R v Bahsa

[2003] NSWCCA 36

Reported Decision: 138 A Crim R 245

New South Wales

Court of Criminal Appeal

CITATION:	R v Bahsa [2003] NSWCCA 36
HEARING DATE(S):	25/02/03
JUDGMENT DATE:	12 March 2003
JUDGMENT OF:	Sheller JA at 1; James J at 6; Smart AJ at 97
DECISION:	Crown appeal against sentence allowed - Respondent re-sentenced
CATCHWORDS:	Criminal law - sentencing - Crown appeal against sentence - multiple offences - armed robbery - detaining for advantage - "guideline" offence - totality
CASES CITED:	Everett v The Queen (1994) 181 CLR 295 R v Henry (1999) 46 NSWLR 46 Pearce v The Queen (1994) 194 CLR 610 R v Baker (2000) NSWCCA 85 R v Hammoud (2000) 118 A Crim R 66 R v AEM (2002) NSWCCA 58 R v Myers (2002) NSWCCA 162 R v Finnie (2002) NSWCCA 533 R v Fernando (2002) NSWCCA 28 R v Sharma (2002) NSWCCA 142
PARTIES :	Regina v Ammin BAHSA
FILE NUMBER(S):	CCA 60493/02
COUNSEL:	GIO Rowling - Crown In Person - Respondent
SOLICITORS:	SE O'Connor - Crown Graham W Howe & Company - Respondent

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/21/0189; 02/21/0177; 02/21/0178; 02/21/0188
LOWER COURT JUDICIAL OFFICER :	Tupman DCJ

60493/02

SHELLER JA
JAMES J
SMART AJ

Wednesday 12 March 2003

REGINA v Ammin BAHSA

Judgment

1 SHELLER JA: I have had the benefit of reading the reasons for judgment in draft prepared by James J. I agree with those reasons and the sentences his Honour proposes. However, I wish separately to express my concern at the serious inadequacy of the sentences imposed in the District Court.

2 Given that, as James J pointed out, the fixed term sentences imposed for each of the eight offences of armed robbery should be treated as the equivalent of non-parole periods and that, as the sentencing Judge found, there were no special circumstances, only one, charge 11, fell within the range of four to five years for the appropriate head sentence suggested in R v Henry (1999) 46 NSWLR 346 at pars 161-170 and even that one was at the bottom of the range.

3 As James J has also pointed out, the offence in charge 11 was committed by the respondent in company and armed with a large knife. The victim attendant, who was working alone at the service station, was pushed, punched and his lip was cut.

4 James J has quoted, from the sentencing Judge’s statement of the facts of the offences, what her Honour said about the detention of Mr Drivilas. During that episode the respondent threatened to kill Mr Drivilas who was then aged 17. The offence was committed in company. Mr Drivilas was covered so that he could not see and believed a sharp object pressed against his skin and his neck was a knife. He was searched and robbed. He was forced into motor vehicles. His shoes and trousers were removed and he was tied up. He was driven about Sydney, blindfolded, tied up and semi-naked. Burning cigarettes were stubbed out on his bare skin. The sentencing Judge accepted that he thought he was going to die. For that offence, together with an offence of robbery in company and an offence of being carried in a conveyance without the consent of the owner, the sentencing Judge thought an overall sentence of about five years with a non-parole period of about three years adequately reflected the total criminality, but imposed a sentence of imprisonment for four years with a non-parole period of two years. In my opinion, the sentence was seriously inadequate and failed to recognise in any meaningful way the criminality of what the appellant did.

5 As James J has said, the sentences imposed by this Court, when re-sentencing the appellant, must and do give to him the benefit of the fact that his freedom beyond the sentence imposed has been put in jeopardy for the second time; Everett v The Queen (1994) 181 CLR 295 at 299. For that reason, it should be recognised that the sentencing imposed by this Court stand at the lower end of the range of what should have been imposed at first instance.

6 JAMES J: This is an appeal by the Crown pursuant to s 5D of the Criminal Appeal Act against sentences imposed on 1 November 2002 in the District Court by her Honour Judge Tupman on the respondent Ammin Bahsa.

7 Her Honour sentenced the respondent for eight offences of armed robbery, which were referred to in the proceedings on sentence and which have been referred to on this appeal as offences or charges 1 to 7 and 11; for one offence of aggravated detaining for advantage, the circumstance of aggravation being the occasioning of actual bodily harm (offence or charge 8); for one offence of robbery in company (offence or charge 9); and for one offence of being carried in a conveyance without the consent of the owner, knowing that the conveyance had been taken without consent (offence or charge 10). The respondent had pleaded guilty to all eleven charges.

8 Armed robbery is an offence under s 97(1) of the Crimes Act for which the maximum penalty is imprisonment for twenty years. Robbery in company is also an offence under s 97(1) of the Crimes Act, with the same maximum penalty. Aggravated detaining for advantage, where the circumstance of aggravation is the occasioning of actual bodily harm to the victim, is an offence under s 86(2)(b) of the Crimes Act for which the maximum penalty is imprisonment for twenty years. Being carried in a conveyance without the consent of the owner knowing that the conveyance has been taken without the owner’s consent is an offence under s 154A(1)(b) of the Crimes Act for which the maximum penalty is imprisonment for five years. It is convenient to refer to this last offence as “the s 154A offence”.

9 The sentences imposed by her Honour were as follows. On each of the first three charges her Honour imposed a fixed term of imprisonment of two years commencing on 18 February 2002, the date on which the respondent had been arrested and taken into custody, the sentences to be served fully concurrently with each other. On each of charges 4 to 7 her Honour imposed a fixed term of imprisonment of two and a half years commencing on 18 February 2002, the sentences to be served fully concurrently with each other. On charge 11 her Honour imposed a sentence of a fixed term of imprisonment of three years commencing on 18 February 2003, that is one year after the commencement of the sentences on the first seven charges, and expiring on 17 February 2006. On charge 8 her Honour imposed a sentence of imprisonment of four years commencing on 18 February 2006, that is on the expiration of the sentence on charge 11, with a non-parole period of two years commencing on 18 February 2006 and expiring on 17 February 2008. On charge 9 her Honour imposed a fixed term of imprisonment of two years commencing on 18 February 2006, that is a sentence to be served fully concurrently with the non-parole period of the sentence on charge 8. On charge 10 her Honour imposed a fixed term of imprisonment of one year commencing on 18 February 2006, that is a sentence to be served fully concurrently with part of the non-parole period of the sentence on charge 8. The total effective sentence imposed on the respondent was a sentence of imprisonment for eight years commencing on 18 February 2002, with fixed terms and a non-parole period totalling six years.

10 All the offences were committed within a period of about three and a half weeks between 25 January 2002 and 17 February 2002. The first seven armed robberies were committed on 25 January 2002, 28 January 2002, 31 January 2002, 3 February 2002, 5 February 2002, 9 February 2002 and 15 February 2002. The final four offences, that is offences 8, 9, 10 and 11, were all committed on 17 February 2002. Within a very short period after committing these offences the respondent was arrested and he was continuously in custody up to the time when he was sentenced on 1 November 2002. The Crown appeal against the sentences was filed by the Director of Public Prosecutions on 15 November 2002.

11 Her Honour’s statement of the facts of the offences in her remarks on sentence was not the subject of any complaint by either party on the hearing of this appeal and the following brief summary of the facts of offences 1 to 7 is derived from her Honour’s remarks on sentence.

Offence 1

12 This offence was committed shortly after 10.40 p m. on 25 January 2002 at the Video Ezy store, Bankstown. There were customers in the store at the time. The respondent produced a kitchen knife and held it close to the body of an employee of the store. The respondent made a number of demands for money and took $1200 in cash. The robbery was recorded in a surveillance video. On the basis of what was shown in the surveillance video her Honour found that the blade of the kitchen knife was about twenty centimetres long. The respondent was shown in the video as wearing distinctive clothing, including a distinctive cap.

Offence 2

13 This offence was committed shortly after 11.20 p m. on 28 January 2002 at the BP Service Station, Wiley Park. The respondent was accompanied by a female, who has not been identified. There were no customers in the service station at the time. The respondent produced a meat cleaver, which was about thirty centimetres long, and lifted it towards the console operator, who was working alone. The respondent removed cash from the cash register and mobile telephone recharge cards. The female co-offender removed packets of cigarettes. The sum of $420 in cash, mobile telephone recharge cards worth $310 and some packets of cigarettes were taken.

14 This robbery also was recorded in a surveillance video. The respondent was shown in the video as wearing the same distinctive cap. Fingerprints were detected and developed and were positively identified as being those of the respondent.

Offence 3

15 This offence was committed shortly after 1.40 a m. on 31 January 2002 at the Caltex Service Station, Punchbowl. At the time of the robbery there were two employees in the service station. The respondent produced a kitchen knife about twenty-five centimetres long. He removed money from the cash register, while pointing a knife towards the two employees. The respondent took $600 in cash and mobile telephone recharge cards worth $600. This robbery also was recorded on a surveillance video. The respondent was shown in the video as wearing the same distinctive cap.

Offence 4

16 This offence was committed shortly after 4.35 a m. on 3 February 2002 at the Caltex Service Station, Punchbowl, which was the same service station at which the respondent had committed offence 3, although this time the victim was a different employee of the service station. The respondent produced a meat cleaver about thirty centimetres long and demanded that the employee of the service station, who was working alone, open the cash register and produce mobile telephone recharge cards. The respondent made a threat to “chop” the victim. The respondent took $450 in cash, mobile telephone recharge cards worth $1000 and a number of packets of cigarettes. This robbery also was recorded in a surveillance video. The respondent was shown in the video wearing the same distinctive cap.

Offence 5

17 This offence was committed shortly after 1.15 a m. on 5 February 2002 at the Mobile Service Station, Yagoona. The respondent was accompanied by a male, who has not been identified. The respondent produced a butcher’s knife and pointed it at an employee of the service station, who was working alone. The respondent demanded that the employee open the cash register. The respondent and the unidentified co-offender took $1200 in cash and a quantity of cigarettes. This robbery was also recorded on a surveillance video. The respondent was shown in the video as wearing the same distinctive cap.

Offence 6

18 This offence was committed shortly after 12.40 p m. on 9 February 2002 at the Yagoona Seven Day Chemist. The respondent was accompanied by a male, who has not been identified. In the pharmacy there were a female pharmacist and two female sales assistants. The co-offender produced a meat cleaver and demanded that the cash register be opened. The co-offender took $592 in cash and the co-offender and the respondent then ran out of the pharmacy. One of the female sales assistants was able to make a photographic identification of the respondent.

Offence 7

19 This offence was committed shortly after 4.20 a m. on 15 February 2002 at the Caltex Service Station Punchbowl, at which offences 3 and 4 had been committed. The victim of the robbery was the same employee of the service station as had been a victim of offence 3. The victim recognised the respondent and attempted to prevent the respondent entering the service station premises but was unsuccessful. The respondent produced a knife which was twenty-five to thirty centimetres long and demanded that the employee open the cash register and produce the mobile telephone recharge cards. The respondent took $300 in cash and mobile telephone recharge cards worth $130. This offence also was recorded in a surveillance video and the respondent was shown in the video as wearing the same distinctive cap. The victim was able to make a photographic identification of the respondent as being the offender.

Offences 8, 9 and 10

20 I will quote in full her Honour’s statement of the facts of offences 8, 9 and 10:-

“The facts in relation to these three offences are that between about 2.30 and 3 am on 17 February 2002, Matthew Drivilas left a house in Yagoona to walk home. He had been visiting a friend. He was a seventeen year old young man at the time. As he walked along William Street at Yagoona he noticed two males following him. Mr Drivilas walked into the front yard of a house, pretending that he lived there, but walked back out because there was a dog in the yard and he was fearful of the dog. When he got back onto the footpath he was approached by a co-offender, Wayne Holten, who called him by name. Mr Drivilas had known Mr Holten for about three to four years. He started to walk along William Street with him, and when they were outside the Bankstown West Public School the prisoner ran at Mr Drivilas and pulled a balaclava down over his face covering his head. The prisoner himself was wearing a balaclava at the time.
Mr Drivilas felt his mobile phone grabbed from his hand by one or other of the offenders and it then rang. Mr Drivilas had in fact been on the phone to a friend not long before he was approached in this way by the prisoner. He was told to put the caller off by pretending he was talking to a friend. Mr Drivilas spoke to this friend and did as he was told and the phone was then taken away from him.
After this he felt something sharp against his neck, which he believed to be a knife. The prisoner said: ‘Don’t say a word or we will kill you’. The co-offender then suggested that Mr Drivilas be taken over the fence and that he would be searched. Mr Drivilas was led to the nearby school yard and dragged over the fence by the two offenders. The co-offender again told him to be quiet, and told him that they were going to kill him. He ordered Mr Drivilas down onto his stomach. The prisoner, too, ordered him to get down.
Mr Drivilas felt hands searching his clothing and he was asked for money. He said he did not have any, but the prisoner said that he did not believe him. He told him not to lie and threatened to stab him if he did. He also told Mr Drivilas that he wanted his shoes. The offenders took his Nike shoes from him. They then discovered a set of keys in his pocket and asked to whom they belonged. Mr Drivilas said they belonged to his father, and the co-offender then recognised that there was a car key on the set of keys and told Mr Drivilas that he knew where he lived and that they would go to get the car. At this stage one or other of the two offenders was still holding a sharp object against Mr Drivilas’ neck. At this stage a car pulled up next to the three men and the two offenders lifted Mr Drivilas from the ground and put him into the back seat of the car with the prisoner. The co-offender, Mr Holten and the third person, who I accept was Ms Anderson, got into the front seat and the car drove off.
They drove around for about ten minutes, and then went to another vehicle, a Tarago, which had been parked previously by the offenders. They took Mr Drivilas out of the first car, and Mr Drivilas then heard conversation between the offenders to the effect that they knew where he lived, and that they were going to go and get his father’s car. He was then led to another vehicle where he was laid down on the floor between the two seats. His jumper was removed, and placed under his head. His tracksuit pants were taken off him and tied around his ankles. Another piece of cloth was used to tie his wrists. Mr Drivilas then felt a sharp pain to his right calf muscle and heard the prisoner say: ‘Just put the cigarettes out on his legs’. Mr Drivilas then felt five or six more sharp pains on his legs before the door of the vehicle then closed again with him inside.
He was then driven around for about five or ten minutes before the car stopped, and the front passenger door opened. He then heard the sound of what I accept was his father’s Mitsubishi Pajero start and drive towards the vehicle that he was in. This was the vehicle for which he was carrying the keys that were taken from him by the two offenders in the schoolyard of the Bankstown West Public School.
Mr Drivilas then heard the co-offender, Mr Holten, suggest that they go and commit an armed robbery and a plan was made to drive along the highway in the direction of Redfern. There was a plan then hatched to commit an armed robbery on a service station along the way. There were then two vehicles, one of which contained Mr Drivilas, driven away.
About fifteen minutes later the vehicle in which Mr Drivilas was, stopped, and the prisoner suggested that an armed robbery be committed on the service station that they were apparently outside. He got out of the vehicle and told Mr Drivilas not to move. This service station I accept was the Shell Service Station at Enfield, the subject matter of the 11th count before me for sentence to which I will come shortly. At this stage Mr Drivilas was left by the prisoner and the co-offender, Mr Holten, in the vehicle in the company of the female co-offender. Not long afterwards the vehicle that Mr Drivilas was in drove off, and Mr Drivilas heard a conversation between Mr Holten in another car and the female who was driving the car that he was in.
An arrangement was made for them to go to Kings Cross, so far as I understand the evidence, for the purpose of obtaining some drugs. At this stage the female co-offender used some words in an attempt to reassure Mr Drivilas and told him that she would try to look after him. After some time, the car in which Mr Drivilas was, came to a stop and the driver’s door opened. He heard Mr Holten’s voice suggest that the female co-offender go to try and obtain some drugs.
At that stage Mr Holten got into the back seat of the car, and the vehicle left. The car then stopped after a short while and the co-offender, Mr Holten, untied Mr Drivilas’ hands. He then told him he could take the balaclava off, which he did, and also freed the tracksuit pants tied around his ankles and put them back on. The co-offender, Mr Holten, allowed Mr Drivilas to move to the front seat of the vehicle, and they drove to an industrial area in Bankstown. The co-offender parked the vehicle which was in fact a green Tarago and allowed Mr Drivilas to leave, taking him a short distance away.
When he was freed Mr Drivilas went to a nearby service station and contacted the police. Police attended the service station and spoke to Mr Drivilas and they then drove around the area to the position where the green Tarago had been left. When police arrived nearby they saw the prisoner before me standing near the Mitsubishi Pajero VQN115, the vehicle belonging to Mr Drivilas’ father which had been stolen earlier on in the evening by the prisoner and his co-offender. The prisoner was standing next to the front passenger’s seat of this vehicle and a third person was sitting in the driver’s seat. When police approached, the prisoner began to run from the scene and was arrested by police after a short foot pursuit”.

Offence 11

21 This offence, as already indicated by her Honour in her Honour’s statement of the facts of offences 8, 9 and 10, was committed at the Shell Service Station Enfield. The respondent was accompanied by a co-offender, Holten. Inside the service station the respondent produced a large knife. The victim, who was working alone at the service station, was pushed and punched and his lip was cut, causing it to bleed. The victim was robbed of his personal mobile telephone and wallet and a small amount of cash. The respondent tried to lock the victim in a toilet at the service station but the lock of the door was broken. The respondent threatened to kill the victim, if he left the room he was in. The sum of $197 in cash and cigarettes worth $592 were taken in the robbery.

22 As mentioned by her Honour in her statement of the facts of offences 8 9 and 10, the respondent was seen by the police, shortly before he was arrested, standing near the motor vehicle owned by Matthew Drivilas’ father, which had been taken without his consent. The respondent was wearing the same distinctive cap, which could be observed in the surveillance videos of the robberies. Police found in the stolen motor vehicle the knife which had been used in the commission of the armed robbery at the Shell Service Station at Enfield. A quantity of cigarettes which had been stolen from the Shell Service Station were laid out on the bonnet of the motor vehicle.

23 In her remarks on sentence her Honour made a number of comments about the objective facts of the offences. Her Honour said that all the offences, and particularly the aggravated detaining for advantage offence, were extremely serious. In all the armed robberies, except for offence 6 when it was the co-offender who was armed, the respondent was armed with a relatively long knife or with a meat cleaver, which her Honour described as “a frightening form of offensive weapon”. Her Honour found that all the victims would have been in considerable fear for their safety, when confronted by the respondent armed with a knife or a cleaver. Many of the victims were persons who were working alone in the late hours of the night or the early hours of the morning.

24 Her Honour found, in favour of the respondent, that in most of the armed robberies the respondent did not make overt threats of physical violence. However, in committing the fourth armed robbery, the respondent had threatened to “chop” the victim and the last armed robbery was aggravated by the actual violence perpetrated against the victim.

25 Some of the armed robberies were also aggravated by the circumstance that, in addition to the respondent being armed with an offensive weapon, the offence was committed by the respondent in the company of a co-offender. In sentencing the respondent for such armed robberies, the sentencing judge was entitled to take into account this further circumstance of aggravation.

26 Her Honour found that the offences were of increasing seriousness, culminating in the offences committed on 17 February 2002, when actual violence was used.

27 Her Honour commented specifically on the aggravated detaining for advantage offence. Her Honour noted that the victim was only seventeen years old. The offence was committed in the company of two co-offenders, a female Ms Anderson but also a male co-offender Holten, who, although a juvenile, was a physically large person. When the respondent first appeared, he was wearing a balaclava which effectively disguised him.

28 Her Honour proceeded to summarise the acts perpetrated on the victim Matthew Drivilas. He was seized. His head was covered so that he could not see. He had what he felt to be a sharp object and which he believed to be a knife pressed against his skin, including his neck. He was searched. He was robbed. He was forced into motor vehicles. His shoes and trousers were removed and he was tied up. He was driven around Sydney, blindfolded, tied up and semi-naked. Verbal threats were made to kill him. He suffered actual bodily harm through burning cigarettes being stubbed out on his bare skin.

29 Although there was no victim impact statement from Matthew Drivilas, her Honour accepted what he said in his statement that at times during the detention he thought he was going to die.

30 In her remarks on sentence her Honour then turned to the subjective circumstances of the respondent.

31 The respondent was born on 3 March 1983. He was accordingly eighteen years old, nearly nineteen years old, at the time of committing the offences.

32 Her Honour found that at the time of committing the offences the respondent was addicted to heroin and that the respondent had committed the armed robbery offences and the robbery in company offence to obtain money to fund his addiction. However, there was no connection between the detaining for advantage offence and any need of the respondent to obtain money to fund a drug addiction. Her Honour accepted that the respondent’s motivation for committing the robberies could not constitute a mitigating circumstance but said that it was a matter to be taken into account in assessing the respondent’s prospects of rehabilitation.

33 The respondent had a criminal history, not all the details of which were before her Honour. On 16 October 2000 the respondent had been sentenced in the Children’s Court on a charge of robbery in company, with an offence of armed robbery and another offence of robbery in company being taken into account, to a control order for eighteen months, with a non-parole period of eight months. On the same day he was sentenced to short terms of detention to be served concurrently, for offences of being carried in a conveyance without the consent of the owner and of hindering police.

34 After serving the non-parole period of the control order, the respondent was released on parole but he breached a condition of his parole and was taken back into detention.

35 While in a detention centre the respondent committed offences of maliciously damaging property by fire (the property being his own clothing) and intimidation of a youth worker in the detention centre. After committing these offences and upon attaining the age of eighteen years, the respondent was transferred to an adult gaol. On 7 September 2001 he was convicted of the two offences he had committed while in the detention centre. He was sentenced to a term of imprisonment of six months, which was suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act, conditionally upon his entering into a good behaviour bond. The respondent was subject to this suspended sentence and the good behaviour bond he had entered into, at the time of committing all of the eleven offences for which he was sentenced by Judge Tupman. Her Honour recognised that all of the offences for which she was sentencing the respondent were aggravated by the fact that at the time of committing the offences the respondent had been on a form of conditional liberty.

36 Her Honour proceeded in her remarks on sentence to make further findings about the subjective circumstances of the respondent.

37 The respondent is one of a large family of ten children. None of the other children, some of whom are older, has ever been convicted of a criminal offence. The respondent had the support of his family and would have their support after he is released from custody.

38 The respondent has poor literacy skills, not really being able to read or write. This was at least partly due to the respondent having used illegal drugs and having truanted from school.

39 Her Honour found that the respondent was genuinely remorseful for having committed the offences.

40 Her Honour found that, although the respondent had shown very little regard for authority in the past, his experience of being a prisoner in an adult gaol had changed his attitude to authority for the better.

41 While in prison the respondent had ceased using prohibited drugs and was seeking drug and alcohol counselling. He had also started to attend reading classes. Her Honour found that, to some extent, the respondent had not followed directions given to him in the past, because he had not been able to read or write and had not been prepared to admit his illiteracy.

42 Her Honour found that, having regard to these further findings about the subjective circumstances of the respondent, the respondent’s prospects of rehabilitation were better than they had ever been before and were “reasonably good”.

43 Her Honour found, in accordance with a concession made by the Crown, that the respondent’s pleas of guilty had been entered at the earliest available opportunity.

44 Judge Tupman had earlier, on 19 February 2002, sentenced Ms Anderson, who was a co-offender with the respondent in offences 8 9 and 10. Her Honour had sentenced Ms Anderson on the charge of aggravated detaining for advantage to a term of imprisonment of three years with a non-parole period of eighteen months; on the charge of robbery in company to a fixed term of imprisonment of twelve months; and on the charge of being carried in a conveyance without the consent of the owner to a fixed term of imprisonment of six months. Her Honour ordered that all the sentences should be served concurrently from the date of Ms Anderson’s arrest on 18 February 2002.

45 In her remarks on sentence her Honour said that the question of parity between the sentences already imposed on Ms Anderson and the sentences which should be imposed on the respondent did not really arise, because Ms Anderson had played a much lesser role in the offences for which she was being sentenced than the respondent had and the respondent was to be sentenced for many other offences.

46 At the time her Honour sentenced the respondent, a Crown appeal against the sentences imposed on Ms Anderson had been heard by the Court of Criminal Appeal but had not been determined. On 16 December 2002 the members of the Court of Criminal Appeal (Heydon JA, Hulme and Hidden JJ) handed down their reserved judgments on the Crown appeal against the sentences passed on Ms Anderson. Hidden J, who delivered the principal judgment, with which the other members of the Court agreed, held that the overall sentence of three years failed to reflect the extent of Ms Anderson’s criminality and was such as would have warranted the Crown appeal being allowed, in the absence of any countervailing discretionary consideration. However, his Honour proceeded to hold that, because of a quite fortuitous incident happening when Ms Anderson was in prison after she had been sentenced, the Court of Criminal Appeal should, in the exercise of its discretion, decline to allow the Crown appeal. In this incident Ms Anderson had assisted a prison officer who was being attacked by another prisoner and had earned a letter of commendation from the Governor of the Correctional Centre.

47 Towards the end of her remarks on sentence her Honour set out some of the reasoning which she said had led her to conclude that she should impose the sentences she was about to impose. As regards the eight armed robbery offences and the single robbery in company offence, her Honour “took into account” the guideline in R v Henry (1999) 46 NSWLR 46, especially at pars 161-170. Her Honour considered that, taking into account the guideline, allowing for the circumstances which aggravated the respondent’s offences but also allowing for the early pleas of guilty, a sentence for each of the offences of four to six years, with a non-parole period of two to four years, would be appropriate. Her Honour considered that a sentence of five to six years imprisonment, with a non-parole period of three to four years, would be appropriate for the aggravated detaining for advantage offence and that a sentence of imprisonment for two years with a non-parole period of twelve months would be appropriate for the s 154A offence.

48 Her Honour said that, in arriving at these figures, she had already taken into account a significant utilitarian discount for the respondent’s pleas of guilty. Any trial of the respondent would have been a long trial and more than one trial of the numerous charges against the respondent might have been required. Because the respondent had pleaded guilty, the victims of the robberies and the victim of the detaining for advantage charge had been spared the ordeal of giving evidence.

49 Her Honour considered it appropriate to divide the offences into two groups, one group consisting of offences 1 to 7 and 11, that is the eight armed robberies, and the other group consisting of offences 8, 9 and 10. Her Honour considered that the total criminality in the first group of offences should attract an overall effective sentence of about seven years with a non-parole period of about five years. She considered that the total criminality in the second group of offences should attract an overall sentence of about five years with a non-parole period of about three years. If these two overall sentences for the two groups of offences were added together, the result would be an overall effective sentence of twelve years with a non-parole period of eight years. Her Honour considered that such an overall effective sentence would be longer than was required to reflect the total criminality in the offences and would be a “crushing” sentence for a person of the young age of the respondent. Her Honour, therefore, adjusted downwards the overall effective sentence to eight years.

50 Her Honour accepted there were some circumstances which could be regarded as special circumstances, such as the need of the respondent for a relatively lengthy period of supervision after he was released into the community and the circumstance that her Honour would be ordering that some of the sentences she was imposing should be served wholly or partly cumulatively. However, her Honour declined to find special circumstances within s 44(2) of the Crimes (Sentencing Procedure) Act, on the grounds that a parole period of two years would be sufficient for the respondent’s needs and any shorter non-parole period would be an inadequate punishment for the respondent.

51 The submissions made by the Crown on the hearing of this appeal can be briefly summarised as follows.

52 It was submitted by the Crown that all of the offences of armed robbery and robbery in company were serious offences. Those offences had involved a knife or a cleaver. The victims of the offences were in vulnerable positions, such as service station attendants working, usually alone, at night.

53 It was submitted that each of the offences of armed robbery satisfied all of the characteristics of the kind of offence described in par 162 of the Chief Justice’s judgment in R v Henry, as being a kind of offence for which sentences should generally fall between four and five years for the full term. It was submitted that, notwithstanding the respondent’s early, rather than late, pleas of guilty, each of the offences was in fact a worse offence than the kind of offence described in Henry, because the respondent was not a person with little or no criminal history and there was an important circumstance of aggravation that at the time of committing all the offences the respondent was on a good behaviour bond entered into as a condition of a suspended sentence.

54 It was submitted by the Crown that her Honour had failed to sentence the respondent in accordance with the principle of sentencing stated in Pearce v The Queen (1994) 194 CLR 610.

55 It was contended by the Crown that, by making so many of the sentences she imposed concurrent with each other, her Honour had failed to impose an overall sentence which properly reflected the overall criminality of the respondent. By giving undue weight to the respondent’s subjective circumstances and in particular what her Honour considered to be his reasonable prospects of rehabilitation, her Honour had failed to impose an overall sentence which was properly proportional to the objective seriousness of the offences.

56 Counsel for the respondent submitted that her Honour had proceeded properly in taking into account the guideline judgment in Henry. It was submitted that her Honour had not infringed the principle of sentencing stated in Pearce but had faithfully applied it.

57 It was submitted by counsel for the respondent that her Honour had been entitled to make the findings she did about the respondent’s youth, his illiteracy, his family support and the change in his attitude to authority and to find that the respondent’s prospects of rehabilitation were better than they had ever been before and were reasonably good.

58 It was disputed by counsel for the respondent that the overall sentence did not adequately reflect the total criminality or was not properly proportional to the objective gravity of the offences.

59 Reference was made by counsel for the respondent to statistics kept by the Judicial Commission for sentences imposed for multiple armed robberies.

60 Finally, counsel referred in his submissions to the clear line of authority that this Court should exercise restraint in allowing Crown appeals against sentences and that successful Crown appeals should be rare, particularly when no error can be discovered in the sentencing process and the Crown relies on a assertion of manifest inadequacy as a basis for a conclusion that some error of principle must have occurred. See, for example, R v Baker (2000) NSWCCA 85.

DECISION

61 One of the submissions made by the Crown was that her Honour had failed to sentence the respondent in accordance with the principle of sentencing stated in Pearce v The Queen.

62 In Pearce v The Queen McHugh, Hayne and Callinan JJ said in their joint judgment at par 45 in a passage which has subsequently often been quoted:-

“A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality”.

63 The full ramifications of this statement of sentencing principle have not yet been clearly established. However, it would appear that the principle requires that a judge sentencing an offender for a number of offences must “fix”, that is actually set, an appropriate sentence for each offence, before considering questions of totality. Such an interpretation of what their Honours said would be consistent with their Honours’ reasoning in par 48, where they said that a failure by a sentencing judge to fix a proper sentence for each offence “may give rise to artificial claims of disparity between co-offenders or otherwise distort general sentencing practices in relation to particular offences”.

64 In R v Hammoud (2000) 118 A Crim R 66 Simpson J, with the concurrence of Mason P, said at par 8:-

“As a result of the decision of the High Court in Pearce (1998) 194 CLR 610; 103 A Crim R 372, the question of whether to accumulate sentences for multiple offences has taken on a new dimension. Following Pearce , a judge is required to fix ‘an appropriate sentence’ for each offence, before considering questions of accumulation, concurrence or totality. I take this to mean that, except perhaps in cases of multiple offences committed as part of a single, discrete, episode of criminality, the sentence for an individual offence is to reflect the criminality involved in the offence untainted by reference to the other offences for which that offender is to be sentenced”.

65 This part of Simpson J’s judgment in Hammoud has been referred to with approval in a number of subsequent judgments of the Court of Criminal Appeal. See for example R v AEM (2002) NSWCCA 58 at par 87 per curiam; R v Myers (2002) NSWCCA 162 at par 32 per Kirby J, Smart AJ concurring; R v Finnie (2002) NSWCCA 533 at par 54 per Dunford J, Spigelman CJ and Howie J generally agreeing.

66 In the present appeal, although all of the offences were committed within a period of about three and a half weeks, I do not consider that they could be regarded as offences committed as part of a single, discrete episode of criminality, within what Simpson J stated as being a possible exception to the general principle.

67 It is clear that the sentences imposed in the present case did not transgress the sentencing principle in Pearce in either of two ways which are frequently encountered (i) the imposing of sentences of the same length for all of a number of offences, regardless of their comparative seriousness, and the making of all of the sentences fully concurrent (ii) the making of a sentence for one of the offences of such a length as to reflect the criminality in all the offences and the making of the sentences for the other offences much shorter and fully concurrent with part of the sentence for the first offence. However, it was submitted by the Crown that her Honour had infringed the sentencing principle in Pearce by failing to fix appropriate sentences for each of the offences and by making so many of the sentences she imposed fully concurrent with each other.

68 Whether or not it was because her Honour had regard to questions of totality before determining the lengths of the sentences for the individual offences, I consider that her Honour did fail to fix appropriate sentences for the individual offences and that the sentences her Honour fixed were seriously inadequate.

69 As her Honour found, all of the offences committed by the respondent, with the possible exception of the s 154A offence, were objectively serious.

70 All of the armed robbery offences were at least approximately as serious as the kind of armed robbery offence, the characteristics of which are set out in par 162 of the Chief Justice’s judgment in Henry. Circumstances tending to make each offence of armed robbery committed by the respondent worse than the kind of offence described in Henry were (i) the respondent was not a person with little or no criminal history but a person with a previous conviction for robbery in company, who in being sentenced for that offence had had an offence of armed robbery, which he admitted committing, and another offence of robbery in company, which he admitted committing, taken into account (ii) at the time of committing all of the offences the respondent was on conditional liberty, in that he was subject to a suspended sentence and a good behaviour bond. This was an important circumstance of aggravation R v Fernando (2002) NSWCCA 28 at pars 40-42.

71 It is true that the respondent had pleaded guilty to all the offences and, as the Crown conceded, and her Honour found, the pleas of guilty had been entered at the first reasonably available opportunity. However, the respondent was not entitled to a full discount for the utilitarian value of his pleas of guilty, because a plea of guilty, albeit a late plea of guilty, is one of the characteristics of the kind of offence described in Henry. The value of the pleas of guilty as evidencing contrition was limited by the strength of the Crown case against the respondent on all charges.

72 Although each of the armed robbery offences was a serious offence and at least approximately as serious as the kind of offence described in Henry for which the Court in Henry said that a head sentence should generally be in the range of four to five years, her Honour set individual sentences for the armed robbery offences as low as three fixed terms of imprisonment of two years, four fixed terms of imprisonment of two and a half years and one fixed term of imprisonment of three years. It was clearly appropriate for her Honour, given the structure of the combination of sentences she intended imposing, to make the sentences for these offences fixed terms of imprisonment, rather than sentences of imprisonment divided into non-parole periods and parole periods. Hence, the sentences imposed by her Honour for the armed robberies should be compared with the non-parole periods of head sentences of four to five years, and not with the head sentences themselves. However, as her Honour declined to find that there were special circumstances within s 44(2) of the Crimes (Sentencing Procedure) Act so that a non-parole period could be less than three quarters of a total sentence, the total length of a sentence divided into a non-parole period and a parole period, which would correspond to a fixed term of imprisonment of two years, would not exceed two years eight months; the total length of a sentence with a non-parole period and a parole period which would correspond to a fixed term of imprisonment of two and a half years, would not exceed three years four months; and the total length of a sentence with a non-parole period and a parole period, which would correspond to a fixed term of imprisonment of three years, would not exceed four years. Accordingly, all of the sentences imposed by her Honour for the armed robbery offences, apart from the sentence for offence 11, fell below the range of four to five years for head sentences stated in Henry.

73 Furthermore, all of the sentences for the armed robbery offences, apart from the sentence for the last offence, were inconsistent with, or if not inconsistent with were right at the bottom of, the range of sentences which her Honour said in her remarks on sentence would be appropriate for the armed robbery offences, that is sentences of four to six years with a non-parole period of two to four years.

74 I am also of the opinion the sentence set by her Honour for the offence of aggravated detaining for advantage was, having regard to the extremely serious facts of the offence, seriously inadequate. The sentence imposed by her Honour for this offence was inconsistent with her own assessment in her remarks on sentence that an appropriate sentence would be a sentence of five to six years imprisonment, with a non-parole period of three to four years.

75 The conclusion I have reached that the sentences imposed on the respondent for offences 8, 9 and 10 were manifestly inadequate is fortified by the judgments of the members of this Court on the Crown appeal against the sentences passed on the co-offender Ms Anderson. As I have already indicated, all members of the Court would have allowed that Crown appeal, but for the fortuitous event which had occurred while Ms Anderson was in custody. The total sentence imposed on Ms Anderson was imprisonment for three years, with a non-parole period of eighteen months. Ms Anderson had been sentenced on the basis, which was clearly a correct basis, that her role in the commission of these offences was much less than that of the respondent.

76 Her Honour was entitled to find that the respondent had some favourable subjective circumstances and to take those circumstances into account in sentencing the respondent. However, only limited weight could properly be given to these favourable subjective circumstances.

77 It is true that the respondent was young, being only eighteen years old, nearly nineteen years old, at the time of committing the offences. However, what the Chief Justice said, with the concurrence of all the other members of the five judge bench of the Court of Criminal Appeal in R v Sharma (2002) NSWCCA 142 at par 74 is apposite. His Honour said:-

“Armed robberies of the character involved in the present proceedings, committed by young persons, generally with an addiction problem, are so prevalent that the objective of general deterrence is entitled to significant weight in the process of sentencing for this offence, notwithstanding the youth of the typical offender”.

78 In Sharma the offender was nineteen years old, nearly twenty years old, at the time of committing the offences for which he was sentenced, that is about a year older than the respondent was at the time he committed the offences for which he was sentenced.

79 The reasonable prospects of rehabilitation which her Honour found the respondent to have could not be given such weight as to result in the imposition of sentences which were not properly proportional to the objective gravity of the offences.

80 Whether or not her Honour had regard to questions of totality in fixing the lengths of the sentences for the individual offences, her Honour clearly had regard to questions of totality at three other stages in the process of sentencing the respondent, namely:-

(i) In assessing the total criminality in a group of offences consisting of the eight armed robbery offences.

(ii) In assessing the total criminality in a group of offences consisting of offences 8, 9 and 10.

(iii) In assessing the total criminality in the aggregate of the two groups of offences.

81 At each of these stages her Honour applied the principle of totality so as progressively to reduce the sentences she would impose on the respondent. In my opinion, the ultimate total effective sentence of eight years, with fixed terms and a non-parole period totalling six years, was manifestly inadequate properly to reflect the total criminality in the eleven offences for which the respondent was being sentenced.

82 The statistics of sentences for multiple armed robberies to which we were referred by counsel for the respondent are of little assistance. The statistics include cases in which the number of armed robberies was much less than eight. Furthermore, the respondent was also sentenced for the important additional offence of aggravated detaining for advantage.

83 I have concluded that the sentences imposed by her Honour were manifestly inadequate. I do not consider that there is any discretionary reason why the Crown appeal should not be allowed. I would accordingly allow the Crown appeal.

84 It is necessary for this Court to re-sentence the respondent. In re-sentencing the respondent the Court must take into account that in re-sentencing after a successful Crown appeal this Court, because of the double jeopardy involved in an offender being sentenced twice, will generally impose a lesser sentence than it considers should have been imposed at first instance.

85 In re-sentencing the respondent I take into account the objective facts of the offences, the subjective circumstances of the respondent, the relevant sentencing principles including the principle of totality and the principle of sentencing stated in Pearce and all of the matters a Court is required to take into account under the Crimes (Sentencing Procedure) Act.

86 In re-sentencing the respondent I would retain the general structure of sentencing adopted by her Honour, whereby she imposed initial fixed terms of imprisonment for the armed robbery offences and then imposed a fully cumulative sentence, with a non-parole period and a parole period, for the detaining for advantage offence.

87 In my opinion, the following sentences should be imposed:-

88 For each of offences 1 to 7, a fixed term of imprisonment of three years; for offence 11 a fixed term of imprisonment of four years; for offence 8 a term of imprisonment for six years with a non-parole period of three years; for offence 9 a fixed term of imprisonment for two years; and for offence 10 a fixed term of imprisonment of one year.

89 As is apparent from the sentence I consider should be imposed for offence 8, I would be prepared to find that there are special circumstances. It is a sufficient reason for such a finding that there will be some accumulation of sentences.

90 Having fixed the lengths of the individual sentences, it is necessary, in accordance with the statement of sentencing principle in Pearce, to consider questions of cumulation or concurrence and of totality.

91 I do not consider that, when sentencing for as many as eleven offences, a sentencing court is prohibited by what was said in Pearce from making some grouping of offences and making the sentences for all the offences in a group fully concurrent. The alternative would be to make all the sentences wholly or partly cumulative, with each sentence having a different commencement date, thereby producing a complicated and highly artificial series of sentences.

92 Having had regard to questions of totality and always keeping in mind the restraint this Court should exercise on re-sentencing after a successful Crown appeal, I consider that there should be a total effective sentence of eleven years, with fixed terms and a non-parole period totalling eight years.

93 In my opinion, the Court should make the following orders:-

94 1. Crown appeal against sentences imposed on the respondent on 1 November 2002 allowed.

95 2. The sentences imposed on 1 November 2002 quashed.

96 3. In lieu thereof the respondent should be sentenced on each of counts 1 to 7 to a fixed term of imprisonment of three years commencing on 18 February 2002, on count 11 to a fixed term of imprisonment of four years commencing on 18 February 2003, on count 8 to a term of imprisonment of six years commencing on 18 February 2007 with a non-parole period of three years expiring on 17 February 2010, on count 9 to a fixed term of imprisonment of two years commencing on 18 February 2007 and on count 10 to a fixed term of imprisonment of one year commencing on 18 February 2007. The earliest date on which the respondent will be eligible for release on parole will be 18 February 2010.

97 SMART AJ: With one reservation I agree with James J. I accept that a judge should usually fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well as totality.

98 Acute practical difficulties are sometimes experienced in sentencing when there are multiple counts. A recent example comprised a mixture of 39 counts of indecent assault and sexual assault on children with many other offences to be taken into account. The offences involved a number of different children and quite separate offences against particular children over a number of years. There was thus a real difficulty in some instances in making the sentences concurrent.

99 If the sentences had been made cumulative they would have extended for a unduly long period, that is, probably well beyond a long life span. In some such cases the principle of totality has been taken into account in setting the individual sentences. I would not wish to close off this avenue as an alternative in the exceptional type of case. Pearce was not dealing with the exceptional type of case to which I have referred. Similar problems have occurred when there have been a mixture of many offences of break, enter and steal, stealing and illegally using a motor vehicle and in fraud cases extending over a lengthy period and covering a variety of acts.

100 In some cases where there are many counts some tension can arise in the application of the principles of sentencing in order to produce what, in the end, is a just result.

101 I agree with the orders proposed by James J.

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Last Modified: 03/20/2003