14 The applicant's background was summarised by the trial judge in the following terms:
The offender, Lew, was born in Singapore and is now aged thirty-six years. He came to Australia with his parents in 1979 when he was thirteen years old, attending a local high school for three years, leaving with his School Certificate in 1982. He has been in continuous employment since leaving school, lastly, of course, at the Market City Tavern. The offender has a large and supportive family. He was married for one year and has a daughter now aged twelve with whom he had regular and frequent contact until his arrest and incarceration. His daughter visited him once at the remand centre but was so frightened by the experience that she has not visited him since. Following his divorce the offender commenced another relationship which lasted for about five years. He is the father of another daughter, now aged seven years, who has visited him mostly with his parents but sometimes with her mother. In 1997 the offender married again. Lew has no significant criminal antecedents.
15 The applicant had a prior conviction in the Local Court for assault occasioning actual bodily harm in respect of which he was placed on a recognisance to be of good behaviour for two years. However, as is apparent, the trial judge clearly regarded that matter as having no significance to the present proceedings. That was a very generous finding particularly in view of the fact that the applicant was still subject to that recognisance, at least when the offence of 14 May was committed.
16 The trial judge then made the following observations concerning other aspects of the applicant's subjective case:
In many ways both Ng and Lew have been model prisoners, especially the offender, Lew, who has undertaken responsible work assisting Asian inmates to adjust to the correctional centre environment and avoid potential conflicts. An additional factor in Lew's case is that he pleaded guilty to the attempted robbery charge and indicated that he would do so at an early stage. He has also pleaded guilty to the charge of being an accessory before the fact of robbery and I should repeat here, as I have already pointed out, that this was robbery with an offensive, rather than a dangerous weapon, which is an important distinction in point of seriousness. Although in the circumstances his trial on the charge of murder was not thereby averted the plea simplified the trial significantly and involved admissions as to his complicity which the Crown could by no means have been confident of proving to the requisite degree of certainty. It seems to me that I should acknowledge the significance of those pleas in the sentence which I intend to impose. I regard it as significant from the point of view of the offender's chances of rehabilitation. … I accept that Lew's involvement in this crime was an aberration and that he is most unlikely to offend again.
17 The applicant does not contend that the trial judge fell into any error which can be identified. Nor is there any challenge to any of his Honour's findings of fact. Indeed the submission, when refined to its essence, is that given the favourable findings of fact which were made by the trial judge, the ultimate sentence which was imposed is manifestly excessive. It follows, it is submitted, that the trial judge concluded that his role was a rather limited one. In support of that proposition the applicant referred, in his written submissions, to the following features of the case:
· The applicant was a party to an agreement with Lo that there be a robbery at the Tavern, but his Honour accepted the applicant's version that the idea originated with Lo;
· the applicant's role in this plan was limited - in the attempt on 14 May 2003 he was to "turn a blind eye";
· the applicant had no knowledge or belief about any weapon being employed in the robbery apart from an item referred to as a " shopping trolley pole"; his Honour declined to find that the applicant contemplated the possibility that a gun or knife would be taken to the robbery;
· the applicant adverted to the possibility of the metal pole causing a wounding, but his Honour specifically refrained from finding that he adverted to the possibility of it causing grievous bodily harm;
· the applicant had no involvement in the planning for, or carrying out of, the robbery on 22 May 2003. In fact, he attempt (sic) to withdraw from the enterprise but had to concede that he had not done all that he reasonably could to undo the effect of his previous participation; and
· the applicant received no share of the substantial proceeds of the robbery on 22 May 2003.
18 The applicant submitted that his liability for the offence was "somewhat technical" in the sense that even though he was found not to have participated in the robbery on 22 May and indeed had sought to distance himself from it, he nonetheless had to concede his guilt of that offence because he had not done what the law regards as being sufficient to have withdrawn from the enterprise. See R v Tietie & ors (1988) 34 A Crim R 438; R v Truong (NSWCCA unreported 22 June 1998). The trial judge found that the applicant's conviction upon the primary count depended upon the operation of the felony-murder rule, in that the applicant was a party to the commission of the foundational offence of armed robbery with wounding which, pursuant to s 98 of the Crimes Act, attracts a maximum penalty of 25 years imprisonment. His Honour had also found that the applicant's conduct had placed him within the reach of s 98 because he had contemplated the possibility that the deceased would be wounded during the course of the armed robbery.
19 It is nevertheless accepted by the applicant that there is no impediment to a conviction being based upon a person's complicity which arises from his or her participation in a joint criminal enterprise in a felony murder. See R v Sharah (1992) 63 A Crim R 361; R v R & G (1995) 79 A Crim R 191. Nor did the applicant contend that a conviction which is based upon the operation of the felony-murder rule, is necessarily less serious than other forms of murder. See R v Mills (CCA unreported 3 April 1995).
20 Regardless of what legal ingredients provided the basis for the applicant's conviction, what remains of critical importance for sentencing purposes is an assessment of what act or acts he performed or omitted to perform in furthering the criminal enterprise and the consequences which relevantly flowed from that conduct.
21 In order to make that assessment, it is necessary to recall the context in which this offence occurred. The applicant gave evidence at the trial during the course of which, as counsel who appeared on his behalf in this court acknowledged, he had made a number of concessions concerning his complicity in various aspects of the overall enterprise. The applicant gave evidence the he had had lost about $3,500 whilst gambling at the tavern in the period shortly before the abortive robbery on 14 May. The applicant said that he had taken the money from the till even though he was not supposed to borrow money for the purpose of gambling.
22 The applicant said that he and Lo had had a conversation in the early hours of 13 May in which Lo had also asked him for a loan of $4,000. He said that he had then informed Lo that he had gambled away the $3,500. Thereafter, he said, Lo had discussed with him the plan to rob the premises. He said that Lo had promised him $15,000 for his assistance in facilitating the execution of the plan. The plan involved his turning a "blind eye" when Lo and his companion entered the premises to commit the robbery.
23 The applicant and Lo continued to maintain regular telephone and face to face contact after the failed robbery attempt. Indeed the applicant had initially believed that the robbery was to be rescheduled for the following day although it did not go ahead at that time either.
24 Eventually the applicant repaid the money which he had taken. This, he said, had eased his financial pressures. He said that he had informed Lo that the robbery attempt had been captured on the closed circuit television system and that he did not wish to continue his involvement in the scheme. Nevertheless the applicant said that Lo had told him that he still intended to proceed with it. Although the applicant expressed concerns about his doing so, he said that "[Lo] assure me that he can continue, he got the better plan to do it".
25 As the trial judge found, the applicant was, initially at least, a willing participant in the enterprise to rob the premises. He was aware that it would involve two offenders who were to be armed with an offensive weapon. He was aware that in order that the robbery could be carried out a metal pole was going to be used with sufficient force as would render the victim unconscious. He no doubt would also have appreciated, given that the deceased was a large man, that very considerable force would have been required to achieve that objective. He was also aware, as the trial judge found, of the possibility that the victim would, as a result of the blow or blows which were in contemplation, be wounded.
26 The applicant was undoubtedly, by reason of his position of responsibility in the business, very familiar with the layout of the premises and the work practices of the deceased who was ultimately responsible for the takings of the business. His knowledge of the tavern's business was no doubt important to the success of the overall plan. Indeed as the trial judge remarked, a significant aggravating feature of the applicant's conduct in participating in this offence was the fact that in doing so he had seriously abused the position of trust in which he had been placed by his employer.
27 The applicant's motivation for involving himself in this offence was the financial pressure that he was under at the time. He conceded in his evidence that "greed sort of overtook the whole thing". He said that he had wanted to use the proceeds of the robbery to cover the gambling debt which he had incurred to his employer in the hope that the debt would not be discovered. Understandably he was fearful of losing his job if it were to be discovered. His conduct was that of a man acting out of desperation.
28 The applicant, on his own admission, remained aware of the fact that Lo still intended to carry out the robbery. The trial judge found that the applicant "attempted to dissuade Lo from proceeding by saying that he would be identified from the video security and would be caught". His Honour also indicated that he was prepared to accept the applicant's evidence "about attempting to withdraw from his involvement in the crime". Accordingly his culpability is to be clearly differentiated from that of a person who continues to actively encourage the commission of an offence. Ultimately however the applicant did nothing of any material significance to prevent the commission of the robbery on 22 May notwithstanding that he well knew the circumstances in which it was to be carried out. He did not notify the deceased of what was in prospect for him and nor did he inform the police. His criminality is also to be measured to some extent by reference to the tragic consequences which flowed from his failure to do what he could to prevent the planned robbery from going ahead.
29 Nonetheless it is apparent that the trial judge has drawn a sharp distinction between the sentence which was imposed upon the applicant (namely one of 14 years) and those imposed upon his co-offenders Lo (30 years before the discount for factors which are absent in the applicant's case) and Ng (35 years) respectively. Without passing any comment about the appropriateness of either of those sentences, what that differentiation demonstrates is that the applicant's sentence has been significantly ameliorated to take into account in his favour the various matters which his Honour concluded had reduced his culpability for this very serious offence. It is accordingly clear that the trial judge imposed a sentence which had the effect of tempering the objective gravity of the applicant's conduct by reason of his efforts to withdraw from the enterprise albeit that they were ultimately ineffective. See R v Wright (CCA unreported 8 July 1997).
30 In passing sentence, his Honour no doubt had regard to a submission made on the applicant's behalf during the course of the sentence proceedings. The following exchange appears in the transcript:
HIGGINS: This is a matter where your Honour could impose a sentence on an accessory before the fact which is less than that received by one of the principals that being Mr Lo, despite a 40 per cent discount that he received for his assistance, age and cooperation generally with the police and plea of guilty that he received on sentence such that the total term for count 3 and 5 is capable of earning less than the 18 years imposed on Mr Lo.
…
HIS HONOUR: You are saying that the starting point for Mr Lo which is obvious when you do the maths is 30 years. The starting point for your client should be considerably less because his actual intent was less culpable than that of Lo.
HIGGINS: Yes and one step further: not only considerably less but would not be more than 18 for its total term, being the total term for Lo. The level of culpability of Lew could not be greater than that of Lo even with a 40 per cent discount for all those various features.
31 The trial judge, as I have said, imposed an effective overall sentence of 15 years and thus appears, in the exercise of his discretion, to have acceded to counsel's submission concerning the appropriate sentence.
32 This was, on any view of the matter, a very difficult sentencing exercise. His Honour was confronted with a highly unusual set of circumstances and there were a number of factors to be carefully weighed in the balance. Prominent amongst those considerations was the need to properly reflect in the sentence to be imposed, recognition of the fact that the applicant had on the one hand endeavoured to withdraw from the common enterprise but on the other had ultimately been ineffective in preventing it from being carried out.
33 In all the circumstances, I am not persuaded that the challenge to the head sentence has been made good. The trial judge however imposed a non-parole period which was in excess of the statutory proportion of 75% provided for by s 44(2) of the Crimes (Sentencing Procedure) Act 1999. Indeed the effective overall non-parole period imposed upon the applicant was 80% of the total sentence. It is to be noted that the trial judge imposed an effective overall non-parole period of 75% in respect of the co-offender Ng having determined in his case that there were no "special circumstances" such as to warrant a departure from the statutory proportion. His Honour does not however appear to have considered this question in respect of the current applicant. Certainly his Honour did not indicate why he had chosen to impose a non-parole period which exceeded the statutory proportion. In failing to do so, I am of the view that his Honour has inadvertently fallen into error. In those circumstances I have come to the view that the court should intervene and substitute a shorter non-parole period. I am of the view that it is appropriate to make a finding of "special circumstances" in the applicant's case by reason of the accumulation of the sentences which were imposed upon him. The adjustment will however be a modest one. In arriving at that conclusion, I have borne in mind the principles that govern the imposition of an appropriate non-parole period. See R v Simpson (2001) 53 NSWLR 704.
34 I would propose the following orders: