REGINA v HEIKKINEN

Court of Criminal Appeal (NSW)|2006-02-14|Before: Spigelman CJ, Simpson J, Adams J

CITATION: REGINA v HEIKKINEN [2006] NSWCCA 50

JUDGMENT OF: Spigelman CJ at 1; Simpson J at 5; Adams J at 17

DECISION: 1. In respect of the sentences for the offences committed on 8 December 2004 (armed robbery) and 10 December 2004 (larceny) the appeals are dismissed ; 2. In respect of the offences committed on 21 December (assault with intent to rob) and 22 December 2004 (armed robbery), the sentences are quashed and in lieu thereof the respondent is sentenced on each offence to concurrent sentences as follows: a non-parole period of 18 months to commence on 1 July 2005 and expire on 31 December 2006 with a balance of term of 18 months expiring on 30 June 2008; 3. In respect of the offences committed on 30 December 2004 (armed robbery and attempted armed robbery) the sentences are quashed. In lieu thereof the respondent is sentenced to concurrent sentences on each offence to concurrent sentences as follows: a non-parole period of 18 months to commence on 31 December 2005 and expire on 30 June 2007 with a balance of term of 18 months expiring on 31 December 2008.

CATCHWORDS: CRIMINAL LAW - SENTENCE APPEAL - Where Henry guidelines are used in regard to multiple offences, the principle of accumulation should be considered - CRIMINAL LAW - SENTENCE APPEAL - Whether an early guilty plea necessarily results in a full 25 per cent discount.

Bechar v Regina [2006] NSWCCA 1 Benitez v R [2006] NSWCCA 21 Markarian v The Queen [2005] HCA 25; 79 ALJR 1048 CASES CITED: R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66 R v Henry & Ors (1999) 46 NSWLR 346 R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 The Queen v Pearce [1998] HCA 57; 194 CLR 610

Regina (Applicant) PARTIES: v Juha HEIKKINEN (Respondent)

COUNSEL: V Lydiard (Crown) B Collaery (Respondent)

SOLICITORS: S Kavanagh (Crown) Benet & Associates (Respondent)

IN THE COURT OF CRIMINAL APPEAL 2005/2358

SPIGELMAN CJ SIMPSON J ADAMS J

8 March 2006 REGINA v Juha HEIKKINEN Judgment 1 SPIGELMAN CJ: Subject to the following additional observations, I agree with the judgment of Adams J which I have read in draft. 2 A discount for the utilitarian value of a plea of 20 percent was well within the range of her Honour's discretion. It is not the case that a plea of guilty at the earliest opportunity must necessarily attract a 25 percent discount. 3 When applying the Henry guideline as a check or indicator when there are multiple offences, it is always important to have regard to the issue of accumulation. There is no single correct sequence by which the applicable sentencing principles must be applied, particularly because it may become necessary to review the various elements after resolving an appropriate sentence for each individual offence from the perspective of totality. 4 I agree with the orders Adams J proposes. Each of the three armed robbery offences would, even in the face of the strong subjective case, justify a longer sentence, but the degree of accumulation proposed by his Honour, which has the effect of adding 12 months to the non-parole period and to the head sentence, is such as to justify the sentence proposed for each offence in the circumstances. 5 SIMPSON J: I have read in draft the judgments of the Chief Justice and Adams J. Two issues arise. 6 The first concerns the discount allowed to the respondent in respect of his pleas of guilty. The sentencing judge allowed 20%. Adams J expresses the view that, unless good reason the contrary were shown, the respondent was entitled to a discount of 25%, at the top of the range specified in the guideline judgment of this Court in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383. The Chief Justice is of a contrary view. 7 I respectfully agree with the Chief Justice. In Thomson and Houlton a range of 10 - 25% was promulgated as the appropriate range by which to reduce a sentence in recognition of the utilitarian value of a plea of guilty. A number of factors are relevant to the assessment of the utilitarian value of a plea of guilty. In Thomson and Houlton it was held that the primary consideration is the timing of the plea. No doubt this is because an early plea brings to a halt the expenditure of funds, time and resources on the preparation of a prosecution, and the release of those resources for the preparation and prosecution of other cases. Here, the respondent's plea was an early one. He was arrested on 31 December 2004, and entered his plea of guilty on 8 March 2005 in the Queanbeyan Local Court. It is not clear whether there was, in a real sense, any earlier opportunity formally to enter a plea. On his arrest, the respondent initially declined to comment. However, on 5 January 2005, after consultation with legal representatives, he requested a further interview and made full admissions. He repeated these admissions in a further interview on 10 January 2005, and again on 11 January 2005. These admissions, in my view, made pleas of guilty inevitable, and signalled clearly his intention to enter such pleas. Although the sentencing judge made no express finding to that effect, in my view this Court should proceed on the basis that the pleas were made at the earliest available opportunity. 8 That, however, does not necessarily entail the conclusion that he was entitled to a discount at the very top of the Thomson and Houlton range. Other factors besides timing are relevant to the assessment of the utilitarian value of a plea of guilty. One is the likely duration and/or complexity of the trial that has been avoided. Another is the potential cost of such a trial - involving circumstances such as the need to transport witnesses long distances, or to assemble complex evidentiary material. Those factors, in this case, do not favour the respondent. The trial would have been neither long nor complex; the witnesses were all local; while video evidence would have been tendered, it does not appear to be such as would have generated great expense. 9 In these circumstances, it was open to the sentencing judge to find, as he impliedly did, that the utilitarian value of the pleas was marginally less than the maximum specified in the guideline. 10 The more substantial issue is whether any error has been shown on the part of the sentencing judge. This Court has recently been forcefully reminded of its role in adjudicating appeals against sentence: Markarian v The Queen [2005] HCA 25; 79 ALJR 1048. It is only where some specific error of principle is demonstrated, or the result is unreasonable or "plainly unjust", that it may interfere. In my opinion the key to the present appeal lies in the principle of totality. The task of the sentencing judge was to impose, in respect of each offence, a sentence appropriate to the criminality disclosed by that offence: The Queen v Pearce [1998] HCA 57; 194 CLR 610. I take this to mean a sentence appropriate to that offence if it were being dealt with in isolation from the others - if it were the only offence for which the respondent stood for sentence. 11 On behalf the Crown it was submitted that the sentences imposed, particularly in respect of the armed robbery offences, were unreasonable in that sense, or "plainly unjust" in the sense that they failed to recognise the level of objective criminality. Adams J finds no error in this respect in any of the sentences imposed. I agree. In coming to this view, I recognise that, having regard to the objective seriousness of (at least) the armed robbery offences, the sentences imposed were very lenient. However, having regard to the other relevant circumstances, particularly the respondent's 45-year (at the time of the offences) history of abiding by the law, I am not persuaded that they were so lenient as to bespeak error. I would join Adams J in rejecting this aspect of the Crown's submission. If the offences of armed robbery stood alone, I would regard the sentences imposed in respect of them as lenient, but not appellably so. 12 In coming to that view, I bear in mind that the respondent's psychiatric condition is relevant: Benitez v R [2006] NSWCCA 21. So also, as I have already mentioned, is his prior good character. Also relevant (marginally) is the ineptitude displayed in the commission of the offences. In one case the respondent sought, by flourishing a knife, to have a service station operator unlock the doors. As Adams J has observed, it is unsurprising that this attempt failed. Only a few minutes later, he managed, by brandishing the knife, to obtain money, but the console operator followed him, armed only with a piece of timber, and was able to retrieve the money. This, perhaps, is some indication of just how threatening the respondent appeared. On a third occasion the respondent demanded money by claiming to be in possession of a gun, but the operator soon realised that this was not the case and refused to produce the money sought. 13 When sentencing for multiple offences, a judge must have one eye on the totality of the criminality. The aggregate of the sentences imposed must match the aggregate of the criminality displayed. 14 That raises the question of accumulation or concurrency. In R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66 I observed that whether or not to accumulate sentences imposed in relation to multiple offences is an exercise of discretion to be carried out in accordance with established principles. That passage has been adopted on a number of occasions. One circumstance pointing to concurrency rather than accumulation are features common to two or more offences the subject of sentencing. In this case there were many features that were common. The respondent embarked upon a quite inexplicable course of criminal conduct over a very short period of time - just three weeks. True it is that the offences were (for the most part) committed in different places, and involved different victims, but they may properly be regarded, in my opinion, as a single course of conduct. While I recognise that many judges would give greater weight to those features of the offences that were disparate, I am not able to conclude that it was not open to the sentencing judge to regard the respondent's conduct as a single course of criminal endeavour. That would permit the imposition of fully concurrent sentences. 15 There was thus no error either in the length of the sentences, nor in the conclusion that the circumstances of the offences permitted an order that they be served concurrently. But that then raises the question of totality. I have concluded that, in the light of the total criminality, the combination of very lenient sentences, together with total concurrency, renders the aggregate of the sentences manifestly inadequate. I agree, therefore, that the Crown appeal ought to be allowed in part, and the respondent re-sentenced. The error may be corrected either by extending the sentences imposed in respect of the armed robbery offences, or, as proposed by Adams J, by making some sentences partially cumulative. My preference would be for the former course, but, since the same result is achieved by the orders proposed by Adams J, I am prepared to concur in those orders. 16 I agree with the orders proposed by Adams J. 17 ADAMS J: Introduction 18 On 17 November 2005 the respondent was sentenced following his pleas of guilty on six charges as follows: (i) armed robbery (maximum penalty twenty years' imprisonment) on 30 December 2004 - three years with a non-parole period of eighteen months commencing 31 December 2004; (ii) armed robbery on 8 December 2004 - three years with a non-parole period of eighteen months commencing 31 December 2004; (iii) larceny (maximum penalty five years' imprisonment) on 10 December 2004 - eighteen months with a non-parole period of nine months commencing 31 December 2004; (iv) armed robbery on 22 December 2004 - three years with a non-parole period of eighteen months commencing 31 December 2004; (v) attempted armed robbery (maximum penalty twenty years' imprisonment) on 30 December 2004 - three years with a non-parole period of eighteen months commencing on 31 December 2004; and (vi) assault with intent to rob (maximum penalty fourteen years' imprisonment) on 21 December 2004 - two years with a non-parole period of twelve months commencing 31 December 2004. 19 It will be seen that the effective punishment for the six offences was three years with eighteen months non-parole commencing 31 December 2004, all sentences having been ordered to be served wholly concurrently. The Director of Public Prosecutions gave notice of appeal from all sentences on 23 November 2005. The notice was served on 28 November 2005. There is, I think, an error of one day in the dates specified in the orders of the District for the expiration of the non-parole period.

Facts 20 The facts of the offences were not in dispute. The following narrative is taken from the reasons for sentence of the learned sentencing judge together with some details from the Crown material which was tendered in the proceedings. 21 At about 9 pm on Wednesday 8 December 2004, the respondent entered a service station in Lanyon Drive, Queanbeyan. He was carrying a kitchen knife with a 30 cm blade. He demanded money from the console operator, screaming (amongst other things), "This is a hold-up. Empty the till and give me the money or I will kill ya." The respondent ordered the operator to put money inside the plastic shopping bag placed on the counter. The operator complied but the respondent demanded more money, threatening violence and brandishing the knife. The operator placed more money in the bag. The respondent ordered him to lie on the floor and, when he did so, made his escape. The respondent took $300. 22 Two days later, on Friday 10 December 2004 at about 2 pm, the respondent parked in the drive-through area of a tavern at Jerrabomberra, walked through the premises to behind the main bar, picked up a cash tin containing $400 and walked back to his car and drove off. A witness noticed that the registration plate was covered with cardboard. 23 Just over a week later, on 21 December 2004, the respondent returned to the Lanyon Drive service station, pretending to have a firearm concealed in the sleeve of his jacket. He demanded money, saying he had a gun and threatening to kill the console operator. The operator opened the cash register to hand over money but realised that the respondent, in fact, did not have a gun and desisted. The respondent then screamed further threats but walked out when the operator refused to comply. 24 On the following day, 22 December 2004, the respondent approached another service station in Cooma Road, Queanbeyan. The doors were locked as the console operator was closing up. Seeing the respondent at the door, the operator let him in. The respondent concealed his face with the hood of a jumper and produced a kitchen knife with a blade. He said, "I want to kill people, I want to stab people. No, I just want money, give me, give me money." He handed a shopping bag to the operator and demanded that he put money in it. The operator did so. The respondent then required him to lie on the floor. The respondent fled in a motor vehicle with the number plates concealed with cardboard. The respondent took $900. 25 On 30 December 2004, the respondent approached the locked doors of a service station in Bungendore Road, Queanbeyan. He was carrying a knife with a 30 cm blade and motioned with it for the console operator to open the doors. The operator, not surprisingly, refused. The respondent unsuccessfully attempted to open the doors with the knife and then with his hands. He then left and about ten minutes later went for the third time to the Lanyon Drive service station. Brandishing the knife, he threatened to kill the console operator and demanded money. The operator complied. The respondent left with the money but was followed by the operator who had armed himself with a piece of timber. The operator demanded the return of the money. The respondent told him, "Get away or I'll fucking kill ya." However, the operator persisted in his demands for the return of the money and the respondent dropped the bag. He got into his car, parked nearby and drove away. The vehicle's number plates were covered with cardboard. The operator had placed $200 in the bag. 26 Shortly after the last offence, the police closed off the entry and exit points to the locality. A search of the local area discovered the respondent's vehicle. He was arrested shortly after. Although he declined to make admissions at first, in early January the respondent spoke to the police at his own instigation and made candid admissions of his involvement in the offences.

Subjective features 27 The respondent had no criminal history. Considering the nature of the offences, this was not only most unusual but for reasons I mention later, of some significance. There was no dispute at the sentencing proceeding concerning the subjective features affecting the respondent. The following is largely taken from the reasons for sentence of the learned sentencing judge but I have, once more, added some brief details from the other material that was tendered. 28 The offender was born on 22 June 1959 and, accordingly, was some forty-five years of age at the time of the offences. He was born in Finland and came to Australia with his family in 1961. He had a good employment record, starting with heavy work as a young man and culminating as the manager of a large wholesale distributor of pharmaceutical products. The respondent lived in a de facto relationship for over twenty-two years until his excessive drinking and some other factors caused the relationship to break up. At the time, it appeared that the respondent was under intense pressure at his job but he was also gambling, not surprisingly, unsuccessfully. He had a serious problem with alcohol. At the time of the offences he had been consuming four to five litres of cask wine daily for some months. His gambling had resulted in considerable debt. 29 Mr Hugh Jolly, a psychologist, assessed the respondent some three months after the commission of the offences. He was then in prison on remand. The respondent had by then dried out. He expressed contrition, which Mr Jolly accepted as genuine as did the sentencing judge. It was reasonable also to infer that the respondent's prospects of rehabilitation were good. In Mr Jolly's opinion, at the time the respondent committed the offences, "he was suffering from recognisable psychiatric disorder, probably major depressive disorder, with marked obsessive-compulsive content and alcohol abuse". Mr Jolly thought that "his cognitive processes were adversely affected by the huge quantity of alcohol he had consumed daily over weeks and months" which severely comprised his ability to reason and plan with any composure. Mr Jolly considered that, when he saw the respondent, he had improved greatly although he remained reactively depressed. He thought that the respondent had "proper awareness" of what had happened in the recent past and, although he was not symptom free, he "no longer assessed him as suffering major psychiatric illness". Mr Jolly's report contained a lengthy and detailed history give by the respondent which it is not necessary to set out in any detail. The evidence of severe depression included the respondent's indifference to chaotic and filthy domestic circumstances and his own personal hygiene. It is sufficient to note that it appears that the respondent's serious alcohol addiction commenced when he began to drink excessively as a way of dealing with the tensions and demands of his employment, becoming serious perhaps two or three years before the offences but steadily worsening, exacerbated by the respondent's gambling habit. The break up of his relationship also caused considerable anguish and, in January 2004, he self-mutilated very seriously with a kitchen knife following an argument with his wife. 30 The conclusion that the respondent's compromised psychological state was a significant contributing factor to the offences is supported, as it seems to me, by the completely aberrant conduct which they comprised, when compared with the law-abiding character of his life hitherto. 31 The probation and parole report contains material along the same lines as that referred to by Mr Jolly. The report added that the respondent had been well behaved in prison. He had been assessed upon his arrival as a suicide risk but within a short time this abated and the prison psychologist who was seeing him at first no longer needed to do so. 32 The respondent expressed profound regret for the offences and particularly for the harm he had caused his victims. He told the probation and parole officer that he was at a loss to understand how his life could have deteriorated to the point where he resorted to committing these serious crimes. The learned sentencing judge concluded (rightly in my view) that the respondent was contrite. I should add that the respondent gave evidence in the sentence proceedings, relating in substance the histories that he had given to Mr Jolly and the probation and parole officer and describing the downward spiral in his domestic and financial position. Not only was he taking alcohol but also up to eight times the prescribed daily dose of Cyprimil (an anti-depressant drug), taking tablets from his employer's warehouse for this purpose. Cyprimil had been prescribed for him by his doctor but the respondent increased his intake from his employer's stores when he felt no benefit from taking only the prescribed quantity. 33 There was evidence, accepted by the learned sentencing judge, that the applicant was supported by his siblings who visited him in prison and were assisting him financially. 34 The learned sentencing judge described the offender's subjective circumstances as "very compelling" and noted that, although the crimes he had committed were serious, they were "nowhere near the higher end of the scale of criminality that one sees in this Court."

Objective circumstances 35 Although it appears that the offences had some elements of planning, for example, the respondent took a knife, wore black clothes and a balaclava on some of the occasions and covered the number plates of his motor vehicle with cardboard. At the same time, the offences were provoked by a degree of impulsivity during occasions when he became extremely depressed. The offences were largely captured on CCTV, the respondent used his own vehicle, which he parked nearby, to escape and, it is obvious from the facts already related, exhibited some marked amateurish features.

Events following arrest 36 As I have mentioned, the respondent made full and frank admissions about the offences shortly after his arrest. He pleaded guilty to the charges at the committal proceedings and adhered to his pleas in the District Court. As the Crown prosecutor conceded in this Court, he certainly pleaded guilty at the earliest opportunity. The learned sentencing judge allowed a utilitarian discount on the respondent's sentences of 20%. It is difficult to see why the respondent could not have been given the full usual discount of 25%: see R v Thomson and Houlton (2000) 49 NSWLR 383 at 418. The respondent's pleas saved a considerable amount of court time and, of perhaps greater significance, obviated the necessity for the victims to give evidence. In this Court, the Crown prosecutor candidly conceded that the respondent had pleaded guilty at the earliest opportunity. Quite rightly, this matter was not a ground of appeal: allowing the respondent a 20% utilitarian discount was clearly within the learned sentencing judge's discretion. 37 Given the public policy considerations clearly enunciated in that judgment, especially the importance of transparency, it is most desirable that, where a sentencing Court does not follow what might be thought to be the usual implications of a plea history, the reasons for not doing so are made clear. It should be assumed that counsel for an offender has discussed the significance of a plea with the client and it is important to enable a prediction to be given - of course within a reasonable range, considering the discretion reposed in the sentencing judge - with some certainty. I return to this matter in due course.

The appeal 38 The appropriate starting point when considering sentences for armed robbery is, for obvious reasons, the guideline judgment of this Court in R v Henry & Ors (1999) 46 NSWLR 346, especially at 380, where Spigelman CJ said - "161 In the cases now before this Court, the Crown has propounded a starting point for New South Wales of six years full term, in circumstances where there is a plea of guilty. 162 It appears from the cases that come to this Court, including the present proceedings, that there is a category of case which is sufficiently common for purposes of determining a guideline: (i) Young offender with no or little criminal history; (ii) Weapon like a knife, capable of killing or inflicting serious injury; (iii) Limited degree of planning; (iv) Limited, if any, actual violence but a real threat thereof; (v) Victim in a vulnerable position such as a shopkeeper or taxi driver; (vi) Small amount taken; (vii) Plea of guilty, the significance of which is limited by a strong Crown case.

163 Whilst it is possible to determine a starting point in a case of this kind, i.e. a sentence of X years imprisonment, I do not believe that the Court should do so. Rather, I propose the Court should identify a narrow sentencing range within which this Court would expect sentences in such cases to fall. 164 There are two principal reasons why a sentencing range is appropriate for this offence: (i) The seven characteristics identified above do not represent the full range of factors relevant to the sentencing exercise. (ii) Many of the seven identified characteristics contain within themselves an inherent variability, eg different kinds of knives or weapons in (ii); extent of "limited actual violence" in (iv); degree of vulnerability in (v); amount in (vi). 165 In my opinion sentences for an offence of the character identified above should generally fall between four and five years for the full term." 39 The circumstances of this case reflect, with one exception, what might usefully be called the Henry factors. The exception is that the respondent was about forty-five years of age at the date of the offences and accordingly could not be regarded as a youthful offender. The Crown has submitted this is a neutral fact. Except in the sense that it gives some insight into a precipitating cause of the respondent's criminal behaviour, I agree with this submission. The fact that a person of mature years commits serious offences will generally be regarded as more culpable than where such offences are committed by a youthful offender. However, the circumstances here, because of the factors that contributed to the respondent's offending, do not justify an upward departure from the Henry guidelines because of the respondent's maturity. 40 It was also suggested during argument that the respondent to some extent was "better off than Henry" because there was no victim impact statement or other material suggesting that the victims suffered, as I understand it, significant anguish or anxiety or psychological injury. A victim impact statement is not evidence of injury, unless the offender consents to its being used for that purpose. More fundamentally, the absence of such a statement does not justify the inference that there was no adverse effect upon the victim caused by the offence. As Howie J said, in Bechar v Regina [2006] NSWCCA 1 at [22], "…the court assumes that the effect upon a victim of an armed robbery is substantial and this is taken into account in the penalty to be imposed…[whilst] evidence of a long lasting effect on the victim…might have been a matter of aggravation". In this case there was no evidence of aggravation, but the absence of evidence of effect on the victims, let alone absence of a victim impact statement, did not permit any reduction in the application of the Henry guideline. I mention this matter simply to correct an impression that might otherwise have been conveyed by the argument. The learned sentencing judge did not imply in his Honour's reasons for sentence that he had regard to the absence of material showing the effects of the offences on the victims. 41 The Henry factors, together with other circumstances that might be significant in particular cases, cannot sensibly be weighed with finely adjusted scales. Human motivations, the relationship between psychological dysfunction, adverse life occurrences in domestic or employment contexts, decision-making and moral culpability are, inherently, not susceptible to precise calculation, still less for the purposes of the criminal law. A broad commonsense approach, focused on the purposes of sentencing is called for. So considered, applying the Henry factors to the present case suggests sentences for the armed robberies should be placed at the higher end of the guidelines. 42 However, when allowance is made for the respondent's psychologically compromised state, the aberrant character of the offences in light of the respondent's prior good character, the remorse and contrition he has exhibited and his prospects for rehabilitation, I am not persuaded, in respect of the armed robbery offences (including the assault with the intent to commit robbery) that the learned sentencing judge's apparent starting point, before the utilitarian discount, of just under four years is manifestly inadequate. Even if it were, the inadequacy is not so great as to require this Court to intervene, especially when, (as I think ought to have been done) a utilitarian discount of 25% rather than 20% should have been allowed. It seems to me, furthermore, that no complaint of inadequacy can be made out so far as the offences of larceny and attempted armed robbery are involved. In this respect, I note that the Crown prosecutor in this Court did not press such an argument upon us. 43 Accordingly, I would not vary the lengths of the sentences imposed in the District Court. 44 The question of the extent of concurrency, however, is quite distinct. The learned sentencing judge said that he took the view that "the crimes, all committed over a period of about three weeks, were really all part of the one chapter of criminal activity" and his Honour did not see that accumulation was called for. I respectfully differ from his Honour's view. It seems to me that the offences committed on 30 December (attempted armed robbery and armed robbery) are so closely connected in point of time and place as to be fairly regarded as a single episode of criminal conduct. Similarly, the offences committed on 21 and 22 December (assault with attempt to rob and armed robbery) warranted concurrency for the same reason. I would not accept that complete concurrency was appropriate in the latter two cases, in particular, because there were two victims but the extent of accumulation would be relatively slight and in the context of a Crown appeal, would not be such as to require the intervention of this Court. The larceny offence committed on 10 December is relatively trivial. Indeed, standing alone, it would, I think, scarcely warrant a term of imprisonment. It was committed only two days after the first offence. In all the circumstances, making the sentence imposed for this offence completely concurrent with that imposed for the first offence was, in my view, correct. 45 This analysis leaves three connected sets of offences. I consider that, some accumulation was required adequately to reflect the criminality involved and that the failure to do so was an error. These sets of offences occurred as distinct episodes of serious criminality, albeit as parts of a series of offences within a limited timeframe. I do not see how the sentences for the second and third episodes could properly have been entirely subsumed in the sentences imposed for the first episode. Of course, this is a matter of fact and degree and there is no bright line. However, so serious are offences that involve threats to life or limb by the use of a weapon, in this case accompanied by the brandishing of a large knife, where they occur on separate occasions and with different victims, some accumulation will usually be necessary to reflect the gravity of the criminality involved. In my view, an accumulation was not only justified in the present case, it was required.

Conclusion 46 For the sake of completeness I should add that, with respect, the learned sentencing judge's finding that there were special circumstances justifying a substantial variation of the statutory calculus is correct. In the sentences that I propose, therefore, I have not varied that ratio. As I have mentioned, I think that the respondent was entitled in the circumstances to the utilitarian discount of 25% in accordance with the judgment of this Court in Thomson and Houlton. The proposed sentences include an adjustment in favour of the respondent to reflect this point of view. I have done this by lessening the extent of accumulation which would otherwise have been appropriate. In the nature of the exercise, this cannot be done arithmetically: I have simply made an assessment which reflects the discount.

Proposed orders 47 The orders I propose are as follows: 1. In respect of the sentences for the offences committed on 8 December 2004 (armed robbery) and 10 December 2004 (larceny) the appeals are dismissed. 2. In respect of the offences committed on 21 December (assault with intent to rob) and 22 December 2004 (armed robbery), the sentences are quashed and in lieu thereof the respondent is sentenced on each offence to concurrent sentences as follows: a non-parole period of 18 months to commence on 1 July 2005 and expire on 31 December 2006 with a balance of term of 18 months expiring on 30 June 2008;

In respect of the offences committed on 30 December 2004 (armed robbery and attempted armed robbery) the sentences are quashed. In lieu thereof the respondent is sentenced to concurrent sentences on each offence to concurrent sentences as follows: a non-parole period of 18 months to commence on 31 December 2005 and expire on 30 June 2007 with a balance of term of 18 months expiring on 31 December 2008. 48 The overall effect of these orders is that the respondent will be released to parole on 30 June 2007, with a balance of term expiring on 31 December 2008. **********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

At a glance

Court

Decision date

Before

Source

Judgment (21 paragraphs)

Parties

Cases Cited (8)

Cited By (6)