R v Smith

Court of Criminal Appeal (NSW)|2007-03-30|Before: Simpson J, Howie J, Hislop J

JUDGMENT OF: Simpson J at 1; Howie J at 70; Hislop J at 71

DECISION: Appeal allowed; sentences quashed; respondent resentenced as follows: Count 1 (taking into account the Form 1 offences): a fixed term of two years and nine months, commencing on 8 December 2005 and expiring on 7 September 2008; Counts 2 and 3: a fixed term of imprisonment for three years, commencing on 8 March 2006 and expiring on 7 March 2009; Counts 4 and 5: a fixed term of imprisonment for three years and three months, commencing on 8 June 2006 and expiring on 7 September 2009; Count 6: imprisonment with a non-parole period of three years and three months, commencing on 8 June 2006 and expiring on 7 September 2009, with a balance of term of one year and nine months, expiring on 7 June 2011.

Crimes Act 1900, s97(1) LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999, Part 3 Division 3 Law Enforcement (Powers and Responsibilities) Act 2002 Rail Safety (General) Regulation 2003

Everett v The Queen [1994] HCA 49; 181 CLR 295 Griffith v The Queen [1977] HCA 44; 137 CLR 293 R v Drollett [2002] NSWCCA 13 CASES CITED: R v Engert (1995) 84 A Crim R 67 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Speeding [2001] NSWCCA 105; 121 A Crim R 426 R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 R v Wall [2002] NSWCCA 42

PARTIES: Crown - Appellant Thomas James Smith - Respondent

COUNSEL: L Babb / J Caldwell - Crown A Francis - Respondent

SOLICITORS: S Kavanagh - Crown Mark Klees & Associates - Respondent

LOWER COURT FILE NUMBER(S): 06/21/1056; 06/21/1050

IN THE COURT OF CRIMINAL APPEAL 2006/2908

SIMPSON J HOWIE J HISLOP J

Thursday 12 April 2007 REGINA v Thomas James SMITH Judgment 1 SIMPSON J: This is a Crown appeal against the asserted manifest inadequacy of sentences imposed upon the respondent in the District Court by Hughes DCJ on 7 December 2006, following the respondent's pleas of guilty to six counts on an indictment. The respondent asked that a further four offences listed on a Form 1 be taken into account pursuant to Part 3 Division 3 of the Crimes (Sentencing Procedure) Act 1999 (the "Sentencing Procedure Act"). 2 The first count on the indictment was for an offence of assault with intent to rob whilst in company, committed on 14 November 2005. The remaining counts were all of robbery in company, representing offences committed, respectively, on 28 November 2005, 29 November 2005, 3 December 2005 and two on 4 December 2005. Each of the six offences carries, pursuant to s97(1) of the Crimes Act 1900, a maximum penalty of imprisonment for 20 years. 3 The offences on the Form 1 were of offensive language, custody of a knife in a public place, entering a restricted area without possessing a ticket (an offence against the Rail Safety (General) Regulation 2003), and refusing or failing to comply with a direction by a police officer (an offence against the Law Enforcement (Powers and Responsibilities) Act 2002). All were committed on 8 December 2005. 4 In respect of the first count on the indictment Hughes DCJ imposed a total term of imprisonment of three years, made up of a non-parole period of one year, and a balance of term of two years. 5 In respect of the third, his Honour imposed a total term of imprisonment also of three years, but divided equally into a non-parole period of one year and six months, and a balance of term of one year and six months. In respect of the remaining counts, numbered 2, 4, 5 and 6, his Honour imposed terms of imprisonment of three years and nine months, each made up of a non-parole period of two years and one month, and a balance of term of one year and eight months. At the request of the Crown, at the end of the sentencing exercise, his Honour stated that he had taken into account the Form 1 offences, but did not specify in respect of which count on the indictment he did so. 6 His Honour specified that each of the six sentences was to commence on 8 December 2005; that is, all six sentences are to be served concurrently. Accordingly, the total term of imprisonment to be served is of a non-parole period of two years and one month and balance of term of one year and eight months. 7 On behalf of the Crown it was submitted that these sentences were, in total, manifestly inadequate, and that discrete error, in four respects, can be discerned in the sentencing process. I will return shortly to deal with the Crown submissions.

Facts 8 All offences the subject of the indictment were committed over a six week period commencing on 14 November 2005 and concluding on 4 December 2005. All were essentially of the same kind, and of the kind seen far too often in this Court. They involved the respondent, in company with one or more others, entering some form of business premises, at night, and demanding money from the attendant; in four cases the attendant was assaulted, even in the absence of resistance. With that preface, it is possible to state the specifics of each offence briefly.

Count 1: 14 November 2005 9 At about 9.20 pm the respondent and a co-offender named Thomas Duffy entered a convenience store at Kingswood. They had their faces concealed. The respondent was carrying a 30 centimetre knife. He demanded money from the store manager, who secured his young brother and returned wielding a milk crate. This caused the two offenders to run from the store and dispose of the knife and the disguises. 10 The respondent was arrested shortly afterwards, charged, and released on bail.

Count 2: 28 November 2005 11 Shortly before 3.00 a.m. the respondent knocked on the locked entry door to a service station at Kingswood. The store attendant opened the door and allowed the respondent in. The respondent punched the attendant and threatened him, ordering him not to call the police, and telling him that there were three offenders present. Two co-offenders, with their faces concealed, entered the store and demanded that the attendant open the cash register. This he did. The offenders removed about $500 from the till and cigarettes worth about $500. They then left. The attendant suffered cuts and abrasions to his face.

Count 3: 29 November 2005 12 At about 2.30 am the respondent entered a service station at Berkshire Park, selected a drink, and approached the counter. He jumped over the counter, looked behind it, jumped the counter again and then motioned to three other men who were outside to enter. 13 A second staff member approached. One of the offenders approached this person and threatened him with violence, while the respondent and two other offenders again went behind the counter. They punched the first staff member twice, causing a small cut to his lip. They took money from the till and cigarettes; they then forced the second staff member to open a second cash register from which they removed more money. The total amount of money stolen was about $1,500. All offenders then ran from the scene.

Count 4: 3 December 2005 14 A group of offenders met at the home of one and agreed to rob the same Berkshire Park service station that was the subject of the previous count. They drove there at about 11.45 pm. Two of the men entered, selected a drink, and approached the counter. As the attendant took the item to scan it one of the men jumped the counter and grabbed hold of him. The other ran to the entry door and motioned to the two outside. The respondent approached the door, which was locked. He collected a trolley and rammed it against the glass entry doors. Shortly after, another of the offenders managed to open the doors. 15 All four took up a position around the attendant in an effort to intimidate him. They demanded that he open the cash register but he refused. The attendant was wearing a headdress of religious significance. One of the men removed it. The respondent punched the attendant, and pulled at his hair until the attendant opened the till. Two of the men removed approximately $300 from the till. They also took approximately $500 worth of cigarettes. All ran from the scene and were driven away. 16 Two of the co-offenders were Rhys McDicken and Christopher Allen.

Count 5: 4 December 2005 17 Following the events that gave rise to Count 4, the men agreed to drive to another service station, at Werrington, in order to rob it. They drove to the venue. At about 12.30 am on the following morning the respondent and another of the men knocked on the locked entry doors of the store attached to the service station. The attendant granted entry. The respondent selected a drink, and approached the counter, handing over money. When the attendant tendered change the respondent took hold of his arm and refused to release it. The other man attempted to open a glass door dividing the store from the staff area by kicking it. The two offenders then jumped through the security wiring in front of the attendant and punched him. The attendant was cowering and offering no resistance. The other offender removed a quantity of cigarettes from behind the counter whilst the respondent attempted to gain entry to the till. He was unable to do this. He pulled the attendant back to the register and demanded that he open the till. This he did. The respondent removed the contents of the till. The attendant continued to cower. The respondent punched the attendant on a number of occasions and kneed him to the head. The other offenders entered the store and placed cigarettes and confectionary in a bag. All fled with the proceeds and were driven away. 18 Again, two of the co-offenders were McDicken and Allen.

Count 6: 4 December 2005 19 Later on the same day the respondent, together with a number of other men, including some of those who had been present over the evening of 3 and 4 December (and again including McDicken and Allen), agreed to commit another robbery. This time they drove to a Liquorland store at Penrith. The respondent and three other men entered the store. One offender remained outside. The respondent punched the store attendant three times. Another staff member entered the store. The offenders directed him to the rear of the store and threw bottles of alcohol at both attendants. The attendants and the offenders became engaged in a wrestle. One of the offenders stole $370 from the cash register, while others stole an unknown quantity of alcohol. They fled to the car and drove to the home of one of the men. One of the attendants suffered bruising around his left eye. 20 On 8 December 2005 the respondent was arrested. A search was conducted of his home which yielded, inter alia, a number of unopened packets of cigarettes. The respondent claimed that he had bought these cigarettes but could not remember when. When interviewed, he declined to provide any information. Later, however, he submitted to the taking of a buccal swab for the purpose of DNA testing, and to having himself and his clothing photographed. On 7 April 2006 in the Local Court he entered pleas of guilty to all charges.

Subjective circumstances 21 Evidence of the respondent's subjective circumstances was put before his Honour in the form of a pre-sentence report, a psychiatric and psychological report, and oral evidence of the respondent. 22 He was born on 14 October 1987. He was therefore just 18 years of age at the time of the offences, 19 at sentencing. His only previous encounter with the criminal law was in September 2005, when he was convicted of common assault, in respect of which he was placed on a good behaviour bond for a period of nine months. 23 To the Probation and Parole officer who prepared the pre-sentence report he and his mother gave different accounts of his early life. He said that he had had a happy childhood, with no significant issues. His mother described his childhood as "quite turbulent". His parents separated when he was two years of age as a result of physical abuse on the part of the respondent's father. 24 The respondent contracted meningitis at three years of age and spent some time in hospital on a life support system. At the age of four he began to display violent tendencies and was diagnosed with Attention Deficit Hyperactivity Disorder at the age of seven. Medication has been prescribed but he has not adhered to it. 25 He left school at the age of 16, in year 10, having been suspended on a number of occasions for fighting. He has had two short-term jobs but has principally remained unemployed. 26 He became dependent on alcohol at about 16 years of age. He now drinks Bourbon. He began smoking cannabis at the age of 14 and crystal-methamphetamine at 16, and, at the time of his arrest, was a daily user. He had not sought help for any of his drug or alcohol issues. 27 This history was given to the Probation and Parole officer by the respondent's mother. The respondent gave to the psychologist a substantially different account. He said that his parents separated when he was around seven after his father had an extramarital relationship with his wife's sister; it seems that his father and aunt cohabited and two more children were born of the relationship. 28 Ms Katie Seidler, the psychologist, recorded that the respondent expressed no regret or remorse for his behaviour but described feeling "nothing at all" in relation to his offending. She hypothesised that this may be a function of a developing schizo-type or personality disorder. She described the respondent as "psychologically quite a disturbed young man". She recorded a history of thought disorder and experiences of quasi-psychotic symptomatology. She said that he appears to have "high levels of ruminative anxiety, probably associated with paranoid thinking". She also considered it possible that he has a congenital learning disorder affecting his ability to learn, understand and express himself in language. She said that his long-term memory functioning was poor. 29 Dr Allnutt, the psychiatrist who examined the respondent, agreed with Ms Seidler that the respondent was probably manifesting a pre-psychotic phase of illness, or mild symptoms of a developing psychotic disorder. He thought he could also be diagnosed with Derealization or Depersonalisation Disorder. 30 In his oral evidence the respondent confirmed his history of drug use, and some of the background circumstances given in a more detailed way in the two reports. He had had something of a change of heart in relation to his attitude to the offences. When asked how he felt about the victims he said: "Well pretty sad because they would have been frightened you know, so I feel pretty remorse about that and yeah I wish I didn't do it and that." He said he understood how they would have felt because he himself, and his parents, had been the victims of break and enters. The sentencing proceedings 31 The respondent and four co-offenders came before Hughes DCJ for sentencing. (Not all four were involved in all of the six offences to which the respondent pleaded guilty.) His Honour heard evidence and submissions on 6 December 2006 and sentenced all four on 7 December. He recounted the facts of the offences, and turned to the subjective material. He rejected a submission that he should find that the respondent was suffering from a mental illness. Presumably the submission was put with the intention of bringing the respondent within the principles stated in cases such as R v Engert (1995) 84 A Crim R 67. 32 Having regard to the fact that five of the offences were committed whilst the respondent was on bail, the sentencing judge was not optimistic about the respondent's prospects of rehabilitation. He (correctly) determined that, because of the seriousness of the offences, it was necessary that the respondent spend some time in full-time custody. He found, pursuant to s44 of Sentencing Procedure Act, that special circumstances existed justifying departure from the statutory ratio between the head sentence and the non-parole period there specified. He identified the special circumstances as the respondent's youth, the fact that he had never previously been convicted of any offence, and that he had shown some remorse (although he gave little weight to this last circumstance). 33 He then stated that he proposed to adopt the guideline promulgated in R v Henry [1999] NSWCCA 111; 46 NSWLR 346. In Henry, in relation to offences of armed robbery falling into a particular pattern, this Court promulgated a guideline (head) sentence of between four and five years. The pattern identified included a plea of guilty, although a late plea. His Honour found that the second offence "goes to the highest end of the Henry range" (apparently by reason of its having been committed while the respondent was on bail, and because of the violence involved) and began with a sentence of five years, which he then discounted by 25% in purported reliance on R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383. He made a similar finding (either expressly or by implication) in respect of each of the fourth, fifth and sixth offences, and took a similar approach, beginning with a sentence of five years and discounting it by 25%. Actual violence again appears to be the basis of the characterisation of the offences at the upper end of the Henry range. He made a specific finding that the third offence: "… should attract the lowest of the Henry suggestions …" and began with a four year head sentence, then discounted. He made no express corresponding finding in relation to the first offence, but, as he began with the head sentence of four years, it may be inferred that he regarded it as less serious than others. Having regard to the circumstance that the offence was not completed in the sense that the offenders left when confronted by the victim with a milk crate, and that the respondent was not then on bail, this may have been open to his Honour. It does, however, overlook the further important circumstance that the respondent was armed with a knife.

34 In purporting to apply his finding of special circumstances, his Honour varied what he called the "usual ratio" between the head sentence and the non-parole period; on the first offence, he sentenced the respondent to a non-parole period of 12 months with a balance of term of 24 months. (It is apparent that his Honour was under a misapprehension as to what is the "usual ratio": see paragraph 38 below.) He proceeded then to impose the sentences set out above, in each case varying the statutory ratio, but in different degrees.

The Crown appeal 35 The Crown sought to identify four discrete errors in the sentencing process. These were formulated as follows: "(a) His Honour failed to give sufficient weight to the fact that he was sentencing the respondent for a multiplicity of offences. (b) His Honour failed to give sufficient weight to the aggravating feature that five of the offences were committed whilst the respondent was on bail. (c) His Honour failed to give sufficient weight to the aggravating feature that the second, fourth, fifth and sixth offences involved gratuitous actual violence. (d) His Honour partially double counted the discount for the pleas of guilty." 36 Counsel for the respondent conceded error as contended in the first and last of these. The error disclosed in the first was failure to accumulate, or at least partially accumulate, some or all of the sentences. 37 The error in relation to the last involved a misunderstanding of the guidelines in Henry. This is because the features of the pattern of offences to which Henry applies include a plea of guilty, although (in contrast to the present case in which his Honour expressly found that the pleas of guilty were early pleas) a late plea of guilty. Accordingly, while the respondent may have been entitled to some additional discount by reason of the timing of his pleas of guilty, he could not have been entitled to 25% which is at the top of the range specified in Thomson and Houlton, and is partly already built into the Henry guideline. 38 His Honour was under a further misapprehension, that the statutory proportions called for by s44(2) of the Sentencing Procedure Act is "two thirds to one third" (ROS p 32). This is a misconstruction of s44; what s44 prescribes is, absent special circumstances, that the balance of term - i.e. the period during which the offender will be eligible for release on parole - does not exceed one third of the non-parole period. The statutory proportions therefore are 75%: 25%. 39 Counsel did not concede the errors contended in (b) and (c) above; she argued that, two errors having been demonstrated, it will be necessary for this Court to proceed to re-sentence, and that it is therefore unnecessary to take time determining whether the first instance sentences were infected by additional error. 40 This is, in my opinion, essentially incorrect. The concessions made on behalf of the respondent were properly made. The errors for which the Crown contends in (a) and (d) were indeed demonstrated. But that does not, of itself, oblige or even entitle this Court to re-sentence. That obligation or entitlement arises only if this Court is also of the view that the individual sentences (or the combination of sentences in their totality) are shown to be manifestly inadequate to meet the totality of the respondent's criminal behaviour. Patent error of the kind conceded may be relevant to explain how a manifestly inadequate sentence came to be imposed. It does not, of itself, trigger the jurisdiction of this Court to set aside a sentence and to sentence afresh. Nor does it establish manifest inadequacy. 41 To trigger the jurisdiction of this Court it is necessary that the Crown establish that the sentence imposed is outside the range of sentences legitimately available in the proper exercise of the sentencing discretion. 42 In Everett v The Queen [1994] HCA 49; 181 CLR 295, the majority (Brennan, Deane, Dawson and Gaudron JJ) quoted from Griffith v The Queen [1977] HCA 44; 137 CLR 293 (Barwick CJ) as follows: "…an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons." 43 Their Honours went on to identify the "matter of principle" in that passage: "… as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which Barwick CJ saw as constituting 'error in point of principle'." (p 300)

McHugh J said, in a passage which has been extensively quoted: "It is only when the Court of Criminal Appeal is convinced that the sentence is definitely outside the appropriate range that it is ever justified in granting leave to the Crown to appeal against the inadequacy of a sentence. Disagreement about the adequacy of a sentence is not enough to warrant the grant of leave. Sentencing is too inexact a science to make mere disagreement the criterion for the grant of leave to appeal against inadequacy of a sentence. The requirement of leave gives rise to the inference that Parliament intended that something more than mere error was to be the criterion of the grant of leave." 44 As will be apparent from the extracted passages, Everett was an appeal from a jurisdiction in which, unlike this jurisdiction, the Crown required the leave of the court in order to appeal against a sentence asserted to be manifestly inadequate. However, the observations are easily and equally applicable to this jurisdiction; Crown appeals against sentence should only succeed in the same circumstances as are required, in jurisdictions where leave is necessary, for the grant of leave. 45 Counsel also referred to the extensively quoted passage in the judgment of Wood CJ at CL in R v Wall [2002] NSWCCA 42 repeating the principles that apply to the determination of appeal by the Crown. The passage is so well known it is unnecessary yet again to reproduce it. 46 Counsel for the respondent relied heavily upon the decision of this Court in R v Adam Drollett [2002] NSWCCA 13, seeking to establish something of a benchmark that can be applied to the present case. Drollett was a case that had significant parallels with the present, but also some departures. Drollett also was a Crown appeal. Drollett was eighteen years and nine months at the time of the commission of the offences the subject of the judgment. He not only had a criminal record, and that for offences of the same kind; he was unlawfully at large at the time of the subject offences, having failed to return to custody following day release. He faced ten counts on an indictment, of offences against s97(1) or (2) - robbery whilst armed with a dangerous weapon, robbery whilst armed with an offensive weapon, or robbery in company. The maximum penalty of imprisonment applicable to the offence against s97(2) was imprisonment for 25 years; the other offences attract a maximum penalty of 20 years, as is here the case. 47 In addition, Drollett asked that a further 14 offences, predominantly of the same kind, listed on a Form 1 be taken into account. Accordingly, Drollett's criminality involved 24 separate offences. 48 At first instance Drollett was sentenced to an overall term of imprisonment for five years and six months with an effective non-parole period of four years, one month and fifteen days. All sentences were specified to be served concurrently. 49 This Court held that the overall term of the sentence was manifestly inadequate, and that the circumstances called for some measure of accumulation in the structure of the sentences imposed in respect of the ten offences to which Drollett pleaded guilty. 50 That that applies to the present case is, as I have set out above, conceded. This Court re-sentenced Drollett in such a way as to impose an effective head sentence of seven years, with a non-parole period of five years. 51 Counsel for the present respondent, however, pointed out (correctly) that Drollett's criminality was greater than that of the respondent in at least three respects - the number of offences for which he was being sentenced; the circumstances of his being at liberty; and that this was not the first time he had faced the court in relation to offences of the kind. 52 I accept that these are significant matters of variation, all in the respondent's favour. 53 Counsel for the respondent, in effect, sought to use this decision as a yardstick for the present case, urging that the differences, in the respondent's favour, should result in the reimposition of the sentences substantially as imposed by Hughes DCJ. 54 I am unable to accept that this is a correct approach. The decision in Drollett is no more than one instance of how this Court has dealt with a case that has significant parallels. It by no means prescribes the appropriate sentence and does not even amount to a yardstick. In any event, even after sentencing, the penalties imposed upon Drollett appear to be extraordinarily lenient. 55 Another decision, relied upon by the Crown, also demonstrating significant parallels, is to be found in R v Speeding [2001] NSWCCA 105; 121 A Crim R 426. Speeding was 19 years of age at the time of his offences. Over a five month period he committed six offences of robbery when armed with an offensive weapon (although one was charged, inexplicably, as robbery simpliciter). He was arrested and charged after the fourth offence, and was released on bail. He was accordingly (like the present respondent after his first offence) subject to conditional liberty when he committed the fifth and sixth offences. He was drug, alcohol, and gambling addicted, but had some prospects of overcoming the drug and alcohol addiction; less of overcoming the gambling addiction. 56 The sentencing judge considered the offences all to be typical Henry offences and that, therefore, the appropriate head sentence in each case was between four and five years. He then imposed a series of sentences escalating in severity. The escalation in severity was significantly ameliorated by an order that all sentences be served concurrently. The overall effect was a sentence of five years and three months with a non-parole period of two years and nine months. 57 A Crown appeal resulted in an adjustment of individual sentences together with an order that the sentences imposed in respect of the fifth and sixth offences (each of five years and three months, with a non-parole period of two years and nine months) be accumulated by two years on the earlier sentences. The net effect was a total sentence of seven years and three months with a non-parole period of four years and nine months. 58 Having regard to the post-appeal sentences imposed on Drollett, counsel for the respondent contended that the sentences imposed on the present respondent could not be seen to be "definitely outside the appropriate range" and ought, therefore, not to be the subject of intervention by this Court. Speeding, in my opinion, firmly establishes to the contrary. It is Drollett that is aberrational. 59 Alternatively, counsel argued, the Crown had not: "… displaced the operation of this Court's residual discretion to dismiss the Crown appeal." 60 This latter submission contains within it a fallacy. It is true that the Court retains a residual discretion to dismiss a Crown appeal which otherwise has merit; however, the onus lies upon the respondent to establish that that discretion ought to be exercised in his or her favour. No discretionary circumstances were identified that would justify the exercise of the discretion in the respondent's favour, if this Court were otherwise of the view that error that would attract the intervention of this Court had been established. 61 An attempt was made, somewhat faintly, I thought, to rely, as a relevant discretionary consideration, on the sentences imposed upon the co-offenders. This could not succeed. The sentences imposed upon each of the co-offenders were suspended. However, Duffy faced only one count on an indictment, asking that Form 1 offences, made up three offences of break, enter and steal, one of drive a conveyance without consent, and one of driving a vehicle displaying misleading numberplates, be taken into account. The sentence imposed upon him was a total period of two years and three months, with a non-parole period of nine months and a balance of term of eighteen months, which, as I have indicated, was suspended. McDicken faced three counts on an indictment, each committed in company with the respondent. On each he was sentenced to imprisonment for two years, made up of a non-parole period of six months, and a balance of term of eighteen months. Each was also suspended. 62 Allen pleaded guilty to the same three offences as McDicken. He was also sentenced to a head sentence of two years, but with a non-parole period of nine months and balance of term of fifteen months. He was allowed, not only a 25% discount for an early plea, but an additional 25% discount for assistance given, when he promptly acknowledged his guilt and implicated the co-offenders. 63 Of great significance in this respect is the circumstance that, when he committed all but one of the offences, the respondent was on bail in respect of the first. 64 That the attempt to introduce a parity argument into the question of the exercise of this Court's residual decision must fail is apparent, if for no other reason, by reference to express passage in the remarks on sentence. The judge noted that the respondent had not only participated in six offences, compared with one on the part of Duffy, and three each on the part of McDicken and Allen, but held that he had played "a more leading role than the others". Somewhat curiously, he also seems to have taken into account that the respondent "is not as well educated as the others". However, leaving that aside, he held that the use of violence in some of the offences elevated the objective seriousness of his criminality relative to that of the co-offenders. 65 Accordingly, I would reject the submission that the sentences imposed upon the respondent could be saved by reference to the sentences imposed upon the co-offenders. 66 In my opinion the Crown is plainly correct in its contentions. The guideline sentence promulgated in Henry (which is concerned with armed robberies, but is equally applicable to robbery in company) is of four to five years' head sentence, with an appropriate minimum term (depending, inter alia, upon whether or not special circumstances are found); as I have mentioned above, it incorporates some discount for a plea of guilty, although a late plea. It is also applicable where the offender is charged with a single offence. Multiplicity of offences plainly calls for a total sentence well in excess of the four to five years so promulgated. While it may be correct that each individual sentence could fall appropriately within the four to five year range, it must also be recognised that, as the offending continues, each succeeding offence calls for a greater punishment than the earlier, if only by way of personal deterrence. And to order that all sentences be served concurrently has the effect of neutralising, or at least minimising, the sentences applicable to the later offence. To sentence in that way does nothing to discourage sequential offending; indeed, it gives the appearance that once an offence has been committed, the offender has little or nothing to lose by repetition. 67 For a total of six offences, without even considering the Form 1 offences, the respondent's conduct required the imposition of a significantly lengthier overall term of imprisonment, by way both of head sentence and non-parole period. 68 I propose that this Court allow the appeal, quash the sentences and impose, in substitution, sentences that will produce an overall head sentence of five and a half years. I would not disturb the finding of special circumstances, and would, accordingly, impose an overall non-parole period of three years and nine months. Even this is barely adequate to recognise the criminality involved, or the affront to the victims. I propose it in acknowledgement of the well-known principles applicable to sentencing after a successful Crown appeal. I also have in mind the respondent's youth, and that the offences were committed over a short space of time. In relation to all counts except the last, I propose fixed terms, because any parole period would be subsumed in the later sentences, and there is no useful purpose to be served by making such an order. 69 I propose that the sentences be structured as follows:

Count 1 (taking into account the Form 1 offences): a fixed term of two years and nine months, commencing on 8 December 2005 and expiring on 7 September 2008;

Counts 2 and 3: a fixed term of imprisonment for three years, commencing on 8 March 2006 and expiring on 7 March 2009;

Counts 4 and 5: a fixed term of imprisonment for three years and three months, commencing on 8 June 2006 and expiring on 7 September 2009;

Count 6: imprisonment with a non-parole period of three years and three months, commencing on 8 June 2006 and expiring on 7 September 2009, with a balance of term of one year and nine months, expiring on 7 June 2011.

The earliest date on which the respondent would be eligible for release on parole is 7 September 2009. 70 HOWIE J: I agree with Simpson J. 71 HISLOP J: I agree with Simpson J.

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Cases Cited (7)