The Chief Justice proposed that "sentences for an offence of the character identified above should generally fall between four and five years for the full term".
29. It will be seen that the starting point adopted here by the sentencing judge was at the upper range of this guideline. It is, however, submitted by the Crown prosecutor that the guideline applied to a case where the actual violence was "limited" whilst the violence in the present case was substantial. The violence was indeed substantial rather than limited but I do not think that it should be accepted that her Honour underestimated or gave insufficient weight to that factor in sentencing the respondent. There is nothing in my view to support the contention that the sentencing judge regarded the violence inflicted on Mr Napier as limited as that word is used in the Henry guideline.
30. It must be remembered that a guideline is not a straight jacket and, at all events, the features of this case differed in the respondent's favour in a number of respects from the features identified in Henry. Although a knife was wielded by one of the offenders, the evidence was not capable of establishing either that it was wielded by the respondent or that he was aware of any intention on the part of his co-offenders to use a knife. The victims were not in a vulnerable position such as a shopkeeper or taxi driver. By contrast with factor (vii) the significance of the plea of guilty was not "limited" by a strong Crown case. The favourable subjective features of the respondent's case were very unusual. On the other hand, as has been pointed out, the violence was not limited, and the offence took place in the victims' home.
31. Weighing these particular considerations with all the relevant factors, I am unpersuaded that the starting point (three months less than the higher figure of five years suggested in the guideline) selected by the sentencing judge was inconsistent with the Henry guideline. Even if it were inconsistent with the guideline, I am unpersuaded that the sentencing discretion thereby miscarried.
32. It was also submitted in the appeal that discount for the utilitarian value of the plea of 25% was too high. On the face of it, there is something in this contention. In R v Thomson; R v Houlton (2000) 49 NSWLR 383 the Court said -
"[161] The Court was asked to clarify its earlier guideline judgments in the light of any guideline it might propose in this respect. The standard case identified in each of R v Jurisic and R v Henry included a plea of guilty. That was not thecase in R v Wong in which the range encompassed relevant matters, including a plea. In each of R v Jurisic (at 231) and R v Henry (at 380 [162]), the Court was concerned with a guilty plea of limited value. The guidelines for theoffences considered in those cases should be understood to involve a late plea of guilty, for purposes of the application of the guideline promulgated in these reasons."
33. In R v Collins [2005] NSWCCA 198 Buddin J (with whom Simpson and Hall JJ agreed) said (at [16]) -
"It is to be recalled that the Henry guideline had built into it a late plea. An offender is not entitled to a discount of 25% for a plea of guilty in addition to the discount for which Henry already allows."
34. The Crown therefore submits that the additional discount beyond Henry should have been 15%. At the sentencing hearing, the solicitor advocate appearing for the Crown conceded that the respondent was entitled to a discount on the basis that his plea was made at the earliest available opportunity. No reference, however, was made to the qualified discount arising after application of the Henry guideline. A 15% discount, applied to the judge's starting point, would have resulted in a sentence of four years and two weeks, about six months more than her Honour's figure.
35. Another way of looking at this issue is to suppose that the upper end of the Henry range is 10% higher than the stipulated five years and compare the resulting figure of five years and six months with the sentencing judge's starting point of four years and nine months. I have already pointed out that some of the features in this case are more serious and some are less serious than the factors postulated in Henry. I do not agree that the difference arising from the giving of a 25% discount rather than a 15% discount demonstrates error on the part of the sentencing judge.
36. The Crown also submitted in the appeal that the sentencing judge erred by taking into consideration the respondent's good prospects for rehabilitation in respect of the full term of the sentence imposed as well as the special circumstance justifying a reduced non-parole period, citing in this respect the following passage from R v Fidow [2004] NSWCCA 172 by Spigelman CJ at [18] -
"'Double counting' for matters already taken into account in reducing the head sentence and therefore already reflected in the non-parole period must be avoided…Almost all matters capable of constituting special circumstances have usually been taken into account in determining the head sentence and sentencing judges should ensure that double counting does not occur."
37. I am not satisfied that the sentencing judge made this error. It is true that, in considering the overall sentence, her Honour referred to the prospects of the respondent's rehabilitation but this was in the context of determining that this (together with other favourable subjective features) did not justify anything less than the imposition of a fulltime custodial sentence. Moreover, as already appears from the passage cited above relating to the finding of special circumstances, the key feature justifying the reduction in the statutory ratio was the respondent's need for extended support whilst he attempted to make his rehabilitation intentions good. In my view, the sentencing judge's conclusion that this was a most significant factor in determining the appropriate length of the parole period was entirely appropriate. I am not persuaded that her Honour double counted this factor.
38. The Crown contended that the non-parole period failed to reflect the seriousness of the objective gravity of the crime, even taking into account the subjective features of the case. There is no doubt that the objective circumstances of this offence were serious for the reasons already identified. At the same time, the judge was entitled to give considerable weight to the unique subjective features of the respondent's case including not only the extraordinary, tragic and harsh circumstances of his childhood and youth but also the very substantial steps he had taken towards rehabilitation. The sentencing judge took the view that the respondent should be treated as a young man who had suffered from catastrophic experiences as a child and great hardship as he grew up, but (despite his involvement with cannabis and alcohol) had shown commendable responsibility in caring for his younger siblings and supporting his mother, even giving up schooling to support the family by work. Her Honour evidently concluded - rightly, in my respectful view - that his involvement in this offence was an isolated aberration. Moreover, this Court has always recognised that considerable significance should be given to the public policy favouring rehabilitation of youthful or relatively young offenders and this must be especially so where the offender has already taken significant and genuine steps towards rehabilitation.
39. I am not persuaded that the non-parole period, though certainly at the bottom of the range, was so manifestly lenient as to require the intervention of this Court.
40. In respect of the second charge, the Crown relied on the contentions advanced in respect of the first charge, submitting in addition, that the sentence of one year one month - considered as a full term - was manifestly inadequate. This submission is, I think, correct, but I think that it rests upon an editorial mistake in the ex tempore reasons. The relevant passage is as follows -
"If it was not for the strong subjective case, the sentence that would have been imposed would have been longer. In relation to this matter, the sentence I would have imposed in respect of the offence concerning Mr Sandhu before reduction for utilitarian considerations, is one of one year and six months. Reduced by 25%, this is one year one month and fifteen days, rounded to one year one month. That sentence will commence on 20 December 2006 and expire on 19 January 2008. I decline to specify a non-parole period because of the sentence I intend to impose in respect of the offence concerning Mr Napier."
41. It is obvious that the subjective considerations in relation to each of these offences are identical. Objectively, they differ because Mr Napier was more seriously injured. Having regard to the starting point in respect of the offence against Mr Napier of four years and nine months, the starting point in respect of the offence against Mr Sandhu of one year and six months is completely out of kilter. This marked and inexplicable difference was not the subject of any comment by the sentencing judge. If the sentence was a fixed term (reflecting a non-parole period) then it does bear a rational relationship with the one year and five months imposed in respect of the first charge. I am of the view that this is what her Honour intended and that the use of the word "non-parole" (if not an error in transcription) was intended by her Honour to refer rather to the parole period. This is the only way, I think, to explain an otherwise baffling differentiation, which plainly did not occur to the very experienced sentencing judge at the time. So considered, I am not persuaded that the sentence is manifestly lenient such as to justify the intervention of this Court.
42. There is, however, the remaining question whether it was outside the proper exercise of the sentencing discretion to provide that this sentence was to be wholly concurrent with that passed in respect of the first charge. The Crown points to the following passage from Pearce v The Queen (1998) 194 CLR 610 at 624 -
"A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well, of course, as questions of totality."
43. This passage, however, must be considered in its context, and I set out below the relevant preceding passages (194 CLR at 623-624) -
[43] The trial judge sentenced the appellant to identical terms of imprisonment on counts 9 and 10 and made those sentences wholly concurrent. We can only conclude that the sentence on each of those counts contained a portion which was to punish the appellant for his inflicting grievous bodily harm on his victims. Prima facie, then, he was doubly punished for the one act.
[44] Does that matter if, as was the case here, an order was made that the sentences be served concurrently?
[45] To an offender, the only relevant question may be "how long" and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence … "
44. In this case, the judge did fix a sentence in respect of each of the charges, although she may have made a mistake in expression so far as the second charge is concerned. It is clear also that her Honour considered the question of concurrency and accumulation. Where, as here, the acts of an offender are, to some degree or other, common to each of the victims - for example, the fact that the offence occurred inside their home - it is important to avoid the double counting which was the fundamental criticism of the sentences to which Pearce is directed. Also, there was no evidence that justified the conclusion that, in respect of Mr Sandhu, the respondent was aware of or had agreed to the use of the knife. Of course, there are some matters that are not common, for example, the physical attack on the second victim and the theft of his property. At all events, the circumstances suggest that, if the sentences should not be entirely concurrent, a substantial degree of concurrency is appropriate.
45. Pearce is not authority for the proposition that, when there are separate offences committed in respect of the either one or more victims, it is not appropriate to impose sentences that are entirely concurrent. At the end of the day, of course, the sentence must reflect appropriately the total criminality. I am persuaded that, in the circumstances of this case, some accumulation was necessary having regard to the two charges in respect of different victims. I would respectfully hold, therefore, that the discretion of the sentencing judge erred in this respect. However, it is necessary to consider whether, given this error, this Court should intervene.