(e) there was a lack of parity between the sentences imposed upon the two offenders, taking into account the differences in their ages, in the extent of their involvement in the offence, and in their subjective circumstances;
6 Subject to error being shown, it was submitted that in the event of the Court resentencing the Applicant, credit should be given for the progress which he had made towards his rehabilitation while in custody, that was disclosed by the various Certificates of Attainment that were tendered.
7 These submissions overlap to some degree. The case was one which fell within the reach of the guideline judgment in R v Henry (1999) 46 NSWLR 346 where a narrow sentencing range between 4 and 5 years imprisonment was identified (at para 162) for the category of cases that share the following features:
"(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."
8 The Court added:
"169. Aggravating and mitigating factors will justify a sentence below or above the range as this Court's prior decisions indicate. The narrow range is a starting point.
170. In addition to factors which may arise in any case, for example, youth, offender's criminal record, co-operation with authorities, guilty plea in the absence of a strong case, rehabilitation efforts, offence committed whilst on bail etc, a number of circumstances are particular to the offence of armed robbery. These include:
(i) nature of the weapon;
(ii) vulnerability of the victim;
(iii) position on a scale of impulsiveness/planning;
(iv) intensity of threat, or actual use
(v) number of offenders;
(vi) amount taken;
(vii) effect on victim(s)."
9 The present case shared all of the characteristics of the guideline case, save for that articulated in item (VII), since each of McAlister and Randell offered pleas at the earliest available opportunity. There was utilitarian value attached in so far as there was a saving in time and cost, and in so far as the victim was spared from giving evidence. In this regard it is the case that in Regina v Thomson and Houlton (2000) 49 NSWLR 383 Spigelman CJ confirmed that the Henry guideline should be understood, so far as feature (vii) in para 162 is concerned, to have involved a late plea of guilty.
10 The victim in this case did not fall within the precise category of victims mentioned in factor (v). She was, however, vulnerable in a different sense, in so far as the offenders forced their way into her home at night, at a time when she was alone and defenceless.
11 There is no reason to suppose that his Honour overlooked the fact of the plea of guilty, particularly since he expressly mentioned, in the opening paragraph of the remarks on sentence, that the offenders were appearing for sentence following their confirmation, before him, of pleas entered in the Local Court.
12 It is generally desirable for express reference to be made to the extent to which an allowance has been made for a plea: R v Sutton [2004] NSWCCA 225 at paras 16 to 17, although a failure to do so will not vitiate a sentence if it is otherwise clear that this factor has been taken into account.
13 However, in a case where there was no reference, in the remarks on sentence, to Henry, or to the clarification in relation to factor (viii) which was established by Thomson and Houlton, or to the extent to which the plea was taken into account, and where the sentence imposed fell at the top of the Henry range, a question does arise as to whether the sentence was manifestly excessive, which is sufficient for leave to be granted.
14 This question needs to be considered in the context of the circumstances that the offence was particularly serious in so far as it involved two offenders forcing their way into the victim's home, between 11 and 11:30 PM, at a time when she was alone and defenceless, and having gained entry threatened her with a knife and effectively restrained her while a search for money and/or drugs was made. On any view the occasion was extremely frightening for an entirely innocent victim, and as such it was one that called for a significant measure of general and specific deterrence. The fact that it involved a home invasion was also an aggravating circumstance: R v Knight [2002] NSWCCA 12.
15 It would not have been appropriate for this Applicant's objective criminality to have been discounted by reason of the fact that he followed his co-offender into the premises. He knowingly joined in a robbery that was planned, at least on the way to the victim's home, he was aware that a knife had been drawn when entry was made, and he assisted the co-offender who he knew to be disguised. He was aware that the victim was very frightened and had been threatened. Moreover, the fact that he may have been affected, to a degree, by alcohol, did not operate in mitigation of sentence.
16 His objective culpability, as a person who knowingly joined in a serious criminal enterprise, was accordingly significant, particularly as there were present the circumstances of aggravation noted in sub paras (b), (d), (e), (g), (j), (l) and (n) of s 21A(2) of the Crimes (Sentencing Procedure) Act.
17 The "caveat" concerning the extent of his contrition clearly had its origin in the pre sentence report which contained the following observations:
"Mr McAlister minimized his offending actions and displayed little insight with regards to the impact of his actions on the victim. It would appear from discussion with the offender and family that he also experiences problems in accepting responsibility for his behaviour, choosing instead to blame those around him and external factors. Until Mr McAlister recognises the need for him to address these deficits he may well continue to come before the Court."
18 It is the fact that in the ERISP the offender indicated that he felt "pretty bad" about what had happened, and that, in the course of his evidence, he described feeling "stupid" for the offence, as well as feeling "sorry to the girl" and indicated, additionally, that he would not be reoffending because he did not want to go to gaol, or to be in Court again.
19 His Honour was entitled to take such expressions of remorse, when offered by an offender facing sentence, and otherwise unsupported, with a grain of salt, particularly in the light of the pre-sentence report, and in the light of the absence of any mention of remorse in the neuro psychologist's report.
20 In circumstances where an offender does not fully accept the seriousness of becoming party to an offence of the kind before the Court, and where he shows little insight into his criminality or into the effect on the victim, but tends to pass the blame to others, the caveat sounded by his Honour was well founded. Error is not shown in relation to his Honour's findings concerning contrition.
21 The parity argument which rests upon the principles outlined in Lowe v The Queen (1984) 154 CLR 606 and Postiglione v The Queen (1997) 98 A Crim R 134 would permit intervention if this Court was satisfied that the difference in sentences between the two offenders, after making sufficient allowance for any differences in their objective and subjective circumstances, would leave this Applicant with a justifiable sense of grievance.
22 In summary, their subjective circumstances were as follows: