Williams v The Queen

[2011] NSWCCA 244

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Williams v R [2011] NSWCCA 244

Hearing dates:

26/10/11

Decision date:

17 November 2011

Before:

Beazley JA at [1]
James J at [2]
Fullerton J at [93]

Decision:

Leave to appeal against sentences imposed by Judge Knox on 9 September 2010 granted.

Appeal against sentence allowed.

Sentences imposed on 9 September 2010 quashed.

In lieu thereof, sentence the applicant:-

1. For the offence of armed robbery to a non-parole period of two years five months commencing on 1 September 2008 and expiring on 31 January 2011 and a balance of the term of two years five months commencing on 1 February 2011 and expiring on 30 June 2013.

2. For the offence of robbery in company to a non-parole period of three years four months commencing on 1 March 2009 and expiring on 30 June 2012 and a balance of the term of two years eight months commencing on 1 July 2012 and expiring on 28 February 2015.

3. For the offence of escaping to a fixed term of imprisonment of six months commencing on 1 July 2012 and expiring on 31 December 2012.

The earliest date on which the applicant will be eligible for release on parole will be 31 December 2012.

Catchwords:

CRIMINAL LAW - sentencing - Criminal Case Conferencing Trial Act - parity between co-offenders

Legislation Cited:

Crimes (Sentencing Procedure) Act
Crimes Act
Criminal Case Conferencing Trial Act 2008

Cases Cited:

Do v R [2010] NSWCCA 182
Greer v R [2011] NSWCCA 40
Kim Chompeay v R [2011] NSWCCA 96
LJ v R [2010] NSWCCA 289
Postiglione v The Queen (1995-1996) 189 CLR 295
R v Fernando (1992) 76 A Crim R 58
R v Henry (1999) 46 NSWLR 346
R v Murchie (1999) 108 A Crim R 482
Sutton v R [2004] NSWCCA 225
Tran v R [2010] NSWCCA 183
Veen v The Queen (No 2) (1987-1988) 164 CLR 465

Category:

Principal judgment

Parties:

Williams, Jay - Applicant
Regina - Crown

Representation:

H Cox - Applicant
J Pickering - Crown
Aboriginal Legal Service - Applicant
S. Kavanagh - Solicitor for Public Prosecutions

File Number(s):

2009/45875004, 2009/52103003, 2009/58392006

 Decision under appeal 

Before:

Judge Knox

File Number(s):

2009/45875

Judgment

1. BEAZLEY JA : I agree with James J.

1. JAMES J : Jay Williams applied for leave to appeal against sentences imposed on him on 9 September 2010 in the District Court by his Honour Judge Knox for three offences, to all of which the applicant had pleaded guilty, namely:-

1.   Robbery being armed with an offensive weapon ("the armed robbery offence")

2.   Robbery in company ("the robbery in company offence")

3.   Escape from lawful custody ("the escape offence")

1. In sentencing the applicant for the armed robbery offence the sentencing judge took into account an offence of breaking and entering with intent to steal and an offence of failing to appear in accordance with a bail undertaking.

1. The sentences imposed by the sentencing judge were:-

1.   For the armed robbery offence, a non-parole period of four and a half years commencing on 1 September 2008 and a balance of the term of two years three months, that is a head sentence of six years nine months.

2.   For the robbery in company offence, a non-parole period of five years four months commencing on 1 March 2009 and a balance of the term of three years eight months, that is a head sentence of nine years.

3.   For the escape offence, a fixed term of imprisonment of six months commencing on 1 July 2014, the day after the expiration of the non-parole period of the sentence for the robbery in company offence.

1. The aggregate sentences imposed were total head sentences of nine and a half years and total non-parole periods and a fixed term of six years four months.

1. It had been agreed by the parties at the sentence hearing that the first sentence to be served should commence on 1 September 2008. The applicant had been arrested on 18 July 2008 and charged with the armed robbery offence. He was not granted bail. However, the applicant escaped from custody on 3 May 2009 (the escape offence), committed the robbery in company offence while at large and remained at large until he was arrested on 16 June 2009.

1. Robbery being armed with an offensive weapon and robbery in company are both offences under s 97(1) of the Crimes Act for which the maximum penalty is imprisonment for 20 years. Escaping from lawful custody is an offence under s 310D(a) of the Crimes Act for which the maximum penalty is imprisonment for 10 years.

1. The sentencing judge had first sentenced the applicant for these offences on 25 June 2010. The sentences imposed on 25 June 2010 were the same as the sentences later imposed on 9 September 2010, except that on 25 June 2010 the sentencing judge divided the head sentence of nine years for the robbery in company offence into a non-parole period of six years and a balance of the term of three years, producing some further, consequential, differences.

1. On 9 September 2010 his Honour, purporting to apply s 43 of the Crimes (Sentencing Procedure) Act , on the basis that on 25 June 2010 a penalty had been imposed which was contrary to law in that the overall sentence did not reflect a finding of special circumstances his Honour had made in his sentencing remarks of 25 June 2010, set aside the sentences he had imposed on 25 June 2010 and imposed the sentences I have already stated.

1. The sentencing judge had given the parties notice of his intention to set aside the sentences of 25 June 2010 and to re-sentence the applicant and there was no opposition on 9 September 2010 to his Honour adopting that course. On the hearing of this application neither party submitted that the sentencing judge had not been entitled to proceed as he had on 9 September 2010. The remarks on sentence his Honour had given on 25 June 2010 remained his Honour's principal sentencing remarks.

The facts of the offences

1. In the proceedings on sentence there was an agreed set of facts and his Honour's statement of the facts of the offences in his remarks on sentence was based on the agreed facts. The following is an abbreviated summary of his Honour's statement of the facts of the offences in his sentencing remarks.

The armed robbery offence

1. On the night of 11 July 2008 the victim, a middle-aged man who was a taxi driver by occupation, went to a block of units where his parents lived for the purpose of visiting his parents.

1. While the victim was outside the building, the applicant ran up behind the victim and punched the victim on the side of the face. Two co-offenders, a man named Davies and a juvenile M, were with the applicant.

1. The blow by the applicant caused the victim to fall to the ground. All three of the offenders repeatedly kicked and punched the victim as he lay on the ground, demanding money from the victim.

1. The applicant dragged the victim into the foyer of the building. The victim attempted to get up and flee. The applicant kicked and punched the victim. The co-offenders kicked the victim, while he was on the ground.

1. Davies then threw a beer bottle at the victim, which struck the victim's head with such force that the bottle smashed on impact. It was this beer bottle thrown by the co-offender Davies which the Crown relied on as being an offensive weapon.

1. All three offenders continued to punch and kick the victim. The victim got up and tried to run away. He was chased by all of the offenders. Davies pushed the victim, who fell against a wall and landed on the ground. While the victim was on the ground the applicant punched the victim in the face and the two co-offenders punched and kicked the victim. All three offenders searched the victim's pockets and removed items of property.

1. The applicant took hold of the victim's jacket, rolled the victim on to his back and kicked the victim twice in the face, rendering him unconscious. The juvenile pushed the applicant away from the victim.

1. Davies kicked the victim again in the face and in the stomach. Davies separated the victim's legs and kicked the victim in the area of his genitals. Davies kicked the victim in the back of the head.

1. The three offenders then left the scene.

1. The attack on the victim by the three offenders had been captured by closed circuit television.

1. The victim remained unconscious for a time, before staggering to his feet and going to his parents' unit. The victim was subsequently taken to hospital. His injuries included bruising, lacerations to the face and ribs and severe swelling to his face.

The robbery in company offence

1. The victim of this offence was another taxi driver, who was on duty when the offence was committed. The victim was flagged down by the applicant, a co-offender D and another co-offender, being the same juvenile M. The three offenders entered the taxi and the driver was directed by D to drive to Redfern.

1. At a time when the taxi was stationary, the applicant got out of the taxi, approached the driver's door, opened the door, took the key out of the ignition and demanded money from the victim. The victim, who was in fear, took money out of his pocket and gave the applicant $90. The applicant demanded further money and the victim said that he had no further money.

1. The victim activated his emergency button and this caused his telephone to be activated. The applicant demanded that the victim give him his phone and the victim complied. The applicant then twice punched the victim in the face.

1. The applicant felt the victim's clothing, searching for a wallet. The applicant took the victim's watch off his wrist. The applicant opened the glove box of the taxi and found a coin dispenser in which the victim stored coins. It was a metal and plastic container. The applicant lifted up the coin dispenser and swung it down, hitting the victim in the face. The co-offender D told the applicant to calm down.

1. Ultimately, the three offenders left the taxi and the victim drove away. As in the case of the first offence, the entire incident was captured by closed circuit television. The injuries to the victim were a black eye and scratches to his face.

The escape offence

1. On 3 May 2009 the applicant and three other prisoners were at a recreational oval at the Correctional Centre where they were inmates. They cut through perimeter fencing, climbed a wall and escaped. Two of the escapees were arrested shortly afterwards. The applicant remained at large, until he surrendered to police at a police station on 16 June 2009.

The sentencing judge's remarks on sentence

1. As I have already noted, the sentencing judge in his remarks stated the facts of the offences. In subsequent parts of his remarks on sentence the sentencing judge referred to the following matters.

1. His Honour found that the applicant's role was central in all three offences and that his criminality was above mid-range.

1. His Honour referred to the guideline judgment for armed robbery of R v Henry (1999) 46 NSWLR 346 and, in particular, to the common category of case described in Spigelman CJ's judgment (at 380 (162)). His Honour found that most of the factors in the common category of case were "totally applicable" and "provide a minimum platform for my consideration of the appropriate sentence".

1. His Honour gave consideration to what aggravating factors had been present in the commission of the offences. An aggravating factor for the armed robbery offence was that it had been committed while the applicant was on conditional liberty. An aggravating factor for the robbery in company offence was that it had been committed while the applicant was an escapee.

1. His Honour gave consideration to whether either of the robbery offences had involved gratuitous cruelty but decided that, while there had been a high level of violence, he should not find that there had been gratuitous cruelty.

1. His Honour found that, while the victim of the armed robbery offence was in fact a taxi driver by occupation, he had been merely a member of the public at the time that offence was committed. However, the victim of the robbery in company offence was on duty as a taxi driver at the time the offence was committed and hence was a vulnerable person within s 21A(2)(l) of the Crimes (Sentencing Procedure) Act .

1. The applicant, an Aboriginal, was born on 18 August 1989 so that he was 18 years old at the time of committing the armed robbery offence and 19 years old at the time of committing the other two offences. His youth was a mitigating factor.

1. The applicant had a deprived childhood of a kind unfortunately common in Aboriginal offenders. The sentencing judge accepted the applicant's "upbringing as being one of chaos, instability and exposure to alcohol and physical abuse from his father". The sentencing judge referred to Fernando factors ( R v Fernando (1992) 76 A Crim R 58). His Honour found that the applicant had had a very limited educational and vocational history but had done some courses while in gaol.

1. The applicant had abused drugs and alcohol since he was 16 years old.

1. A psychometric assessment revealed that the applicant had low verbal intelligence. The sentencing judge's impression gained during the sentence hearing, in which the applicant had given evidence, was that the applicant had presented himself as being a fairly quick-thinking individual.

1. The applicant, despite his youth, had an extensive criminal history, including numerous convictions for offences of breaking and entering, convictions for robbery and stealing from the person and a previous conviction for escaping, although from police custody and not Correctional Services custody. His Honour, although referring to Veen v The Queen (No 2) (1987-1988) 164 CLR 465, would appear to have regarded the applicant's previous criminal history as merely disentitling him to any leniency.

1. In parts of his remarks on sentence which are relevant to a consideration of some of the applicant's grounds of appeal against sentence, the sentencing judge dealt with questions of parity between the applicant and the applicant's co-offenders on the armed robbery offence and the escape offence. I will consider these parts of his Honour's remarks when I am considering those grounds of appeal against sentence. The applicant's alleged co-offenders on the robbery in company offence, D and M, did not plead guilty and were acquitted at a trial, so that no question of parity arose in relation to that offence.

1. I will consider what the sentencing judge said in his remarks about the applicant's pleas of guilty when considering one of the grounds of appeal against sentence.

1. The sentencing judge declined to make a finding that the applicant had good prospects of rehabilitation and said that in sentencing the applicant he would not take into account that, as an escapee, he would be likely to have less opportunity while in custody to take part in courses.

1. The sentencing judge considered that there was a need for some accumulation of the sentences for the robbery offences, because the offences involved different victims and had been committed at different times and in different circumstances.

1. The sentencing judge found special circumstances within s 44 of the Crimes (Sentencing Procedure) Act , in that the applicant was "an urban indigenous offender who has been exposed to repeated acts of violence from an early age as well as alcohol and drug abuse", in the applicant's youth and in the fact that it was the first time the applicant had been in adult custody.

The appeal

1. The applicant relied on the following grounds of appeal:-

Ground 1: His Honour erred by not granting a 25 per cent discount to the applicant for the plea of guilty before committal in accordance with s 17(1)(a) of the Criminal Case Conferencing Trial Act 2008.

Ground 2: His Honour made a mistake of fact when considering the issue of parity.

Ground 3: The applicant has a legitimate sense of grievance when comparing the sentence imposed upon him with respect to count 1 as opposed to that imposed upon his co-offender Davies.

Ground 4: The sentences imposed upon the applicant were manifestly excessive.

1. I will consider these grounds of appeal in turn.

1. His Honour erred by not granting a 25 per cent discount to the applicant for the plea of guilty before committal in accordance with s 17(1)(a) of the Criminal Case Conferencing Trial Act 2008.

1. This ground of appeal was conceded by the Crown. The sentencing of the applicant was subject to the Criminal Case Conferencing Trial Act 2008. The applicant had pleaded guilty to all three offences before he was committed for trial and, accordingly, in sentencing the applicant for each offence the sentencing judge was required by s 17(1)(a) of the Criminal Case Conferencing Trial Act to allow a discount of 25 per cent for the applicant's plea of guilty. Unfortunately, the application of the Act to the sentencing of the applicant was not drawn to the sentencing judge's attention in the sentence proceedings.

1. In his remarks on sentence the sentencing judge did refer to the applicant's pleas of guilty. His Honour said that the applicant's pleas of guilty had "relatively limited utilitarian value", erroneously basing this finding on the strength of the Crown case against the applicant, a factor which was irrelevant to the determination of the utilitarian value of the applicant's pleas of guilty. See for example Sutton v R [2004] NSWCCA 225 at [12] per Howie J.

1. In his remarks the sentencing judge did not specify a precise percentage as being the percentage discount he was allowing for the applicant's pleas of guilty. His Honour said "I think an appropriate range (for the discount for the pleas of guilty) is of the order of between 15 and 20 per cent". A discount of somewhere between 15 or 20 per cent is clearly less than 25 per cent and, consequently, as conceded by the Crown, this ground of appeal must be upheld.

1. There are now a number of decisions of the Court of Criminal Appeal in cases where the sentencing judge has made the error of not allowing a discount of 25 per cent for a plea of guilty in a sentence subject to the Criminal Case Conferencing Trial Act .

1. The Court of Criminal Appeal has generally taken the position that the failure to comply with the Act is a material specific error requiring that the sentence imposed by the primary judge be quashed and that the offender be re-sentenced by the Court of Criminal Appeal. Do v R [2010] NSWCCA 182; Tran v R [2010] NSWCCA 183; LJ v R [2010] NSWCCA 289; Greer v R [2011] NSWCCA 40.

1. An exception to this general line of cases is Kim Chompeay v R [2011] NSWCCA 96, in which the Court of Criminal Appeal merely made an arithmetical adjustment to the sentences imposed by the sentencing judge, so that there was a full discount of 25 per cent for the pleas of guilty.

1. In the present case the sentencing judge did not precisely identify the amount of the discount he was allowing for the pleas of guilty, making a precise arithmetical adjustment impossible, and, for reasons I will give in considering other grounds of appeal, the sentencing judge made other errors in the process of sentencing the applicant.

2. His Honour made a mistake of fact when considering the issue of parity.

1. This ground of appeal applies only to the sentence for the armed robbery offence.

1. As already noted, a co-offender in the armed robbery offence was a man named Davies. Davies had been sentenced for the armed robbery offence on 10 September 2009, by another District Court judge Judge Hosking.

1. On 10 September 2009 Davies was also sentenced by Judge Hosking for another offence, not involving the applicant, of assault with intent to take a motor vehicle, taking and driving a motor vehicle without the consent of the person lawfully in possession of it and inflicting actual bodily harm (an offence under s 154C of the Crimes Act ). Davies had pleaded guilty to both offences.

1. In sentencing for each of the two offences Judge Hosking decided that an appropriate starting point before allowing a discount for the plea of guilty, was six years; that a discount of 25 per cent should be allowed for the plea of guilty, reducing the head sentence to four years six months; that he should find that there was special circumstances; that the non-parole period should be two years three months, that is half of the head sentence; and that the sentence for the second offence (the offence under s 154C of the Crimes Act ) should be accumulated by nine months on the sentence for the first offence. The resulting aggregate sentence consisted of head sentences totalling five years three months and non-parole periods totalling three years.

1. A copy of Judge Hosking's remarks on sentence in sentencing Davies became an exhibit in the applicant's sentence proceedings. In his remarks on sentence Judge Knox said "the sentence imposed in relation to Mr Davies was a non-parole period of three years with additional terms of two years three months. There is some complication in that there was a second offence in relation to a second robbery...therefore, it is difficult to ensure that I am comparing like with like. But again there do seem...to be differences in the personal circumstances of the two offenders".

1. I do not consider that his Honour's remarks demonstrate a complete and accurate understanding on his Honour's part of the sentencing of the co-offender. The sentence referred to by his Honour of three years with "additional terms" of two years three months was the aggregate sentence imposed on Davies and not the sentence for the armed robbery offence, which was the only sentence giving rise to questions of parity. His Honour made no reference to the sentence which had been imposed on Davies for the armed robbery offence. Contrary to his Honour's assertion, there would be no difficulty in comparing the objective seriousness of the conduct of Davies and the conduct of the applicant in committing the armed robbery offence.

1. I would uphold the second ground of appeal.

3. The applicant has a legitimate sense of grievance when comparing the sentence imposed upon him with respect to count 1 as opposed to that imposed upon his co-offender Davies.

1. This ground of appeal is expressly limited to the sentence for count 1, that is the armed robbery offence.

1. In considering the second ground of appeal I referred to the sentence imposed by Judge Hosking on the co-offender Davies for the armed robbery offence and the process by which Judge Hosking arrived at that sentence.

1. The head sentence imposed on the applicant for the armed robbery offence was six years nine months. If the sentencing judge allowed a discount of between 15 and 20 per cent for the applicant's plea of guilty, then the sentencing judge's starting point, before allowing a discount for the plea of guilty, would have been in the vicinity of eight years, as compared with Judge Hosking's starting point in sentencing Davies of six years. The sentencing judge found special circumstances but made the non-parole period of the sentence two-thirds of the head sentence, whereas Judge Hosking made the non-parole period of Davies' sentence half of the head sentence.

1. It was common ground at the hearing of the application that the principles of parity and proportionality discussed by the High Court in Postiglione v The Queen (1995-1996) 189 CLR 295 and especially by Dawson and Gaudron JJ at 301-302 were applicable.

1. There was also a large measure of agreement between the Crown and counsel for the applicant about the points of similarity and the points of difference between the two offenders and their offending.

1. It was accepted by both the Crown and counsel for the applicant that the objective criminality of the applicant and of Davies was similar. It was not correct to say, as the sentencing judge had in his remarks, that the applicant's role was central. Davies had repeatedly kicked and punched the victim and it was Davies who had thrown the beer bottle, which was the only weapon used in the commission of the offence.

1. It was also accepted by both the Crown and counsel for the applicant that important subjective circumstances shared by the applicant and Davies were that they were both Aboriginals who were only 18 years old at the time of committing the offence.

1. The only respects in which it was submitted by the Crown that the applicant differed from Davies, to the disadvantage of the applicant, were:-

1.   the additional offences to be taken into account in sentencing the applicant were more serious than the additional offences taken into account in sentencing Davies

2.   the applicant had a much worse previous criminal history than Davies

3.   the applicant was on bail, that is on conditional liberty, at the time he committed the offence.

1. As regards additional offences to be taken into account, I have already noted that in sentencing the applicant the sentencing judge took into account an offence of breaking and entering with intent to steal and an offence of failing to appear in accordance with a bail undertaking.

1. In sentencing Davies Judge Hosking had taken into account an offence of driving a motor vehicle while a learner driver without a licensed person being seated next to him, which Judge Hosking considered added almost nothing to Davies' criminality, but also a rather more serious offence of driving a motor vehicle with a high range prescribed concentration of alcohol.

1. I would accept that the additional offences to be taken into account in sentencing the applicant were somewhat more serious than the additional offences taken into account in sentencing Davies.

1. The applicant clearly had a much more serious criminal history than Davies, who had only a very minor previous criminal history. Davies was not on conditional liberty at the time of committing the offence.

1. It was submitted by the Crown that the differences between the applicant and Davies was such that there should be some difference in the sentences imposed on them for the armed robbery offence but it was conceded by the Crown that the differences between them were not sufficient to justify the degree of difference which existed between the sentence imposed on the applicant and the sentence which had been imposed on Davies and that the applicant would have a legitimate sense of grievance about the lack of due proportionality between the two sentences.

1. I consider that the Crown's concession was properly made and I would uphold the third ground of appeal.

4. The sentences imposed upon the applicant were manifestly excessive.

1. I have decided that each of the first three grounds of appeal should be upheld. In these circumstances, I consider that it is necessary for this Court to re-sentence the applicant generally. Accordingly, it is unnecessary for the Court to consider the fourth ground of appeal.

Re-sentencing the applicant

1. I have already stated the objective facts of the offences and the subjective circumstances of the applicant.

The armed robbery offence

1. In re-sentencing the applicant the Court should seek to impose a sentence which is duly proportional to the sentence which was imposed on the co-offender Davies. The only points of distinction between the applicant and Davies which operate to the disadvantage of the applicant are that the additional offences to be taken into account in sentencing the applicant were somewhat more serious, the applicant had a worse criminal history and the applicant was on bail when he committed the offence.

1. To allow for these points of distinction I would adopt a starting point of six years six months and I would then allow the full discount of 25 per cent required by the Criminal Case Conferencing Trial Act , producing (with some rounding off) a head sentence of four years ten months.

1. I would find special circumstances in the same circumstances identified by the sentencing judge and, as these circumstances are similar to the special circumstances identified by Judge Hosking in sentencing Davies, I would follow Judge Hosking and set a non-parole period in the sentence for this offence of 50 per cent of the head sentence.

1. Accordingly, the head sentence for the armed robbery offence would be four years ten months, with a non-parole period of two years five months and a balance of the term of two years five months.

The robbery in company offence

1. It has been held that the guideline judgment for armed robbery of R v Henry applies mutatis mutandis to robbery in company R v Murchie (1999) 108 A Crim R 482.

1. The applicant's offence was a serious offence and much more serious than the common category of case of armed robbery described in para [162] of Spigelman CJ's judgment in Henry , for which his Honour considered head sentences should generally fall between four and five years. The applicant's offence was more serious in that the applicant was not an offender with little or no criminal history and there was not limited, but extensive, actual violence in the commission of the offence. Furthermore, at the time of committing the offence the applicant was an escapee, although care has to be exercised in not doubly punishing the applicant for being an escapee, in sentencing him for the robbery in company offence and also for the escape offence.

1. The sentencing judge imposed a sentence of nine years for this offence. If his Honour allowed a discount of between 15 and 20 per cent for the applicant's plea of guilty, then his Honour's starting point in sentencing for this offence would have been more than ten years.

1. Although, as I have said, the offence was serious, I do not consider that this Court in exercising its own sentencing discretion should adopt such a high starting point as the sentencing judge did. I would adopt a starting point of eight years and then allow the full discount of 25 per cent required by the Criminal Case Conferencing Trial Act , producing a head sentence of six years.

1. I would find special circumstances in the circumstances identified by the sentencing judge. In determining how the head sentence for this offence should be divided between a non-parole period and the balance of the term the Court is not constrained by considerations of proportionality with any sentence for a co-offender. However, it will be necessary to reduce the non-parole period in this sentence so as to preserve an overall ratio of non-parole periods and the fixed term to the head sentences.

1. The sentencing judge accumulated the sentence for the robbery in company offence on the sentence for the armed robbery offence by a period of six months. This degree of accumulation could be regarded as rather lenient, considering that there were two quite separate offences committed many months apart. However, in the absence of any Crown appeal I do not consider that the Court of Criminal Appeal in re-sentencing the applicant should impose a greater degree of accumulation.

The escape offence

1. In his remarks the sentencing judge said that, if the co-offenders in the escape offence had not been sentenced in the Local Court to terms of imprisonment for as little as three months, he would have sentenced the applicant to imprisonment for at least 12 months for the escape offence. However, the sentencing judge said "I feel, to some extent, constrained by the sentences imposed by the magistrate, inadequate as they were in my view" and imposed a sentence of only six months.

1. I would agree with the sentencing judge's views that the sentences imposed in the Local Court on the co-offenders were much too low and that the sentence imposed by his Honour was still very lenient. However, in the absence of any Crown appeal, I do not consider that this Court in re-sentencing the applicant should impose a more severe sentence for the escape offence than the sentencing judge did.

1. I would not, however, make any reduction in the sentence of six months by reason of the Criminal Case Conferencing Trial Act. A sentence of at least eight months (before allowing a discount of 25 per cent for the plea of guilty) was clearly required.

1. Although the sentencing judge would appear to have regarded it as a matter of sentencing discretion, the sentencing judge was required to make the sentence for the escape offence cumulative on the non-parole period of the sentence for the robbery in company offence. Crimes (Sentencing Procedure) Act s 57.

1. The total head sentences will be six years six months, consisting of a period of six months from 1 September 2008 to 28 February 2009 solely attributable to part of the sentence for the armed robbery offence and a period of six years commencing on 1 March 2009 attributable to the robbery in company offence and subsuming the remainder of the sentence for the armed robbery offence and the total sentence for the escape offence commencing on the expiration of the non-parole period of the sentence for the robbery in company offence. To maintain an overall ratio of two-thirds between the total non-parole periods and the fixed term and the total head sentences (the ratio adopted by the sentencing judge), it will be necessary to adjust the non-parole period and the balance of the term for the robbery in company sentence.

Conclusion

1. In my opinion, the following orders should be made.

Leave to appeal against sentences imposed by Judge Knox on 9 September 2010 granted.

Appeal against sentence allowed.

Sentences imposed on 9 September 2010 quashed.

In lieu thereof, sentence the applicant:-

1.   For the offence of armed robbery to a non-parole period of two years five months commencing on 1 September 2008 and expiring on 31 January 2011 and a balance of the term of two years five months commencing on 1 February 2011 and expiring on 30 June 2013.

2.   For the offence of robbery in company to a non-parole period of three years four months commencing on 1 March 2009 and expiring on 30 June 2012 and a balance of the term of two years eight months commencing on 1 July 2012 and expiring on 28 February 2015.

3.   For the offence of escaping to a fixed term of imprisonment of six months commencing on 1 July 2012 and expiring on 31 December 2012.

The earliest date on which the applicant will be eligible for release on parole will be 31 December 2012.

1. FULLERTON J : I agree with James J.

**********

Decision last updated: 17 November 2011