REGINA v FERNANDO [2002] NSWCCA 28 | Case summary

The Respondent was sentenced in the District Court for six offences to which he had entered a plea of guilty. The offences were four counts of armed robbery, one count of assault with intent to rob when armed with an offensive weapon and one count of use of an offensive weapon to prevent lawful apprehension. Two other offences - one of armed robbery, the other, assault - were also taken into account. The District Court judge sentenced the Respondent to a total of six years with a non-parole period of three years, commencing from the date of arrest.

Judgment 1 SPIGELMAN CJ: The Respondent, Stanley John Fernando, pleaded guilty in the Local Court to six offences and was committed for sentence to the District Court under s51A of the Justices Act. There were four counts of armed robbery contrary to s97(1) of the Crimes Act 1900 committed respectively on 30 July, 1 August, 8 August and 16 August 2000. There was one count of assault with intent to rob when armed with an offensive weapon contrary to s97(1) of the Crimes Act 1900 which occurred on 9 August 2000. The maximum penalty for each of these offences was twenty years imprisonment. The sixth count was a charge of attempting to use an offensive weapon to prevent lawful apprehension contrary to s33B(a) of the Crimes Act 1900 which occurred on 22 August 2000. 2 The Respondent adhered to his pleas of guilty in the District Court and was sentenced by Moore DCJ in Dubbo on 15 March 2001. His Honour imposed a sentence of five years with a non-parole period of three years for the offence of attempting to use an offensive weapon to prevent lawful apprehension. For each of the other five offences his Honour imposed a term of six years with a non-parole period of three years. All of the sentences took effect from 22 August 2000, the date on which the Respondent was arrested. His Honour was informed that on 4 December 2000 the Respondent had been sentenced in the Local Court to a term of imprisonment of twelve months, with a non-parole period of nine months, for an offence of taking and driving a conveyance and that that sentence took effect from 22 August 2000. 3 The first offence in chronological sequence occurred at about 12.45pm on Sunday 30 July 2000. The Respondent entered the premises of the Ashwood Country Club in Waylandra Street, Dubbo. He had been driven to that location by a co-offender who waited outside in the vehicle. The Respondent's fingerprints were identified in that vehicle. In the reception area of the motel the Respondent brandished a syringe filled with a red coloured liquid at the victim, a Mr Ronald Seidlitz, and said, "Give me the money or I'll stick you in the face". Mr Seidlitz handed the Respondent a cash tin containing $340. 4 The second offence occurred two days later on Tuesday 1 August at about 8.15am when the Respondent and a co-offender, Bianca Byrnes, entered the Dubbo RSL Resort Motel foyer. The Respondent was again armed with a syringe filled with a red liquid and demanded money saying "Where's your cash bag where's the rest of the money". The victim, Kylie Tighe, handed the Respondent a cash tin containing $1,322. 5 The third offence occurred at about 9.45am on Tuesday 8 August 2000. The Respondent and an unidentified co-offender attended the premises of the West Dubbo Post Office in Victoria Street, Dubbo. He again produced a syringe filled with red liquid. He demanded cash. The Respondent lent over the counter placing his palm on the centre of the counter from which a fingerprint was later developed and identified as his. He removed $850 from the drawer behind the counter. 6 The fourth offence occurred at 2pm on Wednesday 9 August 2000. Mr Barry Trollope was behind the reception counter at the Endeavour Court Motel in Bourke Street, Dubbo. The Respondent presented a syringe filled with a red liquid. Mr Trollope locked himself out of the reception area. The Respondent attempted to open a number of closed doors. The Respondent left the reception area without obtaining any money. He was later identified through computer images by Mr Trollope. (Although actually an attempt, I will hereafter include this incident in my references to "armed robbery offences".) 7 The fifth armed robbery offence occurred at about 3.30pm on Wednesday 16 August 2000. The Respondent went to the premises of Jeans West in Orange City Centre. He was again in possession of a syringe filled with a red liquid. He approached Sandra Maguire, an employee of Jeans West, was who working alone. He pointed the syringe at Sandra Maguire and said it was filled with Hepatitis C. He threatened to stab her unless she handed him money from the cash register. The cash register was locked and Ms Maguire was unable to locate the key. The Respondent became agitated and continued to threaten her with the syringe. He escorted her into a back room where she eventually located the keys and opened the cash register. The Respondent threatened Ms Maguire's life. He took $385 and left the store. 8 The sixth offence occurred at the time of his arrest. The Court was informed that warrants had been issued against him for failing to appear, for revocation of parole and for armed robbery. At about 2pm on Tuesday 22 August 2000 he was seen by police outside premises at the intersection of Armstrong Crescent and Collins Avenue, Dubbo. When Constable McLaughlin attempted to arrest him, the Respondent took hold of the Constable's service pistol and released the holster clasp. He pulled the pistol out of the holster to the stage where the trigger had cleared the holster. Constable McLaughlin then attempted to force the pistol back into the holster by pushing down on the Respondent's hands. The Respondent shouted "Let me fucking go, I've got your gun, I'll kill you, I'll kill you". Constable McLaughlin feared for his life and began to shout for help. He also struck the Respondent. The Respondent then took hold of Constable McLaughlin by the throat with both of his hands. The Constable was unable to breathe and kicked the Respondent twice. Shortly afterwards another constable and a male civilian came to the assistance of Constable McLaughlin. The Respondent was forced to the ground and handcuffed. Constable McLaughlin received bruising to his throat and neck area and an abrasion to the back of his right hand. 9 His Honour was asked to take into account two other offences under s32 of the Crimes (Sentencing Procedure) Act 1999. First, was an armed robbery which had occurred at about 8.30pm on 1 May 1999 in Yaruga Street, Dubbo. The Respondent and a female accomplice were in a taxi when the Respondent produced a syringe with which he menaced the taxi driver. He demanded money and took $260 and the money clip. 10 The second matter to be taken into account on the Form 1 occurred on 23 August 2000 at Dubbo Police Station. A registered nurse employed by the Department of Corrective Services in Dubbo was standing in his clinic adjacent to the cell doors when the Respondent abused him and spat at him. This was the act that constituted the assault. Subsequently the nurse had direct contact with the Respondent during which he threatened him and, as a result of which, the nurse feared for his safety and the safety of his family. 11 At the commencement of his Remarks on Sentence, his Honour made reference to both of the matters contained in the respective Forms 1, and said that these matters are "considered in the assessment of the total sentence". Pursuant to s33 of the Crimes (Sentencing Procedure) Act 1999 the offences listed on a Forms 1 may be taken into account "in dealing with the offender for the principal offence". In the present case the Crown did not attempt to link the matters on the Form 1 to any specific offence. Nor does his Honour seem to do so in his Remarks. However, no complaint is made in this regard. 12 On the day of his arrest the Respondent was taken to Dubbo Police Station. He consulted a representative of the Western Aboriginal Legal Service, who advised him not to make any admissions. When asked, at about 4.35pm on the afternoon of his arrest, whether he wished to answer any questions, he said that on the basis of legal advice he would not. An hour later he approached an officer and said "I want to tell them the truth. I want to be interviewed about it and get it out of the way". A person described as the Responent's girlfriend, Ms Rebecca MacMillan, was contacted and brought to the police station as a support person for him. He informed the officers "I want to get everything cleared up. Rebecca and I decided that it would be that best way". He subsequently made a full admission as to the matters about which he was interviewed which led to the charges, save in one case about which the police did not ask questions, but with respect to which he did plead guilty. 13 In the course of a record of interview about the respective incidents, the Respondent answered police questions about why he had changed his mind, after initially accepting the advice he had received. He said: "The reason was that I just wanted to get these charges over and done with and I just want to try to get out and straighten stuff out and that cause I'm using heroin and that. I just want to get it all over and done with and try not to muck the court around too much, just get it over and done with. That's the main thing." 14 As his Honour concluded, the Respondent pleaded guilty at the earliest opportunity and adhered to that plea. He was accordingly entitled to a substantial discount for the plea which his Honour computed at 20% in the case of the armed robbery offences and 10% in the case of the using offensive weapon to prevent arrest offence. The Crown makes no complaint in this regard. 15 His Honour said that the case against the Respondent with respect to the armed robberies varied in strength from one incident to another. His Honour said that the Respondent's immediate admission occurred in a context in which with respect to a number of the offences the Crown case could not, at that stage of the investigations, be described as strong. His Honour indicated that the case with regard to using an offensive weapon charge was a strong one. His Honour did not, in this respect, distinguish the different matters that may be reflected in a plea. 16 Nothing in his Honour's Remarks on Sentence suggests that he underestimated the objective gravity of the series of offences committed over a short period. His Honour referred to the armed robbery charges in the following terms: ""In each case the offence was committed on a vulnerable individual person in a small business and a weapon was used, namely a syringe, which was filled with red liquid. The red liquid was in fact harmless but gave the appearance of blood and in each case, even when not specifically stated, I would assume that the victim was terrified, especially in the town the size of Dubbo where a number of offences of a very similar nature were committed all within less than three weeks … … In each case of the armed robberies, the person in the shop, club, motel and post office which was robbed was alone and produced such money as was available, relatively small amounts although not inconsiderable amounts varying from $100 to different figures up to $1,092." 17 His Honour indicated the gravity of the armed robbery offences when he referred to the terror which must have been suffered by the victims when confronted with a person wielding a syringe which appeared to be filled with blood. His Honour specifically stated that the effect on the victims was "a very serious occurrence which I take into account very much in weighing the sentence". This Court has said on a number of occasions that the use of a syringe apparently filled with blood is a particularly serious factor because of the terror and revulsion it causes in the victims. (See e.g. R v Stone (1995) 85 ACrimR 434 at 439; R v Kyroglu and Tsoukatos [1999] NSWCCA 106 at [88].) 18 In the case of the charge of using an offensive weapon with intent to prevent lawful apprehension, his Honour described this offence as "an extremely serious matter". He outlined in his Remarks on Sentence the circumstances in which Constable McLaughlin tried to arrest the Respondent. His Honour made reference to the attempt to pull out the constable's service pistol, his threat to kill the constable and the act of grabbing the constable by the throat with both hands. 19 His Honour was required to balance the objective circumstances of the offences, which he described as "grave", against the subjective features of the case. In that regard his Honour referred to the vicious circle of depravation, drug addiction and offending in which the Respondent, like so many other Aboriginal youths, appears to have become trapped. 20 The present Respondent's personal history had culminated in an addiction to heroin which in turn led him to commit the armed robberies in order to pay for the addiction. His Honour noted that the Respondent was young when first introduced to heroin and at that stage already had a substantial record of offending. 21 The record commences at the age of fourteen at Bidura Children's Court when he was convicted of three counts of armed robbery in company. Thereafter there are numerous convictions for theft of various kinds, malicious damage, assault (including of police), escaping from custody. As a juvenile he was subject to numerous control orders. In August and October 1998 the Wyong Children's Court sentenced him to imprisonment to be served in an adult prison for offences of assault, malicious damage and malicious wounding. 22 His Honour imposed the same sentence for each of the armed robbery offences. In my view he was entitled to do so. There was little to differentiate one offence from another. His Honour's starting point was four years but, by reason of the commission of multiple offences, he increased that to six years in each case, applying the principle of "totality" as his Honour interpreted it. 23 The sentencing Judge referred to this Court's guideline judgment for sentencing for armed robbery R v Henry (1999) 46 NSWLR 346 as a starting point. In this Court, the submissions of both the Crown and the Respondent proceeded on the basis that the guideline in that case represented an appropriate starting point for the determination of the appropriate sentence. There was no submission that the decision of the High Court in Wong and Leung v The Queen [2001] HCA 64, impinged on the authority of that judgment. 24 In Henry the Court noted a list of characteristics which frequently recur with respect to armed robbery offences, and in cases of that character, identified a starting point of four to five years as a guide for sentencing judges. Aggravating and mitigating factors would justify a sentence below or above the narrow range of four to five years identified as a starting point (see at [161]-[170]). His Honour noted that in the subsequent decision in R v Thompson & Houlton (2000) 49 NSWLR 383 at [161], this Court clarified that Henry was based on a late guilty plea which was of limited value. In the present case his Honour indicated that he would give a discount of 20% for the armed robbery offences. This was in accordance with the significance of the matters reflected in the plea in the present case. (See Cameron v The Queen [2002] HCA 6 at [11].) 25 His Honour referred to the Henry characteristic in the common case of a guilty plea qualified by a strong Crown case. His Honour expressed the opinion that, save with respect to one of the offences, the Crown case in the present proceedings was not strong. In this regard his Honour failed to have regard to the fact that the police investigations had barely commenced. A number of witnesses who could have identified the Respondent had not then been asked to do so. Nor had any searches occurred for the distinctive clothing which had been identified. No doubt other investigations would have been pursued. Nevertheless, the significant value of the early admissions in the present case is highlighted by the fact that investigations of the character to which I have referred were not required. This element of assistance to the authorities together with "willingness to facilitate the course of justice" was properly considered to be material. (See Cameron v The Queen supra at [11]-[14].) 26 His Honour noted one distinction between this case and the characteristics of the common case identified in Henry which was an aggravating feature. Henry was based on an offender with little or no criminal history. The Respondent in this case had an extensive criminal history. 27 His Honour referred to the Respondent's deprived life. He referred to the fact that the Respondent was sent to an institution for young Aboriginal men, Euabalong, which, according to the submission before the sentencing judge, which he accepted as fact, had been the subject of allegations that young men had been sexually abused. His Honour referred to the evidence of the Respondent had given to the effect that something had happened to himself when he was at Euabalong which his Honour said: "He cannot bring himself to specify". His Honour accepted that the Respondent believed that what had happened to him at Euabalong had "destroyed his life" by commencing a process of smoking marijuana and eventually developing an addiction to heroin at the age of fifteen. The suggestion in the evidence, not expressed as such nor the subject of any finding by Moore DCJ, is that the Respondent had been subject to sexual abuse at Euabalong and that this constituted the cause of his later addiction and continued offending. 28 His Honour referred to the Respondent's drug addiction as a material factor but not as constituting an excuse for the commission of armed robbery. His Honour referred to the observations of Wood CJ at CL in Henry at 273(ii) where his Honour stated that drug addiction may be a relevant subjective circumstance to be taken into account when determining the appropriate sentence where, by reason of the fact that addiction occurred at a very young age, the ability of the person to "exercise appropriate judgment or choice was incomplete". 29 His Honour described the evidence given by the Respondent to the effect that something had occurred to him whilst he was at Euabalong as a "brave statement" and expressed the hope that if that matter could be dealt with in some manner then "it may well lead to his resolution, of his drug problem in due course, that will be a long road however. He has gone through at least the initial stages of rehabilitation whilst in gaol this time". 30 In his Remarks on Sentence his Honour referred to the fact that the Respondent had been sentenced in the Dubbo Local Court to a term of imprisonment of twelve months with a non-parole period of nine months, commencing on 22 August. This was for an offence of driving a conveyance taken without consent of the owner. 31 His Honour said that this offence "pales into insignificance" when compared with the matters before him. His Honour concluded that if the matter had fallen to be sentenced together with the offences before him then all sentences would have been made concurrent. It does not appear from the record what, if any, information his Honour had about the offence for which the Respondent had been sentenced in the Local Court and whether or not it constituted, in some manner, part of the same conduct. 32 An appeal to this Court under s5D of the Criminal Appeal Act 1912 is subject to the well known and well established limitations on an appellate court interfering with the exercise of a discretion. The Crown's case was that the sentences actually imposed were manifestly inadequate. It also submitted that his Honour failed to take into account the aggravating circumstance that the offences were committed while the Respondent was on parole. 33 The Crown submitted that the sentences did not reflect the objective seriousness of each offence. The Crown relied on the aggravating circumstances in which the offences were committed. First the Respondent was on parole. The sentencing judge was informed of this fact. Secondly, the offences were committed while the Respondent was on bail for the offence eventually dealt with in the Local Court. His Honour said that this second factor was an aggravating circumstance. He did not refer to the first matter. The Crown submitted that the failure to take into account the fact that the offences were committed on parole constituted a legal error. 34 The Respondent submits that in a case in which the Crown points to manifest inadequacy as the ground of appeal, this Court must be satisfied that the sentence actually imposed is so markedly inadequate that it must have involved a misapplication of principle, even though the precise error may not be apparent from the Remarks on Sentence. I accept these submissions. 35 In the present case his Honour indicated that he regarded the offences as very serious ones. However, he gave significant weight to the subjective circumstances of the Respondent. If an error of principle has occurred it is likely to have occurred either because of his Honour's failure to give weight to the fact that the offences were committed whilst the Respondent was on parole or because he failed to give adequate weight to the objective circumstances of the offence and gave excessive weight to the subjective circumstances which his Honour identified. 36 The Respondent submitted that the sentences were within the permissible range of judicial discretion in all of the circumstances of the case. The Respondent relied generally on the factors identified by his Honour in his remarks on sentence, to most of which I have referred above. It was submitted that, when his Honour adjusted the sentences to reflect considerations of totality i.e. six years, the Respondent accepted that the sentences were "lenient", but still fell within the bounds of his Honour's sentencing discretion in all of the circumstances of the case. The Respondent submitted that if the Court decided that the sentence imposed was manifestly inadequate, consideration should be given to exercise its residual discretion not to intervene, generally by reason of the matters to which Judge Moore had referred. 37 The Respondent submitted that notwithstanding his Honour's failure to refer to the fact that the offences occurred whilst on parole he must have done so. His Honour had noted the fact that the offence had been committed on bail as an aggravating circumstance. 38 On 29 July 1999 in the Dubbo Local Court the Respondent had been sentenced to a number of terms of imprisonment for offences including malicious damage, break and enter with intent, three counts of break, enter and steal and intimidating a police officer. With respect to the malicious damage count, he was sentenced to a minimum term of ten months and an additional term of six months. It appears that all of the offences for which he was sentenced in the present proceedings occurred during the course of the additional term, when he had been released into the community on conditional liberty. 39 His Honour did not refer to this fact in his remarks on evidence. In contrast, he did refer to the fact that the offence was committed on bail. In my opinion, he overlooked this consideration. His failure to take this matter into account is a relevant legal error permitting this Court to intervene. 40 In a case involving an offender who committed offences whilst at liberty on bail, to which identical principles apply, Street CJ said in R v Richards [1981] 2 NSWLR 464 at 465: "The community must be protected as far as possible from further criminal activities by persons who take advantage of their liberty on bail to commit further crimes. The only means open to the criminal courts to seek to provide this protection is to pass severely deterrent sentences upon those who thus abuse their freedom on bail. This will ordinarily involve a significant accumulation of the sentence for any subsequent offences on top of the sentence proper to be passed for the original offence. It must be made abundantly plain that persons at large on bail cannot expect to commit further crimes "for free". On the contrary they will receive salutory penalties for the very reason they have abused their freedom on bail by taking the opportunity to commit further crimes." 41 This position was reiterated in this Court in R v Readman (1990) 47 ACrimR 181 at 184, per Maxwell J, with whom Gleeson CJ and Samuels JA agreed, when his Honour said: "This Court has repeatedly stated that the commission of an offence by an offender who is in the community on conditional liberty, whether that be on bail, on a recognisance, or on a parole, will be considered as a matter that aggravates the offence." (See also R v Jerrard (1991) 56 ACrimR 297 at 380-1) 42 The policy behind this approach of the courts is, in part, stated by Lee J, with whom Gleeson CJ and Abadee J agreed in R v Vranic (NSWCCA, 7 May 1991, unreported) when his Honour said at p4: "The commission of offences on parole demonstrates that the expectation of rehabilitation of the prisoner has not been realised and that through his own conduct the substantial mechanism designed for rehabilitation, i.e. parole has failed to achieve its purpose. The Court in such circumstances cannot proceed on the same expectation of rehabilitation that is open in other circumstances." (See also the reference by Wood CJ at CL to the "betrayal of opportunity for rehabilitation" in R v Tran [1999] NSWCCA 109 at [15].) 43 His Honour gave significant weight to the prospects of rehabilitation. The fact that the offences were committed while the Respondent was on parole should have been treated as a significant factor in this regard. 44 Alternatively, the Crown relied on manifest inadequacy. The sentences of four years, which his Honour treated as a starting point, were the bottom of the range suggested in the guideline judgment of Henry. The value of the guilty plea was of greater significance than that assumed in the common case identified in Henry. However, this matter was offset by other considerations. First, the extensive criminal record of the Respondent. Secondly, the particular terror imposed by the weapon of a blood filled syringe. Thirdly, the fact that the offences occurred whilst the Respondent was released on parole. 45 Cases in which the courts have come to sentence for offences of this character are often not precisely comparable. However, some guidance can be obtained. 46 R v Fleming [1999] NSWCCA 142 was a severity appeal in which there was a strong subjective case and, unlike in this case, an express finding of good prospects of rehabilitation. There were five armed robbery offences. The sentence imposed was eight years with a minimum term of four years. The appeal was dismissed. 47 In R v ROS [2000] NSWCCA 175 there were four counts, three armed robbery offences and one assault with intent to rob. There was an additional charge of armed robbery with the use of a blood filled syringe. The offender was sixteen with a long criminal record. There was a strong subjective case based on an addiction first to alcohol, then to heroin. There was substantial supporting evidence indicating an attempt to change his lifestyle. The sentence was a term of nine years with a minimum term of four years and six months. The severity appeal was dismissed. 48 R v Readman, supra, was a Crown appeal from a sentence of a single offence of armed robbery, to which the offender had pleaded guilty. The Respondent was twenty-six years of age at the time of the offence. He had a long criminal record and had committed the offence whilst on parole. There was evidence of a severely deprived childhood with long periods of institutionalisation. The trial judge had imposed a three year minimum sentence and a one year additional term. The Court allowed the Crown appeal and imposed a five year minimum term and an additional term of one year and eight months. 49 Plainly his Honour gave substantial weight to the subjective case put forward for the Respondent. 50 The Respondent's conduct on the day of his arrest was such as to support the proposition that he had some prospect of changing his ways. After his arrest the Respondent had refused to answer questions after receiving legal advice. After being alone in his cell for about an hour he resolved to change his position. He proceeded to make full admissions of all offences. He said that he wanted to clear everything up and get on with his life. In this he was supported by his girlfriend. This occurred on 22 August 2000. 51 The matter came before his Honour for sentence some six months after the arrest on 15 March 2001. On that occasion the Respondent gave evidence to the effect that he remained determined to change his ways. 52 During the course of his evidence the Respondent indicated on a number of occasions that he wanted to lead a normal life in which he did not take drugs. He indicated that he tried to give up drugs but had failed. He said that heroin "just destroyed my life". In an affidavit filed in this Court, he affirmed his evidence before Moore DCJ. 53 The subjective case presented on behalf of the Respondent at trial and in substance repeated in this Court did have elements of strength. Of particular significance was the decision made by the Respondent, after contemplating his position in the cell alone, to make all the relevant admissions with respect to these particular offences. This was strongly suggestive of a decision, at that stage, that the Respondent wished to change his life from the long period of drug addiction and criminal offending that had preceded it. Such a realisation was the crucial first step in a process of rehabilitation. Nevertheless, it is of itself only indicative of the possibility of success. It was also a manifestation of "his acceptance of responsibility", maintained in the plea. (Cameron v The Queen supra at [11] and [22].) 54 Some six months had elapsed prior to the sentencing judge undertaking his task. His Honour had before him no information about what had happened with regard to rehabilitation in that period. His Honour did, however, have the evidence given before him which indicated that the Respondent was still of a mind to change his ways. Nevertheless, his Honour did not feel able to draw, and did not express, any conclusion as to the prospects of a successful rehabilitation. In the absence of a finding that the rehabilitation prospects were in fact high, the subjective case presented to the Court was not of a character which could overwhelm the very serious objective features of the offences, either individually or collectively. 55 As indicated above, at the time the Respondent came before the District Court for sentencing he had been in prison for a period of six months following his arrest for these offences. It is customary for the sentencing court to have material before it about the personal background and conduct of the Respondent, generally in the form of a pre-sentence report and/or a report from an expert, like a psychologist. There was nothing before his Honour of this character. Nor was there any objective evidence before his Honour about the Respondent's conduct in prison, particularly whether he had pursued any matters which were pertinent for his prospects of rehabilitation. The Respondent gave evidence to his Honour that during his previous period of incarceration, he had in fact been able to continue his habit while in gaol. He suggested, that it was "easy to get drugs in gaol". 56 It is frequently the case that material is presented to the Court which indicates on the basis of urine testing that a drug user has managed to control his habit for a relevant period of time. There was no such material before his Honour. Nor was there any evidence, of a character frequently adduced, about drug or alcohol counselling. It was necessary for his Honour to give complete credence to the self-serving assertions by the Respondent in the witness box as to his intentions. 57 The evidence about his conduct in gaol about drug taking was decidedly equivocal: "Q What do you think you need to do to break that pattern so it does not keep happening? A Stay away from heroin. Q Are you able to do that in gaol at the moment? A If I can try, I'd try. Q How have you been going so far? A Good." 58 In my opinion, the subjective case was not of sufficient strength, in light of the objective circumstances, to justify the sentences imposed. The sentence as finally structured by his Honour was manifestly inadequate. 59 The Respondent filed an affidavit in this Court to be used for purposes of exercising the residual discretion not to intervene and in case the Court came to resentence. He affirmed the truth of the evidence he had given before the trial judge, indicated that his circumstances of incarceration had a certain harshness because he was unlikely to obtain a minimum security classification and that he was at the Lithgow Correctional Centre, some distance from his family which lives in Walgett. He also noted that his aunt was ill and that his girlfriend continued to support him whilst he has been in custody. Of particular significance is his undertaking to try to live a drug free life. He noted that he was on a methadone programme with a dose of thirty. He also said that he had volunteered for urine analysis but that had been refused. The Crown did not put before the Court any explanation for such refusal. 60 Again there is nothing in the nature of a detailed report from any carer or expert or prison authority as to his conduct in prison or other material that can assist the Court in determining his prospects of rehabilitation. After the period of some eighteen months which has now transpired since the Respondent was incarcerated for the offences, the Court is apparently expected to assess prospects of rehabilitation on the basis of self-serving assertions without cross-examination or independent verification. Although no onus resides on the Respondent in this respect, the Crown should have been able to assist the Court to a greater degree in this regard. 61 It is unnecessary to reiterate the objective gravity of the offences. As I have said above his Honour did not understate their gravity. Nor is it necessary to repeat the other relevant considerations to which I have referred above. Unless the Court can identify a real prospect of rehabilitation, in my opinion, the substantial and lengthy record of the Respondent is entitled to significant weight. 62 Each offence imposed particular terror on a vulnerable individual by means of the use of an apparently blood filled syringe. This Court has frequently said that individuals who work in isolated locations such as operators of small retail shops, service station attendants, motel receptionists and taxi drivers, have a particular vulnerability in a context where they perform valuable community services. Persons who commit such offences against such vulnerable people must be the subject of condign punishment. 63 Notwithstanding the subjective case put before the Court on this occasion, the offender did have a very long criminal record of persistent offending. Furthermore the offences were committed whilst on bail and on parole, an aggravating circumstance which is particularly pertinent to the prospects of rehabilitation. Whilst some reason had emerged for a belief that steps may been taken towards rehabilitation, the prospects of rehabilitation were not sufficiently strong to justify a sentence which does not reflect the gravity of each offence and of the course of offending. 64 As is well established, it is a primary objective of sentencing for criminal offences that the community must be protected from the commission of crimes, by deterring both the particular offender and other possible offenders - referred to as personal and general deterrence respectively. In a case of the character now before the Court, by an offender with this record, the protection of the community requires a substantial period of imprisonment. It is, however, often the case that such considerations of deterrence are properly tempered by considerations of compassion which arise when the Court is presented with information about the personal circumstances which have led an individual into a life of crime. 65 Such considerations are present in the case before the Court. The Respondent has a personal history of deprivation that is, regrettably, far too common amongst young people, particularly Aboriginal youth. 66 The sentencing principles to be applied by a sentencing court apply in every case, irrespective of the membership of the particular offender of an ethnic or other group. Nevertheless, when imposing sentences courts must take into account, pursuant to those very principles of general application, all of the facts relevant to the circumstances of the offence and of the offender, including facts which may exist by reason of the person's membership of a particular group. (See e.g. Neal v The Queen (1982) 149 CLR 305 at 326.) 67 Aborigines who commit crimes of violence are not accorded special treatment by the imposition of lighter sentences than would otherwise be appropriate having regard to all of the relevant considerations, including the subjective features of a particular case. An offender is not entitled to any special leniency by reason of his or her Aboriginality. The principle of equality before the law requires sentencing to occur without differentiation by reason of the offender's membership of any particular racial or ethnic group. Nevertheless, particular mitigating factors may feature more frequently in some such groups than they do in others. (See R v Fernando (1992) 72 ACrimR 58 at 62-63 as further explained in R v Hickey (NSWCCA, 27 September 1994; unreported); R v Stone (1995) 84 ACrimR 218 at 221-223; R v Ceissman [2001] NSWCCA 73 esp at [29]-[33]; R v Pitt [2001] NSWCCA 156 at [19]-[21].) 68 The criminal justice system has accurately been described as a "hopelessly blunt instrument of social policy and its implementation by the courts is a totally inadequate substitute for improved education, health, housing and employment for Aboriginal communities" R v Daniel [1998] 1 Qd R 499 at 530 per Fitzgerald P. His Honour outlined the difficulties that arise in this regard at 530-532. 69 The circumstances of the present case are, regrettably, repeated across the entire community. This Court frequently hears appeals from young people who have suffered deprivation in their personal life, have succumbed to addiction - usually first to marijuana and then to heroin - and committed crimes of burglary and armed robbery in order to acquire funds to feed the habit. 70 His Honour referred to the personal history of the Respondent as I have set out above. Further, the Respondent's father died when he was a baby. He lived with one of his aunts in Walgett who he believed to be his mother until she told him that she was not when he was about eight. When he was young he already began to get into trouble at Walgett - breaking into shops and malicious damage by setting fires. His aunt with whom he lived and her partner were not heavy drinkers, according to his evidence. Nevertheless he saw a lot of drinking in his community and associated violence. His period of offending as a juvenile led him to be institutionalised at Euabalong, at the age of ten or eleven, where incidents occurred about which he gave some evidence. When he left that institution he took up with others. The pattern of offending intensified in the way I have set out. He became addicted to drugs, at first marijuana and subsequently heroin. He ran away from Euabalong. He said this was because of "bad things that had happened to him there". The allusive evidence given in this regard was accepted by his Honour. Although I find it strains credibility, in the absence of any suggestion that the Respondent has sought treatment, I am prepared to proceed on the basis that he had experienced sexual abuse in Euabalong and that that may have contributed to his addiction. 71 In one respect his Honour made findings which do not find substantial support in the evidence. He said that there was an expression of remorse which arose by reason of the fact that the Respondent admitted that if someone threatened him with a syringe he would feel as frightened as he believed the victims of his crimes felt. I do not see this as an expression of remorse. Indeed in the evidence he gave before his Honour the Respondent was offered an opportunity to express remorse and he did not do so: "Q How do you feel about what you've done now that you've had time to think about it? A I don't know, just want to get this over and done with and just try and move on." I do not see any evidence of significant contrition. 72 His Honour did not refer to the characteristic identified in (ii) in par [162] of Henry of the common case involving a weapon like a knife. A syringe filled with blood is more serious than the category of weapon considered in Henry. 73 In R v Kyrogolu & Tsoukatos [1999] NSWCCA 106 Simpson J said at [88]: "Another factor that separates this offence from those described in the guideline is the use of the syringe filled with red liquid. Only one inference could be drawn by the victim from the use of a weapon such as this: that the syringe contained blood and the blood was infected with the AIDS virus or some other deadly or life threatening organism. A weapon more calculated to instil terror into the victim can scarcely be imagined. The use of such a weapon is, in my opinion, if not more serious than the use of a knife, then at the very least right at the outside limits of seriousness of the kind of weapon the guideline contemplates." (See also R v Stone, supra, at 439.) 74 In my opinion, a sentence of seven and a half years discounted, by reason of the admissions and plea, to six years for each offence is the lowest sentence that can be imposed for each of the armed robbery offences. However, concurrent sentences of six years, with a non-parole period of three years, would not reflect the total criminality of the course of offending. 75 As I have noted above, Moore DJC indicated that a sentence for each of the armed robbery offences of four years was appropriate, but that the actual head sentence should be six years by reason of the number of incidents involved. I do not regard this approach as consistent with the High Court decision in R v Pearce (1998) 194 CLR 610. 76 Moore DCJ appeared to approach the sentencing exercise on the assumption that all offences before the court should be concurrent unless the principle of totality required an increase. However, these offences were not, in my opinion, part of the same course of conduct. 77 Over a period of weeks, a number of discrete armed robberies were perpetrated. The offence against the police officer at the time of arrest was plainly a distinct and different crime. In this case the starting point should have been that at least some of the sentences would be consecutive, not concurrent. The principle of totality applies to allow partial concurrence, so that time to be served reflects the overall level of criminality disclosed. 78 The circumstance that a single offence is one of a number of armed robberies committed over a relatively short period of time requires either a different starting point or a decision that the sentences be made only partly concurrent. In the light of the authority of the High Court in Pearce the latter would appear to be the preferable course. (See R v Hammoud (2000) 118 ACrimR 66 at [8]-[11]; R v Lemene (2001) 118 ACrimR 131 at [3].) 79 This Court was informed that the parole order was revoked on 15 August 2000 and the Respondent served the remainder of his sentence, being a term of four months and fifteen days commencing on 22 August 2000, expiring on 5 January 2001. It does not appear from the record before this Court that Judge Moore was informed that the period of incarceration commencing on 22 August 2000 constituted the remainder of the original additional term. 80 It is not appropriate to commence the sentences on the day of arrest. The Respondent would suffer no additional punishment by reason of the need to serve the balance of his additional term on the malicious damage charge upon revocation of parole and the, related, offence dealt with in the Local Court. These sentences should commence on the expiration of the original sentence on 5 January 2001. 81 Partial concurrence of the sentences is required to reflect the number of separate crimes and, also, to reflect the quite distinctive offence committed at the time of the arrest. Over and above the additional period of imprisonment that will arise when dating the sentences presently before the Court to the time of the expiration of the additional term, in my opinion a further sentence of twelve months should be imposed by means of partially overlapping the sentences to be served. The armed robbery to be taken into account on the Form 1, is taken into account with respect to the armed robbery of 16 August 2000 which will take effect at the later time. The offence on the Form 1 with respect to the assault on the nurse, is taken into account with respect to the offence of attempting to use an offensive weapon. 82 I have referred above to the additional materials placed before the Court for the purposes of both exercising the discretion not to intervene and for determining the sentence, if the Court decided to do so. As before his Honour, there was no pre-sentence report and no expert reports. Nor is there any evidence of progress with regard to rehabilitation. After the passage of a further twelve months, this aspect of the Respondent's subjective case is weaker than it was at the time of the sentencing in the District Court. 83 Nevertheless, if the Respondent is released on parole it would be desirable for him to have a longer than usual period of supervision. This constitutes special circumstances which make it desirable to vary the statutory ratio between the head sentence and non-parole period so as to permit three years under supervision. 84 The orders I propose are as follow: (1) Appeal allowed. The sentences imposed by his Honour Judge Moore on 15 March 2001 are quashed and in lieu thereof the following sentences are imposed.

REGINA v FERNANDO

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