Ground (iii)
30 The third ground of appeal, as has been said, is that the sentence imposed by his Honour was manifestly excessive. It may be inferred that the ground was intended to refer to both sentences. The conclusions at which I have arrived mean that it is unnecessary to consider this ground in relation to the robbery with wounding count. However in relation to that count, the question still arises under s6(3) of the Criminal Appeal Act whether "some other sentence, whether more or less severe is warranted in law and should have been passed".
31 That question should be answered in the affirmative. A total sentence of 11 years for the robbery with wounding offence, after allowing a discount of 30% to which Judge Urquhart said the Applicant was entitled on account of his pleas and remorse, leads to a starting point of 15½ or 16 years. This is about two thirds of the maximum penalty of 25 years provided by the section of the Crimes Act against which the Applicant offended. Although his offence was bad, it was a long way short of a "worst case" which could arise under the section, i.e. one involving much more premeditation, much more money at stake and substantially greater injuries. And that comparison takes no account of the Applicant's youth.
32 Furthermore, 15½ or 16 years is also substantially more than the total sentence indicated by the standard non-parole period of 7 years for an offence under s98 specified in Part 1A of Division 4 of the Crimes (Sentencing Procedure) Act for an offence in the middle range of objective seriousness. As has been said, if there were added to the 7 years non-parole period a further term which did "not exceed one-third of the non-parole period", viz the normal further period contemplated by s44 of the Crimes (Sentencing Procedure) Act a total sentence of 9 1/3 years would result. There is no adequate reason for the disparity.
33 There are some other matters to which reference should be made. Some, for example motivation and the Applicant's mental state at the time, were regarded in R v Way as bearing on the "objective seriousness" - as those terms are used in Part 1A - of the offence. Such factors as are relevant here - the Applicant's anger, need for money and self-induced intoxication do nothing in the circumstances of this case to ameliorate his offending.
34 Among the other strictly subjective considerations, those which stand out are the Applicant's pleas and his youth. I have said sufficient in relation to the first of these.
35 I confess that my initial reaction was to give the topic of the Applicant's youth relatively little weight. As was said in R v Hearne [2001] NSWCCA 37 at [25-28] part of the rationale for making an allowance for an offender's youth is the immaturity which is generally an incident of that state but that "it takes no great maturity to appreciate in the course of planning for example, an armed robbery or other instance of violence that such activities infringe the rights of others in a way that no civilised society can tolerate". After all, children at kindergarten or primary school are taught not to take things from others by force.
36 Further reflection however has led me to the view that recognition must be afforded to the age at which the Applicant's life, to use a colloquialism, went off the rails. It was at an age where there is a deal of immaturity and in a manner such that immaturity was almost certainly a major contributing factor. It is not difficult to see the likely snowballing effect of the values, lifestyle and company he then chose.
37 Thus, although the gravity of the Applicant's offending was so obvious that even he, in an intoxicated state, should have been able to realise and avoid it, and accordingly his youth is not entitled to the significance it might have had in other circumstances, it still seems to me that appreciable weight must be given to the general principle, quoted in GDP (1991) 53 A Crim R 112, that:-
"in sentencing young people … the consideration of general deterrence is not as important as it would be in the case of sentencing an adult and considerations of rehabilitation should always be regarded as very important indeed"
38 As has been said, his Honour allowed a discount of 30% for the Applicant's remorse and pleas, a term by which I understand his Honour to have been referring to the utilitarian value of the pleas of guilty. I prefer to deal separately with the topics of the utilitarian value of pleas of guilty and remorse separately. It was conceded that the Applicant had pleaded guilty at the first available opportunity and accordingly, an appropriate allowance for the utilitarian value of the pleas is 25%.
39 As did Judge Urguhart, I take the view that the case is not one where the standard non-parole period should be imposed. My reasons for this conclusion lie principally in the Applicant's plea and his youth and, to a lesser extent because of the existence of special circumstances which justify a longer non-parole period than one third of the appropriate non-parole period. I turn then, as R v Way at [121] should occur, to normal sentencing practice. Notwithstanding the order of events envisaged by s44(1), I record that in my view an appropriate starting point for the determination of the sentence appropriate to the offence of robbery with wounding is 9 years. That period should be reduced by 25% on account of the Applicant's plea. Thus the total sentence for this offence should be 6¾ years imprisonment.
40 I make it clear that in so concluding I have taken into account the 3 offences on the Form 1 although in the circumstances of this case, I have not given them much weight. Those offences occurred as part of the criminality pursuant to which the offences charged were committed and their seriousness was less. Furthermore, they do not seem to me to add anything significant to the need for personal deterrence and retribution in this case - see Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999, No 1 of 2002 [2002] NSWCCA 518 at [42].
41 I have also taken into account the content of affidavits, admitted on the usual basis in the Applicant's appeal, and the variety of matters referred to in s21A of the Crimes (Sentencing Procedure) Act. I do not regard it as necessary to deal with these seriatim. Those of present appreciable significance are referred to in these reasons or in Judge Urquhart's remarks on sentence.
42 It remains necessary to consider the complaint that the sentence in respect of the offence of armed robbery was manifestly excessive. Upon the assumption the period of 6 years imprisonment imposed for this offence was arrived at after a discount of 30%, his Honour's starting point must have been 9 years.
43 In R v Henry (1999) 46 NSWLR 346, this Court set down as a guideline, that for an offence answering the description there detailed, a sentence of 4 to 5 years imprisonment was appropriate. Upon the basis that the guideline assumed a late plea of guilty - see R v Thomson and Houlton (2000) 49 NSWLR 383 at [161] - for which a discount of 10% is normally allowed - see R v Thomson and Houlton at [152-156], one may infer that the starting point must have been about 4½ to 5½ years.
44 In the commission of the offence against Mr Marlatt, the fact there were 3 offenders, the presence of 2 weapons and the Applicant's holding of the meat cleaver to Mr Marlatt's throat puts the objective characteristics of this offence at a level higher than the example given in R v Henry. Furthermore, the sentence imposed must have reflected to some extent the aggravating circumstance of one offence on the Form 1, an offence involving further property taken and, more significantly, another victim.
45 In that all that R v Henry sought to do was provide a guideline, it is implicit that a starting point higher than 5½ years for an offence falling precisely within the circumstances used as an example in that case is not inappropriate or wrong. I confess that once allowance is made for that fact, and the additional seriousness in the offence against Mr Marlatt, my mind has vacillated on the question of whether a starting point of 9 years can be regarded as manifestly excessive or outside the legitimate range of Judge Urquhart's sentencing discretion. Ultimately, the conclusion at which I have arrived is that the sentence imposed on the second count was outside that range. In arriving at that conclusion I am influenced particularly by the fact that, because the Applicant's irresponsible behaviour started as early as it did, his youth is entitled to more weight than is normally given to the youth of offenders of his age.
46 Having reached that conclusion, it becomes necessary for this Court to set an appropriate sentence for this offence. Although I would not regard this at the top or bottom of the range, I would use as a starting point 7 years. After an allowance of approximately 25% for the Applicant's plea, the sentence I would propose for this offence is 5 years. To reflect what Judge Urquhart did, I would divide this period equally into a non-parole and additional term.
47 Judge Urquhart made the sentence he imposed in respect of the offence against Mr Marlatt fully concurrent with that imposed on the more serious charge. Having regard to the fact that the second offence was committed half an hour or so later and in a different suburb and on another victim, that was not appropriate and while the principle of totality makes some concurrence necessary, there should have been some additional punishment for the second offence. The commencing date in the case of the offence against Mr Marlatt was 27 March 2003. In my view the commencing date for the robbery with wounding offence should be 6 months later.
48 That means the Applicant's effective sentence will be 7 years and 3 months. The concession and finding of special circumstances - a conclusion which the fact of accumulation of sentences reinforces - means that the effective non-parole period should be less than ¾ of this. In my view it should be 4 years.