She considered his Honour's 'starting points' were manifestly excessive. For those reasons, her Honour considered she was not bound to sentence Sinamoni and Dodds on the basis of parity with the sentences imposed on the applicants.
32 With respect to her Honour, it was not for her to find appealable error in the approach of Norrish DCJ. Rather, her Honour's task was to determine the sentences that should be imposed upon the accused before her, having regard to all of the circumstances. In doing so, it was incumbent upon her Honour to have regard to the sentences that had been imposed on the applicants in this case, they being the co-accused of the parties before her. It was for her Honour to sentence the accused persons before her, having regard to their relevant circumstances.
33 In sentencing the offenders before her, her Honour was entitled to have regard to relevant Judicial Commission statistics, recognising that those statistics have to be approached with care. The use and utility of such statistical information was discussed by Spigelman CJ in R v Bloomfield (1998) 44 NSWLR 734 at 738-9; (1998) 101 A Crim R 404. See also Regina v AEM Snr; Regina v KEM; Regina v MM [2002] NSWCCA 58 at [113] ff.
34 It was also appropriate for her Honour to have regard to other relevant authorities: R v Bloomfield at 739. However, it appears that her Honour may have misunderstood the comment at [105] in Qing An. Her Honour appears to have treated that remark as being indicative of an appropriate range for offences under s 97(1). That is not so. The reasons why the sentences of 8 and 9 years were regarded to be outside the available discretionary range in that case is clearly explained in the preceding paragraphs. In the 8 offences of which the appellant was found guilty in that case, there was mostly one victim and the proceeds of the robberies were, in relative terms, small, involving mobile phones, jewellery and some cash, in amounts varying between $15 and $1,600.
35 The point of the comment at [105] was made having regard to the objective seriousness of the offences in that case. There was also little difference in the seriousness of the individual offences committed by Qing An. The trial judge had sentenced Qing An on the first count to 6 years with a non-parole period of 4 years and 6 months. That was accepted by this Court to be within a range of sentences that could have been appropriately imposed. His Honour then increased the sentences incrementally, ultimately imposing sentences of 8 and 9 years for the last of the offences, which were of approximately equal seriousness to the first. The Court considered there was no reasonable basis for that differentiation.
36 In re-sentencing, I considered that a heavier sentence should be imposed in respect of at least one offence to take account of Qing An's accelerating offending. Otherwise, the appropriate sentence for each offence was that imposed on the first count. Having regard to all the circumstances in that case, there was no warrant to impose a sentence of 8 or 9 years, even to take account of that last factor. There were also important and difficult considerations of totality in Qing An that needed to be taken into account. Hislop J agreed with this approach.
37 The most severe sentence imposed in Qing An was 7 years. Tupman DCJ recognised that the offences in Qing An were not as serious as the offence here. As has already been stated, she imposed a sentence of 8 years on each offender. However, not only were the offences not as serious, the individual offences in Qing An bore no comparability to the seriousness of the offence in this case. Her Honour's reliance on it for some sort of benchmark or some statement of principle was, with respect, misconceived.
38 I am also of the opinion that, contrary to her Honour's view, Norrish DCJ's reasons for the starting point of the sentences he imposed in each case is apparent. I also do not understand her Honour's comment to the effect that Norrish DCJ did not seem to appreciate that the range of sentences referred to in Henry had already taken into account the plea of guilty. There is nothing in his Honour's remarks that would indicate that he did not have this understanding.
39 However, this is not an appeal from the sentences imposed by her Honour Tupman DCJ. The question for consideration here is, having regard to the sentences imposed by her Honour, whether the applicants have a justifiable sense of grievance in accordance with the principle articulated in Lowe and Postiglione. This question arises notwithstanding the criticisms I have made of the approach taken by Tupman DCJ.
40 In my opinion, the applicants would each have a justifiable sense of grievance in being sentenced to terms of imprisonment which are effectively more severe than those imposed on Sinamoni and Dodds. Both Norrish DCJ and Tupman DCJ treated the offenders as being equally culpable for the offence. That required, in accordance with principle, that they be sentenced equally, subject only to the need to take into account mitigating and aggravating factors relevant to the individual offender. The effect of the approach taken by Tupman DCJ means that the applicants were not treated equally. Subject to their individual circumstances, Sinamoni and Dodds were treated more leniently than were the applicants here, notwithstanding the absence of any factor differentiating the seriousness of their offending from the offending of the applicants.
41 Contrary to her Honour's opinion, I do not consider that the sentences imposed by Norrish DCJ were manifestly excessive. Indeed, I do not consider that they could be considered harsh. Nonetheless, as I have explained, I consider that the applicants would each have a justifiable sense of grievance, having regard to the sentences imposed by Tupman DCJ.
42 This is not a case where it could be said the sentences imposed by Tupman DCJ, which although lenient, were so lenient that to reduce the sentences imposed upon the applicants would itself be "an affront to the proper administration of justice": see R v Draper (NSWCCA, Street CJ, Hunt and Wood JJ, 12 December 1986, unreported) at 5; R v Diamond (NSWCCA, Hunt CJ at CL, Smart and James JJ, 18 February 1993, unreported) per Hunt CJ at CL at 5-6; R v Chen [2002] NSWCCA 174; (2002) 130 A Crim R 300 at [289] per Heydon JA, Sully and Levine JJ; R v Salcedo [2004] NSWCCA 430 at [51], [54] and [65] per McColl JA, Levine and Hidden JJ agreeing.
43 In my opinion, it will be appropriate that the notional starting point for each offender should be reduced to 8 years. Regard will then need to be had as to whether that should be increased or decreased for any of the individual applicants, having regard to their particular circumstances. I should point out, however, that except for matters that I specifically comment upon, the applicants did not contend that his Honour failed to take into account any relevant mitigating factor, or wrongly took into account any aggravating factor. Accordingly, subject to those specific matters, I do not propose to reiterate what his Honour said in respect of the individual circumstances of each, but adopt his Honour's remarks and endorse the relevance he placed upon such factors. I also adopt and endorse his Honour's findings of special circumstances and his reasons for so finding.