Penfold v The Queen; Ward v The Queen

[2010] NSWCCA 61

New South Wales
Court of Criminal Appeal

CITATION:	PENFOLD v R; WARD v R [2010] NSWCCA 61
HEARING DATE(S):	9 February 2010
JUDGMENT DATE:	13 April 2010
JUDGMENT OF:	Grove J at 1; Simpson J at 104; RA Hulme J at 105
DECISION:	In each appeal, leave to appeal against sentence granted and appeal dismissed.
CATCHWORDS:	CRIMINAL LAW AND PROCEDURE - Sentence - Robbery whilst armed - Two victims - Extremely serious injury to one victim - Co-offenders - Different roles - No error by sentencing judge in application of principles - Assessments within range of discretion - Grounds raising no particular point of principle
CATEGORY:	Principal judgment
CASES CITED:	Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (2002) 56 NSWLR 146 Fahs v R [2007] NSWCCA 26 GAS & SJK v The Queen (2004) 217 CLR 198 Ibbs v The Queen (1987) 163 CLR 447 R v Cahyadi [2007] NSWCCA 1; (2007) 168 A Crim R 41 R v Frazer & Spencer [2007] NSWSC 1449 R v Henry (1999) 46 NSWLR 346 R v Mostyn (2004) 145 A Crim R 304 R v Mungomery (2004) 151 A Crim R 376 R v Sotheren [2001] NSWCCA 425 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Way (2004) 60 NSWLR 168 R v Wright [2009] NSWCCA 3 Tatana v R [2006] NSWCCA 398 The Queen v Veen (No 2) (1988) 164 CLR 485 Vaovasa v The Queen (2007) 174 A Crim R 116
PARTIES:	Kenneth John PENFOLD - Applicant Brendan WARD - Applicant REGINA - Crown/Respondent
FILE NUMBER(S):	CCA 2007/12644; 2007/8834
COUNSEL:	In person (Penfold) - Applicant T Ozen (Ward - Applicant F Veltro - Respondent/Crown
SOLICITORS:	Nyman Gibson Stewart - Applicant Ward S Kavanagh - Solicitor for Public Prosecutions - Respondent/Crown
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2007/31/0310 (Penfold); 2007/31/0311 (Ward)
LOWER COURT JUDICIAL OFFICER:	Hosking DCJ
LOWER COURT DATE OF DECISION:	22 August 2008

CCA 2007/12644
CCA 2007/8834

GROVE J
SIMPSON J
RA HULME J

13 April 2010

Kenneth John PENFOLD v R

Brendan WARD v R

Judgment

1 GROVE J: Before the court are applications for leave to appeal against severity of sentence imposed by Hosking DCJ (the Judge) at Sydney District Court following a hearing which had commenced in Newcastle. The principal offences by each applicant were committed in the course of a joint criminal enterprise and it is convenient to commence by recapitulating the facts which had been placed before the sentencing court in an agreed statement. This statement is lengthy but, having regard to some matters being sought to be raised by the applicant Penfold in particular, it should be recited in full. It is noted that the applicant Ward, who is represented by Mr Ozen of counsel on the appeal, did not challenge any factual finding by the judge. The applicant Penfold appeared in person on the appeal. It is further noted that Penfold himself signed the statement of facts before they were tendered and I shall later refer to the circumstances surrounding this action by him.

2 Both applicants pleaded guilty to offences which I will later specify. The third offender mentioned in the statement of facts (Da Silva) pleaded not guilty to an indictment presented against him. At a first trial the jury was unable to reach a verdict but at a following trial he was convicted and is presently remanded awaiting sentence.

3 The agreed statement reads:

“The victim, David Reid, owns the butcher shop at Belmont North. This shop is on the Pacific Highway. Adjacent to the shop is a house, in which David Reid, his de facto wife Christine Huber, and Christine’s 9 year old daughter Emily, all live. Christine also assists in the shop, but has no involvement in staffing, ordering, or other aspects of the business.
Christmas is traditionally a very busy trading period for Reid’s business. He has a lot of orders come in that need to be prepared. He also sells tonnes of prawns. Apparently it is not unusual for him and his workers to do up to 2 days straight without a break in the lead up to Christmas. During the 2005 Christmas period, Reid had employed a couple of casual workers to assist in the shop. One of these workers was the accused Ken Penfold. That casual employment ceased at the conclusion of that busy period.
In November 2006, Reid contacted Penfold and asked him whether he would like to work again in the butcher shop over the Christmas period. Penfold agreed to do this, and was to start on 11 December 2006.
On or about the period between the 11 ^th and 15 ^th of December, Penfold was heard by Amber Harrison (Penfold’s girlfriend) discussing a robbery with Brendan Ward. Ward and Penfold had known each other closely for years, at one stage sharing a house together. Amber heard them discussing Reid’s manner of dealing with the money he makes in his business. Apparently Reid takes money out of the till when it builds up. He puts it in his pocket, and takes it into the house to ‘hide’. Christine Huber also follows this routine. It seems that prior to the 2006 Christmas period it was not clear to Penfold exactly where in the house the money was kept.
On 11 December, Penfold commenced work at Reid’s butcher shop. Penfold asked if there was enough work for his girlfriend Amber to also be given casual work. Reid agreed to hire her as well, and she commenced on the 15 ^th December. At that time she and Christine Huber recognised each other. They had met some 6 months previously, although they had not kept in touch.
In the week between 18 and 25 December, Brendan Ward discussed with a friend Michael Barry that he was going to do a robbery on a butcher that Kenny (Penfold) was working for. He told Michael Barry:
‘Just go in, crack crack crack, put him to sleep and get his money.’
On 21 December, Amber noticed that Christine took a large amount of money out of the shop till, telling Reid that she was going to put it in the drawer, and then went into the house. The money was actually being kept in a drawer in a cupboard in the main bedroom.
At this time, Brendan Ward was living in the shed/garage of premises in which his friends Will and Chris Robinson lived. On 22 December, Brendan Ward and Ken Penfold met up at this house. The Robinsons previously knew Penfold, and recognised who he was when he arrived. Ward and Penfold discussed the robbery and its planning. Ward (?) discussed the large amounts of cash that Reid had on him, and that he kept heaps in his pocket while he was at work. The arrangement was to do the robbery on Christmas Eve.
At about 2.30 pm on 24 ^th December 2006, while at work, Reid noticed Penfold had not put a $50 note into the till following a sale, but rather had it in his hand. An argument ensued, and Reid fired Penfold. Reid phoned the police and reported this theft. Penfold left in his car, and as he was leaving, Christine came out and attacked the car with a wrench or something similar. Both she and Reid were screaming abuse and kicking the car. Penfold threatened Reid that it (sic) he went ahead with the theft charges, then Penfold would report Reid for his work practices, and would accuse him of providing drugs to his employees, would say that he was selling frozen overseas prawns as fresh Australian prawns.
Police attended the shop, and spoke then with Amber, taking her to the police station. She was released without charge when Reid rang and said that he no longer wanted to press charges against either her or Penfold.
That evening, Amber asked Penfold if the robbery was still to go ahead. Penfold replied that it was too hot now after this incident, and that he had called the job off. He told Amber that there had been a car watching the premises.
During the next couple of days, several threatening text messages were sent to Reid by Penfold. Penfold was demanding that he and Amber be paid; when they were fired they were both owed several hours of pay.
One of these threats was as follows:
‘Dave, you want to fucking speak to me, you dog cunt. Come and fucking ring me and speak to me now, you fucking maggot. You want to be something, come on lets go and meet up right now, cunt. I’ll cave your fucking head in, cunt. Pay me my fucking money or I’ll come and pay you a visit dickhead. I don’t give a fuck about you no more….’
On 26 ^th December, Boxing Day, Ward and Penfold together went to the races. At the same time, Amber met up with Reid at the Coles carpark in Belmont where he paid her $300. Later, Penfold was angry with the amount she had been paid, which he said represented $10 an hour, and was too small an amount.
At the races, Penfold told Ward that he would still like to get Reid, especially as he was of the opinion Reid was persisting in treating Amber and him badly, and holding off paying them appropriately. At about 8.30 pm, Penfold phoned Reid and told him ‘Pay me for the work I done or I’ll bash you.’
Ward and Penfold had gone from the races to a nightclub in town, Frostbites, or Frosties. Penfold left early, but Ward stayed. The manager reported two incidents with Ward – whom she described as a man in a pink shirt and hat. There were two fights, and after the second, she noticed that the pink shirted man had left. This was prior to 1 am, when the nightclub closed.
Security staff at Frosties recall that Ward was picked up in a car driven by Rod Da Silva, whom they knew, and they drove away together. Records indicate the hotel closed that night at 1 am, that is, over 2 hours prior to the offence. Da Silva and Ward left before this time.
Meanwhile, the threatening messages from Penfold prompted Reid to arrange a meeting with Penfold to pay him. This meeting occurred between 10.30 and 11 pm on the evening of 26 ^th December 06, at the carpark of McDonalds in Kotara. Reid paid Penfold $550. Penfold had taken along a baseball bat to threaten Reid if necessary.
At about 10.40 pm that same date, 26 December 2006, phone records establish that Rodney Da Silva phoned Penfold, and they had a discussion that lasted some three minutes.
At about 1.40 am on Wednesday 27 ^th December, Penfold received a phone call. About 20 minutes later, Ward and Da Silva arrived at Penfold’s house in Da Silva’s car. Ward retrieved a machete from Penfold’s bedroom. Amber Harrison heard Ward, who was wearing a pink shirt, say ‘Lets go get it’ or ‘lets go get him,’ she can’t recall which.
Penfold followed Da Silva and Ward to Da Silva’s house. They all went to the house. Da Silva retrieved a shotgun, and two shotgun cartridges. He also got two balaclavas and two police jumpers. Ward and Da Silva put on these jumpers. There was some discussion, and then they all got into Penfold’s car, putting the weapons in the boot. Penfold was (sic) drove the car.
They drove to Reid’s house, parking across the road on an old dirt track. The car stayed idling, with one of the offenders remaining in the car at the wheel. The other two offenders got out of the car. The weapons were removed from the boot, one offender taking the shotgun, and the other offender taking the machete. The time was about 3.20 am.
One of the men knocked on Reid’s door, waking Reid and Huber. When Reid asked who it was, one of the men identified himself as a police officer. Reid was suspicious, as they were standing back out of the light. This went on for a couple of minutes. One man then called out ‘It’s the police, I’ve got a gun, open the door.’ Beside the front door of the house is a large window, which is almost floor to ceiling.
As Reid approached the window to look through it, the offender armed with the shotgun discharged it, shooting through the window.
The window shattered. Crime scene evidence indicates that Reid was standing right up against the window, and evidence also shows that the area in front of the door, enclosed by the bamboo screen, is only narrow. That is, Reid was shot at very close range. Reid was seriously wounded, as the shotgun blast hit him in his torso, filling his shirt with shotgun pellets and broken glass.
One of the offenders immediately reached through the shattered window and opened the door from the inside. As the front door was opened, the shotgun was again produced. The shotgun was again fired. This blast shot Reid again, with the blast taking off the main part of the heel of his hand, and badly damaging his hand and wrist. Pieces of his flesh were later found adhering to the wall. Reid heard someone call out ‘Where’s the money?’ and then he lost consciousness.
During this time, Christine Huber was trying to phone the police. Her young daughter Emily had been woken and had come to the commotion, but Christine had shouted to her to go back to her bedroom. This call to triple 0 went through, and the offenders can be heard on the recording of that call. One of the offenders is heard shouting:
‘come on, come on, don’t want to fuck around, dickhead.’
One of the offenders pointed the shotgun at Christine. The other offender hit Christine in the head with the machete handle, and took the phone from her, ending the call. He pulled her to her feet, and held the blade against her throat. He told her to take him to the money. She took him into the main bedroom and opened the drawer. Several thousands of dollars were there, approximately $25,000. The offender took the money, and ran back to the loungeroom, where both offenders ran from the house, and back to the waiting car. One offender dropped his balaclava across the road near the car, and Ward complained that he had cut his leg on the broken window glass. The car and offenders drove away from the scene.
The 3 offenders split the proceeds of the offence.
Penfold took home $4000 out of this. Ward got about $12,000, and Da Silva had about $19,000 when his house was searched.
The balaclava was found by a witness across the road from the butcher shop and house, in an area where the get away vehicle had been parked.
Christine Huber was able to place another call to triple 0, and police and ambulance arrived within minutes. Attending police noted a red mark and swelling on her cheekbone where she had been hit with the machete handle.
Reid was rushed to hospital in critical condition. He was taken into surgery, where the surgeon Dr Draganic found that only one third of Reid’s liver remained intact. The remainder was so badly damaged it had to be removed. Reid had multiple pellet punctures to his gall bladder, pancreas and stomach. A large amount of his bowel had to be removed due to the irreparable damage from pellet punctures and blast contusions. He needed further surgery the following day on his hand and wrist injury, and again on his abdominal injuries. While hundreds of pellets were removed during surgery, many remain within Reid’s body. He is extensively scarred, and has ongoing complications from his injuries.
Reid was able to tell police prior to being taken into surgery that he thought it was Kenny, Ken Penfold. Enquiries along those lines began. The phones of Penfold and Ward were intercepted from 28 December, and Da Silva’s from 29 December 2006. Amber Harrison’s phone was also being intercepted.
An intercepted phone call on 28 December 2006, records Penfold calling Da Silva. Penfold told Da Silva that he was calling from Amber’s phone, as he suspected police were tapping his own phone. He warned Da Silva to not talk over the phone, and to make sure Brendan Ward knew the same. He was angry that Ward had already sent him a text message telling him to look at the front page of the Newcastle Herald newspaper, which held an account of the offence. He also told Da Silva to ensure Brendan knew that they were to split this three ways.
Penfold and Ward spent up big for a couple of days, and spent their portions of the proceeds.
At 4.30 am on 27 December 2006, Ward sent a text message to his girlfriend Kate Green, stating ‘I’ve done it.’ Kate states she interpreted that to mean he had done the robbery.
Around 5 am that morning, Ward sent a similar text message to another friend Will Robinson, saying ‘I did the job’, and that text was signed with a smiley face. Later that day, Ward drove to Sydney with Will Robinson. He told Robinson they had dressed as ‘coppers’, Reid had been at the window, but Robinson could not recall if Ward said the window was smashed or shot. Ward said he reached through the broken window and opened the door for the other offender. The other offender shot Reid in the hand when Reid reached for the gun, which Ward says happened when he was walking towards Christine Huber. He told Robinson they got the money and left. Ward said that Penfold had waited in the car as the driver.
Ward also made a number of admissions to others over the next couple of days. He told Kate Green that he had received about $12,000 from the proceeds, that he did not think it was worth it, and that he had cut his knee on the glass coming out of the window. He later confessed to her that he had been holding the gun when Reid was shot. Kate Green later saw Ward with a wad of cash that he told her was partially from the proceeds of the offence. On the 5 ^th January 2007, Ward told Kate ‘it fuckin’ wasn’t worth it for a silly fucking’ twenty grand.’
Ward also told his friend Michael Barry that he shot the victim in the stomach and the hand. He told Barry that he had done the job with ‘Rod.’
The balaclava dropped near the car was analysed by the Division of Analytical Laboratories. A mixture from two profiles was located. Brendan Ward has the same DNA as the major component of the mixture, with that profile expected to occur in fewer than 1 in 10 billion individuals. Rodney Da Silva could not be excluded as the minor contributor to the mixture, with that profile expected to be found in fewer than 1 in 4.8 million individuals.
Police searched Penfold’s house on 28 December 2006. In the bedroom, they locate a machete with blood on it. This was later analysed as being the consistent with the profile of the victim Dave Reid’s blood, with that profile being expected to be found in fewer than 1 in 10 billion people.
Realising the police net was closing, on 29 December 2006, Penfold went to a nearby phone box and phoned Da Silva. This call is proven by call charge records from that phone. He told Da Silva to make sure he got rid of the gun. Da Silva is reported to have said that he had already done so.
Police spoke to Penfold, but he denied involvement in the offence, and cited Amber Harrison as his alibi. At this stage, Harrison supported that. Penfold told police he did not know anyone called Brendan.
A phone call on 30 December 2006 between Penfold and Ward was intercepted. Penfold told Ward he had been trying to ring him over the past couple of days. Penfold told Ward his house had been searched, and police had found the machete. Ward says ‘I thought you would have fuckin got rid of that?’ Penfold agreed that he should have.
A statement from Rachael Bambach indicates she was present when Ward took this phone call. She recounts his fury and worry after this call. Kate Green (witness 2) also attests to this, with Brendan being concerned about DNA.
On 31 December 2006, Christopher Robinson was at Frosties Nightclub, and met there with Brendan Ward. Ward told him that he had been involved in the robbery, but it had not gone as planned. Ward said a guy named Rod had gone in and shot the victim, and the victim had been shot again while reaching for the gun. Ward said they got the money after the victim was shot, and that Penfold had waited in the car.
Christopher Robinson met up with Brendan Ward on the 8 ^th January 2007, and Ward told him he was planning to leave the area because of his involvement in the robbery, and he was planning to go to Queensland. This is corroborated by intercepted phone conversations between Kate Green and Ward.

On the 11 ^th of January 2007, Amber decided to go to the police and tell them the truth. She arranged a meeting with police and gave them enough of a version to pick up Penfold again and interview him. Amber also agreed to participate in a recorded phone call to Brendan Ward. Ward agrees in this call that he will have to call Rod and find out if he has gotten rid of the gun.
Penfold was arrested on 11 January 2007, after Amber spoke to police. Penfold continued to deny the offence or any involvement in it.
Da Silva was arrested the following day, the 12 ^th January 2007. Da Silva’s house was searched on this date. When police pulled up at the door, officers noticed that Da Silva fled out the back door, jumped the fence and ran away. Police chased him, and apprehended him. He was brought back to the house. Police searched, and located large amounts of cash in various parts of the house. Rod Da Silva shared the house with his brother Roy. At one stage during the search, police saw Rod Da Silva hand his brother Roy a bundle of clothing and a cane basket. DSC Turnbull called out to him:
‘I said ‘Roy give me a look at what you’ve got in your hand.’ As Roy De [sic] Silva turned and took a step towards the front door, I saw an amount of cash notes fall on to the floor of the loungeroom from between the two items of clothing. At the same time I saw a second amount of cash notes fall from Roy Da Silva’s hands and land onto the loungeroom floor. I formed the opinion that the accused was attempted (sic) to covertly hand possession of this cash to Roy Da Silva who was in turn attempting to covertly exit the premises in possession of the cash.’
Da Silva and Ward both declined to be interviewed by police. The total money seized from the search of Da Silva’s house was $19,000 in cash.
Rodney Da Silva’s brother Roy was interviewed by police, and Roy said that he could not account for Rod’s movements on the evening of the 26h December, into the 27 ^th December 2006.
Ward was also arrested on the 12 ^th January 2007. On arrest, Ward was noted to have a healing cut on the inside of his left leg below the knee.
The officer in charge of the investigation has listened to the triple 0 call, where the offenders can be heard in the background. The officer in charge has also listened to thousands of intercepted telephone calls where the (sic) Ward is speaking to other persons. During these conversations, Ward has been angry, excited, intoxicated and sober. The officer in charge identifies the voice saying ‘don’t want to fuck around dickhead’ as the voice of Brendan Ward. He bases this opinion on his exposure to thousands of calls, his involvement in person with Ward, and the pitch, tone, manner of speaking, and words used.
On the 22 ^nd of February 2007, Penfold participated in another ERISP, where he made a number of admissions to his involvement in the offence, and the roles played by Da Silva and Ward. He admits that he first told Ward about Reid and the cash he seemed to have lying around. He discussed the robbery with Ward, with Ward describing it as ‘a good quick earn.’ Penfold said that in the early hours of the 27 ^th December 2006, Ward and Da Silva came to his house. Ward obtained the machete from Penfold’s house, then they drove to Da Silva’s house where Da Silva provided the shotgun, cartridges, police jumpers and balaclavas. Penfold drove the car to the scene. At the scene, Ward and Da Silva got out of the car, obtained the weapons from the boot, and went to Reid’s house while Penfold remained in the car. He heard smashing glass and gunshots. Shortly thereafter, Ward and Da Silva came back to the car, they hid the weapons in the boot under the carpet in case they were pulled over, and Penfold drove them away. They then split up the cash. Penfold says that Rod Da Silva phoned him the next day looking for his balaclava.”

[It is not overlooked that the total sum of money mentioned exceeds the proceeds of the robbery and it is plain that not all the money found in the possession of Da Silva was sourced from it].

4 Two indictments were presented against Penfold. The second indictment did not relate to the facts just recited. A plea of guilty to a charge of receiving was accepted by the Crown in discharge of that indictment. The judge scheduled the property involved being six laptop computers, ten mobile telephones, an LCD television and a set top box. This offence occurred in the month previous to the robbery at Belmont. His Honour said that the offence of receiving paled into insignificance when compared to the enormity of the robberies and that he “would not add any additional time to be served for that offence for reasons of sentencing totality.”

5 The first indictment charged two counts of robbery whilst armed with a dangerous weapon contrary to s 97 (2) of the Crimes Act 1900 for which a maximum penalty of 25 years imprisonment is prescribed. His Honour noted that Penfold’s pleas of guilty to those counts could, as accepted by the Crown, be treated as entered pre-committal. The separate counts nominated Mr Reid and Ms Huber as the respective victims.

6 On count 2 (Ms Huber, the victim) Penfold was sentenced to imprisonment consisting of a non-parole period of 5 years to date from 11 January 2007 and expire on 10 January 2012 with a balance term of 1 year 9 months. On count 1 (Mr Reid, the victim) he was sentenced to imprisonment consisting of a non-parole period of 11 years 6 months to date from 11 January 2008 and expire on 10 July 2019 with a balance term of 6 years 6 months.

7 For the offence of receiving a sentence of a fixed term of imprisonment to date from 11 January 2007 and expiring on 10 January 2009 was imposed.

8 It follows that the effective overall sentence amounted to an aggregate term of 19 years with a non-parole period of 12 years 6 months. The earliest date of eligibility for parole would therefore be 10 July 2019. The specification of 11 July 2021 in the Particulars of Trial would appear to be an error.

9 Penfold has filed a notice of appeal setting out nine grounds. In compliance with the usual directions by the Registrar he has provided two documents which outline submissions. For identification I note that these are documents stamped as received in the registry on 4 May 2009 and 13 October 2009 and I will refer to them by those dates.

10 In oral submissions Penfold adverted to a number of matters, some of which were directed to factual findings which are not open to challenge and some of which may have been appropriate to have been made to a first instance sentencing court or to a resentencing court. The bulk of the oral submissions did not raise matters about which it is necessary to elaborate other than in the context of dealing with the grounds.

11 Ground 1 asserted “ His Honour erred when he took into account the aggravating factors which only applied to the co-offender”.

12 The thrust of complaint related to the discrimination in the roles of the co-offenders especially the less active participation of Penfold who did not enter the premises. Prior to and at the hearing of the appeal he presented copies of a large number of cases which he had researched. Some of these involved co-offenders in joint enterprises who had, in various outcomes, received different sentences from each other. The cases demonstrate what is received doctrine namely, that each instance depends upon its own facts.

13 Nothing will be gained by detailing all of the cases forwarded by the applicant. An example of the misdirection in focus by the applicant is the reference to sentencing in R v Frazer & Spencer [2007] NSWSC 1449. In that case two offenders were found guilty of manslaughter when a third, who had been found guilty of murder, had shot and killed a victim during an armed robbery. The reason for the lesser findings was that the first two had not foreseen that the third might discharge the weapon with the necessary intent. The only matter of comparison in the present case is that a shooting (non-fatal) had occurred during the course of an armed robbery. Neither that case, nor any of the others cited, supports the proposition which Penfold advances, which is, in effect, that there is some principle that the less active participant in a joint criminal enterprise should receive a lesser sentence than the more active participants.

14 To the contrary, it is well established that any party to a joint enterprise is liable to be sentenced for the full range of the criminal acts done by anyone acting in furtherance of the enterprise: R v Wright [2009] NSWCCA 3. As already observed, each case depends upon its own circumstances and it is even conceivable that the person who actually performed the criminal act may be treated equally, or as more culpable, or as less culpable than other participants: GAS & SJK v The Queen (2004) 217 CLR 198.

15 Penfold identified the availability of the substantial cash takings being held as a result of Christmas trading. He was actively involved in discussing and therefore planning the venture. He personally supplied the machete used to perpetrate the violence on Ms Huber. His Honour found that it “mattered little which offender actually pulled the trigger” where all participants knew that they were employing a loaded shotgun to effect a robbery.

16 The judge was well aware of the degree of Penfold’s actual participation and turned his attention to that circumstance. He noted that in some cases it can be appropriate to differentiate the roles played by the participants but he held that in his assessment of the facts “this is not one of them.” That finding was open to him.

17 Grounds 3 and 8 raise associated complaints. Ground 3 asserted “His Honour erred when he failed to consider that the gun was not loaded in my company.” And ground 8 asserted “His Honour erred when he failed to consider the roles each of us played on sentencing.”

18 It is true that the agreed facts do not disclose when the shotgun was loaded but they do record “Penfold followed Da Silva and Ward into Da Silva’s house. They all went into the house. Da Silva retrieved a shotgun and two shotgun cartridges.” After other items were obtained the facts continue “And they all got into Penfold’s car, putting the weapons in the boot.”

19 It was confirmed at the sentencing hearing that Penfold sat outside (in the car) knowing that the others had gone to the house with a machete and a loaded shotgun. Exactly when the shotgun was loaded and whether Penfold was physically present at that time is immaterial.

20 The proposition in ground 8 that the judge failed to consider individual roles of the participants is demonstrably wrong. Not only had he made express reference to Penfold’s remaining in the driver’s seat of the car (with the engine idling) in contrast to the entry of the others into the premises and their conduct whilst there, but he accepted that there was some validity in counsel’s submission that Penfold did not enter the house. To the extent that that might be an ameliorating factor in sentence assessment, it was used expressly to counterbalance the aggravating matters applicable to Penfold in his serious record of prior offending and the commission of the instant offences whilst he was the subject of a bond to be of good behaviour. It follows by the very undertaking of that balancing exercise that the applicant did receive a benefit by reason of his differentiated role.

21 Ground 2 asserted “His Honour erred when he failed to consider my letter I sent to the victim as remorse and the fact that it had actually been sent.”

22 It appears that a copy of a letter written to the victim Reid may have been handed up to the judge during the proceedings at Newcastle, however, despite any uncertainty, it was admitted as Exhibit 1D3 at the resumed hearing in Sydney and counsel informed the judge that his instructions were that it had been sent. No evidence to that effect was called.

23 His Honour’s findings in respect of that letter were expressed in the remarks on sentence as follows:

“The handwritten document prepared by Penfold is addressed simply David Reid and says:
‘I have been thinking over the past few months that I should write and apologise for the things that have happened between us and you around Christmas 2006.’
He purports to apologise for the threats that he made to Mr Reid and then before the robberies and then says this:
‘Finally, in my most important apology, I deeply apologise and feel for you concerning the injuries that you have suffered during the incident that occurred on 12 December 2006. I hate myself that you have suffered so severely as a result, but I wish to state to you that at no time did I enter your house whatsoever.’
I have not the slightest doubt that that apology which is in a letter which has never actually been sent to Mr Reid will be small comfort indeed to Mr Reid if he ever receives the letter or ever hears about it.”

24 The contention is that the judge was obliged to find that the letter showed remorse on the part of Penfold. If it was open to finding that the content of the letter was not a manifestation of remorse, which is plainly implied in the above remarks, it matters not whether it was sent or not.

25 The copy letter does not bear a date. The opening words convey a justification for the position of Penfold in relation to his sacking on Christmas Eve followed by a purported explanation that threats made by him were inspired by frustration about wages disputes. It is only then that the letter turns to the events of the robbery and this is accompanied by a claim that Penfold was under duress from his co-offenders to be the driver on that night.

26 The claim of duress is not sustained by the facts, indeed the participation of Penfold in planning for the robbery to take place, flatly contradicts it. The tenor of the letter is plainly to attempt to diminish Penfold’s own culpability in contrast with the co-offenders.

27 The judge expressly found that:

“ …there is precious little, if any, genuine remorse in this case and I agree with the Crown submission that although remorse has been expressed by each offender in ‘bucketloads’; the fact is, as the Crown submitted, that they began spending the money after the robbery and in truth, to quote the Crown Prosecutor, ‘could not give a hoot.’
I accept now that they are very sorry, my assessment is that each of them is very sorry for the predicament that they have placed themselves in, rather than being sorry for Mr Reid or Miss Huber.”

28 The judge’s finding has not been shown to be tainted with error. It was amply justified by the facts particularly the conduct of Penfold in the days following the robbery and prior to his arrest.

29 As the agreed facts recount, after the robbery telephone services were lawfully intercepted. In addition there was some investigation of call records. Having regard to Penfold’s lack of formal legal qualifications (although as above appears he has obviously learned how to access publication of judgments on the internet) the court received from him the transcript of an intercepted call by Amber Harrison together with other documents showing enquiry about Mr Reid directed to various hospitals.

30 Penfold argued that this showed some form of remorse. Even if this evidence were before the judge, he would not have been obliged to treat it as such. A fact finder could easily infer that such enquiries were provoked by a concern about what retribution the offender might face in the light of the seriousness of Mr Reid’s injuries, presuming of course, that information obtained was that he had survived.

31 Ground 4 states “His Honour erred when he made up his own assumption despite what the evidence and fact sheets stated.”

32 This ground does not specify the topic of complaint but it can be inferred from the document of 13 October that the applicant seeks to complain about two matters which were the subject of mention during the sentencing hearing.

33 It should be noted that the reasons for sentence are found in the judge’s remarks, and that observations or exchanges during the course of hearing do not represent such reasons nor are they “judgments” by the presiding judge. During the hearing it is appropriate for a judge to raise matters of understanding or impression in order to give the parties an opportunity to correct or respond to them. This includes views which a judge may have formed as to facts. Reference to such matters does not indicate that a conclusion has been reached and it is to be stressed that conclusions to be found expressed in the remarks which are made at the time of imposing sentences. As I have said, from the document of 13 October it would appear that the applicant complains about two matters.

34 First there was an exchange with counsel about a statutory matter of aggravation which makes reference to gratuitous cruelty. Counsel was submitting that a calculated torture would be needed to attract that particular aggravating factor. His Honour stated that torture was not being discussed and spoke in terms of a sketch of the general nature of the offence. He said, “These men, including your client who was outside in the car saw Mr Reid through the front window and one of them pointed the shotgun at him and fired it point blank through the window…..:” Penfold complains that from where he was in the car he could not in fact see the victim when he first approached the window. A finding to that effect does not appear in his Honour’s remarks on sentence and even if there was a minor inaccuracy in the general description of events during the exchange with counsel it offers no basis for a conclusion that an adverse finding to that effect has been made against the offender with a consequential increase in sentence assessment.

35 The second complaint relates to another exchange with counsel during which the question of the applicant’s role was being discussed and the judge stated that, as he recalled the telephone intercepts, they confirmed that somebody said that Penfold had been the driver. The applicant complains that there were no such telephone intercepts. This is correct. The Crown has pointed out that the role of Penfold as the driver in fact emerged from a statement which he himself made to police. Penfold was sentenced on the basis that he was the driver. He asserts that he was the driver. The circumstance that at one point his Honour recalled, incorrectly, that the source of the information identifying Penfold as the driver was a telephone intercept is of no moment.

36 Penfold also refers to not being present whilst the gun was loaded because in that same exchange the judge had referred to Penfold sitting outside knowing that his companions had gone to the house with a machete and loaded shotgun. The claim that there was no evidence that Penfold was physically present when the shotgun was loaded was dealt with in connection with ground 3.

37 Ground 5 asserted that “his Honour erred when he failed to take into account my extensive D & A abuse despite what reports stated and evidence”.

38 In its response the Crown has correctly pointed out that his Honour gave consideration to and made extensive reference to the report of the psychologist Mr Taylor which recorded what the applicant had claimed was his history of drug abuse. Penfold gave no evidence in the sentencing proceedings himself. The judge’s suspicions about Penfold’s reliability as a historian were justified by the patently untrue claim to Mr Taylor that he had become involved only at the last minute because “those guys you don’t say no to, otherwise you cop a bashing”. A similar untruth has already been noted as appearing in Penfold’s letter addressed to Mr Reid.

39 Even if the applicant was affected by his voluntary ingestion of illicit substances, the judge was entitled to regard that circumstance as of little weight. In R v Henry (1999) 46 NSWLR 346 Spigelman CJ said:

“To go further, and to accept the fact of drug addiction as a mitigating factor generally, would not be justified in principle. Moreover, it would involve an exercise in irresponsibility on the part of the Court, if it were understood as a message that committing the crime of armed robbery to feed a drug habit is less deserving of censure than would otherwise be the case.
The legislature has, by the heavy maximum penalty prescribed for armed robbery, spoken clearly in relation to this offence. Drug dependent persons should not be encouraged, as a class, to think that they are free to engage in serious criminal conduct of whatever kind with impunity, or with any hope of favourable treatment because they are able to show that they needed money through their addiction.”

40 Of course Penfold does not claim that the purpose of this offence was to feed an addiction but as the Chief Justice stated at the outset of the remarks quoted, drug dependency as a mitigating factor generally is not justified in principle.

41 In his written submissions the applicant asserted that there are statements of other employees at the Belmont shop to the effect that Mr Reid was distributing amphetamines to enable them to work longer hours. Penfold had been fired on December 24, and the robbery took place on the 27^th. If it had been the fact that Mr Reid was making amphetamines available, Penfold had not been at the relevant time in a position to be a recipient and the submission seeks to raise a false issue.

42 The Court received a tender by Penfold of a copy letter dated 9 July 2007 from a Ms Hawkins, a “D & A worker” at Mercy Community Service concerning enquiries by him in October and November 2006, while she was counselling Ms Harrison, about whether they both could attend rehabilitation.

43 The tender was somewhat entangled with the material about enquiry to hospitals which Penfold claimed manifested remorse. Of course, requests to Ms Hawkins before the crimes were committed could not show remorse. The approach might contribute to a finding about rehabilitation prospects but at least two circumstances undermine the possibility of such a finding.

44 First, the judge would not have been obliged to make such a finding if this evidence were before him and, second, any desire in October or November for rehabilitation was obviously suppressed when Penfold planned and joined in the execution of the robbery in December.

45 Ground 7 stated “One year was accumulated but there was only one robbery, one event.”

46 It is true, as Penfold’s written submissions record, that his counsel submitted that there should be no cumulation of sentence because the offences were committed in the context of a single event. His Honour rejected that submission. His reason for so doing was impeccable. There were two victims and it was well within the ambit of discretionary judgment to conclude that the criminality involved in the attacks upon Ms Huber and Mr Reid could not be adequately encompassed in a single sentence. R v Cahyadi (2007) 168 A Crim R 41.

47 Ground 9 asserted “His Honour erred when he took into account that the night of the offence was planned”.

48 The applicant’s written submissions sought to distinguish a discussion or desire (to do the robbery) from planning. It would not be expected that a joint criminal enterprise would necessarily be planned with any particular formality. Of course, it may be but, if it is not, it does not follow that the crime was unplanned.

49 Planning includes preliminary steps such as, in this case, the observation of the growing cash receipts and the transfer of them from the shop to the house, thus identifying the house as the target premises; the acquisition of police vests to enable the robbers to seek to gain entry by pretence, an aim which in the event was not achieved; the acquisition of weaponry and the assignment of roles and the recorded and reported discussions in which the offenders were involved anticipatory to the commission of the offence.

50 In relation to the assignment of roles, the applicant has stated in the document of 13 October that there is nothing to back “(the) theory” that Penfold did not go to the house because he did not want to be detected. Ward and Da Silva had been found to have taken pains to disguise their appearance and the judge deduced that, as Mr Reid knew Penfold, that acquaintanceship was an explanation for his remaining outside. It was an inference which his Honour as a fact finder was entitled to draw.

51 The written submission continued “I didn’t want to go to the house because I didn’t want to be involved at all”. There is no evidence to support this contention which is clearly inconsistent with the discussions and the planning in which Penfold was involved prior to the robbery and the agreed facts.

52 Ground 6 was expressed in these terms: “I felt my acting solicitor failed to represent me correctly and he failed to comply with my instructions.” In support of this ground the applicant attested to the truth of various matters set out in the document of 13 October 2009. Affidavits were received from Mr Hanlon, solicitor and Mr Warwick of counsel. Each of the three was cross examined at the hearing in this Court.

53 The complaints by Penfold sought to be raised under this ground are diffuse. Initial observations should be made concerning the agreed facts, a return to which topic was earlier indicated.

54 Penfold was originally charged by police with attempted murder. He retained Mr Hanlon to act for him. He authorized him to discuss with the Office of Public Prosecutions the possibility of a lesser charge to which he would consider pleading guilty. As a result of negotiations, the current indictment was eventually presented.

55 It was in relation to this current indictment that the Crown produced a facts sheet. The solicitor raised its content with the applicant. There is no dispute that this occurred. As a consequence of representations by the solicitor some amendments were achieved but obviously the stage was reached where the Crown was not prepared to alter its allegations.

56 In a final form of intended agreed facts, the document was shown to Penfold who personally signed the document. He must have understood that by doing this he was agreeing to them. In cross examination before this Court he gave this evidence:

“Q. You admit that you actually did sign the agreed facts?
A. Yes.
Q. And you were present when they were tendered to the judge?
A. Yes.
Q. Present in court, and you understood what use was going to be made of those agreed facts?
A. Yeah, probably judges rely on them.”

57 There is evidence from Mr Warwick of counsel that, after he had been retained, virtually the first thing he did at conference was to ask Penfold to confirm that it was his signature on the facts sheet and that the facts therein were those to which he agreed.

58 An impression which appeared to emerge from the applicant’s submissions in the appeal was that his legal representatives somehow failed in their duty to him if they did not achieve an agreement by the Crown to every detail which he wished to advance as his version of the facts.

59 As I have said, both Mr Hanlon and Mr Warwick were cross examined on the content of their affidavits. It is not necessary to recite all of the contents thereof. I do not accept that Penfold ever told either of them, prior to sentence, that he did not agree with the statement of facts. Apart from conclusions which may be drawn from seeing the three men testify there is material emanating from Penfold himself which raises serious reservations about his creditworthiness.

60 Prior to the retainer of Mr Warwick, the applicant wrote to Mr Hanlon. He made reference to recanting from a statement to police concerning the involvement of Da Silva as a co-offender. He agreed in his testimony that in due course he maintained that recantation at Da Silva’s first trial (when the jury failed to reach a verdict) and the Crown did not call him as a witness in the second trial.

61 The letter to Mr Hanlon contained an unreferenced statement in these terms:

“As I informed you that when I am placed under pressure I feel the need if necessary to lie to get my way out of it …..”.

62 In this context Penfold proceeds to complain about legal advice but the nexus between legal advice and his propensity for the telling of lies is unclear.

63 A somewhat opaque dispute was raised concerning whether Mr Hanlon had told the applicant that he did not need a barrister. Originally at Newcastle Mr Hanlon appeared in person. He agrees that the question of the retainer of a barrister was discussed with the applicant and that he said he thought it unlikely that legal aid would fund such retainer. However, plainly as a consequence of the applicant’s enquiry, he made an application to legal aid and it was successful. As a result Mr Warwick was retained. In fact, in the letter abovementioned, Penfold had also raised the question of the retainer of a barrister and he nominated two, one of whom was Mr Warwick.

64 Mr Warwick was offered the brief and accepted it and it is difficult to perceive what the gravamen of complaint is. When the applicant said he wanted a barrister, there was retained to appear for him one of the two whom he nominated. Mr Warwick confirmed that the letter by Mr Penfold to Mr Hanlon was included in the brief delivered to him.

65 Although Mr Hanlon had appeared in person up to the time of briefing, he did not attend to instruct counsel at the resumed hearing in Sydney. Ms Ballesty, a solicitor from Mr Hanlon’s office, attended to instruct counsel. The applicant sought to investigate the scope of her knowledge of the detail of his case. After his retainer the case was being conducted by counsel and there is nothing brought forward to demonstrate that Ms Ballesty did not adequately fulfil the role of an instructing solicitor. Penfold points to nothing which he suggests would have been any different had Mr Hanlon been sitting in court to instruct Mr Warwick instead of Ms Ballesty.

66 There are contradictions between the evidence of the applicant and Mr Warwick. I accept Mr Warwick’s evidence that at no time did the applicant raise concerns with him about the content of the facts sheet. I have already indicated that Mr Warwick testified that in effect the first thing he did in conference was to establish the applicant’s acceptance of the contents of the facts sheet. That is hardly surprising and it would be consistent with the first thing that one would expect any counsel briefed to enquire about.

67 Although Mr Warwick testified that he simply recalled no conversation with Penfold’s sister stating that he had not all “the paperwork” I accept his statement that, to his knowledge, Mr Hanlon had provided all the documentation in his possession. The only document that the applicant seems to refer to as being produced from outside of the brief is a copy of the letter written by himself to Mr Reid which Mr Hanlon testified was produced to him and to Mr Warwick in the cells at Newcastle on the day when proceedings began. Other than that there is no identification of what documents are asserted not to have been included in the brief which Mr Hanlon sent to Mr Warwick, nor is there indicated what adverse consequence flowed from alleged omission.

68 It is noted that the applicant’s sister provided no evidence. In any event, if the document being referred to as the shortfall in the paperwork is the copy of the letter which he wrote to Mr Reid, the fact is that it was available and as earlier pointed out it was put before the judge.

69 In the document of 13 October 2009 there is a somewhat conditionally expressed complaint that Mr Hanlon had said to Penfold on one occasion that Mr Warwick was having lunch with the Crown. The conditional nature of the complaint makes it strictly unnecessary to deal with it, but it should be observed that Penfold was expressly seeking that his legal representatives negotiate with the Crown and, even if it were the fact (and the matter was not investigated) that some of the negotiations took place over lunch, that does not demonstrate that the applicant’s representative was not properly pursuing his interests.

70 Reference should be made to a number of unconnected challenges to the statement of facts which Penfold has set out in the document of 13 October. There is reference to text messages and verbal exchanges between the applicant and Mr Reid including the meeting when the applicant was equipped with a baseball bat. The meeting was, it was common ground, for the purpose of settling a wages matter. An issue sought to be raised by the applicant is focussed upon whether the bat was down Penfold’s pants or up his sleeve and also his purpose in having it at the meeting. The distinction between whether the bat was down his pants or up his sleeve could not be relevant to sentence assessment. The facts accepted by the judge were that the bat was brought to be used, if necessary, whereas the applicant now asserts that it was brought for self protection. It was not suggested, nor did the judge hold, that the bat was used in order to fortify a threat or in any other way. The dispute is not a matter of any substance that could have relevantly affected sentence assessment.

71 Similarly there is no relevant weight to sentence assessment in the claims which the applicant now wishes to make concerning the status of Ms Harrison as his girlfriend.

72 In the document Penfold seeks to contradict the chronology concerning his awareness that the cash was kept in the house. The judge relied upon what was set out in the agreed statement of facts and he committed no error thereby.

73 Penfold has not, like Ward who is represented by counsel, raised a ground asserting that the sentence was excessive but observations on the issue in relation to Ward can be regarded as, where relevant, applicable to Penfold. The judge’s findings regarding matters subjective to Penfold beyond those which touch upon the matters which he has raised have not been recapitulated. Essentially, the only significant favourable factor was the plea of guilty for which the applicant received a full measure of benefit.

74 However, none of the matters raised by the applicant Penfold, whether specifically articulated as a ground or not, gives rise to intervention by this Court to reduce the sentence imposed in the District Court.

75 The applicant Ward was convicted after pleading guilty to two counts of robbery whilst armed with a dangerous weapon in which the victims were respectively Mr Reid and Ms Huber. These counts were the same as those charged against Penfold. Upon sentence, the judge was asked by Ward to take into account on a Form 1 a further charge of receiving.

76 For the count of robbery (in which Ms Huber was the victim) Ward was sentenced to imprisonment consisting of a non-parole period of 5 years to date from 11 January 2007 and expiring on 10 January 2012 with a balance term of 1 year 9 months and on the other count (in which Mr Reid was the victim) and taking into account the matter on the Form 1, to imprisonment consisting of a non-parole period of 13 years 6 months to date from 11 January 2008 and to expire on 10 July 2019, with a balance term of 4 years 6 months.

77 The effective aggregate sentence amounted to a head term of 19 years with a non-parole period of 14 years 6 months.

78 The first matter to be considered (ground 2 in Ward’s notice of appeal) is the allegation “that in the circumstances of this case, the sentence was excessive and some other sentence was warranted in law.”

79 In terms of aggregate sentence the judge’s starting point was imprisonment for 24 years which is one year less than the prescribed maximum penalty for a single offence of that character. That assessment was reduced by 25 percent for the utilitarian value of the early pleas of guilty. That discount was at the top of the suggested range in the guideline judgment of R v Thomson & Houlton (2000) 49 NSWLR 383. (Penfold had received the identical “discount”).

80 It is well established that a maximum penalty should be regarded as reserved for offences in the category of worst cases or for worst offenders: Ibbs v The Queen (1987) 163 CLR 447. The thrust of the applicant’s submissions on this ground were a challenge to the judge’s finding expressed as follows in the remarks on sentence:

“Far more violence was used than would have been needed to carry out this robbery. It could not have been necessary to shoot Mr Reid from point blank range at his torso even to carry out a robbery and as if that was not bad enough, he was then shot a second time to his left hand. His assailants gave him no warning such as ‘open the door or I will shoot.’ Why the shooter thought it appropriate to fire a second shot is a complete and utter mystery to me. Even Miss Huber was struck to her head with a machete after having the shotgun pointed at her. These were robberies in truth committed without mercy, in the case of Mr Reid without any care whatsoever for what injuries he may have been left with. The robbery of Mr Reid is, if not the most violent robbery I have ever seen, then certainly one of them. It was an offence at the very top of the range. It demands a corresponding sentence at the top of the range.”

81 In particular, the appropriateness of taking into account what the judge found were “the horrendous and permanent injuries” to Mr Reid was not the subject of challenge. It is unsurprising that the written submissions on behalf of the applicant realistically conceded that the objective facts place this offence at very high in the scale of seriousness for such class of offending behaviour.

82 The express focus of challenge was that the starting point (24 years) was too high and, second, that the sentences should have been ordered to be served (wholly) concurrently. In relation to the latter, they were, of course, ordered to be served concurrently save for the period of one year.

83 Reference was made to Ward’s prior criminal record which, it can be accepted, had no offences approaching the seriousness of the current matters. It is true that in The Queen v Veen(No 2) (1988) 164 CLR 485 it was observed that antecedent criminal history might demonstrate a dangerous propensity which could warrant a starting point near a maximum prescribed penalty. Ward’s record was not of that character. The maximum penalty is not reserved only for repeat offenders: R v Mungomery (2004) 151 A Crim R 376 and the principle is as above summarised: see Ibbs. As shown by the judge’s remarks it was the offence, not the offender, which he found to be “at the top of the range” which, although the language is different, is the same in substance as a finding that the offence approached being in the worst category.

84 Counsel for Ward drew attention to the prescription by Parliament in s 21A of the Crimes (Sentencing Procedure) Act 1999 of various matters which may aggravate an offence. He pointed to three matters (record of prior conviction; multiple victims or a series of criminal acts and being part of planned or organized criminal activity) which were submitted not to apply to Ward.

85 That submission seeks to misapply the statute. The scheduled aggravating features hypothesize circumstances which may aggravate an offence and the statute does not operate so as to have the consequence that the absence of some hypothesized aggravating factors provides mitigation for an offence. Section 21A (2) (n) of the legislation proposes an aggravating circumstance where the offence is part of a planned or organized criminal activity. The judge did not state that he found the offence aggravated by that legislated circumstance. What he did say was that it was the fact that the offences displayed significant planning and he elaborated to describe the factors which constituted that planning. The circumstance that the subsection hypothesizes an aggravating factor which has been construed to convey more than an offender simply engaging in planning: Fahs v R [2007] NSWCCA 26 does not mean that, unless that level of conduct is reached, any planning is irrelevant to the assessment of criminality. The judge’s findings involved no error.

86 The written submissions contain an observation that the extent of discount for the utilitarian value for the pleas of guilty was ranged in Thomson & Houlton at 10 to 25 percent and in any particular case it is a matter for discretion of the sentencing judge. That is not doubted, but as earlier noted, the discount received by Ward was equivalent to the very top of the suggested range. This cannot be a matter for legitimate complaint.

87 The contention that his Honour erred in ordering any cumulation at all is unsupportable. The applicant submitted that, in respect of the offences, there were common features in that the offences were committed within a short time of each other, at the same place and that, although there were two victims, the object was the same, robbery of the shop takings. The failure of the submission is identified as being inevitable by the necessary concession “although there were two victims”. It was open to his Honour to conclude that, in the circumstances, the sentence imposed for the offence involving Mr Reid did not adequately encompass the criminality of the attack upon Ms Huber. His determination was entirely in conformity with the exercise of his discretion and the principles discussed in cases such as R v Cahyadi (supra) which was cited by the applicant.

88 It should not be overlooked that the sentence includes at least some reflection of the offence taken into account pursuant to a Form 1 procedure: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (2002) 56 NSWLR 146.

89 There is no basis demonstrated for a finding that the judge’s discretion in sentence assessment has miscarried. Obviously the sentence is severe in terms of the length of custody but it properly reflects the objective criminality which was involved, mitigated by such subjective matters as Ward was able to draw upon. The latter was essentially limited to his pleas of guilty. It might be noted that no challenge was offered to his Honour’s findings regarding the absence of remorse.

90 A submission that the specification of a non-parole period should be varied in favour of Ward as against the statutory formula which his Honour applied because of special circumstances was posited on the condition that this Court determined to resentence. It was not contended that the judge’s discretion miscarried when he refused to find special circumstances.

91 It suffices to observe that a case cited by the applicant referring to allowing longer time on parole: R v Sotheren [2001] NSWCCA 425 does not mandate departure from the statutory ratio. Further evidence which might support a finding of special circumstances was received provisionally upon the court determining to engage in resentence. I would not propose so doing.

92 The other ground of appeal advanced by Ward was “that the applicant has a justifiable sense of grievance in the light of the sentence received by his co-offenders.”

93 As noted, the co-offender Da Silva has not yet been sentenced. The difference between the effective sentences received by Ward and Penfold lies only in the non-parole period specified in relation to Penfold being two years shorter.

94 The difference arose from a express finding of special circumstances in the case of Penfold, namely that he was in custody on protection and the judge observed that in his experience people on protection tended to remain there throughout their sentence. He found that in many cases the circumstances of serving custody in protection were more arduous than serving in the general prison population.

95 In an unrevised transcript of the judge’s remarks on sentence it appears that the aggregate sentence received by Ward was two years longer than that received by Penfold. It was agreed at the hearing of the appeal that the correct sentences and orders, as appeared on the back of the indictment, are as set out above, and that therefore there was no difference in aggregate total terms imposed upon Penfold and Ward.

96 The challenge seeks to achieve parity in the specification of the non-parole period. The written submission was expressed that the sentence (and non-parole period) received by Ward should have been “no more than the sentence imposed on Penfold”. It was not submitted that on any basis it should have been less than Penfold.

97 The issue therefore is whether Ward can complain of the ratio of non-parole period to aggregate sentence because of the special circumstances found to apply in the case of Penfold. It has already been observed that Ward does not (and cannot) argue that the judge erred in declining to find special circumstances in his case.

98 Ward sought to support this ground by argument that the judge erred in finding that Penfold’s ratio would be ameliorated because his conditions of custody in protection would be more onerous than if he were kept in the general prison population. Other factors which were raised in Ward’s written submissions were based upon the mistake in transcript which showed the aggregate head sentence of Ward was two years longer than that received by Penfold. It is acknowledged that that was not the case.

99 A report concerning Penfold by a psychologist Mr Taylor recorded that, as a matter of history provided by the offender, he had been assaulted whilst in custody by Ward and Da Silva and then went into protective custody. No limit was placed upon the use that the judge might make of the content of Mr Taylor’s report.

100 It is true that relatively recent authority has predicated that it can no longer be assumed that service of sentence on protection will be more onerous than service in the general population: R v Way (2004) 60 NSWLR 168; R v Mostyn (2004) 145 A Crim R 304.

101 The issue is not whether Ward can show that the judge should not have made an assumption about the service of sentence by Penfold but whether the different specifications of non-parole periods give rise to a justifiable sense of grievance on the part of Ward. In Tatana v R [2006] NSWCCA 398 it was held that different findings as to special circumstances between co-offenders do not of themselves give rise to a justifiable sense of grievance. In that case the impositions were by different judges and the result found so anomalous that the court intervened. An anomaly which can be classified as being of that order does not arise in this case. The significant matter remains that there was no error in the judge declining to find special circumstances in the case of Ward: cf Vaovasa v The Queen (2007) 174 A Crim R 116.

102 I would reject this ground as attracting intervention by this Court.

103 Neither the application by Penfold nor by Ward succeeds. In each case I would grant leave to appeal against sentence but dismiss the appeal.

104 SIMPSON J: I agree with Grove J.

: I agree with Grove J.

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