R v Jajou - [2009] NSWCCA 167

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
R v Fadi JAJOU; R v Maher JEBARA; R v Sam LAFTA [2009] NSWCCA 167

FILE NUMBER(S):
2008/10989
2008/10991
2008/10925

HEARING DATE(S):
4 June 2009

JUDGMENT DATE:
26 June 2009

PARTIES:
Regina (Appellant)
Fadi Jajou (Respondent)
Maher Jebara (Respondent)
Sam Lafta (Respondent)

JUDGMENT OF:
Campbell JA Latham J Harrison J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/11/0683
2008/11/0681
2008/11/0682

LOWER COURT JUDICIAL OFFICER:
Tupman DCJ

LOWER COURT DATE OF DECISION:
6 March 2009 (date of sentence)

COUNSEL:
D L M Woodburne SC (Appellant)
J I Ghabrial (Respondents)

SOLICITORS:
S Kavanagh, Solicitor for Public Prosecutions (Appellant)
M Abboud (Respondents)

CATCHWORDS:
CRIMINAL LAW – sentence – Crown appeal against inadequacy of sentences imposed on three offenders for two counts of armed robbery of convenience store – sentences of two years in each case to be served concurrently and wholly suspended – whether manifestly inadequate – whether sentences resulting from demonstrated error having regard to Henry guidelines – sentences manifestly inadequate – offenders resentenced to effective non-parole periods of 18 months

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

CATEGORY:
Principal judgment

CASES CITED:
Daniels v R [2007] NSWCCA 372
Dieguez v R [2008] NSWCCA 147
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226
Everett v R [1994] HCA 49; (1994) 181 CLR 295
Mulato v R [2006] NSWCCA 282
Pearce v The Queen [1998] HCA 57, (1998) 194 CLR 610
R v AEM [2002] NSWCCA 58
R v Baker [2000] NSWCCA 85
R v Bavadra [2000] NSWCCA 292, (2000) 115 A Crim R 152
R v Broxham (Court of Criminal Appeal, 3 April 1986, unreported)
R v Chamma [2009] NSWCCA 92
R v Hallocoglu (1992) 29 NSWLR 67
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
R v Holder; R v Johnston [1983] 3 NSWLR 245
R v Horne [1999] NSWCCA 391
R v House [2005] NSWCCA 88
R v Reynolds [2004] NSWCCA 51
R v Sharma [2002] NSWCCA 142, (2002) 54 NSWLR 300
R v Spiero (1979) 22 SASR 543
R v Stefanovski (Court of Criminal Appeal, 9 June 1994, unreported)
R v Tait (1979) 24 ALR 473
R v Tortell; R v Tsegay [2007] NSWCCA 313
R v Underhill (Court of Criminal Appeal, 9 May 1986, unreported)
R v Wall [2002] NSWCCA 42 at [70], (2002) 71 NSWLR 692
R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252
R v Wilson [2005] NSWCCA 219
R v XX [2009] NSWCCA 115
R v Zamagias [2002] NSWCCA 17
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

TEXTS CITED:

DECISION:
In each matter:
1. Appeal allowed.
2. Quash the sentences imposed upon the respondent by her Honour Tupman DCJ on 6 March 2009.
3. In lieu thereof the respondent is sentenced on the first charge to a non-parole period of imprisonment of 12 months commencing on 26 June 2009 and expiring on 25 June 2010 with balance of term of 12 months commencing on 26 June 2010 and expiring on 25 June 2011 and on the second charge to a non-parole period of imprisonment of 12 months commencing on 26 December 2009 and expiring on 25 December 2010 with balance of term of 12 months commencing on 26 December 2010 and expiring on 25 December 2011. The effective non-parole period is therefore 18 months commencing on 26 June 2009 and expiring on 25 December 2010.
The earliest date upon which the respondent will be entitled to be released will be 25 December 2010.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2008/10989, 2008/10991, 2008/10925
CAMPBELL JA
LATHAM J
HARRISON J
26 June 2009

R v Fadi JAJOU; R v Maher JEBARA; R v Sam LAFTA

Judgment

CAMPBELL JA: Subject to the following additional remarks, I agree with the reasons of Harrison J.

Ground 2

In considering ground 2, concerning whether the bail conditions of the respondents distinguished the case from the R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 guidelines, it is important to bear in mind the sort of judgment that Henry was. It was given by this Court, which is a court created by statute and thus has only those powers that statute conferred on it (including any incidental or implied powers arising from the statute: cf DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226 at 240-1 [25]-[26]). It was given in 1999, at a time when the power of this Court to give guideline judgments could only have been based on implication derived from the Criminal Appeal Act 1912 (the statute that created the Court) and other statutes that confer powers and functions on this Court. Though the case arose, as Spigelman CJ said at 351 [1], when the court listed and heard together six Crown appeals and one severity appeal concerning similar offences, the circumstances of those individual cases are nowhere reported on or considered in the judgment of any of the judges. Indeed, the judgment is unusual in that it does not end with the making of any orders or the giving of any directions. That is not a function of the editor of published reports having deleted inessential matters from the report – the full text of the judgments, accessible on the Court's website, likewise does not end with the making of any orders or the giving of any directions.
The concern of the Court in Henry was to create a judgment that would provide a guideline for fixing appropriate sentences in a category of cases that had the seven characteristics identified by Spigelman CJ at 380 [162], namely:
"(i)Young offender with no or little criminal history;
(ii)Weapon like a knife, capable of killing or inflicting serious injury;
(iii)Limited degree of planning;
(iv)Limited, if any, actual violence but a real threat thereof;
(v)Victim in a vulnerable position such as a shopkeeper or taxi driver;
(vi) Small amount taken;
(vii)Plea of guilty, the significance of which is limited by a strong Crown case."
The guideline given in Henry was a range of sentences, namely (at 380 [165]) "between four and five years for the full term." The judgment specifically recognised, 382 [174], that the seven characteristics that defined the class to which the guideline judgment applied did not represent the full range of factors relevant to the sentencing exercise in any individual case.
The Crown is right in submitting that the silence of Henry about bail conditions meant that ordinary sentencing principles would apply in respect of matters not specifically mentioned. Any doubts that there may have been about the ability of this Court to give guideline judgments (other than in matters involving the exercise of federal jurisdiction: Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584) have now been laid to rest by the enactment in 2001 of sections 37 and 37A Crimes (Sentencing Procedure) Act 1999. Those sections expressly empower the Court to give a guideline judgment. Such a judgment is defined in section 36 of that Act as meaning:
"… a judgment that is expressed to contain guidelines to be taken into account by courts sentencing offenders, being:
(a)guidelines that apply generally, or
(b)guidelines that apply to particular courts or classes of courts, to particular offences or classes of offences, to particular penalties or classes of penalties or to particular classes of offenders (but not to particular offenders)."
Those provisions operate retrospectively, and thus (in the absence of any High Court decision, or argument before this Court, to the contrary) remove any doubts there may have been about the ability of the Court to deliver the guideline judgment in Henry: see R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252 at 259 [32].
Section 42A Crimes (Sentencing Procedure) Act 1999 sets out the role that a guideline laid down by a guideline judgment is to play in sentencing:
"A guideline that is expressed to be contained in a guideline judgment:
(a)is in addition to any other matter that is required to be taken into account under Division 1 of Part 3, and
(b) does not limit or derogate from any such requirement."
It is Division 1 of Part 3 of that Act (which runs from section 21 to section 25, and thus includes the long list of specific factors to be taken into account in sentencing contained in section 21A) that enumerates the matters that a court is either empowered or required to take into account in sentencing for offences generally. Thus, the fact that a guideline judgment has been delivered which is applicable to the type of offence for which a court is sentencing does not prevent the court from giving effect to any of the matters listed in Division 1 of Part 3. However, the requirement of section 42A that the guideline is to be taken into account in addition to those matters means that the guideline significantly bears upon the sentencing process. As Spigelman CJ said in Whyte at [232] the guideline is:
"… a 'guide' or a 'check'. The sentence imposed in a particular case will be determined by the exercise of a broad discretion taking into account all of the factors required to be taken into account by s 21A of the Crimes (Sentencing Procedure) Act."
For the reasons given by Harrison J, the conditions on which the respondents were on bail were not sufficiently arduous, and the time to which they were on bail was not sufficiently long, to in itself be a reason for making the range of sentence referred to in Henry inapplicable.

Ground 3

Ground 3 related to the judge having regard as a significant matter in assessing the objective seriousness of the offence, that none of the respondents had committed the offence for a reason connected with their addiction to drugs. In Henry all the judges reached the conclusion that, on a charge of armed robbery, it was not in itself a mitigating factor that the offender had committed the crime to support a drug habit: at 381-6 [171]-[208] per Spigelman CJ, 387-98 [215]-[277] per Wood CJ at CL, 409-10 [331] per Hulme J, 410-13 [336]-[353] per Simpson J. All judges in Henry agreed with the conclusion of Wood CJ at CL that drug addiction could, in some particular cases, be relevant to the sentencing process in one or other of the specific ways identified at 397-8 [273]. The tendency of all those ways in which drug addiction could be relevant to sentencing is, in the cases where any such factors apply, to reduce what would otherwise have been the sentence.
When drug addiction has (depending on the facts of the individual case) either no role to play in sentencing, or a role that tends to reduce a sentence, it is hard to see how the fact that an armed robbery was not committed by reason of addiction to drugs is a factor that mitigates the objective seriousness of the offence.
Of course, that a convicted person is not addicted to drugs is a matter that is relevant to his or her prospects of rehabilitation, but that is a subjective matter. The trial judge found, in any event, that each of the respondents had excellent prospects of rehabilitation, without any express reliance on their lack of addiction to drugs.

Ground 4

Some detail about the circumstances in which the respondents turned themselves in to the police is required to evaluate how significant their action in turning themselves in really was. The offence took place on a Sunday night. The respondents had been continually recorded by the CCTV camera in the shop, for the whole time during which they were committing the offences. The CCTV images were in colour, and their quality was quite good. In particular, the type and colour of clothing of each respondent could be readily ascertained from the CCTV footage. Virtually immediately after the robbery, the number plate of one of their two getaway cars was recorded and given to the police. On 10 April 2008, the Thursday morning after the robbery, detectives attended the address of Mr Jajou. They seized from his bedroom items of clothing that he wore during the robbery. It was at 10.00am on the Thursday morning that Mr Jajou attended the police station, with his father and solicitor, to give himself up. He gave an electronically recorded interview to the police that day. The other respondents gave themselves up the next day, accompanied by the same solicitor who had accompanied Mr Jajou. In these circumstances, the appropriate conclusion to draw is that they gave themselves up only when it was clear to them that their involvement was already either known to or highly suspected by the police.
Her Honour's finding that "short of going straight from the convenience store to the police station to give themselves up there was no time earlier that they could have admitted their guilt in relation to these offences" is thus erroneous. However that error is of very slight significance in the overall sentencing process.

Orders

I agree with the orders proposed by Harrison J.

LATHAM J: I agree with Harrison J and with the remarks of Campbell JA.
HARRISON J: The Crown appeals pursuant to s 5D of the Criminal Appeal Act 1912 against sentences imposed upon the respondents Fadi Jajou ("Jajou"), Maher Jebara ("Jebara") and Sam Lafta ("Lafta") by her Honour Tupman DCJ in the District Court at Sydney on 6 March 2009. Each of the respondents was sentenced in respect of two offences of armed robbery committed in contravention of s 97(1) of the Crimes Act1900. The maximum penalty for this offence is imprisonment for 20 years. The respondents were each sentenced to imprisonment for 2 years for each offence to be served wholly concurrently. Her Honour suspended the sentences pursuant to s 12 of the Crimes (Sentencing Procedure) Act1999.
In broad terms, her Honour arrived at the two sentences upon the view that, taking into account various objective factors of the offences and subjective factors of the respondents, a sentence of 3 years imprisonment was appropriate. That was reduced by a discount of 15 per cent for early pleas of guilty, and by a further 20 per cent for assistance to authorities. This reduced the overall sentences in round terms to 2 years.
The Crown contends that her Honour's sentencing discretion miscarried and relies upon the following six grounds of appeal. Three of them invoke the guideline judgment of this Court in R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346.
1.The learned sentencing judge erred in determining that the "nature of the offences itself [sic]" reduce it below a Henry guideline case.
2.The learned sentencing judge erred in finding and taking into account as a matter that "reduces it below a Henry guideline situation" that each of the respondents was on "onerous bail conditions for a relatively long time, almost a year, just short of eleven months".
3.The learned sentencing judge erred in finding and taking into account as a matter that "reduces it below a Henry guideline situation" that there was a "marked difference" in each of the respondent's case from the guideline in R v Henry (supra) because "none of these young offenders committed this offence as a result of a serious ongoing addiction to drugs and in order to satisfy that addiction".
4.The learned sentencing judge erred by mistaking the facts in finding that "short of going straight from the convenience store to the police to give themselves up there was no time earlier that they could have admitted their guilt in relation to these offences".
5.The learned sentencing judge erred in failing to take into account matters relevant to a determination of whether the sentences should be ordered to be served concurrently or otherwise and erred in imposing wholly concurrent sentences.
6.The learned sentencing judge erred in point of principle by imposing sentences which were manifestly inadequate.

Background facts

The offences were committed at about 11.30pm on Sunday 6 April 2008 in the Choice Mart Convenience Store at Kogarah. On that evening the owner of the store was working alone when five men robbed him of $200 in cash and three cartons of cigarettes. One of the men was armed with a meat cleaver and others were armed with knives. A customer in the store at the time was also robbed of $100 in cash and two mobile phones. Her Honour was given an agreed statement of facts to which reference is made in her remarks on sentence.
The offences were captured on CCTV footage that depicts the events of the evening over a period of just over three minutes. It was the Crown's submission that the recording reveals a menacing combination of five offenders and the terrifying wielding of a meat cleaver by one of them. The respondent Jebara is shown to be wearing a multi-coloured wig and is armed with a knife. The respondent Jajou is wearing a white baseball cap and is carrying a knife. The respondent Lafta is without headwear and is armed with the meat cleaver. The co-offenders Khader and Salman are also depicted.
The details of what occurred on this occasion are set out in her Honour's remarks on sentence. There is no dispute that her Honour accurately recorded these events. Once the robberies were completed the offenders all left the premises quickly and ran along Queen Victoria Street and entered two vehicles and sped off without turning on their headlights. They were followed by a witness who contacted the police with registration details. On 10 April 2008 police attended Jajou's home and he later voluntarily attended St George Police Station and made admissions during an ERISP. Jebara and Lafta did so the following day.
Each respondent pleaded guilty at the first opportunity and all were committed for sentence from the Kogarah Local Court on 15 July 2008. The sentencing hearing took place on 13 February 2009. The respondents each gave short evidence that they were willing to assist the authorities with details of the other two co-offenders. Khader was committed for sentence on 18 December 2008. Salman pleaded guilty on 30 March 2009 on the first day of his trial.

Subjective features

Sam Lafta

Mr Lafta was born in Iraq on 12 July 1989 and was 18 at the time of the offences. He had no prior convictions. He spent 12 days in custody before being granted bail. He confessed to the offences and offered assistance in respect of the two other co-offenders. A pre-sentence report dated 9 December 2008 stated that he had experienced a "reasonably smooth settlement in Australia after migrating from Iraq with no familial problems reported". He resided with his fiancée and they were expecting a child although his fiancée subsequently miscarried. He had held reasonably consistent employment in unskilled positions. There were no apparent drug and alcohol or gambling issues. He was assessed as being suitable for community service and periodic detention.
He subsequently married and worked full time in his father's trolley collection business. He intended to take over that business from his father. He was assaulted in 2007 and required an operation on his eye. He had also been injured playing soccer.
Mr Lafta was assessed by Dr Jacmon on 28 May 2008. His report contains the following:
"Mr Lafta is deeply ashamed over having offended. He reflected on the incident when he went home and realised the seriousness of his offence. He became very distressed, contacted his solicitor and handed himself in. He expressed remorse for offending, the distress caused to the people in the incident, the shame brought to his family, the bad example set for his siblings and having risked his liberty.
*****
Posttraumatic stress disorder, depression and anxiety at clinically significant levels are markedly impairing Mr Lafta's daily functioning. The impairment is likely to have existed since the incident in which he was assaulted and seriously injured."
Dr Jacmon did not offer an opinion with respect to the connection, if any, between the conditions he diagnosed and Mr Lafta's participation in the offences.

Maher Jebara

Mr Jebara was born in Iraq on 17 July 1988 and was 19 at the time of the offences. He had also spent 12 days in custody before bail was granted. He confessed and offered to give assistance to the authorities concerning the other two co-offenders. A pre-sentence report dated 8 December 2008 stated that he appeared to lack self-confidence and appeared to be easily led. He resided at home with his family. He had prospects of obtaining employment in the automotive industry. There were no drug and alcohol or gambling issues. He expressed remorse for the victims of the offences. He was assessed as being suitable for community service and periodic detention.

Dr Jacmon assessed Mr Jebara on 31 May 2008 and his psychological report provided further detail about work that he had undertaken as a cement renderer before obtaining a security licence in Queensland. Dr Jacmon's report contains the following:
"Mr Maher [sic] is ashamed and remorseful over having offended. The remorse encompasses offending, the distress caused to the people in the shop, the shame brought to his family and the bad example set for his siblings. After the incident he broke off his relationship with [his girlfriend], notwithstanding her pleas to support him in his time of need, because of the shame he felt. He is sorry for having placed his freedom in jeopardy and for having risked his aspirations for a career in security. His depression has returned. He was advised during the assessment that he needed treatment for his distress.
*****
Depression and anxiety at clinically significant levels are markedly impairing [his] daily functioning. The impairment is likely to have existed for the last four years, since difficulties began to arise as he could not find appropriate work to support his family."

Fadi Jajou

Mr Jajou was born in Iraq on 10 August 1985 and was 22 at the time of the offences. He had one conviction for driving whilst suspended for which he received a fine of $500 and a 12-month disqualification on 18 July 2008. He spent 13 days in custody before being granted bail for the present offences. He gave a voluntary confession after consulting his solicitor. He offered assistance to the authorities with respect to the other two co-offenders. A pre-sentence report dated 8 December 2008 stated that Mr Jajou was then a second year apprentice in the automotive repair industry and in a personal relationship that appeared to be stable and supportive. There were no drug and alcohol or gambling issues. He expressed some remorse for his victims. He was assessed as being suitable for community service and periodic detention.
Mr Jajou was married on 15 November 2008. He had been assaulted in 2006 and spent three weeks in Liverpool Hospital.
Dr Jacmon assessed Mr Jajou on 28 May 2008. His report contains the following:
"After Mr Jajou returned home he began to realise the full import of his actions. He became horrified by what he had done. He contacted his solicitor and in company with his father handed himself in to the St George police station. In the assessment he expressed remorse encompassing offending, the distress caused to the people in the shop during the incident, the shame brought to his family and fiancée, the bad example set for his siblings and the jeopardy in which he has placed his freedom and career."

Ground 1

In her remarks on sentence her Honour said the following:
"…I then look to see where these offences might lie as compared to those sorts of cases referred to in the Henry guideline. There are factors it seems to me which reduce it below a Henry guideline case. One of those is the nature of the offences itself [sic] to which I have already referred, the fact that there was little planning, a degree of spontaneity, no actual threats and no evidence of any ongoing difficulties suffered by the victims."
Her Honour had earlier said, "in terms of assessing the objective criminality I accept that the whole incident was committed very quickly".
The Crown submitted that the fact that there was little planning and a degree of spontaneity were not matters that reduced the offences below the guideline principles. One of the seven characteristics identified in Henry is "limited degree of planning". There were no verbal threats and her Honour's reference to "no actual threats" must have been a reference to that fact. For example, her Honour observed that there was "no evidence of anything at all having been said by any of the three offenders during the course of the offences and … the CCTV footage is silent".
However, as the Crown submits the CCTV footage reveals, it would invite error to constrain the guideline to verbal threats or to rely upon the absence of verbal threats as a matter that reduced the offences below what Henry appears to contemplate. The five offenders acted in unison. The shop proprietor was suddenly grabbed by Mr Jebara who reached over the counter to do so whilst clutching a knife. Mr Lafta wielded a meat cleaver in a fearsome fashion that required no words to augment its effect. The absence of any proven verbal threats did not reduce the objective seriousness of the offences.

Nor was the absence of evidence of any ongoing difficulties suffered by the victims a matter that reduced the offences to some level below the Henry guidelines. Her Honour said that the victims appeared "to look to an extent more dumbfounded and surprised than terrified" but ultimately accepted that they must have been frightened. She felt that it would not be a surprise if there were some degree of ongoing psychological problems. According to the Crown, that is an uncontroversial finding and is sufficient to establish that there was an effect upon the victims. There were no victims' impact statements or other evidence of "ongoing difficulties". The Crown contended that that did not have the effect of reducing the matter to an unremarkable level for Henry purposes.
Moreover it was erroneous to place emphasis upon the fact that the robberies were "committed very quickly". Even though that assessment was correct, it was wrong for her Honour to have relied upon it as a factor that reduced the objective seriousness of the offences in general or below the Henry guidelines in particular. Rather, the time taken to commit the offences reflected, in the Crown's submission, a level of criminal efficiency and teamwork that was not a mitigating factor. The five offenders were in the store and acted as a group. Two men went in the direction of each victim and the fifth remained near the doorway. The victims were "very quickly" overpowered by the combined efforts of the offenders but in a way that added to the seriousness of the events rather than reducing it. The speed with which a crime is committed has no necessary or obvious relationship to its seriousness.
The Crown contended that, far from being outside the Henry guidelines in a way that favoured the respondents, the offences in question fell more or less squarely within them. Furthermore, not only was the nature of the offences themselves a matter that did not reduce the offences below the guidelines, they were committed in company, which was a seriously aggravating factor. The Crown contended that in all of these circumstances there was no basis for distinguishing the present offences from the combination of factors contemplated by the guideline judgment.
The respondents dealt with grounds 1 to 3 together. It is sufficient to observe that the respondents submitted that any alleged departure by her Honour from the Henry guidelines was permissible and warranted and certainly not such as to demonstrate error on her part.
I disagree. None of the matters emphasised by her Honour either alone or in combination has the effect of warranting the treatment of these offences as somehow falling beyond the Henry guidelines. This Court was invited to view the CCTV recording of the incident. First, I do not agree that there was little planning. The assembly of offenders within the shop was ordered and patently premeditated. The five men took up positions within the shop that were obviously related to the actions of Mr Jebara at the counter. As soon as he reached over the counter the remaining offenders can be seen instantly to move almost as one. The wielding of the meat cleaver by Mr Lafta occurs at this time. Others move out of shot and in the direction of the customer who they rob.
Secondly, it is also incorrect to describe anything that happened as spontaneous. Her Honour's observation in this respect is to my mind no more than the statement of an obvious fact that not every single element of what occurred had been rehearsed to the last detail. Nor could it have been. The offenders were young and inexperienced and reacted necessarily in a somewhat skittish fashion. That is quite a different thing to saying that the events that constituted the offence somehow unfolded in an unexpected or unanticipated way for which the respondents ought not by implication be held accountable.
Thirdly, the time taken to commit the offences is not something that invites leniency. The respondents committed the offences with an efficiency that was consonant with an understandable desire to remain on the premises for no longer than was necessary. The respondents encountered no resistance from the victims and the items and cash that were taken were delivered or discovered without difficulty or delay. While no doubt the offences would have been more serious than they actually were if the respondents took a longer time to commit them and in that longer time kept the victims frightened by their weapons, and by the manner in which those weapons were being wielded, that does not mean that the comparative shortness of time that it took to commit the offence distinguishes it from the Henry guidelines. The speed with which the crime is committed does not feature in the list of factors that define the circumstances in which the Henry guideline is applicable, so speed cannot be a ground of distinction from Henry. Extremely serious crimes can quite obviously be committed in a very short time.
Fourthly, I do not consider that there were no actual threats. It is difficult to conceive of anything less threatening in relative terms than the wielding by an assailant of a meat cleaver held high above his head. The simultaneous reaction of all of the offenders was highly threatening and objectively alarming. The absence of an audio recording of what occurred does not mean that the absence of verbal activity (which on the evidence we must take to be the fact) rendered the physical acts of the respondents any less threatening or not threatening at all.
In my opinion her Honour was in error to the extent that she relied upon these matters as an available basis to reduce the objective seriousness of these offences to a position beyond the Henry guideline judgment.

Ground 2

Her Honour also treated the respondents' bail conditions over approximately 11 months, including daily reporting and non-association with one another, including at sporting activities, as reducing the matter below the Henry guidelines. Henry is in fact silent concerning the bail conditions that may have been imposed on the type of young offender that it was considering. The Crown submitted that that silence did not somehow provide a basis upon which to assume that there was for that reason a marked difference between the sufficiently common category of case to which the guideline applied and a case where onerous bail conditions have been imposed in a way that permitted a departure from the guideline. The Crown contended that the silence simply meant that ordinary sentencing principles would apply in respect of matters not specifically mentioned.
Ordinary sentencing principles would not justify reduction of an otherwise appropriate penalty because the offenders were on bail for 11 months and subject to the conditions mentioned. The Crown referred to the remarks of Latham J in Dieguez v R [2008] NSWCCA 147 at [21]–[22] as follows:
"[21] A further feature of the applicant's subjective case that was not taken into account by the judge, in the sense that it did not feature in the course of his remarks on sentence, was the fact that the applicant had been on bail for a period of 11 months, during which time he was subject to a residential condition and daily reporting conditions. The applicant relies upon the decisions of this Court in R v Keyte CCA 26 March 1986 and R v Rajapaski [2001] NSWCCA 126 to support the proposition that a state of conditional liberty, involving constraints to the applicant's freedom of movement, should result in some mitigation of penalty.
[22] It is important to place the comments in Keyte and Rajapaski in context. In Keyte there was a two and a half year delay between the applicant's arrest and sentence. In Rajapaski there was almost a four year delay between the applicant's arrest and sentence. By way of contrast, the passage of 11 months between the date of arrest (but for five days) and the jury's verdict of guilty represents a relatively speedy resolution of the applicant's fate. In my view, the applicant was not entitled to any mitigation of an otherwise appropriate penalty because of his bail conditions."
I do not consider that the respondents' bail conditions are relevant to an inquiry concerning the application of the Henry guidelines at all. They are certainly not referred to in the judgment. The conditions upon or under which offenders are released on bail are many and varied and the extent to which any standard or usual range of conditions could be assembled as normal or not onerous would be limited. In one sense, except in the case of the most extremely onerous conditions, such as those involving house arrest or de facto home detention, or the continuance of the onerous bail conditions for an unusually long time, there is little that attracts favourable consideration to the grant of bail as a factor warranting amelioration of an otherwise appropriate penalty. There is every reason to give credit for time served on remand but that is not in any way comparable with conditional liberty.
Her Honour was in error to take this matter into account in a way that permitted or warranted a departure from Henry in the present case.

Ground 3

During the course of her remarks on sentence her Honour observed "none of these young offenders committed this offence as a result of a serious ongoing addiction to drugs and in order to satisfy that addiction". Her Honour also said, "I also take into account the subjective circumstances surrounding each of these prisoners which it seems to me distinguishes them somewhat from the subjective circumstances of those referred to in the Henry guideline". However, none of the guideline factors includes a reference to offenders who have a serious ongoing drug addiction. There was therefore no basis for a conclusion that there was a "marked difference" between each respondent's case and the guidelines. It was therefore not appropriate to distinguish Henry on such a ground. According to the Crown's submissions, the practical result of this error was that the lack of a drug addiction had been inappropriately taken into consideration in reducing the starting point for the sentences with the respondents being credited with an additional allowance for their excellent prospects of rehabilitation.
Without in any way wishing to be dogmatic about it there is a respectable argument that serious addiction to illicit drugs, and the need through illegal means to acquire funds to purchase them, would be more likely to explain the commission of the present offences than would otherwise be the case. The sanguine commission of armed robbery does not to my mind appear any less serious because the perpetrators were unaffected and uninfluenced by the ravages of a drug dependency. The regular deliberations and procedures of the Drug Court recognise the need for special solutions for the treatment of drug dependant offenders. Her Honour was in error to adopt an approach that gave credit to the respondents in the circumstances of the present case for their absence of addiction. Henry expressly suggests no such approach and none should be implied.

Ground 4

The Crown accepted that the respondents co-operated with the police and did so at an early stage. However, they did not turn themselves in until police had visited the home of one of them three days after the date of the offences. The Crown contended that her Honour erroneously mistook the facts and treated the mistaken facts as matters to be taken into account in mitigation.
With respect to Ground 4 the respondents contended in effect that her Honour's remark was "off the cuff" and not intended to be taken literally. This approach seems to me to miss the point. Howsoever described, the fact is that if her Honour was intending to suggest that the respondents should be given the benefit of having surrendered to the police at the earliest opportunity and in particular in circumstances where the prospect, let alone the likelihood, of their apprehension had not materialised, she was mistaken in that regard.
It is not to my mind an exercise involving exquisite subtlety to appreciate that an unprovoked and guileless surrender says more about an offender's contrition and remorse, and is more relevant to considerations of mitigation, than a latter day confession made in the shadow of approaching detection. The delay of three days was certainly small. However, the competing inferences are fairly blunt and were clearly apparent on the facts of the present case. This is not the same thing as recognising that the respondents were entitled to, and were given, an unchallenged discount of 15 per cent for their early pleas of guilty. It will be recalled that one of the characteristics of the class considered in Henry was that there was a plea of guilty. Presumably her Honour gave a discount below the sentences that she would otherwise have imposed because of the timing of the pleas.
The issue is to some extent minor in the scheme of things. I would not have considered in the absence of other factors that her Honour's remarks amounted to an error warranting intervention by this Court in a Crown appeal.

Ground 5

Whilst a decision whether or not to accumulate sentences in relation to multiple offences is an exercise of discretion, it is a discretion to be exercised in accordance with established principle. It is not wholly unconstrained. The effective overall sentence must be a proper period of incarceration having regard to the total criminality involved: see R vAEM [2002] NSWCCA 58 at [70]. In Pearce v The Queen [1998] HCA 57, (1998) 194 CLR 610 at [45] McHugh, Hayne and Callinan JJ said, "[a] judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well, of course, as questions of totality".
Her Honour determined that there would be "an overall term of imprisonment of two years in each case". She found that each of the three cases was "truly exceptional" and determined that each of the sentences be suspended. Any accumulation of the sentences would have precluded the possibility of suspension: s 12 Crimes (Sentencing Procedure) Act1999.
Her Honour referred to this issue in her remarks on sentence in the following terms:
"I am conscious that there are two offences for which I must sentence each of the offenders. It is true that taken strictly, the second offence involving [the customer] is slightly less serious in terms of its objective seriousness because he cannot be properly classified as vulnerable. However, each of these offences was committed within the same sixty seconds to two minutes. Each of them represents the commission, in effect, of one offence and it seems to me there is little to be gained in trying to impose a different sentence for each to take into account the fact that one is slightly less serious than the other. Because they are part of the one criminal enterprise nonetheless, the sentences should be served concurrently."
The Crown contended that the italicised portion of the passage just quoted was erroneous and that her Honour's discretion miscarried because she failed to take into account the fact that whether as a matter relevant to the question of concurrence or otherwise there were two victims. In R v Wilson [2005] NSWCCA 219 at [38], Simpson J said, with respect to a challenge to sentences that were partially cumulative:
"[38] In my opinion, it was not only well open to his Honour to accumulate one sentence upon the other two; I doubt that would have been correct not to do so. There were, in fact, three separate offences committed, even though all were committed as part of the same event. In this context the Crown appropriately reminded the Court of the purposes of sentencing set out in s3A of the Sentencing Procedure Act. The first purpose so specified is ensuring adequate punishment for crime; others here relevant include crime prevention by deterrence, denunciation, making an offender accountable, and recognition of the harm done to the victim and the community. To fail to accumulate, at least partially, may well be seen as a failure to acknowledge the harm done to those individual victims. I would reject this ground of the application."

To similar effect in R v XX [2009] NSWCCA 115 at [52], Hall J helpfully summarised the relevant principles. The Crown submitted that the totality of the criminality in both offences could not be wholly encompassed in the sentence imposed for one only of the offences. This is what has occurred. Her Honour's failure in the circumstances to impose sentences that were at least partially accumulated is in the Crown's submission one additional factor that has led to the imposition of an overall sentence that is manifestly inadequate.
There were two discrete offences involving separate victims. One of the victims, the shopkeeper, was the sort of victim in a vulnerable position expressly contemplated in Henry. The other victim, the customer, was not in the class of vulnerable victims expressly contemplated in Henry. Even so, from what one can see of him on the CCTV footage, he was apparently unarmed, dressed in insubstantial clothing, and of slight build. The CCTV footage depicts the robbery of the shopkeeper but not that of the customer. The robberies occurred almost simultaneously and if not simultaneously they were only separated by a matter of seconds. Her Honour was clearly of the view that they were both part of the same course of criminal conduct so as to warrant little or no accumulation. As discussed above, this is contrary to the approach highlighted in cases such as R v Wilson (supra) and R v XX (supra). Moreover, in the particular circumstances of this case, the principle of totality effectively mandates that some accumulation of the sentences would be required in the event that this Court were otherwise minded to resentence the respondents.
This putative error is not to my mind determinative of this appeal. On one view her Honour's decision not to accumulate the sentences for the separate offences preserved for her the ability to impose sentences of two years for all offences that could still be wholly suspended. Any accumulation of those sentences, even to a minor degree, would have made that impossible. However, even assuming that the way in which her Honour's discretion was exercised in this regard could not be criticised, the failure to impose a custodial sentence amounted to a fundamental miscarriage of her sentencing discretion. This is because her Honour recognised, but failed to give meaningful effect to, the objective seriousness of the offences.

Ground 6

The principles enunciated in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 are well known. In appellate review of sentencing it will commonly be the case that the appellate court's authority to intervene will derive from a conclusion that the resulting order is so disproportionate to the matter to which it relates as to afford the foundation for concluding that in some way the exercise of the powers of the primary judge had miscarried. In the present case the Crown submitted that the disproportion arises from manifest inadequacy, both in terms of length and the fact of suspension.
Her Honour remarked as follows:
"On the basis of those findings it seems to me that, leaving aside the question of discounts that are available, these offences committed by these offenders fall below the circumstances referred to by the Court of Criminal Appeal in the Henry guideline case."
It was in those circumstances that her Honour commenced with a starting point of three years discounted by 35 per cent to allow for the pleas of guilty and assistance to the authorities, thereby arriving at a sentence of 2 years for each offence. Her Honour found that each offender's case was truly exceptional and determined to suspend the sentences. As already noted, her Honour ordered that they should be served concurrently.
The Crown submitted that the discretion miscarried at what was described as "a fundamental level" when her Honour undervalued the gravity of the offences viewed objectively. It was contended that there were no matters that diminished the seriousness of the offences so that they could in any way be considered as falling below the guideline principles.
Her Honour appears also to have found that the "impaired judgment" of each of the offenders to which Dr Jacmon adverted was evident to some extent in the commission of the offences. The Crown submitted that to the extent that she did so it should be given little weight. This was because the respondents acknowledged their respective willing involvement in the offences.
Her Honour's description of the offences as "serious" does not correspond to the imposition of sentences that reflect that description. The courts have for some considerable time enunciated clearly a policy that armed robbery is to be treated as a very serious criminal offence. In R v Stefanovski (Court of Criminal Appeal, 9 June 1994, unreported) the Court cited the remarks of Carruthers J in R v Broxham (Court of Criminal Appeal, 3 April 1986, unreported) as follows:
"The prevalence of the offence in respect of which the applicant was sentenced is a matter of grave social concern…It is now well recognised that the victims of such armed robberies or attempted armed robberies may suffer devastating psychological damage consequent upon the trauma necessarily involved with the commission of such offences. In these circumstances sentencing judges would be recreant to the trust which the community places in them, if they were not to impose sentences consistent with the seriousness and prevalence of such offences."
In R v Spiero (1979) 22 SASR 543, King CJ said at 548-9:
"It must be made clear beyond misunderstanding that when a person engages in robbery while armed with a weapon he can expect when apprehended and convicted a long period in prison. Armed robbery is a crime which leaves little scope for leniency even when mitigating factors are present."
The Chief Justice in Henry (supra) also said this at [99]:
"[99] … Armed robbery is not simply a crime against property. It is a crime against persons. Furthermore, the fear engendered by the perpetrator of this crime, together with the continued adverse effects on its victims, establish armed robbery to be serious crime which requires condign punishment."
In R v Chamma [2009] NSWCCA 92, a Crown appeal involving the robbery of a convenience store by co-offenders late on a Saturday evening, the Court allowed the appeal, quashed the sentence of periodic detention and re-sentenced the respondent to full-time custody. Buddin J said at [21]:
"[21] The Crown submitted that notwithstanding the respondent's reduced culpability as a principal in the second degree and as someone who did not know of the use, or intended use of the knife, a sentence of full-time custody was nevertheless called for. The Crown relied upon this Court's decision in R v Goundar (2001) 127 A Crim R 331, in which Wood CJ at CL with whom other members of the Court agreed, referred to R v Govinden (1999) 106 A Crim R 314 and went on to say:
[a]s the Court there recognised it is only in the most exceptional circumstances that persons who commit armed robberies, and I would add those who aid and abet those offences, should not receive sentences involving at least some period of full-time custody. (at par 40)"
The present offences were aggravated by having been committed in company: s 21A(2)(e) of the Crimes (Sentencing Procedure) Act1999; Henry at [170]; R v Bavadra [2000] NSWCCA 292, (2000) 115 A Crim R 152 at [28]; R v House [2005] NSWCCA 88 at [10]. In addition the courts have expressed strong views about the use of knives: see, for example, Street CJ in R v Underhill (Court of Criminal Appeal, 9 May 1986, unreported) indicating that '[t]he knife is held in universal abhorrence within the community, and this view is shared by the criminal courts".
Nor is the respondents' relative youth of particular significance. As the Chief Justice said in R v Sharma [2002] NSWCCA 142, (2002) 54 NSWLR 300 at [74]:
"[74] Armed robberies of the character involved in the present proceedings, committed by young persons, generally with an addiction problem, are so prevalent that the objective of general deterrence is entitled to significant weight in the process of sentencing for this offence, notwithstanding the youth of the typical offender. (See R v Pham (1991) 55 A Crim R 128 at 135; R v Tran (1999) NSWCCA 109 at [9]-[11]; R v AEM Snr [2002] NSWCCA 58 at [96]-[102].)
The question of the suspension of a sentence was considered in R v Zamagias [2002] NSWCCA 17 at [32], where Howie J said this:
"[32] Further, a sentencing court must approach the imposition of a sentence that is suspended on the basis that it can be a sufficiently severe form of punishment to act as a deterrent to both the general public and the particular offender. Of course it must also be recognised that the fact that the execution of the sentence is to be immediately suspended will deprive the punishment of much of its effectiveness in this regard because it is a significantly more lenient penalty than any other sentence of imprisonment. The question of whether any particular sentencing alternative, including a suspended sentence, is an appropriate or adequate form of punishment must be considered on a case by case basis, having regard to the nature of the offence committed, the objective seriousness of the criminality involved, the need for general or specific deterrence and the subjective circumstances of the offender. It is perhaps trite to observe that, although the purpose of punishment is the protection of the community, that purpose can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender at the expense of deterrence, retribution and denunciation. In such a case a suspended sentence may be particularly effective and appropriate."
It has been repeatedly said that a sentence other than one of full-time custody should only be imposed in cases of armed robbery in exceptional circumstances: Henry (supra) at [113]. The Crown contended that no proper application of the subjective circumstances to the particular facts of the present case would produce a different result. The Crown emphasised the remarks of Mason P in R v Horne [1999] NSWCCA 391 at [15].
The respondents emphasised that her Honour revealed her process of reasoning in relation to her assessment of the objective seriousness of the offences in the following passage from her remarks on sentence:
"In terms of assessing the objective seriousness of this offence I find that it is clearly not the most serious example of armed robbery given this combination of factors but nor is it at the bottom of the scale. Whichever way it is characterised on the scale, they are nonetheless serious offences. The sentence should send a message of general deterrence into the community of the type referred to by the Court of Criminal Appeal in R v Henry. In relation to that guideline decision I accept that for offences of armed robbery, where the offence fits into the general categories referred to in that decision, a sentencing court should be looking to a starting point of an overall term of imprisonment as somewhere between four and five years with the appropriate necessary non-parole period. Many of the factors present in the Henry decision are present here. Each of the offenders is young. Each of them, in this case, has no previous criminal history. They were armed with a knife. There was very little property taken, or little property of value taken."
The respondents endorsed the factors to which the Crown refers as matters constituting the first five grounds of appeal as differentiating factors in this case. They drew upon the remarks of the Chief Justice in Mulato v R [2006] NSWCCA 282 at [37]:
"[37] Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour. In my opinion it was open, although I have some hesitation in deciding so and find it to be at the lower end of the range which could reasonably be held to be so characterised."
The point of difference between the respondents and the Crown is not the question of whether her Honour's characterisation of the seriousness of the offences was open to her. The Crown does not disagree with her Honour's assessment of the offences as serious offences, even described as not the most serious examples of armed robbery. Nor for that matter does the Crown disagree with her Honour's characterisation of the offences as not at the bottom of the scale of seriousness. The simple and fundamental point of difference between the Crown and the respondents is the manner in which her Honour purported to give effect to these otherwise uncontroversial descriptions.
In my opinion her Honour failed to give effect to the matters that she recognised and identified as the proper characteristics of the present offences. Her Honour's description of the seriousness of the offences on the one hand, and the ultimate sentencing result on the other hand, are discordant and the sentences imposed by her Honour cannot be shielded from intervention by this Court.
There is no doubt that her Honour's thoughtful and compassionate approach to sentencing was manifest in her remarks on sentence and also during the course of the sentencing hearing when her Honour's comments bear witness to the difficult task that confronted her. For example, her Honour said the following shortly before adjourning the sentencing hearing on 13 February 2009:
"…the other thing that needs to be said is that the easiest thing for me to do in this sentence matter, which would make life very straightforward for me, easy, completely unappealable would be to sentence them each to four years with a two year non-parole period and put them inside today and say come out in two years time because that would be with about four pages of reasons which would be pretty straightforward and I could recite off the top of my head right now, the easiest thing I could do and nobody could possibly complain about that because that would be entirely within guidelines.
If a more considered approach is required and it's fair to say then on behalf of each of the offenders their counsel has urged that when everything is taken into account I would find it possible to sentence them overall to terms of imprisonment that don't exceed two years and then for a whole series of reasons I would find it appropriate to suspend that so that they don't have to go back to prison. Now what members of the public understand is that even if I think that's a good idea, I'm not necessarily (a) allowed to do it and (b) whatever I do has to be done, considered, with reasons and in accordance with the law. If I were to do it any other way, not only would I not be doing my job properly but the DDP next week would put on a notice of appeal, go straight up to the Court of Criminal Appeal and they'd say she didn't do the job properly, go to gaol for two years and come out some time in 2011. So the easiest thing for me to do would be that, but that's not how I work and I'm going to spend some time thinking about which is going to take longer than four o'clock this afternoon. I still may send them to gaol for somewhere between eighteen months and two years with a parole period at the end of it…And then I need to think about how I'm going to express myself so that everybody knows where they stand and why I came to the decision that I did."
This material is naturally of only limited utility. In referring to what passed between her Honour and counsel I take note of the observations of Grove J in Daniels v R [2007] NSWCCA 372 and in particular the several passages extracted from the cases to which his Honour drew attention at pars [10] to [13] of that decision.
The Henry guidelines are no more and no less than that. They are indicative of the approach that courts should take in cases that are similar. The case itself recognises, and subsequent cases have emphasised, that there may be novel and unprecedented factors that will cause a sentencing tribunal to impose a sentence closer to one or other of the ends of the range considered in Henry to be the appropriate range, and that the type and character of such factors is not closed. As the Chief Justice said in that case at pars [126] and [169]:
"[126] The determination of an appropriate sentencing guideline for offences against s97(1) must commence with a recognition that the objective and subjective factors relevant to the exercise of the sentencing discretion, may vary over a wide range. See eg Brown (1989) 17 NSWLR 472 at 473-474. As I said in Jurisic with respect to s52A.
'The nature of the offence is not such that the Court can devise a simple table in which indicative penalties are linked to a quantitative measure of the offence … What can be done, however, in case of an offence concerning a wide range of conduct which varies qualitatively rather than quantitatively, is to indicate in a general way the kind of case which would usually require a particular kind or level of sentence, whilst acknowledging that there will always be exceptional cases'.
*****
[169] Aggravating and mitigating factors will justify a sentence below or above the range as this Court's prior decisions indicate. The narrow range is a starting point."
Her Honour failed to impose sentences that reflected her own accurate description of the objective seriousness of the offences. They were not the most serious armed robbery offences. They were not the least serious armed robbery offences. They were toward the lower end of the scale of objective seriousness for such offences. In my opinion her Honour's sentencing discretion would not have miscarried if she had sentenced the respondents to non-parole terms of imprisonment of 2 years, as her own comments in the course of the sentencing hearing revealed. I do not consider that her Honour's sentencing discretion would have miscarried in a way that would warrant the intervention of this Court on a Crown appeal if the only complaint were that the sentences of imprisonment imposed by her Honour for each offence had not been at least partially accumulated. I do consider that the imposition of sentences that do not result in the respondents serving some period of incarceration amounts to the imposition of sentences that are manifestly inadequate.
The respondents drew understandable attention to the well known principles that apply to Crown appeals enunciated by Wood CJ at CL in R v Wall [2002] NSWCCA 42 at [70], (2002) 71 NSWLR 692 at [70].
In R v Reynolds [2004] NSWCCA 51 at [26] Simpson J said:
"[26] I am satisfied, however, that counsel for the respondent is correct in his contention that the ultimate question is whether the sentence has been shown to be manifestly inadequate. That does not exclude the identification of specific error, where it can be shown, that may explain how manifest inadequacy came about. Identification of specific error alone is not sufficient to warrant upholding a Crown appeal; the Crown must go further and show that (possibly in the light of, or as a result of, the error) a manifestly inadequate sentence was imposed."
The respondents also contended that, in the absence of a well-documented error by the sentencing judge, the original discretion would only be interfered with in a compelling case. Successful Crown appeals should be rare in that category of case where no particular error can be identified: R v Baker [2000] NSWCCA 85. However, as will be apparent, I consider that her Honour erred in the ways I have described so that these cases do not apply.

I am mindful that it is not sufficient that this Court would have imposed a more severe sentence: R v Hallocoglu (1992) 29 NSWLR 67 at 78. Moreover, this Court retains a lively discretion to refuse to intervene: R v Holder; R v Johnston [1983] 3 NSWLR 245 at 255-256, (1983) 13 A Crim R 375 at 384-385. See also R v Tortell; R v Tsegay [2007] NSWCCA 313 at [59].
The respondents emphasised the sentiments so forcefully enunciated in Everett v R [1994] HCA 49; (1994) 181 CLR 295 at [13] as follows:
"[13]… As has been said above, the deep-rooted notions of fairness which underlie the common law principle against double jeopardy require that a court of criminal appeal approach an application by the Crown for leave to appeal against sentence on the basis that such leave should only be granted in the rare and exceptional case. Indeed, that approach was particularly appropriate in the present cases where the effect of the sentencing judge's orders had been that each of the appellants had been released from custody and had been permitted and encouraged to resume his place in the community and to set out on the path of rehabilitation."
The respondents also submitted that the Crown took a different approach on the proper sentence on appeal to the approach taken below so that the Court's discretion not to intervene was attracted by the principles discussed in R v Tait (1979) 24 ALR 473 at 477. The passage relied upon is not specified but is presumably the following:
"The Crown has been said not to be concerned with sentence (see, eg Lawrence J in Paprika Ltd v Board of Trade [1944] 1 All ER 372 at 374; [1944] 1 KB 327 at 332), but when a statutory right of appeal is conferred upon the Crown, that proposition must be more precisely defined. It remains true that the Crown is required to make its submissions as to sentence fairly and in an even-handed manner, and that the Crown does not, as an adversary, press the sentencing court for a heavy sentence. The Crown has a duty to the court to assist it in the task of passing sentence by an adequate presentation of the facts, by an appropriate reference to any special principles of sentencing which might reasonably be thought to be relevant to the case in hand, and by a fair testing of the defendant's case so far as it appears to require it. If the proposition that the Crown is not concerned with sentence was ever construed as absolving the Crown from this duty, it cannot be so construed when a Crown right of appeal against sentence is conferred. The Crown is under a duty to assist the court to avoid appealable error. The performance of that duty to the court ensures that the defendant knows the nature and extent of the case against him, and thus has a fair opportunity of meeting it. A failure by the Crown to discharge that duty may not only contribute to appealable error affecting the sentence, but may tend to deprive the defendant of a fair opportunity of meeting a case which might ultimately be made on appeal. It would be unjust to a defendant, whose freedom is in jeopardy for the second time, to consider on appeal a case made against him on a new basis - a basis which he might have successfully challenged had the case against him been fully presented before the sentencing court. As McClemens CJ at CL said in R v Jacombe, delivering the judgment of the New South Wales Court of Criminal Appeal (19 December 1974, unreported): "… we would not seem to encourage any system which meant that cases were brought here under s 5D of the Criminal Appeal Act on bases which were not argued before the judge below."
Although the existence of error is the common ground which entitles the appellate court to intervene in appeals by the Crown and by a defendant (cf R v Butler [1971] VR 892; R v Liekefett; Ex parte Attorney-General [1973] Qd R 355), there would be few cases where the appellate court would intervene on an appeal against sentence to correct an alleged error by increasing the sentence if the Crown had not done what was reasonably required to assist the sentencing judge to avoid the error, or if the defendant were unduly prejudiced in meeting for the first time on appeal the true case against him."
Counsel for the respondents went as far as to suggest that the Crown had failed in that duty "to the court to assist [the court] in the task of passing sentence by an adequate presentation of the facts, by an appropriate reference to any special principles of sentencing which might reasonably be thought to be relevant to the case in hand, and by a fair testing of the defendant's case so far as it appears to require it". When this Court sought elaboration of that submission by reference to the appropriate transcript references from the sentencing proceedings that contained the Crown's alleged shortcomings, counsel for the respondents provided a series of transcript references. Some of these references were to passages from the Crown's submissions and were accompanied by the re-occurring editorial assertion that counsel for the respondents had not been interrupted by the Crown when the specified submissions had been made.
That submission is puzzling on its face, but is no doubt explained by the fact that on the argument of the appeal it became apparent that there were occasions when her Honour interrupted the Crown part way through a submission, and to that extent interfered with the Crown's ability to provide assistance, in a way that was no fault of the Crown. I should also make it clear that by putting the matter in that way I am not implying that her Honour was at fault. Subject to the requirement of allowing a party to put its case, which no one suggests was breached here, a judge is entitled to cut short submissions that the judge is not finding helpful. The answer of substance to the respondents' submission is that none of the nominated references to the transcript contains any material upon the basis of which it could be said that the Crown below had adopted a position that is in tension with the Crown's present appeal to this Court. A failure to interrupt an opponent's submission is not a basis for asserting that it has thereby been accepted.
A review of the transcript of the sentencing proceedings confirms that there was a discussion between the Crown and her Honour on a variety of topics. Her Honour's contribution to that debate to some extent exceeded that of the Crown.
The facts as presented by the Crown were not in dispute. Counsel for the respondents at the sentencing hearing expressly acknowledged this. Written submissions on the Henry guidelines were also provided to her Honour.
The Crown acknowledged that the respondents made what she described as "full and frank admissions" as soon as they were spoken to by the police. Her Honour referred to the fact that the Crown case was strong and commented upon the relevance of the early pleas of guilty in that context. The Crown responded with the statement, "I think in this case nobody can take away from them that they've been willing to accept their responsibility for this offence since the very start". Her Honour noted that this was of "considerable utilitarian value".
The Crown subsequently made the following submission:
"…my submissions are really quite general, your Honour hears probably more than your Honour would care to hear, the Crown's representatives talking to you about Henry and I can only say – well you know I accept that it doesn't provide a fetter on your Honour's discretion, it was never meant to do so, it just provides a general starting point. There's no question in my mind and I will submit to your Honour that this is a case that factually and objectively falls within the general guideline judgment, you know it's all those things …".
The Crown also drew to her Honour's attention that there were five offenders in the shop, which she described as "frightening". She described the offences by saying that "objectively it's obviously a very serious matter" and that "it falls – as a starting point objectively within the Henry guideline judgment, the only question is where …".
The Crown later said this to her Honour:
"… the difficulty I have is I don't think I've heard my friend submitting to your Honour that your first finding shouldn't be that a full time custodial penalty, I think she accepts that that's the case but she's been moved on to ask that your Honour consider suspending that. My difficulty is that that means that if your Honour has to find a two year sentence …".
The respondents criticise the Crown for having made no submissions about mitigating factors. However, when counsel for the respondents had put all arguable mitigating factors, it was not the responsibility of the Crown to repeat them.
Following a discussion concerning the force and effect of certain subjective matters her Honour observed that the respondents were "very different people socially now than they were when they were arrested". The Crown responded by saying, "[b]ut ultimately the question is whether those factors are sufficient to bring this into the exceptional case scenario".
Finally, the Crown's concluding remarks at the sentencing hearing included the following:
"My ultimate submission to your Honour is that my view is that the objective seriousness of the matter does require a full-time custodial penalty and where it goes from there really is going to have to be a matter for your Honour."
The proposition that the Crown had failed in its duty was in my opinion an intemperate submission and should not have been made. Her Honour's comments recorded at par [80] demonstrate that she was in no doubt about the boundaries of her discretion. Nothing that her Honour decided was a function of the Crown's breach of duty. The Crown did not lead her Honour into error upon the basis of anything that was done or left undone.

Re-sentence

The respondents read a series of affidavits upon the basis that this Court would take the matters deposed to into consideration in the event that it determined to re-sentence the respondents. It is both instructive and important that that material is set out in full.
Mr Jebara swore an affidavit dated 3 June 2009 as follows:
"2. Since the date of the District Court sentencing by Judge Tupman on 6 March 2009, I present the following which summarises the day to day events that have taken place in my life:
(a) I continue to be employed as a subcontractor/cement renderer and handyman. I am currently earning the sum of $200 per day working 5-6 days per week.
(b) I have, since the last court hearing, been in a relationship with [my girlfriend]. I state and confirm that our relationship is very strong and I intend to move to the country and live with [her] and her family who own a large farm. I will be assisting her father at the farm with all aspects of farming work. I state that [my girlfriend's] family is in the business of growing figs and selling same as wholesalers to various outlets.
(c) I state and confirm that my family continues to support me and myself and my family hope to bring to an end this matter which has caused all of us a certain degree of anxiety and depression. I regret having committed this offence so strongly that this matter continues to disturb me and my sleep.
(d) I confirm that I dread the thought of going to jail as I have started now to pick my life up and I am currently looking after my siblings as my mother, elder sister and brother have gone overseas and will be there for approximately 3 months.
(e) I have great faith in the justice system and hope that this matter will be dealt with without having to disturb the earlier sentencing decision of Judge Tupman so that I can progress with my life without any further hiccups.
(f) I have recently received a letter from the NSW Department of Corrective Services that I no longer need to keep in contact with Mr Nowrot, my probation and parole officer…
3. Immediately after the sentencing I was pleased that the matter was over and considered that I have the chance now to put the past behind me and proceed picking up my life and to work for a better future. However ever since the DPP appeal was filed I have been under a lot of anxiety, depression and have had difficulties coping as I am so sorry that the initial incident took place and hope to put this matter behind me and move forward.
4. I state and confirm that my mother and the rest of my family were also pleased after the sentencing of 6 March 2009 that the matter was over…
5. I confirm that my whole family including my wife remain supportive of me notwithstanding the offence I committed and hope to see this matter finalised so that I may move to create a better future for myself and my family.
6. I state and confirm that I am currently employed…
7. I state and confirm that even though both Salman and Khader have pleaded guilty I reiterate my undertaking and commitment to give evidence against both of these men should I be required to do so."
Mr Jajou swore an affidavit dated 4 June 2009 in the following relevant terms:
"2. Since the date of the District Court sentencing by Judge Tupman on 6 March 2009, I present the following which summarises the day to day events that have taken place in my life:
(a) I continue to be employed by Sunset Smash Repairs as a spray painter. I am currently earning the approximate amount of $450 gross per week as an apprentice labourer.
(b) I continue to live with my wife Zena and do not yet have any children. However we are presently planning on having children.
(c) My wife is currently employed with the Marconi Club and earns approximately $500 per week.
(d) My wife and I, as newlyweds, try to share the every day living requirements in the hope of establishing a sound family life.
(e) I confirm and state that since my initial arrest for the offences subject to these proceedings I have not committed any other offences whatsoever nor do I have any plans or intentions to do so. I once again confirm that the initial offence was a huge mistake for which I continue to suffer. Since the last sentencing date I have been very anxious and worried because of the appeal and the upcoming hearing at the Court of Criminal Appeal.
3. I was, until recently, under the supervision of Probation & Parole but however I have received a letter from the service advising me that I no longer have to continue to report to my probation & parole officer Mr Henry Nowrot…
4. The whole case has been very long, very hard and very expensive. I was starting to plan for my future when I heard that the case was appealed. My mother fell sick when she knew and had high blood pressure and was admitted to hospital.
5. I know that this case is not over but I think I have suffered enough and pray to God that this matter will finally come to an end without me going to jail.
I am standing by my promise to give evidence against both Salman and Khader the other two people involved in the incident.
6. I am sorry for having done the robbery and ask that I am not sent back to jail as I have no one to look after my wife. I send my apologies to the court and the victims."
Mr Lafta swore an affidavit on 4 June 2009 as follows:
"2. Since the date of the District Court sentencing by Judge Tupman on 6 March 2009, I present the following which summarises the day to day events that have taken place in my life:
(a) I continue to be employed by my father in a trolley business known as Trolley Service. I am currently earning the sum of $700.00 gross per week. I work 7 days per week from 8.00am until 7.00pm.
(b) I am presently married and I live with my wife at my above mentioned address.
(c) My wife is not currently working as we are trying to have children. I confirm that on or about approximately 4 months ago my wife was pregnant but unfortunately had a miscarriage due to a fall down the stairs.
(d) I state and confirm that I have recently applied to Liverpool TAFE to start a Business Management Course. The course will start in July 2009. The course will go for approximately 2 years and I will be attending at the night sessions. I will be attending 3 nights per week and whilst doing so I will continue to work for my father in the trolley business in order to survive and sustain my family.
(e) I state and confirm that since the last offence committed by me on 6 April 2008, I have not committed any offences whatsoever nor do I intend to do so.
(f) I have also been complying with all directives of Probation & Parole and have been liaising with my parole officer Mr Henry Nowrot of the Liverpool District Office. I have recently received a letter from the NSW Department of Corrective Services… that I no longer need to keep in contact with Mr Nowrot…
3. I was relieved after the last court date but was very disappointed that the case was appealed. Since then I have been feeling bad and have been stressed out. I am really scared as I do not want to go to jail. I was in jail after the incident for about fourteen (14) days. It was really horrible being in jail.
4. I state that even though both Salman and Khader have pleaded guilty I reiterate my undertaking and commitment to give evidence against both of these men should I be required to do so.
5. Finally, I now enjoy work and am thankful for the help my family has given me and ask that this case be over without going to jail."
There is no doubt that the imposition of a sentence that requires any of the respondents to serve time in custody will be distressing and unpleasant for them and for their families. The fact that they did not receive a sentence that had this result in the first place will have made the continuation of their original concerns about such a sentence an added burden for each of them. The respondents drew attention to some remarks I quoted in R v Tortell; R v Tsegay (supra at [59]). I have reviewed that decision and the matters that it emphasised. It included the following:
"[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. "
However, his Honour McClellan CJ at CL also said this in that case at [9]:
"9 ... Even accepting that the corporal violence was not of a high order the legislature has made plain that the offence of robbery is very serious. It will be only be in an exceptional case that some form of custodial sentence will not be appropriate when robbery is committed in circumstances of aggravation."

Conclusion

I do not consider that these offences fall within the category of exceptional cases to which his Honour was referring. Nor do I consider that there is a particularly fine line between the sentences imposed by her Honour and sentences of the type that would not have led her Honour's discretion to miscarry. I consider in all of the circumstances that the sentences imposed by her Honour were manifestly inadequate and that the respondents should each serve a period of imprisonment. A comparison with the guideline judgment reveals at least the following.
First, each of the respondents was a young offender and none had a criminal history at all or of any relevance. Objectively the respondents were wholly within this element of the guidelines.
Secondly, each of the respondents was armed with a knife or a meat cleaver, which were clearly capable of killing or inflicting serious injury.

Thirdly, there was a limited degree of planning. However, planning was not wholly absent in the sense that the offences were spontaneous, reactive and opportunistic. The premises had been (unsuccessfully) checked for the presence of CCTV and the weapons had been taken to the premises as earlier described. The planning was wholly inadequate to avoid detection. The respondents had their escape from the vicinity of the shop arranged to take place in vehicles that were driven away immediately following commission of the offences.
Fourthly there was a real threat of violence. On one view the actual violence was limited to the actions of Mr Jebara as he reached across the counter to take hold of the shop attendant. The CCTV footage suggests that what occurred aligns with the guideline judgment in this respect rather than anything else.
Fifthly, the victim of the first offence was a shopkeeper. The victim of the second offence was a customer.
Sixthly, the amount taken was small.
Finally, the respondents all pleaded guilty. They had done so when interviewed in the face of compelling CCTV footage that was unusually clear and uninterrupted by extraneous factors such as obscured views or inadequate lighting.
In my opinion it is not correct to observe, as her Honour observed, that these offences fell at the lower end of the Henry range. What her Honour may have been intending to convey was that these offences fell at the lower end of armed robbery offences as a whole. That is undoubtedly correct. However, the Henry guideline incorporates as a given that the offences are not as serious as many others that fall to be considered under the same provision. It is an error to discount the seriousness of offences for sentencing purposes by what amounts to a double counting of the ameliorating effects that are inherent in the Henry analysis. In my view this is what her Honour did.
Taking into account the principles that guide this Court in re-sentencing an offender in the case of a successful Crown appeal and the time that each offender has already spent in custody, I would propose the following orders:
In the matter of R v Fadi Jajou:
1.            Appeal allowed.
2.Quash the sentences imposed upon the respondent Fadi Jajou by her Honour Tupman DCJ on 6 March 2009.
3.In lieu thereof the respondent is sentenced on the first charge to a non-parole period of imprisonment of 12 months commencing on 26 June 2009 and expiring on 25 June 2010 with balance of term of 12 months commencing on 26 June 2010 and expiring on 25 June 2011 and on the second charge to a non-parole period of imprisonment of 12 months commencing on 26 December 2009 and expiring on 25 December 2010 with balance of term of 12 months commencing on 26 December 2010 and expiring on 25 December 2011. The effective non-parole period is therefore 18 months commencing on 26 June 2009 and expiring on 25 December 2010.
The earliest date upon which the respondent Fadi Jajou will be entitled to be released will be 25 December 2010.
In the matter of R v Maher Jebara:
1.            Appeal allowed.
2.Quash the sentences imposed upon the respondent Maher Jebara by her Honour Tupman DCJ on 6 March 2009.
3.In lieu thereof the respondent is sentenced on the first charge to a non-parole period of imprisonment of 12 months commencing on 26 June 2009 and expiring on 25 June 2010 with balance of term of 12 months commencing on 26 June 2010 and expiring on 25 June 2011 and on the second charge to a non-parole period of imprisonment of 12 months commencing on 26 December 2009 and expiring on 25 December 2010 with balance of term of 12 months commencing on 26 December 2010 and expiring on 25 December 2011. The effective non-parole period is therefore 18 months commencing on 26 June 2009 and expiring on 25 December 2010.
The earliest date upon which the respondent Maher Jebara will be entitled to be released will be 25 December 2010.
In the matter of R v Sam Lafta:
1.            Appeal allowed.
2.Quash the sentences imposed upon the respondent Sam Lafta by her Honour Tupman DCJ on 6 March 2009.
3.In lieu thereof the respondent is sentenced on the first charge to a non-parole period of imprisonment of 12 months commencing on 26 June 2009 and expiring on 25 June 2010 with balance of term of 12 months commencing on 26 June 2010 and expiring on 25 June 2011 and on the second charge to a non-parole period of imprisonment of 12 months commencing on 26 December 2009 and expiring on 25 December 2010 with balance of term of 12 months commencing on 26 December 2010 and expiring on 25 December 2011. The effective non-parole period is therefore 18 months commencing on 26 June 2009 and expiring on 25 December 2010.
The earliest date upon which the respondent Sam Lafta will be entitled to be released will be 25 December 2010.
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LAST UPDATED:
26 June 2009