R v Thomas

CATCHWORDS: CRIMINAL LAW - Crown Appeal - Sentencing - Misapplication of guideline judgment - Aggravated robbery - Discount for plea - Remorse - Special circumstances - Manifest Inadequacy - Appeal allowed - Defendant re-sentenced.

Crimes Act 1900 (NSW) LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Wong v The Queen (2001) 207 CLR 584

Dinsdale v The Queen (2000) 202 CLR 321 Johnson v The Queen (2004) 78 ALJR 616 R v Henry (1999) 46 NSWLR 346 CASES CITED: R v Prasad (2004) 147 A Crim R 385 R v Slack [2004] NSWCCA 128 R v Tran [2004] NSWCCA 6 R v Wall [2002] NSWCCA 42 Regina v Cox [2004] NSWCCA 413

PARTIES: Regina (Appellant) Matthew Ryan Thomas (Respondent)

COUNSEL: D. Woodburne (Crown) H. Dhanji (Respondent)

SOLICITORS: S. Kavanagh (ODPP) J. Burdon (LAC)

IN THE COURT OF CRIMINAL APPEAL CCA 2007/3228

BASTEN JA LATHAM J ROTHMAN J

15 NOVEMBER 2007 REGINA v Matthew Ryan THOMAS Judgment 1 BASTEN JA: This case involved an appeal brought by the Director of Public Prosecutions (NSW) against two sentences imposed on the Respondent, the appeal being brought pursuant to s 5D of the Criminal Appeal Act 1912 (NSW). For the reasons set out below, the Director has made good the contention that the sentences are manifestly inadequate. He has further made good the submission that this Court should properly intervene and that the Respondent should be resentenced. First robbery 2 The first charge against the Respondent involved robbery in circumstances of aggravation with wounding, contrary to s 96 of the Crimes Act 1900 (NSW). The circumstance of aggravation (as identified in s 95(2)) was the use of corporal violence. That conduct resulted in the victim suffering wounds, which brought the matter within the more serious offence under s 96, carrying a maximum sentence of 25 years imprisonment. It is not, however, subject to a standard non-parole period: c.f. Crimes (Sentencing Procedure) Act 1999 (NSW), Div 1A. 3 The offence occurred at about 8.30pm on 2 March 2005 at Parramatta. The victim, Mr Ciaron McCullough, was making a telephone call from a public phone booth. He had with him three large bottles of beer, one of which was open and from which he had been drinking. He was approached by Mr Thomas, who made some remark about wanting to use the telephone. The trial judge found that Mr Thomas had been in a red Ford Laser when he saw Mr McCullough and said to the driver: "Stop the car, there's a guy with a long-neck at the pay phone and I'm going to take it." 4 What happened in the phone booth was in dispute, but his Honour found that "it was Thomas who scared the victim whilst at the box and caused him to run": at [22]. His Honour continued: "I have no doubt that that was done through threats, abuse and striking him." 5 Mr McCullough sought to run away carrying at least the two unopened bottles of beer with him. Whilst running, he was either tripped or struck from behind and fell. His Honour continued: "[26] I cannot be satisfied that the victim was struck with anything prior to falling to the ground as he claimed. I am satisfied beyond reasonable doubt that the offender struck the victim a number of times by kicking actions at a time when the victim was on the ground. …." 6 Mr McCullough suffered a number of serious injuries. These included a 2.5cm laceration to the back of his head, with surrounding bruising. There was another head wound and a significant swelling over the nose, which had been fractured. There was also an injury to the right shoulder. Photographs taken at the time showed Mr McCullough with blood on his chest and shirt and blood was found on the clothing worn by Mr Thomas. 7 There was another young man with Mr Thomas at the time of the assault and the trial judge found that, whilst Mr McCullough was on the ground, both men "started belting into" him. His Honour continued at [19]: "[McCullough] managed to hold the offender's leg. As best I can tell, the offender then started kicking with his other leg. McCullough managed to hold onto both of this offender's legs. Whether the offender panicked or whether he decided to end the situation then and there, he picked up the plastic bag containing the bottles of VB, swung them over his shoulder and hit [McCullough] in the back of the head with the bottles. He then picked up one of the VB bottles from the ground and he and [the other young man] retreated to the Ford Laser." 8 The assault had been witnessed and police were informed by a member of the public. A short time later, the red Ford Laser was found in a service station and Mr Thomas was arrested. A bottle of beer was found in the back of the car and, as already noted, blood, which proved to be that of Mr McCullough, was found on Mr Thomas' clothing. 9 His Honour noted at [30]: "The [McCullough] robbery was an opportunistic response to seeing a drunken man alone with alcohol. In this robbery Thomas did take a leadership role in that he initiated the approach and the necessary episode of violence to commit the robbery at the phone booth. The proceedings [proceeds?] for this appalling level of violence amount to one bottle of beer." 10 At [61], his Honour noted: "He has expressed remorse for the [McCullough] robbery. He pleaded guilty to the offence, a plea based upon accepting responsibility for his offending conduct." 11 This finding must be placed in its evidential context. At the time of his arrest on 2 March 2005, Mr Thomas told the police a story which was not only untrue but implausible. He claimed that the blood stains resulted from an injury he had suffered at work: there was no visible wound and the blood on the clothing proved to be that of Mr McCullough. He also told the police that he had been waiting to use the public phone and, on asking Mr McCullough how long he would be, had been assaulted and had had to defend himself. That story was also inherently implausible and incapable of explaining Mr McCullough's flight and his pursuit of his victim. Mr Thomas also denied that there was anyone else with him at the time of the altercation and denied that he had taken anything from Mr McCullough. 12 After charges were laid, Mr Thomas did not plead guilty but was committed for trial by the Parramatta Local Court on 3 November 2005. The trial was fixed before the Parramatta District Court, to commence on 13 February 2006. A plea of guilty was entered on the date scheduled for the trial: at [68]. However, various factual matters remained in dispute, as a result of which it was necessary for the prosecution to call Mr McCullough as a witness. He was cross-examined by counsel for Mr Thomas. That evidence was given on 15 December 2006, at which time the young person who had been with Mr Thomas at the time of the offence was also called for the prosecution. Mr Thomas then gave evidence which was consistent with his story to the police and contained the following answers (Tcpt, p 30): "Q. As you were driving along or as being a passenger in the vehicle in Macquarie Street at Parramatta did something happen? A. Yes. Q. What happened? A. I said, 'Can you pull over so I can use the phone?' and I got out of the car, [the young person] got out behind me, and I went over to use the phone and some person was in there. Q. Just pause there. Prior to [the young person] leaving the car did you have any discussions with him? A. No. Q. Did he tell you that he was leaving the car? A. No. Q. Do you know why he left the car? A. No. Q. You went over to the phone booth? A. Yeah. Q. What happened there? A. I go to the man, I go 'Could I use the phone please?' and he goes, 'I won't be long.' Q. Pause there. What happened next? A. He goes, 'All right then'. I waited for about five minutes and I go, 'Are you going to be much longer, mate?' and then he turned around, chucked a beer bottle at me, it landed right next to my foot, smashed, and then ran at me and punched me in the face and then as soon as that happened he ran straight across the road towards through the mall and-- Q. What did you do, if anything? A. I didn't do nothing at the time until I seen [the young person] chase after him and-- Q. What did you do? A. I went after him as well. Q. Why did you do that? A. To be honest I don't know, I was - I got hit in the face and something just went through my mind, just chase him. Q. Did you catch up to him? A. Yes. Q. Where was he in relation to you when you caught up to him? A. Halfway through the mall towards Hungry Jacks. Q. Was he on the ground? A. Yes. Q. Did you see how he got to the ground? A. [The young person] knocked him over. Q. So [the young person] got to him before you did? A. Yeah. Q. Did you see what [the young person] was doing? A. Punching him and kicking him. Q. What did you do upon arrival? A. I come straight down and punched him about three or four times. Q. Where? A. In the face and he grabbed my arm and then he wouldn't let go so I gave him another punch to the face and then he let go and then I ran. Q. Did you kick him at all? A. No. Q. Whatsoever? A. Not at all. Q. Did you see whether or not he was carrying anything? A. No. Q. You heard [the young person] say that you took hold of a plastic bag that contained bottles of beer, did you hear him say that? A. Yes. Q. And that you swung it over your shoulder cricket ball bowling style and hit the man on the ground with it to the head, did you do that? A. No. Q. What did you do after you assaulted him? A. I ran towards the car that was in Macquarie Street and opened the door, the back door, and jumped into it. Then [the young person] jumped in and then we drove off. Q. Did you have a bottle of beer in your hand? A. No." 13 The matter was adjourned part-heard and came back before the District Court on 22 December 2006. At that stage, there was a foreshadowed application to withdraw the plea of guilty. Counsel then appearing for the accused sought an opportunity to consider the evidence given by the co-offender and the matter was adjourned to 25 January 2007. At that stage the application to withdraw the plea was itself withdrawn and Mr Thomas proceeded with his evidence. He was led through much of what he had said on the previous occasion with questions in the following form (Tcpt, p 4): "Q. And you said on the last occasion, and do you still say that he turned around and chucked a beer bottle at you? A. Yes. Q. And it landed next to your foot and smashed? A. Yes. Q. Do you still say he ran at you and punched you in the face? A. Yes." 14 Mr Thomas also adhered to the statement that he had not swung the plastic bag with the beer bottles and hit Mr McCullough in the head but he did admit that he took a bottle of beer back to the car and that he intended to steal it, although he claimed not to recall that. He was cross-examined in relation to the key points of difference between the story he had recounted and the facts as described by the prosecution witnesses. He adhered to his evidence. 15 On 25 January 2007, under further cross-examination, he was asked by the prosecution (Tcpt, pp 16-17): "Q. You'd accept that it was cowardly on your part, the attack on this man, when there were two of you assaulting him when he was on the ground? A. Yes that's right." In re-examination, the following evidence was led (Tcpt, p 19):

"Q. It was put to you that … it was cowardly for you to attack this man on the ground with two persons being involved, and you agreed that it was? A. Yes I do. Q. Would you normally act in this way if you hadn't been drinking? A. No not at all. Q. Are you ashamed of having acted in this cowardly fashion? A. Yes I am." 16 The matter was again stood over part-heard until 16 February 2007, so that his former counsel could be present during any cross-examination as to the circumstances of his plea. Counsel did not fully explain his position, which he felt constrained from doing by ethical considerations. He did however state before withdrawing (Tcpt, p 2): "But given the subjective material that will be tendered on behalf of Mr Thomas, which was obtained by my instructing solicitor, I must add, and now given to Mr Steel, one important feature of it, as your Honour will no doubt read, is that with respect to the facts of the trial he maintains his innocence. So I would not be in any way saying anything about remorse, contrition, facts and that sort of stuff." 17 The matter was again adjourned and there was further hearing of the sentence proceeding on 23 February 2007, at which time he was represented by Mr Steel. Submissions were put in favour of acceptance of his evidence in relation to the disputed facts. After noting the evidence about the cowardly act, counsel submitted that "there is genuine remorse": Tcpt, p 18. 18 The other evidence of remorse is recorded in a report dated 13 December 2006, prepared by a psychologist, Mr Peter Ashkar. Mr Ashkar reported: "He accepts responsibility for the … offence. He tells me he was heavily intoxicated on bourbon when he committed this offence. … He also tells me he was in the company of antisocial peers at this time. He attributes his offending behaviour to his alcohol use at that time.

Matthew expresses considerable regret and remorse over his offending behaviour: 'I was definitely in the wrong … . I'm sorry … I do feel bad for doing it … I've learnt my lesson … Never to get in trouble again … It's just not worth it'." 19 The failure of Mr Thomas to give evidence to that effect himself in the witness box; his continued adherence, through many days of hearing, to an implausible story which was disbelieved, but constituted a significant attempt to diminish his responsibility for the offence, and the fact that he committed a further serious offence less than a month later, all require consideration in assessing the genuineness of remorse and the extent to which his expression of remorse can mitigate an otherwise appropriate sentence. A finding of genuine remorse should not be made lightly, especially in circumstances where there are contra-indications. A sentencing judge should indicate the manner in which he or she has taken into account the possibility that expressions of regret may be triggered by the threat of incarceration. On the other hand, it is fair to say in the present case that his Honour accepted the genuineness of his attempts to overcome abuse of alcohol which would provide a basis for the conclusion that there was a genuine attempt to address an underlying cause of the violent behaviour. 20 The belated and equivocal plea was relied upon as a basis for a significant reduction in sentence. Apart from the finding of remorse, there must be a serious doubt in relation to the appropriateness of a 15% reduction for a guilty plea in this case: Judgment on sentence, at [88]. 21 The sentencing judge set out in careful detail the subjective factors derived from Mr Thomas' history and circumstances. To some extent they were inconsequential and, to some extent peripheral, and need not be repeated. Suffice it to say, they were substantially favourable and revealed nothing adverse to his case. 22 It was common ground between the parties that both the trial judge and this Court were entitled to take account of the sentencing guideline promulgated in R v Henry (1999) 46 NSWLR 346 at [162] in relation to an offence of armed robbery under s 97, having the following characteristics:

(i) young offender with no or little criminal history; (ii) weapon like a knife, capable of killing or inflicting serious injury; (iii) limited degree of planning; (iv) limited, if any, actual violence but a real threat thereof; (v) victim in a vulnerable position such as a shopkeeper or taxi driver; (vi) small amount taken; (vii) a late plea of guilty, the significance of which is limited by a strong prosecution case. 23 An offence of this kind, taking into account the factors noted, would justify a sentence of between four and five years. 24 It is clear that factors (i), (iii), (v), (vi) and (vii) could properly be treated as satisfied in the present case. Mr Thomas was a young offender, being approximately 20 years of age at the time of the offence, and had no criminal history. The amount taken was small and there was a late plea of guilty, the significance of which was limited not only by a strong prosecution case, but also by a continued dispute as to the seriousness of the conduct. The offence was described as opportunistic by the trial judge, which is a fair description of the circumstances in which it occurred. It may therefore be said that there was no planning, rather than planning in a "limited degree". On the other hand, Mr Thomas sought support from another of the group in the car, in case he should be thwarted in his attempted robbery and also instructed the driver to remain ready to drive off, should a speedy escape be necessary. The victim was not in a vulnerable position (condition (v)) in the sense of being in a vulnerable occupation; he was however seriously affected by liquor and was alone, albeit in an area where there may have been other members of the public in the vicinity and after dark but not in the later hours of the night. Vulnerability caused by inebriation may not be in the same category as occupational vulnerability, but there was no finding, or suggestion, that Mr Thomas was conscious of the degree of inebriation of Mr McCullough, prior to the attack. 25 There remain considerations (ii) and (iv). Mr Thomas did not carry a weapon capable of killing or inflicting serious injury, but he did use the bag containing the full bottles of beer as a weapon in the course of the robbery. Further, there was actual violence of a moderately serious kind. No precise weighting of these factors is possible, but what must be placed in the balance is the fact that the offence with which Mr Thomas was charged carried a maximum penalty of 25 years, whereas the Henry guideline related to an offence carrying a maximum penalty of 20 years. 26 The sentencing judge made express reference to the guidelines identified in R v Henry. In that he was correct. He chose a sentence of four years, which was at the low end of the range specified in Henry, but which was capable of justification on the basis of the subjective circumstances which he appears already to have taken in to account by that stage of his judgment: at [88]. His departure from the guideline involved a reduction of 15% for the plea of guilty. Variation from the guideline does not of itself demonstrate error. However, one element contained within the guideline was the effect of a late plea of guilty. This was not a case in which any additional reduction was called for: indeed, the lateness of the plea and the circumstances of continued agitation of the facts, together with his Honour's disbelief of significant aspects of the testimony given by Mr Thomas should rather have required consideration as to whether any allowance at all was appropriate. Clearly the further reduction was not appropriate. The proper course was to impose a sentence of not less than four years imprisonment. 27 The next question involves the determination of a non-parole period in relation to this offence. The sentencing judge imposed a non-parole period of 18 months, with a balance of 23 months, the balance being 128% of the non-parole period. Pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act, the balance should not have exceeded one-third of the non-parole period unless the Court decided that there were special circumstances. In order to achieve an overall sentence of 48 months, absent special circumstances, a non-parole period of not less than 36 months is required. 28 His Honour made a finding of special circumstances at [76]-[78]. He relied on the fact that Mr Thomas was a young man, that it was his first period in custody and that his rehabilitation would be better advanced in a community setting. The factors included his change in attitude towards alcohol abuse, the existence of a supportive family, a good employment record and his apparent insight into his offending behaviour and its causes: at [60], [74], [75] and [78].

29 It was not entirely clear whether the Director challenged the finding of special circumstances, although he did complain that various factors had been impermissibly taken into account twice. Nevertheless, there is no error demonstrated in relation to the finding and the power to vary the relationship between the non-parole period and the balance of the term of the sentence was properly available to his Honour. 30 The question remains, however, whether the imposition of a custodial term of 18 months was justifiable in the circumstances. A custodial period constituting less than half the appropriate sentence itself requires justification. The obligation imposed by s 44(2) to provide reasons for the decision that there are special circumstances, when taken with the general obligation of a Court to give reasons for its decisions, should be understood as requiring some explanation of the reason for the degree of departure from the standard relationship, at least in the case of such a significant departure as that adopted in this matter. The objective elements of the offence indicate that a non-parole period of less than two years was manifestly inadequate. 31 There remains a question as to whether, in accordance with general law principles, the Court should exercise its discretion to intervene. It is appropriate to defer consideration of that question until the sentencing for the second offence has been addressed. Second robbery 32 On 12 April 2005, less than six weeks after the first offence and whilst on bail, Mr Thomas was charged with robbery of a Mr Kandiah who was following a pedestrian path across Parramatta Golf Course when his journey was interrupted by four youths who robbed him. 33 The incident occurred whilst Mr Kandiah was walking home from work. He had progressed about 50 metres along the path when he saw four youths approach from his left a bench near the path ahead of him. Their appearance made him fearful and he had already taken out his mobile phone and dialled 000 to seek police help when one of the youths accosted him and asked him for a $2 coin. He said that he had no change. His Honour's summary of the facts as found by him continued at [8] in the following terms: "8. The youth abused him using foul language and racial slurs. …

9. Another youth pulled the mobile phone from his hand … . There was a conversation to the effect that the Triple 0 was on the screen. …

11. Kandiah sought to continue walking on however the four youths were encircling him. He made no more than four to five metres. A youth grabbed his jacket. … He sought to push that youth away with his left hand. … The youth did not go away. Kandiah then pushed him harder driving that youth two to three metres back." 34 There was then a conversation as to whether Mr Kandiah had hurt the youth by pushing him. The prosecution case, which it appears his Honour accepted, was that an aggressive exchange then took place between Mr Thomas and Mr Kandiah. His Honour continued: "13. The accused raised his right fist, drew it back and struck Kandiah in the cheek just below his left eye. Kandiah was dizzy, could see nothing and was knocked to the ground. In so saying I am not confident that he was knocked flat to the ground, but certainly to his knees. He tried to stand up after a moment or two. … He was rushed. …

14. He was pushed so that he fell to the ground. As he tried to get up he was kicked, he fell back to the ground, used his arms to protect his head. He was kicked along the right side of body. He had difficulty breathing. The abuse was continuing. One of the youths however was screaming, 'Where's your wallet, where's your wallet.' With all the noise going on another said, 'Stop, he can't hear you'. The demand for the wallet was repeated, Kandiah directed the youths to the briefcase. The briefcase was found and taken. …

15. The physical injuries to Mr Kandiah [… included] bruising and pain from being kicked over his body; the lining of the skin of his mouth and his cheeks and lips were all injured." 35 Annexed to a victim impact statement received and considered pursuant to Part 3, Division 2 of the Crimes (Sentencing Procedure) Act, was a report from a clinical psychologist who concluded that Mr Kandiah was suffering "a severely depressed level of mood and severe anxiety" as a result of the attack. This passage from her report was set out by his Honour in his reasons at [44]. How it affected his Honour's assessment of the seriousness of the attack in which Mr Thomas was involved is not clear. 36 Section 29(3) of the Crimes (Sentencing Procedure) Act notes that the "absence of a victim impact statement does not give rise to an inference that an offence had little or no impact on a victim". Although the Act does not provide how an impact statement is to be taken into account, it should be inferred that it is material upon which the sentencing judge can rely in determining the appropriate sentence. The relevance of that factor is expressly identified in s 21A(2) which identifies one aggravating factor as arising where "the injury, emotional harm, loss or damage caused by the offence was substantial": s 21A(2)(g). Indeed, as stated by Spigelman CJ in R v Henry at [94]: "There is no doubt that impact on victims is an aspect of the seriousness of an individual offence." 37 In R v Slack [2004] NSWCCA 128 at [60] Sperling J noted there is further implicit recognition of the entitlement of a sentencing judge to rely upon a victim impact statement in s 28(4), dealing with the use of a victim impact statement given by a family victim "in connection with the determination of the punishment of the offender". It is unfortunate that the Act gives no greater guidance as to the appropriate use of such a statement, especially where untested, for the purposes of determining sentence. However, it will often be appropriate to give weight to a victim impact statement where the conduct of the offender is otherwise established beyond reasonable doubt and the statement is restricted to subsequent effects on the victim. There is some doubt in the present case as to what weight the sentencing judge gave either to the physical effects of the assault or its psychological sequelae. 38 The charge in relation to the robbery of Mr Kandiah involved robbery in company in contravention of s 97(1) of the Crimes Act. It was an offence carrying a maximum penalty of 20 years imprisonment. Mr Thomas pleaded not guilty and was convicted following a trial in which it appears the primary issue was identification. The psychologist's report tendered at the sentencing stated that he maintained his innocence in relation to this offence and "issues of remorse involving this offence were not canvassed for this reason". 39 The sentencing judge recognised that targeting an individual when isolated and vulnerable was an aggravating circumstance of the offence: at [38]. He also recognised that it was an aggravating circumstance that Mr Thomas was on bail, granted on the understanding that he would be of good behaviour, when he committed the offence against Mr Kandiah: at [39]. 40 His Honour noted the racial slurs which accompanied the abuse of Mr Kandiah during the robbery, which he described as "unfortunate". He was not satisfied, however, that Mr Thomas "was the person who made those slurs". 41 Although his Honour appears to have accepted that it was Mr Thomas who confronted Mr Kandiah and accused him of hurting the youth who had grabbed him and would not leave him alone, and that it was Mr Thomas who struck the first blow, his Honour nevertheless concluded at [86]: "I have not ascribed a leadership role to the offender, nor can I find that he was responsible for any of the physical violence to Mr Kandiah once he was on the ground." 42 The reasons for judgment on sentence deal with both of the offences under relevant headings. Thus, under the heading "Attitude to the offences" his Honour noted the expression of remorse in relation to the robbery of Mr McCullough at [61]. He continued, at [62]: "62. It is likely he also privately regrets his involvement in the Kandiah robbery. Publicly he has not done so. Identification was the real issue in the trial. He sought to avoid legal responsibility and accountability for it by challenging the identification evidence. One can understand that because the consequence of a conviction must be imprisonment.

63. Even though he has sought to avoid legal responsibility, that does not mean he lacks insight into the offence or its causes, nor does it mean that he does not regret the injuries occasioned to Kandiah." 43 As should be well-understood and was undoubtedly appreciated by the trial judge, no-one can be punished for refusing to acknowledge his or her guilt of a crime. However, refusal to accept the correctness of a jury verdict is likely to diminish, and may well destroy, the opportunity to obtain a degree of leniency on sentence which would follow from a genuine and profound sense of remorse which, where combined with a sufficient strength of character to avoid the likelihood that the offender will succumb to temptation when next it arises, will justify a significant reduction in the penalty otherwise appropriate. Speculation about private regret and its likely consequences can give little confidence to a sentencing judge that any significant diminution of sentence is appropriate. Rather, his factual finding in the present case was that, with the courage borne of superior numbers, Mr Thomas delivered an unprovoked blow which felled Mr Kandiah. Even an express statement of regret, given in evidence before the Court, would have required anxious consideration before being accepted as evidence of genuine contrition. That material was not available to the sentencing court in this case. 44 In determining the relative seriousness of the offences, his Honour concluded that the attack on Mr McCullough was "far more vicious than the attack upon Mr Kandiah": at [85]. His Honour also relied upon the distinction in relation to a "leadership role" and might further have noted that the offence under s 97(1), in relation to Mr Kandiah, was subject to a lower maximum penalty than the robbery with wounding offence involving Mr McCullough. Nevertheless, it is necessary to identify some proper basis for departing from the guideline in R v Henry, which would have justified a sentence in the range of between four and five years. One possible point of distinction is that the cases considered in Henry, whilst dealing with a robbery under s 97(1), mainly involved an offensive weapon, rather than the alternative factor of being 'in company'. On the other hand, the circumstance identified in the guideline, as already noted, was one involving limited, if any, actual violence but a real threat thereof. This case involved significant, gratuitous and unprovoked violence, albeit without a weapon. Further, there was no plea of guilty. Given the objective circumstances of the case, the guideline should have been applied. Considerations which his Honour appears to have taken into account in mitigation of the offence, as noted above, should not have justified departure from the guideline. A sentence at the bottom of the range for this offence would also have been four years imprisonment. 45 The subjective considerations, including the likelihood of rehabilitation, which his Honour took into account were assessed by reference to matters such as his attempt to curb his alcohol abuse, which arose after the second offence. The fact that the second offence occurred whilst Mr Thomas was on bail on the first offence should have generated a real concern as to the appropriateness of a finding of special circumstances for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act. Nevertheless, there was a justification for such a finding and it should operate equally in relation to the second offence as in relation to the first. The result will be a further non-parole period of two years, rather than the period of 18 months imposed by the sentencing judge. Totality 46 His Honour correctly stated that the overall sentence imposed on Mr Thomas had to reflect the "totality of criminality in both criminal events": at [87]. That required that the sentences be served partly cumulatively. The first sentence was directed to commence on the day of sentencing, namely 30 March 2007. The second period commenced six months later, on 30 September 2007. Each being a non-parole period of 18 months, the six months accumulation resulted in a total compulsory custodial period, prior to eligibility for release on parole, of two years. 47 It is undoubtedly necessary to avoid a sentence which would have crushing effects, especially where it is the first custodial sentence imposed on an offender. However, a significant period of accumulation is required in order to respond appropriately to the two entirely separate and independent and violent robberies. On the facts as found by the sentencing court, each involved a level of personal violence which warrants a significant period of imprisonment. The effective custodial sentence should have been a period of not less than three years. Other factors 48 There are three other matters which need to be considered in relation to the potential re-sentencing. The first concerns an affidavit declared by Mr Thomas on 23 August 2007 and tendered on the appeal. In relation to the first offence Mr Thomas stated: "I pleaded guilty to the offence against Mr McCullough. I take full responsibility for the offence, continue to regret it and am embarrassed that it occurred." That evidence went no further than the evidence accepted by the sentencing judge. 49 In relation to the second offence, Mr Thomas stated: "I am very sorry that Mr Kandiah was abused and robbed and that he suffered physically and psychologically. Because I maintain that I was wrongly identified by Mr Kandiah and am innocent of the offence, I cannot in honesty express regret for my role." This statement also goes no further than the material noted above. If he had no involvement in the attack on Mr Kandiah, his sorrow at the harm suffered by Mr Kandiah is entirely irrelevant. 50 The third matter dealt with in the affidavit concerns his attempts to curb alcohol abuse. The genuineness of his intentions in that regard were accepted by the sentencing judge: the affidavit takes the matter no further. 51 The second further issue concerns a claim that, in relation to the robbery of Mr McCullough, issues of parity arise as between his sentence and that imposed on the young person who accompanied him in the assault, who received a suspended sentence of 14 months. That sentence included discounts for a plea and for assistance, prior to which the trial judge, Phegan DCJ, considered the appropriate sentence would have been two years imprisonment. The young offender was also charged with robbery in circumstances of aggravation with wounding, in contravention of s 96 of the Crimes Act. At the time of the offence, he was two days short of his seventeenth birthday. He was neither the instigator of the crime, nor was he the one responsible for the most violent aspect of the attack, namely taking the bag with the full bottles of beer and using it as a weapon to inflict a serious blow to the back of his victim's head. Further, the sentencing judge in that case accepted that the offender was not merely youthful but immature and that he had made out "a very compelling case of both spontaneous, self-generated and permanent rehabilitation". The assistance also no doubt confirmed his Honour's satisfaction that it was a case in which the offender had experienced "genuine remorse". 52 It may be accepted that the sentence imposed upon a juvenile co-offender is relevant and gives rise to a question of parity, as contended by counsel for the Respondent, in reliance on Regina v Cox [2004] NSWCCA 413 at [27]-[28] (Hislop J, Santow JA and Smart J agreeing) and R v Tran [2004] NSWCCA 6 at [13]-[17] (Buddin J, James J agreeing). This was relied on not merely to demonstrate that the sentence imposed was not manifestly inadequate, but also as a reason why this Court should not intervene in the exercise of its discretion in relation to an appeal by the Director. 53 While there is a significant discrepancy between the sentence now proposed in relation to the first robbery and that imposed on the younger co-offender, there was also a significant discrepancy resulting from the sentence imposed by the sentencing judge. Indeed, the matters noted above in relation to which error was identified on the part of the sentencing judge in sentencing Mr Thomas, including the additional discount for the plea and the relationship between the non-parole period and the balance of the term, did not bear justification by reference to the sentences imposed on the younger person. There were, in any event, very substantial differences in their respective responsibilities for the attack on Mr McCullough. The question of parity does not properly prevent the proposed variation to the first sentence. 54 The third further matter concerns the appropriateness of intervention in the circumstances of the case. The relevant principles are well-established and have been frequently restated: see Dinsdale v The Queen (2000) 202 CLR 321, which concerned a prosecution appeal pursuant to a provision which imposed no restraint expressly upon the exercise of the power: see in particular at [62] (Kirby J). 55 The proposed sentences referred to above have been identified by reference to the low end of the appropriate range. It can therefore be seen that the sentences imposed by the sentencing judge were manifestly inadequate. Further, error has been identified in the manner of determining those sentences. It would not be mere tinkering to intervene. As noted by Kirby J in Wong v The Queen (2001) 207 CLR 584 at [110]: "Although under s 5D leave to appeal against sentence is not required by the prosecution, the principle of restraint in allowing prosecution appeals against sentence is well entrenched. It has sometimes been explained by reference to the species of 'double jeopardy' that a prisoner uniquely faces in such an appeal. Whilst the facility of prosecution appeals is afforded to contribute to the desirable aim of consistency in sentencing, it is normal to require a clear or definite case of demonstrated appellable error before a prosecution appeal is upheld by a court of criminal appeal." 56 Taking all these factors into account, the public interest in maintaining consistency in sentencing and ensuring that adequate sentences are imposed in relation to serious offences of personal unprovoked violence, justify intervention in the present circumstances. 57 I would propose the following orders:

(1) Allow the appeal and set aside the sentences imposed by Nicholson DCJ on 30 March 2007.

(2) In relation to the robbery with wounding committed on 2 March 2005: (a) set a non-parole period of two years commencing on 30 March 2007 and expiring on 29 March 2009; (b) fix a balance of the term in a period of two years commencing on 30 March 2009 and terminating on 29 March 2011.

(3) In relation to the robbery in company committed on 12 April 2005: (a) set a non-parole period of two years to commence on 30 March 2008 and to terminate on 29 March 2010; (b) fix a balance of the term of two years to commence on 30 March 2010 and to terminate on 29 March 2012. 58 The earliest release date for the Respondent is thus 29 March 2010. Nothing said above should affect the recommendation of the sentencing judge that the Parole Board consider an order sought by Dr Dalton of a Wayback Treatment Program: at [100]. 59 LATHAM J: I agree with Basten JA. 60 ROTHMAN J: The Crown appeals the sentences imposed on Matthew Thomas. Mr Thomas, a passenger with three others in a car, left the car, accompanied by one of his travelling companions, and approached, robbed and wounded Mr Ciaron McCullough. Mr McCullough, who had bought some bottles of beer, was doing no more than talking on the phone at a public phone booth at the time of the attack. Mr Thomas pleaded guilty to the aggravated robbery. 61 A little more than a month later, Mr Thomas, with three others, robbed Mr Vasanthan Kandiah who, quite innocently, was taking a short cut through Parramatta Golf Course and had travelled some 50 metres along a pedestrian path and was still some short distance from the Parramatta Rugby Union Club. To this robbery in company, Mr Thomas pleaded not guilty and was sentenced after a jury trial. 62 The Crown appeals on the ground that the sentences imposed, or the overall sentence imposed, are/is manifestly inadequate. In seeking to explain the manifest inadequacy, the Crown raises alleged errors in the exercise of the discretion on sentencing: i. An excessive discount for the plea of guilty in relation to the aggravated robbery offence; ii. The excessive weight given to remorse on the same offence; iii. Disproportionate weight given to Mr Thomas's subjective circumstances; iv. The finding of remorse in relation to the robbery in company offence; v. The finding that no further personal deterrence was required; vi. The erroneous approach to accumulation; vii. The failure to accumulate sufficiently in order to achieve a sentence commensurate with the totality of the criminality involved; and viii. The failure to apply properly the guideline judgement in R v Henry (1999) 46 NSWLR 346. The Sentences 63 The first offence, the aggravated robbery with wounding, carries a maximum penalty of imprisonment for 25 years. Mr Thomas was sentenced to a non-parole period of 18 months' imprisonment, commencing 30 March 2007 and expiring 29 September 2008 and a balance of term of 23 months, expiring 29 August 2010. 64 The second offence, robbery in company, carries a maximum penalty of 20 years' imprisonment for which Mr Thomas was sentenced to a non-parole period of 18 months' imprisonment, commencing 30 September 2007 and expiring in 29 March 2009, with the balance of term of two years, expiring in 29 March 2011. 65 The overall sentence imposed was a non-parole period (for both offences) of two years' imprisonment, with an overall balance of term of a further two years. The term of imprisonment commenced on the day of the sentencing. Principles on Crown Appeal 66 Crown appeals against sentence require the application of the ordinary rules relating to an appeal against a discretionary judgment together with particular rules relating, solely, to appeals by the Crown. 67 While the power reposed in either the DPP or the Crown to appeal a sentence under s.5D of the Criminal Appeal Act 1912 (NSW) has been described in a number of ways to emphasise its exceptional character, ultimately it is a power granted by the legislature that, while the Court may discourage its use on other than rare occasions, is available to the Crown; and, when such an appeal is filed, it must be dealt with in accordance with principle. Those principles have been summarised by Wood CJ at CL in a much cited passage in R v Wall [2002] NSWCCA 42, which is cited in full in R v Prasad (2004) 147 A Crim R 385 at [27]. Those principles were summarised in the following way: "(a) The normal restriction upon appellate review of the exercise of a discretion, as set out in House v The King (1936) 55 CLR 499, applies to Crown appeals against sentence: Dinsdale v The Queen (2000) 202 CLR 321; with the result that this Court cannot merely substitute its opinion, as to the appropriate sentence, for that of the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665 at 671; rather, it may interfere only where error either latent or patent is shown; R v Tait (1979) 46 FLR 386 at 388; and Wong and Leung v The Queen (2001) 207 CLR 584; 76 ALJR 79 at [58] and [109]. (b) Appeals by the Crown should generally be rare; Malvaso v The Queen (1989) 168 CLR 227 at 234, and unless there is a clear error of principle identified, it would be exceptional for the Court to interfere: R v Baker [2000] NSWCCA 85. (c) A Crown appeal against sentence is concerned with establishing matters of principle 'for the governance and guidance of courts having the duty of sentencing convicted persons': per Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 but this power extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing, that is, where the sentence is definitely outside the appropriate range for the case in hand: Everett v The Queen (1994) 181 CLR 295 at 299, 74 ACrimR 241 at 244; Dinsdale v The Queen (2000) 202 CLR 321, 115 ACrimR 558, and Wong and Leung v The Queen . (d) The Court has a lively discretion to refuse to intervene even if error has been shown, and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal: R v Allpass (1993) 72 ACrimR 561, Director of Public Prosecutions v Papazisis (1991) 51 ACrimR 242 at 247, and Wong and Leung v The Queen at [110]. (e) A sentence which is imposed as a consequence of a successful Crown appeal will generally be less than that which should have been imposed by the sentencing court: R v Holder and Johnston (1983) 3 NSWLR 245 at 256, and will generally be towards the lower end of the available range of sentence: Dinsdale v The Queen at para [62]." 68 To those principles one should add the statement in Dinsdale, supra, that the Court will have a "strong resistance" to tinkering with sentences. 69 To the application of the principles in House v The King ought to be added the injunction to appellate courts in the joint judgments of Gummow, Callinan and Heydon JJ in Johnson v The Queen (2004) 78 ALJR 616 at [26]: "Judges of first instance should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected." It is these principles that must be applied in dealing with the matter now before the Court. 70 I have read the judgment in draft of Basten JA. With great respect, I do not agree with his Honour's conclusions. For reasons that follow, I do agree that the sentencing judge is in error. With respect, I do not agree that the sentence proposed by his Honour Justice Basten is less than that which could have been imposed by a sentencing judge: R v Holder and Johnston, supra, at 256. I propose a sentence that increases the non-parole period by six months to two and a half years' imprisonment and the head sentence by 12 months to five years. Such an adjustment is not tinkering and places the sentence, as required, at the lower end of the range available (Dinsdale, supra, at [62]), giving credence to the available findings of the sentencing judge. Were I sentencing afresh, different considerations would apply and, subject to the impression of Mr Thomas I may have gained from hearing and seeing him give evidence, an overall sentence more severe than that proposed by Basten JA may have been appropriate. But the sentence imposed on appeal should, in this case, "not represent the full measure of sentence which might have been imposed upon the convicted person at first instance": R v Holder and Johnston at 256 (per Street CJ).

Circumstances of Robbery Using Violence (The Phone Booth Robbery) 71 In order to deal with a number of the grounds of appeal the conduct of Mr Thomas that gave rise to each of the offences needs to be examined. The Phone Booth Robbery occurred on 2 March 2005. Mr Thomas was a passenger in a car with a number of other people. He saw Mr McCullough, who had just left the Parramatta Hotel with three bottles of long neck VB beer, walking to the phone booth, drinking from one of the bottles. Mr Thomas told the driver of the car to stop the car and said: "There's a guy with a long-neck at the payphone and I'm going to take it" and requested one of his companions to accompany him "just in case it turns back on me". 72 Mr Thomas went to the phone booth with the companion, pushed and shoved the victim, causing the victim to run across the road carrying a plastic bag with the other two bottles of beer, chased by Mr Thomas and his companion. The sentencing judge accepted that Mr Thomas had scared Mr McCullough at the phone booth by threatening, abusing and striking him. 73 The companion tripped Mr McCullough, who fell to the ground and dropped the plastic bag and beer. Mr McCullough had not been struck by anything before he fell. Once he was on the ground, Mr Thomas and his companion kicked Mr McCullough, causing Mr McCullough to grab Mr Thomas' leg, which, in turn, excited Mr Thomas to kick Mr McCullough with his other leg. 74 Mr McCulloch held both of Mr Thomas' legs whereupon Mr Thomas picked up the plastic bag containing the two bottles of beer, swung it over his shoulder, hitting the victim in the back of the head. Mr Thomas picked up one of the beer bottles and returned to the car with his companion, telling the others to drive off and displaying to them the beer bottle as the trophy for this unprovoked attack.

75 During the attack, other members of the public informed the police in the mall who ran to the scene and saw Mr Thomas and his companion running, and then driving, away. They attended on Mr McCullough who was, by then, lying outside the Town Hall, blood on his face, neck, hands, shirt and leg, nose swollen, top and rear of his head lacerated. 76 The description of the car was broadcast and other police officers apprehended Mr Thomas, blood on his hands, shorts and shoes. He fabricated a story that he had hurt himself at work, but there was no wound apparent. Mr Thomas participated in an interview, denying the offence and later suggesting that the attack was self-defence. DNA testing matched the blood on Mr Thomas' left shoe to Mr McCullough. 77 Mr McCulloch was treated in hospital for his injuries. They consisted of a 2.5 cm laceration to the occipital area with a surrounding haematoma; a 1 cm superficial laceration to the parietal area; swelling to the nasal area; erythema to the right suprascapular area; swelling to the nasal area caused by a nasal bone fracture. 78 Mr Thomas was "well affected" by alcohol at the time of this attack. There was no pre-planning, the attack being an opportunistic response to seeing a drunken man alone with alcohol. Mr McCullough was also well affected by alcohol and was accordingly in a most vulnerable position. Mr Thomas led his co-offender and the level of violence administered was vicious to a level above that seen in many robberies. As well as the crime being further aggravated because it was done in company, the use of bottles to strike Mr McCullough and the targeting of the face and head were each aggravating aspects to the crime. The Circumstances of the Robbery in Company (The Golf Course Robbery) 79 Mr Thomas committed this offence on 12 April 2005, while he was on conditional liberty for the earlier offence. It occurred at about 5:40 pm while Mr Kandiah was walking home from work. He shortened his journey by taking the path across the golf course from Argyle Street Parramatta. The path is approximately 150 m long and the attack occurred after about 50 m of the journey. Mr Kandiah saw four youths sitting on the bench to his left, next to the footpath. 80 The four youths, who included Mr Thomas, had gone to the golf course with the specific intent of robbing a pedestrian and, having seen Mr Kandiah, organised to "close in" on him and sit at the bench with the intent of committing the robbery. In this robbery Mr Thomas did not play a leadership role. The youths targeted Mr Kandiah because of his vulnerability and the isolation of the path. 81 Slightly intimidated by the youths on the bench and a little scared, Mr Kandiah dialled 000 as he was approaching the bench. He feared that the call had not been connected. As he approached the bench one of the youths asked for a two-dollar coin to which Mr Kandiah responded that he had no change. One of the youths, not it seems Mr Thomas, abused Mr Kandiah using foul language and racial slurs, he grabbed Mr Kandiah's jacket and continued swearing and abusing him. Another youth, perhaps Mr Thomas, pulled a mobile phone from Mr Kandiah's hand, noticed that 000 was on the screen and informed the others of that fact. 82 Mr Kandiah could smell alcohol and vomit on the breadth of the youth abusing him. He attempted to push the youth away with his left hand on four or five occasions. He did not succeed. Mr Kandiah then pushed him harder forcing the youth two or three metres back. One or more of the youths then used this push as an excuse for an exchange alleging that Mr Kandiah had hurt the youth, to which Mr Kandiah, understandably and very sensibly, apologised. Mr Kandiah was punched, became dizzy, could not see and fell to the ground on his knees. He cried out, tried to stand, faced the youths, but was rushed by them and driven back four or five metres. He unsuccessfully sought to put his arms in a defensive position to protect his head. He was grabbed and pulled, had his jacket stolen from him, was pushed to the ground and kicked. The youths stole his briefcase, which contained his wallet. Mr Kandiah made his way to Parramatta Rugby Union Club and reported the incident. 83 Mr Kandiah's injuries included bruising, pain from being kicked over his body, abrasions to the lining of the skin of his mouth, his cheeks and his lips. He has been diagnosed with Post-Traumatic Stress Disorder as a result. This was a joint criminal enterprise in which Mr Thomas participated. Once more, Mr Thomas was well affected by alcohol. The level of violence in the robbery was a prominent feature on which the sentencing judge commented. The Grounds of Appeal 84 As earlier stated, while particular grounds are raised, the Crown submits that the overall sentence for both offences is too low. 85 The circumstances of the proceedings for the Phone Booth Robbery were that Mr Thomas pleaded guilty, gave evidence seemingly inconsistent with his plea, but, nevertheless, ultimately adhered to the plea. The timing of the plea was that it occurred on the day of the trial and there were factual issues resolved during sentencing that required the victim to give evidence. The discrepancies of fact were resolved against Mr Thomas. It seems he was too drunk to remember almost anything about the incident. His Honour discounted the sentence for the plea by a factor of 15%. 86 Notwithstanding the submission of the Crown that 15% is too great a discount, there is no error in such a figure. 87 Further, the submission of the Crown was that excessive weight was given to remorse in the above circumstances, but, that, too, discloses no error, if taken alone. That Mr Thomas could not remember but was prepared to accept responsibility was to his credit. 88 His Honour found that Mr Thomas displayed remorse for the Golf Course Robbery. For this, Mr Thomas did not plead guilty. Nor, it seems, did he express remorse. Rather, this finding of his Honour is based upon his Honour's perception of Mr Thomas during the hearing and the sentencing. It is essentially a finding based on demeanour and it would only be with great reluctance that I would disturb it. Particularly in light of the positive steps taken by Mr Thomas toward rehabilitation, I can accept his Honour's views in this regard. Further the trial was essentially concerned with Mr Thomas' involvement in the attack; not whether the attack occurred, nor whether Mr Thomas was there. While that involvement was sufficient to give rise to a joint enterprise, it beneficially affected Mr Thomas' culpability. 89 There is little doubt that Mr Thomas regrets the associations he then had, his abuse of alcohol and all that flowed from that course. It is for that reason, it seems, that his Honour considered there was no further need for personal deterrence. 90 The more substantive issues raised are intertwined. The Crown submits a failure to apply R v Henry, supra, properly. It also submits that the two offences ought to have been imposed with less concurrence to bring about an overall sentence more commensurate with the totality of the criminal conduct in question. 91 R v Henry was a guideline judgment dealing with a contravention of section 97 of the Crimes Act 1900. The offences for which Mr Thomas was sentenced were contraventions of section 96 and section 97 respectively. In each case the offence is an aggravated form of robbery. The guideline in R v Henry is therefore relevant. But his Honour referred to the guideline and applied it. Did he apply it adequately or appropriately? 92 Guideline judgments are not intended to establish some matrix of parameters, the existence or non-existence of which will lead to a mathematically justifiable outcome. The guideline judgment is another relevant guidepost in determining an appropriate individualised result. 93 However, the guideline in R v Henry sets, for the offender with those hypothetical characteristics, between four and five years' imprisonment as a head sentence. This range takes account of a 10% discount for plea and the fact that the offender is young. 94 His Honour is an extremely experienced sentencing judge and has not been shown to have erred on any question of fact. Nor has any failure to apply principle been demonstrated. Further, all necessary principles have been considered. 95 The sentence, however, is very light. It seems that the sentencing judge has implemented this quite deliberate sentence mostly on account of Mr Thomas' youth, his rehabilitation, and his lack of relevant criminal history. All of these were factors to which the sentencing judge was entitled to have regard. They are matters on which this Court should give the sentencing judge's views great weight. These matters may properly impact both the sentence and the ratio between the non-parole period and the remainder of sentence. 96 It may be, given that the sentencing judge used a starting point of 4 years (the bottom of the range in R v Henry), that he has incorrectly applied a further 15% discount in circumstances where R v Henry already has built in a discount of 10% for plea. It is not absolutely clear what, if any, error has been committed. But, even in the unusual circumstances of this offence, this offender and the rehabilitation issues, these sentences are below the range available. 97 On balance, I consider the sentence imposed manifestly inadequate. I am required to fix a sentence at the lowest end, bearing in mind all of the factors mentioned. Further, I have regard to the evidence of continuing rehabilitation and I propose a sentence, which, I anticipate, will not interfere with that process. I continue to allow 15% discount for the plea on the first count, which is a further 5% on the lowest range in R v Henry, supra. I reiterate the finding of special circumstances. I adjust the second sentence to effect the overall ratio decided by his Honour below. 98 I propose the following orders:

(i) The Crown appeal against the sentences imposed on Matthew Ryan Thomas on 30 March 2007 be granted;

(ii) The aforesaid sentences be quashed and in lieu thereof the following sentences be imposed: (a) For the offence of robbery with violence on Ciaron McCullough on 2 March 2005, a non-parole period of two years' imprisonment commencing 30 March 2007 and concluding on 29 March 2009, with a balance of term of a further 1 year and 10 months expiring on 29 January 2011; (b) For the offence of robbery, in company with persons unknown, of Vasanthan Kandiah committed on 12 April 2005, a non-parole period of two years' imprisonment commencing 30 September 2007 and concluding 29 September 2009, with a balance of term of a further two years and six months concluding 29 March 2012; (c) The overall sentence is for a non-parole period of two years and six months concluding 29 September 2009 and a balance of term of a further two years and six months concluding 29 March 2012.

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