Aguirre v R

[2010] NSWCCA 115

New South Wales
Court of Criminal Appeal

CITATION:	AGUIRRE v R [2010] NSWCCA 115
HEARING DATE(S):	21 May 2010
JUDGMENT DATE:	8 June 2010
JUDGMENT OF:	James J at 1; Simpson J at 115; Barr AJ at 116
DECISION:	As to the sentence imposed on count 1:- ·Grant leave to appeal against the sentence ·Allow appeal against sentence ·Quash the sentence imposed on count 1 and in lieu thereof impose a sentence of a non-parole period of four years commencing on 24 June 2008 and a balance of the term of two years. Otherwise, grant leave to appeal but dismiss the appeal against sentence.
CATCHWORDS:	CRIMINAL LAW — Sentencing — failure to set non-parole period for offence in Table to Division 1A of Part 4 of Crimes (Sentencing Procedure) Act — record of previous convictions s 21A(2)(d) — whether offence committed in home of victim s 21A(2)(eb) — whether offence involved gratuitous cruelty s 21A(2)(f) — whether matter can be proved beyond reasonable doubt by victim impact statement — youth and immaturity of offender — whether sentences manifestly excessive
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act Crimes Act Criminal Appeal Act
CASES CITED:	House v The King (1936) 55 CLR 499 McCullough v R [2009] NSWCCA 94 R v Johnson [2004] NSWCCA 76 R v Sharma [2002] NSWCCA 142 R v Slack [2004] NSWCCA 128 R v Thomas [2007] NSWCCA 269 R v Wilson [2005] NSWCCA 219 R v Walker [2005] NSWCCA 109 SGJ v R, KU v R [2008] NSWCCA 258 Veen v The Queen (No 2) (1988) 164 CLR 465 Wright v R [2009] NSWCCA 3
PARTIES:	Aguirre, Alexander - Applicant The Crown - Respondent
FILE NUMBER(S):	CCA 2008/19920
COUNSEL:	M C Ramage QC - Applicant F Veltro - Respondent
SOLICITORS:	Elie Rahme and Associates - Applicant S Kavanagh (Solicitor for Public Prosecutions)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2008/11/1477
LOWER COURT JUDICIAL OFFICER:	Knox DCJ
LOWER COURT DATE OF DECISION:	18 June 2009

2008/19920

JAMES J
SIMPSON J
BARR AJ

TUESDAY 8 JUNE 2010

AGUIRRE, Alexander v R

Judgment

1 JAMES J: Alexander Aguirre applied for leave to appeal against sentences imposed on him in the District Court on 18 June 2009 by his Honour Judge Knox for the following offences, to all of which he had pleaded guilty:-

Count 1 — aggravated taking and driving of a motor vehicle without the consent of the owner while a person was in it, the offence having been committed on 26 February 2008 and the circumstances of aggravation being that he was armed with an offensive weapon.

This was an offence under s 154C(2) of the Crimes Act for which the maximum penalty is imprisonment for 14 years and for which a standard non-parole period of five years has been set.

Count 2 — robbery in company when armed with a dangerous weapon, the offence having been committed on 4 March 2008 at Birrong. This was an offence under s 97(2) of the Crimes Act for which the maximum penalty is imprisonment for 25 years. No standard non-parole period has been set for this offence.

Count 3 — robbery in company when armed with a dangerous weapon, the offence having been committed on 3 June 2008 at Parramatta. This was another offence under s 97(2) of the Crimes Act.

A further offence of aiding and abetting the commission by an unknown person of an offence of aggravated taking and driving of a motor vehicle without the consent of the owner, while a person was in the vehicle, which was committed on or prior to 29 May 2008, was the subject of a Form 1 under s 32 of the Crimes (Sentencing Procedure) Act and was the subject of a submission made by counsel for the applicant at the hearing.

2 The sentencing judge imposed the following sentences:-

Count 1 — imprisonment for a fixed term of four years commencing on 24 June 2008.

Count 2 — imprisonment for a fixed term of six years commencing on 24 June 2009.

Count 3 — imprisonment for a head sentence of six years consisting of a non-parole parole of two years and a balance of the term of four years, commencing on 24 June 2014.

3 The overall sentence consisted of head sentences totalling 12 years and fixed terms or a non-parole period totalling eight years.

4 The applicant committed the robbery on 4 March 2008 with a co-offender named McGlashan. McGlashan was sentenced for this offence by Judge Knox at the same time as his Honour sentenced the applicant for his offences. His Honour sentenced McGlashan to a term of imprisonment of six years consisting of a non-parole period of four years and a balance of the term of two years. McGlashan did not appeal against this sentence. The applicant has not sought to rely on any alleged lack of parity in the sentencing of himself and McGlashan.

5 The sentencing judge delivered a single set of remarks on sentence in sentencing the applicant and McGlashan. This was a convenient procedure to adopt but there are parts of his Honour’s remarks where it is unclear whether his Honour is referring to both offenders or only one.

Remarks on Sentence
Facts of the offences

6 The sentencing judge’s statement of the facts of the offences in his remarks on sentence, which was derived from a fact sheet admitted without objection in the proceedings on sentence, was not the subject of any challenge on this application for leave to appeal. His Honour’s statement of the facts of the offences was as follows.

Count 1

“At 7:30 am on 26 February 2008 the victim Anthony Sadek left his house at Parramatta and walked towards his vehicle that was parked in the driveway. As he unlocked the vehicle he noticed Aguirre and an unknown person running towards him. He got into his car and attempted to lock the door but the two offenders reopened it. The offenders waved knives towards the victim. The victim attempted to protect himself but was dragged from the vehicle and was wrestled to the ground by the offenders. The offenders took the victim’s car keys and drove away in the vehicle. A 15cm knife was later found lying in the driveway.

The victim’s physical injuries consisted of grazes to the elbows. A bloodstain found on the victim’s clothing contained DNA consistent with that of Aguirre. The vehicle was a Mercedes-Benz valued at $147,000 and it was recovered on 4 March 2008. The financial cost to the owner was $80,000.”

Count 2

“At 11.15am on 4 March 2008 two Chubb security employees, Antonio Pignataro and Trevor Dacombe, drove an armoured truck to the Birrong railway station with the purpose of dropping off and picking up various amounts of cash. The victims had completed those tasks when the stolen Mercedes bearing stolen registration plates pulled up next to the truck. All four car doors were opened and Aguirre, McGlashan and two unknown co-offenders alighted. All four offenders were wearing balaclavas and three, including Aguirre and McGlashan, were wielding handguns.

Aguirre grabbed the victim Pignataro around the neck and placed him in a headlock. He pushed his gun into the victim's neck before taking the money canister and truck keys as well as the victim's gun. One of the other offenders forced the victim Dacombe to the ground before taking his gun and canister. Aguirre used the keys to enter the front cabin of the truck but triggered the alarm in attempting to access the rear area.

The offenders were repeatedly yelling, “Open the fucking truck” but Pignataro responded that this was impossible to do as the alarm had now been triggered. Aguirre said, “Come on, let's go” and started to return to the stolen Mercedes, as did the two unknown co-offenders.

McGlashan, however, remained at the rear of the vehicle pointing his
revolver at Pignataro. McGlashan pulled back the hammer on the gun while continuing to point it at Pignataro. At this point Pignataro believed he was about to be shot. One of the offenders yelled, “Come on” and McGlashan ran towards the Mercedes. The car was heard to drive away at a high speed. The satchels and canisters stolen from Pignataro and Dacombe contained $6,120.”

The Form 1 offence

“The victim on this count, Kunal Kansara, advertised his vehicle for sale on the Internet. On 29 May 2008 Aguirre and an unknown offender attended the victim's home in order to inspect the vehicle. The victim took the males for a test drive. The offender asked if he could drive the vehicle himself so the victim pulled over to the side of the road and alighted from the vehicle with the intention of swapping seats. As the victim sat down in the passenger seat with the door opened, the offender pushed him from the vehicle and proceeded to drive off. The vehicle was a high performance Mitsubishi Evolution valued at $25,000.”

Count 3

“On 3 June 2008 the Mitsubishi, now bearing stolen registration plates, drove into the loading docks of Westfield Shopping Centre Parramatta. Aguirre and an unknown offender exited the vehicle wearing balaclavas and armed with semi-automatic weapons. The four victims, armoured guard employees Roman Chokov, Fabian Castillo, Raymond Phillips and Geoffrey Hawke, were heading towards an automatic teller machine to replenish it with cash. The offender ran towards the victims yelling, “Get down, get down”. Castillo and Chokov lay on the ground and the offenders took their guns. The offenders took the cash and fled through a fire escape.

At this time one of the offenders was aiming his gun at the victim Hawke, who was standing nearby. The offenders drove away in the stolen Mitsubishi with $161,000 in cash. The vehicle was never recovered. One of the guns taken from the guards at Parramatta was recovered. A balaclava was found at the bottom of the fire escape containing a DNA profile that matched that of Aguirre. When police searched Aguirre's bedroom they found a list of Mitsubishi Evolutions for sale online, including the details of the victim Kansara. This is indicative of some considerable planning.”

Subjective circumstances

7 In his remarks on sentence the sentencing judge referred to a pre-sentence report, which gave some information about the subjective circumstances of the applicant.

8 The applicant was born on 14 July 1988 in Colombia in South America. His parents separated when he was 8 years old and the applicant had no further contact with his father until he was 15.

9 In 1999 the applicant came to Australia with his mother and his brother. When he was 15 his mother returned to Colombia. His father came to Australia but the applicant had little supervision from his father due to his father’s work commitments. The applicant’s mother returned to live in Australia in 2007.

10 The sentencing judge said in his remarks on sentence, with reference to the pre-sentence report:-

“He had received minimal parental supervision due to the separation of his parents and his mother's return to Colombia. He was expelled from high school and has had problems maintaining employment as he was consistently late for work. Aguirre admitted extensive drug use since 2005 and binging on cocaine and amphetamines leading up to the offence. He minimised the seriousness of his offence and their consequences, however, he did demonstrate some insight when discussing the fear that can be generated by violent actions.”

11 The sentencing judge also referred to a short further pre-sentence report. In this further report it was stated that while in custody the applicant had completed some anger management sessions and had taken some steps to address his abuse of drugs, while continuing to demonstrate only limited insight into that abuse.

12 The sentencing judge noted that the applicant himself had given evidence in the proceedings on sentence. I will refer to parts of the applicant’s evidence later in this judgment.

13 The sentencing judge also noted that both the applicant’s father and the applicant’s mother had given evidence in the proceedings on sentence. In his remarks his Honour commented:-

“Mr Aguirre had limited idea of his son's prior activities and he expressed regret for aspect of his lack of involvement in his son's upbringing and his descent into offending behaviour. His plans for the offender's rehabilitation extended to engaging a psychiatrist for the offender.”

14 His Honour commented in his remarks that the applicant’s mother’s evidence indicated that the applicant had had a dysfunctional family background.

15 His Honour then said:-

“The evidence of neither parent gave me any real confidence that there are neither detailed plans for the offender's rehabilitation, nor a structure for him post-release, nor any real insight into his offending behaviour and activities.”

16 His Honour summarised a psychological report from Mr John Taylor psychologist as follows:-

“A report from psychologist John Taylor dated 19 March 2009 was tendered on behalf of Aguirre. It set out that Aguirre was raised in a dysfunctional family environment, which had a marked impact on his social and emotional development. He began to display early on aggression and risk-taking behaviour and became alienated from authority figures. He began associating with anti-social peers and through them became involved in drug taking and criminal behaviour.

Mr Taylor administered tests that indicated Aguirre had a high to moderate risk of recidivism and an above average pre-disposition for substance abuse, inadequate impulse control and risk-taking behaviour. He was on drugs at the time of the offences including cocaine and ecstasy.”

17 The sentencing judge also referred to a psychological report by Mariano Coello in which Mr Coello expressed the opinion that the extreme violence which permeates life in Colombia had left the applicant frightened and unsettled.

Aggravating and mitigating factors

18 In his remarks his Honour gave consideration to which of the aggravating and mitigating factors in s 21A of the Crimes (Sentencing Procedure) Act were present. Much of what his Honour said is the subject of parts of grounds of appeal and I will consider what his Honour said more fully when I deal with those parts of the grounds of appeal.

19 As to aggravating factors, his Honour referred to the applicant’s record of previous convictions (s 21A(2)(d)); found that the first offence had been committed in company (s 21A(2)(e)), being in company not being an element of the first offence; found that the first offence had been committed “in the home of the victim” (s 21A(2)(eb)); found that the second offence “involved gratuitous cruelty” (s 21A(2)(f)); found that “the injury, emotional harm, loss and damage” caused by the first and second offences was “substantial” (s 21A(2)(g)); found that the offences were committed “while the offender was on conditional liberty” (s 21A(2)(j)); found that the victims of the two armed robberies, being security guards, were “vulnerable” (s 21A(2)(l)); and found that the second and third offences “involved multiple victims” (s 21A(2)(m)).

20 On this application counsel for the applicant challenged what the sentencing judge found or said about the aggravating factors in pars (d), (eb), (f), (g), and (j). No challenge was made to his Honour’s findings in respect of the other aggravating factors.

21 As to mitigating factors, the sentencing judge said that he would allow a 25 per cent discount for the applicant’s pleas of guilty. His Honour’s discussion in his remarks on sentence about whether the applicant had prospects of rehabilitation and whether he had shown remorse were the subject of parts of grounds of appeal and I will consider what his Honour said later in this judgment.

Objective gravity

22 As to the objective gravity of the offences, the sentencing judge found that there had been a substantial degree of planning and pre-meditation in all of the offences. The armed robberies had involved the use of stolen motor vehicles, with stolen registration plates. His Honour found that all of the offences were above the middle of the range of objective seriousness for offences of their kind.

Further parts of the remarks on sentence

23 The sentencing judge said that he had to take into account in favour of the applicant and the co-offender, youth and “poor family background” and the absence of adult role models. However, his Honour referred to what Spigleman CJ said in R v Sharma [2002] NSWCCA 142 at [74] that armed robberies committed by young persons, generally with an addiction problem, are so prevalent that the object of general deterrence is entitled to significant weight in the process of sentencing for this offence, notwithstanding the youth of the typical offender.

24 The sentencing judge said that “they” (that is both offenders) “have been extended consideration and leniency and other sentencing options in the past”.

25 As already noted, his Honour discussed whether the applicant had shown any remorse or had prospects of rehabilitation and concluded, at least implicitly, that the applicant had not shown any remorse and did not have (good) prospects of rehabilitation. I will give further consideration to some of these parts of his Honour’s remarks later in this judgment.

26 His Honour found special circumstances within s 44(2) of the Crimes (Sentencing Procedure) Act in the applicant’s youth and in the family support available to him, which the sentencing judge nevertheless said was “limited”.

Grounds of appeal against sentence

27 The applicant’s grounds of appeal against sentence were as follows:-

1. The total sentence was unduly harsh and severe

2. The sentencing judge erred in finding that all of the offences were above the mid-range in criminality

3. The sentencing judge erred in taking into account irrelevant matters

4. The sentencing judge erred in making findings of aggravation

5. The sentencing judge erred in respect of subjective matters

6. The sentencing judge erred in placing a disproportionate weight on general deterrence

28 Some of the grounds of appeal, and particularly grounds 4 and 5, contained a number of parts.

29 At the hearing leave was given to the applicant to rely on a further ground of appeal:

7. The sentencing judge erred in failing to fix a non-parole period in the sentence for count 1 on the indictment

30 It is convenient to consider first the more specific grounds of appeal.

Ground 7 — The sentencing judge erred in failing to fix a non-parole period in the sentence for count 1 on the indictment

31 Section 45 of the Crimes (Sentencing Procedure) Act provides in part as follows:-

“When sentencing an offender to imprisonment for an offence (other than an offence set out in the Table to Division 1A of this Part) a court may decline to set a non-parole period for the offence if it appears to the court that it is appropriate to do so…”

32 An offence under s 154C(2) is an offence set out in the Table to Div 1A of Pt 4 and, consequently, a sentencing court has no power to decline to set a non-parole period: SGJ v R, KU v R [2008] NSWCCA 258 at [78] per Kirby J, with whom the other members of the court agreed. Accordingly, the sentencing judge erred in imposing a fixed term of imprisonment for the offence charged in count 1.

33 Under s 6(3) of the Criminal Appeal Act the Court of Criminal Appeal has power to quash a sentence set by a sentencing judge and pass a sentence in substitution for that sentence, if the Court of Criminal Appeal is of the opinion that some other sentence, whether more or less severe, is warranted.

34 It was submitted on behalf of the applicant that the power under s 6(3) to impose a sentence more severe than that imposed by the sentencing judge should be exercised sparingly and that in the present case the Court of Criminal Appeal should not simply assume that, when the sentencing judge imposed a fixed term of imprisonment for the offence in count 1, the length of the fixed term imposed was the same as what would have been the length of the non-parole period, if the sentencing judge had imposed a sentence containing a non-parole period.

35 However, in the present case it is quite clear what sentence the sentencing judge would have imposed for the offence charged in count 1, if he had imposed a sentence containing a non-parole period. In his remarks on sentence his Honour:-

“In terms of transparency of sentence in terms of Aguirre, the aggravated take and drive offence, given the plea of guilty and the discount appropriate, the sentence should be one of six years imprisonment to be served by way of a non-parole period of four years imprisonment.”

36 In my opinion, the error made by the sentencing judge in the present case could be rectified by upholding this ground of appeal and substituting for the sentence imposed by his Honour a sentence containing a non-parole period, being a sentence consisting of a non-parole period of four years and a balance of the term of two years, having the same commencement date as the sentence set by the sentencing judge. The adoption of such a course would not make any difference to the total effective sentence for the applicant.

37 A separate submission was made by counsel for the applicant that the sentence imposed by the sentencing judge for the offence charged in count 1, whether regarded as a fixed term of four years or as a head sentence of six years with a non-parole period of four years, was manifestly excessive. I will consider this submission later in dealing with other grounds of appeal.

Ground 3 — The sentencing judge erred in taking into account irrelevant matters

38 This ground of appeal was based on a part of the sentencing judge’s remarks on sentence in which the sentencing judge said:-

“There has been no restitution of the considerable amounts taken and there is likely to be none. The community will have to bear the costs associated with through not only the direct losses involved, but also increased insurance and security costs being loaded onto the costs of legitimate and necessary business activities.”

39 It was submitted by counsel for the applicant that the sentencing judge had improperly regarded a failure by the applicant to make restitution as an aggravating factor. It was submitted that, while in some cases the making of restitution can be a mitigating factor, a failure to make restitution is not an aggravating factor.

40 I do not consider that, when his Honour’s comments are placed in the context in which they appear in the remarks on sentence, they should be taken as showing that his Honour regarded the applicant’s failure to make restitution as an aggravating factor.

41 The comments made by his Honour appear in a part of his remarks which was headed “Subjective factors” and his Honour was considering whether he should find in favour of the applicant that the applicant had shown remorse or that the applicant had prospects of rehabilitation. His Honour properly regarded whether the applicant had made any restitution as relevant to those subjective matters.

42 I would reject this ground of appeal.

The Form 1 offence

43 Although there was no directly relevant ground of appeal, it is convenient to deal next with a submission made by counsel for the applicant that the sentencing judge had erred in not stating in his remarks on sentence that he had taken the Form 1 offence into account in sentencing the applicant for the offence charged in count 3.

44 The appeal papers provided to this Court in advance of the hearing left it unclear whether the applicant had ever signed a Form 1 (s 32(4)(b) of the Crimes (Sentencing Procedure) Act) and whether the sentencing judge had certified that the further offence had been taken into account (s 35(1)(a)). However, at the hearing a Form 1 was produced by the Crown, which the applicant had signed and which bore a certificate by the sentencing judge that he had taken into account the additional offence in sentencing the applicant for the offence of “robbery armed with a dangerous weapon”. There is an overwhelming inference, from the dates of the offences, the use of the stolen Mitsubishi on 3 June 2008 and the structure of his Honour’s remarks on sentence that his Honour took into account the Form 1 offence in sentencing the applicant for the offence charged in count 3.

Ground 4 — The sentencing judge erred in making findings of aggravation

45 There are a number of parts in this ground of appeal, which I will deal with seriatim.

(a) — In finding that the applicant had a record of previous convictions (s 21A(2)(d) of the Crimes (Sentencing Procedure) Act )

46 This ground was based on a part of the sentencing judge’s remarks on sentence in which the sentencing judge said:-

“The offender has a record of prior convictions. The Crown submits, and I think appropriately so, that it is limited by The Queen v Veen (No 2). While McGlashan has a criminal history, there are no similar matters or violent matters. Counsel for the offender submits that these are relatively minor matters and I think that is correct.”

47 This part of his Honour’s remarks could have been expressed more clearly but it seems to me that the expression “the offender” at least where first used, must be taken as referring to the applicant and not McGlashan.

48 The applicant did have a record of previous convictions. However, it was limited to driving offences, offences of goods in custody and offences of obtaining money by deception. There was no previous conviction for taking and driving a motor vehicle or for any kind of robbery.

49 It was submitted on behalf of the applicant that s 21A(2)(d) was subject to s 21A(4), which prohibits a sentencing court from having regard to an otherwise aggravating factor, if it would be contrary to any rule of law to do so; that the principles in Veen v The Queen (No 2) (1988) 164 CLR 465 have been held to be such rules of law; and that the applicant’s record of previous convictions was not such as to fall within the principles in Veen (No 2) which would permit a more severe penalty to be imposed by reason of an offender’s previous convictions. Reference was made to R v Johnson [2004] NSWCCA 76 especially at [32] to [35] per curiam and to R v Walker [2005] NSWCCA 109 especially at [27] per Johnson J, with whom the other members of the Court agreed.

50 I would accept each of the steps in counsel for the applicant’s submission which I have just described. However, although the part of his Honour’s remarks which I have quoted is not expressed as clearly as it might have been, I consider that a fair interpretation of what his Honour said is that his Honour, after considering the applicant’s record of previous convictions, decided that he was prohibited from regarding this record as an aggravating factor. I consider that this interpretation should be inferred on the basis of his Honour’s express reference to Veen (No 2), his Honour’s mention that “there are no similar matters or violent matters” in McGlashan’s criminal history (which was equally true of the applicant’s criminal history) and his Honour’s statement that he thought that counsel for the “offender’s” submission, that the “offender’s” previous offences were relatively minor, was correct.

51 I would reject this part of ground 4.

(b) — In finding the offence was committed in the home of the victim

52 This part of ground 4 applies only to the offence charged in count 1.

53 It was based on a part of the sentencing judge’s remarks on sentence in which his Honour said:-

“In terms of (eb) in relation to count 1, the offence was committed on the driveway immediately outside the home of the victim. The victim impact statement makes it clear what that impact has had on Mr Sadek, justifiably and understandably feeling insecure in his own home as well as with his own family members.”

54 The fact sheet admitted without objection in the proceedings on sentence shows that Mr Sadek’s car was parked in a carport on the driveway on his property.

55 It was submitted by counsel for the applicant that the offence was not committed “in” the home of the victim, the victim’s “home” being limited to the house on his property.

56 The word “home” is not defined in the Crimes Act. However, counsel for the Crown pointed to the definition of “dwelling house” in s 4, which includes “(c) any building or other structure within the same curtilage as a dwelling house and occupied therewith or whose use is ancillary to the occupation of the dwelling house”. A carport on a driveway on a person’s property would fall within this definition.

57 Counsel for the Crown also referred to the second reading speech by the Attorney-General on the Bill which inserted s 21A(2)(eb) into the Crimes (Sentencing Procedure) Act. In his speech the Attorney General said that “any offence committed in the home of the victim…violates that person’s reasonable expectation of safety and security”. It seems to me that a person’s reasonable expectation of safety and security would extend to a garage or carport on his property.

58 In my opinion, the sentencing judge did not err in holding that the first offence was committed “in the home” of the victim.

59 Even if the offence was not committed in the home of the victim within s 21A(2)(eb), the fact that the offence was committed on the victim’s own property would be a factor affecting the relative seriousness of the offence within s 21A(1)(c) of the Crimes (Sentencing Procedure) Act.

(c) —In finding that the offence involved gratuitous cruelty

60 This part of ground 4 was based on a part of the sentencing judge’s remarks on sentence in which his Honour said:-

“(f) the offence involved gratuitous cruelty. The Crown urges that McGlashan was cocking the gun while aimed at the victim's head warrants a finding of gratuitous cruelty. In my view, it was certainly unnecessary and unprovoked on the facts before me. In the context of the overall violence, it was an act of cruelty unnecessary to achieve the objective of the robbery or the escape.
This matter was recently considered by the Court of Criminal Appeal in McCullough v The Queen [2009] NSWCCA 94. Given the facts and the clear | and pervasive impact upon the victim, I do regard that act as an aggravating factor in that the action was "an end in itself, needless yet intentional violence committed simply to make the victim suffer".”

61 In his statement of the facts of the second offence his Honour had said:-

“McGlashan pulled back the hammer on the gun while continuing to point it at Pignataro. At this point Pignataro believed he was about to be shot.”

62 In the longer part of his Honour’s remarks on sentence which I have quoted his Honour referred to “the offence”, without expressly identifying the offence, but the offence his Honour had in mind would have to have been the second offence, which was the only offence in which McGlashan was a co-offender.

63 Counsel for the applicant submitted that, even if a finding of gratuitous cruelty was warranted against McGlashan, it was not warranted against the applicant, because the applicant was not responsible for McGlashan’s act. It was submitted that at the time of McGlashan’s act the joint criminal enterprise between the applicant and McGlashan had finished or, alternatively, any act of gratuitous cruelty by one of the offenders would, by its very nature, necessarily have fallen outside the scope of the joint criminal enterprise.

64 In McCullough v R [2009] NSWCCA 94 Howie said at [30] in a judgment with which the other members of the Court agreed:-

“Gratuitous cruelty seems to me to suggest that the infliction of pain is an end in itself. It is needless yet intentional violence committed simply to make the victim suffer. It might be found, for example, where a robber inflicts pain upon an already compliant victim who was willing to part with the property demanded…”

65 In my opinion, it was open to the sentencing judge to find that McGlashan’s act was an act of gratuitous cruelty by him. According to the fact sheet, the security guard Pignataro had been disarmed and a canister containing cash, the keys to the armoured vehicle and his revolver had been taken from him and he was not offering any resistance to the robbers.

66 It is not completely clear from his Honour’s remarks whether his Honour’s finding of gratuitous cruelty was a finding against McGlashan only or also a finding against the applicant. However, if it is to be regarded as a finding against the applicant as well as McGlashan, then I consider that it was open to the sentencing judge to consider that the joint enterprise to which the applicant and McGlashan were parties had continued up to and including the parties leaving the scene of the crime, as they did together in the same vehicle, the stolen Mercedes. In a joint criminal enterprise to commit a robbery in which three of the parties to the enterprise were armed with handguns and were wielding them, it was open to the sentencing judge to regard McGlashan’s action with his gun as an incident in the carrying out of the joint criminal enterprise. As parties to a joint criminal enterprise to commit an offence, each offender was responsible for the acts of the others in the carrying out of the enterprise: Wright v R [2009] NSWCCA 3 at [28].

67 I note that in the proceedings on sentence no submission was made that McGlashan’s act was outside the scope of the joint criminal enterprise to which the applicant and McGlashan were parties.

68 I would reject this part of ground 4.

(d) — In finding that the injury, emotional harm, loss or damage was substantial (s 21A(2)(g))

69 Victim impact statements by Mr Sadek, who was the victim of the first offence, and Mr Pignataro, who was one of the victims of the second offence, were admitted without objection in the proceedings on sentence.

70 In his remarks on sentence the sentencing judge referred to Mr Sadek’s victim impact statement as follows:-

“Mr Sadek provided a detailed account of the impact the carjacking offence had on his emotional and mental wellbeing and consequently his life and the lives of his wife and son. He stated that his home is now like a “fortress” and that he has had installed surveillance cameras and a security gate. He described the panic and horror he felt when the offenders ran at him with knives, he states:
“To my horror, they have knives and all they do is stab me while I kick frantically from inside the car. I can hardly breathe from the horrific moment of fear and trying in vain to plead saying 'you've got the wrong guy'. I can't even scream for help as I'm in a state of shock and can barely breathe.”

Mr Sadek described the aftermath of the attack as:
“I can't get out of my head the moment they opened the door and attacked me with knives. I can't describe in words how frightening that was as I was certain I was going to be stabbed to death. I am now in constant alert mode. This means at all times of the day – and the day is long – I am nervously awaiting an attack”.”

71 In his remarks the sentencing judge referred to Mr Pignataro’s victim impact statement as follows:-

“Mr Pignataro stated that, “being involved in an armed robbery where the gun was put against my head is something I will have to live with for the rest of my life”.”

72 Later in his remarks his Honour said:-

“There is evidence in the victim impact statements which amounts to evidence of some substantial emotional harm over and above what might normally be expected of someone committing crimes of this nature as required by The Queen v Youkhana [2004] NSWCCA 412.”

73 It was submitted by counsel for the applicant that an aggravating factor has to be proved beyond reasonable doubt and cannot be proved to the requisite standard by a victim impact statement. Counsel referred to R v Slack [2004] NSWCCA 128 at [62], where Sperling J, with whose judgment the other members of the Court generally agreed, said:-

“The court is required to be satisfied of the facts in question beyond reasonable doubt. In these circumstances, substantial weight cannot be given to an account of harm in an unsworn statement, not necessarily and almost certainly not in the victim’s own words, untested by cross-examination and, in the nature of things, far from being an objective and impartial account of the effect of the offence on the victim.”

74 I observe in passing that in the present case the victim impact statements of Mr Sadek and Mr Pignataro, copies of which are in the appeal papers, would appear to be in their own words and not in words drafted for them by others.

75 Notwithstanding what was said in Slack, this Court has from time to time accepted that a matter, even a matter of aggravation, can, at least in some circumstances, be proved by a victim impact statement. In R v Thomas [2007] NSWCCA 269 Basten JA, with whom Latham J and Rothman J agreed, said at [37]:

“In R v Slack [2004] NSWCCA 128 at [60] Sperling J noted there is further implicit recognition of the entitlement of a sentencing judge to rely upon a victim impact statement in s 28(4), dealing with the use of a victim impact statement given by a family victim “in connection with the determination of the punishment of the offender”. It is unfortunate that the Act gives no greater guidance as to the appropriate use of such a statement, especially where untested, for the purposes of determining sentence. However, it will often be appropriate to give weight to a victim impact statement where the conduct of the offender is otherwise established beyond reasonable doubt and the statement is restricted to subsequent effects on the victim. There is some doubt in the present case as to what weight the sentencing judge gave either to the physical effects of the assault or its psychological sequelae.”

76 In R v Wilson [2005] NSWCCA 219 Simpson J, with whose judgment the other members of the Court, so far as is relevant, agreed, referred to the victim impact statements given by the victims in that case and to Sperling J’s judgment in Slack. Her Honour commented that it has not been customary for a victim who has supplied a victim impact statement to be cross-examined in the sentence proceedings. Her Honour continued at [28]:-

“It may be, in an appropriate case, that a sentencing judge would decline to accept a victim impact statement, or attribute to it less weight than otherwise might be the case. This could arise where (as, arguably, happened here) the Crown sought, by way of a victim impact statement, to establish matters seriously going to the assessment of the objective gravity of the offence that were either in issue or not conceded. That really provides the answer to the issue taken here. The victim impact statements were tendered without objection. No argument was addressed to whether their contents should be attributed weight or not. Experienced counsel who appeared for the applicant on sentencing made no attempt to limit the use his Honour was to make of the quite substantial matters contained in the statements, particularly that relating to Mr Gresham.”

77 Her Honour’s remarks in Wilson are apposite in the present case. In the proceedings on sentence the victim impact statements were tendered and admitted without objection. No submissions were made in the proceedings on sentence that the use of the victim impact statements should be limited or that the evidentiary weight to be given to them should be limited. In these circumstances the sentencing judge could properly use the victim impact statements to establish the aggravating factor in s 21A(2)(g).

78 I would reject this part of ground 4.

Ground 5 — The sentencing judge erred in respect to subjective matters

79 There are a number of parts in this ground of appeal, which I will deal with seriatim.

80 (a) In sentencing on the basis that the applicant was in breach of bail at the times he committed the offences.

81 In one part of his remarks on sentence the sentencing judge said that “he (the applicant) was on bail for traffic matters at the time of the offences”. Later in his remarks, in the course of making a finding as to whether the aggravating factor in s 21A(2)(j) was present, the sentencing judge repeated that the offender was on bail at the time of the offences.

82 The criminal history of the applicant set out in a document which was exhibit 18 in the proceedings on sentence shows that on 30 January 2008 he was charged with an offence of stating a false name and address as a driver of a motor vehicle, an offence of driving a motor vehicle never having been licensed and an offence of resisting a police officer in the execution of his duty. The applicant was granted bail for these offences and was on bail for these offences when the offences charged in counts 1 and 2 were committed on 26 February 2008 and 4 March 2008. The applicant’s criminal history further shows that on 7 March 2008 he was charged with further offences of driving a motor vehicle never having been licensed and of disobeying a no right hand turn signal. He was refused bail by police but granted bail in court on 8 March 2008. The applicant’s criminal history further shows that on 3 April 2008 he was charged with larceny. He was granted bail on this charge. The six charges which I have referred to were all dealt with in the Local Court on 15 September 2008.

83 Hence, at the time of committing the first two of the present offences the applicant was on bail on three charges and at the time of committing the third of the present offences the applicant was on bail on six charges. Accordingly, his Honour’s statement in his remarks on sentence about the applicant being on bail at the time of committing the offences was quite correct.

(b) — In sentencing the applicant on the basis that the applicant’s disregard for the leniency of sentencing options indicates a degree of contempt for the legal system which should be taken into account in considering the issue of specific deterrence.

84 This part of his Honour’s remarks followed immediately his Honour’s finding that the aggravating factor in s 21A(2)(j) was present in that the applicant had committed the offences while on bail. The full text of this part of his Honour’s remarks is as follows:-

“Offences committed while the offender was on conditional liberty in relation to an offence or alleged offence. Aguirre was on bail and McGlashan was subject to a section 9 Bond. That factor, when considered with the disregard for the leniency of the sentencing options extended in the past, indicates a degree of contempt for the legal system which should be taken into account in considering the issue of specific deterrence.”

85 His Honour’s remark about disregard for lenient sentencing options extended in the past was more applicable to the co-offender McGlashan than to the applicant. McGlashan had a more extensive criminal history than the applicant, including a number of offences of possessing implements to enter and drive a conveyance and many driving offences, particularly driving while disqualified. McGlashan had been dealt with in a number of ways more lenient than sentences of full-time imprisonment, including bonds, fines, community service orders, suspended sentences of imprisonment and referral to the Drug Court.

86 Although his Honour’s remarks were more applicable to the co-offender, the applicant’s criminal history was capable of justifying the remark being made about the applicant. Sentencing options more lenient than imprisonment which had been previously used in sentencing the applicant were fines and community service orders and the applicant had breached community service orders.

87 I would reject this part of ground 5.

(c) — In finding that the applicant’s expression of remorse and desire not to have further contact with criminal elements should be viewed with reservation

88 The applicant gave evidence in the proceedings on sentence. In his evidence he expressed some remorse for the offences and stated an intention, after he was released, not to associate with the persons he had previously associated with. In cross-examination the applicant admitted that he had been visited, while he was in custody after his arrest, by a female, who had subsequently been charged in relation to the armed robbery at Parramatta. In his remarks his Honour said that “in those circumstances his evidence about his remorse and desire not to have further contact with criminal elements should be viewed with reservation”. It is noteworthy that his Honour’s finding in this part of his remarks was merely that the applicant’s evidence should be viewed with reservation.

89 Elsewhere in his remarks on sentence his Honour said of the applicant and the co-offender:-

“Both offenders gave evidence. I thought their expressions of remorse were unconvincing and, in the case of Aguirre particularly, contrived. They were clearly made in the face of the sentencing proceedings. In the case of Aguirre, his decision to give evidence was taken only after he had watched his co-offender McGlashan give evidence.”

90 These findings by the sentencing judge and the ultimate finding clearly made by his Honour, even if only implicitly, that he was not satisfied that the applicant had shown remorse cannot be successfully challenged in this Court.

91 I would reject this part of ground 5.

(d) — In failing to take sufficiently into account the youth and immaturity of the offender

92 The sentencing judge was clearly aware of the applicant’s age. His Honour observed that the applicant was 19 years old at the time of committing the offences and was 20 years old at the time of being sentenced.

93 In his remarks on sentence his Honour quoted part of remarks on sentence delivered by another District Court judge in which that judge had said he would take into account the youth and immaturity of the offender. Judge Knox then said “I indicate that I have taken that into account and it will be taken into account in relation to the finding of special circumstances”.

94 Contrary to a submission made by counsel for the applicant, I infer that his Honour took into account the youth and the immaturity of the applicant, both in determining the head sentences and in determining the non-parole periods, a course which might have been unduly favourable to the applicant.

95 Whether his Honour sufficiently took into account the youth and immaturity of the applicant will be considered by me in determining the first ground of appeal.

(e) — In making negative findings in respect to rehabilitation

96 Findings by the sentencing judge about rehabilitation which were criticised by counsel for the applicant included:-

“I saw nothing in the records of either of the offenders on which I could base a finding that there are prospects of rehabilitation.
The evidence of neither parent (of the applicant) gave me any real confidence that there are neither (semble either) detailed plans for the offender’s rehabilitation nor a structure for him post-release, nor any real insight into his offending behaviour and activities.
The prior history of lack of effective parenting and involvement by Mr Aguirre’s parents do not give any cause for optimism that they will play any effective role in his rehabilitation.”

97 It was submitted that these findings did not take into account the applicant’s childhood during which he had been separated for long periods from one or other of his parents and evidence given in the proceedings on sentence by each of the applicant’s parents and particularly his father.

98 In his evidence the applicant’s father acknowledged that in the past he had not given his son proper support but asserted that he was now committed to helping the applicant, both while he was in prison and after his release. The applicant’s father said in evidence that he was regularly visiting his son in prison and speaking to him on the telephone every two to three days. It was submitted that in a situation where it was inevitable that the applicant would be in prison for a number of years, it was quite unrealistic for the sentencing judge to expect the applicant’s parents to produce “detailed plans” for the applicant’s rehabilitation after his release.

99 There is some force in the submissions made by counsel for the applicant. There was evidence of a change of attitude on the part of the applicant’s parents. It does seem to me that it was unrealistic for the sentencing judge to expect of the applicant’s parents that they should produce detailed plans for the applicant’s rehabilitation after his release, which would necessarily not occur for a number of years.

100 However, the sentencing judge clearly took into account the evidence by the applicant and his parents. The sentencing judge had the advantage denied to this Court of seeing and hearing the applicant’s parents give their evidence. It was open to the sentencing judge to give weight to what had in fact been the applicant’s parents’ conduct in the past. There was other evidence before the sentencing judge, including the pre-sentence reports and the psychologist’s reports, parts of which were not favourable to the applicant’s prospects of rehabilitation. According to the pre-sentence reports the applicant continued to minimise the seriousness of his offences and to demonstrate only limited insight into his abuse of drugs. Mr Taylor found that the results of psychological tests administered to the applicant showed that the applicant has a high to moderate risk of recidivism and an above average pre-disposition for substance abuse.

101 The ultimate finding which the sentencing judge clearly, if only implicitly, made, that the applicant did not have good prospects of rehabilitation, was a finding for which there was at least some evidentiary support and which cannot be set aside in this Court.

102 I would reject this part of ground 5.

Ground 1 — The total sentence was unduly harsh and severe
Ground 2 — The sentencing judge erred in finding that all of the offences were above the mid-range in criminality
Ground 6 — The sentencing judge erred in placing a disproportionate weight on general deterrence

103 These three grounds of appeal can conveniently be dealt with together. In considering these grounds there is utility in summarising some of the features of each of the offences.

104 The offence in count 1 — the offence was committed in company. The offenders were armed with knives. The offence was committed in a carport on a driveway at the victim’s home. The vehicle taken was an expensive vehicle, which was seriously damaged. The victim received some physical injuries, which were, however, minor. The victim received emotional injuries greater than would ordinarily be expected of a victim of this kind of offence. The applicant was on bail at the time of committing the offence. A standard non-parole period of five years has been set for an offence under s 154C(2).

105 The offence in count 2 — the offence was committed in company with three other offenders. Three of the offenders including the applicant were armed with handguns and wielding them. All of the offenders were masked. The offence was committed using the vehicle which had been taken in committing the offence in count 1, to which stolen number plates had been fixed, thereby indicating a substantial degree of planning.

106 The victims of the robbery were two armed security guards operating an armoured truck. The victims were disarmed. The applicant pushed his gun into the neck of one of the victims. The co-offender pulled back the hammer of his gun while continuing to point it at one of the victims. The sum of $6,120 was taken from the victims. The applicant was on bail at the time of committing the offence.

107 The offence in count 3 — the offence was committed in company with one co-offender. Each of the offenders was masked and armed with a semi-automatic weapon. The offence was committed using the vehicle which had been taken in committing the Form 1 offence, to which stolen number plates had been fixed, thereby indicating a substantial degree of planning. Further evidence of planning was the list of Mitsubishi vehicles for sale online, which was later found by police in the applicant’s bedroom.

108 The victims of the offence were four armed security guards, who were disarmed. The sum of $161,000 was taken from the victims. The applicant was on bail at the time of committing the offence. In sentencing for this offence the sentencing judge took into account the Form 1 offence.

109 As to ground of appeal 2, the sentencing judge found that all of the offences were above the middle of the range of objective seriousness for offences of their kind.

110 It was open to the sentencing judge to make this finding even though, as to some of the offences, the prosecutor in the proceedings on sentence had merely submitted that the offences were “at least” in the middle of the range of objective seriousness.

111 His Honour’s assessment of the level of objective seriousness of the offences can be reviewed in this Court only on the principles stated in House v The King (1936) 55 CLR 499. His Honour’s assessment was well open to his Honour and there is no ground for reviewing it.

112 As to ground 6, I noted earlier in this judgment that the sentencing judge in his remarks on sentence referred to what Spigelman CJ said in Sharma about the giving of significant weight to general deterrence in sentencing for armed robberies, notwithstanding the youth of the typical offender.

113 As to ground 1, I consider that, even after taking into account the applicant’s pleas of guilty and his youth, the objective seriousness of the offences was such that all of the individual sentences and the overall sentence were within a proper exercise of the sentencing judge’s discretion.

Orders

114 I consider that the following orders should be made:-

As to the sentence imposed on count 1:-

· Grant leave to appeal against the sentence

· Allow appeal against sentence

· Quash the sentence imposed on count 1 and in lieu thereof impose a sentence of a non-parole period of four years commencing on 24 June 2008 and a balance of the term of two years.

Otherwise, grant leave to appeal but dismiss the appeal against sentence.

115 SIMPSON J: I agree with James J.

116 BARR AJ: I agree with James J.

*********