Relevant sentencing principles
48 I am required to bear in mind the relevant statutory framework that pertains to the sentencing of offenders and to the principles which are enunciated in the authorities that bear upon the issue. That being so, it is common ground that I must have regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act.
49 The Court of Criminal Appeal in R v MA (2004) 145 A Crim R 434 characterised s 3A as being a codification and elaboration of the purposes of criminal punishment, which were described by the High Court in Veen v The Queen (No2) (1988) 164 CLR 465. In a passage which is particularly apposite to the present case, a majority of the court in Veen (No2) said:
[S]entencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guide posts to the appropriate sentence but sometimes they point in different directions. (at 476)
50 It is trite to say that murder is regarded as the most serious offence in the criminal calendar. As I have already observed, the maximum penalty prescribed by the legislature is life imprisonment. That indicates the seriousness with which the community views the offence. The starting point for any consideration of the appropriate penalty is the fact that a human being's life has been taken.
51 The Crown did not submit however that the present offence fell within the worst category of case. I accept that serious as it is, it does not warrant a sentence of imprisonment for life as provided for in s 61 of the Crimes (Sentencing Procedure) Act. That being so, s 21 of that Act, which provides for the imposition of a "sentence of imprisonment for a specified term" in circumstances such as the present, has application. Accordingly, I propose to impose a determinate sentence upon the offender.
52 In determining the appropriate sentence for the offender I must also have regard to the various aggravating factors which are set out in s 21A of the Crimes (Sentencing Procedure) Act. It is apparent from the concluding words of s 21A(1) that the list is not exhaustive. I must also weigh in the balance those matters upon which the offender is entitled to rely in order to mitigate the otherwise appropriate penalty: see s 21A(3). As long as I take into account those factors that are relevant and known it is not necessary, as I understand the situation, to deal seriatim with each matter which is identified: Andrews v R (2006) 160 A Crim R 505. I will make specific reference to those matters which I regard as being of particular relevance to the sentencing exercise. Suffice it to say that I have had regard to the statutory requirements to which I have just referred, and given due weight to the matters which I consider as being of particular relevance. In considering this aspect of the matter, I remind myself that I am not to take into account any aggravating feature if it is an element of the offence or if it is an "inherent characteristic" of the offence charged: see R v Yildiz [2006] NSWCCA 97.
53 The relevant aggravating features include the fact that the offence involved the use of a weapon: s 21A(2)(c). It was also committed in company: s21A(2)(e); R v Imnetu [2006] NSWCCA 203. Of particular significance is the fact that the deceased, by reason of his occupation as a service station attendant, was "vulnerable" within the meaning of s 21A(2)(l). The offence was "part of a planned criminal activity" in that it involved an armed robbery which was clearly planned. However, that activity is an "inherent characteristic" of the present offence of "felony-murder". In any event, the homicide itself was clearly not planned or premeditated, particularly so far as this offender is concerned. None of this is to suggest that the offence does not reveal criminality of a high order because plainly enough it does. Nevertheless it is necessary to give due recognition to the fact that the offender played a subsidiary role in the offence by reason of the fact that he did not inflict the fatal wounds.
54 On the other hand, there are a number of mitigating factors upon which the offender is entitled to rely. A significant factor to be weighed in the offender's favour is his plea of guilty: see s 21A(3)(k) and s 22. I referred at the outset to the circumstances in which he entered his plea. It was not entered at the first available opportunity. Moreover it is clear that the offender pleaded guilty only after he became aware that both H and SM had provided statements to police. More importantly he would have been aware that H had directly implicated him in the crime.
55 Nevertheless, it is no small matter to plead guilty to the most serious offence in the criminal calendar. Although as I have said, his plea of guilty cannot be said to have been entered at the first available opportunity, it was still indicated at a sufficiently early time to enable resources of the State and the Court to be saved. Furthermore, a number of witnesses were spared from the ordeal of having to give evidence. Moreover, the offender ultimately made extensive admissions to police concerning his involvement in the offence which were of such a nature as to guarantee his conviction of the offence.
56 In the circumstances the offender has "facilitated the course of justice": Cameron v the Queen (2002) 209 CLR 339. Accordingly, and because his plea of guilty has utilitarian value, he is entitled to an appropriate discount albeit not one at the top of the range identified in R v Thomson & Houlton (2000) 49 NSWLR 383.
57 I am prepared to allow a further reduction of sentence to the offender on account of the contrition which he expressed not only in his interview with police and in his evidence but in the other material to which I have referred: s 21A(3)(i).
58 The offender is also entitled to a significant additional discount for his assistance to the authorities: s 21A(3)(m); York v R (2005) 221 ALR 541. As well as entering into the very comprehensive video-recorded interview with police to which I earlier referred, the offender also participated in a video walk-through in which he pointed out other details to police concerning where and how the armed robbery had been planned and then carried out. Of particular significance in the present context is the fact that he has signed an undertaking to give evidence against his co-accused. I have been provided with an affidavit from a police officer in respect of this aspect of the matter. I have paid careful attention to its contents.
59 In assessing the weight to be given to this feature of the case I have had regard to the various factors identified in s 23(2) of the Crimes (Sentencing Procedure) Act. Whilst it is true that the disclosure of the co-offender's involvement in this offence was somewhat belated, (a matter to which I have already referred in the context of his plea of guilty) the offender maintained that he did not come forward earlier because he was concerned for the safety of his family. Since doing so, the offender has been transferred from the Juvenile Detention Centre in which he was then housed, to the Special Purposes Centre (SPC). But for his offer of assistance, the offender may have entertained some prospects of a finding that he remain in a detention centre until he had attained the age of 21: see Children (Criminal Proceedings) Act 1987, s 19(3)(a) and (4). His transfer to an adult gaol in such circumstances has undoubtedly placed a considerable burden upon him.
60 The authorities make it plain that the circumstances in which an offender who is on protection is serving, and is likely to serve, his or her sentence should be carefully scrutinised by a sentencing court: see R v Durocher-Yvon (2003) 58 NSWLR 581; R v Mostyn (2004) 145 A Crim R 304; R v Way (2004) 60 NSWLR 168 at 199-200.
61 In that context I have received a letter from Daryl Gover, who is the Acting Area Manager of the SPC, the relevant parts of which are set out below:
Offenders housed in this unit have full access to the various services available in other centres within the Long Bay complex, i.e. education/vocational training, welfare, psychology and justice health provider. Offenders are also attended by the classification unit within the Department and although given limited options, are still serviced as would any other offender [sic].
Offenders within the centre are also given access to various sporting and activities of a physical nature, although room allocated for this is limited it is still sufficient and meets the needs of the offenders. Limited employment is also offered to suitable offenders within the centre.
As this inmate progresses through his classification plan he will be limited to the centres to which he can be housed, this being restricted to the SPC, Dawn DeLaos and Cooma Correctional centre. The Dawn DeLaos centre being specifically designed to accommodate offenders on the witness protection program who have achieved a minimum security (C1, C2, C3) status.
Although all services are provided to offenders within our structure, due to limited room these services are scaled down somewhat but still adequate. There is, however, some limitations imposed to ensure the safety and security of the centre and the offenders housed here and involved in this program. These taking [sic] the form of the amount of room in which the offenders can move around and a limitation to whom they can associate with. Also a limit to what educational/vocational areas that can be facilitated. Also as a minimum security inmate the option of an open facility in a rural environment is not available.
62 The offender gave evidence that he entertains fears both for himself and for his family as a direct consequence of his decision to assist the authorities. He said that he believed that his life would continue to be at risk even after he is released from custody.
63 Plainly enough the offender has not been denied access to educational programs and other opportunities. Indeed, as I observed earlier, he has been making substantial progress towards his eventual rehabilitation in that respect. Nonetheless, there still remain other aspects of his incarceration which will mean that his time in gaol will be more burdensome than would be the case for a mainstream prisoner: see generally Durocher-Yvon (supra) at 587.
64 It is neither necessary nor appropriate to refer to the evidence which the offender has promised to give in any detail. Suffice to say that its significance can be gauged by the fact that he is in a position to directly implicate his co-offender in the commission of what is apparently a very serious crime indeed. In the view of a police officer associated with the investigation, the offender "has provided truthful and reliable information that has been corroborated by other means and persons". Moreover he has provided information of which authorities had not previously been aware. In short, the offender's evidence is accepted by the Crown as being "pivotal" to the prosecution of the co-offender.
65 In R v Chu (unreported, NSWCCA 16 October 1998), Spigelman CJ observed that although no fixed tariff existed for the provision of assistance to the authorities, discounts in the order of 20% to 50% had frequently been allowed. See also R v Patison (2003) 143 A Crim R 118 per Carruthers J at 135-137. In the present context I have also had regard to what has been said by the Court of Criminal Appeal in R v Sukkar [2005] NSWCCA 55; CTC v Regina [2006] NSWCCA 263 and R v Pham [2006] NSWCCA 288. Often an aggregate or a "rolled-up" discount to take account of both the plea of guilty and assistance to the authorities is deemed to be appropriate: see Thomson & Houlton (supra) at 419; R v PG (2001) 122 A Crim R 529. As to the different approaches which can be legitimately adopted, see R v Waqa (No2) [2005] NSWCCA 33. The authorities make it clear however that the component of the discount which relates to future assistance should be quantified: see Waqa (No2) (supra) at pars 14, 21. The discount which will be extended to the offender for his assistance will be almost entirely attributable to the future assistance component of it.
66 In two recent decisions aggregate discounts of 50% were extended to offenders who had pleaded guilty at an early stage of proceedings and had offered assistance to the authorities: see R v Satorre [2006] NSWCCA 298 and R v AB [2006] NSWSC 69. See also R v Mangano (2006) 160 A Crim R 480.
67 In the final analysis I must also pay due regard to s 23(3) of the Act. In R v NP [2003] NSWCCA 195, Simpson J observed that:
The result of the rigorous application of what have become relatively standardised discounts (especially where a considerable discount for a plea of guilty is added to an even more considerable discount for significant assistance) can, on occasion, cause a sharp intake of breath, but that is the result of the application of correct and established legal principle. The result can appear to be disproportionate to the offence(s). Sentencing judges (as in this case) have to balance the need to impose proper punishment with the need to recognise the benefits to the criminal justice system gained by pleas of guilty and assistance to authorities. The correct balance is not always easy to achieve.