R v Nightingale

[2005] NSWCCA 147

CITATION:	Regina v Nightingale [2005] NSWCCA 147
HEARING DATE(S):	17 March 2005
JUDGMENT DATE:	22 April 2005
JUDGMENT OF:	Tobias JA at 1; Buddin J at 59; Hall J at 60
DECISION:	(1) Leave to appeal granted; (2) Appeal allowed with respect to the third offence and the sentence imposed by his Honour Judge Knight with respect to that offence be quashed; (3) In lieu thereof sentence the applicant on the third offence to a term of imprisonment of 6 years and 3 days to date from 20 May 2005 and expire on 22 May 2011 with a non-parole period of 4 years 22 weeks and 3 days to date from 20 May 2005 and expire on 24 October 2009 at which time the applicant will be eligible to be released on parole

CATCHWORDS:	CRIMINAL LAW - Sentencing - Appeal against severity of sentence - Inconsistency between sentencing judge's expressed intention in relation to time in custody and sentences actually imposed - Assessment of discount for plea of guilty - Timing and utilitarian value of plea - Relationship between non-parole period and balance of term of sentence - Where balance of term less than one-third of non-parole period - Whether sentencing judge erred in increasing statutory proportion - Whether accumulation of sentences constituted "special circumstances" under s 44(2) of Crimes (Sentencing Procedure) Act 1999 - Whether less severe sentence warranted in law given necessity of reflecting totality of criminality - Criminal Appeal Act 1912 s 6(3)
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912
CASES CITED:	R v Thomson (2000) 49 NSWLR 383 R v Hanslow [2004] NSWCCA 163 R v Dib [2003] NSWCCA 117 R v SY [2003] NSWCCA 291 R v Sundar [2005] NSWCCA 93 Simpson v The Queen (1992) 61 A Crim R 58 Close v The Queen (1992) 31 NSWLR 743 R v Clissold [2002] NSWCCA 356 R v Simpson (2001) 53 NSWLR 704 R v Ibrahim [2005] NSWCCA 43 Pearce v The Queen (1998) 194 CLR 610 R v HQ [2003] NSWCCA 336 R v Henry (1999) 46 NSWLR 346 R v Murchie (1999) 108 A Crim R 482
PARTIES:	Regina Scott Arthur Nightingale
FILE NUMBER(S):	CCA 2004/3110
COUNSEL:	A: P Pearsall R: J Bennett SC
SOLICITORS:	A: S O'Connor R: S Kavanagh

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/21/1205
LOWER COURT JUDICIAL OFFICER:	Knight DCJ

CCA 2004/3110

TOBIAS JA
BUDDIN J
HALL J

Friday 22 April 2005

REGINA v SCOTT ARTHUR NIGHTINGALE

Judgment

1 TOBIAS JA: The applicant seeks leave to appeal against the severity of sentences imposed upon him by his Honour Judge Knight of the District Court at Penrith on 20 May 2004.

The charges to which the applicant pleaded guilty

2 On 2 February 2004 the applicant pleaded guilty to an alternative count on what I shall refer to as the first indictment. The Crown accepted that plea in full discharge of the indictment. The primary count had pleaded an offence of assault with intent to rob in circumstances of aggravation contrary to s 95(1) of the Crimes Act 1900. The alternative count to which the plea was entered was that on 7 October 2002 at St Marys in the State of New South Wales, the applicant did assault Jian Zhen Liu thereby occasioning to him actually bodily harm contrary to s 59(1) of the Crimes Act 1900 (the first offence). This offence carried a maximum prescribed penalty of imprisonment for a term of five years.

3 The applicant also pleaded guilty to two counts on a further indictment (the second indictment) in respect of the following offences:

(a) That on or about 7 February 2003 at St Marys, whilst in company with Robert Cornish, the applicant did rob Branka Bruun of a sum of money contrary to s 97(1) of the Crimes Act 1900 (the second offence). This offence carries a maximum prescribed penalty of imprisonment for a term of 20 years.

(b) That on or about 7 February 2003 at St Marys whilst in company with Robert Cornish, the applicant did rob Elizabeth Dubos of a sum of money and immediately before the said robbery, the applicant did wound the said Elizabeth Dubos contrary to s 98 of the Crimes Act 1900 (the third offence). This offence carries a maximum prescribed penalty of imprisonment for a term of 25 years.

The sentences imposed

4 On 20 May 2004 the applicant was sentenced as follows:

(a) In respect of the first offence, to imprisonment for a fixed term of 1 year 6 months to date from 22 May 2003 and expire on 21 November 2004;

(b) In respect of the second offence, to imprisonment for a fixed term of 1 year 6 months to date from 21 November 2004 and expire on 20 May 2006;

(c) In respect of the third offence, to a term of imprisonment consisting of a non-parole period of 4 years and 37 weeks to date from 20 May 2005 and expire on 3 February 2010 with a total term of 6 years and 15 weeks to date from 20 May 2005 and expire on 1 September 2011.

5 The applicant was taken into custody on 7 February 2003 when he was charged in relation to the second and third offences. He has remained in custody since that date. He was arrested in relation to the first offence on 22 May 2003. The fixed term of 18 months of imprisonment for that offence was fixed by the sentencing judge to commence from that date. The 18 month fixed term of imprisonment imposed by his Honour for the second offence was dated from 21 November 2004 to coincide with the expiration of the sentence for the first offence. The sentence for the third offence was to commence 6 months into the 18 month sentence imposed for the second offence. The sentencing judge arrived at the non-parole period of 4 years and 37 weeks by indicating that he considered the appropriate non-parole period for the third offence to be 5 years with a commensurate total term but that he had reduced the non-parole period to 4 years and 37 weeks to take into account the 15 weeks the applicant had spent in custody between 7 February 2003 and 22 May 2003, being the date from which the non-parole period was to commence.

6 Importantly, the sentencing judge concluded his Remarks on Sentence in these terms:

"So as to make it abundantly plain, my intention is that the overall effect of the sentences that I have imposed is, in relation to time in custody, 6 years and 37 weeks with a total overall sentence of 8 years and 15 weeks."

An apparent error in calculation

7 During the course of the hearing I suggested to counsel that the sentencing judge might have miscalculated in the sentences he actually imposed the total non-parole period that he intended to impose. It seemed to me that the structure of the sentences actually imposed by his Honour would result in a total custodial period before parole of 6 years and 361 days dating from 7 February 2003 and expiring on 3 February 2010 whereas he had expressly said that he only intended to impose a total non-parole period of 6 years and 37 weeks (which translates to 6 years and 259 days), a difference of 102 days or 14 weeks and 4 days.

8 Furthermore, the structure of the sentences imposed resulted in a total overall sentence of 8 years, 29 weeks and 4 days (from 7 February 2003 to 1 September 2011) whereas his Honour said that he intended an overall sentence of 8 years and 15 weeks, a difference of 14 weeks and 4 days.

9 This suggested miscalculation by the sentencing judge was conceded by the Crown and, if correct, would entitle the applicant, at the very least, to a reduction of his non-parole period as well as his overall sentence by 14 weeks and 4 days with the consequence that the non-parole period imposed with respect to the third offence would expire on 24 October 2009 and the total term on 22 May 2011.

10 After reserving judgment it was brought to my notice that the miscalculation to which I had referred and which, at the time, was accepted by all members of the Bench and both counsel as having occurred, was in truth illusory. Having reconsidered the matter, it is apparent that there was no error in calculation by the sentencing judge for the following reasons.

11 It is apparent that his Honour intended the fixed term of imprisonment of 18 months for the first offence to be followed by a further fixed term of 18 months for the second offence. However, for the third offence he commenced the non-parole period 6 months after the commencement of that 18 month term.

12 As noted in [5] above, the sentencing judge considered the appropriate non-parole period for the third offence to be 5 years. Pausing there, his Honour must have intended a total non-parole period of 7 years made up of 18 months from 22 May 2003 to 21 November 2004, 6 months from 21 November 2004 to 20 May 2005 and 5 years from 20 May 2005 which would expire on 20 May 2010.

13 However, his Honour reduced that 5 years to 4 years and 37 weeks to take account of the fact that the applicant had been in custody for 15 weeks between 7 February 2003 and 22 May 2003.

14 Accordingly, it must follow that the sentencing judge intended the applicant to have a total non-parole period in custody of 7 years commencing on 7 February 2003 and which is the equivalent of 6 years and 37 weeks from 22 May 2003. On this basis his Honour was correct in providing that the non-parole period in respect of the third offence should expire on 3 February 2010 which is 7 years from 7 February 2003 (or close enough to it).

15 The problem comes with his statement recorded in [6] above that he intended the overall effect of the sentences in relation to time in custody to be 6 years and 37 weeks. In fact, it seems that his Honour intended the time in custody (that is, dating from 7 February 2003 when the applicant was first incarcerated) to be 7 years but which would be 6 years and 37 weeks not from 7 February 2003 but from 22 May 2003.

16 Accordingly, there is an apparent inconsistency between his Honour's expressed intention that there should be a 5 year non-parole period for the third offence adjusted to take account of the 15 weeks between 7 February 2003 and 22 May 2003 and his statement that he intended a total period in custody of 6 years and 37 weeks. If the latter is correct then there has been a miscalculation because the 6 years and 37 weeks should date from 7 February 2003 and not 22 May 2003. But if his Honour truly intended a non-parole period of 5 years for the third offence, then that results in a total non-parole period of 7 years to date from 7 February 2003 which would expire on 3 February 2010, which is in fact the sentence he imposed.

17 I have given earnest consideration as to what should now follow from this regrettable confusion, which has resulted in a concession from the Crown which may otherwise have not been made. There is no doubt that there is an inconsistency between the sentences imposed which result in a total non-parole period of 7 years and his Honour's stated intention that the applicant should spend 6 years 37 weeks "time in custody".

18 The question, therefore, is which is to prevail. Obviously both periods were intended to date from 7 February 2003. On balance, it seems to me that the proper course is for this Court to adopt the lesser of the alternative non-parole periods as that gives the benefit of the doubt to the applicant. The same course must be taken with respect to the overall head sentence. This means, in effect, that the Court is recognising as reflecting the sentencing judge's ultimate intention his expression of that intention in his concluding remarks set out in [6] above.

19 Notwithstanding the foregoing and the consequent reduction of the overall non-parole period by some 14 weeks and 4 days, the applicant submitted that he was entitled to a further 26 week reduction due to the errors advanced in the two Grounds of Appeal. To the issues raised by those grounds I now turn.

The relevant facts

20 The facts were agreed with respect to each of the three offences. I record them below as taken from the applicant's written submissions:

The first offence – assault occasioning actual bodily harm

21 On 7 October 2002 the applicant and three others caught a taxi from Kings Cross to St Marys. Upon arrival all persons got out of the taxi and one of them approached the driver's door and opened it. The other offenders also moved to the area of the door. The man who opened the door hit the driver three times with an implement causing two small lacerations to his scalp. Further blows were attempted but the driver blocked them and drove off. His injuries were treated with a dressing and tetanus injection.

22 The applicant was spoken to by police on 22 May 2003. A sample of his DNA was obtained and he exercised his right to silence. The applicant's fingerprints were found on the rear near side door and door frame of the taxi. The offenders had smoked cigarettes during the journey and the applicant's DNA was found on a cigarette butt in the taxi.

23 The Crown could not establish who had struck the blows but alleged that there had been agreement among all the passengers to commit the offence and that the other passengers were present assisting and encouraging the main offender.

The second offence – robbery

24 At 2.40pm on 7 February 2003 the applicant and one Robert Cornish went to Bare Bunnies, a St Marys brothel. There the applicant took hold of the victim Ms Bruun by the hair and repeatedly demanded money. He then grabbed another woman, placed a glass implement against her throat, demanded money and threatened to slash her throat. Ms Bruun gave the applicant $150 but he demanded more money. Ms Bruun obtained further money from the storeroom and gave it to the applicant. In total $1950 was taken from the premises.

25 The offenders left the premises and were arrested separately a short time later. On 11 February 2003 the victims of this and the following robbery identified the applicant from photographs.

The third offence – robbery with wounding

26 Earlier, at 12.20am on the same day (7 February 2003) the applicant and another person had gone to the Final Touch Relaxation Centre, also a St Marys brothel. After gaining entry the applicant took hold of the receptionist (the victim), pulled her to a desk by her arm and demanded money. The victim (Ms Dubos) attempted to press the alarm button. The applicant repeated his request for money and swung his arm at the victim's head. He then struck her with a scissors-like implement causing a 1cm cut to her head. In fear the victim gave the applicant $900. A man who came upon the scene was also hit a number of times. A short time later the offenders left. The victim was later treated for a wound to her forehead.

Subjective features

27 The applicant was 26 years of age and single at the time of the offences. He experienced learning difficulties at school and may have had attention deficit hyperactive disorder. He also had a long history of substance abuse. He had a prior criminal record and, of particular relevance, in 1999 had been convicted and sentenced in relation to the offences of aggravated robbery with wounding (when he received a sentence of a minimum terms of 2 years and an additional term of a further 2 years) and malicious wounding. At the time of committing the first offence he had completed only 20 months of his 24 month parole. His parole period in fact expired on 6 February 2003, the day before he committed the second and third offences. Upon the assumption that his parole period expired at 12.00 midnight on 6 February 2003, he committed the third and second offences at 12.20am and 2.40am respectively on the following day.

28 It is unnecessary to consider further the subjective features of the applicant's case for his Honour declined to find special circumstances with the result that the balance of the total term of imprisonment imposed by him with respect to the third offence did not exceed one third of the non-parole period as mandated by s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (the Act).

29 The sentencing judge did, however, consider that the objective seriousness of the robbery offences was towards and slightly below the middle for such offences.

Ground of Appeal 1 – in relation to the first offence his Honour erred in assessing the discount available for the guilty plea

30 In his Remarks on Sentence, his Honour noted that the applicant had entered pleas of guilty to all three offences. He then said this:

"Those pleas were not entered at the earliest reasonable opportunity. However, in my view, you are entitled to have a discount for the pleas of guilty of 20% made up as follows: for the utilitarian value of the plea – that is, saving the State the time, trouble and expense of a criminal trial – in each case I consider that you are entitled to a discount of 15% and I consider that you are entitled to a further discount of 5% for the remorse value of the plea in each case, making as I have said a total discount of 20% in relation to each offence."

31 Later in his remarks his Honour, when referring to s 21A(3)(i) of the Act, observed that the applicant had shown remorse as demonstrated by his pleas of guilty. He further said that, as required by s 21A(3)(k), he had taken into account those pleas in the way he had already indicated.

32 Although, as his Honour observed, it was correct that the pleas of guilty with respect to the second and third offences were not entered at the earliest reasonable opportunity, the Crown conceded that that was not the case with respect to the plea to the first offence. Although it had been entered on the date listed for trial, it was a plea to an alternative count on the first indictment and was entered at the first available opportunity, namely, when that charge was first offered by the Crown in lieu of the more serious primary count of assault with intent to rob in circumstances of aggravation contrary to s 95(1) of the Crimes Act 1900.

33 Accordingly, the applicant submitted that having estimated the utilitarian value of the discount for the guilty pleas on all counts at 15% based on the assumption that all pleas had not been entered at the earliest reasonable opportunity, his Honour ought to have provided a greater discount in relation to the guilty plea to the first offence as the timing of that plea was an important consideration in determining the appropriate discount: R v Thomson (2000) 49 NSWLR 383 at 419 [160], where the Chief Justice said:

"The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10%-25% discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge."

34 It is to be noted that the bottom of the range is 10% which would be the normal discount for a late plea given that the primary consideration of determining where in the range of discounts a particular plea should fall is its timing. In the present case the sentencing judge provided for a discount for the utilitarian value of each plea of 15% and a further discount of 5% for its remorse value. In this regard it is to be noted that when the applicant gave evidence at the sentencing hearing, although he expressed remorse with respect to the robberies the subject of the second and third offences, no such remorse was expressed by him with respect to the first offence.

35 It is trite that the discount for a plea of guilty is a discretionary matter and that a particular offender has no entitlement to any particular discount: R v Hanslow [2004] NSWCCA 163 [24] per Howie J (with whom Dunford and Adams JJ agreed). Furthermore, it is well established that a plea of guilty at the first opportunity available to a lesser count offered by the Crown does not lead automatically to the maximum discount for the utilitarian value of that plea: R v Dib [2003] NSWCCA 117 per Hodgson JA at [5] and [6]; R v SY [2003] NSWCCA 291 per Howie J (with whom Ipp JA and Whealy J agreed) at [86]-[87]; R v Sundar [2005] NSWCCA 93 at [21] and [22].

36 Although his Honour had mistaken the timing of the plea with respect to the first offence, nonetheless it appears to me that he has "rolled up" what he considered to be an appropriate discount with respect to the pleas to all three offences without differentiating between them both in terms of their utilitarian value and their remorse value. In my opinion he was entitled to approach the question of the appropriate discount in respect of the offences in this manner. The fact that he allowed a 15% discount for their utilitarian value notwithstanding their lateness indicates a fairly generous attitude to that aspect of their worth.

37 In any event, and as the applicant conceded, in all probability he would not be entitled to an increase in the discount for the first offence of more than 5%. This would amount to approximately 1 month out of the fixed term of 18 months. Such a reduction in the sentence imposed for the first offence, in my opinion, would be approaching "tinkering" with the sentence, which is inappropriate.

38 In my opinion, notwithstanding the factual error in question, it cannot be said that his Honour's sentencing discretion miscarried with respect to the sentence he imposed upon the applicant with respect to the first offence. Furthermore, given the objective seriousness of the offence (particularly in light of the fact that the applicant was on conditional liberty at the time of its commission and had received a fixed term sentence of 12 months imprisonment for the offence of malicious wounding on 20 August 1999), even if there was error on his Honour's part, I would not in terms of s 6(3) of the Criminal Appeal Act 1912 be of the opinion that a less severe sentence than an 18 month fixed term of imprisonment would be warranted in law and should have been passed with respect to that offence.

Ground of Appeal 2 – in relation to the second offence his Honour erred in not finding special circumstances to vary the proportion between the balance of the term of the sentence and the non-parole period

39 This ground concerns the relationship between the non-parole period imposed by the sentencing judge with respect to the third offence and the balance of the term and the requirement of s 44(2) of the Act that the balance of the term of the sentence in respect of that offence must not exceed one third of the non-parole period unless the Court decides that there are special circumstances for it being more. In the present case, s 44(2) is not strictly relevant as it is not suggested that the balance of the term of the sentence in respect of the third offence imposed by his Honour exceeds one third of the non-parole period: on the contrary, it is less than one third when the sentences for all three offences are taken into account and aggregated.

40 As already noted, the sentencing judge imposed a non-parole period of 4 years and 37 weeks with respect to the third offence with an additional and total term of 6 years and 15 weeks. The difference between the two is 109 weeks which complies with s 44(2). However, when the sentences are aggregated then, as already observed, the effective non-parole period which the applicant will spend in custody will be 6 years and 361 days which represents 81.6% of the total term of 8 years and 206 days. According to s 44(2), the relevant ratio should be 75%.

41 When one adjusts the figures to give effect to the sentencing judge's intention that the applicant's total time in custody was to be 6 years and 37 weeks with a total overall sentence of 8 years and 15 weeks, the ratio becomes 81%. A reduction of that ratio to 75% would require a reduction of the non-parole period of 6 years and 37 weeks to 6 years and 11 weeks (rounded to the nearest week). After reducing the non-parole period by 14 weeks and 4 days to give effect to the primary judge's intention as recognised by this Court in [18] above, it would require the non-parole period expiring on 24 October 2009 to be reduced by a further 26 weeks (rounded off).

42 The applicant submitted that the sentencing judge, when structuring the individual sentences, failed to have regard to the outcome which the accumulation of the three sentences produced. Although his Honour declined to find special circumstances, it is apparent that he overlooked the fact that accumulation of sentences can itself constitute "special circumstances": Simpson v The Queen (1992) 61 A Crim R 58 at 61; Close v The Queen (1992) 31 NSWLR 743 at 748-9; R v Clissold [2002] NSWCCA 356 at [19]; R v Ibrahim [2005] NSWCCA 43 at [16].

43 It was submitted by the applicant that although there is nothing in s 44 to constrain the discretion of the sentencing judge in relation to setting a balance of the total term which is less than one third of the non-parole term,

"one would expect a sentencing judge to refer to the fact in the remarks on sentence if that result were truly intended".

44 In R v Simpson (2001) 53 NSWLR 704, Spigelman CJ (with whom Mason P, Grove and Sully JJ and Newman A-J agreed) observed in relation to s 44(2) of the Act as it then appeared (at 719 [70]):

"… this statutory guide or fetter or constraint operates in one direction. It is a hurdle to be overcome if a lower proportion than that for which the statute provides is to be determined. There is no hurdle for a sentencing judge if that judge wishes to impose a higher than statutory proportion. Indeed, at all times the sentencing judge has a discretion to impose a fixed term without a non-parole period of any character …"

45 The Crown submitted that because the sentencing judge's discretion to increase the statutory proportion above 75% was unfettered, there was no obligation for his Honour to refer to the fact that he was so doing in his Remarks on Sentence.

46 I would agree with that submission so far as it goes. But if the sentencing judge intended to increase the statutory ratio, I would expect that he would make reference to that fact and indicate his reasons for so doing. His failure to do so may not of itself demonstrate error but it does indicate that his Honour may not have been fully aware of the consequences of accumulating the sentences in the manner he adopted. As I have already noted, he expressly declined to find special circumstances in relation to the third offence

"so that the balance of the total term of imprisonment does not exceed one third of the non-parole period".

47 Given that his Honour was conscious of the provisions of s 44(2) of the Act, as the above statement in his Remarks on Sentence indicates, I would have thought that he would have made specific reference to the statutory ratio even if he intended to accumulate the sentences in the other direction.

48 At the end of the day, however, the Crown appeared to concede that his Honour did err in increasing the statutory proportion from 75% to 81% and that he should have found that the accumulation of the three sentences did constitute "special circumstances". However, the Crown submitted that as s 6(3) of the Criminal Appeal Act 1912 requires, the appeal should be dismissed upon the basis that the Court could not form the opinion that some less severe sentence than that imposed was warranted in law and should have been passed.

49 In support of this contention, it was submitted that the fact that the overall non-parole period actually imposed was only some 6% higher than the statutory proportion was not such as to warrant the intervention of this Court as it was the inevitable consequence of the necessity to sentence for each offence in accordance with the High Court's decision in Pearce v The Queen (1998) 194 CLR 610 where the Court was sentencing for multiple offences in circumstances where a degree of overlap between the sentences was appropriate: R v HQ [2003] NSWCCA 336 per Spigelman CJ at [30]-[31].

50 The Crown submitted that the sentencing judge was conscious of the necessity to sentence for each offence and then, by overlapping the sentences to the degree adopted, achieve a result that satisfied the principle of totality referred to in Pearce. In this respect, it is to be noted that after he had imposed the sentences in respect of each offence and then partially accumulated them, his Honour (in the passage set out in [6] above) made it "abundantly plain" that it was his intention to impose a total non-parole period of 6 years and 37 weeks with a total overall sentence of 8 years and 15 weeks. Having so stated and after some further discussion between his Honour and counsel, when Mr Viney (then counsel for the applicant) referred to the fact that his Honour had "covered the issue of totality by overlapping the" sentences, his Honour responded as follows:

"There is a matter that I should refer to, thankyou. In sentencing in this matter, I have endeavoured to apply R v Pearce by sentencing in relation to each of the offences individually and then considering the question of totality."

51 In its written submissions the Crown contended that the objective gravity of the offences justified the sentences and non-parole periods which his Honour had imposed given his observation, after considering the facts relating to each of the offences, that those facts revealed

"very considerable criminality on [the applicant's] part. Any right-thinking member of the community will regard all three offences as being serious offences of violence to the person embracing very considerable criminality indeed."

52 It was then submitted that the first offence, even taken in isolation, was especially serious given the fact that it was committed whilst the applicant was on parole for other offences of violence. Furthermore, the second and third offences were committed within hours of the applicant's conditional liberty expiring although one could not imagine that the expiry of his parole period was a matter of which the applicant was conscious at the time of committing those offences. But as submitted by the Crown, it was eloquent of the contempt the applicant had for his conditional liberty. I would agree with that sentiment.

53 Furthermore, the Crown submitted that the fixed term sentence of 18 months imposed by his Honour with respect to the second offence was manifestly inadequate given the guideline promulgated in R v Henry (1999) 46 NSWLR 346 which has been held to be applicable to offences of robbery in company: R v Murchie (1999) 108 A Crim R 482 at 485 [20] per Simpson J, with whom Smart AJ agreed.

54 Accordingly, even making due allowance for the failure of the sentencing judge to find that the accumulation of sentences constituted special circumstances and/or that it was an error on his part to vary the statutory proportion in the manner adopted without a finding of special circumstances, nonetheless the resulting total non-parole period of 6 years and 37 weeks with a total overall sentence of 8 years and 15 weeks was well within his Honour's sentencing discretion and was appropriate to reflect the totality of the criminality for which the applicant was being sentenced.

55 In my opinion, there is substance in the Crown's submissions. Although the applicant has asserted, and the Crown has conceded, a technical error on his Honour's part involving, at its highest, a possible lack of appreciation that the aggregate sentences he was imposing would increase the statutory proportion between the total non-parole period and the total sentence, there is no doubt that his Honour made clear that he considered that, in terms of the necessity to reflect the totality of the applicant's criminality, a total non-parole period of 6 years and 37 weeks was appropriate. In fact, it is fair to say that although the applicant asserted in his written submissions that those sentences were "unduly harsh in all the circumstances", few if any oral or written submissions were advanced to justify that proposition.

56 Given his Honour's observations with respect to the objective criminality of the applicant, the minimal nature of the mitigating factors to which he referred on the one hand and the significant matters of aggravation on the other, I would accede to the Crown's submission that this Court could not form the opinion, within the meaning of s 6(3) of the Criminal Appeal Act, that some other less severe sentence was warranted in law and should be passed with respect to the totality of the three offences.

Conclusion

57 In my opinion the applicant's appeal against the severity of the sentences should fail subject only to an adjustment of the sentence for the third offence to take account of the discrepancy between the overall sentence that this Court has found his Honour intended to impose and that actually imposed.

58 I would therefore propose the following orders:

(1) Leave to appeal granted.

(2) Appeal allowed with respect to the third offence and the sentence imposed by his Honour Judge Knight with respect to that offence be quashed.

(3) In lieu thereof sentence the applicant on the third offence to a term of imprisonment of 6 years and 3 days to date from 20 May 2005 and expire on 22 May 2011 with a non-parole period of 4 years 22 weeks and 3 days to date from 20 May 2005 and expire on 24 October 2009 at which time the applicant will be eligible to be released on parole.

59 BUDDIN J: I agree with Tobias JA.

60 HALL J: I agree with Tobias JA.

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