Was there error in respect of the robbery offence?
28 In the guideline judgment R v Henry, Spigelman CJ (with whom Wood CJ at CL, Newman and Simpson JJ agreed, Hulme J dissenting) identified a category of case which was sufficiently common to determine a guideline. The offender within that category conformed to the following profile: (at 380)
"It appears from the cases that come to this Court, including the present proceedings, that there is a category of case which is sufficiently common for purposes of determining a guideline:
(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."
29 The Chief Justice then said this: (at 380)
"165. In my opinion sentences for an offence of the character identified above should generally fall between four and five years for the full term. I have arrived at this figure after drawing on the collective knowledge of the other four members of the Court with respect to sentence ranges. I have also reviewed the sentences which this Court has imposed on occasions when it has intervened, including in Crown appeals where the principle of double jeopardy applies. The proposed range is broadly consistent with this body of prior decisions in this Court."
30 Aggravating and mitigating factors will justify a sentence above or below the range. It must be recognised, moreover, that there will be variation between such offences arising from their particular facts. Spigelman CJ said this: (at 381)
"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, of force;
(v) number of offenders;
(vi) amount taken;
(vii) effect on victim(s)."
31 Drug addiction, as such, is not a mitigating factor, although it may be relevant in various ways (see especially, Wood CJ at CL at 397/8).
32 Here, his Honour, in his remarks, did not advert to R v Henry. It cannot be doubted, however, that he was well aware of that decision. Indeed, in the course of argument, in the context of the guideline judgement, the following exchange took place with counsel then appearing for Mr Snider: (T4)
"HIS HONOUR: Why would the guideline judgment in Henry apply to it?
JEFFERY: Because it's a robbery in company.
HIS HONOUR: Yes, a young man with no prior convictions.
JEFFERY: Well I'm not saying that but I'm saying that's the starting point.
HIS HONOUR: Well no the starting point is a young man with no prior convictions. That's not what we've got."
33 His Honour's comment rather suggested that he was, at that stage, contemplating a sentence in excess of that suggested by the guideline. However, he imposed a sentence which was less, namely a term of 3 years imprisonment with a non parole period of 1-1/2 years. In his remarks on sentence there was no discussion of the guideline, nor identification of those matters which suggested that an adjustment downwards was appropriate. In R v Ceissman (2001) 119 A Crim R 535, Wood CJ at CL said this: (p 537 paras 13-15)
"It is true that guideline judgments are not meant to be applied rigidly in every case or to lay down binding precedent from which there is never to be a departure. They are, however, intended to be indicative of the range of sentence that was regarded as appropriate by this Court following its considered examination of the authorities and of sentencing principle. See Jurisic (1998) 45 NSWLR 209 at 220, and Chua [2001] NSWCCA 50 at par 19 per Heydon J.
While a sentencing Judge does retain a discretion within the guidelines, including a discretion to depart from them, if the particular circumstances of the case justify (see Wong and Leung per Spigelman CJ at 555-556), this Court does expect the reasoning for such a departure to be articulated with some precision.
It also expects such a departure to be well based in fact and to pay respect to proper sentencing principles. It is not to be overlooked that an important purpose of a guideline judgment is to promote greater consistency in sentencing, and that an equally important purpose is to promote the general element of deterrence; See Henry (199) 46 NSWLR 346 at 359, and 386 to 387; and see also Cadd (1997) 94 A Crim R 466 at 511."
34 Here, a number of matters suggested the guideline required adjustment. Some favoured Mr Snider; others were adverse. It was important that they should be identified so that the offender (and, in the event of an appeal, an appellate Court) could understand why a particular sentence had been imposed.
35 The guideline presupposed little or no criminal history. Mr Snider had a criminal history involving a number of offences, some quite serious. The offences had been committed over a number of years. Nonetheless, he had not served a term of imprisonment, although he had been ordered to perform community service. He was also subject to sentences which had been suspended upon his entering bonds. His position was worse than that contemplated by the guideline.
36 Mr Snider, when he committed the offence, had a weapon, namely a baton. A baton is perhaps less forbidding than a knife. On the other hand, it was a joint enterprise. His companions had, respectively, a tomahawk and a machete.
37 The offence exhibited more planning than most. As mentioned, each offender had a theatrical mask. Mr Snider had gloves and a bag for the jewellery. There was a getaway car parked outside.
38 The guideline contemplated the taking of a small amount. Here a large amount was stolen ($74,000.00).
39 The plea of guilty contemplated in the guideline was a late plea (R v Thomson & Houlton (1999-2000) 49 NSWLR 383 at 418 para 161). A discount of 10% would ordinarily be given for such a plea. Here, there was an early plea. The offence was committed on 2 April 2003. Mr Snider pleaded guilty at the Hornsby Local Court on 7 July 2003. A discount of 25% would ordinarily be given in such circumstances.
40 There were two additional matters, however, which were significant matters of aggravation. The first was that Mr Snider was in company, and the second that he committed the offences at a time when he was subject to three bonds. The following comment by Street CJ in R v Richards [1981] 2 NSWLR 464, although made in the context of a person who offends whilst on bail, are apposite. Mr Snider, having entered the bonds, enjoyed conditional liberty. The Chief Justice said this: (at 465)
"... The community must be protected as far as possible from further criminal activities by persons who take advantage of their liberty on bail to commit further crimes. The only means open to the criminal courts to seek to provide this protection is to pass severely deterrent sentences upon those who thus abuse their freedom on bail. This will ordinarily involve a significant accumulation of the sentence for any subsequent offences on top of the sentence proper to be passed for the original offence. It must be made abundantly plain that persons at large on bail cannot expect to commit further crimes 'for free'. On the contrary, they will receive salutary penalties for the very reason that they have abused their freedom on bail by taking the opportunity to commit further crimes."
41 The balance, in terms of the guideline, suggested a worse case than that contemplated in the guideline. Making due allowance for the subjective case, one would certainly not have expected a sentence lower than the suggested range (which was four to five years). Even without resort to the additional offences (counts 1 to 3), I believe that the sentence imposed was manifestly inadequate. Error has been demonstrated.