I mean robbery is a crime by definition. It involves both an assault and taking property. Well in fact what he is charged with was not robbery it was demand property with force in company which is a slightly lesser offence, it is a lesser offence but it was demanding money with force. The demand of course is what was involved with the taking of the $10 and the bike. I do not think, in the end, the bike was taken."
18 His Honour dealt with the subjective factors relating to Mr Vaeila, including that he was on bail at the time that this offence was committed. His Honour referred to his previous firearm offence, his childhood and his drinking from an early age. His Honour also referred to the sporadic nature of his employment, but took the employment into account in his favour and also took into account to his benefit, his talent and activities in rugby league. His Honour found special circumstances, including, that this would be the first time spent in gaol and that the chances of rehabilitation are fairly good. And the commencement point, before a discount for plea of guilty, was 5 years.
Ground 1: Breach of the principle in De Simoni
19 The submission on behalf of Mr Vaeila in relation to Ground 1 depends for its arguability on the proper construction of the remarks on sentence that have been quoted and recited above. The ground depends upon the proposition that his Honour the sentencing judge took into account and sentenced on the basis that the offence before the Court was one for robbery.
20 The underlying premise for this argument fails. His Honour the sentencing judge referred to robbery as a crime involving both assault and taking property and thereafter qualified that with which the sentencing court was dealing by expressly noting that it was not robbery but was "demand property with force in company" and noting that it was a lesser offence. His Honour remarked that "the demand" was what was involved "with the taking of the $10 and the bike". His Honour's reference was, after the initial comment in relation to robbery, consistent only with the proposition that his Honour was sentencing for the demand that was made with force and in company. The submission that was the basis for this ground of appeal is not available and seeks not only to rely upon an infelicitous comment, but to misconstrue the comment in a way that is inconsistent with its obvious intent.
21 In my view this ground of appeal fails at the outset.
Ground 2: Manifest excess
22 This Court has, on a number of occasions, made clear that one of the fundamental features of the criminal justice system is to regulate the protection of people, going about their ordinary business, from being attacked or set upon. These principles are fundamental to any system that seeks to regulate society and were summarised by Gleeson CJ in R v Ranse (Court of Criminal Appeal, 8 August 1994, unreported) in which his Honour said, at page 8:
"One of the primary purposes of the system of criminal justice is to keep the peace. In this connection the idea of peace embraces the freedom of ordinary citizens to walk the streets and to go about their daily affairs without fear of physical violence. It also embraces respect for the property of others."
23 The foregoing comments are rendered even more applicable in circumstances where attacks are made on people who are using, or waiting to use, public transport. Such persons are necessarily in an even more vulnerable position and require protection: see R v Kelly [2005] NSWCCA 280; (2005) 155 A Crim R 499 at [6] and the cases cited therein.
24 The offence under s 99(2) of the Crimes Act encompasses both demanding by force and threats with menaces. Of those two situations, the demanding by force is the more serious and must be treated more seriously by the Court. The submissions on behalf of Mr Vaeila refer to the JIRS data relating to offences under s 99(2) of the Crimes Act and to the fact that 61% of offenders were sentenced to full-time imprisonment. No issue is taken, in these proceedings, that the appropriate sentence was one of full-time custody. Of those sentenced to full-time imprisonment, the statistics reveal that no offender received a non-consecutive total term greater than 3 years and only one attracted a non-parole period greater than 2 years. 31% of offenders attracted a non-parole period of 18 months.
25 If, as found by the sentencing judge, the offence in question was below mid-range in seriousness, then, on the statistics that are before the Court, the sentence imposed would be outside the range of sentences thus far imposed. However, statistics are a guide to the range that has been imposed; those statistics do not define the range available to a sentencing judge. That range is defined by the maximum sentence and the gravity of the offence.
26 However, in considering whether there is manifest excess in the sentence imposed, or in considering whether a lesser sentence is warranted pursuant to the terms of s 6(3) of the Criminal Appeal Act 1912, it is necessary to determine whether the sentencing judge has accurately depicted the criminality involved in the offence.
27 In my view, the sentencing judge has significantly underestimated the severity of the offence in question. Not only is it an offence which involves the actual use of force (as distinct from threats with menaces), it is an offence which involved the application of force by three persons, each punching and kicking the victim, even after the victim has given up on the demand for the money and his bike. Indeed, it seems, that the only reason that the three offenders desisted, from their criminal conduct, was the arrival of the police.
28 Were I to categorise the offence in question, I would place it above mid-range in seriousness and I do not consider that the sentence imposed was manifestly excessive, or excessive at all.
29 Ultimately, the test that must be satisfied in order to succeed on a ground of manifest excess, is that the Court is satisfied that the sentence imposed, on the facts as proved, is a sentence that is beyond the range available. On the facts that have been agreed and/or proved, this sentence is not beyond the available range.
30 Further, I am not persuaded, as I must be, that the provisions of s 6(3) of the Criminal Appeal Act have been satisfied. In other words, I do not consider that a less severe sentence is warranted. As earlier stated, people travelling on public transport, or awaiting public transport, are particularly vulnerable to attacks by a group of people, and the courts must be vigilant to ensure that fundamental protections, being the aspects of civilised, regulated society, are maintained.
31 I propose that the Court make the following orders: