R v Wilson-Winship

DECISION: 2. The sentence imposed by his Honour Judge Williams on Justin Wilson-Winship for robbery armed with an offensive weapon committed on 29 September 2005 be quashed.

3. The aforesaid Justin Wilson-Winship, for that offence, be sentenced to a non-parole period of 3 years' imprisonment commencing on 26 February 2006 and expiring on 25 February 2009 and a remainder of sentence of 3 years to expire on 25 February 2012.

CATCHWORDS: CRIMINAL LAW - APPEAL - Crown Appeal - armed robbery of bank - non-applicability of R v Henry guideline - double counting of discount on plea of guilty - manifest inadequacy.

LEGISLATION CITED: Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW)

Dinsdale v The Queen (2000) 202 CLR 321 R v AA [2006] NSWCCA 55. R v Abboud [2005] NSWCCA 251 R v Henry (1999) 46 NSWLR 346 CASES CITED: R v O'Donoghue (1988) 34 A Crim R 397 R v Prasad (2004) 147 A Crim R 385 R v Thomson and Houlton (2000) 49 NSWLR 383 R v Wall [2002] NSWCCA 42 Veen v R (No. 2) (1988) 164 CLR 465

PARTIES: Regina (Applicant) Justin Wilson-Winship (Respondent)

COUNSEL: J. Dwyer (Crown) C. Craigie SC (Respondent)

SOLICITORS: S. Kavavnagh (DPP) S.E. O'Connor (LAC)

IN THE COURT OF CRIMINAL APPEAL 2007/321

JAMES J ROTHMAN J HARRISON J

27 JULY 2007 REGINA v Justin WILSON-WINSHIP Judgment 1 JAMES J: I agree with Rothman J. 2 ROTHMAN J: The Crown appeals against the sentence imposed on the respondent, Justin Wilson-Winship, by his Honour Judge Williams on 15 December 2006. 3 The respondent was sentenced to imprisonment for a non-parole period of two years and three months to commence on 26 February 2006 and expire on 25 May 2008 with the remainder of sentence of one year and six months to expire on 25 November 2009. 4 At the time that the respondent was sentenced in this matter, he was already serving a prison sentence for earlier offences. Hence his sentence dated from 26 February 2006. 5 The sentencing judge, Williams DCJ, sentenced the respondent after a plea of guilty to the offence of robbery armed with an offensive weapon, contrary to section 97(1) of the Crimes Act 1900 (NSW). The maximum imprisonment for such an offence is 20 years' imprisonment. The date of offence was 29 September 2005.

Principles on Crown Appeal. 6 Before reciting the facts and issues raised by the Crown in their appeal, it is important to recite the principles that inform the exercise of the Court's jurisdiction on any Crown appeal. 7 The oft stated principles summarised by Wood CJ at CL in R v Wall [2002] NSWCCA 42 were cited in full in R v Prasad (2004) 147 A Crim R 385 at [27]. Those principles are 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) 76 ALJR 79 at para 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; Dinsdale v The Queen (2000) 202 CLR 32, at paras 61 and 62, and Wong & Leung v The Queen at para 109. (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 A Crim R 561, R v Papazis (1991) 51 A Crim R 242 at 247, and Wong and Leung v The Queen at para 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." 8 Those principles are, and were intended to be, a summary of the issues that must be borne in mind in dealing with a Crown appeal. To that should be added the statement in Dinsdale, supra, that the Court will have a "strong resistance" to tinkering with sentences. 9 There exists a very real and live residual discretion to refuse to intervene even where there is error, identifiable or manifest. However, the legislature has granted a right of appeal by enacting section 5D of the Criminal Appeal Act 1912 (NSW). While the Court may discourage its use on other than rare occasions, that right of appeal is exercisable by the Crown and, when such an appeal is lodged, it must be dealt with in accordance with principle. Those principles however emphasise the exceptional character of a successful Crown appeal against sentence: see R v Abboud [2005] NSWCCA 251; R v AA [2006] NSWCCA 55.

Facts and Remarks on Sentence 10 The respondent robbed a bank. He stole a total of $60,577.73. The robbery was not sophisticated but was clearly planned. 11 The respondent stole a motor vehicle on 25 July 2005, from a Gladesville address, which he used in the robbery. The date 25 July 2005 is derived from the Summary of Facts tendered below. It seems to be an error and should refer to 25 September 2005. But it is of no consequence to the outcome. On 29 September 2005, he parked the car adjacent to the bank and at 8.30am approached the locked glass front doors of the Commonwealth Bank at 537 Crown Street Surry Hills with a sledgehammer. The bank was not, at that hour, open to the public and staff members were in the process of preparing the branch for trading.

12 It may be, but there is no evidence of it, that this hour was chosen because of the particular preparations that occurred in the public area of the bank, to which I will return. 13 The accused used the sledgehammer to smash the front glass doors and gain entry to the bank. At that time two staff members were attending to a trolley containing cash and moving it across the foyer of the branch from the strong room to the teller area. 14 The accused moved towards the cash trolley telling staff to get down. Staff members were in fear and ran from the respondent towards the back area of the branch where they activated the hold-up alarms. 15 The sentencing judge, quoting from the facts tendered on sentence, referred to him going "towards the staff threatening them". There is some evidence, apart from the facts tendered that supports that statement. I accept that description, I am required so to do: R v O'Donoghue (1988) 34 A Crim R 397. One of the staff tending the trolley referred to the respondent having "the sledgehammer raised over his head in both hands, running right at us". A compelling and believable description is that given by Mr David Ong, also tendered on sentencing, in the following terms: "10. I saw him break the glass using the sledgehammer. He hit the bottom of the door with the sledgehammer causing the glass to smash. [The two staff members tending the trolley] turned around and saw what happened. [One of them] screamed and they both started running towards where the tellers are at the back of the Branch away from the front door. 11. I screamed for [them] to get the hell out of there. The guy with the sledgehammer was saying, 'Get down, get down.' He wasn't screaming or aggressive or anything like that … he was just in a hurry. He just wanted us to get out of his way and let him do his stuff. As soon as he saw all of us going in different directions and getting out of his way, he grabbed two tins holding cash. These tins were on the trolley which was parallel to the first customer studio at the Branch."

I accept the last mentioned description, as did his Honour below. 16 The respondent grabbed hold of a large cash tin and several bank bags from the cash trolley, to which there was earlier a reference, and left the bank. During the time that the cash was being grabbed and/or the time that the respondent was leaving the bank, he dropped a mobile phone hands-free earpiece onto the floor of the branch near the cash trolley. 17 The respondent then took the money out of the bank and drove off in the stolen car, which had been parked next to the bank. The car was set on fire several minutes later and the accused escaped from the area undetected. On 30 September police located a burnt sledgehammer, cash tin, mobile phone, clothing and other unidentifiable items in a car park at Macquarie Park, which items were consistent with items used by the respondent in the commission of the offence as well as part of the proceeds taken by him during the robbery. 18 A forensic analysis of DNA on the earpiece established that the respondent had committed the offences. There was also security photographs which showed the respondent with no face covering other than dark sunglasses. 19 The respondent was arrested on 17 May 2006, charged with the offence now before the Court and has been in custody ever since. While the only formal ground raised by the Crown in its appeal is that the sentence is manifestly inadequate, they point to two identifiable errors which may account for that alleged inadequacy being:

(i) failure to properly consider and apply the guideline judgment in Henry ( R v Henry (1999) 46 NSWLR 346);

(ii) failure to consider properly the effect of the guideline judgment in R v Thomson and Houlton (2000) 49 NSWLR 383 in respect to the discounts to be applied for an early plea of guilty. 20 Before dealing with the grounds of appeal it is necessary to deal with the subjective circumstances of the respondent. 21 The respondent committed the offence in question whilst he was on parole for a number of other offences. Relevantly he had served eight months of a two year sentence for break, enter and steal and had then been released to parole on 27 November 2004. On 9 September 2005 his parole was revoked for breach of his conditions of parole namely recourse to drugs. 22 On 14 October 2005 the respondent was sentenced for assault occasioning actual bodily harm and had imposed upon him a section 9 bond. He was, on that date, arrested and kept in custody to serve out the balance of his parole which expired on 26 May 2006. 23 The respondent's record goes back to the time he was a juvenile. The earliest offence occurred on 11 May 1999 (the respondent was born in 1982) at which time he was 16. That was for an assault occasioning actual bodily harm. As a juvenile he was convicted of offences involving goods in custody, assault, entering premises without lawful excuse, a breach of community service orders, custody of knife in a public place, the possession of house breaking instruments, shoplifting, larceny, and in the case of some of those offences on multiple occasions. As an adult he continued to commit offences and he has been sentenced for receiving, entering premises without lawful excuse, aggravated break, enter and steal, common assault, larceny, possession of prohibited drugs, breaches of parole and assault occasioning actual bodily harm. 24 As earlier stated, the offence in question was committed whilst on conditional liberty and was in breach of his existing parole conditions. 25 The respondent is a heavy user of ICE/cocaine and has drug addiction and/or abuse problems. Tendered to the sentencing judge was a report of a psychologist, Emma J Collins, from LennMac Consulting with which I will deal. 26 His Honour the sentencing judge found that the monies stolen were used to purchase drugs and the reason, or principal reason, for his offending was the heavy use of ICE and/or cocaine. 27 The material before the Court below, and this Court, was to the effect that the respondent's use of drugs commenced with the use of marijuana at approximately the age of 12 which he used heavily until approximately the age of 15. He also abused alcohol and commenced drinking from approximately the same age, namely, 12 years of age. 28 The respondent commenced using heroin at the age of 16, used intravenously, and was heroin dependant for at least 3 years until the age of 19. At 19 he was incarcerated and for that reason gave up the use of heroin. 29 The respondent also abused ecstasy from the age of 21 years, initially 'recreationally', but escalated with the use of ICE (crystal methylamphetamine). 30 The sentencing judge found as a matter of fact that there was significant remorse and contrition and quoted from the respondent's letter tendered in proceedings before him: "Innocent victims have been put in a position of fear and discomfort because I wanted to get high, I wish I could apologise to the victims face-to-face so that I could emphasise my regret and apologise. I am deeply sorry to the Commonwealth Bank as well, there is no justification in taking someone's property. I realise that if I do not start making some rational decisions about my life I will end up on the scrapheap." 31 As earlier stated, a psychologist's report was tendered by the respondent for the assistance of the Court. It recites matters, accepted by the sentencing judge, as to his background including some of the material to which I earlier referred relating to his drug addiction. 32 The respondent is a 24 year old Australian born male of Tongan ethnicity whose father is English. His parents separated when he was approximately 10 years old and, immediately prior to his imprisonment, he had been residing between his parents, mostly his father. He is involved in a stable relationship of approximately 18 months. He is involved, in prison, in the Smart Recovery program which is a custodial drug and alcohol counselling service. 33 His childhood was problematic with occasions of domestic violence, although he describes them as rare. His mother left the family home and his father stopped work in order to take on a full-time parenting role. At that point he saw his mother weekly or fortnightly. Notwithstanding the separation the respondent described his relationship with each of them as close. The psychologist opined that the divorce is likely to have had much more of a profound effect on him than he considers. His upbringing was a strict Mormon upbringing which was very restrictive. 34 The respondent changed schools frequently and his behaviour deteriorated each time he changed schools. This was around the time of his parents' separation. He was expelled from three schools and had been suspended during primary school years on a couple of occasions for unruly behaviour. It is clear that in his self assessment the applicant underestimates the effect of the separation of his parents and his inability to adjust to it. The report of Emma Collins, Psychologist, paints a more realistic picture. It repeats that his earlier childhood was marked by behavioural issues and that his last school at the High School level, after expulsion from three schools, was at a special school for children with behavioural problems. At that school the applicant lasted only one academic year being, once more, asked to leave on the basis of his poor behaviour. He has been incarcerated on juvenile offences. 35 The applicant commenced a pre-apprenticeship electrician course after he left school but was not given a certificate because of truancy issues. He did not work between 16 and 19 years of age because of escalating drug use and while he returned to TAFE and completed a few weeks of an electrician's apprenticeship, he did not complete that course because the employer for whom he then worked did not maintain an electrician's licence. 36 The psychologist, on testing, found that the applicant was high average to superior range of intelligence outperforming 88% of the normative sample for his age. Further testing showed that the applicant presented with a distrust of others, which the psychologist suggested was probably a reflection of the drug abuse and anti-social lifestyle he had been living. While the psychologist noted some moderate traits of anxiety and depression, she commented that "these are not elevated enough to indicate a mental disorder at present. The degree of distress is suggestive of acute stress related to his approaching sentencing, and not of an underlying and longer-term mood disorder." 37 It is worthwhile to repeat the summary and opinion presented by the psychologist: "22. Current Clinical Issues: Mr. Wilson-Winship presents with some features of a sub-clinical adjustment disturbance with mixed mood. This is based upon his psychometric profile, his self-report of secondary related distress and the limited evidence or prior psychopathology, other than a multiple substance abuse disorder. There are no current medical issues that are impacting upon his present functioning. The head injury symptoms do not appear to represent a current issue given his good performance on intelligence testing. To this end, there are no significant indicators of an Axis I or II disorder. 23. Summary and Opinion: Mr. Wilson-Winship reports an early history marked by a somewhat unconventional and likely catastrophic adjustment to his parental separation. He appears to have attempted to disengage from the marriage break down to some extent, in order to maintain a good relationship with both of his parents, and he has reportedly done so to date. However, his adjustment to school around the time of the separation showed markers of difficulty, in that he began to display oppositional and disruptive behaviours that are consistent with a conduct disturbance. It is possible that Mr. Wilson-Winship's placement between his parents allowed him to abuse any attempts at limit setting, although he did not report any difficulties in his relationship with either parents during his upbringing. He told me that he was labelled with conduct problems, and as a result began to act out and associate with stimulus seeking peers. An onset of drug abuse and delinquency occurred thereafter. Mr. Wilson-Winship's history highlights a very early initiation into substance abuse which, along with disrupted supervision due to parental discord probably led to a significant disturbance of personality development. 24. As an adult, and following a period of incarceration, Mr. Wilson-Winship appears to have maintained employment and he has stable accommodation with his parents. However, his impulsive drug abuse continued to escalate to substance dependency. Following the onset of his current relationship, he told me that he is motivated to moderate his drug abuse, and he plans to complete an electrician's apprenticeship upon his release. Mr. Wilson-Winship has a number of protective factors that should assist him desist from drug use, however some degree of ongoing therapeutic intervention would best help him with abstinence." 38 There is much evidence, accepted by the sentencing judge, that the respondent had engaged in his criminal activity on account of his drug abuse. The money stolen from the bank, in this instance, was used for the purpose of purchasing drugs for his own use and was so found by the sentencing judge. 39 The sentencing judge also accepted that the respondent had significant family support, was in a relationship with a young lady who is not involved in drugs and that, if he has the will, and with the appropriate help, he should be able to rehabilitate himself. While his Honour did not come to a firm conclusion as to whether rehabilitation would be successful, it was clear that his Honour took the view that rehabilitation was the only means by which the criminal conduct of the respondent would cease and the only remaining opportunity for the respondent to get his life in order. 40 His Honour took into account that there was some planning in this matter as an aggravating feature of the offence pursuant to the general law and the terms of section 21A of the Crimes (Sentencing Procedure) Act. His Honour then remarked as to the effect of R v Henry, supra and R v Thomson and Houlton, supra. His Honour said: "Of course this is a very serious matter. There is now a guide line judgment that applies to such robberies. The crown has referred to the matters taken into account when dealing with these sorts of matters in R v Henry 1999 46 New South Wales Law Reports at 346. The court formulated a guideline for a category of case which they thought was sufficiently common for the purpose of determining a guideline and which would comprise the following elements. A young offender with no or little criminal history, well Mr Wilson-Winship is young, but he does have a criminal history. (2) A weapon like a knife capable of killing or inflicting serious injury. Well the weapon in this case was a sledge hammer. (3) A limited degree of planning. (4) Limited, if any, actual violence but with a real threat thereof. (5) Victim in a vulnerable position such as a shop keeper or a taxi driver. (6) Small amount taken. (7) Plea of guilty the significance of which is limited by a strong crown case. There has also been a guideline judgment of R v Thompson (sic) and Houlton which in a sense qualified that last aspect, that is if a person does plead guilty at the earliest opportunity, they are entitled to the full discount." (Remarks on Sentence pages 6 and 7). 41 It is the latter comment and the utilisation of Henry and Thomson and Houlton and the manner of their utilisation that is the main thrust of the Crown appeal.

Grounds of Appeal 42 His Honour took into account special circumstances and no complaint is made in relation to such a finding. Further there is no other complaint about the findings of fact made by his Honour. In terms of the length of sentence his Honour said: "I think that this matter really falls in the top end of the scale as far as R v Henry is concerned and I would have thought in all the circumstances an appropriate penalty would have been one of 5 years' imprisonment. I reduce that by 25% for the plea of guilty to a term of 3 years and 9 months." 43 Two obvious matters arise. First, the factual findings of his Honour and the circumstances of both the offender and the offence make the guideline judgement in R v Henry inapplicable. Secondly, R v Henry assumes a plea of guilty, albeit late and the importance of which is limited by a strong Crown case. In those circumstances the further reduction of 25% for the plea of guilty results (at least in relation to the 10% assumed discount in R v Henry) in a double counting. 44 Mr Craigie SC, who appeared for the respondent, sought to negate each of these concerns by submitting that the reference to the scale in R v Henry was a convenient but coincidental matter and that his Honour was exercising afresh the sentencing discretion. The fact that the 5 years' imprisonment was described as "the top end of the scale as far as R v Henry is concerned" was, as I understand the submission, coincidence and a convenient reference point, not an application of the guideline judgment. 45 R v Thomson and Houlton (2000) 49 NSWLR 383 is a guideline judgment in respect of a discount for a plea that has been given. It makes clear that there are a number of principles embodied in the application of section 22 of the Crimes (Sentencing Procedure) Act. R v Thomson and Houlton states: "160 The Court should adopt the following guideline applicable to offences against State laws: (i) A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight. (ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence in so far as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant - contrition, witness vulnerability and utilitarian value - but particular encouragement is given to the quantification of the last-mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, for example, assistance to authorities, a single combined quantification will often be appropriate. (iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 per cent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge. (iv) In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In some cases a plea will not lead to any discount." (Per Spigelman CJ, with whom Wood CJ at CL, Foster AJA, Grove and James JJ agreed). 46 I accept in the circumstances of the case before the sentencing judge that an appropriate discount was allowable and that the range was from 10% to 25%. It would have been appropriate and would not have been an error for his Honour to allow a discount of 25% of the sentence otherwise to be imposed. However, it was an error to allow a discount of a further 25% because it was applied to an already discounted sentence based upon the range in R v Henry. 47 In applying discounts for an early plea of guilty, sentencing judges, even experienced ones such as Williams DCJ, may often overlook that guideline judgments on particular offences may already include a discount for a plea of guilty. 48 Notwithstanding the sterling efforts of Mr Craigie SC, it seems undeniable, on the comments of his Honour, that his Honour applied the scale in R v Henry and therefore double counted, to the extent of 10% of the head sentence, the assessment of an early guilty plea. Further his Honour applied the top of the range in R v Henry.

49 R v Henry, as already stated, is a guideline judgment relating to a breach of section 97 of the Crimes Act with which the respondent was charged and to which he pleaded guilty. As the judgment of the Chief Justice in R v Henry makes clear any guideline, but particularly one dealing with offences against section 97(1) of the Crimes Act, must recognise the range of objective and subjective factors relevant to the exercise of the sentencing discretion and that therefore there will be variations over a wide range. His Honour the Chief Justice said: "126 The determination of an appropriate sentencing guideline for offences against s 97(1) must commence with a recognition that the objective and subjective factors relevant to the exercise of the sentencing discretion, may vary over a wide range: see, eg, R v Brown (1989) 17 NSWLR 472 at 473-474. As I said in R v Jurisic (at 230-231) with respect to s 52A: "The nature of the offence is not such that the Court can devise a simple table in which indicative penalties are linked to a quantitative measure of the offence. ... What can be done, however, in case of an offence concerning a wide range of conduct which varies qualitatively rather than quantitatively, is to indicate in a general way the kind of case which would usually require a particular kind or level of sentence, whilst acknowledging that there will always be exceptional cases.'" 50 Guideline judgments are not a matrix for the mechanical application of a sentence based upon the combination of parameters within that matrix. They are in the true sense "guidelines". The Chief Justice proceeded to comment that in terms of cases that come to the Court of Criminal Appeal there seem to be a category of case which is sufficiently common to enable the setting of a guideline as to sentence. The Chief Justice said: "162 It appears from the cases that come to this Court, including the present proceedings, that there is a category of case which is sufficiently common for purposes of determining a guideline: (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) Plea of guilty, the significance of which is limited by a strong Crown case.

163 Whilst it is possible to determine a starting point in a case of this kind, that is, a sentence of X years imprisonment, I do not believe that the Court should do so. Rather, I propose the Court should identify a narrow sentencing range within which this Court would expect sentences in such cases to fall.

164 There are two principal reasons why a sentencing range is appropriate for this offence: (i) The seven characteristics identified above do not represent the full range of factors relevant to the sentencing exercise. (ii) Many of the seven identified characteristics contain within themselves an inherent variability, for example, different kinds of knives or weapons in (ii); extent of 'limited actual violence' in (iv); degree of vulnerability in (v); amount in (vi).

165 In my opinion sentences for an offence of the character identified above should generally fall between four and five years for the full term. I have arrived at this figure after drawing on the collective knowledge of the other four members of the Court with respect to sentence ranges. I have also reviewed the sentences which this Court has imposed on occasions when it has intervened, including in Crown appeals where the principle of double jeopardy applies. The proposed range is broadly consistent with this body of prior decisions in this Court.

169 Aggravating and mitigating factors will justify a sentence below or above the range as this Court's prior decisions indicate. The narrow range is a starting point.

170 In addition to factors which may arise in any case, for example, youth, offender's criminal record, co-operation with authorities, guilty plea in the absence of a strong case, rehabilitation efforts, offence committed whilst on bail etc, a number of circumstances are particular to the offence of armed robbery. These include: (i) nature of the weapon; (ii) vulnerability of the victim; (iii) position on a scale of impulsiveness/planning; (iv) intensity of threat, or actual use, of force; (v) number of offenders; (vi) amount taken; (vii) effect on victim(s)." 51 If a comparison with R v Henry were to be made for this sentence then there are a number of aggravating and mitigating factors. The respondent is not a young offender with no or little criminal history. It was not a small amount taken. The plea of guilty is of great significance and was entered at the earliest possible opportunity. The issues relating to rehabilitation efforts are to the credit of the respondent but the fact that the offence was committed whilst on conditional liberty is to his disadvantage. The nature of the weapon used is an aspect which goes to ameliorate the culpability of the offender. 52 However, it is my view that the guideline judgment in R v Henry is inapplicable. The seven factors which give rise to a sufficiently common category of case do not apply to this offence. The offender is not particularly young and he has a long history of drug related criminal activity. This offence was a qualitative increase in the criminal conduct in which the respondent had been engaged. Further the weapon, a sledgehammer, was more for the purpose of breaking into the bank than for the purpose of being a serious threat to any of the bank employees inside. While, no doubt, it had the effect of scaring those employees (and was used for that purpose) it was a weapon that was easily avoided and would not generally be used for the purpose of killing or inflicting serious injury. It certainly was not a weapon like a knife. The clear intent of the offender was to use the sledgehammer to break into the bank, ensure that the staff would avoid him while he stole the money, which he then did. The degree of planning was greater than "limited" and a significant amount of money was taken. 53 Having stated the above, it seems clear, that this is not a case with which R v Henry was concerned. However, the guideline judgment in R v Henry is still a factor to which a sentencing judge should have regard, even in those cases which do not fit the circumstances that gave rise to the guideline.

54 It seems that the sentencing judge paid particular attention and gave particular significance to the respondent's opportunity and necessity for rehabilitation and the assessment of the psychologist in that regard, together with the support of his family and his partner in the relatively newly formed relationship. 55 Mr Craigie SC submits that the Court should exercise its residual discretion, a discretion that is often exercised in Crown appeals, to avoid the double jeopardy associated with increasing the sentence on appeal. There is no doubt that the assessment of an experienced sentencing judge such as Williams DCJ should be given full force and effect. 56 His Honour was obviously impressed by the prospects of rehabilitation and the genuineness of the respondent's attempts at it. That confidence is strengthened and supported in this Court by the cogent material tendered on behalf of the respondent for use should this Court need to re-sentence. That material supports a genuine and thus far successful attempt at rehabilitation. 57 Nevertheless, given the amount of money involved and the seriousness of the criminal activity, the sentence imposed by Williams DCJ was manifestly inadequate. This is not a case for the exercise of the residual discretion reposed in this Court. 58 However, the injunction and the principles apply, namely, that in Crown appeals the sentence imposed, if it is to be increased, ought be less than that which would have been imposed by a sentencing court at first instance, and ought be at or towards the lower end of the available range of sentences. 59 I accept and reiterate the sentencing judge's comments and findings relating to special circumstances. There is a need for the respondent to have a continuing opportunity at rehabilitation and it is necessary that he has the support that is currently available exercised in a way that encourages the respondent to deal with his drug abuse. This seems the only basis upon which the respondent can reinstate the semblance of a normal life. Society will also benefit from such a course not only because it will be beneficially affected by his lack of criminal conduct but also because it will have the benefit of a person of above average intelligence working positively rather than negatively. 60 The maximum sentence for a penalty under section 97(1) of the Crimes Act is 20 years. This is clearly not a worst case and must be measured against the comparison with the factual circumstances that gave rise to the standards set in R v Henry. In R v Henry the head sentence, before discount was approximately 5½ years. 61 In the current case, I bear in mind the comment of the High Court in Veen v R (No. 2) (1988) 164 CLR 465. As such the list of prior offences of the respondent does not increase the objective seriousness of the offence committed, but makes more obvious the necessity to fix a sentence that pays due regard to the need for retribution, deterrence and protection of society and therefore warrants a more severe sentence than might otherwise be the case. Nevertheless, as already stated, given that this is a sentence to be imposed on appeal, it must be at the lower, if not lowest, end of the range available. 62 Bearing in mind the need for deterrence referred to in Veen, supra, but also bearing in mind the significant ameliorating factors and the special circumstances associated with the offender and the nature of sentence on Crown appeal, I consider that a head sentence of 8 years' imprisonment, before discount, is appropriate. I apply, consistent with his Honour's findings, a 25% discount to give a total sentence of 6 years' imprisonment. 63 I take the view that the Court should encourage, not discourage, the positive steps thus far successfully taken by the respondent in rehabilitation and I accept his Honour's view that it is necessary to have an extended period of parole. Indeed, on the material before this Court a much larger proportion of his sentence should be available for supervised liberty. 64 Bearing in mind the nature of a Crown appeal, the special circumstances associated with rehabilitation and the steps already taken to achieve rehabilitation, I would propose to structure the sentence on the basis of a non-parole period of 3 years' imprisonment to commence on 26 February 2006 and expire on 25 February 2009 with a parole period of 3 years to expire on 25 February 2012. 65 Such a sentence structure leaves in the hands of the respondent his capacity to obtain parole and to continue rehabilitation during incarceration and during his release into the community, failing which, no doubt, significantly more of his sentence will be served in prison. 66 I propose the following orders:

(a) appeal by the Crown against the sentence imposed by his Honour Judge Williams on 15 December 2006 be granted;

(b) the sentence imposed by his Honour Judge Williams on Justin Wilson-Winship for robbery armed with an offensive weapon committed on 29 September 2005 be quashed;

(c) the aforesaid Justin Wilson-Winship, for that offence, be sentenced to a non-parole period of 3 years' imprisonment commencing on 26 February 2006 and expiring on 25 February 2009 and a remainder of sentence of 3 years to expire on 25 February 2012. 67 HARRISON J: I agree with Rothman J. **********

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