29 Putting aside what other matters have been argued on this appeal, in my view his Honour there fell into error. His Honour did not identify the particular special circumstances. He did not identify the circumstances which might have the necessary character and which might attract thereby such significance as to warrant the variation of the statutory proportions, and failed in that regard to give adequate reasons for variation of the proportions.
30 The Crown has argued on the appeal that his Honour's sentence was manifestly inadequate, and that his Honour fell into error in some three ways. I put aside for the moment the submission that the sentence was manifestly inadequate. His Honour was said to have fallen into error having regard to the guidelines expressed in the judgment in this court in Henry (supra) concerning the appropriateness of sentence for armed robbery. There was debate before his Honour concerning those guidelines and their applicability.
31 The guidelines provide for a category of case of armed robbery, which is sufficiently common as to include such characteristics as: a young offender with no previous criminal history; a weapon like a knife, capable of killing or inflicting serious injury; a limited degree of planning and limited, if any, actual violence and the victim in a vulnerable position; a small amount of money being taken; and a plea of guilty, the significance of which is limited by a strong Crown case.
32 This offence was, however, a different offence. It involved actual violence and injury. It could not be said to have involved limited actual violence, albeit that that violence has to be considered in the context that the injuries were not intentionally deliberately inflicted. On the other hand, it could not be said that the significance of the plea was limited by a strong Crown case. Indeed, in my view, it could not be said that the significance of the plea was such as to show that his Honour fell into appellable error, as his Honour weighed it, having regard to the range of decisions open to a trial judge in the discounting of the sentence in accordance with the guidelines set out by this court in the decision of Regina v. Thomson & Houlton [2000] NSWCCA 309 and having regard to the additional matters to which s.23 applies.
33 The appropriate range for the offences to which it refers is identified in Henry (supra), so that sentences for an offence of this character should generally fall between four and five years for a full term, although aggravating and mitigating factors could justify a sentence in a lower part of the range. Further, of course, if there is a finding of special circumstances, the non-parole period may fall further below that which otherwise would have been appropriate as referred to in Henry (supra).
34 However, this is a crime that is very different to those referred to in Henry (supra).
35 Consequently, when the Crown contends that his Honour fell into error in (1) failing properly to apply the guidelines in Henry (supra), having regard to the fact that the maximum penalty for this offence was 25 years, rather than 20 years, and (2) failing to have adequate regard to the fact that actual violence was used, so that the appropriate sentence starting point, having regard to the range in Henry (supra), was too low. I do not accept that submission.
36 The Crown also submits that the plea discount was too much. Having regard to the matters to which I have already referred, to s.22 and s.23 and to the principles in Thomson (supra), I am not persuaded that it was inappropriate for his Honour to have given a substantial discount and to have regard to the principles in Ellis (supra) notwithstanding that the co-operation and assistance furnished by the accused, since it did not include evidence against the co-offender, was not of the greatest utility as is envisaged in that decision.
37 Moving then to the Crown's submissions that the sentence was manifestly inadequate. The reduction of the non-parole period means that the sentence when considered as a whole is a sentence which would require the defendant to spend 18 months in prison, to be liable to be returned to prison or for supervision during the balance of the term. It is undoubtedly an entirely lenient sentence for a crime of this gravity. It was a crime of a vicious and despicable nature.
38 However, even though his Honour did not detail them, in my view there were in evidence before his Honour, and on his Honour's findings, clearly special circumstances, such as to warrant a variation of the statutory proportions. In particular they were that this was the offender's first time in custody, that he had a young family, that he had entirely excellent rehabilitation prospects, and indeed his Honour's findings were sufficient to conclude that this event was an aberrant occasion in an otherwise reasonably well conducted life, putting aside the smoking of marijuana.
39 It was contended on the offender's behalf that the sentence was to be regarded as entirely appropriate, notwithstanding his Honour had reduced the custodial proportion of it so drastically, and notwithstanding that his Honour had failed, as I have already said, adequately to give reasons as to why and on what basis he had so decided.
40 Our function on an appeal of this kind, I have already referred to in some detail in the decision of this court in Regina v. Pont [2000] NSWCCA 493. It is not necessary for me to set out again here the well-known principles that are there summarised.
41 I have concluded that the sentence as it stands should not be interfered with, and that, not because his Honour did not fall into error in his decision concerning the special circumstances, because I am plainly of the view that he did, and he failed to give adequate reasons for his findings, but because, for this court to vary the non-parole period pursuant to s.52 of the Crimes (Sentencing Procedure) Act 1999 or to re-sentence to the extent necessary to correct that error, would be to increase the sentence and its practical effect in a way that would amount to tinkering. I find no other basis which would warrant interference.
42 I therefore am of the view that the appropriate course to take, notwithstanding the error that I have referred to, is for this court to dismiss the appeal.
43 HANDLEY, JA: I agree with Justice Greg James that the learned sentencing judge fell into error in the way that he has identified. I would add for myself that his Honour's remark, "there was absolutely no planning" is not, with respect, accurate. There was planning, albeit at a late stage on the occasion in question.
44 I am also of the view that the plea of guilty should not have been given enhanced value, because the offender had been discovered, and the police were able to interview him.
45 His prompt confession put an end to the police investigations, so there was no occasion for the police to investigate the availability of DNA evidence, the presence of bloodstains or damaged clothing in the prisoner's home, and the possibility that he could have been identified through DNA testing of the vehicle and the victim.
46 His Honour also plainly disregarded the statutory injunction to give reasons for his decision that there were special circumstances for making the non-parole period less than three-quarters of the total sentence.
47 The crime, with its ugly and dangerous incidents, was one which evolved, and the prisoner did not have complete control over the events. I have nevertheless been troubled by the lightness of the total sentence and the fact that only 18 months of that sentence is to be spent in custody.
48 My mind has fluctuated during the course of the argument. It is not clear to me that s.44(2) of the Crimes (Sentencing Procedure) Act 1999 is directed at mitigating the full time custodial portion of the sentence independently of the need of the offender for additional time under supervision following his release, but this is not a suitable case, nor has the argument been such as to make it appropriate to decide those questions.
49 The section departs from the previous legislation in significant ways and we have not been referred to any material in the second reading speech of the Minister or any explanatory memorandum which might throw light on the meaning of s.44(2) in the sense that I have referred to.
50 Nevertheless, the other members of the court are of the view that the sentence should not be disturbed and not without some doubt, I am prepared to acquiesce in that result. I therefore agree with the order proposed by Justice Greg James.
51 IPP AJ: I agree with Justice Greg James.
52 HANDLEY, JA: The order of the court will be that the appeal is dismissed.
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