Reported Decision : 155 A Crim R 202 New South Wales Court of Criminal Appeal CITATION: R v Amohanga; R v Rai [2005] NSWCCA 249 HEARING DATE(S): 6 May 2005 JUDGMENT DATE: 22 July 2005 JUDGMENT OF: Grove J at 1; Hulme J at 2; Simpson J at 75; DECISION: Amohanga - (i) Crown appeal allowed, sentence quashed; (ii) in lieu thereof Amohanga sentenced to imprisonment for 12 years with a non-parole period of eight years and six months, the sentence to commence on 17 May 2003, and to expire on 16 May 2015; the non-parole period to expire on 16 November 2011; Rai - In respect of the s98 offence: (i) Crown appeal allowed, sentence quashed; (ii) in lieu thereof, Rai sentenced to imprisonment for 11 years with a non-parole period of eight years, the sentence to commence on 28 May 2004 and expire on 27 May 2015; the non-parole period to expire on 27 May 2012. CATCHWORDS: Crown appeal against inadequacy of sentence - joint offence of robbery whilst armed with an offensive weapon, with the infliction of grievous bodily harm - aggravating features - pleas of guilty - Rai: plea of guilty to unrelated charge of robbery - Amohanga: prior sentences for detaining for advantage and robbery in company - prior criminal records - whether sentences imposed were manifestly inadequate - nature of error in sentencing - cumulative and concurrent sentencing - condition under which Amohanga at liberty at the time of the offence - whether offences in category of worst of their kind - prospects of rehabilitation of offenders - proportion between non-parole period and head sentence Crimes Act 1900, s94, s98 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s21A, s44 R v Duncan and Perre [2004] NSWCCA 431 R v El-Andouri [ 2004] NSWCCA 178 R v Fidow [2004] NSWCCA 172 R v Kalache [2000] NSWCCA 2 R v Kirkland [2005] NSWCCA 130 CASES CITED: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383 R v Wall [2002] NSWCCA 42 Uasi v R (1999) NSWCCA 306 Veen v The Queen (No 2) (1988) 164 CLR 465 Crown - Appellant PARTIES: Nico Amohanga - Respondent Michael Rai - Respondent FILE NUMBER(S): CCA 2005/8; 2005/5 D Woodburne - Crown COUNSEL: C Craigie SC - Respondent Nico Amohanga M Johnston - Respondent Michael Rai S Kavanagh - Crown SOLICITORS: Brenda Duchen - Respondent Nico Amohanga S O'Connor - Respondent Michael Rai LOWER COURT JURISDICTION: Compensation Court 02/21/3492 LOWER COURT FILE NUMBER(S): 03/21/3013 LOWER COURT JUDICIAL OFFICER: Maguire DCJ IN THE COURT OF CRIMINAL APPEAL 2005/8 2005/5 GROVE J HULME J SIMPSON J Friday 22 July 2005 REGINA v Nico AMOHANGA REGINA v Michael RAI Judgment 1 GROVE J: I agree with Simpson J. 2 HULME J: These proceedings are appeals by the Crown against sentences imposed on 15 November 2004 by Judge Maguire upon the abovenamed Respondents. Amohanga was sentenced in respect of one count to the effect that "On 6 May 2001, whilst armed with an offensive instrument, viz. a tyre lever, robbing Helal Al-Hameed of a wallet and mobile phone and at the time of the robbery, inflicting grievous bodily harm upon Mr Al-Hameed". The sentence imposed was of 10 years imprisonment, including a non-parole period of 6 years, both such periods commencing on 17 May 2002. The offence is one under s98 of the Crimes Act and carries a maximum penalty of 25 years imprisonment. 3 Amohanga was arrested on 17 May 2001 and has been in custody ever since. On 28 July 2003 he had been sentenced by Judge Payne to imprisonment for 5½ years including a non-parole period of 2½ years, both such periods commencing on 17 May 2001 for an offence of, on 7 May 2001 detaining for advantage one Michael Patiniotis and to imprisonment for 5 years, including a non-parole period of 2 years and 4 months both of these periods commencing on 17 May 2002 for one count of robbery in company of Mr Patiniotis also on 7 May 2001. Taking account of both offences, the effective sentence was thus of 6 years with a non-parole period of 3 years and 4 months. 4 Thus the effect of the sentence imposed by Judge Maguire on Amohanga was to extend the non-parole period to which he was subject by 3 years and 8 months from 16 September 2004 to 16 May 2008 and to extend his full term of imprisonment by 5 years from 16 May 2007 to 16 May 2012. Looked at another way, Judge Maguire's sentence was of 10 years including a non-parole period of 6 years but one of the sentences imposed by Judge Payne was effectively abrogated and the other effectively reduced to 1 year in custody. 5 Rai was sentenced in respect of 2 charges – one identical with that in respect of which Amohanga was sentenced and the second to the effect that on 25 October 2001 he had robbed one Christian Smith of a number of mobile telephones, a number of scanners, a number of telephone re-charge cards and a sum of money. In respect of the first of these Rai was also sentenced to imprisonment for 10 years including a non-parole period of 6 years although the commencing date of those periods was 28 May 2003. In respect of the second count, Rai was sentenced to imprisonment for 8 years including a non-parole period of 6 years, both such periods to commence on 28 May 2002. This second offence arises pursuant to s94 of the Crimes Act and carries a maximum penalty of 14 years imprisonment. 6 The Statement of Facts relating to the armed robbery offence records that Rai was arrested on 5 June 2001. His custodial history shows he was released on bail on 13 June 2001. The Statement of Facts relating to the robbery simpliciter offence records his arrest again on 28 May 2002 although that "arrest" would seem to have been in respect of the particular charge. Other documents show he was in custody from 6 May 2002 and has been ever since. 7 The circumstances of the offence to which each was a party, either undisputed or as found by Judge Maguire included the following. The victim was lured to a flat under the pretext that a prostitute was going to have sex with him. There he was attacked by the Respondents and beaten mercilessly in the course of criminal acts perpetrated by them in pursuance of a common purpose. Rai was armed with a tyre lever and Amohanger with an iron bar about 4 feet long. (Despite the terms of the charge against Amohanga, this was common ground.) Both offenders inflicted blows and their motive was robbery although if the victim had taken a shower as he was invited to do, it might well have been simply theft. Photographs of the scene showed blood pooled on a mattress on the floor and sprayed on the floor and walls. The victim was beaten unconscious and left at the scene curled up on the ground, bleeding. By chance he was found some time later by a third party. In a finding which was not challenged, Maguire DCJ found that the offence involved gratuitous cruelty. 8 The victim's injuries were multiple and included scalp lacerations (with brain exposed through them), a left occipital parietal comminuted skull facture, fractured left zycoma and a left extradural haematoma. In the words of Amohanga, "We … cracked his head like a watermelon". The victim suffered a traumatic brain injury in the extremely severe category. 9 He underwent a craniotomy and later a cranioplasty. He spent time in a Brain Injury Rehabilitation Unit and required assistance to stand and mobilise and supervision when swallowing. He has lost his ability to communicate in English. He has been left seriously and permanently impaired, both physically and mentally. A report of Dr McCarthy, a rehabilitation specialist, records that the impairment is of social and intellectual functions and the victim will require supported living and assistance with basic care and community tasks for the rest of his life and will remain unfit for work either in the open market or supported. His condition has been exacerbated by an organic psychotic depression and he has suffered post-traumatic epilepsy, albeit this is managed well with medication. His wife and children left him in October 2002 and the clear inference is that this was the result of his injury. 10 The circumstances of the robbery the subject of the second charge against Rai may be summarised as follows:- At about 7pm on Thursday 25 October 2001, Rai went to the Tandy Electronics Store at Seven Hills Shopping Centre where he pushed the sales assistant Mr Semerci into a storeroom where the manager Mr Smith was. Rai ordered the men down to the floor and threatened them that if they moved a guy outside with a gun would shoot them. Rai tore the phone cord from the wall and demanded telephones and cash. Mr Smith was directed to open the safe from which Rai stole 12 mobile telephones and 38 recharge cards. Rai said to Mr Smith, "Don't fuck with me or I'll have you killed. Where's all the money?" Mr Smith was directed to open the till, from which Rai stole $915. Mr Smith was directed to open a display cabinet from which Rai stole 3 radio scanners. Once more Rai threatened them. "You guys stay here. If I see you use the phone or try to go out back I'lll kill you". Rai made off with property and cash valued at $9,405.35. Mr Semerci remembered that Rai had attended the store previously with a person whose identity was known to him. Police were able to ascertain that Rai was an associate of the person nominated by Mr Semerci. Both Mr Smith and Mr Semerci identified Rai from a photo identification array. 11 This offence occurred after Rai had been arrested in respect of the s98 offence and admitted to bail. 12 Amohanga was born on 25 September 1974. He seems to have been first convicted In February 1991 and between then and his appearance before Judge Payne, sentenced on some 14 other occasions for offences largely of dishonesty and including robbery whilst armed, robbery simpliciter, robbery in company, armed robbery and 2 instances of assault occasioning actual bodily harm. Prior to his first period of full time custody, imposed by this Court in April 1995 on a Crown Appeal, he had been made the subject of control orders on 2 occasions, placed on probation once, given recognisances on 2 occasions and fined. A number of these offences would seem to have led to him being in full time custody from June 1994 to June 1999. 13 Rai was born on 2 September 1981. He seems to have been first convicted in July 1998 and between then and his appearance before Judge Maguire sentenced on some 15 other occasions for offences. These included offences of dishonesty including aggravated robbery, robbery in company (2 counts), and a number of instances of assault, 5 of assault occasioning actual bodily harm, and 1 of aggravated assault with intent to rob. His first period of custody seems to have been imposed on 8 October 2003 for each of a number of offences and was one of 6 months commencing on 6 May 2002, presumably because he had been arrested at that time (possibly in consequence of the issue of numerous warrants). Prior to that time, he had been made the subject of control orders on at least 5 occasions, placed on probation 3 times, and fined. 14 In the case of Amohanga, Judge Maguire made findings as to mitigation in the following terms:- "The offender has pleaded guilty but this is of limited value in the face of the Crown case, but the utilitarian value is not insignificant. I do not see any strong prospect of rehabilitation." 15 Apart from also reciting from a Pre-Sentence and a psychologist's report, recording that he took into account certain subjective matters which his Honour did not identify, that Amohanga had a poor upbringing and had acquired his drug habit at an early age, that he should reflect in Amohanga's favour 3½ years of uncertainty between arrest and sentence, and that Amohanga would benefit from an extended period of supervision such as to justify a finding of special circumstances, his Honour made no findings favourable to this Respondent. His Honour did not quantify the discount he allowed for the Respondent's plea. 16 Putting aside an issue of whether his Honour may have undervalued Amohanga's plea, no argument was advanced in this Court suggesting that in relation to Amohanga's subjective circumstances or matters of mitigation, his Honour left out of account something to which he should have had regard. My consideration of the material which was before Judge Maguire does not suggest anything of that nature. 17 In the case of Rai, His Honour recorded that the Respondent had pleaded guilty but that there were no other signs of contrition. He incorporated the remarks concerning Amohanga which I have quoted a few paragraphs above and those relating to the early acquisition of a drug habit. His Honour also made reference to a psychiatric condition from which Rai suffered, described as probably "a chronic relapsing psychiatric illness, either an underlying paranoid schizophrenia or drug induced psychosis" but said that Rai's failure to take medication when at large deprived him of any leniency in consequence of that condition. 18 Judge Maguire said also that he should reflect in Rai's favour the more than 2½ years of uncertainty between his arrest and sentence and, without any express finding of a need for extended supervision or the existence of special circumstances said that the sentence imposed on Amohanga was appropriate in respect of the corresponding offence committed by Rai. 19 Apart from the questions of the value of the plea and whether his Honour may not have taken into account in sentencing Rai for the simple robbery offence his plea to that charge, no argument was advanced in this Court suggesting that in relation to Rai's subjective circumstances or matters of mitigation, his Honour left out of account something to which he should have had regard. Again my consideration of the material which was before Judge Maguire does not suggest error in that regard. 20 Turning to the circumstances of the Respondents, both are recidivists. Each has been before the courts sufficiently often for offences seriously impinging on the rights of others to have had either no conceivable doubt as to the wrongness of the actions they planned and executed or to demonstrate that they did not care. Undoubtedly, each has some subjective factors, to which I refer in more detail below and which, in some situations, would argue for a significant reduction in the sentence otherwise appropriate. However, once regard is had to their record and to the number of occasions when proper standards of behaviour and consequences must have been brought home to them, and to the nature of their offence, the effect to be given to these subjective factors is much attenuated. 21 What I have said is enough to demonstrate that the sentences imposed on both offenders for the offence of robbery whilst armed with an offensive weapon were manifestly inadequate both in their total terms and in their non-parole periods. In terms of objective seriousness, the offence was close to being in a worst category. The offence was committed in company. It involved the merciless beating around the head of another human being with a tyre lever or other metal bar, objects of sufficient size, weight and nature as to be likely to cause serious injury, and which in fact caused very serious and irreparable brain damage. The offence itself was accompanied by gratuitous cruelty. 22 The only circumstance of the offence which in my view takes it out of the worst category – and counsel although invited to do so, did not suggest any other - is the absence of planning of an attack of the nature that occurred. Certainly there was planning in connection with luring the victim to where he was attacked and to there steal his wallet and whatever else was available but apart from the actual use of the weapons there is no evidence of any plan or intent existing at an earlier point of time to use them. 23 In describing the objective seriousness of the offence in the terms I have, I do not ignore the fact that the amount of property stolen could, both in contemplation and in fact have been higher and the brain damage and other grievous bodily harm done to the victim could have been worse. However, as was said in Veen v The Queen (No 2) (1988) 164 CLR 465 at 478: "(T)he maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed: Ibbs v The Queen (1987) 163 CLR 447 at 451-452. That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognizably outside the worst category." 24 It was submitted the Crown did not invite Maguire DCJ to treat the offence as among the worst of its kind, and therefore it is not open to the Crown to rely on any error in that regard. I disagree. Although it seems not to have occurred in this case, judges can reasonably be expected to be conscious of matters staring them in the face and it should not be held against the Crown, or the community which the Crown represents, that their representative has not expressly drawn a judge's attention to the obvious. In R v Kalache [2000] NSWCCA 2 at [213] et seq., I considered at a little length a number of authorities dealing with the circumstance of the Crown seeking on appeal to take a stance either simply different from that it had taken below or indeed in some cases contrary to a stance it had expressly conceded below. The tenor of those cases is to the effect that, while relevant to the exercise of this Court's discretion, a course pursued by the Crown at first instance is not determinative of the course it may take on appeal, and that there is a community interest involved. Nothing in those authorities leads me to the view that in a matter as obvious as the nature of the offence here, this Court should mitigate its attitude towards the Respondents upon the basis that the Crown has not contended in terms that the offence under consideration is, or approaches, a "worst case". 25 In any event the factual basis for the submission is lacking here. Included within what the Crown did submit in the Court below was the following:- "(This offence) carries 25 years imprisonment, so obviously the legislature says it is one of the most serious offences on the books and your Honour, in my submission, this offence is one of those most serious within that category… It seems to have been some gratuitous violence, out of control brutality with these devastating weapons upon this man, who had been lured to the flat for the purposes of having sex with a prostitute. Your Honour, it is within the most serious category, in my submission." 26 I should perhaps add that it in support of the submission that the Crown should not now be allowed to seek assessment of the matter as a worst case, the Court was referred to an observation of Hunt AJA in R v Kirkland [2005] NSWCCA 130 at [23] where, before referring to the passage from Veen v The Queen (No 2) which I have quoted above, his Honour observed that in the case there under appeal: "The use of the phrase "worst of its type" was unfortunate, if only because it may be misunderstood, as it has been misunderstood by the applicant in his submissions. That phrase, or its more usual formulation of a case falling within the worst category of cases, is usually adopted only where consideration is being given to the imposition of the maximum sentence." 27 In oral submissions, counsel went so far as to submit that "worst case" is a term of art. I have no difficulty in accepting the accuracy of Hunt AJA's remarks but, in this day when technicalities are frowned upon, the law does not adopt the approach that mere failure to use one particular ordinary English word or expression rather than another of similar meaning is fatal to an argument. 28 It is appropriate that I record that I agree with Simpson J that manifest inadequacy of sentence was not the only error which affected the sentencing of the Respondents. Indeed it was common ground between counsel for the Respondents and the Crown Prosecutor who appeared on this appeal that the sentencing proceedings were attended by a number of errors. Other errors by the sentencing judge which I am satisfied occurred included:- Misapprehension that the second charge against Rai was of armed robbery (carrying a maximum penalty of 20 years imprisonment); Taking into account as aggravating features some factors, e.g. the use of violence and weapons, which were elements of the offence charged, contrary to s21A(2) of the Crimes (Sentencing Procedure) Act - R v Wickham [2004] NSWCCA 193 at [22], Taking into account as an aggravating feature the fact that the Respondents had a record of previous convictions, this being precluded by s21A(4) of that Act, despite the misleading reference to the topic in s21A (2)(d) – see R v Wickham at [24], and Regarding the strength of the Crown case as relevant to the utilitarian value of the Respondents' pleas – see R v Thomson and Houlton (2000) 49 NSWLR 383 at [137]. 29 I am also satisfied that Maguire DCJ erred in failing to properly accumulate the sentence he imposed on Amohanga with that previously imposed by Judge Payne. The effect of those earlier sentences, which I have set out in the second paragraph of my reasons, was that Amohanga had been ordered to serve non-parole periods totalling 3 years and 4 months and full terms totalling 6 years. Judge Maguire's sentence was for a non-parole period of 6 years and a full term of 10 years. Clearly the principle of totality meant that, if the sentence had not itself been reduced on totality grounds – and there is no suggestion it had - the sentence imposed by Judge Maguire should not simply have been added to one of the periods ordered by Judge Payne but by comparison with the non-parole periods of 3 years and 4 months and 6 years, concurrency to the extent of 2 years and 4 months could not be justified. Similarly, compared with the original 6 years or the 10 years imposed by Judge Maguire, concurrency of the head sentences to the extent of 5 years is manifestly erroneous. 30 I should however add this. It was submitted on behalf of Amohanga that the Crown's complaint in this regard must be attenuated because the Crown did not place before Judge Maguire the remarks, as distinct from the terms of the sentences imposed by Judge Payne. That argument may well be correct although the nature of the offences appeared on Amohanga's Antecedent Report and the Crown did tell Judge Maguire, inviting objection if there was any error – and there was none - that the offence considered by Judge Payne was committed on the day after the offence on Mr Al-Hameed and at another squat to that where the offence on Mr Al-Hameed occurred. However, I have reached the conclusion expressed without the need to consider Judge Payne's remarks. 31 I am also of the view that if the appropriate head sentences for Rai's offences were as Judge Maguire ordered, i.e. 8 years and 10 years, concurrency to the extent of 7 years was also manifestly excessive and wrong. 32 The Crown also submitted that Judge Maguire erred in not recognising that Amohanga was on conditional liberty (or worse) on 6 May 2001 when he committed the offence Judge Maguire was considering. Again it was submitted by counsel for that Respondent that this complaint, even if otherwise valid, could not or should not be taken into account by this Court adversely to Amohanga because the Crown had not expressly adverted to the matter before Judge Maguire. 33 The proposition at the end of the immediately preceding sentence is correct. The transcript of the Respondents' sentencing proceedings is before this Court and nowhere does the Crown Prosecutor in his or her remarks direct attention to the topic. On the other hand, Amohanga's Antecedent Report which was before Judge Maguire showed that Amohanga was sentenced to imprisonment on 5 December 1995 to imprisonment on 3 charges. One was armed robbery and the sentence imposed was a minimum term of 3 years from 26 June 1996, with an additional term of 2 years. Also before his Honour was a Pre-Sentence Report which, in the second paragraph contained the statements:- "Amohanga has been known to this Service since 1992 … . The offender's response to supervision at that time was poor … . In 1995 Amohanga was sentenced to several custodial sentences, with a release date of June 1999. That Parole Order was revoked in January 2001 as the offender failed to report to this Service as directed and failed to inform this Service of his address." 34 These 2 documents, the Antecedent Report and the Pre-Sentence Report, made Amohanga's situation sufficiently clear that Judge Maguire should have had regard to it. Again, I do not regard it as incumbent upon a Crown Prosecutor to take a sentencing judge, line by line, through the content of documents before him and as obviously relevant as those 2 were. Not long ago the Crown almost never addressed on penalty at all. That situation has changed but I know of neither authority nor principle which has carried the change to the extent that the Crown is now bound to expressly mention everything which argues for a heavier rather than a lighter sentence, at pain of being precluded from relying on it if a judge imposes a manifestly inadequate sentence or makes some other error of law. 35 The information in the Pre-Sentence Report shows that while Amohanga had been granted conditional liberty by way of parole, his liberty after January 2001 was not, strictly speaking, conditional but illicit. However, as that liberty had been obtained conditionally, it does not seem to me to aid the Respondent that the condition had been revoked or to mean that a court apprised of the situation should not treat his criminality as aggravated by reason of the fact that it occurred in breach of the conditions – as surely occurred - on which his liberty had been granted. In Uasi v R (1999) NSWCCA 306 Sully and Barr JJ, albeit as a 2 judge bench, seem to have taken a not dissimilar approach, although it must be recognised that Uasi was an escapee. 36 For completeness I would add that, in the remarks of Judge Payne which were before this Court but not before Judge Maguire, it is asserted that parole was revoked on 6 February 2001, but that no warrant had been executed prior to the matter being before Judge Payne. Also stated during the course of those remarks is that Amohanga had bail revoked on 15 March 2001. However, in light of the conclusion expressed in the immediately preceding paragraphs, I find it unnecessary to consider these matters further. 37 Questions also arise whether Maguire DCJ, in sentencing Rai for the simple robbery offence, afforded him any discount for his plea to that matter or, took account of the aggravating factor that that offence was committed while on bail for the more serious offence. His Honour's remarks contain no reference to the second of these matters and while there is reference to Rai having pleaded guilty to both of the charges for which he stood for sentence, the immediately following remarks of Maguire DCJ seem confined to the more serious offence. The transcript of proceedings before his Honour records the Crown Prosecutor pointing out to his Honour that Rai's second offence was committed while on bail. Because I am of the view that Rai should be re-sentenced, I need not pursue the question of whether Maguire DCJ erred in respect of these matters. 38 Against the possibility that this Court should find material error in the proceedings before Maguire DCJ, there were tendered or read in this Court a number of documents as relevant to the exercise of this Court's discretion whether to interfere and to the extent of any fresh sentence which might be imposed. On Amohanga's behalf there were affidavits from himself. On Rai's behalf there were affidavits from himself and his solicitor. In response the Crown relied on an affidavit from Mr Golledge, the Acting Governor of the Metropolitan Special Programs Centre. None of the deponents was cross-examined. 39 Amohanga deposed to having spent the first 2 years of his incarceration in protective custody as the result of information given about him by a woman involved in his offence. He said that for some time he had been in full time employment and was being assessed for eligibility for the violent offenders training program. He asserted he was extremely remorseful for his offending and felt terrible about what he did to "some of the victims". He said he had been drug free for 8 months and had not used heroin or cocaine for around 3 years. He said he realised that all his problems arose from the use of heroin and cocaine, that he had become very interested in the Bible which had given him direction and he had given up smoking. 40 Among the matters deposed to by Mr Golledge was that on 8 February 2005 Amohanga was charged with, and punished for, returning a urine sample positive for cannabis metabolite. This is clearly with in the 8 month period when Amohanga said that he was drug free. 41 Rai deposed to having commenced an education course in April directed towards obtaining his year 10 certificate, saying he planned to do as many courses as he could with a view to obtaining employment on his release and thereafter pursue a normal life. Rai and Miss Schneider gave evidence that he had seen a psychologist in custody and that he had been advised to first undertake an anger management program before further psychological intervention. Miss Schneider deposed to the psychologist having told her that her impression was that Rai was receptive to psychological intervention and has a desire to make changes to himself. 42 All parties referred to the principles which govern Crown Appeals. They are well known and it is unnecessary for me to recount them. Despite the considerations which argue against this Court allowing the appeal, in my view it should exercise its discretion and do so in this case. The principal factor which inclines me to this view is the extent of the inadequacy both in the sentences imposed by Judge Maguire and in the overall result, an inadequacy which clearly demonstrates manifest error. The number of other errors made by his Honour leads also to the view that justice was not done to both the Crown and Respondents in his Honour's sentencing of the latter. 43 In approaching the matter, I acknowledge that the sentence which this Court imposes when allowing a Crown appeal should be no higher than the least which could properly have been imposed at first instance and in the exercise of the Court's discretion may well be lower. But before turning to the determination of the sentence or sentences that should be imposed there are some other matters to which I should refer. 44 Firstly, this Court should not take into account adversely to the Respondent Amohanga the remarks on sentence of Judge Payne. The Crown could have, but did not, place these before Judge Maguire. It is however proper to take account, so far as it may be relevant, of the brief summary which the Crown Prosecutor before Judge Maguire provided and which I have referred to above to the effect that the offence considered by Judge Payne was committed on the day after the offence on Mr Al-Hameed and at another squat to that where the offence on Mr Al-Hameed occurred. 45 Secondly, although he did not quantify these, Judge Maguire regarded both Respondents as entitled to a discount for their pleas and for the uncertainty to which they were subjected due to delay in their trial. I have reservations about the latter because I am not satisfied that the Respondents did not contribute to at least some of the delay but, given the discretion which exists in Crown appeals, I will adopt the same approach. Maguire DCJ regarded the utilitarian value of the pleas as "not insignificant", and while in the circumstances I would not be disposed to grant a discount as high as 25% for the pleas alone, I have concluded that, in the context of a Crown Appeal, something over 25% is not inappropriate to encompass both pleas and delay. 46 Thirdly, mention should be made of some of the matters referred to in the Pre-Sentence and other reports which were in evidence before Judge Maguire. In a Pre-Sentence Report of 23 October 2003 concerning Amohanga – it was recorded that his response to supervision by the Service on and off since 1992 had been poor, that his childhood had been marked by alcohol abuse by his parents and domestic violence, that he had left school at the age of 15, that he had a history of illicit drug use which would seem to have contributed to his commission of criminal acts but that he appeared to have no plan in place to begin any counselling or treatment. The report recorded that Amohanga had stated he was ashamed of his commission of the offences and appeared remorseful. 47 There were two reports by Duffy Barrier Robilliard, psychologists, in relation to Amohanga. The first was of 30 June 2003. It records that Amohanga was very close to his mother but his father would often come home drunk and "beat into us". That report recorded substantial distance from his family for a period ending some time prior to the report. He "escaped" an apparent attempt by his brothers to kidnap him with a view to removing him from the drug culture of Cabramatta. He was apparently expelled from school when aged 14 and worked at a number of jobs the last being when he was about 19. He said he acquired a heroin habit in jail prior to 1999 and about the time of his arrest in May 2001 he was using up to two weights a day. He asserted he had chosen to remain drug free and not on methadone in custody. On testing his scores suggested he had relatively little insight into the basis and cause of his drug use problems. The report recorded that Amohanga "attempted to rationalise his involvement" (in the offence dealt with by Judge Payne) stating the whole incident was less serious than it sounds in the Police Facts". The author opined that "until he fully takes responsibility for his actions and develops insight and awareness, he will have difficulty controlling and appropriately directing his emotions." 48 In a later report of 21 October 2003 it is recorded that he recently tested positive on a urine analysis and in consequence of disciplinary action imposing some restrictions on family visits he was upset and angry with himself. He maintained that he had not used drugs for the preceding 3 weeks. 49 Repeat psychological testing resulted in different indications from those apparent previously. There was a new significant score on the scale measuring masochistic (explained as self-defeating) behaviour, his profile on the severe personality pathology scales showed scores in the significant range on both the Borderline and Schizotypal scales. These trends demonstrated an increasing level of psychological and emotional distress. Among the conclusions expressed in the later report was the following:- "At our latest meeting Nico had no difficulty or hesitation in discussing his past violent behaviour which is in contrast to who he was when interviewed in June of this year. On this occasion he did not hesitate to accept full responsibility for his involvement in the offences in question and expressed remorse and contrition. He spoke about the victim and how deeply he regrets injuries he sustained as a result of his offence. … His ability to respond to appropriate professional intervention now seems more positive." 50 In the case of Rai, Judge Maguire observed that apart from the pleas of guilty, there was no sign of contrition. A Pre-Sentence Report of 20 February 2004 recorded that he had been known to the Probation and Parole Service since September 1999 but that his contact at best had been sporadic and at other times non-existent. His upbringing was said to have been unsettled due to the separation of his parents and that he was largely raised by his father and grandmother. He left school at 14, his literacy and numeracy are poor and his work skills limited. He is a chronic abuser of a range of illicit substances having begun use of alcohol and marijuana at the age of 11 and heroin at the age of 13. He was using heroin daily from 1997 and attempted detoxification in 1999 and 2000. At one of the detoxification centres he was prescribed anti-psychotic medication but did not maintain this preferring illicit drugs and remarking that he only "feels normal on heroin". He was described as of low intellect and appearing to have little insight into the link between his offending behaviour and chronic drug use and little insight into his mental condition. 51 In a report of 17 February 2004 Dr Jolly, psychiatrist, summarised his conclusions in terms "a chronic relapsing psychotic illness, either an underlying paranoid schizophrenia or drug induced psychosis seems probable". Dr Jolly refers to having experienced many difficulties in consulting with Rai only some of which can be laid at Rai's door. However, Dr Jolly records that when at large Rai prefers not to take medication, becomes significantly paranoid and periodically hears "voices". Rai acknowledged feelings of persecution and felt that was why he wanted to attack people. Dr Jolly deduced a picture of a most disturbed small boy not fitting in socially in his family or at school and with a significant learning disorder. Dr Jolly said his own view was that:- "Mr Rai "learned" that marijuana calmed his thoughts down, to some extent. So, the more trouble his thoughts became, the more substance he used, and the wider the range of drugs tried became. He came to smoke heroin… heavily… and he denies ever using intravenously, when I asked directly. However, he used heroin heavily enough to experience significant withdrawal symptoms, which in turn increased his use of marijuana, sleeping pills and benzodiazepine tranquillizers. Each substance used to excess induced its own set of problem behaviours… So, what appears to present is an underlying low-grade chronic psychotic illness, with persisting through disorder, and a range of drug related problem behaviours, the combination of which negates any sort of adjustment to normal life in society. … Michael Rai comes across as a significantly damaged individual, with absolutely no organisation, either in his mind or in his life. … If Mr Rai is mentally more disorganised when not on medication than he is presently, then at the time of the offences he must have been an extremely disturbed individual indeed." 52 Other matters to which Dr Jolly referred were that Rai had never worked, had never received unemployment benefits and for the last 8 years or so when not locked up, had supported himself through thieving. 53 Fourthly, the question arises whether this Court should proceed on the basis that the Respondent Amohanga has not established that he was remorseful and, if so, what significance this conclusion should be given. Remorse is a matter of mitigation and the onus is on the Respondent. Shortly before Maguire DCJ turned to consider the terms of s21A of the Crimes (Sentencing Procedure) Act, he recounted parts of the Pre-Sentence Report and a report from Ms Robilliard, psychologist. The first of these contains an account of the acquisition of the weapon somewhat different from that given by Amohanga in evidence and continues:- "The Offender stated that he was ashamed of his commission of the offences, but readily admitted his planning of the offence without the use of weapons with his co-offender." 54 Ms Robilliard had assessed Amohanga in June 2003 and later. His Honour quoted the following from her report:- "At our latest meeting Nico had no difficulty or hesitation in discussing his past violent behaviour which is in contrast to who he was when interviewed in June of this year. On this occasion he did not hesitate to accept full responsibility for his involvement in the offences in question and expressed remorse and contrition. He spoke about the victim and how deeply he regrets injuries he sustained as a result of his offence." 55 Then, addressing the terms of s21A, Maguire DCJ made 7 express findings as to aggravation and 2 as to mitigation which Simpson J has set out. It is apparent that his Honour in this exercise was addressing the provisions of s21A in large part seriatim. The two mitigating factors are those I also have quoted above and they are among those listed in s21A. Also referred to in the section, after the paragraph which deals with prospects of rehabilitation is one in terms, "the offender has shown remorse for the offence by making reparation for any injury, loss or damage or in any other manner". 56 Notwithstanding the number of errors made by Judge Maguire and to which I have referred, it seems to me inescapable that his Honour deliberately declined to make any finding that Amohanga was remorseful. 57 That was a course which was open to his Honour. Amohanga was, as has been said, arrested on 17 May 2001. It was not until 15 August 2003 that he indicated through a lawyer that he desired to plead guilty and that was in circumstances where he had been advised, on or about 30 May 2003, that a co-offender was to give evidence for the Crown. (On 15 August, Amohanga was facing a different charge, but for reasons given by Simpson J, I do not regard that as of present significance.) A psychologist who interviewed him in June 2003 on the instructions of his lawyer recorded that at that time he tried to rationalise his involvement, stating that the whole incident was less serious than it sounded in the Police Facts. A deal of the evidence he gave during the proceedings on sentence was not inherently probable. For example, he said that the only blows he struck were 2 punches to the side of the victim's head and 2 blows with the iron bar to his ribs, that he never saw anyone hit the victim in the head with a pole or jack (the tyre lever) and had not seen Rai touch the victim at all apart from trying to break free of him. Amohanga did acknowledge that when he left the unit, the victim was lying curled up on the ground. 58 Rai, when following his arrest he was interviewed on 5 June 2001 about the attack on Mr Al-Hameed, denied any knowledge of it. He did not indicate any intention to plead guilty until 11 November 2003, the day after his trial was due to commence. Previously, 2 other trial dates had passed for one reason or another. On 20 August 2003 his counsel indicated that his instructions to plead not guilty had been confirmed that morning. In fairness to both Respondents it should however be acknowledged that, it would seem for some significant period, the Crown was pursuing at least one more serious charge. 59 This Court has, of course, to take account of the expressions of remorse contained in Amohanga's affidavit. In light of Maguire DCJ's failure to find in Amohanga's favour on this topic, the rejection of his evidence as to the extent of his involvement in the offence, and the conflict between his and Mr Golledge's evidence as to Amohanga's drug taking in custody, I doubt whether his more recent expressions are entitled to weight. However, I am content to proceed on the assumption they are. 60 Fifthly, subject to one matter, I see no basis for a finding of special circumstances or, even if there be such, reducing the non-parole periods below the three quarters of the total sentence that would be the situation if the ratio envisaged in s44 of the Crimes (Sentencing Procedure) Act is not changed. The imposition of what I regard as proper sentences will provide more than adequate time for supervision on parole if the Respondent's are disposed or likely to benefit from supervision. 61 The one qualification I would make to the above is that both Respondents will have imposed on them sentences which are partly cumulative. To that extent only, I would find special circumstances and adjust the later sentence each must serve to reflect that accumulation. 62 It is appropriate to record that the Crown did not expressly challenge the finding of special circumstances. However, it was based on a need for extended supervision and, as I have said, the sentence I propose will allow for that. 63 Finally, I come to the issue of the sentences to be imposed. I have indicated my views as to the seriousness of the offence involving Mr Al-Hameed. In the case of Amohanga, he committed that offence while at liberty pursuant to parole. He is a recidivist who has not pursued or been able to take advantage of the numerous chances given to him and that, at least while addicted to drugs, he is someone from whom the community needs protection. (I do not forget the limits on the extent to which effect can be given to the community interests in that regard – see Veen v R (No 2) [1987-1988] 164 CLR 465 at 473). Judge Maguire considered that he had no strong prospects of rehabilitation and the further evidence which has been put before this Court, even on the assumption that Amohanga is remorseful, leads to no more favourable assessment. He seems unable to stick to the rules or to stay off drugs. 64 Amohanga is entitled to the discounts to which reference has been made. I would make some allowance in his favour for his unfortunate upbringing but in light of the extent to which leniency must have been extended to him in the past on that account and the fact that he has continued to reoffend that allowance must be small 65 In my view an appropriate starting point in the case of Amohanga is a term of 18 years. I would allow a discount from this of 5 years for his plea and the delay and uncertainty to which reference has been made. 66 To reflect considerations of totality the sentence should commence on 17 May 2003, that is 1 year and 4 months prior to the expiration of the last to expire of the non-parole periods imposed by Judge Payne. I would impose a non-parole period of 9 years and 3 months, i.e. 6 months less than three quarters of 13 years so that the total non-parole period – 11 years and 3 months - is three quarters of the total effective term of Amohanga's sentences, viz.15 years. 67 Most of the considerations which apply to Amohanga apply to Rai although there are differences. Without attempting to be exhaustive, the offence against Mr Al-Hameed was not committed while on conditional or illicit liberty, and he was considerably younger, being aged 19 as compared with Amohanga's age of 26. He does not seem to have committed as many serious offences as has Amohanga. His mental condition excites sympathy but against this is the fact that he chose not to take medication to control it, preferring illegal drugs. 68 Rai's second offence was committed on conditional liberty. Of course the charge was robbery, not armed robbery and there being no weapon involved there was not the risk of serious injury, contemplated in R v Henry (1999) 46 NSWLR 346 at 380. That was, of course a case of armed robbery but it does provide a list of matters to which convenient reference may be made. Here there was certainly the threat of violence in the form of killing. The value of the property stolen was substantial. While Rai was young, as was the typical offender referred to in R v Henry, he does not fulfil the description of one having no or little criminal history. It is probably not appropriate to regard the victim as vulnerable. There was of course Rai's plea. 69 Particularly given the absence of actual violence I do not regard this offence as meriting a sentence as high as that imposed by Judge Maguire which I regard as manifestly excessive. There was, of course, no appeal by Rai but the subject of its length was the subject of debate during the appeal, his other sentence is being increased and s7 of the Criminal Appeal Act permits the Court to deal with this sentence. 70 Rai has 4 prior charges of robbery or the like on his record. In these circumstances and having regard to the fact he was on conditional liberty, for the robbery charge, an appropriate starting point is 7 years. Allowing for his plea, delay and uncertainty, I would impose a head sentence for this charge of 5 years including a non-parole period of 3 years and 9 months, both such periods to start on 28 May 2002. 71 In the case of the offence under s98, particularly because of his youth and because he was not on conditional liberty at the time, I would adopt a lower starting point than I did for Amohanga, viz. 16 years. Allowing for his plea, delay and uncertainty, I would impose a head sentence for this charge of 11 years and 6 months. 72 To reflect considerations of totality the sentence should commence on 28 May 2004, that is 2 years after the sentence for the robbery charge began. In respect of this offence, I would impose a non-parole period of 8 years 1 month and 2 weeks, i.e. 6 months less than three quarters of 11 years and 6 months so that the total non-parole period – 10 years and 2 months - is three quarters of the total effective term of Rai's sentences, viz. 13 years and 6 months. 73 During the course of the submissions, reference was made to the Judicial Commission statistics, a table summarising the results of a number of prior decisions and the reports of a number of earlier cases themselves. I do not regard it as necessary to detail the information so provided. Certainly many of the cases indicate that the sentences I propose here are high but, in contrast to many of those cases, so was the damage which resulted and which was not unlikely to result when someone was struck mercilessly on the head with iron bars. None of the cases referred to persuade me that the sentences I propose are excessive, even in the context of a Crown appeal. 74 Those sentences are somewhat higher than Simpson J has proposed and with which Grove J agrees, possibly in part a reflection of a slightly different approach. However, given that mine is a minority view, it is unnecessary that I formulate further the orders I favour. 75 SIMPSON J: The Crown appeals against the asserted manifest inadequacy of sentences imposed upon the two respondents, Nico Amohanga and Michael Rai, by B Maguire DCJ in the District Court on 15 November 2004, following their pleas of guilty to charges on indictment. Each respondent pleaded guilty to a single charge of robbery whilst armed with an offensive weapon, with the infliction of grievous bodily harm, committed on 6 May 2001. These charges were brought under s98 of the Crimes Act 1900, which prescribes a maximum penalty for the offence of imprisonment for 25 years. In addition, Rai pleaded guilty to an unrelated charge of robbery brought under s94 of the Crimes Act, which carries a maximum penalty of 14 years' imprisonment. This offence was committed on 25 October 2001. 76 B Maguire DCJ sentenced Amohanga to imprisonment for ten years, commencing on 17 May 2002, with a non-parole period of six years. He sentenced Rai, on the first count, to an identical term commencing on 28 May 2003; and on the second count to imprisonment for eight years, commencing on 28 May 2002, with a non-parole period of six years. Rai's effective head sentence for both offences is therefore one of imprisonment for 11 years with a non-parole period of seven years. The explanation for the commencement dates of the sentences will emerge in due course. In Amohanga's case, the judge expressly found special circumstances justifying departure from the statutory proportion between the head sentence and the non-parole period (see Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act")); in Rai's case, although he did not make an express finding to that effect, the sentence shows that he implicitly did so. No challenge was made to that aspect of the sentences. facts 77 The robbery offence was committed jointly by the respondents. At about 5.00 pm on the day in question (6 May 2001) the victim, a man of 32, engaged two prostitutes, one of whom was 14 years of age, the other a woman of 25 (Lisa Hansen) who was then in a sexual relationship with Amohanga. The victim drove the woman in his car to an address in Cabramatta, which was being used by Ms Hansen. The two respondents and a third woman were present in the unit. Ms Hansen had previously made an arrangement with Amohanga to the effect that, having lured a customer to the premises, she would ensure that he showered; while he was doing so Amohanga would steal any money he had in his clothing. The arrangement failed because the victim refused to shower. He removed his clothing and had sexual intercourse with the 14 year old. Ms Hansen told the respondents to "get him". They attacked the victim with a tyre lever and an iron bar. He was beaten into unconsciousness, his skull was crushed, and thereafter he remained in a coma for many days. The respondents stole what property he had – a wallet and a mobile telephone. Another person, who by chance returned to the unit, assisted him to a bus stop, from where he was taken to hospital. He suffered, and will continue permanently to suffer, extremely severe brain damage. 78 The ferocity of the attack may be gauged from the medical evidence. Part of the victim's brain was exposed through scalp lacerations. He needed assistance to mobilise, although he later recovered his ability to mobilise independently. He lost his previously limited ability to communicate in English. He suffered a period of post-traumatic amnesia of 55 days. This is regarded as indicative of extremely severe traumatic brain injury. He will require support and assistance with activities of daily living for the rest of his life. He will have permanent disability and handicap. 79 Another indicator came from Amohanga himself. Recounting the events to another person later, he said: "We bashed and robbed him, cracked his head like a watermelon ..." 80 Amohanga was arrested for this offence on 17 May 2001. Bail was refused and he remained in custody. On 28 July 2003 he was sentenced by Payne DCJ in relation to two additional offences, of which he was found guilty by a jury on 17 March 2003. These were offences of robbery in company, and detaining a person with intent to hold for advantage, committed over a period beginning 6 May 2001 (that is, the same day as the offence the subject of the present appeal) and continuing into the following day. On this occasion the victim, a 24-year-old man, had travelled from the ACT to Cabramatta to attend an all night party. Amohanga was in the company of Ms Hansen and an Asian man. It seems that the victim was hit with a pole, and held captive for a period of up to 13 hours. He was assaulted and threatened. Money was extorted either from him or from his parents. The sentence in respect of the offence of detaining for advantage was one of five years and six months, with a non-parole period of two years and six months, commencing on 17 May 2001; the sentence in respect of the robbery in company offence was one of five years with a non-parole period of two years and four months, commencing on 17 May 2002. But for his being held in custody in relation to the present offence, he would have been eligible for release on parole on 16 September 2004. The present sentence, to commence on 17 May 2002, is therefore partially cumulative upon, and partially concurrent with, the sentence for the detaining offence, but wholly subsumes the second sentence imposed by Payne DCJ. The combined effect of all sentences is a head sentence of 11 years with a non-parole period of seven years. 81 Rai was arrested on 5 June 2001, and released on bail on 13 June 2001. He was returned to custody, on other matters, on 6 May 2002, and sentenced to a six-month term of imprisonment commencing that day and expiring on 5 November 2002. 82 Rai's second offence, in which Amohanga was not involved, was committed in the early evening of 25 October 2001. Rai attended an electronics store. On the pretext of looking at some electronic equipment he had a storeroom unlocked. He pushed a sales assistant into the storeroom, told him to get on the floor and not move, and threatened that he would be shot by an accomplice if he attempted to resist. He ordered the store manager to open the safe and took 12 mobile phones and 38 telephone recharge cards. He placed these in a box and threatened that this man also would be killed if he resisted. He demanded money and removed a sum of cash from the till. He then ordered that a display cabinet be opened and took three radio scanners. He told the two men to remain where they were and again threatened them with death if they attempted to use the telephone, or to go out the back of the store. 83 He left the store with the property, which was valued at a little under $9,500. subjective circumstances Amohanga 84 Amohanga was born on 25 September 1973. He was 27 years of age at the time of the offence. He had a relatively lengthy criminal record, which featured a number of serious matters, including three offences of armed robbery, three of robbery in company, and one of robbery. There was also an earlier offence of detaining for advantage. Evidence of his subjective circumstances was put before the court through a pre-sentence report and a psychological report. He was born in New Zealand, the youngest of five children, into a family affected by alcohol abuse and domestic violence. In 1978, when he was about four, the family came to Australia. He became involved in crime at an early age, and was sentenced to five years' imprisonment for armed robbery and other offences in 1995. During this time his family returned to live in New Zealand without telling him of their intention to do so and this appears to have precipitated an estrangement, although he is now again in contact with his parents. He left school at the age of 14 and has had various forms of employment. He became involved in drugs at the age of 16, progressing to heroin addiction by about 2000. Psychological testing yielded significant scores on anti-social, dependent and depressive attributes. Test results showed him to be of average intelligence. 85 He gave evidence in the sentencing proceedings, but this was largely directed to a dispute about his role in the offence, which is of no further moment. Rai 86 Rai was born on 2 September 1981. He was 19 years of age at the time of the first offence, just 20 at the second, and 23 at sentencing. He also had a criminal record, the first entry being in 1998, when he was about 16 years of age, arising out of two counts of common assault. These were followed by a number of other offences of apparently like character, including three counts of assault occasioning actual bodily harm; in April 1999 he was dealt with in the Children's Court in relation to a series of offences which included aggravated assault with intent to rob, aggravated robbery, two counts of robbery in company, and assault occasioning actual bodily harm. In 2001 he was dealt with for an offence of malicious wounding although this attracted only a fine, which may be an indication of the seriousness of that offence. 87 Evidence of his subjective circumstances was given in the form of a pre-sentence report and a psychiatric report. He also was born in New Zealand, one of seven children, and came to Australia with his parents as a small child. His parents separated soon after their arrival and Rai was largely raised by his father and grandmother, although his mother remained in contact. He attended a special school, the reason for which is not disclosed, and left school at the age of 14. His literacy and numeracy skills are said to be poor and his work skills limited. His only employment has been in short term unskilled jobs as a labourer and furniture removalist. 88 He was said to be a "chronic abuser" of a range of illicit substances, having begun to experiment with alcohol and marijuana at the age of 11 and progressed, by the age of 13, to irregular heroin use. He claimed that at least one of the offences was attributable to his need for money to support his drug use. 89 He is said to be of low intellect and to have little insight into the links between his offending behaviour and his chronic drug abuse. In 2000 he was prescribed anti-psychotic medication for symptoms which included auditory hallucinations and sleep problems, but he did not continue with the prescribed medication and turned to illicit drugs to control the symptoms. The psychiatric report describes him as having been disturbed even as a small child, and to have had a significant learning disorder. It seems that there were difficulties in the family relationships, but there was little detail of this. the remarks on sentence 90 B Maguire DCJ began his sentencing remarks with a consideration of the case specifically concerning Amohanga. He set out at length the facts of the offences, extracting them from a lengthy statement which had been put before him in evidence. He also extracted a good deal of evidence given by various witnesses in pursuit of the issue about the precise role played by Amohanga. As to the offence, B Maguire DCJ said: "... the victim was beaten mercilessly ..." He held that it was beyond argument that the offence was committed in pursuit of a common purpose, that each of the respondents inflicted blows upon the victim, and that their motive was robbery. He therefore came to the view that it was immaterial to determine which respondent struck which blow or the larger number of blows. There was no challenge, either by the Crown, or by either respondent, to this conclusion. In my opinion it is correct. 91 His Honour then turned his attention to s21A of the Sentencing Procedure Act. He found aggravation in the following respects: (i) the actual use of violence; (ii) the actual use of weapons; (iii) a record of previous convictions; (iv) that the offence was committed in company; (v) that the offence involved gratuitous cruelty; (vi) the substantial nature of the injury caused; (vii) that the offence was part of an organised criminal activity. He immediately went on to say: "I make the following findings as to mitigation. (8) The Offender has pleaded guilty but this is of limited value in the face of the Crown case, but the utilitarian value is not insignificant. (9) I do not see any strong prospect of rehabilitation." He did not expressly quantify the extent to which he discounted the sentence in recognition of the utilitarian value of the plea. 92 He expressly held that, for various reasons affecting the seriousness of the offence, the guideline promulgated in respect of degrees of armed robbery in R v Henry [1999] NSWCCA 111; 46 NSWLR 346 did not apply. That, also, is in my opinion clearly correct. 93 These observations were made specifically in the context of the remarks relating to Amohanga, but were expressly adopted by the judge when dealing with Rai. In those remarks he found, other than the plea of guilty, no sign of contrition. 94 His Honour went on to impose the sentences to which I have referred. In doing so, in each case, he acknowledged the lengthy period from the date of arrest and the long period of uncertainty thereby involved. Amohanga was arrested in relation to this offence on 17 May 2001, Rai on 5 June of the same year. Sentencing therefore occurred three and a half years after arrest. B Maguire DCJ appears to have given the respondents some credit for this. Analysis of the long and somewhat complex history affords some justification for taking that course. The respondents were initially committed for trial on three charges (which may have been alternatives) of which the most serious was wounding with intent to murder. A number of trial dates were set, but were, for various reasons, vacated. None of these vacations appears to have been directly attributable to either respondent, although one occurred because of the unavailability of Rai's counsel. On 18 August 2003 Amohanga pleaded guilty to an indictment containing a count of malicious wounding with intent to do grievous bodily harm and asked that a further offence of robbery with wounding on a Form 1 be taken into account pursuant to Part 3, Division 3 of the Sentencing Procedure Act. (The charge on the indictment, and, it seems, also the Form 1 offence, related to the present offence.) Subsequently, on 12 November 2003, Rai entered a plea of guilty to a charge in terms of that on which he was ultimately sentenced, that is, armed robbery inflicting grievous bodily harm. On 20 February 2004 Amohanga was re-arraigned on, and pleaded guilty to, a charge similarly framed. The original indictment to which he had pleaded guilty, and the Form 1, were withdrawn. It may, therefore, reasonably be thought that each respondent pleaded guilty to the charges as ultimately presented at the earliest reasonable opportunity. Indeed, on the date that the charge against Amohanga was reformulated, in order to bring it into line with that to which Rai had pleaded guilty, it was expressly agreed by the Crown Prosecutor that he should not lose any credit to which he was entitled in relation to the timing of the plea. On the other hand, there is no evidence that either respondent indicated any intention of acknowledging his guilt of such an offence at any earlier time. On arrest Amohanga, as was his right, declined to be interviewed; Rai denied involvement. 95 In dealing with Rai, the judge noted the charges and said: "The maximum penalties attracted by the crime are, respectively, imprisonment for 25 years and imprisonment for 20 years." 96 In fact, while the stated maximum penalty in respect of the first count was accurate, the second count was brought under s94 of the Crimes Act, a charge which carries a maximum penalty of 14 years' imprisonment. the Crown appeal 97 A convenient statement of the principles applicable to the determination of Crown appeals is set out in R v Wall [2002] NSWCCA 42 at [70] per Wood CJ at CL. It is unnecessary to restate them here. 98 There are some curious features of the Crown appeal. The true substance of the appeal is that, having regard to the objective gravity of the crime jointly committed, the sentences imposed were manifestly inadequate. The Crown recognised that, before this Court can intervene, it is necessary that it establish error in the sentencing process. This can be done by establishing "patent" error by pointing to errors which can be discerned from the remarks on sentence and the exposure of the sentencing judge's reasoning process; or it may be achieved by showing "latent" error, as disclosed in the sentence itself. Here, the Crown relied upon both. In order to establish patent error, the Crown pointed to two specific aspects of the remarks on sentence. The first of these concerned the identification of aggravating circumstances for the purposes of s21A of the Sentencing Procedure Act. This was because some of the aggravating features on which his Honour relied were elements of the offence itself, and, as is explicitly provided in s21A(2), may not again be taken into account as aggravating features. The second error was said to be the misstatement of the maximum penalty applicable to Rai's second offence. 99 What is curious about these is that each error (and, as I understand it, it was conceded that each was an error) was an error which, ordinarily, would give rise to applications for leave to appeal against sentence by the respondents. That is, each error was of a kind that was likely to lead his Honour to sentencing more severely than a correct application of the law would have permitted. The Crown, nevertheless, sought to rely on these errors on the basis that correct sentencing practice demands the application of correct sentencing principle. 100 Further, the Crown argued that error could be identified in the extent to which the judge accumulated the sentences, in Amohanga's case, on the sentences imposed by Payne DCJ and, in Rai's case, on the robbery sentence. In putting this argument, the Crown expressly recognised that accumulation is, to a large extent, a discretionary matter, although the discretion is nevertheless to be exercised in accordance with established principle. In Rai's case, the accumulation was of only one year into a six year non-parole period (of an eight year sentence); in Amohanga's case, the accumulation was of one year into a two and a half year non-parole period, and there was no accumulation upon a two year and four month non-parole period. 101 A further matter raised by the Crown concerned Amohanga's custodial situation at the time of the offence. He had been released on parole in respect of the 1995 offences to which I have already referred. The sentence then imposed was of a total term of five years' imprisonment, commencing on 27 June 1996, of which the minimum term was three years, expiring on 26 June 1999, the additional term of two years expiring on 26 June 2001. Thus, as at 6 May 2001, the date of the offence, he was still subject to the additional term, although, so it was believed, on parole. As it emerged, parole had been revoked on 6 February 2001, effective from 15 January 2001. However, Amohanga had not been taken into custody. It would not, therefore, be strictly correct to say, as was initially put by the Crown, that he was at liberty on parole at the time of the offence. He was at liberty while subject to the strictures of a custodial order, and it may well be thought that the aggravation of committing a serious offence at a time when he was not legitimately at large on conditional liberty, but at large when he ought to have been in custody, is greater than the aggravation of committing the offence whilst on conditional liberty. This circumstance, the Crown argued, was not taken into account by the sentencing judge. 102 The Crown also argued that the present offence should be regarded as one in the worst category, justifying or calling for consideration of a sentence at or near the maximum of 25 years prescribed by the section. There were, the Crown argued, virtually no mitigating factors that would justify reducing the sentence from that point to a sentence of 10 years, less than half the maximum. 103 While accepting that a considerable degree of caution must be exercised in referring to sentences imposed in other cases, counsel for the Crown expressly referred the court to R v El-Andouri [ 2004] NSWCCA 178 and R v Fidow [2004] NSWCCA 172. These were co-offenders who, in a well-planned exercise, viciously and brutally attacked a service station proprietor in order to rob him of the week's takings which he was conveying to a bank. It was the early hours of the morning. Where that case bears a remarkable similarity to the present is in the nature of the attack upon the victim, the consequences to him, and the callous behaviour of the offenders after the injuries had been inflicted. El-Andouri and Fidow were two of three men who engaged in the attack. They punched the victim repeatedly to the head and continued to do so after he had fallen to the ground; they then continued punching and kicking and fractured his skull. They left him bleeding and dying on the side of the road. He was rescued only by the efforts of passers by. He was taken to hospital comatose and placed on life support. He sustained a severe closed-head injury, right skull burst fracture and other injuries. He was left blind in one eye and with reduced vision in the other. He had severe scarring. He suffered extremely severe and permanent injury. 104 El-Andouri was sentenced on this offence to imprisonment for 16 years with a non-parole period of nine years. This sentence was imposed in conjunction with a series of sentences in relation to other offences, including one of assault with intent to rob whilst armed with an offensive weapon, an offence of affray and an offence of stealing a motor vehicle. Fidow was sentenced by a different judge for the same offence to imprisonment for 11 years with a non-parole period of eight years. This was the only charge faced by Fidow, but the sentencing judge took into account an additional seven offences, being offences of dishonesty and not of violence. 105 On appeal, in El-Andouri's case, this Court accepted that the offence fell into the worst category of such offences and described it as: " ... a case of gratuitous violence of the worst kind." 106 This Court, differently constituted, in Fidow's case, accepted the sentencing judge's conclusion that the offence was towards the top of the range of criminality for offences of this character. 107 In each case, leave to appeal against the severity of the sentence was granted but the appeal was dismissed. * * * Amohanga's response 108 Senior counsel who appeared for Amohanga on the appeal acknowledged that the circumstances in which he came to be at liberty at the time of committing the offence was a relevant, and aggravating, factor and also pointed out that he was, apparently, subject to bail conditions at the time. However, he contended that these circumstances would not have been obvious on the material presented to the sentencing judge and were not drawn to the judge's attention by counsel representing the Crown. He therefore argued that it would be inappropriate for the Crown now to seek to rely, on the Crown appeal, upon these matters not having been taken into account. This submission led to the production of the transcript of one of the many appearances prior to sentencing. On 18 August 2003 Amohanga appeared before Judge Sides in the Campbelltown District Court. This was the occasion on which he pleaded guilty to the charge of maliciously wounding with intent to do grievous bodily harm. During the course of that very brief appearance counsel for the Crown noted that Amohanga had been on parole at the time of the commission of the offence. It was not suggested on behalf of the Crown that this affected, or ought to have affected, Judge Maguire's appreciation of the circumstances in which Amohanga was at liberty. Obviously, it could not. There was no suggestion that that transcript had been provided to Judge Maguire. What was suggested was that the circumstance should not come as a surprise to Amohanga himself. 109 Senior counsel for Amohanga accepted that the offence created by s98 is a serious one, and that the offence committed by his client was a serious manifestation of that offence. However, again, counsel argued that, at the sentencing proceedings, then Crown counsel did not present a "worst case" argument, and that it would now be unfair and wrong so to approach the facts. 110 Senior counsel for the applicant then contended that it would be an abuse of the error principle, which is fundamental to the exercise of this court's jurisdiction, to rely on the acknowledged error (in the case of Amohanga, aggravating factors which were elements of the offence taken into account) as a basis for upholding the Crown appeal. (Indeed, he identified a further factor, Amohanga's criminal record, as an additional circumstance to be added to the Crown's list.) It would be an abuse, he argued, because these circumstances operated against the interests of the respondent and, if anything, must have had the effect of increasing rather than decreasing the sentence. Senior counsel also argued that another error of the same kind could be found in the diminution of the significance of the pleas of guilty by reason of the strength of the Crown case. In respect of the plea of guilty, senior counsel argued that, in all the circumstances, it was timely and evidenced contrition. While not trespassing upon the principle that the strength of the Crown case is not a factor relevant to the assessment of the utilitarian value of the plea, senior counsel sought to enhance the contrition evidenced by the plea of guilty by pointing to serious weaknesses in the case the Crown had to present. The victim was, it may be assumed, unable to give any evidence of real value; the other witnesses available to the Crown were accomplices, and of dubious credibility. Thus, it was suggested, the plea of guilty evidenced something more than minimal contrition. 111 Senior counsel also relied upon the delay in finalisation of the matter. Finally, he pointed to the absence of comprehensive information provided to Maguire DCJ concerning the matters dealt with by Payne DCJ. 112 In relation to that aspect of the appeal concerning accumulation, senior counsel pointed out that all offences were committed in close temporal proximity, and, suggested that they ought to be treated as one episode of serious criminality. Such an approach is complicated by the circumstance that, for two of the offences, Amohanga was sentenced by Judge Payne. Senior counsel therefore proposed that an appropriate appellate assessment is to ask whether the aggregate outcomes would, if sentencing for all offences had been committed to one judge, have been "of an appreciably different order". I take this to be another way of invoking the totality principle. I will deal with it below. 113 Finally, senior counsel relied upon the general principles concerning Crown appeals, and the reluctance to interfere with a sentence, even where members of the court, if sentencing at first instance, might have imposed a different sentence. 114 For all these reasons, senior counsel urged this court to dismiss the Crown appeal. Rai's response 115 The response made on behalf of Rai may be encapsulated as follows: - all material matters were taken into account; - it would be inappropriate for the error concerning the s21A aggravating factors, which were elements of the offence having been taken into account, or the reference to wrong maximum sentence, to be taken into account in support of the Crown appeal; this was for the same reasons, essentially, as were given by senior counsel for Amohanga; - the pleas of guilty and the delay in sentencing were relevant to sentence, warranting some diminution; - the finding of special circumstances was not challenged by the Crown; - the sentences imposed were not inadequate, and, indeed, the sentence imposed in respect of the second offence was a heavy one for an offence of its kind; - there was no error in the extent of the partial accumulation. * * * conclusions (i) acknowledged errors 116 In my opinion, the acknowledged errors in taking into account as aggravating circumstances features that are elements of the offence, which ordinarily would have provided a basis for an appeal by the offenders against severity, are relevant in this way. They indicate that the judge sentenced on wrong principles. They also indicate that, absent those errors, the starting points of the sentences would have been lower than those imposed. To this extent they reveal error upon which the Crown is entitled to rely. 117 Similarly, the passage from the remarks on sentence extracted above is certainly capable, and indeed suggestive, of the interpretation that the sentencing judge did regard the strength of the Crown case as relevant to the assessment of the utilitarian value of the plea. It is well established that the strength of the Crown case is not a factor to be taken into account in that assessment. 118 There is also some strength in the proposition that the Crown may have faced difficulties in the presentation of its case. However, it does not necessarily follow from that that the plea of guilty is evidence of contrition. In relation to Amohanga, his Honour made no specific finding about contrition. In his evidence the applicant made an express assertion of regret. So far as can be judged from the written words on the page, it was genuine. But in the absence of a finding by the sentencing judge, it is difficult for this court to make an assessment. In the end, the benefit of any doubt in this respect ought to be given to Amohanga. Whether, alone, these errors would be sufficient to warrant the intervention of this Court is another question and one that I do not need to decide. (ii) Amohanga's parole status 119 It was, in my view, an error, in Amohanga's case, to fail to take into account the circumstances in which he was at liberty at the time of the offence. However, I accept the argument put on his behalf that it is difficult for the Crown now to seek to rely upon that circumstance, given the Crown's failure to draw it to the sentencing judge's attention at the relevant time. Similarly, the failure of the Crown at sentencing fully to inform his Honour of the matters for which Amohanga had been sentenced by Judge Payne, and the circumstances of those offences, makes it difficult for the Crown now to rely upon that as a basis for appeal. 120 In R v Kalache [2000] NSWCCA 2, Hulme J reviewed a number of authorities concerning error in the sentencing process induced or contributed to by reason of the stance taken by the legal representative of the Crown. Those authorities show that there is no absolute rule that the failure by the Crown properly to discharge its duty and ensure that the sentencing judge is fully and properly informed, either as to the law or the relevant facts, precludes the Crown from subsequently relying upon sentencing error so induced. Criminal sentencing is not adversarial party – party litigation in the same sense as other litigation may be, and there remains always a public interest in the imposition of appropriate sentences for criminal activity. Notwithstanding that, there is an unfairness to offenders, and to a sentencing judge, where the Crown is permitted, on appeal, to establish on the part of the judge error for which the Crown bears all or some of the responsibility. (iii) a worst case? 121 When the ferocity of the attack, and the consequences to the victim, are taken into account, attention should have been given to whether these offences were in the category of the worst of their kind. It may have been that the judge would, having asked himself that question, have concluded that they were not; but asking this question may well have fixed the offences at an appropriate point in the scale. As were the offences in El-Andouri and Fidow, these were among, or close to, the worst of their kind, if only by reason of the injuries occasioned to the victim. Added to that was the callousness in leaving him to be rescued by an uninvolved third party. It was argued on behalf of Amohanga that the Crown at the sentencing proceedings had not invited the judge so to treat the offences, but this is incorrect. The Crown expressly put to his Honour that it could be seen, by reference to the statutory maximum penalty, that the offence was: "one of the most serious on the books" and that: "this offence is one of the most serious within that category." Indeed, he repeated: "Your Honour, it is within the most serious category, in my submission." 122 Having regard to the principles that govern the determination of Crown appeals mentioned above, it is unlikely that this court would, even if allowing the Crown appeals, fix sentences that incorporated the maximum or using the maximum as a starting point. (iv) accumulation 123 I have come to the view that, in each case, the accumulation was inadequate. In Amohanga's case, this question also is complicated by the failure of the Crown fully to inform his Honour; but nevertheless the sentences imposed by Payne DCJ were some indication of the seriousness of the offences with which her Honour was dealing. To accumulate only by a year on one sentence, and not at all on the other, had the effect of nullifying the sentence imposed by Payne DCJ in respect of the robbery offence, and minimising the effect of the other. In Rai's case the second offence was committed quite separately from the robbery offence, and itself called for a significant sentence. The sentence thus imposed was significant, but its effect, too, was minimised by the very limited accumulation. 124 In this case, the question of accumulation turns principally upon the issue of totality. However, it is important, in considering the structure of multiple sentences, to ensure, where possible, that some distinct sentence is applicable to various offences. Where a sequential sentence has the effect of nullifying or partially nullifying an earlier sentence, it may appear that the offender has escaped real punishment for the offence in respect of which the earlier sentence is imposed; this impinges upon the question of totality. (v) manifest inadequacy 125 Since the conclusion of argument in this case, the decision of another bench of this court in R v Duncan and Perre [2004] NSWCCA 431 has come to the attention of the court. That case bears a disturbing similarity to the present and to those of El Andouri and Fidow, referred to above, in that, as a result of a brutal and unprovoked attack, the victim suffered severe brain damage. In each of those cases the court reduced the original sentences of 16 years with a non-parole period of twelve years to a sentence of 13 years with a non-parole period of nine years. These were sentences imposed after trial and accordingly do not incorporate any discount applicable to pleas of guilty. When the maximum discount for a plea of guilty, as promulgated in R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383, is factored in to the sentences imposed after appeal, (and adhering to the s44 statutory proportions) the sentences are of nine years and nine months with non-parole periods of seven years and four months. 126 In each of those cases the offender had the benefit of considerably favourable subjective circumstances, including youth (both were just under 18 years of age at the time of the offence) and of no, or minor, criminal record. 127 Similarly, Fidow had no criminal history, and El Andouri had only a minor criminal record. El Andouri was 19 years of age at the time of the offence; Fidow was in his thirties. 128 Having in mind the significantly worse criminal record of each of the present applicants, I have come to the view that, particularly in the light of these four comparable cases, the sentences imposed were manifestly inadequate. 129 Accordingly, I have come to the view that the Crown appeals should succeed. Each respondent should be re-sentenced. Against the possibility of re-sentencing, this Court received additional evidence. In Amohanga's case, this was in the form of affidavits sworn by the respondent himself and another affirmed by Mr Bill Golledge, the Acting-Governor of the Metropolitan Special Programmes Centre of the Department of Corrective Services. Amohanga deposed that he had been held for two years in protective custody as a result of information given by Ms Hansen to other prison inmates, but that the protective custody had terminated and he was then being held in the main gaol. He had spent some time at Goulburn Prison where it was possible to attend education on one day a week but that he had been unable to avail himself of this opportunity because he was in full-time employment. Thereafter he was held for six months at Silverwater Correctional Centre where no courses were available; he has been some time at Parklea Prison where he completed a six week anger management course as well as a twelve week course in manufacturing and engineering. He had been assessed at Long Bay Prison for eligibility for the Violent Offenders' Training Programme and believed that he was eligible to enter Stage 1 of that programme. His parents are living in Queensland and visit only rarely. They are able to make arrangements for him to have employment on his release. He intends to get away from Sydney and from his drug associates. 130 Since his incarceration he has become very interested in reading the Bible, spends a lot of time doing so, and finds that it has given him direction. As a consequence he has given up smoking and has improved his attitude. He appreciates "the terrible things I have done" and claims to be extremely remorseful. He claims to have been completely drug free for eight months and not to have used heroin or cocaine for about three years. He has also given up marijuana more recently. He now appreciates that his problems arise from the use of heroin and cocaine. 131 Mr Golledge confirmed that Amohanga is preparing to participate in the Violent Offenders' Therapeutic Programme, and confirmed his evidence of his period of incarceration on protection which terminated on 5 January 2003. He said that, on 8 February 2005, Amohanga was charged with returning a positive urine sample to cannabis. 132 Rai also affirmed an affidavit. He said that, on arrival at the John Moroney Correctional Centre at Windsor, he had put his name on the list for a place in education and to see a psychologist but was told that, by reason of the length of his sentence, there would be some delay in either of these things occurring. He said that at the end of April he started education in the Intensive Learning Centre and was undertaking his year 10 certificate and finding the work interesting. He said that he enjoys classes and gets along well with the other students. He said he is serious about doing well in his studies. He had had an introductory session with a psychologist but had not been able to arrange regular appointments with her because of her busy schedule. He is visited every few weeks by his parents and sometimes by one of his siblings. 133 These affidavits do afford some optimism for the rehabilitation of the respondents, but it is rather limited. Nevertheless, they are relevant to the re-sentencing exercise, and I take them into account in the sentences I propose. 134 The sentences I propose are, in conformity with Crown appeal principles, towards the bottom of the range properly available in the legitimate exercise of the sentencing discretion. Initially, it was my view that it would be appropriate to sentence, as did Maguire DCJ, each respondent identically. However, I have since had the opportunity to read in draft the judgment of Hulme J. For the reasons given by his Honour, the sentence imposed on Rai in respect of the s98 offence should be lower than that imposed upon Amoganga. I propose that, on the s98 charge, Amohanga be sentenced to imprisonment for 12 years. With some hesitation I would adhere to the finding of special circumstances made by B Maguire DCJ and would impose a non-parole period of eight and a half years. I would specify that that sentence is to commence on 17 May 2003. The non-parole period would expire on 16 November 2011, and the total sentence on 16 May 2015. The combined sentences would thus be for a head sentence of 14 years with a non-parole period of 10 and a half years. 135 I propose that, on the s98 count, Rai be sentenced to imprisonment for 11 years with a non-parole period of eight years. I would specify that Rai's sentence commence on 28 May 2004. The non-parole period would expire on 27 May 2012 and the total sentence on 27 May 2015. This would give an effective head sentence of 13 years with a non-parole period of 10 years. I would not interfere with the sentence imposed in relation to the offence of armed robbery. 136 The orders I propose are: Amohanga (i) Crown appeal allowed, sentence quashed; (ii) in lieu thereof Amohanga be sentenced to imprisonment for 12 years with a non-parole period of eight years and six months, the sentence to commence on 17 May 2003, and to expire on 16 May 2015; the non-parole period to expire on 16 November 2011. Rai In respect of the s98 offence: (i) Crown appeal allowed, sentence quashed; (ii) in lieu thereof, Rai be sentenced to imprisonment for 11 years with a non-parole period of eight years, the sentence to commence on 28 May 2004 and expire on 27 May 2015; the non-parole period to expire on 27 May 2012. ********** 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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