• The Crown, in this respect, conceded that at trial it might not have been able to establish, to the requisite degree, that the applicant knew that his co-offender, Franks, had a dangerous weapon, as distinct from an offensive weapon or instrument up to the time of the actual robbery so as to make him liable on the basis of joint criminal enterprise on the primary count (this was of particular significance given that the weapon was a loaded handgun).
42 Whilst the sentencing judge examined discrete matters arising under the guideline judgment in relation to the co-offender, Franks, his Honour did not undertake a similar exercise in respect of the applicant other than saying that the guideline judgment has "some relevance in the sentencing of Mr. McNamara, particularly when one considers the factual basis upon which the Crown case is presented against him …".
43 The submission made on behalf of the applicant, in essence, as I understand it is that an excessively high sentence resulted from an attempt to simply apply the guideline judgment, in particular by using it as a starting point. I note in this respect that it is said that a better approach would have been to regard the guideline as a "reference point or benchmark or a sounding board, or guide post" as described by this Court in Regina v. Way (2004) 60 NSWLR 168 at [122], [131]. Reliance is also placed upon the dicta of Grove, J. in Regina v. Hemsley [2004] NSWCCA 228 in which his Honour there stated:-
"Ground 4 asserted that his Honour erred in finding that a more severe punishment than the range suggested in R v Henry (1999) 46 NSWLR 346 was appropriate. His Honour said;-
'It seems to me that this case requires a more severe punishment than the range suggested in Henry .'
That approach utilizes the authority as a standard rather than as a guideline. I consider that a principled approach to sentencing requires the assessment of all the objective and subjective factors applicable in a particular case. The guideline judgment is then available to observe whether the sentence thus assessed is within established patterns of sentencing. It is not, in my opinion, a correct approach to commence with a range articulated in the guideline judgment and then conduct an exercise determining whether a particular case falls below, upon or above the guideline range. That appears to have been the approach taken by his Honour."
44 On reflection, I do not believe that the applicant's submission which I have recorded in the previous paragraph is one which assists in determining whether or not the sentence imposed was manifestly excessive, as claimed. On the facts of this case, I am of the opinion that his Honour was correct in adopting the approach of regarding the Henry guideline judgment as both a starting point and as a guide in assessing the sentence. It is true that not all of the identified seven characteristics referred to in the category of case to which Henry belonged exist in the present case (see p.380 of the Henry (supra) judgment). Whilst the applicant was not the young offender with no or little criminal history referred to in characteristic (i) in Henry, he was a relatively young offender with a limited criminal history. Whilst the sentencing judge did not consider the victim to be in a vulnerable position, the absence of that factor in this case, to some extent at least, diminished the gravity of the case, whilst characteristic (vi) small amount taken is to be taken, in light of the comments of Spigelman, CJ. at 381 that appropriate adjustment is to be made for the circumstances of a case within the category including the amount taken and thus account should be taken of the considerable amount taken in this robbery offence.
45 In this way, I consider the Henry guideline judgment does provide a relevant range and thus a starting point against which the objective and subjective factors may be properly assessed. Having regard to the applicant's criminal history, the amount taken in the robbery and the other identified characteristics for this category of case, it is, in my view, plain that the circumstances of it justified a sentence above the sentencing range in Henry of four to five years for the full term. Given, however, the way in which the Crown case was presented, I find difficulty in accepting that circumstances would take the case so far beyond that range that it required a total sentence of eight years. I am of the opinion that, having regard to the applicant's age, his limited criminal record, the concession by the Crown that it could not establish that the applicant knew that his co-offender had a "dangerous weapon" as distinct from an offensive weapon or instrument, the amount of money taken in the robbery and the comparatively less dominant role played by the applicant compared with his co-offender, Franks, that an appropriate total sentence was six years with a non-parole period of three and a half years, which period should date from 6 June 2003 and expire on 5 December 2006.
46 I am, accordingly, of the opinion that a less severe sentence is warranted in law and should have been passed: Criminal Appeal Act 1912, s.6(3) and that, accordingly, the applicant should be re-sentenced. Accordingly, the sentence imposed by the sentencing judge should be quashed and a sentence as set out below should be substituted therefor.
47 Accordingly, the orders I propose are:-
1. Leave to appeal granted.
2. Appeal granted.
3. The sentence of eight and a half years quashed.
4. In lieu thereof the applicant be sentenced to a term of six years to commence on 6 June 2003 and to expire on 5 June 2009, with a non-parole period of three and a half years to commence on 6 June 2003 and to expire on 5 December 2006.
48 SIMPSON, J: I agree
49 BUDDIN, J: I also agree.
50 SIMPSON, J: The orders of the Court will be as proposed by Hall, J.
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