R v Salieb - [2005] NSWCCA 85

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Saleib [2005] NSWCCA 85

FILE NUMBER(S):
2004/3219

HEARING DATE(S): 14/3/05

JUDGMENT DATE: 29/03/2005

PARTIES:
Farid Saleib (Applicant)
Regina (Respondent)

JUDGMENT OF: Adams J Bell J Hall J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/1156 & 04/21/1002

LOWER COURT JUDICIAL OFFICER: Knight DCJ

COUNSEL:
J Girdham (Crown)
P Lakatos / K Avenell (Applicant)

SOLICITORS:
S Kavanagh
S O'Connor (Applicant)

CATCHWORDS:

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999

DECISION:
1. Grant leave to appeal
2. Dismiss the appeal

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2004/3219
ADAMS J
BELL J
HALL J
Tuesday 29 March 2005

Regina v Farid Saleib

Judgment

ADAMS J: I agree with Bell J.
BELL J: This is an application for leave to appeal against the severity of sentences imposed on the applicant by his Honour Judge Knight (the Judge) in the District Court at Penrith on 5 March 2004 (as corrected with respect to the specification of the non-parole period for the offence charged in count 2 by order made on 9 March 2004).

The applicant pleaded guilty in the Local Court to each of the offences. The first offence charged the applicant that on 8 December 2002 at Sydney he robbed Mario Figueroa of a mobile telephone and forty-five dollars in cash while in company with four named co-offenders. The maximum penalty for this offence is twenty years’ imprisonment.
The second offence, assault occasioning actual bodily harm in company, concerned events occurring on 20 December 2002 at Blacktown. The maximum sentence for this offence is one of seven years’ imprisonment.
In relation to the first count the applicant asked the Judge under the provisions of s 33 of the Crimes (Sentencing Procedure) Act 1999 to take into account two related offences of robbery in company set out in a Form 1.
At the date of sentence the applicant was serving sentences that had been imposed on him in the Sydney District Court on 27 August 2003 following his conviction for three offences of robbery in company. He had been sentenced to concurrent terms of five years’ imprisonment to date from 19 March 2003 for these offences. A non-parole period of three years was specified in each case.
The applicant was sentenced to a term of five years’ imprisonment for the offence charged in count 1, taking into account the two robbery in company offences on the Form 1. The sentence was expressed to commence on 19 March 2005. A non-parole period of three years was specified for this offence. This sentence will expire on 18 March 2010. The non-parole period will expire on 18 March 2008.
The applicant was sentenced to a term of four years’ imprisonment to date from 18 March 2008 for the offence charged in count 2. This sentence will expire on 17 March 2012. A non-parole period of one year was specified with respect to this offence. The non-parole period will expire on 17 March 2009.
The facts relied upon by the Judge were taken from an agreed statement in each case. Briefly, they are as follows.
At about 2:30 am on 8 December 2003, three men - Suter, Costaglioa and Figueroa, were walking together in Liverpool Street, Sydney. They passed a group of about eight men, including the applicant and two co-offenders, Vatache and Osman. Costaglioa felt someone touching the back of his neck. He looked back and saw Vatache who demanded, “What have you got?” Costaglioa was forced against a wall. Vatache had his hand inside his jacket pocket, and said to Costaglioa, “You don’t want me to pull it out”. Costaglioa believed that he had a gun. Vatache took a gold chain and crucifix from around Costaglioa’s neck. The applicant was in the immediate vicinity at the time of these events and willing to assist Costagliola should it have been necessary. The robbery of Costaglioa is one of the two offences on the Form 1.
The applicant grabbed Figueroa by the shirt, forcing him against the wall. He and another man patted him down while demanding money from him. Figueroa handed over his mobile telephone, fearing that he would be assaulted if he did not do so.
Osman approached Suter demanding money. The robbery of Suter is the second charge recorded on the Form 1.
Costaglioa was punched and kicked by a number of the group until he fell to the ground where the assault on him continued. His wallet was removed from his pants pocket and his keycard taken from it. Costagliola, when asked about the card, said that he had no money in the account, and his attackers renewed their assault on him, kicking and punching him. After a short time they walked off leaving their three victims.
The applicant and his co-offenders were recorded by closed-circuit television cameras at the scene of the offence and a little later at the Star City Casino.
The applicant was spoken to by the police concerning this incident at the Burwood Police Station on 3 June 2003. He declined to be interviewed. He was charged with these offences 15 September 2003.
The aggravated assault occasioning actual bodily harm, which constituted the second offence, occurred on 20 December 2002. The applicant had been drinking beer and bourbon and smoking cannabis for a number of hours in a park at Blacktown together with a number of associates. The group moved from the park to the Blacktown shopping area where they loitered near a convenience store close to the railway station. At around 11:35 pm the victim of the offence, a man named Taylor, alighted from a train at the railway station and walked towards the convenience store. At the time the applicant was standing outside the store with six to ten associates. As Taylor entered the store the applicant challenged him, saying, “What are you looking at, do you want a fight?” Taylor ignored the applicant and went inside. The applicant followed him, continuing to challenge him to a fight. One of the applicant’s associates came into the store and dragged him outside. The applicant was heavily intoxicated. When Taylor left the store the applicant stood in front of him blocking his way while his associates formed a semi-circle around him. The applicant punched Taylor to the face with a closed fist. Thereafter the applicant and his associates punched and repeatedly kicked Taylor to the head and torso in a ferocious attack. Taylor was left unconscious on the ground. This incident occurred within five metres of the Blacktown Taxi Rank and there were at least twenty members of the public standing close by at the time. A number of them dialled the police emergency number, not only to report the incident, but to express concerns for their own safety and well-being. The applicant and his associates left the scene on foot. Taylor remained unconscious on the ground. The applicant returned and kicked Taylor in the back, saying, “Fucking come on”. This offence was also recorded by closed-circuit television cameras.
Taylor was helped to his feet by members of the public who took him to the police station. He was bleeding heavily from a cut above his right eye and he had sustained extensive bruising to his face and upper torso. He was taken to the Blacktown Hospital by ambulance where he remained overnight. The laceration above his eye was sutured.

The Judge considered that these offences revealed very considerable criminality on the applicant’s part. There has been no challenge to that characterisation.
The applicant and his mother gave evidence in his case. A report by Anita Duffy, a psychologist, a pre-sentence report and a report by a drug and alcohol counsellor were also in evidence.
The Judge reviewed the applicant’s subjective case in detail. The applicant was aged twenty-two at the date he stood for sentence. He had been raised in Sydney in a loving and supportive family. His relationship with his family remains a good one. He suffers from dyslexia and had learning problems at school for which he had attended special education classes. He was expelled at the start of Year 9 for smoking cannabis.
The applicant excelled in sports at school, particularly rugby league. He played representative junior rugby league. He had obtained a black belt in karate and received a Duke of Edinburgh award.
After leaving school the applicant had worked only briefly as a labourer and a cleaner. He had completed a TAFE course in bricklaying.
The applicant had two relationships with women, neither of which had proved lasting.
The applicant has a major problem with drugs and alcohol. He commenced binge drinking and smoking cannabis at the age of fifteen. By the age of sixteen he was injecting heroin and later augmented his heroin use with taking drugs in the benzodiazepine group and ecstasy. His persistent problems with the criminal law were substantially related to his drug and alcohol problem.
The Judge detailed the various attempts that the applicant has made to overcome his drug problem. These included that in 1999 he had completed a detoxification program at Wisteria House and in the same year he participated in the Naltrexone program at the Westmead Hospital. In 2001, while he was in custody, he had detoxified. There was a subsequent relapse and then he commenced a Methadone program. During his most recent period of custody the applicant succeeded in coming off the Methadone program.
The Judge considered that while the applicant’s attempts at drug rehabilitation had not been wholly successful, they demonstrated both his recognition that he had a problem and his willingness to do something about it. In his Honour’s view these attempts held out the hope that given adequate assistance in the future the applicant may be able to overcome these problems.
Ms Duffy reported that the applicant’s intelligence is in the just below average range. She described him as being impulsive and somewhat careless. In her opinion, he has the capacity to undertake unskilled and semi-skilled work of a practical nature.
The applicant has a lengthy criminal record. His Honour noted that it commenced when the applicant was aged fourteen years and that he had been sentenced to periods of custody as juvenile and as an adult since that time. He has convictions for offences of dishonesty, driving offences, malicious damage, demanding property with menaces and stealing from the person. For this offence he was sentenced to imprisonment in an adult institution. Of particular significance was the fact that on 31 October 2002 he was convicted of obtaining money by deception, larceny and a driving offence and he was released on s 9 bonds to be of good behaviour for eighteen months on each offence. The present offences were committed some two months after he entered those bonds.
The three convictions for robbery in company for which the applicant was sentenced on 27 August 2003 were committed after the present offences.
The Judge found that the applicant’s pleas of guilty were entered at the earliest reasonable opportunity. He allowed a twenty-five percent discount for their utilitarian value. In addition his Honour accepted that the pleas also reflected the applicant’s remorse on which account he allowed a further discount. In the aggregate, he reduced the sentences in each case by thirty three and a third percent in recognition of the guilty pleas.

The Judge noted that the applicant was being held in protective custody and that his custody would be more onerous for this reason.
The Judge referred to s 23 of the Crimes (Sentencing Procedure) Act, which allows the court to impose a lesser sentence on account of the degree to which an offender has assisted the authorities. His Honour took into account that the applicant had gone to the police station and been shown the CCTV footage of the assault occasioning actual bodily harm offence. He had nominated his co-offenders. No information as to the usefulness of the information was before the Judge. Nonetheless he considered that this assistance entitled the applicant to a discount on the sentence.
His Honour considered the aggravating and mitigating factors to which s 21A of the Crimes (Sentencing Procedure) Act directs attention. Save for two matters to which I will return there is no complaint as to the way his Honour dealt with each of these factors.
The grounds of appeal as filed challenged the sentences on six grounds. During the hearing of the application leave was sought and obtained to rely upon a further ground.
Ground one – His Honour erred by failing to consider the applicant’s expressed remorse for the victims of both offences as a factor in mitigation of the sentences
By this ground the applicant complains of the Judge’s failure to refer to evidence given by him and by his mother of his remorse for the victims of his offences. In written submissions it was contended:
“This omission is significant since the presence of genuine remorse indicates that the element of personal deterrence need not be given weight in the particular case and that the prospects of rehabilitation are good (Thomson and Houlton (2000) 49 NSWLR 383 at 412 at [116]). There is nothing to suggest that the remorse was not genuine.”
The passage in Thomson on which reliance is placed is in that part of the Chief Justice’s judgment in which his Honour explains the reasons for the separate treatment of the utilitarian value of a plea of guilty. His Honour observed that remorse is a consideration that relates to the circumstances of the offender, as distinct from bearing on the advantages of the plea to the administration of justice. In this context, his Honour observed (at [116]):
“Genuine remorse would indicate that the element of personal deterrence does not need to be given weight in the particular case. Secondly, it indicates that the prospects of rehabilitation are good.”
In this case the Judge accepted that the applicant was remorseful. He took this into account in determining to allow an aggregate discount of thirty three and a third percent, reflecting both the utilitarian value of the pleas and the remorse that the pleas, in fact, demonstrated. It is preferable for sentencing judges not to separately quantify the discount for the aspect of the plea that evidences an offender’s remorse. The interplay of remorse with the other subjective factors forms part of the “complex of inter-related considerations” to which Gleeson CJ referred in R v Gallagher (1991) 23 NSWLR 220 at 228 and, as his Honour observed, the attempt to separate out one or more such considerations may be an artificial exercise. The argument on the present application seemed to me to illustrate that point. It is clear that his Honour took the applicant’s remorse into account in mitigation of the sentences. The applicant’s complaint is that the evidence that he and his mother gave on this topic was powerful and that the Judge, by failing to refer to it, must be taken to have paid it insufficient regard. I do not accept that to be the case. The Judge found that the pleas positively evidenced the applicant’s remorse. In coming to that view I see no reason to conclude that he was unmindful of the applicant’s and his mother’s evidence on the subject.
I would reject ground one.
Ground two – His Honour erred by failing to consider the applicant’s prospects of rehabilitation as a factor in mitigation of the sentences
By this ground the applicant complains that the Judge erred by failing to find that the applicant is unlikely to re-offend and that he has good prospects of rehabilitation for the purposes of s 21A(3)(g) and (h) of the Crimes (Sentencing Procedure) Act. I will refer to the findings that his Honour made on these related questions. After detailing the applicant’s failed attempts at drug rehabilitation, his Honour observed:
“They hold out some hope that given adequate assistance in the future you may be able to overcome the problems with drugs and alcohol that have beset your life up to date” (ROS 11-12).
His Honour also said:
“I note that you have successfully completed a number of jail courses and that supports the view to which I have come, namely that there are significant prospects of rehabilitation for you” (ROS 12-13).
When his Honour came to consider the aggravating and mitigating factors set out in s 21A, he said this:
“As to subs (g) and (h) I do not consider that I can come to the conclusion that you are unlikely to re-offend, nor could I use the word ‘good’ to describe the prospects of rehabilitation for you, but I do think there are reasonable prospects of rehabilitation and that given a lengthy parole period under supervision there are good prospects that you may not re-offend”.
The applicant submits that for the purposes of s 21A(3)(g) the difference between “good”, “reasonable” or “significant” prospects of rehabilitation is marginal and that his Honour erred by denying the applicant the benefit of the mitigating factor that his prospects for rehabilitation were “good”.
To my mind, his Honour’s reasons for concluding that he could not be satisfied upon the balance of probabilities that the applicant would not re-offend, having regard to the history that I have set out above, requires little elaboration. The applicant had a major and long-standing problem of addiction to drugs and alcohol, which had led to repeated criminal offending. He had failed to overcome his drug and alcohol problem despite attending a number of treatment programs. A prior custodial sentence, during which he had detoxified, had been followed by a relapse and further offending.
The Judge accepted the applicant as a young man who wanted to turn his life around. He considered that there is hope that given adequate assistance in the future he may be able to overcome the drug and alcohol problem. The applicant’s successful completion of courses while in gaol encouraged the Judge to the conclusion that there were significant prospects of rehabilitation. His Honour nonetheless did not feel able to conclude affirmatively that the applicant’s prospects of rehabilitation were good for the purposes of subsection (3)(h).
It is apparent from reading his Honour’s reasons as a whole that he considered the applicant’s persistent criminal offending to be bound up with his drug and alcohol problem, and that considerations of future re-offending and rehabilitation depend in no small measure on whether the applicant is able to overcome this problem. That his Honour did not consider the applicant had established on the balance of probabilities that he had good prospects of rehabilitation for the purposes of subsection (3)(h) was a conclusion that was well open to him. I do not consider that his remarks touching on the assessment of the applicant’s prospects of rehabilitation betray inconsistency.
The second basis of the challenge to his Honour’s handling of the evidence of the applicant’s remorse was articulated in the written submissions in this way:
“5.3 His Honour’s reference to a lengthy non-parol period indicates that his Honour had in mind a finding of ‘special circumstances’ for the purposes of section 44 of the Sentencing Act. We submit that it is not sufficient that his Honour took the applicant’s prospects of rehabilitation into account in adjusting the sentence from the statutory ratio. This is a matter which should go also to reduction of the full term of the sentence. Additionally, the reduction so made to the non-parole period was not particularly significant.”
It was necessary for his Honour to explain the basis for his finding of special circumstances. A consideration in this respect was the desirability that the applicant have a lengthy parole period under supervision to overcome his drug and alcohol problem. The finding that the applicant was possessed of prospects of rehabilitation (whether described as reasonable or significant) connected to his ability to overcome his drug problem was one of the mix of subjective factors which, taken with the assessment of the objective criminality of the offences, went to the determination of the appropriate sentence for each offence. There is nothing in his Honour’s remarks to suggest that he put this consideration to one side in determining the overall sentences in each case or in his consideration of the application of the principle of totality.

I would reject ground two.
Ground three – His Honour erred in failing to consider and apply the guideline judgment in Henry (1999) 46 NSWLR 346 in relation to the offence of robbery in company
The Judge did not refer to the guideline judgment in Henry in the course of his reasons. The applicant notes that the guideline applies to offences of robbery in company as well as to those s 97(1) offences involving the use of a weapon: Murchie (1999) 108 A Crim R 424 per Simpson J at paragraph [20]. While counsel realistically acknowledged that the present case differs from the paradigm in the guideline, it was contended that the facts and circumstances of the principal offence (and the two matters taken into account on the Form 1) were sufficiently similar to the guideline to make it appropriate for his Honour to take it into account.
Counsel noted that the sentence range given in the guideline is a head sentence of four to five years in a case in which there is a late plea of guilty (Thomson at 419, [161]). Thus, it was submitted, the applicant was entitled to a fifteen percent discount from the starting range in recognition that his plea had been entered at the earliest reasonable opportunity. From this it was said to follow that the appropriate starting term for the robbery in company offence was in the range of three years five months to four years three months.
To my mind there is no substance to this ground. The Henry guideline posits a young offender with little or no criminal history. This was a young offender with a lengthy criminal history who had served periods of custody in both juvenile and adult institutions. The commission of the subject offence might be characterised as having manifested the applicant’s continuing attitude of disobedience to the law: Veen v R(No. 2) (1988) 164 CLR 465 at 477. The applicant was at the time of the commission of the offence the subject of three bonds under s 9 of the Crimes (Sentencing Procedure) Act. This was a significant factor aggravating the commission of the offence: R v Fernando (2002) NSWCCA 28 at [40] – [42]. Additionally, the Judge was required to take into account the two related offences on the Form 1. It was necessary for the Judge to have as his starting point a sentence above the range indicated in the Henry guideline. His Honour’s starting point of around six years was well within the exercise of sound discretion.
I would reject ground three.
Ground four – His Honour erred in his identification of matters going to “regard for public safety” and in his treatment of this as a factor in aggravation of the sentence for the assault occasioning actual bodily harm
The applicant contends that the Judge’s finding that the assault occasioning actual bodily harm was committed without regard for public safety for the purposes of s 21A(2)(i) was questionable and that, in any event, there was no evidentiary basis to admit of this circumstance being found beyond reasonable doubt.
In written submissions, the applicant points to the discussion of subsection (2)(i) in R v Way [2004] NSWCCA 131; 60 NSWLR 168 at 198, [172]:
“We also consider that it was appropriate for his Honour to have regard of the offence as one committed without regard for public safety (another s 21A(2) factor). The applicant was not to know that the buyer was an undercover operative and that the drugs would be seized and destroyed. What was relevant in this context was his motivation or understanding, so far as that went to an assessment of his moral culpability. He undertook the transaction expecting a considerable personal profit, and in the understanding that the drugs would be re-sold, heedless of the consequences of those who purchased and consumed them, or of the fact that users commonly resort to property offences to feed a habit, leaving other victims in their wake. The observations of Smart AJ in R v Chan [1999] NSWCCA 103 at [21] as to the limited relevance of the fact that drugs which are supplied to undercover agents will not reach the community, apply. As his Honour pointed out, that circumstance was not due to any act of the offender” (emphasis added).
The discussion of the application of subsection (2)(i) in Way was in the context of the offence of supplying prohibited drugs in a case in which the public safety had not as a matter of fact been endangered. That the dissemination of prohibited drugs into the community puts the public safety at risk was not in issue.

Counsel submitted that the concept of putting public safety at risk was not necessarily to be equated with putting members of the public in fear. In the applicant’s submission there was no evidence that the applicant knew of circumstances relating to the offence that gave rise to a risk to public safety.

The agreed facts upon which the Judge was asked to sentence the applicant for this offence recorded that:
“The attack occurred within five metres of the heavily populated Blacktown Taxi rank. At the time of the incident there was at least 20 members of the public standing close by, several of which called ‘000’ to not only report the incident, but as they had concerns for their own safety and well being.”
I am inclined to the view that an offence involving an unprovoked ferocious assault committed in company on a public street in the near presence of members of the public does put public safety at risk. Putting members of the public in fear of immediate personal violence may itself be said to prejudice public safety. Equally, one or more members of the public may come to the assistance of the victim and thereby be endangered, just as others may suffer injury in fleeing from the scene. That the applicant committed the offence without regard to public safety may be the inference to be drawn from the fact that members of the public were in close proximity and that he nonetheless proceeded with the assault. In the circumstances of this application it is not necessary to come to a concluded view on the content of proof of the aggravating factor in subsection (2)(i) for the purpose of offences of this description.
Counsel acknowledged in the course of oral submissions that the fact that this offence took place in the near vicinity of a large number of members of the public who were put in fear was a matter relevant to the assessment of the objective gravity of the offence. Section 21A (1)(c) relevantly requires the Court, in determining the appropriate sentence for an offence, to take into account any other objective factor affecting the relative seriousness of the offence. There can be no question that there was an evidentiary basis for finding the offence to be aggravated by the presence of members of the public in the near vicinity who were put in fear. It was an agreed fact.
The Judge took the evidence of the presence of members of the public who were put in fear into account as an aggravating factor under s 21A(2)(i). If the applicant’s submission is correct and his Honour erred in this respect, it remains that it was necessary to take it into account as a factor aggravating the offence, in that it made the offence more objectively serious under

s 21(1)(c). There is no suggestion of double counting.

I would reject ground four.
Ground five – The Judge erred in finding that the robbery in company offence was aggravated in that it involved a series of criminal acts
On the hearing of the appeal the applicant’s counsel sought and obtained leave to rely on an additional ground arising out of the following remarks in the reasons for sentence:
“As to sub (m), that the offence involved a series of criminal acts, I think it is fair comment to say that the offence of robbery in company and the offences set forth in the Form 1 all involve more than a single act” (ROS 15).
In counsel’s submission, his Honour erred by wrongly finding the offence charged in count 1 to have been aggravated by the fact that it was one of a series of criminal acts, including the robberies of Suter and Costaglioa. Section 21(2)(m) provides that an aggravating factor of an offence is, relevantly, that it involves a series of criminal acts. The two offences on the Form 1, though closely related in time, involved the commission of separate offences and did not serve to aggravate the offence charged.
I am not persuaded that the Judge made the error that is asserted. A fair reading of his remarks suggest the contrary. I understand his Honour to have concluded that the offence charged in the indictment, together with each of the charges taken into account on the Form 1, involved more than a single criminal act. This ground was not further developed and I am not persuaded that the construction for which counsel contended is open.
I would reject ground five.

Ground six – His Honour failed to give adequate weight to the applicant’s subjective circumstances in mitigation of the sentence for the assault occasioning actual bodily harm offence

The applicant notes that the maximum sentence for an offence contrary to s 59(2) is one of seven years’ imprisonment. The Judge’s starting point for this offence, absent the discount for the plea of guilty, was one of six years’ imprisonment. In written submissions, the applicant’s counsel realistically acknowledge that the objective seriousness of this offence was high, involving as it did a ferocious unprovoked assault on one man carried out by the applicant in the presence of a large number of associates. The objective seriousness is the greater when it is recalled that the applicant returned and inflicted further violence to his defenceless and unconscious victim.
That the victim’s injuries were relatively superficial is not to the point. The offence charged is of the infliction of actual bodily, as distinct from grievous bodily, harm.
The Judge’s assessment that this offence was a serious instance of an offence of this description, making it appropriate that the starting point be towards the upper end of the range for such offences, was well within the exercise of discretion.
I would reject ground six.
Ground seven – His Honour erred in failing to properly apply the principle of totality
The effect of the sentences imposed by the Judge, having regard to the sentences to which the applicant was subject, produced an overall head sentence of nine years’ imprisonment, dating from 19 March 2003, with an effective non-parole period of six years’ imprisonment to expire on 17 March 2009. The existing head sentence was, thus, increased from five years to nine years and the existing non-parole period of three years was increased six years.
The Judge took into account that there had been delay in charging the applicant for each of these offences and that the applicant was not responsible for that delay. His Honour explained the approach that he took to the fact or the delay and to the principle of totality in this way:
“It seems to me that although the Court was dealing with delay in sentencing caused by different reasons that the decision of the High Court in Millsv The Queen 166 CLR at 59 and the Court of Criminal Appeal of this State in R v Todd (1982) 2 NSWLR at 517 are both apposite. That is to say it seems to me that I should place myself when sentencing you in the situation of considering what the total sentence would have been had you been sentenced not only for the matters that I am sentencing you today but also for the matters in respect of which you were sentenced on 27 August 2003 at the Sydney District Court. In other words, I should approach the matter by considering what the total sentence should have been had you been sentenced for all matters at the same time. That involves an assessment of the total criminality involved.
It seems to me that consistent with the decision of R v Pearce the proper way of approaching sentencing you in this case is to determine the appropriate sentence for the robbery in company charge, taking into account the matters on the Form 1 and also the appropriate sentence for the assault occasioning actual bodily harm in company and then assess the totality of those offences and the offences for which you have already been sentenced to make a determination as to accumulation or partial accumulation. That is the course that I have taken” (ROS 17, emphasis added).
It is not submitted that his Honour misstated the relevant principles. Rather, counsel’s submission is that given the delay in charging, the circumstance that the two offences were committed within a fortnight of one another (and within approximately three months of the offences for which he had already been sentenced), together with the applicant’s relative youth, efforts to overcome his drug and alcohol problem and his prospects of rehabilitation, his Honour must be taken to have erred in the result since the aggregate is not “just and appropriate”: Mill v R (1988) 166 CLR 59 at 63.
His Honour concluded that it was appropriate that the sentence for the robbery in company, taking into account the two related matters on the Form 1, be partly accumulated with the sentences being served. This was an appropriate exercise of discretion. The robbery in company was a discrete episode of serious criminal offending. The determination to commence the sentence for this offence prior to the expiration of the non-parole period on the sentences being served reflected considerations of totality. His Honour’s determination that the sentence for the assault occasioning actual bodily harm in company be accumulated on the non-parole period for the sentence for the robbery was an appropriate exercise of discretion. The two offences were wholly separate episodes of serious criminal offending. Considerations of totality were appropriately reflected in the imposition of the notably short non-parole period for this offence. The sentence in the aggregate makes provision for the applicant to be a liberty under supervision on parole for three years.
This was a difficult sentencing exercise having regard to the applicant’s age and considerations of totality in the context of his serious criminal offending. The Judge’s reasons are comprehensive and address each of the matters on which the applicant relies in support of this ground. I am not persuaded that his Honour has been shown to have committed any error of principle, nor that the sentences when viewed individually or in their combined effect exceed the exercise of sound discretion.
I would reject ground seven.
For these reasons the orders that I propose are:
1. Grant leave to appeal;
2. Dismiss the appeal.
HALL J: I agree with Bell J.

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LAST UPDATED: 29/03/2005