Murray, Justin James v The Queen

[2013] NSWCCA 12

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	MURRAY, Justin James v R [2013] NSWCCA 12
Hearing dates:	02/10/2012
Decision date:	05 February 2013
Before:	McClellan CJ at CL at 1 Rothman J at 5 Adamson J at 71
Decision:	Leave to appeal granted. Appeal dismissed.
Catchwords:	CRIMINAL LAW - sentence appeal - relevance of capacity to deal with some charges summarily - use of guideline judgment - totality - manifest excess - by majority, no manifest excess and sentence within discretion
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 Johnson v R [2004] HCA 15; (2004) 78 ALJR 616 Markarian v R [2005] HCA 25; (2005) 228 CLR 357 Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 Pearce v R [1998] HCA 57; (1998) 194 CLR 610 R v Henry (1999) 46 NSWLR 346 R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252 Stanford v R [2007] NSWCCA 73 Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 Zreika v R [2012] NSWCCA 44
Category:	Principal judgment
Parties:	Justin James Murray (Applicant) Regina (Respondent)
Representation:	Counsel: R Burgess (Applicant) N Bruni (Respondent) Solicitors: McGowan Lawyers (Applicant) Office of the Director of Public Prosecutions (Respondent)
File Number(s):	2010/52405
Decision under appeal	Date of Decision: 2011-09-02 00:00:00 Before: Berman DCJ

Judgment

1. McCLELLAN CJ at CL: I have had the benefit of reading the judgment of Rothman J in draft. I agree with his Honour's conclusion for the reasons that he gives that the individual sentences were appropriate.

1. I do not agree that the overall sentence was excessive. Notwithstanding the ameliorative matters to which his Honour refers count 1 carries a maximum penalty of 25 years imprisonment. The applicant did not plead guilty to that count. He was convicted following a trial. Both the seriousness of the offence reflected in the maximum penalty and the fact that a trial was required must be reflected in the sentence which was imposed. The sentencing judge concluded that having regard to the serious nature of that offence but also the significance of the other offences it was necessary to partially accumulate the sentences which were individually appropriate.

1. Questions of accumulation and totality are matters primarily within the discretion of the sentencing judge and this Court will be reluctant to intervene. Although the overall sentence which his Honour imposed was severe it was not beyond the appropriate range having regard to the serious nature of the various offences, in particular count 1.

1. Accordingly, I would grant leave to appeal but would dismiss the appeal.

1. ROTHMAN J: The applicant, Justin James Murray, seeks leave to appeal (and, if leave were granted, appeals) the sentence imposed upon him by the District Court on 2 September 2011. If the appeal were successful, the Court would be required to adjust the commencement date of subsequent sentences, imposed by the District Court on 10 February 2012: pursuant to s 59 of the Crimes (Sentencing Procedure) Act 1999.

1. The offences for which the applicant was charged that resulted in the sentences imposed (hereinafter "the impugned sentences"), on 2 September 2011, were:

Count 1: Assault with intent to rob whilst armed with a dangerous weapon, committed 28 February 2010; maximum penalty of 25 years' imprisonment;

Count 2: In the alternative to Count 1, armed with intent to commit an indictable offence, committed 28 February 2010; maximum penalty of 7 years' imprisonment;

Counts 3 & 4: Possess prohibited weapon, committed 28 February 2010; maximum penalty of 14 years' imprisonment, with a standard non-parole period of 3 years' imprisonment;

Count 5: Intimidation with intent to cause fear of physical or mental harm, committed 28 February 2010; maximum penalty of 5 years' imprisonment and/or a fine of 50 penalty units.

1. Mr Murray pleaded guilty to Counts 2 - 5 above, and not guilty to Count 1. The Crown did not accept the plea of guilty to Count 2 in satisfaction of Count 1 and the applicant was tried, and found guilty, on Count 1.

1. The District Court imposed the following sentences (the impugned sentences):

Count 5: Imprisonment for a fixed term of 18 months commencing 25 November 2010 and concluding 24 May 2012;

Counts 3 & 4: For each, imprisonment for 2 years commencing 25 November 2011 and concluding 24 November 2013, with a non-parole period of 12 months concluding 24 November 2012;

Count 1: Imprisonment for 4 years and 6 months commencing on 25 May 2012 and concluding on 24 November 2016, with a non-parole period of 18 months concluding on 24 November 2013.

1. The sentences are best summarised by a table:

Commencement	Conclusion NPP	Conclusion Head Sentence
Count 5: Intimidation	25.11.2010	N/A	24.05.2012
Counts 3 & 4: Possess Prohibited Weapon	25.11.2011	24.11.2012	24.11.2013
Count 1: Assault with Intent to Rob	25.05.2012	24.11.2013	24.11.2016
Subsequent Sentences	25.11.2012	24.05.2014	24.11.2015

1. The impugned sentences, in aggregate, imposed on Mr Murray, a non-parole period of 3 years and a balance of term of a further 3 years. The subsequent sentences extended the non-parole period by 6 months, but did not affect the aggregate head sentence.

1. The applicant raises five grounds of appeal. Those grounds of appeal overlap, but, in summary, are:

Ground 1: Availability of summary trial for the prohibited weapons and intimidation charges;

Ground 2: Error in the application of the guideline judgment in R v Henry (1999) 46 NSWLR 346;

Ground 3: Error in the extent of accumulation;

Ground 4: Failure to consider totality adequately; and

Ground 5: Manifest excess in the individual and aggregate sentences.

Facts

1. The applicant was released from custody in relation to certain criminal offences associated with driving and stealing, namely, drive whilst disqualified, prescribed content of alcohol, disobedience of a request to stop for a breath test, drive recklessly and take and drive conveyance. On his release from custody on 19 February 2010, he made contact with Ms Nobilo, with whom he had been in a relationship. Notwithstanding that Ms Nobilo had previously terminated the relationship, she allowed the applicant to stay with her upon his release from custody. (The spelling of Ms Nobilo's name in these reasons is taken from the ROS for the subsequent charges and the CAN in relation thereto; it has been spelt differently in various documents including the ROS for these impugned sentences, but for consistency I have used this spelling.)

1. On 23 February 2010, he learnt that Ms Nobilo had entered into a new relationship. There was an incident between them, which resulted in the subsequent sentences. The applicant became significantly distressed on learning this information and from 23 February 2010 through to 27 February 2010, the applicant engaged in a binge of alcohol and drugs.

1. On 27 February 2010 the applicant was admitted to Westmead Hospital, having been found on a train in a highly intoxicated state. He had overdosed on alcohol, methadone and valium.

1. On 28 February 2010, he committed the offences for which he had imposed upon him the impugned sentences. The following is an outline of those offences, similarly summarised by his Honour in the sentencing remarks.

1. At about 7.10pm on 28 February 2010, Mr Xu was working behind the counter at a convenience store at Normanhurst. The applicant approached him and said, "Give me cigarettes." Mr Xu asked for money for the cigarettes. The applicant said, "I don't have any money, I will pay you later."

1. Mr Xu did not hand over the cigarettes and then saw the applicant raise his left hand towards the counter. He saw the applicant holding what looked like a handgun. The applicant pointed the gun at Mr Xu. Mr Xu then said, "Okay I will set up a credit account for you. Just give you're [sic] ID." It was Mr Xu's intention to stall him. The applicant said, "Okay."

1. The applicant put his right hand into his pocket and pulled out a number of cardboard cards. Mr Xu said, "Give me your driver's licence." The applicant said, "I don't have a driver's licence, but I can give you some other identification." As the applicant looked through his cards, Mr Xu said, "I'll get the cigarettes for you." Mr Xu then moved along the counter and picked up a metal bar. He then came out from behind the counter with the bar and said to the applicant, "Get out, drop the gun."

1. The applicant ran out of the store in the direction of the train station. Mr Xu chased after him, still holding the metal bar. The applicant dropped the gun on the ground and Mr Xu picked it up. Mr Xu yelled out for someone to call the police. The applicant turned around and walked towards Mr Xu and said, "Give me the gun, give me the gun, give me back the gun." Mr Xu said, "No, wait here for the police."

1. Around this time, Mr Joseph Khoudair was working in his pizza shop. His wife told him that Mr Xu was having a fight. He ran out of his shop with his son, Michael, and nephew, Tony, and saw the applicant and Mr Xu having a "verbal confrontation". Mr Xu had the gun in one hand and the metal bar in the other. Mr Khoudair said to the applicant, "Stay right there mate, stay right there, don't bloody move." The applicant said, "I didn't mean it, I only wanted a packet of smokes." Mr Khoudair saw that the applicant was wearing knuckle-dusters on his right hand. Mr Khoudair yelled, "Call the police." He then told the applicant, "Stand right there, don't move, the police are coming."

1. The applicant ran away, followed by Mr Khoudair, his nephew and his son. The applicant was told to get on the ground and the three men held him. The applicant said to Tony Khoudair, "Let me go, let me go, I have had problems with my girlfriend. I have just broken up." The men told the applicant they were not going to let him go. The applicant took off the knuckle-dusters and dropped them on the ground. The police arrived about five minutes later.

1. As the applicant was arrested and handcuffed, he looked at Mr Khoudair and said, "Watch your shop, watch your fucken [sic] shop, you Lebanese wog." Mr Khoudair said he felt threatened by the applicant's conduct and comments and feared that he would return and damage his pizza shop and hurt him and his family.

1. The applicant was taken to Hornsby Police Station, where he slept for a period of time before being interviewed by the police. He initially informed the police that he thought that he was being interviewed for "drive with no licence".

1. When asked if he had consumed alcohol or drugs that day, the applicant said, "Not tonight, but yesterday I had a fair bit." When told he was at the police station for an attempted armed robbery he said, "I forgot about that." He said that he went to the store because he wanted cigarettes. He said he had a toy gun in his pocket and it fell out and he was "sort of trying to hold it there to get change out of my pocket". The applicant told the police that he was "trying to buy a packet of smokes" and was not trying to rob the shop.

1. The applicant told police that he had broken up with his partner and that, the day before the incident, he had been taken to hospital by ambulance where he was treated for an overdose. Later in his interview he said that it was his intention to get cigarettes on credit. After indicating that he was fed up with life and that all he wanted was a cigarette, he also agreed, somewhat inconsistently, that he had attempted to rob Mr Xu.

1. The circumstances in the store, while confused, were the subject of a judge alone trial and a finding of guilt on Count 1. There is no appeal against that finding. There can be little doubt that at different times during the course of the incident, the applicant had different intentions, namely, to rob Mr Xu and, somewhat inconsistently, to obtain cigarettes on credit. These inconsistencies were the subject of comment by the trial judge.

1. The possession of the replica pistol and the knuckle-duster were the two counts of possess prohibited weapons and the threat to Mr Khoudair, while in custody, was the offence of intimidation.

1. The incident involving Ms Nobilo and the applicant, whereby the applicant drove Ms Nobilo to her new boyfriend's residence and damaged a microwave, were the offences for which the applicant was sentenced on 10 February 2012.

Ground 1: Availability of summary trial for the prohibited weapons and intimidation charges

1. The applicant submits that the sentencing judge made no reference to the fact that these offences could be dealt with summarily. Further, the applicant relies upon Judicial Commission statistics to demonstrate that the majority of prohibited weapons and intimidation offences are dealt with in the Local Court. Finally, the applicant submits that these offences were in the low range of objective seriousness, thus re-enforcing the capacity of the matters to be dealt with summarily.

1. The applicant submits that, once allowance is made for a 25% discount for the plea of guilty, the sentencing judge must have commenced the sentence for the intimidation offence at 2 years' imprisonment and for the prohibited weapons offences, above 2 years. The applicant submits that his Honour failed to have regard to the maximum penalty that would have been imposed in the Local Court when determining the length of the sentences imposed and the degree of accumulation.

1. The Crown, on the other hand, submits that the jurisdictional limit for the three offences was 5 years' imprisonment, and not 2 years' imprisonment as submitted by the applicant. This is a result of the effect of the imposition, or possible imposition, of consecutive sentences: see s 58 of the Crimes (Sentencing Procedure) Act 1999.

1. As a consequence of s 58 and the applicant's previous convictions, the Crown submits there is no basis to assume that the sentences imposed would have been lower had the matter been dealt with in the Local Court. The sentences, the Crown submits, were within the sentencing judge's discretion, given the criminality involved. Moreover, even if the sentences had been imposed in the Local Court, the sentences would have been within the jurisdictional limit of 5 years' imprisonment.

1. None of the sentences imposed are outside of the range, or unavailable for, the criminality of the offence and the circumstances of the offender. Therefore, in order to succeed on this ground, in the current circumstances, the Court would be required to accept that the mere fact that an offence may be dealt with summarily necessarily requires the imposition of a less severe sentence. This Court has never accepted such a proposition; nor should it.

1. In Zreika v R [2012] NSWCCA 44, Johnson J (with whom McClellan CJ at CL and I agreed) said:

"[102] In R v Gent [2005] NSWCCA 370; 162 A Crim R 29, consideration was given to a ground of appeal of this type in the context of a Commonwealth prosecution. After reference was made to the decision of this Court in R v El Masri, and to the provisions of s.4J(1) Crimes Act 1914 (Cth) with respect to summary disposal of federal indictable offences, with the concurrence of McClellan CJ at CL and Adams J, I said at 47 [84]-[86]:

'84 An offence which, as a matter of jurisdiction, is capable of being disposed of summarily may be prosecuted on indictment in a number of circumstances:

(a) the offence may be one of a number of offences in relation to which the accused person is committed for trial but where the person is acquitted of, or the Crown does not proceed with, the more serious charge (see, for example, El Masri);

(b) the offence may be one where the Director of Public Prosecutions, in the exercise of discretion, has determined that the matter ought to proceed on indictment: s.4J(1) Crimes Act 1914 (Cth); s.260(1) or (2) Criminal Procedure Act 1986;

(c) infrequently, the offence may be one where the offender resisted summary disposal and elected for prosecution on indictment: s.4J(1) Crimes Act 1914 (Cth); s.260(1) Criminal Procedure Act 1986.

85 The principles in Crombie and El Masri have particular application with respect to the first class of offences referred to in the preceding paragraph. In such a case, the offender may be in a position to contend, with some force, that he or she stands for sentence in the District Court with respect to an offence which otherwise would have been disposed of summarily in the Local Court. That is not this case.

86 The Commonwealth Director of Public Prosecutions, in the present case, formed the view that this matter was appropriate to be prosecuted on indictment. That is a decision which lies within the exercise of prosecutorial discretion and in relation to which provision is made in paragraphs 5.9-5.11 of the Prosecution Policy of the Commonwealth Director of Public Prosecutions. Similar provisions exist with respect to State offences in paragraph 8 of the Prosecution Guidelines of the Director of Public Prosecutions (NSW): R v Palmer [2005] NSWCCA 349 at paragraph 10. Decisions made in the exercise of prosecutorial discretion are not readily subjected to review or appellate scrutiny by the courts: Maxwell v The Queen (1995) 184 CLR 501 at 512, 534; Hanna v Director of Public Prosecutions [2005] NSWSC 134 at paragraphs 40ff. In R v Murray [2000] NSWCCA 159, Carruthers AJ (Hulme J agreeing) said at paragraph 16:

"It is a question of discretion for the Director of Public Prosecutions whether matters such as this be proceeded within the Local Court or the District Court, and it would only be in a rare matter, I would have thought, that this Court would be prepared to express a view as to whether it was or was not appropriate for the Director to have elected to proceed in the District Court in relation to certain matters as distinct from the Local Court."

In my view, where the Director of Public Prosecutions has elected to prosecute a matter on indictment, it would require a very clear case of inappropriate prosecution of an offence on indictment before the Crombie and El Masri principles could provide an argument in mitigation resulting from a lost opportunity for summary disposal of that offence.'

[103] Circumstances in which a ground of appeal of this type will have real traction are best illustrated by R v El Masri. There, the applicant was committed for trial upon a charge of assault with intent to rob in circumstances of aggravation. He stood trial upon that count, with an alternative count of assault occasioning actual bodily harm. He was acquitted on the first count and pleaded guilty to the second count. The circumstances of the offence of assault occasioning actual bodily harm involved a single punch to the side of the head of the victim, with relatively minor injury resulting. The applicant had no criminal record for offences of violence. This Court took the view that the offence of assault occasioning actual bodily harm was, in truth, a summary offence which was only being dealt with in the District Court on indictment, because of the purely indictable count of which the Applicant was acquitted. It was entirely clear that the offence would otherwise have been dealt with summarily, but for the existence of the more serious charge.

[104] A further example of a clear case where the ground succeeded is McCullough v R [2009] NSWCCA 94; 194 A Crim R 439. There, the applicant was committed for trial on a charge of aggravated breaking and entering with intent under s.112(2) Crimes Act 1900. However, that charge was not proceeded with and the applicant pleaded guilty to common assault and malicious damage to property. In delivering judgment allowing the offender's appeal against sentence, Howie J (McClellan CJ at CL and Simpson J agreeing) said at 444 [22]-[23]:

'22 The Crown eventually did not proceed on the first count. This is unsurprising having regard to the offence that was alleged. Therefore the two matters arising from the incident with his brother were before the District Court only because of the charge in the first count that was not ultimately pursued. Neither the offence of malicious damage or the assault warranted a committal to the District Court. In fact both offences must be dealt with in the Local Court (where the value of the property on the malicious damage charge does not exceed $5,000) unless election is made for trial on indictment: see s 260 of the Criminal Procedure Act and the second schedule to that Act. The election would have been made in this case only because the first count had to be dealt with in the District Court. In these circumstances it is highly relevant that the offences could have, and should have in the normal course of events, been dealt with in the Local Court.

23 The relevance of this fact is more than merely the sentencing limit to which a magistrate is generally restricted. That is the normal consideration given to the fact that an offence could have been dealt with in the Local Court; R v Crombie [1999] NSWCCA 297. However, the maximum penalty for an assault under s 61, when dealt with summarily is relevantly, 12 months imprisonment: s 268 of the Criminal Procedure Act. Here the Judge imposed a sentence of 9 months. Similarly for an offence of malicious damage where the value of the property does not exceed $5,000 the maximum penalty is 12 months. Here the Judge imposed a sentence of a fixed term of 19 months. There is no value stated of the damage but I cannot believe that it would be more than $5,000.'

[105] His Honour then referred to passages from R v El Masri and R v Palmer [2005] NSWCCA 349, before concluding at 446 [26]:

'Although, unlike the situation in El Masri, the Judge in this case did indicate that the two offences could have been dealt with in the Local Court, there needed, in my opinion, to be a closer analysis of the situation because of the reduced maximum penalties that would apply, they being less than the normal jurisdictional limit in the Local Court of 2 years imprisonment. As her Honour noted, both these offences were to the lower end of the scale of seriousness. In my opinion the sentence for the malicious damage was excessive having regard to the nature of the offence and in light of the fact that it exceeded the sentence that the Local Court could lawfully have imposed had it been dealt with in that jurisdiction. The sentence for the assault was also manifestly excessive. The applicant should be re-sentenced for these two offences.'

[106] The position with those charges was contrasted with a further charge against Mr McCullough which was appropriately before the District Court. Howie J said at 446 [27]:

'This criticism cannot be applied to the Judge's consideration of the malicious wounding offence. It was clearly appropriate for that offence to be before the District Court, and the applicant's representative did not suggest otherwise. On its face the appropriate sentence for that offence given its seriousness was more than the magistrate could have imposed. Although the Judge did not refer to the fact that this offence could, at least notionally, have been dealt with in the Local Court, there was no error in failing to refer to that fact.'

[107] Very few cases before this Court display the exceptional circumstances which existed in R v El Masri and McCullough v R. The usual case before this Court, illustrated by the present case, involves a person who is committed for trial upon one or more indictable offences and pleads guilty, usually after charge negotiations, to a lesser indictable offence. A common feature is that the circumstances of the offence for which sentence was passed remain serious, and frequently the offender has a significant criminal history."

1. I further reiterate my comments in Stanford v R [2007] NSWCCA 73 in which I said (and with which McClellan CJ at CL and R S Hulme J agreed):

"[50] A court may have regard on sentence, in a matter dealt with by the court on indictment, to the fact that the matter could have been dealt with by way of summary disposal: R v Sandford (1994) 72 A Crim R 160 at 195. The obverse is also true; a court may choose, for good reason, not to have regard to that fact. In this instance the prosecuting authority chose to have the matter dealt with in the District Court. The exercise of that power was correct and cannot be the subject of criticism. So much is conceded by the applicant. The criminality of the offence in question was too serious to be dealt with by the Local Court. In those circumstances, the sentencing judge is required to deal with the matter in accordance with ordinary principle. The sentencing judge is required to have regard to any standard non-parole period, the maximum sentence that may be imposed and the general principles applicable either under the common law or statute to the fixing of the sentence. The jurisdictional limit for a sentence, if the matter were to have been processed in the Local Court, is not a constraining element (or any element) in those circumstances: R v Crombie [1999] NSWCCA 297 at [14]-[16]; R v El Masri [2005] NSWCCA 167 at [29], [30]. This ground of appeal fails."

1. If each of the matters were dealt with in the Local Court, a sentence of the magnitude imposed in relation to these offences could have been imposed. The sentences themselves are not manifestly excessive, or, as I said above, out of the range of sentences that may be imposed given the circumstances of these offences and the offender.

1. Further, given the fact that this was an extremely experienced sentencing judge, who has imposed a sentence that would have been within the jurisdiction of the Local Court, it cannot be said, notwithstanding the lack of express mention of the issue, that his Honour was unmindful of the fact that these offences could have been dealt with summarily.

1. In those circumstances, this ground of appeal must fail.

Ground 2: Misapplication of the Henry guideline judgment

1. The sentencing judge expressly noted that he considered the guideline judgment in R v Henry when determining the appropriate sentence. His Honour referred to the following matters:

(i)   The maximum penalty in the present case was higher than the offence with which the Court was dealing in R v Henry;

(ii)   The weapon used was incapable of causing any injury (although the victim was unaware of that fact);

(iii)   The guideline judgment in R v Henry was based upon a plea of limited utility and here, there was no plea of guilty to the robbery offence;

(iv)   Unlike the guideline judgment in R v Henry, the applicant is not a young offender with little or no criminal history.

1. The applicant submits that there were a number of relevant factors that the sentencing judge did not take into account in his consideration of R v Henry. In particular, the sentencing judge, it is submitted, did not take account of the applicant's momentary intention to rob, the low objective seriousness of the offence and the inept execution of the offence. Further, the applicant submits that his Honour's remarks gave undue weight to R v Henry and thereby narrowed the range available to him in the exercise of his discretion.

1. His Honour (ROS, p 6) said:

"Of course I should look at the Henry guideline in determining the appropriate sentence. There are a number of matters to be said about that guideline and its relationship with the present case. Firstly, the maximum penalty is higher. Secondly, this is not a weapon like a knife or working firearm. As I have said, a couple of times I think, this weapon was incapable of causing any injury at all. Of course Mr Xu was not to know that and so he was no doubt at least apprehensive at seeing the offender in possession of what to him must have looked like a real firearm.

The Henry guideline is based on a plea of limited utility. Here there was no plea of guilty to the robbery matter, but, as I have mentioned before, there were pleas of guilty to other matters and the issue in relation to the robbery matter was very limited indeed. Finally, when I compare this matter to the Henry guideline, Mr Murray is far from a young offender with little or no criminal history. It is therefore necessary for a substantial period of imprisonment to be imposed upon him, even though he was at the time not functioning as well as he would have been had he not been toxicated [sic] or affected by drugs." (Emphasis added)

1. The applicant's submission is essentially based upon the use of the word "therefore". The applicant submitted that not all of the factors to which the Court referred in R v Henry had been considered by his Honour and that, by use of the word "therefore", his Honour was referring to his youth and criminal history, which, according to the applicant, were not alone sufficient to justify a sentence at the high end of the R v Henry range.

1. In my view, the word "therefore", where used by his Honour refers not only to the applicant's age and criminal history, but to each of the factors recited by his Honour in analysing R v Henry. Of more concern is his Honour's overall approach to the guideline judgment. His Honour has considered R v Henry in "determining the appropriate sentence".

1. A guideline judgment is a tool or servant; not a master. It is to be used by sentencing judges as one more factor that allows sentences to be fixed, bearing in mind the need for equal justice and consistency in sentencing. It is not a mandated outcome from which sentencing judges subtract or to which they add in a mathematical exercise: see Markarian v R [2005] HCA 25; (2006) 228 CLR 357; Muldrock v R [2011] HCA 39; (2011) 244 CLR 120; Pearce v R [1998] HCA 57; (1998) 194 CLR 610 at [46].

1. Ultimately the imposition of a sentence is a process of instinctive or intuitive synthesis that takes account of a range of factors and the purposes of sentencing (in this case set out in s 3A of the Crimes (Sentencing Procedure) Act 1999): see Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465. In Veen (No 2) at 476, the Court (Mason CJ, Brennan, Dawson and Toohey JJ) said:

"The purposes of criminal punishment are various: protection of society, deterrents of the offender and of others who might be attempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guide posts to the appropriate sentence but sometimes they point in different directions."

1. In R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252, this Court confirmed that a guideline judgment should not be used to confine a sentencing court's discretion and in that sense ought not be used as a "rule" or "presumption". Rather, a guideline judgment is to be used as a "check" or "guide".

1. It is also appropriate to reiterate the passage from the majority in Markarian, supra, at [37] (per Gleeson CJ, Gummow, Hayne and Callinan JJ):

"[37] In general, a sentencing court will, after weighing all of the relevant factors, reach a conclusion that a particular penalty is the one that should be imposed. As Gaudron, Gummow and Hayne JJ said in Wong:

'Secondly, and no less importantly, the reasons of the Court of Criminal Appeal suggest a mathematical approach to sentencing in which there are to be "increment[s]" to, or decrements from, a predetermined range of sentences. That kind of approach, usually referred to as a "two-stage approach" to sentencing, not only is apt to give rise to error, it is an approach that departs from principle. It should not be adopted.

It departs from principle because it does not take account of the fact that there are many conflicting and contradictory elements which bear upon sentencing an offender. Attributing a particular weight to some factors, while leaving the significance of all other factors substantially unaltered, may be quite wrong. We say "may be" quite wrong because the task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at an "instinctive synthesis". This expression is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features.

In R v Thomson, Spigelman CJ reviewed the state of the authorities in Australia that deal with then "two-stage" approach of arriving at a sentence, in which an "objective" sentence is first determined and then "adjusted" by some mathematical value given to one or more features of the case, such as a plea of guilty or assistance to authorities. As the reasons in Thomson reveal, the weight of authority in the intermediate appellate courts of this country is clearly against adopting two-stage sentencing and favours the instinctive synthesis approach. In this Court, McHugh and Hayne JJ, in dissenting opinions in AB v The Queen expressed the view that the adoption of a two-stage approach to sentencing was wrong. Kirby J expressed a contrary view. We consider that it is wrong in principle. The nature of the error can be illustrated by the approach adopted by the Court of Criminal Appeal in these matters. Under that approach, the Court takes, for example, the offender's place in the hierarchy and gives that a particular significance in fixing a sentence but gives the sentencer no guidance, whatever, about whether or how that is to have some effect on other elements which either are to be taken into account or may have already been taken into account in fixing the guideline range of sentences. To take another example, to "discount" a sentence by a nominated amount, on account of a plea of guilty, ignores difficulties of the kind to which Gleeson CJ referred in R v Gallagher when he said that:

"It must often be the case that an offender's conduct in pleading guilty, his expressions of contrition, his willingness to co-operate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of inter-related considerations, and an attempt to separate out one or more of those considerations will not only be artificial and contrived, but will also be illogical."

So long as a sentencing judge must, or may, take account of all of the circumstances of the offence and the offender, to single out some of those considerations and attribute specific numerical or proportionate value to some features, distorts the already difficult balancing exercise which the judge must perform.' (emphasis in original)

...

[39] Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, in which, for example, the circumstances of the crime have to be weighed against one or a small number of other important matters, indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. An invitation to a sentencing judge to engage in a process of 'instinctive synthesis', as useful as shorthand terminology may on occasions be, is not desirable if no more is said or understood about what that means. The expression 'instinctive synthesis' may then be understood to suggest an arcane process into the mysteries of which only judges can be initiated. The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends. This case was not however one of them because of the number and complexity of the considerations which had to be weighed by the trial judge."

1. His Honour has taken the guideline range in R v Henry and subtracted (or added) by distinguishing some features, without considering all of the factors together and thereafter utilising R v Henry as a "check" or "guide" to that process. The process does not permit of a comparison with the hypothetical offence and offender to which reference was made in R v Henry, by identifying matters justifying a longer or shorter period than the guideline or constraining the exercise of discretion to a process that confines the outcome to the upper or lower range there identified: see by analogy Muldrock, supra, at [27], per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; and Wong v R [2001] HCA 64; (2001) 207 CLR 584 at 611 - 612, per Gaudron, Gummow and Hayne JJ. Moreover, the comparison made by his Honour omits the special and bizarre circumstances of the commission of the offence, already described.

1. In my view, the process undertaken by the sentencing judge impermissibly used the guideline judgment as more than a "check" or "guide" to the sentence otherwise obtained. This ground of appeal, in my view, has been made out.

Grounds 3, 4 and 5: Extent of accumulation; Totality; and Manifest excess

1. For obvious reasons these three grounds of appeal overlap except in one respect, namely, the extent to which it is submitted that each individual sentence is manifestly excessive. I will deal with that aspect first.

1. In Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 at [6], Gleeson CJ and Hayne J said:

"Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of a conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case."

1. To some extent the applicant's submissions in relation to the manifest excess of the individual sentences repeats, in particular with regard to the intimidation offence, that which was put in Ground 1.

1. In my view, each of the individual sentences is within the range available to the sentencing judge. In relation particularly to the intimidation and prohibited weapons charges, the fact that the starting point of a sentence was at or slightly above 2 years, in circumstances where the sentence could have been dealt with summarily, does not necessitate a finding that the sentence imposed is manifestly excessive. The maximum sentences were 5 years' imprisonment and 14 years' imprisonment respectively.

1. The sentences imposed, in relation to the intimidation and possession of prohibited weapons charges, were 18 months' fixed term imprisonment and 2 years' imprisonment of which there was a non-parole period of 12 months' imprisonment. None of the sentences are at or near the maximum that could have been imposed and each of them is well within the range of sentences available. Therefore, as to the submission that each of the individual sentences is manifestly excessive, this submission cannot be accepted.

1. I turn then to the question of accumulation and totality. The facts have already been set out. The major offence occurred in what is a confused attempt to rob or, by force, to obtain credit for a packet of cigarettes. In the course of that manifestly odd and drug-induced behaviour, the applicant was in possession of two prohibited weapons, a replica pistol and a set of knuckle-dusters.

1. The replica pistol was incapable of being used to harm, as noted by the sentencing judge. Its effect on the victim seems not to have been as serious as might otherwise have been the case, given that the victim chased the applicant out of the store with a steel bar. Clearly, the offence was committed in circumstances where the applicant was significantly affected by drugs and alcohol. The knuckle-duster was never used either to inflict harm or to threaten harm.

1. Further, the intimidation offence was part of the one course of conduct. After apprehension, still under the influence of drugs and alcohol, the applicant, while handcuffed and restrained, threatened the subsequent victim, being the shopkeeper responsible for his apprehension. No doubt this caused the victim much concern and may still cause him concern. Nevertheless, it is nowhere near the worst case of intimidation.

1. The subjective elements have been noted by the sentencing judge and no issue is taken with the degree to which those matters were taken into account by his Honour.

1. Sentencing is an intuitive process and sentencing judges must be allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle: Johnson v R [2004] HCA 15; (2004) 78 ALJR 616 at [26]; Markarian v R at [25], [27].

1. As the High Court stated recently in Muldrock at [18], sentencing discretion is the subject of established principles. It is for error of principle, amongst others of a narrow class, that an appeal court is entitled to intervene.

1. Totality is one of the principles to which sentencing judges must have regard. Likewise, the charging of two or more offences that involve common elements, or arise out of the one course of conduct, requires the sentencing court to ensure that there is no double punishment for the one offending course of conduct: Pearce v R at [40].

1. In identifying whether a single act was an element of each offence charged, a Court should approach the matter as a matter of common sense and not as a matter of semantics: Pearce v R at [42]. Further, when sentencing an offender for more than one offence, a sentencing judge must fix an appropriate sentence for each offence and only then consider questions of accumulation or concurrence and questions of totality: Pearce v R at [45].

1. There is no single correct answer to the exercise of discretion which, as has been already stated, is intuitive. The principle of totality, while requiring that individual sentences reflect the criminality of the particular offence, also requires that the overall sentence imposed reflects the total criminality of the crimes committed.

1. When one considers the course of conduct that led to these charges there can be little doubt that the robbery offence included, in its circumstances, the possession of the prohibited weapons. In addition, the conduct giving rise to the intimidation offence was a result of an inappropriate reaction to apprehension.

1. In this case, the learned sentencing judge, who, as I have stated, is an extremely experienced sentencing judge, was mindful of the principle of totality and purported to apply it. Ordinarily, that is sufficient. However, given the circumstances of these offences, arising as they do out of one course of conduct and involving no possibility of harm to the victims, an aggregate sentence of a 3 year non-parole period with a balance of term of a further 3 years is a result that pays too little regard to the principle of totality.

1. The offence in Count 1 requires as an element that the applicant was in possession of a dangerous weapon. That is the essential element of Counts 3 and 4, and, to the extent that any accumulation has occurred, reflects double punishment. Otherwise put, the aggregate sentence, taking into account the criminal conduct and the circumstances of the offender, is unreasonable and plainly unjust.

1. In my opinion, the injustice in the aggregate sentence is caused by too great an accumulation for both the intimidation and prohibited weapons charges. Particularly, this is the case in relation to the possession of prohibited weapons charges because they were an essential element in the offence of assault with intent to rob whilst armed with a dangerous weapon.

1. For that reason, this ground of appeal has also been made out.

Conclusion

1. Further material has been adduced to this Court to be used, if it were minded to re-sentence. That material reaffirms the applicant's progress in rehabilitation. It also deals with certain medical conditions suffered by the applicant, and points to the bizarre nature of the impugned offences. I consider a less severe sentence is warranted.

1. As a consequence of the foregoing, I also find special circumstances based on the need to accumulate and further consider that, in light of the material on rehabilitation, a significantly longer period under supervision in the community is appropriate. In my opinion, a less severe sentence is warranted and I propose that the Court issue the following orders:

(1)   Leave to appeal be granted;

(2)   The sentences imposed upon Justin James Murray by the District Court on 2 September 2011 be quashed and in substitution therefor the following sentences be imposed:

(i)   For the offence of intimidating Joseph Khoudair, Justin James Murray be sentenced to imprisonment for a fixed term of 18 months to date from 25 November 2010;

(ii)   For the offences of possessing prohibited weapons (Counts 3 and 4), Justin James Murray be sentenced to imprisonment for a non-parole period of 1 year commencing 25 May 2011 and concluding 24 May 2012 as part of a head sentence of 2 years concluding 24 May 2013;

(iii)   For the offence of assault with intent to rob whilst armed with a dangerous weapon, Justin James Murray be sentenced to a non-parole period of 1 year and 6 months commencing 25 June 2011 and concluding 24 December 2012 as part of a head sentence of 4 years and 6 months concluding 24 December 2015.

(iv)   The overall sentence proposed is one comprising a non-parole period of 2 years and 1 month as part of an overall sentence of 5 years and 1 month. Justin James Murray be first eligible to be released on parole on 24 December 2012.

(3) Further, pursuant to s 59 of the Crimes (Sentencing Procedure) Act 1999, the commencement date of the sentence imposed on Justin James Murray by the District Court on 10 February 2012 be varied so that the sentence commence on 25 December 2011 and consequentially the non-parole period thereof conclude on 24 June 2013 and the head sentence thereof conclude 24 December 2014.

1. ADAMSON J: I have had the benefit of reading the judgments of Rothman J and McClellan CJ at CL in draft. I agree with his Honour Justice McClellan's conclusions for the reasons he gives. Accordingly I would grant leave to appeal but dismiss the appeal.

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Decision last updated: 08 February 2013