6 HULME J: On 21 August 1998 Paul Anthony Henry was sentenced by Acting Judge Johnston QC on two charges to which he had pleaded guilty, viz:-
(i) That on 18 March 1997 at about 8.30 pm at Tamworth, being armed with an offensive weapon, namely a knife, he robbed a console operator at a service station of some $775.00.
(ii) That on 1 May 1998 in company with Stephen Anthony Barber, Catherine Watson and Christine Hillhouse, he robbed a lone female shop assistant in charge of the North Tamworth General Store of some $810.00 and 8 packets of cigarettes.
7 In connection with the sentence on this last mentioned offence, Henry and the other offenders, to whom it will be necessary to refer, sought that a charge of self administration of heroin, purchased with part of the proceeds of the robbery, be taken into account. On each offence Henry was sentenced to penal servitude for a minimum term of 18 months, and an additional term of 4 years, such sentences to be served concurrently, the minimum terms to commence on 2 May 1998 when Henry went into custody.
8 The circumstances of the first of these offences, beyond those indicated by the charge, as recounted by the sentencing Judge were:-
"The prisoner entered the premises of the Mobil Service Station at … (and) confronted the console operator at the time who had just returned from the rear of the premises. The prisoner produced a filleting style wooden handled knife which was about 35cm in length. This was presented at the console operator and a demand was made that he open the cash registered. It is said that the prisoner held a knife to the skin of the operator but did not pierce the skin. The prisoner stood beside the console operator and instructed him against to open the cash register. The operator, who was in a panic and initially could not open the register but eventually he managed to open it. The prisoner then instructed the operator to get down on the floor and the prisoner removed $775.00 in cash from the register.
The prisoner then left the service station. Prior to leaving the service station the prisoner cut the telephone line."
9 Henry was spoken to about the matter by police officers on 29 August 1997 and denied any knowledge of it. Nevertheless he was charged on that day and remained in custody until on or about 30 September 1997 when he was admitted to bail. During the course of his evidence before Johnstone ADCJ, Henry denied the console operator's statement that he had touched the latter's skin with the knife. On this topic His Honour made no finding beyond that quoted and accordingly this Court must approach the matter on the basis of Henry's denial.
10 At the time of the second offence, Henry was living with Miss Watson. They were picked up by the other two offenders after which heroin was purchased and shared. All four then discussed the commission of an armed robbery and drove around Tamworth looking at premises with a view to committing such an offence. Three premises were inspected and rejected as unsuitable before the North Tamworth General Store was decided upon. In the words of the sentencing judge:-
"Barber and Henry left the vehicle and entered the store. Henry produced a long bladed carving knife from under his shirt. Henry approached the loan female shop assistant. He held the knife about 30cms from her and pointed towards her. Henry said "now get down and open the till". As this was said Barber placed a blue and while pillow slip over his face… The loan female shop assistant then opened the till. Henry said "Get down so you don't see us". The shop assistant then sat on the floor and Henry said "No, get right down on the floor so you don't see us". Both Henry and Barber removed cash from the till which Henry placed into a Baker's Delight material bag. Barber said to the shop assistant, "Stay down, don't look at us, we won't hurt you". Henry then said to the victim, "Any fifties?", the victim said "no, we use EFPTOS, we don't have a lot of cash here.
The cigarettes were then taken and placed into the bag and both offenders ran from the shop. Later police attended Barber's residence where they located the vehicle used in the robbery, the knife, money and some cigarettes. During this search Barber telephoned and spoke with the police. He offered to hand himself in and later did so."
On the following morning, Miss Watson attended Tamworth police station where she handed herself in. A little later Henry was observed walking along a street, arrested and interviewed. He then made full and frank admissions."
11 Johnstone ADCJ found that the shop assistant was fearful during the incident and "believed that she may be killed and was extremely upset."
12 Henry was born in July 1973. A pre-sentence report records that there does not appear to be any significant features in his early life to account for his appearance in Court. His record reveals, inter alia, some minor offences in 1993 and 1995 and that in April 1996 he was convicted of possession of cannabis and possession of utensils for administration of a prohibited drug. In September 1996 he was convicted of two counts of stealing and nine of using a false instrument. In August 1997 he was convicted of possession and self administration of a prohibited drug and two offences associated with train travel. For none of these offences did Mr Henry receive a custodial sentence but for one of the stealing offences he was placed on a 2 year good behaviour recognisance under Section 558 of the Crimes Act.
13 Although Johnston ADCJ does not say so in terms, he seems to have accepted that the need to fund a heroin habit was a cause of both of the offences. He quoted from the pre-sentence report a statement that at the time of the second offence Henry was subject to some additional pressure arising from the fact that, consequent on his having renewed contact with Miss Watson, his parents were making application to have his bail revoked. His Honour also quoted from the report that:-
"Mr Henry now highlights the damage that drugs have caused in his life, but this insight is belated: during the period on bail supervision he consistently denied any problems with drug use or dependence."
14 His Honour did not refer to another passage in the report that "in the long run, a period of parole supervision may be beneficial, but only if Mr Henry is prepared to be more honest in admitting to problems, and sincere about seeking change". In the report it is also recorded that Henry initially pleaded not guilty to this charge, believing he could "beat it" - a view somewhat inconsistent with any significant degree of contrition being held at that stage.
15 Mr Barber was dealt with by Johnstone ADCJ for the same robbery in company offence as Mr Henry. In his case also the offence of self administration of heroin was taken into account. The sentence imposed was a minimum term of 15 months penal servitude from 1 May 1998 when he went into custody with an additional term of 3 years and 9 months.
16 Mr Barber was born in August 1978. On 13 July 1992, he was convicted of possessing an unlicensed firearm and a shortened firearm, of breaking, entering and stealing and being armed with intent to commit an indictable offence. Inter alia, a 3 month control order was imposed. In November 1993, he was convicted of breaking, entering and stealing and another control order was imposed. In December 1995 he was convicted of a charge of stealing a conveyance for which he was sentenced to a 6 months control order.
17 In August 1997 Barber was dealt with in the Tamworth Local Court for a number of matters. These included being carried in a conveyance without consent, having a mid range PCA, and breaking, entering and stealing. On the latter offence he had been sentenced to minimum and additional terms of 9 and 3 months imprisonment. He appealed but before Johnstone ADCJ the appeal was abandoned and his Honour directed that the sentence commence on 1 May 1998. The offence of being carried in a conveyance without consent had been the subject of an appeal leading to Mr Barber being placed on a 2 year recognisance current at the time of his commission of the robbery. For breach of this recognisance, Johnstone ADCJ sentenced him to a fixed term of imprisonment for 6 months to date from 1 May 1998.
18 His Honour quoted, and it may be inferred accepted, statements in a pre-sentence report relating to Mr Barber. It is sufficient for present purposes to record that he had been raised in an unstable family environment, had little experience in the work-force, had in the past found imprisonment difficult and during past time in custody mutilated his arms and more recently made threats of self harm. He had a long standing problem with substance abuse, more recently heroin but despite awareness that these were common ingredients in his recidivism, had repeatedly failed to attend for counselling at the local drug and alcohol unit.
19 Because reliance was placed by one or other party on some other findings and decisions of His Honour, these should be referred to. Miss Watson was sentence to penal servitude for 9 months with an additional term of 2 years, 3 months in respect of the offence committed on 1 May 1998. The evidence before this Court concerning Miss Watson was limited, although it appears she also was addicted to heroin, had previously made some attempts at rehabilitation and had a criminal record which included cultivation of a prohibited drug, larceny and two other dishonesty charges, harbouring an escaped prisoner, and breaches of recognisance.
20 The fourth offender involved in the events of 1 May, Christine Hillhouse had no prior convictions but had a history of cannabis and heroin use. Prior to the proceedings before his Honour she had attended a drug and alcohol unit and the counsellor there had indicated that further intervention was not indicated. His Honour's Reasons record that he took into account "matters" on a Form 1, although apart from that common to all offenders involved with the incident of 1 May, there is no information concerning these. She was sentenced to 400 hours community service.
21 Johnstone ADCJ recorded that all prisoners had expressed an intention of pursuing a program of drug rehabilitation and he believed that Henry, Watson and Hillhouse had made genuine expressions of remorse and contrition and that Barber also had expressed the same. His Honour also observed:-
"I have structured the sentences to take into account the objective gravity of the offences together with the many subjective features identified in the evidence. I believe there are special circumstances within the criteria of S5(2) of the Sentencing Act which I will factor into the sentence."
22 He had previously remarked that the offenders were young and had pleaded guilty and that Barber had been placed in protective custody because he had identified his co-offenders.
23 In attempting to support the sentence imposed by His Honour counsel for Messrs Henry and Barber pointed out that His Honour had quoted the remarks of Mahony JA in R v Latouf (unreported, CCA, 12 December 1996) that:-
"There is a public interest in the adoption and articulation of a general sentencing principle which will deter the commission of serious crimes and punish those who commit it. However, there are other interests to which the sentencing process must seek to achieve. Most importantly, justice in the individual case. To see the sentencing process as involving no more than stern punishment for each offender is not merely simplistic it damages the public interest."
Further,
"It is recognised that imprisonment may convert a person who will not be a persistent criminal into one who is. It would be wrong not to attempt the rehabilitation of such a person."
24 It was pointed out also that Mr Henry was young, had no prior convictions for offences of violence, and had not previously been sentenced to imprisonment, either periodic or full time. In the case of Barber, attention was directed to, inter alia, his youth, that he had surrendered himself to police, made full and frank admissions and identified his co-offenders with the consequence that he was and probably would remain in protective custody, that in an interview shortly after his arrest he said he was sorry for participating in the robbery and wishes he had never met Mr Henry and his girlfriend. These remarks, together with his plea of guilty were, it was submitted, indications of remorse and contrition.
25 It is clear from His Honour's reference to R v Latouf and statements made to the Crown during the course of argument that he placed a great deal of weight on rehabilitation. Furthermore, during that argument His Honour had foreshadowed that he was disposed to find special circumstances. Counsel for the Crown agreed that these existed and suggested the matter could be dealt with by "an additional term of some length with conditions".
26 Against this background I return to the situation of Mr Henry. It may be accepted that , although he had prior convictions, his criminal record was not a bad one. He pleaded guilty and gave evidence and His Honour was entitled to find that he had made genuine expressions of remorse and contrition. Furthermore, he had given evidence of working and being drug free for some period between his two offences. On the other hand, His Honour made no positive findings in this regard and the pre-sentence report indicated rehabilitation was by no means a forgone conclusion. Experience shows that there is large step between good intentions and success in this regard and while there was material which could support the conclusion that prospects of his rehabilitation may be better than average, there was nothing to suggest they were particularly high.
27 In light of the subjective matters to which reference has been made and of the concessions made by the Crown as to the existence of special circumstances, it was appropriate for Acting Judge Johnstone to sentence upon the basis that special circumstances did exist. That said, His Honour erred in not identifying the matters which he regarded as being or establishing the existence of special circumstances - R v McDonald (unreported, CCA, 12 October 1988).
28 Furthermore, it is my clear view that His Honour allowed the subjective matters and the desirability, whatever the prospects, of rehabilitation to overshadow the objective circumstances of the case. Mr Henry was involved in two discrete offences well separated in time. He committed the first while on a recognisance. He committed the second while still on that recognisance and on bail in respect of the first offence. The law is clear that an offender who commits serious crimes whilst on conditional liberty is liable to a marked aggravation of penalty. As was 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."
29 See also R v Vranic (unreported, CCA, 7 May 1991), R v Rafter (unreported, CCA, 23 September 1994.), R v McMahon (unreported, CCA, 4 April 1996).
30 Concurrent sentences each with minimum and additional terms of 18 months and 4 years penal servitude were a wholly inadequate response to this criminality.
31 In light of the fact that Henry was on conditional liberty at the time of the offences, the minimum penalty which should have been imposed had but one offence been committed was penal servitude for 5 years, including a minimum term of 3 years. The selection of those periods reflects particularly the fact that Henry was not entitled to be treated as someone offending for the first time but also the Crown's concession and the fact that this would be Henry's first time in prison. Clearly the second offence required that the sentence which would have been appropriate had only one offence been committed be increased. The principle of totality must come into play although there is something to be said for the view that, even apart from the fact he was also on bail, Henry's criminality in allowing himself to commit, or fall into the situation where he was tempted to commit, the second offence, makes his criminality in respect of that offence worse than it was in respect of the first. For the two offences not less than a total period of penal servitude of 7 years with a minimum term of 5 years should have been imposed.
32 Division of the total periods into minimum and additional terms as set out in the preceding paragraph sufficiently reflects the suggestion of Counsel who appeared for the Crown before Johnstone ADCJ that the additional term might be "of some length".
33 So far as Barber is concerned, there is nothing to suggest that the 9 and 3 months terms previously imposed for breaking, entering, and stealing were excessive. His criminal history certainly indicates that the time had arrived for him to be given a full custodial sentence.
34 The offence of robbery in company was committed while he was on a recognisance. For the breach of recognisance he was given a concurrent sentence and, although there is nothing inherently wrong in that, it meant that the increased criminality had to be reflected in the sentence imposed on the robbery charge. No double punishment is involved. That imposed for breach of the recognisance was in respect of the offence in relation to which the recognisance was granted. The terms imposed hardly reflect that increased criminality and His Honour's decision to make the sentence for armed robbery (15 months minimum and 5 years total terms) concurrent with the sentence imposed on the breaking, entering and stealing offence, meant that the effective minimum and total terms imposed for the robbery offence were 6 months and 4¼ years. Consistently with the remarks made above concerning the minimum sentence which should have been imposed on Henry, particularly once account is taken of the fact that he, as was Barber, was on conditional liberty, these terms are prima facie inadequate, the minimum term grossly so.
35 And there was little to justify these departures. Police presence and discoveries at Barber's residence prior to his telephoning on the afternoon of the offence mean that his surrendering himself to police and admitting his involvement in the offence are not entitled to much weight. Barber did not give evidence and the statements in his interview with police to the effect that he was "sorry for it" do not justify a conclusion that he experienced any significant remorse or contrition for committing the offence (as distinct from being caught). Many of the statements which I have quoted from Mr Barber's pre-sentence report provide him with no assistance in any claim for a lesser rather than a greater penalty.
36 The only significant matters which distinguish Barber's situation are that he apparently named his co-offenders and it seems that in consequence he will serve his imprisonment in protective custody and, secondly, that imprisonment seems likely to operate more harshly on him than generally. However these are not sufficient to avoid the conclusion that, considered in totality, the sentence imposed on Barber was manifestly inadequate.
37 In light of that naming of his co-offenders and the discretion the Court has in the case of Crown appeals, , it is appropriate for this Court to decline to interfere with the total term. The minimum term must be increased substantially. This should be to 3 years. The sentence should be allowed to run concurrently with the minimum term of the 9 month sentence, yielding an effective minimum term for the robbery in company offence of 2 years and 3 months. The reduction implicit in this term is sufficient to take account of the extra difficulties to which Barber is subject in prison. Again the 2 year balance of the additional term is sufficiently long to meet the Crown's concession and the circumstances justifying a longer than usual additional term.
38 In the case of both Henry and Barber, the special circumstances justifying the imposition of an additional term longer than one third of the minimum term are the fact that neither had previously served a term of imprisonment, in the case of Henry that the second sentence has been made cumulative on the first and, in the case of Barber, that part of his sentence will be served in protective custody. So far as the sentence of this Court is concerned, one may add the Crown's concession before the sentencing judge.
39 The sentences which I have indicated for Barber and Henry bear a reasonable proportionality to one another. It was argued that any interference by this Court would breach the parity principle once account was taken of the sentences imposed on Miss Hillhouse and Miss Watson against whose sentences the Crown did not appeal. It is not obvious that this Court has before it all of the information which would be necessary to form a concluded view on that topic for example, pre-sentence reports. In any event the sentences imposed on Messrs Barber and Henry are in the Court's view so inadequate that they must not be allowed to stand - see R v Steele (unreported, CCA, 17 April 1997 and the authorities cited by Hulme J in R v Reardon (unreported, CCA, 19.8.96).
40 In accordance with s29A of the Criminal Procedure Act, I have not, in fixing these sentences, taken account of the evidence put before the Court by the Crown which was not before Johnston ADCJ. I have however had regard to the numerous statements made by the Court over a number of years prior to the imposition of sentences on Henry and Barber to the effect that "the range of sentences imposed for armed robberies, particularly serious ones, should be more deterrent than those which in fact are being imposed by the sentencing judges" - R v Waldron (unreported, CCA, 3 March 1994). Such statements are to be found in, for example, R v Flack (unreported, CCA, 12 December 1989); R v Petrinovic (unreported, CCA, 18 September 1990), and R v Vu (unreported, CCA, 11 November 1993).
41 This Court in Vu (unreported, CCA, 11 November 1993) took the view that the respondent in that case was entitled to be re-sentenced according to the range of sentences which existed at the time of his offence (some time before 20 April 1989). Whether that approach be correct or not, the law at the time of the commission of the offences with which this Court is presently concerned included the statements to which reference has just been made.
42 In this regard it may be noted also that the total and minimum terms of 5 years which have been referred to for one offence accord closely with the observations of this Court in Bragias (unreported CCA, 12 March 1997) where this Court allowed a Crown appeal and, after taking account of 9 months previously served in custody, imposed a sentence consisting of penal servitude for a minimum term of 2¼ years and an additional term of 2 years on one of two robbers who, carrying guns, entered a restaurant at Mosman and held up three members of the staff. Two under threat of the weapons were required to lie on the floor and the manageress taken to where the till was emptied and required to open a safe. The staff were bound and over $5,000 was taken. Grove J recorded that the sentence imposed was towards the lower end of the appropriate range. Sheller JA seems to have regarded it as the least sentence that could reasonably have been imposed at first instance. Simpson J agreed with their Honours' conclusion.
43 It may be accepted that $5,000 is substantially in excess of the amount in either of the robberies with which Henry was concerned and that there were three victims. However Bragias had no prior convictions and was not on a recognisance at the time of his offence.
44 It should be recorded also that there was put before this Court on behalf of both Henry and Barber, some evidence as to their progress since being sentenced. The Court has taken note of it but it does not suggest any significant change in their situation beyond that which might have been anticipated at the time of sentence. The evidence does not merit any additional downward adjustment in their sentence.
45 The orders of the Court should be:-
In the case of Mr Henry:-
(i) The sentences imposed by Johnston ADCJ on 21 August 1998 are quashed.
(ii) In respect of each offence then dealt with, the Respondent is sentenced to penal servitude for a minimum term of 5 years, commencing on 2 May 1998 and terminating on 1 May 2003 with an additional term of 2 years commencing on 2 May 2003 and terminating on 1 May 2005.
(iii) The Respondent will be eligible for parole on 2 May 2003.
In the case of Mr Barber:-
(i) The sentence imposed by Johnston ADCJ on 21 August 1998 in respect of the charge of robbery in company on 1 May 1998 is quashed.
(ii) In lieu thereof the Respondent is sentenced to penal servitude for a minimum term of 3 years commencing on 1 May 1998 and terminating on 30 April 2001 with an additional term of 2 years commencing on 1 May 2001 and terminating on 30 April 2003.
(iii) The sentence referred to in order 2 hereof is to be served concurrently with the other sentences imposed on 21 August 1998.
(iii) The Respondent will be eligible for parole on 1 May 2001.