New South Wales Court of Criminal Appeal CITATION : Regina v Hooper [2004] NSWCCA 10 HEARING DATE(S) : 17 December 2003 JUDGMENT DATE : 11 February 2004 JUDGMENT OF : James J at 1; Howie J at 70; Smart AJ at 71 DECISION : See para 69 CATCHWORDS : CRIMINAL LAW - Appeal - Sentence - Armed Robbery - The Queen v De Simoni - Parity in Sentencing LEGISLATION CITED : s 44(2) of the Crimes (Sentencing Procedure) Act. Crimes Act The Queen v De Simoni (1981) 147 CLR 383 at 389; R v Booth (unrep) CCA 12 November 1993); R v Channells (unrep) CCA 30 September 1997); CASES CITED : R v JB [1999] NSWCCA 93; R v Hector [2003] NSWCCA 196; R v Young [2003] NSWCCA 276; R v Quatami (2001) 127 A Crim R 369; Lowe v The Queen (1984) 154 CLR 606; PARTIES : Regina v Stephen Ronald Hooper FILE NUMBER(S) : CCA 60379/03 COUNSEL : (A) D T Spears (R) D M L Woodburne SOLICITORS : (A) P White (R) S Kavanagh LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0665 FILE NUMBER(S) : LOWER COURT Berman DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 060379/03 JAMES J HOWIE J SMART AJ Wednesday, 11 February 2004 REGINA v Steven Ronald HOOPER Judgment 1 JAMES J: Steven Ronald Hooper has applied for leave to appeal against sentences imposed on him in the District Court on 13 December 2002 by his Honour Judge Berman S.C. 2 On 4 November 2002 a joint trial of the applicant and of an alleged co-offender Dennis John Adams had been fixed to commence in the District Court before Judge Berman. The indictment proposed to be presented at the joint trial contained a large number of counts. 3 On 4 November 2002 counsel for the applicant made an application that the applicant be tried separately from Adams and a further application that there be separate trials of certain counts against the applicant. Judge Berman held that the applicant should be tried separately from Adams but then held that there should be a joint trial of all the charges against the applicant. The separate trial of the applicant was to take place before the separate trial of Adams. 4 On 6 November 2002, before any trial before a jury had commenced, Judge Berman was informed that discussions between the legal representatives of the parties had been fruitful and that the applicant would plead guilty to four counts in an amended indictment. On 6 November 2002 an indictment containing four counts was presented and the applicant was formally arraigned. The charges against the applicant in the indictment presented on 6 November 2002 were as follows:- 1. On 16 April 2001 at Chipping Norton in the State of New South Wales, being then armed with a dangerous weapon, namely a rifle, did rob Ihab Kassir of certain property, to wit cash, the property of Neil Kassir trading as the Chipping Norton Newsagency. 2. On 16 April 2001 at Chipping Norton in the State of New South Wales, did maliciously discharge a loaded firearm, namely a rifle, at Christopher Wildbur and Thomas Waibel with intent to resist or prevent the lawful apprehension of himself. 3. On 23 April 2001 at Sefton in the State of New South Wales being then armed with a dangerous weapon, namely a rifle, did assault Kerrie Cruickshank with intention to rob her of certain property, to wit cash, the property of Phillip Leslie Clark trading as Sefton Newsagency. 4. On 3 May 2001 at Cabramatta in the State of New South Wales being then armed with a dangerous weapon, namely a rifle, did rob Syed Maqsood Rehman of certain property, to wit cash, the property of AM Petroleum. 5 When arraigned, the applicant pleaded guilty to all four counts in the indictment. 6 Counts 1, 3 and 4 in the indictment charged offences under s 97(2) of the Crimes Act for which the maximum penalty is imprisonment for twenty-five years. A matter which was in contention on this application and to which I will return later in this judgment was whether the second count charged an offence under s 33 of the Crimes Act, for which the maximum penalty is imprisonment for twenty-five years, or an offence under s 33A(1) of the Crimes Act, for which the maximum penalty is imprisonment for fourteen years. 7 The applicant was arrested on 4 May 2001, shortly after having committed the offence charged in the fourth count in the indictment and he had remained continuously in custody from 4 May 2001 up until the date on which he was sentenced by Judge Berman. However, after being arrested and before he was sentenced by his Honour, the applicant had been sentenced for other offences, with the consequence that it was only from 4 August 2002 that his custody was exclusively referable to the offences for which he was being sentenced by his Honour. Accordingly, his Honour made the sentences which he imposed on the applicant commence from 4 August 2002. 8 In sentencing the applicant Judge Berman imposed the following sentences:- Count 1. A fixed term of imprisonment of eight years commencing on 4 August 2002. Count 2. A fixed term of imprisonment of five years commencing on 4 August 2004. Count 3. A term of imprisonment of ten years with a non-parole period of six years, commencing on 4 August 2008. Count 4. A fixed term of imprisonment of eight years commencing on 4 August 2006. 9 In his remarks on sentence his Honour explained that he had decided to make the sentences partly cumulative on each other, because, although all the offences were committed within a relatively short period of time and represented in his Honour's view one episode of criminality, the applicant, having committed multiple offences, should receive a heavier total penalty than an offender who had committed a single offence. 10 The total overall effect of the sentences imposed by his Honour was imprisonment for sixteen years, with fixed terms and a non-parole period totalling twelve years. 11 In the proceedings on sentence a statement of facts was tendered by the Crown and admitted into evidence. The Crown Prosecutor indicated that only one matter in the statement of facts was disputed. This was an assertion that the rifle which had been used in the commission of all four offences belonged to the applicant. Subsequently in the proceedings on sentence this assertion was altered to read that the applicant "had access on occasions to the rifle", leaving undetermined who the rifle belonged to. 12 The statement of facts which was admitted into evidence in the proceedings on sentence runs to nine pages and his Honour's statement of the facts of the offences in his remarks on sentence, which was based on the statement of facts in the exhibit, covers six pages of his Honour's remarks on sentence The facts of the offences were more succinctly summarised in the Crown's written submissions on this application, in a way which was not the subject of any criticism on the hearing of this application, and I will now set out the Crown's summary. " Count 1 At about 7.35am on Easter Monday 16 April 2001 his co-offender Adams stormed into the Chipping Norton Newsagency wearing a balaclava, gloves and carrying a loaded sawn-off rifle and a plastic bag. He fired a shot over Mr Kassir's shoulder, who was working there, at head height and demanded: 'Where's the fucking money?' Mr Kassir placed the money from the till into the bag and with further threats that he would 'blow him away' if he was stupid, (Adams) marched Mr Kassir to the shop safe with the gun at his head taking its contents. Something in the order of $1,500 was stolen. Adams then ran outside where the applicant was sitting in the driver's seat of a stolen getaway car. Count 2 A few minutes after the getaway car drove off, two police constables in a patrol car saw the car enter a street against a 'No Entry" sign. Intending to pull over the car for the traffic infringement, one of the constables indicated with his hand for the car to stop. One police officer got out of his car, went over to the offender's vehicle but the offender's car then sped off. During a high speed car chase which then ensued, involving speeds in excess of 150 kph and overtaking cars in the face of oncoming traffic, Adams leant out the passenger's window and 'took direct and deliberate aim' towards the Constables and fired a shot on two separate occasions. The offenders escaped. Count 3 A week later at 10am on Monday 23 April 2001, Adams again wearing a balaclava and carrying a plastic bag held Kerrie Cruickshank up at gun point with the same loaded sawn off rifle where she worked at the Sefton Newsagency. When he demanded the money from the till, Phillip Clark walked out of his office. The gun was then directed at Mr Clark and he was ordered: 'I'll shoot you. Open the safe'. As Kerrie Cruickshank began placing money in the bag from the till, Mr Clark grabbed the gun and there was a struggle. Adams pulled the trigger and Kerrie Cruickshank was wounded near her left breast for which she was later operated on. Adams ran from the newsagency to the stolen getaway car driven by the applicant. Count 4 A little over a week later on the evening of 3 May 2001 the applicant and his girlfriend, Sheree Atkinson, drove to the AM Petrol Service Station at Cabramatta. Miss Atkinson went into the shop first to use the telephone. The applicant, carrying his loaded sawn off shotgun and wearing a balaclava, then went into the shop shortly thereafter. He ordered Mr Rehman who was working behind the counter to give him the money and fired a shot in his direction. Mr Rehman placed $300 in a plastic bag he was handed, and the applicant and his girlfriend then ran to the car and drove off". 13 In the robberies carried out at the Chipping Norton and Sefton newsagencies (counts 1 and 3) it was Adams who entered each newsagency and fired the shot and it was Adams who fired two shots during the high speed car chase on 16 April 2001 (count 2). The applicant himself entered the service station at Cabramatta and fired a shot in committing the offence charged in the fourth count. 14 In his remarks on sentence Judge Berman, after setting out a history of the proceedings in which he indicated the stage in the proceedings at which the applicant had made his pleas of guilty and after setting out the charges and the objective facts of the offences, commented on the objective seriousness of the offences. His Honour described the offences as "most serious examples of their type". His Honour found that the modus operandi of the applicant and the co-offender in committing the robberies whilst armed with a firearm included the actual discharge of the firearm in the general direction of the victim of the robbery. 15 His Honour considered that, although on the first three counts it was the co-offender Adams who had actually discharged the firearm, the applicant's participation in the offence committed on 23 April 2001, "after his co-offender had demonstrated his willingness to discharge the firearm on at least three occasions on 16 April 2001" and the applicant's commission of the offence on 4 May 2001 "suggests that the offender's culpability for the discharge of the firearm by the co-offender Adams is not diminished in any way, because of the fact that it was not actually this offender who pulled the trigger". 16 His Honour considered that the offence charged in count 3 of the indictment was aggravated, not only by the circumstance referred to in s 97(2) of being armed with a dangerous weapon but also because "Ms Cruickshank was "wounded and significantly so" and, as revealed by a victim impact statement, had also suffered psychological injury as a result of the commission of the offence. 17 His Honour noted that newsagencies are 'soft targets" for robbers, because it is impracticable for newsagencies to take steps to secure their premises in the way in which many banks have. 18 His Honour also regarded the criminality involved in the commission of the offence charged in the second count in the indictment as "extremely serious". 19 In his remarks on sentence Judge Berman then turned to the subjective circumstances of the applicant. 20 The applicant had had a supportive family. However, he had left school in year 7 and had never had a job. The applicant had a long criminal history but Judge Berman noted that the instant offences represented a significant escalation in his criminal conduct. The applicant had told a psychologist whose report was tendered and admitted in the proceedings on sentence that in the previous seven years he had spent only thirteen months outside prison. The applicant was a user of illicit drugs. 21 In his remarks on sentence Judge Berman proceeded to deal with a number of matters which were the subject of grounds of appeal on this application, including whether the applicant had shown any contrition, that the applicant was on protection within the Correctional system and whether there were special circumstances within s 44(2) of the Crimes (Sentencing Procedure) Act. I will refer more fully to what his Honour said on these subjects in his remarks on sentence, when I deal with the various grounds of appeal. 22 I will now consider the various grounds of appeal. " Ground 1 : The sentencing judge erred in taking into account allegations to which no pleas of guilty were entered. Ground 2 : Specifically, the sentencing judge erred in taking into account conduct that had been the subject of more serious charges that were not pressed". 23 In support of these grounds of appeal it was submitted on behalf of the applicant that in sentencing the applicant on counts 2 and 3 Judge Berman had contravened the principles stated in the judgment of Gibbs CJ in The Queen v De Simoni (1981) 147 CLR 383 at 389 by taking into account as circumstances of aggravation conduct which had been the subject of charges in the original proposed indictment but had not been the subject of charges in the indictment on which the applicant had been arraigned. 24 In De Simoni Gibbs CJ said at 389:- "…the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted. …. The combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence". 25 De Simoni was a decision on the Western Australian Criminal Code but the principles stated by Gibbs CJ have been repeatedly applied in New South Wales. 26 If another offence carries a higher maximum penalty than does the offence for which the offender is being sentenced, that other offence will be a more serious offence for the purposes of the principles stated in De Simoni. See for example R v Booth (unreported CCA 12 November 1993); R v Channells (unreported CCA 30 September 1997); R v JB [1999] NSWCCA 93; R v Hector [2003] NSWCCA 196. 27 In R v Young [2003] NSWCCA 276, in a case where the offender had been indicted on alternative charges of robbery and stealing from the person and the Crown had accepted a plea of guilty to the charge of stealing from the person in full discharge of the indictment, it was held that the sentencing judge in sentencing the offender had, in breach of the principles in De Simoni, impermissibly "blurred the distinction" between the two offences of robbery and stealing from the person. Even though robbery and stealing from the person are both offences under the same section of the Crimes Act, s 94, and carry the same maximum penalty, robbery was to be regarded as the more serious offence, because the elements of the offence of robbery include all the elements of the offence of stealing from the person but also include the important additional element, which is not an element of the offence of stealing from the person, of a threat or force putting the victim in fear. 28 On the present application it was submitted on behalf of the applicant that in sentencing the applicant for the offence charged in the second count in the indictment Judge Berman had, in breach of the principles in De Simoni, taken into account as a circumstance of aggravation a matter which would have warranted a conviction for a more serious offence. It was submitted that the offence charged in the second count was an offence under s 33A(1) of the Crimes Act but the sentencing judge in stating the facts of the offence in his remarks on sentence had stated that on two occasions Adams had fired a shot "at" the police. Shooting at a person is an element of the offence in s 33 of the Crimes Act, which carries a maximum penalty of imprisonment for twenty-five years, but is not an element of the offence under s 33A(1) of the Crimes Act, which carries a maximum penalty of only fourteen years. 29 I do not consider that in sentencing the applicant for the offence charged in the second count in the indictment Judge Berman committed any breach of the principles in De Simoni. I am satisfied that the offence to which the applicant had pleaded guilty and for which he was being sentenced was an offence under s 33 and not an offence under s 33A(1). 30 Earlier in this judgment I set out the terms of the second count in the indictment. These terms include an allegation that the firearm was discharged "at" the two police officers and clearly amount to a charge that the applicant had committed an offence under s 33. It was these terms which were read out to the applicant when he was arraigned and it was in answer to this charge that the applicant pleaded guilty. 31 The statement of facts which was admitted without any relevant objection in the proceedings on sentence included in pars 38 and 44 assertions that on two occasions during the high speed car chase Adams had taken aim with the rifle and "fired a shot at the police'". The passages in Judge Berman's remarks on sentence in which his Honour said that Adams had fired a shot "at" the police were taken from the statement of facts which had become an exhibit. 32 It is true that on the back sheet of the indictment the section of the Crimes Act under which the charge was laid was stated to be s 33A of the Crimes Act and that in his remarks on sentence Judge Berman described the offence as being an offence against s 33A(1) of the Crimes Act for which the maximum penalty was fourteen years. However, these circumstances cannot alter the fact that the offence on which the applicant was arraigned and to which he pleaded guilty was an offence under s 33 of the Crimes Act. To the extent to which the applicant was treated by Judge Berman as a person to be sentenced for an offence under s 33A(1), the applicant was treated more leniently than he deserved. 33 It was also submitted that in sentencing the applicant for the offence charged in the third count in the indictment Judge Berman had infringed the principles in De Simoni by regarding the wounding of Ms Cruickshank as a circumstance of aggravation and, indeed, a significant circumstance of aggravation. It was pointed out that the third count in the indictment charged an offence under s 97(2) of the Crimes Act, whereas armed robbery with wounding is an offence under s 98 of the Crimes Act and it was submitted that an offence under s 98 of the Crimes Act is a more serious offence than an offence under s 97(2) of the Crimes Act. 34 I do not accept the submission that an offence under s 98 of the Crimes Act is to be regarded as a more serious offence than an offence under s 97(2) of the Act. 35 The maximum penalty for an offence under s 98 is the same as the maximum penalty as an offence under s 97(2), namely imprisonment for twenty-five years, so that an offence under s 98 cannot be regarded as a more serious offence on the basis that an offender under s 98 is liable to a greater penalty. 36 The elements of an offence under s 97(2) and an offence under s 98 are not the same and the elements of an offence under s 97(2) are not fully included in the elements of an offence under s 98. For present purposes, the elements of an offence under s 97(2) of the Crimes Act are robbery or assault with intent to rob, whilst armed with a dangerous weapon. For present purposes, the elements of an offence under s 98 of the Crimes Act are robbery or assault with intent to rob, whilst armed with a weapon which is merely an offensive weapon as distinct from a dangerous weapon, with wounding of the victim. Under the definitions of "offensive weapon" and "dangerous weapon" in s 4 of the Crimes Act, "dangerous weapon" is defined as a sub-set of "offensive weapon" and it is clear that many weapons which would fall within the definition of "offensive weapon" would not fall within the definition of "dangerous weapon". A wounding under s 98 is not necessarily a serious injury. A "wounding" is any injury involving a breaking or cutting of the interior layer of the skin and could be quite minor. See Criminal Practice and Procedure New South Wales par [8-s 35.5] at p115423. 37 In my opinion, there is no basis on which this Court could conclude that an offence under s 98 of the Crimes Act is to be regarded as a more serious offence than an offence under s 97(2) of the Act for the purposes of the principles in De Simoni. 38 An offence under s 98 not being a more serious offence than an offence under s 97(2), Judge Berman was not prevented by the principles in De Simoni from taking the wounding of Ms Cruickshank into account as a circumstance aggravating the offence under s 97(2). 39 I would reject grounds of appeal 1 and 2. Ground 3: The sentencing judge erred in finding that these offences were the most serious examples of their type . 40 As pointed out by the Crown in its written submissions, Judge Berman did not describe the armed robbery offences as "the" most serious examples of their type. His Honour simply described the offences as "most serious examples of their type". In my opinion, his Honour was well warranted in so describing the offences and I would reject the third ground of appeal. Ground 4: The sentencing judge failed to adequately and clearly take into account the applicant's pleas of guilty . 41 There is no substance whatever in this ground of appeal. In his remarks on sentence Judge Berman expressly referred to the applicant's pleas of guilty and said that, although the pleas were not early, they had averted what would have been a lengthy trial in which many of the victims in giving evidence would have had to re-live their experiences, and the applicant should receive a discount of 15per cent for the utilitarian value of the pleas of guilty. Ground 5: The sentencing judge failed to adequately and clearly take into account the fact that his imprisonment is to be served in protective custody . 42 As in the case of ground 4, there is no substance whatever in this ground. In his remarks on sentence Judge Berman noted that the applicant, who was of course in custody at the time of being sentenced, was on protection, although it was not immediately obvious to his Honour why the applicant should have been on protection. His Honour went on to say in his remarks on sentence that he recognised that sentences served on protection are served in harsher conditions and that he had reduced the sentences he was imposing accordingly. There was no need for his Honour to quantify how much of a discount he was allowing for the applicant's sentences being served on protection. There are some recent decisions of this Court in which there has been some critical examination of the relevance to sentencing of the likelihood that the offender will serve the sentence in some form of protective custody. See R v Totten [2003] NSWCCA 207 and R v Durocher Yvon [2003] NSWCCA 299 43 As a sort of addendum to ground 5, it was submitted on behalf of the applicant that the sentencing judge had erred in disregarding expressions of remorse by the applicant which were recorded in the report by the psychologist which was admitted into evidence in the proceedings on sentence. In his report the psychologist said:- "He (the applicant) stated that he also had feelings of self blame and guilt ('deep remorse for hurting a woman using a gun')". 44 Judge Berman said in his remarks on sentence:- "The offender told the psychologist that he had feelings of self blame and guilt and apparently expressed some remorse for the injuries suffered by Ms Cruickshank. I have disregarded those expressions of remorse entirely. They seem inconsistent with his conduct – especially the offender's conduct where he himself discharged the firearm during count 4, an offence which occurred after the offence involving Ms Cruickshank – and had the offender really wished to express remorse, I would have expected him to have given sworn evidence to that effect". 45 The applicant did not give any evidence in the proceedings on sentence. 46 It was submitted that his Honour's reasoning in this passage in his remarks on sentence was impermissible and indicative of error. However, in my opinion, his Honour's reasoning was fairly open to his Honour. The applicant's conduct in committing the offence charged in the fourth count in the indictment could rationally be regarded as being inconsistent with the applicant's experiencing any real contrition for the injuries suffered by Ms Cruickshank and, if the applicant had really wished to "express" remorse, he could reasonably have been expected himself to give evidence to that effect. 47 His Honour also noted in his remarks on sentence that the applicant had told the psychologist, with reference to the offence charged in the second count in the indictment, that "he did not have a motive to kill anyone but felt that he had to defend himself from harm", which his Honour regarded, permissibly, as an attempted justification by the applicant of his conduct in relation to the second count and as being inconsistent with the applicant experiencing any contrition, at least for that offence. 48 The Crown pointed out in its written submissions that the applicant had told the psychologist that what had happened on 16 April 2001 was "a robbery that went wrong", such a description of what had happened on 16 April 2001 suggesting that what the applicant regretted was that the robbery had miscarried, not that the robbery had been undertaken. 49 It seems to me likely that in this passage in his remarks on sentence his Honour had in mind what was said in R v Quatami (2001) 127 A Crim R 369, that while hearsay evidence of statements made by prisoners to psychologists and psychiatrists is admissible evidence in proceedings on sentence, very considerable caution should be exercised in relying on such statements, when the prisoner himself does not give any evidence. 50 I do not consider that his Honour erred in disregarding the expressions of remorse by the applicant which were recorded in the psychologist's report. Ground 6: The sentencing judge erred in assessing the applicant's culpability "as not diminished" when compared to that of the co-offender . Ground 7: There is manifestly excessive disparity between the sentence imposed on the applicant and his co-offender and the applicant has a justified sense of grievance . 51 As stated earlier in this judgment, Judge Berman granted the application by the applicant that his trial be separated from the trial of the co-offender Adams. 52 Adams did not plead guilty to any offence and he was subsequently tried before her Honour Judge Hock and a jury on a number of charges, some of which were in the alternative and all of which related to the robbery at the Chipping Norton Newsagency on 16 April 2001 and the discharging of the firearm during the car chase on 16 April 2001. Judge Hock had ordered that there should be a separate trial of charges relating to the robbing at the Sefton newsagency on 23 April 2001 and ultimately the Director of Public Prosecutions directed that there should be no further proceedings against Adams in relation to that robbery. 53 At Adams' trial the jury found Adams guilty on four counts, which were:- (i) Robbery whilst armed with a dangerous weapon at the Chipping Norton Newsagency on 16 April 2001 (count 2 in the indictment). (ii) Firing a firearm on 16 April 2001 with disregard for the safety of the victim of the robbery at the Chipping Norton Newsagency (count 3 in the indictment). (iii) Two counts of discharging a firearm with intent to resist lawful apprehension (counts 6 and 9 in the indictment). 54 Judge Hock imposed the following sentences on Adams:- On count 2, a sentence of imprisonment for ten years with a non-parole period of six years commencing on 22 October 2003. On count 3, a fixed term of imprisonment of three years commencing on 22 October 2003. On each of counts 6 and 9 a fixed term of imprisonment of six years commencing on 22 October 2001. 55 The total overall effect of the sentences imposed by Judge Hock on Adams consisted of sentences totalling twelve years, with fixed terms or a non-parole period totalling eight years. 56 It was submitted on behalf of the applicant that the relationship between the sentences passed on the applicant and the sentences passed on Adams was such as to engender a justifiable sense of grievance in the applicant. Lowe v The Queen (1984) 154 CLR 606. It was submitted that, while under the doctrines of joint enterprise or common purpose the applicant was liable for the offences of the armed robbery at the Chipping Norton Newsagency and the discharging of the rifle on two occasions during the police chase, it was Adams who had actually entered the newsagency and it was Adams who fired the shots and Judge Berman should not have found that the applicant's culpability was not less than that of Adams in the commission of these offences. It was pointed out that the applicant had pleaded guilty, whereas Adams had stood trial. 57 I consider, for the reasons given by Judge Berman in his remarks on sentence, that it was open to his Honour to assess the applicant's culpability for the offences committed on 16 April 2001 as not being diminished, when compared to that of Adams. 58 Because of the differences between the offences for which the applicant was sentenced and the offences for which Adams was sentenced, I do not consider that a comparison can be made between the sentences passed on the applicant and the sentences passed on Adams such as would bring into operation the principles of parity or proportionality in sentencing. The first offence for which Adams was sentenced (count 2 in the indictment against Adams) did correspond with the first offence for which the applicant was sentenced. The second offence for which Adams was sentenced was not an offence for which the applicant was sentenced but was really comprised in the armed robbery offence and Judge Hock made the sentence she imposed for this offence, which was a fixed term of imprisonment, fully concurrent with part of the non-parole period of the sentence for the armed robbery offence. Judge Berman took the discharging of the firearm into account in sentencing the applicant for the armed robbery at the Chipping Norton newsagency. The two offences of discharging a firearm with intent to resist lawful apprehension for which Adams was sentenced were clearly offences under s 33A(1) of the Crimes Act, and not offences under s 33, whereas the applicant was sentenced for a more serious offence under s 33. In summary, Adams was sentenced for one offence of armed robbery in which a shot was fired and two offences under s 33A. The applicant, on the other hand, was sentenced for the same offence of armed robbery in which a shot was fired, two other offences of robbery whilst armed with a dangerous weapon and an offence under s 33 in which the firing of both shots was taken into account. 59 It may be that Adams was fortunate in that no charge for the armed robbery at the Sefton Newsagency on 23 April 2001 was pursued against him and in that the jury at his trial declined to convict him of offences under s 33 or even more serious offences. However, what is relevant to the possible application of the principles in Lowe v The Queen is the actual sentences imposed on him. 60 A further matter is that the subjective circumstances of the applicant were worse than those of Adams. 61 In my opinion, these grounds of appeal should be rejected. Ground 8: The sentencing judge, having found facts capable of amounting to special circumstances, failed to adequately give due weight to the applicant's prospects of rehabilitation . 62 It was submitted that the applicant at the time of being sentenced was thirty-two years old, that under the sentences imposed by Judge Berman the applicant would be forty-four years old when he became eligible for release on parole, that when he was ultimately released the applicant, having left school in year 7 and having never had a job and having become institutionalised, would be unlikely to be able to obtain employment and would need long term counselling and support during a long parole period and that his Honour, having found that there were circumstances capable of amounting to special circumstances within s 44(2) of the Crimes (Sentencing Procedure) Act, should have found that there were special circumstances and should have imposed sentences under which there was a proportionally longer than usual period in which the applicant would be eligible for release on parole. It was also pointed out that before the sentences imposed by his Honour commenced the applicant had been continuously in custody for fifteen months. 63 In his remarks on sentence Judge Berman said:- "Mr Rowe, who appeared for the offender, suggested there were special circumstances in this case. He pointed to the long history of drug abuse, the limited opportunities in protection for education, counselling and the like and the difficulty that his family would have to visit him in gaol. I accept that these are capable of amounting to special circumstances. The offender is, as he recognised, institutionalised and it will not be easy for him to face society again after the lengthy sentence which I must impose upon him. He will need close and extensive supervision whilst on parole, if there is to be any hope of him becoming a productive member of society. However, the length of the parole period on the sentence that I will impose, will be sufficient to achieve those ends, and further, the effective non parole period I am about to impose is the least which would reflect the objective gravity of the offender's conduct". 64 I do not consider that there is any error in this consideration by his Honour of whether he should find that there were special circumstances and I would dismiss this ground of appeal. Ground 9: The sentence imposed is, in all the circumstances, manifestly excessive . 65 It was acknowledged that the offences were serious and required condign punishment but it was submitted that the sentences imposed by his Honour were manifestly excessive. 66 I do not consider that the sentences were manifestly excessive. I would agree with the comments made by the sentencing judge about the objective gravity of the offences, which I have referred to earlier in this judgment. The objective criminality involved in the offences was well summarised by the Crown in par 53 of its written submissions as follows:- "Count 1, 3 and 4 not only involved the use of a loaded rifle to rob vulnerable shop keepers, but on each occasion the gun was fired. On the first occasion it was fired towards and near Mr Kassir's head, in the second Ms Cruickshank was wounded and in the third a shot was fired in Mr Rehman's direction. Count 2 involved not only a high speed motor car chase or rather escape from police with surrounding traffic but also the discharge of a gun on two occasions. The offences are instances of extreme lawlessness and utmost gravity by an adult with previous offences of violence". 67 The sentences imposed on the applicant cannot simply be compared with other sentences for multiple armed robberies, because in each of the three armed robberies for which the applicant was sentenced a weapon which was a loaded firearm was actually discharged, in one case wounding a victim of the robbery. The applicant was also to be sentenced for the serious offence under s 33 involving shooting at police officers with intent to resist arrest. 68 The applicant did plead guilty but, otherwise, there was nothing in the applicant's subjective circumstances which would have entitled him to any leniency. 69 In my opinion, while leave should be granted to the applicant to appeal against the sentences imposed on him, the appeal against sentence should be dismissed. 70 HOWIE J: I agree with James J. 71 SMART AJ: I agree with James J. ********** Last Modified: 02/12/2004 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. 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