6 His Honour found a number of circumstances favourably to the applicant: his age, he was 18 at the time; no previous record; a supportive family and that the crime was committed to provide financial assistance to that family because of its straightened circumstances.
7 His Honour found that the prisoner voluntarily surrendered, frankly confessed and co-operated, was contrite and had good prospects for rehabilitation. His Honour found special circumstances.
8 Except for one matter the sentence is entirely unchallengeable, indeed, highly favourable to the applicant. It is, however, challenged, as I understand the submission, not on its overall length but particularly as to the proportion of its components, in the light of the sentence passed on the applicant's younger brother for the three offences of armed robbery to which he pleaded guilty before His Honour Judge Taylor and in the light of a factual error which, on a parity basis, affected not only that sentence but also other sentences passed on other prisoners who had either participated in the robbery for which the applicant was sentenced or the robberies for which his brother was sentenced.
9 The applicant's brother, Tovio, in addition to his involvement in the robbery of the Berala Hotel was involved in the robbery of the Royal Hotel at Granville together with a co-offender Donny Itamua. That robbery was performed by Itamua using a pistol to hold up the staff and a security guard and the staff were held at gunpoint whilst the younger offender, Tovio Atonio, gathered the takings off the table.
10 The third offence for which Tovio Atonio was sentenced was the robbery of the Belfield RSL which robbery was also performed in company with Donny Itamua who on this occasion had a sawn off shotgun. Again the employees of that club were held at gunpoint and the young person assisted in the gathering of the proceeds.
11 Taylor, DCJ. noted that the involvement of the young brother in these offences came to light after he had been confronted by his father in consequence of something said by his sister. The father then called the police. The young person spoke to the police and subsequently was charged. It was following his charge that the present applicant, and indeed a co-offender, voluntarily surrendered themselves to the police and confessed to the robbery for which he was sentenced.
12 Tovio Atonio for the offences to which he pleaded guilty was sentenced to four years penal servitude comprising a minimum term of two years and an additional term of two years with supervision. The custodial portion was directed to be served in a detention centre.
13 Tovio was less than two years younger than the applicant. The applicant was sentenced before his brother and Taylor, DCJ. when he came to sentence Tovio had regard to the sentence passed on the applicant for parity purposes. Unfortunately that sentence was erroneously described as in respect of three, not one, armed robberies. A similar error was made by her Honour Judge Backhouse when she came to sentence Toma Davis Moosman, a co-offender in a robbery at the Crescent Hotel, Fairfield, with one Peleti Creighton who had been sentenced for three armed robberies of hotels by Her Honour Judge Karpin to eight years penal servitude, comprising a minimum term of two years and six months, and an additional term of five years and six months. We have been informed from the bar table that the associate, Donny Itamua, to whom I have already referred, was sentenced for 43 armed robberies by His Honour Judge Viney to a sentence involving a minimum term of 12 years.
14 On a comparison of the circumstances of the applicant with his brother, other than the slight age difference and the number of offences for which they came forward for sentence, there was little to choose between them. In those circumstances, notwithstanding my view that the sentence that had been passed upon the applicant was otherwise unchallengeable, if not entirely lenient, I have concluded that the mistake was such as to engender a legitimate sense of grievance in the applicant as to the sentences in their upshot and effect.
15 Earlier this week in Regina v. Stein [1999] NSWCCA 250, this court upheld an appeal against sentence on a similar basis in reliance on this court's decision in Regina v. Hodges (1997) 95 A. Crim. R. 85 and with that in mind in my view leave should be granted and this appeal to the extent submitted, upheld.
16 I would receive the evidence tendered on appeal showing the good progress of the applicant in gaol and in the light of that evidence would restructure the sentence to reflect parity with the general treatment of the brother by dividing the total sentence of five years similarly into a minimum term of two and a half years and an additional term of two and a half years.
17 I cannot pass from these matters when examining the structure of the sentence imposed by Karpin, DCJ. and the general sentences imposed, putting aside the sentence imposed by Viney, DCJ., without remarking on the remarkable leniency that appears to have been extended, notwithstanding that the crimes are so serious and that this court has again and again emphasised the objective gravity of offences of armed robbery particularly where they are offences of aggravated armed robbery under s.97(2).
18 Offences of robbery whether armed or unarmed, should be regarded in virtually all circumstances as of such gravity, as must normally require a custodial sentence. So said the court in Regina v. Murray (unreported, 11 September 1986). Those views have been applied again and again including in Regina v. Crotty (1993) 1 NSWLR 71 where the various factors in sentencing for armed robbery are reviewed.
19 The court has said, on many occasion that the range of sentences imposed for serious armed robbery offences should be much higher than those in fact imposed by sentencing judges.
20 Remarks to that effect were made in Regina v. Vu (CCA, unreported 11 September 1993). The court continued that:-
"The time has more than come for far more deterrent sentences to be imposed for those offences of serious armed robbery."