Baroudi v R - [2007] NSWCCA 48

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Baroudi v Regina [2007] NSWCCA 48
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
2006/2513

HEARING DATE(S): 31 January 2007

JUDGMENT DATE: 27 February 2007

PARTIES:
Tarek Baroudi
Regina

JUDGMENT OF: Sully J Howie J Price J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/21/0153

LOWER COURT JUDICIAL OFFICER: Sorby DCJ

LOWER COURT DATE OF DECISION: 12 May 2006

LOWER COURT MEDIUM NEUTRAL CITATION:
Regina v Tarek Baroudi

COUNSEL:
Peter Hamill SC - Applicant
D Arnott SC - Crown

SOLICITORS:
Camilla Taylor - Applicant
S Kavanagh - Crown

CATCHWORDS:
Criminal law - sentencing - Crown concession on non-parole period - procedural fairness - armed robbery - relevance of guideline judgment - calculation of composite discounts - special circumstances - double counting - totality of sentences

LEGISLATION CITED:
Crimes Act 1900 s 86(2)(a), s 97 (1), 97 (2)
Crimes (Sentencing Procedure) Act 1999 s 43( 2)
Criminal Appeal Act 1912 s 6(3)

CASES CITED:
Ahmad v Regina [2006] NSWCCA 177
Parker v DPP (1992) 28 NSWLR 282
Postiglione v The Queen (1997) 189 CLR 295
R v Capar (2002) 136 A Crim R 564
R v Henry (1999) 46 NSWLR 346
R v Knight (2005) 155 A Crim R 252
R v Lee [2000] NSWCCA 392
R v Lynn [2004] NSWCCA 222
R v Mako [2004] NSWCCA 90
R v Pham [2006] NSWCCA 288
R v "S" (2000) 111 A Crim R 225
R v Simpson (2001) 53 NSWLR 704
R v Sukkar [2006] NSWCCA 92
R v Thomson; R v Houlton (2000) 49 NSWLR 383
R v Olbrich (1999) 199 CLR 270
R v Waqa (No 2) [2005] NSWCCA 33
R v Wilson [2005] NSWCCA 219
Regina v Fidow [2004] NSWCCA 172
SZ v R [2007] NSWCCA 19
The Queen v Watson Ex parte Armstrong (1976) 136 CLR 248
Vakauta v Kelly (1989) 167 CLR 568

DECISION:
Leave to appeal granted. Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/2513
SULLY J
HOWIE J
PRICE J
27 February 2007

Tarek BAROUDI v REGINA

Judgment

SULLY J: I agree with Price J.
HOWIE J: I agree with Price J.
PRICE J: The applicant Tarek Baroudi seeks leave to appeal against the severity of the sentences imposed upon him by Sorby DCJ in the District Court at Parramatta on 12 May 2006.
The applicant pleaded guilty in the Local Court to a six offences namely:
Count 1: On 21 April 2003 at Lansvale, robbery whilst armed with an offensive weapon contrary to s 97(1) of the Crimes Act 1900.
Count 2: On 22 September 2003 at Allawah, robbery whilst armed with an offensive weapon contrary to s 97(1) of the Crimes Act 1900.
Counts 3, 4 and 5: Three counts of detain person in company with intent to obtain an advantage on 22 September 2003 contrary to s 86(2)(a) of the Crimes Act 1900.
Count 6: On 4 May 2004 at Sefton, robbery whilst armed with a dangerous weapon contrary to s 97(2) of the Crimes Act 1900.
An offence contrary to s 97(1) of the Crimes Act 1900 is punishable by 20 years imprisonment whereas an offence contrary to s 97(2) of the Crimes Act 1900 is punishable by 25 years imprisonment. An offence contrary to s 86(2)(a) of the Crimes Act 1900 is punishable by 20 years imprisonment.
The pleas were confirmed in the District Court.
In respect of the first and second count, the applicant was sentenced to a fixed term of imprisonment of two and a half years on each count to date from 4 May 2004 and to expire on 2 November 2006. In respect of the sixth count a sentence of imprisonment with a non-parole period of three years to date from 4 May 2005 and to expire on 3 May 2008 with an added term of two years to expire on 3 May 2010 was imposed. A fixed term of imprisonment of twelve months to date from 4 May 2004 and to expire on 3 May 2005 was imposed in respect of one offence contrary to s 86(2)(a) of the Crimes Act 1900.
Total effective sentence: As a result of partial accumulation, the applicant was sentenced to a total effective sentence of six years with a non-parole period of four years commencing from 4 May 2004.
The Judge had overlooked on sentence two offences contrary to s 86(2)(a). His Honour subsequently corrected the sentencing error by imposing a fixed term of twelve months to date from 4 May 2004 and to expire on 3 May 2005 on each count of the three offences contrary to s 86(2)(a). He did so pursuant to s 43(2) of the Crimes (Sentencing Procedure) Act 1999. The total effective sentence was not altered by the correction.
The offences
The first offence involved the armed robbery of the Lansvale Sports Club on 21 April 2003. At about 11.30pm one of the employees of the club Mr Louk noticed a Holden Commodore near the front door of the club. He approached two men wearing Chubb security uniforms who were standing near the Commodore the bonnet of which was up. One of the men had cut his hand and it was bleeding. Staff from the club came out the front door. As they did this, one of the men removed what appeared to be a pistol from its holster and pointed it at the head of one of the staff. The other male produced a similar item and held it at the head of the other employee. Both males forced the staff members back into the club. The cleaner was located and all of the employees other than Mr Louk were forced to lie on the floor. Mr Louk was taken by the first male to the office area where he was forced to open the safe and cash was removed. The second male stayed with the employees who were ordered to remove their badges and mobile phones. Mr Louk was escorted to the main bar where he was forced to open a safe containing cash. Approximately $49,819 was stolen.
Blood which dropped from the applicant’s cut finger was later DNA matched to him. Other evidence included the applicant’s access to Chubb security uniforms.
The second offence involved the armed robbery of the Allawah Hotel on 22 September 2003. At about 7.20am, the applicant and the co-offender entered the Allawah Hotel at which time the Manager Mr Walden, the cleaner Ms White and a patron Mr Sruhan were present. The applicant pointed a silver coloured pistol at Mr Sruhan and then racked the slide to load the pistol. He ordered Mr Sruhan not to look at him. The co-offender grabbed Ms White by the back of the neck and marched her into the bar area. The applicant ordered Mr Walden to open two safes and money was placed in a backpack in the applicant’s possession and a large green bin. The applicant and the co-offender left the hotel with around $39,345.00 after having forced all three victims into the poker machine room where Mr Walden and Ms White had their hands tied behind their back with plastic cable ties. Mr Sruhan was forced into the corner of the room and ordered not to move.
The three offences contrary to s 86(2)(a) involved the detention of these persons. DNA matching the applicant was extracted from the cable ties.
The sixth offence involved the robbery whilst armed with a dangerous weapon of a chemist shop at Sefton on 4 May 2004. At about 3.45pm, the applicant and a co-offender entered the chemist shop. The applicant produced a pistol and ordered Ms Williams, an employee, to open the till and to give him the money which she did by handing cash to him and by filling a plastic shopping bag. The applicant during this time was thrusting the pistol towards Ms Williams. The applicant then said “Give me the viagra”. Ms Vien who was working in the dispensary indicated where the viagra was and handed several packets to the applicant. More packets of viagra were taken from the dispensary shelf. There were two customers in the pharmacy at the time and as they left the store both offenders were saying “Keep your heads down”.
The offenders were seen by police leaving the chemist shop and the applicant was subsequently arrested. $595.95 cash and viagra were stolen from the chemist.
Subjective circumstances
The applicant was born on 8 November 1981 and at the time of the first offence was aged 21 years. He had no prior criminal record.
The applicant gave evidence before the Judge as did his father and brother Abdul. Two probation and parole reports and two reports of a psychologist Tim Watson–Munro were tendered. A number of references and certificates of achievement were also before the Judge.
In his remarks on sentence (at pp 6-7) his Honour summarised the applicant’s subjective circumstances:
“I now turn to the subjective factors in the prisoner’s favour. The evidence of which is obtained from the material tendered and the oral evidence in particular of the prisoner’s father and brother. He is fortunate to have such an understanding and a supportive family. The prisoner was born in Sydney in November 1981. He attended school to the age of eighteen years. He commenced a course at TAFE in tourism and business management and graduated three years later with a diploma. He then joined his father’s security business where he remained up until his arrest. The prisoner had a major drug and alcohol problem at the time of this offence which is set out in detail in the report of the psychologist Mr Watson-Munro at page 3. He used cannabis, ecstasy, cocaine, crystal amphetamine [and] at the time of the offences, heroin. According to Mr Watson-Munro the prisoner has been drug-free since he’s been in prison. Since his incarceration the prisoner has made attempts at rehabilitation, notwithstanding the restrictions placed upon him since August 2005, when he has been in special custody because of assistance he is to give authorities in upcoming trials. Part of the prisoner’s rehabilitation has been the development of a self awareness of his need to get his life in order. Mr Watson-Munro said in his report of 6 April 2006 at p 3:
“There has been continued and significant improvement in relation to this man’s condition and outlook since I examined him in August 2004. This is reflected in his insight to his problems, his expressed remorse for his behaviour and his strong desire for atonement. This is perhaps best reflected in the fact of his extraordinary cooperation with the police in agreeing to provide evidence in relation to an alleged murder. This decision has come at a considerable cost to your client, and more particularly his immediate family, who will need to re-locate and cut off all ties with friends and extended family members.”
A letter written by the applicant expressing his remorse was tendered. The Judge accepted that he had expressed remorse and was sorry for his actions and their effect. He found that the applicant had pleaded at the first opportunity.
There was evidence before the Judge as to the conditions in which the applicant’s sentence was being served. The added severity of the sentence to be served in protective custody together with the applicant’s rehabilitation were found to be special circumstances to enable the statutory ratio to be varied.
Evidence of the applicant’s assistance to police and to prosecutors in a murder case was tendered to the Judge and Detective Michael Adams gave evidence. After referring to the applicant’s assistance to the authorities as significant, the Judge considered his past and future assistance entitled him to a 40 per cent discount on sentence.
The Notice of Appeal
The application for leave to appeal identified four grounds, namely:
1. The sentencing Judge erred in failing:

a. to give effect to the concession properly made by the Crown Prosecutor as to the appropriate length of the non-parole period.

b. to provide reasons for failing to give effect to the concession made by
the Crown Prosecutor.
c. to refer to the aforementioned concession made by the Crown
                Prosecutor and the proceedings miscarried as a result.
2. The appellant was denied procedural fairness in that the sentencing
Judge failed to warn those appearing for him that his Honour proposed     to impose a non-parole period of far longer duration than that conceded to be appropriate by the learned Crown Prosecutor.

3. The learned sentencing Judge erred in his approach to “special
circumstances” under s 44 of the Crimes (Sentencing Procedure) Act
and in determining the length of the non-parole period.
4. In the particular circumstances of the case the sentence is manifestly
               excessive and a different, less severe sentence is warranted and ought
               to have been imposed.
Dealing with the appeal

The first and second grounds of appeal are related and may be considered together. The applicant contends that the conduct of the Judge during submissions on sentence suggested strongly that he intended to act upon a concession made by the Crown Prosecutor in relation to the length of the non-parole period. However, in his remarks on sentence a little over a month later the Judge did not refer to the Crown’s concession and imposed a non-parole period of around 12 months longer than the concession. It is submitted that the Judge erred in failing to provide reasons for ignoring the Crown’s submission and in failing to warn the applicant he intended to impose a far longer sentence than that contemplated in the Crown’s submission to the Court. The applicant contends that he was denied procedural fairness and as a result the proceedings miscarried.
During submissions on sentence on 10 April 2006, the following exchange took place between his Honour and the Crown:
“Crown: There must be in my submission some cumulation because of (sic) they are completely separate incidents. One can’t look at them globally but having said that your Honour I would not argue or would not wish to be heard against a structured sentence which meant that he served another twelve months in custody and then had some lengthy period of parole bearing his mind his age and the prospects of rehabilitation and the need for assistance during that time.
His Honour: When did he go into custody?
Crown: He went into custody on 4 May 2004. I wouldn’t wish to be heard against the proposition that he serves another twelve months.
His Honour: On the bottom.
Crown: On the bottom. That’s all I wish to say your Honour.
His Honour: Mr Hamill, do you wish to say anything at all in view of that?”
The Crown’s reference to ‘on the bottom’ was by way of legal idiom to the non-parole period. ‘Another twelve months’ would have resulted in the expiration of the non-parole period in April 2007. The total effective non-parole period imposed by his Honour expires on 3 May 2008. The applicant has been in custody since his arrest on 4 May 2004.
The applicant contends that the Judge by the question directed to Mr Hamill SC implicitly accepted the Crown’s concession that the effective non-parole period should be another twelve months and no more which was maintained throughout the submissions which followed.
The Crown contends that counsel for the applicant responded to the Judge’s question by submitting that an even lighter sentence should be imposed to which submissions the Judge listened and at times expressly agreed with. The Judge, the Crown points out, passed no comment other than the question posed to the applicant’s counsel regarding the length of the non-parole period and submits there was no procedural unfairness.
The Judge listened sedulously to Mr Hamill’s submissions. However, it is evident that counsel’s submissions were confined by his understanding that the Judge had accepted the Crown’s concession. No submissions were made seeking to dissuade his Honour from imposing an effective non-parole period of more than a further twelve months.
The concession by the Crown as to the length of the non-parole period was unusual. Whilst in the present case the Crown was endeavouring to assist the Judge, to my mind, it is preferable that such a submission is not made. Suspicion might be aroused that a non-disclosed plea bargain has been negotiated which is inconsistent with the principles of open justice. It is for the Judge alone to decide the sentence to be imposed: R v Olbrich (1999) 199 CLR 270: see also Ahmad v Regina [2006] NSWCCA 177 per McClellan CJ at CL at [23]. In any event, the Judge was not bound to accept the Crown’s concession.
The Judge was nevertheless obliged to accord procedural fairness to the parties.
His Honour’s question to Mr Hamill SC in the passage quoted above:
“……do you wish to say anything at all in view of that?” (emphasis added)
could only be understood to mean that he did not wish to hear from Mr Hamill SC unless he disagreed with the Crown submission. This was a clear indication by the Judge of his acceptance of the length of the non-parole period conceded by the Crown. In the course of the ensuing argument by Mr Hamill SC for a shorter non-parole period, there was no indication by the Judge foreshadowing the possibility that he might impose a non-parole longer than a further 12 months.
In Parker v DPP (1992) 28 NSWLR 282 Kirby P said (at 296):
“It used to be said that “silence” in a judge was “a counsel of perfection”: see The Queen v Watson Ex parte Armstrong (1976) 136 CLR 248 at 294. However, at least in the case of a trial judge sitting without a jury that view has now been disapproved by the High Court of Australia: see Vakauta v Kelly (1989) 167 CLR 568 at 571. Respectfully, I strongly endorse the view there expressed. Fair procedure requires, at least for important decisions and those critical to the determination of a case, that considerations of importance to the judicial officer’s conclusions should be drawn to the notice of the parties affected or their representatives so that a fair opportunity is presented for contrary argument to persuade the judicial decision-maker to a different view.”
In the present case, it was open to the Judge to indicate that either his views were tentative or that he neither accepted nor rejected the Crown concession. Such an indication would have afforded counsel the opportunity to dissuade the Judge from imposing a lengthier sentence. With respect to his Honour, his inadvertent failure to do so denied the applicant procedural fairness.
Mr Hamill SC identified in this Court the submissions which might otherwise have been made before the Judge and provided a list of authorities.
In his remarks on sentence, the Judge did not refer either to the Crown’s concession or to the applicant’s submissions as to the non-parole period. The possibility that he failed to consider the submissions or simply overlooked them when he came to impose sentence arises from his Honour’s failure to mention them. They were important submissions which the Judge was obliged to carefully consider. A reference, however brief, to the submissions in the sentencing remarks would have indicated that his Honour had taken them into account.
The fourth ground of appeal is that the sentence imposed is manifestly excessive in the particular circumstances of the case. The applicant in written submissions contends that if the Judge applied a total discount of 60-65 per cent to the sentence the undiscounted starting point must have been a total effective sentence of 15 years (based on a 60 per cent discount) and a total sentence for the s 97(2) offence of 12-14 years. The applicant contends these ‘starting points’ are manifestly excessive in the circumstances and refers to the applicant’s compelling case of rehabilitation.
The Crown submits that the applicant’s contentions assume that the Judge applied the ‘aggregate approach’ to the discounts rather than the ‘successive approach’. Applying the ‘successive approach’, the total discount of 52 per cent would result in a starting point of slightly over ten years for the s 97(2) offence and in respect of the s 97(1) offences a term in excess of ten years. The Crown submits that if the Judge began with excessive starting points, they are founded upon a number of particularly generous approaches by him considerably favouring the applicant. In the final step, the Crown contends that the Judge got it right being conscious of the need to ensure that the sentence for each offence and the overall sentence, including the non-parole period, were not “unreasonably disproportionate to the nature and circumstances of the offence”.

The Judge determined the applicant was to receive the “full discount” for his plea “under Thompson (sic) for the pleas (sic) utilitarian benefit.” (ROS at p 7).
His Honour was referring to the utilitarian value of the plea of guilty attracting a discount at the top of the range of 10-25 per cent: R v Thomson; R v Houlton (2000) 49 NSWLR 383. The Judge further determined that the applicant’s assistance to the authorities entitled him to a 40 per cent discount on his sentence.
The Judge did not specify a notional starting point for the undiscounted sentences nor did he state whether the separate discounts were calculated on a successive or aggregate basis. With respect to his Honour he should have done so.
This Court continues to encourage sentencing Judges to make the process of giving credit for pleas of guilty and assistance to authorities transparent: R v Thomson; R v Houlton (supra) at [162], R v Lynn [2004] NSWCCA 222 at [14], R v Sutton [2004] NSWCCA [at 16] and [17], R v Waqa (No 2) [2005] NSWCCA 33. As was said by Dunford J in Waqa (supra) at [12] and [13]:
“12 In the light of these authorities, I am not convinced that the only manner in which a number of separate discounts may properly be calculated is on a successive and not an aggregate basis. What is important is that the Judge makes it clear which method he is adopting.
13 The important consideration is to make the process of giving credit for pleas of guilty, assistance to the authorities etc, transparent: R v Thomson (2000) 49 NSWLR 383 at [162]. This is best achieved, in my opinion, by the Judge specifying a notional starting point before specifying the discount or discounts allowed, otherwise the offender may get the impression that although a percentage discount has been specified, no such discount has been in fact been (sic) allowed: R v Mako [2004] NSWCCA 90 at [21], R v Lynn [2004] NSWCCA 222 at [13], R v Sutton [2004] NSWCCA 225 at [16] – [17].”
Without guidance from his Honour it is difficult to fathom what were the starting points of the sentences imposed. It is unnecessary in my view to thoroughly understand how the sentences were arrived at to deal with this ground of appeal.
In his sentencing remarks, his Honour referred to a number of considerations in R v Henry (1999) 46 NSWLR 346, the guideline Judgment on armed robbery offences and applied “Henry as a starting point”. (ROS at 8).
Mr Hamill SC submits in further written submissions to this Court that an appropriate starting point for a sentence on count one was five years which was “the top of the guideline in Henry taking into account on the one hand, the greater sum taken and, on the other, the earlier plea” and an appropriate starting point on count two was six years the incremental increase in the penalty “to take into account that the applicant was no longer a first offender”. To those starting points the discount of 40 per cent for assistance would be applied, the plea having been taken into account in coming to the individual sentences.
The two offences of armed robbery contrary to s 97(1) of the Crimes Act 1900 (counts 1 and 2) committed by the applicant were significantly more serious than the characteristics considered to be the usual case in Henry (supra) at [162-165].
The armed robbery of the Lansvale Sports Club was relatively sophisticated and well-planned. It seems that the offenders used the Chubb security uniforms, the bonnet of the car and the bleeding hand as a ruse to gain access to the Club. Staff were terrorised by pistols being pointed at their heads and were forced to lie on the floor. A member of staff was taken to the office and then to the bar area where he was forced to open safes. A large amount of cash was stolen.
The armed robbery of the Allawah Hotel although not as sophisticated as the first offence was well-planned. The applicant and co-offender utilised the early hours of the business day to enter the hotel and terrorise staff and a member of the public by pointing pistols at them. Cable ties were used to tie the hands of two employees behind their backs. A member of staff was forced to open two safes and a large amount of cash was stolen. It was the applicant’s second offence.
The criminality of the applicant in the commission of these offences was very serious and little assistance can, in my opinion, be derived from ‘Henry’. An offence contrary to s 97(1) of the Crimes Act 1900 is punishable by 20 years imprisonment. Notwithstanding the strong subjective circumstances of the applicant, an undiscounted starting point for each of these offences in excess of ten years was well within an appropriate range.
The notional undiscounted starting point of the sentences imposed by the Judge for the offences contrary to s 97(1) of the Crimes Act 1900 if the discounts were calculated on a ‘successive basis’ (52%) was five years and two and a half months. Calculated on an ‘aggregate basis’ (60%) the notional starting point is six years and three months. Each of these starting points suggests to me that the sentences for these offences were lenient.
The maximum penalty for the armed robbery committed at Sefton (count 6) was 25 years imprisonment whereas the maximum considered in Henry was 20 years. The applicant and a co-offender entered the chemist shop in mid afternoon and pointed pistols at members of staff. Two members of the public were in the pharmacy at the time. Members of the staff were forced to open the till, hand over cash and viagra at gunpoint. This offence, to my mind, was the least serious of the three armed robberies notwithstanding that it attracted a higher maximum penalty. It remains nevertheless a very serious offence.
The notional undiscounted starting point of the sentence imposed by the Judge for the offence contrary s 97(2) of the Crimes Act 1900 if the discounts were calculated on a ‘successive basis’ (52%) was 10 years and five months. Calculated on an ‘aggregate basis’ (60%) the notional starting point is 12 years and six months. A starting point for this offence in excess of nine years in my view was beyond an appropriate range.
The Judge imposed concurrent sentences for the armed robberies committed at the Lansvale Sports Club and at the Allawah Hotel. These were serious separate offences with different victims. With respect, in my opinion, his Honour was wrong to do so. In R v Wilson [2005] NSWCCA 219 Simpson J in considering the question of accumulation remarked [at 37] and [38]:
“37 It is well established that questions of accumulation are, subject to the application of established principle, discretionary. What is important is that, firstly, an appropriate sentence is imposed in respect of each offence; and, secondly, that the total sentence imposed properly reflects the totality of the criminality.
38 In my opinion, it was not only well open to his Honour to accumulate one sentence upon the other two; I doubt that would have been correct not to do so. There were, in fact, three separate offences committed, even though all were committed as part of the same event. In this context the Crown appropriately reminded the Court of the purposes of sentencing set out in s 3A of the Sentencing Procedure Act. The first purpose so specified is ensuring adequate punishment for crime, others here relevant include crime prevention by deterrence, denunciation, making an offender accountable and recognition of harm done to the victim and the community. To fail to accumulate, at least partially, may well be seen as a failure to acknowledge the harm done to those individual victims.” (Emphasis added)
The armed robberies at the club and the hotel were discrete offences. They were offences, as I have observed, during which staff were terrorised at gunpoint and large amounts of cash were taken. The concurrency of the sentences failed to recognise the separate criminality involved, the harm done to those persons who had the misfortune to be present at the time of the offending and the establishments which lost money. Whilst his Honour may have had in mind the principle of totality the sentences should have at least been partially accumulated. A sentencing Court must take care to avoid any suggestion when applying the totality principle that there is some kind of discount for multiple offending: R v M.A.K, R v M.S.K [2006] NSWCCA 381 at [18]: R v Knight (2005) 155 A Crim R 252 at [112]. The error identified, however, favoured the applicant.
A composite discount for the plea of guilty (either 60-65 per cent [the ‘aggregate approach’] or 52 per cent [the ‘successive approach’]) was in a range normally regarded as appropriate for a plea and assistance to authorities of a very high order: see R v Sukkar [2006] NSWCCA 92 per Latham J [at 54] and Howie J [at 3]: see also R v Pham [2006] NSWCCA 288 and SZ v R [2007] NSWCCA 19. The applicant’s assistance to authorities was significant and there was evidence before the Judge that the applicant’s sentence would be served on protection.
The applicant’s solicitor in an affidavit deposed to her understanding of the restrictive conditions of the applicant’s incarceration as did Detective Adams. This evidence conflicted to some extent with Mr Watson–Munro’s recitation in the report dated 6 April 2006 of the conditions experienced by the prisoner at the Special Purpose Centre at the Long Bay Prison Complex.
Whilst the applicant was entitled to a significant discount for his past and future assistance and for the conditions in which his sentence was to be served, the discount determined by the Judge, to my mind, more than adequately recognised the leniency to which the applicant was entitled.
The Judge, furthermore, considered the added severity of the sentence to be served in protective custody together with the “prisoner’s rehabilitation” were special circumstances to enable him to vary the statutory ratio (ROS at p 7). The added term of the total effective sentence equates to 50 per cent of the non-parole period.
The need to serve the sentence on protection was a circumstance taken into account by the Judge in favour of the applicant in the determination of the discount for assistance and in the finding of special circumstances. His Honour in twice taking into account this circumstance was ‘double counting’.
Spigelman CJ said in Regina v Fidow [2004] NSWCCA 172 at [18]:
“Double counting’ for matters already taken into account in reducing the head sentence, and therefore already reflected in the non-parole period, must be avoided…… Almost all matters capable of constituting special circumstances have usually been taken into account in determining the head sentence and sentencing judges should ensure that double counting does not occur.”
See also R v Simpson (2001) 53 NSWLR 704 per Spigelman CJ at [67], R v Lee [2000] NSWCCA 392, R v “S” (2000) 111 ACrimR 225, R v Capar (2002) 136 A Crim R 564.
It was erroneous for his Honour to ‘double count’ in this way. However, this error favoured the applicant.
The Judge was obliged to consider the principles of totality and to ensure that the aggregation of all the sentences was a ‘just and appropriate measure of the total criminality involved’: Postiglione v The Queen (1997) 189 CLR 295 at 307-308 per McHugh J. His Honour was also obliged to ensure that the non-parole period itself appropriately reflected the criminality involved in the offences: Simpson (supra) per Spigelman CJ at [para 70].
Although I do not endorse the approach taken by his Honour to the structure of the sentence, I am not persuaded that the total effective sentence of six years with a non-parole period of four years was manifestly excessive. In my opinion, the non-parole period and balance of term reflect the serious criminality involved in the offences after appropriate allowance is made for the applicant’s plea of guilty, assistance to the authorities and strong subjective circumstances.
The fourth ground of appeal fails.
It is unnecessary to consider the third ground of appeal as it was withdrawn.
The Judge erroneously failed (albeit inadvertently) to accord procedural fairness to the applicant. The submissions identified by Mr Hamill SC which he might otherwise have made in the District Court to my mind would not have made a material difference. The Crown’s concession as to the length of the non-parole period, although well-intended, was remarkably generous to the applicant. His Honour’s sentence was appropriate and no lesser sentence was warranted.
Although error has been identified, the Court, in my view, should not form as required by s 6(3) of the Criminal Appeal Act 1912 an opinion that “some other sentence ………is warranted in law and should have been passed”.
I propose that leave to appeal be granted, but the appeal be dismissed.

**********
AMENDMENTS:

16/05/2007 - Typographical error - Paragraph(s) 5

19/06/2007 - Typographical error - Paragraph(s) 53

LAST UPDATED: 19 June 2007