R v Barker; R v Gibson

[2006] NSWCCA 20

CITATION:	R v Barker, R v Gibson [2006] NSWCCA 20
HEARING DATE(S):	17/01/2006
JUDGMENT DATE:	15 February 2006
JUDGMENT OF:	Basten JA at 1; Howie J at 2; Hall J at 90
DECISION:	In the case of the respondent Barker, the Crown appeal is allowed and the sentence imposed is quashed so far as the commencement date of the sentence is concerned. The sentence is to commence from 4 August 2005 so that the non-parole period expires on 5 February 2007, the date upon which the applicant is eligible to be released to parole. In the case of the respondent Gibson, the Crown appeal is allowed and the sentence imposed is quashed so far as the commencement date is concerned. The sentence is to commence from 3 November 2004 and the non-parole period is to expire on 2 May 2006, the date upon which the respondent is eligible to be released to parole.
CATCHWORDS:	Criminal Law - Crown appeal - concurrent sentences for unrelated offences - whether delay before arrest relevant - respondents resentenced.
LEGISLATION CITED:	Crimes Act 1900 - ss 154A(b), 154C(2) Criminal Procedure Act 1986 Mental Health (Criminal Procedure) Act Crimes (Sentencing Procedure) Act 1999 - ss 12, 54B(4) Crimes (Amendment) (Gang and Vehicle Related Offences) Bill
CASES CITED:	R v Todd [1982] 2 NSWLR 517 Fernando (1992) 76 A Crim R 58 R v Mills [2005] NSWCCA 175 R v Hammoud [2000] NSWCCA 540 R v Drew [2005] NSWCCA 50 R v Wall [2002] NSWCCA 42 Makarian v The Queen (2005) 79 ALJR 1048 R v Way (2004) 60 NSWLR 168 Mill v The Queen (1988) 166 CLR 59 R v Kay [2004] NSWCCA 130 R v Hathaway [2005] NSWCCA 368 R v Shorten [2005] NSWCCA 106 R v Bragias (1997) 92 A Crim R 330 R v Carter [1999] NSWCCA 376 Postiglione v The Queen (1997) 189 CLR 295 R v Postiglione (1997) 98 A Crim R 134
PARTIES:	Regina v Sean Norman Barker Regina v Glen Russell Gibson
FILE NUMBER(S):	CCA 2005/1896; 2005/1895
COUNSEL:	V. Lydiard - Crown A. Francis - Respondent Barker R.J. Button SC - Respondent Gibson
SOLICITORS:	S. Kavanagh - Crown S. O'Connor - Respondent Barker Aboriginal legal Service - Respondent Gibson
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/21/1066 05/21/1065
LOWER COURT JUDICIAL OFFICER:	English DCJ

2005/1896
2005/1895

BASTEN JA
HOWIE J
HALL J

WEDNESDAY 15 FEBRUARY 2006

Regina v Sean Norman BARKER

Regina v Glen Russell GIBSON

Judgment

1 BASTEN JA: I agree with Howie J.

2 HOWIE J: On 22 September 2005 each of the respondents to this Crown appeal was sentenced by Judge English after pleading guilty in the District Court to a charge of aggravated car jacking. This is an offence contrary to s 154C(2) of the Crimes Act for which a maximum penalty of 14 years imprisonment is prescribed. It carries a standard non-parole period of five years. Each of the respondents asked the sentencing Judge to take into account under the provisions of the Criminal Procedure Act two matters of being carried in a conveyance without the consent of the owner contrary to s 154A(b) of the Crimes Act.

3 Judge English sentenced the respondent Barker to a non-parole period of 18 months imprisonment with a balance of term of 2 years. The sentence commenced on 2 September 2004 and the respondent is eligible to be released to parole from that sentence on 1 March 2006. At the time of being sentenced the respondent was serving sentences imposed upon him by Judge Norrish for unrelated offences. They totalled imprisonment for 4 years to commence from 4 November 2003 with a non-parole period of 2 years and 6 months expiring on 6 May 2006. The effect of the sentence imposed by Judge English was to increase the overall term of imprisonment to be served by the respondent by 4 months but not to interfere with the non-parole period imposed by Judge Norrish.

4 Judge English sentenced the respondent Gibson to a non-parole period of 18 months with a balance of term of 2 years. The sentence commenced on 10 June 2004 and the non-parole period expired on 9 December 2005. At the time of being sentenced the respondent was in custody bail refused for the car jacking offence. However, since 3 August 2003 the respondent had been serving a sentence imposed by Judge Williams on 10 June 2004 for armed robbery. That sentence was one of imprisonment for 3 years with a non-parole period of 2 years dating from 3 August 2003 and the non-parole period expired on 2 August 2005. The effect, therefore, of the sentence imposed by Judge English was to increase the over all non-parole period by 4 months and the overall sentence by 1 year and 4 months.

5 The Crown initially submitted that the sentences imposed were themselves manifestly inadequate and that their inadequacy was aggravated by her Honour backdating the sentences so that they were made concurrent or partly concurrent with sentences previously imposed upon each of the respondents. The Crown complains that the effective sentences failed to reflect the objective seriousness of the offence or the need for general and specific deterrence.

The facts

6 The facts can be stated briefly. The offence and the two matters on the Form 1 all occurred in the early hours of 29 July 2003. The two offences of being carried in a conveyance arose when the two respondents and a third person, a juvenile, were involved in the stealing of two motor vehicles. The first was taken from Dubbo and resulted in a police chase at about 3 am near Orange. The second vehicle was taken a short time later from a suburb of Bathurst and resulted in a police chase to the outskirts of Lithgow and then from Mount Victoria to Penrith. The first vehicle was located in the vicinity of where the second vehicle was taken with damage to the ignition, console and a quarter window. A palm print was taken which was later identified as coming from the juvenile offender. The second vehicle was located crashed into a tree on an off-ramp of the M4. A cigarette butt was found in the vehicle from which DNA similar to that of the respondent Gibson was obtained.

7 The car jacking offence was committed a short distance from the scene of the crash. The victim, a carpenter, pulled up in his motor vehicle outside an address in South Penrith at about 6.35am. He opened the door and began to get out as he saw the respondents and the juvenile approaching. He thought that they were concreters that he was due to meet there. One of the three approached the passenger side door and the other two the driver’s side. One of these two men had his hand in his jacket pocket and said, “Give us your car or I’ll fucking kill you.” The victim was pushed backwards by one of the men and he fell into the vehicle. One of the offenders then tried to take the keys out of the ignition but the victim resisted the attempt. He was then pulled out of the vehicle and the three men entered it and drove off.

8 At about 7 am three offenders approached a driver and asked to be taken to Kingswood Station. The driver did so. Police soon arrived there and apprehended the juvenile. The two respondents were located hiding in a unit in Kingswood. They were both arrested and taken to Penrith Police Station. The respondent Barker participated in a recorded interview and denied having been at the location where the vehicles were taken maintaining that he had stayed in the unit all night. The respondent Gibson was taken to hospital suffering from a swollen testicle. All three were later released from custody without being charged. The respondent Barker was charged with these matters on 5 May 2004 and the respondent Gibson on 17 May 2004.

9 The juvenile offender was dealt with in the Children’s Court under the provisions of s 32 of the Mental Health (Criminal Procedure) Act.

The respondent Barker’s subjective case

10 The respondent Barker was nineteen when the offences were committed and twenty-one at the time of sentence. He has a criminal record that commenced in July 2000 when he was placed on probation for an offence of break, enter and steal. He has been dealt with for offences of break enter and steal, being conveyed in a conveyance, malicious damage, larceny, driving recklessly, driving while disqualified, receiving, escape and take and drive a conveyance. He has been subject to probation, control orders, suspended sentences, and short periods of imprisonment.

11 He was taken into custody on 4 November 2003 for offences for which Judge Norrish later sentenced him. Those offences included an aggravated break enter and steal committed on 24 October and a similar offence committed on 3 November 2003. The first of those offences involved a BP service station that the respondent broke into with two other persons and the second involved hotel premises. Judge Norrish was asked to take into account a number of matters including illegal use of a conveyance, take and drive a conveyance and driving offences.

12 A psychological report of 26 August 2004 set out the respondent’s background. He is of Aboriginal race. He reported a dysfunctional and unstable family upbringing. He was born in Dubbo and lived with his parents until they separated when the respondent was aged 8 years. He then lived in various places sometimes with his mother in Dubbo, sometimes with his father in Brewarrina and sometimes with other relatives. He went to a number of schools and left in year 8 when he got “caught up in drugs and drinking”. He then had a number of jobs and attended TAFE, completing courses in literacy, numeracy and pottery.

13 The respondent commenced smoking cannabis at age eleven and his father was a user of the drug. He had a heroin habit at 15 but at the age of 17 was able to stop using the drug for about 2 years. He then commenced amphetamine use. At the time of the report he had not been using amphetamine for three or four years and had ceased using methadone.

14 Psychological testing showed that he functioned within the Well Below Average range. He had limited intelligence and would be a “mark for manipulative peers”. He had antisocial tendencies together with feelings of anxiety and low self-esteem.

15 A pre-sentence report dated 27 July 2004 records the respondent describing his childhood as “happy” despite his father’s abuse of alcohol. It describes his parents separating when the respondent was aged six years. When he was aged 13, his mother was imprisoned for fraud and he then lived with his father and an uncle. The report records that the respondent commenced using amphetamine from the age of 15 and was regularly using it to the date of the report. He had the opportunity to attend rehabilitation on a number of occasions but each time failed either to attend or to continue with the programme. On one occasion he breached a bond under s 12 of the Crimes (Sentencing Procedure) Act for leaving a rehabilitation programme. The probation officer found that he had shown no apparent motivation to change his behaviour.

16 In a psychological report dated 7 September 2005 it is stated that the respondent related an “unhappy and abusive upbringing at the hands of his father and subsequent partners of his mother”. He said that he “was passed around amongst his relatives”. However, he reported that there was now “a lot of love and support” available to him. He expressed regret that he had taken his family for granted. He also told the psychiatrist that he had been sexually abused by his elder half-brother and became tearful when recounting this fact. He said that his subsequent drug usage was “a means of coping with emotions and memories”. He attributed his offending to “drugs being young and being ‘too unstable’”. He wanted to say sorry to the victims. He considered his drug use and offending “as belonging to an earlier stage in his life”.

17 The respondent had tested positive to hepatitis C but had experienced no symptoms.

The respondent Gibson’s subjective case

18 The respondent Gibson was 22 years at the date of the offence and 24 at the time of sentencing. He is of the Aboriginal race. He has a criminal record dating from 1997 when he was placed on a control order by the Children’s Court for offences of stealing a motor vehicle and stealing from the person. He has convictions for offences of dishonesty, including six charges of stealing from the person. He has been sentenced to terms of imprisonment and has twice had parole revoked. He has also been sentenced for escape.

19 On 10 June 2004 he was sentenced for an armed robbery offence arising from a threat he made to a service station attendant with a chisel and as a result of which he obtained about $600. Judge Williams when sentencing for that offence took into account a number of matters on a Form 1 including stealing a motor vehicle and assault police. Judge Williams imposed a sentence of 3 years with a non-parole period of 2 years dating from 3 August 2003. The non-parole period expired on 2 August 2005. On 20 August 2004 he was sentenced in the Local Court to imprisonment for 9 months for an offence of stealing from the person and 9 months for possession of a prohibited drug. The sentence commenced on 20 August and expired on 19 May 2005.

20 A psychological report dated 26 February 2004 set out his background. He was born in Dubbo the youngest of five children. Two of his brothers have served terms of imprisonment. He reported that his parents were both heavy drinkers but his father worked for the Health Department in Dubbo. He did not complete school past fourth class and is illiterate. He stated that while a resident of an establishment for Aboriginal youths he was sexually abused by a supervisor. He complains of experiencing symptoms of flash backs associated with this abuse. He has never had paid employment.

21 He has been a cannabis user since the age of 13 and used other illegal or non-prescription substances since the age of 15. At the time of that report he was on a methadone programme.

22 Psychological tests showed that his functioning fell in the “Low Average” range. He had poor self-esteem and feelings of hopelessness and worthlessness. He acknowledged a need for rehabilitation and treatment.

23 A pre-sentence report dated 2 June 2004 described his behaviour while under supervision as being unsatisfactory and that his main problem was abstaining from the use of illegal drugs. The respondent has three children from a de facto relationship and, although he has separated from his partner, he still has contact with her and the children.

24 The report states that the respondent commenced petrol sniffing when aged 8 and used amphetamine from the age of 12. At the time of the report he was no longer taking drugs or methadone. The officer concluded that he was attempting to address relevant issues.

25 A pre sentence report dated 8 September 2005 indicates that his parents stated that the respondent displayed behavioural problems at an early age and his parents’ interventions had limited effect. The respondent expressed the view that his parents’ heavy use of alcohol contributed to his problems. However, he and his parents have a strong relationship and they are supportive of him. The applicant had been attending courses to improve his literacy. He maintained that he was still drug free and wished to enter a residential rehabilitation programme on his release. He stated that the offence occurred during a period of heavy drug taking.

26 The officer believed that the period in custody “would seem to have given him the impetus to reflect on his circumstances” and the respondent was expressing the willingness to enter rehabilitation where he had been reluctant to do so in the past. He needed a high level of support on release.

Sentencing remarks in relation to the respondent Barker

27 Judge English noted that the offence was an objectively serious one and that it attracted a standard non-parole period after conviction of 5 years. The respondent was given a generous discount of 15 per cent for the plea of guilty notwithstanding that it came after the date fixed for trial and that the trial had an estimate of 6 days.

28 Her Honour noted that the circumstance of aggravation was that the respondent was in company and that fact could not be taken into account as an aggravating factor under s 21A. The Judge also thought that she could not take into account the physical assault upon the victim and the threat to kill as aggravating factors because they were also elements of the offence. However, the offence only requires that the offender assault a person and that element could be sustained by the threat of violence. The fact that the victim was actually physically assaulted and the threat made was to kill the victim were aggravating features under s 21A(2)(b).

29 Judge English found it to be an aggravating factor that at the time of the offence the respondent was on a good behaviour bond. She noted that the motivation for the offence was that the respondents were fleeing from police.

30 The Judge found it to be mitigating factors that the emotional harm, loss or damage was not substantial and the offence was not planned. She said that it was difficult to find that the respondent was truly remorseful or contrite or that he had good prospects of rehabilitation.

31 Her Honour took into account the delay of 10 months before the respondent was charged with the offence and stated that this is “something that entitles the offender to an added element of leniency because he is left to a degree of uncertain suspense”. The sentencing Judge also expressed the view that, had the charges been laid before the respondent came to be sentenced by Judge Norrish, “the offender could have faced a sentence for all of his criminality rather than returning for further sentence proceedings as has happened”. Judge English also referred to the delay before committal and the delay before the trial date was fixed. Her Honour said:

It must also be remembered that the offender did not plead guilty until 20 July 2005. It was of course open to him to make an immediate admission of guilt at the time he was initially interviewed or to enter a plea on a subsequent occasion when the matter was listed before either the Local Court or this Court. I am mindful however the exercise of a right to enter a plea of not guilty does not operate to exclude what is known as the Todd principles .

The reference to the “ Todd principles” is of course a reference to the decision of this Court in R v Todd [1982] 2 NSWLR 517. Just exactly what her Honour meant by that term was a matter of some controversy to which I shall return.

32 Her Honour recognised the relevance of principles in Fernando (1992) 76 A Crim R 58 but concluded that they “lose much of their force when the offender has committed serious offences in the past”.

33 The Judge took into account that the respondent’s time in custody would be more onerous because of his escape from custody.

34 Judge English referred to the standard non-parole period but found that “the matter is not so objectively serious as to fall in that mid range envisaged by the legislature.” Her Honour gave no reasons for reaching that conclusion. This has been held to be a failure to comply with s 54B(4) of the Crimes (Sentencing Procedure) Act, although it is not an error that warrants intervention by this Court: R v Mills [2005] NSWCCA 175.

35 Her Honour found that there were special circumstances justifying a reduction in the non-parole period by reason of a need for lengthy and supervised rehabilitation, the partial accumulation of sentences and the fact that the respondent was serving his sentence in maximum security.

36 The Judge came to the conclusion that “to add an additional term in custody for an offence committed prior to the offences for which he is serving sentence for a young man such as this offender would be unjust”. Judge English, therefore, backdated the sentence to commence on 3 September 2004 and imposed no addition to the non-parole period fixed by Judge Norrish.

Sentencing remarks in relation to the respondent Gibson

37 Much of the sentencing remarks relating to the respondent Gibson and dealing with the objective seriousness of the offence was identical with that contained in the remarks in relation to the respondent Barker and there is no need to repeat them. The Judge held, erroneously, that the only aggravating feature of the offence was that the respondent was on conditional liberty because there was a warrant in existence by reason of his failure to attend court. Her Honour indicated that it was difficult to find that the respondent was truly remorseful or contrite or had good prospects for rehabilitation. She noted that he had continued to use drugs in custody.

38 Judge English noted that the respondent had spent much of his adult life in custody. She referred to the fact that the respondent intended to enter a residential programme on his release. The Judge also commented on the fact that the respondent had been undertaking literary and other courses while in custody.

39 Her Honour referred to the fact that the respondent was a maximum security prisoner because of his conviction for escape.

40 The Judge granted a discount of 15 per cent, which again was generous in view of the lateness of the plea, two days after the trial was to commence.

41 Her Honour referred to the delay in the prosecution of the offences and made the same comments as were made in the sentencing remarks in relation to the respondent Barker and are quoted above.

42 As in the case of the respondent Barker, the Judge referred to the principles in Fernando but commented that the respondent’s background was not as extreme as it was in the case before Justice Wood.

43 Her Honour found that there were special circumstances justifying a reduction in the non-parole period by reason of the fact that there was a need for lengthy and supervised rehabilitation and there would be a partial accumulation of sentences.

44 The Judge concluded that in fairness to the offender she should date the sentences from 10 June 2004, one year into the sentence for the offences imposed by Judge Williams.

Crown submissions

45 The Crown’s written submissions asserted that the sentences imposed upon the respondents were manifestly inadequate in light of the objective seriousness of the offence, aggravated as it was by the fact that each of the respondents was on conditional liberty, the motivation to escape the police, the physical assault on the victim and the threat to kill. The Crown initially relied upon an aggravating feature that one of the offender’s pretended to have a weapon, but there was no evidence that the victim believed that any of the persons had a weapon, and the Crown conceded so much during oral argument. It was submitted that the sentence fails to reflect general deterrence that is said to be an important element in sentencing for this offence. It was also submitted that the sentence had no element of specific deterrence, a matter not mentioned by the sentencing judge. It was also submitted that the sentence failed to take into account the matters on the Form1.

46 The Crown further submitted that, while her Honour was correct to take into account delay, the principal of totality and the rehabilitation of the respondents, none of the matters either individually or together justified the sentences being backdated to deprive them of much of their effectiveness. The Crown submitted that fairness to the respondents did not warrant the course adopted by her Honour and there was no application of the decision in Todd to the facts of this particular case.

Response by the respondent Barker

47 On behalf of the respondent Barker the Court was reminded that questions of concurrence and cumulation of sentences are discretionary and involved evaluations on which minds may legitimately differ: R v Hammoud [2000] NSWCCA 540. It was submitted there was no error in the approach taken by the Judge in attempting to comply with the principle of totality and the overall sentence was not outside a proper sentencing discretion for the offences for which the respondent was sentenced.

48 It was submitted that the sentence imposed exposes the respondent to a further term of imprisonment if he breaches his parole and, therefore, he does not necessarily escape punishment for the offence dealt with by Judge English. It was argued that in light of the respondent’s subjective matters, including his age, the Judge structured the sentence to allow him the prospects of rehabilitation.

49 It was submitted that the sentence for the offence including the matters on the Form 1 was not manifestly inadequate and reliance was place on the decision of this Court in R v Drew [2005] NSWCCA 50. That was a case where the applicant was armed with a pair of scissors and actually punched the driver of the vehicle on two occasions. She was, however, heavily intoxicated at the time of the offence. There was a discount of 20 per cent given for the plea and the applicant had admitted to the offence when first spoken to by police. The sentence imposed by this Court in allowing the appeal was imprisonment for 4 years with a non-parole period of 2 years. The applicant in that case had only been dealt with previously in the Children’s Court or Local Court and had served only two short sentences of imprisonment. It is clear that there was a very strong subjective case that affected both the sentencing judge and this Court.

50 It was further submitted that there was no error in the Judge’s application of Todd as her Honour was to be taken as referring to that part of this Court’s judgment concerned with the application of the totality principle and not with statements of the Court concerning the effects of delay.

Response of the respondent Gibson

51 Senior Counsel for the respondent Gibson acknowledged that the sentence imposed upon his client was “surprisingly lenient” but submitted that it could not be regarded as manifestly inadequate. It was submitted that the offence was towards the less serious end of the spectrum of offences of its kind having regard to the degree of violence involved. It was not an offence committed by professional thieves for profit and the vehicle was simply abandoned.

52 Reliance was placed on the delay in the matter being finalised and it was argued that it was unrealistic given the respondent’s subjective features for him to have been expected to have pleaded guilty by the time he was before Judge Williams, less than one month after he was charged.

53 It was submitted that the lenient course adopted by Judge English was justified having regard to the respondent’s deprived background and his rehabilitative efforts while serving the sentence imposed upon him by Judge Williams. It was submitted that there was a “glimmer” of hope for reform demonstrated through the optimism in reports tendered to the Judge and the courses the respondent had undertaken while in custody.

54 It was further submitted that, even if the Court came to the view that the sentence was inadequate, it should not interfere for discretionary reasons. The respondent was due for release to parole on 2 December 2005 but the Parole Board refused to release him on the basis that he would not be able to adapt to normal lawful community life. The respondent’s parole will not be reconsidered until after the outcome of these proceedings is known. It was submitted that the non-parole period set by Judge English will have effectively been extended by the actions of the Parole Board no doubt to the frustration and disappointment of the respondent.

Resolution of the appeal

55 The approach that this Court is required to undertake when considering a Crown appeal are well known and have been most recently collected in the decision of Wood CJ at CL in R v Wall [2002] NSWCCA 42. It is unnecessary to set them out again. I also bear in mind what was said in the joint judgment of the High Court in Makarian v The Queen (2005) 79 ALJR 1048 at [27] as to importance of judges being allowed flexibility in sentencing.

56 My immediate reaction was that the sentences were manifestly inadequate. Her Honour appears to have had no regard, or at least insufficient regard, to the significance of the standard non-parole period when determining the sentence. There is no acknowledgment of the principles to be applied as stated in R v Way (2004) 60 NSWLR 168 and, in particular, no reference to the fact that, where the court is justified in departing from the standard non-parole period, it remains as an important guidepost to the appropriate sentence to be imposed.

57 In the present case the Crown did not argue that her Honour was not entitled to depart from the standard non-parole period. Clearly the fact that the respondents pleaded guilty was sufficient to make it inappropriate. Nor did the Crown dispute that her Honour was entitled to determine that the offence objectively was not within the mid-range of seriousness. But the Crown submitted that in light of the respondents’ criminal records and the aggravating factors present, a sentence with a non-parole period of 18 months did not pay due regard to the significance of the standard non-parole period of 5 years.

58 However during argument the Crown was directed to the decision of Drew whereupon it conceded that, based upon that decision, the sentence was within range although at the bottom of it. This concession was made notwithstanding the fact that the respondents had the two matters on the Form 1.

59 I confess to being troubled by this result but the objective facts in Drew seem to me to be more serious than the facts in the present matter. The victim and her passengers fled the vehicle in terror and the victim suffered minor injuries. The motivation for the offence was a somewhat curious one in that the offender apparently wanted to attract the attention of a young man with whom she was besotted. The offender had a most unfortunate background and her subjective case might have been significantly stronger than the present respondents. However, at the time of the offence she was subject to a good behaviour bond. Notwithstanding the fact that the respondents do not have the strong subjective features of the applicant in Drew and also had the matters on the Form 1 to be considered, this Court should act upon the Crown’s concession in a Crown appeal. However, it should not be taken that I am persuaded that the sentence was not manifestly inadequate.

60 There was some discussion during the course of the appeal as to what facts might bring a case within the mid-range of seriousness. It should be noted, not by way of criticism, that there is little consideration given in Drew to where in the range of activity covered by the section the objective facts fell. Bryson JA, who delivered the principal judgment, stated “this is not a grave instance in the range of conduct which could constitute aggravated car-jacking and fall within s 154C(2)”. The Court did not indicate whether the objective facts were within the mid-range of seriousness or not. I find it difficult to believe that they were not at least within the mid-range and that the sentence is explicable by a discount for the plea of 20 per cent and the very strong and peculiar subjective circumstances of the applicant.

61 Each of the three counsel before the Court in the present matter had difficulty in postulating examples of what sort of conduct might fall into the mid-range of seriousness of this type of offence. As Ms Francis, counsel for the respondent Barker, pointed out, the offence is concerned only with taking and using the motor vehicle so that if the offender intended to deprive the owner of the vehicle, for example by selling or stripping it, the more serious offence of armed robbery or robbery in company would be committed. It was submitted that an offence involving a threat with a weapon or the infliction of injury would be more serious than an offence committed in company. I do not accept that submission: it is far too general to be of any real assistance and the seriousness of committing an offence in company should not be minimised.

62 The second reading speech of the Attorney General when introducing the Crimes (Amendment) (Gang and Vehicle Related Offences) Bill, which inserted s 154C into the Crimes Act, stressed the significant aggravation of an offence when it is committed in company. The provisions of the Bill extended the range offences to which such an element of aggravation would apply: see Hansard, 17 October 2001, p 17518ff. In respect of the offence under s 154C the Attorney General said (at p 17521):

The new offence needs to be understood in light of the existing laws relating to car theft and kidnapping. It should be remembered that there are already comprehensive and adequate laws dealing with robbery, assaults and kidnapping. It is not the intention of this new offence to override existing and adequate laws. Rather it is intended that this new offence will apply to circumstances not already covered by a specific offence. In short, it is an attempt to fill the gap between robbery and larceny. The new offence will provide police with a simple and straightforward offence. It will apply in circumstances which involve actions more serious than joy-riding but not as serious as robbery or kidnapping. In addition, it will apply irrespective of whether the defendant has an intention to permanently deprive the owner or his or her vehicle.

63 It seems to me that for an aggravated offence involving the offender being in company the following factors may be relevant to an assessment of the objective seriousness of the offence: whether the offence was planned; the number of persons involved in committing the offence and their conduct; the type of threats made; the degree of violence displayed; the number of persons in the vehicle at the time of the offence; the degree of fear instilled in the victim; the period over which the vehicle is used; damage to the vehicle (if not giving rise to a separate charge); the place and time the offence is committed (for example whether at night or in an isolated area); the special vulnerability of the victim; and the motive for the commission of the offence. The list is not intended to be exhaustive. Although counsel referred to the value of the vehicle, I doubt that is a relevant consideration where there is no intention to permanently deprive the owner of the vehicle.

64 Of course the objective seriousness of the offence will be increased if either of the other two aggravating elements of the offence are also present: that is that the offenders, or any of them, are armed with an offensive weapon or actual bodily harm is inflicted upon the victim. If they are present then the nature of the weapon and its capacity to inflict serious injury, and the nature of the injury inflicted, will be relevant factors.

65 In the present case the facts were not such as to bring the offence within the mid-range of seriousness. The offence was not planned and was committed in daylight hours in a suburban street. Although the threat was one to kill, it does not appear to have been taken seriously because the victim attempted to secure his car keys and was finally dispossessed of the vehicle not by fear of the consequences but by the use of physical force. There is nothing in the victim’s statement to suggest he feared for his life or safety. The amount of force used was not very great and it would be considered as a minor assault. There was no physical injury inflicted upon the victim and he was not specially vulnerable. The vehicle was recovered shortly after it was taken and without damage. However, there was little mitigation from any of the subjective circumstances of the respondents and they were both subject to a form of conditional liberty. There was a very late plea generously rewarded. I reiterate that I am not to be taken as accepting that a non-parole period of 18 months appropriately reflected the objective circumstances of the offence or the need for general and specific deterrence particularly in light of the standard non-parole period of 5 years.

66 Although the Crown conceded that the actual sentence imposed was not manifestly inadequate, it maintained its contention that the ultimate outcome was by reason of the degree to which the Judge made the sentences partly concurrent with the sentences imposed for other offences, that resulted in an excessively lenient sentence unjustified by the principle of totality or any other consideration.

67 I have already indicated that there was dispute between the Crown and counsel for the respondent Barker as to what her Honour meant by the “Todd principles”. Relying significantly on what counsel for the respondent Barker said before the sentencing Judge, Ms Francis argued that her Honour was using the term to indicate the principle of totality. The Crown argued that the Judge was using it to indicate that she was taking into account as a mitigating factor the delay in prosecuting the offence. The Crown then argued that, in the circumstances of this case, the delay was either irrelevant or had such little significance that it could not justify the manner in which the Judge dealt with the offence.

68 Todd was an appeal by an offender who had committed three offences in 1974. He went to Queensland before he could be arrested and there committed further offences. He was dealt with in the Supreme Court in Queensland and sentenced to an overall sentence of 8 years with a non-parole period of 3 years. He was extradited to NSW in 1979 when he was sentenced for the 1974 offences. The sentencing judge concluded that the Queensland offences were independent and the only relevance of the imprisonment in that State was to the extent that it shed light upon his rehabilitation. This was held to be an erroneous approach.

69 For present purposes it is enough to quote the head note to the authorised report of the judgment:

Held: (1) Where one offence is committed in one State and another offence is committed in a different State, that ought not to deter the court, at least so far as administratively possible, from imposing a sentence or from participating in the imposition overall of sentences, including a minimum sentence, which would be imposed, if all the offences were dealt with by one court in the one State.

(2) Where an interstate sentence has postponed a sentence hearing, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of the earlier sentence, to the fact that he has been left in a state of uncertain suspense as to the subsequent sentence and to the fact that when sentencing for a stale crime a considerable measure of understanding and flexibility is necessary.

70 Counsel for the respondent before Judge English also referred to Mill v The Queen (1988) 166 CLR 59 where the High Court approved the approach taken in Todd in respect of the issue of totality, the only matter raised by the special leave application. In his submissions, counsel referred to the “Todd principle” in terms of totality and the approach her Honour was to take to sentencing the respondent in light of the existing sentences.

71 However, of more significance is to determine what the Judge was meaning to convey by her reference to the “Todd principles” and how she applied them. It may not be insignificant that her Honour appears to have recognised that there was more than one principle arising from the decision in Todd.

72 It seems clear that at least at one stage in the sentencing remarks the Judge had in mind that part of the decision in Todd dealing with the effects of delay. After referring to the delay of 10 months before the respondent Barker was charged, her Honour said:

No explanation has been forthcoming as to why there was that delay. That is something which entitles the offender to an added element of leniency because he is left to a degree of uncertain suspense.

The Judge then went on immediately to state:

Further had the charges been laid when he came before the District Court for sentence by his Honour Judge Norrish on 2 September 2004 for other matters the offender could have faced a sentence for all of his criminality rather than returning for further sentence proceedings as has happened.

This seems to be a recognition of the principle of totality referred to in Todd .

73 It should be said at once that the existence of an explanation for the delay has little, if any, relevance to the issue of the effect of delay on sentencing. There was a complete and satisfactory explanation for the delay in the sentencing of Mr Todd: he was being held in custody in Queensland serving sentences for offences committed in that State.

74 The Judge then went on to refer to the delay before committal and then before a date for the trial in the District Court. Unless the Judge was taking this delay into account by way of mitigation, I have difficulty understanding the relevance of referring to it at this part of the sentencing remarks. The length of delay, or delay itself, has nothing to do with the application of the principle of totality.

75 The Judge then states that the respondent cannot escape the fact that he committed a number of offences and the importance of effective punishment to ensure public confidence in the administration of justice. Presumably as taken in context this is a reference to the effect of delay and that it cannot allow the respondent to escape appropriate punishment. Her Honour then immediately went on to continue to deal with the issue of delay by stating the paragraph quoted above which contains the reference to the “Todd principles”. The fact that the Judge indicated that she was mindful that the “exercise of the right to enter a plea of not guilty does not operate to exclude what is known as the ‘Todd principles’” can only sensibly be a reference to the effect of the delay caused by the respondent defending the charge. There could be no suggestion that the principle of totality is in any way affected by whether the offender pleaded guilty or not guilty.

76 Further, immediately after the Judge indicated what the sentence should be, she stated (my emphasis):

That figure takes into account the matters on the Form 1 and the delay factors referred to .

The Judge then went on to refer to the issue of totality by referring to what might have been the result had the respondent been before Judge Norrish for the car-jacking offence in a passage to be quoted shortly.

77 There is no doubt in my mind that the Judge was taking into account both aspects of the judgment in Todd. She took account of the effect of delay in determining the sentence and then recognised the principle of totality and the manner in which she should give effect to it.

78 The delay in the prosecution of the respondents was not of the quality that could lead to any significant reduction in the ultimate sentence to be imposed. This case was very different from Todd or other cases where significant regard has been given to the effect of delay. This could not be regarded as a stale offence after a period of only two years delay and having regard to its seriousness. In any event, the impact of delay will play a significant role in the determination of the appropriate sentence in those cases where the delay is due to the operation of the judicial system and not to the actions of the offender: R v Kay [2004] NSWCCA 130 at [28]. It has little application where, as here, the respondents either chose to say nothing at arrest or, as in the case of the respondent Barker, denied the offence and gave the police a false account of his movements: R v Hathaway [2005] NSWCCA 368 at [44].

79 One of the reasons why delay mitigates the offence is because of the uncertainty left in the mind of the offender. The only uncertainty suffered by the respondents was whether the police would be able to make a case against them. That is not relevant uncertainty for the application of the principle: R v Shorten [2005] NSWCCA 106 at [19]. Presumably, when they were let go without charge, they thought they were “home and hosed”. I do not believe for one minute that they were affected by any uncertainty about the prospects of being charged with that offence. They simply went on committing offences. In the present case the respondents chose to plead not guilty, as was their right, until after the trial date was fixed. But they can hardly complain of the delay up to committal and from committal to trial when they could have pleaded guilty at any time: R v Bragias (1997) 92 A Crim R 330. Nor was the delay before charging shown to be unreasonably lengthy.

80 This does not mean that the delay was totally irrelevant. Her Honour was required to take into account the rehabilitation, if any, that had occurred during the delay. Generally where rehabilitation is shown during the delay, mitigation arises because of the rehabilitation achieved rather than because there was delay: R v Carter [1999] NSWCCA 376 at [25]. In the present case there was no evidence of rehabilitation having actually occurred although there may have been some prospect of it in the case of the respondent Gibson but for his further offending while in custody.

81 However, the only relevance of these observations in light of the Crown’s concession that the sentences imposed were not manifestly inadequate, is to reject the argument put forward on behalf of the respondent Barker, that the reliance by her Honour on Todd was chiefly in respect of the principle of totality and that she reached the conclusion she did by applying that decision.

82 Counsel is, with respect, correct in asserting that the Judge was aware of the principle of totality and how she was to apply Todd in that regard. In the case of the respondent Barker her Honour said:

Had the offender pleaded guilty and come before his Honour Judge Norrish for sentence his Honour would have had to sentence the offender for two separate aggravated break enter offences and this car jacking offence together with the matters on the Form 1. His Honour backdated one of the sentences imposed by him and partially accumulated the second sentence he imposed. There would have been in my view a need for a further partial accumulation of sentences to reflect the discrete nature of the offences committed over and above the other matters for which he is facing sentence. The result may well have been a harsher sentence yet again than the ones already imposed.

83 But her Honour failed to approach the matter in this way because she concluded it would be unjust in the case of the respondent Barker to impose any additional period in custody for an offence committed before the offences for which he was serving sentences. In my opinion the application of proper sentencing principles, and Todd in particular, could have worked no injustice to the respondent Barker. Rather than correctly applying the principles in Todd, the Judge chose not to do so for no justifiable reason given by her Honour nor any that is apparent to me. The Judge simply failed to explain why it was unjust to increase the period of imprisonment to be served by the respondent Barker for an offence committed before the offences for which he was serving sentences, when the substantial reason for that circumstance arising was that for over 12 months he had been defending the charge. No principle stated in Todd or otherwise warrants such a conclusion.

84 In the case of the respondent Gibson her Honour approached the matter correctly by determining what sentence the respondent would have received had he appeared before Judge Williams for sentence for the car jacking at the time he was sentenced for the armed robbery. Judge English concluded that his Honour would have commenced the sentence for the car jacking offence one year into the sentence for the armed robbery offence. It should be noted that the car jacking offence occurred four days before the armed robbery. But her Honour’s decision meant the respondent received only four months more to serve on the non-parole period and 16 months on the head sentence. In my opinion, although her Honour approached the sentencing discretion in accordance with the correct principle, the result is so manifestly unreasonable that error occurred in carrying out the task.

85 As this is a Crown appeal considerations of double jeopardy arise and this Court must consider whether it should exercise its discretion not to interfere. There does not appear to me to be any reasons for the Court not to interfere. Neither of the respondents has been released from custody, the Crown appeal was lodged relatively promptly and the sentence was manifestly inadequate to a marked degree. However, the ultimate sentence that I believe this Court should impose in allowing the Crown appeal is considerably less than should have been imposed by Judge English, particularly in the case of the respondent Barker. The effect of the sentences will be the same in each case notwithstanding there are differences between the respondents in their subjective circumstances. To a significant degree they cancel each other out. For example, the respondent Barker is younger but the respondent Gibson has shown better prospects of rehabilitation.

86 But the main reason for the same sentence being passed is the decision in Postiglione v The Queen (1997) 189 CLR 295. In that case there was a marked difference in the sentences to be served by co-offenders for the offence they committed because of the operation of the principle of totality in favour of one of them. As a result of the application of that principle, Savaas had to serve a further sentence of five years and 10 months whereas the appellant had to serve a further sentence of 11 years. A majority of the High Court held that the appellant had a justifiable sense of grievance arising from the difference in the period to be served for the offence notwithstanding that the disparity could be explained by their differing custodial situations and the operation of totality. It has been held that there is no ratio decidendi to that effect, see R v Postiglione (1997) 98 A Crim R 134, but I am prepared to follow it in the circumstances of this case.

87 But for the principle of parity I would have dated the commencement of the sentence for the respondent Barker so as to add an additional 12 months to the minimum period he has to serve before being released to parole. The car jacking offence was a completely separate and distinct offence from those dealt with by Judge Norrish and of a completely different character. The criminality of the offences for which his Honour sentenced the respondent could not have encompassed the criminality involved in the car jacking offence and the matters on the Form 1. Although the respondent was only 19 at the time of the offence, he had a significant record and the nature of the offence did not permit any great reduction by reason of his youth or background. However, as I believe that the respondent Gibson should serve a further 9 months on the sentence imposed by Judge Williams, mainly because of the proximity of the car jacking offence and the armed robbery, I would reduce the period to be served by the respondent Barker before release to parole to 9 months for reasons of parity.

88 In the case of the respondent Barker I propose that the Crown appeal be allowed and the sentence imposed by Judge English be quashed so far as the commencement date of the sentence is concerned. I propose that the sentence is to commence from 4 August 2005 so that the non-parole period expires on 5 February 2007, being the date upon which the respondent is eligible to be released to parole.

89 In the case of the respondent Gibson I propose that the Crown appeal be allowed and the sentence imposed by Judge English be quashed so far as the commencement date is concerned. I propose that the sentence is to commence from 3 November 2004 and the non-parole period is to expire on 2 May 2006, being the date upon which the respondent is eligible to be released to parole.

90 HALL J: I agree with Howie J.

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