Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: SILLS v R [2011] NSWCCA 271 Hearing dates: 5 December 2011 Decision date: 14 December 2011 Before: Meagher JA at 1 Hoeben J at 2 Rothman J at 66 Decision: Leave to appeal granted. Appeal dismissed. Catchwords: CRIMINAL LAW - sentence appeal - plea of guilty to accessory and receiving charges - whether sentencing judge erred in failing to rule on defence objections to Statement of Facts - whether applicant sentenced upon facts which disclosed a more serious offence - no error disclosed. Legislation Cited: Crimes Act 1900 Criminal Appeal Act 1912 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Madden v R [2011] NSWCCA 254 Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 R v De Simoni (1981) 147 CLR 383 R v H [2005] NSWCCA 282 Regina v Laurentiu (1992) 63 A Crim R 402 per Wood J at 415-416 Regina v David Alan Lawless (CCA, unreported, 24 June 1994) R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 R v Uzabeaga [2000] NSWCCA 381 Category: Principal judgment Parties: Michael Sills - Applicant Regina - Respondent Crown Representation: W Hunt - Applicant MM Cinque - Respondent Crown B Sandland, Legal Aid Commission - Applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown File Number(s): 2009/282912 Decision under appeal Date of Decision: 2011-06-17 00:00:00 Before: Coolahan DCJ File Number(s): 2009/282912 Judgment 1MEAGHER JA : I agree with the orders proposed by Hoeben J and with his Honour's reasons. 2HOEBEN J : Offences and sentence On 9 November 2010 the applicant was arraigned on an indictment containing three counts as follows: Count 1: On or about 10 August 2008 at Toronto in the State of New South Wales being in a building, namely the Toronto RSL Club at 41 The Boulevard, did therein steal a sum of money and break out of the building. In the alternative: Count 2: On or about 10 August 2008 at Toronto knowing that Merrissa Sills committed the serious indictable offence of being in a building, namely the Toronto RSL Club at 41 The Boulevard, did therein steal a sum of money and break out of the building, did receive, harbour, maintain and assist Merrissa Sills contrary to section 112(1)(b)/350 Crimes Act 1900. Count 3: On 10 August 2008 at Toronto and other places did receive proceeds of crime, being a sum of money in circumstances where he knew that the sum of money was the proceeds of crime, contrary to section 193B(2) Crimes Act 1900. 3The applicant entered a plea of not guilty to count 1, but guilty to counts 2 and 3. The pleas of guilty were accepted by the Crown in full satisfaction of the indictment. The maximum penalty provided for count 2 was imprisonment for 5 years and that for count 3 was imprisonment for 15 years. 4On 17 June 2011 Coolahan DCJ sentenced the applicant as follows: Count 2: A fixed term of imprisonment for 12 months to commence 11 November 2010 and expire on 10 November 2011. Count 3: Imprisonment with a non-parole period of 15 months to commence on 11 February 2011 and expire on 10 May 2012 with a balance of term of 1 year and 6 months to expire on 11 November 2013. 5The effective overall sentence was imprisonment with a non-parole period of 1 year and 6 months with a balance of term of 1 year and 6 months. The applicant received a discount of 15 percent for his pleas of guilty. 6Merrissa Sills was the applicant's sister. She was sentenced by his Honour Coolahan DCJ on 14 May 2010 following a plea of guilty to an indictment containing one count that she on 10 August 2008 entered the Toronto RSL and broke out having stolen a sum of money, contrary to s112(1)(b) Crimes Act 1900. She was sentenced to imprisonment with a non-parole period of 1 year and 6 months with a balance of term of 1 year and 6 months. She received a 30 percent discount for her plea of guilty and for assistance. 7The applicant seeks leave to appeal pursuant to s5(1)(c) of the Criminal Appeal Act 1912 against the sentences imposed by his Honour. The grounds of appeal are: Ground 1: The sentencing judge erred in failing to rule on objections made by the defence in respect of the content of the facts document which adverted to more serious offending than that upon which the Crown was entitled to rely having accepted a plea to the applicant being an accessory after the fact. Ground 2: The sentencing judge erred in sentencing the applicant upon an assessment of his culpability which disclosed a more serious offence than that charged. Factual background 8The following is a summary of the facts as set out by his Honour. It is this summary of facts which was the basis for the first ground of appeal. 9At approximately 3am on Sunday, 10 August 2008 an amount of $134,868.25 was stolen from a locked and secured combination safe within the Toronto RSL Club by a former employee of that club and the younger sister of the applicant, Merrissa Sills. 10During the course of that morning at approximately 3am and at 3.49am a motion sensor alarm was activated causing the club manager and her husband, together with a security officer, to attend the RSL Club in response to those alarms. At the first attendance, there were no visible signs of entry and no intruders were sighted. On the second occasion of the activation of the alarm, the same persons attended the Club. On that occasion it was established that an unlawful entry had taken place and that money had been stolen from the safe. 11During the course of police investigations, an extensive review of CCTV footage from surveillance cameras took place. By this means it was established that Merrissa Sills had carried out the theft of the money, having secreted herself within the club premises before the club was closed for the night. Ms Sills' employment with the club as a shift manager/supervisor had been terminated some 10 months before the offence. 12The CCTV footage revealed the following: 1. The entry of Merrissa Sills and the applicant to the club on 9 August 2008 between 8pm and 9pm. The applicant was shown to be trying to open a locked door which led to the club cellar. During the period of Ms Sills' employment with the club, it was the usual club practice to leave that door unlocked. Since the termination of her employment, security arrangements had been tightened and that door thereafter remained locked. 2. Both the applicant and Ms Sills were seen to walk past a "No Entry" sign into the downstairs area of the club, after that area of the club had ceased trading for the night. Neither the applicant nor Ms Sills had a legitimate reason for being in that part of the club. 3. Ms Sills was seen to open a door to a storage area, place her backpack in it and then climb in herself, closing the door behind her. She then sent a SMS message to a friend which simply said "In". At that time, the applicant was in the company of that friend in the club. The applicant was observed to leave the club shortly after midnight. At about 2am the staff left the club, after securing the premises and setting the alarm system. 4. Between 1.50am and 3.30am Ms Sills sent SMS messages to the applicant and he sent SMS messages to her. Significantly, at 3.25am (after the occasion of the first activation of the alarm, but before the second) Ms Sills sent an SMS message to the applicant saying "Have they gone?" The applicant responded at 3.27am with two SMS messages. 5. At 2.36am the applicant was observed approaching the lower entry door to the club and looking through the glass doors into the club. 6. Between 3.03am and when she left the club, Ms Sills is shown removing money from the combination safe and concealing herself when the club manager, her husband and the security officer attended the club after the first occasion when the alarm was activated. 7. At 3.40am while still in the room where the safe was located, Ms Sills called the applicant and they talked for 1 minute and 39 seconds. On leaving the club, Ms Sills ran to where she and the applicant had parked a car. The applicant was waiting for her. He then drove her to his residence at Bateau Bay. 13The applicant was a former police officer. After leaving the club, he advised his sister to turn off her mobile telephone in order to avoid the possibility of police tracking her movements through the mobile telephone tower system. On arrival at the applicant's home, he advised his sister to remove the clothing she was wearing and he would get rid of it, together with the clothing which he wore. They opened the bag of money and the applicant gave a sum of money to his sister retaining the balance for himself. [This was an area of significant dispute between the Crown and the applicant in the sentence proceedings and evidence was called to resolve it.] 14After the CCTV footage was examined by the police, Ms Sills was identified as the offender and her premises at Carey Bay were searched on the afternoon of 10 August 2008. A balaclava and other items, similar to that worn by her at the time of the offence, were seized. Her mobile telephone was seized. She was placed under arrest and subsequently charged. 15Ms Sills informed the police that it was her idea to commit the offence. She had spoken with the offender about the offence. They both had gambling problems, hers with poker machines, his with horse racing. She said that it was agreed between them that the robbery would be carried out on 9 August 2008. 16Shortly after 5am on 10 August 2008 uniform police patrolling the Long Jetty area chanced upon the applicant as he drove his vehicle from Lions Park Road into the Entrance Road. The applicant was stopped and subjected to a random breath test. He informed the officers he was heading home. The random breath test was negative. 17At about 9.30am on Sunday, 10 August 2008 the applicant went to the premises of his former wife at Springfield, some 13 kilometres from Bateau Bay. He asked if he could store some ski equipment there. With his former wife's consent, the applicant placed an article in a filing cabinet in the garage. He locked the cabinet and retained the key. 18Late in the evening of Sunday, 10 August 2008 the applicant's premises at Bateau Bay were searched. The applicant was at home with his flatmates. He declined to speak to police about his sister's involvement in the offence. Among other things, the police seized the offender's mobile telephone and from his wallet they took possession of a Toronto RSL Club "sign in" docket dated 9 August 2008 in the name of M Jiney of 10 Anderson Street, Rathmines. This was a non-existent address. A Citibank card in the name of Merrissa Sills was also found in the applicant's wallet. 19On Monday, 11 August 2008 the applicant's former wife went to the filing cabinet and noticed that the key was missing. Using a screwdriver, she opened the top drawer to such an extent that she saw an orange plastic bag in the drawer. With the screwdriver, she ripped open a portion of the bag and inside she observed what she described as "meshy" material and thought it was ski gloves. 20On Tuesday, 12 August 2008 the applicant returned to his former wife's premises. He had the following conversation with her: "I'm going to be completely honest with you. Merrissa is in gaol. She broke into the RSL Club. It was revenge for what they did to her. She hid inside until it closed. I knew she was going to do it but I couldn't talk her out of it." 21The applicant's former wife told him that she had broken into the filing cabinet and requested that he remove the article from it. In due course he did so and returned to his former wife carrying a backpack. He said to her "Do you want some?" She said "What?" He did not reply and left shortly afterwards. 22The applicant was arrested on 9 December 2009. He was conveyed to The Entrance Police Station and declined to be interviewed. When charged he informed the police that he took no part in the offence. 23None of the money stolen from the club has been recovered. The club was only partially insured for the loss. 24The applicant was a chronic gambler. His sister gave him money over the years to support his habit. Several of his past relationships broke down primarily because of his gambling habit. At one stage he told his sister that the money he received from the robbery was buried. He said it was in her best interests that she did not know where the money was. On several occasions he told his sister that the money was gone. 25The applicant was declared bankrupt on 17 September 2007 with debts totalling $68,100. At the time of the offences the applicant had not been discharged from that bankruptcy. 26Following his plea of guilty on 9 November 2010 the applicant voluntarily entered into custody on 11 November 2010 and has remained in custody in relation to these matters since that time. Remarks on sentence 27Having set out the facts, the first issue dealt with by his Honour was the disputed question of how much of the proceeds of the offence were received by the applicant. The applicant maintained that it was about $3,800 whereas his sister said that he took all of the proceeds, except for $20,000 which he left with her. 28His Honour summarised the position of the Crown on this issue as follows: "The Crown case really is in the alternative. As I understand it, the Crown urges me to find beyond reasonable doubt that the amount which is the subject of Count 3 is an amount which was only $20,000 less than the amount stolen. In order for me to be so satisfied I would have to be satisfied beyond reasonable doubt that Merrissa Sills was both an honest and accurate witness. The alternate proposition put by the Crown and the one which, as I understand it, is the main contention of the Crown is that whilst I may not be able to be satisfied beyond reasonable doubt of the primary contention, I would be satisfied beyond reasonable doubt that the offender obtained significantly more from the proceeds of the offence than $3,800 although the exact amount could never be determined." (ROS 11.6) 29The principal evidence in support of the Crown position came from the applicant's sister, Merrissa Sills. The applicant gave evidence that he received $3,800 only. 30His Honour was not satisfied that Merrissa Sills was an honest and accurate witness. He noted that she was an admitted liar. She had told untruths to her psychiatrist and to others. She had given varying accounts initially as to how the offence came about and his Honour found it difficult to know what to make of her evidence. 31His Honour had similar reservations about the evidence of the applicant. His Honour said: "The reality is that I am also unable to accept the evidence of the offender. It was in many respects unsatisfactory, particularly in his answers in cross-examination. I do not intend to go through them all in detail but they were, to say the least, unconvincing. His explanation for taking the bag to his ex-wife's premises within hours of the offence simply did not ring true. His evidence of his movements after dropping off the offender did not ring true. The fact that he would be satisfied with something like $3,800 as the proceeds of the offence when he was clearly actively involved in it himself, as evidenced from the surveillance video and the SMS messages, also does not ring true. The reality is I do not believe him and I am left in the situation where I have no doubt that he received significantly more than $3,800 but I have no idea as to the exact amount." (ROS 12.4) 32His Honour then considered the applicant's subjective case in greater detail. His Honour had before him a pre-sentence report by Sarah Gilmour. This set out that the applicant was aged 40 at the time of sentencing. He and his sister had grown up in a very dysfunctional family which had had a profound effect on both of them. He had joined the police service in 1990 and was placed on sick leave in 2007 after a diagnosis of post-traumatic stress disorder and depression. He was medically discharged from the service in 2010. 33Ms Gilmour noted a history of heavy alcohol consumption commencing in approximately 1994. She was told that it was a common occurrence for him to attend the hotel after work with colleagues to debrief the day's events. The applicant said that his alcohol use increased and he would binge drink large amounts. In more recent times it seems that his alcohol use decreased. 34Ms Gilmour referred to the applicant's gambling problem but noted that he had ceased all gambling approximately 2 - 3 months before entering custody. In her summary, Ms Gilmour said: "Mr Sills has the support of his ex-wife and close friend who are willing to assist with his integration into the community with his ex-wife adding that he requires intensive gambling intervention. Whilst Mr Sills claims that his gambling addiction is not problematic, it would appear that he would benefit from an assessment to gauge what intervention is required." 35In the applicant's case, a report dated 1 February 2011 by Dr Bruce Westmore, forensic psychiatrist, was tendered. Dr Westmore diagnosed post-traumatic stress disorder, major depression in partial remission, alcohol abuse and pathological gambling. He said that the applicant did not have any anti-social personality disorder. 36In his opinion, Dr Westmore said: "His account of the matters now before the Court has been contained in the body of this report. He indicated he became aware of his sister's intentions about six months before the incident but he did not take her statement seriously when she indicated she had been thinking of robbing the RSL Club. He reports even on the night of the incident he had not been aware that he and his sister and a group of friends would be meeting at the RSL Club where the robbery occurred. He talked about trying to dissuade his sister from committing the criminal act but he later acknowledged that he accepted some money from her, doing so in part because of his chronic gambling problems and in the belief that he thought the money he had taken would not be noticed. He said he was aware that his sister would be arrested the following day, and that in fact occurred. In custody he is obviously a high-risk prisoner because of his previous occupation as a police officer. He has already been exposed to verbal threats and he is a maximum protection prisoner. He is in a single cell with no yard. He is receiving no visits and he is a non-association prisoner. If I accept his history as being a reliable account of what occurred and when I consider his longitudinal life history, I think this man's risk of re-offending is non-existent. He demonstrated severely impaired judgment at the time he agreed to accept stolen money from his sister. His chronic depression and problems associated with alcohol abuse and pathological gambling would have been factors which influenced his poor judgment. He was also under financial stress, having gone on sick leave, which resulted in a significant reduction in his income. The other area of impaired judgment was something that he himself recognised when he learned that his sister had taken money from the Club, but he failed to take her directly to a police station. This behaviour is likely to have been influenced to some degree by the fact that it was his sister who was involved and, although they had not been close over the years, he had some protective feelings towards her. This man requires long-term psychiatric support and long-term treatment with antidepressants. He will need to go to a community-based alcohol rehabilitation service on his return to the community and he should attend Gamblers Anonymous for an extended period of time as well. It is likely he will be left with long term psychiatric problems, however, as a result of his service as a police officer." 37His Honour noted that Dr Westmore's opinion was dependent upon the honesty of the applicant. In that regard, his Honour did not accept the applicant when he said that he played almost no role in the commission of the offence. His Honour said that the objective evidence did not support that. His Honour also had some doubt about the causal connection between the various conditions from which the applicant was suffering and the commission of the offences. His Honour reached that conclusion because he believed that the applicant had minimised his role in the overall offence. Otherwise, his Honour was prepared to accept the opinion of Dr Westmore. 38When considering aggravating and mitigating factors under s21A of the Crimes (Sentencing Procedure) Act 1999 his Honour found no aggravating factors except that a degree of planning was involved in count 1. By way of mitigation, his Honour noted that the applicant had no record of prior convictions. Although his Honour had some doubts about the applicant's veracity, he accepted Dr Westmore's opinion that the applicant was unlikely to re-offend. He also accepted that the applicant had reasonable prospects for rehabilitation. 39His Honour found remorse to be a difficult issue because he was not satisfied that the applicant had been completely frank in relation to his role in the offences and as a result, was not satisfied that the applicant was fully remorseful for what happened. Nevertheless, his Honour was prepared to find that the applicant had a degree of remorse. 40His Honour found special circumstances on the basis that it was the applicant's first time in custody, he would need extended supervised rehabilitation upon his release, there was a degree of accumulation in the sentences and he would be serving his sentence under conditions of greater hardship than that experienced by other prisoners. His Honour had regard to the applicant's evidence that he spent his time in a single cell with only limited access to daylight. 41In his concluding remarks, his Honour said the following: "No strict question of parity arises because this offender faces entirely different charges to his sister. On the other hand, I am satisfied that they were both in this together and I think that from a practical point of view an issue of parity probably does arise. So far as their involvement is concerned, in my view it was similar, albeit that his sister was the one who actually performed the robbery." (ROS 18.1) APPEAL Ground of Appeal 1 42In relation to this ground of appeal, it should be noted that when the Crown sought to tender a "Statement of Agreed Facts" on the sentence proceedings, objection was taken on the basis that the document had not been agreed and purported to disclose criminality attaching to the applicant's involvement in the primary offence of stealing and breaking out of the RSL. 43When that objection was taken, his Honour said: "This statement of facts goes a lot further than an accessory after the fact and what I would like, Mr Crown, is a statement - I don't mind if it's given orally. I'll note it down - about what facts the Crown relies upon and what facts the Crown says the offender should be sentenced upon for being an accessory after the fact." (24.3.11, p3, line 48) After a short adjournment, the Crown orally set out the following as the facts it relied upon in relation to count 2. "CROWN: First, we say he's an accessory because of the maths, your Honour, firstly picking the co-accused or co-offender up and taking her from the scene. Secondly, warning her in terms of switching off her mobile phone so as to reduce the possibility of her phone being connected to the offence. Thirdly, disposing of items that she wore while committing the offence, and fourthly, taking the sum of money, whatever it was, after she, we say, obtained the sum of money, taking the balance of it and secreting it." (24.3.11, p4, line 36) 44Later that same day, the defence again raised the issue of the Statement of Facts being wider than was necessary and including matters for which the applicant was not being sentenced. Counsel for the offender, however, did not seek a ruling from his Honour but left the topic on the basis that discussions could take place between him and the Crown and something could be reduced to writing. Despite a further adjournment of four weeks, the matter was not raised again, nor was any order or direction sought from his Honour. 45The applicant submitted that his Honour erred in failing to rule on the objection taken by defence counsel. Inferentially, the ground of appeal suggests that not only should his Honour have ruled on the objection but his Honour should have rejected those parts of the Agreed Statement of Facts which dealt with matters leading up to and associated with the actual commission of the primary offence. 46In support of the submission, the applicant relied upon the following statements of principle: R v Uzabeaga [2000] NSWCCA 381, (Bell J with whom Dowd and Simpson JJ agreed): "34 A sentencing judge is not bound to accept and act upon the parties' agreement as to the factual basis upon which a prisoner is to be sentenced. In Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 at 606 Kirby P (as he then was) observed: "The foregoing rules do not oblige a sentencing judge passively, and unquestioningly, to accept facts as the basis for sentencing which are presented by the prosecution and/or the accused. The judge's sentencing discretion is to be exercised in the public interest. Even where the prosecution and the accused are agreed, they cannot fetter the judge's performance of the judicial function by their plea bargaining: See Malvaso v The Queen (1989) 168 CLR 227 at 223; R v Altham (NSW CCA, 18 June, 1992, unreported) per Hunt CJ at CL. A statement of agreed facts may appear to the sentencing judge to be inadequate for sentencing purposes. The judge may feel the need for further material, for example, by way of pre-sentence report to assist in the performance of the sentencing function. The parties cannot forbid the judge to seek such assistance. They have their respective functions to perform. But they cannot invade the judicial function any more than the judge may invade their functions." 35 This is not to say that a sentencing judge is free to make findings of fact inconsistent with the statement of agreed facts without warning of his intention so to do. In Chow in a passage preceding that which I have extracted above His Honour observed: "Indeed, circumstances may exist where a failure on the part of a judge to disclose matters of concern, or a course of conduct contemplated, will themselves amount to a departure from the rules of procedural fairness: cf Galea v Galea (1990) 19 NSWLR 263 at 279; Anderson v Judges of the District Court of New South Wales (1992) 27 NSWLR 701."" 47In Regina v H [2005] NSWCCA 282 the Court, Studdert, Bell and Latham JJ said: " 58 In a case in which agreement has been reached on the factual basis on which an offender is to plead guilty following a "plea bargain" (as appears to have happened in this case), the wisdom of tendering the entire Crown brief in addition to the agreed statement may be doubted. It runs the risk that the sentencer will take into account facts that would aggravate the offence contrary to the principles in R v De Simoni (1981) 147 CLR 383; see too R v Palu [2002] NSWCCA 381; 134 A Crim R 174 at 180. In this case the statements of the complainants contained descriptions of conduct for which this applicant was not criminally responsible. Some of this material found its way into the Judge's reasons and it formed the basis of findings that were adverse to the applicant. 59 As the Crown submits, the Judge was not bound by the parties agreement as to the factual basis on which the applicant was to be sentenced: Chow v DPP (NSW) (1992) 28 NSWLR 593 per Kirby P at 606. Where material in addition to an agreed statement is in evidence at a sentence hearing it is open to the judge to make a finding of facts upon it, notwithstanding that these may not accord with the agreed facts. However, the requirements of procedural fairness commend that when a judge intends to go outside the agreed statement of facts by recourse to other material in evidence and to sentence an offender on a basis that differs in substance to the agreed facts, he or she should inform the parties of that intention in order to give them an opportunity to deal with it: R v Uzabeaga [2000] NSWCCA 381 at 458-459, [34] - [38]." 48The Crown submitted that his Honour was not asked at any time to make any rulings with respect to the contents of the Statement of Facts. It submitted that in those circumstances, it was not now open to the applicant to argue that his Honour failed to do something which he was not asked to do. It submitted that the objections by the defence to the Statement of Facts were never articulated. In those circumstances, the Crown submitted that it was not for his Honour to remind the parties of this issue. 49In that regard the Crown relies upon the remarks of Simpson J (with whom Whealy JA and Hislop J agreed) in Madden v R [2011] NSWCCA 254 with respect to a ground of appeal which argued that the sentencing judge "failed to make inquiries about subsequent offences": "28 ... The applicant was, at sentencing, represented by a solicitor who, from the transcript, appears to have been experienced. Either he, or the Crown, could have made available to the sentencing judge the relevant material concerning the subsequent offences. 29 The nature of the ground ignores the fact that, even in sentencing proceedings, the courts of NSW operate on an adversarial system. The roles of counsel and the judge are clearly defined and trespassing by one upon the role of the other is not to be encouraged, certainly not by this Court. It is not the role of a judge to seek out evidentiary material, nor to determine the scope of the evidence put before him or her. Although, when this was raised with counsel on the application, it was said (I have no doubt correctly) that it does happen, in sentencing, that judges sometimes identify additional material that would assist them in the sentencing process, a judge must be very circumspect in intruding into the role of counsel." 50As was stated by the Court in Regina v H, it was unwise for the Crown to tender a Statement of Facts, which included material relating to the commission of the primary offence. Because of the risk that he might take into account facts that would aggravate the offence, contrary to the principles in R v De Simoni, it would have been prudent for his Honour to have required the Crown to amend the Statement of Facts so that the aforementioned risk would not arise. The fact that his Honour did not do that or take some similar course of action did not constitute error on his part. A reading of the transcript makes it clear that his Honour was not in terms asked to do anything by the parties. For the reasons set out by Simpson J in Madden , error on the part of his Honour has not been established and this ground of appeal should be dismissed. Ground of Appeal 2 51The applicant submitted that the principle in De Simoni had been breached in a number of respects by his Honour. The first instance of such a breach was said to have occurred when his Honour rejected the applicant's evidence in respect of count 3 on the basis that: "The fact that he would be satisfied with something like $3,800 as the proceeds of the offence when he was clearly actively involved in it himself, as evidenced from the surveillance footage and the SMS messages, also does not ring true". 52The applicant also relied upon the concluding remarks of his Honour where he said: "No strict parity arises because this offender faces entirely different charges to his sister. On the other hand, I am satisfied they were both in this together and I think from a practical point of view an issue of parity probably does arise. So far as their involvement is concerned, in my view it was similar, albeit that his sister was the one who actually performed the robbery." 53The applicant submitted that his Honour's recital in his review of the facts that "it was agreed between them that the robbery would be carried out on 9 August 2008" makes it clear that when his Honour was referring to the involvement of the applicant in the offences he had in mind an involvement in the primary offence, rather than the two offences for which the applicant was being sentenced. 54When considering this ground of appeal it is useful to have in mind exactly what was said in De Simoni. The principles were stated by Gibbs CJ (with whom Mason and Murphy JJ agreed) at 389: "The general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no-one should be punished for an offence of which he has not been convicted ... The combined effect of the two principles, so far as is relevant for present purposes, is that a judge, in imposing sentence is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence." 55It is clear from that statement of principle that the first example of breach relied upon by the applicant has not been made out. The comments upon which the applicant relied were made in the context of reasons why his Honour did not accept the applicant's evidence in respect of count 3. 56His Honour's reasons for rejecting the evidence of the applicant were based on demeanour, his unsatisfactory and unconvincing answers in cross-examination, his explanation for taking the bag to his ex-wife's premises and his evidence of his movements after dropping off the offender. None of these matters relate to the primary offence. 57His Honour's reference to the surveillance video and the SMS messages as a further reason for rejecting the evidence of the applicant was open to him. His Honour was using this material to assess the veracity and reliability of the applicant. He was not using the material as a circumstance of aggravation to be taken into account when sentencing the applicant. 58His Honour's approach in this regard was fully consistent with the guidance provided by the plurality in R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [24]: "24 Courts of Criminal Appeal in Australia have considered the subject of fact finding for sentencing many times in the last thirty years. Not all the questions that have been examined in those decisions must be considered now. For present purposes, it is enough to say that we reject the contention that a judge who is not satisfied of some matter urged in a plea on behalf of the offender must, nevertheless, sentence the offender on a basis that accepts the accuracy of that contention unless the prosecution proves the contrary beyond reasonable doubt. The incongruities that would result if this submission were accepted are well illustrated by the present case. The respondent swore that he was a courier but the judge disbelieved him. To require the judge to sentence a respondent on the basis that he was a courier is incongruous." 59When the second example relied upon by the applicant is placed in context, it is clear that his Honour well understood the difference between the offences for which the applicant was being sentenced and the offence for which his sister was sentenced. His Honour's reference to the applicant and his sister being "both in this together" need not and is not to be read as incorporating into his Honour's reasoning process the SMS messages and the surveillance video. The applicant was clearly aware of the commission of the offence (otherwise he would not have been there to drive his sister away). He drove her away, warned her as to precautions to be taken, disposed of clothing and took a substantial amount of money. All these actions amount to him "being in this together" with his sister insofar as the offences generally are concerned. 60The use of the word "parity" for the second time in the quotation recited at [52] herein which is relied upon by the applicant, is clearly not to be understood in its legal sense. In its context it is a reference to proportionality generally, with particular reference to the criminality of the applicant and his sister as it arose in relation to the specific offences of which they were convicted. 61While the reference to the applicant and his sister agreeing that the robbery should take place on 9 August 2008 should have been qualified by his Honour, that of itself does not amount to an error requiring the intervention of this Court. On the contrary, it has long been accepted that it is open to the sentencing judge to refer to the entirety of what has occurred in relation to the commission of an offence as setting the context for the consideration of the culpability of the offender in doing that which supported the charge against him or her ( Regina v Laurentiu (1992) 63 A Crim R 402 per Wood J at 415-416). 62A similar observation was made by Hunt CJ at CL (with whom Gleeson CJ and Blanch J agreed) in Regina v David Alan Lawless (CCA, unreported, 24 June 1994) where his Honour said: "Nor are those facts upon which the judge relied denied relevance by the sentencing principle laid down in The Queen v De Simoni (1981) 147 CLR 383. A sentencing judge may take into account all of the conduct of the prisoner, including that which would aggravate the offence, but may not take into account as matters of aggravation facts established in evidence which would have warranted a conviction for a more serious offence or which would have rendered the prisoner liable to a more serious penalty than that which is prescribed for the offence of which he has been found guilty." 63It follows that the second ground of appeal has not been made out. 64Even if this ground of appeal had been made out, I would not have intervened to reduce the sentence imposed by his Honour. In the circumstances of this case, the sentence was modest. Given the obvious planning involved and the significant sum of money taken (of which none has been recovered), I am of the opinion that no lesser sentence than that passed by his Honour is warranted in law (s6(3) Criminal Appeal Act 1912). 65The orders which I would make are that leave to appeal is granted but that the appeal is dismissed. 66ROTHMAN J : I agree with Hoeben J and the orders he proposes. ********** Amendments 27 April 2012 - Appearance of Crown omitted. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 December 2011