Cummins v R

1. [1]

   BATHURST CJ: I agree with the orders proposed by Price J and with his Honour’s reasons.

2. [2]

   PRICE J: The applicant, Paul James Cummins, seeks leave to appeal against the sentence imposed on him by Wilson SC DCJ (“the judge”) in the District Court on 29 June 2018.

3. [3]

   The applicant pleaded guilty in the District Court to the following offences:

   1. (1)

      Count 1: On 9 October 2016, did assault Arie Broekhuizen with intent to take a motor vehicle and took and drove a motor vehicle, namely a Holden Commodore, without the consent of the owner of the motor vehicle, Arie Broekhuizen, contrary to s 154C(1)(a) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is 10 years imprisonment with a standard non-parole period of 3 years.

   2. (2)

      Count 2: On 9 October 2016, did rob Jerome San Juan of $4,444 cash, the property of J.R. Enterprises Pty Ltd whilst armed with an offensive weapon, namely a knife, contrary to s 97(1) of the Crimes Act. The maximum penalty for this offence is 20 years imprisonment. A standard non-parole period has not been prescribed.

   3. (3)

      Count 3: On 10 October 2016, did steal a Toyota Hiace van, the property of Mamata Pty Ltd, contrary to s 154A(1)(a) of the Crimes Act. The maximum penalty for this offence is 5 years imprisonment. A standard non-parole period has not been prescribed.

   4. (4)

      Count 4: On 10 October 2016, did rob Marina Strougaris of certain property, namely $700 in cash, the property of Australia Post trading as the Ashfield Post Office, whilst being armed with an offensive weapon, namely a knife, contrary to s 97(1) of the Crimes Act

4. [4]

   The applicant asked the judge to take into account on sentence for count 2, an offence of attempted armed robbery on 9 October 2016 which had been placed on a Form 1. When sentencing the applicant for count 4, his Honour was also asked to take into account on a Form 1 two offences of robbery whilst armed with an offensive weapon on 10 October 2016.

5. [5]

   A discount of 10% was allowed by the judge for the utilitarian value of the pleas of guilty.

6. [6]

   His Honour indicated the following sentences he would otherwise have imposed after the 10% discount.

7. [7]

   The applicant was sentenced to an aggregate term of imprisonment of 14 years with a non-parole period of 8 years commencing on 30 April 2017.

8. [8]

   The applicant’s notice of appeal identifies the following grounds:

The facts of the offences

1. [9]

   A statement of agreed facts was placed before the judge which has been conveniently summarised in the Crown’s written submissions as follows:

Subjective circumstances

1. [10]

   The applicant was born on 3 April 1977 and was 39 years old when the offences were committed. He gave evidence before the judge and the written material which was tendered in his case included a report of Dr Richard Furst, a forensic psychiatrist, various hospital discharge summaries and certificates of completion from the Equips Aggression Program.

2. [11]

   The applicant’s prior criminal history disclosed for three counts of armed robbery and an offence of stalking, that the applicant was sentenced in the District Court to an aggregate term of imprisonment of 4 years 3 months commencing on 20 January 2014 and expiring on 19 April 2018 with a non-parole period of 2 years 1 month. For an offence of damage to property, the applicant was sentenced in the Local Court to 1 month imprisonment commencing on 14 March 2017.

3. [12]

   Dr Furst reported that the applicant had a history of mental illness dating back to at least 2003, suffering from psychotic symptoms which included hearing “voices” and “weird thoughts”. The applicant told Dr Furst that he believed his initial symptoms were triggered by his drug use and he recalled feeling “very paranoid” at the time. Dr Furst recounted various admissions that the applicant had to Rozelle Hospital and to Concord Hospital between 2003 and 2012 for drug-induced psychosis and increasing paranoia. He had been case managed under the care of the Croydon Community Mental Health team, seeing Dr Ferguson, a psychiatrist, every one to three months, apart from his previous period in custody from 2014 to 2016. During this period of incarceration he was treated with Seroquel, an antipsychotic medication.

4. [13]

   Dr Furst reported that the applicant’s drug use had included cannabis, ecstasy and MDMA. He had also used “ice” (methylamphetamine) on and off from the age of 18-19 years and heroin from the age of 25-27 years.

5. [14]

   As to the commission of the offences, Dr Furst stated:

6. [15]

   Dr Furst was of the opinion that the applicant suffered from schizophrenia, substance use disorder (cannabis; methylamphetamines) and personality disorder (antisocial traits).

7. [16]

   Dr Furst opined that the applicant’s schizophrenic illness, which, combined with his drug addiction, had impaired his level of psychosocial function over a number of years. His schizophrenic illness had been complicated by a pattern of relapsing drug abuse, poor insight, periods of non-compliance with medication and drug related offending. The applicant had limited financial resources and was very stressed in relation to debts he had incurred in 2016 and the inability of his girlfriend to pay rent and/or provide for her five young children. Dr Furst went on to say:

8. [17]

   The applicant’s risk of re-offending was assessed as being “medium-high”.

9. [18]

   In his evidence before the judge, the applicant was asked why he committed the crimes to which he pleaded guilty. He answered:

10. [19]

    Later on the applicant was asked whether he understood that the crimes he had committed were very serious. He replied:

11. [20]

    The applicant’s evidence concerning his use of illicit drugs included the following:

Some findings by the judge

1. [21]

   The judge assessed the objective seriousness of the offending in relation to count 1 in which his Honour observed that the applicant had threatened to shoot the complainant and his wife before stealing the vehicle to be “approximately mid-range, if not slightly below, as submitted by the Crown.”

2. [22]

   His Honour said “in relation to the second count in which there were two victims and an amount stolen of $4,444”, that he considered the seriousness of the offending as being slightly below the mid-range.

3. [23]

   As to count 3, the judge noted there was no threat or harm caused to the complainant and considered the offending to be in the low range of objective seriousness.

4. [24]

   In respect of count 4, his Honour said:

5. [25]

   In having regard to other factors in determining the seriousness of the offending, his Honour remarked that:

6. [26]

   The judge said that he had also taken into account that the offending involved multiple victims and a series of criminal acts “and it was undoubted that the offending was committed for financial gain”.

7. [27]

   When referring to mitigating factors, his Honour remarked that it was:

8. [28]

   The judge gave careful consideration to Dr Furst’s report, noting the psychiatrist’s diagnosis of schizophrenia, substance use disorder and personality disorder and his opinions that the applicant would require ongoing psychiatric treatment and/or rehabilitation over the longer term and his risk of re-offending was considered as being medium to high.

9. [29]

   His Honour said that for his offending the applicant:

10. [30]

    When considering the question of remorse, his Honour said that question was complicated by the fact that both in his evidence and in the history provided to Dr Furst, the applicant seemed to blame his offending on Centrelink and other government agencies. His Honour said:

11. [31]

    The judge had regard to the applicant’s previous convictions and noted they may be taken as aggravating factors pursuant to s 21A(2)(d) of the Sentencing Procedure Act 1999. His Honour had regard to R v McNaughton [1] and to “seven matters referred to by the Court in that decision”. His Honour remarked that the applicant’s prior offending appeared to be limited to three specific events.

12. [32]

    His Honour observed that the applicant was on parole for the offence of robbery being armed with an offensive weapon when the offences were committed.

13. [33]

    The judge found that the need for general deterrence was not particularly great given the significant nature of the psychiatric condition from which the applicant suffers. Nevertheless, there was a need for specific deterrence and for the sentence “to reflect a degree of punishment for the offences and for the victims involved noting that the victims are some seven in number”.

14. [34]

    The judge observed that the sentence must also achieve a degree of protection of the community from the applicant, that accountability was also a significant factor:

15. [35]

    His Honour considered rehabilitation to be “paramount and significant in this particular case”. It was for that reason, he said, that he would find special circumstances. Later in his sentencing judgment, his Honour found special circumstances being the applicant’s need for ongoing mental health treatment; his drug addiction; assistance upon release to re-integrate into the community and the accumulation of sentences.

16. [36]

    When referring to the aggregate sentence to be imposed, the judge said:

17. [37]

    After indicating the sentences that would otherwise have been imposed, the judge sentenced the applicant (see [6]-[7] above).

A report by the judge to the Court of Criminal Appeal

1. [38]

   The judge provided a report to this Court, which responds to grounds 1 and 3 of the Appeal. The judge seeks to inform the Court that he does not accept the applicant’s complaint in ground 1 and provides some justification for the matters identified in ground 3. The foundation for the report appears to be s 11 of the Criminal Appeal Act 1912 (NSW). Section 11 relevantly provides:

2. [39]

   The circumstances in which a s 11 report may be made by a sentencing judge were most recently considered in Zhang v R. [2] In disregarding a report made by the sentencing judge seeking to explain why there was no reference in the sentencing judgment to a 25% discount for an early guilty plea, Hoeben CJ at CL (Fullerton and Davies JJ agreeing) cited what was said in R v Sloane [3] by Wood CJ at CL at [9]:

3. [40]

   In the present case, there were no exceptional circumstances for his Honour’s report and it did not meet any of the purposes for which s 11 was enacted. It is for this reason that the parties were told at the beginning of the hearing that this Court would disregard it.

Ground 1: His Honour erred by taking into account Form 1 offences when assessing the objective seriousness of the principal offences of armed robbery offences in counts 2 and 4

1. [41]

   The applicant submitted that the judge erroneously took into account the Form 1 offences when assessing the objective seriousness of counts 2 and 4 and erred in sentencing on the basis that the principal offences charged involved more than one victim.

2. [42]

   As the Form 1 offences were relevant only to the weight to be given to personal deterrence and retribution, the applicant argued that the judge erred by considering the totality of the criminality for both the principal offence and the Form 1 offences when determining the objective seriousness of the principal offence.

3. [43]

   Whilst accepting that the judge may have not expressed himself felicitously in his sentencing judgment, the Crown argued there was nothing to suggest that the judge increased the objective seriousness of the principal offences by the impermissible use of the Form 1 matters. The Crown pointed out that the judge had been reminded by the applicant’s counsel in the sentencing proceedings of the danger of double counting. Furthermore for counts 2 and 4, the offences on the Form 1 were of the same type as the principal offence and were factually intertwined with it. Each was a serious offence with a 20 year maximum penalty and involved a separate offence from the principal offence. Each would lead to a sentence significantly longer than would be required if it were not taken into account.

4. [44]

   It has long been established that an offence on a Form 1 is not relevant to the assessment of the objective seriousness of a principal offence. A Form 1 offence may be taken into account by the sentencing judge giving greater weight to personal deterrence and retribution: Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002; [4] RL v R. [5]

5. [45]

   Before determining the objective seriousness of the offending of the second count to be slightly below mid-range, his Honour referred to there being “two victims” and the amount stolen being $4,444 (see [22] above).

6. [46]

   The violence in count 2 was confined to Mr San Juan in whose presence the applicant had produced a knife and had slapped on the forehead before Mr Juan had opened the gaming till. The applicant then removed approximately $4,444.

7. [47]

   In the offence of attempted armed robbery on the Form 1 which his Honour was asked to take into account on sentence for count 2, the applicant had threatened Mr Christopher Redford with a knife at shoulder height demanding that he open the Keno register.

8. [48]

   In my respectful opinion, his Honour incorrectly stated that there were “two victims” in count 2, when the sole victim of that offence was Mr San Juan.

9. [49]

   His Honour made the same error in count 4 before deciding that the objective seriousness of that offence was at about the mid-range. In the passage quoted at [24] above, his Honour founded that assessment on the “number of victims together with a degree of planning by the use of the hoodie, hat and gloves”. (Emphasis added.)

10. [50]

    The sole victim of the applicant’s violent offending in count 4 was Ms Strougaris who at knife point opened the till and gave the applicant $700. Ms Johnson was the victim of the applicant’s violence in the first offence of armed robbery on the Form 1 and Mr Vuong was the victim of the applicant’s violence on the second armed robbery on the Form 1. The judge was asked to take into account these further offences when sentencing for the principal offence, being count 4.

11. [51]

    Although it is true, as the Crown points out, that the judge was cautioned against increasing the assessment of the objective seriousness of a principal offence by taking into account the Form 1 matters during the sentencing proceedings on 15 June 2018, the judge did not sentence the applicant until 29 June 2018.

12. [52]

    It is evident that this submission was overlooked by the judge when he incorrectly referred to the number of victims immediately before assessing the objective gravity of counts 2 and 4.

13. [53]

    I am fortified in reaching this conclusion as these incorrect references and assessments of objective gravity appear in his Honour’s reserved sentencing judgment under the heading ‘Objective Seriousness’.

14. [54]

    In my view, his Honour erred in including the victims of the Form 1 offences when assessing the objective seriousness of counts 2 and 4. I would uphold this ground of appeal.

15. [55]

    Specific error having been identified, the remaining grounds of appeal may be dealt with some brevity as it will be necessary to exercise the sentencing discretion afresh.

Ground 2: His Honour erred by taking into account as an aggravating factor that the offences involved multiple victims and a series of criminal acts, pursuant to s 21A(2)(m) of the Crimes (Sentencing) Procedure Act 1999

1. [56]

   The applicant pointed out that s 21A(2)(m) of the Crimes (Sentencing) Procedure Act 1999 (NSW) (“CSP Act”) provides that it is an aggravating factor that the “offence involved multiple victims or a series of criminal acts”. The applicant contended that the judge erred when considering the seriousness of the offending by taking into account in a global fashion that the offending involved multiple victims and a series of criminal acts. The applicant submitted that the offences charged related to only one victim and did not involve a series of criminal acts.

2. [57]

   The Crown submitted that the judge did not state that he considered “a series of criminal acts” as aggravating the objective seriousness of the sentence to be imposed with respect to any offence. Rather, his Honour was briefly discussing the offending conduct.

3. [58]

   The focal point of the applicant’s complaint is the following passage in the sentencing judgment:

4. [59]

   Section 21A(2)(m) of the CSP Act provides that the court can take into account as an aggravating factor that “the offence involved multiple victims or a series of criminal acts”. As Howie J explained in R v Tadrosse: [6]

5. [60]

   It would be an error for the judge to take into account all of the applicant’s offending in increasing the objective seriousness of any of the four counts to which the applicant had pleaded guilty. Unless an aggravating factor applied to all of the offences, the judge was obliged to indicate in respect of which offence or offences that aggravating factor was taken into account. [7] It should however be said that did not preclude all of the offences being considered when the judge came to questions of general deterrence; personal deterrence; protection of society; retribution and prospects of rehabilitation.

6. [61]

   It is far from clear how the judge took into account the “multiple victims and a series of criminal acts” but his references to “threatened use of violence” (s 21A(2)(b)); “a record of previous convictions” (s 21A(2)(d)); “the emotional harm” (s 21A(2)(g)); “financial gain” (s 21A(2)(o)) and then to “mitigating factors” (s 21A(3)), suggest that his Honour adopted a check-list approach to his sentencing task. Although his Honour did not explain how the multiple victims and series of criminal acts were taken into account, they appeared in his Honours’ sentencing judgment under the heading “Objective Seriousness”.

7. [62]

   At a later stage in the judgment, the judge said the applicant’s previous convictions “…may be taken as aggravating factors pursuant to s 21A(2)(d)”. Nowhere else in the judgment did his Honour expressly refer to factors of aggravation.

8. [63]

   I am not persuaded that the multiple victims and series of criminal acts were taken into account as aggravating factors. However, I am satisfied that the judge had regard to the multiple victims and series of criminal acts as increasing the objective criminality of all of the offending for which the applicant was being sentenced. In my respectful opinion, the judge was in error in doing so.

9. [64]

   I would uphold ground 2 of the appeal.

Ground 3: His Honour erred by convicting the applicant of the Form 1 offences and in his consideration of these offences

1. [65]

   The applicant’s complaint is that when pronouncing sentence, the judge said:

2. [66]

   The Crown submitted that his Honour’s pronouncement of convictions including the Form 1 offences was merely an infelicitous remark. However, these remarks being part of a reserved judgment and the specific errors identified in grounds 1 and 2 do not support this argument.

3. [67]

   I would uphold this ground of appeal.

Ground 4: In respect to counts 1, 2 and 4 his Honour erred by taking into account the threatened use of violence as an aggravating factor, pursuant to s21A(2)(b) of the Crimes (Sentencing) Procedure Act 1999, when this was an element of the offences charged

1. [68]

   The applicant referred to his Honour’s remarks quoted at [25] above. Particular reference was made to his Honour’s statement that it was “of significance that the offending involved at least the threatened use of violence” when determining the seriousness of the offending. The applicant argued that in the context of the judge’s remarks his Honour took this factor into account as an aggravating factor under s 21A(2)(b) of the CSP Act.

2. [69]

   The applicant submitted that his Honour erred by taking into account the inferred threat of violence as an element of the offence charged in counts 2 and 4, which was impermissible double counting. A further argument was that in respect of count 1, his Honour erred in taking into account the threatened violence as a matter of aggravation.

3. [70]

   The Crown submitted that there was nothing to suggest that the matters complained of by the applicant had been taken into account as aggravating factors. All his Honour did was freely discuss the features of the offending conduct and give careful consideration to the nature of the threats the applicant employed in each case.

4. [71]

   Counts 2 and 4 are offences of armed robbery. The threatened use of violence is a necessary element of armed robbery and cannot be taken into account as an aggravating factor as this would amount to impermissible double counting. The nature and the extent of the threat (as opposed to the bare threat) can legitimately be regarded as a factor which increases the seriousness of an offence. [8]

5. [72]

   In stating that in count 2 “the threat was inferred rather than expressed by reason of the fact that he was carrying a knife” and in count 4 “…again, the threat was implied or inferred rather than expressed by reason of the presence of a knife”, the judge was doing no more than considering the circumstances in which the violence was threatened.

6. [73]

   As to count 1 which is an offence contrary to s 154(1)(a) of the Crimes Act, his Honour was entitled to take into account the threat, that the applicant would shoot the complainant and his wife, in assessing the objective seriousness of the offence.

7. [74]

   I would reject ground 4 of the appeal.

Ground 5: His Honour erred in his application of the principle of totality in the aggregate sentence imposed

1. [75]

   The applicant submitted that although the judge said that he had regard to the question of totality, he did not give the principle any real practical effect and any notional accumulation must have been manifestly excessive. The applicant placed emphasis on the importance of the totality of the criminality; pointing out that the offences were committed over a short period of two days and were part of a continuing and related course of conduct.

2. [76]

   The applicant argued that by looking at the length of the individual indicative sentences and considering them together, it was evident that there could only have been very little downward adjustment in the light of totality. The applicant contended that the indicative sentences were themselves harsh, given his subjective case and the findings of objective seriousness, which called for careful consideration of notional accumulation and the extent of any downward adjustment in light of the total criminality.

3. [77]

   The Crown referred to the judge’s remarks that he had regard to the principles of totality, concurrency and accumulation, and submitted that his Honour had allowed a measure of partial concurrency by imposing an aggregate sentence of 14 years that was less than the sum of each of the indicative sentences.

4. [78]

   The Crown argued that while the four offences took place over two consecutive days, they constituted separate serious offences against different victims. While a degree of concurrency would be appropriate between the sentences for counts 1 and 2 and between the sentences for counts 3 and 4 to reflect the degree of connection between each of those pairs of offences, temporal proximity was not determinative.

5. [79]

   It was put to this Court by the Crown that count 1, in particular, represented serious distinct criminality and it was open to the judge to find the sentence for count 2 could not comprehend and reflect it. The Crown submitted that it was also relevant that while the applicant took each of the vehicles (counts 1 and 3) a short time before committing the armed robberies (counts 2 and 4) he did not use the vehicles solely for committing the armed robberies. Instead of abandoning the vehicles he kept them and was using them when he was arrested one or two days later.

6. [80]

   In reply to the Crown’s submission that there was a degree of concurrency because the total sentence was less than the sum of each individual sentence, the applicant said that was unhelpful as the theoretical total sentence was based on fixed term sentences being imposed. The applicant submitted that if non-parole periods were applied to all of the indicative sentences, the total aggregate sentence could not have been reached which suggested that his Honour did not properly apply the totality principle.

7. [81]

   His Honour recognised in the passage quoted at [36] above that in imposing an aggregate sentence, he was obliged to have regard to the requirements of Pearce v The Queen [9] (“Pearce”). In Pearce, McHugh, Hayne and Callinan JJ said at [45]:

8. [82]

   Whether sentences are imposed concurrently or consecutively are a matter for a sentencing judge’s discretionary judgment guided by the principle of totality. [10] Such a discretionary judgment is only reviewable in this Court in accordance with the principles of House v The King. [11]

9. [83]

   The question is whether his Honour properly applied the totality principle. The arithmetical debate in this Court does little to resolve the issue. As Button J observed in Truong v R; R v Le; Nguyen v R; R v Nguyen [12] at [231]:

10. [84]

    Turning to the applicant’s argument that the offences were committed over a short period of two days and were part of a continuing and related course of conduct, the question to be posed is not one of temporal proximity but whether the sentence for one offence can comprehend and reflect the criminality of the other offence. If it cannot, there should be at least partial accumulation otherwise there is a risk that the total sentence will fail to reflect the total criminality of the offences. [13] In R v Harris, [14] the Court (McClellan CJ at CL, Hulme and Hislop JJ) when discussing the totality principle said at [44]−[45]:

11. [85]

    Furthermore, it does not follow that because a number of offences arise out of the same incident or course of criminal conduct, that concurrent sentences will be appropriate to meet the totality of the conduct involved. [15] Where there are separate victims, the closeness and proximity of the offending will often not be determinative factors. [16]

12. [86]

    It was not submitted that the sentences for counts 2 and 4 could be concurrent, as individual sentences were required to reflect the gravity of each offence. Furthermore, I do not think that the sentence for count 2 could adequately reflect the serious additional criminality involved in count 1 even though this offence took place about 10 minutes before the applicant walked into the Crocodile Farm Hotel and the stolen car was used as the getaway vehicle. Reasonable minds might differ whether a modest degree of accumulation (if any) was called for the stealing of the van (count 3). The ultimate decision for the judge was the imposition of an aggregate sentence in accordance with the totality principle.

13. [87]

    In Nguyen v The Queen, [17] Gageler, Nettle and Gordon JJ observed at [64]:

14. [88]

    Whether his Honour overlooked the need for a greater degree of concurrency because of the length of the sentences for counts 2 and 4 is open to question. I am not persuaded, however, that House error has been established.

15. [89]

    I would reject ground 5 of the appeal.

16. [90]

    There is another matter to be mentioned. Count 1 being an offence contrary to s 154C(1)(a) of the Crimes Act has a standard non-parole period of 3 years. When indicating a sentence for an offence for which a standard non-parole period has been prescribed, a non-parole period must be specified by the judge. This requirement was overlooked when his Honour indicated the sentence for count 1.

Ground 6: The aggregate sentence is manifestly excessive

1. [91]

   It is unnecessary to decide this ground. As specific error has been identified, it is this Court’s duty to re-sentence, “unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed”. [18]

Re-Sentence

1. [92]

   No additional material was tendered on re-sentence.

2. [93]

   The maximum penalty for counts 2 and 4 is 20 years imprisonment and for count 3, 5 years imprisonment. The maximum penalty for count 1 is 10 years imprisonment with a standard non-parole period of 3 years. These legislative guideposts are to be borne in mind when considering the appropriate sentence, having regard to the objective circumstances of each offence, the applicant’s subjective case and the totality principle.

3. [94]

   In the sentencing proceedings before the judge, the applicant’s counsel accepted that the armed robberies (counts 2 and 4) were more objectively serious than in the Henry guideline. The applicant argued in this Court that although there were a number of factors in the present case not incorporated in the guideline, the indicative sentences, particularly for count 4, were nevertheless well above the range discussed in Henry.

4. [95]

   The applicant was referring to the guideline judgment for s 97(1) offences in R v Henry [19] and the seven characteristics which Spigelman CJ identified as generally having a sentencing range between four and five years.

5. [96]

   The characteristics that the offending in counts 2 and 4 share with the Henry guideline are: the weapon, the limited degree of planning, limited actual violence (count 2), no actual violence (count 4) but in each count a real threat of actual violence and a vulnerable victim. Factors outside the seven characteristics are: the applicant is not a young offender with no or little criminal history; his prior criminal history includes three counts of armed robbery; he was on parole at the time for those offences and there were related Form 1 matters to be taken into account.

6. [97]

   It is trite to observe that the Henry guideline is not to be applied as a standard. [20] The appropriate sentence depends upon the circumstances of the case.

7. [98]

   In the exercise of my sentencing discretion, I agree with his Honour’s assessment of where each of the four offences stood on the objective scale of seriousness notwithstanding the errors that have been identified in upholding grounds 1 and 2. Counts 1, 2 and 4 are serious offences. I take into account on sentence for count 2, the Form 1 offence of attempted armed robbery and for count 4, the two Form 1 offences of armed robbery, by giving greater weight to personal deterrence and retribution.

8. [99]

   The applicant’s criminal history (see [11] above) does not entitle him to leniency but it is not such that it is a matter of aggravation. Having regard to his criminal history, I give more weight to considerations of personal deterrence and protection of the community than otherwise would be the case. [21]

9. [100]

   It is an aggravating factor that the applicant committed the offences whilst on parole for armed robbery.

10. [101]

    In his sentencing judgment, his Honour accepted that the applicant had a significant psychiatric disorder. His Honour found that the need for general deterrence was not great, but did not consider whether the applicant’s mental health contributed to his offending in a material way so as to reduce his moral culpability. [22]

11. [102]

    The Crown argued in this Court that there was no relationship between the applicant’s mental health and the offences and pointed to his drug use.

12. [103]

    Dr Furst’s report discloses that the applicant’s mental illness dates back to at least 2003, when he suffered from psychotic symptoms which included hearing “voices” and “weird thoughts”. Dr Furst was of the opinion that the applicant’s schizophrenic illness, combined with his drug addiction, had impaired his level of psychosocial function over a number of years.

13. [104]

    Dr Furst referred to the applicant’s limited financial resources and that the applicant “was very stressed in relation to debts he had incurred in 2016 and the inability of his girlfriend… to pay rent and/or provide for her five children”.

14. [105]

    Dr Furst’s opinion was that the applicant’s schizophrenia had “an adverse effect on his mood and thinking processes and his poor life choices in general, poverty and debt, which were also factors that led to his offending” (see [16] above).

15. [106]

    The applicant’s testimony before the judge included the following (see [18] above):

16. [107]

    Although complicated by drug abuse, the applicant’s schizophrenic illness clearly contributed to his high level of stress, inability to cope and the decisions to commit the offences. I am satisfied that the applicant’s mental health reduces his moral culpability for his offending.

17. [108]

    I do not find the applicant’s mental health reduces the need for personal deterrence. The applicant committed the armed robberies whilst on parole for similar offences. Furthermore, Dr Furst considered that the applicant has “poor insight in relation to his illness and relatively poor insight into his offending”. The applicant’s risk of re-offending was assessed as being “medium-high”. I take into account the protection of the public.

18. [109]

    I find myself in respectful disagreement with the judge’s findings on remorse. His Honour was not satisfied that the applicant had accepted responsibility for his actions as he blamed Centrelink for not paying him enough upon his release from custody and not re-instating the Disability Support Pension. His Honour made particular mention of Dr Furst’s reference in the passage quoted at [14] above to the applicant blaming Centrelink.

19. [110]

    Section 21A(3)(i) of the CSP Act provides

20. [111]

    Although Dr Furst reported that the applicant blamed Centrelink, he also reported that the applicant regretted his actions. It is apparent from the applicant’s oral testimony before the judge that he was seeking to explain why he committed the crimes (see [18] above). It was his need for money that he blamed on Centrelink which motivated him to commit the robberies. However, motive to commit a crime is not necessarily inconsistent with acceptance of responsibility. Furthermore, the applicant gave unchallenged evidence in which he expressed sorrow for his victims and shame for his reoffending (see [19] above). I am satisfied that the applicant has shown remorse for the offences.

21. [112]

    The parties did not challenge the 10% discount for the pleas of guilty, the finding of special circumstances or the variation of the statutory ratio between the non-parole period and the balance of term of 57%. All of these findings will be maintained on re-sentence.

22. [113]

    In accordance with s 53A of the CSP Act, I will impose an aggregate sentence. Before moving on to assess the indicative sentences, it is necessary to consider the commencement date of the aggregate sentence as the sentence imposed by the judge was backdated to commence on 30 April 2017 and was partially accumulated on the balance of parole. The principle of totality obliges the Court to consider the aggregate sentence in association with the sentence being served. [23]

23. [114]

    For the three counts of armed robbery, the applicant was released to parole on 19 February 2016. He committed the present offences about 8 months later and was arrested on 11 October 2016. The applicant’s balance of parole of 1 year 6 months and 9 days commenced on that day and was to expire on 29 April 2018. In written submissions to the judge, the applicant submitted that an appropriate commencement date for the sentence would be “the early part of 2017”. His Honour backdated the commencement date to 30 April 2017. The effect of his Honour’s orders was that the applicant has served approximately six months in custody in relation to his breach of parole. The balance of parole of just over one year was to be served concurrently with the sentence for the present offence.

24. [115]

    In this Court, the applicant advanced a submission that was not made to the judge. The applicant argued that in the event of re-sentence, the Court should backdate the sentence to the date of the applicant’s arrest on 11 October 2016 to avoid double punishment.

25. [116]

    In the exercise of my discretion to backdate the commencement date of the aggregate sentence so that it would be concurrent with or partly concurrent with the balance of parole, a significant feature is that the applicant committed the two armed robberies whilst he was on parole for three counts of armed robbery. The similarity between the offences for which parole was being served and the offences for which an offender is being sentenced was identified in Ith v R [24] as an important consideration. [25]

26. [117]

    Another important consideration is that the minimum period that the applicant will spend in custody for the present offences should adequately reflect the criminality of his offending. To backdate the commencement date of the aggregate sentences would not provide adequate punishment and denunciation for the present offences.

27. [118]

    I agree with the judge that the commencement date of the aggregate sentence is to be 30 April 2017.

28. [119]

    The following Table discloses the sentences that would have been imposed but for the aggregate sentence after the 10% discount has been applied. [26]

29. [120]

    In assessing the aggregate sentence, I have fixed an appropriate sentence for each offence and considered questions of cumulation or concurrence and totality. The aggregate term of imprisonment is 11 years 6 months. The minimum term of imprisonment will be a period of 6 years 6 months.

30. [121]

    Accordingly, I propose the following orders:

    1. (1)

       Leave to appeal granted.

    2. (2)

       Appeal against sentence allowed.

    3. (3)

       The sentence imposed in the District Court of New South Wales on 29 June 2018 is quashed.

    4. (4)

       In lieu thereof, Paul James Cummins is sentenced to 11 years 6 months imprisonment consisting of a non-parole period of 6 years 6 months, commencing on 30 April 2017 and concluding on 29 October 2023, with a balance of term of 5 years which will expire on 29 October 2028.

31. [122]

    N ADAMS J: I agree with the orders proposed by Price J for the reasons provided by his Honour.