There was error ( R v Tadrosse [2005] NSWCCA 145; (2005) 65 NSWLR 740 at [22]-[23]). The discipline of identifying matters of aggravation or mitigation is especially important where there are differences between offences, as in this case. The aggravating circumstance of committing the offence in the home of the victim was relevant to Count 1, but not other counts. It was important that her Honour had that circumstance in mind when considering the sentence in respect of Count 1,
59 Turning to Count 1, and the seven features identified by the Chief Justice in a typical robbery, Mr Kelly, although a young offender, could not be described as 'having little or no criminal history' (Criteria (i)). He had a significant criminal history. Even in the context of his psychiatric history, which I will shortly describe, personal deterrence was an important consideration. Mr Kelly had a knife and came within Criteria (ii). The circumstances of the offence met the description in "limited degree of planning" (Criteria (iii)). The faces of the offenders were uncovered. The house was apparently selected because there was a car in the driveway. The fourth Criteria, "limited if any actual violence, but the real threat thereof", was a matter of some controversy. The Crown contended that the occupants had been terrorised and the knife held against the throat of the female victim. Counsel for the respondent corrected that description by reference to the agreed facts, which stated that the offender "reached forward holding the knife close to the victim's throat". However the victims were tied up. Tthe circumstances go beyond "limited if any actual violence", not because of the intensity of the threat (cf Henry [170] (supra [50])), but the tying up of the victims. Criteria (v), speaking of the vulnerability of the victims, identified a circumstance perhaps more appropriate in the context of the service station robberies (Counts 2, 3 and 4). Here the victims were unarmed, surprised and confronted by three individuals, two of whom were armed. They were certainly vulnerable. However, their vulnerability largely came about through the two matters of aggravation, not specifically identified, namely the fact that the offenders were in company (s 21A(2)(e)) and the fact that the offence was committed behind closed doors, in the victims' home (s 21A(2)(eb)).
60 The sixth Criteria presupposed that a small amount was taken. Here the property stolen was significant. It included money, two mobile phones and also the motor vehicle parked in the driveway. Criteria (vii) dealt with the timing of the plea. Here it was not a late plea. The plea was entered at the first opportunity.
61 Applying the guidelines, one should then look at aggravating or mitigating features (Henry, supra [50]). Such features include the matters identified, that is the offences were committed in company and involved the invasion of the victims' home. In addition Mr Kelly, at the time, enjoyed conditional liberty. He was on parole (s 21A(2)(j)). Tying up the victims added to the indignity and their terror. By any measure, objectively the crime in Count 1 was significantly worse than Henry, although it should be noted that I have yet to examine the offender's state of mind (Ground 4).
62 It will be remembered that Count 2 concerned the robbery of the Caltex service station at Bulahdelah. I will deal only with those criteria in Henry where there was a departure from the typical case. As with Count 1, Mr Kelly's criminal history was significantly worse. The planning involved in Count 2 was greater than Count 1, but still rudimentary. It came within the description "limited planning" in Criteria (iii). The Crown suggested there was actual violence. Mr Kelly grabbed the service station attendant by the tie, holding a knife to his throat. The actual violence was minimal, but again the intensity and sustained nature of the threat (as the victims were made to walk from point to point in search of more money) was far greater than that contemplated in Henry. The victims were vulnerable (Criteria (v)). The amount taken ($1,100) qualifies as a "small amount" (Criteria (vi)). Again, the plea was earlier and the comments made in the context of Count 1 apply.
63 As with Count 1, the fact that the offence was committed in company and whilst the respondent was on parole, were both significant aggravating features. Counsel for the respondent submitted that the circumstances were "no more serious than the type of offence contemplated by Henry, but at the higher end of it". However, such a characterisation understates the seriousness of the offence, subject again to Mr Kelly's mental state (infra [69]).
64 Count 3 was the opportunistic robbery immediately after Count 2. It will be remembered that money was taken from two doctors as their car was being filled with petrol. There was no planning (cf Criteria (iv)). The threat was short lived. A relatively small amount was taken. The same aggravating features as described in the context of Count 2 were present (in company and in breach of parole). The offence was acknowledged by the Crown as being far less serious.
65 However, Count 3 included an offence on a Form 1, that is setting fire to the vehicle that had been stolen earlier in the evening in the home invasion. It would have been more logical to include the Form 1 with Count 1. The question arises whether the offence should have been included on a Form 1 at all. The offence under s 203E(1), when prosecuted on indictment, carried a maximum penalty of 14 years imprisonment with a standard non parole period of 5 years. The use of a Form 1 reduced the punishment that could be imposed in respect of that offence, applying the principles in the guideline judgment (Attorney General's Application No 1 of 2002 [2002] NSWCCA 518; 137 A Crim R 180), although taking account of an offence on a Form 1 can result in a substantial increase in the sentence otherwise appropriate (R v Grube [2005] NSWCCA 140). In Eedens v R [2009] NSWCCA 254, Howie J (Macfarlan JA and Hislop J agreeing) said this in respect of the inclusion of a standard non parole period offence on a Form 1: (at [19])
"19. ... The significance of the standard non-parole provisions loses its impact when the offence is placed on a Form 1. I am of the opinion that generally it is inappropriate to have a matter taken into account that carries a standard non-parole period. Of course, there may be situations where that procedure can be justified, for example where the offender is being sentenced for a number of offences similar to those placed on the Form 1."
66 Here, it may be inferred that the car was deliberately destroyed to obliterate evidence (whether fingerprints or DNA) that may have connected the offenders with the crimes they had committed earlier that evening. It was a serious offence although, given the broad nature of offending comprehended by s 203E(1), still well below the mid range.
67 It will be remembered that Count 4 was the robbery of the service station at New Lambton in the early hours of 14 November 2008. The circumstances were similar to Count 2, except that the threat was less intense and the amount taken approximately the same ($2,000 cf $1,100 Count 2). The Crown acknowledged that it was a less serious offence (CS [61]). Leaving aside the mental state of the offender, the offence substantially conformed to the Henry guideline, apart from the aggravating features present in respect of all offences, that is committed in company and whilst on parole. In sentencing the offender, her Honour was obliged to take account of the Form 1, that is stealing a motor vehicle the evening before.
68 It was common ground that Count 5 (the robbery at the Mayfield Sport and Recreation Club) was more serious than Henry (CS [62]; RS [68]). The degree of violence was greater, although probably still within the description "limited, if any, violence but the real threat thereof" (Criteria (iv)). When the attendant refused to hand over the money, the respondent leapt the counter and held a knife to his throat. The two offenders were armed, one with a knife (in the case of Mr Kelly) and the other a tree branch (carried by his companion). The sum stolen was not small ($13,439). The same aggravating features (in company and on parole) were present. It was an aggravated form of the Henry offence, again subject to the mental state of the offender.
69 Let me turn, then, to the remaining issues and especially the mental state of Mr Kelly at the time of these offences.