(iv)The Form 1 matters
The overall sentence of 8 years imprisonment imposed on the applicant took into account two Form 1 matters - Take and Drive Conveyance without the consent of the owner. A proper application of principle meant that the effect of the Form 1 matters would increase the sentence imposed: Attorney General's Application under s 37 (supra) at [42].
The co-offender Dizon, on the other hand, requested that three matters on a Form 1 be taken into account (two under ss 154A(1)(a)/117 and one under s 93G(1)(b) (firing a firearm in a public place), (maximum penalty 10 years imprisonment.)
In respect of the latter, the co-offender Dizon discharged an automatic pistol he was carrying by firing into a door in an attempt to gain entry into the secure area of the bank (the third matter on the Form 1 in relation to Count 3). This was a serious matter which was reflected in a greater penalty being imposed with respect to Count 3.
47The co-offender Dizon was accordingly found to have the greater culpability in respect of the Newtown offence by reason of his having carried and discharged the firearm during the commission of the offence. If this had been the only material issue and all other circumstances were equal, then a higher sentence in respect of Dizon's offending than that of the applicant would have been appropriate. However other circumstances needed to be considered in order to determine how they operated with respect to the applicant and Dizon.
48The co-offender Dizon, as noted above, went to trial in relation to an offence of robbery with wounding under s 96 of the Act. His conviction for that offence (which did not involve the applicant) was a significant matter to be considered when he was sentenced in respect of Count 3. Dizon was accordingly being sentenced by Hock DCJ for that offence as well as the offence under s 97(2). The s 96 offence was a serious offence for which Dizon was sentenced to a 10-year term of imprisonment (with a 6-year non-parole period). Additionally, the sentencing judge was also required to consider and give effect to the principle of totality, which required her to consider what would constitute an appropriate adjustment in the sentences to be imposed.
49A comparative analysis of the sentences imposed on the applicant and on the co-offender Dizon must also bring into account the fact of the non-parole period of 5 years as part of the sentence imposed on the applicant in respect of Count 3 as against the fixed term of 6 years imposed on Dizon.
50A comparison between the 8 year total term of imprisonment imposed on the applicant and the 6 year fixed period imposed on the co-offender does not, in itself or taken in isolation, create the basis for a justifiable sense of grievance. In respect of the 6 year fixed term imposed on the co-offender, Dizon, the sentencing judge stated at page 11:
"No parole period will attach to those three sentences as to do so would serve no useful purpose."
51That 6 year term was expressed as commencing on 27 July 2012 and expiring on 26 July 2018. The 10 year term of imprisonment in respect of the s 96 offence commenced 12 months into the sentence in respect of Count 3 (namely on 27 July 2013) will expire on 26 July 2023.
52The approach taken by the sentencing judge, based upon the agreed facts, does not, in my opinion, demonstrate error. Her Honour:
(i) Identified the material facts with respect to Counts 1, 2 and 3 including in particular the role and conduct of the three offenders in relation to each.
(ii) Evaluated the objective criminality characterising the three offences as "objectively very serious" taking into account the relevant aggravating factors (including the fact that a large sum of money was taken in respect of Count 1 and, in respect of Count 3, that a loaded weapon was carried by Dizon).
(iii) Took into account the circumstances in which the weapon was discharged.
(iv) Compared the roles of Dizon and the applicant before finding that Dizon had played "a slightly greater role in the offences on the basis that it was he who brandished the weapon and indeed discharged it on one occasion:" Remarks on Sentence at page 3.
53Her Honour as the sentencing judge in respect of both the applicant and Dizon was in a position to determine the culpability of both offenders. No error was identified in the factual findings made and upon which the comparable criminality of the offenders could be determined.
54The sentencing exercise in relation to Dizon was significantly different to that involving the applicant. Firstly, Dizon stood for sentence in respect of both Count 3 under s 93G(1)(b) and, after trial, for the offence of robbery with wounding under s 96. That meant, as discussed above, that in determining the sentences for both offences committed by Dizon, her Honour was required to consider and apply the principle of totality.
55The sentence structure involving Dizon differed from that involving the applicant. Firstly, a fixed term of 6 years was imposed on Dizon whilst a sentence involving a non-parole period of 5 years was imposed on the applicant. Secondly, the longer period of 6 years in the case of Dizon may be considered as appropriately reflecting the finding as to his role. Thirdly, as noted above, the sentences in respect of Dizon were structured upon the basis that the 10 year term of imprisonment for Dizon's offence under s 96 commenced 12 months into the term of imprisonment imposed with respect to the s 97(2) offence for Count 3.
56Where the same judge sentences two offenders at the same time, gives detailed reasons for imposing the sentences, and takes into account the differing criminality of each, as well as other differing circumstances, an appellate court will be cautious and not overly willing to conclude that one of the offenders has a justifiable grievance, simply because there are differing sentencing outcomes: R v Swan [2006] NSWCCA 47 at [71].
57The criminal histories of the applicant and Dizon, which appropriately were taken into account, weighed against the applicant more so than Dizon. Dizon's history of offending did not entitle him to leniency. However, the applicant's criminal history carried even greater significance than that of Dizon. His history as an adult offender, as previously noted, consisted of one offence of knowingly taking part in the supply of a prohibited drug and more significantly three convictions for robbery in company in 2003 for which he was imprisoned for 6 years. The fact that his non-parole period had concluded only a short while before Counts 1, 2 and 3 (namely April 2008) was a further matter that operated adversely to him.
58On examination the applicant's subjective factors were, in my opinion, of greater significance from a sentencing point of view than those of Dizon.
59The submissions for the applicant, with respect, placed undue emphasis on the total term of 8 years imposed with respect to the applicant and the fixed term of 6 years imposed on Dizon. Given that Dizon had also to be sentenced for the s 96 offence involving a head sentence of 10 years, the more appropriate comparison is between the 5 year non-parole period imposed on the applicant and the 6 year fixed term imposed on Dizon. There was no point in the sentencing judge imposing a balance of term in respect of Count 3 as the Crown submitted.
60In relation to the question of parity with the sentence imposed on Birch (by his Honour Judge Norrish) an evaluation of all relevant matters, including countervailing factors, fails, in my opinion, to reveal sentencing error. The written submissions for the applicant noted that Birch was allowed a discount of 25 per cent for his guilty plea. The applicant was allowed a discount of 15 per cent for his plea of guilty. The nominal starting point for the sentences for Count 3 for the applicant, was one of 9 years 5 months whilst for Birch it was 9 years.
61The comparison with Birch brings into account the fact that he was aged 23 years at the time of the offences whereas the applicant was 30 years, that Birch had no prior offences involving dishonesty or violence and had not served time in custody. The applicant's prior offending, as discussed was significant and attracted substantial sentences.
62It is accordingly clear that a number of factors weighed against the applicant in the comparison with Birch. The pre-discounted starting points for the sentences ultimately imposed on the applicant and Birch, after allowing for their discounts for their guilty pleas, were close to being the same. This was against the background of the submission made on behalf of the applicant to the effect that he was objectively equally liable for his role in the offence with Birch. This, as the Crown observed, was a generous approach given the applicant's past criminal history.
63In this case it is clear that the sentencing judge was aware of and took into account the levels of culpability and antecedents of each offender and the Form 1 matters involving, as they did, disparate considerations. The evaluation required the sentencing judge to balance and give such weight to each relevant factor as she considered appropriate, there being no fixed rule that determines what weight is to be given to one over the other. Upon consideration of the detailed submissions made on behalf of the applicant I have concluded that no error has been demonstrated in the sentencing process.
64When all relevant sentencing matters are taken into account there is, in my opinion, no basis for the Ground 1. That Ground should, in my opinion, be dismissed.