New South Wales Court of Criminal Appeal CITATION : Regina v Snider [2004] NSWCCA 134 HEARING DATE(S) : 02/04/04 JUDGMENT DATE : 11 May 2004 JUDGMENT OF : Wood CJ at CL at 1; Sperling J at 2; Kirby J at 3 DECISION : (1) That the appeal be allowed; (2) That the sentence of Gibson DCJ on 16.10.03 be quashed; (3) That, in lieu thereof, the respondent be sentenced as follows; Count 1: A fixed term of imprisonment of 18 months to commence on 2.4.03 and to expire on 1.10.04; Count 2: A concurrent fixed term of imprisonment of 6 months to commence on 2.4.03 and to expire on 1.10.03; Count 3: A concurrent fixed term of imprisonment of 3 months to commence on 2.4.03 and to expire on 1.7.03; Count 4: A term of imprisonment which is to consist of a non parole period of 2 years and a total term of 4-1/2 years, each to date from 2.4.04, with the non parole period to expire on 1.4.06, upon which date the respondent will be eligible for release on parole. CATCHWORDS : Criminal Practice & Procedure - Crown appeal against inadequacy of sentence - breaches of bond and armed robbery - no reasons for departure from guideline - whether sentencing remarks are "evidence" in terms of proviso to Criminal Appeal Act s12(1) - admissible on appeal although not tendered before sentencing Judge. Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED : Crimes Act 1900 Criminal Appeal Act 1912 R v Henry (1999) 46 NSWLR 346 Pearce v The Queen (1998) 194 CLR 610 R v Ceissman (2001) 119 A Crim R 535 R v Thomson & Houlton (1999-2000) 49 NSWLR 383 R v Richards [1981] 2 NSWLR 464 CASES CITED : R v Wheeler [2000] NSWCCA 34 R v J (1992) 59 SASR 145 R v Allpass (1994) 72 A Crim R 561 Dinsdale v The Queen (2000) 202 CLR 321 R v Hammoud (2000) 118 A Crim R R v AEM [2002] NSWCCA 58 R v KBM [2004] NSWCCA 123 PARTIES : Regina Jye Snider FILE NUMBER(S) : CCA 60483/03 COUNSEL : P Power SC (Crown/Appl) C B Craigie SC (Resp) SOLICITORS : S Kavanagh (Crown/Appl) SRACLS (Resp) LOWER COURT District Court JURISDICTION : LOWER COURT 03/11/0633 FILE NUMBER(S) : LOWER COURT Gibson DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60483/03 WOOD CJ at CL SPERLING J KIRBY J Tuesday 11 May 2004 REGINA v Jye SNIDER Judgment 1 WOOD CJ at CL: I have read in draft form the judgment of Kirby J. I agree with the orders proposed, and with the reasons of his Honour. 2 SPERLING J: I agree with Kirby J. 3 KIRBY J: This is an appeal against sentence by the Crown. On 16 October 2003 Jye Snider appeared for sentence before Gibson DCJ. He pleaded guilty to the offence of armed robbery. He also acknowledged that, by such conduct, he was in breach of three bonds which had been imposed by his Honour Judge Nield (under s12 of the Crimes (Sentencing Procedure) Act 1999) on 7 March 2003. His Honour was therefore called upon to sentence in respect of all such matters. The offences which were the subject of the bonds were as follows: · Count 1: Aggravated break and enter with intent to commit a serious indictable offence, with the use of violence (contrary to s112(2) Crimes Act 1900: maximum penalty - 20 years imprisonment). · Count 2: Steal from the person (contrary to s94 Crimes Act 1900: maximum penalty - 14 years imprisonment). · Count 3: Common assault (contrary to s61 Crimes Act 1900: maximum penalty - 2 years imprisonment). 4 The remaining count was as follows: · Count 4: Robbery whilst armed with an offensive weapon (contrary to s97(1) Crimes Act 1900: maximum penalty - 20 years imprisonment). 5 As contemplated by s99(1)(c) of the Crimes (Sentencing Procedure) Act 1999, his Honour revoked the bonds so that the order for suspension under s12 ceased to have effect. A non parole period was fixed in respect of the first count. Hence, for these offences, Mr Snider was sentenced as follows: · Count 1: Imprisonment for a term of 18 months to commence on 16 October 2003 and expire on 15 April 2005, with a non parole period of 11-1/2 months to commence on 16 October 2003 and expire on 1 October 2004. · Count 2: Imprisonment for a term of 6 months concurrent with count 1, to commence on 16 October 2003 and to expire on 15 April 2004. · Count 3: Imprisonment for a term of 3 months concurrent with counts 1 and 2, to commence on 16 October 2003 and to expire on 15 January 2004. 6 On the fourth count, his Honour imposed the following sentence, selecting 2 April 2003 as the commencement date (that being the date that Mr Snider entered custody, having been arrested immediately after the robbery): · Count 4: Imprisonment for a term of 3 years to commence on 2 April 2003 and to expire on 1 April 2006, with a non parole period of 18 months to commence on 2 April 2003 and expire on 1 October 2004. 7 The effective sentence, therefore, was a term of imprisonment of 3 years with a non parole period of 1 year 6 months. It will be noticed that the sentences in respect of counts 1, 2 and 3 commenced 6-1/2 months after the commencement of the sentence for the armed robbery. The sentences were concurrent. They were, therefore, entirely subsumed with the term imposed in respect of count 4. 8 The Crown says that such a sentence was manifestly inadequate. The robbery offence. 9 At approximately 10.00 am on Wednesday 2 April 2003 three masked men, one being Mr Snider, ran into a jewellery shop in Redleaf Avenue, Wahroonga. Each was armed. One had a tomahawk and another a machete. Mr Snider had a baton. They yelled at staff as they entered the shop: "Get out. Get out the back." 10 Two of the men jumped a display counter. The third remained at the counter, brandishing the machete. They then smashed the display cabinets, gathering the jewellery from within. 11 The scene attracted the attention of neighbouring shopkeepers and the public. A person in a hairdressing salon across the road rushed from the salon towards the jewellery shop, still wearing the hairdressing cape. The butcher also left his shop. The three men ran from the jewellery store, still wearing their masks. Mr Snider held the bag containing the jewellery. They made their way towards a waiting car where a fourth man was at the wheel. The person from the hairdressing salon and the butcher tripped and tackled Mr Snider as he attempted to enter the getaway vehicle. He was wrestled to the ground and held. The car sped off with the other men. The police arrived soon after. Mr Snider was still on the ground, his mask beside him, as well as the bag containing the jewellery. 12 Plainly this was a serious offence. It was suggested by counsel for Mr Snider that it was more in the nature of a "smash and grab" than a robbery. I disagree. It was a robbery, in company, whilst armed, committed during business hours in a suburban shopping centre. Substantial damage was occasioned to the shop. It would have been terrifying to those within. Jewellery valued at $74,079.00 was stolen. 13 The crime exhibited a degree of planning. There was, as mentioned, a getaway vehicle, with a fourth man. Each member of the group was armed. Each had what was described as a "theatrical face mask". Mr Snider, when arrested, also had gloves. A black bag had been used to carry the jewellery. 14 It was a matter of serious aggravation that at the time of this offence Mr Snider was subject to the three bonds imposed less than a month earlier by Nield DCJ (7 March 2003 cf 2 April 2003) (s21A(2)(j) Crimes (Sentencing Procedure) Act 1999). The breaches of bond. 15 Gibson DCJ was also called upon to sentence Mr Snider for the three offences which had been the subject of the bonds imposed by Nield DCJ on 7 March 2003 (s99 Crimes (Sentencing Procedure) Act 1999). No material whatever was tendered by the Crown in relation to these offences. Not even the sentencing remarks of Nield DCJ were placed before the sentencing Judge. That was quite unsatisfactory. No doubt the Crown had expected the matter to proceed before Nield DCJ who, on the day, was not in a position to deal with it. However, that does not excuse the failure of the Crown to place before the sentencing Judge appropriate material to enable him to determine what happened. Had the matter proceeded before Nield DCJ, it would have been necessary to have reminded his Honour of the circumstances in which he imposed the bonds. On the revocation of a bond, issues may arise (although not in this case) as to the manner in which the sentence of imprisonment is to be served (s99(2) Crimes (Sentencing Procedure) Act). In the context of this case, his Honour was obliged to sentence on four counts. He was required to consider the issue of totality, which included the question of accumulation. The facts were relevant to these issues. There is also a question of record. The factual basis upon which the sentencing Judge proceeds should be a matter of record to enable, amongst other things, appellate review, should that become necessary. 16 Here, the absence of such material makes appellate review difficult by reason of s12 Criminal Appeal Act 1912. The only material before his Honour, and before this Court, which provides a hint as to the criminality involved in counts 1, 2 and 3, are first, the dates of the offences (21 November 2001 and 6 March 2002) and secondly, the description of the offences provided by the relevant sections of the Crimes Act which were breached. The subjective case. 17 Mr Snider was born on 18 February 1983. He was therefore 20 years old at the time of the robbery offence. He is the only child of a mother of "Greek heritage" and an aboriginal father. The relationship between his parents was troubled. They separated when he was very young because his father was violent towards him. His maternal grandparents have played a significant role in his upbringing. 18 Mr Snider's schooling was disrupted, however, when his mother took him to Jamaica on two occasions, each for six months. The first occasion was during Year 6 and the second during Year 7. He found it difficult to readapt to school life. He also clashed with his mother. He began truanting. For a time he stayed with his mother's sister on the Central Coast. At one point he moved to Cairns to be with his father. 19 Upon Mr Snider's return to Sydney he lived with friends. He left school at the age of 14 years. He was able to read and write, although poor in mathematics. 20 Mr Snider was introduced to drugs at an early age. He smoked cannabis from the age of 11 years, began drinking at the age of 15 years, and smoked heroin. By the age of 17 years he was injecting heroin. He has not worked except for short periods in odd jobs. At the time of his arrest he was unemployed. He has a criminal record, both in Queensland (where he had spent time with his grandparents) and in New South Wales. On 13 December 2000 he was sentenced in Brisbane to a period of 18 months probation for having assaulted a police officer and stealing. On 5 March 2001 he was charged with a series of break and enter offences and a breach of the probation order. As a result he was required to undertake 200 hours of community service. 21 The offences which were the subject of the bonds were committed on 21 November 2001 (stealing from the person) and 6 March 2002 (aggravated break enter and steal and common assault). On 14 October 2002 Mr Snider entered The Glen Drug Rehabilitation Centre. On 4 December 2002, before the completion of that course, he was expelled. He was in breach of the requirements of that centre. He was obliged, by the terms of a probation order, to then report to the Probation and Parole Service and submit to their supervision. He failed to do so. 22 Having been sentenced on 7 March 2003 by Nield DCJ, and the sentences having been suspended upon his entering bonds (s12 Crimes (Sentencing Procedure) Act 1999), Mr Snider sought permission to go to Queensland. He wanted to live with his maternal grandparents. He apparently recognised that his associates in Sydney were a significant part of his drug problem. Permission was given to travel to Queensland, provided he reported to the Queensland Probation and Parole Service. However, he failed to do so. Instead he returned to Sydney and, within a short time, less than a month, committed the armed robbery on 2 April 2003, the subject of count 4. The sentencing remarks. 23 Necessarily, the remarks on sentence by Gibson DCJ, in respect of counts 1, 2 and 3, were extremely brief. His Honour said this: (p 1) "In relation to the section 12 bonds of aggravated break and enter and stealing from the person I find that the breach in each case is substantial and I revoke the suspension of the sentence and order that in relation to the count of aggravated break and enter the sentence of 18 months will run from 16 October 2003 and will be fixed and will expire on 15 April 2003. The sentence of stealing from the person commenced today, 16 October 2003 and will expire on 15 April 2004." 24 His Honour then described the circumstances in which the robbery occurred. He recognised that it was a very serious offence (p3) and that deterrence was important (p4). He acknowledged that he must impose a custodial sentence (p4). Having referred to the respondent's background, his difficulty with drugs and his youth, his Honour said that he would "try and give him an opportunity". He added: (p4) "... He had an opportunity in relation to the suspended sentence. He did not take it. I hope he takes advantage of this, it will be his last real opportunity , because otherwise he will just keep coming back and coming back for more serious offences and finish up in much more serious trouble than he is now. So in relation to the charge of armed robbery I find special circumstances in his age and his prospects of rehabilitation and I sentence him to a term of 3 years imprisonment." (emphasis added) 25 The transcript then records a discussion with the parties concerning the commencement date and the need to sentence in respect of the breaches of bond (counts 1, 2 and 3). His Honour determined that the sentence for armed robbery should date from the time Mr Snider entered custody (2 April 2003). The sentences in respect of counts 1, 2 and 3 should date from 16 October 2003 (the date of sentencing), and be concurrent with the term imposed in respect of the robbery. Complaints by the Crown. 26 There are four grounds of appeal, namely: · Ground 1: The sentences imposed were manifestly inadequate. · Ground 2: His Honour erred in that he failed to apply the guideline judgment of R v Henry or give reasons why it was not applicable. · Ground 3: His Honour gave insufficient consideration to the fact that the respondent committed the robbery offence whilst he was subject to a bond. · Ground 4: His Honour failed to correctly apply Pearce v The Queen. 27 It is convenient to consider the first three grounds together, focusing simply upon the robbery offence and the guideline judgment in R v Henry (1999) 46 NSWLR 346. I will, for the moment, leave to one side counts 1, 2 and 3. Was there error in respect of the robbery offence? 28 In the guideline judgment R v Henry, Spigelman CJ (with whom Wood CJ at CL, Newman and Simpson JJ agreed, Hulme J dissenting) identified a category of case which was sufficiently common to determine a guideline. The offender within that category conformed to the following profile: (at 380) "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." 29 The Chief Justice then said this: (at 380) "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." 30 Aggravating and mitigating factors will justify a sentence above or below the range. It must be recognised, moreover, that there will be variation between such offences arising from their particular facts. Spigelman CJ said this: (at 381) "170. In addition to factors which may arise in any case, for example, youth, offender's criminal record, co-operation 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)." 31 Drug addiction, as such, is not a mitigating factor, although it may be relevant in various ways (see especially, Wood CJ at CL at 397/8). 32 Here, his Honour, in his remarks, did not advert to R v Henry. It cannot be doubted, however, that he was well aware of that decision. Indeed, in the course of argument, in the context of the guideline judgement, the following exchange took place with counsel then appearing for Mr Snider: (T4) "HIS HONOUR: Why would the guideline judgment in Henry apply to it? JEFFERY: Because it's a robbery in company. HIS HONOUR: Yes, a young man with no prior convictions. JEFFERY: Well I'm not saying that but I'm saying that's the starting point. HIS HONOUR: Well no the starting point is a young man with no prior convictions. That's not what we've got." 33 His Honour's comment rather suggested that he was, at that stage, contemplating a sentence in excess of that suggested by the guideline. However, he imposed a sentence which was less, namely a term of 3 years imprisonment with a non parole period of 1-1/2 years. In his remarks on sentence there was no discussion of the guideline, nor identification of those matters which suggested that an adjustment downwards was appropriate. In R v Ceissman (2001) 119 A Crim R 535, Wood CJ at CL said this: (p 537 paras 13-15) "It is true that guideline judgments are not meant to be applied rigidly in every case or to lay down binding precedent from which there is never to be a departure. They are, however, intended to be indicative of the range of sentence that was regarded as appropriate by this Court following its considered examination of the authorities and of sentencing principle. See Jurisic (1998) 45 NSWLR 209 at 220, and Chua [2001] NSWCCA 50 at par 19 per Heydon J. While a sentencing Judge does retain a discretion within the guidelines, including a discretion to depart from them, if the particular circumstances of the case justify (see Wong and Leung per Spigelman CJ at 555-556), this Court does expect the reasoning for such a departure to be articulated with some precision. It also expects such a departure to be well based in fact and to pay respect to proper sentencing principles. It is not to be overlooked that an important purpose of a guideline judgment is to promote greater consistency in sentencing, and that an equally important purpose is to promote the general element of deterrence; See Henry (199) 46 NSWLR 346 at 359, and 386 to 387; and see also Cadd (1997) 94 A Crim R 466 at 511." 34 Here, a number of matters suggested the guideline required adjustment. Some favoured Mr Snider; others were adverse. It was important that they should be identified so that the offender (and, in the event of an appeal, an appellate Court) could understand why a particular sentence had been imposed. 35 The guideline presupposed little or no criminal history. Mr Snider had a criminal history involving a number of offences, some quite serious. The offences had been committed over a number of years. Nonetheless, he had not served a term of imprisonment, although he had been ordered to perform community service. He was also subject to sentences which had been suspended upon his entering bonds. His position was worse than that contemplated by the guideline. 36 Mr Snider, when he committed the offence, had a weapon, namely a baton. A baton is perhaps less forbidding than a knife. On the other hand, it was a joint enterprise. His companions had, respectively, a tomahawk and a machete. 37 The offence exhibited more planning than most. As mentioned, each offender had a theatrical mask. Mr Snider had gloves and a bag for the jewellery. There was a getaway car parked outside. 38 The guideline contemplated the taking of a small amount. Here a large amount was stolen ($74,000.00). 39 The plea of guilty contemplated in the guideline was a late plea (R v Thomson & Houlton (1999-2000) 49 NSWLR 383 at 418 para 161). A discount of 10% would ordinarily be given for such a plea. Here, there was an early plea. The offence was committed on 2 April 2003. Mr Snider pleaded guilty at the Hornsby Local Court on 7 July 2003. A discount of 25% would ordinarily be given in such circumstances. 40 There were two additional matters, however, which were significant matters of aggravation. The first was that Mr Snider was in company, and the second that he committed the offences at a time when he was subject to three bonds. The following comment by Street CJ in R v Richards [1981] 2 NSWLR 464, although made in the context of a person who offends whilst on bail, are apposite. Mr Snider, having entered the bonds, enjoyed conditional liberty. The Chief Justice said this: (at 465) "... The community must be protected as far as possible from further criminal activities by persons who take advantage of their liberty on bail to commit further crimes. The only means open to the criminal courts to seek to provide this protection is to pass severely deterrent sentences upon those who thus abuse their freedom on bail. This will ordinarily involve a significant accumulation of the sentence for any subsequent offences on top of the sentence proper to be passed for the original offence. It must be made abundantly plain that persons at large on bail cannot expect to commit further crimes 'for free'. On the contrary, they will receive salutary penalties for the very reason that they have abused their freedom on bail by taking the opportunity to commit further crimes." 41 The balance, in terms of the guideline, suggested a worse case than that contemplated in the guideline. Making due allowance for the subjective case, one would certainly not have expected a sentence lower than the suggested range (which was four to five years). Even without resort to the additional offences (counts 1 to 3), I believe that the sentence imposed was manifestly inadequate. Error has been demonstrated. Was there error in respect of the breaches of the bond? 42 The Crown also complained that his Honour failed to follow Pearce v The Queen (1998) 194 CLR 610 in that it was necessary for his Honour to fix an appropriate sentence in respect of each offence, and then determine whether the sentences should be served concurrently or cumulatively. In making that determination, his Honour should have ensured that the total sentence reflected the criminality in respect to the various offences before the Court. 43 The Crown drew attention to R v Wheeler [2000] NSWCCA 34 where Sully J said this: (para 37) "It needs to be clearly understood by all concerned that a person who commits a deliberate series of discrete offences - he must not be left with the idea that by intoning references to the principle of totality as though it were some magic mantra, he can escape effective punishment for the offences which follow successively one upon another throughout the whole course of a studied and deliberate course of criminal behaviour." 44 According to the Crown there were at least two, if not three, discrete episodes of criminality. There was the offence of stealing from a person committed on 21 November 2001, the subject of one of the bonds; the offence of aggravated break enter and steal with intent, and the offence of common assault committed on 6 March 2002, the subject of two further bonds. In addition, there was the armed robbery on 2 April 2003. The term for the robbery began 6-1/2 months before the terms imposed for the other offences, which were then concurrent with the remainder of the term for the robbery. The Crown submitted that there had been an inadequate accumulation. The total sentence did not reflect the criminality involved. 45 Mr Craigie SC (appearing for Mr Snider) suggested that there was an insuperable difficulty in the Crown maintaining such an argument. In written submissions, counsel said this: " ... s12 of the Criminal Appeal Act 1912 precludes introduction on appeal of the evidence relating to the suspended sentences. It is consequently impossible to effectively review and determine whether or not it would have been open to his Honour to resolve questions of totality, concurrence or accumulation, in the manner adopted by his Honour. The Crown's observation as to s12 entails recognition of an impassable obstacle to appellate review of those factors that would ordinarily bear upon the matters favouring concurrence as against those favouring accumulation, as considered in R v Hammoud [2000] NSWCCA 540 per Simpson J." 46 The submission of counsel is directed to the proviso to s12(1) of the Criminal Appeal Act 1912. That section is in these terms: " Supplemental powers of the court 12(1) The court may, if it thinks it necessary or expedient in the interests of justice: (a) order the production of any document, exhibit, or other thing connected with the proceedings; and (b) order any persons who would have been compellable witnesses at the trial to attend and be examined before the court, whether they were or were not called at the trial, or order any such persons to be examined before any judge of the court or before any officer of the court or other person appointed by the court for the purpose, and admit any deposition so taken as evidence; and (c) receive the evidence, if tendered, of any witness (including the appellant) who is a competent, but not a compellable witness; and (d) where any question arising on the appeal involves prolonged examination of documents or accounts, or any scientific or local investigation, which cannot, in the opinion of the court, be conveniently conducted before the court, the court or any judge thereof may refer the question for inquiry and report to a commissioner appointed by the court, and act upon the report of any such commissioner so far as the court thinks fit; and (e) appoint any person with special expert knowledge to act as assessor to the court in any case in which it appears to the court that such special knowledge is required for the determination of the case; and exercise in relation to the proceedings of the court any other powers which may for the time being be exercised by the Supreme Court on appeals or applications in civil matters, and issue any warrant or other process necessary for enforcing the orders or sentences of the court: Provided that in no case shall any sentence be increased by reason of, or in consideration of any evidence that was not given at the trial. " (emphasis added) 47 The Crown contended that, even though the sentencing remarks of Nield DCJ had not been placed before Gibson DCJ when he sentenced for the breach of the various bonds, the Court could have regard to those remarks in determining whether there was error. They are curial documents available to the Court upon a basis analogous to that which permits a consideration of reported authority, statistics and other extrinsic material (R v Henry (1999) 46 NSWLR 346, per Spigelman CJ at 366 ff (para 84; paras 86 to 110); cf R v J (1992) 59 SASR 145, per Olsson J at 154-155). Counsel for Mr Snider disputed such a characterisation. The sentencing remarks were not analogous to statistics or case law. It would, in his submission, be quite unfair for the Court to resort to such remarks in determining whether there was error, and whether it should intervene. To do so would permit the Crown, on appeal, to make a case which it chose not to make before the sentencing Judge. 48 It is strictly unnecessary to resolve this issue. The conclusion already reached, in the context of the robbery (count 4) (supra para 41), that the sentence of that count was manifestly inadequate, and that there was error, makes it unnecessary. As mentioned, the sentences imposed in respect of the breaches of bond (counts 1, 2 and 3) were entirely subsumed within the sentence imposed on count 4, the robbery. Approaching the matter guided, as was his Honour, only by the dates of the offending behaviour and the nature of each offence, it can be said, nonetheless, that the total sentence in respect of all counts (1 to 4) was manifestly inadequate. In other words, such an approach reinforces the conclusion already stated in respect of count 4. There is therefore a need to resentence. 49 Having said that, in my view the remarks on sentence are a judgment of the Court. They are not "evidence" within the meaning of the proviso to s12(1). The Court may have regard to them in determining an appeal. The sentencing remarks of Nield DCJ. 50 For the same reason, I believe, on the issue of resentence, the Court may have regard to the remarks on sentence. In that context, in the course of argument, Mr Craigie SC did not suggest otherwise. 51 Dealing with the first offence, chronologically, that is count 2, steal from a person (which was committed on 21 Novmber 2001), Nield DCJ said this: "Shortly stated what the offender did was this; he confronted the complainant; he demanded that he give him his money; he took his money, about four hundred dollars; he threatened the complainant not to report the offence to police. Happily, the complainant did not take the offender's threat to heart and he reported the offence to police and in due course the offender was arrested for that offence." 52 The remarks do not recount the facts in relation to counts 1 (aggravated break enter and steal with intent) and 3 (common assault), both of which were committed on 2 March 2002. Rather, his Honour simply said that the facts were set out in a document (marked Exhibit G) and certain statements. His Honour did, however, say this: (p3) "Insofar as the offences are concerned, both those of 21 September 2001 and 2 March 2002, they are serious, but they fall towards the bottom of the range of seriousness for those offences." 53 His Honour then referred to the subjective case, to Mr Snider's deprived background, the disruption to his education, and to his criminal history. He took account of his age, remarking that "he is very young and perhaps less worldly-wise than his chronological years". He then said this: (p5) "It seems to me, as I indicated last year and I indicate now, the offender should be given a last chance to show not only to his mother, his grandparents and the community, but also the Court, that he has turned over a new page in his book of life. For this reason, although I intend to impose sentences of imprisonment upon him for the offences to which he has pleaded guilty, I will suspend execution of those sentences for the periods of them." (emphasis added) Resentence. 54 The principles which should guide this Court, when resentencing after a successful Crown appeal, are well established (R v Allpass (1994) 72 A Crim R 561 at 562). The fact of double jeopardy is recognised. The sentence substituted should be conservative, that is, at the lower end of the range (Dinsdale v The Queen (2000) 202 CLR 321 at 341). 55 It is appropriate, as submitted by the Crown, that there should be some accumulation of the sentences in respect of counts 1, 2 and 3, on the one hand, and count 4, recognising that the crimes were quite different offences, and were committed at different times (Simpson J (Mason P agreeing) in R v Hammoud (2000) 118 A Crim R 66 at 67; R v AEM [2002] NSWCCA 58 at paras 65, 87-91 and 179). 56 I would, for the same reasons as Gibson DCJ, find special circumstances. The respondent is a young man. He has had an association with drugs which suggests that he would benefit from a longer than usual period of supervision. 57 Count 4 (armed robbery) was committed on 2 April 2003. It therefore occurred after the introduction of the amending Act altering s44 and s45 of the Crimes (Sentencing Procedure) Act (which operated in respect of offences committed after 1 February 2003). The amending Act introduced in respect of certain specified offences (s54A) minimum parole periods. However, the offence in count 4 was not one of the specified offences. 58 The attention of Gibson DCJ was not drawn to this change in legislation. His Honour sentenced according to the previous regime; that is by determining the term of imprisonment and then setting a non parole period. That was an error (R v KBM [2004] NSWCCA 123 paras 27-30). However, it was not an issue addressed by either the Crown or the respondent on this appeal. 59 Taking account of the objective and subjective matters, and recognising that this was a matter in which there was an early plea, I would suggest a sentence which involves a total term of 5-1/2 years with a non parole period of 3 years. Orders. 60 The orders I propose are as follows: 1. That the appeal be allowed. 2. That the sentence of Gibson DCJ on 16 October 2003 be quashed. 3. That, in lieu thereof, the respondent be sentenced as follows: · Count 1: A fixed term of imprisonment of 18 months to commence on 2 April 2003 and to expire on 1 October 2004. · Count 2: A concurrent fixed term of imprisonment of 6 months to commence on 2 April 2003 and to expire on 1 October 2003. · Count 3: A concurrent fixed term of imprisonment of 3 months to commence on 2 April 2003 and to expire on 1 July 2003. · Count 4: A term of imprisonment which is to consist of a non parole period of 2 years and a total term of 4-1/2 years, each to date from 2 April 2004, with the non parole period to expire on 1 April 2006, upon which date the respondent will be eligible for release on parole. ************ Last Modified: 05/12/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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