(k) while in custody he had been making some progress with education classes.
3 His Honour accepted the applicant's evidence concerning the genuineness of his desire to take a turn for the better and found special circumstances justifying the considerable reduction of the non-parole period, to one representing a ratio of fifty-seven per cent of the head sentence, so as to allow for an extended period of post release supervised rehabilitation. His Honour also expressly took into account the applicant's contrition and the early plea of guilty.
4 In submitting that his Honour had set the bar too high for an offence of robbery, counsel placed some reliance upon the Judicial Commission statistics, which would tend to show that, from a sample of 323 offenders, only ten had received sentences in excess of seven years, and only three had received sentences of eight years for the offence of robbery. Additionally, counsel invited a comparison with the guideline range, for the sentencing of those convicted of the more serious offence of armed robbery, that was suggested by the Court in Henry (1999) 46 NSWLR 346. He did, however, accept that several of the applicant's characteristics, notably those concerning his age, his lengthy criminal history and the degree of pre-meditation involved in the robbery, were more serious than the characteristics posited for the guideline.
5 The comparison invited with Henry was, in my view, of limited assistance, particularly having regard to the fact that, for the offence under consideration in Henry, the narrow range in the guideline was said to be a starting point and that aggravating or mitigating circumstances would justify a sentence above or below that range.
6 Reliance upon the sentencing statistics was also, in my view, of limited value. Those figures have a use as background information. However their over use, particularly without regard to the infinite variations in the objective and the subjective circumstances of the cases upon which they are based, can be dangerous, particularly if the outcome derogates from an otherwise correct exercise of the sentencing discretion: see Yin (Muoi) NSWCCA 30 November 1998 and see also Bayeh (Louis) [1999] NSWCCA 82.
7 The present offence was, in my view, properly categorised as serious, in light of the applicant's prior record, which disclosed a long standing attitude of disobedience of the law and in light of the obvious pre-meditation that was present. The Crown case was also a strong one, in view of the identification of the offender, as the applicant, by the victim and by another witness.
8 It is the fact that robbery is regarded as a very serious offence: Roberts (1994) 73 A Crim R 306 at 309, and that considerations, of deterrence are of special importance: France NSWCCA 9 July 1992. The present victim was in a vulnerable position having regard to the likelihood that, as the operator of the service station, it could be expected that he would need to carry the day's takings with him. As such he was entitled to be protected by a consistently firm stand on sentencing: Thwaites NSWCCA 6 October 1993 and Crotty NSWCCA 29 February 1994.
9 Had the criminality in the present case been confined to a single offence of robbery, and had the applicant's record not been so extensive, then there would have been good reason for questioning the length of the total term, particularly, since it was a case attracting a discount in the upper range of that considered appropriate for a timely plea in Thomson v. Houlton (2000) NSWCCA 309 at par 160, a decision which was not available to his Honour.
10 However, the applicant here was to be sentenced for the total criminality involved in the offence charged and in the Form 1 matters: see Morgan (1993) 70 A Crim R 368 at 372; and also upon the basis that he had demonstrated himself to be a recidivist who had displayed no previous interest whatsoever in rehabilitation.
11 So far as totality was concerned, this Court in Dawson (2000) NSWCCA 399 and again in Lemene (2001) NSWCCA 5, made it clear that an additional penalty must be expected when an accused asks that further offences be taken into account on a Form 1, albeit that such additional penalty will be less than would have been imposed had separate charges been prosecuted.
12 For these reasons, the submission concerning the starting point which his Honour might be assumed to have adopted before the reduction for the timely plea, and for the contrition and rehabilitation prospects, loses force. As against the maximum available sentence of fourteen years, and making full allowance for the early plea, for the contrition displayed by the applicant, and for his professed change in attitude, I am unable, in the circumstances outlined, to detect any error of law in the total sentence imposed.
13 Whether the applicant has truly reached the cross roads has yet to be seen. Hopefully, as his Honour found, that will be the case. However, so far as his Honour gave him the benefit of the doubt in this regard, that seems to me to have been amply demonstrated in the reduced non-parole period.
14 I would, accordingly, grant leave to appeal but I would dismiss the appeal.
15 SULLY J: I agree.
16 WOOD CJ at CL: The order of the Court will be as I have proposed.