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: