R v Baghdadi

[2008] NSWCCA 239

New South Wales
Court of Criminal Appeal

CITATION:	R v Baghdadi [2008] NSWCCA 239
HEARING DATE(S):	4 June 2008
JUDGMENT DATE:	14 October 2008
JUDGMENT OF:	McClellan CJ at CL at 1; Hulme J at 64; Hidden J at 69
DECISION:	1. Appeal upheld. 2. Sentences imposed in the District Court quashed and in lieu thereof the respondent is sentenced as follows: First offence: a fixed term of imprisonment of 2 years and 6 months commencing on 9 March 2006. Second offence: a fixed term of imprisonment of 2 years and 6 months commencing on 9 March 2007. Third offence: fixed term of imprisonment of 5 years commencing on 9 March 2008. Fourth offence: a non-parole period of 4 years with a balance of term of 3 years. The sentence to commence on 9 March 2009. Fifth offence: a non-parole period of 5 years with a balance of term of 4 years. The sentence to commence on 9 March 2010. The aggregate sentence is a term of 13 years. The effective non-parole period is 9 years. The respondent would be eligible for parole on 8 March 2015.
CATCHWORDS:	CRIMINAL LAW – Crown appeal against sentences – Armed robbery – Aggravated car-jacking – Robbery armed with a dangerous weapon – Specially aggravated break, enter and steal – Whether sentences manifestly inadequate and fail to reflect objective criminality – Whether sentencing judge improperly departed from guideline judgment for armed robbery (R v Henry) – Whether aggregate sentence fails to reflect totality of criminality (Pearce v The Queen) – New sentences imposed and start dates adjusted
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CATEGORY:	Principal judgment
CASES CITED:	Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610; 103 A Crim R 372 R v AA [2006] NSWCCA 55 R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575 R v Campbell [2000] NSWCCA 157 R v Deng [2007] NSWCCA 216; (2007) 176 A Crim R 1 R v Fidow [2004] NSWCCA 172 R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 R v Knight & Biuvanua [2007] NSWCCA 283 R v Ponfield [1999] NSWCCA 435; (1999) 48 NSWLR 327 R v Tran [1999] NSWCCA 109 R v Wall [2002] NSWCCA 42 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252 Wong & Leung v R [2001] HCA 64; (2001) 207 CLR 584
PARTIES:	The Crown (Appellant) Abdul Baghdadi (Respondent)
FILE NUMBER(S):	CCA 2008/0586
COUNSEL:	D Arnott SC (Crown/Appellant) H Dhanji (Respondent)
SOLICITORS:	Director of Public Prosecutions (Crown/Appellant) Legal Aid Commission of NSw (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/21/0042 07/21/0172 07/21/0183
LOWER COURT JUDICIAL OFFICER:	Ellis DCJ
LOWER COURT DATE OF DECISION:	18 December 2007

2008/0586

McCLELLAN CJ at CL
HULME J
HIDDEN J

TUESDAY 14 OCTOBER 2008

R v BAGHDADI

Judgment

1 McCLELLAN CJ at CL: This is a Crown appeal against the inadequacy of sentences imposed on the respondent for a number of offences. The sentences were imposed in the District Court on 18 December 2007. The Director filed a Notice of Appeal dated 6 February 2008, which was served on the respondent on 7 February 2008. The Director had previously advised the respondent by letter that he was considering an appeal. That letter was dated 15 January 2008 and was apparently received by the respondent on 22 January 2008.

2 The respondent pleaded guilty to and was sentenced in respect of the following offences:

(i) Armed robbery (s 97(1) Crimes Act 1900, maximum penalty 20 years). Sentence: fixed term 15 months imprisonment to date from 9 March 2006;

(ii) Armed robbery (s 97(1) Crimes Act 1900, maximum penalty 20 years). Sentence: fixed term 15 months imprisonment to date from 9 June 2006;

(iii) Aggravated car-jacking (s 154C(2) Crimes Act 1900, maximum penalty 14 years with a standard non-parole period of 5 years). Sentence: 5 years imprisonment with a non-parole period of 2 years and 6 months to date from 9 December 2006;

(iv) Robbery armed with a dangerous weapon (s 97(2) Crimes Act 1900 maximum penalty 25 years). Sentence: 6 years imprisonment with a non-parole period of 3 years and 6 months to date from 9 December 2007;

(v) Specially aggravated break enter and steal (s 112(3) Crimes Act 1900, maximum penalty 25 years standard non-parole period 7 years). Sentence: 8 years imprisonment with a non-parole period of 4 years to date from 9 December 2008.

3 The aggregate sentence imposed was 10 years and 9 months. The effective non-parole period was 6 years and 9 months.

4 The sentencing judge allowed a discount of 25% for the early plea of guilty. Because of the respondent’s relative youth, the fact that it was his first time in custody, the partial accumulation of the sentences, and his need for a longer non-parole period to enable him to deal with illicit substance issues, his Honour found special circumstances.

The facts

5 The first two offences were both committed on 2 August 2005. The first offence occurred between 8.00 and 8.30 pm when the respondent robbed a pizza delivery person as he was returning to his vehicle after completing a delivery. The respondent approached the driver’s side door of the vehicle and said, “Give me the bag. Don’t yell.” At the same time the respondent held a silver bladed knife of about 15 cm length to his victim who handed him the money pouch containing $101. The respondent escaped from the scene in a motor vehicle driven by Rouni Al-Khalil.

6 The second offence occurred between 9.30 and 10.00 pm and was also a robbery of a pizza delivery person. The delivery person returned to his vehicle and the respondent and Al-Khalil approached his driver’s window. The respondent produced a knife. The victim tried to move the knife away with his left hand and sustained a small cut to a finger. Al-Khalil and the respondent held the victim’s right arm so he could not move and the respondent put the blade of the knife against the victim’s neck and said, “Hurry up, I don’t have time.” The victim handed over the sum of $70.

7 The respondent was arrested for these offences on 5 August 2005. Al-Khalil had previously been arrested and made full admissions. Al-Khalil accepted responsibility for organising the robberies and driving the get-away vehicle.

8 When first interviewed the respondent denied knowledge of either of the robberies. However, a short time later he completed an interview in which he made full admissions.

9 The third offence was committed on Sunday 9 April 2006. The victim had taken her vehicle to a car wash in South Strathfield. After it had been cleaned and she was waiting for her car to be reversed from the car wash the respondent and a co-offender, who was carrying a gun, approached the car and forcibly removed the car wash employee from it. The gun was pointed in the employee’s face. When the owner of the car protested the gun was pointed at her chest. The respondent and his co-offender then drove off in the car. The car was later recovered. The car key was found in the possession of the respondent.

10 The fourth offence occurred on 9 October 2006 when the respondent, armed with a long barrelled revolver, robbed a “cash in transit” security guard. The victim had just collected cash from the McDonalds at Enfield and had transferred it to his private vehicle. The respondent and a co-offender approached the victim’s car on a motorcycle. The respondent approached the driver’s door and pointed the gun whilst demanding money. The victim handed over $29,000 and the respondent and his co-offender fled on the motorcycle.

11 The fifth offence was committed on 29 September 2006. The respondent and a co-offender accessed a flat where the respondent produced a gun which he used to threaten the occupants. The respondent and his co-offender demanded access to the family safe. The 17 year old member of the family was grabbed by the respondent who held a gun to his head. He was forced to his knees and the respondent put the pistol to the back of his head before discharging a round in close proximity to the boy. During these events the co-offender was saying, “Pop him, pop him.” Not surprisingly there was evidence that the young man thought he was going to die. The bullet hit the ground nearby. The respondent continued to hold the gun to the head of the boy until they were given access to the safe. The respondent and his co-offender stole a .270 calibre rifle, a box containing approximately $20,000 in Australian currency, 3,000 in Euros and assorted jewellery.

Matters of history

12 The respondent was arrested late in the evening of 5 August 2005 in relation to counts 1 and 2 and granted conditional bail the following day. He was arrested on 4 November 2005, after he failed to appear at court, and his bail was continued with the same conditions. His bail was again breached on 19 January 2006 and he was returned to custody. On 1 February 2006, after being committed for sentence on counts 1 and 2, bail being refused, the respondent was incorrectly released from custody. It was during this time that he committed the third offence. He remained at large until 14 April 2006 when he was returned to custody and refused bail.

13 On 28 July 2006 he appeared before the sentencing judge and was given a bond pursuant to s 11 of the Crimes (Sentencing Procedure) Act 1999 in relation to counts 1 and 2. He was released from custody. It was while he was subject to this bond that the respondent committed counts 4 and 5.

14 The respondent was arrested on 12 October 2006 in relation to count 4 and has been in continuous custody since that date. He was charged in relation to counts 3 and 5 on 17 January 2007.

Subjective matters

15 The respondent was born on 2 July 1986. Following his release on 28 July 2006 he married. He now has a son by that union. The respondent is the youngest of 6 children. But for a brother, he was not close to his siblings. His parents were elderly when he was born and he received little guidance from them.

16 By 13 years of age the respondent regularly stayed away from home and engaged in anti-social behaviour with older friends. He found acceptance with his anti-social peers and fell into inappropriate conduct ultimately leading to criminal behaviour.

17 For a time he lived with his brother in Tasmania but found this boring and returned to live with his parents in Sydney. He struggled at school and dropped out in Year 9. He had been suspended from school at times for acts of violence and use of illicit substances.

18 At age 15 he began work as a panel beater. However he misbehaved at TAFE and was asked to leave within 1 month of the course starting. He was sacked from his employment for fighting with customers and has not been employed since.

19 The respondent commenced using cannabis at age 13, ecstasy at age 15 and was a heavy user of ‘Ice’ (crystal methamphetamine) by age 17. He turned to using cocaine and by age 19 frequently ingested large quantities of that drug. He also took to drinking alcohol to excess.

20 The respondent has had some health issues. In 2005 he was hospitalised for an extended period of time due to the collapse of both of his lungs. He has also experienced a number of drug induced psychoses and at times has behaved in a bizarre fashion. He reported to a psychologist that he was under the influence of illicit substances and alcohol at the time of committing these offences. His level of intellectual functioning is assessed as borderline with his skills being superior to only 3% of the population.

Remarks on sentence

21 The sentencing judge found that there were aggravating features in relation to counts 1 and 2. The offences were committed in company and the victims were vulnerable. However, his Honour was satisfied that the respondent had entered an early plea and was entitled to the full utilitarian discount of 25%. He also found that at the time of these two offences, the respondent was a person without prior criminal convictions. His Honour said that he would take into account the guideline judgments in R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 in relation to robberies and R v Ponfield [1999] NSWCCA 435; (1999) 48 NSWLR 327 in relation to break, enter and steal offences. His Honour observed that the respondent had spent 633 days in custody at the time he was sentenced and accordingly back-dated the sentence to 9 March 2006.

22 In respect of the aggravated car-jacking offence his Honour noted that it was committed when the respondent was at large, having been incorrectly released from custody. His Honour found the respondent’s role to be less than his co-offender, the latter having presented the gun and made the direct threats. He found the offence to be just below the mid-range of objective seriousness. However, his Honour found, as an aggravating factor, that it was a planned enterprise and that the respondent was in company. His Honour did not refer to the threatened use of the gun as an aggravating factor. This may have been because he regarded it as an element of the aggravated offence and could not be taken into account twice.

23 In relation to the offence of specially aggravated break, enter and steal (home invasion) his Honour found that the offence fell within the mid-range of objective criminality. His Honour noted as aggravating features that the offence was planned and that the respondent was on bail, which had been granted shortly before the offence was committed. His Honour found that an element of the aggravated offence was that the respondent was armed with a dangerous weapon and accordingly his Honour did not refer to this aspect as a matter of aggravation. His Honour accepted that the impact on each of the three victims was substantial and took this into account as an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act. His Honour had regard to the fact that there was a “small amount of violence and certainly a significant threat” and that there were multiple victims. In mitigation, his Honour had regard to the early plea of guilty.

24 In relation to the offence of armed robbery of the security guard, his Honour noted that it was committed shortly after the respondent had been released on bail to attend an anger management course. His Honour noted as the aggravating factors of the offence that it was committed in company, that there was clear planning, that the respondent was on bail and that a large amount of cash was taken. In mitigation his Honour was again mindful of the early plea of guilty. His Honour said that he had regard to the Henry guideline. However, his Honour could not conclude that the respondent was unlikely to re-offend or even that he had good prospects of rehabilitation.

The Crown appeal

25 The Crown submitted that the sentences imposed by his Honour were manifestly inadequate and fail to reflect the objective criminality of each of the offences. It is further submitted that the resulting aggregate sentence, and non-parole period, do not adequately reflect the totality of the respondent’s criminality.

26 It is submitted that the following errors can be identified:

1. Misapplication of the guideline judgment in Henry.
2. Failure to properly assess the objective seriousness of the offences of aggravated car-jacking and specially aggravated break, enter and steal for the purpose of consideration of the standard non-parole period as a guidepost.
3. Failure to comply with Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610; 103 A Crim R 372, in setting individual sentences that were inappropriate to the objective seriousness of the offences before considering totality issues.

1. Misapplication of the guideline judgment in Henry

27 The offences under s 97(1) (the first two offences) carry a maximum penalty of 20 years imprisonment. The offence under s 97(2) (the armed robbery of the security guard) carries a maximum penalty of 25 years imprisonment. The guideline judgment of this Court in Henry provides a range of head sentence in respect of offences under s 97(1) between four to five years for offences characterised by the features identified in that judgment. Aggravating and mitigating factors may justify a sentence above or below the stated range, the range being intended as a starting point ([169]).

28 The category of case contemplated in Henry has the following features ([162]-[165]):

1. Young offender with no or little criminal history.
2. Weapon like a knife, capable of killing or inflicting serious injury.
3. Limited degree of planning.
4. Limited, if any, actual violence but a real threat thereof.
5. Victim in vulnerable position such as a shopkeeper or taxi driver.
6. Small amount taken.
7. Plea of guilty, the significance of which is limited by a strong Crown case.

29 The Crown submitted that although his Honour referred to Henry and said he took it into account, his Honour appears to have paid no regard to the sentencing range to which it refers. The range of four to five years imprisonment was identified as appropriate to offences contrary to s 97(1) of the Crimes Act where the maximum penalty is 20 years imprisonment. The offence under s 97(2) is a more serious offence and in the present case involved the use of a gun. The Crown submitted that although the Henry guideline should be acknowledged as a starting point for the offence under s 97(1), because s 97(2) provides for an aggravated form of the offence, with a higher maximum penalty, the penalty imposed by the court should be greater than the guideline may otherwise indicate: see R v Campbell [2000] NSWCCA 157 at [21].

30 It was further submitted that his Honour appeared to have entirely disregarded the guideline range of four to five years in relation to the first two offences. A sentence of a fixed term of 15 months imprisonment in respect of each offence, the second being cumulative upon the first by 3 months with an effective overall sentence of only 18 months was submitted to be grossly inadequate.

31 With respect to the robbery of the security guard the Crown emphasised that a gun was used. It was submitted that a sentence greater than the Henry guideline was appropriate for that offence for the following reasons:

1. The offence was committed within a short time of the respondent having been granted bail in relation to the first two armed robbery offences.
2. The respondent used a gun to threaten and terrorise the victim. The gun was not merely presented but was pointed to the head of the security guard at the driver’s side window of the car in which he was seated.
3. His Honour found that the offence was planned, a finding that was demonstrated not only by the events themselves, but from evidence available from telephone intercept material.
4. The amount taken was extremely large - $29,000.

32 The sentence imposed was 6 years which, having regard to the 15% discount which his Honour allowed for the plea of guilty reflected a starting point of 7 years. It was submitted that the objective seriousness of this offence was considerably greater than the characteristic offence referred to in Henry and warranted a total sentence well above the range of 4 to 5 years.

2. Failure to properly assess objective seriousness and standard non-parole period as a guidepost

33 It was submitted that the sentencing judge failed to properly assess the objective seriousness of the aggravated car-jacking offence and the specially aggravated break, enter and steal offence, both of which carried standard non-parole periods. The first carried a standard non-parole period of 5 years and the second 7 years. The Crown was critical of the fact that his Honour identified the aggravated car-jacking offence as being “somewhere just below the mid-range.”

34 His Honour classified the home invasion as being “within the mid-range of offences of that type.” However, having found that it was within the mid-range his Honour did not articulate reasons for departing from the standard non-parole period. It may have been because of the early plea of guilty. The Crown submitted that given his Honour found that he could not positively conclude that the respondent is unlikely to re-offend or that he has good prospects of rehabilitation his Honour should not have departed from the standard non-parole period for this offence.

35 It was further submitted that the sentence which was imposed indicated that his Honour had ignored the standard non-parole period. This was said to be evident from the fact that the non-parole period imposed on the home invasion offence, four years, is just over half the standard non-parole period provided by the statute. The Crown submitted that the subjective features were not exceptional for cases of this type and did not warrant such a significant departure from the standard. The Crown also emphasised the fact that the respondent was on bail or conditional liberty in respect of all but the first two robbery offences when the offences were committed. It was submitted that this was a serious aggravating feature which his Honour had failed to adequately reflect in the sentences which he imposed (see R v Tran [1999] NSWCCA 109 at [15]).

36 It was further submitted that his Honour erred in finding that the home invasion offence fell within the mid-range of objective seriousness. The offence contemplates an offender who is armed with a dangerous weapon. In the present case not only was the respondent armed with a gun but he used it to threaten the victims in a way that must have been terrifying for all concerned, especially the young man at whose head the gun was held whilst he was forced to his knees. The offence involved the taking of well over $20,000 including Euro currency and items of jewellery were also stolen. The offence was committed whilst the respondent was on bail in respect of armed robbery. Accordingly, it was submitted that the sentencing judge should have found the offence to be above the mid-range of objective seriousness.

37 Finally, in relation to the car-jacking offence the Crown emphasised that an offensive weapon, a gun, was used to threaten both the owner of the car and the employee of the car wash. The motor vehicle was stolen and it was submitted that his Honour should have found the offence to be within the mid-range of objective seriousness and should have given serious consideration to the standard non-parole period of 5 years as a guidepost. In fact his Honour imposed a non-parole period that was only 50% of the standard period. In these circumstances it is submitted that the sentence imposed was excessively lenient.

3. Failure to comply with Pearce in setting individual sentences

38 It was submitted that although his Honour partially accumulated the sentences, the result, being a total sentence of 10 years and 9 months for five very serious offences, was excessively lenient. The non-parole period of 6 years and 9 months, even allowing for a finding of special circumstances, was submitted to be below any appropriate period of full time custody. It was submitted that the non-parole period did not appropriately reflect the criminality involved in the various offences (R v Fidow [2004] NSWCCA 172 at [22]). It was further submitted that having regard to both the term of the individual sentences and the overall term it would seem likely that the sentencing judge had not followed the sentencing process required by Pearce but had inappropriately considered the overall term when imposing the sentence for the individual offences.

The respondent’s submissions

39 In a carefully argued submission the respondent rejected the Crown’s criticism of both the individual sentences and the overall sentence. It was submitted that the sentences for the first two robberies should be seen “in the light of the history of the matter.” In this respect counsel drew attention to the fact that when deferring sentence for these matters on 28 July 2006 his Honour indicated that the appropriate sentence for a person of the respondent’s age and having regard to all other relevant factors for these offences may be “around the twelve to fifteen months on the bottom and that would be a pretty reasonable outcome. The Crown would probably say it’s a bit soft but that’s about the ball park probably, maybe up to eighteen months.” Although counsel recognised that the respondent did not take the opportunity given to him to receive counselling it was submitted that it was not appropriate for the sentencing judge to later increase the sentence beyond that which had been indicated to the respondent. It was accepted that the sentences were lenient but it was submitted that they were not so far below the guideline as to establish error.

40 In relation to the offence against s 97(2) it was submitted that although there was a threat of harm it was not so significant as to justify it being separately considered as an aggravating feature. The offence was “armed robbery with a dangerous weapon” and it was submitted that his Honour was correct in sentencing the respondent accordingly. It was submitted that “the sentence of 6 years reflects a starting point of 8 years before application of the discount for the plea of guilty [which] is well above the range in the guideline and is commensurate with the seriousness of the offence.”

41 In relation to the aggravated car-jacking offence the respondent submitted that this Court should not intervene with respect to the sentencing judge’s classification of the offence as falling “somewhere just below the mid-range” (see R v Deng [2007] NSWCCA 216; (2007) 176 A Crim R 1 at [69]). It was submitted that in the present circumstances given the discretion available to the sentencing judge the finding which he made was open.

42 It was submitted that by imposing a head sentence of 5 years his Honour must have had a notional starting point prior to the application of the discount for the plea of guilty of 6 years and 8 months. But for a finding of special circumstances that sentence would have carried a non-parole period of 5 years. Accordingly, it was submitted that despite his Honour’s finding that the offence was slightly below the mid-range, his Honour’s starting point was in fact a sentence with a notional non-parole period equivalent to the standard non-parole period. It was submitted that this appears to be an increment to reflect the fact that the respondent, while not on bail at the time was, in his Honour’s words “at large.”

43 In relation to the home invasion offence the respondent submitted that the court should not intervene with the sentencing judge’s finding that the offence fell within the mid-range. The respondent submitted that the 8 year head sentence must have had a notional starting point prior to the application of discount for the plea of guilty of 10 years, 8 months. Prior to an adjustment for special circumstances, this would have carried a non-parole period of 8 years. It was submitted that this reflected a sentence with a non-parole period of one year higher than the standard non-parole period. The respondent repeated the submission that this reflected the sentencing judge’s finding that the respondent was on bail at the time of the offence.

44 Given this, it was submitted that his Honour’s reasons for departing from the standard non-parole periods was quite transparent, being the plea of guilty and the finding of special circumstances. But for these matters it was submitted that the standard non-parole periods would have been applied and no error is established.

Discussion

45 The task faced by the sentencing judge in the present case was difficult. He was called upon to sentence a young person with no previous criminal history, but with a serious drug problem, who had committed a series of serious offences. His use of drugs and alcohol appear to have seriously compromised his thinking and at times resulted in bizarre and unpredictable behaviour. The evidence indicates that he was under the influence of illicit drugs and alcohol at the time of committing these offences. He is of low intelligence, and as the sentencing judge found, his prospects of retrieving his life from criminal activity and otherwise unacceptable behaviour were uncertain.

46 The crimes which the respondent committed, although varying, were all serious offences and he was required to be sentenced accordingly. They occurred during a period of a little more than 12 months and involved the use of a weapon, either a knife or a gun. They are offences which, both individually and together, indicate a preparedness to put others at risk of serious injury or to endanger their lives in pursuit of his own criminal intentions.

47 Although I accept the difficulty in framing appropriate sentences for each offence and providing a total sentence which is not crushing for the respondent I am satisfied that both the individual sentence and the total sentence are inadequate to such an extent that this Court must intervene. The principles which must be applied when there is a Crown appeal are set out in the well known remarks by Wood CJ at CL in R v Wall [2002] NSWCCA 42 at [70] that have been repeated on many occasions. I shall not repeat them.

48 When sentencing the respondent his Honour paid appropriate regard to the guilty pleas, allowing a discount of 25%. His Honour was mindful of the respondent’s potential problems in rehabilitating himself. Whether a lengthy period of incarceration will bring positive results is uncertain. Although the respondent has now married and has a child, whether that relationship is capable of being re-established upon his ultimate release from prison in unknown. However, I am satisfied that the finding of special circumstances which his Honour made was appropriate. There will be an undoubted need for him to be assisted and supervised upon release if he is to become a worthwhile and law abiding member of the community.

49 The first two offences were both committed on 2 August 2005. Accordingly it was appropriate to provide a period of overlap of the individual sentences. In each case the respondent threatened his victim with a knife and a modest amount of money was taken. Each offence was committed in company. The respondent was aged 19 at the time.

50 The maximum penalty for each of these offences is twenty years imprisonment. This Court considered the range of penalties which have been imposed for similar offences in Henry. Although the court was not unanimous, its members joined in accepting that a range of sentencing information was available to underpin the adoption of appropriate guidelines for sentencing of offenders for those offences. The legitimacy of guidelines was criticised by the High Court in Wong & Leung v R [2001] HCA 64; (2001) 207 CLR 584 although following legislative amendment was again considered by this Court in R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252. The decision in Henry was affirmed, the Chief Justice stating that the guideline should be understood as an “indicator” and taken into account by a sentencing judge as a “check” or “sounding board.” Although in the present case the sentencing judge made reference to Henry and said he would take it into account it is difficult to understand how this has been reflected in his reasoning or in the penalties which his Honour imposed.

51 In proposing as a guide a sentence within the range of four to five years for the full term Spigelman CJ in Henry indicated that he had in mind a category of case with identified elements. I have referred to those elements in [28] above.

52 Each of these characteristics was present in the first two offences committed by the respondent. There is nothing in the circumstances of the offences or the circumstances of the respondent, and no matters were identified by his Honour, as justifying the very significant departure from the range in Henry reflected in the sentences imposed. It may be as the appellant suggests that his Honour imposed these sentences out of concern for matters of totality. If that was the case his Honour did not give any indication in his remarks that he was taking this approach. In any event, although I appreciate the circumstances of a sentencing judge with a heavy case load, the High Court’s decision in Pearce requires the appropriate sentence for each offence to first be identified before considering matters of totality ([45]).

53 In my judgment the serious nature of these offences required an individual sentence within the range accepted by this Court in Henry. I agree that having regard to the other offences for which he was required to be sentenced a fixed term was appropriate. That term should reflect the minimum period which the sentencing judge would have required to be served for each offence. Given that the offences occurred on the same day it is appropriate to provide a degree of overlap of the sentences.

54 The third offence, aggravated car-jacking, carries a maximum penalty of fourteen years but, of greater present relevance, it carries a standard non-parole period of five years. His Honour imposed a term of five years imprisonment with a non-parole period of two years and six months. In his remarks on sentence his Honour described the offence as being “somewhere just below the mid range.” His Honour does not provide his reasons for this finding but presumably he was influenced by the fact that it was the co-offender rather than the respondent who brandished the gun.

55 Although this action by the co-offender justified a finding of greater criminality on his behalf I would not have been inclined to determine the respondent’s part in the offence as justifying a finding below the mid-range of objective seriousness. The relevant circumstance of aggravation was that the offence was committed in company. However, it was not irrelevant that his companion was carrying and brandishing a weapon.

56 It is correct as his Honour observed that the respondent pleaded guilty and was entitled to the full discount for that plea. However, a non-parole period of only 2 years and 6 months was, in my opinion, so far below the appropriate minimum term as to require intervention by this Court. There is nothing in the respondent’s subjective circumstances which would justify this sentence. It would seem likely that a “Pearce error” is responsible for the lenient sentence.

57 The fourth offence, robbery when armed with a dangerous weapon carried a maximum penalty of 25 years imprisonment. To my mind this was a very serious offence. The respondent was on bail and used a gun which was not only produced but pointed at the head of the security guard at the driver’s side window of the car. The offence was planned and the amount taken, $29,000, was large. These matters collectively took the objective criminality significantly above that contemplated as the offence appropriate for the range in the guideline suggested in Henry. To my mind the sentence which his Honour imposed, a full term of 6 years with a non-parole period of 3 years and 6 months, was inadequate. Because of the structure of the other sentences which his Honour provided the respondent would not be required to serve any penalty referable to this offence.

58 I have identified problems with each of the sentences for offences one to four. The sentence for the fifth offence carried a maximum penalty of 25 years imprisonment with a standard non-parole period of 7 years. His Honour found that the offence fell within the mid-range of objective criminality – that finding was challenged by the Crown which submitted that it lies above the mid-range.

59 The offence to which the respondent pleaded guilty was the specially aggravated form of the offence of breaking into a house. The circumstances of special aggravation arose from the fact that the respondent was armed with a gun. However, it was the use of the gun, the holding of it to the head of the 17 year old and its discharge when the co-offender was saying “pop him” which made this offence extremely serious. The lad must have been severely traumatised as would have been the other occupants of the premises. A significant sum of cash, approximately $A25,000 and a rifle were stolen.

60 His Honour imposed a minimum term of 4 years with a full term of 8 years. Even allowing for the respondent’s guilty plea the sentence was sufficiently inadequate to require this Court to intervene.

61 The Crown submitted that when sentencing for this offence his Honour had failed to have regard to the guideline provided by this Court in R v Ponfield [1999] NSWCCA 435; (1999) 48 NSWLR 327. Ponfield was primarily concerned with the offence contrary to s 112(1) which carried a maximum term of 14 years imprisonment. In that case the court confined its discussion to matters relevant to a potential sentence without establishing a starting point or developing a sentencing range. With respect to the present offence the trauma suffered by the victims is of particular significance. His Honour found that impact to be substantial. That finding alone justified a sentence which reflected a finding that the offence fell above the mid-range of objective seriousness. When it is recognised that the respondent had been released on bail at the time he committed the offence a finding that the offence fell above the mid-range of objective seriousness was unavoidable. Of course, because the respondent had pleaded guilty the standard non-parole period was not directly relevant (see R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [68] but remains as a guide to the appropriate range R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575 at [13]).

62 I have previously discussed the difficulties which have arisen in the application of Part 4 Division 1A of the Crimes (Sentencing Procedure) Act 1999 and the disparity between standard non-parole periods and the sentences actually imposed. Those difficulties have not yet dissipated. In R v Knight & Biuvanua [2007] NSWCCA 283 I said at [5]:

“In many of the cases where this Court finds problems with the consideration of the standard non-parole period the sentence imposed by the primary judge differs markedly from the sentence which the relevant legislation contemplates as being appropriate, making intervention necessary notwithstanding the principles considered in MD & Ors . As this Court has previously acknowledged a successful Crown appeal imposes a greater burden on the offender: see R v Witchard [2007] NSWCCA 167 at [33]-[34]. Both this consideration, but more importantly considerations of the integrity of the sentencing process, require that sentencing judges continuously remind themselves of the principles provided by the relevant legislation and developed by this Court.”

The appropriate sentences

63 After consideration of the various matters to which I have referred I have concluded that this Court must intervene and impose new sentences in relation to each offence which are at the lowest end of the available range. Having identified the appropriate sentence for each offence I have adjusted the starting date to accommodate matters of totality. The orders I propose are:

1. Appeal upheld.

2. Sentences imposed in the District Court quashed and in lieu thereof the respondent is sentenced as follows:

First offence: a fixed term of imprisonment of 2 years and 6 months commencing on 9 March 2006.

Second offence: a fixed term of imprisonment of 2 years and 6 months commencing on 9 March 2007.

Third offence: fixed term of imprisonment of 5 years commencing on 9 March 2008.

Fourth offence: a non-parole period of 4 years with a balance of term of 3 years. The sentence to commence on 9 March 2009.

Fifth offence: a non-parole period of 5 years with a balance of term of 4 years. The sentence to commence on 9 March 2010.

The aggregate sentence is a term of 13 years. The effective non-parole period is 9 years. The respondent would be eligible for parole on 8 March 2015.

64 HULME J: I agree with the orders proposed by McClellan CJ at CL and, subject to the following, with his Honour’s reasons.

65 Although, as his Honour correctly observes, Wood CJ at CL’s remarks in R v Wall [2002] NSWCCA 42 at [70] have been repeated on many occasions in this Court, I do not regard those remarks as accurately stating the principles to be applied in Crown appeals. I have detailed in R v AA [2006] NSWCCA 55, reasons for that view and it is unnecessary to repeat here what I then said. It is sufficient for present purposes to observe that some of Wood CJ at CL’s remarks do not fully reflect prior authority that his Honour did not purport, and some of which he had no power, to overrule.

66 I accept, as I said in R v AA, that Wood CJ at CL’s remarks are a convenient summary. That summary is sufficient for most purposes and for this case.

67 I would add something on the topic of sentence. The effective sentence to be imposed on the Respondent is imprisonment for 13 years including a non-parole period of 9 years. The total of the 5 non-parole or fixed periods imposed for individual offences is 19 years. The very substantial reduction from this number to 9 years is justified by the combination of, (i) considerations of totality, (ii) the fact that the Respondent had no prior criminal record, (iii) his relative youth, and (iv) the fact that he would seem to have received rather less guidance and assistance from his parents than should have occurred.

68 Should the Respondent re-offend on his release, the second and third of the matters to which I have just referred will have no application and his punishment on this occasion should provide enough guidance to make it clear to him that society cannot tolerate the sort of conduct of which he has been convicted. While his punishment is severe, it is appreciably less so than he can expect if he offends in similar ways again.

69 HIDDEN J: I do not find it necessary to deal with the specific complaints made by the Crown about the sentencing judge’s approach. I agree with McClellan CJ at CL that the sentences, individually and in their combination, are manifestly inadequate and I agree with the orders which his Honour proposes.

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