While it was not strictly impermissible for her Honour to have reduced the non-parole period to account for the earliest period of pre-sentence custody, rather than backdating its commencement. I am not persuaded that there was necessarily an error in doing so. Had the applicant been given the full benefit of all of the pre-sentence custody in backdating the sentence and the non-parole period, the revocation of the earlier parole would have lost its effect. However the fact of the earlier period of custody was obviously a matter properly to be taken into account and which we should also take into account when we come to consider the balance of the matters relied upon, and in particular, the question of whether or not the sentence as a whole was excessive.
33 The present case is a good example of why the practice laid down in McHugh should continue to be applied and, in my opinion, the fact that a sentence would have to be backdated to a period when the offender was not in custody in order to comply with the practice is not a good reason for failing to follow it. In the present case, his Honour clearly reduced the head sentence by reason of the period served but there is a valid question arising as to whether the non-parole period was also reduced.
34 Of course, theoretically at least, a reduction in the head sentence should always bring about an equivalent reduction in the non-parole period. The non-parole period can never be considered in isolation but is always referable to the head sentence, at least under the sentencing scheme with which the Court is presently concerned. This must be so where no special circumstances are found, because then the non-parole period is a statutory percentage of the head sentence. But, where the court departs from the statutory relationship, there may be room for doubt about whether the offender received the entitlement unless the length of the non-parole period is such that it is obvious that the sentencing judge took into account the pre-sentence custody in calculating the length of the non-parole period. Questions arise, as they do here, where the term of the non-parole period does not appear to have the exactitude in calculation that was applied to determining the length of the head sentence.
35 As I am best able to calculate it, the non-parole period in the present case is 56 per cent of the head sentence. The applicant has to serve a minimum period of custody of three years before being eligible for release to parole. She then will have a period of nearly 2 years 4 months subject to parole supervision. This period is more than adequate, in my view, for the applicant's rehabilitation.
36 Subject to any question of parity, which is raised by another ground of appeal, I believe that this ground should be rejected. While his Honour ought to have made it clear that he was taking into account the period of pre-trial custody in determining the non-parole period, and in my view should have backdated the sentence and non-parole period, I do not believe that the minimum period of custody should be further reduced. It was, in my opinion, a lenient non-parole period, even taking into account the period that the applicant had already served. I am not persuaded that, had his Honour backdated the sentence, as I believe he should have done, he would still have imposed a non-parole period of three years. Although he did not say so, there would have been no error in his Honour determining that the applicant should spend at least a further three years in custody before she could be released.
37 In any event I do not believe that any lesser sentence than that which the applicant now must serve is adequate to reflect the objective seriousness of her conduct and act as a general deterrent. The non-parole period was, even taking into account the period served before sentence, the very minimum that could have been imposed upon Ms Simpson.
38 The applicant has submitted that, by reason of her age, her relative lack of criminal record, the fact that it was her first sentence of imprisonment, the impact upon her mother and her children, her early plea and her immediate admission of guilt, the sentence was manifestly excessive. I do not agree.
39 This was clearly a most serious offence and she was the instigator of it. She knew that two men were to enter the premises of the victim in the early hours of the morning after she obtained entry for them by a ruse. She told police that, although she did not expect any violence, she knew that they were going to steal from him and it must have been obvious to her that there was going to be a confrontation between the men and the victim. His Honour described the offence as a "cowardly attack" upon the victim. Although that might have been an apt description of the role of the applicant Newman and Charles, her part in it was in some ways more repellent.
40 Ms Simpson knew the victim and had been helped by him in the past both morally and physically. He had been a support and comfort to her through difficult times. She returned that kindness and charity by instigating, planning and setting into motion the theft of his property simply to obtain money to purchase alcohol. But more than that, she knew how to gain entry to the premises notwithstanding the late hour and his apparent vigilance against intruders. She was aware of the one thing that he would be unable to resist: a call upon his Christian faith. She pretended that she wanted spiritual guidance, something that she had hitherto resisted. On that pretext she was able to achieve her plan of gaining entry for her two accomplices.
41 I accept that there was a difference in the criminality between the applicant and her two co-offenders, but I do not believe the gulf is as wide as the submissions on behalf of the applicant would suggest. It is clear that she was not only the means by which her co-offenders breached the security of the elderly man's home. She was also intending to steal the victim's property while he was distracted by the two men. The plea of guilty to the charge under s 113(3) accepts that she foresaw the possibility of the victim being wounded, and it, therefore, follows that she must have foreseen the possibility of there being some violence to the victim despite her protestations to the contrary. In any event, it is a matter of common sense that, if she allowed two men to gain entry to premises at night knowing that the occupant was at home and awake, there was going to be some sort of confrontation between the resident and the intruders and that it might well result in violence, not to the intruders, but to the vulnerable householder.
42 As his Honour recognised, there were a number of aggravating features in the offence, all of which applied to the applicant, either under s 113(2) or generally by reason of the guideline judgment in R v Ponfield (1999) 48 NSWLR 327 or under s 21A of the Crimes (Sentencing Procedure) Act: These included the following: the offenders were in company; they knew the victim was in the premises alone; it was at night; the victim was an elderly and vulnerable person; there were injuries of a significant nature inflicted upon the victim; there was a degree of planning involved. In addition at the time the applicant was on conditional liberty for an offence of violence.
43 There was also, in my view, a significant breach of trust committed by the applicant: not in a technical sense but as a matter of practical reality. The applicant used her relationship with the victim to gain entry for herself and the two men in order to steal from him. Clearly he admitted her into his home, notwithstanding the late hour, because he believed she was alone and he trusted her.
44 It is clear that his Honour gave the applicant and her co-offenders a discount for the plea of guilty of 20 per cent. Although the Crown Prosecutor conceded that it was the first reasonable opportunity for the accused to plead to the indictment presented, the discount was appropriate in light of the plea coming at that stage in the proceedings.
45 The undiscounted sentence chosen by his Honour must have been about 7 years. As against a maximum penalty of 20 years and having regard to the aggravated features of this offence, I do not believe that such a sentence was outside his Honour's discretionary range. I do not think that it could even be said to be at the top of the range for an offence with these aggravated objective facts. General deterrence was important and denunciation was essential.
46 As I have already indicated, I do not hold the view that the applicant's criminality is substantially reduced from that of her co-offenders simply because she was not physically involved in the violence used against the victim or because she may not have intended that it occur. She was the instigator of, and a major participant in, an offence where she was aware of at least the possibility of the victim being wounded and she intentionally placed him into that peril. The criminal conduct of her co-offenders could not have occurred without her involvement in the offence. In my view she was to be appropriately punished for the resultant harm to the victim even though she did not actually participate in the conduct that caused it. She was not only criminally responsible for the harm inflicted upon the victim in a technical, legalistic sense, but she also bore moral responsibility that was to be reflected in an appropriate sentence.
47 I do not accept that his Honour failed to take into account that the applicant was going to face her first custodial sentence. It was an obvious consideration once his Honour referred, as he did, to her criminal record. His failure to mention that fact does not mean that he did not take it into account and the sentence, in particular the non-parole period, discloses that he did. For my part, I simply cannot see any justification for a non-parole period less than that imposed by his Honour.
48 The fact that any custodial sentence was going to impact upon the innocent, such as her children and the applicant's mother, is not a matter that can avail her. They are not highly exceptional circumstances and cannot justify the avoidance or reduction of an appropriate sentence to reflect the seriousness of her offence and the importance of general deterrence. See Edwards (1996) 90 A Crim R 510 and R v Bednarz [2000] NSWCCA 533. The effect of a sentence on third parties is not one of the mitigating factors specified in s 21A and it is not a matter of mitigation in the present case.
49 It follows that in my view the sentence imposed by his Honour was well within his discretion and there is no error apparent in his remarks or to be inferred from the sentence imposed. In those circumstances I should look at the question of parity. But before I do, I will consider the challenge to his sentence by the applicant Newman.
50 The grounds of appeal relied upon in the case of the applicant Newman are that the sentencing judge failed to give appropriate weight to his "deprived upbringing and background as a mitigating feature on sentence" and that the sentence was manifestly excessive.
51 His Honour was, with respect, correct not to distinguish the culpability of this applicant from his co-offender Charles. The applicant was part of the initial violent attack upon the victim. He was present when Charles punched the victim in the face and produced the knife with which he threatened the victim. He then left the room, presumably to look for property to steal and not to gain assistance for the victim. He certainly made no effort or attempt to restrain Charles. When he returned the victim was wounded and obviously hurt. Again, rather than remonstrating with his co-offender or seeking to assist the victim, he helped his co-offender throw a mattress over the top of the hapless victim, as he lay injured on the floor.
52 He then took the victim's vehicle for his own personal use. He was charged with an offence of taking and driving the vehicle without consent and Judge Urquhart dealt with that matter on a Form 1.
53 The applicant was aged 23 years at the time of the offence. He has a significant criminal record dating from 1997. He received a sentence of imprisonment in 1999 for a number of dishonesty offences including break, enter and stealing. He has offences of violence and in November 2000 was sentenced to imprisonment for an assault occasioning actual bodily harm. In July 2002 he again received a gaol sentence for offences of violence including two offences of assault occasioning actual bodily harm. He had, on one occasion, received a bond with a term of supervision by the Probation and Parole Service, presumably in an endeavour to assist in his rehabilitation. There was no report from that Service requested for the purposes of his Honour sentencing him.
54 There was in evidence a psychological report setting out the applicant's background, which is as follows. He has never met his natural father and had a poor relationship with his de facto stepfather, who, he believed favoured his natural children at the expense of the applicant. He has moved for much of his life between living at home and living with members of his extended family. He has never had stable employment. He had attempted suicide on two occasions, once because he was sick of life and the other after the end of a relationship. He began drinking alcohol at the age of 13 years, used cannabis from the age of 14 years and commenced using amphetamine intravenously at age 17. He had used heroin since being returned to custody for the present offence.
55 The applicant indicated to the psychologist that he was ashamed of the offence and that at the time he was in debt by reason of his drug usage.
56 Psychological testing indicated that he was in the Below Average range of intelligence. The psychologist opined that the applicant had "grown up with a sense of resentment about the circumstances of his birth and a perception that he has always been treated unfairly…[h]e acts out his anger and resentment in antisocial patterns of behaviour and self destructiveness". The psychologist believed that the applicant was "emotionally and psychologically fragile and unstable and has attempted suicide twice in the recent past when he has perceived life was worst than usual". She thought that the applicant might be a suitable candidate for an anger management course while in custody and that he needed urgent assistance for his drug usage.
57 Counsel for the applicant relied heavily upon the, well known, but frequently misunderstood, decision of Wood CJ at CL in Fernando (1992) 76 A Crim R 58 in which the Chief Judge set out a number of principles that guide the sentencing of persons who live, or have been brought up, in Aboriginal communities. The principles enunciated in that case are as follows: