a shirt above the top of it, and what is protruding appears similar to the distinctive T shirt the appellant was wearing in the photo taken at the Commonwealth Bank. 35 The Crown also led evidence as to the dropping of the bag at the carpark at Tweed Heads on 27 December 2000. (The evidence as to this incident did not emerge in precisely the same way as it had done at the first trial.) Evidence was led that the fingerprints of both offenders were found in the car from which the two men were seen alighting and evidence was also led as to the subsequent finding of the Qantas boarding passes in the names of the appellant and the co-offender (referred to earlier at para 7(xii)). Further evidence was given about the contents of the dark bag. One of the items in the bag was a replica pistol and another item was a Nike T shirt identical to the one depicted in the Commonwealth Bank photographs. The replica pistol was very similar to that weapon which was described by Ms Perrine and Ms Harris and it had orange at the tip of the barrel. 36 Because Ms Popovski's evidence in cross examination raised the possibility that in identifying the co-accused the witness might have been mistaking him for the co-accused's twin brother, a chemist, who is the manager of a pharmacy at Mermaid Beach, was called to prove the dates upon which she administered a prescription drug to the twin brother and these included 20, 21, 22, 23, 24 November 2000. The witness said that the patient was required to attend personally to collect that drug. 37 Neither the appellant nor the co-accused gave evidence at the trial. 38 Against this background, I turn to consider the grounds of appeal.

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(a) The first application This application followed the introduction of evidence as to what was observed to have occurred in the carpark at Tweed Heads on 27 December 2000. The complaint was that in the way the evidence emerged it appeared that those who left the car were fleeing from the police. Mr Daniels gave evidence (T 172-173): "Q. What did you see happen when it was driving down the ramp? A. The car slowed, the doors came open and two youths jumped out. One went from the passenger's side left, the one on the driver's side ran around the front of the car and the car went around to the left. Q. Did you see anyone still remaining in the car after the two males that you've described got-- A. Yes, the driver. Q. Where was he? A. Driving. Q. Where did you see the car being driven to - where did it go? A. Just past the ramp on the down there's - he turned left. Q. He turned left? A. Yes. Q. Did you continue watching the Commodore, did you see where it drove after that. A. For about maybe 20 or 30 metres, that was it, the traffic started to move because the police were coming in . Q. Did you see the car after that or had you gone? A. No. We had driven up the ramp." (Emphasis added) Counsel for the co-accused then cross examined the witness: "Q. You saw both the back doors open, is that right? A. Well, yes. Q. This is in your statement of 27 December? A. Yes. Q. It's the day that it happened, so we'll go back to your statement? A. Yes. Q. Rather than you try and remember back to that day, wouldn't we - your accuracy? A. Yes. Q. You said that the - it slowed down the ramp and both the back doors flew open and two guys jumped out, is that right? A. Yes. Q. You only had the car on observation for a matter of seconds I take it, is that right? A. About 30 seconds. Q. There was another person in the car or at least one other person, is that right? A. Yes, the driver." Then (at T 174): "Q. The two people you saw get out of the car had short dark or brown coloured hair, correct? A. Yes. Q. Do you know where the car came to a halt? A. No. At no time when I'd seen it did it actually come to a halt, it was still actually moving, very slowly but-- Q. You saw one person running to the carpark, is that right? A. Two people running to into the car park. Q. Two people ran into the car park? A. Yes. Q. You didn't see anyone drop anything, did you? A. No." Mrs Daniels gave evidence (T 175-176): "Q. Now I just want to clarify something. As you saw the fawny coloured Commodore come down the roundabout at the top of the ramp and then come down the ramp, how many people did there appear to be in the car? A. Three. Q. And did you watch it as it came down the ramp? A. It was coming very fast down the ramp and so yes I looked up because of the noise from the travelling. Q. And what did you see happen as it was coming down the ramp? A. It was speeding down the ramp and it slowed down, it didn't stop, but it slowed down and the rear driver's side door and the front passenger doors opened and the two guys jumped out. Q. Was the car stopped or not? A. No it was still moving as they were getting out. Q. Did you see the car continue on? A. It then - there was a turn just in front of it and it screeched around the corner and away from us." It was submitted at the trial that the evidence above reviewed invited the inference that the passengers in the car were fleeing from the police. Even if that inference was to be drawn, it is important to bear in mind the significance of the evidence concerning the men in the car. It was to link the appellant to the contents of the dark bag and that link was sought and was relevant only to linking the appellant to the crimes charged. It seems to me that the evidence of Mr and Mrs Daniels went nowhere as against the appellant unless the jury found that it was the appellant or his companion that dropped the bag. Neither Mr Daniels nor his wife saw any bag dropped, although each of those who left the car was observed to be carrying a backpack or bag. It was another witness, Ms Brown, who saw one of the men drop his backpack as the two men were running off. The answer which Mr Daniels gave concerning the police was not directly responsive to the question asked by the Crown. It added nothing to the prosecution case but it does not seem to me that the introduction of this evidence involved any risk of the trial miscarrying. In my opinion, the trial judge was correct to refuse counsel's application. Her Honour gave a direction to the jury which is pertinent and to which I shall refer when considering the second application for discharge.

[50]

Detective Waterer gave evidence that he saw the co-accused's twin brother in front of the Tweed Shopping Centre on 27 December 2000 (T 213). Her Honour interrupted the cross examination by counsel for the co-accused at T 214: "Q. Perhaps detective, it seems to me that the question, I don't know because Mr Morison doesn't want to enlighten me but it seems to me whether the question is whether or not Nathan Kain - the description given by the witnesses that you're aware of is capable of fitting your understanding of the appearance of Nathan Kain as at 27 December? A. Yes. I might be able to clarify it, the description given over the police radio was a general description and the three were classed as similar in appearance." It was submitted by counsel for the appellant that the evidence from Detective Waterer above reviewed added to the mischief occasioned by the evidence of Mr and Mrs Daniels. The evidence suggested that the vehicle from which the two men alighted was a wanted vehicle, that its occupants were people whose description was given over the police radio and that one of the them was a person whose last address was on the police computer. This was prejudicial to the appellant. Her Honour refused to discharge the jury, but in the course of the summing up gave the jury instruction as to how the evidence of the carpark incident at Tweed Heads should be regarded (SU 16): "Let me just say something about this incident at Tweed Heads which is a category of evidence referred to by the Crown and both counsel on behalf of the accused in the course of their addresses. I just want to make it clear that you cannot use evidence of the fact that the police were said to have been in attendance some time shortly after that incident at Tweed Heads in order to reason that either Mr McKeon or Mr Morgan Kain must be guilty of this offence. That would be an impermissible form of reasoning and the Crown does not rely upon it in that way. The Crown only relies upon the evidence in relation to Tweed Heads simply to attempt to connect the contents of the backpack with Mr McKeon and in order to demonstrate that Mr Morgan Kain was in Mr McKeon's company on 27 December. That is the purpose of that evidence and the only purpose of that evidence on the Crown case. So let me just return, if you were satisfied beyond reasonable doubt that Mr McKeon was one of the two persons who came from that vehicle, then but only then could you use the evidence of the contents of the backpack towards proof of the charge of armed robbery against Mr McKeon. So I have just dealt in some compartmentalised way with the evidence in relation to Tweed Heads." Later in the summing up the trial judge dealt with the case against the co-accused and in doing so returned to the evidence of the incident in the carpark (SU 50-51): "Even if you were to be satisfied beyond reasonable doubt that he was one of the occupants of the car on 27 December, whatever knowledge he may have had about the presence of the replica pistol on that day - and I am not suggesting there is any evidence of knowledge on that day - but whatever knowledge he may have had about the presence of the replica pistol on that day, that says nothing about whether he knew of its intended use on 6 December. You see, it does not logically follow that, even if he were to know about the replica pistol on 27 December, that that says anything about his state of mind on 6 December." The above directions were appropriate to alert the jury to the use which could be made of the evidence concerning what happened in the carpark. There is no reason to conclude that the jury would have done other than to heed her Honour's directions. In written submissions filed for the appellant it was submitted that the jury could have treated the evidence as to what occurred in the carpark as evidence of flight and the jury should have been given some direction on this issue. It does not appear that the notion of flight or guilty mind was any part of the Crown case and counsel for the appellant at the trial sought no direction about the carpark evidence after the jury was given the directions in point which I have set out above. It seems to me that there was no occasion for the trial judge to give any directions as to "flight". Rule 4 applies to the complaint about failure to direct as to flight, and in the circumstances of this case where flight formed no part of the Crown case, I would not give leave to the appellant to rely upon this issue here. 40 In my opinion Ground 1 has not been established. There was no necessity for the jury to be discharged during the course of this trial.

[52]

Application for leave to appeal against sentences 46 The appellant was sentenced on 20 June 2003 not only following upon the convictions the subject of challenge in this Court but also in relation to a significant number of other offences. The appellant seeks leave to appeal against all the sentences then imposed. 47 On 20 June 2003 the sentencing judge had the task of sentencing the appellant for seven counts of aggravated armed robbery, five offences of stealing motor vehicles and one offence of robbery. In addition, there was a further aggravated armed robbery charge and a robbery charge to be taken into account on a Form 1. 48 The total proceeds of these crimes was of the order of $93,000, of which $21,000 was recovered. 49 The aggravated armed robbery offences each carry a maximum penalty of twenty-five years imprisonment. The robbery charge carries a maximum penalty of fourteen years imprisonment and the offences of stealing a motor vehicle each carries a maximum penalty of five years imprisonment (ss 97(2), 94 and 154A of the Crimes Act). 50 All the offences were committed between 25 September 2000 and 11 January 2001. 51 On 25 September 2000 the appellant robbed credit union premises at Figtree. Several weeks later he robbed the same credit union again. 52 There then followed the aggravated armed robbery at Warrawong in which a stolen motor vehicle was used for the purposes of escape. The convictions for these two offences were the subject of one of the appeals earlier considered (the second trial). 53 Then, on 11 December 2000, there was a further armed robbery with an offensive weapon, with an associated offence of stealing a motor vehicle. That armed robbery was at Camden at the office of the Macarthur Credit Union. 54 On 21 December 2000 the appellant committed an aggravated armed robbery at the Picton branch of Westpac. Associated with this was the offence of stealing a motor vehicle. These two offences led to convictions at the first of the trials considered earlier in this judgment. 55 On 27 December 2000 the appellant committed an armed robbery with an offensive weapon at credit union offices at Kingscliff. Associated with that offence was the theft of a motor vehicle. 56 On 8 January 2001 the appellant committed an armed robbery with an offensive weapon at the Colonial State Bank at Nowra. 57 Three days later he committed an armed robbery with an offensive weapon at the National Bank at Katoomba. Associated with that offence was the theft of a motor vehicle. 58 When the judge came to pass sentence in respect of the crimes committed on 11 January 2001, her Honour took account of two matters on a Form 1. Shortly the facts in relation to those matters were:

[54]

(b) on 27 December 2000 at Tweed Heads the appellant robbed the Colonial State Bank of $407 whilst armed with a handgun. 59 It is to be noted that not only was the appellant armed with a gun when the crime was committed on 11 January 2001, but on that occasion he discharged the weapon he was holding into the carpet in the banking chamber. Her Honour observed in relation to the other aggravated armed robbery offences that they each involved the presentation of a firearm or a replica firearm to counter staff, either by producing the weapon itself or by revealing part of the weapon concealed on the appellant's person. 60 Five of the aggravated armed robbery offences were committed in conjunction with the theft of motor vehicles used to travel to and from the scenes of the armed robbery offences. 61 On 21 April 1995 the appellant had been sentenced to a head sentence of seven years imprisonment for armed robbery. That sentence did not expire until 16 May 2001, so all the offences for which her Honour was called upon to sentence this appellant were committed during the currency of that sentence. The appellant was in fact on parole in the period relevant to the commission of this spate of crimes. His parole was revoked on 19 October 2000 but the appellant was not arrested until 16 January 2001. Custody referable to the 1995 sentences did not expire until 17 September 2001 and her Honour therefore dated the earliest of the sentences imposed in June 2003 from 17 September 2001, from which time the appellant had remained in custody. 62 Her Honour categorised the criminality of the appellant as represented by the commission of these offences as being "of a very high order". Her Honour correctly observed that that was "something of an understatement" (ROS 13). 63 Four of the armed robbery offences and three of the steal motor vehicle offences were the subject of guilty verdicts after trial. Three aggravated armed robberies, one robbery and two steal motor vehicle offences were the subject of an aborted trial after which the prisoner entered pleas of guilty. In these circumstances her Honour observed, again correctly, that very little utilitarian value attached to the pleas that were entered, although her Honour recognised that the witnesses were not required to give evidence at a retrial following the aborted trial. Her Honour expressly took into account the pleas as reflecting inherent contrition. 64 The sentencing judge found that although the appellant was adopted he had a reasonably supportive family upbringing. After his adoptive father left the family home, the appellant lived with his adoptive mother, his sister and his grandmother. Her Honour found that his offending has arisen out of the appellant's abuse of illicit drugs, including heroin. There was one attempt at rehabilitation in the early '90s and a later attempt in 1999. 65 The applicant gave evidence before the sentencing judge who found him intelligent and reasonably articulate, and in some ways refreshingly honest. He did not rate his prospects of rehabilitation highly. Her Honour appears to have rated those prospects as "exceedingly dim", subject only to the appellant having reached a stage of life where offenders begin to tire of their criminal lifestyle. 66 Dr Westmore assessed the appellant on 5 May 2003 and her Honour had the benefit of the doctor's report and referred to it in her sentencing remarks, observing that the appellant's evidence "largely confirmed the content of the report". The doctor noted the appellant's history of drug abuse extending back to his teenage years. Dr Westmore wrote in part: "Despite the man's long history of criminal behaviour, I think there are some potentially positive aspects about him. He is I believe extremely bright, he has demonstrated a capacity to hold employment and hold a relationship. He finds it psychologically very stressful however when leading a conservative life in the community. This issue, along with other issues arising from some childhood matters, do need to be addressed with this man. His perception that he is no longer fitting into the prison population is probably a true and realistic perception. It may be that this is some early evidence of this man's personality is maturing and developing, something that occurs in many repeat offenders as they grow older. If he can be assisted with this maturation process and provided with a lot of assistance on his return to the community, then he will certainly have a better prognosis than if he does not receive such assistance. In the past his motivation for change is also starting to develop in this man. Obviously, with his background history, his prognosis at this time does need to be considered in a careful and cautious fashion. He needs extended psychological counselling and counselling about his drug abuse. He does have some psychological mindedness however and I note his ability to describe very well the stress he experienced while living in the community, the positive association he has made between stress and heroin use and his own recognition of the repeating cycle his life has become. Again, these are positive features as they suggest some increasing insight in this man." 67 The sentences imposed were as follows:

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(viii) for the offence committed at Katoomba on 11 January 2001, and taking into account the offences on the Form 1, her Honour imposed a sentence of fifteen years imprisonment to date from 17 September 2010 and to expire on 16 September 2025. Her Honour fixed a non parole period of six years expiring on 16 September 2016. For the associated steal motor vehicle offence, her Honour imposed a term of imprisonment of three years to date from 17 September 2010. 68 In aggregate therefore her Honour sentenced the appellant to twenty four years imprisonment with a non parole period of fifteen years. Her Honour imposed concurrent sentences for certain of the offences, but then for the offences committed at Kingscliff and Nowra sentences were imposed which were partly cumulative on the earlier sentences. Then for the offence at Katoomba, being the last offence chronologically, her Honour took into account the offences on the Form 1 and imposed another sentence which was partly cumulative on those sentences imposed for the Kingscliff and Nowra offences. 69 Mr Terracini informed the Court that the appellant is presently serving his sentences in maximum security conditions at Goulburn prison and hence the conditions of his imprisonment are especially burdensome. The appellant has had to endure these conditions for some two years and his future in terms of reclassification is uncertain. 70 The circumstances of the appellant's imprisonment can, of course, only be taken into account in this Court in the event that the Court first determines that there is occasion for intervention. 71 In written submissions it was contended that the sentencing judge was silent on the issue of special circumstances and, inferentially, that there was in consequence error in the structure of the sentences. 72 I do not accept this submission. In imposing a non parole period of six years in respect of the sentence of fifteen years, her Honour plainly determined that there were special circumstances. Indeed, her Honour made it clear in her sentencing remarks that the sentence imposed for the Katoomba offence was deliberately structured in the manner in which it was because of the necessity, as her Honour perceived it to exist, to partially accumulate sentences. 73 The sentences have been so structured that ultimately the appellant will have a period during which he is eligible for release on parole for a term of nine years. To my mind, putting aside for the moment the length of the head sentence, the appellant could have no justifiable ground for complaint about the manner in which that last sentence has been structured, nor indeed about the relationship of non parole period to parole period overall. 74 I find no error of principle or of fact in the sentencing remarks of this experienced judge. The real issue, as I see it, is whether the sentences imposed are manifestly excessive having regard to the appellant's total criminality. 75 It was pointed out in written submissions that the sentence of fifteen years imprisonment for the Katoomba offence was well outside the sentencing guidelines in R v Henry (1999) 46 NSWLR 346. However the appellant's case is not in the category of case contemplated in Henry. The appellant is not a young offender with little criminal history. He was nearly forty years of age when sentenced and he did not present with no or little criminal history. On the contrary he had a lengthy criminal history and all the offences for which he had to be sentenced were committed when he was on parole for armed robbery. The offences were committed with a degree of planning and in many of them the appellant had participated in the theft of a motor vehicle to be used to travel to and from the scene of the crime. The amounts taken were not small. In most cases there was absent a plea of guilty. 76 Hence the facts of this case take it well outside the guideline judgment in Henry. Counsel have been unable to refer the Court to any cases similar to the present case where an offender had to be sentenced for so many armed robberies where there was absent pleas of guilty. Moreover, there is the serious matter of aggravation that all these offences were committed whilst the appellant was on parole. 77 In the course of submissions, the Court has been referred to Bavardra (2000) 115 A Crim R 152; Lemene (2001) 118 A Crim R 131; and Itamua [2000] NSWCCA 502. For my part, I do not find that I am assisted by those cases where the features were very different from those here present. 78 In May this year an appeal by the appellant's co-offender in respect of the sentences her Honour imposed upon him for the Picton and Warrawong offences (and the associated steal motor vehicle offences) was dismissed (R v Kain [2004] NSWCCA 143). For the Picton armed robbery, Kain was sentenced to ten years imprisonment with a non parole period of six years; for the Warrawong offences, Kain was sentenced to seven years imprisonment with a non parole period of five years. The sentence for the Picton armed robbery offence was partially accumulated, so that the effective term of imprisonment imposed upon Kain was twelve years, with a non parole period of eight years. Her Honour took into account on a Form 1 the further aggravated armed robbery at Kingscliff on 27 December 2000. One of the grounds of appeal raised in Kain's appeal was lack of parity with the sentences imposed upon this appellant for the Picton and Warrawong offences, in respect of which offences it is to be observed that the present appellant received concurrent sentences. 79 The Court of Criminal Appeal in Kain rejected the lack of parity submission, as to which Levine J, with whose judgment the other members of the court agreed, said (at para 80): "In relation to the complaint about the lack of parity with the co-offender, Mr McKeon, I would have thought that the short answer to that is that his co-offender received a sentence of 24 years with a non-parole period of 15 years. In this regard I am not persuaded of any necessity to go behind the totality principle clearly applied by her Honour in dealing with the person who had committed far more armed robberies than the present one. I can see no sensible way of isolating from the greater number of crimes for which the co-offender was sentenced the one committed in common with the applicant." 80 To my mind, error in her Honour's approach to the totality principle in sentencing the present appellant has not been shown. 81 The overall effect of the sentences set by her Honour was to impose very stern punishment indeed upon the appellant. However, aggravated armed robbery is to be regarded as a most serious offence as the maximum penalty set by the legislature for this category of offence makes plain. Her Honour had a most difficult sentencing task and ultimately I am not persuaded that there was error in the execution of that task having regard to the number and gravity of the offences for which the appellant was to be sentenced. 82 I have come to the conclusion therefore that whilst leave to appeal against the sentences imposed should be granted, the appeal should be dismissed.

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