17 The Crown submitted that the sentences resulted in an overall penalty which was manifestly inadequate. It was acknowledged that his Honour had made the appropriate findings, but it was said that the sentencing did not properly reflect the findings, so that the inadequacy was evident in the sentences themselves. It was said that the errors underlying the inadequacy could be perceived in four areas of his Honour's discharge of the sentencing task.
18 The first two errors were said to be that his Honour failed to give sufficient weight to the fact that he was sentencing the respondent for a multiplicity of offences and failed to give sufficient weight to the aggravating feature that two of the offences were committed whilst the respondent was on bail. It was pointed out that, although it was recognised that each offence fell within the criteria in R v Henry for a period of full-time imprisonment of between four and five years, for the cumulative effect of six offences committed over a relatively short period the result was a period of full-time imprisonment only three months in excess of the five years. Although his Honour acknowledged that there was exacerbation by the cumulation of offences, it was said that he did not adequately give effect to that acknowledgment; and that although he referred to commission of the last two offences whilst on bail, he did so more as to demonstrate the foolhardiness on the part of the respondent than as a factor aggravating the seriousness of the offences and did not adequately take account of that matter to the extent to which he regarded it as a factor aggravating the seriousness of the offences.
19 In my opinion there is force in the Crown's identification of the errors.
20 In R v Bavadra (2000) NSWCCA 292 this Court referred to the need to strike a proper balance between the principle of totality and the sentences to be imposed for individual counts, if necessary by directing cumulation of sentences. With reference to observations of Sully J in R v Wheeler (2000) NSWCCA 34, it was said that, as well as paying regard to totality, it was necessary to guard against a perception that a person who committed a number of offences in a deliberate course of criminal behaviour would not be effectively punished more severely than a person who committed one or two offences. That necessity, in my view, should be emphasised, and is important in the present case.
21 In the present case there was a deliberate course of criminal behaviour, over a period of six months and involving repeated offences. I consider that called for recognition by an effective penalty significantly greater than a sentence which might have been appropriate for one or two of the offences if they had stood alone. Further, the respondent's continuance of his deliberate course of criminal behaviour after he came under police notice, and after he had been charged with the robbery of 15 May 2000 and given the benefit of bail, was more than foolhardy. It showed a contempt for the law and the processes of the law, and a particular contempt when, having the benefit of bail conditioned upon being of good behaviour, the respondent soon engaged in two further offences. It is well-established, see for example R v Richards (1982) 2 NSWLR 464 at 465, that severely deterrent sentences will be imposed on those who abuse their freedom on bail by taking the opportunity to commit further crimes. This the respondent did.
22 The third error suggested by the Crown was failure to give sufficient weight to the serious impact which the Court regards such crimes as those presently in question as having on their victims.
23 His Honour recorded that statements in the Crown brief included some expressions of concern by the respondent at the time as to any injury those at the outlet might have feared. He instanced the respondent saying that he was sorry when the knife accidentally cut the hand of an employee at one outlet and three occasions on which the respondent said to those at the outlet that he was not going to hurt them. His Honour said that it appeared that the respondent had been concerned to reassure his prospective victims that he had no serious intention of hurting them, and this appears to have been what was behind his Honour's reference to a certain degree of compassion at the time of the commission of the offences for the plight of the persons in fear of their safety. His Honour did say that this concern to reassure had to be measured against the fact that the respondent did use a knife, and that quite clearly the purpose of the knife was to engender sufficient fear in the victims to persuade them to hand over the money which he stole and it was difficult to attach significant weight to the reassurances in the light of the production and use of the knife.
24 I would put it more strongly. I do not think any weight at all could be attached to the so-called reassurances. They were no more than an indication to the victims that they would not be hurt provided they did exactly what the respondent wanted, which cannot have been any real comfort to them. What his Honour said, to my mind, really did not properly address the effect on the victims which the statements of the victims placed before him revealed, being one of great distress notwithstanding reassuring words the respondent might have intended to have used. The so-called reassurance was unlikely to, and did not, detract from the threat of violence or alleviate the distress caused. When robbery is committed under the threat of a knife, I see no room for alleviating the seriousness of the offence and, as part of that seriousness, the possible traumatic effect on those threatened, by the use of so-called reassuring words.
25 The Courts must mark the entitlement of citizens to go about their business without the fear and distress occasioned by violence or use of an offensive weapon, and must appropriately deter such offences by paying full regard to the impact on the victims. I consider that in this respect also what the Crown suggested has force.
26 The Crown further submitted that there was no reasonable proportionality between the objective gravity of the crimes and the subjective matters material to the respondent, and that the objective gravity overwhelmed the subjective matters.
27 As the sentencing judge acknowledged, the subjective features must not overwhelm the primary duty of giving appropriate weight to the objective features of the crime: see for example R v Dodd (1991) 57 A Crim R 349 at 354. Foremost amongst the subjective matters in the present case was what his Honour regarded as an atypical descent by the respondent via alcohol, drugs and gambling to a period of criminality which the respondent genuinely regretted at the time he was sentenced. Nonetheless the sentence must appropriately reflect the seriousness of the crime, and the offences here were serious and were repeated. This was a case, in my view, in which the circumstances in which the respondent came to engage in his course of criminal conduct could properly be reflected in the finding of special circumstances, as they were, but that the seriousness of the offences called for greater recognition than is reflected in the sentences imposed.
28 Taking all these matters together, I conclude that the sentencing judge's discretion miscarried and that, in the result, there was manifest inadequacy. I pay full regard to the principles according to which a successful Crown appeal should be of some rarity, necessary to correct error of principle whether itself visible in the reasons of the sentencing judge or evidenced by the sentence being so inadequate as to manifest such error. Sentencing involves a substantial element of discretion and this Court does not intervene simply on the basis that its discretion would to have been exercised differently from that of the sentencing judge: see R v Allpass (1994) 73 A Crim R 561 at 562-3. I further pay full regard to considerations of double jeopardy, and to the submission put to us on behalf of the respondent that in the light of the respondent's embarkation on rehabilitation his sentence should not be increased so as to have the deleterious effect of disturbing the good prospects of rehabilitation. Nonetheless, to my mind this is a case in which the Crown appeal was warranted and should be upheld.
29 The question then is how to re-exercise the discretion.
30 In my view it would be appropriate to take a course by which the sentences for the offences committed on 15 September 2000 are 1 October 2000 were partially accumulated on the sentences for the earlier offences and there is adjustment of the sentences for the earlier offences.
31 I propose that, always subject to the same sixty-five days to which the sentencing judge referred, the sentences which his Honour imposed for the offences committed on 15 September 2000 and 1 October 2000 should remain as they are but to commence not on 14 December 2000 but on 14 December 2002. I would not adjust the sentence for the offence committed on 15 May 2000 because it may be that his Honour sentenced for that offence under a misapprehension that the charge was one of robbery whilst armed with an offensive weapon rather than robbery simpliciter; I would adjust the sentences for the three earlier offences, those committed on 29 April 2000 and 2 May 2000 and 4 May 2000, by increasing them to imprisonment for four years and six months with a non-parole period of eighteen months in each case. I repeat that the sixty-five days adjustment must also be made.
32 I therefore propose that five of the sentences be quashed and that in lieu thereof the respondent be sentenced in the manner I have described.
33 WOOD CJ at CL: I agree.
34 SIMPSON J: I also agree.
(Mr Craigie asked whether the elements of the sentence could be expressed in total terms so far as what it will mean to the respondent in terms of his overall sentence.)