Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Wilson v R; Barrie v R [2014] NSWCCA 150 Hearing dates: 12 March 2014 Decision date: 13 August 2014 Before: Leeming JA at [1]; Button J at [2]; RS Hulme AJ at [3] Decision: In Mr Wilson's appeal, 2011/46417: (i) Grant leave to appeal against sentence; (ii) Allow the appeal; (iii) Quash the sentence imposed by Charteris DCJ on 11 October 2012. (iv) In respect of the offence of, on 14 September 2010, being armed with dangerous weapons and being in company, robbing Desmond Clarken of money the property of Vertigo Pty Ltd trading as the Petersham Inn Hotel, sentence him to imprisonment for a non-parole period of 5 years and 3 months commencing on 1 April 2011 and a balance of term of 2 years and 3 months commencing on 1 July 2016. (v) Record as the date when it appears to the Court that Mr Wilson shall be eligible for parole, 1 July 2016. In Mr Barrie's appeal, 2010/346956: (i) Grant leave to appeal against sentence; (ii) Allow the appeal; (iii) Quash the sentences imposed by Charteris DCJ on 11 October 2012. (iv) In respect of the offence of, on 25 August 2010, whilst armed with a dangerous weapon robbing Patricia Tselepi of property of the Newington Inn, sentence him to imprisonment for a non-parole period of 4 years and 6 months commencing on 18 December 2010, together with a further term of 3 years commencing on 18 June 2015. (v) In respect of the offence of, on 14 September 2010, whilst armed with a dangerous weapon robbing Desmond Clarken of property of Petersham Inn, sentence him to imprisonment for a non-parole period of 4 years and 9 months commencing on 18 September 2012, together with a further term of 3 years and 3 months commencing on 18 June 2017. (vi) Record as the date when it appears to the Court that Mr Barrie shall be eligible for parole, 18 June 2017. Catchwords: CRIMINAL LAW - leave to appeal against sentence - robbery whilst armed with a dangerous weapon and in company - whether applicants had justifiable sense of grievance given the disparity between their sentences and the sentence imposed on a co-offender - where the applicant had served time on bail in residential rehabilitation facilities - where the applicant had not complied with some of the bail conditions imposed - whether the sentencing judge erred in failing to take into account the time served on bail given the restrictive nature of the bail conditions - whether the sentencing judge failed to give appropriate weight to the subjective circumstances of the applicant - whether the sentencing judge had proper regard to the totality principle in accumulating the sentences imposed - consideration of subjective circumstances of each co-offender - consideration of Form 1 offences taken into account - whether sentences manifestly excessive Legislation Cited: Crimes Act 1900 (NSW), s 97(2) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2), 24 Cases Cited: Bonett v R [2013] NSWCCA 234 R v Campbell [1999] NSWCCA 76 R v Delaney [2003] NSWCCA 342 R v Eastway (unreported, NSWCCA, 19 May 1992) R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v MAK [2006] NSWCCA 381; 167 A Crim R 159 R v Merrin [2007] NSWCCA 255; 174 A Crim R 100 R v Spiteri [1999] NSWCCA 3 Renshaw v R [2012] NSWCCA 91 Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 Category: Principal judgment Parties: Phillip Wilson (Applicant) Scott Barrie (Applicant) Crown (Respondent) Representation: Counsel: W Hunt (Counsel for Barrie) D O'Neil (Counsel for Wilson) T Smith (Crown) Solicitors: Legal Aid NSW (Applicants) Solicitor for Public Prosecutions (Crown) File Number(s): 2011/46417; 2010/346956 Decision under appeal Date of Decision: 2012-10-11 00:00:00 Before: Charteris DCJ File Number(s): 2011/46417; 2010/346956 Judgment 1LEEMING JA: I agree with Hulme AJ. 2BUTTON J: I agree with the orders proposed by Hulme AJ, and with his Honour's reasons. 3HULME AJ: This is yet another case where this Court is asked to reduce sentences on the ground of disparity with a sentence, manifestly and obviously inadequate, imposed on a co-offender and this in circumstances where the Office of the Director of Public Prosecutions was insufficiently organised to even tell the judge who imposed the lower sentence of the sentences previously imposed on the Applicants. 4Phillip Wilson and Scott Barrie seek leave to appeal against sentences imposed on them by Charteris DCJ on 11 October 2012. The sole ground of appeal advanced on behalf of Mr Wilson is that he has a justifiable sense of grievance due to the disparity between his sentence and one imposed on a co-offender Anthony Crisp. Mr Barrie relies on an identical ground. His grounds of appeal are:- (1) The learned judge erred in failing to give appropriate weight to the subjective features of the applicant. (2) The sentencing judge failed to have proper regard to the totality principle in his accumulation of sentences. (3) The learned sentencing judge erred in failing to take into account the time served on bail for the applicant, given the restrictive nature of those conditions. (4) The applicant has a justifiable sense of grievance by virtue of the disparity between the sentences imposed upon him and his co-offender Crisp. 5Messrs Barrie and Crisp were sentenced in respect of a number of charges. However the only one that founds any complaint of disparity is, as expressed in the case of Mr Wilson, that on 14 September 2010, being armed with dangerous weapons namely a replica pistol and a replica firearm and being in company with Scott Barrie, Anthony Crisp and others, he did rob Desmond Clarken of money the property of Vertigo Pty Ltd, trading as the Petersham Inn Hotel. The offence was one arising under s 97(2) of the Crimes Act 1900 (NSW) and rendered each offender liable to 25 years imprisonment. (In the case of Messrs Barrie and Crisp the expression of the charge varied somewhat but is of no consequence for present purposes.) 6The sentences imposed by Charteris DCJ in the case of Mr Wilson and Mr Barrie and by North DCJ in the case of Mr Crisp were:- Mr Wilson 8 years and 3 months, including a non-parole period of 5 years and 3 months. Mr Barrie 9 years including a non-parole period of 4 years and 9 months. Mr Crisp 5 years including a non-parole period of 3 years. 7However to look solely at that table is to oversimplify matters. Each offender had taken into account when being sentenced for the Petersham Inn offence a further offence or offences on a Form 1. These were:- In Mr Wilson's case, being an accessory after the fact to an armed robbery of the Newington Inn at Petersham on 25 August 2010 and secondly, receiving a subwoofer removed from a stolen motor vehicle used in the commission of the robbery at Petersham Inn. In Mr Barrie's case, robbery in company on 10 April 2010 whilst armed with a dangerous weapon, on 13-14 October 2010 breaking entering and stealing and, on 19 October 2010, possession of 3.1 grams of cannabis and 0.07 grams of heroin. In Mr Crisp's case, stealing a motor vehicle. 8Also, Mr Wilson received a discount of only 10% for his plea. Messrs Barrie and Crisp each received a discount of 25%. In the context of a sentence of 5 years, the extra 15% represents 9 months. In the context of a sentence of 7 years, the extra 15% represents about 12½ months. 9There were also other differences and I shall attempt to summarise the situation of each. In the case of Mr Wilson, his being an accessory was said to have been constituted by throwing out of a car window a balaclava used in the Newington Inn robbery. 10In sentencing Mr Wilson, Charteris DCJ observed that the offenders assembled patrons and staff in the main bar and forced them to the floor, forced the manager to his office and that, "when 2 of the offenders were downstairs another offender kicked a patron" who was unaware that a robbery was occurring "down a flight of stairs as he emerged from the toilet". His Honour also concluded that the offences were well planned and not impulsive. He described them as extremely serious and organised criminal behaviour. His Honour regarded this latter circumstance and that a number of victims were put in fear as additional aggravating factors. 11Mr Wilson was born in January 1992. His parents separated before he was nine. He had been in much trouble at school and left soon after the commencement of year 10. He had never been in employment. He started smoking marijuana when 12 and heroin at 16. He had a significant criminal record for offences of break, enter and steal and one offence of robbery in company, the sentence for which expired in January 2010. His Honour regarded the record as robbing Mr Wilson of leniency. 12His Honour accepted an opinion of a psychologist that Mr Wilson had a conduct disorder and a substance abuse disorder and the opinion of Mr Wilson's mother that since being incarcerated he had become more responsive, more compassionate and caring. His Honour concluded that Mr Wilson had good prospects of rehabilitation "provided he can address his abuse of illicit drugs". 13Mr Wilson had been arrested on 11 February 2011 and remained in custody until sentenced. Three months of that time was the subject of a sentence for another offence although Charteris DCJ commenced Mr Wilson's sentence on 1 April 2011. 14Mr Barrie was sentenced both in respect of the offence for which Mr Wilson was sentenced and in respect of a charge that on 25 August 2010 he robbed a victim of $4,500, the property of the Newington Inn at Petersham whilst armed with a dangerous weapon, to wit a replica firearm and in company. It was to this robbery that the accessory offence on Mr Wilson's Form 1 related. 15Charteris DCJ sentenced Mr Barrie as follows: In respect of the Newington Inn offence, imprisonment for 7.5 years including a non-parole period of 4.5 years, both periods commencing on 1 January 2011 In respect of the Petersham Inn offence, imprisonment for 9 years including a non-parole period of 4 years and 9 months, both such periods commencing on 1 January 2014 16The effective sentence imposed was thus one of 12 years including a non-parole period of 7 years and 9 months. To the extent of the 1 month period from 18 January 2011, the sentence was concurrent with sentences imposed for other offences. 17The armed robbery offence was committed by three men against the staff and patrons of the Henson Park Hotel at Marrickville with a replica pistol and 25 cm knives. Almost $10,000 was stolen. 18The break and enter offence related to a theft of copper from a metal recycler or waste premises. 19In sentencing Mr Barrie, his Honour recorded that Mr Barrie was the offender who kicked the patron down the stairs at the Petersham Inn and that the manager of the hotel had been struck a number of times. Again his Honour found that there had been considerable planning involved and the number of victims was an aggravating factor. His Honour regarded the instilling of fear into these persons as serious. 20Mr Barrie was born in December 1989. His parents separated when he was young and he had problems with his stepfather due to the latter's conduct. Mr Barrie suffered from problems throughout his school career. He completed year 10 and had been briefly employed. He was assessed by a psychologist as functioning at a borderline disability level. His record included some three offences of dishonesty, and four of destroying or damaging property. In 2007 he was convicted of larceny, of having goods suspected of being stolen in his custody and of possession of a prohibited drug. He was placed on a bond. In February 2010 he was fined for possession of a prohibited drug. In May 2010 he was sentenced for assault occasioning actual bodily harm, destroying or damaging property and using an offensive weapon with intent to commit an indictable offence. Two bonds imposed by the Children's Court were current at the time of the offences for which he was sentenced by Charteris DCJ, a factor his Honour regarded as aggravating. Mr Barrie had never been sentenced to a term of imprisonment. 21Mr Barrie seems to have used cannabis since the commencement of high school, graduating to the use of heroin at age 16 or 17. He also used cocaine and methylamphetamine. Whilst in custody he failed prescribed urine tests in March 2011 and February 2012. After his arrest he was released on bail for a time to Miracle Haven, a rehabilitation facility but was discharged for using marijuana there and returned to custody. He was later released again to reside at the William Booth facility but removed and returned to custody because of the nature of the offences charged against him. His Honour recorded that Mr Barrie had had a total of about 87 days on bail since his arrest and said that he intended to backdate the sentence to commence on 1 January 2011. His Honour accepted a psychologist's diagnosis of substance abuse disorder. 22In response to a submission put on behalf of Mr Barrie, Charteris DCJ said that the offence was far more serious than the typical offence described in R v Henry [1999] NSWCCA 111; 46 NSWLR 346. 23His Honour referred or recommended that both Mr Wilson and Mr Barrie be considered for placement in the Compulsory Drug Treatment Correctional Centre at Parklea. 24Mr Anthony Crisp was sentenced in respect of 3 matters, viz:- that on 14 September 2010 being armed with dangerous weapons namely a pistol and a shortened shotgun he robbed Desmond Clarken of certain money the property of Vertigo Pty Ltd trading as the Petersham Inn Hotel; and that he on 25 September 2010 while armed with a dangerous weapon namely a shortened shotgun he robbed David Deboos of a wallet containing personal cards and money. This charge also arose under s 97(2) of the Crimes Act and carried a maximum penalty of 25 years imprisonment; and that on 3 October 2010 he was armed with weapons namely a replica pistol and a taser device and while being in company with others with intent to commit an indictable offence namely robbery being armed with a dangerous weapon at the Little Bottler Liquor Store. This charge arises under s 114(1)(a) of the Crimes Act 1900 and carries a maximum punishment of 7 years imprisonment. 25Taken into account in relation to the first of these offences was an offence of stealing a motor vehicle on 14 September 2010, obviously for the purposes of it being used in the robbery at the Petersham Hotel. Taken into account in relation to the second of the offences were offences of:- (i) Aggravated break, enter and steal on 29 September 2010 at residential unit at Homebush West, and (ii) Aggravated armed robbery with a shotgun and in company of the Boulevarde Hotel in Enfield on 29 September 2010. 26Sentence was imposed on 12 December 2012, the effective total sentence being 5 years and 6 months including a non-parole period of 3 years and 6 months, made up of:- On count 3 a fixed term of imprisonment of 12 months commencing 3 October 2010; On count 2 imprisonment for 5 years including a non-parole period of 3 years, both such periods commencing on 3 October 2010; On count 1 imprisonment for 5 years including a non-parole period of 3 years, both such periods commencing on 3 April 2011. 27In arriving at his decision concerning Mr Crisp's involvement in the Petersham Inn offence North DCJ found he could not conclude that the firearms used were genuine or loaded and that apart from the patrons being forced to the ground and the manager forced into his office, there was no actual violence. His Honour found that there was some degree of planning and organisation as the car used had to be stolen, weapons obtained and disguises and gloves organised and that the property stolen was $9,000 and two mobile phones. 28His Honour observed that Mr Crisp was not an offender with little or no criminal history, observing that his antecedent report extended to some 17 pages and his record disentitled him to leniency. His Honour also remarked that the guideline judgment in R v Henry was of assistance in the case before him though observing that the planning and amount stolen were more than was contemplated in that case. His Honour observed: Prior to looking at the issue of the offender's substance dependency and mental health at the time of the offences and noting his role as the driver on balance it looks as if in this case, given the uncertainty over the condition of the dangerous weapons themselves and the discount for the plea, that it falls into the area covered by the Henry guideline. 29Turning to Mr Crisp's subjective circumstances, his Honour accepted evidence that as a young child he had been repeatedly physically abused by his father, that he had commenced smoking marijuana at age 14, ice at 15, and when aged 16 commenced using ecstasy and experimented with cocaine at age 20. His Honour observed that it could be said that Mr Crisp's "taking drugs was not really attributable to personal choice" and accepted the opinion of a psychologist that Mr Crisp's capacity to exercise judgment was to some extent impaired by his constant use of drugs and that over the two week period of his offending he was "not acting rationally and thinking clearly but that he did understand the nature of his acts". He concluded that Mr Crisp was remorseful. 30Mr Crisp had been in prison since his arrest on 3 October 2010 and had acquired a significant number of certificates. His Honour observed that this was a long period to spend in prison without knowing his ultimate fate resulting in suspense and uncertainty. He observed that he had been able to show progress through rehabilitation in the meantime and that there had only been one infraction for possessing prohibited goods. His Honour found special circumstances in the need for lengthy supervision. 31A number of comments must be made about the findings of North DCJ. Firstly, it would seem that the evidence of violence before North DCJ was less than before Charteris DCJ. Secondly, his Honour's acceptance of the psychologist's conclusion that that Mr Crisp's capacity to exercise judgment was to some extent impaired by his constant use of drugs and that he was not acting rationally and thinking clearly is a finding favourable to Mr Crisp that was not made in respect of Messrs Wilson and Barrie. (It is not presently to the point whether his Honour's conclusion was correct. There is much to be said for the view it was not.) 32More significant is the conclusion of North DCJ that Mr Crisp's offence fell into the area covered by the Henry guideline. That conclusion was wrong and it is impossible to understand how his Honour arrived at it. The R v Henry guideline applies to an offender and offence exhibiting the following broad characteristics, at [161] - [165]: (i) young offender with no or little criminal history; (ii) weapon like a knife, capable of killing or inflicting serious injury; (iii) limited degree of planning; (iv) limited, if any, actual violence but a real threat thereof; (v) victim in a vulnerable position such as a shopkeeper or taxi driver; (vi) small amount taken; and (vii) plea of guilty, the significance of which is limited by a strong Crown case. 33Mr Crisp was a young offender but not one with no or little criminal history. As I have said, his criminal antecedents report extended to 17 pages. His record included four offences of stealing a motor vehicle, another three of being carried in a stolen vehicle, three offences of breaking and entering, three others of stealing, one of assault occasioning actual bodily harm and one of robbery in company. He had been sentenced on at least a dozen occasions, and by the courts had been given chance after chance after chance. He might fairly be described as a recidivist. 34While there was no weapon like a knife, capable of killing or inflicting serious injury, the baseball bat was certainly capable of being so used and that other weapons, a pistol and shortened shotgun, even if unloaded, were calculated to inflict significant emotional trauma, possibly long lasting, on those threatened. 35Mr Crisp's involvement did not involve only a limited degree of planning. At Mr Crisp's request, a co-offender picked him up, drove him to meet other offenders, and then to a railway station in order for Mr Crisp to steal a car. When that was done Mr Crisp drove the car and picked up the other offenders, weapons and clothing to be used as a disguise, and drove them to the Petersham Inn. He then waited in the car while the others carried out the robbery and after that occurred he drove them away. He then attended premises where the proceeds were shared. His offending was "planned or organised criminal activity", an aggravating factor under s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 (NSW). 36There was not one "victim in a vulnerable position such as a shopkeeper or taxi driver". There were a number of victims, staff and patrons who were assembled by the offenders in one room and there forced to the floor. The manager was forced to his office. "Multiple victims" is another aggravating factor under s 21A(2). 37The amount taken was not small. It was $9,000 in cash and two mobile phones. 38There were, of course other differences. Mr Crisp was in the company of four other offenders, a matter which s 21A(2)(e) of the Crimes (Sentencing Procedure) Act regards as aggravating. His Honour had also to take into account the offence on the Form 1 of stealing of the car. Operating in the other direction was his Honour's conclusion that Mr Crisp's "taking drugs was not really attributable to personal choice". However, when allowance is made for all of the differences, Mr Crisp's offence and circumstances were far worse than those contemplated in the guideline in R v Henry and the sentence imposed on him for the offence he had in common with Messrs Wilson and Barrie was, as I have said, manifestly inadequate. 39There were obviously substantial differences between the sentences imposed on Messrs Wilson and Barrie on the one hand and that imposed on Mr Crisp on the other. When regard is had to the different factors operating, were the differences unjustified? 40So far as the non-parole periods are concerned I do not believe they were. The difference in the non-parole periods imposed on Mr Crisp and Mr Barrie can reasonably be justified by the difference in their Forms 1 - in the case of Mr Crisp, stealing a motor vehicle and in the case of Mr Barrie, robbery in company of the Henson Park Hotel whilst armed with a dangerous weapon and breaking entering and stealing - and by the fact that Mr Barrie was subject to conditional liberty at the time. 41Mr Wilson's offence of being accessory after the fact is not as obviously serious as Mr Barrie's of actually being involved in a robbery whilst armed, and Mr Wilson's offence of receiving is not as serious as Mr Barrie's of breaking entering and stealing. The offences on Mr Wilson's Form 1 were still more serious than the one offence on Mr Crisp's but in the result I do not regard the difference between Mr Wilson's and Mr Crisp's Forms 1 as justifying the difference in their non-parole periods. However, when one has regard also to the fact that Mr Wilson received a discount for his plea of only 10% while Mr Crisp received a discount of 25%, I do not think that there is unjustified disparity in their non-parole periods. 42However, the head sentences fall into a different situation. Even making allowances for the difference between the offenders' circumstances, I am unable to see justification for the difference in the head sentences. To take Mr Barrie by way of example, he did not merit a head sentence for the relevant offence almost twice as long as that imposed on Mr Crisp. 43The disparity gives rise to a power in this Court to interfere. It does not oblige the Court to do so particularly when the disparity is the product of a manifestly inadequate sentence imposed on one of the offenders. However, in this case I believe that the Court should interfere particularly as it can do so without imposing another manifestly inadequate sentence. 44Before turning to what should be the consequences of the conclusion, it is convenient to consider the first and third of Mr Barrie's grounds of appeal. The second should be left until later. 45The first ground was that:- The learned judge erred in failing to give appropriate weight to the subjective features of the applicant. 46In support of this ground attention was given to the evidence that Mr Barrie had come from a disrupted home, findings of a psychologist that Mr Barrie had low intellectual functioning and his substance abuse disorder. Attention was drawn to the fact that Mr Barrie had not previously been in prison. However, having read the totality of Charteris DCJ's remarks I am by no means persuaded that his Honour did not give these matters the weight they deserved. Certainly they operated in Mr Barrie's favour but they must be set against, inter alia, his record, the chances that courts had given him and what his court appearances must have made crystal clear, that anti-social behaviour could not be tolerated. I would not uphold this ground. 47The third ground was that:- The learned sentencing judge erred in failing to take into account the time served on bail for the applicant, given the restrictive nature of those conditions. 48Mr Barrie was arrested on 22 October 2010. Between then and 1 January 2011, the date fixed for the commencement of his sentence, is a period of 71 days. As his Honour recorded, the Applicant had spent about 87 days on bail during which periods he was obliged to participate in residential rehabilitation facilities at Miracle Haven and the William Booth Centre in Sydney. Before Charteris DCJ the Crown had conceded that because of the onerous bail conditions to which the Applicant had been subject it would not be inappropriate to backdate the commencement of the sentence to 22 October 2010. 49However, counsel for Mr Barrie also made a concession. When his Honour, having raised these matters said that he was minded to commence the sentence on 1 January 2011, and asked counsel what he wanted to say about that, Mr Santisi said that he did not wish to be heard. He confirmed that stance after his Honour had formally passed sentence but invited comment. In this Court the Crown drew attention to Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 at [80] - [82] where the Court emphasised its reluctance to depart from concessions made in the Court below. 50Section 24(a) of the Crimes (Sentencing Procedure) Act requires a court to take into account any time an offender has spent in custody in relation to the offence. In practical terms this means that had the Applicant never been admitted to bail, his Honour would have been obliged to backdate the commencement of the sentence to 22 October 2010. Because the Applicant had been on bail for 87 days he lost the benefit of 71 days backdating. Commonly when the conditions of bail are such that time spent on bail amounts to quasi custody some of the time spent on bail is disregarded. Not infrequently when this time is spent in a residential rehabilitation facility, the allowance is 50% of the time spent. However, as a general proposition if an offender seeks this allowance there is an onus on him to provide evidence of the conditions to which he was subjected - see for examples of this, R v Eastway (unreported, NSWCCA, 19 May 1992), R v Campbell [1999] NSWCCA 76, and R v Delaney [2003] NSWCCA 342. Of course, in some cases a judge may have become aware of the particular circumstances of an offender without such evidence - see Renshaw v R [2012] NSWCCA 91. 51In an appropriate case the Court can take judicial notice of these conditions - Bonett v R [2013] NSWCCA 234 at [56]. The members of the Court who are involved in its criminal jurisdictions commonly become aware of the conditions many of the residential rehabilitation facilities impose. That said, in Bonett v R the Court also held that although quasi-custody may be a relevant consideration it is not a mandatory relevant consideration and in that case there was insufficient evidence before the sentencing judge to enable his Honour to determine the conditions of the applicant's residence so as to show it amounted to quasi-custody and to oblige him to have regard to it. 52Here also the evidence was sparse although Charteris DCJ having been prepared to act on what there was and, it may be inferred, to some extent on the concessions made, this Court should adopt a generally similar approach. 53But there still remains the question of what allowance should be made. A difficulty the Applicant has is that he was discharged from the Miracle Haven facility because he had partaken of marijuana. He clearly had not adhered to the conditions imposed on him. To what extent he departed is a matter upon which there is no evidence so while I think it appropriate that he received some credit for his not insubstantial time in the residential rehabilitation facilities, that credit should not be as high as 50% of the time spent there. Credit for a third of the 87 days would not be inappropriate and that would mean that 58 days were not to be treated as pre-sentence custody: 58 days is only 13 days less than the 71 days Charteris DCJ denied the Applicant credit for. In circumstances where the quantum of the allowance is discretionary and Mr Barrie's counsel elected not to debate his Honour's choice of 1 January 2011, there is no ground for concluding that his Honour erred in what he did. 54That said, if this Court is to adjust the sentence imposed on Mr Barrie, it would be appropriate for the further 13 days to be allowed. 55I return to the consequences of the disparity I have found. If it was not to be manifestly inadequate, the head sentence imposed on Mr Crisp for the offence they had in common should have been substantially higher than it was. Mr Barrie's Form 1 required that, other things being equal, a higher sentence should have been imposed on him than on Mr Crisp. The fact that Mr Barrie was on conditional liberty argues in the same direction. I am not persuaded that there was a great deal to choose between their respective subjective circumstances. 56The principal difference between Mr Wilson and Mr Crisp lies in the different discounts that they received. 57In the result I would reduce the head sentences in respect of the Petersham Inn Hotel offence to, in the case of Mr Wilson, 7½ years and in the case of Mr Barrie, 8 years. As I indicated above, I see no justification for reducing the non-parole periods. 58I turn to Mr Barrie's remaining ground of appeal, viz The sentencing judge failed to have proper regard to the totality principle in his accumulation of sentences. 59As has been said, Charteris DCJ sentenced Mr Barrie as follows: In respect of the Newington Inn offence, imprisonment for 7.5 years including a non-parole period of 4.5 years, both periods commencing on 1 January 2011; In respect of the Petersham Inn offence, imprisonment for 9 years including a non-parole period of 4 years and 9 months, both such periods commencing on 1 January 2014. 60Thus his Honour accumulated on each of the non-parole period and the full term imposed for the Petersham Inn offence, a further 3 years. Put another way - though it seems to me preferable to consider to what extent the longest sentence has been increased - he accumulated on the non-parole period and full term imposed for the Newington Inn offence a further non-parole period of 3 years and 3 months and a further 4½ years on the full term. 61In R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66 at [7], Simpson J, in a passage that has been often cited, observed:- Whether or not to accumulate sentences imposed in relation to multiple offences is, in the end, an exercise of discretion to be made in accordance with established principle. Features common to two or more offences are all matters relevant to be taken into account (pointing towards concurrence) as are features indicating the disparate nature of the offences (pointing the other way). There will be many cases in which sentencing judges might take differing views but neither view could be said to be wrong. 62However, as Howie J said in R v Merrin [2007] NSWCCA 255; 174 A Crim R 100 at [36]:- Statements such as those in R v Hammond (2000) 118 A Crim R 66 at [7] to the effect that questions of concurrence or accumulation are a discretionary matter for the sentencing judge "has to be read subject to what is required in a particular case to reflect the totality of the criminality before the Court." 63Furthermore, as was said in R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at [16]:- The severity of a sentence is not simply the product of a linear relationship. That is to say severity may increase at a greater rate than an increase in the length of a sentence. 64I made a similar point in R v Spiteri [1999] NSWCCA 3 at [39]:- I take the view that actual imprisonment for say 10 years is more than twice as severe as one of imprisonment for 5 years. Having regard to the sorts of terms under consideration for drug dealing a sentence of one of the longer periods is likely to have an impact on an offender's life in terms of wife, children, job prospects and the like from which he may well never recover and these sorts of considerations also have to be borne in mind. 65The point has application to the circumstances here. 66The matters just referred to mean that it is not just a case of comparing the 3 years increase in sentence with the 4½ years imposed for the Newington Inn offence. Three years as an addition to the 4 years 9 months non-parole period for the Petersham Inn offence has a greater impact than a simple 3 years sentence. How much greater is a matter of judgment. 67The offences for which Mr Barrie was sentenced were discrete. Committed some three weeks apart, they each involved their own separate criminality by him and their own separate victims. Sacrificing some accuracy for brevity, the only matter of arguable significance linking them was Mr Barrie's motivation - the need to feed his drug addiction. I would afford that some, but limited weight. 68However, I am satisfied that, given the non-parole period imposed in respect of the Petersham Inn offence, accumulation by 3 years on account of the 4½ years non-parole period for the Newington Inn offence was excessive. His Honour gave no reasons why he adopted that figure and, although I do not suggest he should have, the absence of reasons means that this Court does not have the benefit of knowing why his Honour chose that figure. In my view the extent of the accumulation of the non-parole should be reduced to 21 months. The effective non-parole period will be 6½ years, no insubstantial period. The extent of accumulation of the full terms should also be reduced. The effective full term will thus become 9 years and 9 months. 69As I have said, Mr Wilson's non-parole period of 5 years and 3 months should not be reduced but his full term should be reduced to 7½ years. 70I should record that Charteris DCJ made findings of special circumstances - expressly in the case of Mr Wilson and implicitly in the case of Mr Barrie. There was no challenge to these findings and there were clearly grounds for them. 71In the result I propose the following orders:- In the case of Mr Wilson:- (i) Grant leave to appeal against sentence; (ii) Allow the appeal; (iii) Quash the sentence imposed by Charteris DCJ on 11 October 2012. (iv) In respect of the offence of, on 14 September 2010, being armed with dangerous weapons and being in company, robbing Desmond Clarken of money the property of Vertigo Pty Ltd trading as the Petersham Inn Hotel, sentence him to imprisonment for a non-parole period of 5 years and 3 months commencing on 1 April 2011 and a balance of term of 2 years and 3 months commencing on 1 July 2016. (v) Record as the date when it appears to the Court that Mr Wilson shall be eligible for parole, 1 July 2016. In the case of Mr Barrie:- (i) Grant leave to appeal against sentence; (ii) Allow the appeal; (iii) Quash the sentences imposed by Charteris DCJ on 11 October 2012. (iv) In respect of the offence of, on 25 August 2010, whilst armed with a dangerous weapon robbing Patricia Tselepi of property of the Newington Inn, sentence him to imprisonment for a non-parole period of 4 years and 6 months commencing on 18 December 2010, together with a further term of 3 years commencing on 18 June 2015. (v) In respect of the offence of, on 14 September 2010, whilst armed with a dangerous weapon robbing Desmond Clarken of property of Petersham Inn, sentence him to imprisonment for a non-parole period of 4 years and 9 months commencing on 18 September 2012, together with a further term of 3 years and 3 months commencing on 18 June 2017. (vi) Record as the date when it appears to the Court that Mr Barrie shall be eligible for parole, 18 June 2017. ********** 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: 13 August 2014