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.