R v Clark

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Drollett [2002] NSWCCA 13

FILE NUMBER(S):
60570/01

HEARING DATE(S): 5 December 2001

JUDGMENT DATE: 14/02/2002

PARTIES:
Regina
Adam Drollett

JUDGMENT OF: Mason P Sully J Levine J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/21/3124

LOWER COURT JUDICIAL OFFICER: Gibb DCJ

COUNSEL:
E. Wilkins - Crown
R. Burgess - Respondent

SOLICITORS:
S. E. O'Connor - Crown
D. J. Humphreys - Respondent

CATCHWORDS:

LEGISLATION CITED:
Crimes Act (1900) NSW
Crimes (Sentencing Procedure) Act 1999

DECISION:
Crown appeal upheld; each of the sentences passed upon the respondent in the District Court quashed; and in lieu thereof the respondent sentenced to imprisonment - see pages 25 - 27 of judgment.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES
COURT OF CRIMINAL APPEAL

60570/01

MASON P
SULLY J
LEVINE J

Thursday 14 February 2002

REGINA v ADAM DROLLETT

JUDGMENT

MASON P: I agree with Sully J.
SULLY J: This is a Crown appeal against sentence. The notice of appeal is dated 23 August 2001. The notice lists ten sentences passed upon the respondent, Mr. Drollett, on 26 July 2001. The sentences were passed by her Honour Judge Gibb sitting in the District Court at Campbelltown. The only ground stated in the notice is: “that the said sentence is manifestly inadequate”. That is not quite the Crown case. The Crown appeal, as argued before this Court, does not challenge, individual sentence by individual sentence, the adequacy of the sentences passed by her Honour upon the respondent. The Crown appeal, as ultimately framed at the hearing, is directed, rather, to the fact that her Honour provided, by her dating of each individual sentence, that all ten of the sentences passed upon the respondent should be served concurrently. The end result of that approach was to expose the respondent to what her Honour described as a “maximum total period of imprisonment” of five years six months; with an effective non-parole period of four years one month fifteen days. The sole basis of the Crown appeal is that such an end result cannot be justified by a correct application to the respondent’s case of the sentencing principle that is conventionally described as the principle of totality.
On 26 July 2001 Mr. Drollett was presented before her Honour, and was arraigned formally upon an indictment containing ten counts. Mr. Drollett had previously pleaded guilty, as it would seem, in the Local Court; and at the earliest practical opportunity.
The indictment upon which Mr. Drollett was thus presented contained eleven counts. The Crown did not proceed, in the ultimate event, on Count 3. Of the remaining ten counts, Count 1 charged the respondent with robbery while armed with a dangerous weapon, namely a Chinese made SKK semi-automatic military-style assault rifle. Any such offence contravenes section 97(2) of the Crimes Act 1900 (NSW) and attracts upon conviction a maximum statutory penalty of imprisonment for 25 years. A further 8 counts, that is to say, Counts 2, 3, 4, 5, 6, 8, 9 and 10, each charged the respondent with an offence of robbery while armed with an offensive weapon. Any such offence contravenes section 97(1) of the Crimes Act; and attracts upon conviction a statutory maximum penalty of imprisonment for 20 years. The remaining count, Count 7, charged the respondent with robbery in company. Such an offence contravenes section 97(1) of the Crimes Act; and attracts upon conviction a statutory maximum penalty of imprisonment for 20 years.
Her Honour was asked to take into account in connection with the sentencing of the respondent, and in addition to the ten charges preferred formally in the indictment, a further fourteen offences. These fourteen additional matters were brought before her Honour pursuant to section 32 of the Crimes (Sentencing Procedure) Act 1999. The fourteen additional matters were taken into account by her Honour in a number of separate groupings, each grouping being related to one in particular of the counts charged in the indictment. Of the fourteen additional matters thus taken into account by her Honour, nine charged further robberies while armed with an offensive weapon; a further three charged either robbery, or attempted robbery, in company; one charged an offence of having been carried in a conveyance knowing it to have been taken without consent, a matter which, had it been charged as a principal offence, would have attracted upon conviction a statutory maximum penalty of imprisonment for five years; and the last of the additional fourteen charges alleged a common assault contrary to section 61 of the Crimes Act, a matter which, had it been charged as a principal offence, would have attracted upon conviction a statutory maximum penalty of imprisonment for two years.
So far as concerns objective criminality, it is convenient to note the following summary which her Honour makes at the inception of her remarks on sentence, which were delivered ex tempore:
“The various offences occurred, separated in time, over approximately a month. The first offence occurred on 9 November, and the last robbery offences occurred on 12 December 2000. The last offence to be taken into account is the assault occurring at the Downing Centre whilst the offender was attending Court as a witness. With the exception of that offence, all the other offences occurred between the dates of 9 November 2000 and 12 December 2000.
The circumstances of the offences are summarised in the Fact Sheet effectively. I will deal with each offence separately. But globally the position is thus. Mr. Drollett was released from Baxter Juvenile Detention Centre on day release on 31 October. He was then on day release. He failed to return on the day on which he was due to attend, being 5 pm that day. On 31 October 2000 a first instance warrant was taken out.
Shortly thereafter Mr. Drollett associated with a number of other known offenders and became involved in the series of robberies for which he is before me today. He also resumed his consumption of heroin, taking heroin up to three times a day. In company with his associates, Mr. Drollett then committed a series of robberies on service stations in the late hours of the night or early hours of the morning. With a few exceptions, the console operator was alone. In each case, the offender either acted in concert with others, using numbers to provide the threat, or used weapons.
The pattern of the offences was that, in the main, a car was stolen to be used as the vehicle of attendance and getaway, and then dumped after the robbery. The first offender would enter the service station to ensure that the avenue was clear for the commission of the offence. The remaining offenders, two or three in number, would then enter the service station, select snack foods and drinks and approach the console operator.
One of the offenders would engage the console operator in conversation. When the till was operated, one or other of the offenders in the group would produce a weapon, jump the counter, threaten the console operator and remove money. All of the offenders, this offender included, participated in the taking of cash and cigarettes. In the course of the robberies the console operators would also be the subject of personal robbery and property would be removed from them. The offenders would then flee.”
I have previously noted that eight of the ten counts charged in the indictment alleged robberies while armed with an offensive weapon. In five of those eight matters, the offensive weapon was a knife. In a further two of those eight offences, the offensive weapon was a pistol. In the remaining offence of the eight thus charged, the offensive weapon was a screw driver.
It will be necessary to recapitulate the individual sentences passed by her Honour in connection with each of the ten counts in the indictment. Before doing that, it is convenient to note that her Honour dealt with each such sentence in a standardised form concluding, in the case of each individual count, with a clear and helpful summary of the sentence passed in respect of that particular count. More particularly, her Honour:
[1] nominated an undiscounted head sentence;
[2]discounted that sentence by 25 per cent to recognise the respondent’s prompt plea of guilty;
[3]nominated, successively, a non-parole period and a parole period;
[4]found special circumstances, which her Honour defined as follows:
“I find special circumstances being:
-family background (alcohol abuse by parents; binge drinking, absenting mother; domestic violence by father); and
-early addiction to heroin (aged 16) + cannabis (at 14) and continuing addiction;
and set the non-parole period at 2/3rds of the total period of imprisonment.”
[5]stated that the particular sentence “is concurrent with all other sentences imposed today”;
[6]nominated the earliest date upon which the respondent would be eligible to be considered for release to parole, but subject to the effect of the “other sentences imposed today”.
[7]imposed a condition of parole requiring that the respondent “undergo drug & alcohol counselling, therapy and treatment + monitoring during parole period”.
In the summary which now follows I will set out successively: the nominated and undiscounted head sentence; the head sentence resulting after allowing a discount of 25 per cent; an appropriate non-parole period reflecting three-quarters of that discounted head sentence; an appropriate non-parole period reflecting two-thirds of that discounted head sentence; and the dates set in connection with the non-parole period actually imposed by her Honour. In this last connection, it seems to me that her Honour, although having expressed an intent that the respondent should have, upon each of the ten individual sentences, the benefit of a non-parole period fixed at two-thirds of the nominated, discounted head sentence, passed in fact sentences that provided for non-parole periods set at three-quarters of the respective nominated, discounted head sentences.
Count 1
Undiscounted head sentence  7 years
Head sentence discounted by 25% 5 years 3 months
Non-parole period (75%)  3 years 11-1/4 months
Non-parole period (66-2/3%)  3 years 6 months
Non-parole period dates  12.12.00 – 19.11.04
Count 2
Undiscounted head sentence  6 years
Head sentence discounted by 25% 4 years 6 months
Non-parole period (75%)  3 years 4-1/2 months
Non-parole period (66-2/3%)  3 years
Non-parole period dates  12.12.00 – 26.4.04
Count 4
Undiscounted head sentence  6-1/2 years
Head sentence discounted by 25% 4 years 10 months
Non-parole period (75%)  3 years 7-1/2 months
Non-parole period (66-2/3%)  3 years 2-2/3 months
Non-parole period dates  12.12.00 – 27.7.04
Count 5
[The details are the same as for Count 4]
Count 6
[The details are the same as for Count 4]
Count 7
[The details are the same as for Count 4]
Count 8
[The details are the same as for Count 1]
Count 9
Undiscounted head sentence  7-1/2 years
Head sentence discounted by 25% 5 years 6 months
Non-parole period (75%)  4 years 1-1/2 months
Non-parole period (66-2/3%)  3 years 8 months
Non-parole period dates  12.12.00 – 27.1.05
Count 10
[The details are the same as for Count 2 except for the non-parole dates which are 26.7.01 – 11.12.04]
Count 11
[The details are the same as for Count 2.]
I should note that in treating, as I propose to do, the sentences passed by her Honour as having been so dated as to run concurrently, I have not overlooked her Honour’s later dating of the commencement of the non-parole period set in respect of Count 10. It will be seen, however, that the effect of the non-parole period set in connection with Count 10, although dated to commence on a day later than the corresponding day set for Count 2, expired prior to the expiry of the non-parole period set for Count 9. In those circumstances, it seems to me that the dating of the sentence passed upon Count 10 cannot be regarded in any practical way as having been cumulative upon the other sentences simultaneously passed.
As previously herein noted, the overall effect of the sentences passed by her Honour upon the respondent was that the respondent was sentenced to serve a maximum total period of imprisonment of 5 years 6 months dating from 12 December 2000 to 11 June 2006; there being set in relation to that maximum period of imprisonment an effective non-parole period of 4 years 1 month 15 days expiring on 27 January 2005. In that connection, her Honour made the following observations:
“Totality
The totality of the sentences thus imposed, all being concurrent, the maximum sentence imposed overall, having regard to the reductions, is a period of five and a half years. The first effective eligible date on which the offender may be released to parole is 27 January 2005. That yields a non-parole period of some roughly three and a half years.
It seems to me that having regard to the principle of totality that that is an appropriate period, both in total and having regard to the non-parole periods.”
It is this conclusion of her Honour upon the matter of totality that has now to be considered.
In that connection the appropriate starting point is the decision of the High Court in Pearce v The Queen (1998) 194 CLR 610. The relevant principles are explained in the following extract from the joint judgment of McHugh, Hayne and Callinan JJ at 194 CLR [45] – [46] inclusive:
“45. To an offender, the only relevant question may be ‘how long’, and that may suggest that a sentencing judge or appellate court should have regard only to the total effect of sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.
46 Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. It is, then, all the more important that proper principle be applied throughout the process.”
In applying these principles to the given facts of the present case, it is necessary to bear in mind the stance, earlier herein noted, of the Crown at the hearing of the present appeal. That is to say, subject to what follows in connection with the non-parole periods set by her Honour, it is to be kept in mind that no challenge is made to the ten individual sentences passed by her Honour.
I have already summarised, as to each of the ten counts in the indictment, the effect of applying to the discounted head sentence a percentage, on the one hand of 75%, and on the other hand of 66-2/3%, in order to arrive at a non-parole period. My check of her Honour’s arithmetic suggests that her Honour, although intending that the non-parole period in the case of each of the ten individual sentences should be two-thirds of the discounted head sentence, did in fact nominate in each of the ten cases a non-parole period equal to three-quarters of the discounted head sentence.
Were all the ten non-parole periods as actually set by her Honour to be re-cast so as to reflect non-parole periods amounting to, in each case, two-thirds of the relevant discounted head sentence, then the appropriate non-parole periods would be as follows:
Count  Non-Parole Period Fixed at Two-Thirds
of the Discounted Head Sentence
1  3 years 6 months: 12.12.2000 -11.6.2004
2  3 years: 12.12.2000 – 11.12.2003
4  3 years 3 months: 12.12.2000 – 11.3.2004
5  3 years 3 months: 12.12.2000 – 11.3.2004
6  3 years 3 months: 12.12.200 – 11.3.2004
7  3 years 3 months: 12.12.2000 – 11.3.2004
8  3 years 6 months: 12.12.2000 – 11.6.2004
9  3 years 8 months: 12.12.2000 – 11.8.2004
10  3 years: 26.7.2001 – 25.7.2004
11  3 years: 12.12.2000 – 11.12.2003
Such adjustments to the non-parole periods would entail a total non-parole period of 3 years 8 months, commencing 12.12.2000 and expiring 11.8.2004. This is, I believe, the end result that her Honour intended to achieve, notwithstanding her references in the relevant documentation to a period of 4 years 1 month 15 days as the effective non-parole period. I should note for the sake of completeness that in any case where the discounted head sentence was 4 years and 10 months, I have rounded down, in the respondent’s favour, the non-parole period to 3 years 3 months so as to avoid the complication of odd numbers of days.
The submissions made for the respondent emphasised the well established principle that this Court will only uphold a Crown appeal in a clear case, and in order to vindicate some necessary principle(s) of sentencing law. Reference was made to the well known statement of McHugh J in Everett v The Queen (1994) 181 CLR 295 at 300 that: “it is only when a court of criminal appeal is convinced that the sentence is definitely outside the appropriate range that it is ever justified in granting leave to the Crown to appeal against the inadequacy of a sentence”. This is trite law. It binds this Court; and it must receive more than merely respectful lip service.
In considering whether the overall result that has been achieved in the present case is, or is not, “definitely outside the appropriate range”, I would reason as follows:
[1]The objective criminality of the offences in respect of which the sentences were passed could not be regarded by any reasonable mind, as it seems to me, as being other than culpable in high degree; and that, whether the offences be looked at individually or in the aggregate. Each of the ten principal offences covered by the indictment was very serious in terms of objective criminal culpability, as must be, surely, plain from the statutory maximum penalties fixed for those offences. Each of those ten offences involved violence and intimidation. In each case the victim was particularly vulnerable to offences of the kinds committed.
[2]The relevant criminal culpability is, surely, aggravated by the sheer number of the offences. There were, as I have already said, ten major criminal offences. They were accompanied by a further fourteen admitted offences of which no less than twelve involved either robbery armed with an offensive weapon; or robbery, or attempted robbery, in company. Of the ten offences charged in the indictment itself, the earliest in time occurred on 9 November 2000; and the last in time occurred on 12 December 2000. Ten major criminal offences, and fourteen related and serious offences, committed over little more than a month cannot be dealt with properly according to law upon the basis that they are in any sense minor matters.
The joint judgment, earlier referred to, in Pearce gives specific approval to the following statements made in a lecture given in 1969 by Sir John Barry, a sometime Judge of the Supreme Court of Victoria:
“……………………….(T)he criminal law …………….must be operated within society as a going concern. To achieve even a minimal degree of effectiveness, it should avoid excessive subtleties and refinements. It must be administered publicly in such a fashion that its activities can be understood by ordinary citizens and regarded by them as conforming with the community’s generally accepted standards of what is fair and just. Thus it is a fundamental requirement of a sound legal system that it should reflect and correspond with the sensible ideas about right and wrong of the society it controls, and this requirement has an important influence on the way in which the judges discharge the function of imposing punishments upon persons convicted of crime.” [194 CLR at 39]
[3]The present respondent’s objective criminality is aggravated by the fact that all of the offences for which her Honour Judge Gibb sentenced him were committed at a time when he was unlawfully at large in breach of day leave that had been granted to him in connection with his service of custodial sentences passed upon him in the Children’s Court on 23 June 2000, that is to say, a little more than four months prior to the first in the relevant sequence of armed robberies. On that occasion in June 2000, the respondent had been sentenced, according to the Particulars of Trial furnished in connection with the present appeal, for no less than seven offences involving, variously, robbery in company; robbery while armed with an offensive weapon; robbery in company; and robbery armed with a dangerous weapon.
Such an antecedent history attracts the principles stated as follows in the joint judgment of Mason CJ and Brennan, Dawson and Toohey JJ in Veen v The Queen[No. 2] [1988] 164 CLR 465 at 477:
“The antecedent criminal history is relevant, ……………..to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.”
[4]It is, of course, the case that proper consideration must be given to the youth of the respondent. Mr. Drollett was born on 28 February 1982. He was aged, therefore, 18 years and some 9 months when he committed the offences which are the subject of the present appeal. He was aged 19 years and some 5 months at the time at which he stood for sentence in the District Court. He is now aged 19 years and some 10 months.
It is, of course, trite that a very youthful offender cannot use his youth as a cloak of convenience behind which to shelter conveniently from the just consequences of criminal offences which are not in any particular sense non-adult types of offence.
The learned sentencing Judge clearly regarded the execution of the offences for which her Honour sentenced the respondent as having been not particularly sophisticated; or, indeed, not particularly competent. So much can be, in my opinion, readily enough accepted; but, for my part, I do not see that such a consideration does much to lessen the respondent’s criminal culpability. The nature of the offences; the frequency with which they were committed; and the dating of the particular offences; all are considerations which seem to me to justify a conclusion that there was in a real sense premeditation on the respondent’s part. It does not seem to me necessarily to follow that a person who is menaced with a shot-gun, or a pistol, or a knife, or even a screw driver, by a group of aggressive and foul-mouthed youths, is likely to feel safer from harm because his assailants are not manifestly hardened adult criminals.
[5]It is true, as the learned sentencing Judge clearly well understood, that the respondent has, and has had for some considerable time, a serious drug-abuse problem. Such a state of affairs is, of course, tragic from the point of view both of the respondent as an individual, and of the society of which he is a part. As a matter of common humanity, any reasonable sentencing Court would wish to do something constructive in order to assist in the rehabilitation of a young person with the present respondent’s lamentable history of drug abuse. Such a Court has, compatibly with the proper performance of its public duty, scope to make appropriate recommendations to assist in the rehabilitation of such an offender. It seems to me, however, that it is a very different thing to say that a sentencing Court, when dealing with such a case as the present one, should be so carried away by the undoubted social problems and social disabilities of the offender as to fail to give proper weight to the imperative need to protect members of the public from the incidence of, relevantly, armed robbery.
[6]The fact, and it is the fact, that the sentences to be served by the respondent will be served in full-time custody in an adult prison, a new and no doubt unhappy experience for him, has, also, its proper place in the scheme of a just sentencing. There is, however, a need to hold, yet again, a sensible balance of the competing interests of which I spoke in the immediately preceding paragraph.
[7]At the hearing on 5 December 2001 this Court received an affidavit sworn by the respondent. It contains, relevantly, the following material:
“5.         After about 3 months an incident occurred in the pod. A welfare officer was taken hostage by another inmate. I was nearby when this happened but I had nothing to do with it
6.            Immediately after the incident I was removed from the MRRC and I was taken to the High Risk Unit in the Goulburn Correctional Centre. I was never interviewed by the police or charged. There was no hearing of any type and there was no review of the decision to remove me from the MRRC.”
Learned counsel for the Crown sought, and was granted, time to consider whether the Crown wished to file any affidavit material in answer to the respondent’s affidavit. In the event, the Crown has filed affidavits from Miriam Rottenberg, the solicitor having carriage of the appeal in the Office of the Solicitor for Public Prosecutions; by Puipaa Maa, Corrections Officer, who was attached at the time of the incident described in the respondent’s affidavit to the Security Emergency Response Team at the MRRC; and by Miss Christine Payzis, who is the welfare worker to whom the respondent refers in the quoted paragraphs of his affidavit.
Annexures to Miss Rottenberg’s affidavit establish that the respondent is at present classified as an A2 inmate. This is a maximum security classification. It entails that the respondent is subject to restrictions and sanctions that have been imposed upon him in respect of visits; of cell placement; of phone calls; of employment opportunities; of opportunities to take part in activities on the Sports Oval; and in respect of the nature of any necessary escorting of the respondent to Court or to any other correctional centre. It is clear from the annexures that, so far as the relevant authorities at the MRRC are concerned, they are satisfied that the respondent was a participant in the incident involving the welfare officer.
The affidavits of Mr. Maa and Miss Payzis describe in detail the particular incident. It involved, put simply, the abduction of Miss Payzis by an inmate named Martin Toki. The inmate forced Miss Payzis into a cell and threatened to kill her unless the authorities complied with various demands which he thereupon made of them. Miss Payzis describes, in quite chilling detail, how the inmate Toki threatened her from time to time with “a pointed file with a handle”. Eventually, and after what must have been a terrifying ordeal for her, Miss Payzis’ release was negotiated.
Miss Payzis’ affidavit has annexed to it a copy of the statement which she gave to the investigating police on 16 April 2001. Three paragraphs in particular of that statement are relevant for present purposes. They are:
“10.       He ……………[the inmate Toki]……….. pushed me to the ground in the cell and I had my back against a wall opposite the door. He said ‘Don’t move or I’ll kill you’. Marty ………….. [that is, the inmate Toki] ………….was very concerned with getting the door closed at this time. While he was doing this, Toai Suilai and another inmate, Drollett, came into the cell. While this was happening, I stayed on the floor and didn’t move. The door was closed while Marty and Toai had a conversation. I can’t really remember what was said but I think that they were discussing whether Toai wanted to stay in or go out. Toai left the cell. ………………………………………………………………….
13.         As soon as I had gone into the cell, the other inmate Drollett took the cordless phone that I had been carrying from me. I could hear him pressing the keys on the phone so I knew that he was trying to use it. He said ‘How do you use it?’. I said ‘It won’t work in here, there’s too much concrete.’. I knew that it would have worked by pressing 0 for a line. Drollett brought the phone to me and told me to dial the number for Marty’s solicitor. It was a mobile phone number and I dialled it but I didn’t press the 0 first. I handed it back to him and said ‘Look, it’s not going to work. Just forget about the phone,’. Drollett kept trying to use the phone and while he was doing this, he was walking back and forward behind us.
14.         Drollett must have been listening to Peter Maa’s negotiations because he kept saying, ‘Don’t listen to him, he’s full of shit, don’t let her go.’. He said this quite a few times.”
It appears from paragraph 8 of an affidavit sworn by Mr. Barrow, the respondent’s present solicitor, on 6 February instant that the respondent admits the substance of what is said in paragraphs 10 and 13 of the statement of Miss Payzis, but denies the substance of what is said by her in paragraph 14.
It seems to me that it is not possible for this Court to conduct, as it were, a trial within the appeal in order to resolve the factual dispute thus arising as between Miss Payzis and the respondent. In my own view it would be quite inappropriate for this Court to embark upon a wide-ranging collateral inquiry into such a factual dispute. In my opinion, the Court should take the stance that there is, at the very least, a strong prima facie case that the respondent did have some active involvement in the incident involving Miss Payzis, Mr. Maa and the inmate Toki. That being so, there is nothing that would justify this Court in saying, either expressly or by necessary implication, that there has been some impropriety in the way in which the Corrective Service authorities have dealt with the respondent. In my opinion, any sentence otherwise appropriate to be passed upon the respondent should not be mitigated by reason of such incidents of his present imprisonment as might be regarded, on a reasonable view, of deriving from the incident involving Miss Payzis rather than from the offences for which the respondent was sentenced in the District Court.

[8]The learned sentencing Judge dealt with the respondent upon the basis that, in her Honour’s view, he was not really remorseful for what he had done. As the evidence then stood, her Honour was, in my opinion, correct in that view.

[9]Looking, in the light of all of the foregoing considerations, at the basic question posed by McHugh J in Everett, I can only say that the end result achieved in the respondent’s case because of the way in which, overall, the ten individual sentences, each admittedly within the appropriate range, were structured is, indeed, “definitely outside the appropriate range”. In my opinion, the Crown has established a clear prima facie case for the intervention of this Court.

It is then necessary to consider whether the Court should in fact intervene. It is trite that the Court has, even in the face of a clearly established prima facie case for intervention, a residual discretion not to intervene in fact.
There can be, I think, no hard and fast rules apt to govern in any and in every particular case the exercise of that residual discretion. In a case of the present kind, my own view is that the predominant consideration ought to be whether the proper intervention of this Court is likely to disrupt in a serious, and therefore in an unacceptable, way demonstrated prospects of the eventual rehabilitation for this respondent. A successful Crown appeal is, in any event, attended by well recognised practical constraints deriving from what is generally described as double jeopardy. I would accept that in the case of the present respondent the Court must, if it intervenes at all, proceed with a proper care and concern. I do not believe, however, that the fair application of proper principle would justify this Court in refusing to intervene at all. That a month long orgy of serious, and recidivist, crimes of armed robbery should result in an effective head sentence of 5 years 6 months, accompanied by an effective non-parole period of either 4 years 1 month 15 days or 3 years 8 months, seems to me to be so manifestly contrary to proper sentencing principle and practice that this Court could not responsibly allow such an end result to stand uncorrected.
It is no easy task to make that correction in a way which will maintain with mathematical exactness some arbitrary mathematical proportion as between the head sentence ultimately achieved and the non-parole period ultimately achieved by the correction. In my opinion, the adjustments necessary to make a just correction in the present case should reflect the following propositions:
[1]There must be at least some measure of cumulation in the overall structuring of the ten individual sentences. Simply to date each of the ten sentences from a common commencing date entails, in a real sense, that the respondent is not being punished at all for the later in time of the month-long succession of discrete serious criminal offences committed by him.
[2]It would not be just to make a succession of ten cumulations of sentence. It is possible to provide, in a broadly common sense kind of way, for the making concurrent of certain groups of offences within the overall ten offences. The only practical way of doing so is to use as a guide the dates of the various offences. Proceeding in that fashion, I believe that it would be just to group together Counts 1 and 2; Counts 4 and 5; and Counts 6, 7 and 8.
[3]The total criminality involved in the respondent’s offences should entail that he serve an effective non-parole period of 5 years.
[4]This should entail, in turn, that the total effective head sentence should be in the order of 7 years 6 months, in order to preserve the two-thirds relationship between head sentence and non-parole period.
I tabulate hereunder the details of the ten corrected individual sentences which are, in my opinion, justly to be imposed by this Court, having regard to the whole of the matters previously discussed in these reasons; and keeping in mind, particularly, the principle of double jeopardy of which I have earlier spoken; and the additional material received by this Court for use in the event of the re-sentencing by this Court.
By way of explanation:
[1]The head sentence nominated in each case is the head sentence nominated by Judge Gibb after a discount of 25 per cent allowed in consideration of the respondent’s plea of guilty.
[2]In each case the non-parole period nominated is two-thirds of that discounted head sentence. As previously herein explained, I have rounded down, to the advantage of the respondent, any period which, if calculated with arithmetical precision, would have to be expressed in years, months and days, rather than in years and months.
[3]The sentence imposed by her Honour in respect of Count 10 remains in all respects unaltered for the reason that its commencing date is the date of sentence rather than the earlier date of 12 December 2000.
[4]The non-parole period nominated for Count 11 is 6 months less than two-thirds of the nominated head sentence. That is done as a matter of calculating convenience, and so as to yield an overall non-parole period of 5 years.
[5]The effect of maintaining the head sentences set by Judge Gibb, and of making such adjustments to the sentence imposed in respect of Count 11 as will entail an overall non-parole period of 5 years, is that the overall head sentence resulting from the corrections that I propose is 7 years rather than 7 years 6 months. The relationship between 5 years and 7 years is about 5 percent more than 66-2/3 percent, but I have treated that discrepancy as de minimis rather than embark upon an essentially artificial re-casting of basic calculations which I believe to be just in the circumstances of the present case.
The resulting calculations are as follows:
Count 1
Head Sentence   5 years 3 months: 12.12.00 - 11.3.06
Non-Parole Period  3 years 6 months: 12.12.00 – 11.6.04
Effective Head Sentence  5 years 3 months
Effective Non-parole Period              3 years 6 months
Count 2
Head Sentence  4 years 6 months: 12.12.00 – 11.6.05
Non-Parole Period  3 years: 12.12.00 – 11.12.03
Effective Head Sentence for
Counts 1 and 2  5 years 3 months
Effective Non-parole Period
for Counts 1 and 2  3 years 6 months
Count 4
Head Sentence  4 years 10 months: 12.3.01 – 11.1.06
Non-Parole Period  3 years 3 months: 12.3.01 – 11.6.04
Count 5
Head Sentence  4 years 10 months: 12.3.01 – 11.1.06
Non-Parole Period  3 years 3 months: 12.3.01 – 11.6.04
Effective Head Sentence for
Counts 1, 2, 4 and 5  5 years 1 month
Effective Non-parole Period
for Counts 1, 2, 4 and 5  3 years 6 months
Count 6
Head Sentence  4 years 10 months: 12.6.01 – 11.4.06
Non-parole Period  3 years 3 months: 12.6.01 – 11.9.04
Count 7
Head Sentence  4 years 10 months: 12.6.01 – 11.4.06
Non-parole Period  3 years 3 months: 12.6.01 – 11.9.04
Count 8
Head Sentence  4 years 10 months: 12.6.01 – 11.4.06
Non-parole period  3 years 3 months: 12.6.01 – 11.9.04
Effective Head Sentence for
Counts 1, 2, 4, 5, 6, 7 and 8                5 years 4 months
Effective Non-parole for
Counts 1, 2, 4, 5, 6 7 and 8                 3 years 9 months
Count 9
Head Sentence  5 years 6 months: 12.9.01 – 11.3.07
Non-parole Period  3 years 8 months: 12.9.01 – 11.5.05
Effective Head Sentence for
Counts 1, 2, 4, 5, 6, 7, 8, & 9               6 years 3 months
Effective Non-parole period for
Counts 1, 2, 4, 5, 6, 7, 8 & 9 4 years 5 months
Count 10
Head Sentence  4 years 6 months: 26.7.01 – 25.1.06
Non-parole period  3 years: 26.7.01 – 25.7.04
Count 11
Head Sentence  4 years 6 months: 12.6.03 – 11.12.07
Non-parole period  2 years 6 months: 12.6.03 – 11.12.05
Effective Head Sentence for
Counts 1, 2, 4, 5, 6 ,7 8, 9, 10
and 11  7 years
Effective non-parole period for
Counts 1, 2, 4, 5, 6, 7 8, 9, 10
and 11  5 years
Orders
In my opinion, and for the whole of the foregoing reasons, the Court orders:
[1]That the Crown appeal be upheld.
[2]That each of the sentences passed upon the respondent in the District Court be quashed; and that in lieu thereof the respondent be sentenced to imprisonment as follows:
On Count 1:         Imprisonment for 5 years 3 months, commencing on 12 December 2000 and expiring on 11 March 2006; with a non-parole period of 3 years 6 months, commencing on 12 December 2000 and expiring on 11 June 2004.
On Count 2:Imprisonment for 4 years 6 months, commencing on 12 December 2000 and expiring on 11 June 2005; with a non-parole period of 3 years, commencing on 12 December 2000 and expiring on 11 December 2003.
On Count 4:Imprisonment for 4 years 10 months, commencing on 12 March 2001 and expiring on 11 January 2006; with a non-parole period of 3 years 3 months, commencing on 12 March 2001 and expiring on 11 June 2004.
On Count 5:Imprisonment for 4 years 10 months, commencing on 12 March 2001 and expiring on 11 January 2006; with a non-parole period of 3 years 3 months, commencing on 12 March 2001 and expiring on 11 June 2004.
On Count 6Imprisonment for 4 years 10 months, commencing on 12 June 2001 and expiring on 11 April 2006; with a non-parole period of 3 years 3 months, commencing on 12 June 2001 and expiring on 11 September 2004.
On Count 7Imprisonment for 4 years 10 months; commencing on 12 June 2001 and expiring on 11 April 2006, with a non-parole period of 3 years 3 months, commencing on 12 June 2001 and expiring on 11 September 2004.
On Count 8Imprisonment for 4 years 10 months, commencing on 12 June 2001 and expiring on 11 April 2006; with a non-parole period of 3 years 3 months, commencing on 12 June 2001 and expiring on 11 September 2004.
On Count 9Imprisonment for 5 years 6 months, commencing on 12 September 2001 and expiring on 11 March 2007; with a non-parole period of 3 years 8 months, commencing on 12 September 2001 and expiring on 11 May 2005.
On Count 10        Imprisonment for 4 years 6 months, commencing on 26 July 2001 and expiring on 25 January 2006; with a non-parole period of 3 years commencing on 26 July 2001 and expiring on 25 July 2004.
On Count 11        Imprisonment for 4 years 6 months, commencing on 12 June 2003 and expiring on 11 December 2007; with a non-parole period of 2 years 6 months commencing on 12 June 2003 and expiring on 11 December 2005.
In the circumstances of the present particular case, I am of the opinion that this Court should direct its Registrar to make urgent contact with the Commissioner for Corrective Services and to communicate to the Commissioner that this Court recommends that, in so far as proper prison administration and discipline might permit:
[1]The prisoner should be classified urgently to the end of ensuring that he is kept separate from older and more hardened criminal offenders.
[2]That consideration be given to the early placement of the respondent in an appropriate programme designed specifically for the needs of young offenders such as the respondent.
[3]That the respondent be given every proper opportunity to undertake appropriate educational and vocational courses; and that he be encouraged, in particular, to complete his secondary education.
[4]That the respondent’s place of detention from time to time be such as will maximise his opportunity to have regular contact with his father and with the other members of his immediate family.
[5]That the respondent be given urgent and continuing counselling, treatment and monitoring in connection with his drug and alcohol addictions.
LEVINE J: I agree with Sully J
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LAST UPDATED: 15/02/2002

[2002] NSWCCA 16

11 February 2002