Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Foaiaulima v R [2020] NSWCCA 270 Hearing dates: 12 August 2020 Decision date: 21 October 2020 Before: Bathurst CJ at [1]; Johnson J at [15]; Rothman J at [75] Decision: (1) Leave to appeal granted; (2) Appeal dismissed. Catchwords: CRIME – Sentence Appeal – Applicability of Guideline judgment in Henry – method of application – manifest excess – no manifest excess – majority held no error in method of application of guideline judgment – by majority, appeal dismissed. Legislation Cited: Crimes Act 1900 (NSW), ss 52A, 60(1), 97, 98, 112, 189 Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A, 36-42A, 54A, 54B, Part 3 Criminal Appeal Act 1912 (NSW), s 6(3) Cases Cited: Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol under Section 9(4) of the Road Transport (Safety And Traffic Management) Act 1999 (No 3 of 2002) (2004) 61 NSWLR 305; [2004] NSWCCA 303 Attorney-General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Fahs v R [2007] NSWCCA 26 Fedele v R (2015) 257 A Crim R 78; [2015] NSWCCA 286 Hampton v R (2014) 243 A Crim R 193; [2014] NSWCCA 131 Hawat v R [2020] NSWCCA 121 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 Lee v R [2016] NSWCCA 145 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Moodie v R [2020] NSWCCA 160 Mulato v R [2006] NSWCCA 282 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 R v Amati (2019) 279 A Crim R 73; [2019] NSWCCA 193 R v Dennis [2015] NSWCCA 297 R v Hemsley [2004] NSWCCA 228 R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 R v Jurisic (1998) 45 NSWLR 209 R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49 R v Mulligan [2016] NSWCCA 47 R v Street [2005] NSWCCA 139 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 Re Attorney General's Application under s.37 Crimes (Sentencing Procedure) Act 1999 (No. 2 of 2002) (2002) 137 A Crim R 196; [2002] NSWCCA 515 Re Attorney-General's Application [No 1] under s 26 of the Criminal Procedure Act; R v Ponfield; R v Scott; R v Ryan; R v Johnson (1999) 48 NSWLR 327; [1999] NSWCCA 435 RL v R [2015] NSWCCA 106 Tepania v R (2018) 275 A Crim R 233; [2018] NSWCCA 247 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 Williams v R [2010] NSWCCA 15 Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64 Texts Cited: Judicial Commission of New South Wales, Sentencing Bench Book Second Reading Speech, Legislative Assembly, 23 October 2002, 5815 (Robert Debus, Attorney-General) Category: Principal judgment Parties: Natasha Foaiaulima (Applicant) Crown (Respondent) Representation: Counsel: J. Brock (Applicant) C. Curtis (Respondent) Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions NSW (Respondent) File Number(s): 2018/170437 Decision under appeal Court or tribunal: District Court Jurisdiction: Crime Date of Decision: 2 May 2019 Before: Shead DCJ File Number(s): 2018/170437 Judgment 1. BATHURST CJ: I have had the advantage of reading the judgments of Johnson J and Rothman J in draft. Like Johnson J, I gratefully adopt Rothman J's summary of the facts, the grounds of appeal and the submissions made to this Court. 2. As Rothman J points out, grounds 1 and 2 of the grounds of appeal overlap, in essence involving the proposition that the sentencing judge misapplied the guideline judgment in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 ("Henry"). 3. Rothman J found error in that the sentencing judge dealt with the question of objective seriousness and the range of sentence available in two stages. First, in considering the issue by reference to the Henry guidelines, and then separately considering aggravating and mitigating circumstances over and above those which were referred to in the guideline judgment (judgment Rothman J at [144]-[146] below). 4. The approach adopted by the sentencing judge is, I think, open to two possible interpretations. The first is that she determined the seriousness of the offence by reference to where it fell within the Henry guidelines, and then subsequently considered additional aggravating and mitigating factors to determine to what extent she should depart from the determination made in accordance with those guidelines. If that was the approach she took, then I would respectfully agree with Rothman J that her approach was erroneous: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]-[31]. 5. There are aspects of the remarks on sentence which support Rothman J's conclusion. First, the sentencing judge dealt with the Henry factors separately from the other aggravating and mitigating factors required to be considered under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Procedure Act). Second, she warned herself against double counting when separate analysis was made by reference to the Henry guidelines and to the specific factors in s 21A of the Sentencing Procedure Act, referring to the pre-Muldrock case of R v Street [2005] NSWCCA 139. Third, and most importantly, she stated that "the appropriate head term is towards the lower end of the range that is applied in Henry". 6. Notwithstanding, I do not think that considering the judgment overall the sentencing judge adopted this approach, but rather treated the Henry guideline as a guidepost to which she had account in determining the sentence, in accordance with the instinctive synthesis approach referred to in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51]; see also Muldrock at [26]-[28]. There are a number of reasons for this conclusion. 7. First, s 42A of the Sentencing Procedure Act requires the guideline judgment to be taken into account: see Moodie v R [2020] NSWCCA 160. 8. Second, unlike standard non-parole periods, the guideline judgment in Henry refers to a range of sentences determined by the particular factors referred to in the judgment of Spigelman CJ in that case. To take the guideline into account, it is necessary to give some consideration to where within the Henry range the particular offence stood. 9. Third, her Honour's remarks immediately after she dealt with the guideline shows, in my opinion, that after she considered where the offence fell within the Henry range she did not conduct a separate assessment but rather took that into account as part of the overall instinctive synthesis process. That is apparent from the following remarks from the sentencing judgment: "I have considered the authorities and the relevant principles guiding the assessment of the objective seriousness of offences of this kind, including the Henry guideline. I am mindful that such an assessment must be made by reference to all of the facts and circumstances of the case." 1. Fourth, in dealing with the sentencing approach the sentencing judge specifically referred to the approach required by Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14, Markarian and Muldrock, describing Henry as one of the aspects which bear upon the question of sentencing. 2. In these circumstances, I do not consider that grounds 1 and 2 of the grounds of appeal have been made out. 3. So far as ground 3 is concerned, I do not consider that her Honour's assessment that the degree of planning was greater than that in the Henry guideline demonstrated error. The facts set out by her Honour in the sentencing judgment demonstrate in my view that it was open to her to conclude that the planning involved was somewhat greater than the limited degree of planning referred to in the Henry guidelines. 4. I agree with both Rothman J and Johnson J, essentially for the reasons given by Johnson J, that the sentence was not manifestly excessive. 5. It follows that leave to appeal should be granted but the appeal dismissed. 6. JOHNSON J: I have had the advantage of reading in draft the judgment of Rothman J. I gratefully adopt his Honour's summary of the facts, the grounds of appeal and of the submissions made in this Court with respect to the grounds of appeal. I have reached a different view to his Honour concerning the outcome of the appeal. Guideline Judgments 1. Rothman J has outlined helpfully (at [127]ff), the origin of guideline judgments in New South Wales, the guideline judgment in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 and subsequent decisions of the High Court of Australia and of this Court concerning sentencing principles. 2. As Rothman J has noted at [130], the last guideline judgment dealing with sentencing for a particular offence was delivered in 2004 (for high range PCA offences). In the Keynote Address to the Sentencing Conference 2008, entitled "Consistency in Sentencing" (2008) 9 TJR 45 at 53, Spigelman CJ explained why guideline judgments had fallen into disuse: "In New South Wales the system of guideline judgments was first established by the Court of Criminal Appeal but was reinforced by supportive legislation. It is a system which has ceased to grow because of the introduction into our sentencing legislation of a scheme of indicative 'standard' non-parole periods, providing the same guidance in legislative form. The scheme of the legislation is such as to cover virtually every offence that was capable of being the subject of a guideline judgment. Such judgments are not prescriptive in character but they do establish a system in which sentencing judges have to take the guideline into account as a check or indicator or guide, with a requirement to address the guideline and to articulate reasons for its applicability or inapplicability to the case in hand. The principal objective of a guideline judgment is to promote consistency." 1. The standard non-parole period scheme was enacted by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002, which also introduced ss.3A and 21A into the Crimes (Sentencing Procedure) Act 1999. In a judgment which declined to issue a guideline judgment for assault police offences under s.60(1) Crimes Act 1900, Spigelman CJ (Wood CJ at CL, Grove, Sully and James JJ agreeing) noted the enactment of ss.3A and 21A as well as the creation of the standard non-parole period scheme, which did not apply to s.60(1) Crimes Act 1900 offences: Re Attorney General's Application under s.37 Crimes (Sentencing Procedure) Act 1999 (No. 2 of 2002) (2002) 137 A Crim R 196; [2002] NSWCCA 515 at [13]-[17], [54]-[61]. The introduction of ss.3A and 21A bore on the question whether the Court should issue a guideline judgment. Spigelman CJ said at [55]-[61]: "56 The list of aggravating factors [in s.21A] is stated in a form which has not hitherto been required to be taken into account by sentencing judges. The guideline proposed is basically derived from this list of aggravating factors plus three specific additional ones, based on circumstances that often arise with respect to offences under s60(1). 57 Further, this Court did not receive submissions about the impact of s3A of the 1999 Act which also takes effect from 1 January 2003. It is arguable that some of the 'purposes of sentencing' which must now guide sentencing decisions constitute a change of pre-existing sentencing principle. 58 For example, 'prior' case law refers to the role of sentencing to protect the community, but that objective was often said to be achieved by means of rehabilitation, deterrence or retribution. Section 3A(c) now suggests that this should be regarded as a separate 'purpose' and one concerned with protection of the community 'from the offender'. 59 It may also be arguable that s3A(c) – making the offender 'accountable' - introduces a new element into the sentencing task. The same may be true of the reference to 'harm' to 'the community' in s3A(g). 60 In the absence of argument, I would not wish to be understood to be expressing a view on these matters. The possibility that prior sentencing principle may need to be reviewed does, however, support the conclusion that the present application is premature. 61 The guideline is sought at a time when the new identification of the purposes of sentencing and the specification of a list of aggravating factors has not been considered by any court. What, if any, effect this new regime will have on the sentencing pattern for offences under s60(1) of the Crimes Act must be a matter of speculation." 1. As Rothman J noted at [131], a policy decision was taken in 2002 not to extend the standard non-parole period scheme to offences which had been the subject of guideline judgments. 2. Since 2002, offences have been added to the standard non-parole period scheme and some periods have been altered, all by statutory amendment. In addition, after the decision in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, amendments were made in 2013 to ss.54A and 54B Crimes (Sentencing Procedure) Act 1999: Tepania v R (2018) 275 A Crim R 233; [2018] NSWCCA 247 at [91]-[96], [103]-[113]. 3. These statutory developments were accompanied by many decisions of this Court which have considered the proper construction and operation of ss.3A and 21A Crimes (Sentencing Procedure) Act 1999 as well as the operation of the standard non-parole period scheme. 4. The guideline judgments most commonly considered and applied in the District Court and in this Court are R v Henry (s.97(1) Crimes Act 1900 offences) and R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 (culpable driving offences). 5. As well as having statutory force as a guideline judgment under Division 4 of Part 3 of the Crimes (Sentencing Procedure) Act 1999 (ss.36-42A), in each case the Court was constituted by a bench of five Judges. In R v Henry, the Court was constituted by Spigelman CJ, Wood CJ at CL, Newman J, R S Hulme J and Simpson J. In R v Whyte, the Court comprised Spigelman CJ, Mason P, Barr J, Bell J and McClellan J. 6. It is now 21 years since R v Henry was decided and 18 years since the decision in R v Whyte. Self-evidently, there have been substantial developments in statutory and common law principles concerning sentencing in New South Wales during that period. 7. It remains the case that offences under s.97(1) Crimes Act 1900 are not included in the standard non-parole period scheme although offences under s.98 Crimes Act 1900 (robbery with arms etc and wounding) do attract a standard non-parole period. 8. There has been no application for a revised guideline judgment for s.97(1) offences. If a standard non-parole period was not to be fixed for s.97(1) offences, then a revised guideline judgment for s.97(1) offences would have the advantage of setting a guideline in the contemporary context of sentencing law, including ss.3A and 21A, together with principles which have been stated by the High Court of Australia and by this Court since 1999. 9. These observations are not made to urge that a particular approach be taken by the legislature or by the Attorney General. Rather, they are intended to emphasise the fact that District Court Judges (at first instance) and this Court (on appeal) are called upon to consider and apply guideline judgments, which continue to have statutory force, alongside a range of statutory and common law principles which have developed since the R v Henry guideline judgment was issued in 1999. 10. The R v Henry guideline judgment constitutes a statutory matter to be taken into account on sentence for s.97(1) offences by operation of s.42A Crimes (Sentencing Procedure) Act 1999 which states: "42A Relationship of guidelines and other sentencing matters A guideline that is expressed to be contained in a guideline judgment - (a) is in addition to any other matter that is required to be taken into account under Division 1 of Part 3, and (b) does not limit or derogate from any such requirement." 1. As Bell P (Davies and N Adams JJ agreeing) observed in Moodie v R [2020] NSWCCA 160 at [24] "guideline judgments have statutory force and oblige sentencing judges to take them into account". 2. In passing sentence for a s.97(1) Crimes Act 1900 offence, it is necessary to take into account the R v Henry guideline judgment as a statutory factor to be considered, together with a wide range of other statutory and common law factors, as part of the process of instinctive synthesis culminating in a value judgment expressed in numerical terms as the sentence: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51]; Muldrock v The Queen at [26]. The R v Henry Guideline Judgment 1. Before considering her Honour's sentencing remarks, it is appropriate to refer to the structure of the R v Henry guideline judgment which bears upon the approach taken by the sentencing Judge in this case. 2. In R v Henry, Spigelman CJ stated at [161]-[165]: "161 In the cases now before this Court, the Crown has propounded a starting point for New South Wales of six years full term, in circumstances where there is a plea of guilty. 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. 163 Whilst it is possible to determine a starting point in a case of this kind, i.e. a sentence of X years imprisonment, I do not believe that the Court should do so. Rather, I propose the Court should identify a narrow sentencing range within which this Court would expect sentences in such cases to fall. 164 There are two principal reasons why a sentencing range is appropriate for this offence: (i) The seven characteristics identified above do not represent the full range of factors relevant to the sentencing exercise. (ii) Many of the seven identified characteristics contain within themselves an inherent variability, eg different kinds of knives or weapons in (ii); extent of 'limited actual violence' in (iv); degree of vulnerability in (v); amount in (vi). 165 In my opinion sentences for an offence of the character identified above should generally fall between four and five years for the full term. I have arrived at this figure after drawing on the collective knowledge of the other four members of the Court with respect to sentence ranges. I have also reviewed the sentences which this Court has imposed on occasions when it has intervened, including in Crown appeals where the principle of double jeopardy applies. The proposed range is broadly consistent with this body of prior decisions in this Court." 1. It will be observed that the seven factors referred to by the Chief Justice in R v Henry at [162] (see [32] above) involve a mixture of objective features (factors (ii), (iii), (iv), (v) and (vi)) and subjective features (factors (i) and (vii)). 2. The Chief Justice made clear at [164] (see [32] above) that a range of other factors would arise for consideration as well depending upon the facts and circumstances of the particular case. Spigelman CJ adverted further to many of these factors at [169]-[170]: "169 Aggravating and mitigating factors will justify a sentence below or above the range, as this Court's prior decisions indicate. The narrow range is a starting point. 170 In addition to factors which may arise in any case eg youth, offender's criminal record, cooperation with authorities, guilty plea in the absence of a strong case, rehabilitation efforts, offence committed whilst on bail etc, a number of circumstances are particular to the offence of armed robbery. These include: (i) Nature of the weapon; (ii) Vulnerability of the victim; (iii) Position on a scale of impulsiveness/planning; (iv) Intensity of threat, or actual use, of force; (v) Number of offenders; (vi) Amount taken; (vii) Effect on victim(s)." 1. The Chief Justice went on to refer to a range of other factors which may arise for consideration on sentence for a s.97(1) offence, as did Wood CJ at CL, R S Hulme J and Simpson J in separate judgments. 2. The structure of the R v Henry guideline judgment assists an understanding of her Honour's sentencing remarks in this case. The Sentencing Remarks 1. The sentencing Judge had reserved judgment at the conclusion of the sentencing hearing. Her Honour's judgment is a well-structured and thoughtful sentencing decision which addresses all aspects bearing upon the process of instinctive synthesis in this case. As required by law, her Honour had regard to the R v Henry guideline judgment. 2. It is necessary to read her Honour's sentencing remarks fully and fairly for the purpose of considering the grounds of appeal: Hawat v R [2020] NSWCCA 121 at [32]. 3. Her Honour recited the facts of the offences (ROS2-6) before turning to evidence given at the sentencing hearing including the evidence of the Applicant (ROS6-9). Her Honour outlined the Applicant's subjective case, including her background and upbringing, education, employment history, medical history, substance abuse history, social and relationship history and her criminal history (ROS9-14). The sentencing Judge then addressed the Applicant's attitude to the offending and the formulation and recommendations of Megan Godbee, forensic psychologist, in a report tendered in the defence case on sentence (ROS14-15). Reference was then made to the Crown and defence submissions on sentence (ROS15-20). 4. It was at this point in the sentencing remarks that her Honour referred to the R v Henry guideline judgment, which had played a significant part in submissions made on sentence. It was necessary for her Honour to have regard to it and she did so (ROS20-23). Her Honour noted (at ROS24-25) that the R v Henry guideline judgment applied to an offence of robbery in company as well as armed robbery under s.97(1) Crimes Act 1900. 5. Her Honour then considered (at ROS25-26) what were described as "the Henry factors". In doing this, the sentencing Judge was considering the seven factors referred to by Spigelman CJ in R v Henry at [162] (see [32] above). As noted earlier, the seven factors identified by Spigelman CJ were not confined to objective features of an offence. They included a mixture including subjective factors being "young offender with no or little criminal history" and "plea of guilty, the significance of which is limited by a strong Crown case". In the later decision of R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [161], Spigelman CJ clarified the reference to a late plea of guilty in the R v Henry guideline judgment noting that, where there is an early guilty plea, all other things being equal, the sentence should be lower than that suggested in the range. 6. The sentencing Judge considered (at ROS25-26) the seven factors enumerated in the R v Henry guideline judgment by reference to the circumstances of this case. Having considered those factors, her Honour stated that "the appropriate head term is towards the lower end of the range that is applied in Henry" (ROS26). 7. In accordance with the R v Henry guideline judgment at [164], [169]-[170] (see [32], [34] above), both before and after this point in the sentencing remarks, her Honour considered a wide range of objective and subjective factors as part of the process of instinctive synthesis, including the objective seriousness of the offence (ROS26-27). In this context, her Honour said that the offence was an objectively serious one and that "the Court must send a strong message that such behaviour is not tolerated" (ROS 27). Soon after, her Honour said (ROS27): "The victim was travelling with some friends on a train in a public place where members of the community are entitled to feel safe. While I am mindful that no weapon was used or possessed, regard must be had to the fact that actual violence was done on the part of the offender in the form of several punches to the victim's head. In fact, having reviewed the closed-circuit television footage, it is clear to me that there were two episodes of violence being applied by the offender to the victim. The victim was helpless during the first episode, given that one of the offenders had pulled her hair while the attack was occurring and on the second occasion the victim was completely blindsided as the offender and her co-offender rushed up the stairs and immediately began punching the victim. Overall, I find this offending to fall at the mid-range on the scale of objective seriousness." 1. It is noteworthy that the finding of objective seriousness was made at this advanced stage in the sentencing remarks. 2. Her Honour referred to the victim impact statement (ROS27-28) and factors under ss.3A and 21A Crimes (Sentencing Procedure) Act 1999 relevant to this case (ROS29-32). 3. Her Honour referred to the fact that the offence was committed whilst the Applicant was subject to conditional liberty (being on a good behaviour bond) (ROS30-31), the Form 1 offence of disposing of stolen property (ROS29) and issue of totality arising from the sentences imposed upon the Applicant for offences which she had committed after the s.97(1) offence (ROS33-38). A finding of special circumstances was made (ROS38). 4. Before passing sentence, her Honour said (ROS39-40): "I have taken into account the various purposes of sentencing under s 3A of the Crimes (Sentencing and Procedure) Act 1999 that I have referred to earlier in this sentencing judgment. Having regard to s 5 of the Crimes (Sentencing and Procedure) Act and having considered all possible alternatives, I am of the view that no penalty other than imprisonment is appropriate. As I am satisfied that no alternative other than a sentence of imprisonment is appropriate, the the next step is to determine the sentence in the quantitative sense. Having considered all the matters I have referred to in this sentencing judgment, including the Form 1 matter, I impose a sentence of imprisonment for four years and three months after applying a discount of 25% for the offender's early guilty plea. Applying my finding of special circumstances, I impose a non-parole period of imprisonment for two years and nine months after discount. Had the offender not pleaded guilty I would have imposed a sentence of imprisonment for five years and eight months with a non-parole period of three years and eight months." 1. In my view, the approach taken by the sentencing Judge does not disclose error. Features of the sentencing remarks were derived from the structure of the R v Henry guideline judgment itself where seven factors were mentioned separately (at [162]), with reference being made (at [165]) to the guideline and with it being made clear (at [164], [169]ff) that all other objective and subjective factors were to be considered by a sentencing court, together with all applicable sentencing principles, before sentence was determined in the particular case. 2. The ultimate sentence was to be determined after addressing all factors including the maximum penalty of imprisonment for 20 years. This is what her Honour did. 3. Fairly and fully read, the sentencing Judge in her remarks had regard to all factors relevant to sentence and determined, in the exercise of instinctive synthesis, the appropriate sentence to pass in all the circumstances of the case. 4. I am not persuaded that her Honour engaged in a form of impermissible reasoning in the sentencing remarks. The Applicant's submission is based upon a rigid construction of what her Honour said, which does not accord with the proper approach to reading sentencing remarks: Hawat v R at [33]. All of the matters identified in the process of delivery of the sentencing remarks were taken into account, without error, in the value judgment quantified as the sentence to be passed upon the Applicant. 5. In my view, no error is demonstrated in her Honour's approach in this case. Aspects of the Offence 1. Her Honour had particular regard to the CCTV footage depicting the commission of the offence. This is a further example of cases where the offence was captured by CCTV so that the sentencing court (and this Court on appeal) has an opportunity to observe the actual offence being committed: R v Mulligan [2016] NSWCCA 47; R v Amati (2019) 279 A Crim R 73; [2019] NSWCCA 193 at [17]. This is an important aspect on sentence when CCTV footage is available. The Court is not restricted to a written narrative only. The members of the Court have viewed the CCTV footage for the purpose of determining the appeal. 2. Her Honour described what was depicted in the CCTV footage (at ROS6 and 27) and made findings which were not challenged in this Court. 3. The victim and her two companions were sitting peacefully on a train on a Sunday afternoon travelling to the Royal Easter Show. 4. The Applicant was present with a number of other persons including two female companions and at least one male companion. The Applicant and her two female companions were all large women. 5. The events depicted in the CCTV footage, and as described in the Agreed Statement of Facts, provide a good example of the intimidation which flows from a number of persons placing themselves close to the victim especially when their intimidating presence is exacerbated by words. In this case, there was an element of racist abuse directed by one or more persons in the Applicant's group to the young victim and her friends who were South Korean. 6. From the time the Applicant and her companions engaged with the victim and her friends until the end of the incident, some nine minutes passed. The incident commenced because one of the Applicant's companions said that she wanted to sit in the seats occupied by the victim and her friends although there was an ample number of empty seats elsewhere in the carriage. When this directive was not accepted by the victim with the reasonable response that there were other seats free, the incident escalated into one of intimidation accompanied by laughter on the part of the Applicant and her companions and use of insulting language. 7. The Applicant struck the victim at one point, with the Applicant and her companions thereafter leaving the train at a station. The victim and her friends were no doubt relieved at this development. However, a short time later, the Applicant and her companions got back on the train and the Applicant violently attacked the victim from behind, pulling her hair and pushing her in an aggressive way before taking her mobile phone. 8. This was the culmination of the series of related events that constituted the offence. The Applicant and her friends then ran away leaving the victim and her friends in a highly distressed state. 9. The fact that no weapon was used is of limited assistance to the Applicant. The offence in s.97(1) may be committed where the offender is "in company with another person" as the Applicant undoubtedly was in this case, with others acting in concert with her at various points in the incident to intimidate the victim and assist in the robbery. If a weapon had been involved as well, this would have further aggravated the offence. In reality, the Applicant and her two companions were large in build and thus intimidating by their presence alone, let alone when accompanied by threatening words and violent acts. 10. The Applicant was 22 years of age and was found by the sentencing Judge, accurately, to be the ringleader of her young companions. 11. The Applicant was subject to a good behaviour bond at the time of the commission of this offence. She committed a further offence later that day, stealing another mobile phone. Sentencing for Offences of Violence Committed Against Users of Public Transport 1. This Court has emphasised the need for appropriate punishment, and the importance of general deterrence, where crimes of violence are committed against persons using the public transport system: R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49 at [207]-[208]; Hampton v R (2014) 243 A Crim R 193; [2014] NSWCCA 131 at [51]; R v Dennis [2015] NSWCCA 297 at [2]-[3], [65]. Comments in these cases were made in the context of offences committed against persons using public transport late at night. Upon that basis, counsel for the Applicant sought to confine what was said in those cases given that the present offence occurred on a Sunday afternoon. It was also submitted that this was not a case of a planned attack where the Applicant had determined to select someone on the public transport system and laid in wait to locate a victim. 2. I do not consider that the distinction sought to be made by counsel for the Applicant provides any assistance in this case. Persons use the public transport system as a necessary part of daily life. The community is entitled to expect that significant punishment will be visited upon those who commit crimes of violence, whether planned or random, directed to members of the public using public transport whether by day or night. 3. What was said in the authorities (at [64] above) concerning protection of members of the community on public transport applies equally to offences of violence directed to innocent members of the public, who have done nothing to attract attention or provoke an offender in circumstances where the victim is, in effect, confined on the public transport system and thus exposed to an attack by a person such as the Applicant who is minded to offend in this way. 4. This was not a spontaneous offence which ended in a short period of time. What commenced with the Applicant and her companions directing their attention to the victim and her friends then became, over a period of nine minutes, a course of conduct involving physical and verbal intimidation and two incidents of violence directed to the victim. 5. In giving effect to the purposes of sentencing under s.3A Crimes (Sentencing Procedure) Act 1999 in this case, it was necessary, amongst other things, for the sentencing Judge to ensure that the Applicant was adequately punished for the offence (s.3A(a)) by the imposition of a significant sentence of imprisonment which would deter the Applicant and other persons from committing similar offences (s.3A(b)) and also serve to denounce the conduct of the Applicant (s.3A(f)) and recognise the harm done to the victim of the crime and the community (s.3A(g)). There is harm to the community when public confidence in the safety of the public transport system is undermined by the commission of an offence such as this against users of public transport. Error Has Not Been Demonstrated 1. The sentencing Judge had regard to all relevant factors in reaching a head sentence and non-parole period, including the question of totality given sentences of imprisonment imposed for the Applicant's later offences. A finding of special circumstances was made with the non-parole period constituting about 65% of the head sentence. 2. I do not agree with Rothman J that the structure and content of her Honour's sentencing remarks disclose error as asserted in Ground 1. In my view, a fair and complete reading of her Honour's sentencing remarks discloses that regard was had to the R v Henry guideline judgment, together with all other matters which were relevant on sentence. I would not uphold Ground 2 as I do not accept that her Honour's sentencing remarks were inadequate or indicated a misapplication of legal principle. Nor would I uphold Ground 3 as no error is demonstrated in her Honour's finding with respect to planning having regard to the circumstances of the case. 3. To make good the claim of manifest excess contained in Ground 4, it is necessary for the Applicant to demonstrate that the sentence was unreasonably or plainly unjust: Markarian v The Queen at [25]. I am not persuaded that the sentence imposed upon the Applicant in this case was manifestly excessive. 4. In my view, none of the grounds of appeal have been made good. The sentence of imprisonment was an appropriately substantial one in this case. The sentence lay within the reasonable exercise of sentencing discretion having regard to all factors which bore upon the fixing of sentence in this case. 5. If error had been demonstrated in accordance with Ground 1 based upon the contention that the R v Henry guideline judgment had been, in some way, misapplied, it would be necessary to consider the question of resentencing under s.6(3) Criminal Appeal Act 1912. If that point had been reached, I would have formed the view that no lesser sentence is warranted in all the circumstances of the case. I would adopt the careful findings made by the sentencing Judge with respect to the objective gravity of the offence, the Applicant's subjective circumstances and other factors bearing on sentence including the importance of general deterrence. 6. I am not persuaded that the Applicant has made good any of the grounds of appeal. Although leave to appeal against sentence should be granted, the appeal should be dismissed. 7. ROTHMAN J: The applicant, Natasha Foaiaulima, seeks leave to appeal a sentence imposed upon her by her Honour Judge Shead SC on 2 May 2019 in the District Court of New South Wales for the offence of robbery in company, contrary to s 97(1) of the Crimes Act 1900 (NSW). An offence of disposing of stolen property contrary to s 189 of the Crimes Act was taken into account on a Form 1. Her Honour imposed a sentence of imprisonment of 4 years and 3 months, including a non-parole period of 2 years and 9 months. 8. The applicant appeals on the following grounds: 1. Ground 1: Her Honour erred in her application of the Henry [1] guideline; 2. Ground 2: Her Honour's reasons on the application of the Henry guideline were inadequate and indicate a misapplication of legal principle; 3. Ground 3: Her Honour erred in making her specific findings for the purposes of Henry that the offence involved planning that is above what was described in the guideline; 4. Ground 4: The sentence is manifestly excessive. Relevant procedural and factual history 1. The sentence proceedings were based on Agreed Facts, which were Exhibit 1 in the proceedings, and CCTV footage of the assault (Exhibit 2). 2. At approximately 4:30 PM on 1 April 2018, the victim was travelling on the train in the company of two friends. They entered the upper area of the train and sat down on a three-person seat. The applicant and the applicant's two younger cousins were also on the train. 3. One of the applicant's cousins said to the victim that she wanted to sit on the seat occupied by the victim. The victim told her she could sit elsewhere, given the carriage was largely empty. The applicant's cousin became aggressive to the victim and her friends. The applicant and her cousin took up some seats further along the carriage. From there, the applicant's group verbally and racially abused the victim and her friends. 4. After some time, the applicant moved to take up a position behind the victim. Soon after, the applicant was joined by one of her cousins. Over the course of some minutes, the applicant and her cousins (and at one stage an unknown male) intimidated the victim, including mimicking acts of violence behind the victim's back. This lasted for approximately five minutes. 5. The applicant and her cousin then swapped positions. The applicant gestured to her cousin to pull the hair of the victim. The cousin pulled the victim's hair and the applicant lent over in an unsuccessful attempt to take the victim's phone from her hand. During this attempt, the applicant punched the victim to the head. The applicant and her two cousins then left this area of the train and got off the train at Glenfield and started walking across the platform. . 6. Shortly after leaving the train, the applicant re-entered the train with one of her cousins. The applicant ran up the stairs and punched the victim. At the same time, the applicant grabbed at the victim's handbag, resulting in the strap of the bag breaking. The applicant's younger cousin, at the same time, moved closer and punched the victim. During this physical assault, the applicant took the victim's mobile phone and left the train with her cousin. 7. On the platform of the train station, the applicant met up with other persons who had, seemingly, been on the same train, one or more of whom had been depicted in the CCTV footage of the train. The victim and her friends pursued the applicant and the others and unsuccessfully demanded the return of the mobile phone. 8. As a result of the assault, the victim sustained a lump to her temple and muscle soreness in her neck. The police arrested the applicant on 31 May 2018. The applicant made full admissions during an electronically recorded interview to assaulting the victim and taking the victim's phone. During the interview, she told the police that she had passed the phone to an associate. The applicant maintained that she was supposed to be paid $250 for the mobile phone but that had not occurred. The provision of the mobile phone to an associate is the basis for the Form 1 offence. The applicant has remained in custody from the time of her arrest. Submissions at first instance 1. During the course of the sentence proceedings, as already indicated, the Crown tendered Exhibit 1, which included: a summary of the charges; committal forms and the Court Attendance Notice; the Form 1 offence document; the applicant's Criminal and Custodial History; the Victim Impact Statement; and a Pre-Sentence Report for the applicant. As already indicated, there is CCTV footage of the entire incident. [2] 2. The author of the Pre-Sentence Report observed that the applicant had "a reasonable level [sic] insight into her behaviour, which she attributed to the use of alcohol and negative peers". [3] Further, the Report indicates that the applicant "verbalised being regretful for her actions towards the victim" and "demonstrated a degree of victim empathy". Her behaviour in custody had been satisfactory, although past engagement with Community Corrections had been "borderline". The applicant was assessed as having a medium risk of reoffending. 3. The applicant's case below paid specific attention to remorse and psychiatric and medical evidence. The applicant gave evidence and a Psychological Report by Ms Megan Goodbee, of 19 December 2018 [4] , was tendered. Also tendered were medical records from Riverstone Medical Practice [5] and certificates confirming programs completed by the applicant in custody. [6] During the course of the evidence, the applicant relied upon a letter of remorse that was provided to the Court. [7] 4. Amongst other matters, the Psychological Report noted that the applicant demonstrated remarkably low self-esteem [8] and had symptoms consistent with a depressive experience. [9] The applicant provided accounts to the psychologist of engaging in self-harm in the past. [10] 5. The applicant was exposed to alcohol abuse by her father and domestic violence. She described "nearly daily hidings." [11] Her childhood was marked by instability. [12] The applicant left home at an early age. Her difficulties with anger may be a function of the lack of safety that she experienced as a child by virtue of a heightened fight or flight response, according to the psychologist. [13] 6. The applicant's education ended in year 10 and was followed by unemployment [14] and the applicant described problematic alcohol consumption from the age of 17, which involved binge drinking. [15] The applicant maintained that her regular drinking stopped in about March 2018, as a result of the encouragement of a pro-social friend. The offending for which she was to be sentenced occurred on a day when, according to the applicant, she broke that abstinence and consumed alcohol. [16] Remarks on Sentence 1. During the course of the Remarks on Sentence, which were thorough and well crafted, the learned sentencing judge referred to the CCTV footage and concluded that it appeared to suggest that the applicant was the ringleader of the group. [17] The sentencing judge also accepted the history and major findings set out in the Psychological Report, to which reference has been made. 2. However, the sentencing judge did express a qualification in relation to the applicant's account, given to the psychologist, in that her account of the offending revealed a lack of insight and an attempt to shift some blame to the victim. [18] Later in the Remarks, the learned sentencing judge accepted that the applicant was "somewhat" remorseful, noting, in particular, that the applicant had made full admissions to the police, had entered a plea of guilty or indicated a plea of guilty at the earliest opportunity and provided a letter of apology. [19] 3. The sentencing judge then described the guideline in Henry, in the precise terms set out in the New South Wales Sentencing Bench Book. [20] Her Honour noted that the guideline judgment is a check, guide or indicator and that it is not a tramline. [21] 4. Her Honour then specifically applied the guideline to the current case under the heading "Applying the Henry factors to this case" [22] , which is summarised in the below table: Henry guideline at [162] Foaiaulima (at ROS 25-26) i. Young offender with little or no criminal history i. The applicant met the description of a young offender with little or no criminal history ii. Weapon like a knife, capable of killing or inflicting serious injury ii. There was no weapon used (although the offence was committed in company) iii. Limited degree of planning iii. There was planning "above" the "limited" planning described in Henry – noting that the applicant positioned herself behind the victim and directed her co-offenders to position themselves in strategic locations iv. Limited, if any, actual violence but a real threat thereof iv. The applicant applied actual violence with significant force v. Victim in a vulnerable position such as a shopkeeper or taxi driver v. The victim was "somewhat… vulnerable" because she was commuting on a train and had no opportunity to leave vi. Small amount taken vi. There was a small amount taken vii. Plea of guilty, the significance of which is limited in a strong Crown case vii. The plea was earlier than in Henry and "had greater utilitarian effect" 1. After the comparison summarised in the foregoing table, her Honour concluded that the "appropriate head term is towards the lower end of the range that is applied in Henry". [23] Earlier in her Remarks on Sentence, her Honour had said that "on balance, this case is approximately on par with Henry in so far as the relevant factors expressed in the guideline judgment are concerned". [24] As noted by her Honour, Spigelman CJ proposed a "starting point" [25] in Henry for an offence of the character set out in the judgment of a sentence that "should generally fall between four and five years for the full term". [26] 2. After dealing with the Henry guideline, her Honour dealt with the objective seriousness of the offending and concluded that it fell within "the mid-range in the scale". [27] Her Honour did not accept a submission from the Crown that the Victim Impact Statement demonstrated harm that aggravated the offence as a result of the application of s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW). [28] I agree with that conclusion. 3. Her Honour also made the following comments: 1. Her Honour noted that the applicant was subject to a Good Behaviour Bond at the time of the offending and noted that as an aggravating factor pursuant to s 21A(2)(j) of the Sentencing Procedure Act; [29] 2. There was a plea of guilty at the earliest possible opportunity which attracted a 25% discount for utilitarian value; 3. Her Honour also accepted that the applicant had shown some remorse; 4. In relation to the mitigating fact of a lack of planning, her Honour considered the offence to be "relatively opportunistic" and with no "degree of sophisticated, well thought-out planning associated with the offending"; [30] 5. Her Honour was guarded as to the offender's prospects of rehabilitation and her likelihood of achieving a reduced propensity to reoffend"; [31] 6. Her Honour considered parity and determined that the applicant's involvement was substantially greater than her co-offenders; [32] 7. Her Honour dealt with the fact that the applicant also received a 3 month sentence after her remand for unrelated offending and considered concurrency of 1 month was warranted to meet the aims of totality; [33] 8. Her Honour found special circumstances and varied the legislative ratio such that the result was that the non-parole period represented 65% of the head sentence; [34] and 9. Her Honour made an order for compensation to the victim for the iPhone. [35] 1. Her Honour then noted that her starting point was a sentence of 5 years and 8 months, which her Honour reduced by 25% on account of the utilitarian value of the plea of guilty at the earliest opportunity to reach the final term of 4 years and 3 months. Her Honour, taking into account the finding of special circumstances, fixed a non-parole period of 2 years and 9 months. The sentence was imposed to commence on 31 July 2018 and the earliest possible release date is 30 April 2021. The final term expires on 30 October 2022. Submissions on Ground 1 and 2 (Henry Guideline) 1. The applicant dealt with Grounds 1 and 2 together, for the obvious reason that they deal with the same or similar points. The applicant submits that the time spent by her Honour, in her Remarks, in describing and dealing with Henry and the remarks that followed are reflective of the emphasis that the sentencing judge appears to have placed on that guideline in determining the final term of imprisonment. The remarks, according to the applicant's submission, were not delivered ex tempore and involved the use of careful headings. 2. During the course of the Remarks on Sentence, her Honour, the sentencing judge, expressed the view that the appropriate head term was towards the lower end of the range that applied as a result of the guideline judgment in Henry. The applicant submitted that such a proposition may be ambiguous, as her Honour did not identify the "range" to which she was referring. The applicant submits that the Henry guideline, on a superficial level, refers to a sentence for a "typical" Henry case as falling between 4 and 5 years' imprisonment, which incorporates a discount for a late plea of guilty. 3. This Court, in R v Hemsley, [36] has made clear that the discount incorporated in the Henry guideline was 10% for a late plea of guilty. Later, the Court noted that the undiscounted range in Henry may be expressed as between approximately 4 years and 5 months and just under 5 years and 7 months. [37] 4. The applicant submits, which submission is arithmetically correct, that, alternatively expressed, if all matters are equal with Henry, a plea at the earliest opportunity, for which a discount of 25% is to be provided, would be reflected in a range between 3 years and 4 months to 4 years and 2 months of imprisonment. 5. The starting point for her Honour's sentence was 5 years and 8 months' imprisonment and, the applicant submits, such a starting point does not reflect a head sentence that can be described as at the lower end of the range applied in Henry. In real terms, the final sentence, according to the applicant, is not only at the upper end of the range, but exceeded it. 6. Such a head sentence is inconsistent with her Honour's acknowledgement that, where other factors are equal, an early plea of guilty should result in a sentence lower than the range referred to in Henry. [38] 7. According to the applicant's written submissions, the sentencing judge made the determination of where, in the Henry range, this offence was situated, before considering the objective seriousness of the offence; the aggravating and mitigating factors; the Form 1 offence; the applicant's prospects of rehabilitation; and totality. Despite her Honour's inclusion of the warnings in the New South Wales Sentencing Bench Book, the applicant submits that the guideline was essentially applied in a prescriptive way. 8. Further, the applicant submits that the end result and the comments on the Henry guideline, and where the matter fits within those circumstances, may disclose an approach that was wrong in principle, being one that defined the desired result in accordance with the Henry range and then, retrospectively, calculated the starting sentence to account for the 25% discount. Such an approach would be contrary to principle, according to the applicant's submissions, and would rob the applicant of a genuine benefit of her plea of guilty. 9. Further again, the Remarks on Sentence may reflect a two-stage process in reaching the final outcome. [39] This, according to the applicant's submissions, is indicated through the structure of the sentencing judge's Remarks. The conclusion on Henry was expressed immediately before the sentencing judge embarked upon a separate description of the objective seriousness of the offence and listed additional aggravating and mitigating features. 10. The applicant submits that the structure of the Remarks on Sentence indicates a real risk that, at the stage of applying Henry, the sentencing judge determined a figure within the Henry range as adjusted for the discount for the early plea of guilty and determined a nominal starting point closer to 3 years and 4 months. Her Honour then moved on to other sentencing factors to adjust that term incrementally to come to the final outcome of 4 years and 3 months. The applicant submits that this process would indicate that her Honour had approached the sentence on the basis that the Henry guideline has primary significance and then sequentially adjusted that starting point to reach a final sentence. 11. Ultimately, in relation to Grounds 1 and 2, the applicant submits that the final result reflects: a misapprehension of the relevance of the utilitarian value of a plea of guilty on the range described in Henry; or a failure by the sentencing judge to give effect to a finding that the appropriate head term should be in the lower range of Henry; or an erroneous use of Henry to identify a desired outcome and then adding or subtracting other sentencing considerations to achieve that outcome. 12. Lastly, and possibly in the alternative, the applicant submits that whatever be the error of principle, or whatever be the approach that the sentencing judge took in relation to the application of the Henry guideline, the sentencing judge did not make clear what that approach was and, as a result, there is error. The applicant submits that where the Remarks on Sentence are opaque, the issue is whether they give rise to a "real possibility" that an applicable sentencing principle has not been properly applied. [40] 13. On the issues raised by Grounds 1 and 2 and, in particular, the submissions of the applicant, the Crown refers to the principle that the sequence in which the Reasons for Judgment are expressed does not necessarily correspond with the order in which the reasons which led to the result were determined. [41] 14. Further, the Crown submits that the sentencing judge did consider objective seriousness in the part of the judgment that dealt with the Henry guideline. Her Honour referred to the offenders blocking exits; the applicant as the ringleader; the actions of the applicant that were designed to intimidate and frighten the victim; the reference to the significant violence used in the first attempt to obtain the phone; and the victim's terror at the time of the second successful attempt. [42] 15. The reference by the sentencing judge to the offending occurring "over a number of minutes" and the fact that the applicant "constructed an intentional ploy to rob the victim" [43] are also factors relevant to an assessment of objective seriousness. Each of the foregoing matters, according to the Crown, informs the later discussion of objective seriousness [44] and that later discussion refers back to these earlier comments in the section of the Remarks relating to the Henry guideline. 16. The Crown also refers to the reliance by the applicant on the sentencing judge's comment relating to the lower end of the Henry range, which must be understood, in the Crown's submission, in light of her Honour's earlier comments that the offending was "on par" with the Henry guideline. 17. Over and above the foregoing, the Crown submits that a proper application of the Henry guideline requires a sentencing judge to identify the range specified in Henry as applicable to a common category of case before considering aggravating and mitigating features of the offence or offender. [45] There were features, according to the Crown, of the offence and offender that were not to the applicant's advantage: the offence was not momentary; there was more planning than in the typical Henry situation; the applicant was the ringleader; significant violence was used; the applicant's prospects of rehabilitation were guarded; and the offence was committed in breach of a Bond. Submissions on Ground 3 (Planning) 1. The applicant submits, in relation to this ground, that the sentencing judge erred in elevating the level of planning involved in this offence beyond that contemplated by Henry. In doing so, the applicant refers to the judgment of R S Hulme J in which his Honour explained that the level of planning referred to in the guideline will rarely involve less than some hours' duration. [46] His Honour dissented in Henry. 2. The applicant submits that the planning involved in this offence was not only limited but extremely unsophisticated: there was no evidence of premeditation; the genesis of the interaction with the victim was a puerile response by a co-offender to a perceived insult from the victim; the offence was executed in direct view of CCTV cameras; there were a number of other passengers in the immediate vicinity when the offence occurred; and the initial attempt to secure the property failed during the first assault and the offenders returned to obtain the mobile phone. The sentencing judge stated that the offences were committed in a relatively opportunistic fashion and there was no degree of sophistication or "well thought out planning". 3. The Crown relies upon the CCTV footage and the comment by the sentencing judge, after viewing the footage, that her Honour was satisfied that the applicant had "constructed an intentional ploy to rob the victim", that she "orchestrated the act" and that "her intentions were clear from the outset". [47] 4. The Crown submits that these findings are borne out by an examination of the CCTV footage, which shows the applicant gesturing to her co-offenders, including (as agreed on the facts) directing her co-offender to pull the victim's hair back so that she could punch and then rob her. The duration over which these events occurred is, according to the Crown submission, demonstrative of some degree of planning. 5. The Crown further submits that the sentencing judge's finding as to the degree of planning involved in the offence was an evaluative judgement carried out by her Honour in "performing the task of finding facts and drawing inferences from those facts". The Court, according to the submission, would, as a consequence, be slow to interfere. [48] The Crown submits that the applicant has not shown that the sentencing judge's finding was not open. 6. Further, the Crown submits that there is no inconsistency between a finding that the planning was "slightly" higher than that contemplated in Henry and the later expression used by the sentencing judge that there was "no degree of sophisticated, well thought-out planning associated with the offending". In any event, the applicant is, according to the Crown submission, incapable of claiming a mitigating factor based upon the offence not being part of a planned or organised criminal activity. The comments by the sentencing judge are consistent with a distinction between "bare planning" and planning within the meaning of s 21A of the Crimes (Sentencing Procedure) Act as, to come within either s 21A(2)(n) or s 21A(3)(b) of the Crimes (Sentencing Procedure) Act, requires more than that the offence was simply planned. [49] Submissions on Ground 4 (Manifest Excess) 1. The applicant submits that the sentence imposed is manifestly excessive. There is no compelling basis, according to the applicant, identified by her Honour that warranted a starting sentence that went beyond the Henry range. In fact, using the Henry factors, it is submitted that the offence in this case represents offending either in the lower end or below the notional exemplar in Henry. 2. The applicant has emphasised that the robbery did not engage a weapon as a significant point of differentiation of the Henry exemplar. It is accepted that the offence was committed in company, but that is of lesser significance than being threatened with a knife or firearm. Moreover, the actual violence used was relatively brief, physically unimpressive and did not result in any significant physical injury. 3. On this Ground, the Crown submits that the applicant's submissions rest entirely on a fundamental contention that the guideline in Henry dictates a different outcome and, in so doing, the applicant is elevating the Henry guideline to more than a check or guidepost. Rather, according to the Crown, the applicant's use of the Henry guideline renders it a matter with determinative significance, which is contrary to authority. 4. The Crown also referred to judgments of the Court that have held that the threat involved in an "in company" offence is broadly equivalent to a threat whilst armed with a weapon, contrary to the applicant's submission. 5. The Crown submits that the applicant's objective case was not strong: she had prior convictions for assault and larceny offences; the offending could be seen as an escalation of past offending; the applicant was on a Bond; the applicant lacked insight into her offending behaviour, blaming the victim for provoking her; [50] the applicant was not motivated to undergo rehabilitation for her binge drinking and anti-social peer influences; [51] her risk of re-offending was medium; [52] and she had guarded prospects of rehabilitation. [53] Essentially, the Crown submits that the sentence imposed was well within an acceptable range, given the unchallenged finding that the objective seriousness of the offending was at the mid-range and the maximum penalty is 20 years; the applicant was the ringleader; the significant violence involved on two occasions; and the applicant's weak subjective case. Guideline Judgments 1. Part 3 of the Crimes (Sentencing Procedure) Act deals with the process of sentencing and contains the provisions of Div 4, commencing with s 36 that grants the Court jurisdiction to issue guideline judgments. As the legislature has made clear, in the definition of "guideline judgments", such a judgment may contain guidelines that apply generally; or guidelines that apply to particular courts or classes of courts; particular offences or classes of offences; particular penalties or classes of penalties; or particular classes of offenders (but not particular offenders). [54] 2. Thus far, guideline judgments have dealt with the discount to be provided on a plea of guilty; [55] the manner of treating a Form 1; [56] and to particular offences. Those guideline judgments that deal with particular offences deal with the particular penalties or classes of penalties that ought to be imposed. 3. The guideline judgment in Henry, supra, is a guideline judgment that deals with the particular penalties for offences in contravention of s 97 of the Crimes Act. Other guideline judgments dealing with penalties include those dealing with break, enter and steal, in contravention of s 112(1) of the Crimes Act; [57] dangerous driving, in contravention of s 52A of the Crimes Act; [58] and high-range PCA. [59] 4. As can be seen from the foregoing, the latest guideline judgment dealing with the sentence to be imposed for a particular offence was in 2004. The judgment in Henry was in 1999 and the judgment in Whyte was in 2002. 5. Since the handing down of the guideline judgments, the legislature introduced standard non-parole periods for a number of sentences. In introducing standard non-parole periods, the then Attorney General deliberately omitted standard non-parole periods for those offences for which there were guideline judgments and made reference to the continuation of the guideline judgments for use by a court when sentencing for the offences which they cover. [60] 6. Since the introduction of both guideline judgments and standard non-parole periods, the High Court has had occasion to discuss the proper use of standard non-parole periods in sentencing and the proper approach to the achievement of consistency in sentencing. [61] 7. In the course of its judgment in Muldrock, the High Court overturned the judgment of this Court in R v Way [62] and, in doing so, the High Court confirmed the intuitive synthesis approach to sentencing by citing, with approval, the comment of McHugh J in Markarian v The Queen [63] and recited the following sentence: "[T]he judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case." (Emphasis added in the extract in Muldrock at [26].) 1. Further, as the High Court made clear, introduction of standard non-parole periods did not and does not require or permit a sentencing court to engage in a two-stage approach to the sentencing of offenders for an offence for which there is fixed a standard non-parole period. It is impermissible to examine an offence that has been committed and add or subtract factors that may aggravate or ameliorate the objective seriousness of the offence by comparison with a hypothesised offence of mid-range offending. In that regard, the High Court made it clear, in Muldrock, that the standard non-parole period was a guidepost for the fixing of an appropriate sentence, as was the maximum sentence imposed by the legislature. 2. The principles expressed by the High Court in Markarian, Muldrock and Hili & Jones apply with equal, if not greater, force to the manner in which a sentencing judge should approach the guideline judgment in Henry. The sentencing judge should identify all the factors that are relevant to the sentence and determine an appropriate sentence, bearing in mind the guidepost of the maximum sentence imposed by the legislature and, if there be one, the standard non-parole period. The guideline judgment is, as expressed by this Court, a check on the sentence derived, bearing in mind the factors that the Court had in mind in setting the guideline and the factors that a sentencing judge must consider in synthesising each of the purposes of sentencing and arriving at an appropriate sentence. 3. Unlike the standard non-parole period, the guideline judgment in Henry establishes a range. That range is established on the basis of consideration of past sentences that have been imposed for like offences on like offenders. 4. In the case of Henry, the Court considered the category of case to which the guideline judgment applied included: a young offender with no or little criminal history; the use of a weapon like a knife, capable of killing or inflicting serious injury; a limited degree of planning; limited, if any, actual violence but a real threat of violence; a victim in a vulnerable position such as a shopkeeper or taxi driver; a small amount taken; and a plea of guilty, the significance of which is limited by a strong Crown case. [64] 5. After the judgment in Henry, the Court delivered the guideline judgment in Thomson & Houlton, which renders the reference to a strong Crown case as a qualification on the plea of guilty of limited, if any, use. Further, as was made clear by the Court in Whyte, the range is a guideline not a "tramline". [65] 6. In the judgment of Spigelman CJ in Henry, his Honour made clear that the range, which was between 4 and 5 years for the full term, was one that should "generally" apply and that the figure had been arrived at by drawing on the collective knowledge of the members of the Court and a review of the sentences that had been imposed, including in appeals to the Court. His Honour set out a number of the judgments which had been taken into account. The guideline judgment is not intended to operate to confine the sentencing discretion; [66] the guideline being an "indicator" and a range of sentences to be "taken into account". [67] 7. The learned Chief Justice in Henry dealt with a number of concepts that have since been the subject of High Court authority. First, consistency in sentencing is obtained by the consistent application of sentencing principles; not numerical equivalence. [68] Further, the pattern of past sentencing is not synonymous with the range of sentences available in a particular case. [69] Nevertheless, as the accumulated wisdom of sentencing judges and appellate courts, the pattern of past sentencing is of considerable significance as guidance to be used and as a "yardstick against which to examine a proposed sentence". [70] 8. By definition, a guideline judgment is to be taken into account by courts when sentencing offenders. [71] A guideline judgment does not replace or limit the jurisdiction of the sentencing court otherwise provided by the Crimes (Sentencing Procedure) Act. [72] 9. As the Court made clear in Whyte, supra, in discussing the effect of the judgment of the High Court in Wong [73] , the kind of guideline given in Henry was given "for the guidance of primary judges" and "to indicate, subject to relevant discretionary considerations, the order of the sentence that might be expected to be attracted by a certain type of offender who commits a certain type of offence". [74] If the sentencing court were to take a guideline judgment into account in the manner described by Spigelman CJ in Whyte and extracted in the immediately preceding paragraph, it is being utilised in a manner consistent with the approach to "the accumulated wisdom of sentencing judges and appellate courts" and "as a yardstick against which to examine a proposed sentence". This, as is made clear by the foregoing, was the original statement by Spigelman CJ in Henry. 10. The "range" to which the Court referred in Henry, is imprisonment for 4 to 5 years. The foregoing "range" includes a 10% discount for a late plea of guilty [75] and the undiscounted range in Henry can be expressed as between 4 years and 5 months and 5 years and 6 2/3 months. [76] If, a 25% discount were implemented, as a consequence of a plea at the earliest possible opportunity (which is the situation effected by the sentencing judge in these proceedings), the "range" is approximately 40 months to 50 months' imprisonment. Consideration 1. The Remarks on Sentence involved the sentencing judge dealing with objective seriousness and the range of sentence that is available in two quite distinct parts. First, as can be seen from the foregoing, her Honour dealt with the guideline judgment in Henry and each of the factors that led the Court to issue the guideline by determining whether and to what extent each of the factors in Henry were applicable to the applicant. 2. In so doing her Honour concluded that "the appropriate head term is towards the lower end of the range that is applied in Henry". At an earlier stage, as already stated, her Honour remarked that "on balance, this case is approximately on par with Henry in so far as the relevant factors expressed in the guideline judgment are concerned". It seems to me that this latter expression is an acknowledgement of the applicability of the guideline judgment, but it may mean more. 3. After dealing with the applicability of the Henry factors to the applicant, her Honour set out that which her Honour determined were aggravating and mitigating circumstances, seemingly over and above those that were factors included in the guideline judgment in Henry. 4. I accept that the Court's reasons do not necessarily reflect simultaneous thought processes and the sequence with which matters are dealt in either reasons or Remarks on Sentence do not necessarily correspond with the order in which the reasons lead to the result at which a sentencing judge arrives. [77] Nevertheless, such an explanation does not explain two quite distinct assessments of objective seriousness and comparison with the Henry guideline. 5. Over and above the foregoing, there is a lack of clarity in the statements by her Honour in or to the effect that the case is "on par" with Henry and, at a later stage, that the head term is "towards the lower end" of the range there expressed. Neither term is fully explained or clear. The lack of clarity is exacerbated by the ultimate determination of the sentencing judge that the starting point of the sentence should be significantly higher than the undiscounted range to which Henry refers. 6. The bifurcation of the assessment of objective seriousness, whether compared with the factors in Henry or more generally, is an approach which, in my view, is inconsistent with the principles established by the High Court and to which reference has already been made. All of the issues associated with objective seriousness should be factored into the determination of the issue and, at that point, if there is to be a comparison with the factors in Henry, to which some reference will be made later in these reasons, the objective seriousness of the offence committed, and its relationship to those factors and matters to which the Court had regard in Henry, can be assessed. 7. During the course of the oral submissions, the Court referred to the conduct of the applicant as intimidatory and having an effect of some significance on the victim. The sentencing judge took the view that the Victim Impact Statement and the level of damage to the victim, while demonstrating harm, was not harm that aggravated the offence pursuant to the terms of s 21A(2)(g) of the Crimes (Sentencing Procedure) Act. Further, while appreciating that there was a degree of intimidation effected against the victims, the victim was not so intimidated that she could not chase the offender and seek the return of the phone. 8. While a robbery in company is treated in the legislature under the same provision as a robbery with an offensive weapon, [78] and a robbery in company is on par with a robbery with a knife and covered by the Henry guidelines, there is usually a difference between the two in the effect on a victim and the absence of a knife, or such weapon, all other things being equal, would place the offence at a lower level in the Henry range. 9. In dealing with the objective seriousness of this offence, it should be borne in mind that the offence under s 97(1) of the Crimes Act is committed in circumstances where an offender is "armed with an offensive weapon or instrument" or "is in company with another person" and robs or assaults with intent to rob a victim. There is an aggravated offence if the offensive weapon is a "dangerous weapon" [79] and a more serious offence if the person is wounded. [80] 10. Nevertheless, the offence under s 97(1) of the Crimes Act may involve possession of an offensive weapon, as well as being in company. Often, but not always, the circumstance of the offender being in company is that which renders s 97(1) of the Crimes Act applicable. The guideline judgment in Henry refers to the offender having possession of a knife, or weapon of that kind, as a factor in the offence under s 97(1) of the Crimes Act. 11. While an assault in company may be comparable to the possession of a knife, often the offence has both features. Further, the effect on a victim of a robbery in which a knife is displayed is often, but not always, significantly more problematic than where there is an assault, without the displaying of a weapon of that kind, even when the offender is in company. Of course, for reasons associated with the existence of an offence under s 98 of the Crimes Act, I assume that the knife is not used to wound the victim. 12. In dealing with the objective seriousness of this offence, one of the difficulties associated with recent alterations in technology, which provide courts with CCTV footage of assaults, is that the effect of the assault is more forcefully depicted than in a written summary. As a consequence, the effect on a judicial officer who has not been the victim of an assault, or circumstances where a knife is brandished, may be far greater than would otherwise be the situation. 13. This may be a factor that affects the impression of the sentencing judge, as well as appellate courts. Although, if sentencing occurs after trial, it is most likely that a more graphic depiction of the events will have occurred. I am not suggesting that CCTV footage ought not to be viewed by the sentencing judge. On the contrary, it is relevant evidence and helpful in understanding the offence that occurred. Nevertheless, it is important to bear the in mind the more forceful depiction when comparing the offence depicted in CCTV footage, with other offences that may not have been so forcefully and graphically depicted. 14. I have already described the Remarks on Sentence as "thorough and well-crafted". It is no criticism of her Honour that the manner in which one applies a guideline judgment needs clarification. But what her Honour did was fix a sentence , at least notionally, with regard to the Henry guideline and then added and subtracted what her Honour considered were aggravating and mitigating circumstances. Such an approach is a two-stage approach to sentencing and discloses error. 15. I do not consider that the sentence imposed is manifestly excessive. The combination of the stepped or two-staged approach to sentencing, and the assessment of objective seriousness together with the opaqueness of the seemingly inconsistent statements that the offence "is on par" with the Henry guideline; and that it is at or towards "the lower end of the range" in terms of head sentence, has in my view led to error, particularly as her Honour's ultimate determination has a starting point well above the Henry guideline "range". 16. In so doing, her Honour misapplied Henry and error has been shown. I would uphold Ground 1 of the appeal and dismiss Grounds 2 and 3. Given my view as to Ground 1, it is unnecessary to deal further with Grounds 2 and 3. 17. In the case of Ground 2, her Honour's reasons on the application of Henry, were not inadequate but disclose error. It is necessary to resentence. In the case of Ground 3, I do not consider the planning more than that contemplated in Henry, and I have already expressed the view that the sentence imposed below is not manifestly excessive. Re-sentencing 1. The facts have already been described. The victim and her friends were riding on public transport to the Easter Show and were entitled to ride in peace and without being assaulted and robbed. 2. The attack itself was unsophisticated and opportunistic. It involved minimal planning, but the evidence discloses that the applicant was the ringleader and such planning as was involved was the product of the applicant's organisation. 3. The applicant was 22 years' of age at the time of the offence, which is the outer limit of an immature and not fully developed thinking. This is confirmed in the Psychological Report. 4. The plea of guilty was indicated at the earliest possible opportunity and was coupled with full admissions to the investigating police. The Pre-sentence Report recorded her as demonstrating insight into the factors contributing to her offending, being the use of alcohol and her peers. She has also expressed a degree of victim empathy. 5. The applicant has a criminal history, but it does not reflect serious violent offending. This is the applicant's first imprisonment in any adult prison. She has completed a number of courses and is employed in prison. [81] The applicant had a deprived and violent childhood. 6. Only a small amount of property was taken; no weapons were used or possessed; and the applicant was on conditional liberty at the time of the offence. I accept and agree with the learned sentencing judge's finding of special circumstances. 7. I take the view that the applicant's prospects of rehabilitation very much depend on her association with peers and, were it not for that issue, would consider her prospects better than reasonable. Because of that issue, I accept that the applicant's prospects are guarded, even though the applicant has recognised that her association with peers is a major contributing factor to her offending. 8. In terms of the offences with which s 97(1) of the Crimes Act deals, this offence is below mid-range. The maximum sentence is 20 years' imprisonment, which is a guidepost to the sentence to be imposed. In my view, taking into account both the objective seriousness and the subjective circumstances of the offender and, taking the Henry guideline into account as a "guide" or "check", [82] I would fix a starting point for the head sentence at 5 years. In doing so, I take account of the Form 1 offence, disposing of stolen goods, in fixing the foregoing sentence. I consider that no sentence, other than one of imprisonment, is appropriate. A starting point of the head sentence of 5 years is the middle of the undiscounted "range" described in Henry. 9. I would allow 25% discount for the utilitarian value of the plea of guilty at the earliest opportunity and, as already stated, accepting that the applicant requires an extended period on parole, would find special circumstances. 10. For the foregoing reasons, I would propose that the Court make the following orders: 1. Leave to appeal granted; 2. Appeal allowed; 3. The sentence imposed on the applicant by the District Court on 2 May 2019 be quashed and, in lieu thereof, the applicant be sentenced for robbery in company in contravention of s 97(1) of the Crimes Act 1900 (NSW), taking into account on a Form 1 the offence of disposing of stolen property contrary to s 189 of the Crimes Act 1900 (NSW), to a term of imprisonment of a head sentence of 3 years and 9 months, commencing 31 July 2018 and concluding 30 April 2022, including a non-parole period of 2 years and 3 months concluding 30 October 2020. The applicant would be, on those proposed orders, first eligible for release on parole on 30 October 2020. 1. I have since the circulation of the foregoing reasons been provided with the reasons for judgment of Bathurst CJ and Johnson J, with the result that my judgment is in dissent. It is necessary to state, very briefly, why I take a different view to the majority. 2. First, there is no suggestion in the foregoing reasons that the provisions of s 36 and/or s 42A of the Crimes (Sentencing Procedure) Act should not apply. Nor that the guideline judgment should not be taken into account. [83] With respect to Bathurst CJ, at [7] above, it is the manner in which the guideline judgment should be taken into account that is in issue. 3. Secondly, each of the "additional aggravating features" such as allegedly greater planning, were each factors that inform where in the Henry range the offending sits (or whether it is outside the range). 4. Thirdly, the sentencing judge expressed the conclusion that "the appropriate head term is towards the lower end of the range" in Henry and then fixed a starting point well above that range, without expressly, or otherwise, indicating that was the intention. 5. Fourthly, in my view, the majority result permits and encourages a two-stage assessment process that treats each factor as a mechanical addition or subtraction from the range in Henry and, in this case, on two separate occasions. 6. It is for the foregoing additional reasons, I am unable to agree with the majority. ********** Endnotes 1. R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111. 2. Exhibit 2 in the proceedings. 3. Sentencing Assessment Report dated 4 February 2019 under the signature of Cathryn Veal, at p.2. 4. Exhibit 3 in the proceedings. 5. Exhibit 4 in the proceedings. 6. Exhibit 5 in the proceedings. 7. Exhibit 6 in the proceedings. 8. Psychological Report of Ms Megan Goodbee, 19 December 2018, Exhibit 3, at [2]. 9. Ibid, at [24]. 10. Ibid, at [25]. 11. Ibid, at [8]. 12. Ibid, at [9]. 13. Ibid, at [28]. 14. Ibid, at [10]-[11]. 15. Ibid, at [13]-[16]. 16. Ibid, at [15]. 17. Remarks on Sentence at 6.3. 18. Remarks on Sentence at 14.5. 19. Remarks on Sentence at 19.2. 20. Judicial Commission of New South Wales, Sentencing Bench Book, at [20-250]-[20-258]. 21. Remarks on Sentence at 23. 22. Remarks on Sentence at 25 23. Remarks on Sentence at 26.7. 24. Remarks on Sentence at 17.8. 25. Henry, supra, at [169] 26. Henry, supra, at [165]. 27. Remarks on Sentence at 27.8. 28. Remarks on Sentence at 31.5. 29. Remarks on Sentence at 30.9. 30. Remarks on Sentence at 32.3. 31. Remarks on Sentence at 33. 32. Remarks on Sentence at 34. 33. Remarks on Sentence at 35-38. 34. Remarks on Sentence at 38. 35. Remarks on Sentence at 38-39. 36. [2004] NSWCCA 228, at [30] 37. R v Harris [2011] NSWCCA 105, at [93]. 38. Remarks on Sentence at 23.5. 39. Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25. 40. Lee v R [2016] NSWCCA 145, at [26]. 41. Fedele v R (2015) 257 A Crim R 78; [2015] NSWCCA 286, at [85]; Hawat v R [2020] NSWCCA 121, at [33]. 42. Remarks on Sentence at 6. 43. Remarks on Sentence at 14. 44. Remarks on Sentence at 26-27. 45. Citing Henry, supra, at [170]. 46. Henry, supra, at [325]. 47. Remarks on Sentence at 14. 48. Mulato v R [2006] NSWCCA 282, at [37]. 49. Williams v R [2010] NSWCCA 15; Fahs v R [2007] NSWCCA 26; RL v R [2015] NSWCCA 106. 50. Remarks on Sentence at 14. 51. Remarks on Sentence at 15. 52. Sentence Assessment Report, p 3. 53. Remarks on Sentence, at [19]. 54. Section 36, definition of "guideline judgment". 55. R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309. 56. Attorney-General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518. 57. Re Attorney-General's Application [No 1] under s 26 of the Criminal Procedure Act; R v Ponfield; R v Scott; R v Ryan; R v Johnson (1999) 48 NSWLR 327; [1999] NSWCCA 435. 58. R v Jurisic (1998) 45 NSWLR 209; R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343. 59. Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol under Section 9(4) of the Road Transport (Safety And Traffic Management) Act 1999 (No 3 of 2002) (2004) 61 NSWLR 305; [2004] NSWCCA 303. 60. Second Reading Speech, Legislative Assembly, 23 October 2002, 5815 (Robert Debus, Attorney-General). 61. See, amongst many, Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 on the use of standard non-parole periods and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 on consistency in sentencing. 62. (2004) 60 NSWLR 168; [2004] NSWCCA 131. 63. (2005) 228 CLR 357, at 378 [51]; [2005] HCA 25. 64. Henry, supra, at [162]. 65. Legge v Regina [2007] NSWCCA 244, per Spigelman CJ at [59]. 66. Whyte, supra, at [112]. 67. Whyte, supra, at [113]. 68. Hili & Jones, supra, at [49]. 69. Ibid, at [54]-[55], citing with approval Simpson J (as her Honour then was) in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [303]-[305]; and also see Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 [95]. 70. Per Simpson J in De La Rosa at [304], cited with authority in Hili & Jones, supra. 71. Crimes (Sentencing Procedure) Act, s 36, definition of "guideline judgment". 72. Crimes (Sentencing Procedure) Act, s 42A. 73. Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64. 74. Whyte, supra, at [17], citing Gleeson CJ in Wong v The Queen, supra, at [9]. 75. R v Hemsley [2004] NSWCCA 228 at [30]. 76. R v Harris [2011] NSWCCA 105 at [93]-[94]. 77. Fedele v R [2015] NSWCCA 286 at [85]; Hawat v R [2020] NSWCCA 121 at [33]. 78. Crimes Act s 97(1). 79. Section 97(2) of the Crimes Act. 80. Section 98 of the Crimes Act. 81. Affidavit of the applicant, affirmed 5 August 2020 and of Frances Low, solicitor, affirmed 7 August 2020. 82. Whyte, supra, at [232]. 83. See [141] above. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 October 2020