27 His Honour said that he had taken those matters into account.
28 Having referred to the criminal history of Mr Philips and the breach of conditional liberty, his Honour expressed the view that a relatively heavy sentence must be imposed. However, his Honour found the special circumstances which I have outlined above.
29 In his overall submission that the sentence imposed was manifestly excessive, counsel for Mr Philips relied specifically upon two matters. Firstly, he pointed out that although the learned sentencing judge had referred in the opening of his remarks on sentence to the fact that Mr Philips entered a plea of guilty before a magistrate, no further reference was made to the plea of guilty and therefore no reference to a quantified discount for the utilitarian value of the plea. Relevant to the discount for the plea of guilty is the fact that there was evidence of contrition available from the applicant in his evidence in the pre-sentence report and in the report of Dr Lennings.
30 Counsel also relied upon the fact that there was a sentence imposed in round figures. It was submitted that the learned sentencing judge should have specifically awarded the applicant the maximum discount of 25 per cent for the plea, together with the evidence of contrition.
31 Reference was made to the judgment of this Court in Regina v Thomson and Houlton (2000) 49 NSWLR 383 and in particular to paragraphs 52 and 53, where the Chief Justice, Spigelman CJ, said
"The absence of any reference to actual consideration of the guilty plea in the course of sentencing should as a general rule in the light of the obligation of sentencing judges to give reasons for their decision, lead to an inference that the plea was not given weight. This conclusion is significantly influenced by the express statutory obligations."
32 And later,
"It may not have been entirely clear prior to this judgment that the absence of reference to consideration of a guilty plea in the sentencing process would generally be regarded on appeal as an indication that a relevant consideration had not been given weight.
In the course of formulating this guideline, the Court has been asked to determine that such should be regarded as the case in the future. This is designed to overcome the problem that the evidence and submissions before this Court in these proceedings have identified, namely the extent to which practitioners do not accept that a guilty plea, particularly an early plea, is in fact taken into account by sentencing judges.
As part of the process of overcoming this perception, the Court should, in my opinion, adopt the approaches generally applicable to decisions on sentencing for State offences delivered after a reasonable period allowed for the handing down of this judgment."
33 Reference was made to s 22(1) of the Crimes (Sentencing Procedure) Act 1999, which requires a court to take into account a plea of guilty and by subs (2) requires a court that does not impose a lesser penalty by reason of such a plea, to indicate to the offender and record its reasons for not doing so.
34 The Court was referred by Mr Dawe of Senior Counsel on behalf of the Crown to the fact that at the conclusion of the sentencing procedure in relation to both applicants his Honour was specifically reminded by Mr Gilson, then counsel for Ms Simpson, of the asserted need to quantify the discount for the plea of guilty. This is recorded in the transcript as follows:
"GILSON: Your Honour, I should draw to your Honour's attention the encouraged need, if I can put it that way, to quantify the discount for the plea of guilty, so it's not catting (sic) with your Honour's decision, but that sentencing judges have been encourage (sic) to quantify to enable--
HIS HONOUR: I don't think it's appropriate in this case that I should do that but I've certainly indicated that she gets in effect the maximum remission or reduction in the sentence by reason of her plea of guilty.
GILSON: May I(sic) please the Court."
35 Despite the submission by Mr Johnson to the contrary, I think it is reasonable in all the circumstances to infer that his Honour's remarks in response to the matter raised by Mr Gilson should be taken to extend to Mr Philips as well as Ms Simpson.
36 I cannot accept that an experienced judge, as his Honour is, could possibly have overlooked in the circumstances Mr Philips' entitlement to a significant discount for the benefit of an early plea of guilty. His Honour was not bound by authority to quantify the discount which he would have allowed. It is, of course, as learned Senior Counsel for the Crown conceded, a most desirable practice that there be quantification of sentences and it is unfortunate that his Honour did not quantify whatever particular allowance he made for the plea of guilty. Nevertheless he did indicate that the maximum remission or reduction had been granted in Ms Simpson's case and I interpolate, as I have said, those remarks to Mr Philips' case.
37 Of course, the remarks by the Chief Justice in Thomson and Houlton make it perfectly clear as to the desirable practice. However, the Chief Justice did not express the approach which he advocated in absolute terms. With respect, his Honour obviously allowed there to be, in a rare case, an exception. The instant case, to my mind, falls within the rare exception class.
38 Upon the assumption that the other grounds raised by counsel for Mr Philips fail for the reasons which I propose now to give, it is fair to say that the sentence by way of a full term and a non-parole period imposed by his Honour, bearing in mind the objective seriousness of Mr Philips' criminal conduct and allowing for the subjective case, are eloquent of the fact that a significant discount was in fact allowed for the plea.
39 I would therefore reject this ground of appeal.
40 The next matter raised on behalf of Mr Philips was a submission that the sentence imposed on Ms Simpson was significantly more lenient in relation to both the head sentence and non-parole period, and demonstrated a failure by the sentencing judge to adhere to the principles enunciated by the High Court in Lowe v The Queen (1984)154 CLR 606.
41 The point is made that both offenders were sentenced for offences under s 97(1) of the Crimes Act. It is common ground that Ms Simpson was charged with robbery in company as opposed to robbery whilst armed with an offensive weapon because the Crown was not able to prove beyond reasonable doubt that Ms Simpson was aware of the presence of the knife before it was produced by Mr Philips. However, it is pointed out on Mr Philips' behalf, that the sentencing process proceeded on the basis that his Honour found Ms Simpson:
"...was well and truly aware of what was happening when the vehicle stopped. When she got out of the vehicle, she then took an active part in depriving the owner of his assets and drove off with the co-offender." (See remarks on sentence page 4.)
42 Thus, in short, it is submitted that there was little difference in the degree of criminality insofar as each of the applicants was concerned. Allowing for the fact that Ms Simpson was not in breach of a s 9 bond or on bail and thus subject to the aggravating aspects of Mr Philips' offence, the submission is that the difference between the sentences was of such a magnitude as to engender a justifiable sense of grievance in the mind of Mr Philips.
43 There is no doubt that a significant difference between the sentencing regime imposed upon Mr Philips and that imposed upon Ms Simpson existed. However, I am not convinced that it is such as to constitute a failure to apply the principles enunciated in Lowe. The production by Mr Philips of the knife and the use of it in a threatening manner such as to engender a fear by Mr Vlahogiannis that his life was in danger does involve a very significant additional degree of criminality on the part of Mr Philips.
44 Suspicious as one may be that Ms Simpson may have been aware of the fact that Mr Philips was carrying the knife and that he intended to produce it and to use it in the manner in which he did, nevertheless the Crown did not adduce sufficient evidence for the sentencing judge to be satisfied on the criminal standard of proof that Ms Simpson had this knowledge. In addition, she was younger than Mr Philips and had a lesser prior criminal record.
45 The matter is not free from difficulty but I am not convinced that Mr Philips has made out a case that this Court should interfere on the basis of a lack of parity between the two sentences.
46 Therefore I would reject this ground of appeal.
47 In addition to the specific matters to which I have referred, reference was made by counsel for Mr Philips to the effect that at the time of sentence he was in protective custody as a result of threats and because of this experienced difficulty in obtaining access to rehabilitative courses.
48 It is pointed out that his Honour's remarks on sentence make no reference to the fact that Mr Philips was in protective custody. It is submitted therefore that his Honour failed to take into account the hardship that would be suffered by Mr Philips in gaol because he will be in protective custody. (See for example Regina v Cartwright (1989) 17 NSWLR 243 at 255.)
49 The evidence given by Mr Philips in this regard was brief indeed. No evidence was adduced to explain why the alleged threats were made to him and how long he would be likely to remain on protection. This evidence did not in my assessment constitute a sufficient basis for his Honour to inject a further element of leniency into the sentencing regime by taking it into account.
50 Then it was argued that the penalty of six years imprisonment for the first offence of this nature exceeds the four to five years imprisonment discussed in Regina v Henry & Ors (1999) 46 NSWLR 346 at 380. It was pointed out that in Thomson and Houlton it was said that Henry should be understood as involving a late plea for the purpose of the application of the guideline promulgated in Thomson. Thus it was argued that in the instant case the penalty of six years indicates no discount for the plea of guilty. An alternative argument was raised that if there was a discount in relation to the plea of guilty, then his Honour must have started with a figure of about eight years, which indicated a manifestly excessive starting point.
51 Challenging as these submissions may be, they sink under the weight of the grave objective seriousness of the offence committed by Mr Philips. In addition to the breach of conditional liberty, which of itself is a significant aggravating factor, there is additional venality associated with the use of a knife in a threatening manner. A knife is a weapon treated with abhorrence by the criminal justice system. The fact that the victim was a taxi driver and the particularly vulnerable position in which a taxi driver so frequently finds himself or herself is a very relevant factor so far as deterrence is concerned.
52 Reference for the significance of the deterrence element in sentencing for offences in the case of assaults upon taxi drivers is to be found in cases such Regina v Hitchens [1983] 3 NSWLR 318 and Regina v Thwaites (unreported CCA 1993).
53 The common law has now found statutory embodiment in s 21A(2)(c)(iii) of the Crimes (Sentencing Procedure) Act 1999, where vulnerability of the victim is a matter which the Court must take into account. The high level of present public concern with regard to the safety of taxi drivers and the concerns of the drivers themselves can be discerned from the steps which are taken and, in some cases, required by law to provide taxi drivers with as much security as their demanding and vulnerable circumstances permit. Thus, despite the longstanding and well established principle that offences of this nature require condign punishment, concern for the safety of taxi drivers would appear to be as great if not greater than ever.
54 For these reasons, I would propose the applicant Philips be granted leave to appeal against sentence but the appeal be dismissed.
55 I turn then to the application by Ms Simpson for leave to appeal. Ms Simpson relies solely upon one ground, namely that his Honour erred in demonstrably failing to take into account the applicant's pre-sentence custody.
56 As I have indicated, his Honour said in relation to Ms Simpson:
"The prisoner has served a period of some thirty three days in custody before being released on bail and that is a matter which must be taken into account."
57 Then later his Honour said:
"I have taken into account the fact that she served that thirty three days in custody."
58 Section 24 of the Crimes (Sentencing Procedure) Act required his Honour to take into account any time for which Ms Simpson had been held in custody in relation to the subject offence. Section 47(3) of the Act is generally to the same effect. However, there is no legislative requirement that the sentence be backdated to take into account a period of pre-sentence custody. There is much authority on the other hand as to the desirability of such a course. Thus, reference may be made to the well known passage in the judgment of Chief Justice Street, speaking on behalf of this Court, in Regina v McHugh (1985) 1 NSWLR 588 at 590-599 where the Chief Justice said:
"It is desirable sentencing practice that, where there has been a period of pre-sentence custody exclusively referable to the offences for which the sentence is being passed, the commencement of the sentence (and the non-parole or non-probation period) should be backdated for an equivalent period. This is to be preferred to a process of assessing the proper sentence (non-parole or non-probation period) and allowing, as it were, a discount in consequence of the pre-sentence custody. The desirable practice will promote the accuracy of the record, preventing there being a hidden factor affecting the length of the custody involved in consequence of the sentencing order."
59 Over the years, the practice recommended by the Chief Justice has been regularly applied. (See for example Regina v Deeble (unreported CCA 19 September 1991) and Regina v English [2000] NSWCCA 245.)
60 Although the practice was not followed in Regina v Frascella [2001} NSWCCA 137 and Regina v Rose [2001] NSWCCA 370 by two judge Benches of this Court, it has been more recently followed and affirmed in the judgment of a Full Bench of this Court in Regina v Howard [2001} NSWCCA 309. It does not appear that Judge Shillington's attention was drawn to Howard, which is perhaps not surprising, since it had only been handed down shortly before his Honour imposed the subject sentences.
61 I would respectfully agree with the submission of Mr Dhanji, counsel for Ms Simpson, that the approach recommended in McHugh and followed in Howard should be adopted by this Court in the instant case. One significant reason is that it would make clear to the applicant, Ms Simpson, that a specific identifiable allowance was made for the thirty three days in question.
62 It would clearly have dispelled any doubts which might be found to exist in the fact that his Honour imposed a sentence in round figures. Accepting this submission requires the subject sentence to be backdated to 17 September 2001. Accordingly, I would propose that the application for leave to appeal by Ms Simpson be granted and the appeal be allowed and I would propose that the sentence imposed by Judge Shillington be varied to a sentence of imprisonment for four years, to date from 17 September 2001 and to expire on 16 September 2005 with a non-parole period of two years to date from 17 September 2001 and to expire on 16 September 2003.
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