28 Arguably of more persuasion is the DPP's criticism of his Honour in not differentiating between the sentences, which were for distinct offences, one more serious than the other. His Honour gave no reasons why equal sentences were imposed and whether any accumulation was appropriate or otherwise. However, given the simple facts of the offences, there was very little distinction between them and it was not inappropriate to impose equal sentences.
29 A further criticism is made of his Honour's finding of the existence of special circumstances in relation to the judge's mention of the respondent's age (29 at sentencing). However, the Crown accepts that other valid grounds existed for the finding of special circumstances.
30 Nonetheless, the DPP submits that the backdating of the sentence and the allowance for special circumstances have resulted in a sentence of little punitive effect. It is submitted that because of the breach of parole, the backdating of the sentences to 20 December 2000 was in error. The backdating by his Honour is of concern to the Court but, for reasons which I will mention later, I do not accept that the backdating was impermissible, although it may be said to be most unusual in the circumstances of this case.
31 In summary, and relying on the reading of the whole of the judgment of his Honour, the Crown contends that the sentences are unjustifiably lenient and manifestly inadequate.
32 On behalf of the respondent, it is submitted that the serious circumstance of aggravation, that the offences were committed while the respondent was on parole, was sufficiently acknowledged by his Honour in the sentences because, absent that aggravating factor, the offences were likely to have been assessed at the lower end of the scale. For example, there was no high level of damage to the premises, nor significant property stolen. Further, it was unlikely that there would be any encounter with occupiers, employees or members of the public because the stores were closed at the time of the offences.
33 Even with offenders with an 'appalling' record of criminal activity, including offences committed while on parole, there may be circumstances where a sentencing judge may properly conclude (within his or her discretion) that an offender should be afforded a chance to break a cycle of offending and embark on a realistic rehabilitation programme. In R v Caridi (Unreported, NSWCCA, 3 December 1987) the Court comprised Street CJ and Hunt and Newman JJ and the appeal involved an imposition by a District Court judge of a 7 month non-parole period in relation to an offence of robbery being armed and in company. In giving his reasons the Chief Justice said:
The particular circumstance that led to his Honour passing what was on its face such a short sentence, and specifying such a short non-parole period, [7 months] was the degree of assistance that the respondent provided to the prosecuting authorities in relation to the identification of the other persons involved and his readiness to assist the prosecution of those others. That, coupled with a further consideration which the criminal courts have long recognised, resulted in the order that has been stated. The further consideration is that his Honour took the view that at the respondent's present age, thirty-two, and with an earlier life which included quite serious criminal offences, a stage had been reached where a grant of leniency might be just sufficient to turn the respondent away from continued involvement in crime. That recognition by the criminal courts of a critical time, usually in the order of about thirty years of age, when otherwise hardened criminals may prove responsive to some degree of leniency - not a total absence of punishment but some degree of leniency - has been recognised both in this country and elsewhere and his Honour so regarded the present respondent.
34 So long as the circumstance of aggravation is reflected in the sentence, there is authority that a sentence may be backdated to the commencement of custody provided the circumstance is justified, rather than accumulated on the unexpired term of parole. See for example R v Kaiva and R v Webb (Unreported, NSWCCA, 9 November 1998). I do not accept that these cases establish any principle. Rather, they are examples that such a step may obviously be within a judge's sentencing discretion if the circumstances warrant. It is accepted here that the effect of the backdating by his Honour leaves a very short sentence indeed and, on one view, that may be seen to be an error.
35 In R v Allpass (1994) 73 A Crim R 561 the High Court acknowledged that if the Court decides to re-sentence an offender, it will normally recognise the element of double jeopardy involved by imposing a sentence of somewhat less than it considers should have been imposed by the trial judge. Moreover, the appellate court retains an overriding discretion not to intervene even if it concludes that error has been shown.
36 In my opinion, double jeopardy plays an important part in this case because, notwithstanding the DPP's reasonable promptitude in indicating its intention to appeal and giving Notice of Appeal on 28 September 2001, the respondent is close to being released to parole. In fact, in only 13 days time on the19th December 2001.
37 The respondent has, on all accounts, been progressing well while in gaol. He is, according to those who have reported, demonstrated a commitment and motivation to rehabilitation which has never been present before. He has been assessed by The Glen Drug Rehabilitation Centre as suitable for its programme, which is a long-term one. The Programme Coordinator recommends that if the Court permits his attendance, he should be subject to supervision by the Probation and Parole Service and not be permitted to leave The Glen without the direction of the Service. If he leaves without permission or is discharged prematurely from the programme, the authorities will be notified by the Centre.
38 If the Court were to substitute a new sentence in lieu of his Honour's, this would inflict a considerable hardship on the respondent, especially bearing in mind the closeness of his parole and his acceptance by The Glen. The impact on the respondent would be more considerable than perhaps is the usual case. In my view, particular significance should be given to the hardship which would be imposed on the respondent if he were to miss the opportunity of parole and admission to a long term residential drug rehabilitation programme. The progress which the respondent has achieved and was hoped for by his Honour, could be set at nought.
39 Without the significant element of double jeopardy and the evidence favourable to the respondent of his progress towards rehabilitation and the support he appears to be receiving in ridding his drug dependence, it is arguable that a longer sentence should be imposed. However, in the circumstances which I have discussed, I do not believe that the Court should intervene and re-sentence the respondent.
40 The appeal should be dismissed.
41 HIDDEN J: Clearly, it was open to his Honour to have dated the sentences passed upon the applicant from the date on which they were passed. They would then have been served partly cumulatively upon the balance of the sentence he was serving as a result of the revocation of his parole. That his Honour should have done so, in my view, was the Crown's strongest argument in this appeal notwithstanding the strides towards rehabilitation which the applicant had apparently begun at the time he appeared before his Honour.
42 It may well be that his Honour did fall into error in backdating the sentences in the way he did. However, I find it unnecessary to express any concluded view about that because, even if that were so, I am satisfied that the residual discretion of this Court demands that this appeal be dismissed, and I say so not only in the light of the material that was before his Honour but in the light of the fresh material which is now before this Court.