FEDERAL COURT OF AUSTRALIA

R v Meyboom [2001] FCA 861

CRIMINAL LAW – crown appeal against leniency of sentence – appellate restraint – criminality revealed by “scheduled” offences to be fully taken into account – accumulation of sentences – circumstances in which drug addiction may be mitigating factor – validity in proper cases of rehabilitative approach by sentencer – limits to availability of such an approach.

Crimes Act 1900 (ACT), ss 429A(1), 448.

R v Davey (1980) 50 FLR 57, referred to

Everett v The Queen (1994) 181 CLR 295, referred to

Veen v The Queen (No 2) (1988) 164 CLR 465, referred to

R v Hebditch [1999] FCA 1087, referred to

R v Lindsay [1995] FCA 706, referred to

Postiglione v The Queen (1997) 189 CLR 295, cited

Kelly v The Queen (1992) 33 FCR 536, cited

R v Griggs [1999] FCA 1573, applied

R v Blaskovic [1999] FCA 1306, applied

Talbot v The Queen (1992) 34 FLR 100, considered

Douglas v The Queen (1995) 56 FCR 465, referred to

Ryan v The Queen (2001) 75 ALJR 815, referred to

R v CRAIG PAUL MEYBOOM

A75 of 2000

MILES, WHITLAM & MADGWICK JJ

10 JULY 2001

CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A75 of 2000

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE

AUSTRALIAN CAPITAL TERRITORY

BETWEEN:	THE QUEEN APPELLANT
AND:	CRAIG PAUL MEYBOOM RESPONDENT
JUDGE:	MILES, WHITLAM & MADGWICK JJ
DATE OF ORDER:	10 JULY 2001
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The sentences imposed upon the respondent and the orders made by the Supreme Court of the Australian Capital Territory on 20 October 2000 be set aside and in lieu thereof the respondent be sentenced as follows:

Count 1 - 2 years imprisonment

Count 2 - 2 years imprisonment (concurrent with the sentence for count 1)

Count 3 - 5 years imprisonment (to be cumulative upon the sentence for count 1)

Count 4 - 4 years imprisonment (concurrent with the sentence for count 3)

Count 5 - 2 years imprisonment (concurrent with the sentence for count 3)

Count 6 - 4 years imprisonment (to commence 2 years after the commencement of

the sentence for count 3)

Count 7 - 12 months imprisonment (to commence 3 months and 3 years after the

commencement of the sentence for count 6)

Count 8 - 4 years imprisonment (concurrent with the sentence for count 6)

Count 9 - 6 months imprisonment (to commence 9 months after the

commencement of the sentence for count 7)

3. The sentence on the first count is to date from 20 October 2000.

4. A non-parole period of 4 years and 6 months be fixed also to date from 20 October 2000.

5. Execution of the judgment of this Court is remitted to the Supreme Court.

6. For the purposes of s 451 of the Crimes Act 1900 (ACT) the Sheriff or prison authority is to reckon the time spent by the respondent in custody in relation to the above offences prior to 20 October 2000.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A75 of 2000

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE

AUSTRALIAN CAPITAL TERRITORY

BETWEEN:

THE QUEEN

APPELLANT

AND:

CRAIG PAUL MEYBOOM

RESPONDENT

JUDGE:	MILES, WHITLAM & MADGWICK JJ
DATE:	10 JULY 2001
PLACE:	CANBERRA

REASONS FOR JUDGMENT

THE COURT:

1 This is an appeal by the Director of Public Prosecutions for the Australian Capital Territory (“the Director”), asserting manifest inadequacy of certain sentences imposed by a judge of the Supreme Court of the Australian Capital Territory (“the Supreme Court”), and associated error in sentencing principle.

2 The respondent was sentenced to a total of seven years’ imprisonment with a non-parole period of three and a half years following his pleas of guilty to:

· four counts of armed robbery;

· one count of conspiracy to commit armed robbery;

· two counts of robbery;

· one count of arson;

· one count of escape custody; and

· one count of possessing stolen property.

3 In relation to one of the armed robbery charges, the respondent asked, pursuant to s 448 of the Crimes Act 1900 (ACT) (“the Act”) that there be taken into account in sentencing him:

· two charges of driving in a dangerous manner;

· one charge of assault occasioning actual bodily harm; and

· seven charges of unlawfully using a motor vehicle.

Background

4 It is convenient to summarise the facts, chronologically, from a helpful statement of them, which was placed before the learned sentencing judge:

Count 1 – Robbery on 16 March 2000

At about noon a woman, six months pregnant, returned to her home unit. The prisoner was standing next to her screen door. As she walked inside the unit, the prisoner said to her “I saw teenagers trying to break in”. The victim then went over to her wall mounted telephone, next to the front door. The prisoner pulled the phone off the wall and pushed her onto a bed in the living room. He said “Get on the floor”. The woman was very frightened. The prisoner took her mobile phone from her hand.

The prisoner picked up her wallet and took a $5 note from it. He then said to her “Stay there. Wait ten minutes before you get up. If you ring anybody, I will come back and slice your throat.” A short time later the victim heard a car leave. She got up and saw that a television set was missing. She also noticed that there had been damage to the front screen door and front door.

The prisoner’s fingerprints were taken from the telephone and wall unit inside the premises by forensic police. When arrested on 20 April 2000 the prisoner had in his possession the victim’s mobile phone.

The victim gave evidence at the prisoner’s committal. Thereafter, the prisoner indicated, on 27 July 2000, that he would plead guilty to this offence after being committed for trial by a magistrate on 12 July 2000.

In addition, it was in relation to this count that the prisoner asked that the scheduled offences be taken into account.

Count 2 – Robbery on 17 March 2000

At about 11.15am a woman was standing behind the serving counter at the Canberra South Motor Park reception area. The prisoner entered, walking quickly. He went directly to a waist high swinging door entry to the space behind the counter. He reached down, unlocked the bolt and opened this door. The victim thought that the prisoner was carrying a large pocket knife. She stepped back and placed her hands up in a surrender position. After the incident a cigarette lighter with a large black case and silver top was found on the floor.

The victim reached towards the telephone and the prisoner said “Touch it and I will kill you”. She moved away from the telephone. The prisoner demanded that she open the cash register, and she did so. The prisoner then took about $700 in notes from the cash tray and told her to lift the tray. She did so and the prisoner then left, driving off in a vehicle, the victim took down the registration number.

Scheduled Offence 1: Unlawful use of a Motor Vehicle

Police enquiries revealed that that vehicle was reported stolen by its owner at 11.25am that day. It was stolen between 9.10am and 11.00am on 17 March from a carpark. It was recovered at about 1.00am on 18 March.

Count 3 – Armed Robbery on 23 March 2000

At about 3.25pm Mr Brett Morgan was working in the reception area at the Canberra City Motor Inn in Griffith. At that time he saw a red Holden Commodore drive into the driveway of the premises and into the carpark, turn around and then stop just past the reception area. Mr Morgan stood up to investigate and, as he did so, the prisoner entered the reception area.

As the prisoner walked towards Mr Morgan he hunched over. Mr Morgan was concerned that the prisoner was going to attack him and stood back. The prisoner said “Open the till … I’m going to stab you”. The prisoner moved his left hand from behind his back and showed Morgan that he had a knife in that hand. Mr Morgan was terrified and started shouting at the prisoner. The prisoner continued to tell Morgan that he would stab him and said “Open it … it’s not worth it … open the till.” After further shouting, Mr Morgan opened the till and handed the prisoner the fifty and one hundred dollar notes, totalling about $1500. The prisoner took this money and placed it into a bag that he had taken from under his clothing. There was a further argument about whether there was any other money under the cash tray. Morgan stepped forward and lifted the tray. The prisoner looked under the tray and then ran outside. He then turned to Morgan, smirked and poked out his tongue before getting in the car and driving off.

Scheduled Offence 2: Unlawful use of a Motor Vehicle

Mr Morgan noted the registration of the car as YSN009. Inquiries by police revealed that this motor vehicle, a red Holden Commodore sedan, was stolen from a car park between 6.45am and 4.00pm on 23 March 2000. The vehicle was recovered on 27 March 2000.

Count 4 – Armed Robbery on 2 April 2000

At about 1.50pm on a Sunday Ms Kristie Simpson was working in the reception area of the Statesman Hotel in Curtin. At that time the prisoner’s co-offender, Tristan Dawe, entered the reception area and approached the front counter. Dawe asked if he could use the toilet. The victim directed him to a toilet in the reception area. Dawe used the toilet and then left the reception area. About five minutes later Dawe re-entered the reception area with the prisoner. Dawe told Ms Simpson that they needed to use the toilet again. Both Dawe and the prisoner then went towards where the toilet was located.

A short time later Ms Simpson noticed them walking back towards the reception desk. As they approached the prisoner pulled a balaclava over his face. The prisoner then climbed over the reception counter and told Simpson “Open the till.” She did so and then the prisoner showed her that he was holding a knife in his left hand. Dawe and the prisoner removed the money from the till. The prisoner then told Simpson “Get down on the ground”. Simpson got down on her knees, and saw the prisoner remove the cash till from inside the register. The prisoner then climbed back over the desk. About $4000 was stolen.

Scheduled Offence 3: Unlawful use of a Motor Vehicle

Ms Simpson saw the prisoner drive off in a red sedan. Police enquiries revealed that the red Holden Commodore, registration YKH260 was stolen between the hours of 9.00am and 4.00pm on 2 April 2000 from a car park.

Count 5 – Conspire to Commit Armed Robbery on 7 April 2000

At about 1.00pm Ms Sonja Thorpe was working as the receptionist at the Diplomat Hotel. She observed the prisoner’s co-offender, Tristan Dawe, enter the reception area wearing a black wig. Dawe looked around the reception area, and then walked down the stairs leading to the underground carpark.

Ms Thorpe saw, through the front glass doors, a blue sedan parked at the bottom of the front stairs, with the prisoner sitting in the driver’s seat. He then got out of the car and looked up through the reception doors, before getting back into the car and moving it forward so that most of the car was out of view through the reception doors.

Ms Thorpe became suspicious and advised the Assistant Manager, Ms Lorrae Kennedy. Ms Kennedy then wrote down the registration number of the car YKK154.

Dawe then walked back up the stairs and said “See you later love”. Ms Kennedy then called out to Ms Thorpe to call the police. Dawe left the foyer and got into the blue sedan. The prisoner then drove away.

Scheduled Offences 4 and 5: Driving in a manner dangerous: Unlawful use of a Motor Vehicle

The police were notified to attend and located a vehicle, registration YKK154, at an intersection in Kingston. Police attempted to prevent the vehicle from driving away, but the prisoner deliberately rammed the police vehicle. The prisoner then opened his door and as police got out of their vehicle he closed his door, reversed the vehicle and drove off. Police lost sight of the vehicle. Police inquiries revealed the Holden Commodore sedan with registration YKK154 had been stolen from a carpark between 10.30am and 12.20pm that day.

Counts 6 & 7 – Armed Robbery and Arson on 13 April 2000

At about 9.15pm the prisoner and his co-accused, Christopher Hayes, entered the King Ruby restaurant at Hackett. Ms Li Chu Lam was behind the service counter and thought the two men were new customers. She called for her daughter to come and serve them.

The prisoner spoke to Ms Li Chu Lam, but she did not understand. He moved closer and leaned against the counter and she saw that he had a knife in his left hand. Ms Lam was very frightened. The prisoner spoke again, and said “Give me the money”.

Ms Lam then opened the cash register. The prisoner reached over and took out the cash tray.

The two men then ran out of the restaurant, and were observed getting into a gold Holden Commodore sedan. About $600 was stolen.

The prisoner with Hayes and another person then drove to Ainslie Village, where the prisoner and Hayes set fire to the car. The remains of a cash tray were located in the car.

Scheduled Offence 6: Unlawful use of a Motor Vehicle

A gold Holden Commodore (registration number YAJ59P) was reported stolen. The car had been taken from a car park between 8.45pm and 10.30pm.

Count 8 – Armed Robbery on 15 April 2000

At about 8.12pm on 15 April 2000 the prisoner and his co-offender Hayes entered the reception area of the Canberra Lyneham Motor Inn. The prisoner then spoke to Ms Fay Ruskin who was working in the reception area and demanded money. When he did so, Hayes produced a knife. Ms Ruskin opened the till and Hayes gave the prisoner a plastic bag. The prisoner took the cash from the till and put it into the bag. $535 was stolen.

Scheduled Offence 7: Unlawful use of a Motor Vehicle

Both men then left and drove away in a Holden Commodore sedan, ACT registration YAJ59P. Police inquiries revealed that this vehicle had been reported stolen from Ross Smith Crescent, in Scullin, on Saturday 15 April. The vehicle was recovered.

Count 9 – Escape Lawful Custody on 16 July 2000

About 5.31pm on Sunday 16 July 2000 Mark Spiteri, a detainee at the Belconnen Remand Centre, kicked a hole in the gyprock wall of a courtyard near the southern wall of the Centre. He then returned to the ‘E’ dormitory. About 5.33pm Spiteri returned with the prisoner and another detainee, Anthony Fitton. Spiteri and the prisoner then climbed through the hole in the wall.

A short time later another detainee, Huu Le climbed out of the hole, again in the presence of Fitton. Fitton then covered the hole in an attempt to disguise it and returned to the ‘E’ dormitory.

The prisoner was at large until 25 July 2000 when he was arrested at premises in Rivett.

Scheduled Offences 8 & 9: Unlawful use of a motor vehicle: Driving in a manner dangerous on 17 April 2000

Constable Howes was involved in the pursuit of a car which contained two occupants, the prisoner and his co-offender, Christopher Hayes. The prisoner was driving. He deliberately rammed the pursuing police vehicle on two occasions. The vehicle driven by the prisoner reached speeds in excess of 100km/h in densely populated residential areas. The prisoner escaped by climbing over fences after stopping his vehicle in a suburban driveway.

Police inquiries revealed that the car had been stolen the same day from a car park.

Scheduled Offence 10: Assault occasioning actual bodily harm on 4 June 2000

The prisoner assaulted Todd Brendan Kirby whilst in custody after his re-arrest at the Belconnen Remand Centre. Kirby was in his room when the prisoner and another detainee known to Kirby as Cook entered. The prisoner asked Kirby to accompany him and Cook to the ‘E’ dormitory so that the prisoner could make some phone calls. The prisoner told Kirby that he would not be able to go unless Kirby agreed to go as well. Kirby refused as he said he was sick.

The prisoner and Cook left his room, but the prisoner returned again about 10 minutes later, and again asked him to go to ‘E’ dorm. Kirby again refused, and the prisoner became abusive. After asking a third time and being refused again, the prisoner then grabbed Kirby around the neck and punched Kirby in the head several times. Mr Kirby was lying down on his bed at the time. The prisoner also hit him in the face, neck and shoulders before standing on the bed and kicking Kirby in the ribs and back.

Kirby later reported the incident. He was seen by the Remand Centre nurse, and then taken to Calvary Hospital for X-rays. According to the nurse’s report, Kirby sustained bruising above the left temporal area and lacerations to the right mandible. He also suffered loss of consciousness.

Count 10 – Possess Stolen Property on 25 July 2000

After being arrested on 25 July 2000 the prisoner was searched and a white gold ‘Russian Cut’ diamond ring was located under his right foot. The ring had a gold price tag attached; one side of the tag had $1800 written on it and the other side had the word ‘Russian’ and several figures.

The ring was seized. On 26 July 2000 police showed the ring to Mrs Helen Tyrrell-Philips, the victim of a robbery at Advanced Jewellers in Southlands Shopping Centre, Mawson on 21 July 2000, who identified the ring as being the one stolen from her store during the robbery.

During a taped record of conversation with police on 27 July 2000 the prisoner admitted having the ring in his possession. He further stated that he received the ring from a man known as Phil Norris at the Tuggeranong Homeworld Shopping Centre on 21 July 2000 between 4pm and 5pm, approximately three and a half hours after the robbery. The prisoner stated he was given the ring by Norris to sell. He was to receive money for selling the ring and if successful Norris would give him further jewellery to sell. The prisoner stated he believed the ring was stolen.

The prisoner could not provide police with further details about Norris, and police have been unable to locate him.

Co-Offenders

5 The respondent committed a number of the offences with co-offenders. A young person, Christopher Hayes, pleaded guilty to two armed robberies and was sentenced to a 21 month committal to an institution by a Magistrate. This was reduced to 14 months as Hayes undertook to give, and subsequently gave evidence against the respondent in committal proceedings. Tristan Dawe, an adult co-offender, pleaded guilty to two armed robberies and the conspiracy with the prisoner to commit armed robbery. He was sentenced to 3 years imprisonment with a non-parole period of 12 months. Dawe also gave evidence against the respondent in committal proceedings.

Other information

6 The respondent was initially arrested by police during the execution of a search warrant at a dwelling in Reid on Thursday 20 April 2000. In a taped record of interview, he denied any knowledge of any of the offences. On Wednesday 26 April 2000 the respondent asked to be re-interviewed by police in relation to the offences that he had been charged with, and made admissions with respect to some of them.

7 The respondent had been in custody in relation to these offences from 20 April 2000 to 16 July 2000 (88 days) and from 25 July 2000 until 15 September 2000 (52 days).

The respondent’s criminal record

8 The respondent was born on 10 July 1975. Leaving aside a considerable record in Children’s Courts, the respondent’s criminal record included:

1994 assault police }sentenced to 6 months imprisonment.

possess offensive weapon with intent }

1995 take vehicle without authority }sentenced (including for other

drive in a manner dangerous }offences) to 2 years imprisonment, no

}non-parole period set.

1996 various dishonesty offences }sentenced to 9 months fixed term

including car-stealing }imprisonment.

1998 use weapon to avoid apprehension }sentenced to a minimum term of 1

escape lawful custody }year, to expire on 2 April 2000, plus

}additional term of 1 year.

Thus, all of the offences were committed soon after and during the respondent’s release on parole and after three substantial sentences had been imposed on him in the previous 5 years.

The respondent’s personal background

9 As indicated above, the respondent’s 25^th birthday occurred while he was in custody, six days before he escaped (count 9). He was 24 when most of the offences were committed.

10 The respondent had a very difficult early life. His mother left his violent and abusive father when he was aged 7. He left home aged 13 due to conflict with his stepfather; he lived in a refuge for a few months and, after some thieving, was detained in a children’s institution for 6 months. He returned home, to be expelled from school at 15 after prolonged misbehaviour including violence. He again left home for refuges and the streets. At age 18 he began to live with his fiancee. She was killed in a “hit and run” accident a few months later. He was, as he said to the learned sentencing judge, crushed by this. In February 2000, during the short period he was out of prison, he formed a de facto marriage relationship with a very young woman.

11 He began using drugs when he was 13 years of age, drinking regularly from age 15 and graduating to intravenous amphetamine use at 16 and regular heroin usage from the age of 17, including in gaol. He has, apparently, never availed himself of any treatment or counselling for his long-term addictions. On one occasion, in about 1994, he was bailed to enter a residential program but, when initial transport arrangements failed, he abandoned the attempt.

12 The respondent has a history of depression and attempted self-harm, although no clinical intervention had been necessary during the time he was on remand for the present matters.

13 It seems that he has only ever worked for about 12 months. However, a positive note, as the learned sentencing judge observed, was that he completed Year 10 studies while in prison.

14 The respondent explained the bulk of the instant offences as motivated by his need for money for drugs. The reporting welfare officer said that the respondent minimised his responsibility for the offences, but ultimately made some expressions of a desire to make amends to the victims.

15 In evidence, the respondent told his Honour that, on his release, he wanted to enter a long-term residential rehabilitation centre that would give him employment and living skills as well as help with his drug problem. He expressed remorse in seemingly persuasive terms, and accepted sole responsibility for the offences. As to the assault charge, he acknowledged that, in relation to the 10^th scheduled offence, he had perpetrated prison violence of a kind of which he had been petrified when he first entered an adult gaol.

The structure of the sentences

16 His Honour imposed sentences as follows:

· On each of the four counts of armed robbery, 4 years imprisonment, to be served concurrently, to commence on 28 April 2000;

· On each of the two counts of robbery, 18 months imprisonment, to be served concurrently with each other, but cumulatively on the armed robbery sentences;

· On the count of armed robbery conspiracy, 2 years imprisonment, to be served concurrently with the armed robbery sentences;

· On the arson count, 12 months imprisonment, to be served cumulatively on all other sentences;

· On the escape count, 6 months imprisonment, to be served cumulatively on the armed robbery and simple robbery sentences; and

· On the possession of stolen property count, 3 months imprisonment, to be served concurrently with the escape sentence.

17 Thus, head sentences totalling 7 years were imposed. His Honour fixed a non-parole period of 3 years and 6 months, also to date from 28 April 2000.

The sentencing judge’s reasoning

18 The learned sentencing judge recognised that the robbery and armed robbery offences were “serious, repeated [and] carried a grave risk of physical injury to members of the public” and represented “cowardly and violent behaviour”; the use of a knife was a “particularly aggravating circumstance”. His Honour recognised that there was “little in the circumstances of the offences or indeed upon the offender’s record to indicate leniency”, however, there was “some” remorse. Yet “by and large”, the guilty pleas had not been in respect of “crimes not otherwise able to be attached to” the respondent. His Honour thought that it would be appropriate to discount the sentences “in totality” by approximately 25 per cent for the remorse and the pleas.

19 His Honour continued: “[t]he real question is whether there are any prospects for rehabilitation, and that is the most troubling aspect”. His Honour noted that:

· “many psychological issues” had contributed to the respondent’s “disposition towards drugs and crime”;

· the respondent “realises that his spiral of crime has been accelerating and he wishes to avoid that”;

· he needed treatment for depression which “forms an impediment to his reformation at the moment, but did not provide an explanation of his offences”; and

· because of the escape offence, the respondent would need to gain the trust of the gaol authorities before “he is likely to be given much leeway” as to how he would be treated in prison.

20 His Honour concluded:

“He no doubt needs to work at that [i.e. gaining trust] and to work at his drug abstinence to show that he is worthy of parole which I do propose to permit after a suitable lapse of time. If he can do that and the psychological reports I have been given seem to support the view that he can, then the parole board would be justified in releasing him upon terms, including terms as to residential rehabilitation. I further accept that there would need to be supervision for a substantial period of time to enable that to occur.”

21 Thus, while it is true that, as counsel for the respondent submitted, remarks on sentence should generally not be read upon the assumption that they are as rigorously expressed as is common in reserved judgments, it seems fair to say that his Honour saw a real prospect of rehabilitation as the only real factor, apart from the pleas of guilty, warranting some considerable reduction in the effective sentence.

The DPP’s case

22 The Director submits that the learned sentencing judge appellably erred in the following respects:

a) both the total head sentences and the non-parole period were, despite his Honour’s acknowledgment of the seriousness of the most serious offences, so inadequate as to manifest a miscarriage of the sentencing judge’s sentencing discretion; and

b) upon analysis, it is evident that the overall inadequacy stems from either or both of two particular errors, namely:

i) all the armed robbery sentences were made concurrent; and/or

ii) a manifestly inadequate sentence was imposed in respect of the first count (robbery), mainly because there was no reflection of the seriousness of the 10 scheduled offences that were to be taken into account in this sentence.

23 The Director nevertheless made it clear that his principal concern was with the totality of the sentences imposed.

The respondent’s case

24 Counsel for the respondent stressed the importance of recognising, and practically according, a wide discretion in a sentencing judge. The foremost object of sentencing is the protection of the community and, if a sentencer “in the proper exercise of his [or her] discretion … can devise a sentence which will minimise the risk that an individual will re-offend then to that extent society is protected”: Davey (1980) 50 FLR 57, per Muirhead J at 65. Recognising that the “totality” principle was operative, it should be assumed that the sentences had been so structured as best to lead, in the opinion of an experienced judge, to the community’s protection.

25 The respondent’s “moral responsibility” was reduced by the “psychological issues” as to both the offences and his motivating drug addiction. The pleas of guilty had high “utilitarian value”.

26 As to the prospects of rehabilitation, the sentencing judge had seen and heard the respondent and was in the best position to make an assessment. The respondent’s youth justified “great weight” being placed on rehabilitation. The sentencing judge had recognised the seriousness of the crimes and made it clear that he had in mind a release on parole only on strict conditions.

27 Furthermore, there had been an exchange (set out below) between the sentencing judge and counsel for the prosecution at the sentencing hearing which it was submitted provided a discretionary ground for us not to interfere.

Consideration:

1. Appellate restraint on interference

28 It is beyond argument that, as the Director very properly puts it, Crown appeals against sentence ought to be sparingly made and rigorously assessed. It is also as counsel for the respondent argued, of fundamental importance that courts of criminal appeal should recognise and respect a wide discretion in a sentencing judge. There are two specific reasons for this.

29 The first is that every case is different from others, if only because it concerns a different human being. No sentencing regime that purports to concern itself with the totality of the circumstances that may tend to mitigate a particular offender’s culpability can deny the sentencer adequate scope for assessment of infinitely various facts and their nuances. The Australian Capital Territory sentencing system enjoins respect for the particular case: s 429 of the Act sets out the six “only purposes” for which a sentence may be imposed. The first purpose is “to punish the offender to an extent and in a way that is just and appropriate in all the circumstances”. Section 429A requires a sentencing court to have regard to a number of the personal characteristics of offenders: see subs (1)(f) to (s), and (u) to (w) inclusive.

30 The price of this, in practice, is that a very considerable degree of departure from the obvious virtues of consistency must be tolerated. Associated with this are the well-recognised facts that sentencing is a complex business and an “inexact science” (per McHugh J in Everett (1994) 181 CLR 295 at 307). In Veen (No 2) (1988) 164 CLR 465, Mason CJ, Brennan, Dawson and Toohey JJ at 476 said:

“… sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.”

In Ryan (2001) 75 ALJR 815, Hayne J said (at 838 paras 133 and 136, in the context of a prisoner’s appeal against severity of sentence):

“Sentencing an offender is a very difficult task. It requires consideration and balancing of many different and often conflicting matters. The offender’s conduct can excite strong emotional responses: anger, disgust, revulsion, horror. The offender’s personal history, which all too often is a history of deprivation, can excite sympathy. Often enough the sentencer is left wondering whether society has failed to protect and look after those who, it turns out, were most in need or most at risk.

…

As was said in Pearce v The Queen:

‘Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. It is, then, all the more important that proper principle be applied throughout the process.’

It is because sentencing, being discretionary, admits, of no single “correct” answer, that the task of intermediate appellate courts, on an appeal against sentence, is to examine whether the appellant makes good the allegation that the sentencer made an error of principle, not whether they agree with the sentence imposed. In a case of the present kind where, so far as is now relevant, the appellant alleged specific error, rather than error inferred from manifest excess of sentence, the question is not whether the particular factor to which attention is directed might have been taken into account by the sentencer differently.”

31 Some of the reasons why a sentencer proceeding in perfectly orthodox fashion may impose a sentence that may appearunduly lenient were well-expressed by Muirhead J in Davey at 65:

“One finds in the cases referred to, references to the “moral sense of the community”, to “condign punishment” and references which appear to draw a contrast between “rehabilitation” of an offender and “deterrence”. There are references derived from R v Radich [(1954) N.Z.L.R. 86] to sentences which are “weakly merciful”. There has, of course been much debate academic and judicial as to the purposes of punishment, the effectiveness or otherwise of deterrence, the necessity for punishment, the concept of retribution. One would glean from some sources that there are two conflicting responsibilities vested in a sentencing judge – one owed to the prisoner, to rehabilitate him, to treat him gently as it were – the other owed to society, to punish, to levy retribution, to deter. And the cases I have referred to suggest that error was demonstrated because of the emphasis on rehabilitation rather than punishment or deterrence. It is important that the law does not become confused in its objectives. The purpose of the criminal law is to bring wrongdoers to justice for the protection of the community. First and foremost, it is the protection of the community a sentencing judge must bear in mind, (R v Cuthbert per Herron C.J. [(1967) 86 WN (Pt 1)NSW, 272 at p 274]). There are occasions when a judge determines he can only extend that protection by severe punishment; there are other situations when he will reach the view that probation, suspension of sentence or community work orders are appropriate, not because they will be less unpleasant for the prisoner, but because they may be productive of reformation which offers the greatest protection to society. I am afraid, and I speak for myself, that the concept of the penitent prisoner emerging from the penitentiary has rare validity. A sentencing judge has to bear in mind the realities of prisons, of what is learned there, of the associations that are formed, of the effect on many people. Nor should he lose sight of the fact that the main problem of the police and the community is the recidivist. If in the proper exercise of his discretion he can devise a sentence which will minimise the risk that an individual will re-offend then to that extent society is protected.”

32 In general, where it is possible (the limits are discussed below), modern judges lean, for good reason, to doing that which will aid rehabilitation. In determining, in particular cases, whether rehabilitation may be the principal determinative factor in sentencing, conflicts with other values also arise. While there is no unanimity of social opinion, there is probably a balance in favour of rehabilitation being a preferred option, both as a matter of morality and of likely efficacy. This is, in any case, increasingly reflected in the decisions of courts. An example is R v Hebditch [1999] FCA 1087 in which a Full Court of this Court approved a recent observation by Sir Anthony Mason:

“I am not alone in thinking that effort put into rehabilitation, rather than retribution and deterrence, is more likely to be cost effective and lead to a better world.”

In R v Lindsay (1995) FCA 706 a Full Court of this Court said:

“In sentencing a young person, particularly, it seems to us that a judge is entitled to place great weight on the desirability of taking the course most conducive to the offender’s rehabilitation.”

33 These recent pronouncements are but examples of many others which indicate that, despite the recent re-emphasis on retribution, or “just deserts” (or, as others often phrased a similar notion, denunciation) which McHugh J noted in Ryan rehabilitation is of immense importance where it can reasonably be essayed.

34 Upon such considerations, the usual, restricted bases for an appellate court interfering with a discretionary judgment also have particular force in relation to prosecution appeals against sentences, where the sentencing judge has opted to emphasise rehabilitation possibilities.

35 The second reason is that an appellate review of a sentence twice puts a person’s liberty in jeopardy for an offence or series of offences. The undesirability of this is both plain and deeply embedded in our system of law: see the joint judgment in Everett at 299.

36 The consequence of these matters is that, absent constitutionally valid statutory command, appellate interference should be truly exceptional, and only essayed when thought essential to maintain public confidence in the administration of the criminal law. Even then, it is established that the extent of any interference should itself be restrained in recognition of the hard blow for a prisoner of having his or her sentence increased on appeal.

2. Totality and avoidance of “crushing” sentences

37 It is beyond argument that the respondent’s crimes, both principal, in the sense that they are actually the subjects of the counts charged by the indictment, and ancillary, in the sense that they are scheduled, are singly, at least quite serious and, cumulatively, very serious indeed. It is also well-recognised, and acknowledged by the appellant Director, that a crushing sentence must be avoided where, as here, the totality of the prisoner’s liability to imprisonment would, if imposed, have a crushing effect. Therefore, the effective sentences must be moderated. This is normally done by imposing sufficient of the nominal sentences concurrently, in whole or in part, as to produce a set of sentences which is not, in its entirety, excessive.

38 The same mechanism is used to give effect to, what is probably a separate principle, the “totality principle”, namely that the aggregation of the sentences should not exceed “a just and appropriate measure of the total criminality involved”, to use the formulation of McHugh J in Postiglione (1997) 189 CLR 295 at 307-8.

39 Technically, the first principle is one of mercy and the second one of proportionality but, not uncommonly, they are often expressed as the one principle (see Kelly (1992) 33 FCR 536 at 541), and there is no call for pedantry in the matter. The respondent, especially as a young man with a background full of emotional pain and loss, was and is amply entitled to have both these notions vindicated.

3. Absolute and relative seriousness of offences

40 Nevertheless, it is well-settled that it is appropriate to begin the proportionality enquiry by assessing the individual sentences absolutely and relatively against the maxima provided by the legislature, as appropriate for the worst examples of each offence. The relevant maxima are:

Armed robbery 25 years (s 101)

Robbery 14 years (s 100)

Arson 15 years (s 129)

Escape custody 5 years (and/or a (s 154)

large fine)

Possess stolen property 14 years (s 113)

Unlawful use of motor

Vehicle 5 years (s 120)

Driving in a manner (s 129 of the Motor

dangerous 1 year Traffic Act 1936 (ACT))

Assault occasioning actual

bodily harm 5 years (s 24)

41 To recapitulate, there were, as principal offences:

· four rather similar counts of armed robbery and one of conspiracy to commit armed robbery committed over a period of about three weeks. The armed robberies were of a prevalent kind, committed upon vulnerable people;

· two counts of robbery committed on consecutive days during that period. The first robbery was particularly serious, involving actual violence and a chilling threat of worse violence to a pregnant woman in her own home. (We indicate below the way the scheduled offences should have impacted for sentencing purposes on this count);

· one count of arson during that period;

· one count of escape committed about 3 months later. The escape was committed in company and was from a remand institution, established and staffed with a view to moderating the rigours of the facilities for remand prisoners at the nearest NSW prison. It was not the respondent’s first escape from lawful custody; and

· one count of possessing stolen property committed within 10 days of the escape.

4. The “scheduled” offences

42 Section 448 of the Act provides that a prisoner may ask that offences he or she admits be taken into account by the presiding judge in sentencing him or her for some indictable offence of which the prisoner is convicted.

43 The memorandum informing the respondent of his rights under s 448 indicated that the various matters to be taken into account were to be taken into account on the “charge of armed robbery first mentioned above,” that is the charge contained in count 3 of the indictment, referring to the first of the armed robberies. As indicated above, that involved: the robbery of about $1500, from a receptionist at a suburban motel, accomplished by the respondent brandishing a knife and repeatedly threatening to use it, while the respondent was on parole, a week after committing two other robberies, and using a stolen car.

44 The scheduled offences comprised:

· seven of unlawfully using a motor vehicle (in connection with the principal robbery and armed robbery offences);

· two of dangerous driving where deliberate damage to a pursuing police vehicle was involved; and

· one of aggravated assault, involving knocking out, in a cowardly way, an unprepared person who was confined in custody. (Prison violence being notoriously common and difficult to prosecute.)

45 When and how scheduled matters are to be taken into account is, in practice, rarely an issue. In New South Wales and the Australian Capital Territory it is uncommon, indeed practically unknown in modern times, for a sentencing judge to exercise his or her undoubted discretion against dealing with a scheduled offence as asked, and this is not the occasion to go into what might properly guide such discretion. The provision is regarded as one of practical utility, inducing the guilty to acknowledge their guilt and a means of according, with the Crown’s consent, a measure of leniency to those who wish to have all their criminality dealt with at the one time.

46 Nevertheless, some propositions may be confidently stated. It is clear that it would be wrong to take the criminality disclosed into account by increasing the sentence otherwise apt for the nominated principal offence to an extent that would add what would have been appropriate, had the scheduled offence(s) been separately charged as an independent count or counts. The Crown has, in every case, opted against charging the scheduled offences as separate counts and has thereby chosen not to enlarge the available maximum above that for the offence(s) actually charged in the indictment.

47 It is equally clear that it would be wrong for the sentencing judge to decline, as a matter of course, to enlarge (or alter to a more serious type) the effective sentence for the principal offence merely because the scheduled matters have not been charged in the indictment. The criminality disclosed is, within the available limit constituted by the maximum sentence prescribed for the principal offence, to be fully taken into account: see Griggs [1999] FCA 1573 at para 69. That is, the features of the scheduled offences may operate as if they were circumstances of aggravation of the principal offence. Often they will operate so as to deny to the offender a claim that the offence was committed in isolation. The consequences will often, probably usually, be some augmentation of the actual sentence that would otherwise be imposed. However, that need not be so – the circumstances may be such as to warrant the conclusion that no actual increase in the sentence should be made. A number of considerations may need balancing. For example, in one direction, leniency has usually been involved in the judge’s accepting the invitation to use the scheduling procedure, so that there is or may be less reason for leniency in assessing the influence on the principal sentence of the criminality involved in the scheduled offence; in the other direction, the offender may be showing remorse and a constructive desire to put all existing offences behind him or her, and make a fresh start, or the scheduled offences may be very minor compared to a very serious principal offence.

48 In this case, the illegal car-use offences would add little to the criminality evident in the relevant principal offence. However, the two dangerous driving offences, in their own aggravated circumstances, should (totality and the like considerations apart) have added something appreciable, and the aggravated and quite unrelated assault offence should have added something significant.

49 The impression one gains is that, with respect, the learned sentencing judge did not adequately bear in mind the additional criminality disclosed by the scheduled matters. It is, in general, desirable that the Crown should specifically ensure that a sentencing judge does appreciate why, in such a case, circumstances may indicate a significant increase in the penalty. That is particularly so where, as here, the judge is to sentence upon a number of principal offences, as well as the nominated one. However, we would not on this ground alone interfere. Clear and distinct error must be shown by the appellant Director.

5. Accumulation of sentences

50 As a matter of abstract sentencing principle, there is as much or, probably, more to be said for the Director’s submission that it was erroneous not to accumulate to some significant degree the four armed robbery sentences, having regard to the relatively modest length of each of those sentences. Each of those was a serious example of violent and dishonest crime, some involving the respondent’s having co-offended with a minor. While they were, as the Director fairly and properly conceded, driven by a drug addiction acquired in the respondent’s extreme and emotionally deprived youth (see the discussion below) rather than mere greed, the addiction, the temporal proximity of the offences and the methods employed to commit them were the only matters that gave them their degree of commonality. They may fairly be seen as part of a single, but relatively unrestrained, spree of serious criminality. However, a course of such criminality is necessarily more serious, and here considerably more serious, than a single serious crime involved in such a course. Again, however, if the evident importance given by the sentencing judge to the respondent’s rehabilitation were justified, we would not interfere. The real question, as his Honour recognised, is the extent to which the respondent’s prospects of rehabilitation justified a relatively early possibility of conditional release and some moderation of the otherwise appropriate head sentences.

6. Rehabilitation

51 Thus at the heart of this case is the question whether his Honour appellably erred in this aspect of the sentencing process. It will be clear, we trust, that in our view there can be no objection, by itself, to a sentencer approaching this matter anxiously in the interests of the offender, because these may coincide with society’s interests in its own protection. We have affirmed the importance of the sentencer’s discretion in this regard. It is, however, worth commenting on the related matters of the possibly mitigating effects of drug addiction and the importance of rehabilitation from it.

52 It is now clear that in the Australian Capital Territory drug addiction as a motivating factor in the commission of offences of all kinds may, especially depending upon the circumstances of the offender when the addiction was contracted, be a matter mitigating the degree of criminality. So much is plainly contemplated by s 429A(1)(n), which obliges the sentencer to have regard, among other matters, to “whether the person [being sentenced] was affected by a drug or alcohol and the circumstances in which the person became so affected”. In Blaskovic [1999] FCA 1306, Spender J accepted that intended rehabilitation from drug addiction justified a suspended sentence rather than actual imprisonment for drug trafficking: see paras 5 to 12. Madgwick J explicitly dealt with the matter at paras 22 to 25, saying at para 24:

“The better view, in my opinion, and one which appears to be gaining increasing respect, is that attention needs to be paid to all the circumstances of the initial choice to use the drug until addiction developed and the continuing choices not to quit, or to recommence, drug use. Those circumstances will include age, any disadvantage in emotional or intellectual development, any intellectual impairment, any significantly deprived cultural background for which the offender was not responsible and so on; in short the sorts of matters which courts daily regard as directly and appropriately mitigating, to a greater or lesser degree, the severity of a sentence. The importance of “individualised justice” was emphasised by Wood CJ at CL and Simpson J in R v Henry [1999] NSW CCA 111. Simpson J said, at paras 337, 340 and 341, that:

‘Drug addicts do not come to their addiction from a social or environmental vacuum. This court should not close its eyes to the multifarious circumstances of disadvantage and deprivation that frequently precede and precipitate a descent into illegal drug use. I do not suggest for a moment that all drug users fall into this category. It is because some do and some do not that I believe rigid rules about the

impact on sentencing of drug dependency on sentencing cannot be laid down.

…

Where great social difficulties, poor self image, absence of education and work opportunity and other demoralising factors have placed heavy stresses upon drug offenders, causing or reinforcing their resort to drugs, then it is appropriate for this court to give…recognition to those antecedent circumstances.

A sentencing judge always has a delicate balancing task to perform, taking into account the demands of the community for retribution, deterrence both general and specific, and the interests of the same community in the rehabilitation of an offender. The exercise may call for an examination of the circumstances that led the offender to drug use, addiction and crime. All the circumstances that precipitate the use of drugs are relevant to the evaluation of moral culpability that is essential to the sentencing process.’”

53 Dealing specifically with rehabilitation, in the context of drug addiction, Madgwick J further said:

“An offender who is a drug addict is not, on account of the addiction, either especially entitled to have, or disentitled from having, rehabilitation given pre-eminence in the sentencing process. There are other sentencing values than rehabilitation…One can at least say that in no case should predominance be given to rehabilitation without consideration of other sentencing values. In some cases, the sentencing objective of rehabilitation ought to be given predominance: without that, there may be no rehabilitation of the particular offender, and that potential loss may outweigh the significance of other sentencing objectives.

It must be recognised also that, whenever a sentencing judicial officer provides for an opportunity of rehabilitation for a serious offender rather than imprisoning the offender, there is an element of risk involved. Attempts at rehabilitation often fail and sometimes do so with disastrous consequences for other people and the offender. The question is whether it is worth taking that risk. This involves prediction about an offender’s future behaviour. Few things are more difficult. Accordingly, it must be conceded that the decision, on behalf of the community, to undertake that risk is, inescapably, a highly subjective one. …

In any case, the risks and subjectivity do not tend only one way. There are risks in notaccording an offender a chance of rehabilitation where there is some reason to think it might be effective. What might be the particular offender’s best chance of rehabilitation may be forever lost…In relation to crime substantially motivated by drug addiction, the prospects of a lastingcure being effected in gaol are not ordinarily high, as Dowsett J points out.

In any case, a decision to structure a sentence so as to favour the provision of rehabilitation over incarceration must be defensible, in the sense that it will at least not “outrage the public conscience”…The public…does reasonably expect that, in general, serious crimes will be seriously punished. Too frequent resort to rehabilitation as the determinative element in sentencing for serious crimes will undermine public confidence … in the courts and the law. Some judicial restraint, absent legislative elevation of rehabilitation to a position of pre-eminence among sentencing values, is necessary.”

54 Dowsett J, dissenting as to the result, said at para 69:

“I am not challenging the relevance of addiction as a factor in sentencing. I am rather saying that we must not allow understandable compassion for addicts to cloud our judgment as to the seriousness of drug-motivated offences involving the supply of drugs or possession for that purpose (which offences usually have unidentifiable victims or potential victims) as compared to drug-motivated burglaries and robberies (which may have more easily discernible victims.)”

55 In Griggs Miles J, with whom Madgwick J agreed (taking the view that Miles J’s approach and his own approach in Blaskovic were mutually supportive) said (at para 39 ff):

“Community attitudes to drug addiction are in a state of change and have certainly changed since Jurkovic and Suen. Heroin use remains a criminal offence. But the fact is that it is very rarely prosecuted. To the extent that sentencing is expected to control the incidence of crime, it must be acknowledged that the sentencing policies of the past have failed altogether as far as the use of heroin is concerned…The community no longer demands that heroin users be punished as such, and there is an emerging, if not predominant, community attitude that the socially adverse effects of heroin use are best met by a response in the public health system rather than by mere punishment in the criminal justice system. That is not to say that trafficking in heroin on anything but a small scale remains a serious offence for which punishment and deterrence are important elements for the purposes of an appropriate sentence. But we are not dealing with an offence of drug trafficking and the present respondent has no convictions for drug trafficking.

Until very recently the use of mind altering drugs such as heroin was regarded with such abhorrence that it could not possibly be accepted as a mitigating factor in the commission of crime. That is no longer the case. The dilemma of denying that moral responsibility is reduced by the effect of an addiction to a mind altering substance whilst insisting on heavy sentences for serious offences by a drug dependent person has been addressed by looking at the circumstances in which the person concerned became so dependent: R v Henry; Talbot v The Queen (1992) 59 A Crim R 383; Douglas v The Queen (1995) 56 FCR 465.

…

The connection between crime and drug use justifies sentencers taking new approaches. Those approaches must of course be within the law. But the legislature itself has spoken. Relatively recent alternatives to full-time imprisonment such as community service orders and periodic detention require sentencers to consider those alternatives. The Drugs of DependenceAct is expressly directed to establishing a regime of response to crime which cannot be overlooked in the case of drug dependent persons. Of course rehabilitation is not the prime objective of sentencing and decisions must not be clouded by sympathy for addicts. The traditional criteria for sentencing are enshrined in the Crimes Act at s 429A and s 429B”

56 We agree. Talbot (1992) 34 FLR 100 was explained in Douglas (1995) 56 FCR 465 on the following basis:

“It is, of course, not a mitigatory factor that a person commits crime to feed a drug addiction. However, that is not a principle of universal application. As Jenkinson J noted, at 105, in Talbot v The Queen (1992) 34 FCR 100, the moral and legal fault for the acquisition of the addiction has to be considered:

‘…evaluation of moral culpability remains in my opinion as fundamental to our system of punishment for crime as evaluation of the degree of harm caused or threatened by the criminal act or actor.

The age of an offender when he or she became addicted and the degree of judgment open to them at that age is thus relevant in evaluating the extent to which they should be punished for consequential criminal conduct.’”

If Talbot stands for any more restrictive proposition, it must now be regarded as superseded by the subsequent enactment of s 429A(1)(o). It is also true to say that, even since 1992, there has been a notable shift in community attitudes to the question.

57 Nevertheless, we have formed the view that his Honour’s exercise of his discretion miscarried in this respect in a way that necessitates appellate intervention.

58 Whatever the advantages of observing the respondent’s demeanour that the learned sentencing judge had, and however sad the respondent’s background, the totality of the material available indicates that the respondent, although a young man, must presently be seen as a poor prospect for rehabilitation over any relatively short projected period. That material includes what the respondent has most recently done, as well as what he has, facing sentence, understandably and (we do not doubt) sincerely said. What he has done is to embark, while on parole and very shortly after his release to it, on serious and sustained criminal depredations involving repeated and varied violent acts. He utterly failed, upon his conditional release after a significant period of imprisonment, to avail himself of the support services that he must have well realised were available to him. He is, at present, it must be concluded, in relation to motivation to make a sustained effort at rehabilitation, unreachable. Every other consideration aside, a non-parole period of three and a half years is very unlikely to be enough, by way of personal deterrence for him, to induce the major change of conduct and effort of will that would be necessary to keep him from seriously re-offending. To think otherwise is, in our respectful view, to permit hope impermissibly to displace the proper influence of experience.

59 We have endorsed, in principle, an approach emphasising the possibility of drug rehabilitation and a consequent modification of sentence, in proper cases. But not every case is apt for it. As has been pointed out in the cases cited above, rehabilitation is not the only sentencing objective. The objective circumstances of the crimes charged may be too serious to allow much practical effect to be given to that factor. In Ryan at paras46 to 50, McHugh J said:

“… the existing principles require many sentences to be retributive in nature, a notion that reflects the community’s expectation that the offender will suffer punishment and that particular offences will merit severe punishment. The “persistently punitive” attitude of the community towards criminals [R v Doyle [1975] VR 754 at 769] means that public confidence in the courts to do justice would be likely to be lost if courts ignored the retributive aspects of punishment. In the middle of the 20^th century, the need for sentences that were conducive to the rehabilitation of the prisoner was much emphasised. Less attention was then paid to the retributive aspect which was often ignored by an embarrassing silence. But under the notion of giving the offender his or her “just deserts”, the retributive aspect has re-asserted itself in recent years [Warner, sentencing in Tasmania (1991) at p250.].

Sentencing principles in this country have emphasised the need to protect the community by imposing sanctions that reduce crime by removing the offender from contact with the general population and by deterring the offender and others from committing offences – the so-called “reductive” justification for prison sentences. …

Sentencing principles have also emphasised the need for the sentence to be proportional to the circumstances of the offence. This Court has referred to it as a “fundamental principle” [Chester v The Queen (1988) 165 CLR 611 at 618]….

No sentencing principle or factor is decisive in every case. The purposes of punishment vary from offender to offender and from crime to crime [R v Kane [1974] VR 759 at 764-766; R v Williscroft [1975] VR 292 at 299; R v Holder [1983] 3 NSWLR 245 at 270; R v Young [1990] VR 951 at 955.]. Consequently, a principle or factor that will dominate in one case may be of secondary importance in another. The judicial task is to pass such sentence as is appropriate in all the circumstances of the case [R v Young [1990] VR 951 at 954] having regard to the body of sentencing principles.

The fact that judges do not have a free hand in sentencing but must apply established principles does not mean, of course, that they cannot try new solutions or methods conforming with those principles. But their capacity to do so is often limited by the failure or inability of the Executive government to provide the facilities and institutions which would enable those solutions and methods to be carried out.”

60 In any case, if an opportunity for early rehabilitation in lieu of part or all of a gaol sentence is to be accorded to an offender, there ought to be at least a clear basis for a rational hope that the offender will seize the opportunity and carry it through to a successful conclusion. A judge should be permitted to take a necessary risk, but where the sum of the present indications is that the prospects of rehabilitation are poor, diversion from gaol or, as here, an early release from gaol is, to that extent, quite inappropriate.

61 In our view, his Honour’s discretion appellably miscarried on this score. It is as if his Honour formed a view of a highly material fact, namely the respondent’s actual prospects of rehabilitation, that, with respect, was not reasonably open.

7. Manifest inadequacy

62 In any event, if we should be mistaken in our assessment of that matter, a case for appellate intervention nevertheless exists. We understand his Honour’s view to have been that the respondent had demonstrated a real and presently existing capacity to:

· abstain from drugs in prison;

· otherwise gain the trust of the prison authorities in order to be given access to specific rehabilitative programs there; and

· profit from treatment for depression which was “at the moment” impeding his reformation.

63 Even bearing in mind those assumed capacities (although, as we have made clear, we are firmly of the view that they have not been demonstrated to exist) and that the respondent is still in his mid 20s, after a very difficult early life, in our view the sentences are manifestly inadequate, having regard to the objective seriousness of the offences and to the many past chances extended by courts to the respondent. We consider that reasonable people, viewing the material before his Honour as to the crimes charged and their circumstances, including pleas of guilty, the respondent’s evidence and the material as to his background and prospects, would take the view that there had been, to the respondent’s favour, a serious miscarriage of justice. In speaking of “reasonable people” we do not, of course, have in mind people for whom ignorance or profit makes it an easy game to howl for vengeance and rail against a non-existent lack of fortitude on the part of sentencing judicial officers. There is no question of any sort of weakness having been exhibited by the learned sentencing judge. There has simply been an error, in a particular area, perceived and corrected on appeal.

8. Did the Crown acquiesce in his Honour’s approach?

64 The relevant exchange at trial, between his Honour and counsel for the Director was:

“MR WEBBER: … My submission is that a head sentence in this case must exceed 10 years with a non-parole period to the – in the range of about 7, your Honour.

HIS HONOUR: Well, I’m not sure I concur with that, but anyway. It may be a bit of an ambit claim, Mr Webber.

MR WEBBER: Well, the reason I say that is because if one takes the armed robberies alone and they were accumulated, that would not be outside the sentencing range, and if the other offences were then accumulated to take into account the R v Mills principles to ensure that the sentence wasn’t crushing.

HIS HONOUR: I think …

MR WEBBER: But I don’t …

HIS HONOUR: You’re probably right before one takes account of such things as pleas of guilty and matters of that kind.

MR WEBBER: Yes.

HIS HONOUR: That may well be true. All right.”

65 Let Mr Webber’s “Yes” be given full force and effect. It is still necessary to understand exactly what he was acceding to. His opening propositions were that: a) the head sentence “must exceed 10 years”; and b) the non-parole period should be “in the range of about 7 [years]”. It would be perverse to suggest that counsel was proposing less than 11 years as a head sentence. “About 7” years as a non-parole period was a clear indication not only of a quantum appropriate to a non-parole period, but of the relationship between head sentence and non-parole period. Counsel was proposing a non-parole period in the order of 60% of the head sentence, that is, significantly more than half.

66 Even if his Honour’s generous 25% discount for the pleas of guilty (some of them only after the victims had been required to give evidence) were strictly applied arithmetically, the results would be 8 years and 3 months as effective head sentences and just under 5 years, or at least significantly over 4 years, as a non-parole period. By no stretch could the Director be regarded as having, by counsel, induced a more lenient approach than his Honour might otherwise have taken.

67 In any case, reading the transcript as a whole, this is not an instance, we think, of a hesitant judge deferring to an approach suggested by the Crown. The passage does not provide a reason for us not to intervene where, as we think, a case for appellate intervention is otherwise made out.

The appropriate sentences

68 The case for appellate intervention having been made out, it remains for us to re-sentence the respondent. In so doing we apply, of course, the rule referred to above that restraint is necessary, an increased sentence on appeal being perceived to fall harder upon a prisoner than if such a higher level of sentence had been imposed at first instance.

69 In our view, taking as lenient a view as is possible in the light of the respondent’s pleas of guilty, his age and his deprived boyhood and background, the seriousness of the offences called for the imposition at first instance of effective head sentences totalling not less than 9 years and a non-parole period of at least 5 years.

70 For ourselves, in re-sentencing, having regard to the principle of appellate restraint, we think that effective head sentences amounting to 8 years and 6 months imprisonment should now be imposed and a non-parole period of 4 years and six months should be fixed.

71 Effect will be given to these views by allowing the appeal, setting aside the sentences order of the Supreme Court and the imposition of the following individual sentences in substitution: