(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.
34 The guideline also applies to robbery in company: see R v Murchie (1999) 108 A Crim R 482; R v Poihipi [2001] NSWCCA 306 at [31].
35 For these types of cases Henry indicates that a full term sentence between four and five years will generally be appropriate. Of course, as Spigelman CJ indicated, there may be circumstances of a particular offence or offender which will justify a sentence above or below that range.
36 In the present case the Crown submitted that each of the offences committed by the respondent was a worse offence than that contemplated in Henry. Critical to the distinction in the present case was the fact that the respondent had an extensive criminal history, in each armed robbery offence he was in company and that at the time of committing all the offences the respondent was subject to parole. This was, it was submitted, an important circumstance of aggravation: R v Fernando (2002) NSWCCA 28 at [40]-[42].
37 The Crown submitted that although the respondent is not an old offender, he cannot be said to have an insignificant criminal history. Furthermore, both counts 3 and 4 required planning, involving as they did the use of a replica pistol and a stolen car. The amounts taken were not small, being the amounts of $850, $1400, $2300 and $1200. Having regard to all of these matters the Crown submitted that the starting point for the sentences should have been beyond the range set out in Henry.
38 The Crown accepted that the respondent pleaded guilty to all of the offences and, leaving aside the fact that having committed the offences he left the jurisdiction, had done so at the first reasonable opportunity. However, it is submitted that if Henry was the appropriate reference for the decision he was not entitled to the full discount for the utilitarian value of his plea, because a plea of guilty, albeit a late plea of guilty, is one of the characteristics of the kind of offence described in Henry. Notwithstanding the fact that in accordance with Henry a head sentence would generally be in the range of four to five years his Honour has set individual head sentence for each offence below the bottom end of the range, namely 3 years fixed term in relation to counts 1 and 4 and 45 months in relation to counts 2 and 3.
39 It was submitted that because his Honour applied a discount of 25% in accordance with the guideline judgment in R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383 on top of the Henry guideline the respondent has in fact received an effective discount of 35% for his plea of guilty in circumstances where there was no evidence of remorse or contrition and in any event there was a strong Crown case.
40 The Crown accepted that the sentencing judge was entitled to find that the respondent had some favourable subjective circumstances and to take those circumstances into account when sentencing the respondent. However, it was submitted that those circumstances carry little weight having regard to the need to ensure that a sentence imposed in relation to armed robbery reflects adequate provision for general deterrence: R v Spiero (1979) 22 SASR 543.
41 The need for general deterrence was emphasised by the Chief Justice in R v Sharma (2002) NSWCCA 142 at [74] where his Honour said:
"Armed robberies of the character involved in the present proceedings, committed by young persons, generally with an addiction problem, are so prevalent that the objective of general deterrence is entitled to significant weight in the process of sentencing for this offence, notwithstanding the youth of the typical offender."
42 The Crown emphasised that in Sharma the offender was actually nineteen years old, but nearly twenty, at the time of committing the offences for which he was sentenced. In the present case the respondent is now aged 24 although at the time at which he committed the offences he was aged 22. Far from being a mitigating factor it was submitted that the respondent's age places him squarely within the category of a typical Henry offender.
43 The Crown also submitted that although his Honour indicated he was taking into account the Form One matter when sentencing in relation to the second count, the sentence imposed failed to properly have regard to the other offence. It was submitted that an additional penalty was required: see Attorney General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 137 A Crim R 180 at [40]-[42] per Spigelman CJ.
44 Because the sentencing judge imposed the same sentence for count 2, as for count 3, taking into account the matter on the Form One, each sentence to be served concurrently, it was submitted that his discretion has miscarried.
45 It was submitted that the respondent's criminal history, his previous drug and property convictions demonstrate a continuing attitude of disobedience to the law raising a strong need for specific deterrence. The offences were committed in circumstances where they constitute a serious breach of parole which constitutes a serious aggravation of the offence: R v Fernando [2002] NSWCCA 28 at [41]-[42]; R v Vranic, NSWCCA, 7 May 1991, unreported.
46 The Crown accepted that there are significant inhibitions which have often been expressed by this Court in relation to Crown appeals. Although in this case the individual errors identified may not justify intervention, the Crown submitted that the ultimate sentences imposed by his Honour are manifestly inadequate and fail to reflect the objective seriousness of the respondent's crime.