Calculation of the Sentence for Armed Robbery
41Dealing firstly with the armed robbery charge, the sentencing judge referred to the guideline in R v Henry (1999) 46 NSWLR 346 as relevant, noting that the seriousness of the offence escalates depending on the weapons used and how they are used and noting also that it was important not to double count the effect of the use of the firearm for the robbery and the murder of Mr Rashid. His Honour noted, as earlier stated, that the robbery was planned, although not as planned as many, and was aggravated by the firing of the non-fatal shots. His Honour mentioned the relevant discount for a plea of guilty and the significant added element of leniency on account of the Ellis factors. His Honour also thought that the applicant's criminal history was more relevant to the armed robbery charge than to the murder charge. He concluded -
"The maximum sentence is imprisonment for 25 years, which is the main guidepost to the fixing of a sentence. Further, generally heavy sentences are appropriate for persons who commit armed robbery in order to feed a drug habit, as was the case for Mr Raad: R v Ellis (1993) 68 A Crim R 449." [Emphasis added.]
Although there was no appeal in respect of this sentence, I wish to deal with what, in my respectful opinion, are serious errors in the above statement, lest it be thought that by my silence I agreed with them.
42In my opinion, the maximum sentence in respect of any offence cannot be the " main guidepost for the fixing of a sentence" unless the offence either falls within the class of most serious cases for the commission of the offence or is close to it. In R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 this Court said (omitting references) -
"[51] The statutory maximum penalty has been regarded as an expression of the policy of the legislature in providing for the offence ... or as a reflection of the seriousness of that offence as perceived by the public ... It has been reserved for the "worst type of case falling within the relevant prohibition" ... although the adoption of that phrase is not an occasion for the imposition of a lesser sentence if it is possible to envisage a worse case ...
[52] Traditionally any intention on the part of the legislature that the offence should attract a heavier sentence has been manifested by an increase in the statutory maximum ... The courts are expected to recognise and reflect that intention when sentencing offenders for offences after such amendments are made ...
[53] There is nothing in Division 1A [of the Crimes (Sentencing Procedure) Act 1999, providing for standard non-parole periods] to suggest that the statutory maximum ceases to provide a benchmark, or a reference point, in sentencing, so far as it is a manifestation of legislative intention as to the seriousness of the offence. The focus is, however, likely to shift more towards the standard non-parole periods where they apply, since they may be taken to express a legislative intention as to the minimum periods of actual imprisonment, which are appropriate for the relevant offences."
43In Markarian v The Queen [2005] HCA 25 the significance of the maximum sentence was explained by Gleeson CJ, Gummow, Hayne and Callinan JJ in the following terms -
"[31] It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors , a yardstick. [Emphasis added.] That having been said, in our opinion, it will rarely be, and was not appropriate for Hulme J here to look first to a maximum penalty ...and to proceed by making a proportional deduction from it. That was to use a prescribed maximum erroneously, as neither a yardstick, nor as a basis for comparison of this case with the worst possible case. That he used the maximum penalty impermissibly appears from his Honour's particular deference to it in this passage:
"Parliament cannot have intended that, other things being equal, the penalty for supplying more than 250 g should be less than for supplying that quantity."
The form of the statement is explained by the fact that his Honour did not start with the maximum penalty for an offence involving the quantity in question, but used another maximum penalty as his starting point, that is, the maximum for an offence in the category of seriousness immediately below that of the principal offence."
44I discussed this issue in Gore and Hunter v R [2010] NSWCCA 330 as follows (quoted not because it is authoritative but simply because there is no point in attempting to rephrase it) -
[37] [After setting out the above passage from Markarian.] It is vital, as it seems to me, to give full weight to the italicised phrase to avoid the tendency to give the maximum term too much, even determinative, significance. In referring to the rarity of appropriately starting with the maximum, their Honours were not only referring to the order of reasoning but also the mode of applying it as a "yardstick". Of course, as a matter of logic, the problem of according the maximum penalty any primacy of significance over the other relevant factors to be taken into account is accentuated by the difficulties involved in comparing a case that is not in the worst category with (a necessarily hypothetical) one that is, and then attempting to make some adjustment - which must be itself highly impressionistic (or instinctive) - to apply the comparison in any useful way.
[38] Accepting the maximum sentence as reflecting the Parliament's view of an appropriate sentence for a worst category case - this being in fact a necessary construction having as its basis constitutional theory rather than any actual historical reality - it does not follow at all that any inference can be drawn about the intention of Parliament as to what kind of case would fall into the category which should attract a sentence, say, halfway between zero and the maximum or a third or a quarter of the way and so on - which points to the inherent illogicality of the opposite approach. (I pass over the not insubstantial problem of what is meant by zero in this calculus and what would be a case falling into the least serious category.) Putting this in another way, it cannot be right to reason that, by virtue of the maximum sentence, any sentence in a case of significantly less culpability can be calculated, even broadly, by reference to the maximum. This is to give illusory measurement to essentially incommensurable factors. Thus, it simply cannot meaningfully be said of any given set of circumstances, that, for example, they are half (or nearly half or broadly half) as serious as a case in the worst category. By parity of reasoning (with unfeigned respect for those who take the other view) it cannot be right to either criticise or approve a sentence by reference to the proportion it bears to the maximum. All one can say is that the culpability in the former falls short by an indeterminate (but, say, major or minor) degree from that which would bring the case into the worst class. The greater the degree by which the instant case falls short of the worst category, so also must the sentence be short of the maximum but, since no comparison can give rise to an arithmetical proportion - or a range of proportions - in virtually every case the maximum can provide no more than a very broad perspective.
[39] The very fact that the worst category case must, of necessity, be a hypothetical construction is also a substantial (indeed, to my mind insurmountable) difficulty in the way of using it comparatively for the purpose of any kind of calculation."
45Taking up the sentencing judge's assessment of the significance of the applicant's drug habit in respect of the seriousness of the armed robbery, the judgment his Honour referred to ( Ellis v R (1993) 68 A Crim R 449 - not the confessional Ellis ) is not, with respect, authority for characterising the offender's drug habit as an aggravating feature or requiring a heavier sentence than would otherwise be the case. The true significance of an offender's addiction was discussed in R v Henry (1999) 46 NSWLR 346: per Spigelman CJ at [171 ff] and per Wood CJ at CL at [215 ff], the latter citing what Hunt J said in Ellis as a refusal to consider drug addiction as a mitigating factor. Both their Honours make clear, however, that the need to support a heroin habit may provide an explanation for the offence and support the finding of other connected mitigating features.
Calculation of the sentence for murder
46The approach of the sentencing judge to the sentencing of the applicant for the murder of Mr Rashid was expressed as follows -
"[32] ... Most of this offence I have already discussed or are covered in the subjective matters that I have dealt with in relation to the armed robbery. I bear in mind that the sentence must be imposed under the regime that existed prior to the institution of a standard non-parole period and in accordance with the range of sentences that would have applied at the time of the offence. The statistics, from the Judicial Commission of New South Wales, provided by counsel, are of some assistance, but not overly helpful. The statistics provided disclose the term of the sentence, ie the head sentence, imposed for murder in circumstances where there was no standard non-parole period that applied. It shows that the top third of the sentences imposed were for 22 years and above. Of course these statistics take into account sentences imposed on persons who had pleaded guilty and were the subject of significant discount. Nevertheless, to the extent that they disclose a range of sentences, it is appropriate that the commencement point for the sentence to be imposed for this murder ought be at the bottom of the top-third of that range, namely, 22 years. That is the commencement point suggested by the Crown and, in this case, I accept that it is an appropriate point.
[33] As already stated, I apply the highest level of discount for the plea of guilty and a significant discount for the factors associated with the voluntary disclosure and those factors associated therewith. But I fix a sentence, which I consider to be appropriate in all the circumstances.
[34] I do not find special circumstances. The sentence that I will impose will have a sufficient non-parole period to allow for his supervision and to ensure that he returns to a life without crime, without drugs and alcohol, and with the kind of stability that has earned him a leniency that, for such a serious offence, would not otherwise be given."
47It is my respectful opinion that the sentencing judge's use of the JIRS statistics constituted a significant error. There is no explanation, either in point of principle or assessment of relative seriousness, for selecting the "bottom of the top third" of the sentences passed for all murders as representing the appropriate starting point for this particular case. Accepting that one can, in a broad sense, compare the seriousness of this case with other cases of murder, the range of objective and subjective facts varies so greatly as to prevent any classification on the basis of a proportion of the sentences passed for all cases, especially because the various types of murder differ in their elements and there is no basis for thinking that any of the sentences in the top third are for felony murder. If one were to make a general statement of relative seriousness (omitting subjective features) to my mind, other things being equal, the killing of a person intending to do so involves a higher degree of moral turpitude than killing without such an intention, whilst killing where there is no intention either of inflicting death or serious injury involves still less moral turpitude. Broadly speaking, felony murder falls into this class. Of course, other things are usually not equal at all, so at this level of abstraction such a generality is only slightly, if at all, informative. Yet this is the level of abstraction that corresponds with the opacity of the statistics utilised by the sentencing judge. In principle, it cannot provide an appropriate determinative measure of the starting point for a particular sentence, a fortiori when the subjective features are included in the arithmetical result. It will have been noted that there were significant subjective factors other than the Ellis personal features that were relevant to the applicant's sentence. Their significance could not be taken into account by mere reference to the statistics. Putting the argument in another and perhaps simpler way, assume that all the objective and subjective features of the cases in the sample were known; what happened here would have entailed regarding all those circumstances as irrelevant. In principle, this cannot be right. Another difficulty is that the sample comprised 143 sentences imposed between July 2001 to June 2008, of which 13 were life sentences, a little over 25% of the sentences in the top third. Apart from skewing the class upwards, life sentences are indeterminate, and so cannot yield any number for calculating the "bottom of the top third".
48In Hili v The Queen ; Jones v The Queen [2010] HCA 45, especially at [48]-[49], the High Court criticised the use of the Judicial Commission's statistics for the purpose of considering the appropriateness of the sentence under consideration in that case. Dealing with the question of consistency, the Court said -
"[48] Consistency is not demonstrated by, and does not require, numerical equivalence. Presentation of the sentences that have been passed on federal offenders in numerical tables, bar charts or graphs is not useful to a sentencing judge. It is not useful because referring only to the lengths of sentences passed says nothing about why sentences were fixed as they were. Presentation in any of these forms suggests, wrongly, that the task of a sentencing judge is to interpolate the result of the instant case on a graph that depicts the available outcomes. But not only is the number of federal offenders sentenced each year very small, the offences for which they are sentenced, the circumstances attending their offending, and their personal circumstances are so varied that it is not possible to make any useful statistical analysis or graphical depiction of the results.
The Court cited with approval what was said by the plurality in Wong v The Queen (2001) 207 CLR 584 at 606 [59] -
"... recording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were." [My emphasis.]
49Accepting that past sentences may illustrate the range which can be "of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and appellate courts" ( Director of Public Prosecutions (Cth) v De la Rosa [2010] NSWCCA 194 per Simpson J at [303]) and "can and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence" (ibid at [304]), even then they cannot be used arithmetically to determine a sentence or a key element in the sentencing calculation such as the starting point here. Depending on the size of the sample and the judicial experience of cases within it, the statistics might well provide a useful checkpoint or warning signal but cannot be anything more than suggestive.
50Here, the sentencing judge used the statistics to determine what his Honour described as the "commencement point for the sentence to be imposed". Although it may be, as was conceded by counsel for the applicant in this Court, that 22 years was, as it happened, not outside the available discretionary range (and even assuming, though his Honour does not say so, that this consideration confirmed the result of the arithmetic), to give to this term the significance of a starting point was, to my mind and with every respect to the sentencing judge, fundamentally wrong. And the mere fact that it might happen to be within an appropriate discretionary range does not make this error any less significant, since it was the reason given by his Honour for selecting the figure of 22 years. Had his Honour not made this error, he might well have selected a significantly lower figure as the starting point.
51To my mind, the sentencing judge erred in another significant respect. His Honour identified the "highest level of discount for the plea of guilty" (25%) as applicable and added "a significant discount for the factors associated with the voluntary disclosure and those factors associated therewith". Quite what his Honour meant by this phrase is uncertain but it seems to be that the approach taken was to isolate all the features connected with the voluntary disclosure (both personal and policy) and apply them to reducing the commencement point of 22 years together with the discount for the plea of guilty. Identifying the policy reduction is understandable, indeed, necessary when giving a discount for a plea or assistance, since it must apply to the sentence which would otherwise be imposed. It is utilitarian in function and does not depend on the personal characteristics or subjective features of the offender. It is wrong in principle, however, to start with a number reflecting the objective factors and then reduce it by reference to subjective factors that should form part of the objective/subjective synthesis. There is much to be said for adopting in Ellis cases the approach used for pleas of guilty and in the other assistance cases, namely to specify the utilitarian discount given, not only in the interests of transparency, but to further the policy objective of the discount. As demonstrated by the examples mentioned above, this approach has not yet been adopted and, though in my view desirable, is not essential. This is not, however, what the sentencing judge did, since his Honour decided on the starting number absent the policy and personal Ellis features and the applicant's other subjective matters.
52Let me now move to the calculation undertaken by the sentencing judge. Applying a utilitarian discount of 25% for the plea of guilty to the commencement point of 22 years yields 16 years and six months. The ultimate head sentence of fourteen years accordingly reflected an allowance of two years and six months (or just over 15%) for what his Honour called "the factors associated with voluntary disclosure". With all respect, this reduction could not be said to provide any real encouragement to other persons in the applicant's position to come forward to confess their guilt of the crime of murder. To the contrary, I believe it can only be characterised as likely to deter any offender who might be minded to do so.
53No special circumstances were found that justified any adjustment of the statutory ratio of parole period to total sentence. If the applicant had been sentenced to a head sentence of 16 years and six months, the "default" non-parole period would have been slightly over 12 years and four months. The applicant's non-parole period of ten years and six months thus represented a deduction for the Ellis features of only one year and eight months. This emphasises the above conclusion, namely that the sentence imposed, so far from encouraging a person in the applicant's position to come forward, would powerfully deter him or her from doing so.
54Putting this in another way, Kirby J said in Ryan -
[91] [Referring to the language of Street CJ in Ellis , and McHugh J in AB v The Queen , the] ... words "significant" and "considerable" are adjectives of degree. Prima facie a large deduction in sentence is appropriate in such a case. Otherwise, the judges concerned, when they expressed the applicable rule, could have used lesser adjectives, such as "modest" or "minimal" or perhaps the ever enigmatic "appropriate"...
In my opinion, the applicant was not accorded a "significant", "considerable" or "large" deduction but, rather a "modest" or "minimal" one.
55I therefore respectfully conclude that the sentence was affected by significant errors of law and was also manifestly excessive.
Special circumstances
56When dealing with the question of special circumstances, the sentencing judge referred only to the issues of future supervision and continuing rehabilitation. It is not clear whether he formed the view that the Ellis factors were not capable of being special circumstances within the meaning of s 44(3) the Crimes Sentencing Procedure Act 1999 or that, being special circumstances, they did not justify adjustment of the parole period or, perhaps, that they were already accounted for in setting the head sentence and it would amount to double counting if they were utilised to adjust the non-parole period. Since the applicant must be resentenced ( Douar v The Queen (2005) 159 A Crim R 154; Baxter v The Queen (2007) 173 A Crim R 284), it is not necessary to deal with the contention of counsel for the applicant that the sentencing judge erred in disregarding the Ellis features in his assessment of special circumstances.
57For the reasons set out below, I am of the view that Ellis considerations are special circumstances capable of justifying a variation in the s 44 ratio and do so in this case. Apart from more direct reasons, it is clear from the cases cited above that this Court has habitually taken this approach.
Resentence
58In considering this question, I have taken account of the sentences passed in the cases discussed above. It is unnecessary, indeed inappropriate, to make a detailed comparison of those cases with each other and the present case. They exhibit, however, a broad consistency of outcome which is informative. Whilst the subjective features of some of the offenders were somewhat more mitigating than those of the applicant, it seems to me that the objective nature of the murders they committed were, on the whole, markedly more serious than that committed by the applicant. The most obvious more serious elements were the intention to kill (except in one case) and the premeditation in every case.
59It is appropriate to accept the sentencing judge's factual findings and assessment of the relevant objective features of the crime and subjective features of the applicant. This was objectively a serious case of felony murder, in which the applicant killed the deceased by intentionally firing a loaded firearm brought to the scene to effect the armed robbery of the deceased. He did not intend to cause death or grievous bodily harm but must have realized that, with the safety catch off and his finger on the trigger, serious injury if not death was a reasonable possibility. Subjectively, the applicant was aged 40 years at the time, with an appalling criminal record including offences of armed robbery. His early life was tragically dysfunctional and he lived on the streets from the age of fifteen, where he started abusing drugs and became a drug addict. He had periodically managed to stop using but had lapsed shortly before the offence. He voluntarily confessed to his crime, motivated by powerful feelings of remorse, and was for all practical purposes completely rehabilitated. His strong continuing family support was the major factor in the applicant's rehabilitation and will remain of vital importance. As the sentencing judge opined, subject to the effects of gaol itself, reoffending is most unlikely.
60The applicant's affidavit discloses that he has made as much good use of his time in gaol as is possible, undertaking various education courses and working as a machinist. He says that the other inmates "don't talk to me much" because he gave himself in but says "I can handle that". He says that he has no friends but this does not worry him. He is very concerned about the difficulty his wife has in visiting him given the location of the gaol where he is presently being held and hopes to move closer to Sydney. There is no indication of when this might occur, if ever. Whilst his isolation from other prisoners does not, at the present, worry the applicant, this is a significant hardship as it seems to me, when prolonged and is exacerbated by the inability of his family to visit him. To my mind, since his family's support was the major factor in the applicant's reformation, his isolation from them is an important factor to be taken into account on sentence. The sentencing judge mentioned the importance of his family connexion in counterbalancing to some extent what must be accepted as the deleterious effects of long-term imprisonment.
61Applying a deduction of 25% for the applicant's plea of guilty and an additional discount for the Ellis factors, including the policy objective of encouraging offender's such as the applicant to come forward, I would impose a head sentence of twelve years. In my opinion this sentence, although significantly less that that which would be appropriate in light of the facts and circumstances of the offence, is not unreasonably disproportionate having regard to the policy considerations to which I have already referred.
62I now turn to the non-parole period.
63At least three matters comprise, on the face of it, special circumstances justifying a variation of the statutory ratio between the balance of the term and the non-parole period. These are the need to ensure that the minimum sentence to be served encourages persons who have committed murder to come forward, the social isolation of the applicant in gaol which not only renders his imprisonment more harsh than otherwise but can have a seriously deleterious affect over the long term, and his separation from his family, who have been the principal contributors to his rehabilitation which it is in the public interest to maintain and encourage.
64The application of s44 of the Crimes Sentencing Procedure Act 1999 was considered by a five judge bench of this Court in R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704. After citing a number of decisions to the effect "that the purpose of a non-parole period was not to fix the minimum sentence to be served, so as to ensure that an offender did in fact suffer at least that degree of actual punishment ... [but to] give primary weight to the rehabilitative purposes of parole, Spigelman CJ (with whom the other judges agreed, Sully J adding some further remarks) pointed out that this approach was held to be wrong in Power v The Queen (1974) 131 CLR 623 and added -
"[57] The reasoning in Power indicates that it is not appropriate to determine the non-parole period primarily from the perspective of the length of the period of supervision on parole. Indeed, the primary perspective should be the length of the minimum period of actual incarceration. By enacting a provision that only works one way - requiring specific justification for a lower proportion but not for a higher proportion - Parliament has, in my opinion, reinforced this as the primary perspective. This has the effect that the scope of the considerations relevant to the determination of "special circumstances" must encompass the full range of issues which are relevant to the determination of the minimum period of actual incarceration without hope of release on parole.
[58] The length of the non-parole period remains, however, of potential significance. Indeed, the requirements of rehabilitation would be best computed in terms of a period of linear time, not in terms of a fixed percentage of a head sentence. The desirability of a longer than computed period of supervision will be an appropriate approach in many cases. It is not, however, the only perspective."
65Having noted that "there is the ultimate constraint that the non-parole period must itself appropriately reflect the criminality involved in the offence" [63] his Honour went on to say -
"[65] In addition to the need to identify and articulate "special circumstances", in order to overcome the statutory constraint on the exercise of the discretion to fix a non-parole period, the need to ensure that the time an offender must spend in prison reflects all of the circumstances of the offence and the offender - including the objective gravity of the offence and the need for general deterrence - operates to confine the proper range for the exercise of the discretion. ...
...
[67] Where a circumstance is taken into account by way of reduction of the head sentence, the application of the statutory proportion will have the result that the circumstance also reduces the non-parole period. Before a sentencing judge further reduces the non-parole period by reason of that circumstance, he or she must undertake a process of analysis which travels beyond that which has been undertaken in the course of determining the head sentence."
66I interpolate the observation that there is a logical tension created by requiring on the one hand that the non-parole period must itself appropriately reflect the criminality involved in the offence and applying the very same test to the head sentence, it being a given, by virtue of s 44(3) that, in the absence of special circumstances, the non-parole period will be 75% of the head sentence. This tension is all the greater when it is appreciated that release at the end of the non-parole period in respect of a sentence of longer than three years is not at all automatic. The distinction must therefore lie in the fact that the non-parole period represents the time which must be spent in prison whilst the head sentence represents a period of which, absent special circumstances, 25% may be served at large if the prerequisites of the grant of parole are, in the opinion of the Parole Board, satisfied, that liberty itself being conditional upon complying with the conditions of parole. So considered, it does not seem to me to be double counting to have regard to a particular circumstance which operates to reduce a head sentence, necessarily in an unspecified way (unless quantified for assistance) and also treat it as a special circumstance which additionally justifies the downward variation of the non-parole period from that which would result from the statutory ratio. Here the circumstances in which the offender's guilt came to light are certainly exceptional by any standard and, to my mind, clearly constitutes a "special circumstance". In accordance with the principle enunciated in Ellis , of course its presence has the result of significantly reducing the head sentence. In my view, the policy of extending such leniency in order to encourage others in the position of the applicant to come forward can also affect in a marked way the actual minimum term which must be served in prison to give effect to that policy, recognizing, however, that the ultimate minimum term must not be unreasonably disproportionate to the facts and circumstances of the offence.
67In setting the head sentence, I have made some allowance for the applicant's situation in gaol as representing increased harshness but not in respect of the potential effect of the long term continuation of that situation on his rehabilitation. I did not take into account the effect of separation from his family. Of course, it is scarcely a "special circumstance" for a prisoner to be separated from his or her family and for visits to be difficult if not impossible because of the location of the gaol. However, in this case, the applicant's remarkable rehabilitation which led him to confess to a very serious crime, at the inevitable risk of going to prison for a long period, was so much the extraordinary product of his relationship with his family that its inevitable attenuation by imprisonment should be reduced as much as possible consistent with avoiding an unreasonably disproportionate sentence.
68Taking these considerations together, I am of the view that the non-parole period should be six years.
69I have had the benefit of reading in draft the judgment of Buddin J with whom McClellan CJ at CL agrees and appreciate that their Honours do not agree with my view about the presence in this case of special circumstances justifying a variation and the minimum sentence that is consistent with the requirement of s23(3) of the Crimes (Sentencing Procedure) Act 1999. I regret that, after anxious consideration, I am unable to agree with their Honours' proposed non-parole period. It is not necessary that I should say more than is stated above as to my reasons for the conclusion to which I have come. However, I wish to emphasise the decisive importance of the perspective with which I have approached the issue of unreasonable disproportion. That is, the need to give full weight to the simple but fundamental fact that, when he volunteered his guilt to the police, the applicant was facing no sentence of any kind whatever. The sentence now being imposed is thus, practically speaking, counting up from zero. This is radically different from a case in which assistance is given to the authorities by an offender whose guilt can be or is proven. In that case, the sentence is produced by counting down from the term that would otherwise have been imposed. It follows that, in the present case, the sentences in other cases of murder provide, in principle, far less guidance than in what I might call the "counting down" cases, though they remain relevant as features of the instinctive synthesis which is ultimately determinative.
70In respect of the public policy objective of encouraging persons in the position of the applicant to come forward, it is material to ask how likely would it have been that the applicant or - more correctly - someone in his position would come forward had he been told that the consequence would be a sentence having a minimum term to serve of nine years. With respect, it seems to me that such advice would almost certainly - at least, very probably - lead to a change of mind. The policy would thus be reduced to practical irrelevance.
71I acknowledge, of course, the central importance of the fact that the applicant, by his intentional act, caused the death of another human being. It is the tension between the significance of his coming forward on the one hand and the objective reality of the offence on the other that makes this case so difficult to resolve.
Proposed orders
72I propose the following orders -
(i) grant leave to appeal against the sentence;
(ii) allow the appeal and quash the sentence imposed at first instance;
(iii) substitute a sentence comprising a non-parole period of six years commencing on 7 February 2008 and ending on 6 February 2014 and a balance of term of six years commencing on 7 February 2014 and ending on 6 February 2020.
73BUDDIN J: I have had the considerable advantage of reading in draft the judgment of Adams J. I share his Honour's view that this court should intervene and proceed to re-sentence the applicant. I also agree with his Honour that the total term of imprisonment should be one of 12 years. In my view, however, the non-parole period should be one of 9 years.
74At the outset of the sentencing remarks, the primary judge observed that:
[t]he purpose in sentencing any offender, even those charged with murder, seeks to resolve what are often, if not necessarily, conflicting goals. In serious crimes such as murder, the importance of punishment and public deterrence loom large. ... There is no single correct sentence, and the often-complicated interplay of considerations point in different directions.
75Those remarks were particularly apposite to the present case, given its highly unusual features. Notwithstanding the primary judge's conclusion that the applicant did not intend to kill or to inflict grievous bodily harm upon the victim, this was nonetheless an objectively serious example of the offence of murder. Moreover, as Adams J has pointed out, the applicant had a lengthy criminal record which included two prior convictions for armed robbery. The evidence revealed that the applicant's life, until the commission of these offences, had been driven by his addiction to illicit drugs. On the other hand, as the primary judge observed, the man who stood for sentence "was a very different person". His Honour concluded that "no account of [his] history...can adequately describe the transformation that has occurred in him [and that he had] wholly rehabilitated himself". A significant feature of his "transformation" was his disclosure of his guilt of these offences to the authorities in circumstances in which he would not have otherwise been charged. The significance of his having done so cannot be underestimated. Apart from any other consideration, his actions have clearly assisted the family and friends of the victim in that they now know the circumstances in which the victim met his untimely death.
76Adams J has analysed in considerable detail the primary judge's reasons for arriving at a "starting-point" of 22 years imprisonment. For present purposes, it is unnecessary for me to engage in a similar analysis. First of all, as Adams J notes, senior counsel for the applicant disavowed, both in written submissions and during the course of oral argument, any contention that such a "starting point" was not open to his Honour. More importantly I accept, in any event, the central argument advanced on the applicant's behalf to the effect that the extent of the discount allowed for the "Ellis factor" was inadequate. Adams J has demonstrated why that submission should be accepted.
77It is necessary to now consider something else to which the primary judge referred during the course of the sentencing remarks. His Honour said:
Because the offence occurred in 2001, [the applicant] is required to be sentenced in accordance with the law, as it then existed, and there is no standard non-parole period for the offence.
The introduction of a standard non-parole period for the crime of murder had a significant effect in increasing the range of sentences generally imposed for the crime of murder and it is necessary to bear in mind the range of sentences that were imposed at the time that the conduct occurred, rather than at present.
78I respectfully agree with those observations. The real challenge for the primary judge lay in determining the "range of sentences" in 2001 for a case of the kind presently under consideration. In that respect the raw statistics, as Adams J has pointed out, would not have provided very much assistance. On the other hand, this Court has been furnished with a number of cases in which a person has voluntarily disclosed his or her guilt of a homicide that would not otherwise have come to light. Regrettably, the primary judge was not provided with the same level of assistance.
79As Adams J has comprehensively examined those cases in some detail, I am relieved from the need to embark upon a similar exercise. As Adams J demonstrates, the researches of counsel have revealed that it is only in very rare instances that an offender has assisted the authorities in the fashion in which the applicant has done. To the list of such cases may be added a further decision to which I referred in R v JSK [2004] NSWSC 470. I there said that:
[I]t is common ground that the only decisions which provide any real guidance, given the highly unusual circumstances of the present case, are the decisions of Hidden J in R v TNT [2002] NSWSC 537 and of Sully J in relation to the same offender [2002] NSWSC 394. Although I must of course exercise my own independent sentencing discretion, it is apparent that the decision of Hidden J in particular is useful because the circumstances of that case bear considerable similarities to the present case. That offender was also aged 16 at the time that he participated, with others, in committing the offence of murder. He too pleaded guilty and got the benefit of having provided assistance to the authorities. There was also an additional measure of leniency extended to that offender on account of the considerations identified in R v Ellis . In the upshot Hidden J, after allowing an overall discount of 50%, sentenced that offender to a sentence of 10 years' imprisonment with a non-parole period of 6 years. There were as might be expected, features which distinguish the two cases, not the least being that, only a mere week before the murder in respect of which that offender was sentenced by Hidden J, he had killed another person. For that offence, he was sentenced to 14 years' imprisonment with a non-parole period of 9 years by Sully J. The sentence which Hidden J imposed was wholly accumulated upon the sentence imposed by Sully J and was undoubtedly affected by considerations of totality. It is to be noted that Sully J also sentenced that offender for an additional offence of unlawful imprisonment. Nor was there any Ellis factor in respect of the sentences imposed by Sully J. Moreover in relation to the homicide offence with which Sully J was concerned, the offender actually fired the fatal shots in what was, as his Honour observed, a gangland execution. It would appear that that offender was under the control of other members of a Vietnamese gang at the time of the commission of each of the offences. [at para 51]
80Those cases are too few in number to provide anything in the nature of a "range of sentences". Nevertheless, the outcome in each of those cases indicates a significant degree of consistency in approach. Accordingly, and despite the fact that there are differences between each of those cases and the present case, those decisions do provide something of a frame of reference for the determination of the appropriate sentence in this case. As I have said, I agree that the applicant has made good the submission that the discount for the "Ellis factor" was inadequate. My preliminary view as to that matter has been fortified by a consideration of the decisions to which Adams J referred, and in particular, the length of the appropriate non-parole period.
81The primary judge said that:
I do not find special circumstances. The sentence that I will impose will have a sufficient non-parole period to allow for his supervision and to ensure that he returns to a life without crime, without drugs and alcohol, and with the kind of stability that has earned him a leniency that, for such a serious offence, would not otherwise be given.
82It is at this point that I part company with Adams J. I agree, for the reasons given by the primary judge, that this was not a case which warranted a finding of "special circumstances". Moreover, the non-parole period which I propose is the minimum period of actual incarceration that the circumstances require, notwithstanding the very powerful subjective factors upon which the applicant was entitled to rely: R v Simpson (2001) 53 NSWLR 704 [at para 57].
83In approaching the task of re-sentencing I have had particular regard to what was said in the plurality judgment in R v Markarian (2005) 228 CLR 357 about the difficulties to which "an arithmetical process" to sentencing may give rise and especially where, as here, there exists "a complex of inter-related considerations" [at para 37].
84Finally, unlike Adams J, I would forbear from expressing a view about the sentence imposed in respect of the armed robbery offence. No application for leave to appeal was brought in respect of that sentence and accordingly, the parties did not address the Court in respect of it.
85I propose the following orders:
1 Grant leave to appeal.
2 Allow the appeal and quash the sentence imposed at first instance.
3 Substitute a sentence comprising a non-parole period of 9 years commencing on 7 February 2008 and expiring on 6 February 2017 and a balance of term of 3 years expiring on 6 February 2020.
4 The applicant is eligible for parole on 6 February 2017.