There the matter rested.
41 Accordingly, there was no tender of any record of interview or any part thereof. At no stage was His Honour required to give a ruling on such a tender, whatever his preliminary view may have been. There is no basis for asserting an error of law on His Honour's part.
42 Even assuming the admission of both records of interview, the additional material would not have assisted the applicant, given that it was never disputed that Mr Georgiadis remained in his vehicle at all relevant times. His account could not have detracted from the victim's evidence of the applicant's conduct inside the premises. Far from assisting the applicant, Mr Georgiadis confirmed the Crown case as noted in respect of grounds 3 and 4. This ground also fails.
43 Ground 5 asserts error in that His Honour was said to have found that the applicant was a person of prior bad character. More particularly, the applicant points to the last entry on the applicant's criminal history relating to an offence committed in about September 2002, for which the applicant received a Community Service Order in July 2003. As I understand the applicant's submission, His Honour was not entitled to have regard to that entry in reaching the conclusion that the applicant had "repeatedly been given the benefit by the courts of lenient sentences". (R/S p 6)
44 The totality of what His Honour said on the subject of prior offences appears at pp 5 and 6 of the remarks on sentence:-
The offender does not have the advantage of prior good character or anything like it. There are a number of offences against his name, although he has not served a prison sentence.
……..
There are a number of matters in the Crown brief on his record which indicate that he has repeatedly been given the benefit by the courts of lenient sentences. It cannot be said that he was a person of prior good character.
45 Regardless of whether the last entry on the applicant's criminal history concerned an offence which post-dated the offence with which His Honour was dealing, the fact remains that His Honour's observations in this regard were entirely accurate. The applicant had five previous summary convictions for driving offences, two for Contravene ADVO, one for Indecent Assault and one for Goods in Custody. He had not received any form of custodial sentence.
46 Given the extensive delay in sentencing the applicant on this offence, and the role which the applicant's legal representative played in that delay, it is not surprising that a summary offence committed six months after the break enter and steal was the subject of conviction and sentence, approximately one year before these sentencing proceedings. His Honour did no more than refer to the applicant's criminal history, at the time of sentence. This ground of appeal also fails.
47 Ground 6 was abandoned at the hearing of the appeal.
48 Ground 1 asserts that the sentence imposed on the applicant offends the parity principle. The submissions in support of this ground rest, in part, on the fact that Mr Georgiadis pleaded guilty to Aggravated Break, Enter and Steal, carrying a maximum penalty of twenty years imprisonment, yet `` received a sentence of eighteen months, with a Non Parole Period of fifteen months, to be served by way of periodic detention. The applicant's counsel then drew a comparison between the number of days actually spent in custody over that 15 months of weekend detention, and the number of days of full time custody to be served by the applicant. The conclusion was reached that the applicant's sentence was therefore three times more lengthy than the sentence imposed on the co-offender.
49 Whilst it is true to say that a sentence of periodic detention is significantly less onerous than one served in full-time custody, the former cannot be mathematically assessed against the latter : R v Pangallo (1991) 56 A Crim. R 441.
50 In the case of both Mr Georgiadis and the applicant, His Honour determined that nothing less than a custodial sentence was warranted in order to reflect the objective gravity of the offence. In Mr Georgiadis' case, His Honour exercised his sentencing discretion by way of an order for periodic detention. The reasons why that step was not taken in the applicant's case appear at p 5 of the remarks on sentence:-
That matter is distinguishable from this in the reverse direction to which the nature of the charges might point because of the significantly different roles that were played. Georgiadis was the cockatoo; he is relatively (sic) to this offender an "innocent abroad" and although a prison sentence in that instance was necessary, the form of it was appropriately modified in accordance with his role and his prior character.
In the present case, the offender does not have the advantage of prior good character or anything like it.
51 In addition to these factors, it is also apparent that His Honour had regard to the applicant's lack of any real contrition or remorse beyond that reflected "in some degree" by the plea of guilty. Mr Georgiadis, on the other hand, had demonstrated real contrition beginning almost immediately after his arrest.
52 No error has been demonstrated in the exercise of the sentencing discretion on this ground.