R v Hetherington

[2016] NSWCCA 165

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Hetherington [2016] NSWCCA 165
Hearing dates:	1 August 2016
Decision date:	22 August 2016
Before:	Hoeben CJ at CL at [1] Button J at [2] N Adams J at [105]
Decision:	(1) Appeal allowed. (2) The sentence imposed in the District Court on 6 May 2016 is quashed. (3) The respondent, Paul Hetherington, is sentenced to a non-parole period of 1 year and 6 months to date from 6 May 2016. That will be followed by a parole period of 1 year and 6 months, which will expire on 5 May 2019.
Catchwords:	CRIMINAL LAW – Crown appeal against sentence – armed robbery with a dangerous weapon – handgun – whether objective gravity of offence was at the lower end of the range of seriousness – whether the sentencing judge erred in use of sentencing statistics and comparable cases – whether it was open to find exceptional circumstances – whether sentence was manifestly inadequate – appeal allowed – respondent resentenced
Legislation Cited:	Crimes Act 1900 (NSW), ss 94, 97(1), 97(2) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 50(1) Firearms Act 1996 (NSW), ss 4, 4D Weapons Prohibition Act 1998 (NSW), Sch 1
Cases Cited:	Bao v R [2016] NSWCCA 16 EF v R [2015] NSWCCA 3 Mulato v Regina [2006] NSWCCA 282 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Readman (1990) 47 A Crim R 181
Category:	Principal judgment
Parties:	Regina Paul Hetherington
Representation:	Counsel: D Kell with M Pulsford (Appellant) A Francis with A Chhabra (Respondent)   Solicitors: C Hyland – Solicitor for Public Prosecutions S Eccleshall – Legal Aid New South Wales
File Number(s):	2014/211883
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 6 May 2016 Before: M L Williams SC DCJ File Number(s): 2014/211883

Judgment

1. HOEBEN CJ at CL: I agree with Button J and the orders which he proposes.

2. BUTTON J: This is a Crown appeal against a sentence imposed by his Honour Judge Williams in the District Court of New South Wales at Sydney on 6 May 2016. The charge of which Mr Paul Hetherington (the respondent) was convicted was that on 17 July 2014 at Blacktown he committed a robbery armed with a dangerous weapon; namely, a firearm. The sentence imposed was an intensive correction order (ICO) of 2 years to commence on 6 May 2016.

3. The offence of armed robbery with a dangerous weapon appears in s 97(2) of the Crimes Act 1900 (NSW) and carries a maximum penalty of imprisonment for 25 years, and no standard non-parole period. It is, of course, an aggravated version of the offence of armed robbery that appears in s 97(1) of the Crimes Act (which carries a maximum penalty of imprisonment for 20 years). That offence is in turn an aggravated version of the offence of robbery simpliciter (which is contained in s 94 of the Crimes Act, and carries a maximum term of imprisonment for 14 years).

Objective features

4. The following matters were undisputed, both at first instance and before us.

5. At about 3.30 PM on 17 July 2014, the respondent entered a short term loans office in the Sydney suburb of Blacktown. He was alone. Concealed under a high visibility vest was an unloaded semi-automatic .22 pistol in working order.

6. The respondent produced the pistol, and demanded $5,000 cash. He pointed the pistol at a staff member, who was put in fear and called out to another staff member, who came to the teller area from the rear office. The respondent then made an implicit threat, saying “Don’t call anyone, or press any buttons”. The staff offered no resistance, and promptly provided him with the sum of $7,500 contained in a cloth bag.

7. The respondent ran off, and staff immediately raised the alarm. Police attended, the respondent was located, and, after a short chase on foot, he was apprehended. In response to the police asking where the pistol was, the respondent said “It’s in the bag, it’s got no bullets, I did it, I did it, you got me”. Police duly located the pistol and the cash, and arrested and charged the respondent.

8. As can be seen from the above, the actions of the respondent were unsophisticated: he did not make use of gloves to protect against scientific inculpation, or even a getaway car.

Subjective features

9. The respondent pleaded guilty to the offence in the Local Court at Penrith. He received a discount of 25% for the utilitarian value of that plea as a result.

10. Separately, his Honour accepted that the respondent was remorseful for what he had done, and that the respondent had good prospects of rehabilitation.

11. The respondent was aged 58 at the time of the offence, and 60 at the time of the imposition of sentence.

12. He had endured a very troubled childhood, which featured him living in a number of foster homes. As a child, he had been subject to physical abuse while in the temporary care of a foster parent.

13. At the time of the offence, he was living with his romantic partner, her daughter (his step-daughter) and their 22-year-old daughter. He was in a stable relationship, with a settled home life. Although his partner was receiving a disability pension at the time, the respondent was working full-time. Indeed, very impressive work references were placed before the learned sentencing judge. As well as that, although his employer was well aware of the commission of this serious offence, the respondent was so highly thought of that his employment had not been terminated between the revelation of the offence and the date of imposition of sentence.

14. The respondent placed remarkable evidence on oath before his Honour as to how the offence came to be committed. His position was that he had been using cannabis for many years, without the knowledge of those who were close to him or his employer. Not only that, he had been obtaining that prohibited drug on credit from a supplier for literally 20 years. Eventually, the debt needed to be repaid, and the respondent took out a loan from a financial institution to permit him to do so. With interest, that loan ballooned to the point where it became the sum of $19,000. The offence was committed in order to repay some at least of that loan.

15. As for the pistol, the evidence of the respondent was that he had simply found it contained in a bag lying in a park while walking home after work. Rather than providing it to the police, or getting rid of it, he kept it in his possession for three weeks before the offence, for reasons that were unexplained. At some stage he inspected it, and was quite aware that it was unloaded when he used it to commit the armed robbery.

16. I interpolate that I regard the versions of events of the respondent about receiving a prohibited drug on credit for 20 years and finding a pistol (a valuable piece of contraband) in a park and keeping it for no good reason as bordering on the preposterous. However, because they were accepted by the learned sentencing judge, and no ground of the Crown appeal impugns that acceptance, I would determine the appeal on the assumption that they are true.

17. In the weeks and months before the commission of the offence, the respondent had been diagnosed as suffering from depression; indeed, he was for a time suicidal. Although he had been taking medication to deal with that illness, his position was that his prescription had run out and he had not got around to refilling it. For a period of time, therefore, before the commission of the offence, he was unmedicated. The respondent gave evidence before his Honour that his mind was “all over the place” before the incident.

18. As for his physical health, as I have said, the respondent is not a young man and had previously suffered from a drinking problem. As well as that, due to an assault some years ago, he had suffered from complete deafness in one ear and 40% loss of hearing in the other ear for quite some time, and the condition will not improve.

19. The partner of the respondent gave evidence before his Honour of how upset and angry she had been with him for what he had done, but that she was prepared to continue to support him.

20. Subsequent to the offence, the respondent had declared bankruptcy and ceased the use of cannabis. He had not committed any offences between the date of the armed robbery and the date of the imposition of sentence.

21. As for the criminal record of the respondent, it was not unblemished. 45 years ago he had been placed on probation for stealing by the Children’s Court. Throughout the 1970s, he was imprisoned for very short periods for a number of offences of dishonesty. In the 1980s, he was placed on a bond for possessing and using prohibited drugs. On two occasions in 1989, he had been fined for less serious offences.

22. In other words, this mature man had not intersected with the criminal justice system for a period approaching 30 years when he committed this serious offence. Not only that, much of his previous offending had been well towards the less serious end of the spectrum.

Procedural history

23. As I have said, the respondent admitted his guilt immediately to police on his arrest on 17 July 2014. He also made a series of full admissions in a recorded interview with police.

24. The respondent was granted bail by police on the day of his arrest, and was still on bail when sentenced.

25. He pleaded guilty in the Local Court at Penrith on 17 April 2015, and the matter was committed to the District Court for sentence. It was adjourned more than once before the proceedings on sentence commenced.

26. The matter first came before his Honour on 10 February 2016. On that occasion, all evidence was received, and submissions were made by both parties. The prosecutor made it reasonably clear that anything other than full-time imprisonment was opposed by the Crown. His Honour gave detailed reasons for the decision to refer the respondent for assessment of his suitability for an ICO. For convenience, I shall refer to those reasons as the “first remarks on sentence”.

27. When the matter came before his Honour again on 6 May 2016, the respondent had been found to be suitable for an ICO. The prosecutor restated his opposition to the proposed sentence, and this time made it clear that, in his submission, the imposition of an ICO would constitute appellable error. His Honour imposed the sentence under appeal on the same date, and gave brief reasons for doing so. For convenience I shall refer to those reasons as the “second remarks on sentence”.

28. The respondent commenced to be subject to the ICO on 6 May 2016, and has been progressing well with regard to it.

29. The Crown notice of appeal against sentence was served on 19 May 2016, relying at that stage upon the single ground of manifest inadequacy.

Grounds of appeal

30. The following grounds were notified and pressed by the Crown at the hearing of the appeal:

Ground 1: The learned sentencing judge erred in finding that the objective gravity of the offence was at “the lowest end of the range of seriousness”.

Ground 2: The learned sentencing judge erred in his use of sentencing statistics.

Ground 3: The learned sentencing judge erred in treating other cases as being ‘comparable’ to the present case.

Ground 4: It was not open to the learned sentencing judge to find exceptional circumstances.

Ground 5: The sentence pronounced was manifestly inadequate.

31. It is convenient to deal with the grounds in the order in which they appear above.

Ground 1

32. This ground was founded upon the following portions of the first remarks on sentence:

It is, of course, objectively more serious to use a firearm than a knife because fear is instilled into the victims of the robbery but as [the advocate for the respondent] points out, the firearm was not loaded, there were no bullets found and even though the fact that it is a firearm, attracts the higher penalty under s 97(2). In many cases, the use of a knife can have many devastating consequences. The offence, I find, is towards the lower end of the range of objective seriousness for this type of offence, notwithstanding the significant amount of money of $7,500 that was involved (First Remarks on Sentence at 9).

…

I have taken into account his [that is, the advocate for the respondent] citation from what Justice Maxwell said in Redman [sic] that robberies can be viewed in escalating seriousness of carrying a firearm, of a firearm being loaded, of the loaded firearm being discharged and of the discharge being deliberately aimed at a victim or important target so that this case is at the lowest end of that escalating spectrum and the lowest end of the range of seriousness (First Remarks on Sentence at 10).

33. The Crown submission in this Court may be very concisely stated. It was simply that it cannot be the case that an armed robbery with a dangerous weapon that is a pistol and that involves the offender gaining $7,500 (albeit very briefly) can be characterised as being at the lower end or lowest end of the range of objective seriousness of offences of this kind.

34. Counsel for the respondent made a number of submissions in response to that submission.

35. She submitted that, objectively speaking, an unloaded firearm is indeed incapable of inflicting serious physical harm. In that sense, there was no error in his Honour drawing a contrast between a knife (which, at all times, has the potential to cause death) and a firearm (which, if unloaded, cannot cause death or serious injury).

36. She submitted that the crime, although not entirely spontaneous, was hardly premeditated. She submitted that there was indeed a substantial sum taken; on the other hand, it was retained very briefly by the respondent, as a result of his thoroughly amateurish modus operandi.

37. Counsel for the respondent also submitted that the use of the phrase “lowest end” as opposed to “lower end” was a mere infelicity, and that the Crown had conceded at first instance that the more favourable of the assessments was open to the evaluative judgment of the sentencing judge.

38. Turning to my determination of this ground, I approach the ground on the basis that the reference to “lowest end of the range of seriousness” was a restatement of the submission of the advocate for the respondent, not a characterisation by his Honour. For that reason, I shall approach the ground on the basis that his Honour characterised the offence as being “towards the lower end of the range of objective seriousness for this type of offence”.

39. Separately, I fully accept that the characterisation of the objective seriousness of an offence is very much vouchsafed to a sentencing judge, and that this Court is notoriously slow to overturn such findings: see Mulato v Regina [2006] NSWCCA 282 at [37], [46]. Nevertheless, having sounded that loud note of reticence, I cannot accept that this offence was able to be characterised as being at the lower end of the spectrum of objective seriousness. That is so for five reasons.

40. First, a pistol in working order was used to effect the armed robbery. It is useful to analyse the breadth of the items that fall within the definition of a dangerous weapon for the purposes of an offence contained in s 97(2) of the Crimes Act.

41. The definition is set out in s 4 of the Crimes Act. That definition includes a “firearm” or “imitation firearm” as defined in the Firearms Act 1996 (NSW), which leads one to the definitions to be found in s 4 and s 4D of the Firearms Act. Those definitions include air guns and items that substantially duplicate the appearance of a firearm without being a toy.

42. The definition in the Crimes Act also includes a “prohibited weapon”, as defined by the Weapons Prohibition Act 1998 (NSW). That further definition is to be found in s 4 of that Act, and includes all items contained in Sch 1 of that Act. As a result, the term “dangerous weapon” includes such things as slingshots, nunchaku, side-handled batons, and certain kinds of knives such as flick knives.

43. Finally, the definition in the Crimes Act includes spear guns.

44. Bearing in mind the breadth of implements that fall within the definition of a dangerous weapon, I cannot accept that an armed robbery effected by way of the presentation of a real pistol, even if unloaded, can be characterised as falling at the lower end of the spectrum of such offences.

45. Secondly, it is true that the presentation of an unloaded pistol does not of itself give rise to a risk of physical harm (unless, perhaps, it is used as a club, or its presentation induces a heart attack, or injury while the victim retreats or flees). But it almost always gives rise to a fear of death on the part of any victim. I cannot accept that an offence that features that attribute can be characterised as being at the lower end of the objective spectrum.

46. Thirdly, the offence was targeted, in the sense that the respondent chose to commit it upon premises that he (correctly) inferred would have a large sum of cash present. The sum taken, albeit fully recovered by police, was very substantial. A marked contrast can be drawn between those proceeds, and the paltry sums of cash that are often obtained by desperate drug addicts who commit armed robberies upon places such as newsagents, service stations, and the like.

47. Fourthly, his Honour referred to the decision of this Court in R v Readman (1990) 47 A Crim R 181 when describing in the first remarks on sentence the submission of the advocate for the respondent that the offence was at the “lowest end of the range of seriousness”. In that case, it was said at p 185:

In the present case the gun the respondent used was loaded. As to this, this Court indicated in Dicker (unreported, Court of Criminal Appeal, NSW, 3 July 1980) that robberies can be viewed in escalating seriousness of carrying a firearm, of a firearm being loaded, of the loaded firearm being discharged, and of discharge being deliberately aimed at a victim or important target.

48. So much is uncontroversial. But I respectfully think that that analysis tells one, in a general way, where an offence sits in terms of objective seriousness when one considers a large range of offences, up to and including murder. It tells one little or nothing about where an offence of armed robbery with a pistol sits within a range of seriousness of the particular offence of armed robbery with a dangerous weapon.

49. Fifthly and finally, events in foreign countries that, unlike Australia, have not set their face against the possession of pistols by members of the community, demonstrate the thoroughly pernicious effect that widespread possession and use of such items can have. For that reason, speaking very generally, it is very hard to accept that any criminal offence that features the presentation of a pistol can be characterised as towards the lower end of objective seriousness of examples of that offence.

50. In short, for five reasons I consider that it was not open to the evaluative judgement of the sentencing judge to characterise this offence as being at the lower end of the range of objective seriousness of offences committed against s 97(2) of the Crimes Act.

51. I consider that ground 1 should be upheld.

Grounds 2 and 3

52. For convenience, I repeat grounds 2 and 3:

Ground 2: The learned sentencing judge erred in his use of sentencing statistics.

Ground 3: The learned sentencing judge erred in treating other cases as being ‘comparable’ to the present case.

53. It is convenient to deal with these two grounds together, because each of them focuses upon the way in which his Honour dealt with legal materials with which he had been provided by the parties.

54. In support of these grounds, the Crown has undertaken a detailed analysis of the statistics from the Judicial Commission of New South Wales that were placed before his Honour, and the comparative cases with which his Honour was provided. It was said that one can infer from what was said in the first and second remarks on sentence that his Honour misunderstood or mistook those materials. For example, it was said that, when his Honour said in the first remarks on sentence “I have taken into account a range of statistics which [the advocate for the respondent] helpfully isolated for offenders over 50 in relation to s 97(1) offences demonstrating that some eight per cent of the cases received a non-custodial sentence out of a fairly significant range”, his Honour misunderstood that the position is quite different in relation to the greater offence actually committed by the respondent contrary to s 97(2) of the Crimes Act.

53. It was also said that references were made by his Honour to “comparable” cases that resulted in a sentence that was not one of full-time imprisonment. The Crown submitted that those cases show that, in compelling and unusual circumstances, a merciful sentence can be granted, and that those circumstances are not present in this case. The Crown further submitted that those cases were significantly different to the present case. Finally, the Crown relied on the authority of Bao v R [2016] NSWCCA 16 at [70] to support the proposition that “it is impermissible to reason by reference to the result of a limited number of cases that do not form a comparable range of sentences”.

54. Turning to my determination of these grounds, in light of my determination of the first ground and the fourth and fifth grounds, I shall not deal with them at any length.

55. Suffice to say, I think that this Court should be slow to engage in a punctilious analysis of the approach taken by sentencing judges to the materials with which they are provided. It is clear from the combined force of the two remarks on sentence that his Honour was well aware that exceptional circumstances would need to be established by the respondent in order for him to avoid a period of full-time imprisonment. His Honour clearly found that that “onus” had indeed been discharged (of course, that finding is impugned by a separate ground of appeal).

56. I am not persuaded, as a discrete ground, that his Honour somehow separately misunderstood the meaning of the statistics, or somehow misinterpreted the authorities with which the parties provided him. To the contrary, I respectfully think that his Honour was well aware of the analysis that needed to be undertaken, and the evaluative judgments to which he would need to come, before declining to impose a sentence of full-time imprisonment.

57. In short, because I do not believe that his Honour misapprehended the evaluations that confronted him, I would not uphold grounds 2 and 3.

Ground 4

60. Ground 4 is as follows:

Ground 4: It was not open to the learned sentencing judge to find exceptional circumstances.

61. As I have said, his Honour was well aware that it was a practical precondition to declining to sentence the respondent to a substantial period of full-time imprisonment that the matter be characterised as exceptional. His Honour found that the combination of objective and subjective features led to that precondition being fulfilled.

62. Again, to recount the submission of the Crown before us concisely, it was simply that, although this matter has its unusual and sad features, it was not open to his Honour to characterise the matter as exceptional.

63. In this Court, counsel for the respondent placed great weight on the mental condition of the respondent at the time of the offences, and the fact that this was an isolated event. She submitted that the unmedicated and unresolved depression of the respondent, featuring as it did suicidal ideation, played the well-established role of meaning that the respondent was a less appropriate instrument for expressions of general and personal deterrence. She submitted that the finding by his Honour in relation to deterrence was not the basis of a ground of appeal. Minds may legitimately differ about the characterisation by his Honour of the matter as being exceptional; but, she submitted, that characterisation was open, and accordingly should not be disturbed on appeal.

64. Further, she submitted that the sentencing judge had correctly adopted the approach to exceptional circumstances identified by Simpson J in EF v R [2015] NSWCCA 36, and used s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) as a starting point, in considering whether an ICO was an appropriate sentencing option.

65. Finally, counsel for the respondent made it clear that she was relying upon the combined force of all of the objective and subjective features to submit that the finding about exceptional circumstances was open to his Honour.

66. Turning to my determination of this ground, it is true that the respondent was suffering from depression for which he was not medicated. And it is also true that that played a role in mitigating his offending and reducing the importance of both forms of deterrence. But the fact is that the respondent was working full-time; indeed, as the references showed, he was capable of discharging his duties very well. As well as that, the decision to target a financial institution had a distinct flavour of rationality about it. So did hiding the pistol under a piece of clothing until its presentation. So did, of course, the fact that the respondent sought to escape from police as they were trying to apprehend him. And so did his immediate (and truthful) exculpatory statement that the pistol was not loaded.

67. Seen as a whole, there is no doubt that this matter has its strange and sad aspects. But it can also readily be recast as simply an example of a drug dependent person, suffering from emotional problems, and not having intersected with the criminal justice system for many years, committing an armed robbery with a pistol, in an attempt to pay off a significant debt arising from that dependence. Regrettably, such circumstances are hardly exceptional.

68. To my mind, this matter had its noteworthy, even odd features. But I respectfully consider that it was not open to the evaluative judgment of his Honour to characterise the matter as exceptional.

69. Accordingly, I consider that ground 4 should be upheld.

Ground 5

70. Ground 5 is as follows:

Ground 5: The sentence pronounced was manifestly inadequate.

71. Yet again, the submission of the Crown may be shortly stated. It was that the sentence imposed simply fails to reflect all of the relevant objective and subjective features of the matter, and that the sentence is unreasonable and plainly unjust.

72. Reliance was placed by the Crown on the guideline judgment in R v Henry [1999] NSWCCA 111; 46 NSWLR 346, without, of course, it being said that that guideline provided some sort of mandatory prescription with regard to sentencing for armed robbery.

73. The Crown submitted that, when one considers the five factors enumerated in that judgment, one sees that the factors present in the case of the respondent were either equal to, or more aggravated than, those attaching to the putative offender who would receive a head sentence of imprisonment in the order of 4 to 5 years (admittedly after a late plea). And yet, here, not only was a head sentence of 2 years countenanced, but it was to be served without any period of full-time imprisonment whatsoever. In a nutshell, the Crown analysis was that the respondent was in a worse position than the hypothetical offender considered in R v Henry.

74. It was also emphasised that the guideline judgment in that case was for the lesser offence under s 97(1) of the Crimes Act, as distinct from s 97(2) of the Crimes Act, which was the offence committed by the respondent.

75. Counsel for the respondent submitted that the sentencing judge had the benefit of assessing the credibility and vulnerability of the respondent in the witness box. She submitted that the respondent was depressed, unmedicated, and suicidal at the time of the commission of the offence. She submitted that this Court ought to be mindful of the sensitive discretionary decision of the sentencing judge.

76. She submitted that it was relevant that the Crown had not demonstrated that this matter calls for the “guidance and governance” of this Court necessary for a successful Crown appeal, and that the sentence imposed does not have any precedential value.

77. Counsel for the respondent also submitted that the case was indeed comparable to the guideline judgment of R v Henry, and that it was actually less serious in some ways, in that the respondent produced an unloaded pistol that was not capable of doing physical harm.

78. Turning to my determination of this ground, it is the case, of course, that what was said in the guideline judgment of R v Henry is just that: a guideline. It is not to play some sort of mandatory or automatic role in leading inevitably to the imprisonment of persons once a number of “boxes are ticked”. Nor is it to play such a role with regard to the length of sentences of full-time imprisonment that may be imposed for armed robbery and related offences.

79. Separately, of course, it is well-known that the guideline judgment is founded upon a late plea; here, a 25% discount was applied in recognition of a plea being entered in the Local Court.

80. Nevertheless, the maximum penalty for this offence was imprisonment for 25 years, not 20 years as in the guideline judgment. It is noteworthy that there is no greater maximum penalty for an offence in New South Wales other than life without possibility of parole.

81. Furthermore, the offence featured presentation of a pistol; although unloaded, such offences must surely be denounced and deterred. The offence was not at the lower end of the objective range of offences committed against the section. Nor did the combination of objective and subjective features mean that the matter was exceptional.

82. Finally, the guideline judgment posits a young offender with little or no criminal history; the use of a weapon like a knife, capable of killing or inflicting serious injury; a limited degree of planning; limited, if any, actual violence but a real threat thereof; a victim in a vulnerable position such as a shopkeeper or taxi driver; a small amount taken; and a plea of guilty, the significance of which is limited by a strong Crown case. In those circumstances, the guideline judgment speaks of a head sentence of imprisonment of between 4 and 5 years.

83. Here, the respondent was not a young offender (though he is an older man who suffers from a serious physical deficit). He had little criminal history. The weapon was incapable of causing harm, but could instil fear of death and was inherently egregiously anti-social. There was a limited degree of planning. There was no actual violence, but a threat of it. The victims were vulnerable. A large amount was taken (albeit for a brief period). There was an early plea as opposed to a later one. Finally, the respondent was to be sentenced for a more serious offence than that discussed in R v Henry.

84. That thumbnail comparison very powerfully suggests that the sentence actually imposed by his Honour of an ICO for two years was not available to the sentencing discretion reposed in him.

85. I respectfully think that this ground has been made out. In all the circumstances, I consider that the sentence imposed was unreasonable, and plainly unjust.

Discretion not to intervene

86. It is now well-established that, even if error is established in a Crown appeal, it is incumbent upon the Crown to establish that this Court should not exercise its discretion not to intervene. To express that more comprehensibly, the Crown must affirmatively demonstrate that this Court should resentence.

87. Counsel for the respondent read a number of affidavits with regard to the questions of discretion and any re-sentence. She submitted that it would have been open to the Crown, even before sentence had been imposed, to seek judicial review of the decision to have the respondent assessed for his suitability for an ICO (that is, after the delivery of the first remarks on sentence). She also submitted that there had been something of a shift in the position of the Crown between the time of the first remarks on sentence and the second. She emphasised that the point of Crown appeals is to correct errors of principle; except in truly egregious cases, it is not to correct errors in outcome.

88. Counsel for the respondent invited our attention to the difficult life of the respondent, both now and in the past, and the hardships that would be occasioned to him and others if he were imprisoned now, after all that has happened. She also invited our attention to the distress and uncertainty that has been caused to the respondent as a result of the procedural history of the matter. Finally, she submitted that he is progressing well with regard to the ICO, and that progress should not be interrupted.

89. Turning to my determination of this question, I accept the force of the submissions of counsel for the respondent that he remains in full-time employment, that there has been no further trouble since the incident, that the respondent has been progressing well whilst subject to the ICO, and that he is regularly seeing a psychologist.

90. However, I do not accept that it was in any sense incumbent upon the Crown to commence proceedings for judicial review in the New South Wales Court of Appeal when his Honour referred the respondent for assessment. Even assuming (for the sake of argument only) that such proceedings may have succeeded, I would regard such a step as unnecessary and burdensome, in light of the fact that the respondent may have been assessed as unsuitable, and the ready availability of a statutory remedy in the form of a Crown appeal. The fact that it was not undertaken does not tell in favour of the respondent with regard to the discretion not to intervene.

91. Nor does the position adopted by the Crown before the first remarks on sentence and the second remarks on sentence argue in that way. Although it is true that its opposition may have intensified as things proceeded, I think that at all times the Crown made it clear that it opposed what his Honour was proposing; by the time of the second remarks on sentence that preceded the actual imposition of sentence, the Crown had made its position crystal clear.

92. Thirdly, it is true that Crown appeals are about correction of errors of principle. But there comes a point where an error with regard to disposition inherently demonstrates such an error, to the point at which it requires correction.

93. In all the circumstances, not least of which is what I respectfully think is the clear wrongfulness of this sentencing outcome, I consider that the Crown has established that this Court should intervene and re-sentence.

Re-sentence

94. A number of matters should be briefly noted.

95. First, I consider that no sentence other than full-time imprisonment is appropriate in this matter.

96. Secondly, I consider that the respondent should have full credit for the time he has spent subject to the ICO. Accordingly, the sentence I propose would commence on 6 May 2016.

97. Thirdly, the discount of 25% should, of course, be maintained.

98. Fourthly, in resentencing I take into account the distress and uncertainty that has been occasioned to the respondent and those close to him by this very unfortunate procedural history.

99. Fifthly, in light of that history and the unusual objective and subjective aspects of the matter, I think that the sentence imposed should be well towards the more lenient end of the spectrum of sentences imposed for offences of armed robbery with a dangerous weapon that is a pistol.

100. Sixthly, I would readily find special circumstances in this case, based upon the need for the respondent to be assisted in his reintegration into the community after his release; the difficulty that imprisonment with much younger men will occasion to a hearing-impaired older man; and the fact that, for several decades, the respondent overcame very considerable difficulties in his background to lead a hardworking and law-abiding life.

101. In all the circumstances, I consider that the respondent should be re-sentenced to a head sentence of 3 years with a non-parole period of 18 months. In accordance with s 50(1) of the Crimes (Sentencing Procedure) Act, the respondent will be released to parole upon the expiry of his non-parole period.

Orders

102. For the foregoing reasons, I propose the following orders:

1. Appeal allowed.

2. The sentence imposed in the District Court on 6 May 2016 is quashed.

3. The respondent, Paul Hetherington, is sentenced to a non-parole period of 1 year and 6 months to date from 6 May 2016. That will be followed by a parole period of 1 year and 6 months, which will expire on 5 May 2019.

103. The date upon which the respondent will be released to parole is 5 November 2017.

104. To express my proposed orders another way, I would impose a head sentence of imprisonment of 3 years with a non-parole period of 18 months to date from the commencement of the quashed ICO.

105. N ADAMS J: I agree with Button J.

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Amendments

31 August 2016 - Typographical error - coversheet, [83], [102] (3), [103]

Decision last updated: 31 August 2016