REGINA v. WELLS [2006] NSWCCA 279

CATCHWORDS: SENTENCING - Crown appeal against sentence on the basis that the sentences were manifestly inadequate - respondent convicted of three separate offences - allegation of leniency arises by reason of both the leniency of the sentence imposed for the offence of armed robbery and of the concurrency of the sentences imposed - commencement date of sentences precluded punishment beyond the punishment imposed for the first offence - error of principle affecting the structure of the sentences imposed in the District Court and inadequate allowance made for the objective criminality of the offence of break, enter and steal and the offence of use offensive weapon to prevent lawful detention justification for appellate intervention

R v Henry (1999) 106 A Crim R 149 R v Sweetman [2000] NSWCCA 228 R v Valenti (1989) 46 A Crim R 23 R v Tawake [1999] NSWCCA 147 R v Bell (CCA, unreported 29 September 1997) R v Doorey [2000] NSWCCA 456 R v Jack Sua [2000] NSWCCA 94 R v RLS [2000] NSWCCA 175 R v Whyte (2002) NSWLR 252 AB v The Queen (1999) 198 CLR 111 R v Ponfield [1999] NSWCCA 422 R v Hathaway [2005] NSWCCA 368 CASES CITED: R v Bushara [2006] NSWCCA 8 R v Hamilton (1993) 66 A Crim R 575 R v Bazzi [1999] NSWCCA 346 R v Perez (CCA, unreported 11 December 1991) Pearce v The Queen (1998) 194 CLR 610 Johnson v The Queen [2004] 78 ALJR 616 R v Cotter [2003] NSWCCA 273 R v Janceski [2005] NSWCCA 288 R v Weldon & Carberry (2002) 136 A Crim R 55 R v Wall [2002] NSWCCA 42 Attorney-General v Tichy (1982) 30 SASR 84 R v Bardo (CCA, unreported 14 July 1992) R v Hernando (2002) 136 A Crim R 451

PARTIES: REGINA v. Stephen Lawrence WELLS

COUNSEL: Crown: P. Miller Respondent: H. Dhanji

SOLICITORS: Crown: S. Kavanagh Respondent: S. O'Connor

LOWER COURT JURISDICTION: District Court

LOWER COURT JUDICIAL OFFICER: Puckeridge, DCJ.

LOWER COURT DATE OF DECISION: 10 October 2005

IN THE COURT OF CRIMINAL APPEAL 2005/2552

McCLELLAN, CJ. at CL. JAMES, J. HALL, J.

THURSDAY 7 SEPTEMBER 2006 REGINA v. STEPHEN LAWRENCE WELLS Judgment

1 McCLELLAN, CJ. at CL: I agree with Hall, J. 2 JAMES, J: I agree with Hall, J. 3 HALL, J: On 19 December 2005, the Director of Public Prosecutions gave notice of intention to appeal in respect of the sentence pronounced in the District Court at Sydney on 10 October 2005 when the respondent was sentenced on the following charges:-

(a) Robbery whilst armed with an offensive weapon on 12 November 2003.

(b) Breaking, entering and stealing on 23 August 2004.

(c) Using an offensive weapon to prevent lawful detention on 23 August 2004. 4 The respondent pleaded guilty to each of these charges. In respect of each charge, he was sentenced as follows:-

(a) As to the offence of armed robbery (s.97(1) Crimes Act 1900 ), to a term of imprisonment of 3 years and 3 months imprisonment, with a non-parole period of 2 years and 2 months to date from 23 August 2004. The maximum penalty for the offence was 20 years imprisonment.

(b) As to the offence of break, enter and steal (s.112(1), Crimes Act 1900 ) to a term of imprisonment of 2 years and 3 months imprisonment, with a non-parole period of 1 year and 2 months to date from 23 August 2005. The maximum penalty for this offence was 14 years imprisonment.

(c) As to the offence of use offensive weapon to prevent lawful detention (s.33B(1)(a), Crimes Act 1900 ), to a term of imprisonment of 1 year and 6 months imprisonment, with a non-parole period of 12 months to date from 23 August 2005. The maximum penalty for this offence was 12 years imprisonment. 5 The ground of the appeal relied upon was that the sentences were manifestly inadequate. 6 The respondent was born on 29 August 1974. He was, therefore, 30 years of age at the date of sentence. He was unemployed at the date of the offences and was arrested on 23 August 2004 with respect to the offence of break, enter and steal and the offence of use offensive weapon to prevent lawful detention. Bail was refused. 7 Whilst he was in custody on remand for the above two offences, he was charged on 26 October 2004 with the armed robbery offence and bail was refused in regard to that matter. 8 On 5 April 2005, he was committed for trial to the Sydney District Court for the offences of aggravated break, enter and steal and use offensive weapon to prevent lawful detention.. 9 On 18 July 2005 (the date the matters were listed for trial), the respondent pleaded guilty before his Honour Judge Berman, SC. in the Sydney District Court to the offences of break, enter and steal and use of an offensive weapon to prevent lawful detention. 10 The sentence proceedings were heard in the District Court before his Honour Judge Puckeridge on 7 October 2005. The sentence was pronounced on 10 October 2005. 11 The total effective sentence was 3 years and 3 months commencing on 23 August 2004 and expiring on 22 November 2007. The respondent was eligible for release on parole on 22 October 2006. 12 In a letter dated 19 October 2004, the respondent was advised that the Director of Public Prosecutions was considering the question of an appeal to the Court of Criminal Appeal against the inadequacy of the sentence imposed. A copy of the notice of appeal was served on the respondent at Silverwater Correctional Centre on 21 December 2005.

Facts 13 The Crown set out in its written submissions a statement of facts concerning the three offences. The following reproduces that statement:- " Armed Robbery 8. Between 9.59 pm and 10.05 pm on 12 November 2003, the respondent entered the Ampol Petrol Station at Wentworthville armed with a knife that had a 20 centimetre blade. The respondent approached the counter and threw a plastic bag across the counter at the victim and said, 'Throw all your money in it'. The victim threw the plastic bag into the bin and went to activate the alarm. On seeing this, the respondent moved towards the entry area for access to the victim's side of the counter area and said, 'Don't touch any buttons and take your hands off the counter'. The victim showed his exposed hands to the respondent and the respondent said, 'Open the til and give me all of the money'. The victim opened the til and gave the respondent all the $50 notes from the til. The respondent then demanded that the victim give him all the money. The victim then removed all the $20 and $10 notes from the til and gave them to the respondent. 9. The amount of money taken was approximately $800. When the respondent came around to the victim's side of the counter, the victim thought the respondent would stab or hit him. He gave the respondent the money because he was afraid for his life (statement of Mr. Sanjeev dated 12 November 2003). 10. The respondent then ran from the garage across the Great Western Highway and along Jones Street where he entered a vehicle being driven by another person. 11. CCTV footage of the incident and the plastic bag were seized by police. The shopping bag was later examined and fingerprints were located on the outside of the bag. In March 2004, the fingerprints were identified as belonging to the respondent. 12. The respondent was arrested on 1 October 2004 when he declined to participate in an electronically recorded interview nor participate in an identification parade. 13. In January 2005, an anatomist and biological anthropologist compared a series of photographs of the respondent with the CCTV footage and expressed the opinion that he was 95% confident that the suspect was the person shown on the CCTV footage. Break, enter and steal and use offensive weapon to prevent lawful detention 14. At about 2.30 pm on 23 August 2004, the respondent was observed by Senior Constable Miles, an off duty police officer, running from the front garden of 89 Old Illawarra Road, Barden Ridge, across into bushland. He was carrying four bags, two of which appeared to be camera carry bags. 15. Senior Constable Miles was aware that the respondent did not live at that address. He knocked on the front door and when no person answered, he rang 000 on his mobile telephone. He ran across the road to the bushland where he located the respondent who casually walked away. 16. Senior Constable Miles said, 'I'm the police get on the ground'. The respondent dropped the bags he was carrying and turned towards Senior Constable Miles. Senior Constable Miles said, 'Get on the ground, I'm the police, get on the ground'. The respondent said, 'Fuck off'. Senior Constable Miles said, 'Mate, I'm the police, you're under arrest, now get down on the ground'. As Senior Constable Miles said this, he moved towards the respondent and took hold of his upper body. Senior Constable Miles attempted to push the respondent to the ground. The respondent tried to forcefully pull away from Senior Constable Miles by arching his back and walking backwards. 17. Senior Constable Miles pushed the respondent down onto his knees and said, 'I told you I'm a police officer, you're under arrest, lie face down on the ground'. The respondent attempted to push himself back to his feet. Senior Constable Miles kept his weight on the respondent and tried to push him back down. Whilst doing this, Senior Constable Miles attempted to dial 000 several times. The respondent pushed himself up to his feet and Senior Constable Miles restrained the respondent in a headlock and said, 'Just give up mate, you're not getting away'. The respondent replied, 'We'll see'. Senior Constable Miles pulled the respondent to the ground. The respondent got to his knees and put his left hand into his tracksuit pants pocket. The respondent pulled out a yellow handled screwdriver. 18. Senior Constable Miles said, 'Don't be stupid'. The respondent then stabbed Senior Constable Miles with the screwdriver in the left shin. Senior Constable Miles immediately felt pain in his lower leg. Senior Constable Miles kneed the respondent in the ribs with his right knee to force the screwdriver from his hand so he didn't stab him again . 19. The respondent collapsed to the ground and dropped the screwdriver. Senior Constable Miles rang 000 for assistance. Whilst on the phone, the respondent pushed himself up onto his knees and began searching for the screwdriver on the ground. The respondent grabbed the screwdriver and Senior Constable Miles grabbed the respondent by the left wrist. The respondent again tried to remove his hand from this position. Senior Constable Miles kneed the respondent to the side of the head and knocked his glasses off and again forced him to the ground. 20. The respondent again searched for the screwdriver and grabbed it but this time Senior Constable Miles was able to force the screwdriver from the respondent's grasp and after wrestling with the respondent, flick the screwdriver away from his reach. 21. A short time later, several other police arrived, handcuffed the respondent and placed him in the rear of a caged police vehicle. Senior Constable Miles sustained a 10 centimetre graze as a result of being stabbed by the respondent with the screwdriver. 22. Mr. Cook, the occupant of the premises at 89 Old Illawarra Road, Barden Ridge returned from walking his dog and spoke to police. He identified the bags that were being carried by the respondent as belonging to him. 23. Mr. Cook noticed that the gate on the northern side of the house which he had left shut was open. The lock to the garage door appeared to have been forced. Police inspected inside the premises and saw that nearly every room had been rummaged through. Cupboard doors and drawers were open and property was strewn about the floor. 24. The bags being carried by the respondent were found to contain cash and a considerable amount of property including cameras, electrical equipment, jewellery, a fire brigade badge in a black wallet containing numerous forms of identification belonging to the victim. 25. Police located a motor vehicle parked a short distance away from the house in Barden Ridge which was later found to be registered to the respondent's mother. The respondent had keys in his tracksuit pocket with the registration number of that vehicle on them. 26. The respondent was taken to Sutherland Police Station where he declined to be interviewed."

The subject matters concerning the respondent 14 The respondent gave evidence at the sentence proceedings. He also relied upon the report of Dr. William Lucas dated 29 September 2005 and three reports of Dr. Alex Sharah dated 30 January 2004, 19 February 2004 and 22 September 2004 and a report of Ms. Jodie Massey, Mental Health Court Liaison Service, Justice Health dated 24 August 2004. 15 The report of Dr. Lucas revealed the following:-

(a) The respondent grew up in a disrupted and violent household and his mother drank heavily.

(b) The respondent left school after Year 8. He began substance abuse at the age of 12 (cannabis and then amphetamines) and from the age of 18 he was mostly using heroin. He had been fighting his addiction for 15 years.

(c) On 9 September 2002, he was released from prison, having served four years of a six year prison sentence for causing death by dangerous driving in 1997 by losing control of his motor vehicle and striking a road worker. Psychological consequences resulted from the incident.

(d) The respondent has had no long term relationship since he was 23 years of age.

(e) The respondent resumed the use of heroin after his release from prison in 2002 and he also dabbled in amphetamines. 16 When the respondent saw Dr. Lucas on 25 August 2005, he was on the antidepressant medication, Cipramil, an antipsychotic agent and Zyprexa. Dr. Lucas stated that, based on the history he had received, the account suggested that the respondent had suffered a chronic post-traumatic stress disorder. He considered that there were still symptoms of that disorder when he saw him. 17 In the account given to Dr. Lucas, the respondent attributed the offences to his drug taking. He stated he needed money for drugs at the time of the armed robbery. He stated that on that occasion, he had a kitchen knife and demanded money. He claimed that at that time he was injecting amphetamines daily. 18 He stated that, having committed the break, enter and steal, he was seen by an off duty police officer, that he ran to a paddock and tried to stab the police officer with a screwdriver which, he said, he had used to break into the premises. 19 Dr. Lucas diagnosed chronic depression but was not satisfied of the criteria for major depression. He still had post-traumatic stress disorder symptoms and personality difficulties. He considered that when released to parole, he should be immediately placed into a residential drug rehabilitation programme, perhaps of the type administered by the Salvation Army in its Bridge or Mancare programmes without a lengthy residential programme. Without a lengthy residential programme and careful supervision and follow up after, there will be a risk of reverting to drug use which, the respondent said, he did not wish to occur. 20 The report of Dr. Sharah recorded that the respondent had attended on him since 13 August 2003. He was diagnosed with Hepatitis C and depression and required treatment for narcotic addiction. In the report of 22 September 2004, Dr. Sharah stated that the respondent suffered from severe anxiety and panic attacks which he had had since childhood. 21 In the report from Justice Health, reference is made to the onset of anxiety "approximately two years ago". Reference was made to the respondent's depressed mood and that he presented with a polysubstance abuse issue. 22 In evidence, the respondent confirmed the truthfulness of the history provided to Dr. Lucas. He stated that he recommenced drug taking (amphetamines) following the collapse of his mother's relationship because "he couldn't cope". He also took heroin "to calm me down". He confirmed that he was taking drugs at the time of the armed robbery. At that time, he said he was unable to pay rent and "having trouble with parole". He also needed money for drugs. He was on drugs at the time of the break, enter and steal offence. He was intending to sell the stolen goods to buy drugs with the money. In relation to his conduct with regard to the armed robbery and break, enter and steal, he said he had been "beyond stupidity" in acting that way. He accepted Dr. Lucas' advice regarding residential rehabilitation. 23 His mother attended the sentencing hearing and continued to offer him support.

(a) Sentencing for the first offence: robbery with an offensive weapon 24 In his remarks on sentence given on 10 October 2005, the sentencing judge related the facts in relation to the armed robbery offence, noting that, at the time, the respondent was on parole and that was an aggravating factor that had to be taken into account. He also noted that he had been sentenced at an earlier time in regard to the offence of dangerous driving and that, at that time, he had been under the influence of drugs. The armed robbery had been carried out, on the evidence before him, to obtain money for drugs. He considered that, taking into account the aggravating features to which he had referred, that a sentence of 4 years and 4 months should be imposed (52 months). And that the Crown conceded the respondent was entitled to a full discount for the plea of guilty which resulted in a sentence of 39 months. 25 The sentencing judge then proceeded to state "in respect of all the counts, I do consider that there are special circumstances". He referred to the respondent's evidence that he was trying to "rid himself of the scourge of drug abuse" (p.3). 26 A sentence of 3 years and 3 months (39 months), it was stated, would commence on 23 August 2004 and expire on 22 November 2007 with a parole period of 30 months or 2 years and 6 months commencing on 23 August 2007 and expiring on 22 February 2010. 27 However, there was an interruption in the delivery of the remarks on sentence when discussion took place as to the basis for calculating the sentence. His Honour then adjusted the sentence to fix a non-parole period from 23 August 2004 to 22 October 2006 and a parole period from 23 October 2006 expiring on 22 November 2007.

(b) Sentencing for offence: break and enter dwelling house 28 The sentencing judge proceeded to sentence the respondent for the break and enter dwelling house offence. It was noted that an aggravating circumstance was that the respondent was on parole at the time of that offence. The premises were unoccupied at the time of the offence. 29 His Honour then proceeded by referring to the facts and circumstances leading up to the offence of use of the offensive weapon and the observations of the police officer who saw the respondent running from the front garden of a premises, carrying four bags, and the police officer's knowledge that the respondent did not reside at the house in question. Items stolen were later identified by the owner. There is no reference to the circumstances leading to the wound inflicted on the police officer. 30 The sentencing judge proceeded to state that he considered that an appropriate sentence would be a period of imprisonment of 36 months and that the respondent was entitled to a full discount of 25% for his plea of guilty which resulted in a period of imprisonment of 27 months. The respondent was sentenced with respect to the offence of break, enter and steal to a period of 2 years and 3 months to commence on 23 August 2005 and to expire on 22 November 2007, with a non-parole period of 1 year and 2 months to commence on 23 August 2005 and to expire on 22 October 2006. His Honour stated that the sentence should be partly cumulative and partly concurrent.

(c) Sentencing for the offence of using an offensive weapon to prevent lawful detention 31 In relation to the offence of use offensive weapon, it was noted that the respondent was on parole, a fact to be taken into account. His Honour stated that in relation to the overall criminality involved, it was appropriate or had been submitted that the sentence be partly cumulative and partly concurrent, adding, "I do consider that there are special circumstances". He took into account the age of the respondent and his "apparent real efforts" that he had made to rid himself of the drug habit. 32 A finding of special circumstances was made. The respondent was sentenced to a period of 1 year and 6 months imprisonment with a non-parole period of 12 months, commencing on 23 August 2005. As earlier stated, the total effective sentence was 3 years and 3 months commencing on 23 August 2004 and expiring on 22 November 2007. The respondent will be eligible for release to parole on 22 October 2006.

The Crown submissions 33 The Crown submitted that each of the individual offences is manifestly inadequate and fails to reflect the objective criminality of the offences. It was also submitted that the total sentence does not adequately reflect the totality of the respondent's criminality in relation to all of the offences. 34 The Crown also submitted that a number of discrete errors may account for the claimed lack of proportion of the sentence to the seriousness of the offences. These included:-

(a) Failure to properly apply the guideline judgment in Regina v. Henry (1999) 106 A. Crim. R. 149 in relation to the armed robbery offences.

(c) Imposing wholly concurrent sentences for the break, enter and steal and use offensive weapon to prevent lawful detention offences thereby structuring the sentences such that those offences were totally subsumed in the sentence imposed for the armed robbery offence.

Submissions as to the objective gravity of the offence of armed robbery 35 The Crown relied upon the seven common elements for the non-aggravated offence of armed robbery under s.97(1) of the Crimes Act 1900 identified by Spigelman, CJ. in Henry (supra) per Spigelman, CJ. at [162]. A sentence of between 4 to 5 years was identified as appropriate "for an offence of the character identified above". 36 The Crown observed in its submissions that the respondent was not a particularly young offender (being 29 and 30 years of age at the time of the respective offences) and he had a record of prior convictions including five convictions for break, enter and steal. 37 The Crown, however, also observed that the offence committed on 12 November 2003 involved the following features:-

(e) The amount of $850 was taken. 38 The Crown submitted that the offences were further aggravated in that they were committed whilst the respondent was on parole. It referred to the fact that the sentencing judge acknowledged that the Henry guideline was applicable and that his Honour nominated 4 years and 4 months as a starting point which was reduced by 25% for the early plea of guilty. The Crown contended, however, that the sentence ultimately imposed failed to reflect the objective seriousness of the offence and to give effect to the stated intention to apply the guideline in Henry (supra). 39 The Crown correctly identified the following matters relevant to the assessment of the objective criminality of the armed robbery offence:-

(a) The community expectation as to the need for protection from robbery of all kinds, simple or aggravated, armed or not armed as observed by Sully, J. in Regina v. Sweetman [2000] NSWCCA 228 at [19].

(b) The fact that the offences may have been motivated by the respondent's need to obtain funds to support his drug habit, was not a factor that operated to reduce the weight to be given to general deterrence. Reliance was placed upon the well-established sentencing principle that drug addiction does not mitigate penalty: Henry (supra); Regina v. Valenti (1989) 46 A. Crim. R. 23 at 25. The Crown also correctly observed that there was no evidence that the respondent's capacity to exercise judgment was impaired to the extent observed by Wood, CJ. at CL. in Henry (supra) at [273].

(c) The use of knives it is well recognised is a significant matter. Reference was made to Regina v. Tawake [1999] NSWCCA 147 and to dicta of this Court in Regina v. Bell (unreported, 29 September 1997) in which it was stated:- "… This Court has in numerous cases made it quite plain that any person who uses a knife in order to carry out a crime, particularly the crime of robbery, can expect stern retribution from the Courts." 40 The Crown also observed that a deterrent sentence must be expected where crimes are directed towards vulnerable persons such as service station proprietors and similar occupations: Regina v. Doorey [2000] NSWCCA 456 per Wood, CJ. at CL. at [24]. 41 Mr. Dhanji of counsel for the respondent emphasised that the Henry guideline did not require a sentence to be imposed within the range specified. In support of the submission, reference was made to the fact that guideline judgments such as Henry are not to be regarded as the equivalent to statutory instruments which invite interpretation or which bind judges strictly within their terms: Regina v. Jack Sua [2000] NSWCCA 94 and Regina v. RLS [2000] NSWCCA 175. Reliance was placed on the observations of Spigelman, CJ. in Regina v. Whyte (2002) NSWLR 252 at [147] (which emphasise that a broad sentencing discretion is essential to take into account all the variations of circumstances of the offence and the offender). The submission also cited dicta of McHugh, J. in AB v. The Queen (1999) 198 CLR 111. 42 Whilst acknowledging that the respondent was on parole and that this was an aggravating feature, Mr. Dhanji stated that the respondent was on parole for an offence of a very different nature. I do not consider this to be a relevant matter in light of the clear terms of s.21A(2)(j). 43 Reliance was also placed upon the respondent's disturbed background and the other subjective matters which have been referred to earlier in this judgment.

The objective gravity of the offence of break, enter and steal 44 The Crown contended that there were a number of aggravating circumstances which should have had a cumulative effect. These were:-

(a) The fact that the respondent was on parole when the offence was committed, having been released from custody less than two months prior to the date of the offence.

(b) The offence was committed at a time that the house was likely to be occupied and it was only through fortuitous circumstances that the owner had left the house.

(c) Prior convictions should have been reflected in the sentence to a significant extent, whilst acknowledging that there appears to be a conflict between what was said in Regina v. Ponfield [1999] NSWCCA 422 and later cases dealing with s.21A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 . That was an issue yet to be resolved with reference being made to this Court's judgments in Regina v. Hathaway [2005] NSWCCA 368 and Regina v. Bushara [2006] NSWCCA 8. 45 Mr. Dhanji challenged the Crown's reliance upon the respondent's record observing that he had been previously convicted not of five but of three break, enter and steal offences in 1996 and that, having regard to the fact that those offences were committed in 1993, there was a gap of approximately 11 years between those offences and the present matter. 46 In relation to the discount allowed of 25% for the plea of guilty, Mr. Dhanji accepted that any concession made in respect of an allowance of 25% was limited to the armed robbery offence. It is clear that the discount allowed of 25% was inappropriate and excessive. The respondent could have entered a plea to the offence of break, enter and steal in the Local Court or at an earlier time in the District Court, but did not. The respondent entered the plea to the offence of use of offensive weapon to prevent lawful detention (being the charge for which he was committed) on the first day of the trial. 47 Mr. Dhanji also submitted that in light of the significant gap in the respondent's record in relation to dishonesty offences, it is likely, but for the robbery offence, that the single offence of break, enter and steal would have been dealt with summarily. In that event, the maximum penalty available would have been two years, that is, less than that imposed by the sentencing judge.

The objective gravity of the use offensive instrument to prevent lawful detention offence 48 Such offences, the Crown observed, were to be regarded by the courts as "extremely serious": Regina v. Hamilton (1993) 66 A. Crim. R. 575 at 581 per Gleeson, CJ. It was observed by Smart, AJ. in Regina v. Bazzi [1999] NSWCCA 346 at [11]:- "One of the objects of s.33B, when it was introduced into the Crimes Act 1900 in 1989 was to provide protection to the police and others who lawfully detain those reasonably suspected of committing an offence." 49 See also Regina v. Perez (CCA, unreported, 11 December 1991). 50 In the present proceedings, the Crown emphasised that not only did the respondent present the screwdriver to the off duty police officer, but he stabbed him in the shin causing him pain. 51 Mr. Dhanji referred to a number of judgments of this Court in relation to s.33B offences. It is not necessary to set out the detail concerning each of them which were set out in the respondent's submissions. By reference to the sentences imposed in those matters, it was said that the offence, whilst a serious one, was not the most serious example of its kind. It was observed that it did not involve the use of a motor vehicle or the use or threatened use of a weapon to a vulnerable part of the victim's body. Rather, the screw driver was used against the victim's shin. It caused a 10 centimetre graze which did not require treatment other than washing.

Error in allowing discounts for pleas of guilty 52 The Crown submitted that there were two errors. First, that whilst a full discount for the plea of guilty was made upon the basis of the Crown concession in respect of the offence of armed robbery, such a concession was not given in relation to the other two counts. I have already referred to the fact that a 25% discount was wrongly applied to those two latter offences. 53 A separate error was asserted in relation to the sentence imposed for the armed robbery offence and, in particular, by discounting it by 25% because of the plea of guilty. The sentencing judge failed, it was submitted, to take into account the fact that the sentencing range referred to in Henry (supra), was based on a late plea of guilty which generally warrants a discount of 10%. 54 Accordingly, to give proper effect to the maximum discount, it was submitted the sentencing judge should have reduced the sentence for the armed robbery offence by a further 15% (on top of the 10% implicit in the starting point set by the Henry guideline.

Error in relation to the structure of sentences 55 The Crown additionally submitted that in directing the sentences in respect of the offences of break, enter and steal and using an offensive weapon to prevent lawful detention be served wholly or substantially concurrently, his Honour failed to give proper effect to the principles enunciated by the High Court in Pearce v. The Queen (1998) 194 CLR 610. The consequence of such a failure, it was contended, resulted in the imposition of sentences which, in their overall effect, failed to reflect the totality of the respondent's criminality. The correct approach, the Crown submitted, was that there should have been some real accumulation of the sentences in accordance with the totality principles observed in Pearce (supra) and Johnson v. The Queen [2004] 78 ALJR 616. The Crown submitted, in particular:-

(a) The first offence (the armed robbery offence on 12 November 2003) was in no way connected to the two offences committed on 24 August 2004.

(b) There is a period of nine months between the offences and there was no "commonality of elements of the offences" to justify concurrency relying upon dicta in Johnson (supra) at [35].

(c) The three offences were said to be distinct offences committed against different victims and involving criminality of a very different order. Reliance was placed upon dicta of this Court in Regina v. Cotter [2003] NSWCCA 273 and Regina v. Janceski [2005] NSWCCA 288 at [21]. 56 The structuring of the offences, it was contended, resulted in the sentences in respect of the two latter occurring offences being entirely subsumed within the offence imposed in respect of the armed robbery offence committed on 12 November 2003. That being so, it was submitted, there was effectively no additional punishment imposed in respect of the offences of break, enter and steal and use offensive weapon to prevent lawful detention. Reliance was placed upon the statement of principle by this Court in Regina v. Weldon & Carberry (2002) 136 A. Crim. R. 55 wherein Ipp, JA. (with whom Hulme and Bell, JJ. agreed) said:- "A paramount principle of the law of sentencing is that the aggregate sentence should fairly and justly reflect the total criminality of the offender's conduct: Veen v. The Queen (No. 2) (1988) 164 CLR 465. The principle applies in all cases, including where punishment is imposed for multiple offences. The sentence must be proportionate to the gravity of the offence, having regard to all the circumstances of the case: Hoare v. The Queen (1989) 167 CLR 348; 40 A. Crim. R. 391. The question whether sentences are to be imposed concurrently or cumulatively must always be answered by reference primarily to these criteria. It is not infrequent that, where the offences arise out of one criminal enterprise, concurrent sentences will be imposed - but this is not an inflexible rule: Wilkins (1988) 38 A. Crim. R. 445 (per Lee, CJ. at CL. at Carruthers, J., Allen, J. dissenting). The practice should not be followed where wholly concurrent sentences would fail to take account of differences in conduct, the subject of punishment on each count: Pearce v. The Queen (1998) 194 CLR 610 at 624 (see also 621 to 622; 380 to 381, paragraphs 46 to 48)." 57 Finally, the Crown observed that counsel who appeared for the respondent in the District Court effectively conceded that his Honour should accumulate, to some extent, the armed robbery offence. His Honour had expressed the clear intention to partly cumulate the sentences for the offence committed on 12 November 2003 with those committed on 24 August 2004 (remarks on sentence, pp.9.5). However, the sentences imposed, it was said, did not give effect to this intention.

Analysis 58 The principles governing Crown appeals are well known and were summarised by Wood, CJ. at CL. in Regina v. Wall [2002] NSWCCA 42 at [70]. I have had regard to each of the principles in considering the Crown appeal in the present matter. 59 In relation to the armed robbery offence, there is much to be said for the Crown submission that given the fact that the respondent was on parole and had only been released from custody a short time before the robbery offence occurred and that this would warrant a starting point according to the Henry guideline towards the top rather than the bottom of the range, I do not, however, consider that this aspect alone is a matter which would warrant appellate intervention. 60 The Crown submitted that the starting point should have been higher than the range suggested in Henry, given the respondent's prior record and the fact that he was on parole at the time and was not as young as Henry. 61 There is no doubt that the aggravating factor identified was a most material one and I consider would have warranted a starting point towards the top of the range (five years). However, that said, that assessment remained one essentially for the sentencing judge's evaluation and I do not consider that a starting point of 4 years and 4 months contravened relevant principle. 62 In relation to the full discount of 25%, there is a valid point made by the Crown that, for the reasons stated in the Crown submissions, a 15% discount would have been an appropriate discount. However, I do not consider the error of the order of 10% is sufficient to justify the intervention of this Court. 63 In relation to the break, enter and steal offence, it is again arguable that the sentencing judge, although he referred to it, did not give adequate weight to the fact that the respondent was on parole at the time of the offence and it is clear that he should not have been allowed a discount of 25%, given that the plea was not an early plea. However, there remains for ultimate determination whether error in respect of these two matters of themselves warrant the intervention of this Court. I will return to these matters at a later point in this judgment. 64 In relation to the offence of use weapon to avoid detention, having regard to the particular facts and circumstances of the offence and to the sentences imposed in other cases under s.33B, I do not consider it could be said that the sentence of 18 months with a 12 month non-parole period was outside the reasonable range. 65 The issue in this Crown appeal that does warrant close attention relates to the structuring of the sentences and the Crown's contention that his Honour failed to give proper effect to the principles enunciated in Pearce (supra). 66 In oral submissions, Mr. Dhanji correctly accepted that the evident leniency of the sentence arises by reason of the concurrency of the sentences imposed. He submitted that there was nothing remarkable about the individual sentences themselves. 67 The sentencing judge appears to have accepted that it was appropriate that there be at least partial cumulation and partial concurrency with some of the offences (remarks on sentence, p.8), though stating that he considered it appropriate that the sentence in respect of the offence of using an offensive weapon to prevent lawful detention to be served concurrently with the sentence imposed in respect of the armed robbery offence (remarks on sentence, p.9). 68 Accordingly, he made the sentence for the second and third offences to commence on a date a year after the date of the commencement of the sentence for the armed robbery offence. However, the sentences ultimately imposed do not provide any punishment beyond the punishment for the first offence. It was Mr. Dhanji's submission, however, that his Honour was entitled in the circumstances to impose concurrent sentences. 69 It was contended on behalf of the respondent that there was a basis in the circumstances of this matter which entitled his Honour to take the view that the sentences with respect to the break, enter and steal and the s.33B offence did not need to extend the amount of time in custody imposed for the sentence for the armed robbery. Specific reference was made to the post-traumatic stress disorder, which resulted from the accident some years before in relation to the dangerous driving occasioning death offence dealt with in the Parramatta District Court on 10 September 1998. It was put that his mental capacity had been impaired by reason of both the condition of the post-traumatic stress disorder and the compulsive disorder conditions referred to in the medical evidence. The nature of his medical condition, it was submitted, made explicable his relapse into drug use and, on the view most favourable to him, his medical condition was a subjective circumstance making his drug addiction relevant to the determination of penalty. 70 It was further contended for the respondent that, whilst the effect of the sentences imposed was that he received no effective additional punishment in respect of the break, enter and steal and s.33B offence, the simple fact of wholly concurrent sentences is not, in itself, an error if the basic principle of the total sentence reflecting the total criminality is complied with. The submission was made (transcript p.9):- "… one has to look at the net effect of the sentence and determine whether the net sentences is (sic) within the range or not for the total criminality which begs the question: how much do the break, enter and steal and s.33B matters add to the total?" 71 Mr. Dhanji sought to support the submission in relation to multiple offences by reference to cases where there is one very serious offence and another significantly less serious offence. It is possible in such circumstances to say that having imposed a sentence in respect of the more serious offence, the overall criminality can be said to be encompassed by that sentence. Mr. Dhanji also submitted that if it was open to take the view in respect of one or two offences that they did not, in themselves, require a full-time custodial sentence, then a sentencing judge could ultimately reach the conclusion that the criminality was covered by the sentence for the first offence. 72 The task in the present appeal, as Mr. Dhanji frankly conceded, is increased by the failure of the sentencing judge to provide reasons that identified the basis or explanation for having imposed sentences that effectively did not result in any punishment for the break, enter and steal offence and the s.33B offence. 73 Mr. Dhanji argued that the Crown had an opportunity whilst there were discussions which interrupted the delivery of the remarks on sentence to make submissions before the sentencing judge to the effect that the sentences for the second and third offences should not be wholly subsumed within the sentence that his Honour had by then pronounced by his Honour in respect of the armed robbery offence. The Crown, it was contended, did not take that opportunity. 74 I cannot accept this contention. His Honour, having heard submissions on sentence, proceeded to deliver remarks on sentence in respect of all three offences, it appearing that his Honour had already made up his mind as to what sentences he was about to pronounce. From the foot of p.3 of the remarks on sentence, the sentencing judge interrupted himself and from that point there was a substantial amount of dialogue with both counsel assisting his Honour in terms of the correct formulation of the sentence which he indicated that he proposed in respect of the armed robbery offence. 75 Some two and a half pages later, the remarks on sentence briefly state his Honour's reasons and then the proposed sentence in relation to the break, enter and steal offence. Once again, the delivery of the remarks on sentence was interrupted when discussion took place as to the correct formulation of the sentence which his Honour had proposed. This was followed by further remarks including reference to "the charge be partly cumulative and partly concurrent'. 76 His Honour then proceeded to deal with the s.33B offence. Once again, his Honour interrupted himself and entered into dialogue with counsel as to the correct formulation of the sentence which he had in mind imposing. It is at this point that counsel then appearing for the Crown, Mr. Costello, observed:- "COSTELLO: Your Honour, just one thing. The net effect of your sentence appears to be that the sentence for the break and enter offences will be entirely subsumed within the sentence for the armed robbery. HIS HONOUR: That's right. COSTELLO: Just wanted to confirm that that was your Honour's intention. HIS HONOUR: That's right, they are completely subsumed but I have - yes they have been, but I have dated those offences from 23 August 2005. Do you wish to put any submissions in relation to that?" 77 At that point, counsel for the respondent explained that he had only just come into the matter to receive judgment, observing that the effect of the sentences would be that they would not appear to result in any extra time being served for what was referred to as "the separate offences". Counsel explained, however, that he was not in a position to make a submission on that aspect "but it is just a factor that concerns me slightly". 78 The transcript of 10 October 2005 records further exchanges with counsel for the Crown and for the respondent, with Mr. Costello indicating that he would need to speak to the solicitor who had prepared the sentence matter to be able to assist further. The sentencing judge made a statement to the effect that he had complied with Pearce's case. 79 In the circumstances, I do not consider that it can be said that the Crown had effectively conceded that the sentences should be subsumed. Nor do I think it can be said that the Crown chose not to make any submission to the contrary. The fact of the matter is that the sentencing judge had well and truly embarked upon the delivery of the remarks on sentence and plainly had already formed his own views as to the form of each of the sentences which he proposed to pronounce. 80 I accept the Crown submission that the first offence (the armed robbery committed on 12 November 2003) had no connection whatsoever to later offences committed on 24 August 2004, and that not only had there been a period of nine months between them but there was in fact no commonality of elements of the offences to justify concurrency. 81 In Johnson (supra), Gleeson, CJ. cited with approval what was stated by Wells, J. in Attorney-General v. Tichy (1982) 30 SASR 84 at 92-93 wherein, in part, Wells, J. stated:- "It is both impracticable and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether sentences should be ordered to be served concurrently or consecutively. … What is fitting is that a convicted prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterised as his criminal conduct. The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time. What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty. Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient." 82 Gleeson, CJ. in Johnson (supra) observed at 618:- "… ultimately, justice requires due consideration of whether, and to what extent, the appellant 'was truly engaged upon one multi-faceted course of criminal conduct', and whether the sentences imposed properly reflected the outcome of that consideration." 83 Accepting, as I do, the proposition that there was no commonality between the armed robbery offence and the other two offences, together with the fact that the sentence imposed in respect of the armed robbery offence was undoubtedly lenient (although for reasons previously stated that would not of itself warrant appellate intervention) it is apparent that in sentencing the respondent for the three offences, no adequate allowance could or was made in respect of the criminality involved in the offence of break, enter and steal or the offence of using an offensive weapon to prevent lawful detention occurring some nine months later. This case falls within the first category of case identified by Hunt, AJA. in Janceski (supra) at [21] wherein it is described by his Honour in the following terms:- "… the first is when the offender is being sentenced for discrete offences committed on different occasions. The concurrency of sentences for that category is now governed largely by Pearce v. The Queen (1998) 194 CLR 610, which overrules the practice previously common in this State of fixing one of several concurrent sentences to reflect the total criminality of the offender for all the offences …" 84 It is not to be overlooked that not only were the incidents separate and did not represent a single bout of criminality, but each of them involved different victims, it being acknowledged that the second victim, by reason of the intervention of the off duty police officer, was spared from suffering loss and the police officer himself, though suffering injury, did not suffer grave injury. The fact that he did not sustain serious injury is, of course, somewhat fortuitous, the use of an offensive weapon, as in the circumstances of the present matter, being capable of causing serious injury to a police officer who was endeavouring to restrain the respondent. 85 The respondent was intent on attempting to prevent his lawful detention. The sentence imposed in respect of this latter offence should plainly mark the criminality of conduct directed at obstructing police officers in effecting a lawful arrest and will be regarded as a serious offence, especially so where an offensive weapon is used to prevent such detention. In this case, the objective facts, including the nature of the instrument, the limited nature of the injury inflicted and the previously mentioned subjective circumstances, are all to be brought into account.

Delay 86 Mr. Dhanji, on behalf of the respondent, submitted that the Crown had done nothing to notify the respondent that his sentencing may not have reached finality for nine days after the sentence was imposed and that the Crown appeal was not signed for a further two months. It was contended that no explanation had been offered for keeping the respondent in a state of suspense for that period. Reliance was placed upon the observations of Hunt, CJ. at CL. in Regina v. Bardo (CCA, unreported 14 July 1992) in which reference was made to the Crown's delay of more than three months in serving its notice of appeal as one which had not been satisfactory explained. The effect of delay in the determination of the appeal was also acknowledged by Heydon, JA. (as he then was) in Regina v. Hernando (2002) 136 A. Crim. R. 451 at [18]. 87 Mr. Dhanji relied upon an affidavit of the respondent sworn 20 April 2006. In paragraph 5 of the affidavit, the respondent states that he believes that he has benefited from psychiatric and psychological help whilst he has been in custody and realises that he should have sought such help when he was on parole. In paragraph 6 he stated that after he was sentenced he resolved to do the best he could to make up for his relapse and to make the most of his opportunities. He stated in that paragraph that upon receiving a letter stating that the Crown was considering his appeal, he was made to feel fearful and depressed. He states that he "… felt absolutely 'gutted' when I learned of the Crown appeal. I have tried hard not to be overwhelmed by panic from feelings of persecution, irrational thinking and withdrawal. I have been trying very hard not to give in to these things and to stave off a total emotional collapse". 88 I have had regard to the contents of the affidavit which includes the respondent's statement that he has attempted to manage his mental health issues as much as possible by engaging in normalising behaviour and that he is employed as a sweeper. He has stated that he is proud of the fact that he has been actively engaged in programmes and that he had not been able to do this during his previous terms in custody. He has expressed confidence that he is able to make real progress. 89 I do not consider that the delay of nine days and the fact that it was not until a further two months (19 December 2005) before a notice of appeal was signed and served on the respondent at Silverwater Correctional Centre on 21 December 2005 is such as to warrant the dismissal of this appeal. It is a factor which has been taken into account in determining whether the Crown appeal should be upheld. In considering the extent to which appellate intervention is called for, I have also had regard to the errors in sentencing referred to in paragraph [62] and [63] of this judgment and, having done so, I do not consider that a more severe punishment is warranted in law and should have been passed in respect of the armed robbery offence or the break, enter and steal offence: Criminal Appeal Act 1912, s.6(3). However, the Court should, for reasons earlier stated, intervene by reason of an error of principle affecting the structure of the sentences imposed in the District Court. 90 I, accordingly, propose the following orders:-

(a) The sentences imposed in the District Court on 10 October 2005 in respect of the offence of break, enter and steal (s.112(1), Crimes Act 1900 ), and the sentence imposed in respect of the offence of use offensive weapon to prevent lawful detention (s.33B(1)(a), Crimes Act 1900 ) and the armed robbery offence (s.97(1), Crimes Act 1900 ) be quashed.

(b) That the respondent be re-sentenced as follows:- (i) In respect of the offence of armed robbery, the respondent be re-sentenced to a non-parole period of one year and eight months to commence on 23 August 2004 and to expire on 22 April 2006 and a parole period of two years and four months to commence on 23 April 2006 and to expire on 22 August 2008. (ii) In respect of the offence of break, enter and steal, the respondent be re-sentenced to a fixed term of imprisonment of one year and two months to commence on 23 August 2005 and to expire on 22 October 2006. (iii) In respect of the offence of use offensive weapon to prevent lawful detention, the respondent be re-sentenced to a fixed term of imprisonment of one year to commence on 23 April 2006 and to expire on 22 April 2007.

(c) The earliest date on which the respondent will be eligible for release on parole is 22 April 2007. **********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.