R v Perese

[2001] NSWCCA 478

Reported Decision: 126 A Crim R 508

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Perese [2001] NSWCCA 478 revised - 14/12/2001
FILE NUMBER(S):	CCA 60455/00
HEARING DATE(S):	2 November 2001
JUDGMENT DATE:	13 December 2001
PARTIES :	The Crown Jonathon Perese
JUDGMENT OF:	Beazley JA at 1; Hulme J at 2; McClellan J at 59

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/12/0190
LOWER COURT JUDICIAL OFFICER :	Kirkham DCJ

COUNSEL :	P G Berman SC (Crown) T S Corish (Appl)
SOLICITORS:	Director of Public Prosecutions D J Humphreys
CATCHWORDS:	Criminal law - sentencing - whether sentence imposed was manifestly excessive - whether principles in R v Henry & Ors applied - whether adequate weight given to plea of guilty - whether sentencing judge erred by not separately identifying the component of the sentence relating to different offences
LEGISLATION CITED:	Crimes Act 1900 s 97(1) Crimes (Sentencing Procedure) Act 1999 s 33(3)
CASES CITED:	R v Henry & ors (1999) 46 NSWLR 346 Wong v The Queen; Leung v The Queen (2001) HCA 64 R v Thompson (2000) 49 NSWLR 383 Pearce v R (1998) 194 CLR 610 R v Barton [2001] 1 NSWCCA 63 R v Morgan (1993) 70 A Crim R 368 R v Bavadra (2000) 115 A Crim R 152 R v Harris [2001] NSWCCA 322 R v Lemene [2001] NSWCCA 5; 118 A Crim R 131 R v Dawson [2000] NSWCCA 399
DECISION:	See para 94

60455/00

BEAZLEY JA

HULME J

McCLELLAN J

THURSDAY, 13 DECEMBER 2001

REGINA v Jonathon PERESE

Judgment

1 BEAZLEY JA: I agree with McClellan J.

2 HULME J: On 26 May 2000, Judge Kirkham sentenced the applicant for leave to appeal in respect of a charge that, on 12 February 1999 at Parramatta in the company of other persons he robbed a bank officer of approximately $99,000, the property of the National Australia Bank.

3 Taken into account was a further offence of, on 17 June 1999, again in company, robbing another bank officer of some $26,500, the property of Westpac Banking Corporation.

4 Pursuant to s 97(1) of the Crimes Act each offence carries a maximum penalty of twenty years imprisonment although, because the second was taken into account and not itself the subject of a separate charge, no penalty greater than the twenty years prescribed in respect of the first charge could be imposed – see Crimes (Sentencing Procedure) Act 1999, s 33(3).

5 The sentence which was imposed was one of six years and six months imprisonment. Finding special circumstances in the applicant’s youth, contrition and regret which his Honour accepted as genuine, the view that the applicant’s prospect for rehabilitation was good and his need for an extended period of supervision by the Probation and Parole Service after the applicant’s release, his Honour imposed a non parole period of four years. Both periods were ordered to commence upon the date of the applicant’s arrest namely 17 June 1999.

6 In support of the application for leave to appeal against the sentence, it was submitted that:-

1. Judge Kirkham erred in failing to apply or properly consider the guideline judgment of this court in R v Henry (1999) 46 NSWLR 346.

2. Judge Kirkham erred in failing to give adequate weight to the applicant’s plea of guilty.

3. Judge Kirkham erred in failing to articulate and specify the way in which the sentence was arrived at and calculated (having regard to the fact that another offence was taken into account).

4. The sentence was manifestly excessive.

7 It will be convenient to address the second and third of these grounds first.

Ground 2
Judge Kirkham erred in failing to give adequate weight to the applicant’s plea of guilty.

8 It is acknowledged that his Honour stated that he took the applicant’s guilty plea into account but it was submitted that, by itself, this was insufficient and his Honour should have spelt out the way he did so, the level of discount he allowed, and the basis for the level adopted. Reference was made to the guideline judgment on this topic, R v Thompson (2000) 49 NSWLR 383.

9 Judgement in that case was handed down some three months after the applicant was sentenced so his Honour can hardly be criticised for not following any course there dictated for the first time. In any event the relevant part of the guideline was expressed in terms that “sentencing judges are encouraged to quantify the effect of the plea on the sentence in so far as they believe it appropriate to do so”. In the face of a statement so expressed, the omissions of his Honour encompassed by this ground cannot possibly be regarded as errors of law arguing for the allowance of the application. The ground fails.

Ground 3
Judge Kirkham erred in failing to articulate and specify the way in which the sentence was arrived at and calculated (having regard to the fact that another offence was taken into account).

10 In Pearce v Queen (1998) 194 CLR 610 a majority of the High Court 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”.

11 Their Honours also said “it is highly undesirable that the process of sentencing should become any more technical than it is already” and “[E]xcessive subtleties and refinement” must be avoided.”

12 In that case their Honours were dealing with sentences imposed in respect of counts in an indictment and not circumstances where offences had been taken into account under s 33 of the Crimes (Sentencing Procedure) Act or its equivalent. While some of their Honours’ reasoning undoubtedly applies in this second situation, the situation often involves additional considerations also. Very often a substantial number of offences are taken into account with a view to “cleaning the slate”, and a judge is told relatively little about them. That is not, of course, this case but it does to my mind indicate that what the High Court said should not be taken as necessarily governing the situation where offences are taken into account.

13 It would in my view be utterly impractical to require that in all cases where the procedure under s 33 is invoked individual sentences be stated in respect of all offences taken into account. To dictate that, as a matter of law, it must be stated in some cases will only lead to numerous arguments about when such a procedure should be followed and I do not believe the decision in Pearce should be extended generally to cover offences taken into account as distinct from offences charged.

14 On the other hand, those considerations of practicality do not apply to the offence or offences charged. I see no reason why the considerations adverted to by the High Court should not lead judges to identify the penalty that would have been imposed had there been no offences taken into account. Indeed, for reasons of transparency and demonstrating that justice is both done and seen to be done, it is eminently desirable that such a course be followed.

Grounds 1 and 4
1. Judge Kirkham erred in failing to apply or properly consider the guideline judgment of this court in R v Henry (1999) 46 NSWLR 346.

4. The sentence was manifestly excessive.

15 It is convenient to consider these grounds together.

16 It was acknowledged that his Honour addressed all of the characteristics in respect of which the guideline in R v Henry was set and that, while his Honour did not specifically state whether he had formed the view that the applicant fell within the range of circumstances where the guideline should apply, his Honour had said that it did not apply to the applicant’s brother, one of his co-accused, and that the criminality of the two could not be distinguished. It was submitted that this was erroneous and that his Honour should have considered the guideline as setting the appropriate range of penalty, should then have considered whether there were any aggravating or mitigating features warranting a sentence above or below that range and should have considered the actual sentence imposed and the reasoning adopted in the actual re-sentence of Messrs Henry and Barber, two of the seven offenders whose situation was considered in the course of the hearing leading to the guideline judgments.

17 A short answer to the last of these submissions is that his Honour was not asked to do so. Furthermore, he was under no more obligation to consider the particular sentences imposed on those two offenders and the reasoning peculiar to them than he was to consider what this Court has said in any of the numerous cases for similar offences which have come before it. His Honour’s primary obligation was to pay appropriate attention to the statute and general sentencing principles. Other statements of this Court may have been helpful but his Honour was under no such obligation as that suggested.

18 Consideration of the other arguments requires some further reference to the circumstances of the offence and of the applicant. The circumstances of the offence charged were that the applicant, a brother and a third person jumped over the service counter of the bank, ordered members of the staff to stand back, appropriated the money the subject of the charge and ran out of the bank. It would appear that there was a fourth person acting as look out. No weapons were produced or sighted. The applicant’s fingerprints were found in a position virtually impossible for a customer to reach. When, on 18 June 1999, the applicant was formally questioned about the robbery of the bank, he asserted he knew nothing about it and had never been inside the bank.

19 The offence at the Westpac Bank took a similar form. Shortly afterwards the applicant was arrested. In respect of this offence also, when interviewed he denied his involvement. Virtually none of the proceeds of the offences has been recovered.

20 The applicant was born on 9 February 1981. In March 1997 he was charged with two counts of armed robbery in company. In due course he was convicted and sentenced to a control order for approximately seven months. Later that year he was convicted of further charges of robbery and assault with intent to rob. In February 1998 he was charged and convicted of breaking and entering and stealing. In June 1998 in Queensland he was found guilty of two counts of wilful destruction and one recorded as “enter premises and commit an indictable offence plus break”. It may be that no conviction was recorded under a provision similar to s 10 of the Crimes (Sentencing Procedure) Act 1999.

21 He had had a poor upbringing, his mother abandoning the family when he was five. He left school at fourteen at which age narcotics abuse commenced. He has virtually no work experience. Since incarceration he seems to have applied himself to various courses which are available. He has impressed his drug counsellor with his response and attitude.

22 In R v Henry this Court said as a guideline that sentences for offences having the characteristics set out below should generally fall between four and five years for the full term. The characteristics were:-

1. Young offender with no or little criminal history.
2. Weapon like a knife, capable or killing or inflicting serious injury.
3. Limited degree of planning.
4. Limited, if any, actual violence but a real threat thereof.
5. Victim in a vulnerable position such as a shopkeeper or taxi driver.
6. Small amount taken.
7. Plea of guilty, the significance of which is limited by a strong Crown case.

23 The circumstances to which I have referred above show that in the case of both offences:

1. The applicant was young – just 18 - but had a substantial criminal history for somewhat similar offences.
2. There was no evidence of a weapon.
3. The circumstances suggest considerably more than a limited degree of planning: Certainly there is nothing to suggest that planning was only of limited degree. Kirkham DCJ said there was some planning.
4. There was no actual violence but a real threat thereof.
5. The victims were not in the vulnerable positions of shopkeepers or taxi drivers.
6. The amounts taken - $99,000 and $26,500 were not small, either as that term would be understood generally or as it was used in R v Henry .
7. The applicant pleaded to one and in effect to both offences. In the case of both the Crown case would seem to have been strong.

24 I should say a little more about the fifth of these matters. Kirkham DCJ said that the victims were in a vulnerable position being bank officers. While clearly banks and their employees are vulnerable to attacks such as those committed by the applicant and his accomplices, this is not the sort of vulnerability to which the court was referring in R v Henry. Banks commonly have significant security devices or systems in place and their employees are not generally isolated as are the type of victims to which reference was being made in R v Henry. However, given the much larger amounts of money commonly to be found in banks, the difference between, on the one hand, them and their employees as victims and, on the other hand, those victims to which R v Henry was referring, is not a factor tending to make a robbery of a bank less heinous or deserving of punishment than robbing of a shopkeeper or taxi driver.

25 So far as the other matters listed are concerned, the absence of a weapon such as a knife or gun argues significantly for lesser criminality than an offence which involves such a weapon. I appreciate that under s 97(1) of the Crimes Act both robbery in company and robbery whilst the offender is armed with an offensive weapon or instrument carry the same maximum penalty but experience and the authorities show that the risks associated with the mere presence of a lethal weapon in the stressful circumstances of a robbery are such that it is a seriously aggravating circumstance.

26 However, the other differences between the circumstances here and those contemplated in R v Henry operate adversely to the applicant. He was clearly a recidivist who had used up the leniency generally extended to first, or near first, time offenders. The amounts taken also argue for a punishment higher than when the amount is small. Those who adopt the role of criminal for high stakes must expect that the courts will follow a similar approach with a view to ensuring there is a sufficient disincentive to discourage repetition.

27 In totality, the differences between the applicant and each of his offences on the one hand, and the circumstances the subject of the guideline, were such that, absent other mitigating features – and there were none - each offence merited a sentence in a range higher than the four to five year guideline indicated in R v Henry. Whether this conclusion be reached by saying that that guideline has no application or that it does, but the facts of this case require some upward adjustment does not matter. The fact is that the applicant in robbing the National Australia Bank committed an offence for which the penalty prescribed by Parliament is twenty years imprisonment. The circumstances were not within the category of a worst case calling for that penalty but the applicant’s record and the amounts taken place that offence well up the scale.

28 But there was in addition the offence which was taken into account. As a completely separate offence under s 97(1) in its own right it merited a substantial penalty or increase in the penalty otherwise appropriate. Having regard to the applicant’s record and to the amount involved, I am by no means persuaded that the applicant’s sentence, had it been imposed for the offence charged alone, would have been manifestly excessive. Once the second offence was taken into account, the sentence imposed on the applicant was, having regard to his offences and antecedents, lenient.

29 This conclusion provides a further answer to any operation being given to the applicant’s third ground of appeal. Once recognition was given to the sentence the applicant deserved for each of his offences, the exercise which the applicant urged in ground 3 should be undertaken, would not have availed him even after principles of totality were allowed their proper operation.

30 The conclusion makes it unnecessary to embark on the question of whether when an offence is taken into account pursuant to the provisions of s 33 of the Crimes (Sentencing Procedure) Act the penalty, or increase in penalty, imposed in consequence of it should be less than had that offence been made the subject of a specific charge. However as the matter has been argued, McClellan J has entered upon the topic, and I have been a party to some inconsistency in approach apparent on the authorities, it may be appropriate for me also to do so.

31 Section 33 reproduces provisions which, with presently immaterial differences, have been present in the criminal legislation of this state for many years and it is unnecessary to reproduce it here. The section enables a court when sentencing an offender for an offence to take into account other offence(s) with which the offender has been charged. However, the court can only do so with the consent of the offender and if he admits his guilt to those further offence(s). Even if the court does take the further offence(s) into account, the penalty imposed must not exceed that prescribed for the principal offence. By virtue of s 34, a court taking offence(s) into account can impose no separate penalty for them.

32 In relation to one of the preceding pieces of legislation, it was said in this Court by Campell J, with the concurrence of Yeldham J as long ago as Vougdis and Rossides (1989) 41 A Crim R 125 at 129 that “I do not consider that there is any limitation as to penalty placed by practice or principle upon the sentence where matters are taken into account under a ninth schedule, other than that provided for in the section itself.”

33 In Morgan (1993) 70 A Crim R 368, those remarks were endorsed by Hunt CJ at CL. His Honour went on to add that “Whatever the practice may have been before Vougdis, it is wrong in principle that there should only ever be little by way of addition to the penalty imposed upon the offence charged when another offence is taken into account pursuant to s 21” of the Criminal Procedure Act 1986 (NSW). Loveday J concurred and, so far as this aspect is concerned, so did Allen J.

34 In Bavadra [2000] 115 A Crim R 152 at 158 Wood CJ at CL, with the concurrence of Beazley JA and Greg James J, said:-

“When serious offences are included in a Form 1, the sentence imposed, in respect of the count for which they are taken into account, must reflect the totality of the criminal involvement. It is not the case that Form 1 offences need only be noted in passing, or that little by way of additional penalty should be imposed by reason of their existence: Morgan (1993) 70 A Crim R 368 at 372 per Hunt CL at CL.
There is a considerable advantage to the administration of justice, and to accused persons, for a party facing sentence to clean up the record. For that purpose the Form 1 procedure is beneficial. The objective of individual rehabilitation can be advanced by its use, since the offender does not face the prospect of further trials. There is a utilitarian value in the admission of guilt that is involved so far as there can be a saving of the resources of the law enforcement agencies and the courts concerned. Additionally, the sentencing judge is placed in a position where it is possible to sentence the offender for the totality of his or her outstanding criminality to that point. However, unless proper weight is given to the additional offences that have been disclosed, this procedure fails its true purpose.”

35 In R v Dawson [2000] NSWCCA 399, with the concurrence of Barr J, and after citing the above passage from Morgan I said:-

“It was asserted by Mr Byrne, senior counsel who appeared for the Applicant that one of the purposes of s21 was to enable an offender’s slate to be wiped clean and, perhaps as an inducement to have this done, the practice in the sentencing courts was to impose substantially less by way of penalty for matters taken into account than would occur if they were included in an indictment. To the extent to which the application to have matters taken into account amounts to an acknowledgment of guilt and any punishment for them and the offence charged must reflect principles of totality, it is of course proper that the penalty imposed for matters taken into account be less than if those matters had stood alone as individual and lone charges. Often the operation of the principle of totality may have the effect that relatively little is added for the charges taken into account.

However, subject to the limits imposed by s21 itself, (now replaced by s33 of the Crimes (Sentencing Procedure) Act 1999) it seems to me that there is no basis in either the statute or logic to justify a general approach of treating matters taken into account as thereby meriting a lower penalty than had they been the subject of specific charge. If the practice of sentencing courts is as Mr Byrne asserts, it is in my view, wrong.”

36 However, in R v Lemene [2001] NSWCCA 5, Simpson J said:-

“The procedure so afforded is not a procedure whereby an offender can admit to the commission of offences, and wipe the slate clean without incurring any additional penalty. Nor is it a procedure which necessarily results in only a small penalty additional to that which would otherwise have been imposed in relation to the principal offence: Morgan 372. In saying this, I recognise that an offender who adopts the procedure is entitled to expect that the additional penalty will be significantly less than would have been imposed had separate charges been prosecuted. If that were not so, the section would provide no incentive for the use of the procedure, which is administratively convenient both to the prosecution and to the courts. For it to be attractive to an offender, it must afford some benefit to him or her also.”

37 In R v Barton [2001] NSWCCA 63 Carruthers J said that:

“It is important to recall that in Morgan … Hunt CJ at CL emphasised that when dealing with matters of a Form 1 an otherwise appropriate sentence for the foundation offence should not be only slightly increased when the offences to be taken into account in the Form 1 are serious in their own right.”

38 In a separate judgment the Chief Justice also accepted Vougdis and Morgan. His Honour went on to say:-

“In the present context it is clear that the provisions of the statutory regime to which I have referred must have the effect of resulting in a longer sentence or greater penalty than would have been the case if one was dealing only with what is referred to as the primary offence. This has frequently been acknowledged in the authorities. ( R v Bachelor (1952) 36 CAR 64 at 67-8; R v White (1981) 28 SASR 9 at 12-14; and R v J (1992) 59 SASR 145 at 152).
The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community’s entitlement to extract retribution for serious offences when there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express position in subs 33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another. “

39 Sperling J agreed with the reasons of the Chief Justice and Carruthers J.

40 In R v Harris [2001] NSWCCA 322 Simpson J returned to the topic. On this occasion her Honour said:-

“A judge sentencing for an offence in relation to which he or she is asked to take into account additional offences should give due recognition to the gravity of those offences: ( R v Morgan (1993) 70 A Crim R 368; R v Barton [2001] NSWCCA 63, unreported, 5 March 2001; R v Bavadra [200j] NSWCCA 292; 115 A Crim R 152. “

41 Her Honour went on to refer to many of the passages I have quoted above, including some of my remarks in Dawson, expressing the view that her opinion stated in Lemene was consistent with that expressed by Wood CJ at CL in R v Bavadra. She continued:-

“A particular difficulty confronts sentencing judges where the additional offences are numerous or very serious. The only restriction placed upon the sentencing judge is that the sentence imposed for the offence in relation to which the additional offence is (or offences are) taken into account must not exceed the;
‘maximum penalty that the court could have imposed for the principal offence had the further offence not been taken into account.’”

42 Spigelman CJ and Einfeld AJ agreed with Simpson J.

43 What conclusions follow from the statutory provisions and the remarks that I have quoted. It seems to me that they include the following. Firstly, the taking into account of the additional offences should generally lead to a higher sentence than would otherwise have been imposed. The additional offences demonstrate greater criminality than had the offence charged, and in relation to which the additional offences were taken into account, stood on its own. As the Chief Justice said in R v Barton, “ a court … takes into account the matter for which guilt has been admitted, with a view to increasing a penalty that would otherwise be appropriate for the particular offence”. The first sentence in the passage I have quoted from R v Lemene is to similar effect.

44 Of course, I do not suggest that a higher sentence will result in all cases. Sometimes the offences taken into account are almost but incidents of the offence charged. Sometimes the criminality in them pales into insignificance compared with that involved in the offence charged. And no doubt there are other circumstances which will lead to the same result.

45 Secondly, to adapt the words of Wood CJ at CL in Bavadra, “proper weight (should) be given to the additional offences” and “the sentence imposed, in respect of the count for which they are taken into account, must reflect the totality of the criminal involvement”. I acknowledge that the last passage was contained in a sentence wherein his Honour was referring to serious offences. However it cannot be thought that his Honour intended an illogical departure from the basic principle that all sentences, not only those for serious offences, should reflect the criminality involved. See also the first sentence I have quoted from R v Harris.

46 Thirdly, at least many other common facets of sentencing practice are to be taken into account. These include acknowledgments of guilt, principles of totality and the utilitarian benefits resulting to the justice system. – Bavadra and R v Dawson.

47 Fourthly, subject to the statutory limit and two other matters, there is nothing to suggest that in the determination of the weight to be given to the offences taken into account, there should be any departure from normal sentencing principles.

48 One of these matters is the Chief Justice’s suggestion that the way in which the court takes additional offences into account is by giving greater weight to personal deterrence and retribution – only two of the five purposes of criminal punishment mentioned in Veen v R (No 2) (1987-1988) 164 CLR465 at 476. His Honour cited no authority for the implicit suggestion that the other three purposes do not figure in the exercise and, with respect, I am unable to see that they should not. Protection of the community and general deterrence, to mention two of the other purposes, are no less important in the case of the burglar who has a dozen or so such offences taken into account. And in Bavadra Wood CJ at CL referred to the issue of rehabilitation.

49 The second of the matters is Simpson J’s statement in Lemene that:-

“an offender who adopts the procedure (of having offences taken into account) is entitled to expect that the additional penalty will be significantly less than would have been imposed had separate charges been prosecuted. If that were not so, the section would provide no incentive for the use of the procedure, which is administratively convenient both to the prosecution and to the courts. For it to be attractive to an offender, it must afford some benefit to him or her also.”

50 It would appear from the report that in R v Lemene Simpson J was not referred to Bavadra or Dawson. However she was clearly aware of these authorities in R v Harris where she said, with the concurrence of the other members of the court that her opinion stated in Lemene was consistent with that expressed by Wood CJ at CL in R v Bavadra.

51 With respect, I am unable to agree. Firstly, in R v Bavadra Wood CJ at CL drew attention to a number of benefits to an offender in agreeing to have offences taken into account which would exist irrespective of whether there was a discount for adopting that procedure rather than pleading guilty to the same offences charged. Secondly, while Wood CJ at CL recognised that “there can be a saving of the resources of the law enforcement agencies and the courts concerned”, that is not a necessary incident of the adoption of the procedure. Thus while in the case of this offender, the offence charged was that committed at the National Bank and that committed at the Westpac Bank was taken into account, his co-offenders were charged with the offence committed at the Westpac Bank and in the case of one of them the offence at the National Bank was taken into account. The applicant and his co-offenders were dealt with together before Judge Kirkham. It seems clear that both offences were fully investigated and there is nothing to suggest that there was any benefit to the administration of justice from the adoption of one course rather than another. Previous experience – e.g. in R v Kay [2000] NSWSC 716 is to similar effect.

52 I do not doubt for one moment that where there is utilitarian benefit to the justice system from the taking into account of additional offences it is appropriate that that be recognised in a sentence lower than would otherwise be imposed. Considerations which result in discount for a plea of guilty – see R v Thomson and Houlton (2000) 49 NSWLR 383 so dictate. And as in the case of a plea, the reward or discount given to an offender should, within limits, vary with the benefit to the justice system.

53 Of course when offences are taken into account, general considerations such as totality are likely to operate as reducing factors. An offender’s willingness to admit to the offences may be a firmer indication of contrition and prospects of rehabilitation. However, as I said in R v Dawson, I see no justification for a general approach of imposing a lower penalty for matters taken into account than when they are the subject of a charge, in effect, just because they figure on a different piece of paper. Experience shows that it is impossible to predicate that in all cases, the justice or law enforcement systems benefit from the difference and there is otherwise no basis in the statute or logic for introducing yet another discount from what the considerations in Veen v R (No 2) would indicate to be a proper sentence.

54 Because of the length of the sentence imposed, I would propose that leave to appeal be given. However, the appeal should be dismissed.

55 Before leaving the matter, there is one further matter to which I would wish to advert. During the course of the appeal, statistics kept by the Judicial Commission in respect of offences under s 97(1) were brought to the court’s attention. They reveal that since May 1999 (when the decision in R v Henry was delivered), of 205 offenders dealt with for offences under s 97(1) and who were under twenty-one and who had pleaded guilty, 165 were sent to prison. Of those that were, 57 or 34% had head sentences imposed of, or of less than, 36 months, and 80 or 48% had head sentences imposed of, or of less than, 42 months.

56 Of the 165 sent to prison, 82 (50%) had minimum, fixed or non-parole periods of 18 months or less. A further 38 (23%) had minimum, fixed or non-parole periods of between 18 and 24 months and a further 19 (12%) had minimum, fixed or non-parole periods of between 24 and 30 months.

57 I appreciate that not all offences under s 97(1) are as serious as those fulfilling the guidelines in R v Henry, generally meriting head sentences of between four and five years, but the above statistics do give cause for concern that insufficient attention is being given to both what was decided and the reasons in that case. For the prevalent and serious offences falling within s 97(1), only 45 out of 205 offenders (22%) falling within the description indicated were sentenced to non-parole or minimum terms of more than two years. It is perhaps no wonder such offences are prevalent.

58 Since the above was written the High Court has made its decision in Wong and Leung v R [2001] HCA 64. Notwithstanding the remarks in that case concerning guideline judgments, when regard is had to the limited reliance which I have placed on the guideline in R v Henry, I do not regard it as necessary to rewrite anything I have said. However I would add this. I was a member of the Court in R v Henry. I took the view that as a general proposition, an appropriate sentence for offences of the nature described in the guideline should be higher than did the majority. I set out at some length my reasons for that conclusion. Not all that I said applies to the circumstances here, particularly because of the absence of a weapon, but much does. I do not need to repeat them but the remarks that do apply demonstrate that the sentence imposed by Judge Kirkham was not excessive, let alone manifestly so.

59 McCLELLAN J: The applicant, Jonathon Perese, seeks leave to appeal against a sentence imposed on him by Kirkham DCJ on 26 May 2000. The applicant pleaded guilty to an indictment charging him with the offence of robbery in company. The offence is one for which s 97(1) of the Crimes Act provides a maximum penalty of twenty years imprisonment. Although the indictment included only one offence, the sentencing judge was asked to take into account, under s 33(3) of the Crimes (Sentencing Procedure) Act 1999 the fact that the applicant also participated in another robbery in company with his brother who participated in both robberies.

60 The applicant was sentenced to a term of six years and six months imprisonment, and Kirkham DCJ, having found special circumstances, set a non-parole period of four years.

61 The applicant submits that the sentence imposed was excessive. It is submitted that: the sentencing judge failed to correctly apply the principles provided in R v Henry & Ors (1999) 46 NSWLR 346; failed to give adequate weight to the applicant’s plea of guilty; erred by not separately identifying the component of the sentence relating to the other offence, and; imposed a sentence which was manifestly excessive.

62 The offence on the indictment was committed on 12 February 1999 when at about 5 pm the applicant, his brother, Leasuasu Perese, and a third man entered the National Australian Bank at Parramatta. They jumped over the service counter, intimidated the staff who were made to stand back against a wall and took a total of $99,000 including money from a safe. No weapon was apparent, the offenders escaping on foot. No person was injured. None of the stolen monies has been recovered.

63 The other offence took place at about 3.50 pm on 17 February 1999 when the applicant, his brother, another male and a female entered the Parramatta branch of the Westpac Bank. The female joined the queue and, when at the counter, one of the men lifted her onto it where she cried out “Don’t hit the button”, a reference to the button that operated the robbery shutters in the bank. The men then jumped over the counter and threatened the staff and took cash totalling $26,532. Again, no weapon was observed and no one was injured.

64 The applicant was arrested later that day. A search of the premises where he was found with his brother recovered cash totalling $1,100.

65 Kirkham DCJ was urged to consider the appropriate sentence having regard to the guideline judgment of this Court in Henry. His Honour expressly determined that it was not applicable with respect to Leasuasu Perese, however, with respect to the applicant, the position is not entirely clear. Although Kirkham DCJ does not indicate whether Henry should be applied, his Honour considers the matters relevant to sentence having regard to the factors identified as relevant in Henry.

66 The decision in Henry concerned the offence of armed robbery and the principles which it provides must be understood as particularly relevantly to an offence which involves a weapon (p 380). Because the present matter did not involve a weapon, the guidelines set out in Henry were of less utility than might otherwise have been the case.

67 Kirkham DCJ identified the following matters as relevant when sentencing the applicant.

1. The applicant was, at the date of sentence, aged nineteen years and although young, he has a significant criminal history. His first appearance was before the Cobham Children’s Court, on two charges of armed robbery in company. Following an appeal there was a reduction in the control order provided. In December, 1997, some three months after the amelioration of his control order, he appeared again at the Cobham Children’s Court on one charge of robbery, one of assault with intent to rob and three of robbery in company. A further control order was imposed of some ten months. Two months later he appeared at the same court on one count of break, enter and steal. In June 1998 he appeared at Redcliffe Magistrate’s Court in Queensland on two charges of wilful destruction and was dealt with according to the equivalent provisions of the then s 556A of the Crimes Act , now s 10 of Crimes (Sentencing Procedure) Act 1999. He appeared again at the same court on 29 June 1998 on a count of break and enter and, together with Leasuasu Perese, he was dealt with in the same way.
2. Although he, at first, denied any involvement in the robbery when indicted, he pleaded guilty to the offence. He also asked that the second matter be taken into account.
3. In neither of the matters was a weapon used.
4. There was a degree of planning between the applicant and his brother in relation to the offences.
5. There was no violence in either robbery although there was the real threat of violence.
6. The victims, being bank officers, were in a vulnerable position.
7. Large amounts were stolen, $99,000 at National Australia Bank and $26,000 at Westpac.

68 Kirkham DCJ found that it was necessary to consider the principles of totality when sentencing, stating that the crimes displayed criminality in the mid range of seriousness for these types of offences.

69 The subjective material before the court revealed that the applicant had grown up in a dysfunctional Samoan family where there was an extensive history of alcohol and drug abuse. His mother walked out on the family when the applicant was aged five years, leaving him without significant adult supervision. He achieved little at school, leaving at age fourteen, and has virtually no work experience.

70 The applicant has lived in a de facto relationship for some years and has a four year old son from that relationship. The applicant has abused narcotics since age fourteen, becoming an intravenous heroin user, spending about $200 per day on his habit. His crimes have been motivated by a desire to have money with which to acquire drugs.

71 Kirkham DCJ found that because of his youth, genuine contrition and regret, the applicant had good prospects of rehabilitation. For these reasons he provided, upon release, for an extended period of supervision by the Probation and Parole Service.

The application of Henry

72 As I have indicated, it is not entirely clear how, if at all, the sentencing judge utilised the guideline judgment in Henry in the sentencing process. However, he did not consider the judgment relevant to the sentencing of the applicant’s brother, and, as he found that they each carried the same degree of criminality in relation to the relevant offences, it is likely that he ultimately decided that the Henry guidelines were not appropriate. The applicant submits that Kirkham DCJ should be understood to have determined that Henry should be distinguished having regard to the amount stolen, the degree of planning and the prior record of the offender. It is submitted that his Honour placed undue emphasis on these matters with the consequence that the sentence was unduly harsh, falling outside the sentence which the guideline would suggest to be appropriate.

73 There may be a question as to whether the “guideline judgment” in Henry can withstand challenge having regard to the decision of the High Court in Wong v The Queen; Leung v The Queen (2001) HCA 64 in which judgment was delivered after the present appeal was argued. However, it is unnecessary to consider that question for I am of the opinion that this was not a case where it was appropriate to apply the guideline judgment. There are a number of relevant matters. The offence was committed without the use of a weapon although there was, nevertheless a real and significant threat of violence. The robbery was obviously planned and executed in a coordinated manner. Although the applicant was young he has a very poor criminal record and a large amount of money was taken. The applicant entered a plea of guilty but the Crown had a strong case and the value of the plea must accordingly be discounted.

The plea of guilty

74 The applicant submits that the sentencing judge erred because he did not indicate the extent, if at all, that the applicant was to receive some benefit for having pleaded guilty to the count on the indictment and admitting the further offence. It is submitted that his Honour should have spelt out the manner in which the plea of guilty was taken into account and what, if any, discount was allowed and the basis for that discount.

75 Kirkham DCJ adverted to the applicant’s guilty plea acknowledging that “as in Henry’s case, there was a plea of guilty.” However, he does not indicate how he has dealt with that plea in the ultimate sentence.

76 In R v Thompson (2000) 49 NSWLR 383, this Court considered the appropriate approach to sentencing offenders who have entered pleas of guilty. A sentencing judge is required to state that a plea of guilty has been taken into account and encouraged to quantify the effect of the plea on the sentence. The requirement to state that a plea has been considered is designed to ensure that the sentencing judge considers the matter. The encouragement to quantification is, inter alia, designed to ensure that the benefits which flow to the criminal justice system from a plea are articulated with the intention that there be an identified incentive to others to take the same course.

77 In the present case, the reference by Kirkham DCJ, to the plea of guilty is sufficient to satisfy me that he considered that matter when imposing the sentence. Although it would have been preferable if he had proceeded to quantify the effect of that plea on the ultimate sentence, when the term imposed is considered, I do not believe that error is revealed.

Section 33 of the Crimes (Sentencing Procedure) Act 1999

78 Kirkham DCJ dealt with the other robbery to be taken into account pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 by saying “in my view, applying the principle of totality to these two robberies the applicant will be sentenced upon the basis that his crimes display criminality in the mid range of seriousness for these types of offences.” His Honour then proceeded to impose the sentence without identifying the components of it, as they derived from each offence. It is submitted that by not articulating the various components comprising the sentence, his Honour was in error.

79 It is further submitted that the principles provided by the High Court in Pearce v R (1998) 194 CLR 610 require that, if it be the case that an additional penalty is required to be imposed, then quantification of the additional penalty is required. His Honour is said to have erred by:

(i) Failing to consider and identify the appropriate sentencing in respect of the matter on indictment and the additional penalty imposed in respect of the matter taken into account;

(ii) Failing to consider and identify the discount attributable to the applicant adopting the procedure provided for by s 33 of the Crimes (Sentencing Procedure) Act 1999;

(iii) Having separately considered the appropriate penalties, failing to correctly consider the issue of accumulation of any penalty and the application of the totality principle.

80 This Court has had occasion to consider the appropriate approach to sentencing when additional offences are taken into account. They are currently known as “Form 1 matters”, a reference to the form on which they are set out, and, although the relevant section has changed, and the appropriate legislation has evolved, the substantive provisions have remained the same. Recognising the utilitarian value of an offender asking for other matters to be dealt with and thereby avoiding the necessity for a further trial, this Court has been prepared to impose a lesser penalty in respect of the additional matters, than it would if they had been separately prosecuted. However, the extent of the reduction in penalty has been the subject of some disagreement.

81 The settled principles are:

(a) the penalty imposed when a matter is taken into account must not exceed the maximum penalty which the court could have imposed in respect of the primary offence; (s 33(3)).

(b) the sentence for the foundation offence should not be only slightly increased if the offences to be taken into account on the Form 1 are serious in their own right: R v Barton [2001] NSWCCA 63.

(c) the sentence to be imposed must reflect the totality of a person’s criminality: R v Morgan (1993) 70 A Crim R 368 at 372; R v Bavadra (2000) 115 A Crim R 152 at 158, [2000] NSWCCA 292; 115 A Crim R 152 at 158.

(d) two important elements which must be reflected in the sentence imposed when additional matters are taken into account are the need for personal deterrence and the community’s entitlement to extract retribution from serious offenders: Barton .

(e) the sentence must reflect the fact that the Form 1 procedure provides significant advantages to the administration of justice. These are savings similar to those when a plea of guilty is entered and the opportunity is provided “to clear the offender’s slate” allowing an enhanced prospect of rehabilitation: Bavadra . However, there has been some discussion by members of this Court with respect to the reduction to be allowed for these advantages.

82 In R v Harris [2001] NSWCCA 322, Simpson J suggested that there are differences in the approach her Honour took to determining the benefit to be allowed to an offender who adopted the Form 1 procedure and that of some other members of this Court. In R v Lemene [2001] NSWCCA 5, 118 A Crim R 131, her Honour expressed the view that an offender who “adopts the procedure is entitled to expect an additional penalty significantly less than had separate charges been presented.” Her Honour added:

“If that were not so then the section would provide no incentive for the use of the procedure, which is administratively convenient both to the prosecution and to the courts and must therefore be implemented in such a way as to afford benefit to an offender.”

83 In R v Dawson, [2000] NSWCCA 399, Hulme J, with whom Barr J agreed, said:

“However, subject to the limits imposed by s 21 itself, (now replaced by s 33 of the Crimes (Sentencing Procedure) Act 1999) it seems to me that there is no basis in either the statute or logic to justify a general approach of treating matters taken into account as thereby meriting a lower penalty than had they been the subject of specific charge. If the practice of sentencing courts is as Mr Byrne asserts, it is in my view, wrong.”

84 In my opinion the approach which should be taken to the sentence to be imposed when additional matters are taken into account, must reflect the elements which I have previously identified. However, because the procedure may often allow matters to be finalised, which have not been investigated or, where an investigation has failed, I am of the view that the penalty imposed must, depending on the circumstances of the individual case, reflect this element of the utilitarian benefit in the offender adopting the procedure. This element requires a greater leniency of sentence than might otherwise have been imposed if the matters had been investigated and charges brought which result in a guilty plea. Accordingly, there may be cases where a significant reduction on this account is appropriate but this will not always be the case.

85 An unusual feature of the present case is that although the applicant was indicted with respect to the National Australia Bank robbery, he was not, with respect to the Westpac robbery, although his brother was indicted for the Westpac robbery but not the National Bank robbery. As a consequence there could have been no utilitarian benefit arising from the avoidance of an investigation. It follows that there is little to distinguish this case from the situation where a plea has been entered to a specific charge.

86 It was pointed out by Simpson J in Harris that it has not been the practice in sentencing where additional offences are taken into account to identify any increase in the sentence imposed by reason of the additional matters. Her Honour, although not determining the matter, expressed the view that because lack of quantification of any increase may leave the sentencing process unclear, “it would be appropriate to reconsider the approach taken to sentencing in these circumstances.” See para 32.

87 In Pearce, the High Court stated that when sentencing an offender for multiple offences it is necessary for the judge to fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence as well as issues of totality. Explaining the need for this approach, McHugh, Hayne and Callinan JJ in their joint judgment said, at 624:

“Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision [cf House v King (1936) 55 CLR 499]. It is, then, all the more important that proper principle be applied throughout the process.
Questions of cumulation and concurrence may well be affected by particular statutory rules. [See Crimes Act, s 444(2) and (3); Sentencing Act 1989 (NSW), s 9, see also Sentencing Act 1991 (Vict), s 16]. If, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation.
Further, the need to ensure proper sentencing on each count is reinforced when it is recalled that a failure to do so may give rise to artificial claims of disparity between co-offenders or otherwise distort general sentencing practices in relation to particular offences [R v Lomax [1998] 1 VR 551 at 564 per Ormiston JA].”

88 There are of course, significant differences between the circumstances considered in Pearce and the exercise of the discretion pursuant s 33(3). Under s 33(3), a sentencing judge is imposing a sentence in relation to the principal offence and although required to take the further offence into account, and impose an additional penalty, no separate penalty is imposed. Indeed, s 34(1) provides that a separate penalty may not be imposed. Accordingly no question of accumulation or concurrence will arise although problems of disparity between co-offenders could arise.

89 In my opinion, the approach tentatively supported by Simpson J, should be encouraged by this Court, but I do not believe that a failure to identify each element should constitute appellable error. The same approach as that which has been adopted in relation to a plea of guilty should be followed when further offences are taken into account: (see Thompson at 419).

90 Sentencing judges should endeavour to articulate the component of the sentence which relates to the original offence and that which relates to the other matters.

Was the sentence excessive?

91 It is finally necessary to consider whether the sentence imposed was manifestly excessive. Having regard to the serious nature of the offence, which included the threat of violence, the large amount stolen, and the fact that the robbery occurred in company, a significant prison sentence was appropriate. Although the applicant is a relatively young person, his criminal history demands a sentence at the higher end of the appropriate range.

92 In my opinion, a sentence of six years discounted by fifteen percent for the plea of guilty would have been well within the appropriate range for this offence. The plea had utilitarian benefit although the case against the applicant was strong.

93 The additional matter was also objectively serious and standing alone would have deserved a similar sentence in the event of a plea of guilty. In these circumstances a total prison term of six years and six months was in my view low. Accordingly, I am satisfied that no error has occurred.

94 For these reasons I would grant leave to appeal but dismiss the appeal.

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