R v Craig John Drew

[2007] NSWCCA 331

New South Wales
Court of Criminal Appeal

CITATION:	R v Craig John DREW [2007] NSWCCA 331
HEARING DATE(S):	22 October 2007
JUDGMENT DATE:	3 December 2007
JUDGMENT OF:	Mason P at 1; Hidden J at 2; Harrison J at 3
DECISION:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – Crown appeal against inadequacy of sentence – conviction on several counts of robbery with offensive weapon - concurrence and accumulation of custodial sentences - totality principle – whether similar offences committed over short period of time should attract totally concurrent sentences – whether accumulation of sentences adequately reflect seriousness of crimes – unusual subjective features demonstrated - no miscarriage of sentencing discretion shown – appeal dismissed
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912
CASES CITED:	Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 R v Basha [2003] NSWCCA 36; (2003) 138 A Crim R 245 R v Cotter [2003] NSWCCA 273 R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66 R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 R v Jones [2004] NSWCCA 432 R v KM [2004] NSWCCA 65 R v Swadling [2004] NSWCCA 421 R v Tortell and Tsegay [2007] NSWCCA 313 R v Wall [2002] NSWCCA 42 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 R v Webster [2005] NSWCCA 110 R v Wheeler [2000] NSWCCA 34
PARTIES:	Regina (Appellant) Craig John Drew (Respondent)
FILE NUMBER(S):	CCA 2007/3178
COUNSEL:	M M Hobart SC (Appellant) C A Davenport SC (Respondent)
SOLICITORS:	S Kavanagh, Solicitor for Public Prosecutions (Appellant) North and Badgery (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/11/0977
LOWER COURT JUDICIAL OFFICER:	Nicholson DCJ and Charteris DCJ
LOWER COURT DATE OF DECISION:	8 and 13 December 2006 (dates of sentence)

2007/3178

MASON P
HIDDEN J
HARRISON J

3 December 2007

R v Craig John DREW

Judgment

1 MASON P: I agree with Harrison J and the additional remarks of Hidden J.

2 HIDDEN J: I agree with the orders proposed by Harrison J and with his Honour’s reasons. It is true that these were serious offences and heavier sentences might well have been justified. Nevertheless, in all the circumstances and, in particular, having regard to the respondent’s rather unusual subjective case, it cannot be said that the discretion of either of the sentencing judges has miscarried.

3 HARRISON J: This is a Crown appeal. The principles governing appeals by the Crown were summarised by Wood CJ at CL in R v Wall [2002] NSWCCA 42 at par [70]. These principles are well known and it is unnecessary for present purposes to recite them.

4 The Crown appeals pursuant to s 5D of the Criminal Appeal Act 1912 against sentences imposed upon the respondent by his Honour Nicholson DCJ at the Parramatta District Court on 8 December 2006 and by his Honour Charteris DCJ at the Sydney District Court on 12 December 2006.

Charges and sentences imposed below

5 On 20 June 2006 the respondent pleaded not guilty to the charges listed below. He went to trial before his Honour Nicholson DCJ and the jury returned verdicts of guilty on all counts: -

Count 1 : Robbery whilst armed with an offensive weapon (knife) on 11 June 2005;

Count 2 : Robbery whilst armed with an offensive weapon (knife) on 12 June 2005;

Count 3 : Robbery whilst armed with an offensive weapon (knife) with wounding on 13 June 2005; and

Count 4 : Robbery whilst armed with an offensive weapon (knife) on 13 June 2005.

6 On 29 August 2006 the respondent pleaded not guilty to the charge listed below. He went to trial before his Honour Charteris DCJ. The jury returned a verdict of guilty.

Count 5 : Robbery whilst armed with an offensive weapon (knife) on 17 June 2005. (This charge was originally "Count 5" on the arraignment indictment but was severed from the indictment by order of his Honour Nicholson DCJ).

7 The four charges of robbery whilst armed with an offensive weapon are offences against s 97 of the Crimes Act 1900 and each is punishable with a maximum sentence of imprisonment for 20 years. The charge of robbery whilst armed with an offensive weapon with wounding is an offence against s 98 of the Crimes Act 1900 and is punishable with a maximum sentence of imprisonment for 25 years. The standard non-parole period for that offence is 7 years.

Sentences

8 On each of Counts 1, 2 and 4 the respondent was sentenced on 8 December 2006 to a non-parole period of 3 years to date from 18 June 2005 and to expire on 17 June 2008 with a balance of term of 1 year to expire on 17 June 2009. His Honour Nicholson DCJ ordered that the sentences be served concurrently. On Count 3 the respondent was sentenced on the same day to a non-parole period of 4 years to date from 18 June 2006 and to expire on 17 June 2010 with a balance of term of 2 years to expire on 17 June 2012. (A reference to "2011" at paragraph 58 in the remarks on sentence of his Honour Nicholson DCJ would appear to be a typographical error).

9 On Count 5 the respondent was sentenced on 12 December 2006 to a non-parole period of 2 years and 3 months to date from 18 September 2008 and to expire on 17 December 2010 with a balance of term of 2 years and 6 months to expire on 17 June 2013.

10 The overall effective sentence imposed upon the respondent, taking into account all of these sentences, is 8 years imprisonment to commence on 18 June 2005 and to expire on 17 June 2013 with a non-parole period of 5 years and 6 months to commence on 18 June 2005 and to expire on 17 December 2010.

Factual background

11 Count 1: At about 8.35pm on Saturday 11 June 2005 the respondent waited at a bus stop on the eastern kerb of Great North Road, Abbotsford. He was wearing a black beanie pulled down to almost cover his eyes, a black coloured zip up jacket, black trousers and white sports shoes. About 15 minutes later the victim, Mr Sujendra Prasad, a bus driver, drove his bus to the stop and opened the door for the respondent to get on board. The respondent stepped onto the bus and immediately produced a 15 cm long knife from his pocket. Holding the knife at waist level the respondent said, "I only want the money". Mr Prasad handed the respondent the cash tray containing $103.60 and $20 from his pocket. The respondent then asked, "Where is your wallet money?" Mr Prasad then gave the respondent $60 and indicated that his wallet was empty. The respondent grabbed the money and ran away.

12 Count 2: At about 7.57pm on Sunday 12 June 2005 the victim, Mr Robert Baraclough, a bus driver, saw the respondent and another person waiting at a bus stop at Broughton Street, Canterbury. He stopped the bus and let them board. The respondent stepped onto the bus first, followed by the other person. The respondent said, "I want your money and your wallet". Mr Baraclough said, "You can go and get fucked, you're not getting my wallet". The respondent then took a knife from the side of his tracksuit trousers and waved it in the air. Mr Baraclough, fearing that he might be hurt, grabbed the respondent’s arm preventing him from using the knife. The respondent then put the knife back in his trousers, lifted up the cash tray and ran away. The person who was behind the respondent rang the police on his mobile phone. There was $100 in the cash tray. Mr Baraclough described the knife as a fishing knife about 15cm long.

13 Count 3: The victim, Mr Christopher Pasqual, a bus driver, was rostered to work on Route 465 on the Queen’s Birthday public holiday on 13 June 2005. At about 4.15pm he drove his bus along Tennyson Street, Mortlake and saw the respondent standing at a bus stop. The respondent was wearing sunglasses and a hat and carrying a bag with his left hand. Mr Pasqual stopped his bus and let the respondent get on board. The respondent stepped onto the bus and took out an 11.5cm long knife from his bag and said, "Give me the money". Mr Pasqual gave him the cash tray and said, "Take it". At that stage the respondent went closer to Mr Pasqual, who became fearful of what might happen and tried to push the respondent away from him. He swung the cash tray at the respondent, knocking down his sunglasses. The respondent lunged forward with his knife, wounding Mr Pasqual’s outer left forearm. Coins from the cash tray spilled onto the floor of the bus. The respondent attempted to collect his sunglasses from the floor saying, "I'll kill you". Mr Pasqual tried to kick the respondent but did not connect. The respondent left, running from the bus towards a rendezvous point. He left his sunglasses behind. The attempted robbery yielded nothing.

14 Mr Pasqual sustained a single stab injury to the ulnar aspect of his left forearm. There was evidence of a complete left ulnar nerve injury at the forearm level. He underwent microsurgery. In June 2006 he was assessed as having lost 40 per cent of his upper limb ulnar nerve function equating to 16 per cent upper limb dysfunction. The prognosis was that he would always have some degree of loss of dexterity in his left hand as a result of the injury.

15 Count 4: At about 4.26pm on Monday 13 June 2005, the victim, Mr John Zhang, a bus driver, saw the respondent and an elderly lady waiting at a bus stop on the eastern side of Great North Road, Abbotsford. When he stopped the bus the elderly lady boarded first followed by the respondent who was carrying a backpack. The respondent took out a knife about 15cm long from his pocket, pointed it at Mr Zhang and said, "Give me all of your money". Mr Zhang was shocked and did not know what to say. The respondent again said, "Give me all of your money". Mr Zhang then handed over the cash tray containing about $120. The respondent took hold of the cash tray, put it in his backpack and ran away.

16 Count 5: At about 4.45pm on 17 June 2005 the victim, Ms Theodoris Tserdanis, a young woman employed by the Waratah Florist at Dulwich Hill, was working alone when the respondent walked into her shop. He ordered half a dozen roses. When she had finished preparation of the flowers she handed them to him and asked for the price of $12. The respondent pulled out a knife with his left hand and said, "Now I want you to give me all the money in the till". There was some cash adjacent to the till which he took. The respondent told her to open the till. She started to take out the $50 and $20 bills and the respondent reached in and grabbed the $5 bills. When leaving the shop the respondent said, "Call 000”. She shook her head, indicating that she was not going to do so. The respondent again said to her, "Call 000”.

Ground of appeal

17 The Crown appeals on the single ground that the sentences imposed in all cases are manifestly inadequate.

Crown submissions on appeal

18 With respect to the sentences imposed by his Honour Nicholson DCJ the Crown notes that they reflect concurrency in relation to the three unrelated s 97 offences (Counts 1,2 and 4) and partial accumulation of the unrelated s 98 offence (Count 3). The sentence imposed by his Honour Charteris DCJ is partially accumulated on the sentence imposed for the s 98 offence with the result that only three months imprisonment is solely referable to Count 3. In these circumstances, the Crown submits that the effective sentence for all counts does not reflect the total criminality of the five offences.

19 The Crown submitted that where there are multiple offences the Court needs to strike a balance between the principle of totality and ensuring that an effective punishment is imposed for each individual sentence: see R v Wheeler [2000] NSWCCA 34 at [35]. The imposition of wholly concurrent sentences for a series of offences creates the perception that there is little difference between the effective penalty for one or two offences and the effective penalty for six or seven offences: see R vWebster [2005] NSWCCA 110 at [42].

20 The Crown submitted that the sentences of 4 years with a non-parole period of 3 years for each of Counts 1,2 and 4 were inadequate. The Crown referred to the guideline judgment in R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346. The Crown contended that a comparison between Henry and the present case highlighted the following three factors unfavourable to the respondent. First, the respondent was 40 years of age at the time of the offences and was therefore not a young offender. Secondly, it could not be said that the respondent had no or little criminal history having been convicted twice for armed robbery, among other things. Thirdly, the respondent did not plead guilty.

21 The Crown contended that these factors, when combined with the fact that there were three offences, which took place on three separate days, and involved three separate victims for which the respondent was given concurrent sentences, demonstrated that the sentences imposed were not only inadequate but manifestly so in their totality.

22 His Honour Nicholson DCJ referred to Henry in his remarks on sentence and, specifically, made the following comments at pars [48]–[50]: -

“[48] Indicia in this case does ( sic ) not compare favourably to the three of the eight criteria set out in Henry's case. Namely;

1. In Henry's case, young offender with little or no criminal history.

In this case the position is different on both scores;
iii. Limited degree of planning.

[49] Again, the planning here was carefully done and became, in fact, a modus operandi;

vii. Plea of guilty in Henry's case against the strong Crown case;

[50] In this case there was no plea of guilty".

23 His Honour then proceeded to impose sentences for the s 97 offences and made the following remarks at par [52] under the heading Sentences concurrent and cumulative:

"[52] In this case it is important that the assault with intent to rob plus wounding be recognised as the most serious of the offences with which I am dealing. That recognition is achieved by partly accumulating the sentence for that offence to the other three sentences. In respect of the three remaining offences of robbery the criminality associated with each is identical. The sentences for these three will be inflated to the degree that is necessary to take into account the question of totality of criminality as among those three. The question of totality as among the four is taken into account by the point at which accumulation commences."

24 In the Crown's submission, the sentence of 4 years consisting of a non-parole period of 3 years plus 1 year balance of term did not adequately reflect "the totality of criminality as among those three".

25 The Crown submissions make reference to the fact, correctly in my opinion, that his Honour's remarks on sentence were "very detailed". This included, but was not limited to, his Honour's recitation of the circumstances of the offences. In addition, his Honour dealt specifically and in terms with matters relevantly calling for his consideration including objective criminality, aggravating features, the effect of each of the robberies upon the victims as disclosed generally by the facts and specifically from victim impact statements, as well as subjective matters referable to the respondent, including his significant addiction to drugs. Importantly, at par [41] of his remarks on sentence, his Honour made the following comments in relation to contrition: -

"[41] There is nothing in the material before me suggesting any insight into or contrition for these offences. His case was that he was not the robber and had nothing to be contrite about or display insight into. It is certain from observing him that he is not contrite and feels no need to suggest he has any insight into anything related to these robberies."

26 His Honour found that the respondent's "rehabilitation prospects must be regarded as guarded”: see par [42]. His Honour set out in some considerable detail his reasons for forming this view. In doing so his Honour appears properly to have balanced both positive and negative considerations.

27 The Crown accepted that it was within the sentencing judges' discretion to conclude that sentences for similar matters should be dealt with concurrently. However, the Crown submitted, in that event, that the principle of totality should be taken into account in setting the individual sentences. In the respondent's case, according to this submission, that would mean that, having regard to the Henry guideline, the full term of the sentence should have been in excess of 5 years. The Crown supported this submission with references to R v Basha [2003] NSWCCA 36; (2003) 138 A Crim R 245 per Smart AJ at [97]–[100], R v Swadling [2004] NSWCCA 421 per Smart AJ at [69] and R v Cotter [2003] NSWCCA 273 per Hulme J. In particular, the Crown relied upon the remarks of Miles AJ (with whom Santow JA and James J agreed) in R v KM [2004] NSWCCA 65 at pars [55]–[56] as follows: -

"[55] … In particular, whilst the totality principle is familiar enough and applied commonly enough in favour of an offender in order to avoid an excessive or crushing punishment, it is not to be disregarded for the converse purpose of assessing whether the overall effect of the sentences is sufficient having regard to the usual principles of deterrence, rehabilitation and denunciation.

[56] In particular, when there is a series of offences, some committed on one victim, others committed on another victim, there is a special need to ensure that concurrency of sentence does not gloss over that feature, a point made by Hulme J in Cotter ."

28 Having obviously determined that the sentences for the three s 97 offences should be served concurrently, his Honour said, "The sentences for these three will be inflated" to take into account the principle of "totality as among those three". However, the Crown argues that his Honour did not explain why he then chose the bottom of the Henry range as the starting point in circumstances where he had already indicated that the relevant indicia in the present case did not compare favourably to three of the eight criteria set out in Henry's case.

29 In relation to the sentence for Count 3 the Crown re-emphasised that the standard non-parole period for an offence under s 98 is 7 years imprisonment. Given that the respondent did not plead guilty, and that he had a previous record of criminal offences including armed robbery, the Crown submitted that it was difficult to see any justification for not imposing something close to the standard non-parole period. The Crown referred to the well-known remarks of this Court dealing with the operation of the standard non-parole period scheme in Div 1A of the Crimes (Sentencing Procedure) Act 1999 in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at par [122]. The Crown submitted that it was clear that it was the intention of the legislature that the standard non-parole period should be applied in cases such as the present.

30 After a detailed review of the manner in which his Honour dealt with this offence in his remarks on sentence (see, for example, pars [11], [12], [33] and [52]), the Crown referred to pars [24] and [26] where his Honour made the following comments: -

"[24] In assessing the objective seriousness of the offence for the purpose of considering whether it reaches a mid range of seriousness I have had regard to it as though it stood alone. I paid no regard to its position in the sequence of offending conduct…

[26] Not without hesitation have I determined this offence falls below the mid range of seriousness. I do regard it as approaching a mid range…"

31 In relation to Count 5, the Crown argued that the head sentence of 4 years and 9 months was arguably less than the respondent should have received after a jury trial. However the Crown did not argue that the head sentence on its own was manifestly inadequate. Rather, the Crown argued that the degree of accumulation of the sentences imposed by his Honour Nicholson DCJ led to an overall manifestly inadequate sentence having regard to the total criminality involved.

32 His Honour Charteris DCJ also provided thorough and detailed remarks on sentence. In light of the fact that the sentencing exercise that he was required to undertake came soon after the respondent’s earlier sentences were imposed, it is important to have regard to what his Honour said in this regard. Some of those remarks are as follows: -

"The other matters were dealt with by Judge Nicholson, apparently on 8 December 2006, less than a week ago. His Honour imposed concurrent sentences of four years with a non-parole period of three years in respect of three of the robberies. Those sentences were to date from the offender's date of arrest, 18 June 2005. In relation to the other armed robbery which involved the aggravation of a wounding, his Honour imposed a four year minimum period with a two year additional period. That term was to start one year after the concurrent offences for the other three armed robberies. The effect of his Honour's sentencing has resulted in the offender receiving a total sentence of seven years with a non-parole period of five years to date from the date of his arrest on this subject offence.

*****

Taking into account all of those matters I consider a head sentence of four years and nine months is appropriate. I consider there should be some accumulation upon the sentences he is currently serving. I am persuaded that he should have the benefit of a special circumstances finding.

*****

Taking into account the sentence I am imposing and his pre-existing sentences, he will be serving a head sentence of eight years, with a non-parole period of five years and six months, with a parole period of two years and six months."

33 The Crown submitted that it was significant that the overall sentence did not include a non-parole period of 7 years, which is the standard non-parole period for the s 98 offence. The Crown contended that his Honour Nicholson DCJ had erred in determining that the offences with which he dealt were below the middle of the range and that his Honour Charteris DCJ also erred in only imposing an additional six months upon that existing non-parole period. In short, the Crown contended that the level of concurrency with the existing non-parole period was too high.

34 In R v Jones [2004] NSWCCA 432 Tobias JA said at [32]: -

"[32] . . . even if categorised as part of a series of offences or one bout of criminality, the victim of the subject offence was not a victim of the other offences and, therefore, it was necessary for the total sentence to reflect that fact and be sufficient having regard to the usual principles of deterrence, rehabilitation and denunciation."

35 However, his Honour said this at pages 8 and 9 of his remarks on sentence: -

"I formed the view that this offence and the offences in the previous seven days were related to his addiction to heroin and his need to obtain money so as to purchase drugs. I think, having regard to the conditions imposed upon his parole in the sentences imposed in 2001, that those offences were also influenced by his need for illicit drugs. It is well established that drug addiction does not provide an offender with an excuse. It does not mitigate his penalty to any extent. It may impact upon considerations of rehabilitation and release. It explains his behaviour, it does not excuse it."

Respondent’s submissions on appeal

36 It was submitted by the respondent that, with respect to Counts 1, 2 and 4, it was appropriate for his Honour Nicholson DCJ to impose sentences of the same length in relation to each offence and that, in accordance with the principles in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610, to determine whether there should be concurrency or accumulation.

37 The respondent also relied upon a passage from the judgment of Simpson J in R vHammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66 at 67: -

"I do not agree that for the sentencing judge to take into account, in considering questions of concurrence and accumulation, features that were common to the two conspiracy offences, denotes an invalid reasoning process. Whether or not to accumulate sentences imposed in relation to multiple offences is, in the end, an exercise of discretion to be made in accordance with established principle. Features common to two or more offences are all matters relevant to be taken into account (pointing towards concurrence) as are features indicating the disparate nature of the offences (pointing the other way)."



*****

"As a result of the decision of the High Court in Pearce … the question of whether to accumulate sentences for multiple offences has taken on a new dimension. Following Pearce , a judge is required to fix "an appropriate sentence" for each offence, before considering questions of accumulation, concurrence or totality. I take this to mean that, except perhaps in cases of multiple offences committed as part of a single discrete, episode of criminality, the sentence for an individual offence is to reflect the criminality involved in the offence untainted by reference to the other offences for which that offender is to be sentenced".

38 The respondent submitted that the offences before his Honour had many features in common and were committed as part of a discrete episode of criminality. It was therefore open to his Honour to determine that there should be a high degree of concurrency. Moreover, the respondent observed that it has long been recognised that the totality principle enables a judge who is sentencing an offender for a number of offences to mitigate what strict justice would otherwise indicate, and that sometimes the sentence imposed may even fail adequately to reflect the seriousness of the crimes: see Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 per McHugh J at 307-308 and Kirby J at 341.

39 The respondent submitted that it was well within his Honour’s discretion to determine that these three very similar offences, committed over a short period of time, should attract totally concurrent sentences. Moreover, the respondent submitted that, in circumstances where his Honour clearly intended to accumulate the sentence to be imposed for Count 3, his Honour was required, in accordance with the principle of totality, to modify the sentence to be imposed in respect of these counts. The respondent argued that the overall sentence imposed in respect of the four counts (a total sentence of 7 years with a non-parole period of 5 years) was well within an appropriate sentencing range.

40 With respect to the s 98 offence, the respondent submitted that his Honour was entitled to find that it did not fall within the mid-range of seriousness for such offences. His Honour had the benefit of seeing the commission of the offence as recorded on a CCTV camera; in those circumstances he was well placed personally to assess the gravity of the offence.

41 Finally, the respondent submitted that his Honour Charteris DCJ was entitled to find that the offence with which he was dealing was part of a discrete period of criminality committed at the same time as the earlier offences. In those circumstances his Honour was required to look at the principal of totality in determining the amount of the sentence that should be concurrent, and the amount that should be cumulative. The respondent submitted that, in accordance with that principle, it was well within his Honour’s sentencing discretion to impose a sentence structured in the way that it was.

Consideration

42 The five offences were committed over a period of six days. Two of them were committed on the same day. There was then a gap of two days before the final offence was committed. The offences in counts 1 to 4 inclusive did have certain features in common, although count 3 is arguably quite different from the others for obvious reasons. Count 5 is different from the other four, again for obvious reasons. At one level it would be possible to view all five offences as part of a single, discrete episode of criminality. This submission, however, draws more upon a consideration of certain subjective factors relating to the respondent than upon an objective assessment of the acts said to constitute the offences. I do not think that it would be appropriate to sentence the respondent as if the five offences were all part of a single, discrete episode.

43 There is no doubt that the imposition of both longer sentences and non-parole periods, the calculation of different ratios between the non-parole periods and the balances of term, and a significant extension of the overall effective sentence and non-parole period by the adoption of a different approach to concurrency and accumulation, may well all have withstood scrutiny on a severity appeal. It is the essence of the imperfect exercise of discretion that a range – often a widely discrepant range – of permissible results may be produced.

44 In the present case, that prospect has been enlarged by the unusual, although by no means unique, fact that the sentences complained of are the result of two separate exercises of discretion. In sentencing the respondent on count 5 his Honour Charteris DCJ adverted specifically in his remarks on sentence to the sentences by then already imposed upon the respondent upon the other counts. His Honour dealt with the matter as follows:

"I have formed the view that there must be an accumulation to reflect the criminal behaviour demonstrated in this offence. It does not seem to me an appropriate case to make a sentence concurrent with the existing sentences. The offence is a very serious one indeed; it carries a maximum penalty of twenty years imprisonment. There must be demonstrated, in accordance with the purposes of sentencing, a significant penalty so as to deter this offender and other like minded individuals from committing offences of this nature. I have not lost sight of the fact that there would have been an enormous shock occasioned to the victim by this offender's behaviour and it is in fact a very cowardly offence to select this young woman who was alone and vulnerable and confront her with a threat of violence by a knife. I have not lost sight of the fact, of course, that the offender was motivated by his need to address his drug addiction."

45 The Crown does not complain that these remarks are either inaccurate or inappropriate. The Crown’s concern is that both alone and in combination the sentences fail to reflect an adequate degree of accumulation with the result that the sentences for counts 3 and 5 in particular do not in practical terms recognise the sentiment that those remarks convey. These concerns are clearly reflected in the diagram set out below.

46 There is also a concern that any attempt to justify the sentences on the basis that they fall within the Henry guidelines simply does not withstand scrutiny. For example, there was no plea of guilty, the offender was not young without a criminal history and there was a not inconsiderable, if ultimately ineffective, degree of planning, particularly with respect to the first four counts. There was no expression of remorse. However, his Honour Nicholson DCJ expressly disavowed the relevance of Henry to the present case as not comparing favourably. His Honour Charteris DCJ also referred to the guideline judgment in order to distinguish it rather than to justify any part of the sentence he imposed.

47 In my opinion, the key to an understanding of the sentences imposed upon the respondent is to be found by having regard to the importance of the position of the sentencing judge. I refer to this in more detail below.

48 In R v Tortell and Tsegay [2007] NSWCCA 313, after referring to what was said by Wood CJ at CL in R v Wall [2002] NSWCCA 42 at par [70], I said:

"[52] In addition to these principles, I have had regard to the further restraint upon interference “given the strong resistance that exists against appellate ‘tinkering’ with sentences” identified in Dinsdale v The Queen (2000) 202 CLR 321 at par [62]. This modern reaffirmation of the special importance of the sentencing tribunal is undoubtedly traceable to a number of sources. They presumably include what was said by Sir Frederick Jordan in R v Geddes (1936) 36 SR (NSW) 554 at 556 as follows: -


'. . . I think that a Court of Criminal Appeal should intervene if the sentence appears to it to be out of reasonable proportion to the circumstances of the crime, having regard to the facts proved in evidence at the trial, but before the Court is satisfied that such an absence of due proportion exists, it should make the fullest allowance for the consideration that the trial judge has had an advantage denied to it, namely, that he has seen the witnesses, and, therefore, that he has had an opportunity of forming impressions which no perusal of cold print can afford. Unless some error in principle, or some such unreasonable disproportion, appears, I think that the case is not made out for revision of the sentence.'


[53] Earlier in the same case his Honour made the following comments: -


'The function of the criminal law being the protection of the community from crime, the judge should impose such punishment as, having regard to all the proved circumstances of the particular case, seems at the same time, to accord with the general moral sense of the community in relation to such a crime committed in such circumstances, and to be likely to be a sufficient deterrent both to the prisoner and to others. When the facts are such as to incline the judge to leniency, the prisoner’s record may be a strong factor in inducing him to act, or not to act, upon this inclination. Considerations as broad as these are, however, of little or no value in any given case. It is obviously a class of problem in solving which it is easier to see when a wrong principle has been applied than to lay down rules for solving particular cases, and in which the only golden rule is that there is no golden rule.'

[54] As I have said on other occasions, uncontroversially, the question of what is, and what is not, a proper sentence in any particular case is a matter upon which minds will invariably differ. For example, in R v Burns [2007] NSWCCA 228, I expressed the following opinion at par [36]: -

'[36] There is often a fine line between those cases in which a sentencing judge can be shown to have failed properly to exercise a discretion reposed in her or him, having regard to the relevant legislative constraints and current judicial guidance, on the one hand, and those cases in which the discretion has patently been exercised in a way that balances and accommodates all the manifold competing circumstances and influences, on the other hand. Views on sentencing outcomes will almost always vary, depending significantly, although not exclusively, upon the perspective of the commentator. There seems little doubt that some appropriate sentence of full-time imprisonment imposed upon the present respondent could have withstood appellate scrutiny. However, for the purposes of this Court, that is not to the point. In my opinion the sentences imposed upon the respondent by his Honour were wholly appropriate. That is also not to the point. The issue is whether or not his Honour's sentencing discretion was relevantly infected by error in such a way that it resulted in the imposition of sentences that are manifestly inadequate. In my opinion, no relevant error has been demonstrated and the sentences imposed upon the respondent are not manifestly inadequate'."

49 When he appeared for sentence the respondent was forty two years old. He was the older of two children. His mother, to whom he was close, died of cancer when he was aged twelve. His father dealt with the grief by immersing himself in work with two or three jobs at a time. The respondent felt an absence of being nurtured once his mother had passed on. The respondent never married although he had a girlfriend who overdosed on heroin. He was in a relationship for eight years but that ended in June 2005 because he was in custody in relation to the counts which are the subject of this appeal. The respondent is now apparently close to his father.

50 The respondent left school in year 10 at the age of sixteen. He struggled with his grades although he claims literacy. Until his mother died, he had performed reasonably well but lost motivation following her death. During his time in custody he has returned to education. He gained a forklift licence and completed a basic computer course. He has a certificate from TAFE attesting to an interest in, and completion of a portion of, a clothing production course during 2005. He has passed four units of that certificate. At the age of sixteen he commenced his working career as a storeman and packer. At seventeen he was a station assistant for the State Rail Authority. At nineteen he became a truckie's offsider. He then became a truck driver and followed that employment on and off for fifteen years. Since his mid-thirties he has not worked much, apart from some casual cleaning work and some work as a storeman. At the time of his arrest, his only income was from a Newstart allowance.

51 Each of the sentencing judges in this case was confronted with a relatively unusual exercise. The respondent was in his late twenties to early-thirties before he fell victim to a narcotic addiction that was indisputably at the heart of his crimes. That alone is sufficient to give pause for reflection upon how to approach the matter. There is also little doubt that the respondent was suffering from depression and had suffered from it since as early as his teens. That depression proved difficult to treat and there were several changes of anti-depressant medication. Despite all of this, the respondent acquired no relevant criminal history until 1999 at the age of 34. Finally, despite the seriousness of the charges and the undoubtedly distressing effect that these crimes had upon the respondent's immediate victims, the amounts that were stolen were small and relatively insignificant in the scheme of crimes of a like kind.

52 Assessed in terms of the classical criteria of punishment, deterrence, retribution and rehabilitation and having regard to principles of concurrence, accumulation and totality, it is not in my view inevitable that a total sentence of 8 years imprisonment with a non-parole period of 5 years and 6 months should, in the particular circumstances relating to the offences committed by the present respondent, be characterised as erroneously lenient. In my opinion, the sentences imposed by their Honours, whether considered separately or together, demonstrate an unexceptional exercise of the sentencing discretion. It is insufficient in order to establish error simply to suggest scope for differences of informed opinion. Appellate intervention with the total sentence, or any of its constituents, would in my opinion amount to an unwarranted and inappropriate interference with what in each case has been a careful, thorough and transparent sentencing exercise. Even without the understandable restraints upon interference in the case of a Crown appeal, I would not have considered the sentences to be manifestly inadequate.

Orders

53 In my opinion the appeal should be dismissed.

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