Hampton v R

[2010] NSWCCA 278

New South Wales
Court of Criminal Appeal

CITATION:	HAMPTON v R [2010] NSWCCA 278
HEARING DATE(S):	22 February 2010
JUDGMENT DATE:	1 December 2010
JUDGMENT OF:	Beazley JA at 1; Hulme J at 2; Latham J at 64
DECISION:	Leave to appeal granted. Appeal dismissed.
PARTIES:	Samuel Hampton Regina
FILE NUMBER(S):	CCA 2006/15629; 2008/13980; 2008/13981; 2008/13982
COUNSEL:	Applicant: Ms L Wells SC Respondent: Ms M Cinque
SOLICITORS:	Applicant: Aboriginal Legal Service Respondent: S Kavanagh
LOWER COURT JURISDICTION:	District Court
LOWER COURT JUDICIAL OFFICER:	Berman DCJ
LOWER COURT DATE OF DECISION:	18 December 2008

- 20 -

2006/15629
2008/13980
2008/13981
2008/13982

BEAZLEY JA
RS HULME J
LATHAM J

Wednesday, 1 December 2010

Samuel HAMPTON v REGINA

Judgment

1 BEAZLEY JA: I agree with Hulme J.

2 RS HULME J: On 18 December 2008, this Applicant for leave to appeal was sentenced by Berman SC DCJ to imprisonment for an effective term of 15 years, including a non-parole period of 11 years and 3 months for a series of offences of dishonesty. The principal ground of appeal is that the overall sentence was manifestly excessive. The offences for which sentences were imposed, or which were taken into account, their dates of commission, and the sentences imposed were:-

1	29/11/04	Aggravated break enter and steal	2 years FT from 9/12/07
2	21/12/05	Armed robbery of 7/11 store at Surry Hills in company	4 years FT from 9/12/08
3	8/8/07	Armed robbery of Lewisham service station [in company]	4 years FT from 9/12/09
4	8/8/07	Knowingly carried in a stolen conveyance APC 10J	Taken into account with offence 3
5	14/10/07	Armed robbery of Narwee 7/11 store	Taken into account with offence 8
6	14/10/07	Knowingly carried in a stolen conveyance BCF 67M	Taken into account with offence 8
7	15/10/07	Knowingly carried in a stolen conveyance BCF 67M	Taken into account with offence 8
8	15/10/07	Armed robbery of Concord KFC store	6 years FT from 9/12/11
9	15/10/07	Demanding property with menaces (x 4)	Taken into account with offence 8
10	16/12/07	Attempted armed robbery of Doncaster Hotel	Taken into account with offence 13
11	16/12/07	Knowingly carried in stolen conveyance XLN 415	Taken into account with offence 13
12	16/12/07	Knowingly carried in stolen conveyance XWG 899	Taken into account with offence 13
13	16/10/07	Armed robbery of Rose Bay Hotel	7 years imprisonment from 9/12/15, including NPP of 3 years and 3 months
14	16/10/07	Armed robbery (x 4) of Rose Bay Hotel patrons	Taken into account with offence 13
15	30/12/07	Armed robbery of Eastlakes TAB and Barbara Ebbink	4 years FT from 9/12/13
16	30/12/07	Knowingly carried in stolen conveyance JCE 093	Taken into account with offence 15

3 Although it has been convenient to number these offences 1 to 16, it is obvious that more than 16 individual offences were committed. The circumstances of the offences included the following:

Offence 1

4 The Applicant and 2 others broke into a flat at Waterloo. They ransacked the apartment and placed a number of electrical goods and personal effects in bags. Police were called and arrested the offenders in the apartment. The Applicant pleaded guilty and on 28 July 2005 was given a suspended sentence of 2 years imprisonment. The Applicant breached the conditions of his bond associated with that suspended sentence by committing the offence I have numbered 2.

Offence 2

5 At about 4.25 am the Applicant and 2 others entered a 7-Eleven store at Surry Hills apparently as customers. While there the Applicant produced a knife, pointing the tip towards the shop attendant and ordered the attendant to open the till. From the till and a drawer some $1500 was stolen and the offenders decamped. The Applicant was convicted of this offence after a trial.

Offences 3 and 4

6 Between 30 and 31 July 2007 vehicle APC 10J was stolen. At about 11 pm the Applicant and 2 others with their heads largely covered entered a service station at Lewisham. The attendant was forced by the neck out of a room into which he had, on first seeing one of the offenders with a knife, fled, terrified. The attendant was told to open the till. Some $600 cash, $11,000 worth of cigarettes, petrol and the attendant’s wallet was stolen. The offenders drove off in vehicle APC 10J which was discovered later, alight in Waterloo.

Offences 5 and 6

7 Between 13 and 14 October 2007 vehicle BCF 67M was stolen. At about 3.15 am on 14 October 2007, the vehicle stopped in front of the locked doors of a 7-Eleven store at Narwee. The Applicant and a co-offender with material over their head and faces, alighted and smashed at the locked doors until they forced one open and gained entry. The Applicant was armed with a hammer and his co-offender with a knife. They forced their way behind the counter and ransacked that area and a storeroom before departing in vehicle BCF 67M. $430 in cash and cigarettes to the value of some $5,800 were stolen. At the time the offenders were gaining entry the sole shop attendant, frightened, activated a duress alarm and hid in a cool room.

Offences 7, 8 and 9

8 At about 10.20 pm on 15 October 2007, and as the staff at the Concord Kentucky Fried Chicken store were about to leave, the Applicant smashed in the front door of the shop with a hammer and he and a co-offender entered the premises. The Applicant was also armed with a Taser and his co-offender with a machete type knife. Demand was made on the manager to open the safe and when he said it was on a time delay one of the offenders accused him of lying and threatened to stab him. They also demanded that the manager produce his valuables and wallet. The manager produced car keys to a BMW BJ 211.

9 The Applicant then, while threatening them with the Taser, demanded that the 4 employees present lie on the ground and produce their wallets. They did so but 3 had no money in their wallets and the Applicant declined to take the $5 that was in the wallet of the fourth.

10 The time delayed safe then opened and the offenders took 4 trays each containing $100 from it before driving off in the BMW. When police arrived they found at the scene vehicle BCF 67M which contained some distinctive items recorded on the Narwee 7-Eleven CCTV camera during the robbery there on the previous day.

Offences 10 and 11

11 Between 13 and 14 November 2007 vehicle XLN 415, a silver Subaru Forrester station wagon, was stolen.

12 On 16 December 2007 just after midnight all patrons left the Doncaster Hotel, security guards checked that all of the windows and doors were locked and the manager took the takings to the office to count them. At 1.39 am a silver Subaru Forrester stopped at the hotel, the Applicant or another of 2 co-offenders produced a large rock from a backpack and threw it at one of the hotel doors. The offenders then proceeded to kick the glass from the door. One offender had what appeared to be a metal bar and all had clothing or similar tied around their heads and faces.

13 One employee who was cleaning the bar and emptying poker machines heard the noise, grabbed her panic alarm and ran to the office. She was seen, looking terrified, by the manager who pulled her into the office and locked the door. From in the office they could see the offenders on CCTV. There was banging on the office door and one offender threatening to hurt and shoot the employees if they did not open the door. One offender looked through the tills and then all ran back to the Subaru. The vehicle was found next day near the hotel and the Applicant’s DNA was found on it.

Offences 12, 13 and 14

14 Between 15 and 16 December 2007 a Subaru station wagon XWG 899 was stolen from Maroubra, about 4 km from where XLN 415 was recovered.

15 At about 1.50 am on 16 December the only barman still working the Rose Bay Hotel noticed vehicle XWG 899 travelling slowly down New South Head Rd as he stood outside the hotel. At about 2.10 am the Applicant or one of his co-offenders smashed one of the glass doors of the hotel with a golf club and the other 2 entered through doors that were open. A security guard saw vehicle XWG 899 parked on the other side of the road and the 2 co-offenders running towards the hotel. The security guard activated his panic alarm. The offender with the golf club raised it and produced a knife and yelled, “Don’t be an idiot. Let go of the button.”

16 When the offenders ran in they ordered everybody to get down on the floor and to give over their money. There were about 6 patrons there at the time. The security guard handed over $10. One patron saw a serrated knife held near his head and 2 offenders demanded his wallet. The wallet, worth about $70 and containing $500 and other items was handed over. A second patron handed over his wallet from which one offender took $50 and threw the wallet down. A third patron took out his wallet, extracted $50 and handed this over.

17 One offender jumped over the bar, threatened the barman with a knife about 30cm long and demanded, “Open the fucking safe or I will stab you”. The barman placed the till tray on the bar and an offender took money, some $1,145 from it. There were demands for money from the safe and the poker machine till, but the barman said that he could not access these. The 3 offenders then ran to the car which was being driven by a fourth person.

18 The vehicle XWG 899 was found on 16 January 2008 having been set alight.

Offences 15 and 16

19 Between 27 and 28 December Subaru Liberty JCE 093 was stolen. At about 1.55 pm on 30 December 2007, Barbara Ebbink was working at the Eastlakes TAB. One offender banged on the Perspex screen and said, “It’s a hold up. I’ve got a gun. Don’t touch the drawer and let us in the door.” Another offender was nearby and after the door was opened they entered behind the counter. The Applicant was also nearby with a baseball bat which he had smashed into a table and was holding above his head. The offenders behind the counter took $2,503 from the till and $20 from Ms Ebbink’s purse. One said, “Where’s the safe?”. The second started to examine it until the first said, “We haven’t got time.” All then ran off and down an alley where they entered a vehicle driven by a fourth person. Police arrived shortly afterwards and then pursued the vehicle. After a chase involving numerous breaches of the traffic rules, the vehicle collided with a police car, the offenders ran off but were chased and captured.

20 Although the Statement of Facts does not say so expressly, it is to be inferred that vehicle JCE 093 was the one used by the offenders on this occasion.

21 The maximum penalty prescribed by s97(1) of the Crimes Act 1900 (NSW) for robbery while armed with an offensive weapon, as the offenders were at the time of offences I have numbered 2, 3, 8 and 13, is 20 years imprisonment. Pursuant to s 112(2) of the Crimes Act, the offence of aggravated break, enter and steal carries a maximum penalty of 20 years imprisonment. Sections 54A et seq. of the Crimes (Sentencing Procedure) Act (1999) NSW prescribe a standard non-parole period of 5 years for such offences where they fall within the mid-range of objective seriousness.

22 Under s 99(2) of the Crimes Act, demanding money with menaces in company carries a maximum penalty of 14 years imprisonment. Pursuant to s 154A and s 117 of that Act, a person who takes and drives a motor vehicle without the consent of the owner or knowingly allows himself to be carried in a stolen conveyance is liable to imprisonment for 5 years.

23 As has been said, the Applicant pleaded guilty to the offence I have numbered 1. He was convicted of the offence I have numbered 2 after a trial. He pleaded guilty to the other offences charged at the Local Court. Although he did not quantity the allowance he made in that connection, in the course of his remarks Berman DCJ observed:-

He (the Applicant) did plead guilty to almost all of the offences for which he is to be sentenced on one occasion early in the prosecution process. I will discount the sentences I would otherwise have imposed to reflect those pleas of guilty where the offender did plead guilty and also to reflect the timing of those pleas.

24 Reflecting remarks in a Pre-sentence and in a psychologist’s reports, Berman DCJ noted that both the Applicant’s parents had alcohol and drug problems, that the Applicant had had no contact with his father and such contact as he had with his mother appeared to have been, on the whole, negative as she was engaged in a chaotic drug-using lifestyle such that the Applicant was exposed to drug addicts and criminals, guns and armed robbers at his mother’s house. The Applicant appears to have had no decent upbringing and by age 11 was engaged in petty crime and frequent truanting from school. He seems to have commenced cannabis use from age 14 and, apart from a period in 2006 and 2007, was dependant on intravenous heroin and cocaine usage from age 17 until his arrest. In this connection Berman DCJ observed:-

The offender asked me to conclude the conditions of his upbringing, particularly the time he spent at Redfern, were such that he has effectively had little chance in leading a law-abiding lifestyle. I will sentence the offender on the basis that whilst he certainly had a choice as to whether he would commit crimes or not his choice was made harder by the circumstances of his upbringing.

25 In late 2005 the Applicant moved to Wollongong. There, with the assistance of prescribed Bupromorphine, counselling support from an Aboriginal Medical Service, and a partner who had grown up in an entirely different environment and who had never had a drug problem, he remained heroin and cocaine free. In 2007 one of the Applicant’s sisters was charged with murder and another died from a drug overdose. These events led to the Applicant returning to Redfern and “the same crew” where he relapsed and, to fund his drug habit, re-offended. Berman DCJ recorded that:-

The offender and his partner now have a young son and this has caused the offender to reflect upon his future. He wants to provide a positive role model for his son, something which his father did not give him. In contrast to earlier times in custody he has not committed any offences whilst in prison and those who visit him in gaol have noticed a change in the offender.

26 The offences dealt with by his Honour were not the Applicant’s first. He was born in November 1982. His first recorded conviction was in 1997, for attempted stealing. Between then and July 2005 he was sentenced by a court on at least 10 occasions for offences, including at least 10 offences of dishonesty, a number of which were stealing from a person. He had been fined, placed on a recognisance and on probation, subjected to control orders and imprisonment, been given parole and had that parole revoked. As has been said, for the first of the offences listed at the beginning of these reasons, the Applicant had in July 2005 been sentenced to 2 years imprisonment but that sentence had been suspended. At the time of committing the other 15 offences I have listed, the Applicant was either on bail or on conditional liberty incidental to this suspended sentence.

27 While recognising that the Applicant’s ability to remain drug-free while living in Wollongong was one of a number of positive indications for the future, his Honour felt unable to conclude that the Applicant had good prospects of rehabilitation and was unlikely to re-offend. His Honour also declined to find that the Applicant was remorseful.

28 In arriving at some of these conclusions his Honour may have been influenced by the fact that remarks of Gibson DCJ when sentencing the Applicant in 2005, record that the Applicant had indicated that he was a changed man (then) as a result of his mother’s illness and that he came across as intelligent, articulate and smart.

29 In support of the contention that the overall sentence was manifestly excessive it was submitted that:-

(i) On the assumption that the discount for the Applicant’s pleas was of the order of 25%, the judge’s starting point must have been of the order of 20 years.

(ii) The sentence on the Applicant is higher than any in the Judicial Commission statistics from July 2001 to June 2008 for “robbery, being armed or in company, multiple offences” which record that of a total of 726 cases including consecutive and non-consecutive terms, no offender received the same or a greater sentence than did the Applicant and out of a total of 362 cases of “non-consecutive terms, multiple offences” no offender received that same or a greater non-parole period or fixed term.

(iii) Having regard to remarks to the effect that, with the exception of the victim of the second offence (who coolly served a customer whilst under threat from the Applicant and his co-offenders) the offences must have been terrifying for each of the victims, his Honour seemed to have given undue weight to this factor and insufficient weight to the fact that no-one was physically injured and that many of the offences resulted in little gain.

(iv) His Honour must have given insufficient attention to the principle inherent in a statement in R v Clinch (1994) 72 A Crim R 301 at 306 which included the following:-

… the severity of a sentence increases at a greater rate than any increase in the length of sentence. Thus, a sentence of five years is more than five times as severe as a sentence of one year.


(v) His Honour did not indicate the extent of the discount he allowed for the Applicant’s pleas (though it was acknowledged his Honour had said he would give a discount that reflected the timing of them).

(vi) His Honour seems to have given insufficient weight to the Applicant’s upbringing, to the factors that triggered his return to crime and his pleas.

(vii) His Honour failed to provide reasons for declining to find special circumstances.

30 The first of these submissions is fundamentally flawed in that there is nothing in his Honour’s remarks to indicate that he approached the sentencing of the Applicant that way. To have done so would have itself amounted to error. In Pearce v the Queen [1998] 194 CLR 610 the High Court made clear that in sentencing for multiple offences, a proper approach required a court to consider each offence separately. In R v Harris [2007] NSWCCA 130; (20070 171 A Crim R 267, this Court pointed out at [45] that principles of totality mean that a court is required to consider how far back from simple accumulation the court should come in determining the final sentence.

31 It is convenient to postpone consideration of the second of the submissions.

32 So far as the third of the submissions listed is concerned, certainly his Honour did refer on a number of occasions to the fear or terror that the actions of the Applicant and his co-offenders must have engendered. It was entirely appropriate that he do so for, after all, that fear or terror was what induced the victims to comply with the demands of the offenders and it was deliberately caused in order that the victims would do so. The express threats included to stab, that one of the employees would not go home that night, and that employees at the Doncaster Hotel would be shot. Implicit in the threats with knives was that death or serious injury might occur.

33 Furthermore conduct liable to cause fear and terror to victims is a matter that the s 97 of the Crimes Act is directed to avoiding.

34 On the other hand, his Honour did go too far in one of his observations. His remarks included:-

It is easy when dealing with armed robbery matters on a regular basis to overlook the fact that, except perhaps in the case of the offence of the 7-Eleven store in Surry Hills, (where the employee had interrupted his response to the offenders’ demands to sell a customer a packet of cigarettes), each offence of armed robbery has a terrified victim. One of the matters I have to bear in mind when sentencing the offender is to ensure that the overall sentence is appropriate given the principle of totality. When I do so I will take into account that a significant number of innocent people have been terrified by the violent, brutal and even ferocious conduct of the offender and those with whom he was acting in concert. Each of those innocent victims has had his or her life changed by the offender’s criminal conduct. The sentence I will ultimately impose upon the offender reflects the fact.

35 There was no evidence before his Honour that every victim had had his or her life changed by the offender’s (or offenders’) criminal conduct and it does not seem to me that his Honour was justified in drawing an inference to that effect from the circumstances of the offences. Different people react differently to life’s traumatic experiences. Some are permanently and badly affected. Some simply move on as if nothing had happened.

36 I have no difficulty in accepting the accuracy of the passage from R v Clinch upon which counsel for the Applicant relied in the fourth of the listed submissions. The passage was cited with approval in MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [16] and similar observations are to be found in Amurao v R [2005] NSWCCA 32 at [65] and Georgiou v R [2005] NSWCCA 237 at [39]. However long and very long sentences are sometimes required and one cannot determine whether inadequate weight has been given to what was said in R v Clinch until one also reflects on other factors. At the end of any sentencing exercise one still has to weigh up an offender’s criminality against the statutory criteria, recognising that in this case the Applicant’s offences included 6 serious offences with which he was charged, 5 other armed robberies (the Narwee store and the Rose Bay Hotel patrons), 4 offences of demanding property with menaces and lesser offences.

37 Turning to the fifth submission, while this Court has encouraged sentencing judges to identify the discount awarded for pleas of guilty, it has also made clear that they are under no obligation to do so – see R v Thompson and Houlton (2000) 49 NSWLR 383 at [160]. Remarks I have quoted make it clear that Berman DCJ adverted to the need to provide such a discount and recognised the circumstances that called for it. His Honour is a very experienced judge and there is no reason to doubt that he made proper allowance in this regard.

38 Consideration of the issue raised in the sixth submission, viz whether his Honour gave sufficient weight to the Applicant’s upbringing, and other subjective factors, requires attention to a number of matters. One is what his Honour said and I have referred to or quoted a deal of this. It was not suggested that his Honour’s remarks do not fairly address the evidence that was before him although there are 2 matters that merit further attention. The first is that his Honour, although saying that he felt unable to conclude that the Applicant had good prospects of rehabilitation and was unlikely to re-offend did not specify the reasons for these conclusions. Some reasons, viz. the Applicant’s past, including his relapse into drugs and crime, are obvious but it should also be noted that the psychologist remarked that:-

It does not appear Mr Hampton possessed helpful, nor resilient, coping strategies to deal with periods of crisis. … Although he expressed a motivation to lead a pro-social life, it is clear Mr Hampton will require intensive and long-term intervention to achieve this goal.

39 The psychologist went on to refer to the Applicant’s problematic drug use. Hopefully that, and some of the intervention to which the psychologist referred, will be able to be addressed in prison but any long–term intervention will require the Applicant’s co-operation and because that can not be guaranteed, it is easy to see why his Honour was not satisfied that the Applicant’s prospects were better.

40 One other matter relevant in this connection is his Honour’s decision not to find that the Applicant was remorseful. His Honour gave no reasons for this and none appear from the documents or evidence that were before his Honour with the possible exception of the fact that the Applicant chose to go to trial on the charge I have numbered 2. It would clearly have been preferable if his Honour had provided reasons for this conclusion but because the onus of establishing remorse is on the Applicant, there is not much evidence in any event and the Applicant gave evidence and his Honour had an opportunity of assessing him in a way that this Court cannot, it is not possible for that conclusion to be reversed.

41 And while it may be accepted that the circumstances of the Applicant’s upbringing, and for which it might fairly be said he was not responsible, were a major contributing factor to his offending, it cannot have escaped his attention that the vast majority of the members of society do not carry on in the way he behaved and society could not function reasonably if they did. Furthermore, many in the courts, the parole authorities and others involved in consequence of the Applicant’s frequent offending prior to 2004 must have sought to impress on him both the need for proper standards of behaviour and the serious consequences to him that would be likely to flow from continued offending. His partner in Wollongong would seem to have taken the same stance.

42 Nor am I unconscious that the need for money to feed his drug addiction was a major factor in the Applicant’s offending. However, there were alternatives to maintaining that addiction. They may not have been easy but they existed and the Applicant must accept that he chose not only to commit one offence in the 2004 and later period, but to continue offending. And if he is susceptible to peer pressure, as he suggested, it is to be hoped that the pressure of the legal system – which may well increase if he offends again – will also have some effect. He might well now realise that yielding to peer pressure has cost him far more than if he had resisted it.

43 The other major factor bearing on the issue of whether his Honour gave sufficient weight to the Applicant’s upbringing and other subjective factors requires consideration of the length of the sentence imposed and other criteria to be taken into account, a topic to which I shall turn in a moment.

44 The seventh point made in the course of the submissions on behalf of the Applicant is simply wrong. When adverting to the topic and remarking that there were matters that could amount to special circumstances, his Honour expressed the view that the effective non-parole period he was imposing was the minimum that properly reflected the overall criminality of the Applicant’s conduct. In any event, the almost 4 years between the expiration of the effective non-parole period and full term is sufficient to allow the Applicant adequate supervision and assistance if he is ever to reform.

45 One appropriate criterion to bear in mind in a consideration of whether the overall sentence imposed on the Applicant is excessive are the penalties Parliament has provided for his offences. In summary they, and the number of offences committed by the Applicant falling into each category were:-

Armed robbery 20 years 11
Aggravated B, E & S 20 years SNPP 5years 1
Demand money with menaces 14 years 4
Carried in conveyance 5 years 6

46 Of course those maxima are, in accordance with general sentencing principles, reserved for a worst case falling within the relevant provisions, and their significance is even more attenuated in the case of those offences taken into account rather than charged. Nevertheless, the magnitude of these penalties does help to place the sentence imposed on the Applicant into some perspective.

47 Another criterion is the guideline judgement of this Court in R v Henry (1999) 46 NSWLR 346. In that case, at [161-165], the Chief Justice indicated that head sentences for offences and offenders answering the following description should generally fall between 4 and 5 years:-

(i) Young offender with no or little criminal history;
(ii) Weapon like a knife, capable of killing or inflicting serious injury;
(iii) Limited degree of planning;
(iv) Limited, if any, actual violence but a real threat thereof;
(v) Victim in a vulnerable position such as a shopkeeper or taxi driver;
(vi) Small amount taken; and
(vii) Plea of guilty, the significance of which is limited by a strong Crown case.

48 Given his criminal record, the Applicant does not fall within sub-paragraph (i). The number of offenders and earlier stolen vehicles makes clear that the offences did not fall within sub-paragraph (iii). The $600 in cash and $11,000 worth of cigarettes taken in offence 3, and the $430 and $5,800 worth of cigarettes taken in offence 5 preclude those offences falling within sub-paragraph (vi). Although the matter is arguable I would also take the view that the $1,500 obtained in offence 2, the $1,145 taken from the hotel in offence 13 and the $2,503 taken in offence 15 also fall outside the description of a “small amount”.

49 In short, all of the Applicant’s armed robbery offences, considered individually, fall well above the seriousness of the sort of offence encompassed within the R v Henry guideline and merited significantly, and in some cases substantially, higher sentences. The sentences for 4 of those offences had also to reflect the offences taken into account.

50 Another criterion is to consider the sum of the sentences the Applicant received and none of which individually were, or could reasonably have been, criticised in the appeal. The total of the fixed terms and non-parole period is 23 years and 3 months, with the full term being 27 years. Of course, the principle of totality will operate on these figures but it is important to remember what that principle is. As the Court said in R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267 at [44 - 45]:-

Perhaps the leading statement of it is an extract from D A Thomas, "Principles of Sentencing" endorsed in Mill v R (1988) 166 CLR at 59 at 63:-
The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences to review the aggregate sentence and consider whether the aggregate sentence is 'just and appropriate'.
Two points may be made. Firstly, the principle is expressed in terms of coming back from the result of a simple aggregation. Secondly, if each individual sentence is appropriate for the criminality of the offence to which it relates, prima facie additional criminality requires an increase in sentence.

51 Yet another criterion is to consider the impact of the degree of concurrency involved in Berman DCJ’s sentence. The effect of that concurrency is that the Applicant has been forced to serve:-

(i) Only 1 year of the 2 years fixed term imposed for offence 1 before the sentence for offence 2 commenced;
(ii) Only 1 year of the 4 years fixed term imposed for offence 2 before the sentence for offence 3 commenced;
(iii) Only 2 years of the 4 years fixed term imposed for offence 3 before the sentence for offence 8 commenced;
(iv) Only 2 years of the 6 years fixed term imposed for offence 8 before the sentence for offence 15 commenced;
(v) Only 2 years of the 4 years fixed term imposed for offence 15 before the sentence for offence 13 commenced; and
(vi) The whole of the sentence of 7 years including a non-parole period of 3 years and 3 months for offence 13.

52 While undoubtedly the effective sentence of 15 years including a non-parole period of 11 years and 3 months is severe, so is the reduction from what, judged individually, his offences merited.

53 Judged another way, the 7 year full term for the offence numbered 13 – a term that, when offences 10 to 12 are taken into account, cannot be regarded as other than lenient - would commonly have included a non-parole period of 5 years and 3 months. That period has been extended by merely 6 years for 5 further serious armed robberies. And clearly there had to be some substantial increase for each. The courts have to send a clear message to offenders that, having committed a number of offences, they cannot continue offending with virtual impunity because little or no additional punishment will be imposed.

54 By comparison with any of the criteria to which I have referred, I do not regard the sentence imposed on the Applicant to be excessive, certainly not manifestly so.

55 On behalf of the Applicant, reliance was also placed on a schedule of cases of multiple armed robberies and the Judicial Commission statistics. In that latter connection, the point was made that in the statistics as at May 2009 for offences under s 97(1) of the Crimes Act “Term of Sentence – consecutive and non-consecutive terms” the longest sentence was of 14 years imposed on 1 of 726 offenders and only 6 offenders had sentences of 12 years or more. Attention was drawn to the fact that the sentence imposed on the Applicant thus placed him higher than anyone else. However, as I said in Ma and Pham v R [2007] NSWCCA 240 with the concurrence of McClellan CJ at CL and Hoeben J:-

Subliminal in the reference to the statistics and the observation that the sentences here fall into the highest end of the range is the proposition that that is indicative of error. The proposition must be rejected. As this Court has said on many occasions, the range extends to the maximum penalty set by Parliament and it is against that that an offender's conduct must primarily be judged. Certainly, the statistics may at times inspire further reflection on the sentence in a particular case and perhaps give some limited guidance but, of themselves, they do not demonstrate error. Particularly is this so because, within each category, they provide no details of the cases reflected in them.

56 The fact that the sentence imposed on the Applicant is longer than any other reflected in the statistics is a cause to pause and reflect. However, someone must be at the top of each set of statistics and the fact that the Applicant is does not persuade me in any way that the sentence imposed on him is wrong.

57 Counsel appearing for the Applicant also referred the Court to a schedule of 58 cases where offenders had been sentenced for multiple offences under s 97(1) of the Act. Many of those cases are of no or very limited assistance either because their circumstances are so different from the circumstances here or are simply cases where an appeal to this Court by an offender was dismissed as not manifestly excessive, no issue having arisen as to whether the sentence was inadequate. However, I have included as appendices to these reasons a summary of those that are arguably useful, together with a table summarising the results of them.

58 I do not regard it as necessary to comment on all of these although it is appropriate to refer to a number of them. There are undoubtedly some that argue that the sentence imposed on the Applicant should have been lighter. Included in this group are Cowan, Waqa, Gonzales and Antecki, (although it should be said that the latter’s youth and rehabilitation prospects must have encouraged leniency and in R v McIvor at [21], Howie J clearly thought that the sentence in that case was wrong).

59 On the other hand, Cavanagh’s offending was broadly comparable to that of the Applicant and his sentence of 14 years including a non-parole period of 10 years was not much less than that of the Applicant. Some of Baghdadi’s offences were more serious than the Applicant’s but some were less and he did not commit anything like the number of offences that the Applicant did. His sentence was 13 years including 9 years non-parole.

60 Sentencing is not an exact science and certainly when regard is had to the whole collection of cases, including the differences in offending and sentences, they do not indicate that the effective sentence imposed in this case is manifestly excessive. (Another matter that some of the cases do indicate is that the Applicants’ offending cannot simply be regarded as one discrete episode of offending – see e.g. Natoli v R [2009] NSWCCA 36 at [34], and R v Rumble [2006] NSWCCA 211at [54].)

61 Before I leave my reference to the statistics and prior cases, I think it desirable to refer to some further remarks of Howie J in R v McIvor at [17-18] and with which Tobias JA agreed, viz:-

17. In support of the third ground of appeal the applicant has called in aid sentencing statistics and they reveal, as is often the case, that the sentences actually imposed do not appear to reflect the statutory maximum penalty of 20 years. The sentencing statistics are frequently being used to displace the maximum penalty so that the sentencing court and this Court are being asked to have regard to the highest sentence that has been imposed in order to determine the appropriate sentence to be imposed in the instant case. The statistics indicate to me that the range of sentences being imposed for multiple armed robbery offences is too low. But the applicant was entitled to be sentenced in accordance with the actual range of sentences being imposed rather than by the range that this Court might think is appropriate.
18 … Some of the sentences on their face seem to me to be manifestly inadequate in light of the large number of offences for which sentence was being imposed or that were being taken into account. …

62 I respectfully agree with his Honour that, “The statistics indicate to me that the range of sentences being imposed for multiple armed robbery offences is too low.” However, I do not agree with his further statement that, “But the applicant was entitled to be sentenced in accordance with the actual range of sentences being imposed rather than by the range that this Court might think is appropriate”.

63 Such an approach is adopted when a court has to sentence for an offence decades or so old and sentencing standards have changed in the interim. However to adopt it as a general proposition would be to emasculate the role of this Court in ensuring that sentencing levels are appropriate and, if too low, are adjusted upwards. Among the most obvious examples of this are the decisions of this Court in R v Henry and R v Jurisic (1998) 45 NSWLR 209 and although both of those cases were decided by 5 judge benches, such a Court has no more power than does the Court when constituted by 3 judges. Furthermore, it is difficult to reconcile Howie J’s remarks with the observations of 5 members of the High Court in Poyner v R (1986) 60 ALJR 616:-

Mr James referred us to the remarks of Bray CJ in R v Barber (1976) 14 SASR 388 at 389-390 where it was said that if the prevailing standard of sentences for a particular offence is too low, ‘it can be raised after due warning, but by steps and not by leaps’. Similarly, in Breed v Pryce (1985) 36 NTR 23, Nader J at 33, said that if the view is taken that past penalties have been too light, the position should be corrected by an upward trend in penalties rather than by an abrupt increase. These statements provide useful guidance which should always be kept in mind, but they do not state a binding principle.

In the result I am not persuaded that the effective sentence imposed on the Applicant is manifestly excessive. Because of the length of that sentence leave to appeal should be given but the appeal should be dismissed.

64 LATHAM J: I agree with Hulme J.

SCHEDULE

In El Youssef v R [2010] NSWCCA 4, this Court dismissed an appeal against an effective sentence of 11 years imprisonment including a non-parole period of 8 years and 3 months from 12 November 2007. Until 9 July 2008 the offender was also serving the balance of a parole period. The sentences were imposed for 2 offences of robbery, one of larceny from the person and one of robbery whilst armed with a dangerous weapon. Taken into account were 5 further offences, 2 of larceny from the person, one of armed robbery, one of robbery and one of drive conveyance without consent. All offences were committed whilst on parole.

Three of the offences charged carried a maximum sentence of 14 years. The charge of robbery with a dangerous weapon carried a maximum sentence of 25 years imprisonment.

The robbery with a dangerous weapon charged occurred when the offender, armed with a replica pistol and an accomplice, armed with a rifle, entered a bank and obtained $9,490. The armed robbery taken into account occurred at a service station when the offender, armed with a rifle, threatened to shoot the attendant and a member of the public. The amount taken was $400. The other offences of robbery and larceny occurred when the offender grabbed money from tills that he had induced shop assistants to open as incidents of apparently normal transactions. Amounts stolen in that way totalled about $3,100. He was allowed a plea discount of approximately 12½%.

The offender was aged 41 at the time of sentence. He had pleaded guilty but had a substantial prior record including 5 offences of robbery in company for which he was sentenced in 1998 to imprisonment for 10 years including a minimum term of 7 years.

In R v McIvor [2010] NSWCCA 7 this Court reduced an effective sentence of imprisonment for 15 years including a non-parole period of 9½ years to imprisonment for 10 years including a non-parole period of 7 years and 3 months. Both sentences were cumulative on a period of 1 year whilst the offender was serving a balance of parole. The sentences were imposed after the offender was convicted of 2 offences of armed robbery and one of assault with intent to rob whilst in company, all offences being committed within a 2 week period. Taking the view that the overall sentence was excessive, this Court confirmed head sentences for each offence of 7 years but altered the commencement dates of the second and third sentences so as to allow a greater period of concurrency. Each offence involved the offender and an accomplice Cavanagh, both armed with knives, entering a liquor store, and threatening the occupant.

The offender was 24 at the time of the offences. He had a criminal record from the time he was 18 including 3 counts of armed robbery one such offence leading to a sentence of imprisonment for 5½ years. His offending was while on parole in consequence of that earlier sentence.

In Cavanagh v R [2009] NSWCCA 174, this Court dismissed an appeal from an effective sentence of 14 years including a non-parole period of 10 years imposed for 4 offences of armed robbery and one of assault with intent to rob whilst in company. This sentence would seem to have been cumulative on a balance of parole that the offender also had to serve but the report is unclear as to the extent of this. Taken into account were 5 offences of armed robbery, 2 of malicious damage, 1 of carrying a cutting weapon, 1 of resisting and 1 of assaulting a police officer in the execution of his duty and 1 of attempting to take and drive a conveyance without consent. The robbery offences occurred during a 5 week period and were of personnel employed in retail stores. On one occasion the offender was armed with a screwdriver but on the others with a knife. Most of the offences resulted in the theft of multiple thousands of dollars.

At the time of offending the offender was aged about 23 and had been on parole for 3 weeks following sentences for 3 prior offences of armed robbery. He had an appalling record from age 13. His father had been deported when the offender was 7 and there had been no contact since. He had commenced living on the streets at age 12. His offences were committed to feed a drug addiction. The sentencing judge had declined to find that the offender was remorseful or had reasonable prospects of rehabilitation but had been allowed a discount of about 10% for his pleas.

In Natoli v R [2009] NSWCCA 36 this Court allowed an offender’s appeal and imposed an effective sentence of 10 years imprisonment including a non-parole period of 6 years and 8 months. Six offences had been charged and 4 taken into account. In 9 of the offences the offender had approached a passenger on a suburban train, produced what appeared to be a hand-gun but which was in fact a replica and demanded money or property. In some cases there was an express verbal threat to kill, in some there was attempted and in some actual physical violence, in some no property was taken but in the others a small amount of cash or a mobile phone was acquired. In the tenth offence the offender and an accomplice approached someone in the grounds of the University and demanded money. There was a struggle in which the victim was pulled to the ground and kicked to the head. All offences occurred over a 10 day period and fell within s 97(1) of the Crimes Act1900 for which the maximum penalty was 20 years imprisonment. The offender had pleaded guilty but the discount allowed him is not referred to in the report.

The offender was 21 at the time, had a low level of intelligence with significant impairment of cognitive capacity, had pleaded guilty at an early stage, was regarded as contrite and having reasonable prospects of rehabilitation. He had no prior criminal record.

In R v Baghdadi [2008] NSWCCA 239 this Court allowed a Crown appeal and imposed an effective sentence of imprisonment for 13 years including a non-parole period of 9 years in respect of 2 charges of armed robbery under s 97(1), one of robbery whilst armed with a dangerous weapon under s97(2), one of aggravated car-jacking, and one of specially aggravated breaking, entering and stealing. The first 2 of these offences carried maximum penalties of 20 years imprisonment, the third and fifth 25 years imprisonment and the fourth 14 years imprisonment. A discount of 25% had been allowed for the offender’s pleas.

The first two offences were committed against pizza delivery drivers and netted Baghdadi and a co-offender $171. In the third offence, which involved stealing a car from a car-wash, a co-offender pointed a gun at a car-wash employees face and the car owner’s chest. In the third offence Baghdadi, armed with a revolver, and a co-offender robbed a “cash in transit” security guard of $29,000. In the fifth offence Baghdadi and a co-offender accessed a flat and threatened the occupants, holding a gun to the head of a child until they were given access to a safe. They stole a rifle, $20,000 and other items. Baghdadi was aged 19 and 20 at the time of offending, he was a heavy user of ice and cocaine and alcohol and his intellectual functioning assessed as borderline. He had no prior record although he was on bail at the time of committing the 4^th and 5^th offences. He was granted a discount of 25% for his pleas but was not assessed as unlikely to re-offend or having good prospects of rehabilitation.

In R v Cowan [2008] NSWCCA 124 a Crown Appeal was allowed and an effective sentence of 11½ years including a non-parole period of 8½ years was imposed. Parity seems to have played a part in the decision.

The Respondent had been sentenced for 2 groups of offences. The first group, to which the Respondent had pleaded not guilty, related to an armed robbery in company at the Woolwich Pier hotel and included robbery of the hotel, from which something over $24,000 was stolen, 6 counts of robbery of customers at the hotel, 6 counts of assault with intent to rob customers who had no property stolen and one count of theft of a motor vehicle used to flee the scene. All sentences were made concurrent, the longest being those for the robbery offences and being for 9 years including a non-parole period of 5½ years.

The second group consisted of 5 counts of armed robbery, 1 count of aggravated armed robbery under s 97(2) and one count of possession of a prohibited weapon. Twenty-two further armed robbery offences and 1 offence of breaking, entering and stealing were taken into account. These further offences followed a pattern of the Respondent entering shop premises and threatening a member of the staff, almost invariably with a knife, and demanding that cash be handed to him. Sometimes the staff member had his or her own property also stolen and on a number of occasions this followed the staff member being taken to a storeroom at knife-point. The largest amount recorded as taken during the course of one of these incidents seems to have been about $700. The longest sentences for these offences were, except for a period of 6½ months, made concurrent with those for offences associated with the Woolwich Pier Hotel. In the case of this second group of offences, a discount of 25% was allowed for the offender’s pleas.

The Respondent, aged 32 at the time of sentence had had a childhood that was characterised by physical and emotional abuse. He left home at 13 after which he received no guidance other than from institutions or prison authorities. From soon after 13 he abused alcohol, heroin and other drugs. He had an extensive prior record including numerous convictions and a number of prison sentences for offences of dishonesty.

In Qing An v R [2007] NSWCCA 53, upon the ground that it was manifestly excessive, this Court reduced an effective sentence of 12¼ years including a non-parole period of 10 years to an effective sentence of 10½ years including a non-parole period of 7½ years. The Appellant had participated with another offender in robbing persons at 6 brothels, there being 2 victims at 2 of the brothels. The offences occurred over a period of about 16 days and the property stolen consisted of personal effects including mobile phones, watches, neck chains and cash. Apart from 2 occasions when the cash stolen amounted to, at most, $1,600 and $1,200, the value of the property stolen from any venue was relatively low. At two of the brothels the offenders were armed with knives and at the others a pistol or replica pistol. He had pleaded not guilty.

Qing An was 28 at the time of offending in 2002. He had been sentenced previously to imprisonment for 4 years including a minimum term of 18 months for 5 counts of robbery whilst armed. He had been convicted after a trial, had shown no remorse and his prospects of rehabilitation assessed as not good.

There were references in R v Qing An at [97] and [181] to previous cases not included in this schedule.

In Anaki [2006] NSWCCA 414 this Court reduced an effective sentence of imprisonment for 13 years including a non-parole period of 9½ years to imprisonment for 10 years including a non-parole period of 7 years imposed for 3 offences against s 97(1) of the Crimes Act. All offences arose from the robbery or attempted robbery of a bank by 4 offenders during a 6 week period. Most times the offenders were unsuccessful but in the second offence, some $45,000 was obtained. Taken into account were 4 other offences committed during the same period, one of being armed with intent to rob another bank, one of being armed with intent to take or drive a motor vehicle and 2 of being carried in a conveyance without consent of the owner. All offences occurred over a 6 or 7 week period.

Anaki was about 26 at the time of the offences. He had a significant record from the time he was 17, the most serious aspects of which were 4 offences of robbery in company. He had been released from the longest of the sentences imposed for those offences less than a month before the first of the offences considered by this Court. Psychological and pre-sentence reports indicated that a poor upbringing had had a significant effect on the offender’s psychological and emotional condition. He commenced cannabis use at age 13 and became a heavy heroin user when 14. Although at the time of the earlier sentencing, the judge had recommended that the offender undertake drug and alcohol counselling on release, he had not then reported for interview. The sentences under appeal had been arrived at after discounts of 17½% for pleas and 2½% for contrition and there was evidence before Blackmore DCJ and this Court that the offender was seeking to address his drug use.

The commencement of the sentences imposed by Blackmore DCJ and this Court was deferred until Anaki had served almost 2 years for his breaches of parole. The effective non-parole period was three quarters of the combined (almost) 12 years. One matter taken into account was that the weapons used, sledgehammers, were not in their inherent nature or manner of use likely to injure the victims of the offences.

In R v Rumble [2006] NSWCCA 211 the offender had pleaded guilty to three offences under s 97(1) and to 3 similar offences taken into account. Most of his victims were shopkeepers although one was someone walking along the street. The offender threatened all with a knife or a blood filled syringe, demanding money. All offences occurred during a 5 day period but Kirby J, took the view that offences committed on different days, could not be regarded as falling within one continuing episode of criminality. The offender was regarded as having prospects of rehabilitation and had been allowed a 25% discount for his pleas.

The offender was 31 at the time of offending. He had a loving relationship with his mother but commenced serious drug taking when he was 15 and his offences were committed to fund his habit. He had an extensive criminal history for offences of dishonesty but none of his earlier offences had involved threats of violence. He had been in prison and had been placed on a s 9 bond immediately prior to 3 of the 6 offences with which this Court was concerned. Apart from a minor adjustment to one sentence because of an error on the part of the sentencing judge this Court allowed the appeal but did not interfere with the overall sentence of 8 years including a non-parole period of 5 years.

In R v Maxfield [2005] NSWCCA 136 this Court refused to interfere with an effective sentence of 8 years and 9 months including a non-parole period of 6 years and 9 months imposed on an offender who had been charged with 7 counts of armed robbery with an offensive weapon. Taken into account were 3 further similar offences and 2 of assault with intent to rob with an offensive weapon. The sole ground of appeal was that the effective non-parole period was 77% of the total term notwithstanding a finding by the sentencing judge of the existence of special circumstances. The offender had pleaded guilty but the report does not indicate the extent of the discount allowed for that.

The offences were constituted in the main by the offender entering small retail shops and threatening the shopkeeper with, generally a knife but on one occasion a replica pistol. The maximum amount obtained on any occasion seems to have been about $1,090. The offender had a prior record for robbery including corporal violence and the Court held that no lesser sentence was warranted.

In R v Waqa [2004] NSWCCA 405; (2004) 149 A Crim R 143 this Court allowed a Crown appeal and imposed sentences the effective total length of which was10 years including a non-parole period of 5 years and 6 months on an offender who had pleaded guilty at an early stage to 12 counts of robbery whilst armed with an offensive weapon, 12 further offences of a similar nature and one of attempted armed robbery being taken into account. All offences had occurred over a 7 week period. The sentence reflected a discount of about 25% for the offender’s pleas.

The modus operandi of the offender was to have an accomplice drive him to small business establishments such as service stations, video and liquor stores which the offender and another accomplice would enter and threaten store attendants with knives. Some $13,000 worth of cash and cigarettes were obtained from the offences charged and another $3,107 from the offences taken into account.

In the circumstances of the case this Court thought it appropriate to follow views of the original sentencing judge and the sentence does not constitute an endorsement by the Court of the sentence imposed. The report does not detail the offender’s subjective circumstances.

In R v Bereyne [2003] NSWCCA 153 a 2 judge bench dismissed an appeal against an effective sentence of 12 years including a non-parole period of 8 years on an offender who had pleaded guilty in the District Court to 3 charges of armed robbery with 9 further charges of armed robbery, 5 of stealing motor vehicles, 2 charges of stealing and 2 of possessing car-breaking implements taken into account. The offences were committed over a 4½ month period but the circumstances of each are not detailed in the report. In some the offender was armed with a knife and in some with a blood stained syringe. Some were committed whilst the offender was on bail and he had previously served terms of imprisonment for lesser offences of dishonesty.

The offender was 23 at the time of offending, he had a very disturbed background, limited schooling and his criminal behaviour could be attributed to the abuse of drugs. The discount for pleas was not specified.

In R v Gardener [2003] NSWCCA 2 this Court allowed a Crown appeal and imposed an effective sentence of 9 years and 3 months including a non-parole period of 6 years and 6 months on an offender who, in company with a co-offender armed with a sawn off rifle robbed or attempted to rob 3 banks and robbed customers of 2 of them. Something of the order of $25,000 was obtained. The sentencing judge took the view that on at least 2 of the occasions the bank employees and customers would have been left with ongoing psychological sequelae of the events. A 15% discount was allowed for the offender’s pleas and special circumstances were found. The sentence imposed by this Court was less than it otherwise would have been in consequence of the proceedings being a Crown appeal and some parity issues.

The offender was 21 at the time of the offences. He was aboriginal and had a very poor and disrupted background, significant learning and behavioural difficulties. He suffered psychotic illness at times. He had a criminal record from when he was 10 and had a lengthy history of drug addiction. His prospects of rehabilitation were very poor.

In R v Dorsett [2002] NSWCCA 326 another 2 judge bench, although varying individual components, confirmed an effective sentence of 12 years including a non-parole period of 8 years on an offender who had been sentenced for 6 counts of armed robbery under s 97(1) of the Crimes Act with 4 further offences of armed robbery and one of demanding money with menaces taken into account. The offences were committed over a 25 day period. The modus operandi was to go into business premises and threaten employees with a knife. At the time of offending the offender was on parole for offences of, inter alia, break, enter and steal, armed robbery and armed robbery for wounding for which he had been sentenced to an effective sentence of 11 years including a non-parole period of 9 years.

The offender was 32 at the time of offending and the offences were in order to feed a heroin addiction. He had been given a discount of 20% for his pleas.

In R v Gonzalez [2002] NSWCCA 287 there were two co-offenders. Both had been sentenced to imprisonment for effective terms of 12 years, including non-parole period of 9 years. A two judge bench reduced the sentence on Francisco Gonzalez to one of imprisonment for 10 years and 6 months including a non-parole period of 7 years and 10 months and that imposed on Carlo Gonzalez to imprisonment for 9 years and 8 months including an effective non-parole period of 7 years and 2 months. Each had been charge with 20 counts of robbery whilst armed with an offensive weapon, their offences having been committed during a 5 week period. The victims were employees of small retail businesses commonly in vulnerable situations and the weapons used were variously a baseball bat, a screwdriver and a knife

Francisco was 26 at the time of the offences. Carlos was 23. Francisco had previously served a number of periods in prison, the longest of which was 9 months. Carlos had a lesser record and one which did not disentitle him to some leniency. The offences were committed in order to feed heroin addictions. Each offender had been given a discount of 25% for his pleas. Both were regarded as contrite and at least Carlos as having prospects of rehabilitation.

In R v Ghisolfi [2002] NSWCCA 166 a 2 judge bench of this Court upheld an effective sentence of 12 years including a non-parole period of 9 years on an offender who pleaded guilty to 2 counts of armed robbery with an offensive weapon, 2 similar offences being taken into account. The offender had, over a period of 9 days, and within 3 weeks of being released from custody and on parole, attended 3 hairdressing salons and 1 hospital kiosk, produced a knife and demanded money. The report does not state the total amount stolen but 3 offences yielded only about $1,000. The offender had pleaded guilty but the discount for his pleas was not stated.

The offender was 39 at the time of offending. He had an appalling record and had spent only a short time out of custody during the previous 20 years. His prior offending included at least 11 counts of armed robbery with another 17 offences of the same or a similar nature having been taken into account. He was a heroin addict.

In R v Antecki [2001] NSWCCA 312 another 2 judge bench reduced an effective sentence of 11 years including a non-parole period of 7 years to one of 9 ½ years including a non-parole period of 5 ½ years on an offender who had pleaded guilty to 8 counts of armed robbery and 2 counts of attempted armed robbery. Another 13 offences of armed robbery and one of attempted armed robbery were taken into account. In each offence the offender was armed with a kitchen knife and all offences but one were committed in company. The victims were console operators at service stations. Generally the proceeds were under $500 but on one occasion $1,100, and on another, $3,400 was taken.

The offender was 18 at the time of the offences. He had a minor criminal record including one offence of robbery in company for which he had been placed on probation. He had had an unsettled upbringing and had resorted to heroin as a way of coping with his mother’s death when he was about 12. He was of above average intelligence and the sentencing judge had assessed his prospects of rehabilitation as above average. He received a 25% discount for his pleas.

Name		Offences charged	Offences taken into account	Effective Sentence	Features
El Youssef		2 robbery 1 larceny 1 robbery with dangerous weapon	2 larceny 1 armed robbery 1 robbery 1 drive conveyance	11yrs incl 8¼ yrs NPP Appeal dismissed	Most victims were shop assistants who yielded total of $3,500. One victim, a bank, yielded $9,490. 2 offences involved rifle. Sentence cumulative on 8 months balance of parole. Offender 41 with substantial record – plea discount 12½%.
McIvor		2 robbery 1 assault with intent to rob	CCA reduced to 10 yrs incl 7¼ yrs NPP	Victims were liquor stores – in company and armed with knives – offending over 2 weeks - sentence cumulative on 1 year balance of prior sentence. Plea not guilty - offender 24 with substantial record.
Cavanagh		4 armed robbery 1 assault with intent to rob in company	5 armed robbery 7 lesser offences	14 yrs incl 10 yrs NPP Appeal dismissed	Robberies were of retail stores & most yielded thousands of dollars – offending over 5 weeks – sentence cumulative on un-stated balance of prior sentence. Offender aged about 23 with bad record – rehabilitation prospects not good. 10% plea discount.
Natoli		1 assault with intent to rob whilst armed 4 armed robbery 1 robbery in company	3 armed robbery 1 assault with intent to rob whilst armed	CCA reduced to 10 yrs incl 6 yrs 8 m NPP	9 victims were train passengers – little taken – weapon was replica gun – offending within 10 days. Offender aged 21 with significant cognitive impairment – no prior record – early plea.
Baghdadi		2 armed robbery 1 robbery with dangerous weapon 1 aggravated car jacking 1 specially aggravated B, E & S	CCA increased to 13 yrs incl 9 yrs NPP	2 victims pizza drivers 1 victim car-wash employee 1 victim “cash in transit” guard yielding $29,000. Last offence involved gun to child’s head, yielding $20,000+. In company - no prior record – borderline intellectual functioning. 25% plea discount.
Cowan		1 armed robbery 6 robbery 6 assault with intent to rob 1 theft of vehicle	9 yrs incl 5½ yrs NPP See also row below	3 offenders robbed hotel and customers – knife, axe and replica pistol - $24,000 stolen – Offender aged 32 – childhood characterised by abuse & no guidance – substantial record.
Cowan (same offender as above)		5 armed robbery 1 aggravated armed robbery 1 Possn of prohibited weapon	22 armed robbery	CCA increased sentence above to 11½ yrs incl 8½ yrs NPP	Robberies were of shop premises – weapon once a screwdriver and other times knife – yield $240 - $600 per robbery charged - offending over 6 weeks. 25% plea discount for this group.
Qing An		8 armed robbery	CCA reduced to 10½ yrs incl 7½ yrs NPP	In company – knives or replica pistol – 1 or 2 victims at brothels – proceeds small except for $1,200 and $1,600 - offending duration 16 days. Plea NG – offender 28 with significant record – rehabilitation prospects not good.
Anaki		1 assault with intent to rob whilst armed 1 armed robbery 1 attempted armed robbery	2 carried in conveyance without consent 1 armed with intent 1 aggravated assault (being armed) with intent	CCA reduced to 10 yrs incl 7 yrs NPP (+ 2 yrs balance of parole)	Offences were against banks – weapon was sledgehammer - $45,205 taken in one offence. Offender about 26 with significant record and on parole – discount of 17 ½% for plea.
Rumble		1 armed robbery 2 assault with intent to rob	2 armed robbery 1 assault with intent to rob	8 yrs incl 5 yrs NPP CCA allowed appeal in part but did not change result	5 offences were against retail shop employees – 1 offence against pedestrian – weapons were knife (4 times) and blood filled syringe (twice). Offender 31 with substantial criminal history. Plea discount 25%.
Maxfield		7 armed robbery	3 armed robbery 2 assault with intent to rob whilst armed	8¾ yrs incl 6 ¾ yrs NPP Appeal dismissed	Offences against retail shops – weapons knife or replica pistol – maximum amount about $1,090 Offender had some prior record including robbery. Un-stated plea discount.
Waqa		12 armed robbery	12 armed robbery 1 attempted armed robbery	CCA increased sentence to 10 yrs incl 5½ yrs NPP but felt limited by judge’s views.	Victims were small retail establishments – in company - $16,000 obtained Offender’s subjective circumstances not detailed but about 25% plea discount.
Bereyne		3 armed robbery	9 armed robbery 5 stealing vehicle 2 stealing 2 possn car breaking implements	12 yrs incl 8 yrs NPP Appeal dismissed	4½ month period of offending – weapon was knife or syringe Offender 23 – very disturbed background – pleas discount not stated.
Gardener	3 armed robbery		1 armed robbery 1 attempted armed robbery	CCA increased to 9¼ yrs incl 6½ yrs NPP	Of charged offences, 2 victims were banks. In third case victims were 3 bank customers. Offences taken into account similar. Total proceeds about $25,000. Co-offender had sawn-off rifle. Offender 21 with poor background, drug and psychiatric problems. Rehabilitation prospects poor. 15% plea discount.
Dorsett	6 armed robbery		4 armed robbery 1 demanding money with menaces	12 yrs incl 8 yrs NPP In substance appeal dismissed	Offences against business premises over 25 day period – weapon was a knife Offender 32 – on parole – 20% discount for plea.
Gonzalez 2 offen-ders	20 armed robbery		CCA reduced to 10½ yrs incl 7 yrs 10 m NPP and 9 yrs 8 m incl 7 yrs 2 m NPP	Offences against retail businesses over 5 weeks – weapons baseball bat, screwdriver & knife. Offenders 26 & 23 – plea discount 25% - some prior convictions.
Ghisolfi	2 armed robbery		2 armed robbery	12 yrs incl 9 yrs NPP Appeal dismissed	Victims small retail businesses. Weapon a knife. Offender 39 with appalling record. Plea discount not stated.
Antecki	8 armed robbery 2 attempted armed robbery		13 armed robbery 2 attempted armed robbery	CCA reduced sentence to 9½ yrs incl 5½ yrs NPP	Offences against service stations – in company – proceeds between hundreds and $3,400. Offender 18 – minor record – unsettled upbringing – above average rehabilitation prospects – plea discount 25%.

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