R v Caldwell

[2016] NSWCCA 55

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	R v Caldwell [2016] NSWCCA 55
Hearing dates:	18 March 2016
Decision date:	19 April 2016
Before:	Beazley P at [1]; Harrison J at [2]; R A Hulme J at [3]
Decision:	1. Crown appeal against sentence allowed. 2. Sentence imposed in the District Court on 28 August 2015 quashed. 3. Respondent sentenced to imprisonment for 10 years with a non-parole period of 6 years. The sentence is to date from 27 October 2013. The non-parole period will expire on 26 October 2019 and the total term will expire on 26 October 2023. The respondent will become eligible for release on parole at the end of the non-parole period.
Catchwords:	CRIMINAL LAW – sentence - Crown appeal – aggravated break, enter and commit serious indictable offence and armed robbery – multiple offences of considerable seriousness – failure to take into account that offences committed while on conditional liberty – aggregate sentence manifestly inadequate –insufficient degree of notional accumulation of indicative sentences – failure of aggregate sentence to reflect overall criminality
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A, Pt 3 Div 3 Criminal Appeal Act 1912 (NSW) s 5D(1)
Cases Cited:	Bugmy v The Queen [2013] HCA 37; 249 CLR 571 CMB v Attorney General for New South Wales [2015] HCA 9; 317 ALR 308 Delaney v R; R v Delaney [2013] NSWCCA 150; 230 A Crim R 581 Galvin v R [2015] NSWCCA 88 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 JM v R [2014] NSWCCA 297 R v Fernando (1992) 76 A Crim R 58 R v Osenkowski (1982) 30 SASR 212 R v Stoupe [2015] NSWCCA 175 R v Van Ryn [2016] NSWCCA 1 Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36
Category:	Principal judgment
Parties:	Regina (Applicant) William James Caldwell (Respondent)
Representation:	Counsel: Ms S Dowling SC (Crown) R Webb (Respondent)   Solicitors: Solicitor for Public Prosecutions P Kulisiewicz
File Number(s):	2013/324985
Decision under appeal	Court or tribunal: District Court Date of Decision: 28 August 2015 Before: Woodburne SC DCJ File Number(s): 2013/324985

Judgment

1. BEAZLEY P: I agree with R A Hulme J

2. HARRISON J: I agree with R A Hulme J.

3. R A HULME J: William James Caldwell (“the respondent”) was sentenced by her Honour Judge Woodburne SC in the District Court at Sydney in respect of five offences with a further three offences being taken into account.

4. The respondent had been arrested on 27 October 2013. He pleaded guilty to the offences in December 2014. The sentence hearing took place on 4 June and 17 July 2015 and her Honour passed sentence on 28 August 2015.

5. Her Honour imposed an aggregate sentence of imprisonment for 6 years 3 months with a non-parole period of 3 years 8 months. It was backdated to the day of the respondent’s arrest.

6. The Crown appeals against the sentence on grounds alleging that it is manifestly inadequate and that her Honour erred by failing to take into account that the offences were committed while the respondent was on a good behaviour bond. For the reasons that follow I am satisfied that both grounds have been made good.

Offence and sentence details

7. Details of the offences and the individual sentences that would have been imposed if her Honour had not imposed an aggregate sentence are set out in the following table. All of the offences were contrary to provisions of the Crimes Act 1900 (NSW). The offences which the respondent asked her Honour to take into account pursuant to Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW) were listed on Form 1 (“F1”) documents. Standard non-parole periods (“SNPP”) are prescribed where indicated.

Offence	Max penalty (SNPP)	Indicative sentence
1	Aggravated (in company) break, enter and steal (s 112(2)) on 13 September 2013 at Westpac Bank, 282 Kent St, Sydney ($42,794)	20 yrs (5 yrs)	5 yrs 3 mths NPP 3 yrs 7 mths
F1	Drive stolen conveyance (s 154A(1)(b)) at about 10.45am on 13 September 2013 at Ultimo – 2005 Porsche Cayenne	5 yrs	-
2	Drive stolen conveyance (s 154A(1)(b)) between 13 September and 17 October 2013 at Sydney – Subaru WRX	5 yrs	18 mths
3	Aggravated (in company) break, enter and steal (s 112(2)) on 7 October 2013 at IGA Supermarket, Pyrmont ($43,000)	20 yrs (5 yrs)	4 yrs 6 mths NPP 3 yrs 2 mths
4	Robbery whilst armed (sledgehammer) (s 97(1)) on 11 October 2013 at Bendigo Bank, Pyrmont ($350)	20 yrs	4 yrs 3 mths NPP 2 yrs 11 mths
5	Aggravated (in company) break, enter and steal (s 112(2)) on 17 October 2013 at Sydney Credit Union, Leichhardt ($38,620)	20 yrs (5 yrs)	3 yrs 5 mths NPP 2 yrs 4 mths
F1	Conspiracy with persons unknown to rob persons unknown of cash whilst armed (sledgehammer) on 16 October 2013 at Pyrmont (Common law / s 97(1)) Damage property (fencing and a gate) at Marrickville on 27 October 2013 (s 195(1)(a))	Penalty at large (20 yrs per s 97(1)) 5 years	-

Facts

8. The facts relating to the respondent's offences were not disputed.

Offence on Form 1 for Offence 1 and Offence 2 – drive stolen conveyances

9. A Subaru WRX and a Porsche Cayenne were stolen from commercial car wash facilities at Haberfield and Kingsford on 25 and 28 August 2013 respectively while each car was unattended with the keys left in the ignition. The respondent was seen driving the Porsche on 13 September and was seen driving the Subaru on a number of occasions between then and 17 October 2013.

Offence 1 - aggravated break, enter and steal at Westpac Bank, Sydney on Friday 13 September 2013

10. Shortly before 11.00am on Friday 13 September 2013 the respondent and an unknown male were seen to attend a commercial car park in Harris Street, Ultimo. A short time later the respondent drove away in the Subaru followed by the unknown male driving the Porsche. They drove to the vicinity of the Westpac Bank in Kent Street where the Porsche mounted the footpath and drove through a glass wall. The respondent stopped the Subaru nearby. Another unknown male alighted with a sledgehammer which he used to further smash the glass wall thereby allowing both unknown males to enter the bank. $42,794 was stolen from the teller section. The three offenders escaped in the Subaru driven by the respondent. The Porsche was left wedged in the glass wall. The statement of agreed facts include that there were dozens of people in the area at the time of the incident.

Offence 3 - aggravated break, enter and steal at IGA Supermarket, Pyrmont on Monday 7 October 2013

11. At about 10.50pm on Monday 7 October 2013 the respondent drove the Subaru to the vicinity of the IGA Supermarket in Miller Street, Pyrmont. He and two unknown male companions observed the movements of staff as they prepared to close up. The manager locked the main door at 11.00pm and proceeded to take cash containers out of an ATM at the front of the store. The two unknown males smashed the glass door with a sledgehammer while the respondent waited in the driver's seat of the Subaru.

12. The manager fled with the cash containers to the back of the store, calling out to the approximately ten staff members, "run and hide, thieves are here". The staff locked themselves in an office but the offenders banged on the door, yelling "open it". Staff members were crying and upset. The manager opened the door out of fear. He was required to assist locating the cash from the ATM. That cash and an entire days takings from the cash registers (totalling $43,000) were taken and the offenders fled in the Subaru.

Offence 4 – robbery whilst armed with an offensive weapon at Bendigo Bank, Pyrmont on Friday 11 October 2013

13. Just before closing time on Friday 11 October 2013 the respondent with two unknown passengers drove the Subaru to the corner of Harris and Union Streets in Pyrmont. It mounted the kerb at speed before reversing quickly in the direction of the nearby Bendigo Bank. The two male passengers alighted and entered the bank; one was armed with a sledgehammer. Once inside the teller area they threatened staff and demanded cash. Staff told them that the money had been secured in a time-delayed safe that would take 15 minutes to open. One of the offenders threatened to shoot a staff member but no firearm was seen. Nevertheless she feared for her safety and opened her teller drawer which contained a small amount of money. The offenders ran from the bank with proceeds of $350 and were driven away by the respondent.

Offence on Form 1 for Offence 5 - conspiracy to commit armed robbery on Wednesday 16 October 2013

14. At around 4.00pm on Wednesday 16 October 2013 the respondent and two co-offenders, Bradley Baxter and Koori Fernando, were seen in the stolen Subaru in Taylor Street, Glebe by police officers performing general duties. They activated the warning devices on their police vehicle when the Subaru made a turn contrary to a no right turn sign and a red traffic light. The respondent waved at the pursuing officers and accelerated away. Surveillance devices, which by this time had been installed in the Subaru, depicted the three men entering the car and tying t-shirts over their faces in anticipation of an intended robbery.

Offence 5 - aggravated break, enter and steal at Sydney Credit Union, Leichhardt on Thursday 17 October 2013

15. At 2.15pm on Thursday 17 October 2013 the respondent with Kane Caldwell and Koori Fernando travelled in the Subaru from Ultimo to the Sydney Credit Union at Leichhardt. Kane Caldwell and Koori Fernando alighted, armed with a sledgehammer and a baseball bat. They smashed their way through glass doors with the sledgehammer and approached the sole employee who ran away. They took $38,620, returned to the Subaru and were driven away by the respondent.

Arrest and offence on Form 1 for Offence 5 – damage property

16. Police attended an address in Marrickville on 27 October 2013 in an attempt to locate the respondent. He fled through neighbouring properties and in doing so damaged a fence at one property and a gate at another. He was arrested soon after.

Assessment of objective seriousness of the offences

17. The learned judge made an assessment of the objective seriousness of each of the offences. She found that they were each serious examples of their type; "very serious" in the case of Offence 1 (Westpac Bank in Kent Street).

18. In making these assessments, her Honour referred to a number of features including:

a)   the degree of planning;

b)   the number of co-offenders;

c)   the use of the sledgehammer and, in one case, a baseball bat;

d)   the use of disguises;

e)   the use of stolen cars;

f)   the nature of the respective premises, some being targeted when they and the surrounding areas would be busy;

g)   the extent of damage to property;

h)   the amount of money taken;

i)   the disregard to public safety; and

j)   the fear and distress caused to innocent people.

Personal circumstances of the respondent

19. The only oral evidence at the sentence hearing was that of the respondent. Documents relevant to his background and personal circumstances comprised his criminal and custodial history and two reports by Mr Tim Watson-Munro, psychologist. Accompanying one of Mr Watson-Munro's reports was a journal article written by an American obstetrician and gynaecologist on the relationship between methylamphetamine abuse and brain damage.

20. Her Honour noted that the respondent's criminal history commenced in the Children's Court when he was aged about 14. He had been convicted of matters of break and enter as well as robbery. She noted that he was sentenced to imprisonment for 3 years 3 months in the District Court in 2005 for an offence of aggravated break, enter and commit serious indictable offence [in fact two, with a further two taken into account], driving whilst disqualified, and driving a vehicle taken without the owner's consent. She further noted that in 2009 he was placed on a five-year good behaviour bond for an offence of robbery whilst armed with a dangerous weapon.

21. Her Honour did not say anything about it being an aggravating feature of the present offences that the respondent was in the community under such conditional liberty at the time. This gave rise to ground 2 of the Crown's appeal which should be upheld. Although it was accepted by the Crown that it had not raised the matter with her Honour, it was submitted to have been such a clear "red flag matter" that it should have been noticed and taken into account adversely to the respondent. With much respect to her Honour, I think that is right.

22. After reference to the criminal history, the judge continued with a review of his background. She referred to him being a man of Koori descent and the eldest child in a blended family of 13 siblings. His father was an alcoholic and his parents separated when he was about 7 years of age. He was estranged from his mother for five years until 2008 and was largely raised by his paternal uncle with whom he had a very good relationship.

23. The respondent attended about 10 primary schools. He was asked to leave high school in Year 7 but later returned to school in 2001 and completed a Koori mentoring course at the Eora TAFE. He then had limited employment as a mentor for Koori children and had also worked in the hospitality industry and in various souvenir stores. His primary source of income was through the sale of his artwork for which he received $4000 to $5000 for his paintings.

24. The respondent was in a relationship for about 3 years which produced a child who is currently in her mid-teens. The relationship broke down when she was two but he told Mr Watson-Munro in 2008 that he maintained good contact with his daughter.

25. Alcohol and illicit drug use has marred the respondent's life. He began using alcohol and cannabis at age 9 and other drugs including ecstasy, amphetamine and cocaine at age 14. He gave evidence that alcohol abuse was rife amongst adults and children when he was growing up on the missions in Moree. He came to think that drinking was "the right thing to do" and said "I thought it was cool".

26. The respondent's alcohol abuse escalated in the course of a relationship with a woman who was a heavy drinker but a short time later (11 October 2004 according to the records) he was imprisoned. When he was released (10 October 2006) she was incarcerated for matters arising from her alcohol abuse. According to the history given to Mr Watson-Munro in 2008, this had a "significant and destabilising impact upon Mr Caldwell who then for a period escalated the intensity of his alcohol consumption".

27. In relation to another matter, the respondent was refused bail and held in custody from 21 August 2009 until he was acquitted on 25 October 2012. He told Mr Watson-Munro that this was in respect of an armed robbery charge. Referring to it, the psychologist reported:

"Since that time until the period of his arrest his life spiralled downwards due to his unresolved depression, anxiety and escalating addiction."

28. Her Honour referred to the respondent's evidence that he did not use drugs during his time in custody but after his release in October 2012 he "started drinking, clubbing" and soon after started using the drug known as "ice". He said he had been using ice on a daily basis for about four months prior to the index offences.

29. The respondent gave an account of having fallen into debt with drug dealing bikies who were threatening him and that this was what motivated him to commit the offences. Her Honour did not accept this so no more needs to be said about it. She did, however, accept that he had been using ice and that "given the lack of employment, the offences were likely to have been committed to fund the offender's drug habit and lifestyle". She did not accept that this was any excuse or a matter of mitigation. She added:

"It is well established that the need to acquire funds to support a drug habit, even a severe habit, does not operate to mitigate the seriousness of the offending. It is evident from the planning involved in the commission of the offences as well that, whatever the degree of addiction and state of mind as affected by those drugs, the offender was nevertheless able to participate in the planning as well as the execution associated with each of the offences. He knew what he was doing [was] wrong and that is so even if the use of a drug might have affected his reasoning about the matter. The use of ice is not a licence to commit very serious crime."

30. This conclusion is unimpeachable and was not challenged.

Findings made in the assessment of sentence

31. Her Honour referred to the remarks of his Honour Judge North in sentencing the co-offender Kane Caldwell:

"The offender's underprivileged upbringing, early introduction to alcohol and later introduction to drugs, bearing in mind his Aboriginality, enliven in my view considerations of the principles identified by Wood J in Fernando."

32. She identified the authorities on the subject - R v Fernando (1992) 76 A Crim R 58 and Bugmy v The Queen [2013] HCA 37; 249 CLR 571 - and said, in effect, that the same considerations applied in the respondent's case.

33. A 25 per cent reduction of sentence on account of the utilitarian value of the respondent's early guilty pleas was allowed.

34. Her Honour was "not entirely persuaded" that the respondent had true insight into the effect of his offences on their innocent victims but she acknowledged that he had accepted some responsibility for his crimes.

35. She was not prepared to find that he had good prospects of rehabilitation and was unlikely to reoffend, holding that such prospects were "guarded".

36. Reference was made to the purposes of sentencing: s 3A of the Crimes (Sentencing Procedure) Act. She said that weight had to be given to general deterrence, retribution and punishment. Specific deterrence was also held to be relevant in light of the respondent's criminal history. Rehabilitation was also important "to prevent a cycle of going in and out of prison".

37. Her Honour made reference to the totality principle in a perfectly conventional way but, given it relates to the primary complaint made by the Crown, it bears quoting in full:

“In imposing sentence on an offender who has committed multiple offences it is proper to proceed by imposing appropriate sentences and to apply the totality principle by the extent to which the sentences are made concurrent or cumulative.

In the case of Mr Caldwell it can be seen that the offences committed by him were committed over a reasonably confined period of time, being from about 13 September 2013 through to about 27 October 2013. It is necessary however to recognise the fact that whilst the offences were committed over a reasonably short period of time, and whilst some of them were of the same general nature as others, these were in fact separate and distinct offences that must be marked by a degree of accumulation of sentence.

The overall sentence to be imposed is intended to achieve a just and appropriate measure of the total criminality involved taking into account, as I have been asked to do, the Form 1 offences.”

38. Special circumstances justifying a non-parole period less than the usual three-quarters of the overall term were found: "I consider that there is a need for rehabilitation and I consider that that warrants an adjustment by way of incentive and support in the community".

39. Her Honour referred in detail to the sentencing of the three men identified as being co-offenders in the Sydney Credit Union offence (Offence 5 - Kane Caldwell and Koori Fernando) and the conspiracy to commit armed robbery offence (Offence on Form 1 for Offence 5 - Koori Fernando and Bradley Baxter). She said she would take into account the need to avoid unjustifiable disparity but had determined to impose a longer sentence than those men received, particularly having regard to the additional serious offences for which the respondent stood to be sentenced.

Crown submissions

40. The written submissions of counsel for the Crown (not senior counsel who appeared at the hearing) identified four "particulars" said to support a conclusion that the sentence is manifestly inadequate.

Particulars (i) and (ii)

41. It was contended that there was a failure by the sentencing judge to take into account the use of offensive weapons and the fact that there were people on the premises as circumstances of aggravation for the aggravated break and enter offences. However, the use of a sledgehammer and, in one case, a baseball bat, the targeting of some premises when they would be busy, the disregard for public safety, and the fear and distress caused to innocent people were among the matters to which her Honour paid specific regard in her assessment of the objective seriousness of the offences (*see above at [18]). There is no merit in these complaints.

Particular (iii)

42. It was contended that the indicative sentence for Offence 5 did not reflect the criminality involved when taking into account the offences on the Form 1.

43. The Crown accepted that the appeal is against the aggregate sentence, not the indicative sentences: Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36 at [227]; JM v R [2014] NSWCCA 297 at [40](11); R v Stoupe [2015] NSWCCA 175 at [72]. However, it pointed to the fact that the indicative sentence for Offence 5 was the lowest of all. It was a serious offence by itself but it was also necessary for her Honour to take into account that the previous day the respondent had conspired with two other offenders to commit an armed robbery.

44. There is no point seeking to resolve this specific complaint as the ultimate question is whether the aggregate sentence is proportional to the overall criminality of the respondent.

Particular (iv)

45. The final particular of manifest inadequacy in the aggregate sentence is that the degree of notional accumulation of the indicative sentences was inadequate and failed to reflect the totality of the criminality of the offences: JM v R at [40](13).

46. A recent summary of the correct approach to the assessment of sentence for multiple offences so as to have proper regard to the totality of criminality appeared in R v Van Ryn [2016] NSWCCA 1:

“[228] Street CJ described the principle of totality in sentencing in R v Holder; R v Johnston [1983] 3 NSWLR 245 at 260 as follows:

'The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.'

[229] In R v Harris [2007] NSWCCA 130; 171 A Crim R 267 at [46], the Court (McClellan CJ at CL, Hulme and Hislop JJ) emphasised the need to maintain public confidence in the administration of justice when sentencing for multiple offences by endorsing the remarks of Sully J in the two-judge bench decision in R v Wheeler [2000] NSWCCA 34 at [36]-[37]:

'... (There) 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.

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.'

[230] In R v XX (2009) 195 A Crim R 38 at [52], Hall J set out a number of propositions derived from the case law concerning the discretionary exercise of ordering sentences to be served concurrently or cumulatively in accordance with the principle of totality. They included reference to the following passage in the judgment of Howie J in R v Cahyadi [2007] NSWCCA 1; 168 A Crim R 41at [27]:

'… [T]here is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.' (Emphasis added)"

47. The Crown did not suggest that Woodburne SC DCJ was not cognisant of the principles. (See above at [37]). She recognised that "these were in fact separate and distinct offences that must be marked by a degree of accumulation of sentence". It was submitted, however, that the result did not give effect to the correct application of the principle; the degree of accumulation "is simply too slight, as clearly demonstrated by the mere 12-month difference between the aggregate head sentence and the longest indicative head sentence".

48. This was not a case in which the criminality in one offence significantly overlapped with the criminality in another offence, thereby justifying the degree of notional accumulation being ameliorated: see, for example, Delaney v R; R v Delaney [2013] NSWCCA 150; 230 A Crim R 581 at [66]-[67]; Galvin v R [2015] NSWCCA 88 at [49]. Each of the aggravated break and enter offences and the armed robbery offence were distinctly different displays of serious criminal misconduct. They were committed on different days; they involved different victims; and in most cases they involved the theft of substantial amounts of money.

Respondent's submissions

49. Counsel for the respondent characterised the sentencing judgment as well and carefully crafted by a judge with much experience in the criminal law. So much may be readily accepted.

50. Counsel conceded that the sentence imposed was "at the low end (if not the bottom) of the permissible range". However, it was submitted that it was not "wrong in law" in terms of it being beyond the range of the legitimate exercise of the sentencing discretion.

51. Attention was invited to the various subjective matters that stood in favour of a more lenient assessment of sentence than might otherwise have been the case. In this regard, reference was made to matters such as the respondent's "fractured and dislocated upbringing including an early introduction from about age nine to alcohol and drugs".

52. No complaint was made about the assessment the judge made as to the objective seriousness of the offences.

53. It was put in written submissions that this was a case which could be considered in the light of the well-known passage from the judgment of King CJ in R v Osenkowski (1982) 30 SASR 212 at 212-213. The written submissions quoted just the following:

"It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform."

54. The judgment in fact continues:

"The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience."

55. The latter is particularly pertinent to the present case. And, in any event, it is not at all apparent that the sentencing judge's "sympathies [were] reasonably excited by the circumstances of the case". Her Honour did not say anything to suggest that she had formed a "view … that leniency at [this] particular stage of the offender's life might lead to reform". In fact, her Honour found that the respondent's prospects of rehabilitation were "guarded".

Conclusion

56. I am satisfied that the sentence is manifestly inadequate. Each of the aggravated break and enter and robbery offences were of considerable seriousness as the learned judge found and the respondent implicitly accepted. Except for Offence 5, the Crown does not complain about the term of each of the indicative sentences. But I agree with the submission that the fact that the aggregate sentence only exceeds the indicative sentence for Offence 1 by 12 months is a powerful indication that there was an inadequate assessment of the need to notionally accumulate. Put more directly, I am satisfied that the aggregate sentence fails to reflect the overall criminality of the respondent's offences. A substantially higher sentence was required for that purpose, even recognising and giving full weight to the most unfortunate circumstances in the respondent's upbringing; acknowledging his acceptance of "some" responsibility for his crimes and his "guarded” rehabilitation prospects; allowing a reduction for his early pleas of guilty; and making the finding of special circumstances that warranted a reduction in the non-parole period.

Discretion as to intervention

57. It is a matter for the discretion of the Court as to whether it will intervene and re-sentence. Section 5D(1) of the Criminal Appeal Act 1912 (NSW) provides that the Court "may in its discretion vary the sentence and impose such sentence as to the said court may seem proper". Oddly, as if the default position is intervention, this is often referred to as a residual discretion to refrain from intervention: see, for example, Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [1]. Nevertheless, the important thing to bear in mind is that it is for the Crown to persuade the Court that it should intervene: CMB v Attorney General for New South Wales [2015] HCA 9; 317 ALR 308.

58. Senior counsel for the Crown reminded the Court of the primary purpose of prosecution appeals against sentence being "to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons": Green v The Queen; Quinn v The Queen at [1]. It was submitted that intervention in this case would achieve a purpose of providing guidance as to the correct application of the totality principle in sentencing for multiple serious aggravated break and enter and robbery offences. More specifically, it was submitted that the sentence imposed in the instant case remained of importance, particularly in relation to the need for personal and general deterrence. The former was said to be particularly significant where the respondent committed the index offences whilst subject to a good behaviour bond imposed for a serious offence.

59. Counsel for the respondent submitted that the period of about three years in which the respondent had been held in custody, bail refused, for an offence for which he was ultimately acquitted was a relevant matter to be taken into account in the consideration of the discretion as to intervention. Reference was made to the report by Mr Watson-Munro which included in the history provided by the respondent a reference to his acquittal in 2012. As indicated earlier (at [27]), it was then stated:

"Since that time until the period of his arrest his life spiralled downwards due to his unresolved depression, anxiety and escalating addiction."

60. The written submissions implied that this provided some causal link between the 3 years in custody and the respondent's relapse into drugs and criminal conduct following his release. The matter was developed in much the same way in oral submissions.

61. I reject this submission. First, there is nothing in any of the evidence that makes good the contention that there was a causal link between the three years of incarceration from 2009 to 2012 and the respondent's "unresolved depression, anxiety and escalating addiction". Mr Watson-Munro certainly did not say that there was. Secondly, as senior counsel for the Crown pointed out, Mr Watson-Munro had reported in 2008 that the respondent had "a protracted history of depression and anxiety" which he attributed to the unfortunate circumstances of his upbringing. Accordingly, the evidence was contrary to counsel’s proposition of there being a causal link.

62. The Court should intervene in order to maintain adequate standards of punishment for multiple serious offences such as the present; in particular to provide guidance as to a principled approach to sentencing in such a case.

Re-sentencing

63. No evidence was proffered by the respondent on the issue of re-sentencing. Senior counsel for the Crown informed the Court that the respondent had not committed any disciplinary offences since he had been remanded in custody.

64. I am persuaded that the indicative sentence for Offence 5, taking into account the two offences listed on a Form 1 document, but particularly that of conspiracy to commit armed robbery, was inadequate. I would adopt a starting point for the sentence for that offence of 6 years (as opposed to the 4 years 6 months the primary judge appears to have adopted). After reduction for the plea of guilty the indicative sentence for that offence will be 4 years 6 months with a non-parole period of 3 years.

65. I would otherwise adopt the same indicative sentences as identified by her Honour given that neither party asserted that there was anything erroneous about them.

66. To properly reflect the totality of the respondent's criminality, there should be an aggregate sentence of 10 years. Neither party made any submission about the non-parole period. I consider that the finding of special circumstances made by the primary judge should be maintained. There should be a non-parole period of 6 years.

Orders

67. I propose the following orders:

1.   Crown appeal against sentence allowed.

2.   Sentence imposed in the District Court on 28 August 2015 quashed.

3.   Respondent sentenced to imprisonment for 10 years with a non-parole period of 6 years. The sentence is to date from 27 October 2013. The non-parole period will expire on 26 October 2019 and the total term will expire on 26 October 2023. The respondent will become eligible for release on parole at the end of the non-parole period.

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Decision last updated: 19 April 2016