6 Originally, the principal thrust of the appeal was that on the material before the sentencing judge the sentence imposed was manifestly excessive, out of line with the guideline judgment in R v Henry(1999) 46 NSWLR 346 delivered on 12 May 1999 and outside the range of sentences appropriate to such offeces as revealed by statistics supplied by the Judicial Commission.
7 Counsel for the applicant did suggest additionally a specific error on the part of the sentencing judge. After referring to the sentence imposed by the Court of Criminal appeal following the applicant's successful appeal against the earlier robbery sentences, his Honour said "I do not believe that I can go below the term fixed by the Court of Criminal Appeal as the total term". It was submitted that, in so saying, his Honour misdirected himself . However, I do not read the remark as anything other than the expression of a conclusion by the sentencing judge that, taking into account all of the circumstances which he had enumerated in the preceding pages of his remarks, it would not be appropriate to fix a sentence less than that which had been fixed by the court of appeal in 1995.
8 In the course of a careful an d thorough judgment, the sentencing judge identified all of the relevant features of the case including those which might lead a sentencing court to a heavier rather than a lighter sentence (the applicant's extraordinary criminal record for a man of his age, the fact that he committed and was being sentenced in respect of the criminality involved in two separate offences, the fact that each of those offences was committed whilst on parole and that one of them was whilst he was on bail) and also, as his counsel conceded, all of those matters which might tend towards a mitigation of the penalty, including in particular: his early plea of guilty; his cooperation with the investigating police; the fact that because of a recent episode in the prison he had been placed on strict protection, so that the period he must spend in jail would be more onerous than under ordinary prison discipline; the fact that his extensive criminal record quite clearly is very closely associated with his drug addiction, and the fact that, as appeared from reports tendered before the sentencing judge, he is now making a determined effort to overcome his addiction, thereby reducing the risk of his re-offending. Hence it was submitted that the proper conclusion is that, although His Honour adverted to all of the relevant mitigating circumstances, he failed to give them appropriate weight.
9 The guideline established by the decision in Henry was that a full term of imprisonment of four to five years would be appropriate for a young offender, with little or no criminal record, who committed a robbery where a weapon such as a knife was used. It is indeed the case, as counsel submitted, that usually a proper approach in sentencing for armed robbery will be to start with the guideline, and to look to see what aggravating or mitigating factors warrant taking the sentence above or below that starting point. But that does not appear to me to be a universally correct approach, nor is it appropriate to strain the guideline too far so as to include cases which are really of a different category. In this case the applicant cannot be described as a young offender. He has a very significant criminal record. The judge in sentencing for the robbery offence was obliged to take into account his admission of guilt in respect of a quite serious offence of break enter and steal. In those circumstances, little assistance can be derived from a consideration of the guideline judgment
10 The submission founded on the Judicial Commission's statistics seems to be of more substance. The statistics show that in respect of all offenders sentenced for offences of robbery ( including offenders who did not enter guilty pleas and offenders who were sentenced for more than one count) only eight percent of all sentences included a full term of six years or more and only nine percent a minimum term of three and half years or more. In relation to offenders sentenced in respect of one count of robbery only, who entered a plea of guilty and who had prior convictions of the same kind, only thirteen percent of offenders received terms of imprisonment between five and a half and five years and only thirteen percent of prisoners received minimum terms of between three and three and a half years. However, those statistics would seem not to include matters where the sentencing court was obliged to take into account another offence in respect of which the offender admitted guilt. It cannot simply be said, therefore, that the sentence is, by reference to the statistics, demonstrated to be outside the range.
11 It is not to be overlooked that at the time when he came to be sentenced the applicant was serving the balance of parole in respect of a previous sentece forrobbery. On his arrest on 7 July 2000, his parole was revoked and he was returned to prison to serve a term which, but for the imposition of the present sentences, would have led to his release in or about September of that year. The judge dated the sentence now in consideration back to the 7 July 2000 so that to the extent of about two and a half months it was to be served concurrently with the balance of parole. That is a circumstance which was of course justified by the principle of totality; but it is also a circumstance which reduces the value of the statistics to which counsel referred.
12 Whether one starts from the guideline judgment in Henry or from the statistics compiled by the Judicial Commission, the question remains the same: whether, allowing the broad range of the judicial discretion in sentencing, the sentence is above the permissible range: not because of its relationship to the Henry guideline or its position in the scale identified by the Judicial Commission statistics, but because our consideration of the individual circumstances persuades us that if proper weight were given to those, a lower sentence would necessarily result. If one starts from the guideline judgment, the question is to what extent the individual circumstances would warrant a sentence below the guideline sentence . If one starts from the Judicial Commission statistics, the question is what effect do those individual circumstances have in moving the case towards the lower end of the statistical range.
13 On the basis only of the material that was before the District Court judge, I doubt whether this court would have held the sentence to be appealable.
14 However, at the hearing of the appeal the applicant, with the consent of the Crown, was granted leave to adduce fresh evidence relating to the applicant's psychiatric condition. That evidence consisted of relevant documents from the Department of Corrections and from the Mental Health Review Tribunal and a report dated 12 April 2001 from a psychiatrist Dr Rosalie Wilcox. Those documents show that on 28 October 1999 a prison psychiatrist diagnosed the applicant as "probably acutely psychotic". He was then in custody at Junee but was transferred to the psychiatric ward at Long Bay Hospital. On 27 June 2000, the Chief Health Officer certified that the applicant was a mentally ill person within the meaning of the Mental Health Act 1990 and he ordered, pursuant to S 97 (1) of that Act, that he be transferred to a hospital. He was admitted on 19 August 2000 to "A" Ward of Long Bay Hospital as a forensic patient subject to the jurisdiction of the Mental Health Review Tribunal.
15 Dr Wilcox confirmed the diagnosis of Chronic Paranoid Schizophrenia. She found that the applicant had persisting residual symptoms but was responding well to anti psychotic medication. She expressed the opinion that it was 'highly probable that Mr Jarman was in the early stages of a psychotic illness when he committed the robbery". She said, however, that "although he had been experiencing persecutory ideation his offending behaviour was not directly attributable to his mental condition". She expressed this opinion- " I believe that his abuse of the prescribed sedative serepax played a significant role in his offending behaviour. Serepax has a disinhibiting effect and would have affected his judgment and ability to think in a rational manner. It is however also possible that due to the presence of his paranoia he may have self-medicated with the serepax and therefore, although his offending behaviour was not directly related to his mental illness it may have indirectly contributed to his actions".
16 As to prognosis, her opinion was that he is likely to be on medication indefinitely; that while he is on the anti psychotic clozatine he will need to have close supervision; and that his prognosis will depend not only his response to that medication but also on whether he is able to abstain from the further abuse of drugs, in particular amphetamine and marijuana.
17 It seems to be clear on the whole of the evidence that at the time of the bank robbery, and probably also at the time of the chemist shop offence, the applicant was in the early stages of his psychotic illness. The evidence does not support a conclusion that either or both of the offences resulted directly from his mental condition. In evidence in the course of the sentencing proceedings, the applicant asserted that at the time of the bank robbery he was under the influence of prescription medication, and his Honour did not indicate that he rejected that evidence. It seems to be the probability, but that of course does not mitigate the criminality of his conduct. As to whether his abuse of serepax was itself a consequence of his psychiatric disorder appears to be no more than a matter of speculation. It cannot be said that the applicant has established that as a matter of probability.
18 The fact of his psychiatric disorder remains a matter of significance in the sentencing process, notwithstanding that it is not shown that the mental disorder itself caused the commission of the offence: Regina v Engert (1995) 84 ACrimR 67. It may not, in those circumstances, reduce the moral culpability of the offence, but it does warrant consideration of the extent to which general deterrence and specific deterrence should be taken into account. In Regina v Letteri (NSWCCA) (unreported, 18 March 1992),in a judgment in which Gleeson CJ and Sheller JA agreed, I said: