Regina v Otchere - [2007] NSWCCA 367

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Otchere [2007] NSWCCA 367

FILE NUMBER(S):
2007/3260

HEARING DATE(S): 10 September 2007

JUDGMENT DATE: 21 December 2007

PARTIES:
Regina v Kwadjo (Joe) Otchere

JUDGMENT OF: Mason P Adams J Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0938

LOWER COURT JUDICIAL OFFICER: Payne DCJ

LOWER COURT DATE OF DECISION: 29/03/07

COUNSEL:
M Barr - Appellant - Crown
C Loukas - Respondent

SOLICITORS:
S Kavanagh - Solr for Public Prosecutions
Shopfront Youth Legal Centre (per Freehills)
- Respondent

CATCHWORDS:
Crown Appeal against lenient sentences for two robberies in company. Actual violence used. Very strong, exceptional and unique subjective case of respondent. Crown Appeal dismissed in exercise of Court's discretion

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

CASES CITED:
Pearce v The Queen (1998) 194 CLR 610
R v Henry (1999) 46 NSWLR 346
R v Thomson (2000) 49 NSWLR 383
R v Houlton (2000) 49 NSWLR 383
R v Collins [2005] NSWCCA 198
R v Fidow [2004] NSWCCA 172

DECISION:
Crown Appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/3260
MASON P
ADAMS J
SMART AJ
21 December 2007

REGINA v KWADJO (JOE) OTCHERE

Judgment

MASON P: I agree with Adams J.
ADAMS J:
Introduction
This is an appeal by the Director of Public Prosecutions against sentences imposed in the District Court on 29 March 2007 on the ground that they are manifestly inadequate. The respondent was charged with the following offences –
1. On the 8 April 2006 at Surry Hills he did rob Robert Napier of certain property, to wit, a pension card, Medicare card and Commonwealth ATM card and $200 in cash, the property of Robert Napier, whilst in the company of two unknown males.
2. On the 8 April 2006 at Surry Hills he did rob Brijinder Sandhu of certain property, to wit, a Nokia phone, a number of bankcards, driver’s licence, other cards and $50 the property of Brijinder Sandhu, whilst being in the company of two unknown males.
The sentencing hearing occurred on 29 March 2007 and, following ex tempore reasons, the following sentences were imposed –
In relation to the first charge, a non-parole period of one year and five months to date from 20 December 2006 expiring on 19 May 2008 and a balance of term of two years and one month expiring on 19 June 2010.
On the second charge the respondent was sentenced (in effect) to a fixed term of thirteen months’ imprisonment commencing 20 December 2006 and expiring on 19 January 2008.
It will be seen that these sentences are wholly concurrent.
On 6 June 2007, over two months after the imposition of the sentences, the Director of Public Prosecutions signed a notice of appeal under the provisions of section 5D of the Criminal Appeal Act 1912 and this notice was served personally on the respondent on 8 June 2007. The delay in giving notice of appeal is troubling.
Facts
The following summary of the facts is largely taken from the learned sentencing judge’s reasons for sentence. They were not the subject of controversy below or in this Court. Mr Napier and Mr Sandhu had returned from socializing to their home to find three men outside. One of them asked Mr Napier if they could use the bathroom and Mr Napier invited them inside. On entry one of the men closed the front door of the premises and also closed the curtains over the windows. Mr Sandhu said to one of the men, “What are you guys doing tonight?” He replied, “Robbing you”. This man then produced a red handled serrated edged knife which he held to Mr Sandhu’s throat. One of the men said, “I don’t like gays. You will get hurt if you make any problem”. Two of the men forced Mr Napier and Mr Sandhu into chairs. The third man was now wearing a red bandana over his face. One of the men removed a wallet from Mr Sandhu’s trouser pocket. When another of the men attempted to remove his mobile phone from another pocket, Mr Sandhu, in fear, removed the phone and handed it to one of the men. One of the men asked for Mr Sandhu’s PIN number and was given a false one. Mr Napier told the men to get out of his house. He resisted the man who was holding him down and stood up. He was immediately forced to the floor and all three men attacked him, punching him repeatedly to his head and body. Mr Sandhu, who was no longer being detained, tried to run from the house but, just as he opened the front door, he was grabbed from behind. There was a short struggle but fortunately Mr Sandhu was able to escape. In the struggle he sustained a swollen lip and suffered pain to his left elbow and his wristwatch was broken. Mr Napier was still in the house. His wallet was taken from him and the three offenders ran from the house. Mr Napier chased them calling “Help! Police!” He then collapsed outside. A witness saw three men he described as “dark skinned African males” being pursued by Mr Napier, running along South Dowling Street. These three men, of which it was agreed one was the respondent, were seen to enter a Mitsubishi motor vehicle, the registration number of which was linked to the respondent’s girlfriend. The police executed a search warrant on the respondent’s premises and found Mr Sandhu’s phone. The respondent’s initial story to police was that he had purchased the phone.
According to the agreed facts, quoted by the sentencing judge, when Mr Napier was conveyed to hospital it appeared that the right side of his mouth was swelling, he had a depressed fracture of the interior wall of the right maxillary sinus and a fracture of the postero-lateral sinus wall. The registration of the Mitsubishi had been noted and a connection was then made to the girlfriend of the respondent. A search warrant was executed on the evening of 9 April 2006 at the home of the respondent where the mobile phone that had been stolen from Mr Sandhu was found. The respondent was arrested.
Not long after the respondent’s arrest (as the sentencing judge found) he decided to plead guilty and was committed for sentence at the District Court. At first instance and in this Court, the Crown accepted that the respondent had pleaded guilty at the earliest possible opportunity.
Strength of the Crown case
The respondent claimed that he was severely intoxicated at the time of the offence with alcohol and cannabis and was not able to remember what happened. The sentencing judge said – and with respect, rightly – that the Crown case against the respondent was not strong. There was no direct identification of him and there was a clear conflict in the witnesses’ statements. Mr Napier said that all the attackers were Caucasian and he noticed no accents. He believed that if he saw them again he would be able to identify them. Mr Sandhu, on the other hand, described all the men as “of African appearance with black skin”. As I have mentioned, a witness saw Mr Napier chasing three dark-skinned African males. The possession of Mr Sandhu’s mobile phone was explicable otherwise than having come into the respondent’s possession by involvement in the robbery. In these circumstances, the plea of guilty was strong evidence of contrition. It has been frequently said that where a plea of guilty is the mere recognition of the inevitable it gives very slight support, if any, for a finding of remorse and contrition. However, where the Crown case is weak so that a defiant offender might well expect to be acquitted, the fact that he or she pleads guilty may well be strong evidence of contrition. This is such a case.
Other subjective features
The sentencing judge described the subjective case as “very strong”. The offender was a few weeks short of his 19^th year at the time of the offence. He has a younger brother and a younger sister. He was born in Accra, the capital of Ghana, and spent his early years there. During his upbringing in Ghana, ethnic violence was rife. His father was in the military and it was part of his duty to quell violence between tribal groups. This violence sometimes occurred in the Otchere family’s neighbourhood. On one such occasion the respondent’s father was attacked, petrol was poured over him and he was set alight with fatal results. The respondent was about five years’ old at the time and witnessed the killing of his father. It is obvious that this must have had a very traumatic effect on the child.
The respondent’s mother later married an Australian, whom she had met when he was visiting Ghana. He brought her and the two boys to Australia in June 1995 but the marriage was unhappy and they were separated and divorced. The respondent’s schooling in Accra was interrupted by the family’s immigration to Australia. He was only eight years’ old when he arrived in Australia and was fortunate to be able to speak English. In Australia, the respondent attended various schools because the family moved around. Whilst at primary school, he suffered greatly from racial harassment, which often involved violence on the part of students; he believes that teachers also discriminated against him. This treatment continued into high school. The effects on him were not good. It is enough to say that he became depressed and socially withdrawn, even feeling on occasion that he would be better off dead. His mother was working long shifts as a nursing assistant in a nursing home and was, consequently, absent a great deal from the home. Not surprisingly, the respondent began to deal with violence by returning violence. He said he was continually getting into fights. Eventually, he said, he began to gain the respect of his peers as someone who was unafraid and eventually he became a leader within his peer group.
The respondent’s family struggled financially and there was often not enough food in the home or money for school excursions. Because Mrs Otchere was often at work from early in the morning to late at night the respondent was responsible for getting his younger siblings off to school and preparing their meals for them. In 2000, Mrs Otchere injured her knee at work and began receiving worker’s compensation. However, this income was insufficient and over the next two years the respondent began to miss school in order to take odd jobs to supplement the family income, half way through year 11 in 2003 dropping out of school altogether in order to get more regular work. He signed up with agencies that contracted him for labourer’s jobs and he arranged for his wages to be deposited directly into his mother’s account. For a very young man, he took his responsibilities to his family very seriously and was obviously a very significant support for his mother and younger siblings.
Unfortunately, but perhaps not surprisingly, the respondent began abusing alcohol and cannabis when he was only twelve years of age. It is said that this contributed significantly to his involvement in fighting. In 2002, at the age of sixteen, the respondent was sent back to Accra by his mother in the hope that this would break the cycle of alcohol and cannabis abuse and his other social problems. He spent a year staying with cousins and again witnessed ethnic violence, on one occasion seeing a friend shoot that friend’s brother accidentally in the head. When the respondent returned to Sydney, the cycle was unfortunately unbroken.
In his report tendered in the proceedings, Mr Graeme Friedman, a clinical psychologist, considered that the respondent’s history of trauma and stress was highly significant and resulted in a chronic adjustment disorder with disturbance of conduct and alcohol and cannabis dependence. He thought that the respondent’s behaviour on the occasion of the offence was consistent with this assessment. He thought, however, that the respondent is “an intelligent and articulate youth who appears motivated to change”.
Mr Friedman noted the mentoring provided through the CRC and said that he should continue to receive this guidance and support for as long as possible, adding –
“He needs to receive treatment for his alcohol and cannabis dependence, and psychotherapy to help him develop more mature and constructive ways of dealing with stress, as well as to resolve some of the conflicts he still carries with him from the past. He has apparently been referred to a counsellor at the Come-in Youth Resource Centre, but in all likelihood will require more intensive treatment, for example, an in-patient treatment programme followed up by at least once-weekly psychotherapy sessions and regular attendance at meetings of an appropriate addiction support group (such as AA).”
Mr Friedman gained the impression that the respondent had the intellectual capacity for work of a far more challenging nature than that of a manual labourer and thought it would be of great help in encouraging a more constructive sense of self and attitude towards the world if he was able to become qualified in a trade and finish his HSC studies.
The Probation and Parole Service contacted the respondent’s mother for the purpose of preparing the presentence report. She reported that the offence was totally out of character, indeed, that she had experienced difficulties in coming to terms with the respondent’s involvement in the offence. His uncle also informed the service that the respondent was “a constant source of support and assistance to his mother, especially in providing a positive influence on his younger siblings”. The Service noted, also, that enquiries with the respondent’s employer verified not only his employment but also indicated that he was a reliable and efficient employee who was available for work whenever he required. Indeed, the employer said that he might be able to offer fulltime work in the coming months if an opportunity was available. This marked difference with the history I have related of alcohol and cannabis abuse shows, I think, that his character at home, in his domestic circle, and at work was rather different to that which he demonstrated in the outside world. The Probation and Parole officer summarised the position as follows –
“Mr Otchere presented as amicable and forthcoming with information pertaining to this report. Enquiries indicated that he has led an otherwise stable lifestyle, is a key member of his family and a committed employee.
The offender’s problems with alcohol and drugs appear to have resulted in a considerable lapse in judgment at the time of the offence. As Mr Otchere maintains he cannot recall the events surrounding the offence due to his intoxicated state at the time, he was unable to offer an insight as to his offending behaviour.”
The respondent told the Probation and Parole officer that he could not provide a reason for the offences and claimed that he did not remember committing the offence because he was under the influence of alcohol and cannabis at the time.
A statement of support was received from the Community Restorative Centre (CRC), a New South Wales community organisation supporting people involved in the criminal justice system, particularly offenders, ex-offenders and their families. One of the programmes operated by the Centre is the StAMP mentoring programme, which recruits mentors to assist ex-prisoners in their transition back to community life. The programme is supported by the New South Wales government and a number of municipal councils. The respondent was referred to the StAMP programme on 31 October 2006 when he requested a mentor to help him in facing the difficulties he experienced in relation to his pending prosecution. He presented as honest and open about the offence and “clearly expressed that he wanted to take responsibility for what he had done”. He sought help to pursue counselling especially to help him to deal with his alcohol and cannabis use. The respondent met the mentor assigned to him weekly and responded very positively to his advice and help. He has undertaken consistent and regular contact and had shown a commitment to full participation in the programme. The co-ordinator of the programme said that she was struck by the respondent’s “honesty and his willingness to be challenged whenever he attempted to minimise or justify his actions by stating that he was intoxicated at the time”.
The co-ordinator has said that the respondent has accepted that he is responsible for his actions and had shown repentance and expressed remorse for what he did both to the co-ordinator and his mentor. A report by Ms Jakobsen, a qualified social worker, working with a small group of socially isolated African youth on a voluntary basis, met the respondent, who is an associate of some members of that group, in October 2006. She described him as having “a very troubled conscience, seeking advice and counselling”. It was this worker who referred the respondent to the Community Restorative Centre. She remained in contact with the respondent since that time. In substance, she believed that the respondent knew that what he had done was very wrong, concluded that he must tell the truth about it as best he knew it and accepted that he must face the consequences of his actions. Ms Jakobsen also believed that the respondent had recognised that it was necessary that he must change his way of living and needed help to do so.
The sentencing judge accepted, it seems to me, the essential reliability of the history disclosed in this material. In my view, although the respondent did not give evidence, the judge was entitled to do so. The respondent had also written a letter, which the sentencing judge accepted as genuine, to the victims of the offence in which he expressed his contrition and remorse. Her Honour considered, and was entitled to so conclude, that the respondent was unlikely to re-offend and had good prospects for rehabilitation. She concluded that the offence was “an isolated occurrence”.
It is fair to say that the Crown prosecutor in this Court did not suggest that these findings were inappropriate. However, it was argued that her Honour erred in giving to the strong subjective case too great an influence in the sentencing process, underestimating significantly the objective seriousness of the offences.
Prior offences
The respondent was convicted of a number of offences relating to motor vehicles including two occasions of driving whilst disqualified. Dealing with these matters, the sentencing judge noted the record but concluded that the respondent “is not a person who … is to be disentitled to leniency [because of] his prior record”. I agree. He withdrew from alcohol in Parklea prison.
Other findings of the sentencing judge
So far as the objective circumstances of the offence are concerned, her Honour found that there had been actual violence used. She regarded the injuries to Mr Napier as aggravating the seriousness of the offence. The judge found that the offence involved both the actual and threatened use of violence and the threatened use of a weapon (vide s 21A(2)(b) and (c) of the Crimes (Sentencing Procedure) Act 1999). The actual violence and injuries inflicted on Mr Sandhu were part of the objective circumstances and therefore rendered the offence more serious but did not amount to additional aggravating features within the meaning of s21A(2). The offences were also rendered more serious by the fact that they occurred in the home of the victims. Her Honour found that there was very limited planning. There was no evidence as to which of the offenders wielded the knife or that, before it was produced, the respondent was aware that it was intended to use it. The knife was described by Mr Napier as thin “not very long and it was not very thick, it was like a letter opener”.
The sentences
The sentencing judge said that, but for the early plea of guilty the starting point of the sentence on the first charge involving Mr Napier was four years and nine months which, when reduced by the 25% discount, became three years, six months and some days, rounded down to three years and six months.

In respect of the second charge involving Mr Sandhu the starting point specified by the sentencing judge was one year and six months which, when reduced by 25%, yielded one year and one month, when rounded down. Her Honour said that she “decline[d] to specify a non-parole period” because of the sentence that she intended to impose in respect of the first charge. In respect of that charge, the non-parole period was one year and five months. The special circumstances held by the judge as justifying the significant variation from the statutory ratio specified in s44 of the Crimes (Sentencing Procedure) Act 1999 were as follows: the sentence would be the respondent’s first time in fulltime custody; the respondent had good prospects for rehabilitation and “the very real requirement for treatment upon his release to ensure that he does not abuse alcohol and cannabis”, in which regard her Honour accepted the opinion of Mr Friedman to which I have already referred.
The Crown submissions on appeal
It was submitted that the injuries suffered by Mr Napier were substantial, even if they were not grievous bodily harm. It was submitted that the substantial actual violence was not properly considered by the sentencing judge or, alternatively, her Honour failed to give it due weight. The sentencing judge referred to the summary of the injuries of Mr Napier as set out in the agreed statement of facts. Certainly, that summary referred only to the injuries noted at the hospital. Mr Napier’s statement refers to other injuries, namely, extensive bruising, grazing on his knees and left shin and on his fingers and hands. As I have already pointed out, her Honour’s judgment was ex tempore. I do not think that, in quoting the agreed statement of facts in relation to the injuries noted at the hospital, the judge overlooked the statement of Mr Napier. Her Honour described in some detail what had happened to him. Accordingly, I do not accept that her Honour did not appreciate either the extent of the injuries suffered by Mr Napier or the violence to which he was subjected. I return to the question of weight in due course.
It was also submitted that the sentencing judge erred in finding that the injuries to Mr Sandhu and Mr Napier were those that might be expected in an offence of this kind and, accordingly, did not constitute additional aggravation under s21A(2). One reading of the reasons for sentence gives some support to this contention. However, on a careful reading, I think that her Honour’s reference to this matter was limited to the emotional, as distinct from the physical, harm suffered by the victims in the sense in which that phrase is used in s21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999. Amongst other reasons, this follows because of her Honour’s use of the word “harm” in this context, which is a direct reflection of the statutory phrase “emotional harm”. Her Honour correctly said that the harm to each of the victims was a relevant consideration though it did not amount to an aggravating feature within s21A(2). (A reference by the judge to sub-section 21A(3)(a) in this context was, I think, a mere an editorial mistake.)
The Crown prosecutor also submitted that the starting point of four years and nine months was outside the range specified in R v Henry (1999) 46 NSWLR 346, especially the following passage –
[162] It appears from the cases that come to this Court, including the present proceedings, that there is a category of case which is sufficiently common for purposes of determining a guideline:
(i) Young offender with no or little criminal history;
(ii) Weapon like a knife, capable of killing or inflicting serious injury;
(iii) Limited degree of planning;
(iv) Limited, if any, actual violence but a real threat thereof;
(v) Victim in a vulnerable position such as a shopkeeper or taxi driver;
(vi) Small amount taken;
(vii) Plea of guilty, the significance of which is limited by a strong Crown case.
The Chief Justice proposed that “sentences for an offence of the character identified above should generally fall between four and five years for the full term”.
It will be seen that the starting point adopted here by the sentencing judge was at the upper range of this guideline. It is, however, submitted by the Crown prosecutor that the guideline applied to a case where the actual violence was “limited” whilst the violence in the present case was substantial. The violence was indeed substantial rather than limited but I do not think that it should be accepted that her Honour underestimated or gave insufficient weight to that factor in sentencing the respondent. There is nothing in my view to support the contention that the sentencing judge regarded the violence inflicted on Mr Napier as limited as that word is used in the Henry guideline.
It must be remembered that a guideline is not a straight jacket and, at all events, the features of this case differed in the respondent’s favour in a number of respects from the features identified in Henry. Although a knife was wielded by one of the offenders, the evidence was not capable of establishing either that it was wielded by the respondent or that he was aware of any intention on the part of his co-offenders to use a knife. The victims were not in a vulnerable position such as a shopkeeper or taxi driver. By contrast with factor (vii) the significance of the plea of guilty was not “limited” by a strong Crown case. The favourable subjective features of the respondent’s case were very unusual. On the other hand, as has been pointed out, the violence was not limited, and the offence took place in the victims’ home.
Weighing these particular considerations with all the relevant factors, I am unpersuaded that the starting point (three months less than the higher figure of five years suggested in the guideline) selected by the sentencing judge was inconsistent with the Henry guideline. Even if it were inconsistent with the guideline, I am unpersuaded that the sentencing discretion thereby miscarried.
It was also submitted in the appeal that discount for the utilitarian value of the plea of 25% was too high. On the face of it, there is something in this contention. In R v Thomson; R v Houlton (2000) 49 NSWLR 383 the Court said –
“[161] The Court was asked to clarify its earlier guideline judgments in the light of any guideline it might propose in this respect. The standard case identified in each of R v Jurisic and R v Henry included a plea of guilty. That was not thecase in R v Wong in which the range encompassed relevant matters, including a plea. In each of R v Jurisic (at 231) and R v Henry (at 380 [162]), the Court was concerned with a guilty plea of limited value. The guidelines for theoffences considered in those cases should be understood to involve a late plea of guilty, for purposes of the application of the guideline promulgated in these reasons.”
In R v Collins [2005] NSWCCA 198 Buddin J (with whom Simpson and Hall JJ agreed) said (at [16]) –
“It is to be recalled that the Henry guideline had built into it a late plea. An offender is not entitled to a discount of 25% for a plea of guilty in addition to the discount for which Henry already allows.”
The Crown therefore submits that the additional discount beyond Henry should have been 15%. At the sentencing hearing, the solicitor advocate appearing for the Crown conceded that the respondent was entitled to a discount on the basis that his plea was made at the earliest available opportunity. No reference, however, was made to the qualified discount arising after application of the Henry guideline. A 15% discount, applied to the judge’s starting point, would have resulted in a sentence of four years and two weeks, about six months more than her Honour’s figure.
Another way of looking at this issue is to suppose that the upper end of the Henry range is 10% higher than the stipulated five years and compare the resulting figure of five years and six months with the sentencing judge’s starting point of four years and nine months. I have already pointed out that some of the features in this case are more serious and some are less serious than the factors postulated in Henry. I do not agree that the difference arising from the giving of a 25% discount rather than a 15% discount demonstrates error on the part of the sentencing judge.
The Crown also submitted in the appeal that the sentencing judge erred by taking into consideration the respondent’s good prospects for rehabilitation in respect of the full term of the sentence imposed as well as the special circumstance justifying a reduced non-parole period, citing in this respect the following passage from R v Fidow [2004] NSWCCA 172 by Spigelman CJ at [18] –
“‘Double counting’ for matters already taken into account in reducing the head sentence and therefore already reflected in the non-parole period must be avoided…Almost all matters capable of constituting special circumstances have usually been taken into account in determining the head sentence and sentencing judges should ensure that double counting does not occur.”
I am not satisfied that the sentencing judge made this error. It is true that, in considering the overall sentence, her Honour referred to the prospects of the respondent’s rehabilitation but this was in the context of determining that this (together with other favourable subjective features) did not justify anything less than the imposition of a fulltime custodial sentence. Moreover, as already appears from the passage cited above relating to the finding of special circumstances, the key feature justifying the reduction in the statutory ratio was the respondent’s need for extended support whilst he attempted to make his rehabilitation intentions good. In my view, the sentencing judge’s conclusion that this was a most significant factor in determining the appropriate length of the parole period was entirely appropriate. I am not persuaded that her Honour double counted this factor.
The Crown contended that the non-parole period failed to reflect the seriousness of the objective gravity of the crime, even taking into account the subjective features of the case. There is no doubt that the objective circumstances of this offence were serious for the reasons already identified. At the same time, the judge was entitled to give considerable weight to the unique subjective features of the respondent’s case including not only the extraordinary, tragic and harsh circumstances of his childhood and youth but also the very substantial steps he had taken towards rehabilitation. The sentencing judge took the view that the respondent should be treated as a young man who had suffered from catastrophic experiences as a child and great hardship as he grew up, but (despite his involvement with cannabis and alcohol) had shown commendable responsibility in caring for his younger siblings and supporting his mother, even giving up schooling to support the family by work. Her Honour evidently concluded – rightly, in my respectful view – that his involvement in this offence was an isolated aberration. Moreover, this Court has always recognised that considerable significance should be given to the public policy favouring rehabilitation of youthful or relatively young offenders and this must be especially so where the offender has already taken significant and genuine steps towards rehabilitation.
I am not persuaded that the non-parole period, though certainly at the bottom of the range, was so manifestly lenient as to require the intervention of this Court.
In respect of the second charge, the Crown relied on the contentions advanced in respect of the first charge, submitting in addition, that the sentence of one year one month – considered as a full term – was manifestly inadequate. This submission is, I think, correct, but I think that it rests upon an editorial mistake in the ex tempore reasons. The relevant passage is as follows –
“If it was not for the strong subjective case, the sentence that would have been imposed would have been longer. In relation to this matter, the sentence I would have imposed in respect of the offence concerning Mr Sandhu before reduction for utilitarian considerations, is one of one year and six months. Reduced by 25%, this is one year one month and fifteen days, rounded to one year one month. That sentence will commence on 20 December 2006 and expire on 19 January 2008. I decline to specify a non-parole period because of the sentence I intend to impose in respect of the offence concerning Mr Napier.”
It is obvious that the subjective considerations in relation to each of these offences are identical. Objectively, they differ because Mr Napier was more seriously injured. Having regard to the starting point in respect of the offence against Mr Napier of four years and nine months, the starting point in respect of the offence against Mr Sandhu of one year and six months is completely out of kilter. This marked and inexplicable difference was not the subject of any comment by the sentencing judge. If the sentence was a fixed term (reflecting a non-parole period) then it does bear a rational relationship with the one year and five months imposed in respect of the first charge. I am of the view that this is what her Honour intended and that the use of the word “non-parole” (if not an error in transcription) was intended by her Honour to refer rather to the parole period. This is the only way, I think, to explain an otherwise baffling differentiation, which plainly did not occur to the very experienced sentencing judge at the time. So considered, I am not persuaded that the sentence is manifestly lenient such as to justify the intervention of this Court.
There is, however, the remaining question whether it was outside the proper exercise of the sentencing discretion to provide that this sentence was to be wholly concurrent with that passed in respect of the first charge. The Crown points to the following passage from Pearce v The Queen (1998) 194 CLR 610 at 624 –
“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.”
This passage, however, must be considered in its context, and I set out below the relevant preceding passages (194 CLR at 623-624) –
[43]        The trial judge sentenced the appellant to identical terms of imprisonment on counts 9 and 10 and made those sentences wholly concurrent. We can only conclude that the sentence on each of those counts contained a portion which was to punish the appellant for his inflicting grievous bodily harm on his victims. Prima facie, then, he was doubly punished for the one act.
[44]        Does that matter if, as was the case here, an order was made that the sentences be served concurrently?
[45]        To an offender, the only relevant question may be “how long” and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence … “
In this case, the judge did fix a sentence in respect of each of the charges, although she may have made a mistake in expression so far as the second charge is concerned. It is clear also that her Honour considered the question of concurrency and accumulation. Where, as here, the acts of an offender are, to some degree or other, common to each of the victims – for example, the fact that the offence occurred inside their home – it is important to avoid the double counting which was the fundamental criticism of the sentences to which Pearce is directed. Also, there was no evidence that justified the conclusion that, in respect of Mr Sandhu, the respondent was aware of or had agreed to the use of the knife. Of course, there are some matters that are not common, for example, the physical attack on the second victim and the theft of his property. At all events, the circumstances suggest that, if the sentences should not be entirely concurrent, a substantial degree of concurrency is appropriate.
Pearce is not authority for the proposition that, when there are separate offences committed in respect of the either one or more victims, it is not appropriate to impose sentences that are entirely concurrent. At the end of the day, of course, the sentence must reflect appropriately the total criminality. I am persuaded that, in the circumstances of this case, some accumulation was necessary having regard to the two charges in respect of different victims. I would respectfully hold, therefore, that the discretion of the sentencing judge erred in this respect. However, it is necessary to consider whether, given this error, this Court should intervene.
Conclusion
The Crown has established that the sentencing judge erred in providing that the sentences should be completely concurrent. The question is whether this error requires the intervention of the Court. In my view, the extent of any increase which this Court would impose, having regard to the principal of double jeopardy which leads the Court to hold its hand to a significant extent when increasing sentences on Crown appeals, is not such as in the circumstances requires the intervention of this Court. This view is reinforced substantially by the significant delay in giving notice of appeal, a matter to which I have already brought attention. Accordingly, this Court should exercise its discretion not to vary the dates of the sentences.
The appeal should be dismissed.
SMART AJ: The facts, the background and the issues are set out in the judgment of Adams J.
I agree that this was not a strong Crown case and that the plea of guilty ensured a conviction where otherwise the offender may have been acquitted. I agree that this was a case where there was strong evidence of contrition.
In her remarks on sentence the judge refers to the guideline judgment (of Henry) being given consideration in the course of the proceedings on sentence. When regard is had to those proceedings the judge remarked at an early stage of the proceedings, "And the guideline judgment operates" and the solicitor – advocate for the Crown responded, "Very much so and is pretty much squarely within it."
What emerges is that the judge had regard to the guideline judgment, there were differences between the situation contemplated in Henry and the present case and the judge determined the starting point she was going to use having regard to all the facts in the present case. It does not follow that in arriving at a discount of 25 per cent for the considerable utilitarian value of the plea of guilty she overlooked that Henry proceeded upon the basis of a late plea of guilty and a limited discount.
I agree that the offender advanced a unique subjective case. The racist bullying to which he was subjected at school in Australia and the lack of support, when coupled with the horrific events which he witnessed as a child in Africa seriously impacted upon his development as a boy progressing to manhood and the development of acceptable moral and non-criminal standards.
While the offences were serious and by themselves merited stern punishment, the offender's strong subjective case cannot be overlooked and impacts upon the sentences.
The Crown attacked what it contended was the unwarranted leniency of both sentences and the unwarranted leniency of both sentences being concurrent. It was contended that the sentences as imposed did not adequately reflect the grave criminality involved in the two offences. Were it not for the unique and exceptional circumstances that exist in the present case there would be much force in these points.
I do have some difficulty with the methodology used by the judge in fixing the sentence in respect of the offence involving Mr Sandhu; she said that her starting point for the sentence for that offence before reduction for utilitarian consideration was one year and six months and that she then reduced that sentence by 25 per cent and with rounding it down arrived at a sentence of one year one month. Although she did not say so expressly, upon the correct construction of her remarks that was intended to be a sentence for a fixed term. She declined to specify a non-parole period because of the sentence she intended to impose in respect of the offence against Mr Napier.

On any basis a starting point of 18 months for the sentence for the robbery in company offence against Mr Sandhu was manifestly inadequate and was erroneous.
While I would dismiss the Crown appeal against the sentence in respect of the offence against Mr Napier on the ground that it was a truly exceptional case and the sentence was not inadequate, the reasoning in respect of Mr Sandhu was affected by error and requires further consideration. I agree that the offence against Mr Napier was the more serious. He received graver injuries.
As to the sentence for the offence against Mr Sandhu the judge was, on her approach, required to consider the appropriate starting point. Even allowing for the offender's strong subjective case that could not have been less than three years. That could then have been reduced to 2 years 3 months (27 months). The persuasive special circumstances, being careful to avoid double counting, could then have led to a non-parole period of 13-14 months. It would have been open to the judge to either impose a fixed term of 13 months or a non-parole period of 13 months with a balance of term of 14 months. The judge next had to decide questions of partial and total accumulation and concurrency. It was open to the judge because of the exceptional and unique circumstances to make the sentences wholly concurrent.
On the basis that this Court should re-sentence as to the offence against Mr Sandhu I would take into account the performance report of 23 August 2007 of the NSW Department of Corrective Services which records that the offender is making very good progress with his rehabilitation and that of the Co-ordinator, StAMP Mentoring Program, Community Restorative Centre stating that the offender is taking advantage of the support being offered and that the Centre will continue to support him throughout his time in prison and on his release to assist him to change his life. He is doing some trade courses and contemplating trying to go to University.
If this Court were re-sentencing I would have adopted a starting point of 3 years, reduced that by 25 per cent to 27 months. The special circumstances of his good prospects of rehabilitation, the benefit of extended treatment, support and supervision on his release and this being his first time in full time custody would lead to a non-parole period or fixed terms of 13 months. The two offences were part of the same incident and in the light of the exceptional and unique circumstances the sentences should be concurrent. The end result is that any re-sentencing would produce the same result as that arrived at by the judge.
The offender has now served the greater portion of both sentences. The sentence in respect of the Sandhu offence expires on 19 January 2008. That factor, the delay in instituting the appeal, the exceptional circumstances and the progress which the offender has made would lead me not to intervene in the exercise of the Court's discretion.
I propose the following declaration and order:
1.Declare that the sentence of 13 months (20 December 2006 – 19 January 2008) as to the robbery in company offence against Mr Sandhu is one for a fixed term.
2.Appeals against sentence dismissed.

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LAST UPDATED: 4 February 2010