R v Weismantel

Parity error

1. My conclusion that the total and the non-parole components of the aggregate sentence are manifestly inadequate is not derived from a consideration of the sentences imposed upon the co-offenders. It was not the basis up which the appeal was brought as parity is not something that can be relied upon by the Crown to argue for a sentence to be increased: see, for example, R v Moore & Weibe (Court of Criminal Appeal (NSW), 11 August 1992 (unrep)) and R v Doff [2005] NSWCCA 119 at [58]. Parity was only raised by the Crown in an endeavour to explain, in part, how the judge came to impose the sentence which he did in what was described as a "flawed process".
2. Having said that, it is notable that his Honour only referred to the indicative sentences for the co-offender Roach for the 23 September 2013 offences without making any mention of the fact that they had been reduced by 25% on account of Mr Roach's early pleas of guilty. Thus, in relation to the aggravated car-jacking offence, he referred (at ROS [11]) to Roach's indicative sentence of 3 years 9 months and that it was assessed with the additional offence on a Form 1, and said that "clearly any sentence to be passed upon the current offender for the same crime must be substantially less". Later (at ROS [32]) he said: "I have already referred to the sentence indicated by Judge Haesler for Roach. I have come to the view that in the current offender's case, I should start with a head sentence of three years which I discount by 10% for the late plea of guilty. That gives me a head sentence of two years and eight months."
3. What his Honour did not refer to was the fact that the starting point for Mr Roach's sentence for this offence was 5 years.
4. The same approach was taken in relation to the other offences of 23 September 2013. His Honour referred (at ROS [14]) to the indicative sentence for the Roseville Cinema robbery (with the robbery of the patron on a Form 1) as 7 years 6 months and the indicative sentence for the Revesby Pacific Hotel robbery as 7 years. He did not mention that the starting points adopted by Haesler SC DCJ before the 25% reduction were 10 years and 9 years 4 months respectively. The starting points before reduction by 10% in the applicant's case were 6 years for each of the three robberies.
5. There is, accordingly, some force in the Crown's argument that there was a flaw in the sentencing process whereby the judge attempted to apply the parity principle in comparing the sentences imposed upon the co-offender Roach.
6. Before departing the topic of parity, I note the criticism in the judgment of RS Hulme AJ about a lack of consistency on the part of the Office of the Director of Public Prosecutions (NSW) in formulating charges brought against co-offenders. I do not wish to join in that criticism because we were not provided with any explanation as to why it occurred in this case. It does pose difficulties in assessing parity but experience tells me that there can be a number of legitimate and pragmatic reasons for it occurring.

Error in quantifying discount for facilitation of the administration of justice

1. There is one further matter that should not be allowed to pass without comment. R S Hulme AJ has noted that the learned sentencing judge allowed a discount of 15% for the respondent's facilitation of the administration of justice pursuant to s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Act").
2. Why the respondent should receive a greater discount (15%) for running a trial in a co-operative fashion than he did for pleading guilty and avoiding the need for a trial altogether in the other matters (10%) was not explained.
3. But more importantly, quantification of the extent to which a mitigating factor has been taken into account is encouraged in relation to pleas of guilty (R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309) and statutorily required in relation to assistance to authorities (s 23 of the Act). It is otherwise regarded as an erroneous engagement in a two-staged approach to sentencing: see most recently Flaherty v R; R v Flaherty [2016] NSWCCA 188 at [76]-[77]. This is not an error upon which the Crown relied (indeed, it acquiesced in the judge's approach) so aside from making the observation it is otherwise of no moment in determining the outcome.

Residual discretion

1. The power of this Court to intervene is discretionary notwithstanding a finding that a sentence is manifestly inadequate. Section 5D of the Criminal Appeal Act 1912 (NSW) provides that the Court "may in its discretion vary the sentence and impose such sentence as to the said court may seem proper". It is, of course, a matter for the Crown to persuade this Court to exercise that discretion: CMB v Attorney General for New South Wales (2015) 89 ALJR 407; [2015] HCA 9.
2. In R v O'Connor [2014] NSWCCA 53, Adamson J (with the concurrence of Davies J and I) said of the prospect of exercising a "residual discretion" to decline to intervene: "[88] Although the principal purpose of the determination of a Crown appeal is to give guidance to sentencing judges, the sentence actually imposed on the Respondent is still of considerable importance. The need for specific deterrence in the present case would not be served by an exercise of the residual discretion."
3. The same applies to the present case. Whilst the primary judge found that the respondent was "not an appropriate subject for general deterrence" he also found that "specific deterrence is still applicable". Moreover, whilst finding that the respondent's moral culpability was reduced on account of his mental condition, he also found that "until properly treated, the offender is a threat to the community". (ROS [28]-[29]) The respondent's history requires that these factors receive particular emphasis in the assessment of sentence.
4. The respondent did not rely upon any evidence of post-sentencing events to argue against the Court intervening if error was established.
5. The Crown addressed the question of whether the parity principle would cause the Court to decline to intervene on the basis that doing so would create a justifiable sense of grievance. In Green v The Queen; Quinn v The Queen it was said (by French CJ, Crennan and Kiefel JJ at [37]) that "a powerful consideration against allowing a Crown appeal would be the resultant creation of unjustifiable disparity between any new sentence and an unchallenged sentence previously imposed upon a co-offender".
6. Counsel for the respondent referred to the sentencing of Mr Roach, noting that the respondent was found by the primary judge to be "not the ringleader or planner but merely a 'soldier' in a joint criminal enterprise that was organised by others". (ROS [8]) It was his submission that the sentence imposed upon the respondent "would be noticeably less than that imposed on Roach". He also referred to the fact that Roach was sentenced for additional offences including the assault occasioning actual bodily harm to a police officer; possession of a firearm and destruction of Mr Brighton's car. Accordingly, he submitted that any adjustment to the respondent's sentence would be circumscribed to such an extent that this Court's intervention would not be warranted.
7. I accept that maintaining an appropriate distinction between the sentences passed upon the co-offenders is necessary but I do not believe that this is to such an extent that intervention is not warranted. It is necessary in particular to have regard to the significantly higher starting points assessed by Haesler SC DCJ for the offences of the co-offenders that were in common with the respondent.

Re-sentencing

1. The Crown read an affidavit that was received only in the event that this Court was moved to re-sentence. It discloses that the respondent has continued after he was sentenced to commit gaol disciplinary offences with similar regularity as before sentencing. It simply confirms that there has been no apparent improvement in his rehabilitation prospects but then, it was not contended on his behalf that they had.
2. The findings by the primary judge that the respondent's moral culpability is reduced on account of his mental condition and that general deterrence was not a significant matter should be maintained on the basis that the Crown did not contend they were erroneous (and I accept they were appropriate). On the other hand, it remains necessary to give emphasis to personal deterrence and protection of the community. The backdating of the sentence and the finding of special circumstances should also be maintained.
3. I propose that in the assessment of individual sentences the same percentage reductions (with rounding down) for the respondent's pleas of guilty apply as at first instance. I do not propose a percentage reduction for the facilitation of the administration of justice in the respondent's trial for the final offence but I have taken that factor into account in mitigation. I propose the following: Offence Indicative sentence Original indicative sentence Aggravated car-jacking on 23.9.13 3 years 7 months with non-parole period 2 years 4 months. 2 years 8 months with non-parole period 1 year 6 months. (A starting point of 4 years.) (A starting point of 3 years.) Robbery whilst armed with a dangerous weapon (victim Michael Sheppard) on 23.9.13 7 years 2 months. 5 years 4 months. (A starting point of 8 years.) (A starting point of 6 years.) Robbery whilst armed with a dangerous weapon (victim Barry Price) on 23.9.13 6 years 9 months. 5 years 4 months. (A starting point of 7 years 6 months.) (A starting point of 6 years.) Robbery whilst armed with a dangerous weapon (Revesby Pacific Hotel) on 23.9.13 6 years 9 months. 5 years 4 months. (A starting point of 7 years 6 months.) (A starting point of 6 years.) Armed assault with intent to rob inflicting grievous bodily harm on 31.12.13 6 years 9 months with non-parole period 4 years 4 months. 5 years with non-parole period 3 years. (A starting point of 6 years.)

Orders

1. I propose the following orders: 1 Crown appeal allowed. 2 Sentence imposed in the District Court on 1 October 2015 quashed and in lieu, the respondent be sentenced to an aggregate term of imprisonment for 9 years 6 months with a non-parole period of 6 years. The sentence is to date from 1 March 2014. The respondent will become eligible for release on parole upon the expiration of the non-parole period on 29 February 2020.
2. R S HULME AJ: This is a Crown appeal against an aggregate sentence imposed on the Respondent by Neilson DCJ on 1 October 2015 in respect of five offences, the first four of which were committed on 23 September 2013 and the last on 31 December 2013. The offences, the relevant provisions of the Crimes Act 1900 (NSW), the maximum periods of imprisonment prescribed, any applicable standard non-parole period, and the indicative sentences enunciated by his Honour were as follows: 1. Aggravated car-jacking - s 154C(2) - 14 years with a standard non-parole period of 5 years - 2 years 8 months including a non-parole period of 18 months; 2. Aggravated armed robbery of a Roseville Cinema employee - s 97(2) - 25 years - 5 years 4 months; 3. Aggravated armed robbery of Mr Price, a Roseville Cinema patron - s 97(2) - 25 years - 5 years 4 months; 4. Aggravated armed robbery of the Revesby Pacific Hotel - s 97(2) - 25 years - 5 years 4 months; and 5. Assault with intent to rob with an offensive weapon and inflict grievous bodily harm - s 98 - 25 years, with a standard non-parole period of 7 years - 5 years including a non-parole period of 3 years.
3. The aggregate sentence imposed was of imprisonment for 8 years and 6 months including a non-parole period of 4 years and 6 months, both periods commencing on 1 March 2014. His Honour indicated that if he had been sentencing the Respondent for only the two robberies at the Roseville Cinema, he would have accumulated the sentences by only 6 months.
4. There were two trials listed before his Honour on 22 June 2015 in respect of the Respondent. The first trial commenced on that date in respect of an indictment containing five counts. A voir dire examination was conducted in relation to the Crown application to adduce evidence relied upon as coincidence evidence. His Honour delivered judgment on that day granting leave to adduce the evidence. On 23 June 2015 the Respondent was re-arraigned and he pleaded guilty to a fresh indictment containing the abovementioned first four counts. For the utilitarian value of the plea to these counts his Honour allowed a discount of 10%.
5. A second trial in respect of the fifth offence proceeded before his Honour alone on 24 June 2015. On 3 July 2015 his Honour found the Respondent guilty. His Honour recorded that the matter proceeded on documentary evidence only, saving a substantial amount of hearing time. In respect of this offence his Honour allowed a discount of 15% pursuant to s 22A of the Crimes (Sentencing Procedure) Act 1999 for facilitating the administration of justice.
6. The agreed facts in relation to the offences committed on 23 September 2013 were as follows. In respect of Count 1, at about 7.30pm, an 87 year old man, Mr Phillip Brighton, was returning to his home in Lane Cove and parking his car in the garage. As he switched off the engine he noticed the Respondent and two other offenders, Messrs Daniel Roach and Anthony Woodman, alongside his car inside the garage. One of the offenders said to him, "give me the car keys, we're not going to hurt you." Mr Brighton handed over his car keys out of fear for his safety. His car, a 2003 Nissan Pulsar, was driven away by the offenders. Mr Brighton remarked that the offenders had acted in a "kindly" fashion and Neilson DCJ regarded this offence as towards the bottom of the range for offences of its type.
7. In respect of Counts 2 and 3, at 7.54pm, the Respondent, Roach, Woodman and Ms Amanda Ridden entered the Roseville Cinema. The Respondent was armed with a sawn-off shotgun and Roach was armed with an axe. Each of the four offenders had covered his or her face with items of clothing. A film was about to commence and there were a number of patrons at the Cinema. Roach approached a Cinema employee, Mr Michael Sheppard, at the candy bar and demanded that he hand over the money in the register. Mr Sheppard told Roach to, "Get the fuck out of here" and then ran to the box office to trigger an alarm. Roach jumped over the candy bar and the Respondent pointed the sawn-off shotgun towards Sheppard and shouted words to the effect of, "Do you want to die?" Roach then entered the box office and demanded that Sheppard open the safe. Sheppard replied that there was no safe and that the silent alarm had been tripped. Sheppard took several $50 notes from the cash register and passed those notes to Roach telling him to take it and leave as the police were about to arrive. Whilst this was happening, Woodman was threatening other patrons in the Cinema, demanding that they hand over their wallets. Most of the patrons ignored these demands, but an elderly man, Mr Barry Price, handed over his wallet which contained $90 in cash together with his driver's licence, credit cards and a number of personal papers. The sum of $506.50 taken from the Cinema was the subject of the second charge. The money taken from Mr Price was the subject of the third charge. The robbery was captured on CCTV footage.
8. At about 9.40pm, the four offenders drove Mr Brighton's motor vehicle to the Revesby Pacific Hotel where they committed the armed robbery which was the subject of Count 4. During this robbery, Woodman was armed with the sawn-off shotgun, Roach was carrying the axe, Ridden was armed with a walking stick that was found in Mr Brighton's vehicle and the Respondent was unarmed. The robbery was again captured on CCTV which shows the Respondent wearing the same clothing as he was at the Roseville Cinema with his head covered in the same manner. There were three patrons, the manager and a member of the bar staff present when the offenders entered the Hotel. Woodman told everyone to get on the ground and asked who the manager was. The CCTV footage shows the Respondent taking money bags from within the office area as well as three packets of cigarettes. The footage also shows the Respondent emptying the contents of one of the tills and dropping a packet of cigarettes which when tested revealed his DNA. A total of $3,873 was taken from the Hotel including approximately $1,000 in gold coins. The four offenders left the Hotel in Mr Brighton's vehicle before the police arrived.
9. After considering the material put before him concerning the commission of the first four offences, Neilsen DCJ concluded that the Respondent was not the ringleader but a follower or soldier in the joint criminal enterprise organised by others.
10. The facts in relation to the fifth offence are as follows. At about 10.30pm on 31 December 2013, the Respondent entered a Thai restaurant at Pennant Hills owned by the victim, Mr Sathaporn Wongsamak. The Respondent threatened staff with a knife and pointing the blade close to the victim's chest and stomach area, demanded money by hitting the cash register with the knife and yelling, "Empty, empty". The victim approached the Respondent yelling at him to "Get out". The Respondent moved towards the victim making stabbing motions with the knife. The Respondent grabbed and pushed a chair the victim was holding to protect himself, causing the victim to fall backwards. As he fell, the victim twisted his right leg, resulting in a spiral fracture to his fibula at the ankle. Another staff member threw chairs at the Respondent and he left the restaurant. The Respondent was apprehended by police less than 600m away from the restaurant, dressed in red white and blue striped shorts described by a number of witnesses and recorded in a photograph taken as he ran from the scene. He was in possession of a large knife when apprehended.
11. The victim underwent surgery on 1 January 2014, where a metal plate and screws were inserted in his ankle and he was kept non-weight bearing for eight weeks. On 7 March 2014, he underwent further surgery and had one screw removed from his ankle. He will require further surgery to remove the remaining screws and may have ongoing pain in his ankle.

Subjective Factors

1. The Respondent has an extensive criminal history. He was born in May 1992. The record of his offending includes the following. For assaults committed on 10 June 2006, 9 December 2009, 25 August 2008 and 28 July 2010, he was, respectively, cautioned, placed on probation for 12 months and given good behaviour bonds. In July 2009 he was cautioned for possessing a prohibited drug and for destroying or damaging property. In December 2009 he committed a number of offences including two of affray, two of destroying or damaging property and two of assault. Control orders for 10 months from 5 May 2010 and probation for 18 months were imposed.
2. In May 2010 he committed two offences of robbery whilst armed for which control orders, the longest of which was of 14 months including a non-parole period of 8 months reduced on appeal to 8 months were imposed. The orders were concurrent. On 10 December 2010, about 1 month after the non-parole period of that control order expired, he was again charged with robbery whilst armed with an offensive weapon and in due course sentenced to imprisonment for 4 years including a non-parole period of 2 years, commencing on 10 December 2010. A condition of his release appears to have included that he obey reasonable directions "particularly in regards to his schizophrenia".
3. On 15 October 2013, and whilst on parole, he committed the offence of being armed with intent to commit an indictable offence. For this offence he was charged on 22 October 2013 and in November 2014 he was sentenced to imprisonment for 2 months commencing on 19 March 2014. This offence was thus committed between the first four and the fifth with which this Court is concerned and the sentence was made concurrent with that the subject of the present appeal.
4. On 10 and 11 December 2013 he was charged with a number of driving offences although the convictions and penalties for these offences were not imposed until February 2014.
5. At the time of committing the offences with which this Court is concerned, he was also on parole, the parole being revoked both because of the present offences and because he was considered to be unable to adapt to normal community life. The balance of parole served expired on 9 December 2014.
6. He committed a number of offences in prison prior to being sentenced by Neilson DCJ - fail a prescribed urine test, create or possess prohibited goods, possess a mobile phone or sim card, intimidation and possess a drug.
7. The Respondent's subjective case was largely contained in a report of Dr Richard Furst, a consultant forensic psychologist, dated 26 September 2015. Dr Furst had first assessed the Respondent on 1 February 2012 in connection with other matters and interviewed him again on 24 July 2015.
8. The Respondent was 21 years of age at the time of the offending and 23 years at the time of sentence. He is Aboriginal and had a dysfunctional upbringing, both his parents being drug addicts and his father exposing him to domestic violence.
9. As a child, the Respondent was regarded as a "child at risk" by the Department of Community Services and was also thought to be angrily disturbed, having anger issues and mood swings throughout childhood. He was thought to be suffering from Attention Deficit Hyper-Activity Disorder and was expelled from school in year 9 because of violent behaviour. He subsequently obtained the School Certificate while in the Hornsby TAFE but was unable to gain employment.
10. The Respondent began abusing alcohol from the age of 12 years and used valium and cannabis from the age of 14. Shortly thereafter, still aged 14, he took up using amphetamines and methamphetamine. He also used ecstasy and MDMA in his teenage years, and occasionally resorted to using "magic mushrooms". Between the ages of 15 and 16, he used heroin. Whilst his drug use decreased significantly when in custody, after his release he involved himself in episodic binges involving the use of cannabis, methamphetamine and LSD.
11. The Respondent has a history of psychotic symptoms dating back to his childhood, including auditory hallucinations. There had been multiple episodes of self-harm in the Respondent's teenage years. Whilst in custody in January 2010, the Respondent reported a range of psychotic symptoms including command auditory hallucinations, paranoid thoughts and a belief that God was sending him messages through the television. He has been treated in the past by Juvenile Justice and Justice Health with antipsychotic medication.
12. When seen by Dr Furst in February 2012 the Respondent was experiencing apparent delusions and reported various auditory hallucinations. Dr Furst thought that the Respondent was paranoid at that time.
13. The Respondent continued to experience these symptoms when discharged from custody in 2013. He attempted to commit suicide in the 36 hours prior to the offence on 31 December 2013 because he perceived he was unable to cope with his mental health concerns. He was admitted to the Intensive Care Unit at Hornsby Ku-ring-gai Hospital shortly after that offence requiring emergency sedation in consequence of his agitation/psychosis. His Honour recorded that the Respondent was under the influence of illicit drugs at the time of that offence.
14. Whilst in custody, the Respondent completed the drug and alcohol course in the Young Offenders Program at the John Morony Correctional Centre and the Oberon Correctional Centre before being released on parole in December 2012. However, it is evident that the Respondent quickly relapsed and was using illicit drugs at the time of committing the offences in question.
15. The diagnoses of Dr Furst were firstly of Schizophrenia; secondly of Substance Use Disorder; and thirdly of an Anti-Social/Borderline Personality Disorder. Dr Furst opined that the schizophrenia most likely had its onset when the offender was about 15 years old and perhaps resulted from or was precipitated by chronic substance abuse.
16. In his report, Dr Furst made a number of recommendations for future treatment which his Honour considered "the most likely way of rehabilitating the present offender and returning him into the community as a worthwhile participant in it, as a man who can live without committing crime, a man who can live without drug addiction, a man who can support himself in the community".
17. In this regard, Dr Furst recommended that whilst the Respondent is in custody, he complete addiction and violent offender therapeutic programs, have ongoing treatment for his psychotic condition and that he undertake educational and vocational training.
18. Dr Furst recommended that once eligible for parole, the Respondent enter a community-based drug and alcohol rehabilitation centre that reinforces the addiction programs that have been undertaken in custody and will operate as a form of a "half-way house" to ease the Respondent from institutionalisation. Lastly, Dr Furst recommended a higher level of monitoring and support, including psychiatric surveillance, by Community Corrections and the local community mental health team.

Co-offenders

1. The Respondent's co-offenders were also arrested and sentenced. They were sentenced for additional offences but for some unexplained reason they were charged differently even in respect of the offences they had in common. Given the amount of effort the courts are obliged to spend in considering time consuming issues of parity, why the Office of the Director of Public Prosecutions cannot be consistent in formulating its charges, I fail to understand.
2. Daniel Roach, was sentenced by Haesler SC DCJ on 19 February 2015. Roach was charged with the same 23 September 2013 offences as the Respondent, although the offence of aggravated armed robbery on Mr Price was on a Form 1 and taken into account in respect of the Roseville Cinema robbery and an offence of destroying Mr Bright's vehicle was taken into account in connection with the car-jacking of that vehicle. Roach was also sentenced for other offences.
3. The aggregate sentence imposed on Roach was 11 years and 3 months including a non-parole period of 7 years. In summary the indicative periods of imprisonment identified in arriving at the sentence ultimately imposed on Roach were:- For an armed robbery of a chemist shop committed on 21 April 2012 and in connection with which an aggravated break enter and steal was taken into account - 4 years and 6 months; The aggravated car-jacking and the destruction of Mr Bright's vehicle - 3 years and 9 months including a non-parole period of 2 years and 5 months; Armed robbery at the Roseville Cinema and of Mr Price - 7 years and 6 months; Armed robbery at the Revesby Pacific Hotel - 7 years; Assault police officer - 6 months; Assault police officer in the execution of his duty - 12 months including a non-parole period of 8 months; Possession of an unauthorised prohibited firearm, viz an unloaded sawn-off shotgun. There was an offence on a Form 1 taken into account in connection with this offence. Haesler DCJ's remarks do not identify this but given that ammunition was found with the shotgun it seems likely that this was the offence taken into account. The indicative sentence for these offences was 2 years and 3 months including a non-parole period of 1 year and 6 months.
4. Roach had been allowed a discount of 25%. He also had a significant criminal record and his offences were committed while on conditional liberty. In other respects he had a very strong subjective case. His parents were both drug addicts, he went into care while very young and Haesler DCJ recorded that he had never really had any stability in his life. He had substantial mental illness problems including but not limited to schizophrenia and Haesler DCJ opined that he had little prospect of leading a law abiding life.
5. Haesler DCJ's remarks on the sentencing of Roach were before Neilsen DCJ when he sentenced the Respondent and it is clear that his Honour directed his mind to issues of parity.
6. The Court was informed that Roach filed a Notice of Intention to Appeal on 19 August 2015 and the time for filing a Notice of Appeal has been extended until 30 May 2016. Court records show that Roach's Notice of Intention to appeal was again extended to 30 June 2016 but has since lapsed.
7. A further co-offender, Anthony Woodman, was sentenced by Haesler SC DCJ on 9 October 2015. The aggregate sentence imposed on Woodman was 8 years and 6 months including a non-parole period of 5 years and 6 months. In summary the indicative periods of imprisonment identified in arriving at the sentence ultimately imposed were:- The aggravated car-jacking. [This offence had a Form 1 offence taken into account. Haesler DCJ's remarks do not identify this latter offence although the Crown's submissions indicate it was the destruction of the vehicle - 3 years and 4 months including a non-parole period of 2 years; Armed robbery at the Roseville Cinema and of Mr Price (the latter offence being on a Form 1) - 6 years and 9 months including a non-parole period of 2 years and 2 months; Armed robbery at the Revesby Pacific Hotel - 6 years; Possession of an unauthorised firearm, viz an unloaded sawn-off shotgun between the two robberies - 3 years including a non-parole period of 2 years.
8. Woodman had been allowed a discount of 25%. Haesler DCJ recorded that Woodman had been before the Children's Court and adult courts on a reasonably regular basis. Otherwise he had a reasonable subjective case. His parents separated when he was young and he had a hostile relationship with his father who also had a criminal record. He had made efforts to engage in work and a normal community life. He suffered from a depressive illness which led to the abuse of alcohol and drugs.
9. The fourth offender, Amanda Ridden, was sentenced by Haesler SC DCJ on 29 January 2016, i.e. after the Respondent was sentenced. The aggregate sentence imposed on her was 9 years and 6 months including a non-parole period of 5 years and 8 months. In summary the indicative periods of imprisonment identified in arriving at the sentence ultimately imposed were:- 23 September 2013 offences Armed robbery at the Roseville Cinema (with that of Mr Price being taken ito account on a Form 1) - 7 years and 2 months; Armed robbery at the Revesby Pacific Hotel - 6 years and 3 months; The destruction of Mr Bright's vehicle and a Form 1 offence (that seems to have been the car-jacking itself) - 2 years and 8 months; 24 September 2013 offences Possession of an unauthorised prohibited firearm, viz. an unloaded sawn-off shotgun - 3 years 4 months including a non-parole period of 2 years and 2 months; Assault police officer in the execution of his duty causing actual bodily harm - 9 months including a non-parole period of 5 months; Assault police officer in the execution of his duty - 4 months; Four counts of assault police officer in the execution of his duty causing actual bodily harm - each 1 year including a non-parole period of 7 months.
10. In respect of the offences committed on 23 September 2013, Ridden was allowed a discount of 10% discount for her plea. Her plea in respect of the other matters was earlier and she received a discount of 25% for them.
11. Her offences were committed whilst on conditional liberty and Haesler DCJ regarded her prior criminal history as requiring that greater weight be given to retribution, deterrence and the protection of the community. On the other hand, his Honour made allowance for the fact that Ridden had acquired a drug addiction when very young and before she had the ability to exercise adult judgment. His Honour also accepted that Ridden had ceased taking drugs, had engaged in counselling, her maturity had grown and she had turned her life around.
12. Court records show that since the hearing in this matter, Ridden has filed a Notice of Intention to Appeal. Woodman has not filed any such Notice.

Grounds of Appeal

1. Against this background, I turn to the issues that arise. The grounds of appeal relied on are:- 1. The sentence imposed was manifestly inadequate. 2. His Honour erred in his approach to "special circumstances" and the setting of an erroneously lenient non-parole period. 3. His Honour erred by mitigating the seriousness of the section 98 offence, by a finding that the Respondent "did not intend to harm the victim" and that "the harm was accidental to a large extent". 4. His Honour erred by failing to have regard to the Respondent's antecedent criminal history in accordance with the principles set out in Veen (No.2) [1988] 164 CLR 465. 5. His Honour erred by failing to consider the standard non-parole period applicable to the section 98 offence as a guidepost.
2. It is convenient to first deal with Grounds 3 to 5.

His Honour erred by mitigating the seriousness of the section 98 offence, by a finding that the Respondent "did not intend to harm the victim" and that "the harm was accidental to a large extent".

1. Section 98 of the Crimes Act 1900 breached by the Respondent's fifth offence, provides:- Whosoever, being armed with an offensive weapon, or instrument, or being in company with another person, robs, or assaults with intent to rob, any person, and immediately before, or at the time of, or immediately after, such robbery, or assault, wounds, or inflicts grievous bodily harm upon, such person, shall be liable to imprisonment for 25 years.
2. What his Honour said that is relied on in support of this ground was:- I have no hesitation in finding that the offender did not intend to inflict any harm upon the victim either actual bodily harm, let alone grievous bodily harm. The law only required an intentional act by the offender. That intentional act was seeking to ward off the victim's attempt to stop the offender robbing the victim's business. In the process of doing that the victim was pushed backwards and fell accidentally to the floor suffering a bad fracture of his right ankle. The offence alleged could be committed by somebody actually intending to inflict harm or actually intending to inflict grievous bodily harm. In my view the lack of any intention to harm the victim, the harm being accidental to a large extent, puts this case below the mid-range of objective seriousness.
3. It is clear that, as his Honour's remarks contemplated, the wounding or infliction of grievous bodily harm of which the section speaks can be done with the intention that such, or at least some, injury should occur, or without any such intention accidentally. Any assessment of the gravity of an offence under the section must of necessity take such matters into account. Hence there was no error in his Honour making findings or the remarks that are quoted in this ground or taking those findings or remarks into account.
4. Whether his Honour gave undue weight to those findings is best dealt with in the context of Ground 1.

His Honour erred by failing to have regard to the Respondent's antecedent criminal history in accordance with the principles set out in Veen (No.2) [1988] 164 CLR 465.

1. The particular passage in Veen (No.2) v The Queen (1988) 164 CLR 465; [1988] HCA 14 on which reliance is placed in this ground is (at 477):- The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell (1970) AC 642, at p 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.
2. That the Respondent had an extensive criminal history both as a juvenile and adult is apparent from what I have said. However in considering what significance or weight should be given to that history, it is important to be conscious of the use of the word "may" in the passage I have just quoted. The High Court did not say that a prior criminal history or even a substantial prior criminal history requires the imposition of a heavy or heavier sentence.
3. In his remarks on sentence, Neilson DCJ quoted at length another passage from the judgment in Veen (No.2) v The Queen that immediately preceded that which I have set out so it is impossible to conclude his Honour was not conscious of what the High Court had said. Furthermore, his Honour's remarks indicate that he was very conscious of the Respondent's criminal history. After quoting from Veen (No.2) v The Queen, his Honour remarked that the Respondent was not an appropriate subject for general deterrence and "until properly treated, the offender is a threat to the community" and then went on to remark as to the need for specific deterrence and retribution. Thus he addressed the topics of "retribution, deterrence and protection of society" to which the High Court had referred.
4. In the recourse of his remarks his Honour observed: "I have come to the view that the best way of helping both the offender and the community is to impose a lengthy period in which the offender will be eligible for parole, in the expectation that the plan of treatment proposed by Dr Furst can be carried out". Whether that was an appropriate course is best considered in the context of Ground 1 but there can be no doubt that in its terms, the instant ground fails.

His Honour erred by failing to consider the Standard Non-Parole Period applicable to the section 98 offence as a guidepost.

1. This ground is untenable. In the course of his consideration of the Respondent's fifth offence, his Honour expressly referred to the relevant statutory provisions and to their requirements. Whether he gave sufficient weight to the standard non-parole period is another matter that can be dealt with in the context of Grounds 1 and 2.

His Honour erred in his approach to "special circumstances" and the setting of an erroneously lenient non-parole period.

1. These grounds are interrelated and can be conveniently dealt with together.
2. There can be no doubt that by a number of standards - the maximum penalties, the standard non-parole periods in the cases of offences I have numbered 1 and 5, the guideline judgment in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 and the later remarks in R v Henry [2007] NSWCCA 90 - the sentence imposed and the indicative sentences were very lenient. Furthermore there can be no doubt that a number of the offences were objectively serious examples of their type. In this connection one has only to bear in mind the weapons, the number of offenders acting in company, the age of some of the victims and in some cases the number of persons subjected to threats. The victim of the 31 December offence required surgical treatment. The Respondent's criminal history and the fact that he was on conditional liberty at the time also argued for a heavier rather than a lighter sentence.
3. On the other hand, consideration had to be given to the subjective circumstances of the Respondent. Directing attention to these, Neilsen DCJ quoted some remarks of Dr Furst: Negative peer associations, limited capacity for self-reflection, and chronic impairment in his level of function by virtue of his schizophrenia and personality disorder were probably the main factors contributing to the robbery offences in question before the court. He remains at significant risk [of] relapsing into drug use and reoffending when released into the community as a product of his personality structure, poor role models and previous history of offences, warranting more intensive interventions for his addiction problems and mental illness.
4. His Honour recognised that these paragraphs pointed in different directions so far as sentence is concerned and then went on to refer to recommendations of Dr Furst for the treatment of the Respondent, initially in custody and then on parole, including in a community based drug and alcohol rehabilitation centre. His Honour quoted from Veen v The Queen (No. 2) and concluded:- I have come to the view that the best way of helping both the offender and the community is to impose a lengthy period in which the offender will be eligible for parole, in the expectation that the plan of treatment proposed by Dr Furst can be carried out. However, that does not mean that the offender is entitled to some nominal sentence. Far from it. The crimes which he has committed are serious. Whilst he is not an appropriate subject for general deterrence, because there are few in the community who labour under the disadvantage under which this offender labours, specific deterrence is still applicable. He must realise that he must do whatever he can to turn his life around. Furthermore, retribution is something that the law demands be imposed.
5. Mentally ill, deprived of a proper upbringing, and not a proper medium for general deterrence, the appropriateness of a sentence imposed on the Respondent is not to be judged by the standards applying to offenders generally. Thus the guideposts and guidelines to which I have referred, while not irrelevant, have a much more limited relevance than in most cases. By way of illustration the circumstances identified in the guideline judgment in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 do not include a deprived background such as contemplated in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 or mental illness.
6. Despite its departure from the guideposts to which I have referred, 8½ years in gaol is a very substantial punishment. It is 3½ years above the top of the R v Henry guideline and while three of the Respondent's offences were against s 97(2) rather than s 97(1), most of his offending occurred in the course of a one night criminal spree. And, as has been pointed out on numerous occasions, punishment increases disproportionately as the length of a sentence increases. Of course the 4½ years non-parole period is very much less than 8½ years but it is also substantial, particularly for someone not fully responsible for his actions. Furthermore, it must not be forgotten that the release of the Respondent from gaol is not automatic at the end of the non-parole period. It may be inferred that the parole authorities will take into account Neilsen DCJ's remarks and the Respondent's responses over the first 4½ years of his incarceration.
7. In saying what I have, I do not suggest that the Respondent has no responsibility for where he is. It is difficult to avoid the conclusion that the repetition of resort to drugs has an appreciable element of choice about it, though if it does not, and the Respondent simply cannot help himself, protection of the community argues for longer detention - c.f. Bugmy v The Queen at [44]. Courts have very obviously given him chances in the past and he has chosen not to take advantage of them. However, his Honour's remarks demonstrate that he was conscious of the various considerations that arose in the course of a very difficult sentencing exercise. Necessarily that involves a substantial area of discretion and, while his Honour could have imposed a substantially higher sentence, I am not persuaded that his Honour erred in what he did.
8. In so concluding, I am not unconscious of the fact that his Honour had made no finding as to the Respondent's prospects of rehabilitation although I hasten to add that I am not persuaded that any finding could have been much more than a guess. The Crown also submitted that there was nothing to indicate that if his Honour had made the Respondent's non-parole period 75% of the head sentence as contemplated by s 44 of the Crimes (Sentencing Procedure) Act 1999 that would not have been enough to give effect to the future treatment proposed by Dr Furst.
9. The Crown did not seek to argue against a finding of special circumstances but is correct in its submission to the effect that there was no evidence that Dr Furst's proposal could not have been implemented in a little over 2 years of parole. However, there is clearly much to be said for the view that, given the Respondent's past and disadvantages, a longer period in gaol would be unlikely to have been of benefit to him and that a longer, rather than a shorter period of supervision, might well be.
10. Before concluding I should note some particular matters raised by the Crown. During the sentencing of Woodman, Haesler DCJ said that he was unable to distinguish the roles played by Roach, the Respondent and Woodman. As I have indicated, Neilson DCJ held a different view. The difference says nothing about which judge was correct. The Crown did not seek to establish that Neilson DCJ's findings were wrong and accordingly, I do not regard the fact of different views as a matter of significance in this appeal.
11. Disparity between a lower sentence imposed on a Respondent to a Crown appeal and co-offenders does not provide grounds for allowing the appeal. However, such disparity may provide an indication that the lower sentence is manifestly inadequate. In that connection, the Crown drew attention to the differences between the sentences imposed on the four offenders once their plea discounts were added back, and between sentences imposed on Roach and on the Respondent for participation in the same offences.
12. The result of the Crown's exercise, described in the submission as "starting points" were: Roach 15 years with a NPP of 9 years 4 months Woodman 11 years 4 months with a NPP of 7 years 4 months Ridden 10 years 7 months with a NPP of 6 years 4 months The Respondent 9 years 6 months with a NPP of 5 years
13. Given the way that aggregate sentences are arrived at, no such "starting points" for the aggregate sentences ever existed. Furthermore, the comparison is simplistic. To take but one example, the penalty imposed on Roach reflected in addition to the offences involving the Respondent:- The armed robbery of a chemist shop committed on 21 April 2012 and in connection with which an aggravated break enter and steal was taken into account and for which a sentence of 4 years and 6 months was indicated. The destruction of Mr Bright's vehicle. As it was on a Form 1, no separate penalty was indicated for this offence. Assault of a police officer in the execution of his duty for which a sentence of 12 months was indicated; and Possession of an unauthorised firearm. For this offence and one include don a Form 1 a sentence of 2 years and 3 months was indicated.
14. Given these matters, and without more, I do not find in the difference in the sentences imposed on Roach and the Respondent, adjusted as I have indicated, grounds to uphold the Crown appeal. Similar remarks may be made in respect of the differences between the Respondent's sentence and those imposed on the other offenders.
15. The comparison between the sentences indicated for Roach and the Respondent for offences they had in common has more substance. For the robberies of the Roseville Cinema, Mr Price and the Revesby Pacific Hotel the sentences indicated in the case of the Respondent were each 5 years and 4 months with the qualification that if the only offences involved were the Roseville Cinema and Mr Price robberies, there would have been only 6 months accumulation.
16. In the case of Mr Roach the robbery of Mr Price was on a Form 1 and taken into account in the sentencing for the Roseville Cinema robbery. The sentence indicated for this and the Revesby Pacific Hotel, were respectively 7 years 6 months and 7 years. There clearly is a difference that calls for consideration. Neilsen DCJ's findings as to the difference in roles provides a partial explanation although given what the Respondent did do, I would not have regarded that answer as adequate.
17. Like the Respondent, Roach had a very disadvantaged background and mental illness. However, it is clear that Haesler DCJ was more concerned with protection of the community and punishment than was Neilsen DCJ and the difference in punishment is to be accounted for substantially on that ground. Again however, the difference does not establish which approach was correct.
18. In the result, the comparison suggested by the Crown does not persuade me that the sentence imposed on the Respondent, or the indicative sentences, were manifestly inadequate.

Residual Discretion

1. The Crown relied on the sentences imposed on the co-offenders, adjusted as I have indicated, in support of a submission that this Court would not decline to interfere on the ground that doing so would create disparity with the sentences imposed on the Respondent's co-offenders. Given the conclusion at which I have arrived, this issue does not arise.
2. I propose that the Crown appeal be dismissed.

Amendments 26 September 2016 - Solicitor's name DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 September 2016