13 Evidence tendered on this appeal without objection and accepted by us indicates that the programme is not of the degree of stringency to which his Honour referred. It is a three month drug and alcohol rehabilitation programme.
14 His Honour concluded that in his view although it was a case where there must be a substantial sentence of imprisonment, it was appropriate for the minimum term to be fixed at six months taking into the account the prisoner's intention to go into Lyndon House - assuming he is still acceptable there on his release. His Honour recommended to the Parole Board that a condition to that effect should be imposed on parole.
15 His Honour also referred to the personal anguish the prisoner would suffer and to that being a particularly keen punishment on him as he would be unable to assist his wife in her pregnancy and in the delivery of their child she was expecting. (We have been informed that the baby was born some three months ago.)
16 His Honour took into account the arrangements that had been made for a job and that it would be a considerable punishment for the prisoner to be engaged in full-time rehabilitation at the time his children are born.
17 His Honour adverted to the form of rehabilitation assistance which he expects would be provided, as one which involves a deprivation of liberty and referred to the utility of lengthy supervision on release with the expectation the respondent would be a responsible, worthwhile member of the community.
18 The evidence before his Honour in the pre-sentence report indicated remorse, insight, intelligence and attention to his problems on the prisoner's part but those observations in the report were conditioned upon the prisoner first needing to come to terms with his drug issues.
19 These considerations are what led his Honour to impose the six months minimum term. Thus, his Honour appears to have accepted the necessity for a lengthy period of rehabilitation as a special circumstance and reduced the minimum term to accommodate that factor.
20 It has to be accepted that for a long time courts have been disturbed about the level of sentences imposed from time to time for offences of armed robbery in the District Court of New South Wales particularly in the context of an evaluation of subjective circumstances. That is what led to the guideline judgment in Henry & Ors (supra)
21 In Regina v. Atonio [1999] NSWCCA 266 the Chief Judge at Common Law and I both recently adverted to the level of sentence in the District Court for serious offences of armed robbery and referred to the court having on many occasions said that the range of sentences imposed should be much higher than those in fact imposed by sentencing judges, I referred to Regina v. Vu (CCA unreported 11 September 1993). I remarked:-
"Armed robberies are offences of the gravest violence occasioning to the victims, not only the loss of their property but frequently permanent psychological damage of a serious nature. It has recently pointed out by the court in Regina v. Henry & Ors [1999] NSWCCA 111, that such offences require condign punishment. These sentences, albeit we have not had their merits debated in front of us in these proceedings, do not seem to reflect those principles which would require the objective gravity of crimes to be assessed in such a way as to produce, one would expect, sentences of much greater length".
22 The Chief Judge at Common Law similarly remarked on the necessity for sentencing judges to pay attention to the decisions of this court and particularly to the principles and policy set out in the guideline judgment.
23 It has been argued on behalf of the Crown that the sentence can be seen to be in error when it is appreciated that the minimum term needs to reflect the application of the relevant principles enunciated by the High Court in Regina v. Bugmy (1990) 169 CLR 525. In that case, albeit the court there was considering the Community Welfare Services Act of Victoria, since repealed, and a statutory regime not precisely the same as that here in question, the judgments adverted to the general principles applicable to a sentence including an order for release to conditional liberty.
24 In Bugmy (supra), in the passage in the joint judgment of Mason, CJ. and McHugh, J. (dissenting) commencing at 530, appears the following:-
"But that does not mean that the sentencing judge in fixing the minimum term approaches the task on the footing that he or she is solely or primarily concerned with the prisoner's prospect of rehabilitation: Power v. The Queen (1974) 131 CLR 623 put paid to that notion."
25 Their Honours continued, pointing out the purpose of a non-parole period at 531 citing what had been said in Power v. The Queen (1974) 131 CLR 623 by Barwick, CJ., Menzies, Stephens and Mason, JJ. The joint judgment of the majority, Dawson, Toohey, and Gaudron, JJ., was to similar effect on this. All of their Honours accepted that the non-parole period is the minimum period of custody the sentencing judge considers the crime committed requires and that the object of a minimum term or non-parole period is to provide for mitigation of the punishment of the prisoner in favour of rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum term that the judge determined justice requires must be served, having regard to all of the circumstances of the offence, citing Deakin v. The Queen (1984) 58 ALJR 367; Regina v. Paivinen (1985) 158 CLR 489 and Regina v. Watt (1988) 165 CLR 474. Mason, CJ. at McHugh, J. said:-
"Accordingly, although the fixing of a minimum term confers a benefit on the prisoner, it serves the interests of the community rather than those of the prisoner."
26 Their Honours cited the views of Jenkinson, J. in Attorney-General at Law v. Morgan & Morgan (1980) 7 A. Crim. R. 146 on the importance of the interests of the community which imprisonment is designed to serve as well as circumstances which would mitigate punishment.
27 Their Honours continued that the weight to be attached to various factors may be different as those factors are relevant to the different purposes behind the functions of the head sentence and the minimum term. They deal further with the prospects of rehabilitation and the particular damage which may be occasioned by requiring a minimum term of imprisonment to those prospects, but nevertheless they conclude the minimum term as part of the sentence must remain to some extent proportionate to the gravity of the crime and the circumstances of the offender. Although there was a difference between the minority and majority judgments on the importance to be given to rehabilitation prospects, the views of the majority on this last proposition were to similar effect.
28 In Regina v. Henry & Barber [1999] NSWCCA 107, her Honour Justice Simpson, in consequence of what had been said in the guideline judgment to which I have already referred, examined the sentences for armed robbery imposed in the individual cases of two of the respondents to the guideline judgment. At p.76 commences her examination of the minimum terms in the light of the contention such were manifestly inadequate. She said:-
"A sentencing judge, having found special circumstances, has a good deal of room to move in the structure of the sentence to be imposed. However the discretion conferred by s.5(2) should always be exercised with one eye on the relevant minimum term, which must be such as properly to reflect the objective gravity of the crime for which it is imposed, taking into account the subjective features."
29 Her Honour cited Power (supra); Regina v. Morrissey (CCA, unreported 15 July 1994) and Regina v. McDonald (CCA, unreported 12 October 1998). She continued:-
"A sentencing judge who varies the statutory proportions in favour of a lengthier additional term needs to take care to ensure that the minimum term is no lower than that commensurate with the objective gravity of the crime".
30 In Regina v. Govinden [1999] NSWCCA 118, a Crown appeal in respect of armed robbery in company, was dismissed. His Honour Justice Dunford delivered a judgment, with which Smart, AJ. and I agreed. He referred to the seriousness with which this court regards the offence of armed robbery and the authoritative restatement of the law in Henry (the guideline judgment, supra). In Govinden (supra), as in here, there was the aggravating feature of the offence being committed while on conditional liberty and his Honour referred to a deterrent sentence as appropriate in those circumstances citing Regina v. Richard (1991) 2 NSWLR 464. His Honour referred also to the prospect of rehabilitation and the judgment of Mahoney, ACJ. in Regina v. Lattouf (CCA, unreported 12 December 1996) and, in particular, the passage in which his Honour referred to the value to the community of rehabilitation which appears at pp.6-8 of that judgment. I extract from the portion of that decision cited by his Honour the following:-
"But, in addition, a sentencing process must be capable of discriminating between cases. There is, as I have said, a public interest in punishment. But if the desire to punish results in a person who would otherwise not become a confirmed criminal becoming such, that sentencing process is inconsistent with the public interest.
It is to be recognised imprisonment may convert a person who will not be a persistent criminal into one who is. Particularly is this so where the person to be sentenced is a first offender of comparatively young age whose family circumstances are such that he may, with assistance, not become a criminal. It would be wrong to the individual and costly to the community not to attempt the rehabilitation of such a person."
31 The Crown appeal was dismissed in Govinden (supra) but the basis for dismissal was an argument on a parity basis not available here. Those last observations of Mahoney, ACJ, cited by Dunford, J. are observations of general significance but are not in my view to be taken as in any way inconsistent with the observations of Simpson, J. to which I have earlier referred and, in particular, they are not inconsistent with the significance of her Honour's views on the necessity of retaining a proportionality in the minimum term reflecting as appropriate in the light of Bugmy (supra), the special considerations applicable to it, including those arising from a consideration of the objective circumstances of the crime and the other values of sentencing which include punishment and deterrent.
32 It has been argued here by counsel on behalf of the respondent that the trial judge did not fall into error and the sentence fell within the sufficient range available to him in the particular circumstances of this case so that the imposition of the six months minimum term was not outside the legally permitted ambit of appropriate sentences. I am unable to accept that argument.
33 In my view the minimum term, even taking into account the prospects of rehabilitation, falls so far below what is appropriate as to indicate that his Honour has fallen into legal error in reducing the impact of the sentence and failing to have regard to appropriate criteria in imposing the minimum term.
34 It has also been submitted that it was open to his Honour to have had regard to the prospects of the "crossroads" as they are referred to in the judgment of the Chief Justice of South Australia in Regina v. Osenkowski (1982) 25 A. Cr. 3794. The remarks of the Chief Justice in that decision, as with what was said by Mahoney, ACJ. have to be considered in the context of the principles referred to by the High Court in Bugmy (supra) and the principles adverted to by Simpson, J.
35 Rehabilitation is plainly a matter to take into account. Prospects of rehabilitation are plainly a matter to which much regard might have to be paid by a sentencing judge Bugmy (supra) clearly says this. What was said by Wood, CJ. at CL. in Henry (supra) concerning the availability of the prospects of rehabilitation to allow a diminution in the sentence that might otherwise be passed may not put the matter as highly as others might put it but, however one has regard to the "slamming prison door" principle, one still must have regard to what the High Court has said are the other appropriate considerations in Bugmy (supra).
36 Further as both the judgments in Henry (supra) show, even though drug dependency may have a particular relevance for the relativity of the minimum and additional term and that rehabilitation and its prospects may have a particular impact in that context regard must still be properly paid to those other considerations.
37 In Shrestha v. Regina (1991) 173 CLR 48, there appears a passage to which the respondent's counsel took us which suggested that in an appropriate case considerations of mitigation or rehabilitation may make full-time custodial imprisonment unnecessary or even undesirable. That passage is to be understood in the context of their Honours making general remarks for the differing regimes throughout Australia in some or most of which, unlike New South Wales, suspended sentences are available. Such remarks are themselves posited on there being, in an instant case, considerations of such a compelling nature that no or a very short minimum period in custody might be granted consistently with the need for punishment and deterrence. That is not this case.
38 Whilst it is clear that the circumstances of parole may themselves involve a significant loss of freedom if there is to be confinement for rehabilitation purposes in some such establishment as the trial judge was referring to in his remarks on sentence, it would be an error to allow the fact of such confinement for rehabilitative purposes during the parole period to so diminish the deterrent effects of a minimum term as to reduce it as far as it was reduced here.
39 I conclude, therefore, that his Honour did fall into error and that it is necessary for this court to intervene, absent any matter which, in the exercise of discretion, is seen to have such imperative force as to require that the appeal be dismissed.
40 Both on the re-sentencing and on the exercise of the court's well-known discretion in respect of Crown appeals, there has been tendered in evidence the notice from the Parole Board notifying its decision to authorise the release of the respondent, who has now been at liberty since 22 July, upon stringent terms including a term that he submit for supervision for a period of three years from release; that he, if so directed by his probation and parole officer, seek assistance in controlling his abuse of drugs; undertake urinalysis; authorise and direct his medical and other professional and technical advisers or consultants to provide to the Probation and Parole Service a relevant report on a rehabilitation/ residential centre as directed; accept psychological assessment and/or counselling and other terms.
41 In addition there is a pre-release report which also refers to a pre-sentence report. Those report are in most respects greatly to the respondent's advantage. The former refers to one incident during his confinement at the Metropolitan Remand and Reception Centre which stemmed from his then drug detoxification; it refers to his having been cleared of risk status and having not since come under notice; it refers to the good progress of the respondent which may well be impeded if he is exposed to other individuals in commonly available rehabilitation centres who are entrenched in a drug focused life style; it refers to the respondent clearly needing the assistance of professional intervention "in view his problem drug history, his somewhat advantaged material and social conditions have provided him a lifestyle and value system which could marginalise him from other drug centre residents and affect his performance. It is to be noted he has been the subject of some ridicule and banter at Silverwater due to inmates' knowledge of his father's professional profile". That report states that he has now acquired a good ability to critically appraise the delivery of professional assistance and how his needs can be suitably attended to and has a determination to effectively deal with his personal problems. He has apparently responded well instead to confronting exploration of his problem behaviour particularly when his parents are able to provide input.
42 The reports notes that in the pre-sentence report it is considered by the counsellor:-
"[His] drug and personal issues would be appropriately dealt with were he to immerse himself in an environment which offered him productive purpose, a sense of achievement and opportunities to recognise and improve his relationship stresses involving his parents and defacto wife. Further, the inclusion of individual and family counselling services in a non-residential setting would better facilitate monitoring and guidance of associated developments. The counsellor added that residential rehabilitation should be an option during parole in the event that Mr. Webster shows any indication of relapse.
Enquiries indicate that several drug centres are prepared if necessary to assess the inmate during parole and tailor a program to involve his family in reaching positive goals. While this avenue would impose further financial and emotional expense upon his parents, they offered a preparedness to provide such support."
43 Further the pre-release report noted that a family arranged farm management position was open to the respondent:-
"The inmate clearly recognises the additional upheaval his further drug use and offending has created in his parents' lives and that of his pregnant wife. These impacts have sensitised him to the gravity of his antisocial and maladaptive behaviour. He regarded these matters, in addition to desiring improvements in his functioning, to provide major impetus to resolving his destructive conduct.
Mr. Webster's realisation that his drug use points to underlying relationship concerns that need immediate attention has given him a productive direction to pursue. He is aware that he is unable to attain a positive lifestyle independently."
44 That report concluded:-
"Mr Webster impresses as one whose imprisonment has enabled him to reflect on his drug related problems and consider constructive methods of improving his circumstances. His ability to detoxify from heroin has so far shown minimal difficulty. However, he is yet to adequately examine the degree to which his family relationship issues influence his decisions to act self-destructively and against the interests of others. This needs to be the focus of his personal growth.
…
In view of Mr Webster's positive attitude and promising progress, it is recommended that he be released to parole, conditioned that he undertake:-
1. urinalysis for a minimum of six months,
2. psychological counselling,
3. drug counselling,
4. enter a residential drug rehabilitation programme if so directed
5. maintain employment."
45 There is a further note indicating he appears to have used his time in custody constructively and that residential drug treatment option should be available to him. The Lyndon Community Rehabilitation Programme is apparently available to him if it is regarded as appropriate.
46 Notwithstanding those favourable observations and what appears in the respondent's affidavit on this appeal to which I will shortly refer, it nonetheless seems to me that this court should not decline to stay its hand. In my view the error made by the trial judge was so glaring and the absence of an appropriate regard for the criteria enunciated in Bugmy (supra) by the High Court so obvious that the court should not in its discretion refrain from returning the respondent to custody but consistent with the usual practice on Crown appeals only for the minimum period appropriate to apply those principles. This, at least, should mark as clearly as possible that there is in the objective circumstances of armed robberies of the kind here in question a minimum of full-time custody which can be expected except in the most exceptional circumstances.
47 I am, however, of the view in accordance with that practice to which I have referred, that having regard to the sentencing material, double jeopardy, the discretionary considerations and the matters in the respondent's affidavit, that minimum term should be disturbed only to the extent of increasing it by a further six months and that the court should in so extending the term make to the Corrective Services authorities recommendations that all possible steps should be taken to seek to avoid any deleterious effect upon the rehabilitation process as it has been proceeding with the respondent and to enable him to maintain contact with his family. In particular that it should be recommended:-