Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Shortland v R [2013] NSWCCA 4
• Hearing dates: 30 August 2012
• Decision date: 01 February 2013
• Before: Hoeben JA at [1]; Johnson J at [2]; Button J at [167]

Decision

1. Grant leave to appeal against sentence.

2. Allow, in part, the appeal against sentences imposed at the Penrith District Court on 20 April 2010.

3. Confirm the sentences imposed with respect to Count 1, Count 2 (including the Form 1 offences), Count 4 and Count 5.

4. Quash the sentence imposed upon Count 6 and, in its place, sentence the Applicant to a non-parole period of two years commencing on 26 February 2011 and expiring on 25 February 2013, with a balance of term of one year commencing on 26 February 2013 and expiring on 25 February 2014.

5. With respect to Count 3, quash the sentence and, in its place, sentence the Applicant to a non-parole period of three years commencing on 26 February 2012 and expiring on 25 February 2015, with a balance of term of three years commencing on 26 February 2015 and expiring on 25 February 2018.

6. The earliest date upon which the Applicant will be eligible for release on parole is 25 February 2015.

• Catchwords: CRIMINAL LAW - sentence - violent attack by group of young men on another group of young men - Applicant sentenced first in time in District Court - Applicant sentenced for aggravated robbery in company inflicting grievous bodily harm in company - co-offenders sentenced later in District Court, Local Court and Children's Court - co-offenders sentenced for recklessly causing grievous bodily harm in company - all offenders participants in joint criminal enterprise - Judge and Magistrates who sentenced co-offenders not informed of sentences imposed upon Applicant - remarks on sentence of Applicant's sentencing Judge not supplied to later sentencing Judge and Magistrates - whether Applicant has legitimate sense of grievance - principle of parity or proportionality of sentences - strong desirability that co-offenders be sentenced by same Judge -necessity for remarks on sentence to be provided if related offender to be sentenced by different Judge or Magistrate - duty of Crown to ensure that remarks on sentence provided to different Judge or Magistrate - objective foundation demonstrated for Applicant's sense of grievance - very marked discrepancy between sentences even allowing for different charges and different jurisdictions - lesser sentences imposed upon Applicant
• Legislation Cited: Crimes Act 1900; Crimes (Sentencing Procedure) Act 1999; Children (Criminal Proceedings) Act 1987; Criminal Appeal Act 1912
• Cases Cited: Green v The Queen [2011] HCA 49; 244 CLR 462; R v Govinden [1999] NSWCCA 118; R v Colgan [1999] NSWCCA 292; Jones v The Queen (1993) 67 ALJR 376; Lowe v The Queen [1984] HCA 46; 154 CLR 606; Postiglione v The Queen [1997] HCA 26; 189 CLR 295; Dwayhi v R [2011] NSWCCA 67; 205 A Crim R 274; R v Chandler [2012] NSWCCA 135; Arenilla-Cepeda v R [2012] NSWCCA 267; Rae v R [2011] NSWCCA 211; Rees v R [2012] NSWCCA 47; Ng v R [2011] NSWCCA 227; 214 A Crim R 191; R v Wong [2003] NSWCCA 247; Muldrock v The Queen [2011] HCA 39; 244 CLR 120; Butler v R [2012] NSWCCA 23; Aldous v R [2012] NSWCCA 153; Zreika v R [2012] NSWCCA 44; R v Thalari [2009] NSWCCA 170; 75 NSWLR 307; Pearce v The Queen [1998] HCA 57; 194 CLR 610; R v Wright [2009] NSWCCA 3; R v JW [2010] NSWCCA 49; 77 NSWLR 7; Jinnette v R [2012] NSWCCA 217; R v GWM [2012] NSWCCA 240
• Texts Cited: ---
• Category: Principal judgment
• Parties: Jason Henry Shortland (Applicant); Regina (Respondent)
• Representation: Counsel: Mr T Gartelmann (Applicant); Ms JA Girdham SC (Respondent); Solicitors: Legal Aid NSW (Applicant); Solicitor for Public Prosecutions (Respondent)
• File Number(s): 2009/37224; 2008/19602
• Publication restriction: ---

Decision under appeal

• Citation: ---
• Date of Decision: 2010-04-20 00:00:00
• Before: His Honour Judge Frearson SC
• File Number(s): 2008/19602

Judgment

1 HOEBEN JA: I agree with the orders proposed by Johnson J and with his reasons. I particularly endorse his Honour's remarks not only as to the advisability, but the necessity, for sentencing judges and magistrates to be made aware of sentences passed on co-offenders and to be provided with the relevant remarks on sentence.

2 JOHNSON J: The Applicant, Jason Henry Shortland, seeks leave to appeal with respect to sentences imposed at the Penrith District Court on 20 April 2010 by his Honour Judge Frearson SC for a number of serious offences.

3 The Applicant pleaded guilty to a number of charges, leading to the imposition of the following sentences:

 

Offence	Maximum Penalty and Standard Non-Parole Period (“SNPP”) (if any)	Sentence
Count 1 - On 20 February 2008, break enter and steal at Willmot Friendly Grocer - a shop operated by Arvind Sahota, with alcoholic beverages being stolen (s.112(1)(a) Crimes Act 1900)	Maximum penalty of imprisonment for 14 years with no SNPP	Fixed term of imprisonment for two years commencing on 26 August 2008 and expiring on 25 August 2010
Count 2 - On 20 May 2008, robbery of Arvind Sahota at Willmot Friendly Grocer - with numerous packets of cigarettes and bottles of fortified spirits being taken (s.94 Crimes Act 1900)	Maximum penalty of imprisonment for 14 years with no SNPP	Imprisonment for a fixed term of three years commencing on 26 February 2009 and expiring on 25 February 2012   In passing sentence for this offence, the Court took into account, on a Form 1, offences of common assault (on 12 March 2008), larceny (on 12 March 2008) and common assault (on 20 May 2008)
Count 3 - On 21 May 2008, robbery in company with the infliction of grievous bodily harm (to Raymond Wilkinson) (contrary to s.98 Crimes Act 1900)	Maximum penalty of 25 years’ imprisonment with a SNPP of seven years	Imprisonment for a term of eight years, comprising a non-parole period of four years and six months commencing on 26 August 2012 and expiring on 25 February 2017, with a balance of term of three years and six months, commencing on 26 February 2017 and expiring on 25 August 2020
Count 4 - On 21 May 2008, aggravated robbery in company with the infliction of actual bodily harm (to Jai Field) (contrary to s.95 Crimes Act 1900)	Maximum penalty of 20 years’ imprisonment with no SNPP	Imprisonment for a fixed term of three years and six months commencing on 26 February 2010 and expiring on 25 August 2013
Count 5 - On 21 May 2008, aggravated robbery in company with the infliction of actual bodily harm (to William Wilkinson) (contrary to s.95 Crimes Act 1900)	Maximum penalty of 20 years’ imprisonment with no SNPP	Imprisonment for a fixed term of three years and six months commencing on 26 August 2010 and expiring on 25 February 2014
Count 6 - On 21 May 2008, recklessly causing grievous bodily harm (to Simon Perry) whilst in company (contrary to s.35(1) Crimes Act 1900)	Maximum penalty of 14 years’ imprisonment with a SNPP of five years	Imprisonment for a term of four years, comprising a non-parole period of three years commencing on 26 August 2011 and expiring on 25 August 2014, with a balance of term of one year commencing on 26 August 2014 and expiring on 25 August 2015

 

4 The total effective sentence of 12 years' imprisonment comprised a non-parole period of eight years and six months commencing on 26 August 2008 and expiring on 25 February 2017 with a balance of term of three years and six months commencing on 26 February 2017 and expiring on 25 August 2020.

Grounds of Appeal

5 The Applicant's Notice of Application for Leave to Appeal filed on 29 September 2011 notified certain grounds of appeal, which were amended on 14 March 2012. The amended grounds of appeal are as follows:

(a) Ground 1 - The Applicant has a justifiable sense of grievance arising from a lack of parity and/or due proportionality between the sentences imposed on him and the sentences imposed on his co-offenders.

(b) Ground 2 - The Judge erred in the approach taken to determining the sentences for the offences to which standard non-parole periods applied.

(c) Ground 3 - The sentence imposed for the offence of robbery in company with the infliction of grievous bodily harm (Count 3) is unreasonable or plainly unjust.

(d) Ground 4 - The aggregate sentence is unreasonable or plainly unjust.

Facts of Offences

6 The following recital of the offences is drawn from Statements of Facts which were tendered at the sentencing hearing.

Count 1 - Break Enter and Steal on 19 February 2008

7 At about 11.20 pm on Tuesday 19 February 2008, police received a radio message that an alarm was sounding at the "Willmot Friendly Grocer", a supermarket and liquor store situated at Willmot.

8 The police arrived at 11.28 pm to find the eaves of the store smashed and a case of Jim Beam bourbon whisky on the ground underneath the eaves. Two of the bottles from the case were smashed, and the other 10 bottles were missing.

9 The police spoke with witnesses who gave a description of a male offender.

10 The owner of the store, Arvind Sahota, and the owner of the Willmot Shopping Centre, Eduard Affolter, viewed the CCTV footage of the break-in and identified the Applicant, whom they knew from previous contact.

11 Three cases of Woodstock bourbon whisky and cola in 375 ml cans and a case of Jim Beam bourbon whisky (700 ml bottles) were stolen in this offence.

Count 2 - Robbery on 20 May 2008 and Common Assault (Form 1)

12 At about 7.30 pm on Tuesday 20 May 2008, the Applicant again entered the premises of the "Willmot Friendly Grocer".

13 The Applicant looked around for a few seconds, before reaching out to his right and grabbing hold of a newspaper stand, which divided the employee side of the counter from the public.

14 At this time, Susan Lawlis, an employee of the store, was standing at the cash register next to the newspaper stand. As the Applicant grabbed the newspaper stand, Ms Lawlis took hold of the other side of the stand to stop the Applicant gaining entry to the service side of the counter.

15 A short struggle then took place between the Applicant and Ms Lawlis, before the Applicant overpowered her by pushing the stand back and using his left hand to push Ms Lawlis out of the way, thereby gaining entry to the service area.

16 Ms Lawlis called out to the shop owner, Arvind Sahota, for assistance.

17 In fear of being assaulted further, Ms Lawlis ran to the phone to call the police. The Applicant then grabbed numerous packets of cigarettes and bottles of alcohol from the cigarette stand.

18 Meanwhile, Mr Sahota raced to the counter area in an attempt to get the Applicant to leave. The Applicant continually yelled "Fuck off or I will hit you over the head". Mr Sahota had a baseball bat in his hands to protect himself and his property. The Applicant used a bottle of alcohol, which he held by the neck of the bottle, to threaten Mr Sahota.

19 The Applicant ran out of the store with his pockets and arms full of cigarettes and alcohol. As he decamped, he dropped one 700 ml bottle of Black Douglas Scotch whisky.

20 Soon after, the Applicant again approached the store. Mr Sahota was forced to close the metal roller door to prevent the Applicant from entering the store and taking more items.

21 At midday on 26 June 2008, the Applicant was arrested and conveyed to Mt Druitt Police Station. The Applicant was interviewed by investigating police. He denied any involvement in the break and enter offence on 19 February 2008. The Applicant denied any involvement in the robbery on 20 May 2008. He admitted that he knew Mr Sahota, and that he had previously been banned from the store by Mr Sahota for stealing items, and for loitering near the store drinking alcohol and causing damage.

Form 1 Offences - Common Assault and Larceny on 12 March 2008

22 The material before the District Court did not provide details of these matters which were taken into account on a Form 1 on sentence for Count 2.

23 On 8 April 2008, the Applicant was arrested and charged in relation to the offences of common assault and larceny committed on 12 March 2008. He was granted bail and remained on bail until his arrest on 26 June 2008 with respect to Counts 1 and 2.

Counts 3, 4, 5 and 6 - Offences Committed on 21 May 2008

24 At about 11.30 pm on Wednesday, 21 May 2008, the four victims, Raymond Wilkinson, William Wilkinson, Jai Field and Simon Perry, left the St Marys Leagues Club after watching the State of Origin Rugby League match. The four victims walked across Forrester Road, North St Marys towards the Quix Service Station located on the corner of Forrester Road and Christie Street, North St Marys.

25 As they arrived at the Quix Service Station, a white Holden Premier driven by Donna Swain, pulled into the service station, and parked next to a petrol pump on the southern side. The Applicant and a co-offender, Jeffrey Chesher, got out of the vehicle and walked towards the store. As they approached the store, other co-offenders, John Ika, OI and JW also left the vehicle and approached the store.

26 The Applicant and Mr Chesher entered the store and purchased some food. They left the store and walked back towards the vehicle with the other co-offenders.

27 As they approached the vehicle, one of the offenders said to Mr Field and William Wilkinson, "Where are you boys from?" William Wilkinson replied, "Whalan". Mr Field said, "What are you boys up to tonight?" One of the offenders said, "Just out killing cunts". Mr Field then said, "How's that going for you?" The offenders did not reply. Mr Field then said, "See you later boys. Have a good night". One of the offenders replied, "See you later".

28 The offenders walked back towards Ms Swain's vehicle. Mr Field and William Wilkinson walked towards the corner of Forrester Road and Christie Street, where the other two victims were waiting for a taxi.

29 The offenders got back into Ms Swain's vehicle and she drove out of the Forrester Road exit of the Quix Service Station and turned left. Ms Swain drove in a northerly direction towards the four victims. As she drove past the victims, John Ika yelled from the vehicle, "Queenslanders!" Mr Perry yelled, "Go the Blues!".

30 Ms Swain drove slowly through the roundabout at the intersection of Forrester Road and Christie Street. As she went through the roundabout, John Ika yelled at her to stop the vehicle. All five offenders left the vehicle and ran towards the four victims.

31 The five offenders punched and kicked the victims repeatedly about the head and body region, causing them all to be knocked to the ground. During the assault and after being knocked to the ground, Mr Field recalls one of the offenders pulling at his pants trying to grab his wallet. He put his hand over his pocket to prevent it from being stolen, and was kicked in the head by another offender causing him to lose consciousness.

32 Whilst assaulting the victims, the offenders stole wallets from Raymond Wilkinson, William Wilkinson and Mr Field.

33 After knocking all victims to the ground, the offenders ran back to Ms Swain's vehicle and yelled at her, "Go, go, go!". Ms Swain began driving to her house at Willmot. During the drive, she saw the offenders passing wallets between themselves and heard one of the offenders say "If there's money in them, we'll split it".

34 After arriving at Ms Swain's house, the offenders started a small fire on the roadway and burnt the victims' wallets.

35 Police and ambulance officers attended the victims a short time later. Police obtained security CCTV footage from the Quix Service Station, displaying Ms Swain's vehicle and the five offenders.

36 A search warrant was obtained for Ms Swain's home and, at about 5.00 am, investigators attended her Willmot address and executed the search warrant. During the search, police located a black leather wallet which was partially burnt on the roadway outside Ms Swain's house.

37 Police also located Raymond Wilkinson's black leather wallet containing numerous cards and papers in his name. Ms Swain's vehicle was searched and police observed what appeared to be blood located on the right wheel arch. The vehicle was seized and towed to St Marys Police Station for forensic examination.

38 After the execution of the search warrant, Ms Swain was conveyed to St Marys Police Station to provide a statement. She identified the Applicant as one of the five offenders whom she saw assault the four victims. A second statement was obtained from Ms Swain at a later date, in which she identified all of the offenders.

39 As a result of the assaults, Raymond Wilkinson's jaw was broken in three places. He required surgery and the insertion of a number of screws and plates. He suffered a great deal of pain and was unable to eat or talk for a number of weeks. During the incident, his wallet containing about $160.00 was stolen.

40 William Wilkinson sustained two black eyes, swelling to his face, large lumps to both his temples, numerous cuts to his mouth and a front tooth was snapped in half. During the incident, his wallet containing about $70.00 was stolen.

41 Mr Field sustained swelling to his right temple, swelling to his left cheek, a cut to the end of his tongue, grazed knees and soreness to his head and neck. During the incident, his wallet containing $100.00 was stolen.

42 Mr Perry sustained a fractured right cheekbone and swelling to his entire face. The fracture required surgery and the insertion of 11 screws and two plates.

43 On 26 February 2009, investigators attended Silverwater Gaol and arrested the Applicant. He participated in a record of interview with police. He said that he remembered the incident and assaulting someone, but did not know anything about a robbery.

The Applicant's Subjective Circumstances

44 The Applicant was 21 years' old at the time of the offences and 23 years of age at the time of sentence.

45 The Applicant has a criminal history extending back to 2001 for a range of offences including offences of violence, dishonesty and driving offences. His criminal history included the following:

(a) offences in March 2003 of aggravated robbery (two counts) for which he was ordered to perform 50 hours' community service, and offences of assaulting and resisting police and driving a conveyance taken without consent, for which 12 months' probation was granted;

(b) common assault in August 2003 for which six months' probation was ordered;

(c) mid-range PCA and other driving offences in September 2003, for which he was fined and disqualified;

(d) larceny in November 2003, for which he was fined;

(e) in June 2004, the Applicant was called up for breach of probation and a suspended control order was granted;

(f) in July 2004, probation was granted for a common assault;

(g) in April 2005, a sentence in the form of a seven-day control order was passed for common assault;

(h) in July 2005, the Applicant was called up for breach of probation, and a seven-month control order, with a non-parole period of three months, was imposed;

(i) on 22 September 2006, the Applicant was sentenced in the Penrith District Court for assault occasioning actual bodily harm, assaulting police, common assault and not leaving a registered club, with a total effective term of imprisonment for one year and four months, with a non-parole period of seven months expiring on 13 October 2006 and a balance of term to expire on 13 July 2007;

(j) on 27 April 2007, the Applicant was sentenced at the Wyong Local Court, for possession of housebreaking implements and larceny, to fixed terms of six months' imprisonment, commencing on 18 April 2007 and expiring on 17 October 2007;

(k) on 11 May 2007, the State Parole Authority revoked the Applicant's parole order and he was ordered to serve balance of parole expiring on 13 July 2007;

(l) on 23 January 2008, the Applicant was sentenced at the Penrith Local Court for affray, failing to quit premises and, by way of call up for an offence of assault police, to 12 months' imprisonment suspended under s.12 Crimes (Sentencing Procedure) Act 1999.

46 The Applicant was subject to this suspended sentence at the time of the commission of all offences for which he was sentenced on 20 April 2010.

47 On 12 March 2010, the Applicant appeared at the Penrith Local Court by way of call up for breach of his suspended sentence, and the sentence of 12 months' imprisonment was imposed with a non-parole period of nine months expiring on 11 December 2010. This sentence was entirely concurrent with the subject sentences imposed at the Penrith District Court on 20 April 2010.

48 Before the sentencing Judge were presentence reports dated 21 July 2009 and 8 April 2010, together with a report of Misia Temler, psychologist, dated 27 February 2009. In addition, the Applicant's father gave evidence at the sentencing hearing before the Penrith District Court on 16 April 2010.

49 His Honour made extensive reference to these reports in his remarks on sentence. The Applicant's parents separated when he was three years' old and the Applicant left home at the age of 14 years. The documentary evidence indicated abuse of alcohol and drugs by the Applicant's parents.

50 His Honour referred to the Applicant's education and employment history and his drug and alcohol abuse:

"The offender has only a minimal education and limited employment history for short term labouring jobs and he partially completed a TAFE course after leaving school and had commenced a traineeship in 2007, however his arrest prevented him from completing the course. It is obvious before I even go any further that his real problem is that, he cannot discipline himself. Mr Shortland stated that he commenced drinking alcohol in his early teens and indicated that this increased steadily until he was arrested and placed on remand for the current offences, and on an average day he would drink spirits at 10am and continue drinking with his peers until drunk and he claimed that his own mother introduced him to cannabis at twelve. He quickly increased

smoking on a daily basis and by sixteen he was also using methylamphetamine on a daily basis and taking ecstasy on the weekends. He justified his use of ecstasy stating that it made him less aggressive than if he drank alcohol."

51 A little later, his Honour said:

"He stated that alcohol has been a contributing factor in all his offences and understood the need to address the issue, and in order to reduce his high risk of re-offending. He is currently classified as an A2 maximum security inmate at Parklea and he is a compliant inmate which is in his favour. The offender has not commenced any programs to address his anger or drug or alcohol issues whilst in custody. It is in his favour that he presents as polite. He is immature but he is polite and that is in his favour. He accepts readily the impact of alcohol and negative peer associations on his offending behaviour; but he has not developed any strategies to overcome it."

52 His Honour referred to the psychological report concerning the Applicant:

"There is an intelligence testing, his performance IQ is fine, it is at 108. He has some verbal difficulty. The profile is indicative of a substance abuse substance dependence disorder which seems obvious and the impression is that he is an immature young man, his behaviour has been shaped by his unstable upbringing and early and ongoing exposure to violence, drugs and alcohol and his needs problem [sic] with addressing his aggression, impulsiveness and anger management."

53 The sentencing Judge then addressed issues of remorse and the Applicant's prospects of rehabilitation:

Here is a young man who faces very serious charges and a young man who has had a destabilising and deprived background and a very unfortunate background. There are some expressions of remorse but the expressions of remorse in the report are self serving expressions. I do accept that there is some element of remorse in what he says, but I do conclude that the main focus is upon himself and there is not really any satisfactory evidence that he is actually sorry for what he has done to other people.

As to the likelihood of re-offending, the sad fact is that to date in his life he has never exhibited any discipline about anything, and when one looks at the opportunities he has had to embrace some attitudinal change. He has consistently turned his back on rehabilitation and one could never conclude at the moment that he is unlikely to re-offend. At the moment he has not come to terms with his problems and he has not developed the resolve to act as a responsible citizen. As to prospects of rehabilitation, he is young and one would have to say there is always some prospect with a young man, that one day they will see the light and I do regard his prospects of rehabilitation as fair. You could never conclude they are good but they are fair, principally because of his age."

54 The sentencing Judge adverted to other issues, including the Applicant's youth and substance abuse issues:

"He is a young man and he was a young man when he committed the offences but his age was not such as to preclude any lack of appreciation for the gravity of what he was doing. Any person of his age would know that these are serious matters and you cannot conduct yourself in this way without there being consequences and without being held accountable. I do not consider that his addictions diminish the objective gravity of the offence or his background diminishes the objective gravity, I do consider it provides a good explanation as to why he is here, but I do not consider it diminishes the objective gravity; at least not significantly. But it is obviously relevant as part of the subjective circumstances."

Sentences Imposed on Co-Offenders in Respect of Offences of 21 May 2008

55 The first ground of appeal arises from sentences imposed upon the Applicant's co-offenders in different Courts after the Applicant was sentenced in April 2010. Given the submissions made in this Court, to which I will return, it is appropriate to identity with some precision the offences for which each person was sentenced, the Court in which sentence was imposed, as well as the sentences actually passed.

56 As will be seen, it is the extraordinary fact that none of these other sentencing Courts were informed of the sentences imposed upon the Applicant, let alone provided with the remarks on sentence of his Honour Judge Frearson SC.

Jeffrey Chesher Sentenced in the Local Court on 2 July 2010

57 On 2 July 2010, Jeffrey Chesher was sentenced by Magistrate Viney in the Penrith Local Court, following his plea of guilty to charges of recklessly causing grievous bodily harm in company (two counts) and assault occasioning actually bodily harm in company (two counts). For reasons that were not explained before this Court, the charges against Mr Chesher were disposed of summarily in the Local Court.

58 Mr Chesher was 23 years' old at the time of the offences and 25 years' old at the time of sentence. He had a record of prior convictions, including offences of violence, and had previously been sentenced to imprisonment for such offences. He was subject to conditional liberty at the time of the present offences. He pleaded guilty to the offences, but not at an early opportunity, with the sentencing Magistrate stating that the pleas had "some utilitarian value".

59 A term of imprisonment was imposed for each offence:

(a) for each of the two offences of recklessly causing grievous bodily harm in company, Mr Chesher was sentenced to imprisonment for 16 months from 2 July 2010, with a non-parole period of 10 months;

(b) for each of the two offences of assault occasioning actual bodily harm in company, Mr Chesher was sentenced to imprisonment for 10 months from 2 December 2010, with a non-parole period of seven months.

60 The sentences were partially accumulated by a period of five months.

61 The total effective sentence for Mr Chesher comprised imprisonment involving a non-parole period of 12 months commencing on 2 July 2010, with a balance of term of four months.

62 Mr Chesher appealed to the District Court against severity of sentence. On 6 September 2010, he withdrew his appeal before the Penrith District Court, and the sentences were confirmed, to date from that day.

63 It is a surprising and disturbing feature that the remarks on sentence of his Honour Judge Frearson SC concerning the Applicant were not brought to the attention of Magistrate Viney in the sentencing proceedings against Mr Chesher. As a consequence, no parity issue arose for consideration. I will return to this topic later in this judgment.

John Ika Sentenced in the District Court on 7 October 2010

64 John Ika was sentenced at the Penrith District Court by Acting Judge Madgwick QC on 7 October 2010. Like Mr Chesher, Mr Ika pleaded guilty to charges of recklessly causing grievous bodily harm in company (two counts) and assault occasioning actual bodily harm in company (two counts).

65 Mr Ika was aged 19 years at the time of the offences and 22 years at the time of sentence.

66 Mr Ika had a limited record of prior convictions. In the Children's Court, a non-custodial order had been made for an offence of robbery. In the Local Court, he had been convicted of driving offences. He had not previously been sentenced to imprisonment. The sentencing Judge said that "in terms of [offences of] violence", Mr Ika was "entitled to be dealt with as if this was his first offence" (ROS3).

67 Acting Judge Madgwick QC characterised Mr Ika as the "ring leader" or "precipitating agent" in the incident on 21 May 2008 (ROS6).

68 Mr Ika pleaded guilty at the earliest available opportunity and a 25% discount was allowed for the utilitarian value of his pleas.

69 Once again, it is a surprising and disturbing feature that Acting Judge Madgwick QC was not informed of the sentences which had been passed upon the present Applicant on 20 April 2010.

70 This Court was informed that the Crown representative had apparently formed the view that the differences between the position of the Applicant, and that of Mr Ika, were so great that an issue of parity or proportionality did not arise. This approach reflects a fundamental misunderstanding of the relevant principles and the role of the Crown which, in this case, has contributed to a highly unsatisfactory state of affairs.

71 It was the duty of the Crown representative to furnish to Acting Judge Madgwick QC the remarks on sentence of his Honour Judge Frearson SC concerning the Applicant. Submissions could then be made by the Crown and Mr Ika's counsel concerning parity issues by reference to the sentences imposed upon the Applicant. However, this did not happen.

72 Instead, Acting Judge Madgwick QC was informed of the sentences imposed in the Local Court upon Mr Chesher. No sensible explanation was provided to this Court as to how the remarks on sentence concerning Mr Chesher were provided to his Honour, but not those relating to the Applicant.

73 Acting Judge Madgwick QC concluded on this issue (ROS6):

"All in all, having regard to the principles of parity that constrain a sentencing judge, I think I would fall into error if I were to sentence the prisoner to more than the head sentence that Chesher received."

74 In reaching this conclusion, his Honour acknowledged the jurisdictional limit on sentence in the Local Court, but observed that the sentences imposed upon Mr Chesher fell short of that limit.

75 With respect to the issue of accumulation, his Honour said (ROS6):

"I would ordinarily partially accumulate the sentences but in the circumstances it would be pointless to do so."

76 It was submitted in this Court that his Honour was referring here to considerations of parity with respect to the sentences imposed upon Mr Chesher in the Local Court.

77 For each of the offences of recklessly cause grievous bodily harm in company, Mr Ika was sentenced to imprisonment for two years comprising a non-parole period of 11 months commencing on 31 May 2010, with a balance of term of 13 months. The sentences were to be served concurrently.

78 For each of the offences of assault occasioning actual bodily harm in company, Mr Ika was sentenced to a fixed term of imprisonment for six months commencing on 31 May 2010, to run concurrently with each other and with the sentences imposed on the other counts.

79 The total effective sentence imposed upon Mr Ika was imprisonment for two years, comprising a non-parole period of 11 months and a balance of term of 13 months.

OI Sentenced in the Children's Court on 13 July 2011

80 The co-offender, OI, was dealt with by Magistrate Sbrizzi at the Parramatta Children's Court on 13 July 2011. He was sentenced for offences of recklessly causing grievous bodily harm in company (two counts) and assault occasioning actual bodily harm in company. He was ordered to perform 250 hours of community service and was placed on 12 months' probation.

81 OI was aged 17 years and 11 months at the time of the offences and was 21 years' old at the time of sentence.

82 Amongst other factors, the sentencing Magistrate had regard to the fact that OI had spent a period of four months and 25 days in custody.

83 There is no indication that the Magistrate sentencing OI in the Children's Court was informed of the sentencing outcome for the Applicant, let alone being provided with the remarks on sentence of his Honour Judge Frearson SC of 20 April 2010.

JW Sentenced in the Children's Court on 10 August 2011

84 JW was sentenced by Magistrate Sbrizzi at the Parramatta Children's Court on 10 August 2011 for offences of recklessly causing grievous bodily harm in company (three counts) and assault occasioning actual bodily harm in company. In respect of each offence, a suspended control order was imposed under s.33(1B) Children (Criminal Proceedings) Act 1987 for periods of between six and 12 months.

85 JW was aged 17 years and four months at the time of the offences and was 21 years' old at the time of sentence.

86 In sentencing OI and JW, the Children's Court Magistrate referred to the passage of time since the offences (more than three-and-a-half years) and the changed circumstances of each offender (each had become a father by 2011) as being relevant to sentence.

87 In sentencing JW, Magistrate Sbrizzi referred to the early sentencing of OI, which his Honour distinguished on several bases.

88 Once again, it does not appear that the Magistrate sentencing JW was informed of the sentence imposed upon the Applicant, let alone being supplied with the remarks on sentence.

Ground 1 - The Parity/Proportionality Ground

Submissions of the Applicant

89 Mr Gartelmann, counsel for the Applicant, submitted that there is a gross lack of parity and/or due proportionality between the sentences imposed on the Applicant, and those imposed on his co-offenders arising out of the 21 May 2008 incident. Whilst acknowledging that any comparison of their respective sentences must take into account relevant differences, including different offences and jurisdictions and the respective subjective cases of the offenders, he submitted that the differences did not preclude the asserted lack of parity and/or due proportionality from giving rise to a justifiable sense of grievance on the part of the Applicant.

90 Mr Gartelmann submitted that the sentences imposed on the Applicant may reasonably be compared with those imposed on the two adult co-offenders (Mr Chesher and Mr Ika). Whilst acknowledging that Mr Chesher was sentenced in the Local Court where jurisdictional limits apply, he submitted that the sentences imposed on him were well below applicable limits and that it did not appear that this was a significant factor in determining the sentences.

91 Whilst acknowledging as well that the standard non-parole periods applicable in sentencing the Applicant did not apply in sentence proceedings in the Local Court, Mr Gartelmann submitted that this did not preclude proper comparison of the respective sentences. He observed that Acting Judge Madgwick QC, in sentencing Mr Ika, considered that a reason for departure from the standard non-parole periods was the requirement of parity with respect to the sentences imposed on Mr Chesher.

92 Mr Gartelmann submitted that Mr Chesher and Mr Ika were each sentenced for an identical offence of recklessly causing grievous bodily harm in company, and that their respective sentences for this offence may readily be compared with the sentence imposed upon the Applicant for Count 6. Whilst the other offences for which they were sentenced differed, he submitted that the differences are not such as to preclude a comparison of the sentences imposed for them.

93 Whilst acknowledging that (unlike the Applicant), Mr Chesher and Mr Ika were not sentenced for offences of robbery, counsel pointed to the similarity between other offences for which they were sentenced. He submitted that the Applicant's offences, and those of the co-offenders, each comprised elements of violence causing harm, constituted in each case by the same facts.

94 Mr Gartelmann submitted that the sole discrete and different element in the Applicant's offences was the taking of property. He acknowledged that the differing maximum penalties and standard non-parole periods applicable to the offences must be taken into account, but submitted that neither the differing elements, nor the penalties applicable to the offences, was such as to preclude comparison of the sentences: Green v The Queen [2011] HCA 49; 244 CLR 462 at 473-474 [30].

95 Counsel submitted that the differences between the offenders' respective subjective circumstances were such as to require differentiation in their respective sentences. However, they were not such as to justify the extent of disparity, or lack of proportionality, that resulted. He submitted that they did not justify the differing levels of accumulation of sentences for the offences arising from the incident - in the Applicant's case, a period of two years and six months; in Mr Chesher's case, a period of five months and in Mr Ika's case, the sentences were wholly concurrent.

96 With respect to the co-offenders sentenced in the Children's Court, OI and JW, Mr Gartelmann acknowledged the need to take into account the constraints of the sentencing regime in that Court. However, he submitted that those sentences are not irrelevant in considering whether the Applicant's sense of grievance is justifiable: R v Govinden [1999] NSWCCA 118; R v Colgan [1999] NSWCCA 292.

97 Mr Gartelmann submitted that the intervention of this Court is warranted in order to mitigate a justifiable sense of grievance on the part of the Applicant, arising from a lack of parity and/or due proportionality between the individual and aggregate sentences imposed on him and those imposed on his co-offenders for the 21 May 2008 offences.

Crown Submissions

98 The Crown submitted that the asserted amenability to comparison urged by the Applicant in this case is so qualified that any practical utility is artificial and meaningless.

99 The Crown emphasised that none of the other four participants in the joint criminal enterprise faced the exact same combination of offences as the Applicant, and that all but one was dealt with in the context of very different regimes (the Children's Court and the Local Court). Further, it was submitted that the differences in each offender's subjective cases were stark.

100 With respect to the Applicant, the Crown pointed to the other unrelated offences for which the Applicant was sentenced, together with the fact that each of his offences was committed in breach of a suspended sentence and whilst the Applicant was on bail, so that issues of personal deterrence and the need to protect the community loomed large.

101 Further, the Crown submitted that the Applicant's criminal history was significant, and could be distinguished from those of the other offenders.

102 With respect to the sentence imposed on Mr Ika by Acting Judge Madgwick QC on 7 October 2010, the Crown noted that he was sentenced for two offences of recklessly causing grievous bodily harm in company (upon Raymond Wilkinson and Simon Perry), and two counts of assault occasioning actual bodily harm committed in company (upon William Wilkinson and Jai Field). It was emphasised that the sentencing Judge had not been informed of the sentences imposed upon the Applicant, with the parity argument proceeding by reference to the Local Court sentences imposed upon Mr Chesher.

103 The Crown submitted that, having received the benefit of two generous and arguably erroneous determinations, together with a finding of special circumstances, Mr Ika was sentenced to entirely concurrent sentences of imprisonment with him being released to parole on 30 April 2011, and with his sentence expiring entirely on 30 May 2012.

104 The Crown submitted that it was difficult to see how these sentences could be said to reflect the need for general or personal deterrence, and that entirely concurrent sentences did not appear to reflect the criminality in offences committed against different victims. The Crown submitted that the imposition of an excessively lenient sentence on one co-offender (Mr Ika) does not have the automatic consequence that a similar error should be made in the case of another on appeal (the Applicant).

105 The Crown submitted that the only offence with commonality as between the different offenders was the offence of recklessly causing grievous bodily harm to Mr Perry (Count 6), for which Mr Ika was sentenced to two years' imprisonment, and for which a sentence of four years' imprisonment was imposed on the Applicant. However, the Crown submitted that the structure of the sentences imposed upon the Applicant was such that the Applicant will serve no term of imprisonment solely referrable to this offence, with considerations of totality requiring that it be completely subsumed in the sentences imposed on the other matters.

106 The Crown submitted that there was no unjustified disparity in this case. The sentence imposed on Mr Ika for the relevant offence, it was submitted, was not such as to give rise to a legitimate or justifiable sense of grievance on the Applicant's part. Nor would it give the appearance in the mind of an objective observer that justice had not been done.

107 The Crown submitted that, even if it were determined that unjustified disparity was demonstrated, there is no obligation to reduce a sentence to one which is inadequate: Green v The Queen at 475-476 [33].

Determination

108 It is open to the Applicant to advance a parity or proportionality ground in this Court by reference to sentences imposed subsequently upon co-offenders: Jones v The Queen (1993) 67 ALJR 376.

109 It is necessary, once again, for this Court to repeat some fundamental propositions concerning the sentencing of co-offenders.

110 The High Court of Australia and this Court have emphasised repeatedly the strong desirability of co-offenders being sentenced by the same sentencing Judge or, if that is not practicable, the second sentencing Judge being fully informed of the sentence imposed upon a co-offender by the first sentencing Judge, with the remarks on sentence of that Judge being provided to assist and inform the sentencing process: Lowe v The Queen [1984] HCA 46; 154 CLR 606 at 617, 622; Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at 320; Dwayhi v R [2011] NSWCCA 67; 205 A Crim R 274 at 284-286 [32]-[47]; R v Chandler [2012] NSWCCA 135 at [94]-[96]; Arenilla-Cepeda v R [2012] NSWCCA 267 at [52], [87].

111 It is also necessary to mention features relevant to an assessment of a parity ground of appeal, where different Judges have sentenced co-offenders. In Rae v R [2011] NSWCCA 211, with the concurrence of McClellan CJ at CL and Hidden J, I said at [52]-[56]:

"52 There are significant advantages where related offenders are sentenced by the same Judge at the same time, with remarks on sentence containing factual findings and conclusions concerning the relative criminality of the offenders and differing subjective features of each of them: R v Swan [2006] NSWCCA 47 at [71]; Gurney v R; Willetts v R [2011] NSWCCA 48 at [81]-[82]; Dwayhi at [39]-[43].

53 Different Judges may take different views as to the relevant culpability of related offenders: Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at 320; R v Mercieca [2004] VSCA 170 at [6]; Dwayhi at [35], [37].

54 Where co-offenders are dealt with separately, there may be differences in the substratum of facts upon which the different sentencing Judges act and the impressions formed by them with respect to the relative roles, levels of responsibility and prospects of rehabilitation of the individuals involved, with this flowing in part from the different emphases which can be expected to be placed on aspects of the offending behaviour and the circumstances of the offenders: R v Rodden [2005] VSCA 24 at [28]; Dwayhi at [38].

55 Strong maintenance of the practice of related offenders being sentenced by the same Judge at the same time will serve the public interest in consistent and transparent sentencing of related offenders which underlies the parity principle itself: Dwayhi at [46].

56 A recurring theme in the authorities is that, where co-offenders are sentenced after hearings before different Judges, there may be different evidence and submissions, leading to different conclusions being expressed by the sentencing Judges concerning criminal conduct of persons involved in the same criminal enterprise."

112 For the purpose of determining this appeal, I gratefully adopt the statement of principles of Garling J in Rees v R [2012] NSWCCA 47 at [50]:

"So far as I understand it, the authorities on the application of the parity principle in circumstances such as those with which this court is presented in this case, provide the following principles:

(1) The parity principle is an aspect of equal justice, which requires that there be consistency in punishment. Unequal treatment under the law is likely to lead to an erosion of public confidence in the integrity of the administration of justice: Lowe at 610-611 per Mason J; Postiglione at 301 per Dawson and Gaudron JJ, at 335 per Kirby J; Green v R; Quinn v R [2011] HCA 49 at 28 and 30 per French CJ, Crennan and Kiefel JJ;

(2) Because the function of imposing a sentence on an individual has a discretionary character, an appellate court will ordinarily be reluctant to intervene. There is no such thing as perfect consistency in sentencing. A search for perfect consistency is to look for the unattainable and will frequently be an exercise of academic abstraction: Postiglione at 336-7 per Kirby J, R v M (CA) (1996) 105 CCC (3d) 327 at [92] per Lamer CJ;

(3) Hence, the discrepancy required to be identified between sentences is one which is not merely an arguable one, but one which is 'marked', or 'clearly unjustifiable', or 'manifest ... such as to engender a justifiable sense of grievance' or else it '[appears] that justice has not been done': Lowe at 610 per Gibbs CJ (Wilson J agreeing), at 613 per Mason J, at 623-624 per Dawson J; Postiglione at 301 per Dawson and Gaudron JJ, at 323 per Gummow J, at 338 per Kirby J; R v Taudevin [1996] 2 VR 402 at 403 per Hampel AJA, at 404 per Callaway JA; DGM v R [2006] NSWCCA 296 at [46] per Latham J (McColl JA agreeing); Green at [31] per French CJ, Crennan and Kiefel JJ, at [105] per Bell J;

(4) The elimination of an 'unjustified' discrepancy is a matter of importance not just to the individual concerned, but to the administration of justice in the community more generally. This court is therefore concerned not with whether an appellant actually feels a sense of grievance, that is, a subjective test, but rather whether, examined objectively, the sense of grievance is a justifiable one, namely that a reasonable mind looking over all of what happened would see that a grievance was justified. In other words, the matter is considered objectively: Lowe at 613 per Mason J; R v Kelly [2005] NSWCCA 280 ; 155 A Crim R 499 at [11] per Johnson J (Simpson J agreeing); Postligione at 338 per Kirby J; Green at [31] per French CJ, Crennan and Kiefel JJ.

(5) In determining whether there has been a discrepancy of a kind sufficient to give rise to a justifiable sense of grievance, a court:

(i) must consider not just the head sentence, but all components of the sentence including the non-parole period and the total effective period that both offenders will serve: Postiglione at 303 per Dawson and Gaudron JJ, at 338 per Kirby J;

(ii) must also consider all of the facts and circumstances applicable to both individuals involved, including the objective seriousness of the offence, in order to identify whether a differential sentence was justified; Green at [30] per French CJ, Crennan and Kiefel JJ;

(iii) ought not intervene to reduce a sentence below a level, which would mean that the sentence would be wholly inadequate having regard to the offence involved and the criminality of the offender, and consequently the result would be an affront to the proper administration of justice: R v Chen [2002] NSWCCA 174 ; 130 A Crim R 300 at [289] per Heydon JA, Sully and Levine JJ; DGM at [58] per Latham J (McColl JA agreeing); Kelly at [12] per Johnson J (Simpson J agreeing); Green at [33] per French CJ, Crennan and Kiefel JJ."

113 It is necessary for the Applicant to demonstrate an objective foundation for his sense of grievance so as to render it legitimate. In Ng v R [2011] NSWCCA 227; 214 A Crim R 191, Bathurst CJ, James J and I said at 210 [82]:

"Where there is a degree of disparity so as to invite a reduction in the sentence imposed, it is not necessary for this Court to intervene if the result of doing so is to produce a sentence disproportionate to the objective and subjective circumstances. This Court will not necessarily intervene where the co-offender's sentence is so inadequate that the Court should not take it into account: Lewins v R at [7]; Dwayhi at 280-281 [21]."

114 In Green v The Queen, French CJ, Crennan and Kiefel JJ observed at 476 [33]:

"Whether or not the discretion to reduce a sentence to an inadequate level is available, marked and unjustified disparity may be mitigated by reduction of the sentence appealed against to a level which, although lower, is still within the range of appropriate sentences."

115 With these principles in mind, I approach the circumstances of this case.

116 The reason why Mr Chesher was dealt with in the Local Court, rather than the District Court, was not explained before this Court. This reflected a generous approach on the part of the Crown, which had the effect of preventing the same sentencing Judge or Court dealing with Mr Chesher. There was an associated advantage to Mr Chesher in that the standard non-parole period had no application in his case and the jurisdictional limit upon sentence in the Local Court applied. The position was compounded by the serious failure of the Crown to inform the presiding Magistrate of the sentences imposed upon the Applicant on 20 April 2010, and to furnish the remarks on sentence to the Local Court. It was for the sentencing Magistrate to consider the relevance of the Applicant's sentence to that Court's function, with the assistance of submissions from the parties. It was not for the Crown to withhold the remarks on sentence from the Local Court.

117 The problem is magnified further when one comes to the case of Mr Ika, the single co-offender actually dealt with in the District Court. His sentencing proceedings were conducted before a different Judge. Moreover, the sentencing Judge in Mr Ika's case was not even informed of the sentences imposed upon the Applicant, let alone provided with the remarks on sentence.

118 However, this did not prevent a type of parity argument being advanced in the District Court by reference to the sentences imposed upon Mr Chesher in the Local Court. As a result, a distorted, incomplete and lop-sided parity argument was advanced in the case of Mr Ika, by reference to sentences imposed in the Local Court (with its jurisdictional limit) and with standard non-parole periods having no application, but with no reference at all to the sentences imposed upon the Applicant at an earlier point in time.

119 A fair-minded and objective member of the public might well wonder how all this occurred. With respect, the fact that it happened does not inspire public confidence in the criminal justice system. Erosion of public confidence in the integrity of the administration of justice is a recognised concern where the parity principle is to be considered: Rees v R at [50](1) (set out at [112] above).

120 The ages of OI and JW led to each of those offenders being dealt with in the Children's Court.

121 With respect to offenders dealt with in the Children's Court, it is necessary for this Court to recognise that sentencing took place in a very different sentencing regime, but that does not mean that the sentences imposed in the Children's Court are irrelevant: R v Colgan at [15]; R v Wong [2003] NSWCCA 247 at [35]. Further, the fact that co-offenders were to be sentenced in the Children's Court was not a reason to withhold from the presiding Magistrate the remarks on sentence concerning the Applicant.

122 There can be significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different crimes. The greater the difference between the crimes, the greater the difficulties, particularly where disparity is said to arise from a sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the Applicant: Green v The Queen at 473-474 [30].

123 There are clear differences between the offences and penalties for which the various offenders came to be sentenced. There are also significant differences between the subjective circumstances of the various offenders, with the Applicant's position being worse than that of the other offenders.

124 The Applicant was sentenced first in time with a substantial total effective term of imprisonment being passed for the offences which occurred on 21 May 2008.

125 The Applicant's co-offenders thereafter received vastly different and lesser sentences.

126 As the Applicant was sentenced first in time, he had no control over what was done thereafter on the prosecution or defence side with respect to his co-offenders. The Applicant might readily expect that the sentences imposed upon him would be brought to the attention of the judicial officers who came to sentence his co-offenders for the 21 May 2008 offences. However, this did not happen.

127 Despite the very significant points of difference in charge selection and jurisdiction as between the various offenders, and despite the markedly lenient penalties imposed upon Mr Ika in the District Court, I am nevertheless persuaded that there is an objective foundation for a sense of grievance on the part of the Applicant, as a result of the sentences imposed on the other offenders involved in the serious crimes committed on 21 May 2008.

128 This conclusion does not entitle the Applicant to have his sentence adjusted, in some way, to bring it into line with those imposed on one or other of his co-offenders. Rather, as stated by the majority in Green v The Queen (at [114] above), marked and unjustifiable disparity may be mitigated by reduction of the sentences appealed against to a level which, although lower, is still within the range of appropriate sentences.

129 This leads to the position where the Applicant is entitled to have this Court take into account on resentencing, in a permissible way, the sentences imposed upon his co-offenders, in determining the appropriate sentences to be imposed upon the Applicant.

130 I would uphold the first ground of appeal. The appropriate course will be to resentence the Applicant for Counts 3 and 6, the dominant sentences imposed for the 21 May 2008 offences.

131 In light of this conclusion, the remaining grounds of appeal may be considered shortly.

 

Ground 2 - The Standard Non-Parole Period Ground

132 The Applicant was sentenced well before the decision of the High Court of Australia in Muldrock v The Queen [2011] HCA 39; 244 CLR 120.

133 With respect to the offence of robbery in company with infliction of grievous bodily harm (Count 3), the sentencing Judge assessed the objective seriousness of the offence in the following way:

"Looking at it in that way I consider the objective gravity to be in the mid range but towards the lower end and I consider that to be the case notwithstanding that there was an element of spontaneity about it, there was a lack of planning. The fact is that the offender required little encouragement to involve himself in this serious matter. The standard non parole period will not apply because of the plea, but it remains a relevant consideration along with the maximum penalty. Some would say a very relevant consideration but I am mindful not to oscillate or vacillate around the standard non parole period. I do take it into account as a significant guide along with the maximum sentence. The reason to depart from the standard non parole period is essentially the plea and there may be a reason to depart on the basis of a finding of special circumstances, which I will get to later."

134 With respect to the offence of recklessly cause grievous bodily harm in company (Count 6), his Honour made the following finding:

"As to offence six, the recklessly committing causing grievous bodily harm in company, I have read out the facts of that offence and again I consider it to be within the mid range of objective gravity. The Crown submits it was at the lower end and it may be slightly towards the lower but it is certainly within the mid range. That offence again, carries the standard non parole period and I respect [sic] the reason for the departure from the standard non parole period is essentially the plea of guilty. I do not oscillate about the standard non parole period."

The Applicant's Submissions

135 Mr Gartelmann submitted that the sentencing Judge had determined that the reasons for departure from the standard non-parole periods, respectively applicable to these two offences, were essentially the pleas of guilty (for both offences) and the finding of special circumstances (for Count 6). He submitted that the sentencing Judge had adopted a two-stage approach to the determination of the sentences for these two offences: first, assessing the objective seriousness of the offence and, secondly, determining the reasons that existed for departure from their respective standard non-parole periods.

136 Mr Gartelmann submitted that this approach was not permitted following the decision in Muldrock v The Queen and that it was erroneous as it gave the standard non-parole period "determinative significance". As a result, it was submitted that the exercise of discretion in determining the sentences for these two offences had miscarried.

Crown Submissions

137 The Crown submitted that merely showing that a sentencing Judge had sentenced in the manner applicable before the decision in Muldrock v The Queen did not, of itself, demonstrate error, with it being necessary to consider whether, in the particular case, the approach taken had sufficiently infected a sentence so that this Court must intervene: Butler v R [2012] NSWCCA 23 at [26].

138 The Crown submitted that the sentencing Judge in this case did not adopt the approach of commencing with the standard non-parole period, and then seeking to find factors which could justify a variation from it. It was submitted that his Honour had used the standard non-parole period as a significant guide, along with the maximum sentence.

Determination

139 In Aldous v R [2012] NSWCCA 153, Davies J (Allsop P and Latham J agreeing) said at [31]:

"This is another in an increasingly long line of cases where sentences imposed prior to the High Court's decision in Muldrock are challenged as falling foul of what was said in that judgment. Some of the cases are collected in Zreika v R [2012] NSWCCA 44 at [36] and see also this Court's comments in Butler v R [2012] NSWCCA 140 at [26]. As Johnson J said in Zreika at [43], it is necessary to read fairly the entirety of a Sentencing Judge's Remarks to see how the standard non-parole period has been dealt with. As in Zreika the Sentencing Judge in the present case determined that the standard non-parole period was only to operate as a benchmark or guidepost in the exercise of her sentencing discretion. It cannot be said that it has been used as a starting point when her Remarks are fairly considered. Her use of the words 'the consequence' do not lead to the result that it was the starting point. Her approach of using the standard non-parole period as a benchmark or guidepost is consistent with the judgment of the High Court in Muldrock: Zreika at [43]."

140 I am not persuaded that the sentencing Judge in the present case has undertaken a two-stage process contrary to the principles laid down in Muldrock v The Queen.

141 A fair reading of his Honour's remarks on sentence indicates that his Honour had regard to the standard non-parole period as a significant guide, along with the maximum sentence. I detect no error in this approach.

142 His Honour's expression of "reasons for departure" from the standard non-parole period is a formula to be discouraged since the decision in Muldrock v The Queen. However, his Honour said, as well, that he did not "oscillate" around the standard non-parole period. A fair and practical reading of his Honour's entire remarks on sentence is required: Zreika v R [2012] NSWCCA 44 at [43].

143 I am not persuaded that a fair reading of his Honour's remarks reveals error.

144 As it happens, because the first ground has been upheld, it will be necessary to resentence the Applicant for these offences.

145 However, error has not been demonstrated as asserted in the second ground of appeal.

Ground 3 - Claim that the Sentence on Count 3 is Manifestly Excessive

146 As the Applicant is to be resentenced on Count 3 arising from the success of the first ground of appeal, I do not consider it necessary to determine the third ground of appeal.

147 It is sufficient to observe that a substantial sentence was imposed, which was partly cumulative. However, where an offender is sentenced for several offences so that the principles of concurrency, accumulation and totality are brought into play, it is necessary for this Court to take care where challenge is made to one particular sentence of those which are imposed, so as to guard against an element of artificiality being introduced: R v Thalari [2009] NSWCCA 170; 75 NSWLR 307 at 320 [82]. The Court must keep in mind the obligation of a sentencing court to fix an appropriate sentence for each offence in accordance with the principles in Pearce v The Queen [1998] HCA 57; 194 CLR 610. However, the selection of one sentence for challenge as being manifestly excessive, from a range of several partly accumulated sentences, requires particular caution on the part of this Court.

148 It is not necessary to say more as the sentence upon Count 3 is to be set aside for other reasons.

Ground 4 - Claim that the Aggregate Sentence is Unreasonable of Plainly Unjust

149 Once again, I do not consider that this ground requires any detailed consideration given the course to be taken concerning Counts 3 and 6.

150 It must be kept in mind that the Applicant was sentenced for separate crimes committed at the Willmot Friendly Grocer on 20 February 2008.

151 The sentencing Judge described the offence of 20 February 2008 (correctly) as a "typical break and enter and steal offence" and said "there must have been some planning and some significant deliberation notwithstanding it was unsophisticated and the items taken were not insubstantial".

152 The robbery on 20 May 2008 involved a frightening attack upon the staff of the same small business, during which, as the sentencing Judge found, a "strong young man ... manhandled a 41 year old woman".

153 It was necessary that appropriate sentences, partially accumulated, be imposed for these offences, committed as they were, whilst the Applicant was subject to conditional liberty.

154 Further, there were four victims of the offences on 21 May 2008, committed as part of the one extended violent incident. A measure of accumulation was appropriate, with an eye still kept upon totality.

155 It is not necessary to say more about this ground given the view which I have formed with respect to the first ground of appeal.

Resentencing the Applicant

156 As the first ground of appeal has been upheld, I am satisfied that the Court should intervene and that lesser sentences are warranted, for the purposes of s.6(3) Criminal Appeal Act 1912, with respect to Counts 3 and 6.

157 In approaching the question of resentencing on Counts 3 and 6, it is necessary to have regard to the objective gravity of the offences, the fact that the offences occurred whilst the Applicant was subject to conditional liberty, the Applicant's criminal history and subjective circumstances, and the need for both general and specific deterrence. It is necessary to consider the applicable standard non-parole periods and maximum penalties as statutory guideposts.

158 It is necessary, as well, to take into account, in a permissible way, the sentences passed upon the Applicant's co-offenders. The facts did not differentiate between the acts of the various offenders (as to who did what), although John Ika was found by the sentencing Judge in his case to have been the "ring leader" or "precipitating agent" in the incident.

159 The offenders were to be sentenced as participants in a joint criminal enterprise: R v Wright [2009] NSWCCA 3 at [28]-[30]; R v JW [2010] NSWCCA 49; 77 NSWLR 7 at 34-35 [160]-[162]. Of course, the principles in these cases are affected here by the different charges laid against the various co-offenders, and the different jurisdictions in which they were prosecuted.

160 The offences of 21 May 2008 involved wanton violence on the part of the Applicant and his co-offenders following an inconsequential, innocuous and apparently good-humoured exchange between two groups of young men. The Applicant and his co-offenders then launched a vicious attack upon the victims in a public place, involving the inflicting of serious injury and theft of certain items from them.

161 I would not interfere with the sentences imposed with respect to Counts 1, 2, 4 and 5, both as to length of the sentences and the measure of accumulation applied in each case. As observed at [149]-[155] above, it was necessary that sentences be passed for those separate offences with an appropriate measure of partial accumulation. I am satisfied that the sentences on these counts should be confirmed.

162 The 25% discount allowed by the sentencing Judge for the Applicant's pleas of guilty should once again be applied on sentence for Counts 3 and 6.

163 With respect to Count 6, I am satisfied that the sentence imposed should be quashed and that, in its place, after applying a 25% discount, a sentence of imprisonment should be fixed for a term of three years comprising a non-parole period of two years commencing on 26 February 2011 and expiring on 25 February 2013 with a balance of term of one year to expire on 25 February 2014.

164 With respect to Count 3, I am satisfied that the sentence imposed should be quashed and, in its place, after applying a 25% discount, a sentence of imprisonment should be fixed for a term of six years comprising a non-parole period of three years commencing on 26 February 2012 and expiring on 25 February 2015 with a balance of term of three years commencing on 26 February 2015 and expiring on 25 February 2018.

165 The imposition of these sentences will see a total effective head sentence of nine years and six months comprising a non-parole period of six years and six months with a balance of term of three years. Given the Applicant's troubled history and the clear need for supervision and assistance in the community upon his release, a finding of "special circumstances" should be made to allow this outcome: Jinnette v R [2012] NSWCCA 217 at [107]-[108]; R v GWM [2012] NSWCCA 240 at [114]-[117].

166 I propose the following orders:

(a) grant leave to appeal against sentence;

(b) allow, in part, the appeal against sentences imposed at the Penrith District Court on 20 April 2010;

(c) confirm the sentences imposed with respect to Count 1, Count 2 (including the Form 1 offences), Count 4 and Count 5;

(d) quash the sentence imposed upon Count 6 and, in its place, sentence the Applicant to a non-parole period of two years commencing on 26 February 2011 and expiring on 25 February 2013, with a balance of term of one year commencing on 26 February 2013 and expiring on 25 February 2014;

(e) with respect to Count 3, quash the sentence and, in its place, sentence the Applicant to a non-parole period of three years commencing on 26 February 2012 and expiring on 25 February 2015, with a balance of term of three years commencing on 26 February 2015 and expiring on 25 February 2018;

(f) the earliest date upon which the Applicant will be eligible for release on parole is 25 February 2015.

167 BUTTON J: I agree with Johnson J.

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Decision last updated: 01 February 2013