Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: HOLOHAN v R [2012] NSWCCA 105 Hearing dates: 17 May 2012 Decision date: 29 May 2012 Before: ALLSOP P at [1] HOEBEN JA at [ 2] BEECH-JONES J at [84 ] Decision: (1) Leave to appeal is granted. (2) The appeal is allowed. (3) The sentences imposed by his Honour on 16 December 2010 are quashed and in lieu thereof, the applicant is sentenced as follows: Count 1: Imprisonment with a non-parole period of 2 years and 6 months to commence 14 August 2009 and expire 13 February 2012 with a balance of term of 1 year to expire 13 February 2013. Count 2: Imprisonment with a non-parole period of 2 years to commence 14 May 2011 and expire 13 May 2013 with a balance of term of 8 months to expire 13 January 2014. Count 3: Imprisonment with a non-parole period of 11 years and 6 months to commence 14 May 2012 and to expire 13 November 2023 with a balance of term of 5 years and 3 months to expire 13 February 2029. The aggregate sentence is 19 years and 6 months with a non-parole period of 14 years and 3 months. Catchwords: CRIMINAL LAW - sentence appeal - three offences - most serious robbery inflicting grievous bodily harm when armed with an offensive instrument contrary to s 98 Crimes Act 1900 - female victim struck repeatedly on head with rock and robbed - whether offence properly characterised as "worst case" - relevant principles - whether the sentences imposed for all three offences were manifestly excessive - whether principle of totality observed. Legislation Cited: Crimes Act 1900 Cases Cited: Cahyadi v Regina [2007] NSWCCA 1; 168 A Crim R 41 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 243 FLR 28 at [303] - [305] Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [53] - [54] Muldrock v The Queen [2011] HCA 39; 85 ALJR 1154 at [27] Pearce v R [1998] HCA 57; 194 CLR 610 R v Amohanga; R v Rai [2005] NSW CCA 249; 155 A Crim R 202 R v El-Andouri [2004] NSWCCA 178 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 Regina v Twala (NSWCCA, unreported, 4 November 1994) R v Wilson [2005] NSWCCA 219 at [37] Veen v R (No 2) [1988] HCA 14; 164 CLR 465 Category: Principal judgment Parties: Roderick Holohan - Applicant Regina - Crown Representation: Counsel: Mr B Walker SC/R Mathur- Applicant Ms J Girdham - Crown Solicitors: Aboriginal Legal Service - Applicant S Kavanagh, Solicitor for Public Prosecutions - Crown File Number(s): 2009/46396 2009/64312 Decision under appeal Date of Decision: 2010-12-16 00:00:00 Before: Charteris DCJ File Number(s): 2009/46396 Judgment 1ALLSOP P: I agree with Hoeben JA. 2HOEBEN JA: Offences and sentence The applicant stood for sentence on 12 November 2010 before Charteris DCJ in the Sydney District Court for the following offences: (i) That he between 3pm on 10 May 2009 and 8.40am on 11 May 2009 at Wollongong did break and enter the business premises "Madsens Camera House and Imaging" and then in the said business premises did commit a serious indictable offence, to wit, stealing in circumstances of aggravation, to wit, he was in company with another person who is unknown. This offence is contrary to s112(2) of the Crimes Act 1900 and has a maximum penalty of 20 years imprisonment with a standard non-parole period of 5 years. (ii) That he between 11pm and 11.30pm on 12 May 2009 at Darlinghurst in the State of New South Wales did assault Anna Berry with intent to rob her. This offence is contrary to s94 of the Crimes Act 1900 and has a maximum penalty of 14 years imprisonment. (iii) That he between 5.33am and 6.43am on 13 May 2009 at Kings Cross in the State of New South Wales did rob Samantha Barlow of certain property and immediately before did inflict grievous bodily harm upon the said Samantha Barlow whilst armed with an offensive instrument, to wit, a house brick. This offence is contrary to s98 of the Crimes Act and has a maximum penalty of 25 years imprisonment with a standard non-parole period of 7 years. 3On 16 December 2010 his Honour sentenced the applicant as follows: Count 1: Imprisonment with a non-parole period of 2 years and 6 months to commence 14 August 2009 and expire 13 February 2012, with a balance of term of 1 year to expire 13 February 2013. Count 2: Imprisonment with a non-parole period of 4 years to commence 14 August 2011 and expire 13 August 2015, with a balance of term of 1 year and 3 months to expire on 13 November 2016. Count 3: Imprisonment with a non-parole period of 11 years and 6 months to commence 14 November 2013 and to expire 13 May 2025, with a balance of term of 5 years and 3 months to expire on 13 August 2030. 4The aggregate sentence was one of 21 years, with a non-parole period of 15 years and 9 months. His Honour did not find special circumstances. 5The applicant seeks leave to appeal from the severity of those sentences on the following grounds: Ground 1: The sentence imposed for the break, enter and steal was manifestly excessive. Ground 2: The sentence imposed for the assault with intent to rob was manifestly excessive. Ground 3: The sentencing judge erred in finding the offence of aggravated robbery while armed causing grievous bodily harm in the "worst case" category of offences. Ground 4: The sentence imposed for the aggravated robbery was manifestly excessive. Ground 5: The learned judge erred in his assessment of totality resulting in an overall sentence which was manifestly excessive. Factual background to offences 6Agreed Facts were placed before the court. In relation to count 1 an alarm was activated in a business known as "Madsens Cameras and Imaging" in Crown Street, Wollongong a little after midnight on Sunday, 10 May 2009. On investigation it was discovered that entry had been gained by forcing open a window to an adjacent building. The offender had then dropped through the roof and forced entry by kicking through a timber and plaster dividing wall providing access to the rear stairs. Goods and money to the value of approximately $5,500 were removed from the premises. 7On 18 June 2009 the applicant made admissions in relation to this offence. He said that he wanted to clear up outstanding matters. He fully participated in an electronically recorded interview and described the method of entry. He was accompanied by another male person at the time of the offence, whom he did not identify. He said that the goods which were stolen were sold to enable him to buy heroin. 8In relation to count 2, between 11pm and 11.30pm on 12 May 2009 the victim was walking north on Forbes Street, Darlinghurst. As she approached the intersection of Forbes Street and Montclair Lane, she noticed the applicant walking a short distance behind her. When the victims had passed Montclair Lane, the applicant approached her from behind and placed both his hands over her mouth, grabbing her and preventing her from screaming. The victim fell to her knees as she pushed away from the applicant. She started screaming very loudly thrashing her body, arms and the two bags she was carrying. The applicant ran away. These events were witnessed. 9A short time after 11.30pm, the applicant spoke to a Ms Walsh and said "I just tried to rob a girl. I tried to put my hand over her mouth and she fought me off and I ran off". At this time Ms Walsh noticed that the applicant had a big rock about 10cms in width in his hand. The applicant said "I'm gonna smash someone's jaw in and steal their bag". The applicant then walked off. 10In relation to count 3, the victim, Ms Barlow, was a sergeant of police attached to the Traffic Office at the Kings Cross Police Station. She was wearing civilian clothes at the time of the offence. At about 5.30am on 13 May 2009 she was walking to the Kings Cross Police Station to commence work. She was carrying two bags, a pink Enviro bag and a multi-coloured shoulder bag. The applicant was in Arthur Park at the time. 11The applicant picked up a rock from the garden bed in the park. In his interview he said "I picked up the rock to threaten her with it". He said that he was "desperate for money" and had "tried earlier to get a lady's handbag". 12The applicant approached Ms Barlow with the rock by his right side so that she could not see it. He asked her for the time. She stopped and as she turned, he struck her at least twice to the face with the rock in his right hand. She fell to the ground on her back still holding the two bags. The applicant said that he struck her at least two more times to the back of the head to make her release the bags. The applicant said that he "hit her twice before she fell to the ground. Hit her twice on the ground. Then dragged her up here". 13Medical reports indicated that the victim sustained blunt force head injuries with multiple lacerations to the scalp and forehead. She also suffered defensive wounds to her right hand. 14Ms Barlow lay on the ground unconscious. The applicant stated that he dragged her further into the park "so no-one could see her". A large pool of blood in the park confirmed that statement. During the struggle, items had fallen from her bag, including a New South Wales Police shirt. The applicant said that he put the shirt over the victim's face so that he could not see her. He said that he was "thinking I am dead, I have just killed a police woman. I thought she was dead I thought I'd killed her". 15The applicant collected the two bags and the property that had fallen out of the bags, including the NSW Police shirt, and wrapped this in his jacket which he held in front of him. He left Ms Barlow lying in the grass. He said that he "did not check on her condition because he thought she was dead". When he was about 100 metres from the park, the applicant searched the two bags. He kept her purse, her mobile phone and the shoulder bag. He tried to hide the other bag and items from it which he did not want. When the police subsequently found the pink Enviro bag, they also found a piece of brick with traces of blood and hair embedded and a blood soaked NSW Police shirt. 16Ms Barlow was discovered by patrolling police. Her hair and face were covered in blood and there was a large laceration over her right eye. She appeared dazed and could not immediately recognise any of the police, although she worked with them. She was able to recall her name but could not recall what had happened to her. 17On admission to hospital, Ms Barlow was found to be suffering from multiple scalp and forehead lacerations, multiple depressed fractures to the right occipital skull and right hand lacerations with an associated compound fracture of the right index finger tip and a closed fracture of the right middle finger. She had a minor avulsion fracture to the right little finger and facial fractures. She had suffered significant blood loss. She was placed into an induced coma and received emergency surgery to remove part of her skull and relieve pressure on the brain. A metal plate was inserted in her skull and metal fixateurs were attached to her right hand. 18The applicant was arrested on 14 May 2009 at the Dapto Railway Station. He was taken to Port Kembla Police Station and admitted to attacking the victim and hitting her to the head a number of times with a rock. After the interview he took part in a video walk-through with the police. He showed where he had discarded the victim's mobile phone. 19As a result of the attack, Ms Barlow suffered a significant brain injury. As of July 2010, she has been left with continuing thoracic and lumbar pain and an obvious parietal deformity. She has suffered a permanent loss of her sense of taste and smell. The rehabilitation process was lengthy and painful and is continuing. The brain injury which she suffered put her at risk of developing treatment resistant psychiatric symptoms. She was more vulnerable to organic personality changes and dementia during the ageing process. 20From a psychological/psychiatric point of view, Ms Barlow has been diagnosed with post-traumatic stress disorder of moderate severity and a major depression disorder. These conditions, together with the brain injury, have produced disabilities such as lowered concentration, short-term memory loss, distraction by PTSD thoughts and images, and reduced information processing capacity. Although protected by her quite robust and stoic premorbid personality, she now carries disabilities regarding her self-image with bouts of low confidence and personal vulnerability. Applicant's criminal record 21In order to understand his Honour's remarks on sentence, it is necessary to set out the applicant's criminal record in some detail. The applicant has an extensive criminal history covering more than 20 years. He first appeared in the Children's Court in June 1982 (aged 12) for an offence of malicious injury. Between then and May 1983 he committed 13 further offences (10 break and enter, 1 malicious injury and 2 stealing). In 1984 he was committed to an institution for offences of stealing and absconding. In August 1984 he was convicted of 12 offences (5 break enter and steal, 5 stealing and 1 each of malicious injury and take and use conveyance). In November 1984 he was dealt with for a range of offences including an offence of stealing a motor vehicle and two of break enter and steal. 22During 1985 he was convicted of three counts of being carried in a stolen car and for stealing money. In August 1985 he was convicted of offences of break enter and steal, 4 counts of stealing a car, 3 of being carried in a stolen car and 1 of maliciously setting fire to a car. During 1986 he was committed to an institution for 2 years for an assault and rob and separately for 6 months for offences of malicious injury and absconding. In early 1987 he was convicted of 4 counts of assault, a count of stealing and a count of malicious injury. . 23After turning 18, the same pattern continued. In 1988 and August 1992 he was convicted of the offences of malicious injury, 4 counts of using a car without the owner's consent, assault, malicious damage, goods in custody, escaping lawful custody, assault occasioning actual bodily harm and administering a prohibited drug. He served his first term of imprisonment in 1992. 24Between 1993 and 1998 he was convicted of stealing, driving while his licence was cancelled, failing to stop after an accident, driving in a manner dangerous, breaching an apprehended violence order, malicious damage, being armed with intent to steal and contravening an AVO. In 1998 he served a further term of imprisonment. 25In February 1999 he was sentenced in the Wollongong District Court for maliciously wounding a female on 16 November 1997. This involved punching a former partner, threatening her with a kitchen knife and then stabbing at her so as to slice a finger. He was sentenced to imprisonment with a non-parole period of 1 year and 6 months and a balance of term of 2 years. He was released to parole on 1 July 1999. 26Between May 2000 and August 2001 the applicant resided in Queensland where he committed offences, including one of burglary, and appeared before a magistrate's court on seven occasions. He served a further term of imprisonment from which he was released to parole on 7 May 2001. 27In 2002 he was sentenced to a term of imprisonment for destroying or damaging property and was released to parole in September 2002. In 2003 the applicant received a gaol sentence for possessing housebreaking instruments and for three counts of goods in custody. In early 2004 he was sentenced to imprisonment for two break, enter and steal offences. 28In November 2004 he was sentenced in the District Court for an offence of maliciously inflicting grievous bodily harm on a woman without provocation. Having engaged the victim in conversation, he approached her from behind, pushed her to her knees and then struck the back of her head six times with a blunt object. He struck a further three blows after the victim had put her hands to her head. The victim's injuries included a substantial laceration to her head, grazing and bruising to her head. She suffered multiple fractures to her fingers and knuckles. The applicant was sentenced to imprisonment, with a non-parole period of 3 years and a balance of term of 2 years. 29On 25 May 2006 the applicant was released to parole but on 8 June 2006 parole was revoked and the applicant served the balance of the prison term until 27 January 2008. 30On 21 March 2008 the applicant was sentenced in the District Court for an offence of break enter and steal. The sentence was imprisonment with a non-parole period of 2 years and a balance of term of 1 year. 31The applicant was released to parole on 18 April 2009 and committed the first of these offences on 14 May 2009. His parole was revoked on 8 May 2009 for reasons unrelated to these offences and it was recommended that he serve the balance of the sentence, which was due to expire on 28 April 2010. Remarks on sentence 32The applicant did not give evidence. He relied on two psychological reports by Dr Christine Gillies of March 2008 and 9 November 2010. The earlier report was prepared for the sentencing proceedings for the offence of break enter and steal for which the applicant was sentenced in March 2008. The second report was prepared for the matters now before the Court. 33Having reviewed the facts relating to the offences, his Honour had regard to the applicant's subjective case. His Honour noted that the applicant was of Aboriginal descent and had been born in 1969. He had a difficult home life and had left home at an early age. At the time of the commission of the offences, he was almost 40 years of age. His Honour characterised the applicant's criminal record as an appalling one, with an extensive history of dishonesty and violence. His Honour then set out salient parts of that criminal record. 34His Honour had regard to the extensive nature of the injuries suffered by Ms Barlow, the treatment which she had received and the continuing disabilities, both physical and mental, from which she continued to suffer. His Honour referred particularly to the photographs, which showed the extent of the surgery to her head. 35His Honour noted that the applicant had been released to parole on 18 April and that two days following his release, his parole orders and requirements were explained to him. Referrals were arranged for drug counselling and assessment, as well as individual counselling including a referral to the Aboriginal Client Service Officer in the Community Compliance Group. A home visit by Probation and Parole officers was arranged for 5 May. The applicant did not attend any of the counselling sessions which had been arranged for him, nor was he home on 5 May when the scheduled visit by Probation and Parole personnel took place. His Honour concluded that from the time of his release on parole, the applicant had no regard for the obligations created thereby. 36His Honour was sceptical of the conclusions arrived at by Dr Gillies in her two reports. In the March 2008 report, Dr Gillies had observed "He pointed out he was careful not to hurt anyone physically when stealing to obtain money for drugs". Later in the report, Dr Gillies said: "He spoke in a manner and used vocabulary for describing his psychosocial history that made it clear that he had spoken to other people with psychological knowledge about his past. In fact his knowledge of psychological terms was quite extensive. He generally had an extensive vocabulary far beyond what is to be expected in an early school leaver." 37Dr Gillies set out issues which had arisen because of his Aboriginal heritage. She was told that he had a difficult upbringing and was raised by his mother and stepfather. He said that by age 12 his home situation was "totally unbearable" so that he left. He then lived on the streets of Wollongong and began committing offences to support himself. He said that in due course he was committed to a boys' home. The applicant told Dr Gillies that he had abused alcohol and illicit drugs from an early age. 38In the first report, Dr Gillies concluded that the applicant was an habitual offender. She noted that he had a history of not sticking to commitments that he had made. Nevertheless, she thought that psychologically the applicant had reached a "make or break" time. She said: "He has reached a critical juncture where he could place himself on an alternative pathway. He wants to change and he has already stopped using drugs." 39In the second report, Dr Gillies repeated the history she had earlier recorded and set out what she had been told by the applicant concerning his movements in the gaol system before he was released on parole. He complained that he had been moved around so much that he had lost contact with his counsellors and had ended up in Junee with an Aboriginal gang of inmates who had encouraged him to use illegal drugs. The applicant told her that there were other courses he wished to undertake within the prison system which had been denied to him. He described the offences and expressed regret for his attack upon the victim. On the basis of that history, Dr Gillies was very critical of the absence of adequate support for the applicant when he was released to parole. 40Having read the reports and being aware of the applicant's criminal history, his Honour set out the following conclusions: "... she seems to be completely accepting of the history given to her by the offender. She said he was at a crossroads in 2008 or to use her words "make or break time". There is an aspect of her being somewhat of an apologist for the offender in her second report. In my view her report places far too much criticism on the alleged shortcomings of rehabilitation offered to him on his release. The fact of the matter is, and the experience of courts overwhelmingly is, that some individuals make a decision to turn their lives around; they make serious attempts to rid themselves of addiction and become worthwhile members of the community. This offender in my view has been somewhat manipulative in the history he has given Dr Gillies. I am very cautious about accepting her opinion. It is my view that any rehabilitation must first start with the offender. There is no magic bullet, no magical application of therapy or counselling which will turn an unwilling offender's life around. I am satisfied on the material that is before me that this offender has not made the decision to turn his life around. Whether he ever chooses to do so I do not know. I accept that he is intelligent enough and manipulative enough to express the appropriate words to encourage in others some optimism that he will embrace a new approach to life. But in my view one ought to look at his actions more than his words and his actions are not consistent with a person who is wishing to turn his life around." (ROS 16.3) 41Although the applicant did not give evidence, and accordingly had not confirmed the histories in the psychological reports, his Honour gave considerable weight to the fact that by his actions the applicant co-operated with the police. He had admitted the attack upon Ms Barlow, willingly provided a statement and agreed to a walk-through interview. His Honour considered that those matters were consistent with a genuine regret for the commission of the attack upon Ms Barlow. 42His Honour assessed the attack upon Ms Barlow as being in the worst category of offences of that kind. His Honour took into account the aggravating matters of the use of a rock and the extensive injuries suffered by the victim. His Honour also had regard to matters individual to the applicant, which would operate to place any penalty imposed within the upper level of the range of penalties for offences of that kind. His Honour took into account the applicant's very bad criminal record (Veen v R (No 2) [1988] HCA 14; 164 CLR 465 and R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566). His Honour also took into account that the applicant was on parole at the time of the commission of this offence. By way of mitigation, because of his early plea of guilty and co-operation with authorities, his Honour allowed him a discount of 30 percent. 43In passing sentence, his Honour declined to find special circumstances. In that regard his Honour concluded that there was no point in providing a long period of parole since in the past the applicant had consistently ignored parole supervision. 44His Honour assessed the offence in count 2 to be in the middle range of criminality for offences of that kind. As before, he took into account the applicant's criminal record and the fact that he was on parole. For the reasons already indicated, his Honour allowed a discount of 30 percent. 45His Honour assessed the offence in count 1 to be within the middle range of seriousness. His Honour considered that the applicant's co-operation with the authorities in that matter was considerable since they were unaware of his participation in the offence. Taking that into account and his plea of guilty, his Honour allowed a total discount of 50 percent in the applicant's favour. 46On the question of totality, his Honour took into account the purposes of sentencing: "But in relation to each of the offences of course I do not lose sight of the purposes of sentencing. I must ensure that this offender is adequately punished. I must prevent crime by deterring him and others from committing similar offences. I must protect our community from this offender. The Parliament also requires that I denounce his conduct and I recognised the harm done to the individual victims and to our community. I must also promote his rehabilitation. All of those purposes apply in relation to my sentencing of the offender. As regards Ms Barlow I can observe that the behaviour is so appalling that I must give greater weight to the protection of our community from this offender than perhaps other purposes of sentencing. I have sought to give weight to each of them." (ROS 20.5) 47In order to achieve those purposes, his Honour partly accumulated each sentence. Ground of Appeal 1: The sentence imposed for the break enter and steal was manifestly excessive. 48The applicant submitted that when one took account of the 50 percent discount, the notional starting point for his Honour's sentence was 7 years. He submitted that the objective circumstances of the offence did not justify such a high starting point. The offence was in many respects unremarkable and the circumstance of aggravation, i.e. being in company, was a matter unknown to the victim. There was no gratuitous damage to property and the amount stolen was relatively small. The offence was not committed in a person's home nor did it involve confronting a person in its execution. 49By reference to sentencing statistics, the applicant submitted that a starting point of 7 years would indicate a sentence which fell within the top 2 percent of sentences imposed for this offence. He submitted that the objective circumstances of the offence did not warrant a sentence at the top of the range. 50By reference to the aggravating factors identified by his Honour, i.e. that he was on parole and his criminal record, the applicant submitted that 17 of the 20 entries for break and enter offences on his record, occurred when he was a juvenile. The applicant submitted that his Honour had wrongly applied Veen (No 2) and McNaughton in that these matters were not matters of aggravation. In summary, the applicant submitted that 7 years was not a proportionate sentence reflecting the objective "mid-range" seriousness of the offence. 51The reliance on statistics in relation to this offence is unhelpful. The applicant is comparing the notional sentence of 7 years with actual sentences imposed, i.e. sentences after any discount has been applied. Accordingly, no valid comparison is possible. In addition, there are the other limitations associated with statistics set out most recently in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 243 FLR 28 at [303] - [305] and Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [53] - [54]. 52Moreover, the objective circumstances of the offence were not insubstantial. The property loss was over $5,500 which does not include the damage caused to the premises. The fact that the premises where the offence took place comprised a business which traded in goods which were clearly in demand and could be quickly exchanged for cash is indicative of some planning. Importantly, as his Honour noted, the offence was committed within three weeks of the applicant being released to parole after his conviction for an identical offence. 53Those considerations determined the upper boundary of the sentencing range available to his Honour, which in the exercise of his wide sentencing discretion he determined to be 7 years. It was then open to his Honour within that upper boundary to use the applicant's prior criminal record with its implications as to retribution, deterrence and the protection of society to determine the final sentence and in particular the non-parole period. 54In relation to grounds of appeal raising "manifest excess", the plurality in Hili said: "59 ... And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate "is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases". Rather, as the plurality went on to say in Wong, "intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons". But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that "the sentence imposed in these matters is so far outside the range of sentences available that there must have been error"." 55The choice of 7 years as a starting point for the head sentence, having regard to the objective circumstances of this offence, was well within his Honour's sentencing discretion. Thereafter, his Honour was entitled to place considerable weight upon the applicant's criminal record to determine where within that range the offence fell and to determine that the offence merited more serious punishment than if it were looked at in isolation. 56This ground of appeal has not been made out. Ground of Appeal 2: The sentence imposed for the assault with intent to rob was manifestly excessive. 57The applicant submitted that once the 30 percent discount was taken into account, his Honour's starting point for the head sentence in relation to this offence was 7 years and 6 months. The applicant noted that his Honour found that the offence fell within the mid-range of criminality for offences of that kind. By reference to the guideline judgment in R v Henry [1999] NSWCCA 111; 46 NSWLR 346, which he acknowledged was not directly comparable, the applicant submitted that it was clear that his Honour's start point was outside the appropriate sentencing range. The range suggested in Henry was 4 to 5 years imprisonment. 58The range suggested in Henry is not entirely irrelevant to the circumstances of this offence. With the exception of the first factor, i.e. a young offender with no, or little criminal history, the other factors in Henry favoured the applicant. There was no weapon used, there was a limited degree of planning, there was limited actual violence, no amount of money was taken and there was a plea of guilty. 59As the above analysis demonstrates, the objective circumstances of the offence in count 2, even allowing for the aggravating factor of the offence having been committed while on parole, would not justify a start point as high as 7 years and 6 months. While the applicant's criminal record is an aggravating circumstance, its application is limited as set out in Veen and McNaughton in that the upper boundary is fixed by the objective circumstances. In this case, an upper boundary of 7 ½ years is simply too high. 60The reasoning behind such a conclusion cannot be expressed in more detail. As was said in Hili: "60 ... No doubt, as the Court went on to say, manifest error "arises because the sentence imposed is out of the range of sentences that could have been imposed and therefore there must have been error, even though it is impossible to identify it". But what reveals manifest excess, or inadequacy, of sentence is consideration of all of the matters that are relevant to fixing the sentence. The references made by the Court of Criminal Appeal to the circumstances of the offending and the personal circumstances of each offender were, therefore, important elements in the reasons of the Court of Criminal Appeal." 61I am satisfied that the sentence imposed for the assault with intent to rob was manifestly excessive and because of the requirements of totality, this will require that the applicant be re-sentenced. Ground of Appeal 3: The sentencing judge erred in finding the offence of aggravated robbery while armed, causing grievous bodily harm in the "worst case category" of offences. Ground of Appeal 4: The sentence imposed for the aggravated robbery was manifestly excessive. 62The applicant submitted that the notional starting point for the sentence imposed for count 3 was only 1 month short of imprisonment for 24 years for an offence which carried a maximum penalty of 25 years imprisonment. The applicant submitted that the objective seriousness of the offence, although high, would not place it into the worst case category and therefore his Honour's notional starting point for the sentence revealed error. The applicant relied upon the observation in Regina v Twala (NSWCCA, unreported, 4 November 1994): "However in order to characterise any cases being in the worst category, it must be possible to point to particular features which are of great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from subjective features mitigating the penalty to be imposed)". (Badgery-Parker J at p 7.) 63The applicant submitted that by reference to the objective circumstances of the offence, it was "recognisably" outside the worst case category. The applicant submitted that there was no gratuitous violence, the victim was not deprived of her liberty in furtherance of the offence, nor was the attack prolonged in any way. The planning of the offence was limited and done in circumstances where the applicant's state of mind was affected by his desperation for drugs. The applicant armed himself with a rock, being an object notably less dangerous than weapons used in comparative cases. The amount of property stolen was relatively small and the applicant acted alone. The applicant submitted that, but for the injuries sustained by Ms Barlow, the offence would be considered in the mid-range of seriousness for offences of its nature. The applicant did accept that the serious injuries sustained justified the placement of the offence above the mid-range of seriousness, but not into the worst case category. 64The applicant referred the Court to two cases in support of his submissions. In R v El-Andouri [2004] NSWCCA 178 the offender robbed an employee of a service station while he was carrying in his car the bank bag containing an amount of $11,855. The robbery was premeditated and executed by the offender and his co-offender by deliberately ramming the victim's car. The victim was violently assaulted and left for dead on the side of the road. He was on a life support machine, remaining in a coma for some months. The medical evidence indicated that fragments of his skull were broken off inside the skull cavity, he sustained a severe closed head injury and a right skull fracture. The victim was left with permanent brain damage and was largely paralysed. The offender received a sentence of 16 years with a non-parole period of 9 years. He was also sentenced for other matters including an assault with intent to rob armed with an offensive weapon. 65In R v Amohanga; R v Rai [2005] NSW CCA 249; 155 A Crim R 202 the victim was lured to a flat under the pretext that a prostitute was going to have sex with him. There the two co-offenders attacked him. He was beaten "mercilessly", one offender being armed with a tyre lever and the other with an iron bar about 4 feet in length. The victim was beaten unconscious and left at the scene. The victim underwent a craniotomy and later, a cranioplasty. He was left seriously and permanently impaired, both physically and mentally, and would require support for the rest of his life. Both offenders had histories of offences involving armed robbery and violence. A successful Crown appeal increased the sentence from 10 years imprisonment with a non-parole period of 6 years to 12 years with a non-parole period of 8 years and 6 months. 66The characterisation of the objective circumstances of the offence by the applicant is too generous. In my opinion, there was gratuitous violence exhibited towards Ms Barlow. No demand for property was made before she was attacked. The attack itself, i.e. striking blows to the face with a house brick, was brutal and savage. The issue of deprivation of liberty is entirely neutral. In this case, the victim was rendered unconscious so that the question of deprivation of liberty simply did not arise. The same observation is applicable to the proposition that the attack was not prolonged in any way. 67The juxtaposition of lack of planning and desperation for drugs, over-simplifies what occurred. Apart from the fact that a need for drugs is a subjective matter rather than an objective circumstance (Muldrock v The Queen [2011] HCA 39; 85 ALJR 1154 at [27]) there was some planning and the applicant's intention went beyond satisfying his desire for drugs. This is evident from his comment to Ms Walsh, some five hours before to the effect: "I'm gonna smash someone's jaw in and steal their bag". Quite clearly, the applicant had a dual intention not only to obtain money for drugs, but to cause pain and injury to effect that purpose after having been frustrated by the rebuff in his earlier attempted robbery. 68The submission that arming oneself's with a rock, rather than a more modern weapon, makes an offence less objectively serious is surprising. It is not the type of weapon which is significant, but the intention behind the arming of an offender and how the weapon is deployed. Despite the applicant's protestations to the contrary, it is clear from his actions that his intention in arming himself with the house brick or rock was not just to threaten a potential victim but to injure the victim by rendering her helpless after a blow to the head. 69In submissions the applicant said that he was not seeking to support these grounds of appeal by reference to some gruesome sequence of offences, each being more serious than the other. However, the submission to the effect that the injuries to Ms Barlow did not put the offence into a worst case category seeks to do exactly that. The injuries to Ms Barlow were horrific and life-threatening. The medical evidence is that her amenity of life has been substantially ruined and that she will suffer significant physical and psychological consequences for the rest of her life. It is unhelpful to submit that in some other cases injuries suffered by the victims have been more serious. 70As was said in Veen No 2: "... the 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] HCA 46; (1987) 61 ALJR 525, at p 527; 74 ALR 1, at p 5. 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." 71The crucial question is whether on the objective circumstances of the offence in count 3, it was open to his Honour to place it in the worst case category. For the reasons set out in the factual background and above, I am firmly of the opinion that it was open to his Honour to do so. 72In relation to the applicant's reliance upon the cases of El-Andouri and Amohanga, I have already referred to the observations of the plurality in Hili. It is useful to set out what was said: "53 Next, in seeking consistency, sentencing judges must have regard to what has been done in other cases. In the present matter, the prosecution produced detailed information, for the sentencing judge and for the Court of Criminal Appeal, about sentences that had been passed in other cases arising out of tax evasion as well as cases of customs and excise fraud and social security fraud. Care must be taken, however, in using what has been done in other cases. 54 In Director of Public Prosecutions (Cth) v De La Rosa, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: "Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts." But the range of sentences that have been imposed in the past does not fix "the boundaries within which future judges must, or even ought, to sentence". Past sentences "are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence" (emphasis added). When considering past sentences, "it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned". 55 As the plurality said in Wong: "[R]ecording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were."" 73An examination of the two cases to which this Court was referred, not surprisingly, bears out those cautionary directions by the High Court. 74El-Andouri was an appeal against severity by the offender. The fact that this Court rejected the appeal indicates only that the sentence passed was within the range of sentences available in that no lesser sentence was appropriate. It does not mean that a higher sentence would not also have been within the range of proper sentencing options. Significantly, no issue was taken with the sentencing judge's categorisation of the offence as being in the worst category. The offender in that case had the advantage of youth (19) and a comparatively minor criminal record by comparison with that of the applicant in this case. In addition, he was found to have good prospects of rehabilitation; he had demonstrated contrition and had family support. The applicant in this case did not have the advantage of such findings. 75In Amohanga the first distinguishing feature is that this was a Crown appeal. At the time that appeal was heard, the principle of double jeopardy applied so that while the court was entitled to increase the offender's sentence, such an increase "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 they may be lower" (Amohanga at [43] per RS Hulme J). 76The offender in that case was aged 26 and there were totality problems in that he had been sentenced by another judge for entirely unrelated offences onto which the offences, the subject of the appeal, had been accumulated. A number of errors had been made by the sentencing judge to the offender's detriment which also had to be taken into account by this Court. There were also issues of delay and uncertainty which had to be taken into account (Amohanga at [65]). 77These cases are of limited value, not only for the reasons set out in Hili, but because their factual backgrounds are so different to that under consideration in these proceedings. 78The issue is not whether a lower sentence could have been passed in respect of count 3, but whether it was open to his Honour to impose the sentence which he did. If, as I have found, it was open to his Honour to categorise this offence as being in the worst category, then in accordance with Veen, it was open to his Honour to have regard to the applicant's appalling criminal record when taking into account the principles of retribution, deterrence and the protection of society. 79A brief statement of the matters to which his Honour had regard in relation to count 3 make it clear why it was open to his Honour to categorise this offence as falling within the worst category and to impose the sentence which he did. The applicant intended to bash someone and get their bag. He chose a female who was vulnerable by reason that she was alone on a deserted early morning street. The attack took place in a secluded setting. Without any demand for her property, Ms Barlow was set upon in an unprovoked and ferocious attack. While the weapon may have only been a rock or house brick, it was used with devastating consequences and was obviously capable of causing serious injury. The attack was explosive in execution and continued while the victim was on the ground to the point where the applicant thought that he had killed her. Added to those matters were the devastating injuries suffered by Ms Barlow and their consequences, together with the need to protect the public having regard to the applicant's appalling criminal record. Ground of Appeal 5: The learned judge erred in his assessment of totality resulting in an overall sentence which was manifestly excessive. 80The applicant accepted that Pearce v R [1998] HCA 57; 194 CLR 610 requires the fixing of "an appropriate sentence" for each offence before considering questions of accumulation, concurrence or totality. The applicant also accepted that a determination whether to accumulate or not is discretionary and that there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively (Cahyadi v Regina [2007] NSWCCA 1; 168 A Crim R 41). The applicant submitted, however, that after an appropriate sentence is imposed in respect of each offence and the question of accumulation is addressed, the total sentence imposed must properly reflect the totality of the criminality (R v Wilson [2005] NSWCCA 219 at [37]). The applicant submitted that not only were the individual sentences excessive, but that the degree of accumulation of each sentence had produced error resulting in an aggregate sentence that was manifestly excessive and exceeded the total criminality involved. 81As already indicated, I have concluded that the sentence passed for count 2 is manifestly excessive and that the applicant will need to be re-sentenced in relation to that offence. Had I not reached that conclusion, there is nothing in the accumulation of the sentences by his Honour which bespeaks error. It is only because of the need to re-sentence the applicant in respect of count 2 that it is necessary to adjust the extent of the concurrency and accumulation which is reflected in the aggregate sentence passed by his Honour. 82Taking into account the objective and subjective circumstances to which I have already referred, the sentence which I propose for count 2 is imprisonment with a non-parole period of 2 years and a balance of term of 8 months. 83Allowing for an appropriate adjustment for totality, the orders which I propose are as follows: (1) Leave to appeal is granted. (2) The appeal is allowed. (3) The sentences imposed by his Honour on 16 December 2010 are quashed and in lieu thereof, the applicant is sentenced as follows: Count 1: Imprisonment with a non-parole period of 2 years and 6 months to commence 14 August 2009 and expire 13 February 2012 with a balance of term of 1 year to expire 13 February 2013. Count 2: Imprisonment with a non-parole period of 2 years to commence 14 May 2011 and expire 13 May 2013 with a balance of term of 8 months to expire 13 January 2014. Count 3: Imprisonment with a non-parole period of 11 years and 6 months to commence 14 May 2012 and to expire 13 November 2023 with a balance of term of 5 years and 3 months to expire 13 February 2029. The aggregate sentence which I propose is 19 years and 6 months with a non-parole period of 14 years and 3 months. 84BEECH-JONES J: I agree with Hoeben JA. ********** Amendments 18 July 2012 - omission of name of junior counsel for the applicant. Amended paragraphs: cover sheet 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: 29 May 2012