Appeal
Grounds 1, 2, 4 and 6:
29 It is convenient to deal with these grounds of appeal together since they raise substantially the same issues. In these grounds the Crown asserts error in that the sentences failed to reflect the objective seriousness of the offences, a failure to apply Pearce v The Queen (1994) 194 CLR 610, and a failure to take into account the offences on the Form 1 in relation to count 1. Ground 6 asserts error in passing a sentence which in total was manifestly inadequate.
30 I do not accept that the sentences imposed individually failed to reflect the objective seriousness of the offences. It is clear from his Honour's remarks on sentence that he not only took into account the guideline judgment in Henry but that he applied it. His Honour was conscious of the fact that the criminality in counts 1 - 3 exceeded that described in Henry and the individual sentences reflect that.
31 It is true that his Honour appears to have overlooked the fact that the respondent was subject to Control Orders made by the Children's Court at the time when these offences were committed. Whilst this is clearly an aggravating factor, it is not one which would necessarily require this Court to intervene and re-sentence. In fairness to his Honour, this was not a matter which was brought to his attention by the Crown during the sentencing proceedings.
32 It also needs to be kept in mind that the sentences ultimately passed by his Honour were arrived at not only by a consideration of the objective seriousness of the offences and matters such as general and specific deterrence, but also as a result of a consideration of the respondent's strong subjective case with particular reference to his unfortunate upbringing, his early addiction to heroin and his age, both at the time when the offences were committed and at the time of sentencing.
33 I am not persuaded that the Crown has made out its first ground of appeal.
34 Pearce is authority for the proposition that a sentencing judge should fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence in the context of appropriately taking into account the principles of proportionality and totality. The Crown submits that it is apparent from his Honour's remarks on sentence, and from the fact that the sentences in respect of counts 2 and 3 were fully concurrent, that his Honour failed to properly apply Pearce.
35 The Crown specifically refers to ROS 13.6 where his Honour said:
"With all these things being said I have decided to impose sentences which will see him in custody for at least 6 years."
36 The Crown submits that his Honour then sought to tailor the sentences in respect of each offence to bring about that result. In particular, the Crown submits, his Honour impermissibly made the sentences for counts 2 and 3 concurrent.
37 In R v Cahyahi (2000) 168 A Crim R 41 at [27] Howie J (with whom Adams and Price JJ agreed) said:
"27 In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both."
38 In R v Nguyen [2007] NSWCCA 14 at [12] Howie J (with whom Sully and Price JJ) agreed, referring to Cahyahi said:
"It seems obvious from a number of matters that have been before this Court recently, that there is abroad an insufficient understanding of the principles of totality and of the relevant factors to be taken into account when determining whether to order that sentences be served concurrently or made, at least, partially cumulative. There is no rule that sentences for offences committed on the same day, or in the same criminal enterprise, should be served concurrently. The issue has been considered in a number of decisions of this Court that should make it plain that the question to be asked is whether the criminality of one offence can be encompassed in the criminality of the other offence …"
39 It is clear when one looks at counts 2 and 3 that the offences were quite separate and each involved significant criminality. They were offences which involved not only a threat of violence but actual violence and each individually was arguably more serious than the offence in count 1. Applying the principle of totality, it is clear that his Honour failed to structure the sentences in respect of counts 2 and 3 to appropriately reflect the criminality involved.
40 The application of the principle of totality in such circumstances was explained by this Court in R v MMK [2006] NSWCCA 272 at [13] where Spigelman CJ, Whealy and Howie JJ said:
"13 In some cases the fact that a sentence for a particular offence is to be served completely concurrently with another sentence for a different offence will result in a sentence that is erroneously inadequate because it does not reflect the totality of the criminality for which the offender was to be punished for the two acts of offending: see for example R v Brown [1999] NSWCCA 323. This may be so even if the two offences arise from the same precise criminal act, such as the dangerous driving of a motor vehicle on the one occasion: R v Janceski (No 2) [2005] NSWCCA 288. The same principle has been applied to sexual assault offences arising from a single incident of sexual assault: R v Gorman (2002) 137 A Crim R 326. Although, it has been held that a determination of the extent, if any, that a sentence is to be served cumulatively with another sentence is an exercise of discretion on which minds might differ, R v Hammoud (2000) 118 A Crim R 66, that discretion is generally circumscribed by a proper application of the principle of totality."
41 I am satisfied that the Crown has made out its second ground of appeal.
42 The Crown submits that although his Honour referred to the five matters on the Form 1 in respect of count 1, it was not apparent that he gave any effect to this when formulating his sentence in respect of count 1. This was particularly so when included on the Form 1 was the attempted armed robbery with a dangerous weapon of the Bank of Queensland at Flemington. The Crown relied upon the guideline judgment in Re: Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) [2002] NSWCCA 518; (2002) 56 NSWLR 146.
43 It is true that in the Attorney-General's Application under s 37 at [42] Spigelman CJ said that in such situations greater weight is given to personal deterrence and to "the community's entitlement to extract retribution for serious offences ... for which no punishment has in fact been imposed" when passing sentence in respect of offences to which a Form 1 is attached. The Chief Justice pointed out, however, that this principle can be qualified by considerations relating to the maximum penalty for the primary offence and considerations relating to totality.
44 Of the three robberies to which counts 1 - 3 relate, the least level of criminality probably attaches to count 1. The fact that his Honour imposed the same sentence in respect of that count as he did for counts 2 and 3 may indicate that his Honour took into account the matters on the Form 1 to some extent. If his Honour did have regard to the Form 1 matters when sentencing for count 1, he should have said so and indicated their effect. In view of the seriousness of the matters on the Form 1 and his Honour's failure to make any reference to it when sentencing in respect of count 1, I am not persuaded that his Honour did in fact take the Form 1 into account when passing that sentence. Accordingly, the Crown has made out ground of appeal 4.
45 Ground of appeal 6 does no more than pick up the matters to which reference has already been made and there is no need to consider it further.
46 In ground of appeal 3, the Crown complains that his Honour was unduly lenient in backdating the sentences to commence on the date when the respondent was charged. The Crown submits that the effect of that decision was to subsume the non-parole periods imposed in respect of the respondent's previous convictions for assault with intent to rob, which had been imposed by the Children's Court.
47 I do not agree. His Honour was well aware that his decision to backdate the commencement of the sentences did involve leniency. He referred specifically to this and to the respondent's youth. This was an appropriate matter for his Honour to take into account and involved an exercise by his Honour of the discretion referred to in Markarian v The Queen [2005] HCA 25, (2005) 228 CLR 357 with which this Court should not interfere, unless error has otherwise been identified.
48 The Crown has not made out this ground of appeal.
49 In ground 5 the Crown submits that his Honour erred in his approach to sentencing for count 4. That was an offence to which a standard non-parole period of 3 years applied. The Crown submits that in sentencing for this offence his Honour should have determined where that offence fell in the range of objective seriousness for offences of that kind before passing sentence.
50 The Crown's complaint is justified. This Court has said on a number of occasions, starting with R v Way [2004] NSWCCA 131, (2004) 16 NSWLR 168, that in relation to offences where a standard non-parole period applies and that standard non-parole period is varied, the reasons for the variation must be recorded expressly in the Remarks on Sentence and each factor taken into account must be specifically identified. Nevertheless, as s 54B of the Crimes (Sentencing Procedure) Act 1999 makes clear, the failure of a court to comply with that procedure does not necessarily invalidate the sentence.
51 In this case his Honour was aware that a standard non-parole period applied to this offence. In his Remarks on Sentence his Honour made it clear that he regarded this offence as being a serious example of offences of this kind. That having been said, his Honour was entitled to have regard to the fact that a plea of guilty had been entered and that this offence was one of a number of offences for which sentences were to be passed so that considerations of totality had to apply. I am not persuaded that his Honour erred in passing a sentence with a non-parole period which was less than the standard non-parole period prescribed.
52 It is, however, most unfortunate that, despite the large number of decisions of this Court stating unequivocally that sentencing courts should follow a certain process and expose their reasoning when dealing with offences having a standard non-parole period, his Honour has so comprehensively failed to do so.