Reported Decision : (2002) 136 A Crim R 451 New South Wales Court of Criminal Appeal CITATION : R v Hernando [2002] NSWCCA 489 FILE NUMBER(S) : CCA 60253/02 HEARING DATE(S) : 24 July 2002 JUDGMENT DATE : 10 December 2002 PARTIES : Regina v Janian Hernando JUDGMENT OF : Heydon JA at 1; Levine J at 31; Carruthers AJ at 32 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/21/3323 LOWER COURT JUDICIAL Moore ADCJ OFFICER : COUNSEL : Mr G E Smith (Crown) Mr D Dalton (Respondent) SOLICITORS : S E O'Connor (Crown) D J Humphreys (Respondent) CATCHWORDS : Criminal law - robbery in company - Crimes Act 1900 s 97(1) - sentence - adequacy - Crown appeal - Criminal law - appeals - Crown appeals - appeals by convicted persons - different principles applying - Crown delay in lodging appeal - delay in hearing of appeal - relevance - discretion of Court of Criminal Appeal not to intervene notwithstanding appellable error - Criminal Appeal Act 1912 (NSW) s 5D LEGISLATION CITED : Crimes Act 1900 Criminal Appeal Act 1912 Griffiths v R (1977) 137 CLR 293 R v Osenkowski (1982) 30 SASR 212 Pearce v R (1998) 194 CLR 610 R v Griggs (2000) 111 A Crim R 233 R v Malone [2000] NSWCCA 156 R v Simpson [201] NSWCCA 534 Power v R (1974) 131 CLR 623 R v Poihipi [2001] NSWCCA 306 CASES CITED: Ketteman v Hansel Properties Pty Ltd [1987]1 AC 189 R v Holder [1983] 2 NSWLR 245 R v Hicks (1987) 45 SASR 270 R v Potter (unreported, 12 April 1994) R v Hallocoglu (1992) 29 NSWLR 67 R v Carngham (1978) 140 CLR 487 Everett v R (1994) 181 CLR 295 R v Kyroglou [1999] NSWCCA 106 R v Horne [1999] NSWCCA 391 R v Harris (2001) 121 A Crim R 380 DECISION : Appeal dismissed. IN THE COURT OF CRIMINAL APPEAL 60253/02 HEYDON JA LEVINE J CARRUTHERS AJ 10 December 2002 REGINA v Janian HERNANDO Criminal law – robbery in company – Crimes Act 1900 s 97(1) – sentence – adequacy – Crown appeal Criminal law – appeals – Crown appeals – appeals by convicted persons – different principles applying – Crown delay in lodging appeal – delay in hearing of appeal – relevance – discretion of Court of Criminal Appeal not to intervene notwithstanding appellable error – Criminal Appeal Act 1912 (NSW) s 5D The respondent was charged with two counts of robbery in company contrary to s 97(1) of the Crimes Act 1900 (NSW). The penalty for violation of s 97(1) was 20 years' imprisonment. The respondent entered pleas of guilty on both counts and was sentenced on the first count to imprisonment for a fixed term of 6 months and on the second count to imprisonment for 2 years with a non-parole period of 6 months. The sentences were ordered to be served concurrently. On 6 March 2002 the respondent was released from custody after serving 6 months' imprisonment having been in custody since 6 September 2001. On 2 May 2002 the Director of Public Prosecutions indicated a desire to appeal against the respondent's sentences on grounds that they were manifestly inadequate. There was evidence that the Notices of 2 May 2002 caused the respondent to be "shocked, disappointed and stressed". Held (Heydon JA, Levine J and Carruthers AJ agreeing), dismissing the appeal, 1. Before the Court of Criminal Appeal would intervene to increase sentence, the Crown had to locate an appellable error in the sentencing judge's discretionary decision, and negate any reason why the residual discretion of the Court not to interfere should be exercised: [12]. 2. The non-parole period imposed by the sentencing judge revealed appellable error in failing appropriately to reflect the criminality involved in the offence: [14]-[18]. Power v R (1974) 131 CLR 623; Deakin v R (1984) 54 ALR 765; Ketteman v Hansel Properties Pty Ltd [1987] 1 AC 189; R v Simpson [2001] NSWCCA 534, applied. Pearce v R (1998) 194 CLR 610; R v Henry (1999) 46 NSWLR 346; R v Malone [2000] NSWCCA 156; R v Poihipi [2001] NSWCCA 306, considered. R v Griggs (2000) 11 A Crim R 233, distinguished. 3. Although there was appellable error, the residual discretion of the Court under Criminal Appeal Act 1912 (NSW) s 5D not to interfere should be exercised. That discretion enables the court to keep an ultimate control by protecting a convicted person against unfairness or injustice if that would flow from an adverse appellate decision. An increase of sentence by the Court of Criminal Appeal where the respondent received no notice of the Crown's dissatisfaction with the sentences until more than two months after he had completed the whole of one sentence and the minimum term for the other was inappropriate because of the possibly devastating consequences for the respondent of reversing the intimation that he had completed his punishment and because of the false impression planted in the respondent's mind by the delay in filing the appeal. The respondent may deserve greater punishment than he received at the sentencing stage, but not the type of punishment inflicted by these delays. It would be unjust to return the respondent in this case to prison, even assuming that the trial judge fell into appellable error: [18], [19], [20], [22], [25], [30]. R v Holder [1983] 3 NSWLR 245, applied. R v Carngham (1978) 140 CLR 487; R v Hicks (1987) 45 SASR 270; Everett v R (1994) 181 CLR 295; R v Potter (unreported, NSWCCA, Clarke JA, Carruthers and Wood JJ, 12 April 1994); R v Hallocoglu (1992) 29 NSWLR 67; R v Horne [1999] NSWCCA 391; R v Kyroglou [1999] NSWCCA 106; R v Poihipi [2001] NSWCCA 306, considered. IN THE COURT OF CRIMINAL APPEAL 60253/02 HEYDON JA LEVINE J CARRUTHERS AJ 10 December 2002 REGINA v Janian HERNANDO Judgment 1 HEYDON JA: On 24 July 2002 the court dismissed this Crown appeal against the inadequacy of sentences passed by Moore ADCJ. These are the reasons why I supported that order. 2 The respondent was charged with two counts of robbery in company, contrary to s 97(1) of the Crimes Act 1900. The penalty is 20 years imprisonment. The sentencing judge sentenced the respondent on the first count to imprisonment for a fixed term of 6 months to commence on 6 September 2000 and to expire on 5 March 2002. The sentencing judge sentenced the respondent on the second count to imprisonment for 2 years to commence on 6 September 2001 and to expire on 5 September 2003, with a non-parole period of 6 months to expire on 5 March 2002. The respondent was aged 19 both at the time of the crimes and at the time of sentencing. 3 The background circumstances were set out as follows by the sentencing judge: "Janian Roy Hernando has pleaded guilty to two charges of robbery in company. They occurred within five days of one another, the first on 16 August 2001 and the second on 21 August 2001. They were roughly comparable in circumstances, except for one grave aggravating feature which occurred in relation to the second matter, namely that Hernando used a knife on the second occasion. On each occasion he was in company with a co-offender, McIvor, who I am informed has also pleaded guilty and who has yet to be sentenced, and unfortunately the two of them cannot be sentenced at the one time, but that is unavoidable. Hernando is nineteen years of age, date of birth 6 January 1982. His plea of guilty has come at the first available opportunity. In each case he pleaded guilty in the Local Court and the matter has come forward on committal for sentence only. There is a statement of facts which is agreed, even though in relation to the second matter there was ground for dissenting from that statement of facts by the offender, but he has instructed Mr Freeman, his counsel, to agree in full to the statement of facts put forward, although that makes the objective fact clearly more serious against him on the second matter. That agreement will be taken into account as indicating true remorse by him. In each case the victim was a young man of similar age to the offender and co-offender. On the first occasion they used a ruse to get the victim to come to the car park of the Westfield Centre at Liverpool, and there the co-offender produced a knife and presented it at the victim. I accept that the offender, Hernando, was unaware that his co-offender had a knife and in fact that when the co-offender produced it, Hernando told the co-offender to let the victim go. Hernando, however, did take an active part in the robbery by way of grabbing the victim then on the shoulder. The victim spun out of his grasp and ran away dropping his sunglasses and baseball cap which the two offenders then stole. The second offence occurred after Hernando had struck up a conversation with the victim who was a stranger, by way of borrowing the victim's skateboard and when he handed the skateboard back he produced a knife from his pocket and held it at the victim's throat. It is Hernando's assertion that he did not intend to use the knife in any way but that must be measured against the fact that to place a knife against the throat of a victim is a very grave aggravating circumstance. The victim was also frightened not only for himself but for his girlfriend who was with him. Hernando demanded money from the victim and when the victim stated that he had none Hernando demanded his wallet from which Hernando removed sixty cents, being the only money in it. Hernando then threatened the victim saying that if he told the police he knew where he and his girlfriend were, and they left the scene. In each case Hernando was identified and although at first he did not cooperate by way of inculpating himself in any record of interview he, as the Crown forthrightly asserts, pleaded guilty at the first available opportunity. This is his first time before an adult court. He does, however, have two previous findings of guilt in the Children's Court, each of them for robbery in company. On one occasion he was ordered to perform a community service order and on the other occasion was given the benefit of a recognisance, as it was then called, in 1999. Both of those earlier matters occurred in that year. Each of those two groups of offences, namely, the 1999 offences and the present matters, occurred when he was in the grip of drug abuse. Heroin has been his principle [sic] cause of downfall, although he does also use cocaine when heroin is in short supply. He was introduced to drugs by his peer group when he was in his early teens, and descended into the use of the hard drugs. Each of the crimes was committed for cash to satisfy his addiction. That is not a feature to cause reduction in sentence but it does go to give an explanation and to distinguish it from crimes committed for more pernicious motives. I am satisfied that there was minimal planning." 4 The sentencing judge then turned to the subjective factors of the respondent's position: "The subjective features are strong. Both the pre sentence report and the report of Dr Olan Neilssen, consultant psychiatrist speak about his very strong family support. He comes from an excellent family and eight members of his family have come to court today and supported him, including his parents and grandparents. Although he did not complete his school certificate he entered into an apprenticeship and he has by and large been in employment, apart from times when he has been affected by drugs. He achieved a measure of rehabilitation after the period when he committed the offences that were dealt with in the Children's Court, and there is an excellent reference before me from his employer where he was working – commencing from April of this year – in a job which although it was short, inspired confidence about Hernando from his employer. It was after he was in that job that he once again got into heroin abuse with bad company. There is an excellent reference from his pastor, the Reverend Ramos of the Leumeah Baptist Church. It speaks very highly of Reverend Ramos' view of Hernando's inherent personality and good character, and his belief that with the right guidance and support he has 'the potential for greatness'. Dr Neilssen in a careful and objective assessment has come to the view that Hernando has relatively good prospects for long term rehabilitation. I quote the final paragraph of his report. 'Mr Hernando appears to have relatively good prospects for long-term rehabilitation because of the absence of unhelpful personality traits or serious psychological problems, the strong support of his family and his other strengths, including intelligence and good employment prospects. Mr Hernando would appear to be a good candidate for the Drug Court programme, despite the history of violent offences. He would probably also do well in a residential drug rehabilitation centre as a condition of a Griffith Remand'. Each of those two features, the Drug Court programme and the Griffith Remand is inappropriate for the present matter, the first because this is an offence involving violence, and the second, as his counsel, Mr Freeman, submits, because a Griffith Remand would be not the right disposition of a matter of this seriousness. It does however indicate the substance of the opinion that he is an excellent candidate for rehabilitation. He has been reliable and forthright with his drug and alcohol counsellor recently. He has given up drug abuse in gaol and recently he was enrolled in a course to prepare him for tertiary education. The objective indications for his rehabilitation are good and properly form the basis for Dr Neilssen's opinion. He has never before had any residential drug rehabilitation and it may well be that on his release to parole his supervisor will give consideration to that. That is a matter for more careful assessment by a supervisor on parole. Thus this case encompasses both two grave crimes, crimes which call for deterrent sentences and crimes where there has been a serious effect on the victims, notwithstanding that they were young and robust males. As against that, there are special circumstances where this is Hernando's first time in an adult court, it is the first time he is going to gaol or any form of custody. He is obviously a person who will be adversely affected by the company with whom he comes into contact in gaol, but although that is something that the courts strive to avoid, it is something which cannot be avoided in the present matter. He has excellent prospects of rehabilitation which will justify a lengthier period of parole than normal, and those features amount to special circumstances which require a radical alteration in the normal period of the non-parole period, as compared with the total sentence. In the first matter I feel that the sentence should be a shorter one than in the second matter because of its lower level of aggravating features. And for that reason I propose to impose only a fixed term of six months in regard to that matter. It may well be if I was dealing with that matter only the sentence would have been somewhat different, but I feel that is the best way of approaching it when one looks at what the sentence should be in relation to the second matter, which is imprisonment for two years with a non-parole period of six months." 5 The sentencing judge then passed sentence. 6 He concluded by saying: "I have considered the two decided cases which the Crown has put, for which I am grateful, the Queen v Malone (2000) NSW CCA 156, and Queen v Griggs (2000) CCA 33. Even though in Griggs' case in particular the sentences which were imposed might have been argued to be lighter than the sentence I am imposing today (that is, the cases that were examined by her Honour [Justice] Simpson, in particular) and having given careful consideration to those matters I still feel that the objective features of this case call for the sentences which I have imposed, and I will also indicate that I have taken into account Henry's case. I appreciate the state of flux in which that case stands in regards to its being a guideline and the fact that it may well be overtaken by legislation. In any event, Henry's case is a case to which I pay real deference. Even if it were not to be treated as a guideline the gathering of the cases there indicates the way in which this matter ought to be approached." 7 On 6 March 2002 the respondent was released from custody after serving 6 months' imprisonment, having been in custody since 6 September 2001. On 12 April 2002 the respondent's co-offender, Nathan McIvor, was sentenced by the sentencing judge to 2 years' imprisonment for the 16 August offence with a non-parole period of 7 months and 7 days and 6 months for the 21 August offence: those two sentences were to be served concurrently and to commence on 6 September 2001, when that accused was arrested. 8 By Notices dated 2 May 2002, the Director of Public Prosecutions indicated a desire to appeal against the sentences imposed on both offenders on the ground that they were manifestly inadequate. The Notice relating to the present respondent was served on him on or about 7 May 2002. There is evidence that that event caused the respondent to be "shocked, disappointed and stressed". 9 In Griffiths v R (1977) 137 CLR 293 at 310 Barwick CJ said that Crown appeals "should be a rarity, brought only to establish some matter of principle". A majority of the High Court (Brennan, Deane, Dawson and Gaudron JJ) agreed in Everett v R (1994) 181 CLR 295 at 300. The expression "some matter of principle" includes the correction of sentences which are manifestly inadequate. Thus in R v Osenkowski (1982) 30 SASR 212 at 213, King CJ (White J concurring) said: "The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience." 10 In all the circumstances it is understandable that the Director of Public Prosecutions may have formed the view that the sentencing judge did not apply adequate standards of punishment for the respondent's crime, displayed an idiosyncratically lenient view, and arrived at sentences so disproportionate to the seriousness of the crimes as to shock the public conscience. For, as counsel for the respondent frankly recognised, the two crimes, in their nature and in the particular way they were committed, were very serious. Robberies at knife point, even if there is no initial intent to use the knife, can miscarry and escalate into wounding or worse. 11 The Crown's submissions to this Court were as follows: "A sentence imposed must reflect the objective seriousness of the crime concerned. R v Rushby (1977) 1 NSWLR 594. Although subjective considerations must be taken into account, they must not be allowed to outweigh the objective factors present in the case. R v Dodd (1991) 57 A Crim R 349 at 354. The maximum penalty for the offence of robbery in company is one of 20 years imprisonment ( Crimes Act section 97(1)) which indicates that the objective seriousness of this offence is high. The law regards robbery with or without arms as a very serious offence indeed. In virtually every circumstance it is to be treated as an offence of the utmost gravity which should normally carry a custodial sentence. R v Maddocks (unreported) CCA 25th July 1993. In Piohipi (2001) NSWCCA 336 this court referred with approval to the decision in Murchie (1999) 108 A Crim R 482 in which the guideline judgment in Henry (1999) 46 NSWLR 346 was applied to the offence of robbery in company. An offence of the present kind is not simply a crime against property. It is a crime against persons. The fear engendered by the perpetration of this type of offence, together with the continuing adverse effects on its victims, establish it as a serious crime which requires condign punishment. R v Henry and Ors (1999) 46 NSWLR 346 at 368 per Spigelman CJ. The victim of the first offence, Nicholas Sparrow, described himself as 'very shaken up by what had occurred' (para 11). The victim of the second offence, Kyl Thompson, said that he 'feared for my safety and for the safety of my girlfriend. I was worried that he was going to stab me because he kept pushing the knife against my throat' (para 10). Deterrence is a very important aspect of sentencing. One of the main purposes of punishment is to protect the public from the commission of crimes by making clear to offenders and persons with similar impulses that if they yield to them they will meet with severe punishment. R v Radich (1954) NZLR 86. In Henry (supra) Spigelman CJ at 380 indicated that, for an offence of the kind exemplified by his Honour at that page of the report a sentence should generally fall between four and five years for the full term. Of course, this assessment was in respect of one offence. The sentences imposed on the respondent for the two offences considered overall were half the sentence proposed in Henry . Additionally, having found special circumstances the actual term to be served in custody was a quarter of the overall sentence. In Simpson (2001) NSWCCA 534 at para 64 Spigelman CJ observed that the non parole period of a sentence 'must appropriately reflect the criminality involved in the offence'. The present non parole period, effectively 6 months, does not appropriately reflect the criminality involved in the offences. The imposition of concurrent sentences was unjustified. The two offences were separate and unconnected. The present offences were not the first time that the respondent had committed robbery in company. He had twice before been dealt with in the Children's Court for this offence. His Honour took into account the subjective circumstances relied on in the respondent's case on sentence but gave them too much weight. His Honour's description of the subjective features of the respondent's case as 'strong' at ROS 4.2 overstated the problem. The very positive report as to the respondent's work performance at the Menzies Hotel covered the very period in which the applicant committed the present offences. The Pre Sentence Report, which was relatively optimistic as to the respondent's motivation to change his lifestyle, was written virtually immediately before the respondent committed the offences. Dr Neilssen's report really described prospects for rehabilitation. The report provides little basis for concluding that significant rehabilitation has been achieved by the respondent. And the factors which Dr Neilssen discussed appear to have already been in place prior to the commission of the present offences. As earlier submitted, the subjective circumstances of a case generally are subordinate to the objective circumstances. But even so, here his Honour has accorded the subjective material itself inappropriate weight. That material was not such as to justify the leniency which was exercised. His Honour at ROS 6.2 described the present offences as 'grave crimes … which call for deterrent sentence and crimes where there has been a serious effect on the victims.' The sentences imposed by his Honour upon the respondent did not reflect those findings. The sentences were manifestly inadequate. They should be set aside and replaced by sentences which more appropriately reflect the objective seriousness of the offences. This Court has an overriding discretion as to whether it should intervene in a matter such as the present. Thew (unreported) CCA 25th August 1998. Allpass (1993) 72 A Crim R 561, Chad (unreported) CCA 11th May 1993. Whilst the Crown did not appeal against the sentence for a significant period of time, it must not be overlooked that the co offender McIvor was not sentenced until 12th April 2002, and that considerations of parity in sentence between the respondent and McIvor may be relevant. Once the sentence in the case of McIvor became known the Crown filed appeals reasonably soon afterwards. The delay in filing the appeal in the case of the respondent should not cause the court to decline to exercise its discretion to re-sentence if it decides that the sentences imposed by his Honour were manifestly inadequate." 12 The Crown submissions correctly acknowledge that if this Court is to accede to the Crown's desire that the respondent be sentenced more heavily, it must surmount two hurdles. The first is to locate an appellable error in the sentencing judge's discretionary decision. The second is to negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised. 13 The sentencing judge referred to many of the factors relied on by the Crown. He referred to the seriousness of the crimes, particularly the grave aggravating feature to be found in the deliberate use of the knife in the second crime. Armed robbery in company is a crime which normally carries a custodial sentence: he imposed custodial sentences. He referred to the fear of the victims more than once. He referred to the need for deterrent sentences. He said he took into account the principles stated in R v Henry, and indeed he said that he paid them "real deference". He referred to the fact that the respondent had twice been dealt with in the Children's Court for the offence of robbery in company. 14 The Crown's attack on the sentencing judge's findings about the subjective aspects is not by itself enough to reveal error. The Crown's submission in effect contrasts the criminal behaviour of the respondent with the respondent's law abiding activities, and says the latter should be discounted because they were contemporaneous with the former. In my opinion the sentencing judge was not wrong in failing to discount them. It is possible for an offender simultaneously to display qualities which may eventually result in rehabilitation during periods within which that offender is also committing crimes. The Crown is probably right in characterising Dr Neilssen as dealing with prospects for rehabilitation, and the other favourable material goes to that question: but it was not irrelevant for the sentencing judge to take this material into account, and not necessarily wrong to pay considerable attention to it. It follows that many of the Crown's submissions simply amount to a complaint that other sentencing judges – and perhaps the members of this Court – would have arrived at different results if they had approached this matter de novo. But a discretionary decision to impose a particular sentence is not open to attack in that way. 15 The Crown's submission that the two offences were "separate and unconnected" is correct. When the sentencing judge was sentencing McIvor, he appeared to think that Pearce v R (1998) 194 CLR 610 pointed against that conclusion, and counsel for the respondent actually conceded that the Crown's submission was well-founded. It is not necessary to decide whether Pearce v R points against the sentencing judge's approach, or whether counsel's concession is correct, particularly in a case where one of the sentences is much lighter than the other. The sentencing judge retained a discretion to impose concurrent sentences and it is not necessary to consider whether it miscarried. 16 It is certainly arguable that the sentencing judge committed one error. The terms of imprisonment which he imposed, particularly the six month term, were so low that they arguably suggest some error going to the integrity of the process by which the sentencing judge weighed the factors he said he took into account. That is, whether or not the Crown has been able to point to any particular error of fact or law, or to identify any consideration which the sentencing judge failed to consider or ought not to have considered, the ultimate conclusions at which he arrived suggest that arguably some error must have occurred even if it cannot be detected on the face of the reasoning. The sentences fell well below those which R v Henry suggested as appropriate. It is true that the sentence for the more serious offence was much higher than the sentence of 18 months' periodic detention imposed for a much more serious robbery, including premeditation, disguises, and the binding of victims, by a majority of the Court of Criminal Appeal in R v Griggs (2000) 111 A Crim R 233. According to Sully J at [16], in practice that meant a significant measure of community service rather than full-time weekend detention for the whole eighteen months. But that was a case where a Crown appeal succeeded: the Court took into account various events favourable to the accused's position which had happened after the sentencing hearing, and the result of re-sentencing after a Crown appeal succeeds will often be more lenient than the outcome of a correctly conducted first instance sentencing hearing. The sentence for the more serious offence may be compared with a sentence of 2 years with an additional term of 2 years, and two sentences of 2 years with additional terms of 2 years and 6 months, in R v Malone [2000] NSWCCA 156. The Court of Criminal Appeal dismissed an optimistic application by the accused for leave to appeal in that case. 17 There is at least one distinct error appearing on the face of the reasoning. Once the sentencing judge found that on the second count the use of the knife was a "grave aggravating feature" and "a very grave aggravating circumstance"; that there had "been a serious effect on the victims"; and that the crime called for a "deterrent" sentence, it was necessary for the non-parole period appropriately to reflect the criminality involved in the offence: R v Simpson [2001] NSWCCA 534. The non-parole period is "the minimum time that the judge determines justice requires that [the accused] must serve having regard to all the circumstances of his offence": Power v R (1974) 131 CLR 623 at 629; Deakin v R (1984) 54 ALR 765 at 766. A six month non-parole period did not do this. A useful comparative example is R v Poihipi [2001] NSWCCA 306, another appeal from Moore DCJ. There the means of terrifying the victims into compliance with the robber's wishes was not a knife but the menacing size and appearance of the accused. Mason P (Sully and Newman JJ concurring) held that a term of three years' imprisonment with a non-parole period of five months and two days was inadequate; in particular, "the non-parole period failed to reflect the seriousness of the offence". That, like this, was a case involving grave crimes, though in which there were findings of strong subjective features. It indicates that in principle the six month non-parole period was too low. 18 Sentences which are so lenient that on their face they reveal appellable error are not only intrinsically undesirable, but carry the further disadvantage of having a cruel impact on the respondents who are beneficiaries of a legally flawed generosity. The Crown is in no way to be criticised for seeking to challenge totally unsatisfactory sentences, at least if this is done speedily. Even where particular appellate courts decide against a further term of imprisonment, the impact on the respondents of the uncertainty in the period between when the Crown gives notice of its desire to appeal and the time when the appeal is decided must be agonising. Those respondents may deserve greater punishment than they received at the sentencing stage, but not that type of punishment. In the context of civil cases Lord Griffith famously spoke of the "strain" imposed on personal litigants, the "anxieties" occasioned by facing new issues, and "the raising of false hopes": Ketteman v Hansel Properties Pty Ltd [1987] 1 AC 189 at 220. These factors obviously press down even more heavily on accused persons facing Crown appeals occasioned by erroneous sentencing. 19 This Court's discretion under s 5D of the Criminal Appeal Act 1912 to determine a Crown appeal without proceeding to re-sentencing even if error is shown must now be considered. That discretion is described thus by Street CJ in R v Holder [1983] 3 NSWLR 245 at 255-256: "An important element in determination of a Crown appeal is the exercise of the residual discretion to dismiss an appeal notwithstanding that error of one or other of the categories mentioned above may have been established by the Crown. This discretion is a real and live discretion. In practice, it is exercised not infrequently. It enables the court to keep an ultimate control by protecting a convicted person against unfairness or injustice if that would flow from an adverse appellate decision. It is in this ultimate discretionary field that considerations of what has been called double jeopardy are of particular relevance. Within this field, also, the court's understandable reluctance to detect manifest inadequacy may be given, so to speak, a second opportunity of operating in the convicted person's favour. I forbear from citing examples of the exercise of this discretion in favour of a convicted person lest in so doing they could be thought to have some controlling significance in a general sense. The discretion, where it is exercised, necessitates an immediate and highly subjective assessment of the circumstances of the case in hand." 20 One significant matter relevant to the exercise of that residual discretion is the fact that the respondent received no notice of the Crown's dissatisfaction with the sentences until more than two months after he had completed the whole of one sentence and the minimum term for the other. 21 In R v Hicks (1987) 45 SASR 270 at 273 King CJ, speaking of "an ailing elderly man of previous good character", said: "prosecution appeals fall to be decided on somewhat different considerations than appeals by persons under sentence. When a person such as the present respondent has been told that he will not have to go to prison, a great load is lifted from his mind. The consequences of reversing that intimation could be devastating. I do not think that any consideration of justice or the protection of the public demands that this particular respondent, after he has been told by a court that he will not have to go to prison, should now be told by this appellate Court that he must serve the sentence." Here, of course, the respondent was not ailing or elderly, nor did he have a particularly good character, but he had gone to prison, and he had been told by the sentencing judge in effect that if he served the minimum term and behaved in an appropriate fashion he would not have to remain in prison any longer than 5 March 2002 or return to it after he left. 22 A different but related factor led to the exercise of this Court's residual discretion against re-sentencing in R v Potter (unreported, 12 April 1994). In that case the respondent received cumulative sentences of 2 years and 6 months to be served by periodic detention. He was sentenced on 2 June 1993. The Crown lodged an appeal on 11 June 1993 (a date which itself affords a salutary contrast to the present case). The matter came to the Court of Criminal Appeal on 7 October 1993 but was not reached. It was heard on 14 February 1994 and judgment was given on 12 April 1994. Carruthers J said (Clarke JA and Wood J concurring) that though the sentences were manifestly inadequate the Court would not intervene. "The critical factor which leads me to this conclusion is the fact that (through no fault of the respondent) the appeal was not heard when it first came before the Court on 7 October 1993. The result is, that a further period of over five months has expired during which the respondent has performed his periodic detention and consolidated himself in the workplace. I have little doubt that if I had heard this appeal on 7 October 1993 I would have concluded that the Court should intervene to impose a full-time custodial sentence. However the delay which has occurred since that date leads me to a different conclusion. By the time this judgment is delivered it will have been nine months since the Crown appeal was lodged, and the respondent has been kept in a state of uncertainty over that period. Accordingly, I would propose, in the exercise of the Court's residual discretion, that the appeal be dismissed." 23 In R v Hallocoglu (1992) 29 NSWLR 67 at 79-80 Hunt CJ at CL (Grove and Sharpe JJ concurring) expressed the following sentiments about delays in Crown appeals: "The notice of appeal was signed by the Director of Public Prosecutions eight weeks after the sentence was imposed, and served on the respondent two weeks later. A letter had been sent to the respondent four days after the sentence was imposed informing him that the Director was considering an appeal. The letter was received by the respondent within a week of the sentencing date. This Court has often exercised its discretion not to interfere with a manifestly inadequate sentence by reason of such delay: see, eg, R v McDonald (Court of Criminal Appeal, 12 December 1986, unreported) at 3-4; Director of Public Prosecutions of New South Wales v Garnum (Court of Criminal Appeal, 9 March 1989, unreported) at 7-8; R v Astill (Court of Criminal Appeal, 29 January 1990, unreported). In the first of those cases, it was said (at 3) that, whatever the administrative problems causing the delay, it is necessary for the Crown to eliminate them – a warning which was repeated in R v Myers (Court of Criminal Appeal, 13 February 1990, unreported) at 9-10. The delay in the present case was obviously enough caused by the delay in obtaining the transcript of the judge's remarks on sentence. The sentence was imposed immediately before Christmas, and the notice of appeal was signed within two weeks of the beginning of term when the judge would have approved of the transcript before its release. This Court has more recently said that the decision as to whether a Crown appeal should be taken should usually be capable of being made upon the basis of the notes taken by the Crown's representative present at the time when the sentence is imposed; to wait until the transcript becomes available – even when a letter has been sent warning the respondent that consideration is being given to an appeal – is not justifiable except in the unusual case: R v Bardo (Court of Criminal Appeal, 14 July 1992, unreported) at 3. A Crown appeal will not be dismissed simply because of delay. It will only be dismissed if that delay has caused prejudice to the respondent: R v Cuc Thanh Pham (1991) 55 A Crim R 128 at 136, 138. Such prejudice may be occasioned, for example, where as a result of a successful Crown appeal the respondent has to be returned to custody after having served the whole of the custodial part of the sentence from which the appeal is brought; but, even then, the seriousness of the crime may be such as to outweigh that prejudice: R v Carngham (1978) 140 CLR 487 at 494; R v Morris (Court of Criminal Appeal, 10 March 1989, unreported) at 8. Because the Crown had not had the benefit of this Court's decision in R v Bardo at the relevant time, and because no real prejudice has been demonstrated, I would not be prepared to dismiss the Crown appeal in this case by reason of the delay which occurred waiting for a transcript of the judge's remarks on sentence. The Crown should nevertheless pay heed to that decision in relation to all future Crown appeals." 24 Those remarks are significant, since they were made in a case where, unlike here, the Crown had told the respondent within a week of the sentencing hearing of the fact that it was considering an appeal. 25 It is sound practice, where the Crown is dissatisfied with a sentence imposed, to appeal without delay. In this case the Crown attempted to explain its delay by reference to the fact that the sentencing of McIvor took place after the sentencing of the respondent. That circumstance, which is itself on the face of it undesirable and which has not been explained, might justify delaying the hearing of the appeal until the outcome of the second sentencing hearing was known. But it does not justify permitting the respondent to remain under the false impression, which must have become firmer and firmer as the months passed from December to May, particularly after the respondent was released on 6 March 2002, that the State of New South Wales had completed the process of assessing what punishment should be inflicted on him. 26 In R v Carngham (1978) 140 CLR 487 the respondent was convicted of importing $650,000 worth of heroin taped to his body. He was sentenced to 2 years' imprisonment, and ordered to be released after 6 months on entering a bond. The Court of Criminal Appeal held it had no jurisdiction to entertain an appeal. The High Court disagreed and remitted the matter to the Court of Criminal Appeal. Gibbs ACJ recorded the following submission at 493-494: "However it was forcibly urged upon us by Mr McHugh, on behalf of the respondent, that if we considered that the decision of the Court of Criminal Appeal was erroneous we should nevertheless impose conditions on the grant of special leave to appeal. In his submissions it would be inhumane to return the respondent to prison after he had been released in accordance with the order made when he was sentenced, and had managed to rehabilitate himself in ordinary life. He therefore submits that it ought to be a condition of any grant of special leave that the Crown should not seek to have the case remitted back to the Court of Criminal Appeal for the purpose of having a new sentence imposed on the respondent." Gibbs ACJ said at 494 (Stephen, Murphy and Aickin JJ concurring on this point): "However it is clearly just and necessary that this Court in deciding upon the present application, and the Court of Criminal Appeal if the matter is remitted to that Court, should consider the fact that the respondent has been released from prison and has obtained, and achieved promotion in, employment, and that the Crown has been guilty of delay in making this application. However those facts, in themselves, do not necessarily render it unjust to return the respondent to prison in a case as apparently serious as the present. They are circumstances to be given full weight, together with all the other circumstances of the case, in deciding whether, if it is concluded that the sentence imposed by the District Court Judge was manifestly inadequate, a sentence should be substituted which would require the respondent to serve a further term of imprisonment." That was a case where the respondent's crime was very serious. The extent of the Crown's delay in appealing against sentence may be inferred from the fact that the Court of Criminal Appeal's decision was given less than two and a half months after the sentence. The Crown also delayed two and a half months in filing an application for special leave to appeal to the High Court. The assigned reasons for the delay were the need for "serious and unusual consideration" and "pressure of work". Gibbs ACJ said at 489: "It hardly needs to be said that this is a quite inadequate explanation of the delay in a criminal case of this kind." The periods of delay may be compared with the period involved here. 27 In Everett v R (1994) 181 CLR 295 at 305 Brennan, Deane, Dawson and Gaudron JJ recognised the undesirability of returning convicted persons to gaol when they said: "the deep-rooted notions of fairness which underlie the common law principle against double jeopardy require that a court of criminal appeal approach an application by the Crown for leave to appeal against sentence on the basis that such leave should only be granted in the rare and exceptional case. Indeed, that approach was particularly appropriate in the present cases where the effect of the sentencing judge's orders had been that each of the appellants had been released from custody and had been permitted and encouraged to resume his place in the community and to set out on the path of rehabilitation." See also R v Kyroglou [1999] NSWCCA 106 at [2]-[4], [36], [61], [76]-[79] and [100]-[103] and R v Horne [1999] NSWCCA 391 at [1], [14] and [15]. 28 R v Poihipi [2001] NSWCCA 306, referred to above, is another illustration of the court exercising its residual discretion to determine a Crown appeal in favour of the accused. On 26 October 2000 the accused pleaded guilty to eight counts of robbery in company, one count of attempted robbery in company, and one count of assault occasioning actual bodily harm. He was 19 at the time of the offences. On 20 November 2000 the accused was sentenced to three years' imprisonment with a non-parole period of five years two months: this meant he was immediately released. He returned to New Zealand to live with his mother and family while subject to parole conditions. For some reason the Crown's appeal was not heard until more than eight months elapsed, on 2 August 2001. In a judgment delivered on 16 August 2001, the court, while critical of Moore ADCJ, declined to impose a further custodial sentence because of the lapse of time and because of his findings on subjective features and the prospects of rehabilitation. 29 If it is the case that the Crown law authorities lack the resources to determine speedily whether or not to appeal against apparently lenient sentences, then it is incumbent on the executive and on the legislature to provide the necessary resources. If the resources cannot be provided, the consequences should be not be suffered entirely by respondents as a class. In any event, the possibility of a sentence imposed by Moore DCJ being appellably erroneous is not one which was far-fetched or one which can have come as a complete surprise to the Crown authorities in this case: see R v Harris (2001) 121 A Crim R 380 at [46]-[53] and R v Poihipi [2001] NSWCCA 306. 30 Would it be unjust to return the respondent in this case to prison, even assuming that the sentencing judge fell into appellable error? His crimes were serious. His record is not good. But he is young, he has served the whole of one sentence and the minimum part of the other, he had never been sentenced to imprisonment before, the sentencing judge found that there were prospects of rehabilitation, there was evidence to support that finding, since the respondent was sentenced his progress has been reasonable, and it must be hoped that the unpleasant experience of imprisonment will induce him to maintain that progress. The impact of the Crown's belated announcement of its dissatisfaction with the sentences – six months after the sentencing hearing and two months after the respondent left gaol – is itself a source of distress to the respondent which points powerfully against the justice of any further imprisonment. Indeed, bearing in mind the youth of the respondent and the fragile path of progress he must endeavour to walk in future, whatever good has been achieved by the sentencing process so far is likely to be negated if the respondent is removed from his present social position in order to spend more time deprived of liberty. In a sense the respondent was fortunate in the sentencing judge he came before, and fortunate in the Crown's failure to announce at the outset its intention to appeal. He should make every effort to take advantage of that good fortune. But in all the circumstances it was just that the appeal be dismissed. 31 LEVINE J: I concurred in the making of the order dismissing the Crown appeal on 24 July 2002. I agree with Heydon JA's reasons. 32 CARRUTHERS AJ: I agree with the reasons expressed by Heydon JA for the dismissal of the appeal on 24 July 2002. ********** 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.