R v Bavadra

[2000] NSWCCA 292

Reported Decision: [2000] 115 A Crim R 152

New South Wales

Court of Criminal Appeal

CITATION:	R v Bavadra [2000] NSWCCA 292
FILE NUMBER(S):	CCA 60845/99
HEARING DATE(S):	7 August 2000
JUDGMENT DATE:	31 August 2000
PARTIES :	Regina Lorima Bavadra
JUDGMENT OF:	Beazley JA at 1; Wood CJ at CL at 2; Greg James J at 53

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/21/0018
LOWER COURT JUDICIAL OFFICER :	English DCJ

COUNSEL :	P. Hock for Crown G.D. Wendler for Applilcant
SOLICITORS:	E.E. O'Connor Van Houten
CATCHWORDS:	CATCHWORDS - CRIMINAL LAW- appeals - Crown appeal against inadequacy of sentence - s5D of the Criminal Appeal Act 1912 - robbery whilst armed - robbery whilst armed with dangerous weapon - robbery in company - Form 1 matters - aggravating circumstances - accelerating criminality - principle of totality - concurrent sentences - double jeopardy
CASES CITED:	ACTS CITED Crimes Act 1900 (NSW) s97 Crimes (Sentencing Procedure) Act 1999 (NSW) s22 Criminal Appeal Act 1912 (NSW) s5D
DECISION:	Sentences imposed in relation to counts 2,3,4,6 and 7 quashed. In lieu, respondent sentenced to a fixed term of imprisonment for four years for count 2, six years for count 3, four years for count 4, six years for count 6 and a fixed term of imprisonment for nine years for count 7 to be served concurrently and partly consecutively with the sentences imposed for the remaining counts.

- -

IN THE COURT OF
CRIMINAL APPEAL

No. 60845/99

BEAZLEY JA
WOOD CJ at CL
GREG JAMES J

THURSDAY 31 AUGUST 2000

Regina v Lorima BAVADRA

JUDGMENT

The respondent pleaded guilty to two counts of robbery whilst armed, two counts of robbery in company, and three counts of robbery whilst armed with a dangerous weapon. In addition, there were eleven offences included in the Form 1, which included six separate and unrelated robberies. The DPP appealed under s5D of the Criminal Appeal Act 1912 against the inadequacy of sentence imposed on grounds that (1) the sentencing judge did not give sufficient weight to the offences included in the Form 1, (2) in relation to any particular count, the sentence imposed was manifestly inadequate, and (3) there was manifest leniency in the way in which the sentencing order was framed by way of concurrent sentences.

HELD:

1. Where a Form 1 includes serious offences they should not simply be noted, but must be taken into account when the sentence is imposed. Even if the Form 1 offences were applied distributively among the three s97(2) offences, the criminality of the respondent’s conduct was not given its proper weight.
Morgan (1993) 70 ACrimR 368

2. In determining the appropriate sentence, the number of offences and their individual seriousness, judged objectively and by reference to the penalties specified by the legislature, must be taken into account. In imposing the sentence, the judge is permitted to consider all of the conduct of the defendant including conduct which aggravates the offence, on the proviso that the defendant is not sentenced for a more serious offence than that with which he or she is charged.
Di Simoni (1981) 147 CLR 383 and Malone [2000] NSWCCA 156 applied

3. The sentencing judge did not have due regard to the warning given in Broxam and the stern approach taken by the NSWCCA when sentencing offenders charged with serious premeditated offences of robbery and armed robbery.
Bishell NSWCCA 18 February 1993; McKinnon NSWCCA 10 April 1991; Bell NSWCCA 11 May 1993; Begnell NSWCCA 26 November 1992; Mathews NSWCCA 11 June 1992; Mutton NSWCCA 18 October 1991; Gardener NSWCCA 12 April 1994; Jarrott NSWCCA 30 November 1993; Mackenroth NSWCCA 3 March 1994; and Moran NSWCCA 30 November 1994 considered.

4. Although the sentencing judge acted in accordance with the correct sentencing principles, when the seriousness of the offences, the aggravating circumstances, the accelerating criminality of the respondent and the inconsistencies between the sentences imposed for different offences were properly taken into account, the sentences imposed were manifestly inadequate.
Everett v The Queen (1994) 124 ALR 529, Readman (1990) 47 ACrimR 181, Kenny Li (1997) NSWCCA 9 July 1997, Henry and Ors applied

6. The sentencing judge also failed to strike the proper balance between the sentences to be imposed for the individual counts and the principle of totality. The imposition of a concurrent service of sentence did not reflect the level of criminality involved and significant error of law was made.
Wheeler [2000] NSWCCA 34; Pearce (1998) 194 CLR 610, Mill (1988) 166 CLR 59 applied.

7. Having regard to the principle of double jeopardy, the Crimes (Sentencing Procedure) Act 1999, the guideline judgment of Thompson and Houlton, and the considerations outlined in Kalache, new sentences in lieu of those at first instance were imposed. No significant factors existed to afford the offender leniency in sentence.
Mark Anthony Rose NSWCCA 23 May 1996, Allpass (1994) 73 ACrimR, Osenkowski (1982) 20 SASR 212; Bell NSWCCA 11 May 1993; Dwight NSWCCA 14 April 2000, Thompson and Houlton applied.

ORDERS PROPOSED

Sentences imposed in relation to counts 2,3,4,6 and 7 quashed. In lieu, respondent sentenced to a fixed term of imprisonment for four years for count 2, six years for count 3, four years for count 4, six years for count 6 and a fixed term of imprisonment for nine years for count 7 to be served concurrently and partly consecutively with the sentences imposed for the remaining counts.
IN THE COURT OF
CRIMINAL APPEAL
No. 60845/99

BEAZLEY JA
WOOD CJ at CL
GREG JAMES, J

THURSDAY 31 AUGUST 2000

Regina v Lorima BAVADRA

JUDGMENT

1   BEAZLEY JA: I agree with Wood CJ at CL.

2 WOOD CJ at CL: This is an appeal by the Director of Public Prosecutions under S5D of the Criminal Appeal Act 1912, against the inadequacy of sentences imposed by her Honour Judge English, at the Liverpool District Court on 12 November 1999. 3 On 20 May 1999, the respondent entered pleas of guilty to two counts of robbery whilst armed with an offensive weapon, to two counts of robbery in company, and to three counts of robbery whilst armed with a dangerous weapon. Eleven matters on a Form 1 were taken into account by the Court, when dealing with the three last mentioned offences , although it was not specified in relation to which count this was done. 4 The maximum penalty for the offence of robbery whilst armed with a dangerous weapon is 25 years imprisonment (Crimes Act 1900 S 97(2)). The remaining offences of robbery in company, and robbery whilst armed with an offensive weapon, are punishable by a maximum penalty of 20 years imprisonment (Crimes Act 1900, S 97(1)). 5 In relation to count 7, being the last in point of time, which charged an offence of robbery whilst armed with a dangerous weapon, the respondent was sentenced to a minimum term of six years penal servitude to commence from 31 July 1998 with an additional term of four years to commence on 31 July 2004. 6 In relation to the other two counts (ie counts 3 and 5) involving this offence, the respondent was sentenced to fixed terms of five years and six years respectively, to be served concurrently with the sentence for Count 7. The two counts of robbery whilst armed with an offensive weapon (counts 1 and 6) were dealt with by way of fixed terms of penal servitude for four years, to be served concurrently with the other sentences. The remaining counts of robbery in company (counts 2 and 4) led to fixed terms of three years penal servitude, similarly to be served concurrently with the remaining sentences. 7 The criminality of the respondent covered by the counts in the indictment to which he pleaded guilty, spanned the period between 6 October 1997 and 11 May 1998. It involved sustained unlawfulness of a most serious kind, comprising so far as the offences of robbery whilst armed with a dangerous weapon were concerned:

(a) the use of a handgun on 17 November 1997, to rob $33,391 in cash from the Commonwealth Bank of Australia at Toongabbie. This offence was committed by the respondent in conjunction with four other offenders. In the course of its commission bank staff were threatened with a Stanley knife and a handgun, and forced to lie on the floor. The respondent was identified from stills taken from the security cameras in the bank, and also by bank employees at an identification parade. He made a handwritten confession to this offence. (count 3)

(b) the use of a handgun on 24 February 1998, to rob a quantity of cigarettes, and $550 cash from a Seven Eleven convenience store at Merrylands. The respondent was, on this occasion, accompanied by three other men. He produced a handgun which he held to the head of the victim, who was forced to walk to the rear of the premises, where his face was covered. While there he was stabbed to the hand and leg by one of the co-offenders. The respondent was identified from video stills. (count 5)

(c) the use of a shortened double barrelled shot gun, on 11 May 1998, to rob $2000 in cash and a quantity of alcohol, from the Metropolitan Bottlemart at Cremorne. The respondent was accompanied by one other offender, who carried a sports bag into the premises. From it the respondent withdrew a shotgun which he pointed at an attendant who was instructed to open the till. This employee and a customer were taken to a storage room where they were made to lie on the ground. The respondent was identified from video stills. When he was arrested he made admissions as to his involvement. The shotgun, which was recovered near the scene, was found to be loaded with two cartridges. (count 7)

8   The offences of robbery whilst armed with an offensive weapon involved:

(a) the use of a knife, on 6 October 1997, to rob $500 in cash and cigarettes from a Liquorland store at Auburn. In the course of this offence, the respondent held a knife to the neck of an employee of the store. His face was clearly visible in a video still recorded by a security camera. (count 1)

( b) the use of a meat cleaver, on 25 February 1998, to rob $16,195 cash from the Commonwealth Trading Bank at Riverstone. This offence was committed in the company of four other offenders at least one of whom produced a knife when jumping onto the bank counter. Staff and customers were ordered to lie on the ground. One of the offenders patrolled the area with a meat cleaver, while cash was gathered from the tellers’ cash drawers. The respondent was identified from security stills and also by bank staff at an identification parade. (count 6)

9   The offences of robbery in company involved:

(a) the robbery of 35 Sony CD games worth $3,500 and $300 in cash from a Civic Video Store at Wollongong on 4 November 1997. This offence was committed in the company of at least three other males, one of whom pointed a shotgun at an employee, whose hands were then bound by electrical tape while a search was made for the safe and the video games. The respondent was identified by the victim from a photograph board. (count 2)

( b) the robbery of $450 in cash and 567 instant lottery tickets to the value of $2,000 from the Penrith East Newsagency, on 10 January 1998. This offence was committed by the respondent in company with one other male. The respondent, carrying a knife, came to the aid of the co-offender, when one of the proprietors of the store threw a paper weight at him, and when her husband, armed with a broom, demanded that he leave. He shoulder-charged the male proprietor to the ground, and ordered him and his wife to go to the back of the shop and open the safe. The respondent was disguised with a monster mask, while the co-offender was wearing a balaclava. (count 4)

10   The offences taken into account on a Form 1, were in four instances, related to counts in the indictment (ie counts 2, 4, 5 and 6). They comprised one offence of robbery in company, one of robbery whilst armed with an offensive weapon, one of robbery whilst armed with a dangerous weapon, and one of being carried in a conveyance without the consent of the owner. The robberies, in each case, related to the theft of wallets of staff at the stores or the bank from which cash or goods were stolen, while the last offence related to the use of a vehicle stolen for the purpose of the principal offence. 11   The remainder of the offences on the Form 1 involved matters comprising, in brief summary, four offences of robbery whilst armed with an offensive weapon, in each case a knife, committed variously at the Liberty Service Station at St Mary’s, at the Red Rooster Store at Merrylands, and at the ANZ Bank in Penrith. Additionally, they involved two offences of robbery whilst armed with a dangerous weapon, in each case a handgun, committed at the Red Rooster Store at Guildford, and at the Pizza Hut at Merrylands, and one count of assault police officer with intent to resist lawful apprehension. In three of these instances the respondent acted alone, and in the remaining cases he had a co-offender. Their inclusion in the sentencing proceedings expanded the period of criminality covered to 30 July 1998, four of the offences having occurred after the last offence in the indictment. 12   Subjectively, it may be noted that the respondent was of Fijian descent, was the second eldest of a family of five, was aged twenty-one years at the time of the offences, and had a history of offending from the age of sixteen years and of detention pursuant to control orders in Boys Homes arising from those offences. He also had a history of alcohol and drug abuse. He had some brief employment as a factory hand and builders labourer. 13   Material placed before her Honour, it was accepted suggested that the respondent had not adjusted well upon the arrival of his family in this country, that he had fallen in with a group which had a negative influence upon him, and that this had led to conflicts with his father. While noting that he enjoyed the support of his mother, sister and girlfriend, and that he had used his last period of detention to complete his education to School Certificate level and to undertake a fine arts course at TAFE, English DCJ expressed some doubt as to whether he was truly remorseful or contrite about his conduct, or was instead more concerned about the impact of the sentence upon himself and upon his relationship with his child. 14   The conclusion was reached by her Honour that the main reason for the respondent’s involvement in the offences was a desire to belong, or as it was otherwise put, peer group pressure. A lesser consideration was the need to obtain funds to purchase drugs, a matter which her Honour appropriately noted was not a mitigating factor in this instance. 15   In sentencing the respondent, the learned sentencing Judge meticulously examined the facts, in respect of which, save for one matter, (para 15 below) her findings were not challenged. She also had regard to the sentences imposed upon the various co-offenders, but appropriately noted that little was served by way of comparison, since the overall criminality of the respondent significantly exceeded that of the co-offenders, whose crimes were less in number. 16   In relation to count 3, the respondent was given some credit for his plea of guilty since her Honour stated that a conviction against him would not inevitably have been found absent specific evidence, or an admission, that he was personally armed with the gun or knives which were used in the offence. In my view this was incorrect, as the Crown contended, in view of the concept of joint criminal enterprise. For the remaining counts, her Honour found that convictions would have been “highly likely”, irrespective of the plea. That finding was manifestly correct. 17   The learned sentencing Judge noted appropriately that “people who are legitimately entitled to go about their business deserve to be protected from knife wielding, gun toting thugs”. The description of the respondent as such an offender was accurate, since his conduct involved a period of sustained and serious unlawfulness in which the safety of very many innocent persons was threatened. Only one victim impact statement was tendered, but there was other material before the Court, the effect of which could hardly be gainsaid, that those present at the scene of each offence could not have been otherwise than genuinely terrified and fearful for their lives. 18   Her Honour did not fall into error in noting that the community regards with abhorrence the use of guns and knives to commit criminal offences, a matter reflected by the severity of the maximum penalties prescribed for the offences before the Court. The need for both general and specific deterrence in the framing of sentences for such offences, is manifest, a matter to which her Honour again made reference, being a matter firmly established upon the authorities: See for example: Manh Hung Vu NSWCCA 11 November 1993; Samuela Antonio [2000[ NSWCCA 266 and Henry & Ors (1999) 46 NSWLR 346. 19 The interests of rehabilitation of the respondent, as a relatively young offender, were expressly taken into account and a longer period than usual was provided by way of an additional term to allow for an extended period of supervision. 20 English DCJ, also made it clear that the principle of totality was not overlooked, expressly noting that the sentencing task was to be undertaken in accordance with the dictates of Pearce (1998) 194 CLR 610. Her task, as she saw it, was to determine the appropriate sentence for each offence and then to deal with matters of concurrence or accumulation, having regard to the totality principle. 21 It was submitted by the Director of Public Prosecutions that the sentences imposed failed adequately to reflect the total criminality of the respondent’s conduct in committing the seven robberies included in the indictment, taking into account the eleven offences in the Form 1, which included six separate and unrelated robberies. 22 I am satisfied, from the matters outlined, that her Honour did not overlook in her statement of reasons for sentence any relevant sentencing principle in dealing with the respondent. The questions that arise seem to me to relate to whether or not:

(a) sufficient weight was given to the matters included in the Form 1;

(b) in relation to any particular count, the sentence imposed was manifestly inadequate, and/or

(c) in the way in which the sentencing order was framed, by way of concurrent sentences, there was a manifest leniency.

23   If any of these questions is answered in the affirmative, then further questions arise as to whether the inadequacy is of such a degree as to constitute an error of law, since more is required than an assessment that, if the Court had been sentencing the offender, it might have imposed a different sentence: Skinner (1913) 16 CLR 336; and as to whether in the exercise of its discretion, the Court should disallow the appeal.

Form 1 Offences

24   Although it does not expressly appear in respect of which of the three counts involving the offence of robbery whilst armed with a dangerous weapon, the Form 1 matters were taken into account, it would seem likely that it was count 7. That was the count which attracted the longest sentence, it had an additional term attached to it, and it was the one which her Honour said “warranted the most severe penalty”. Moreover, it was the last offence in point of time, having followed a period of sustained and accelerating criminality, and it was one in which the prosecution was able to establish that the shotgun presented by the accused was loaded with a cartridge in each chamber. 25   It was submitted that, in the way that the sentences were structured, and in all the circumstances of the case, insufficient weight must have been given to the offences in the Form 1. A convenient starting point for this submission involves an examination of the sentences imposed in respect of counts 3 and 7. 26   The offence in count 3, attracted a number of circumstances of aggravation, including the fact that it involved a bank at which tellers and customers were physically threatened, not just by the presence of weapons but by words and acts designed to convey that those weapons would be used to overcome any resistance. The offence was further aggravated by the circumstances that the weapons in question included knives and a handgun, that five men were involved who were clearly acting in concert and in a premeditated way, and that a substantial sum of money was stolen. In the course of the offence a handgun was held some 15 cms. from the face of one victim, and a knife was held to the neck of another victim as he lay on the floor. 27   A five year fixed term for this offence standing alone, does not to my mind reflect the objective criminality involved, when the offence is considered in the light of the guideline judgment in Henry & Ors, the present being a case involving a considerably greater degree of criminality than was postulated in that decision, (at 162). It is also not easy to reconcile the fact that the sentence imposed for this offence was less than that imposed in respect of count 5, particularly if any allowance was made for the Form 1 matters when dealing with it. 28   The sentence in respect of count 7, similarly appears to me to be appellably lenient, even standing alone, when considered in the light of the accelerating criminality of the respondent, and in the light of the facts that yet again the respondent was acting in company, that a customer and staff member were threatened, and that the sawn off shotgun used in the offence was found be loaded with a cartridge in each chamber. The latter was a significant circumstance of aggravation: Readman (1990) 47 A Crim R 181 at 185; as was the fact that the offence was carried out in company: Kenny Li (1997) NSWCCA 9 July 1997. 29 I have reached the conclusion that the starting point for counts 3 and 7 was too low, and that even if the offences in the Form 1 were applied distributively among the three S97(2) offences, their objective criminality could not have been given their proper weight. Even more apparent is that the case if they were taken into account for either count 3, 5 or 7 alone. 30 When serious offences are included in a Form 1, the sentence imposed, in respect of the count for which they are taken into account, must reflect the totality of the criminal involvement. It is not the case that Form 1 offences need only be noted in passing, or that little by way of additional penalty should be imposed by reason of their existence: Morgan (1993) 70 ACrimR 368 at 372 per Hunt CJ at CL. 31 There is a considerable advantage to the administration of justice, and to accused persons, for a party facing sentence to clean up the record. For that purpose the Form 1 procedure is beneficial. The objective of individual rehabilitation can be advanced by its use, since the offender does not face the prospect of further trials. There is a utilitarian value in the admission of guilt that is involved so far as there can be a saving of the resources of the law enforcement agencies and the courts concerned. Additionally, the sentencing judge is placed in a position where it is possible to sentence the offender for the totality of his or her outstanding criminality to that point. However, unless proper weight is given to the additional offences that have been disclosed, this procedure fails its true purpose. 32 Unfortunately it appears to me that this is precisely what happened in the present case, as can be seen from a review of the offences included in the indictment and the Form 1, with which the court was concerned, and the degree of seriousness reflected by the penalties prescribed by the legislature in relation to them. 33 The maximum available penalties of imprisonment for the offences included in the indictment were as follows:

count 1 S97(1) 20 years

2 S97(1) 20

3 S97(2) 25

4 S97(1) 20

5 S97(2) 25

6 S97(1) 20

7 S97(2) 25


155 years

Those for the offences included in the Form 1 were as follows:

1 S97(1) 20 years
2 S97(1) 20
3 S97(2) 25
4 S154A(1) 5
5 S97(1) 20
6 SS97(1) 20
7 S97(1) 20
8 S97(1) 20
9 S58 5
10 S97(2) 25
11 S97(2) 25
205 years

34   It would be totally inappropriate to approach the sentencing exercise solely by a comparison of the sentences imposed against the available maximum sentences for all offences, that needed to be taken into account upon the indictment and Form 1. That would risk the imposition of a wholly disproportionate sentence. The number of offences and their individual seriousness, judged objectively and by reference to the penalties specified by the legislature, must however, be kept in mind. In the circumstances outlined, only one conclusion is open - namely that insufficient weight was given to the matters included in the Form 1, when the total criminality of the respondent was measured. This ground of appeal had been made good.

Individual Counts

35   I am also of the view that there was a manifest inadequacy of the sentences imposed for counts 2 and 4, each of which involved circumstances of significant aggravation. In the case of count 2, these involved the threatening use of a shotgun, the tying up of the victim, and the participation of at least four offenders. In the case of Count 4, one of the victims was injured when shoulder-charged to the floor after offering resistance. As was made clear in Malone [2000] NSWCCA 156, it remains permissible for a Judge to consider all the conduct of the defendant, including that which would aggravate the offence, without infringing the principle in Di Simoni (1981) 147 CLR 383, subject to the important proviso that the offender is sentenced for the offence with which he or she is charged and not for a more serious offence which those circumstances might have attracted: (see also: (see also Ryan [2000] NSWCCA 98. 36 In the case of count 6, there were also circumstances of serious aggravation in that bank tellers and staff were threatened by the respondent and by his four co-offenders, a variety of weapons were used including a meat cleaver, and a large sum of money was stolen. It was significantly more serious than the offence involved in count 1, and it involved an accumulation of criminal conduct, yet it attracted the same penalty. A somewhat longer sentence should have been imposed, in my view. 37 Having regard to the individual seriousness of the offences charged in these counts, the accelerating outbreak of unlawfulness on the part of the respondent, and the inconsistencies in sentence identified, I am of the view that although her Honour directed herself in accordance with the correct sentencing principles, she fell into error of law in undervaluing the degree of criminality displayed, and in then imposing sentences that were way too lenient: Everett v The Queen (1994) 124 ALR 529 at 532. 38 In the approach taken by her Honour to the entire case, insufficient regard seems to have been given to the stern approach favoured by this court in relation to serious premeditated offences of robbery in company and armed robbery, or to the sentencing pattern for such offences reflected in decisions such as Bishell NSWCCA 18 February 1992; McKinnon NSWCCA 10 April 1991, Bell NSWCCA 11 May 1993; Begnell NSWCCA 26 November 1992; Mathews NSWCCA 11 June 1992; Mutton NSWCCA 18 October 1991; Gardner NSWCCA 12 April 1994; Jarrott NSWCCA 27 September 1993; Mackenroth NSWCCA 3 March 1994 and Moran NSWCCA 30 November 1994, even after due allowance is made for the circumstance that, in a number of these cases, the offender was a long term recidivist. 39   What is important is that these decisions reflect the strong warning, given as long ago as 1986, in Broxam NSWCCA 3 April 1986:

“The prevalence of the offence in respect of which the applicant was sentenced is a matter of grave social concern … It is now well recognised that the victims of such armed robberies or attempted armed robberies may suffer devastating psychological damage consequent upon the trauma necessarily involved with the commission of such offences. In these circumstances sentencing judges will be recreant to the trust which the community places in them, were they not to impose sentences consistent with the seriousness and prevalence of such offences.”

40   In coming to the conclusion that this further ground has been made out, I have had regard to the interests of the rehabilitation of the applicant as a relatively young offender, and have also given due weight to the purely utilitarian value of his pleas of guilty which in this case would properly attract a discount in the order of 15%: Thomson and Houlton [2000] NSWCCA 309. The present is however, a case in which his conviction was inevitable, and his remorse, as her Honour found, was qualified. The concept advanced on his behalf that he reflected upon, or realised the seriousness of his conduct, only when he was arrested, is impossible to accept and the attribution of his criminality to a desire to be accepted by his peers, bears, to my mind, no weight as a mitigating factor.

Sentences made concurrent

41   It was next submitted that her Honour should have directed some accumulation of sentence, in order to strike a proper balance between the principle of totality, and the sentences to be imposed for the individual counts. This submission has, in my view, also been made good. 42   The observations of Sully J in Wheeler [2000] NSWCCA 34 at [34] are particularly appropriate for the present case:

“34. The correct application to such a case as the present one of the principles established by the decision in Pearce is not by any means a simple matter. Two things not necessarily reconcilable, if indeed reconcilable at all, have to be held in a fair overall balance.
35. One of them is the consideration conventionally referred to in the Courts as the principle of totality. That is to say, the principle that accepts the need, in a case of multiple offences, to adopt an approach which is more discriminating than the approach of simply fixing individual sentences, and then simply aggregating the individual sentences so as to reach a result, which such a process almost inevitably produces, of a truly enormous head sentence.
36. The countervailing factor, no less legitimate, is the need to ensure public confidence in the administration of criminal justice; and, in particular, to ensure that there does not emerge in the community at large a perception that there is not all that much to choose between the person who commits one or two offences, and the person who commits six or seven offences, for the reason that somehow or other they all manage to finish up with effective sentences between or among which there is hardly anything in practical terms to choose.
37. It needs to be clearly understood by all concerned that a person who commits a deliberate series of discrete offences, - and the present applicant’s case, is a good example of the kind - he must not be left with the idea that by intoning references to the principle of totality as though it were some magic mantra, he can escape effective punishment for the offences which follow successively one upon another throughout the whole course of a studied and deliberate course of criminal behaviour.”

43   A total sentencing order involving a minimum term of six years and an additional term of four years could not reflect the total criminality here involved, and her Honour’s decision that the concurrent service of the sentences imposed would reflect the principle of totality, failed, in my view, to pay proper regard to Mill (1988) 166 CLR 59 and to Pearce (1998) 194 CLR 610. Error in law of a material kind has been established.

The Proper Sentence

44   The present case is, in my view, one where the overall sentencing order falls so far short of that which would reflect the totality of the respondent’s criminality, that material error in point of principle has been established, as that expression was explained by Sheller JA in Bragias (1997) 92 ACrimR 330 at 331: See also Allpass (1994) 73 A Crim R 561 at 562-563, Kalache [2000] NSWCCA 2; Hughesman NSW CA 5 April 1995, and Everett (1994) 181 CLR 295, as to the considerations that apply in relation to Crown appeals against sentence. 45 The present is not a case that should attract an exercise of the well known general discretion in relation to Crown appeals; nor is it one where there has been delay by the Crown in instituting the appeal, of the kind or degree that might, on that ground, cause this Court to not interfere with the sentences that were imposed. In this regard, it may be noted that the respondent was informed by letter, on 2 December 1999, of the circumstance that the Director of Public Prosecutions was considering an appeal. The notice of appeal was signed on 23 December 1999, and served on the respondent on 30 December 1999. Thereafter, the appeal was prosecuted with due diligence, and it was only because of the volume of work in the Court of Criminal Appeal that it came not to be heard until 7 August 2000. There was no real occasion for its expedition given the length of the sentences imposed and the absence of any application by the respondent to appeal against their severity. No prejudice was caused. 46 However, the principle of double jeopardy does permit some reduction of the sentences that would, to my mind, have properly been imposed at first instance. What is now required is the least sentence that could properly have been imposed at that time: Mark Anthony Rose NSWCCA 23 May 1996 per Gleeson CJ at 3, and Allpass. 47 Upon the basis that this Court should intervene, it is necessary to resentence the applicant in accordance with the new sentencing regime laid down by the Crimes (Sentencing Procedure) Act 1999: Carrion [2000] NSWCCA 191, in the light of his present circumstances and by reference to the relevant considerations identified in Kalache [2000] NSWCCA 2. 48   I would propose that while the sentences imposed in relation to counts 1 and 5 should stand, those in respect of counts 2, 3, 4, 6 and 7 should be quashed. In lieu thereof, the following sentences should be imposed:

Count 2 Fixed term of imprisonment for four years, to commence on 31 July 1998 and to expire on 30July 2002.

Count 3 Fixed term of imprisonment for six years to commence on 31 July 1998 and to expire on 30 July 2004.

Count 4 Fixed term of imprisonment for four years to commence on 31 July 1998 and to expire on 30 July 2002.

Count 6 Fixed term of imprisonment for six years to commence on 31 July 1998, and to expire on 30 July 2004.

Count 7 Imprisonment for nine years to be served partly concurrently and partly consecutively with the sentences imposed for the remaining counts and for that reason, to commence on 31 July 2001, and to expire on 30 July 2010, with a non parole period of five years similarly to commence on 31 July 2001. The earliest date for release upon parole would accordingly be 31 July 2006.

49   These sentences, I repeat, remain less than those that might have been properly imposed at first instance, because of the double jeopardy principle. They are sentences which I would reach after taking into account decisions of this Court, concerning comparable offenders, such as Bell NSWCCA 11 May 1993, London [2000] NSWCCA 165; Ryan [2000] NSWCCA 98 and Dwight [2000] NSWCCA 164, and also after making a reduction for the pleas by the factor previously mentioned, in accordance with S 22 Crimes (Sentencing Procedure) Act 1999 and Thompson and Houlton. I would decline to set non parole periods for all counts but for count 7, because the length and accumulation of the sentence imposed in respect of that count means that no point would be served by any such order. 50   It is in relation to count 7 that I would take into account the Form 1 offences, and it is for that reason, and also to mark the accelerating, and ultimately the total criminality of the respondent encompassed by the separate matters in the indictment and the Form 1, that I would significantly enlarge the sentence for this count, and direct that it be served partly consecutively upon the remaining sentences. The effect of the orders I impose would be to extend the total period of imprisonment, and the period during which the respondent would be ineligible for release, by a period of two years, i.e. to periods of twelve and eight years respectively, and to provide for a period of potential release on parole of four years. 51   In fixing that non parole period, I have had regard to the interests of the respondent, and of the community, in providing an adequate period for post release supervision. The case is not one where there is any particular reason to afford leniency by reference to the matters examined by King CJ in Osenkowski (1982) 20 SASR 212 at 213-213. I am, in particular, not convinced that there is reason to suppose that the respondent may have reached a turning point in his life, or has demonstrated any clear intention of rehabilitating himself. A significant period of post release supervision on parole is justified, however that does not justify reducing the non parole period to one that fails to appropriately reflect the criminality for which the respondent is to be resentenced: Morrissey NSWCCA 15 July 1994, and McDonald NSWCCA 12 October 1998. 52   The re-sentence does lead to a relatively small variation in the proportions which the non parole (minimum term) and total sentence (minimum term and additional term) now bear. However, I am of the view that the period for potential supervision on parole, which remains the same as that fixed by her Honour, is both adequate and appropriate to reflect the interests of rehabilitation identified in R v Moffitt (1990) 20 NSWLR 114, and is such as not to reduce the sentence below one that would comply with the principles identified in Morrissey. 53   GREG JAMES J: I agree with Wood, CJ. at CL.

**********