Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: McCarthy v R [2011] NSWCCA 64
• Hearing dates: 28 October 2010
• Decision date: 05 April 2011
• Before: Handley AJA at [1]; Adams J at [2]; Howie AJ at [82]

Decision

Leave to appeal is granted, the appeal is upheld and sentences substituted as follows:

The overall sentence is seven years and six months with an effective non-parole period of five years and six months calculated as follows:

Count 1: taking into account the Form 1 offence committed on 14-15 October 2007: A non-parole period of three years and six months commencing on 28 November 2007 and ending on 27 May 2011 with a balance of term of one year and six months commencing on 28 May 2011 and ending on 27 November 2012.

Count 2: A non-parole period of nine months commencing on 28 February 2010 and ending on 27 November 2010 with a balance of term of six months commencing on 28 November 2010 and ending on 27 May 2011.

Count 3: taking into account the Form 1 offence committed on 25 September 2007: A non-parole period of two years commencing on 28 November 2007 and ending on 27 November 2009 with a balance of one year from 28 November 2009 to 27 November 2010.

Count 4: taking into account the Form 1 offence committed on 11 April 2005: A non-parole period of three years and six months commencing 28 November 2008 and ending on 27 May 2012 with a balance of term of one year and six months commencing on 28 May 2012 and ending on 27 November 2013.

Count 5: A non-parole period of one year commencing on 28 November 2008 and ending on 27 November 2009 with a balance of term of six months commencing on 28 November 2009 and ending on 27 May 2010.

Count 6: taking into account the Form 1 offence committed on 16-20 July 2008: A non-parole period of three years commencing on 28 May 2010 and ending on 27 May 2013 with a balance of term of two years commencing on 28 May 2013 and ending on 27 May 2015.

Count 7: A non-parole period of two years and six months commencing on 28 May 2010 and ending on 27 November 2012 with a balance of term of one year commencing on 28 November 2012 and ending on 27 November 2013.

Count 8: A non-parole period of one year and six months commencing on 28 May 2010 and ending on 27 November 2011 with a balance of term of six months commencing on 28 November 2011 and ending on 27 May 2012.

Count 9: taking into account the Form 1 offence committed on 23 August 2008: A non-parole period of two years and six months commencing on 28 May 2010 and ending on 27 November 2012 with a balance of term of one year and six months commencing on 28 November 2012 and ending on 27 May 2014.

Count 10: taking into account the Form 1 offence committed 23 August 2008: A non-parole period of two years and six months commencing on 28 May 2010 and ending on 27 November 2012 with a balance of term of one year and six months commencing on 28 November 2012 and ending on 27 May 2014.

Section 166: A fixed term of three months commencing on 28 February 2013 and ending on 27 May 2013.

• Catchwords: CRIMINAL LAW - Sentence appeal - Offences under s 97(2), 112(1)(a) of the Crimes Act 1900 and s 42(2) of the Road Transport (Safety and Traffic Management) Act 1999 - Offences committed to satisfy drug habit.; SENTENCING - Failure to refer to JIRS statistics or comparative cases - Whether sentences manifestly excessive - Inherent and aggravating features - Good prospects of rehabilitation - Early guilty plea - Substantial assistance to authorities - Disclosure of offences to authorities - Crimes (Sentencing Procedure) Act s 23(3) permits reasonable disproportion in sentence.
• Legislation Cited: Crimes (Sentencing Procedure) Act 1999 s 23(3); Crimes Act 1900 s 97(2); Criminal Procedure Act 1986 s166; Road Transport (Safety and Traffic Management) Act 1999 s 42(2)
• Cases Cited: Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41; Hili v R; Jones v R [2010] HCA 45; McIvor v R [2010] NSWCCA 7; Mill v The Queen (1988) 166 CLR 59; Pearce v The Queen (1998) 194 CLR 610; R v Bavadra [2000] NSWCCA 292; R v Berrell [2003] NSWCCA 85; R v Evans [2000] NSWCCA 20; R v Henry (1999) 46 NSWLR 346; R v Itamua [2000] NSWCCA 502; R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481; Veen v The Queen (No 2) (1988) 164 CLR 465
• Category: Principal judgment
• Parties: Robert McCarthy (Appellant); Regina (Respondent)
• Representation: Counsel: C Loukas (Appellant); S Dowling (Crown); Solicitors: Frances McGowan (Appellant); S Cavanagh, Solicitor for Public Prosecutions (Crown)
• File Number(s): 2009/7763

Decision under appeal

• Before: Finnane QC, DCJ
• File Number(s): 2008/11/1270; 2009/11/0381; 2008/19461; 2009/7763

Judgment

1 HANDLEY AJA : I agree with Adams J.

2 ADAMS J :

Introduction

3 The applicant pleaded guilty in the District Court to seven counts involving robbery or attempts to commit robbery and three counts of breaking, entering and stealing, with other offences of stealing, breaking and entering and robbery being taken into account. He was sentenced to an overall head sentence of 18 years to commence on 28 October 2007 with a non-parole period of ten years six months. The learned sentencing judge explained that, but for the discount of 50% for the applicant's assistance to authorities and his pleas of guilty, he would have imposed an overall sentence of 36 years with a non-parole period of 22 years. The applicant seeks leave to appeal upon the ground that the sentences imposed were, and the ultimate overall term was, manifestly excessive.

Charges and Sentences

4 These were as follows -

Counts 1, 3, 4, 6 and 9 -

Robbery whilst armed with a dangerous weapon (s 97(2) (all statutory references are to the Crimes Act 1900 unless otherwise stated); maximum sentence, imprisonment for 25 years). The offences taken into account on a Form 1 were (on count 1), stealing a motor vehicle; (on count 3) aggravated break, enter and steal; (on count 4) robbery whilst armed with an offensive weapon; (on count 6) obtain valuable thing by deception and stealing a motor vehicle; and (on count 9), robbery whilst armed with a dangerous weapon.

Counts 2, 5 and 8 -

Break, enter and steal (s 112(1)(a), maximum sentence, imprisonment for 14 years).

Count 7 -

Attempted robbery whilst armed with a dangerous weapon (ss 97(2) and 344A, maximum sentence imprisonment for 25 years).

Count 10 -

Assault with intent to rob whilst armed with a dangerous weapon (s 97(2), maximum sentence imprisonment for 25 years). Taken into account on a Form 1, one offence of stealing a motor vehicle.

Section 166 certificate -

Drive in a manner dangerous (s 42(2) of the Road Transport (Safety and Traffic Management) Act 1999, maximum sentence 20 penalty units or imprisonment for nine months or both (first offence); 30 penalty units or imprisonment for 12 months or both (second or subsequent offence).

5 The offences occurred on the following dates:

Count 1 9 November 2007

Count 2 3 December 2007

Count 3 9 December 2007

Count 4 28 April 2008

Count 5 Between 12 July and 14 July 2008

Count 6 14 July 2008

Count 7 20 July 2008

Count 8 On or about 20 August 2008

Count 9 23 August 2008

Count 10 28 August 2008

S 166 cert 20 August 2008

6 The sentences were as follows:

Count 1	Non-parole period of 3 years to commence from 28.10.07 and to expire on 27.10.10 with a balance of term of 2 years to expire on 29.10.12.
Counts 2, 5 & 8	On each count, non-parole period of 2 years to commence from 28.10.15 and to expire on 27.10.17 with a balance of term of 2 years to expire on 17.10.19.
Count 3	Non-parole period of 2 years to commence from 28.10.09 and to expire on 27.11.11 with a balance of term of 1 year to expire on 27.10.12.
Count 4	Non-parole period of 5 years to commence from 28.10.12 and to expire on 27.10.17 with a balance of term of 8 years to expire on 27.10.25.
Count 6	Non-parole period of 3 years to commence from 28.10.09 and to expire on 27.10.12 with a balance of term of 2 years to expire on 28.10.14.
Counts 7, 9 & 10	Non-parole period of 3 years to commence from 28.10.10 and to expire on 27.10.13 with a balance of term of 2 years to expire on 27.10.15.
S 166 certificate	Fixed term of 12 months to commence from 28.4.17 and to expire on 27.4.18. Disqualification for 5 years to date from 28.10.07 and to expire on 27.10.12.
Effective sentence:	Non-parole period 10.5 years to commence on 28.10.07 and to expire on 27.04.18. Head sentence of 18 years to commence on 28.10.07 and to expire on 27.10.25.

(The dates set out above are taken from the Particulars of Trial which was provided to this Court, as the learned sentencing judge's remarks on sentence contain a number of evident typographical errors in respect of the date ranges for some of the sentences.)

Facts

7 At the sentencing proceedings a comprehensive statement of agreed facts together with a chronology were tendered. It is from this material that the following summary is taken. For simplicity, the facts involved in the charges on the indictment and the offences taken into account are set out in chronological order.

Form 1 attaching to Count 4 - armed robbery with a dangerous weapon

8 This offence was originally prosecuted on an indictment to which the applicant pleaded guilty on the second day of trial (4 March 2009). It was then placed on a Form 1 to be taken into account in connection with the current offences. On 11 April 2005, in company with two co-offenders, both wearing balaclavas, and armed with a long barrelled shotgun the applicant forced the manager of a hotel to open the hotel safe. The offenders stole $47,000 and locked the manager inside the safe. On an item left at the scene by the offenders the police identified the applicant's DNA and telephone records placed him near the scene at the time of the offence.

9 Although this matter was not drawn to the sentencing judge's attention, this offence occurred when the applicant was subject to a six month suspended sentence for driving whilst disqualified which had been imposed on 28 February 2005.

10 The applicant spent ten months and one day in presentence custody solely referrable to this matter between 27 May 2006 and 28 March 2007. The sentencing judge, accordingly, backdated the starting date for count 1 by that period, starting from the applicant's final date of arrest on 29 August 2008, which gave a starting date of 28 October 2007. The effect of this process was to completely subsume a nine month non-parole period imposed by the Burwood Local Court for entirely separate offences on 2 April 2009.

Form 1 relating to Count 3 - break, enter and steal in company

11 The applicant with two co-offenders (with whom he was later to commit the offence charged in count 3) broke and entered into a residence on 25 September 2007, stealing various items of property valued at over $16,800. The applicant drove his co-offenders to the vicinity of the house, concealed number plates to prevent identification and joined the others at the premises, using a jemmy to prise open a rear sliding door.

Form 1 relating to Count 1 - Stealing a motor vehicle

12 On 14 - 15 October 2007 the applicant stole a motor vehicle from a street in a Sydney suburb, using the vehicle to commit the offence constituting count 1.

Count 1 - Armed robbery with a dangerous weapon

13 On 9 November 2007 the applicant, wearing a balaclava and armed with a sawn-off .22 rifle robbed a person, waiting at a car park lift to enter the branch of a bank, of a shopping bag containing over $20,000 in cash and $31,000 in cheques. The applicant pointed the rifle at the victim's head, threatening him and demanding money. The victim got down on his hands and knees and pushed the shopping bag towards the applicant who took it and moved away, keeping the weapon aimed at the victim. The victim was able to get a partial registration number of the applicant's get-away vehicle (the stolen vehicle on the Form 1) and DNA left on the gear stick, found when the vehicle was later discovered in December 2007, matched that of the applicant.

Count 2 - Break enter and steal

14 On 3 December 2007 the applicant removed the bars from and forced the lock on a ground floor window of a boarding room in a Sydney suburb and stole a mobile telephone worth $250 and personal papers. No incriminating evidence was left at the scene by the applicant. He confessed his commission of this offence to the police.

Count 3 - Armed robbery with a dangerous weapon

15 On 9 December 2007, six days after the offence charged in count 2, the applicant went to a motel armed with a sawn-off .22 rifle. He entered a room occupied by his former co-offenders, one of whom he accused of ripping him off in an earlier incident. Eventually the applicant was given $70 and he left. There was no incriminating evidence left at the scene and the information enabling the charge came from the applicant. In sentencing for this offence the sentencing judge said that he did "not intend to impose a sentence of the same severity ... [as he intended to] impose on him for his robbery of persons who [were] not involved in criminal activities".

16 Following this offence, on 19 April 2008 the applicant was seen driving a stolen motor vehicle and was dealt with separately in the Local Court on 9 April 2009 together with other separate matters, receiving an effective non-parole period of nine months from 11 September 2008 until 10 June 2009. It is this sentence to which I have already referred, which was completely subsumed in the sentence imposed on count 1.

Count 4 - Armed robbery with a dangerous weapon (in company)

17 Using the stolen motor vehicle referred to in the last paragraph, the applicant with his co-offender and armed with a sawn-off .22 rifle went to a hotel on 28 April 2008. A security guard had left the hotel with $50,000 in cash and, when about to enter his vehicle (parked in a lane at the rear of the hotel), was approached by the applicant and his co-offender, both of whom were wearing balaclavas. The guard was in company of a staff member. Both were forced on to the ground. A mobile telephone was stolen as well as the backpack with the cash. The stolen vehicle used by the applicant was recorded on video surveillance footage and was recovered after a police pursuit on 19 May 2008 (summarised below). DNA matching that of the applicant was found on swabs taken from the vehicle, together with his finger prints on items in the vehicle.

Count 5 - Break, enter and steal

18 Sometime between 12 and 14 July 2008, the applicant broke and entered the premises of a used vehicle firm and stole a vehicle worth $41,000. He gained entry through the roof of the premises and keys to the vehicle were stolen from a board in the office. A steel barrier between the vehicle and the exit roller door was removed and the door was forced open. No incriminating evidence was left at the scene. The applicant's involvement became known only by virtue of his confession to police.

Obtaining property by deception

19 On 14 July 2008, the applicant obtained $76.80 worth of unleaded fuel from a service station, driving away without paying.

Count 6 - Armed robbery with a dangerous weapon

20 On 14 July 2008, shortly after the duty manager of a bowling club arrived at work, opened the front door and disarmed the alarm system, she saw, as she opened the safe, two men nearby. One was armed with a sawn-off .22 rifle which was pointed at her. They demanded to know if other staff members were coming to the club and she was then directed into the storeroom. Shortly afterwards they demanded that she open a smaller safe which she did. They then directed her to a locked shutter door in the lower level of the club, which she unlocked. One of the cleaners arrived and gave chase to the departing offenders, one of whom pointed the rifle at him and warned him to "get back or you'll cop this". When police arrived a short time later, the vehicle used by the offenders was still in the car park. The police found in it a bag containing the stolen money (in excess of $30,000), .22 calibre bullets, a silencer for a .22 calibre firearm, baseball caps, balaclavas, other clothing, a torch and a screwdriver. The applicant's DNA matched that on swabs taken from a number of items in the car. His fingerprint was also found inside the bag.

Form 1 attaching to Count 6 - stealing a motor vehicle

21 Between 16 and 20 July 2008 the applicant stole a motor vehicle from commercial premises.

Count 7 - Attempt to rob whilst armed with a dangerous weapon

22 At about 4.20am on 20 July 2008 two men were leaving the main entrance of a bowling club when they were approached by two men wearing black balaclavas and armed with firearms. They threatened the men but one of them went back to the main door and banged on the glass alerting other employees who were still inside the premises. When they saw this, the applicant and his co-offender fled and were last seen driving away in a red station wagon. There was no incriminating evidence left at the scene and police knowledge of the applicant's involvement in this crime came from his own confession.

Count 8 - Break, enter and steal

23 On or about 20 August 2008 the applicant broke and entered into the premises of a motor vehicle repair shop and stole a vehicle valued at $41,000. Entry was gained by cutting a hole in the side wall and the roller door was forced open to enable the vehicle to be driven out. An alarm was triggered and police pursued the applicant (dealt with on the s 166 certificate). Upon the applicant's arrest on 29 August 2008 the keys to this vehicle were found in his bag, he disclosed its whereabouts and it was eventually recovered.

Section 166 Certificate - Driving in a manner dangerous

24 On 20 August 2008, shortly after the offence constituting count 8, a police officer recognised the vehicle as that which had been stolen by the applicant and police gave chase. The applicant drove in excess of 100 kph in a 60 kph zone before losing the police but, shortly after, officers again identified the vehicle and unsuccessfully resumed the chase, the applicant again travelling over 100 kph and driving through a red light. A little time later there was a third unsuccessful chase.

Count 9 - Armed robbery with a dangerous weapon

25 On 23 August 2008 the applicant, carrying a rifle, and his co-offender armed with a sledge hammer, both wearing balaclavas, entered a bowling club and went to the toilet area which contained the safe. When a staff member went to the toilet area he was confronted by the offenders who demanded the keys to the safe. However, neither the staff member nor another member of the club who later went to the toilet had access and they were forced to sit on the floor. A third staff member who did have access to the keys was grabbed by the offenders and threatened with a rifle. She set off a personal alarm, which signalled the police. A fourth person also went to the toilet area and was forced to sit on the floor. The offenders took all of the cash they could find and demanded that the third staff member give them access to a wall safe and, when she said she did not have the access code, the co-offender threatened to kill her. The applicant took this victim, shaking with fear, to the club's poker machine area and forced her to open five poker machines and give him their cash boxes. Sirens were then heard and a club member offered them the keys to his car so they would leave. The offenders herded the victims into the safe area, shut the door behind them and drove away in the member's car, which was later found abandoned (the theft of the car was dealt with on a Form 1). Apart from the car, a total of $1,758 was stolen. It appeared that the offenders gained entry to the club through the roof. Again, no incriminating evidence was found and the applicant's involvement became known only by virtue of his confession.

Count 10 - Assault with intent to rob whilst armed with a dangerous weapon

26 The applicant and a co-offender entered yet another bowling club on 28 August 2008, some time in the early hours of the morning by smashing a window in the toilet area. They wore balaclavas and rubber gloves. The applicant was armed with a sawn-off .22 rifle. They entered the office area looking for the safe and were startled by a cleaner. The applicant pointed the rifle at the cleaner and the co-offender threw a chair at him and ran away. The cleaner followed the co-offender but stopped the pursuit when the applicant pointed the gun at him, running back upstairs to the office and locking himself inside. The co-offender followed him and commenced to kick at the door. The cleaner barricaded himself inside the office and set off the alarm. In the meantime, two other employees were escorted by the applicant into the auditorium of the club. He demanded the location of the safe and threatened one of them with the rifle. One employee indicated the safe room and the offenders commenced kicking in the door to gain entry but left a short time later and returned to the auditorium. One of the employees gave the keys to his motor vehicle to the co-offender and they both fled the scene in the vehicle. The police shortly afterwards located the abandoned vehicle but no forensic evidence was obtained. Again, it can be inferred that the evidence of the applicant's involvement in this crime came from his confession to police. The robbery of the staff member's vehicle was dealt with on a Form 1.

27 When sentencing the applicant on 17 July 2009 the learned sentencing judge overlooked this charge and omitted to sentence him. On 14 May 2010 the applicant was brought back for the purpose of being sentenced for this offence.

Aggravating features

28 All the offences were premeditated and planned. In the robbery offences, firearms were used which must be presumed to have been loaded. There were thus significant dangers of serious injury for the victims. The applicant was on bail when the offences comprising counts 5 to 10 were committed.

The Applicant's Criminal Record

29 The applicant suffered his first conviction at the age of 13 in May 1980. The offence was malicious injury for which he was placed on a recognisance for 12 months. A little over 12 months later he was convicted of the offences of trespass and malicious injury, followed in 1983 by offences for being carried in a stolen conveyance and of stealing for which he was committed to an institution. In 1984 he was convicted of four counts of breaking, entering and stealing, eight counts of stealing a motor vehicle and two counts of driving in a manner dangerous. The following year he was convicted of attempting to steal a motor vehicle, possession of house breaking implements, stealing a motor cycle and four other counts of stealing. In 1986 he was convicted of further offences of breaking, entering and stealing. In 1987 he was convicted for the first time in the District Court for possessing house breaking implements and convicted of six counts of breaking, entering and stealing, two counts of stealing a motor vehicle and one count of possession of an implement capable of entering a conveyance. Later that year he was convicted in the Local Court of five counts of having goods in custody suspected of being stolen or unlawfully received, two counts of receiving, two counts of stealing and, significantly, four counts of possessing a firearm. Drug charges followed in 1992 together with convictions of attempted robbery in company, robbery in company and armed robbery on which he was sentenced overall to a minimum term of five years and an additional term of three years imprisonment. In 1996 he was convicted of escaping lawful custody and sentenced to 18 months imprisonment, ending on 14 October 1998. In 1996 he was convicted of robbery whilst armed and/or in company and sentenced to a minimum term of four years and six months imprisonment concluding on 14 October 2001 with an additional term of three years. He was also sentenced to a concurrent term of four years and six months for the offence of malicious wounding with intent to do grievous bodily harm. In December 2002 the applicant was convicted of possessing a loaded firearm in a public place for which he was imprisoned for 18 months commencing on 31 July 2002 with a non-parole period of 12 months. In June 2005 he was convicted and imprisoned for six months for possessing implements to enter a conveyance and, more troubling, for possess/use a prohibited weapon without a permit for which he was sentenced to 15 months imprisonment from 28 May 2005 with a 12 month non-parole period. It seems he managed to stay out of trouble for a while though he was sent back to prison in April 2009 for nine months for the offence of driving while disqualified, reckless driving and driving a conveyance without the consent of the owner, concurrently with three months imprisonment for larceny and entering a vehicle without consent. I have omitted a number of convictions for driving while disqualified, making a false statement and various other relatively minor offences.

30 As bad as his record undoubtedly is, it is important to observe that his previous offences of robbery occurred in 1992 and 1996. He has no convictions for violence other than in 1996 though this was for the very serious offence of malicious wounding with intent to do grievous bodily harm. His last break, enter and steal convictions were in 1987.

Subjective Material

31 Tendered before the sentencing judge was a report from the Probation and Parole Service together with an affidavit of assistance, two undertakings and a report from Mr Gregory Fathers, a forensic psychologist. The applicant gave evidence.

32 The presentence report stated that the applicant had been known to the Probation and Parole Service since 1984, during which time he had been subject to numerous supervised bonds and parole orders. His response to supervision was unsatisfactory during most of that period because of his failure to maintain contact, his continued use of illicit substances and re-offending.

33 The applicant was, at the date of the first of the offences, 40 years of age. He is the elder of two brothers whose father played no part in his upbringing and, until the age of eight, he and his brother were raised in institutions because of their mother's inability to care for them. He went for a period of four years to live with his uncle, whom he described as a "professional criminal" and stayed with him and his aunt for four years before his grandmother took over his care. The applicant's schooling was disrupted by emotional difficulties, truanting and residential instability. He left school in Year 10 without gaining his School Certificate. He had work from time to time but his drug related lifestyle and general instability seriously affected his employment record. The applicant commenced to use marijuana in his early teens and moved on to heroin shortly after. He has also used "speed" and "ice", especially when his grandmother became ill in 2007 and since that time. He has made a number of unsuccessful attempts to address his drug issues by involvement in various programmes.

34 The report of Mr Fathers is more detailed but gives a history more or less consistent with that contained in the presentence report; the additional material does not require further reference. Testing revealed a low average level of cognitive abilities although its measure of what was described as "fluid intelligence" placed him in the average range. On the other hand, his vocabulary subtest results demonstrated poor verbal ability which, in Mr Fathers' opinion, would interfere with his capacity to think and reason flexibly. There was some evidence of significant underlying personality disturbance, intra/interpersonal problems, poor social skills and social influences and few personal resources. So far as offender risk was concerned, Mr Fathers thought that he required a high level of treatment and supervision which had not been taken up before but which now should be available to him within the correctional system. Mr Fathers noted that, despite the applicant's long history of poor psychosocial development and psychological instability, he had apparently considered his future, probably for the first time and made choices aimed to rehabilitate himself.

35 The applicant gave apparently heartfelt evidence about his regret for his past offences and his desire to rehabilitate himself. He expressed understanding of the emotional stress and pain inflicted on the victims of his crimes, for which he apologised. He spoke of the enormous emotional impact of his grandmother's long illness (she eventually died of liver cancer) and the impact this had on his drug taking, which increased markedly. He said that he committed the robberies to get money for drugs of which he was a substantial user. It is of course difficult to assess the sincerity of this kind of evidence from the transcript but nothing appears to suggest that it was in any way formulaic or calculated and the learned sentencing judge certainly accepted it as genuine. His Honour described the applicant as "a truly tragic figure ... [who] had the misfortune of being born into a family many of the members of which were actively engaged in criminal activities". His Honour accepted as "very compelling" his evidence that his drug addiction led to his offending. As to the applicant's expression of regret and his apology to the victims in respect his Honour said, "I have formed the view, having listened to him, that he ... was genuine". He thought the applicant expressed an understanding of the stress and terror that would have been experienced by the people he had confronted with weapons, showing an empathy that few offenders appeared to have, despite the risk that he had been institutionalised by his lengthy prison experiences.

36 The sentencing judge rightly described the question of rehabilitation as being "very important" in this case. His Honour noted that the applicant had cut his ties with persons involved in active criminality, having "demonstrated this in the most practical way he could by agreeing to give evidence at forthcoming trials" and accepted the applicant's evidence that he had not made the decision to disclose to police such information as he had in order to obtain a discount on his sentence. It appears that, whilst in custody at the police centre, he approached a welfare officer and commenced the process of making his disclosures. His Honour concluded that the applicant had "good prospects of rehabilitation". If I may say so with respect, this conclusion was clearly justified by the evidence before his Honour.

37 The applicant, it was accepted, pleaded guilty at the earliest opportunity, giving rise to an appropriate 25% utilitarian discount. In addition, he gave substantial assistance to the police and, in the future, was to give evidence at five trials. An overall discount of 50% was therefore applied by the learned sentencing judge to the sentence which otherwise would have been imposed. Of this discount, 20% applied to future assistance. (This Court was informed by the Crown Prosecutor at the hearing of the appeal that the applicant has already given evidence against three offenders and expected to give evidence against others.)

38 I have already mentioned that the applicant, in respect of a number of offences, was himself the source of the information that identified him as the perpetrator. This matter was pointed out to the sentencing judge by counsel on the applicant's behalf and, it appears, was not controversial. This fact was convincing evidence of the applicant's remorse and determination to rehabilitate himself. Although his Honour did not advert to this factor in the course of his reasons, it seems to me that he took it into account, not by way of reducing any sentence that applied to those disclosed offences, but by making those sentences fully concurrent with other sentences which he imposed.

39 The applicant's subjective case was a strong one and, of course, should have had a significant role in setting both the individual sentences and the overall sentence, having regard to the principle of totality. It is difficult to accept that the sentencing judge, despite his extensive discussion of the subjective features and acceptance of the applicant's remorse and contrition and good prospects of rehabilitation, actually took it into account in setting the starting point of the totality of criminality. If they had not been present, the sentence (absent the utilitarian factors) must have been substantially greater. This feature serves either to emphasise the extraordinary length of the overall sentence or to establish that the subjective elements were, in the result, disregarded.

Subsequent Sentence Proceedings

40 On 14 May 2010 the applicant was returned to the sentencing judge's court to enable his Honour to deal with count 10 on the indictment, which had been overlooked although the details of the offence were referred to in his Honour's reasons. The effective overall sentence imposed on the first occasion was a total of 18 years with a ten year non-parole period. An additional six months was imposed for the offence in respect of which s 166 of the Crimes Act applied. His Honour said that, when imposing the sentences on 17 July 2009, it was possible that he had either six months or one year in mind as an additional period of imprisonment that should have been attributable to count 10 but that, considering the delay, it was appropriate to impose a sentence (taking into account the matter on the Form 1), which was entirely concurrent with the other sentences earlier imposed.

The JIRS statistics and other cases

41 In Hili v R ; Jones v R [2010] HCA 45, especially at [48] - [49], the High Court criticised the use of the Judicial Commission's statistics for the purpose of considering the appropriateness of the sentence under consideration in that case. I would not suggest in the present case that either the sentencing judge or this Court should "interpolate the result of the instant case on a graph that depicts the available outcomes" (ibid). The criticism of such sentencing statistics was made in the context of the observation -

...[N]ot only is the number of federal offenders sentenced each year very small, the offences for which they are sentenced, the circumstances attending their offending, and their personal circumstances are so varied that it is not possible to make any useful analysis or graphical depiction of the results.

42 Regrettably, as (for example) the analysis in R v Henry (1999) 46 NSWLR 346 illustrates, armed robberies demonstrate a marked similarity of characteristics, both in respect of facts and the subjective features of the offenders though, of course, there are also substantial variations. It seems to me that in this area of crime the cases are of such a kind, the experience of the Court in respect of them so extensive and the numbers of cases in the sample so substantial that the statistics are indeed useful. This conclusion is supported by a comparison of those statistics with the particular cases which I discuss below. The sample would, of course, include cases very much less serious than the present and one would reasonably expect cases very much more serious than those under consideration here present, since although undoubtedly serious, they are not marked by any particular feature of unusual gravity.

43 The statistics collated by the Judicial Commission of consecutive and non-consecutive terms for sentences imposed on all offenders for offences under s 97(2), having the large sample size of 235, show the median sentence at six years with eight outliers at ten years, seven at 12 years and three at 16 years; the median fixed term/non-parole period (sample 133) is 30 months with three outliers at six years, four at seven years and one each at eight, nine and twelve years (this relates only to non-consecutive terms) . The table of consecutive terms (multiple offences) for this offence (since Pearce v The Queen (1998) 194 CLR 610), a substantial sample of 102 cases, shows a slightly higher trend, with the median sentence of seven years with outliers of, one case of 14 years, one case of 16 years and one case at 18 years. The figures for consecutive and non-consecutive terms (multiple offences, sample size 154) are not significantly different. The table for the non-parole period or fixed term in respect of non-consecutive terms for multiple offences is a sample of 52 (sufficient to be useful) ranging fairly evenly between 12 months and five years, with one case at two years, three at seven years, one at nine years and one at 12 years.

44 Counsel for the applicant tendered a table of selected s 97(2) cases considered by the Court of Criminal Appeal listing 20 examples, three of which involve fewer offences than were committed by the present applicant. It may be helpful to refer to several of these. In R v Evans [2000] NSWCCA 20, a two Judge bench of this Court (Grove and Greg James JJ) dismissed an appeal against the severity of sentences for seven counts of aggravated armed robbery comprising an overall term of nine years with a minimum term of six years, all served concurrently. The sentencing judge applied a discount of 50% for assistance to authorities. The offender was aged in his mid 20s and became involved in a gang of criminals recruited by the father of his girlfriend. He had no prior criminal record, had disclosed his involvement in the offences of which he was a suspect but where the police were not in possession of relevant evidence. It was held that the starting point of 18 years imprisonment was manifestly excessive. A starting point of 15 years was adopted resulting, after discount, in the substitution of the sentence in respect of each offence of seven years and six months imprisonment with a non-parole period of five years, all sentences to be served concurrently. The judgment does not contain any details of the underlying facts.

45 In R v Bavadra [2000] NSWCCA 292 the Director of Public Prosecutions appealed against the inadequacy of sentences imposed following pleas of guilty to two counts of robbery whilst armed with an offensive weapon, two counts of robbery in company and three counts of robbery whilst armed with a dangerous weapon, taking into account 11 matters on a Form 1. In respect of the s 97(2) offences, the offender was sentenced to ten years with a non-parole period of six years, whilst in respect of the two other offences under this section he was sentenced to fixed terms of five years and six years respectively to be served concurrently with the first offence. For the two charges of robbery whilst armed with an offensive weapon, (s 97(1)) he was sentenced to fixed terms of four years to be served concurrently with the other sentences. The remaining two charges of robbery in company resulted in fixed terms of three years imprisonment also to be served concurrently with the remaining sentences. The offences occurred over a seven month period. The armed robbery offences involved use of a hand gun to rob a bank with four other co-offenders, in the course of which bank staff were also threatened with a Stanley knife and forced to lie on the floor, and the robbery of a convenience store using a hand gun by the offender in company with three others, the victim being stabbed in the hand and leg by one of the co-offenders, the robbery of a liquor store using a shortened double barrelled shotgun in the company of another offender, the robbery of another liquor store using a knife which was held to the neck of an employee, the robbery of a bank using a meat cleaver in the company of four others, the robbery of a video store in the company of three others, one of whom pointed a shotgun at an employee whose hands were bound, and the robbery of a newsagency, accompanied by another offender, involving the use of a knife. The Form 1 offences comprised robbery in company, robbery whilst armed with an offensive weapon, robbery whilst armed with a dangerous weapon and being carried in a conveyance without the consent of the owner together with four other offences of robbery whilst armed with an offensive weapon, in each case a knife, committed at a service station, at a caf and a bank and two offences of robbery whilst armed with a dangerous weapon, in each case a hand gun and committed at cafs, one count of assaulting a police officer with intent to resist lawful apprehension. Subjectively, the offender was aged 21 years at the time of the offences and had a history of offending from the age of 16, together with a history of alcohol and drug abuse. There was some doubt about whether he was truly remorseful or contrite as distinct from merely being concerned about the impact of the sentence upon himself and his relationship with his child. He was given "some credit" for his plea of guilty although conviction would have been highly likely in any event. The individual sentences were held to be manifestly inadequate; and the total overall sentence involving a minimum term of six years and an additional term of four years could not reflect the total criminality, so that the concurrency of the sentences was in error. The outcome of the appeal was to extend the total sentence to 12 years with a non-parole period of eight years. Of course, it must be borne in mind that this sentence (and the sentences which were varied upwards) remained less than those that might have been properly imposed at first instance because of the double jeopardy principle that then applied. A discount of 15% was given in respect of the pleas of guilty. It is worthwhile to note the approach of the court, which was to impose fixed terms of imprisonment except for the final sentence that was to be served partly concurrently and partly consecutively with the sentences imposed on the other counts.

46 In R v Itamua [2000] NSWCCA 502 the offender pleaded to 42 offences of robbery whilst armed with a dangerous weapon committed during a five month period, and an offence of assault with intent to rob whilst armed with a dangerous weapon. In respect of one of the charges, taking into account a further offence of possessing a loaded firearm in a public place, the offender was sentenced to a term of 18 years imprisonment with a non-parole period of 12 years and, in respect of the others, to fixed terms of three years imprisonment. All sentences were to be served concurrently. The offender sought to appeal against the severity of the first sentence. In respect of the sentence under appeal, the sentencing judge said that it was intended to reflect the total criminality of all the charges, which he found to be one episode of criminality and that, given the length of the sentence he proposed to impose in respect of that charge, the other sentences should be concurrent. Smart AJ summarised the position as follows:

[41] Thus, it can be seen that the appellant attended at thirteen hotels or clubs. In addition to the robbery of these, some thirty one individuals were the victims of an armed robbery. In some instances the evidence establishes that the appellant engaged in the preparations for the offence, driving co-offenders to the scene of the robbery knowing that a robbery was to take place, waiting for them, driving them away knowing a robbery had been committed and participating in the proceeds of the offence. In other instances the appellant's involvement was even greater as he participated physically in the carrying out of the armed robberies in some of the hotels or clubs.

47 The Court, by majority, concluded that it was necessary to re-sentence the appellant in order to conform with Pearce, supra, especially at 623 - 4 by McHugh, Hayne and Callinan JJ; see also Mill v The Queen (1988) 166 CLR 59 at 62 - 63. Smart AJ (with whom Sheller JA agreed) concluded that the concurrent sentences for a fixed term of three years were almost all manifestly inadequate and that, on the other hand, the sentence of 18 years with a non-parole period of 12 years was manifestly excessive. One of the problems of re-sentencing the offender was that there was no appeal either by the offender or by the Crown in respect of the concurrent fixed term sentences, so that the Court was bound to proceed on the basis that those sentences could not be disturbed. The principal charge involved the entry by up to five offenders, wearing balaclavas or other disguises, into a tavern armed with a long barrelled hand gun, a semi-automatic pistol, a baseball bat and a club-lock. Everyone was ordered into a back room and one man hit in the ribs with the baseball bat and another on the face, their hands were tied behind their backs and one victim was also hit on the right side of the head with the bat. The barman was grabbed by the hair and the manager taken away. One of the patrons, aged 17, was hit with the club-lock. The offender had driven the robbers to the tavern in return for part of the proceeds later being given to him. He made extensive admissions, pleaded guilty and named some of his co-offenders but declined to name most. He was 20 or 21 when the offences were committed, having no prior convictions in Australia but a conviction in New Zealand for break, enter and steal. It is doubtful whether the Crown would have been able to prove all the offences to which he pleaded guilty without his admissions. Smart AJ concluded that the proper sentence on the principal charge was 14 years imprisonment with a non-parole period of eight years. His Honour added that, had the Court been able to do so, he would have increased the sentences on the other counts of armed robbery, in respect of two of them to sentences of equal length to that imposed on the principal charge and, in respect of the others, concurrent sentences of 12 years with a non-parole period of eight years and 14 years with a non-parole period of eight years. On the charge of assault with intent to rob whilst armed with a dangerous weapon he would have imposed a fixed term of six years imprisonment. As I read his Honour's calculation, the sentences would have been partly concurrent and partly cumulative and resulting ultimately in an overall effective sentence of 18 years with a non-parole period of 12 years. Because this outcome was not open, Smart AJ proposed that the reduced sentence of 14 years with a non-parole period of eight years should be cumulative on the concurrent fixed three year terms, so that the effective overall term was 17 years with a non-parole period of 11 years.

48 In R v Berrell [2003] NSWCCA 85, the offender pleaded guilty to six counts of armed robbery with a dangerous weapon, namely a replica pistol. In respect of each of five counts the sentence was five years with a non-parole period of three years and four months and, in respect of the sixth, taking into account six further offences of robbery whilst armed with a replica pistol, one offence of assault with intent to rob, aggravated robbery and three offences of assault, the sentence was ten years imprisonment with a non-parole period of six years and eight months. The appeal was heard by Studdert J and Smart AJ. The offender was 33 years of age when the offences were committed over a two month period. He had a lengthy criminal history including dishonesty offences, all of which were dealt with in the Local Court. It was accepted that he committed the offences to support himself, his partner and his partner's drug habit. There was psychiatric evidence that the offender suffered from a paranoid depressive illness which had improved since his arrest. There was evidence of substantial rehabilitation. In dismissing the appeal, Smart AJ, with whom Studdert J agreed, said as follows:

[49] The sentences had to be and were proportional to the high degree of criminality revealed. Unfortunately, the offences merited heavy sentences. The sentences imposed are not out of line with sentences imposed in other cases where there has been a large number of armed robberies. Considerably higher sentences would have been imposed if the judge had not attached significant weight to the applicant's subjective features.

49 I have looked at the other cases contained in the table produced by counsel for the applicant. It is not necessary to set them out. It is sufficient to say that, making all allowances for differing circumstances, both objective and subjective, especially the different numbers of offences dealt with, they lend support in a general way both to the conclusion that the applicant's sentences were manifestly excessive and to the appropriateness of the sentences I propose.

50 It remains to mention Henry , in which Spigelman CJ undertook a review of a large number of armed robbery sentences in a variety of jurisdictions with particular reference to cases in this State. His Honour's view (with which the other members of the Court, except Hulme J, agreed) was ([162] - [165], omitting formatting) -

[In respect of a] [y]oung offender with no or little criminal history [using a] [w]eapon like a knife, capable of killing or inflicting serious injury [, with a] [l]imited degree of planning [and] [l]imited, if any, actual violence but a real threat thereof [, where the] [v]ictim was in a vulnerable position such as a shopkeeper or taxi driver [, a] [s]mall amount was taken [and a] [p]lea of guilty limited by a strong Crown case [, an appropriate sentencing range] should generally fall between four and five years for the full term.

His Honour pointed out that he had -

[165] ... arrived at this figure after drawing on the collective knowledge of the other four members of the Court with respect to sentence ranges. I have also reviewed the sentences which this Court has imposed on occasions when it has intervened, including in Crown appeals where the principle of double jeopardy applies. The proposed range is broadly consistent with this body of prior decisions in this Court.

51 Of course, in a number of obvious respects the present offences are significantly more serious than those which would fall within the description to which the Chief Justice referred. Nevertheless, with all appropriate qualifications, the Henry guideline is useful as part of the general material to which the Court should look for the purpose of attempting to identify an appropriate sentencing range, however indeterminate the borderline might be within which the sentencing discretion is rightly exercised.

The overall sentence

52 In my respectful opinion, the sentencing of this applicant reflected a huge and idiosyncratic departure from what Howie J has described as "the range that appears to have been established" in respect of multiple charges of armed robbery (see McIvor v R [2010] NSWCCA 7 at [22]). The offences of breaking, entering and stealing were, of course, not nearly so serious as the armed robbery offences, not only inherently but having regard to the different maximum sentences provided by the Act.

53 Mere departure from the usual range does not mean that the sentence is wrong. Each case must be considered on its own merits, no case is entirely similar to any other and the sentencing judge necessarily has a wide discretion to impose a sentence that seems to him or her to be just and appropriate. However, it is not only appropriate but necessary, in my respectful opinion, to consider the range of sentences usually applied in cases of a similar order of criminality, not only because consistency and coherence are marks of a system of law as distinct from mere personal opinion, but because of fundamental notions of equal justice. Furthermore, sentencing is by its very nature so incommensurable that the way in which colleagues have, over the years, measured out sentences in broadly similar cases is significantly informative. In my view, a sentence that markedly differs from what is fairly regarded as the usual range, where there are no unusual features or other explanation, will almost always signal error. Certainly, a judge who is considering a sentence significantly outside the usual range should, in my respectful opinion, carefully consider whether the sentence is nevertheless appropriate and at least condescend to explaining where the difference lies or - if he or she considers that the range is inappropriate - give reasons for this conclusion. Here, the sentencing judge did not mention any factor that took the case out of the usual run except for those subjective features that should have operated in the applicant's favour.

54 The only range of sentences to which his Honour referred was the practice in the United States of giving "sentences of hundreds of years", noting that this "is not so in Australia ... [where we] do not give sentences of hundreds of years or anything approaching it ... [and the] principle of totality requires that a sentence be fixed that sees something that is appropriate". His Honour made no reference to the range that was usually applied in this State to cases of this kind. It is accordingly not surprising that he did not identify any feature that might have suggested that the pre-discount sentences should be hugely more harsh than those that would usually be imposed. With respect, the conclusion is irresistible that his Honour simply disregarded this consideration and, from the lack of explanation, did not consider it necessary to justify such a course.

55 Sentencing judges are, of course, entitled to rely on their own experience and it is not necessary to specifically refer to other cases, let alone the statistics. Sometimes the sample both of comparative cases and the statistics is so limited as to provide little, if any, assistance. Here, however, both are informative. The statistical tables show that the starting point, head sentence and non-parole period were about double the respective outliers (ie, the heaviest sentences). This discrepancy is greatly increased if one were using the median sentences and non-parole periods as comparators. While of course serious, the applicant's crimes were not unusual examples of their kind; while they were marked by a lack of actual violence, they did of course involve frightening threats. The only unusual feature - and it is very unusual - is the extent of rehabilitation that was demonstrated by the applicant's genuine remorse, the matters that gave rise to the discount and, in respect of a number of offences, the Ellis factors. These features would have strongly suggested a sentence at the lower end of the usual range.

56 Making all just allowances for the care with which the statistics and the particular cases which I have mentioned should be interpreted, and giving full allowance for the wide discretion reposed in the sentencing judge, the conclusion is inevitable that the starting points of the overall sentence and non-parole period imposed here were manifestly excessive. At all events, leaving all references to statistics aside, I am satisfied that the overall criminality of the applicant's offences, taking into account all the objective and subjective features to which I have referred could not, by a very considerable margin, justify the starting point adopted by the sentencing judge as reflecting the overall criminality of the applicant. It follows that this Court must re-sentence the applicant.

57 That the starting point of the overall sentence was manifestly excessive does not necessarily imply that the starting points of the individual sentences are erroneous and it maybe that the correct approach is to adjust the accumulation of those sentences to arrive at an appropriate overall starting point. I therefore move to those sentences.

The individual sentences

58 For ease of reference I have referred to the overall sentence as the head sentence and then indicated the non-parole period, although this departs from the statutory language. It is not controversial that a finding of special circumstances might be made, apart from the potential need to make an adjustment by virtue of the accumulation of some, if not all, of the sentences. The "personal factor" in the present case is, essentially, the need to ensure an adequate period of supervision upon release to encourage and reinforce the applicant's rehabilitation. I return to this matter in due course. The approach I have adopted is to propose a non-parole period in the first instance which reflects the special circumstance derived from the "personal factor", leaving until I have calculated the appropriate level of accumulation to make any adjustment that might be necessary for that reason.

59 Having regard to the effect of the application of a 50% discount for his pleas and assistance, it is necessary to consider the application of s 23(3) of the Crimes (Sentencing Procedure) Act 1999, which provides that a penalty that is reduced for assistance provided to law enforcement authorities "must not be unreasonably disproportionate to the nature and circumstances of the offence". It is of course to be accepted that the starting point will always be a sentence which is appropriate in all the circumstances and it must therefore follow that a reduction, especially a substantial reduction (such as 50%), will necessarily be significantly less than the sentence already assessed as appropriate. It is no doubt for this reason that mere disproportion is not prohibited but only a sentence which is " unreasonably disproportionate" to the offence. This, in the end, must be a matter of subjective judgment. I have taken this provision into account in proposing the sentences detailed below but, for brevity, have not expressly referred to it.

60 Each of the sentences that I propose reflects the synthesis of the objective and subjective features which I mention above and it is unnecessary to add further details. I have identified, for ease of reference, the offences to which Ellis factors apply, in part because they are, to my mind, relevant also to the issue of unreasonable disproportion. I have also borne in mind the statistics for individual sentences for offences under s 97(2) (275 cases) and s 112(1)(a) (256 cases) where there has been a plea of guilty, with prior convictions.

61 The prosecutor, also argued that in light of the principles in Veen v The Queen (No 2) (1988) 164 CLR 465 the length of the applicant's criminal record demonstrated that the sentences (both overall and individual) were justified for the purpose of (as I understand it) the protection of the community. Although the record of the applicant was a serious one, his remorse and prospects for rehabilitation demonstrated that this was not an instance in which such a consideration required the imposition of a sentence which reflected, as a significant element, the need for personal deterrence.

Count 1

62 Taking into account the stealing of the vehicle used in the offence, the starting point for the applicant's sentence was ten years with a non-parole period of six years. In my view, this sentence is manifestly excessive, having regard particularly to the applicant's remorse and the prospects for rehabilitation. I would propose a starting point of seven years with a non-parole period (in light of the personal factors to which I have referred, giving rise to special circumstances) of four years. Applying the utilitarian discount would result in a sentence of three years six months and a non-parole period of two years. It seems to me that this is unreasonably disproportionate to the facts and circumstances of the offence and, thus, must be upwardly adjusted. I propose a sentence of four years and six months with a non-parole period of three years.

Count 2

63 The commencing point for the sentence in this case was eight years with a non-parole period of four years, ultimately reduced to an overall sentence of four years with a non-parole period of two years. Although this is a case of breaking and entering residential premises, as such, it is to my mind at the less serious end of the scale of criminality. No persons, it appears, were present in the premises and placed in fear whilst the value of the property taken was relatively slight, though undoubtedly valuable to the owner. Ellis factors apply. In my respectful view, the sentence was manifestly excessive.

64 An appropriate starting point is two years and six months, with a non-parole period of one year and six months. Applying a discount of 50%, having regard to the applicant's plea of guilty and assistance to authorities, yields a sentence of one year and three months with a non-parole period of about nine months. In all the circumstances, having regard especially to the Ellis factors, I would not regard this sentence as being unreasonably disproportionate to the nature and circumstances of the offence.

Count 3

65 The starting point for this sentence was six years with a non-parole period of four years. This again was an offence to which Ellis applies. As I have already mentioned, the learned sentencing judge took into account as a mitigating feature the fact that the victims were persons involved in criminal activities. This was, with respect, a fundamental error of principle and contrary to one of the basic aims of the criminal law. The fact that the victims were his criminal associates could not mitigate his criminality . It is obvious that the applicant merely took advantage of the fact that his victims would not complain to the police. Even so, the presence of the Ellis factors persuades me that the sentence was manifestly excessive.

66 In my opinion, an appropriate starting point for this offence was four years and six months with a non-parole period of three years. A discount of 50% yields a sentence of two years and three months with a non-parole period of one year and six months. Having regard to s 23(3) of the Crimes (Sentencing Procedure) Act 1999, this sentence is unreasonably disproportionate to the facts and circumstances of the offence, even taking the Ellis features into consideration. I propose a sentence of three years with a non-parole period of two years.

Count 4

67 The sentence for this offence took into account the armed robbery committed on 11 April 2005 at the hotel in Kingsgrove, which occurred when the applicant was on a six months suspended sentence for driving whilst disqualified. The starting point for the sentence was 26 years overall with a non-parole period of ten years. As the maximum penalty for armed robbery with a dangerous weapon in company is 25 years it is evident that this sentence cannot stand. Leaving aside the legal error, it is at all events plain, with respect, that the robbery, although serious, did not (by a substantial margin) approach the most serious category, for which the maximum sentence might have been contemplated.

68 In my view, the starting point, taking into account the offence on the Form 1, should be ten years with a non-parole period of seven years. Applying the 50% discount yields an overall sentence of five years with a non-parole period of three years and six months.

Count 5

69 The starting point of the sentence for this offence was a term of eight years imprisonment with a non-parole period of four years. This offence was committed whilst on bail but, on the other hand, the applicant's involvement in this offence came to light because of his voluntary admissions. The premises were commercial premises, not a domestic residence. To my mind, the starting point of eight years was manifestly excessive. An appropriate sentence for this offence was, in my view, imprisonment for three years with a non-parole period of two years, in accordance with the statutory ratio. Application of the 50% discount would yield a head sentence of one year and six months with a non-parole period of one year.

Count 6

70 Taking into account the offence on the Form 1 the starting point for this sentence was ten years with a non-parole period of six years. Although this sentence was, to my mind, at the higher end of the range, I am not satisfied, considering especially the number of persons threatened, and the period for which a duty manager was restrained, that this was manifestly excessive. The adjusted sentence remains five years with a non-parole period of three years.

Count 7

71 The starting point for the sentence for this offence was ten years with a non-parole period of six years. This was a brief incident which ended when the applicant and his co-offender ran off after the two men they initially approached got the attention of other employees of the bowling club in question. The applicant's involvement in this offence became known when he voluntarily disclosed it to police. In my view the starting point was manifestly excessive. It is important that, where a serious crime is not pressed to completion, as by the offenders fleeing, there should be a marked differentiation in point of punishment from the completed offence, in order to encourage offenders to desist from further criminality even though the crime is under way. Objectively, an attempt to commit an offence will not be so serious as its commission or completion, although the subjective criminality, as it were, is not lessened where, as here, the crime is foiled by the intervention of others rather than a change of mind. In my view an appropriate head sentence for this offence was seven years with a non-parole period of five years. Applying the discount this would result in a head sentence of three years and six months with a non-parole period of two years and six months. Having regard especially to the way in which this offence came to light, in my view such a sentence would not be unreasonably disproportionate to the nature and circumstances of the offence.

Count 8

72 The starting point for this offence was eight years with a non-parole period of four years. This involved the breaking and entering into of commercial premises and theft of a vehicle, triggering an alarm which led the police to pursue the applicant. The vehicle was recovered by police when the applicant disclosed its whereabouts upon his arrest on 29 August 2008, the keys being found in his bag. In my view, the starting point of eight years was manifestly excessive. I propose a starting point of four years, with a non-parole period of two years and six months. Again, applying the 50% discount would result in an overall sentence of two years with a non-parole period of one year and three months.

Count 9

73 Taking into account the matter on the Form 1 (theft of a motor vehicle) the starting point for this sentence was ten years with a non-parole period of six years. The applicant's involvement in this offence became known because of his voluntary admissions. Had it not been for this, the starting point for the sentence would not have been manifestly excessive. In my view, the appropriate head sentence is eight years with a non-parole period of five years, thus a sentence, after the discount, of four years with a non-parole period of two years and six months.

Count 10

74 The starting point for this sentence was ten years with a non-parole period of six years. Again, Ellis factors apply. In my view the starting point was manifestly excessive. I would impose a sentence with a starting point of eight years with a non-parole period of five years, to be reduced by the 50% discount to four years with a non-parole period of two years and six months.

Dangerous driving: Section 166

75 The applicant was sentenced to a fixed term of 12 months imprisonment. The starting point was, accordingly, over double the maximum term, since a fixed term of two years implies at least a head sentence of two years and ten months. The appeal against this sentence must, accordingly, be allowed. This offence involved driving at excessive speeds in suburban streets and going through at least one red light. Although the facts do not allege any actual, as distinct from potential, danger, it is clear that the risk of serious injury and possibly worse was significant. The course of driving was not momentary or isolated but deliberately undertaken to avoid police apprehension on three occasions. About three months earlier the applicant had committed another offence of dangerous driving (whilst driving the vehicle used in the Count 4 offence), again involving a police pursuit. There was a collision and the applicant fled but was later found by police. He was on bail for this offence when he committed the later offence. This is a significant aggravating feature. In my view an appropriate sentence is a fixed term of seven months. The application of the discount would reduce this sentence to three months (rounded down).

Concurrency and accumulation

76 In Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 the approach to the question of accumulation and concurrency was (if I may respectfully say so) aptly summarised by Howie J (with whom the other members of the court agreed) as follows -

[27] In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.

77 Howie J referred to the following passage in R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481, commenting that in that case it was held to be appropriate to impose a sentence completely concurrent with sentences then being served by the offender even though the offence for which the sentence was imposed was a completely separate and discrete act of serious criminality -

[11] One of the limiting principles that constrains a sentencing court in seeking to promote the purposes of punishment is the principle of proportionality. Another is the, not-unrelated, principle of totality and it is this principle that operated in the present case. It is the application of the totality principle that will generally determine the extent to which a particular sentence is to be served concurrently or cumulatively with an existing sentence in accordance with statements of the High Court as to the operation of the principle in Mill v R (1988) 166 CLR 59 [, 36 A Crim R 468]; Pearce v R (1998) 194 CLR 610 [, 103 A Crim R 372] and Johnson v R (2004) 78 ALJR 616.

[12] In R v Holder (1983) 3 NSWLR 245 [, 13 A Crim R 375 at 389], Street CJ described the principle as follows: (at 260)

... The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing Judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing Judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences ...

[13] In some cases the fact that a sentence for a particular offence is to be served completely concurrently with another sentence for a different offence will result in a sentence that is erroneously inadequate because it does not reflect the totality of the criminality for which the offender was to be punished for the two acts of offending: see for example R v Brown [1999] NSWCCA 323. This may be so even if the two offences arise from the same precise criminal act, such as the dangerous driving of a motor vehicle on the one occasion: R v Janceski (No 2) [2005] NSWCCA 288 [(2005) 44 MVR 328]. The same principle has been applied to sexual assault offences arising from a single incident of sexual assault: R v Gorman (2002) 137 A Crim R 326. Although, it has been held that a determination of the extent, if any, that a sentence is to be served cumulatively with another sentence is an exercise of discretion on which minds might differ, R v Hammoud (2000) 118 A Crim R 66, that discretion is generally circumscribed by a proper application of the principle of totality.

78 The fundamental problem in the present case, in common with many cases where there are a number of offences for which an offender must be sentenced, is not so much whether the offences are completely separate occasions of criminality or part of one or more criminal enterprises but, rather, how to structure the sentences so that the ultimate overall sentence and non-parole period appropriately reflect the total criminality? It is also important, in cases where discounts have been applied, to ensure that the accumulation does not effectively reduce the discount, in short to take away with one hand what has been given by the other.

79 It seems to me that, in the present case the most useful approach is to identify the overall sentence which reflects the totality of the applicant's criminality and adjust the accumulation of the sentences as necessary to yield that result. In undertaking this task, it will follow that issues of distinct offences must be substantially disregarded, though this consideration will have played its part in the determination of the appropriate overall sentence.

80 Having regard to the purposes of setting the non-parole period and the parole period, it seems to me illogical to determine the non-parole period before applying the discount, since the proportion between the overall sentence and the effective non-parole period is not the only relevant parameter: the actual length of the parole period is also material and, of course, this will vary even though the proportion between head sentence and non-parole period is constant. Accordingly, I have specified an overall sentence reflecting the objective and subjective circumstances of the totality of criminality which, to my mind, would be the appropriate sentence but for the discount applicable for the early plea and assistance. After allowing the discount of 50%, I have then considered the adjustment that ought to be made to the statutory ratio because of special circumstances.

Proposed sentences

81 I propose an overall sentence as a starting point of 15 years. Applying the discount, results in an overall sentence of seven years and six months. The special circumstances relevant here are the effect of accumulation and the need to support the applicant's rehabilitation in the community after what will be a lengthy period in prison, requiring both supervision and the sanction of returning to prison if it were breached by another offence. In my view an appropriate parole period for this purpose is two years. It will be seen that percentage variation from the statutory ratio is rather less than those proposed for the individual sentences. This in part is explained by the need to individualise those sentences; but it is also necessary to apply the requirements of s 23(3) to the overall sentence, lest the policy of the provision be undermined by the accidental effects of accumulation. In short, any lesser non-parole period than five years and six months would be unreasonably disproportionate to the facts and circumstances of the offences considered as a whole. The commencement dates of the individual sentences have been adjusted to yield this outcome. The "internal" pattern of concurrency does not therefore reflect actual distinctions between the individual offences.

Count 1: taking into account the Form 1 offence committed on 14-15 October 2007 : A non-parole period of three years and six months commencing on 28 November 2007 and ending on 27 May 2011 with a balance of term of one year and six months commencing on 28 May 2011 and ending on 27 November 2012.

Count 2: A non-parole period of nine months commencing on 28 February 2010 and ending on 27 November 2010 with a balance of term of six months commencing on 28 November 2010 and ending on 27 May 2011.

Count 3: taking into account the Form 1 offence committed on 25 September 2007: A non-parole period of two years commencing on 28 November 2007 and ending on 27 November 2009 with a balance of one year from 28 November 2009 to 27 November 2010.

Count 4: taking into account the Form 1 offence committed on 11 April 2005: A non-parole period of three years and six months commencing 28 November 2008 and ending on 27 May 2012 with a balance of term of one year and six months commencing on 28 May 2012 and ending on 27 November 2013.

Count 5 : A non-parole period of one year commencing on 28 November 2008 and ending on 27 November 2009 with a balance of term of six months commencing on 28 November 2009 and ending on 27 May 2010.

Count 6: taking into account the Form 1 offence committed on 16-20 July 2008 : A non-parole period of three years commencing on 28 May 2010 and ending on 27 May 2013 with a balance of term of two years commencing on 28 May 2013 and ending on 27 May 2015.

Count 7: A non-parole period of two years and six months commencing on 28 May 2010 and ending on 27 November 2012 with a balance of term of one year commencing on 28 November 2012 and ending on 27 November 2013.

Count 8: A non-parole period of one year and six months commencing on 28 May 2010 and ending on 27 November 2011 with a balance of term of six months commencing on 28 November 2011 and ending on 27 May 2012.

Count 9: taking into account the Form 1 offence committed on 23 August 2008: A non-parole period of two years and six months commencing on 28 May 2010 and ending on 27 November 2012 with a balance of term of one year and six months commencing on 28 November 2012 and ending on 27 May 2014.

Count 10: taking into account the Form 1 offence committed 23 August 2008: A non-parole period of two years and six months commencing on 28 May 2010 and ending on 27 November 2012 with a balance of term of one year and six months commencing on 28 November 2012 and ending on 27 May 2014.

Section 166: A fixed term of three months commencing on 28 February 2013 and ending on 27 May 2013.

82 HOWIE AJ : I agree with Adams J.

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Decision last updated: 06 April 2011