R v Henry

[1999] NSWCCA 107

Reported Decision:

New South Wales

Court of Criminal Appeal

CITATION:	REGINA v HENRY & BARBER [1999] NSWCCA 107
FILE NUMBER(S):	CCA 60559/98; 60558/98
HEARING DATE(S):	18/03/99-19/03/99
JUDGMENT DATE:	12 May 1999
PARTIES :	Paul Anthony HENRY Stephen Anthony BARBER
JUDGMENT OF:	Spigelman CJ at 1; Wood CJ at CL at 4; Newman J at 5; Hulme J at 6; Simpson J at 46

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/31/0416; 98/31/0291
LOWER COURT JUDICIAL OFFICER:	Johnston ADCJ

COUNSEL:	P J D Hamill (Henry) J S Stratton (Barber) P G Berman (Crown)
SOLICITORS:	Rummery Stewart (Henry) T A Murphy (Barber) R Gray (Crown)
CATCHWORDS:	CRIMINAL LAW; sentencing; armed robbery; robbery in company, s97(1) Crimes Act 1900; appropriate sentence; failure to give reasons for finding "special circumstances", s5(2) Sentencing Act 1989; commission of crime while on conditional liberty; totality of sentence
ACTS CITED:	Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW) Sentencing Act 1989 (NSW)
DECISION:	HENRY; Appeal allowed; Sentence restructure to provide, in each case, a total term of penal servitude of five and a half years consisting of a minimum term of three and a half years to commence on 2 May 1998 and an additional term of two years to commence on 2 November 2001; BARBER; Appeal allowed; Sentence restructured to retain total term of five years penal servitude consisting of a minimum term of three years to commence on 1 May 1998 and an additional term of two years to commence on 1 May 2001

- 39 -

IN THE COURT OF
CRIMINAL APPEAL

60559/98
60558/98

SPIGELMAN CJ
WOOD CJ at CL
NEWMAN J
HULME J
SIMPSON J

Wednesday 12 May 1999

REGINA v Paul Anthony HENRY
REGINA v Stephen Anthony BARBER

JUDGMENT

1 SPIGELMAN CJ: I have read in draft the judgments of Hulme J and Simpson J. I agree substantially with the reasons of Simpson J.
2 The qualification relates to her Honour’s reference to Barber’s criminal history and Henry’s second offence as justifying sentences “at the upper end of the range promulgated” in the Guideline Judgment. In my opinion these matters, together with allowances for the additional nine months sentence on Barber and the fact that the offences were committed when the offenders were on conditional liberty, would justify sentences above the 4-5 years indicated in the Guideline Judgment.
3 By reason of the application of the principle of double jeopardy in circumstances where this Court is imposing a substantial increase in the minimum term, I agree with the order proposed by Simpson J.

**********

IN THE COURT OF
CRIMINAL APPEAL

No. 60559/98
60558/98

SPIGELMAN CJ
WOOD CJ at CL
NEWMAN J
HULME J
SIMPSON J

Wednesday 12 May 1999

Regina v Paul Anthony HENRY
Regina v Stephen Anthony BARBER
JUDGMENT

4 WOOD CJ at CL: I have read in draft the judgments of Simpson J and of Hulme J. I agree with the orders proposed by Simpson J and with the reasons given therefor.

**********

IN THE COURT OF
CRIMINAL APPEAL

60559/98
60558/98

SPIGELMAN CJ
WOOD CJ at CL
NEWMAN J
HULME J
SIMPSON J

Wednesday 12 May 1999

REGINA v Paul Anthony HENRY
REGINA v Stephen Anthony BARBER

JUDGMENT

5 NEWMAN J: I agree with Simpson J.

**********

IN THE COURT OF
CRIMINAL APPEAL

No 60559 of 1998
No 60558 of 1998

SPIGELMAN CJ

WOOD CJ AT CL
NEWMAN J
HULME J

SIMPSON J
Wednesday 12 May 1999

REGINA v Paul Anthony HENRY
REGINA v Stephen Anthony BARBER
JUDGMENT

6 HULME J: On 21 August 1998 Paul Anthony Henry was sentenced by Acting Judge Johnston QC on two charges to which he had pleaded guilty, viz:-
(i) That on 18 March 1997 at about 8.30 pm at Tamworth, being armed with an offensive weapon, namely a knife, he robbed a console operator at a service station of some $775.00.

(ii) That on 1 May 1998 in company with Stephen Anthony Barber, Catherine Watson and Christine Hillhouse, he robbed a lone female shop assistant in charge of the North Tamworth General Store of some $810.00 and 8 packets of cigarettes.

7 In connection with the sentence on this last mentioned offence, Henry and the other offenders, to whom it will be necessary to refer, sought that a charge of self administration of heroin, purchased with part of the proceeds of the robbery, be taken into account. On each offence Henry was sentenced to penal servitude for a minimum term of 18 months, and an additional term of 4 years, such sentences to be served concurrently, the minimum terms to commence on 2 May 1998 when Henry went into custody.
8 The circumstances of the first of these offences, beyond those indicated by the charge, as recounted by the sentencing Judge were:-
“The prisoner entered the premises of the Mobil Service Station at … (and) confronted the console operator at the time who had just returned from the rear of the premises. The prisoner produced a filleting style wooden handled knife which was about 35cm in length. This was presented at the console operator and a demand was made that he open the cash registered. It is said that the prisoner held a knife to the skin of the operator but did not pierce the skin. The prisoner stood beside the console operator and instructed him against to open the cash register. The operator, who was in a panic and initially could not open the register but eventually he managed to open it. The prisoner then instructed the operator to get down on the floor and the prisoner removed $775.00 in cash from the register.

The prisoner then left the service station. Prior to leaving the service station the prisoner cut the telephone line.”

9 Henry was spoken to about the matter by police officers on 29 August 1997 and denied any knowledge of it. Nevertheless he was charged on that day and remained in custody until on or about 30 September 1997 when he was admitted to bail. During the course of his evidence before Johnstone ADCJ, Henry denied the console operator’s statement that he had touched the latter’s skin with the knife. On this topic His Honour made no finding beyond that quoted and accordingly this Court must approach the matter on the basis of Henry’s denial.
10 At the time of the second offence, Henry was living with Miss Watson. They were picked up by the other two offenders after which heroin was purchased and shared. All four then discussed the commission of an armed robbery and drove around Tamworth looking at premises with a view to committing such an offence. Three premises were inspected and rejected as unsuitable before the North Tamworth General Store was decided upon. In the words of the sentencing judge:-
“Barber and Henry left the vehicle and entered the store. Henry produced a long bladed carving knife from under his shirt. Henry approached the loan female shop assistant. He held the knife about 30cms from her and pointed towards her. Henry said “now get down and open the till”. As this was said Barber placed a blue and while pillow slip over his face… The loan female shop assistant then opened the till. Henry said “Get down so you don’t see us”. The shop assistant then sat on the floor and Henry said “No, get right down on the floor so you don’t see us”. Both Henry and Barber removed cash from the till which Henry placed into a Baker’s Delight material bag. Barber said to the shop assistant, “Stay down, don’t look at us, we won’t hurt you”. Henry then said to the victim, “Any fifties?”, the victim said “no, we use EFPTOS, we don’t have a lot of cash here.

The cigarettes were then taken and placed into the bag and both offenders ran from the shop. Later police attended Barber’s residence where they located the vehicle used in the robbery, the knife, money and some cigarettes. During this search Barber telephoned and spoke with the police. He offered to hand himself in and later did so.”
On the following morning, Miss Watson attended Tamworth police station where she handed herself in. A little later Henry was observed walking along a street, arrested and interviewed. He then made full and frank admissions.”

11 Johnstone ADCJ found that the shop assistant was fearful during the incident and “believed that she may be killed and was extremely upset.”
12 Henry was born in July 1973. A pre-sentence report records that there does not appear to be any significant features in his early life to account for his appearance in Court. His record reveals, inter alia, some minor offences in 1993 and 1995 and that in April 1996 he was convicted of possession of cannabis and possession of utensils for administration of a prohibited drug. In September 1996 he was convicted of two counts of stealing and nine of using a false instrument. In August 1997 he was convicted of possession and self administration of a prohibited drug and two offences associated with train travel. For none of these offences did Mr Henry receive a custodial sentence but for one of the stealing offences he was placed on a 2 year good behaviour recognisance under Section 558 of the Crimes Act.
13 Although Johnston ADCJ does not say so in terms, he seems to have accepted that the need to fund a heroin habit was a cause of both of the offences. He quoted from the pre-sentence report a statement that at the time of the second offence Henry was subject to some additional pressure arising from the fact that, consequent on his having renewed contact with Miss Watson, his parents were making application to have his bail revoked. His Honour also quoted from the report that:-
“Mr Henry now highlights the damage that drugs have caused in his life, but this insight is belated: during the period on bail supervision he consistently denied any problems with drug use or dependence.”
14 His Honour did not refer to another passage in the report that “in the long run, a period of parole supervision may be beneficial, but only if Mr Henry is prepared to be more honest in admitting to problems, and sincere about seeking change”. In the report it is also recorded that Henry initially pleaded not guilty to this charge, believing he could “beat it” - a view somewhat inconsistent with any significant degree of contrition being held at that stage.
15 Mr Barber was dealt with by Johnstone ADCJ for the same robbery in company offence as Mr Henry. In his case also the offence of self administration of heroin was taken into account. The sentence imposed was a minimum term of 15 months penal servitude from 1 May 1998 when he went into custody with an additional term of 3 years and 9 months.
16 Mr Barber was born in August 1978. On 13 July 1992, he was convicted of possessing an unlicensed firearm and a shortened firearm, of breaking, entering and stealing and being armed with intent to commit an indictable offence. Inter alia, a 3 month control order was imposed. In November 1993, he was convicted of breaking, entering and stealing and another control order was imposed. In December 1995 he was convicted of a charge of stealing a conveyance for which he was sentenced to a 6 months control order.
17 In August 1997 Barber was dealt with in the Tamworth Local Court for a number of matters. These included being carried in a conveyance without consent, having a mid range PCA, and breaking, entering and stealing. On the latter offence he had been sentenced to minimum and additional terms of 9 and 3 months imprisonment. He appealed but before Johnstone ADCJ the appeal was abandoned and his Honour directed that the sentence commence on 1 May 1998. The offence of being carried in a conveyance without consent had been the subject of an appeal leading to Mr Barber being placed on a 2 year recognisance current at the time of his commission of the robbery. For breach of this recognisance, Johnstone ADCJ sentenced him to a fixed term of imprisonment for 6 months to date from 1 May 1998.
18 His Honour quoted, and it may be inferred accepted, statements in a pre-sentence report relating to Mr Barber. It is sufficient for present purposes to record that he had been raised in an unstable family environment, had little experience in the work-force, had in the past found imprisonment difficult and during past time in custody mutilated his arms and more recently made threats of self harm. He had a long standing problem with substance abuse, more recently heroin but despite awareness that these were common ingredients in his recidivism, had repeatedly failed to attend for counselling at the local drug and alcohol unit.
19 Because reliance was placed by one or other party on some other findings and decisions of His Honour, these should be referred to. Miss Watson was sentence to penal servitude for 9 months with an additional term of 2 years, 3 months in respect of the offence committed on 1 May 1998. The evidence before this Court concerning Miss Watson was limited, although it appears she also was addicted to heroin, had previously made some attempts at rehabilitation and had a criminal record which included cultivation of a prohibited drug, larceny and two other dishonesty charges, harbouring an escaped prisoner, and breaches of recognisance.
20 The fourth offender involved in the events of 1 May, Christine Hillhouse had no prior convictions but had a history of cannabis and heroin use. Prior to the proceedings before his Honour she had attended a drug and alcohol unit and the counsellor there had indicated that further intervention was not indicated. His Honour’s Reasons record that he took into account “matters” on a Form 1, although apart from that common to all offenders involved with the incident of 1 May, there is no information concerning these. She was sentenced to 400 hours community service.
21 Johnstone ADCJ recorded that all prisoners had expressed an intention of pursuing a program of drug rehabilitation and he believed that Henry, Watson and Hillhouse had made genuine expressions of remorse and contrition and that Barber also had expressed the same. His Honour also observed:-
“I have structured the sentences to take into account the objective gravity of the offences together with the many subjective features identified in the evidence. I believe there are special circumstances within the criteria of S5(2) of the Sentencing Act which I will factor into the sentence.”
22 He had previously remarked that the offenders were young and had pleaded guilty and that Barber had been placed in protective custody because he had identified his co-offenders.
23 In attempting to support the sentence imposed by His Honour counsel for Messrs Henry and Barber pointed out that His Honour had quoted the remarks of Mahony JA in R v Latouf (unreported, CCA, 12 December 1996) that:-
“There is a public interest in the adoption and articulation of a general sentencing principle which will deter the commission of serious crimes and punish those who commit it. However, there are other interests to which the sentencing process must seek to achieve. Most importantly, justice in the individual case. To see the sentencing process as involving no more than stern punishment for each offender is not merely simplistic it damages the public interest.”
Further,
“It is recognised that imprisonment may convert a person who will not be a persistent criminal into one who is. It would be wrong not to attempt the rehabilitation of such a person.”
24 It was pointed out also that Mr Henry was young, had no prior convictions for offences of violence, and had not previously been sentenced to imprisonment, either periodic or full time. In the case of Barber, attention was directed to, inter alia, his youth, that he had surrendered himself to police, made full and frank admissions and identified his co-offenders with the consequence that he was and probably would remain in protective custody, that in an interview shortly after his arrest he said he was sorry for participating in the robbery and wishes he had never met Mr Henry and his girlfriend. These remarks, together with his plea of guilty were, it was submitted, indications of remorse and contrition.
25 It is clear from His Honour’s reference to R v Latouf and statements made to the Crown during the course of argument that he placed a great deal of weight on rehabilitation. Furthermore, during that argument His Honour had foreshadowed that he was disposed to find special circumstances. Counsel for the Crown agreed that these existed and suggested the matter could be dealt with by “an additional term of some length with conditions”.
26 Against this background I return to the situation of Mr Henry. It may be accepted that , although he had prior convictions, his criminal record was not a bad one. He pleaded guilty and gave evidence and His Honour was entitled to find that he had made genuine expressions of remorse and contrition. Furthermore, he had given evidence of working and being drug free for some period between his two offences. On the other hand, His Honour made no positive findings in this regard and the pre-sentence report indicated rehabilitation was by no means a forgone conclusion. Experience shows that there is large step between good intentions and success in this regard and while there was material which could support the conclusion that prospects of his rehabilitation may be better than average, there was nothing to suggest they were particularly high.
27 In light of the subjective matters to which reference has been made and of the concessions made by the Crown as to the existence of special circumstances, it was appropriate for Acting Judge Johnstone to sentence upon the basis that special circumstances did exist. That said, His Honour erred in not identifying the matters which he regarded as being or establishing the existence of special circumstances - R v McDonald (unreported, CCA, 12 October 1988).
28 Furthermore, it is my clear view that His Honour allowed the subjective matters and the desirability, whatever the prospects, of rehabilitation to overshadow the objective circumstances of the case. Mr Henry was involved in two discrete offences well separated in time. He committed the first while on a recognisance. He committed the second while still on that recognisance and on bail in respect of the first offence. The law is clear that an offender who commits serious crimes whilst on conditional liberty is liable to a marked aggravation of penalty. As was said in R v Richards (1981) 2 NSWLR 464 at 465:-
“The community must be protected as far as possible from further criminal activities by persons who take advantage of their liberty on bail to commit further crimes. The only means open to the criminal courts to seek to provide this protection is to pass severely deterrent sentences upon those who thus abuse their freedom on bail.”
29 See also R v Vranic (unreported, CCA, 7 May 1991), R v Rafter (unreported, CCA, 23 September 1994.), R v McMahon (unreported, CCA, 4 April 1996).
30 Concurrent sentences each with minimum and additional terms of 18 months and 4 years penal servitude were a wholly inadequate response to this criminality.
31 In light of the fact that Henry was on conditional liberty at the time of the offences, the minimum penalty which should have been imposed had but one offence been committed was penal servitude for 5 years, including a minimum term of 3 years. The selection of those periods reflects particularly the fact that Henry was not entitled to be treated as someone offending for the first time but also the Crown’s concession and the fact that this would be Henry’s first time in prison. Clearly the second offence required that the sentence which would have been appropriate had only one offence been committed be increased. The principle of totality must come into play although there is something to be said for the view that, even apart from the fact he was also on bail, Henry’s criminality in allowing himself to commit, or fall into the situation where he was tempted to commit, the second offence, makes his criminality in respect of that offence worse than it was in respect of the first. For the two offences not less than a total period of penal servitude of 7 years with a minimum term of 5 years should have been imposed.
32 Division of the total periods into minimum and additional terms as set out in the preceding paragraph sufficiently reflects the suggestion of Counsel who appeared for the Crown before Johnstone ADCJ that the additional term might be “of some length”.
33 So far as Barber is concerned, there is nothing to suggest that the 9 and 3 months terms previously imposed for breaking, entering, and stealing were excessive. His criminal history certainly indicates that the time had arrived for him to be given a full custodial sentence.
34 The offence of robbery in company was committed while he was on a recognisance. For the breach of recognisance he was given a concurrent sentence and, although there is nothing inherently wrong in that, it meant that the increased criminality had to be reflected in the sentence imposed on the robbery charge. No double punishment is involved. That imposed for breach of the recognisance was in respect of the offence in relation to which the recognisance was granted. The terms imposed hardly reflect that increased criminality and His Honour’s decision to make the sentence for armed robbery (15 months minimum and 5 years total terms) concurrent with the sentence imposed on the breaking, entering and stealing offence, meant that the effective minimum and total terms imposed for the robbery offence were 6 months and 4¼ years. Consistently with the remarks made above concerning the minimum sentence which should have been imposed on Henry, particularly once account is taken of the fact that he, as was Barber, was on conditional liberty, these terms are prima facie inadequate, the minimum term grossly so.
35 And there was little to justify these departures. Police presence and discoveries at Barber’s residence prior to his telephoning on the afternoon of the offence mean that his surrendering himself to police and admitting his involvement in the offence are not entitled to much weight. Barber did not give evidence and the statements in his interview with police to the effect that he was “sorry for it” do not justify a conclusion that he experienced any significant remorse or contrition for committing the offence (as distinct from being caught). Many of the statements which I have quoted from Mr Barber’s pre-sentence report provide him with no assistance in any claim for a lesser rather than a greater penalty.
36 The only significant matters which distinguish Barber’s situation are that he apparently named his co-offenders and it seems that in consequence he will serve his imprisonment in protective custody and, secondly, that imprisonment seems likely to operate more harshly on him than generally. However these are not sufficient to avoid the conclusion that, considered in totality, the sentence imposed on Barber was manifestly inadequate.
37 In light of that naming of his co-offenders and the discretion the Court has in the case of Crown appeals, , it is appropriate for this Court to decline to interfere with the total term. The minimum term must be increased substantially. This should be to 3 years. The sentence should be allowed to run concurrently with the minimum term of the 9 month sentence, yielding an effective minimum term for the robbery in company offence of 2 years and 3 months. The reduction implicit in this term is sufficient to take account of the extra difficulties to which Barber is subject in prison. Again the 2 year balance of the additional term is sufficiently long to meet the Crown’s concession and the circumstances justifying a longer than usual additional term.
38 In the case of both Henry and Barber, the special circumstances justifying the imposition of an additional term longer than one third of the minimum term are the fact that neither had previously served a term of imprisonment, in the case of Henry that the second sentence has been made cumulative on the first and, in the case of Barber, that part of his sentence will be served in protective custody. So far as the sentence of this Court is concerned, one may add the Crown’s concession before the sentencing judge.
39 The sentences which I have indicated for Barber and Henry bear a reasonable proportionality to one another. It was argued that any interference by this Court would breach the parity principle once account was taken of the sentences imposed on Miss Hillhouse and Miss Watson against whose sentences the Crown did not appeal. It is not obvious that this Court has before it all of the information which would be necessary to form a concluded view on that topic for example, pre-sentence reports. In any event the sentences imposed on Messrs Barber and Henry are in the Court’s view so inadequate that they must not be allowed to stand - see R v Steele (unreported, CCA, 17 April 1997 and the authorities cited by Hulme J in R v Reardon (unreported, CCA, 19.8.96).
40 In accordance with s29A of the Criminal Procedure Act, I have not, in fixing these sentences, taken account of the evidence put before the Court by the Crown which was not before Johnston ADCJ. I have however had regard to the numerous statements made by the Court over a number of years prior to the imposition of sentences on Henry and Barber to the effect that “the range of sentences imposed for armed robberies, particularly serious ones, should be more deterrent than those which in fact are being imposed by the sentencing judges” - R v Waldron (unreported, CCA, 3 March 1994). Such statements are to be found in, for example, R v Flack (unreported, CCA, 12 December 1989); R v Petrinovic (unreported, CCA, 18 September 1990), and R v Vu (unreported, CCA, 11 November 1993).
41 This Court in Vu (unreported, CCA, 11 November 1993) took the view that the respondent in that case was entitled to be re-sentenced according to the range of sentences which existed at the time of his offence (some time before 20 April 1989). Whether that approach be correct or not, the law at the time of the commission of the offences with which this Court is presently concerned included the statements to which reference has just been made.
42 In this regard it may be noted also that the total and minimum terms of 5 years which have been referred to for one offence accord closely with the observations of this Court in Bragias (unreported CCA, 12 March 1997) where this Court allowed a Crown appeal and, after taking account of 9 months previously served in custody, imposed a sentence consisting of penal servitude for a minimum term of 2¼ years and an additional term of 2 years on one of two robbers who, carrying guns, entered a restaurant at Mosman and held up three members of the staff. Two under threat of the weapons were required to lie on the floor and the manageress taken to where the till was emptied and required to open a safe. The staff were bound and over $5,000 was taken. Grove J recorded that the sentence imposed was towards the lower end of the appropriate range. Sheller JA seems to have regarded it as the least sentence that could reasonably have been imposed at first instance. Simpson J agreed with their Honours’ conclusion.
43 It may be accepted that $5,000 is substantially in excess of the amount in either of the robberies with which Henry was concerned and that there were three victims. However Bragias had no prior convictions and was not on a recognisance at the time of his offence.
44 It should be recorded also that there was put before this Court on behalf of both Henry and Barber, some evidence as to their progress since being sentenced. The Court has taken note of it but it does not suggest any significant change in their situation beyond that which might have been anticipated at the time of sentence. The evidence does not merit any additional downward adjustment in their sentence.
45 The orders of the Court should be:-
In the case of Mr Henry:-
(i) The sentences imposed by Johnston ADCJ on 21 August 1998 are quashed.

(ii) In respect of each offence then dealt with, the Respondent is sentenced to penal servitude for a minimum term of 5 years, commencing on 2 May 1998 and terminating on 1 May 2003 with an additional term of 2 years commencing on 2 May 2003 and terminating on 1 May 2005.
(iii) The Respondent will be eligible for parole on 2 May 2003.

In the case of Mr Barber:-
(i) The sentence imposed by Johnston ADCJ on 21 August 1998 in respect of the charge of robbery in company on 1 May 1998 is quashed.

(ii) In lieu thereof the Respondent is sentenced to penal servitude for a minimum term of 3 years commencing on 1 May 1998 and terminating on 30 April 2001 with an additional term of 2 years commencing on 1 May 2001 and terminating on 30 April 2003.

(iii) The sentence referred to in order 2 hereof is to be served concurrently with the other sentences imposed on 21 August 1998.

(iii) The Respondent will be eligible for parole on 1 May 2001.

IN THE COURT
OF CRIMINAL APPEAL

60559/98

60558/98

SPIGELMAN CJ
WOOD CJ at CL
NEWMAN J
HULME J
SIMPSON J

Wednesday 12 May 1999

REGINA Paul Anthony HENRY
REGINA v Stephen Anthony BARBER

Judgment

SIMPSON J:
46 On 18 August 1998 the respondent Paul Anthony Henry pleaded guilty in the District Court in Tamworth to a charge of armed robbery and to a charge of robbery in company. Each charge was brought under s 97(1) of the Crimes Act 1900 and carries a maximum penalty of penal servitude for twenty years. In addition Henry asked that an offence of self administration of heroin be taken into account pursuant to s 21 of the Criminal Procedure Act 1986.
47 On each count Johnston ADCJ sentenced him to a total term of penal servitude for five and a half years which he divided into a minimum term of eighteen months and an additional term of four years. The Crown has appealed the sentences, asserting that they are manifestly inadequate.
48 On the same date Stephen Anthony Barber pleaded guilty to a single charge of robbery in company. This was the same robbery as that to which Henry pleaded guilty. Barber asked that one count of self administration of heroin be taken into account. Johnston ADCJ sentenced him to a total term of penal servitude for five years divided into a minimum term of one year and three months, and an additional term of three years and nine months. The Crown has appealed that sentence, on the same basis.
49 The facts of the offences are set out in the judgment of Hulme J, which I have read in draft, and need not here be restated in any detail. It is sufficient to say that Henry’s first offence was committed during the evening of 18 March 1997 when he entered a service station in Tamworth. He produced what was described as a filleting style wooden handled knife, about 35 cm in length, and ordered the console operator to open the cash register, threatening him with the knife. The operator was plainly very frightened. Henry ordered him to get onto the floor, and then removed $775 in cash from the cash register. Before leaving the service station he cut the telephone line.
50 He was charged with this offence on 28 July 1997 and was released on conditional bail on 30 September. He remained subject to the conditions of that bail up to and including the date of the jointly committed offence.
51 That offence was committed on 1 May 1998. During that afternoon the two men, with their female partners, agreed to commit an armed robbery. In a borrowed motor vehicle they drove to a number of small commercial premises, seeking a suitable one for the robbery. They settled on a general store in Tamworth. The two women remained in the car while the two men entered the store. Henry produced a long bladed carving knife, approached the lone female shop assistant, and, holding the knife about 30 cm from her, pointed it at her and told her to open the till. He had socks on his hands and in the course of the robbery he attempted to conceal his face. He told the shop assistant to get down on the floor, which she did, and the two men removed money amounting to $810 from the till. They then took some cigarettes and ran from the shop to the car and drove away.
52 Later the same day, police searched Barber’s residence in his absence. He telephoned his home during the course of this search and, shortly after, surrendered himself. Henry was arrested the following day in a nearby town.
Paul Anthony Henry
53 Henry was born on 16 July 1973. He was twenty-three years of age at the date of the first offence, twenty-five when sentenced. He was first before the courts in July 1993, aged twenty, for motor vehicle and trespass offences, in relation to each of which he was fined. Thereafter he had a series of convictions, for malicious damage and drug and dishonesty offences. He has never previously served a term of imprisonment. Significantly, on 24 September 1996, in relation to a conviction for stealing, he was released on a recognisance to be of good behaviour for two years. The recognisance was current at the time of both the present offences. It is an aggravating feature that both of these offences were committed while he was on conditional liberty, the second being committed while he was also on bail in respect of the armed robbery charge.
54 Henry gave evidence in the sentencing proceedings, which I take to have been generally accepted by his Honour as truthful. He said that he had been a regular but casual user of marijuana and had been introduced to heroin in about 1995 (at the age of twenty-one or twenty-two) and had become addicted, with the result that eventually he lost his employment. He had made some attempts to overcome his addiction but without success. His partner also used heroin and the two of them spent the whole of their income on the drug. After the first robbery they separated and Henry went to Newcastle, where he was able to remain free of drugs, except alcohol, until, on a later visit to Sydney, he again succumbed.
55 He expressed regret for his involvement and some understanding of the effects of his crimes on the victims.
56 A pre-sentence report was in evidence but added little to what has already been stated, except that, in contrast to many of the offenders who appear in these courts, his developmental history and early family life were described as uneventful and without significant features that might explain his criminal behaviour. The author of the report noted the relationship with his partner and the apparently deleterious effect it had on Henry. Of further concern is the opinion of the officer who wrote the report that supervision is likely to be beneficial only if Henry becomes more honest in addressing his problems, and sincere about seeking change. His earlier denials of drug use or drug dependence gave no cause for optimism about rehabilitation.
Stephen Anthony Barber
57 Barber was born on 22 August 1978. He was nineteen years of age at the time of his offence. He did not give evidence in the sentencing proceedings. He had a record which commenced in July 1992, when he was not quite fourteen years of age, with an offence of stealing a motor vehicle, and a series of firearms offences. Thereafter there were dishonesty and motor vehicle offences.
58 On 29 August 1997 he appeared before the Tamworth Local Court on four charges. The first was a charge of driving whilst unlicensed, in respect of which he was fined $500. The second was a charge of driving with the prescribed concentration of alcohol in his blood, in relation to which he was sentenced to a fixed term of imprisonment for three months. The third was a charge of break enter and steal, in respect of which he was sentenced to a minimum term of nine months and an additional term of three months. The fourth was a charge of being carried in a conveyance without consent, in relation to which he was sentenced to a fixed term of six months. He appealed the sentences imposed on the third and fourth of these charges. On 8 December 1997, on the fourth charge, the sentence imposed was quashed and, in lieu thereof, he was placed on a recognisance to be of good behaviour for a period of two years. He was, therefore, subject to this recognisance at the time of the present offence.
59 His appeal in relation to the third charge, that of break enter and steal, was listed before Johnston ADCJ at the time his Honour was sentencing for the present offence. The appeal was withdrawn and dismissed, the sentence of nine months was confirmed and specified to date from 1 May 1998, the date he was taken into custody for to the present matter. The existence of that sentence is important in considering the overall effect of the sentence imposed by Johnston ADCJ.
60 In May 1998, on a charge of breaching a Community Service Order, he was sentenced to a fixed term of imprisonment for one month. Barber has had the opportunity of supervision by the Probation and Parole Service in 1994, 1996, and 1997. Prior to that he had been subject to the supervision of juvenile justice authorities on a number of occasions.
61 A pre-sentence report was in evidence. The author of the report recorded that Barber had had “a difficult passage through life”, having been raised in an unstable family environment characterised by relationship breakdowns, alcohol induced domestic violence, and the absence of any supportive or steadying paternal influence. His maternal grandparents had assumed some responsibility for raising him. He had truanted from school. The officer who wrote the report considered his literacy and numeracy skills to be “unsophisticated”. He had had little experience in the work force. During one period in custody he had mutilated his arms, and had subsequently made threats of self harm when it appeared that, following a charge of breach of a Community Service Order, he might return to gaol. He had, however, failed to act on advice to seek counselling. He was in custody on protection at the time the report was written, and at the time of sentencing. This appears to have been because of perceived threats from other prisoners.
62 He was reported to have had long standing problems with drugs, notably alcohol and cannabis in early teenage years, and heroin more recently.
63 The officer reported that Barber rejected the notion that the victim of the offence would have been in any way traumatised, suggesting, instead, that he and Henry had behaved with restraint by not physically injuring her, and discounting the prospect of any emotional damage she may have sustained.
64 The officer wrote:
“Whilst he now claims that the prospect of fatherhood has given him the incentive to change the direction of his life, such promises have been made in the past and have been transitory. Until Mr Barber is prepared to make a sincere and sustained attitudinal change, drug and alcohol abuse seems likely to contribute to ongoing problems with his lifestyle, relationships and offending.”

The Remarks on Sentence

65 Johnston ADCJ had before him all offenders, including the female partners of the present two respondents. He recited the facts of the offences, and the subjective features. He observed that Henry was on bail on the charge of armed robbery when he committed the second offence, but made no mention of the recognisance which was current at the time of both offences. He recognised that Barber was subject to a recognisance at the time he committed the offence, and that this was an aggravating feature. He quoted extensively his pre-sentence report.
66 He accepted Henry’s evidence of contrition and remorse, and said that he believed Barber “in his own way” had also expressed remorse and contrition. He noted that Barber, with the two female participants, had surrendered himself to police, although he also recognised that their eventual arrest was inevitable. He acknowledged the pleas of guilty in each case, and said that he was conscious that all were young offenders facing the prospect of imprisonment.
67 He made express reference to the judgment of Mahoney ACJ in R v Lattouf, unreported, NSWCCA, 12 December 1996, emphasising the importance in the sentencing process of achieving justice in any individual case, and he quoted the following passage, which bears repeating:
“It is recognised that imprisonment may convert a person who will not be a persistent criminal into one who is. It would be wrong not to attempt the rehabilitation of such a person.”
68 He said he had structured the sentences to take account of the objective gravity of the offences together with the many subjective features identified in the evidence.
69 He found that there were special circumstances within s 5(2) of the Sentencing Act 1989 which justified his departure in each case from the statutory ratio otherwise provided for by that Act.
The Crown Appeal
70 The Crown asserts that a number of errors affected the sentencing process. Firstly, it argued, his Honour failed to comply with s 5(3) of the Sentencing Act 1989. S 5(2) of the Act precludes the imposition of an additional term that exceeds one third of the minimum term unless the court decides there are special circumstances. S 5(3) requires a court that does set an additional term that exceeds the s 5(2) proportion to state the reason for that decision.
71 Sentencing the respondents, his Honour made a global finding of special circumstances, applicable to all four offenders who were before him. He merely stated the finding without identifying any such circumstances in relation to any of the offenders. Failure to state the reasons for the finding constitutes error of law: R v McDonald, unreported, NSW CCA, 12 October 1998.
72 The fact that such an error has been made does not necessarily require that the finding be set aside. What is necessary in the absence of reasons explaining the finding is that this court itself consider, in relation to each of the present respondents, whether the finding can or should be sustained.
73 In each case there was ample material to justify the finding of special circumstances. Both were young men, Barber only twenty years of age. He had not previously served any lengthy period of imprisonment. Henry was twenty-five years of age, and had not previously been in prison at all. Both were drug addicted, and did not appear to appreciate the seriousness of the offences. Each will require substantial supervision and assistance on his release if he is to be rehabilitated and avoid continued criminality and return to custody. Barber, in particular, will benefit from and need quite intensive supervision.
74 Accordingly, notwithstanding non compliance with s 5(3), I would not disturb the finding of special circumstances in either case.
75 The Crown next argued that the application of the finding of special circumstances resulted, in each case, in the imposition of a minimum term that was manifestly inadequate. I think this is plainly correct.
76 A sentencing judge, having found special circumstances, has a good deal of room to move in the structure of the sentence to be imposed. However, the discretion conferred by s 5(2) should always be exercised with one eye on the relevant minimum term, which must be such as properly to reflect the objective gravity of the crime for which it is imposed, taking into account the subjective features: see R v Power (1974) 131 CLR 623; R v Morrissey, unreported, NSW CCA, 15 July 1994; R v McDonald, unreported, NSW CCA 12 October 1998. A sentencing judge who varies the statutory proportions in favour of a lengthier additional term needs to take care to ensure that the minimum term is no lower than that which is commensurate with the objective gravity of the crime.
77 The sentences imposed were disproportionately weighted in favour of the additional term at the expense of a minimum term which properly recognises the seriousness of the offences. It may reasonably be inferred that, in imposing such lengthy additional terms, his Honour had in mind the prospect of supervision of each of the respondents while at liberty on parole. His intention in that regard would be frustrated by the provisions of clause 10A of the Sentencing (General) Regulation 1996, which precludes a parole order containing a term or condition requiring supervision for a period of more than three years after the date of release.
78 In my opinion the minimum terms of fifteen months and eighteen months imposed respectively on Barber and Henry fail to reflect the objective gravity of their conduct. In this respect the s 5(2) discretion miscarried.
79 Moreover, once Barber’s appeal against the sentence previously imposed for breaking, entering and stealing was withdrawn and dismissed, he was already serving a sentence of nine months dating from 1 May 1998. The present sentence was specified to commence on the same date. The consequence is that the additional period of imprisonment which he would serve solely referable to this offence is even further reduced, to a minimum term of six months. This is plainly inadequate. The penalty imposed had to, but did not, take into account the currency of the earlier sentence and allow for a proper further period for this offence. Error has been demonstrated in this respect.
80 A similar complaint was made in relation to Henry, who was being sentenced for two quite unrelated, but similar in kind, offences committed fourteen months apart. Accordingly, the Crown argued, cumulative sentences would have been appropriate to demonstrate that Henry had been adequately punished for each of his offences. In my opinion there is merit in this complaint, although imposition of wholly cumulative sentences raises the issue of totality.
81 A further complaint made by the Crown concerns the finding that “in his own way” Barber had expressed contrition and remorse. Barber did not give evidence, and the only real material before his Honour relevant to sentencing in this respect was contained in the pre-sentence report. That report did not, in my view, permit any such finding. The author of the report observed that Barber rejected the notion that the victim might have been traumatised, and, indeed, thought that he and Henry behaved with restraint by not physically injuring the victim. In the absence of evidence of any kind from Barber himself, there was no other material from which his Honour could, reasonably, have concluded that he had expressed any remorse or contrition.
82 The Crown pointed to aggravating features involved in each offence. Each was committed whilst the offender was conditionally at liberty; an employee was alone on the premises; a knife was used; and the joint offence had been planned to the extent that four offenders had armed themselves and checked out a number of retail premises before eventually settling on the store.
83 These are all factors which were required to be taken into account. Some, but not all, were mentioned by his Honour in his remarks on sentence. I would not infer, from the omission of those which are not mentioned, that they were overlooked. They were plainly before his Honour.
84 The Crown has argued that, having regard to all the circumstances, the total term imposed in each case was manifestly inadequate. I am not persuaded that this is so, and this view is strengthened by reference to paragraphs 164 to 167 of the Guideline Judgment (R v Henry, R v Barber, R v Tran, R v Silver, R v Tsoukatos, R v Kyroglou, R v Jenkins) to be delivered concurrently with this judgment, and with which in this respect I agree. The present respondents substantially fall within the seven identified characteristics in respect of which the guideline is published; Barber’s rather more serious criminal history, and Henry’s second offence justify sentences at the upper end of the range promulgated. The Guideline Judgment satisfies me that my original conclusion, that the total terms were not manifestly inadequate, is correct.
85 It is in the division of the sentences into minimum and additional terms that error has been shown. That means that this court must restructure the sentences.
86 This was no easy sentencing exercise. Re-sentencing is no simpler. In accordance with the statement of principle of the High Court in R v Pearce [1998] HC 57, (delivery of judgment in which post-dated the sentencing in these cases) it is necessary that an appropriate sentence in respect of each offence be fixed, before questions of accumulation or concurrence, and totality, are considered. In my view, while this applies most clearly in Henry’s case, because he is to be sentenced for two offences, it is equally applicable to the sentencing of Barber, having in mind the nine months’ sentence imposed for an unrelated offence to commence on the same day.
87 Application of the Pearce principle exposes a complication in Henry’s sentencing. For his first offence, in my opinion, and in conformity with the Guideline Judgment, a proper total sentence would be one of five years. Having regard to the first offence, it would be appropriate to sentence more severely for the second offence, and the sentence of five and a half years imposed at first instance is a perfectly proper one. This would give due recognition to the need, referred to by Hulme J, to demonstrate that there is an identifiable additional penalty imposed in relation to the second offence and quell any lingering suspicion that the second offence goes unpunished. But to accumulate sentences of that order would grossly offend the principle of totality. The Crown submission that cumulative sentences would have been appropriate, and which I earlier said I considered had merit (para 35), comes into direct collision with the principle of the totality and must, for that reason, be rejected. Accumulation would result in injustice. Having regard to the five and a half years imposed on the first count, any lengthier term for the second would also result in injustice. The same reasoning applies to the Crown’s argument, which otherwise would have equal merit, that Barber’s sentence should have been made cumulative on the sentence of nine months for break, enter and steal.
88 Henry’s sentences should be restructured to provide, in each case, for a total term of penal servitude for five and a half years, made up of a minimum term of three and a half years to commence on 2 May 1998 and expire on 1 November 2001, and an additional term of two years to commence on 2 November 2001 and expire on 1 November 2003.
89 Barber’s sentence should be restructured so as to retain the total term of five years, but that sentence should be divided into a minimum term of three years to commence on 1 May 1998 and expire on 30 April 2001, and an additional term of two years to commence on 1 May 2001 and expire on 30 April 2003.

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