Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Tuvunivono v R [2013] NSWCCA 176 Hearing dates: 9 July 2013 Decision date: 02 August 2013 Before: Basten JA at [1]; Price J at [16]; Campbell J at [76]; Decision: Leave to appeal granted. Appeal dismissed. Catchwords: CRIMINAL LAW - sentencing - whether fixed term sentence represents a notional non-parole period or full term - fixed terms imposed within range for full term set out in guideline judgment - whether error requiring intervention - sentence appeal - armed robberies - whether extension of time should be granted - whether procedural unfairness in not allowing discount for guilty pleas indicated during proceedings on sentence - whether non-parole period erroneously extended - whether sentence manifestly excessive. Legislation Cited: Crimes Act 1900 s 94, s 97(1), s 344A(1) Crimes Sentencing Procedure Act 1999 (NSW), s 45, s 53A, s 55 Pawnbroker and Second-hand Dealers Act 1996 s 24 Cases Cited: Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115 Collier v R [2012] NSWCCA 213 Fairbairn v R [2006] NSWCCA 337; (2006) 165 A Crim R 434 Lipchin v R [2013] NSWCCA 77 Pearce v The Queen [1998] HCA 57; 194 CLR 610 Power v The Queen [1974] HCA 26; 131 CLR 623 R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 R v Dunn [2004] NSWCCA 346 R v Fernando [2002] NSWCCA 28 R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 R v Newman [2004] NSWCCA 113 R v Ponfield [1999] NSWCCA 435; (1999) 48 NSWLR 327 R v Thomson; R Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 Re Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 Trujilo-Mesa v R [2010] NSWCCA 201 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Category: Principal judgment Parties: Maxwell Tuvunivono (Applicant) Crown (Respondent) Representation: Counsel: I McLachlan (Applicant) T Smith (Respondent) Solicitors: Legal Aid NSW (Applicant) Director of Public Prosecutions (Respondent) File Number(s): 2009/1272 Decision under appeal Jurisdiction: 9101 Date of Decision: 2010-04-08 00:00:00 Before: Knox DCJ File Number(s): 2009/1272 Judgment 1BASTEN JA: The applicant sought leave to appeal with respect to sentences imposed upon him for 10 offences of armed robbery or attempted armed robbery to which he had pleaded guilty. Fourteen further offences, including 11 of armed robbery and one attempted armed robbery, were included on a Form 1, to be taken into account in sentencing for the first count. 2The background circumstances, the sentences and the grounds of appeal are all fully set out in the judgment of Price J and need not be repeated. I agree with Price J that there should be a grant of leave to appeal in respect of each sentence and agree, with one exception, with his reasons for rejecting each ground. 3The exception is ground 3. That ground asserted that the individual sentences were manifestly excessive, the primary focus being upon the fact that on each sentence (other than for count 1) the trial judge had imposed a fixed term of imprisonment of four years (for each of counts 7, 8 and 10), four years and six months (for each of counts 4, 5, 6 and 9) and five years (on counts 2 and 3). On count 1 the applicant was sentenced to a non-parole period of six years and four months, with an additional term of four years. 4There was a degree of accumulation in respect of each sentence. Thus, the second and third four year terms were each accumulated by one month on the previous term; the four year and six month terms were each accumulated by two months on the previous sentence; the five year terms were each accumulated by three months on the previous sentence and the final sentence on count 1 was accumulated by four months on the previous sentence. In the result, the final sentence commenced one year and eight months after the commencement of the first sentence imposed. The final sentence having a non-parole period of six years and four months, the total period of mandatory custody was eight years. The balance of parole on the final sentence was four years, giving a total sentence of 12 years imprisonment. As argued, ground 3 was primarily directed to the length and accumulation of the fixed term sentences. 5The judgement on sentence referred explicitly to the guidelines for sentencing for offences of armed robbery having certain common characteristics in R v Henry [1999] NSWCCA 111; 46 NSWLR 346. In that case, Spigelman CJ (with the concurrence of Wood CJ at CL, Newman and Simpson JJ) held that "sentences for an offence of the character identified above should generally fall between four and five years for the full term": at [165]. After dealing with other authorities and the need for a degree of accumulation, the trial judge stated (judgment, p 24): "Each of the robberies, as well as the attempted robberies, come within the Henry factors in terms of that guideline judgment. Each would warrant the imposition of a sentence of the range suggested in that decision." 6It is not possible to read that statement as referring to some of the offences, but not others: such an approach would require identification of which offences the trial judge was referring to, but no basis for such an exercise is revealed by the reasons. 7It does not follow that the sentence on each offence was to fall within the range suggested in Henry; given the significant number of serious offences contained in the Form 1, it was inevitable that a greater sentence would be imposed in respect of count 1. Nevertheless, the offence in count 1 was clearly one of the offences which, taken in isolation, was held to fall within the Henry guidelines. 8Further support for that conclusion derives from the fact that each of the nine fixed terms fell within the range identified in Henry, namely four years to five years. The error, if there were one, lay in equating a fixed term with a full term of imprisonment. 9The trial judge was not imposing an aggregate sentence of imprisonment, pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Procedure Act"). Nor was he sentencing for offences carrying a standard non-parole period. Accordingly, it was open to him to decline to set a non-parole period: Sentencing Procedure Act, s 45(1). In a case involving the imposition of numerous sentences with elements of accumulation, that course is entirely appropriate. Nevertheless, subject to any question of totality, it is necessary to impose sentences which are appropriate to each offence: Pearce v The Queen [1998] HCA 57; 194 CLR 610. It is also a fundamental principle of sentencing that the non-parole period is the minimum period of imprisonment which the offender must serve for the specific offence: Power v The Queen [1974] HCA 26; 131 CLR 623 at 628. Because there is no power to release a prisoner during a fixed term, the fixed term should also be understood to be the minimum period which the sentencing judge deems appropriate in the circumstances of the specific offence. Finally, it is necessary that any period of accumulation be fixed by reference to the non-parole period of the sentence or the term of the sentence where there is no non-parole period: Sentencing Procedure Act, s 55(2) and (4). 10As explained in Lipchin v R [2013] NSWCCA 77 by Hidden J (Bathurst CJ and Button J agreeing) a fixed term sentence is usually to be equated with a non-parole period: at [16]; Collier v R [2012] NSWCCA 213 at [56] (R A Hulme J); R v Dunn [2004] NSWCCA 346 at [161] (Handley JA, James and Howie JJ). Once it is understood that an appropriate sentence must be imposed for each offence, it is clear that the fixed term must equate with an appropriate minimum period of imprisonment. Were it otherwise, and each of the other convictions were set aside on appeal, the offender would serve in custody more than the minimum term appropriate to that offence. 11In the present case, the sentencing judge had expressly (and correctly) identified the range for sentencing to be that prescribed by Henry. He imposed sentences within that range: they were, in accordance with the language of Henry, to be treated as full terms of imprisonment. If they were to be treated as equivalent to non-parole periods, the full terms (absent special circumstances, which were not found) would have ranged from five years four months to six years eight months, being a range commencing just beyond the Henry range, but extending well beyond it. It is improbable that the trial judge intended such sentences, absent any indication that he was sentencing within such a range. 12It follows that each of the sentences imposed on counts 2-10 was manifestly excessive and the applicant should be resentenced accordingly. For each sentence of four years imprisonment, a non-parole period of three years would have been appropriate and a fixed term should be imposed of that duration. In respect of each sentence of four years six months, an appropriate non-parole period is three years four months and a fixed term of that duration should be imposed. In respect of the sentences of five years imprisonment, the appropriate fixed term is three years and nine months. 13There remains a question as to whether the periods of accumulation should be varied. The difficulty facing the applicant is that each period of accumulation was a very small proportion of the sentence imposed. Even in respect of the five year sentence imposed on count 2, the period of accumulation with respect to count 1 was only four months, or less than 7% of the fixed term. After reduction of the relevant fixed term, it is still less than 9%. The percentages in respect of other sentences are even smaller. Further, looked at in absolute terms, notionally increasing the period of mandatory custody by four months for an armed robbery carrying a full term of five years is not by any means excessive. Nor is the period of one year and eight months imprisonment referable to nine separate offences of armed robbery or attempted armed robbery manifestly excessive, taking into account the principle of totality. 14Accordingly, although it is appropriate to resentence the applicant to appropriate fixed terms of imprisonment, the overall result does not reduce the eight year period which he must serve in custody before becoming eligible for parole. 15There should be a grant of leave to appeal, the appeal should be upheld with respect to counts 2-10 and the applicant should be resentenced as indicated. However, as this is a minority view, there is no need to set out the precise terms of the proposed sentences. Each, in any event, commences on the date fixed for that offence by the trial judge. 16PRICE J: Maxwell Tuvunivono (the applicant) seeks leave to appeal against the sentences imposed on him by Knox DCJ (the judge) in the District Court at Sydney on 8 April 2010. He also seeks leave to appeal out of time. 17The applicant pleaded guilty before the judge to seven counts on an indictment being counts 1 to 6 and count 9. Counts 1, 3 to 6 were offences of robbery, armed with an offensive weapon (armed robbery) whereas count 2 was an offence of attempted armed robbery. 18Pleas of guilty had earlier been entered in the Local Court by the applicant to counts 7, 8 and 10 on the indictment. Counts 7 and 8 were offences of armed robbery and count 10 was an offence of attempted armed robbery. The offensive weapon in each count, with the exception of count 9, was a knife. 19All of the offences to which the applicant had pleaded guilty were contrary to s 97(1) Crimes Act 1900 (and s 344A(1) in the case of an attempt) and are punishable by a maximum penalty of 20 years imprisonment. 20The applicant asked the judge to take into account on sentence 14 offences that had been included on a Form 1. Eleven of these were offences of armed robbery contrary to s 97(1) Crimes Act and one an attempted armed robbery. There was also on the Form 1 an offence of stealing, contrary to s 94 Crimes Act and an offence of providing false information contrary to s 24 Pawnbroker and Second-hand Dealers Act 1996. 21The offences on the Form 1 were taken into account by the judge in the sentence imposed for count 1. 22During his sentencing remarks, the judge stated that because of the relatively complicated sentencing exercise, it was appropriate to categorise the offences into four different categories in descending order. His Honour said (ROS at 24-25): Category D offences, for which there was a plea and to which there is a twenty percent discount to be applied includes counts 10, 8 and 7. The appropriate period of accumulation for these offences is one month's imprisonment. Category C offences, for which there was a plea at a later date, include counts 9, 6, 5 and 4. A ten percent discount is applicable to these offences and the appropriate period of accumulation is two months. Category B offences refer to the offences committed while the offender was on parole and to which there was a later plea, namely counts 3 and 2. A ten per cent discount is appropriate to these offences and the appropriate period of accumulation is three months. ... Count 1 is a unique count constituting the Category A offence. The offender was on parole when this offence was committed and there was a late plea in relation to this count. There are also the Form 1 matters to be attached to this count. A period of four months' accumulation is appropriate on this count. 23The division of the offences into four categories by his Honour indicated the percentage of the discount for a plea of guilty and the extent of accumulation for an offence for which the applicant was to be sentenced. 24The judge sentenced the applicant as follows: Category D offences Count 10: Sentenced to a fixed term of imprisonment of 4 years commencing on 20 March 2008 and expiring on 19 March 2012; Count 8: Sentenced to a fixed term of imprisonment of 4 years commencing on 20 April 2008 and expiring on 19 April 2012; Count 7: Sentenced to a fixed term of imprisonment of 4 years commencing on 20 May 2008 and expiring on 19 May 2012; Category C offences Count 9: Sentenced to a fixed term of imprisonment of 4 years and 6 months commencing on 20 July 2008 and expiring on19 January 2013; Count 6: Sentenced to a fixed term of imprisonment of 4 years and 6 months commencing on 20 September 2008 and expiring on 19 March 2013; Count 5: Sentenced to a fixed term of imprisonment of 4 years and 6 months commencing on 20 November 2008 and expiring on 19 May 2013; Count 4: Sentenced to a fixed term of imprisonment of 4 years and 6 months commencing on 20 January 2009 and expiring on 19 July 2013; Category B offences Count 3: Sentenced to a fixed term of imprisonment of 5 years commencing on 20 April 2009 and expiring on 19 April 2014; Count 2: Sentenced to a fixed term of imprisonment of 5 years commencing on 20 July 2009 and expiring on 19 July 2014; Category A offence (Including offences on Form 1). Count 1: Sentenced to a non-parole period of 6 years and 4 months commencing on 20 November 2009, with an additional term of 4 years to date from 19 March 2016 and to expire on 18 March 2020. 25The total effective sentence imposed by the judge was 12 years imprisonment comprising of a non-parole period of 8 years commencing on 20 March 2008 and expiring on 19 March 2016 with a balance of term of 4 years commencing on 19 March 2016 and expiring on 18 March 2020. The application for an extension of time 26The applicant was sentenced on 8 April 2010. On 2 August 2010, he filed a notice of intention to appeal. On 5 August 2010, the court received a request for an extension of time, which was granted by the registrar for six months and expired on 2 February 2011. 27An application for extension of time for notice of intention to appeal was received by the court on 26 July 2012. The registrar refused the application as the time to appeal had expired some 18 months previously. 28The Crown opposes the extension of time being granted. The Crown says that the delay of 18 months is significant and has not been adequately explained. 29The only explanation for the delay is provided by the applicant's affidavit. According to the applicant, he received a letter about the appeal from whom he thought was Legal Aid NSW some time after the extension of time was granted. He understood that they were agreeing to represent him. 30The applicant was transferred to the mid North Coast Correctional Centre in about February 2011. He attempted to contact Legal Aid through the Welfare Officer and with her assistance made some telephone calls about his appeal. The applicant stated that he was unable to speak to a solicitor despite leaving messages that he would call back at a certain time. The Welfare officer went on leave for 8 months but resumed helping him in July 2012. He received some correspondence from Legal Aid NSW that they would consider his application in September 2012. By a letter dated 13 March 2013 the applicant was advised that he was granted legal aid for his appeal against sentence. 31I am satisfied that the applicant always intended to appeal his sentence but had difficulties contacting Legal Aid as he was in custody. The appeal raises matters of substance and the applicant faces a lengthy term of imprisonment for serious offences. 32In these circumstances, I conclude that the extension of time should be granted and it is appropriate for this court to consider the appeal on its merits. The Grounds of Appeal 33The notice of appeal identifies three grounds: 1. The learned sentencing judge erred not allowing a discount of 25 per cent for the guilty pleas for counts 7, 8 and 10 (ie the Category D offences). 2. The learned sentencing judge erred in that seeking to achieve an overall two-thirds ratio between the total non-parole period and the total 'head' sentence, his Honour erroneously extended the additional term of count 1 rather than reducing the non-parole period for that count. 3. The individual sentences imposed were otherwise manifestly excessive. Facts 34A statement of agreed facts consisting of ten pages was tendered in the sentencing proceedings. I shall set out the facts as succinctly as possible. Count 1: On 24 January 2008 at Brighton Le Sands, the applicant whilst armed with a knife robbed a clothing store of $650 in cash. He pointed the knife at the sales assistant and threatened to hurt her if she did not hand over the money. Count 2: On 1 February 2008 at Surry Hills, the applicant whilst armed with a knife attempted to rob a laundry. He moved the knife towards the laundry assistant a number of times and unsuccessfully rummaged around drawers in the laundrette. Count 3: On 3 February 2008 at Ramsgate, the applicant whilst armed with a knife robbed a chemist's shop of $440. The applicant had shown the sales assistant the knife and said, "I don't want to hurt you lady." Count 4: On15 February 2008 at Gymea, the applicant whilst armed with a knife robbed a video store of $1,000. The applicant had shown the sales assistant the knife and said, "I'm serious, I'll stab you! Don't be a hero." Count 5: On 20 February 2008 at Penshurst, the applicant whilst armed with a knife robbed a video store of about $550. The applicant had shown the knife to the sales assistant and said: "Take it easy just give me the money." Count 6: On 25 February 2008 at Enmore, the applicant whilst armed with a knife robbed a video store of $150. The applicant had pointed the knife at a sales assistant and threatened to stab him in the stomach. Count 7: On 29 February 2008, the applicant whilst armed with a knife robbed a Newtown video store of approximately $400. During the robbery, the applicant hit the sales assistant who suffered a 4 - 5 centimetre cut to his right forearm and a half a centimetre cut to his left hand. He had shown the knife to the sales assistant and had threatened to kill him if he did not hurry up handing over the money. Count 8: On 10 March 2008, the applicant whilst armed with a knife robbed a Darlinghurst hotel of about $1,400. The applicant had placed something sharp into the bar assistant's lower back, saying, "I don't want to hurt you, just give me the money." The bar assistant saw that the applicant had a black flick knife in his right hand. Count 9: On 11 March 2008, the applicant robbed a hotel in Annandale of $4,000 whilst armed with an offensive weapon. The applicant appeared to be holding something in his fist which was covered by his jacket. The applicant said to the bar attendant "I don't want to hurt you, just give me all your money." He also told the bar attendant to lie on the floor. Count 10: On 20 March 2008, the applicant whilst armed with a knife attempted to rob the Caringbah Inn Hotel. The applicant pushed the knife into the pokie attendant's right side near her hip and told her to open the drawers and give him the money. The applicant opened a drawer inside the booth but there was nothing inside. The pokie attendant ran to another part of the hotel. The applicant was apprehended inside the hotel by staff and patrons. 35Form 1: Matters 1 to 2 and 4 to 12 on the Form 1 are offences of armed robbery from Sydney stores, the applicant being armed with a knife. Matter 3 is an offence of attempted armed robbery. The offences occurred between 24 January 2008 and 2 March 2008. The amounts of cash that were stolen varied between $250 and $1,500. 36In referring to the statement of agreed facts, the judge said (ROS at 6): "The [applicant] was engaged in a series of armed robberies and attempted robberies over a period of three months, being...January to March ...2008. Usually a knife or other offensive instrument was used to threaten the respective victims. Those robbed were in isolated circumstances. Relatively little money was obtained from each of the robberies." Personal Circumstances 37During the proceedings on sentence, Elizabeth Tuvunivono, the applicant's sister, gave evidence. A report from Dr Emma Collins, a psychologist was tendered as were letters from the applicant's mother, his girlfriend and Nathan Jones who was employed by the Office for Aboriginal and Torres Strait Islander Health. A drug and alcohol report was also before the judge. 38The judge noted that the applicant's sister "confirmed the atmosphere of family violence within which the offender was brought up; his effective abandonment by both his parents at a young age and the fact that he was effectively forced to live on the streets from about the age of twelve or thirteen" (ROS at 7). 39When referring to the applicant's drug usage, the judge said (ROS at 11): "It seems also in relation to his drug abuse that [the applicant] commenced abusing drugs at the age of thirteen or fourteen and also alcohol on a heavy basis at about the same age. His drug abuse has escalated to smoking heroin as well as intra-nasal cocaine use and experimentation with ecstasy and benzodiazepines." 40The judge observed that the applicant had been able to conceal his drug habit from his sister and girlfriend. He remarked that the psychologist's report noted that the applicant related his offending to his drug-seeking behaviour. The judge found that the applicant's motivation was to obtain money for drugs. 41The applicant's prior criminal record as an adult includes convictions for stealing from the person (1999), committing an indictable offence whilst armed (2001), maliciously inflict grievous bodily harm (2001) and robbery in company (2002). For the offence of robbery in company, the applicant was sentenced in the District Court to a term of imprisonment of 5 years 6 months with a non-parole period of 3 years 6 months. His record as a young person includes offences of robbery in company (1998) and armed robbery (1998). 42His Honour noted that the applicant had "a substantial record of prior convictions", including convictions for robbery (ROS at 13). As the parole period for this offence did not expire until 8 February 2008, the armed robberies being counts 1 to 3 were committed whilst the applicant was on conditional liberty. The judge found that the commission of these offences whilst on conditional liberty was an aggravating factor. Some further findings by the judge 43His Honour considered the guideline judgment for offences of armed robbery in R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 and noted that most of the factors in the guideline were present, namely (ROS at 15): "(a) A young offender with no or little criminal history. Here the offender was born in 1981 and at the time of the offences would have been aged about twenty-seven. However, he does have a criminal history. (b) A weapon like a knife, capable of killing or inflicting serious injury. (c) Limited degree of planning, which I am prepared to infer to some extent. (d) Limited, if any, actual violence but a real threat thereof. (e) Victims in a vulnerable position such as shopkeepers. (f) Small amount taken. (g) A plea of guilty, the significance of which is limited by a strong Crown case." 44The judge observed that the offences "indicate a degree of preparation; the [applicant] being armed with a knife or other related offensive instrument which he concealed when he entered each of the premises" (ROS at 21). He noted that the offences included threats of violence which induced fear in his victims, most of whom were in isolated situations. His Honour found as a mitigating factor that the applicant was remorseful but observed that the remorse was limited by the fact that it came in the "face of the sentencing proceedings" and there had been no attempt at restitution. His Honour had "difficulty finding any real prospects of rehabilitation given the [applicant's] prior record, the sentencing options extended to him, the limited attempts at any kind of long-term drug treatment and his time in prison" (ROS at 14). 45A finding of special circumstances was made by the judge being the applicant's background and age and the need for increased time on parole so that his drug treatment could be monitored. Ground 1: The learned sentencing judge erred not allowing a discount of 25 per cent for the guilty pleas for counts 7, 8 and 10 (ie the Category D offences) 46The applicant submits that in raising for the first time in the remarks on sentence a discount other than 25 per cent for the Category D offences, a procedural unfairness arose. The applicant referred to the judge's remarks during the sentencing proceedings that indicated that he would give a 25 per cent discount for the Category D offences, but when sentencing the applicant a 20 per cent discount was applied. 47In discussions with counsel on 16 November 2009, the judge said in relation to the Category D offences (at T16/11/09 T2 L30-34): "...to use the court time we've got we then might use some time considering what the situation would be with the discount to the plea. In other words one would expect that it would be a 25% discount for the three where's he's indicated the plea at committal." 48In further discussions with counsel, the judge stated (at T16/11/09 T22 L23-24): "Plea of guilty. Again tentatively, it seems to me to be 25% on the first three and maybe ten to 15 on the last lot." 49In the proceedings on sentence on 11 February 2010, his Honour said to the Crown (at T11/2/10 T5 L31-32): "...but it just seems to me that the Local Court ones should probably be the subject of the full discount." 50His Honour's reference to the "full discount" was plainly to the top of the range of 10-25 per cent for the discount for a plea of guilty: R v Thomson; R Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383. 51It was reasonable from his Honour's remarks for the applicant's counsel to assume that the judge would apply a 25 per cent discount to the Category D offences. However, when sentencing the applicant on 8 April 2010, the judge said (ROS at 12): "...there will be a greater discounts (sic) of twenty per cent on what would otherwise have been an appropriate head sentence. That is relevant to counts 7, 8 and 10. These findings are based on the utilitarian value of the plea, the savings to court and police resources and, particularly, that the victims did not have to give evidence and relive the events of the robberies. There is think a degree of leniency extended to the [applicant] by these discounts, in the sense that they reflect remorse, given that the [applicant] had to meet a strong Crown case." 52There undoubtedly would have been a denial of procedural fairness if the judge had not given the applicant's counsel an opportunity to address on the departure from the percentage discounts indicated before sentence was passed: Fairbairn v R [2006] NSWCCA 337; (2006) 165 A Crim R 434 at [37]; Trujilo-Mesa v R [2010] NSWCCA 201. However, the judge did give counsel such an opportunity after he delivered part of his sentencing remarks which included the 20 per cent discount for the Category D offences. Before taking a short adjournment, the following exchange took place between his Honour and counsel (ROS 19-20): "In terms, then, of my overall consideration of the matter, given the time I will take the morning tea adjournment now to give everyone the chance to consider those matters, and then I will come back and go through the consideration and I anticipate that will take me about half an hour. Anything thus far Mr Crown? MCCARTHY: The question of the utility of the plea of guilty -I wasn't sure if your Honour was taking into account in assessing the value of that utility the strength of the Crown case. HIS HONOUR: No, I said it was limited by a strong Crown case. MCCARTHY: I think the question of the strength of the Crown case could be relevant to the issue of remorse but not to utility. It's not a factor that is to be taken into account in relation to-- HIS HONOUR: That's right. I will amend that because I think that's right as a matter of law to make it clear. I said there was a degree of leniency extended to the offender - page 9 - by these discounts, in terms that they reflect remorse given that the offender had to meet a strong Crown case. MCCARTHY: Thank you and just one other thing, my instructing solicitor pointed out that your Honour might have said he pleaded guilty in the Local Court in January 2010 and it was January 2009. HIS HONOUR: All right. Thank you. Anything thus far Mr Williams? WILLIAMS: No thank you your Honour. HIS HONOUR: I will give you the chance, subject to the Corrective Services -if you can leave him for about 5 minutes - we will take the morning tea adjournment and I will come back when everyone has had a break." 53After the adjournment, the judge asked Mr Williams (the applicant's counsel) whether there was anything arising, to which Mr Williams responded "No your Honour" (ROS at 20). 54When his Honour re-commenced his sentencing remarks, he outlined the sentences he intended to impose but then adjourned before passing sentence to enable the applicant's counsel to explain the sentence to the applicant and "to see whether there's any issues" (ROS at 32). After the short adjournment, the judge asked both the Crown and Mr Williams if they had "anything on that?" to which both responded "No thank you" (ROS at 33). 55Mr Williams had represented the applicant during the sentencing proceedings. His Honour gave both counsel an opportunity to make submissions before sentence was passed. It was open to Mr Williams to raise with the judge the departure from the discount that had been indicated. 56In this court, Mr McLachlan, the applicant's counsel, argued that it was inappropriate to raise such a matter when the judge was delivering his sentencing remarks. This submission has no substance as the judge invited submissions and counsel should have been sufficiently robust to bring to the judge's attention (as the Crown did) any matters about which there was a concern. I am not persuaded that the applicant has been denied procedural fairness. 57Another argument advanced for the applicant is that the judge had taken into account irrelevant factors in determining the utilitarian value of the pleas for the Category D offences. 58In the passage quoted at [51] above, the judge said he took into account that the victims did not have to give evidence and re-live the events and that the discounts reflected remorse, given that the applicant had to meet a strong Crown case. His Honour's approach was erroneous as the utilitarian discount for a guilty plea does not take into account saving witnesses from giving evidence, the strength of the Crown case or remorse: R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1. 59The Crown, however, took the opportunity to point out to the judge that he was in error, which his Honour accepted. The applicant, however, submits that neither the reasons for sentence were corrected nor the value of the utility of the discounts re-visited. 60It is well established that the range of discount referred to in R v Thompson; R v Houlton is a guideline that creates no presumption or entitlement to a particular discount. The amount of the discount is a matter for a judge's discretion. As Wood CJ at CL said in R v Newman [2004] NSWCCA 113 at [12] - [13]: "In my view, it is proper for the utilitarian value of a plea to be assessed in the continuum of the justice system, from the time of charging to disposition, and in the light of the fact that the amount of the discount is a discretionary matter, there being no entitlement, or presumption, that an offender should receive any particular amount by way of a discount in any particular factual situation: R v Scott [2003] NSWCCA 286 per Howie J at para 28. Any other approach would involve an unduly rigid approach to the discretion which is involved, and would fail to pay regard to the fact that considerable savings in time, expense and inconvenience to investigators, the DPP, witnesses and the Court, will occur if pleas are offered, for example, at the first mention. Where that does not occur, considerable time, expense and inconvenience can be occasioned at the Local Court stage, in the assembly of evidence, in mentions, in conducting a committal, in applications for stays, appeals and the like, before the matter reaches the District Court or Supreme Court. It would be unrealistic to ignore those circumstances when assessing the utilitarian value of a plea, and it would be artificial to assume, without more, that a plea entered in the Local Court should inevitably attract the maximum discount." 61In the present case, it appears that the pleas for the Category D offences were entered at the committal proceedings. A discount of 20 per cent was well within the proper exercise of his Honour's discretion and no error has been demonstrated. 62I would dismiss Ground 1 of the appeal. Ground 2: The learned sentencing judge erred in that seeking to achieve an overall two-thirds ratio between the total non-parole period and the total 'head' sentence, his Honour erroneously extended the additional term on Count 1 rather than reducing the non-parole period for that count. 63The applicant contends that with the head sentence for "Henry type" offences falling within the 4-5 year range and count 1 attracting a 10 per cent discount for the guilty plea, a 10 year 4 months 'head' sentence could only have been arrived at as a consequence of his Honour erroneously extending the additional term to achieve a desired overall ratio of two-thirds between the total non-parole period and the total 'head' sentence. Whilst accepting that the court was required to take into account the Form 1 matters, the applicant submits that count 1 was already accumulated to the largest degree and was otherwise held to warrant the imposition of a sentence of the range suggested in Henry. The court's attention was drawn to his Honour's statement that (ROS at 24): "Each of the robberies, as well as the attempted robberies, come within the Henry factors in terms of that guideline judgment. Each would warrant the imposition of a sentence of the range suggested in that decision." 64I do not think that these remarks were intended by the judge to cover all of the offences. His Honour subsequently referred to count 1 as "unique" (ROS at 25). He noted that the applicant was on parole when the offence was committed and there were the Form 1 matters attached to this count. 65The guideline judgment in Henry, which is to be used as a 'check' or a 'guide' provides that a sentence for an offence of armed robbery falling within the seven characteristics identified in the guideline should generally be between four and five years full term. The first characteristic in the Henry guideline is a "young offender with no or little criminal history." The applicant's prior record includes offences of robbery in company and armed robbery. As the judge said, the applicant had a substantial record of prior convictions. An aggravating factor is that the applicant at the time of the armed robbery was on parole for the offence of robbery in company. He abused his conditional liberty by robbing the Brighton Le Sands clothing store whilst armed with a knife. The commission of an offence whilst on conditional liberty has long been regarded as a factor of aggravation requiring the passing of a deterrent sentence: R v Fernando [2002] NSWCCA 28; R v Ponfield [1999] NSWCCA 435; (1999) 48 NSWLR 327. These matters justified a sentence above the sentencing range identified in Henry. 66There were 14 offences on the Form 1, 11 of which were offences of armed robbery and one was an attempted armed robbery. The criminality involved in the Form 1 offences emphasised the additional need for personal deterrence and retribution for the armed robbery for which the applicant was being sentenced and the judge was entitled to substantially increase the penalty for count 1: Re Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146; Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115 at [23]. 67An offence contrary to s 97(1) Crimes Act is punishable by 20 years imprisonment. The sentence imposed for count 1 including the offences on the Form 1 was 10 years 4 months with a non-parole period of 6 years 4 months. In my view, the sentence was within an appropriate range. His Honour adjusted the statutory ratio in accordance with his finding of special circumstances. The judge did not erroneously extend the additional term of count 1. 68I would dismiss Ground 2 of the appeal. Ground 3: The individual sentences imposed were otherwise manifestly excessive. 69The applicant's initial submission was that each individual sentence was manifestly excessive. This argument was founded on the contention that the fixed terms of imprisonment imposed by the judge were in effect non-parole periods and exceeded the sentencing range in the Henry guideline. Particular reference was made to the Category C offences for which fixed terms of 4 years 6 months had been imposed which suggested a notional 'head' sentence for each offence of 6 years. 70I am not persuaded that the judge equated the fixed terms of imprisonment that he imposed with non-parole periods. His Honour was conscious of the Henry guideline and the fixed terms of between 4 and 5 years for all the offences other than count 1 fell within the guideline range. In my opinion, the fixed terms imposed by the judge were intended to be 'head' sentences and none of them were manifestly excessive. 71In any event, I am of the view that even if the judge had intended the fixed terms to be non-parole periods, the sentences would not have been beyond an appropriate range. To use the applicant's example of the Category C offences, a 'head' sentence of 6 years would not have been manifestly excessive as the repeated commission of armed robberies by the applicant required that substantial weight be given to personal deterrence and protection of society: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465. 72The degree of accumulation between the sentences was not challenged which was not surprising as it was generous to the applicant. As a result of accumulation and concurrence, the effective non-parole period for count 1 was 1 year 8 months. During oral submissions, Mr McLachlan accepted that a reduction in the overall sentence was dependent upon a successful challenge to the sentence imposed on count 1. 73I have previously stated that the sentence for count 1 was within an appropriate range of sentence. It is not manifestly excessive, nor is the overall sentence. 74I would dismiss Ground 3 of the appeal. Orders: 75I propose that leave to appeal be granted, but the appeal be dismissed. 76CAMPBELL J: I agree with Price J. ********** 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: 05 August 2013