Apulu v R

1. [1]

   SIMPSON AJA: I have had the advantage of reading in draft the judgment of Wilson J, in which the relevant facts are adequately stated. I do not propose to restate the facts and circumstances other than as is necessary to explain the position to which I have come. The following therefore assumes familiarity with the judgment of Wilson J. Subject to what follows, I agree with the disposition of grounds 2 and 3 proposed by Wilson J.

2. [2]

   The applicant and a co-offender jointly engaged in a criminal enterprise on two separate occasions, each constituting an offence against s 97(1) of the Crimes Act 1900 (NSW). Section 97(1) relevantly provides:

3. [3]

   The following is derived from an agreed statement of facts that was before the sentencing judge. The first offence was committed on 19 December 2020 and the second on 2 January 2021. Each has been fully described in the judgment of Wilson J. Each offence was committed at the same location, a service station in western Sydney.

4. [4]

   On the first occasion the applicant was armed with a “yellow handled saw”; the co-offender with a machete. Each was an “offensive weapon” for the purposes of s 97(1). The applicant advanced towards the counter of the service station behind which the victim was standing and “lunged” with the saw towards the victim. The co-offender picked up a candle and threw it forcefully towards the victim; it failed to connect. The applicant demanded that the victim put money in a plastic bag that he placed on the counter. The co-offender pointed the machete directly at the victim and demanded money, which the victim handed over ($1,800).

5. [5]

   In the second offence the co-offender was armed with a hammer, which he used to smash a stand of merchandise off the counter; the applicant was armed with a knife which was on display as he approached the counter. The applicant picked up a glass bottle and threw it hard in the victim’s direction. He opened a bag and demanded that the victim give him “the cash”.

6. [6]

   At the time of the offences the applicant was 19 years and 6 months; the co-offender was 17 years and 7 months. Neither had any criminal record. Both the applicant and the offender were arrested on 4 January 2021.

7. [7]

   By reason of his age the co-offender fell to be dealt with in the Children’s Court under the provisions of the Children (Criminal Proceedings) Act 1987 (NSW) (“the CCP Act”). Section 6 of that legislation, set out in full in the judgment of Wilson J, was applicable. The proceedings took place on 7 June 2021. Evidence before this Court (but not before the sentencing judge) shows that, in the case of the co-offender, the Crown expressly accepted that a non-custodial sentence would not be inappropriate. The Children’s Court magistrate accepted that, taking into account the subjective circumstances and that the co-offender had not previously been involved in criminal activity, it was appropriate to deal with him by way of suspended control orders under s 33(1)(g) of the CCP Act, and did so, without recording a conviction.

8. [8]

   In respect of each offence, the magistrate imposed a control order under s 33(1)(g)(i) of the CCP Act which, pursuant to s 33(1B) thereof, he suspended, conditional on the co-offender entering into a good behaviour bond under s 33(1)(b).

9. [9]

   The applicant’s case came before the sentencing judge on 28 February 2022. Material provided to the court included the agreed facts presented to the Children’s Court magistrate with respect to the co-offender (which were, although more detailed, substantially similar to those presented in the case of the applicant) and (incomplete) information concerning the orders made with respect to the co-offender. The information was incomplete in that it mentioned only one of the sentences imposed on the co-offender.

10. [10]

    Also before the court were the Sentence Assessment Report, the psychiatric report, the six character references and a letter with reference to s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act”), all discussed by Wilson J.

11. [11]

    The applicant did not give evidence. The Crown provided detailed written submissions, under a number of headings. One subject matter to which the Crown addressed written submissions was the question of parity, a matter to which it will be necessary to return.

12. [12]

    Not before the court were the sentencing remarks of the Children’s Court with respect to the co-offender or any of the information concerning his personal circumstances that influenced the decision of the Children’s Court magistrate.

13. [13]

    On behalf of the applicant three grounds of appeal were proposed. The first ground raised the question of parity with the outcome of the proceedings in the Children’s Court with respect to the co-offender. By the second ground it was asserted that the sentence was manifestly excessive. The third ground particularised 10 respects ((a)-(j)) in which it was contended that the sentencing judge had erroneously applied sentencing principles. Particulars (i) and (j) of ground 3 were as follows:

14. [14]

    It is convenient to deal first with ground 3. I agree, for the reasons given by Wilson J, that particulars (a)–(h) are not made out.

15. [15]

    Particular (j), on its face, raises an issue concerning s 21A(2)(c) of the Sentencing Procedure Act. That subsection sets out, in detail, aggravating factors that a sentencing court is required, by subs (1)(a), to take into account in determining the appropriate sentence for an offence. Paragraph (c) identifies as one such factor:

16. [16]

    The application of s 21A(2) has presented difficulties, some of which are spelled out with clarity by Basten JA and Howie J, in separate judgments, in R v Elyard [2006] NSWCCA 43. These difficulties are illustrated in the outcome of various appeals in which contravention of the prohibition of the s 21A(2) suffix has been asserted. Before going to those cases, it may be useful to set out my understanding of the position. A sentencing judge is obliged, in every case, to make an assessment of the objective gravity of the offence in respect to which sentence is to be passed. That encompasses consideration of the various elements of the offence in question, including the degree to which any such element is established. By way of example, where the offence is one involving occasioning grievous bodily harm, the degree of injury is an inherent part of the exercise, and relevant to the assessment of objective gravity of the offence. That, in a particular case, the injury might be found to be at the outer extreme of grievous bodily harm does not mean that the sentencing judge has, contrary to the s 21A(2) suffix, found the injury to be an aggravating factor.

17. [17]

    In Way, this Court said:

18. [18]

    The important thing about paragraphs [106] and [107] of Way is that they distinguish between, on the one hand, the proper assessment of the objective seriousness of an offence, with due attention to and evaluation of the evidence that establishes each element of the offence, and, on the other hand, having regard to a circumstance that is not an element of the offence, but that has a bearing on the offender’s culpability. The two are distinct aspects of the sentencing process. Thus, where the fact that an offence is committed in company is an element of the offence, it will be appropriate to take into account, in the assessment of objective seriousness, the number of participants, and their participation. That is not the same as treating the commission of an offence as aggravated by the participation of other offenders. Similarly, where being armed with an offensive weapon is (as in the case of s 97(1) offences) an element of the offence, it will be appropriate to take into account, as part of the assessment of objective priority, the nature of the weapon and the use to which it is put. That, again, is not to treat the offence, which is established by proof of the presence of the offensive weapon, as aggravated by that circumstance. It is part of the discharge of a primary part of the sentencing obligation, to determine objective gravity. Where being armed with an offensive weapon is an element of the offence, that fact is built into the prescribed maximum sentence. That is why it is not to be used as an aggravating factor, and therefore to increase the sentence. But the surrounding circumstance – the nature of the offensive weapon, and the use to which it is put, point to where on the spectrum of available sentences (up to the statutory maximum) a sentence for a particular offence should lie.

19. [19]

    In relation to offences against s 97(1) the fact that the offender is armed with an offensive weapon is an element of the offence. That necessarily encompasses some use of the weapon. In some cases that will be no more than making its presence known to the victim. In others (as in this case), it might involve serious threatening by the use of the weapon. All of that is an integral part of the assessment of the objective seriousness of the offence. It does not introduce the use of the weapon as an additional factor for the purposes of sentencing.

20. [20]

    Two decisions of this Court illustrate the fine line between making a (legitimate) assessment of objective seriousness having regard to all of the circumstances of the offence, involving the use of an offensive weapon, and taking into account (illegitimately) the same circumstance as an aggravating factor. In R v Street [2005] NSWCCA 139 the offender had committed a number of offences (5) against s 97(1) or 97(2) (a s 97(2) offence differs from a s 97(1) offence only in that the weapon is classified as a “dangerous weapon”), and a number of other offences. The sentencing judge found, without elaboration, that factors (b) (actual or threatened use of violence) and (c) in s 21A(2) were established. The brief outline of facts in that case showed that in several of the s 97 offences actual use (more than mere possession) was made of the weapon.

21. [21]

    This Court (Hoeben J, as he then was, with whom Wood CJ at CL and Grove J agreed) accepted a submission that this revealed error (the primary error lying in the failure to explain the manner in which those factors were taken into account). But the Court held further that this involved:

22. [22]

    In R v Dougan [2006] 160 A Crim R 135 the offender was charged with a single count of an offence against s 97(2) (and an offence of threatening a witness). The facts showed that, in the s 97(2) offence, the offender had pointed a gun at the victim’s neck. The sentencing judge expressly took into account the threatened use of violence (s 21A(2)(b)) and the actual use of a weapon (s 21A(2)(c)). Hoeben J (Giles JA and Grove J agreeing) said:

23. [23]

    The difficulty is that identification of a circumstance as an “aggravating factor” can be ambiguous, and the term can be used loosely. There may, in practice, be little difference between taking into account the use made of an offensive weapon as an indicator of a greater degree of objective gravity (and therefore directly relevant to sentence) and treating the same circumstance as aggravation within s 21A(2). But one is legitimate, the other is prohibited.

24. [24]

    That brings me to the remarks of the sentencing judge of which complaint is made. His Honour set out the circumstances of the offences, drawn from the agreed facts. He found that the first robbery was “a mid range offence” and the second “slightly above the mid range”.

25. [25]

    Following that assessment, his Honour then said:

26. [26]

    Bearing in mind that when he referred to the offences as being “additionally aggravated” the judge had already made his assessment of the objective gravity of the offences (objective gravity including the use made of the weapons), it would be possible to construe the first of these paragraphs as conveying that the sentence he imposed would be elevated by reason of the use of the weapons (and that the applicant was in company). If that were the correct interpretation of the remarks, error would be established. However, I have concluded that that is not the correct interpretation. The use of the words “additionally aggravated” in circumstances where the assessment of objective gravity had been made is, perhaps, unfortunate and misleading, but is understandable in the context of a judge presiding over a busy list in a regional court and delivering sentencing remarks ex tempore. The second paragraph of the extract indicates that his Honour was fully aware of the potential for double counting and was at pains to point out that that had not happened. I see no reason to doubt that that was so.

27. [27]

    Given that the facts of the use of the weapons and that the applicant was in company had not been taken into account on the assessment of objective gravity, it may well have been that those circumstances might have justified an assessment of more substantial objective gravity than was in fact found in the preceding paragraph; that that did not happen operated in the applicant’s favour. Notwithstanding the use of the words “additionally aggravated”, I am not persuaded that the sentencing judge impermissibly used either the fact that the applicant was armed, or that he was in company (which is not a subject of complaint in ground 3). Like Wilson J, I reject the proposition that error is shown in this respect.

28. [28]

    The complaint made by particular (i) of ground 3 is that the sentencing judge erred in

29. [29]

    In R v Henry this Court promulgated a sentencing guideline with respect to offences against s 97(1) of the Crimes Act. The guideline was specified to apply with respect to offences characterised by certain features, of which one was “[possession/use] of a weapon like a knife capable of killing or inflicting serious injury”. The sentencing judge referred to that decision, saying,

30. [30]

    The guideline specified in respect of offences with the specified characteristics was “within the range of four to five years imprisonment”. The complaint now made is that the sentencing judge “adhered too rigidly” to that guideline. Given that the sentence imposed was below the bottom of the Henry range, that complaint is difficult to sustain.

31. [31]

    I agree with Wilson J that this complaint is not substantiated.

32. [32]

    The more difficult issue is the question of parity. Principles of consistency in sentencing have been explored in numerous decisions, for example Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46; Postiglione v The Queen; (1997) 189 CLR 295; [1997] HCA 26; Wong v The Queen, Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64; Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49.

33. [33]

    In Wong Gleeson CJ said:

34. [34]

    In Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said (at [49]):

35. [35]

    Inconsistency in sentencing is liable to give rise to a “justifiable sense of grievance”, in the language of Gibb CJ (at p 610) and Mason J (at p 613) in Lowe. The question that now arises is whether, in the circumstances of this case, the applicant has a justifiable sense of grievance. A separate line of authority has developed in this Court concerning whether established principles of parity apply where one offender is dealt with in the Children’s Court, and another in an adult court. The cut-off age is necessarily arbitrary. It is not at all uncommon that co-offenders, only a few months apart in age, and otherwise indistinguishable in sentencing considerations, fall to be dealt with under different regimes. It has been recognised that the older (“adult”) offender may well feel aggrieved at the different outcomes. The question is whether that sense of grievance is, in the circumstances, “justifiable” and whether, even if it is, it can be remedied by the application of parity principles.

36. [36]

    The disparity in the sentence imposed on the applicant and that imposed on the co-offender is marked. The co-offender had no convictions recorded; subject to compliance with the good behaviour bonds, his sentence was entirely non-custodial. The applicant, by contrast, was sentenced to a term of imprisonment of 3 years and 6 months with a non-parole period of 2 years. There was little, if anything, to differentiate between them in terms of moral culpability, and little, if anything, to differentiate them in terms of their roles and participation in the offences. Neither had any criminal history. All that could be seen to distinguish them was their ages, by reason of which the co-offender came to be dealt with under the more benign and rehabilitation-focused regime of the CCP Act.

37. [37]

    The question of parity was recognised in the sentencing proceedings. On behalf of the applicant, nothing more was put than that the co-offender was subjected to suspended control orders. The Crown fairly drew attention to a number of decisions, to which I will shortly refer. Neither party provided any real information to the sentencing judge about the co-offender’s outcome, or the reasons for it. During the course of sentencing submissions his Honour observed that he did not have the remarks of the Children’s Court and did not know what was taken into account. It is apparent from the discussion that his Honour was of the view that the treatment of the co-offender was unduly lenient.

38. [38]

    Given the paucity of information before the sentencing judge it is difficult to find error in his decision not to tailor the sentence imposed on the applicant to take account of the treatment of the co-offender. This Court, however, is in a better position. The Court was provided with some transcript of proceedings in the Children’s Court, that being the submissions made to the magistrate by the parties (including the Crown’s acceptance that a suspended control order would not be inappropriate) and the transcript of the remarks of the magistrate. The Crown in this Court very fairly raised no objection to the Court having regard to that material. There is nothing in that material, on my reading of it, that distinguishes the co-offender from the applicant in any significant way.

39. [39]

    The issue of parity in this case devolves into whether the fact that the co-offender was dealt with in the Children’s Court, under the CCP Act regime, entitles the applicant to rely on parity principles. This is not the first time such a question has come before this Court. As a general proposition it may be accepted that the different regimes are a matter of significance. The outcome of the Children’s Court proceedings is not, however relegated into irrelevance. Actual determinations of this Court where the question has arisen are instructive. Those decisions show that the fact that a co-offender is dealt with in the Children’s Court does not exclude considerations of parity.

40. [40]

    Before the Court in Govinden [1999] NSWCCA 118; (1999) 106 A Crim R 314 was a Crown appeal in relation to non-custodial sentences imposed with respect to offences of being an accessory to offences of armed robbery and robbery in company. Co-offenders (at least one of whom was a principal offender) had also been given non-custodial penalties in the Children’s Court. One answer to the Crown complaint of manifest inadequacy was that, having regard to the manner in which the juvenile co-offenders had been dealt, parity considerations entitled Govinden to resist a custodial sentence. Dunford J (with whom Greg James J and Smart AJ agreed) said:

41. [41]

    Notwithstanding that he considered the sentence to be “excessively lenient”, Dunford J applied parity principles and (for that and other reasons) dismissed the Crown appeal.

42. [42]

    In R v Colgan [1999] NSWCCA 292 Sully J observed a “manifest disparity” in the manner in which the applicant (who was sentenced in an adult court) in that case and a co-offender (who had been dealt with in the Children’s Court) had been dealt with and said:

43. [43]

    Spigelman CJ agreed with Sully J but added a reference to Govinden at [36]-[37] with apparent endorsement, and added that a sentence imposed on a co-offender in the Children’s Court is not necessarily irrelevant because the adult offender “may very well have a justifiable sense of grievance with respect to that very difference of the regimes”.

44. [44]

    In R v Boney [2001] NSWCCA 432 Wood CJ at CL (with whom Grove J agreed) said:

45. [45]

    In a dissenting judgment in R v Wong [2003] NSWCCA 247 Kirby J stated a number of propositions (which were not the subject of disagreement in principle by the other two members of the bench):

46. [46]

    In Belvie v R [2017] NSWCCA 36 Meagher JA and Johnson J acknowledged (at [4]) that “what occurred in the Children’s Court is not irrelevant to the question whether an offender may have a justifiable sense of grievance” but noted significant differences between the adult offender and the juvenile offender in that case such that disparity in sentencing was, quite apart from the different sentencing regimes involved, appropriate.

47. [47]

    Finally, it is appropriate that I acknowledge authorship of the passages quoted by Wilson J from Ruttley v R [2010] NSWCCA 118. Having regard to the decisions to which I have just referred, it may be that the position is less absolute than those passages would suggest. Moreover, it is to be observed that, notwithstanding the unqualified language in which the principles are there expressed, the Court did proceed to grant leave to appeal, allow the appeal and order that the offender be released forthwith.

48. [48]

    I have come to the view that, in this case, the applicant’s sense of grievance is justifiable and ought to result in modification of the sentence. Given that this is a minority view, I do not intend to propose what that sentence ought to be. I merely note that I would grant leave to appeal, allow the appeal, and would resentence the applicant to a lesser term of imprisonment.

49. [49]

    DAVIES J: I have had the advantage of reading in draft the judgments of Simpson AJA and Wilson J. I agree with the orders proposed by Wilson J and her reasons for those orders, but I wish to add the following.

50. [50]

    I agree with the discussion of Simpson AJA with respect to particular (j) of ground 3 of the appeal. The distinction her Honour makes at [18] is one that needs to be made carefully by sentencing judges to avoid the possibility that an element of any offence has been additionally counted as an aggravating factor.

51. [51]

    In relation to parity, I agree with Simpson AJA that the cases her Honour has discussed suggest that a sentence imposed on a co-offender in the Children’s Court may well require consideration as far as the issue of parity is concerned. In the present case, however, I agree with Simpson AJA that there was no error on the part of the sentencing judge in circumstances where very little information was provided to his Honour about the Children’s Court sentence proceedings.

52. [52]

    With the further information put before this Court, although there was a significant difference in the sentences imposed on the two offenders, I do not consider that the applicant has a justifiable sense of grievance. The sentence imposed upon the co-offender in the Children’s Court was excessively lenient, particularly in suspending the term of the control order. Given the serious nature of these two robberies, it is difficult to understand why the Crown in the Children’s Court accepted that it would be appropriate to suspend the control order.

53. [53]

    Bearing in mind the generous reduction by the sentencing judge in the statutory ratio of the non-parole period, any other reduction in the sentence imposed on the basis of parity would not have reflected the seriousness of the offending, and would have produced a sentence disproportionate to the objective and subjective criminality: R v Boney at [15]; and see Hunt CJ at CL in R v Diamond (NSW Court of Criminal Appeal, 18 February 1993, Unrep).

54. [54]

    WILSON J: On 28 February 2022 the applicant, Frank Apulu, was sentenced by his Honour Judge Colefax SC in the District Court of NSW for two offences contrary to s 97(1) of the Crimes Act 1900 (NSW) of robbery whilst armed with an offensive weapon. An offence such as this carries a maximum penalty upon conviction of 20 years imprisonment; there is no standard non-parole period. The aggregate sentence imposed upon the applicant, allowing a discount on sentence of 50% to reflect an early plea of guilty and factors relevant to s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW), was one of three years and six months imprisonment, with a non-parole period (“NPP”) of 2 years. As that ratio of sentence suggests – the NPP constituting 57% of the head sentence – his Honour made a finding of special circumstances in the applicant’s favour, pursuant to s 44 of the Crimes (Sentencing Procedure) Act.

55. [55]

    The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against that sentence, advancing three proposed grounds, as follows:

    1. (1)

       “His Honour erred in not giving any weight to parity of sentencing in respect of the co-offender […] thereby creating a justifiable sense of grievance on the part of the appellant.

    2. (2)

       The sentence was manifestly excessive having regard to the circumstances of the case.

    3. (3)

       His Honour erred in applying the principles of sentencing as follows:

The Proceedings in the District Court

1. [56]

   Having entered pleas of guilty in the Local Court and been committed for sentence the applicant appeared before the District Court for that purpose on 28 February 2022.

2. [57]

   The circumstances of the two offences were before the sentencing court by way of an Agreed Statement of Facts. The robberies both occurred at the same Metro Service Station in St Andrews, about two weeks apart. On both occasions the applicant was in company with a 17 year old boy (“the co-offender”).

3. [58]

   On the evening of 19 December 2020, the console operator at the Metro Service Station was Mr Patel. He was the only staff member on duty that evening.

4. [59]

   At about 8.35pm the applicant and his co-offender ran into the Service Station. Both were wearing face coverings, and each was armed – the applicant with a hand saw and his co-offender with a machete. On reaching the counter where Mr Patel was standing the applicant lunged at him with the saw, requiring Mr Patel to jump back to avoid being struck. As that occurred the co-offender picked up a candle and threw it forcefully at Mr Patel, although missing him. The applicant placed a bag on the counter and directed Mr Patel to “give me money […] just give me all your money, your coin and everything”. He was brandishing the saw at Mr Patel. The co-offender, after walking towards Mr Patel with his machete in hand, then walked down the shop aisles, knocking objects down as he went. Returning to the counter area, the co-offender pointed the machete at Mr Patel and told him, “give us all your money, coins and everything”. Mr Patel gathered up about $1800 in notes and coins and gave it to the offenders, who ran off.

5. [60]

   Mr Patel telephoned for police assistance and an investigation commenced. Footage from a closed-circuit surveillance system operating at the service station, which had captured the commission of the offence, was recovered.

6. [61]

   On the evening of 2 January 2021 Ms Matthew was working as the attendant at the same Metro Service Station. The Manager, Mr Parikh, was also on duty. At about 9.00pm Ms Matthew and Mr Parikh were readying the store for closing time. When Mr Parikh went outside, he saw two men nearby. One of the males, the co-offender, went inside the service station where he spoke to Ms Mathew, asking about a particular brand of drink. The co-offender then left the premises and walked over to the applicant, who was standing nearby. Mr Parikh was concerned by the behaviour of the males and returned to the store to stand with Ms Matthew.

7. [62]

   A few minutes later the applicant and his co-offender entered the service station together. The applicant went to a drink’s fridge at the rear of the store, whilst the co-offender walked up to Ms Matthew at the counter and asked about a brown purse, he said he had lost. As he turned to speak to the applicant, the co-offender withdrew a hammer he had concealed in his clothing and used it to smash a display of merchandise that had been resting on the counter, knocking it to the ground, and startling Mr Parikh and Ms Matthew. Taking up a glass bottle, the applicant threw it with force in Mr Parikh’s direction. The bottle struck the doors of a cigarette cabinet behind Mr Parikh.

8. [63]

   The co-offender moved closer to Mr Parikh, holding the hammer outwards in his direction. The applicant, who was armed with a knife, opened a bag he had brought with him and demanded that Mr Parikh “[g]ive me the cash”. Mr Parikh began to empty the contents of the cash register into the bag; the co-offender took cigarettes from the rear of the counter. After he had put all of the cash from the register into the bag the applicant directed Mr Parikh to “[p]ut in all the gold coins too, give me more, give me more or I’ll kill you”. He demanded that Mr Parikh “lift up the tray”; Mr Parikh placed a box from under the counter containing more cash into the bag. The applicant took the bag and both males ran out of the service station, getting into a Hyundai i30 that was parked outside.

9. [64]

   Police who attended the scene quickly linked the Hyundai to the offenders, and the applicant was arrested on 4 January 2021. He was interviewed and admitted his role in both robberies at the St Andrews Metro Service Station.

10. [65]

    A document indicating that the applicant had no criminal history was tendered, together with a Custodial History provided by Corrective Services NSW. The latter recorded the applicant as having incurred six institutional offences since entering custody, including assault and intimidation. One incident, on 29 July 2021, was recorded as a “serious group assault”; another entry referenced the applicant’s “[p]oor custodial behaviour” and possession of “[c]ontraband”.

11. [66]

    The Crown also tendered a Sentencing Assessment Report (“SAR”) prepared on 11 February 2022. The author of the report interviewed the applicant, his partner and mother, and his employer, and noted that the applicant had been living with his mother, step-father, and younger siblings prior to his arrest. His family were supportive of the applicant, as was his partner of two years [as at the date of the report]. The applicant had held stable employment in a shipping yard from 2018, although he had been stood down for an extended period due to the COVID-19 pandemic. His employer was supportive and intended to employ the applicant upon his release from custody.

12. [67]

    As to the offences, the applicant told the report author that he had felt overwhelmed by debt and his responsibility to support his family and had committed the offences – at the instigation of his co-offender – for money. He said he had not sought any financial assistance from the government during the pandemic for what he described as “cultural reasons”.

13. [68]

    The applicant said that he had been using alcohol on weekends to the point of “black[ing] out”, and using cocaine – that he said was supplied to him by friends – in the period leading up to the commission of the offences. He said that he had been affected by cocaine on both occasions. The applicant claimed to have taken [unspecified] steps to engage with a drug and alcohol rehabilitation service prior to his arrest, and he said he was willing to address his substance use.

14. [69]

    Although the applicant said that he had not considered the impact of his crimes on the affected staff of the Metro Service Station at the time, he said he had reflected on it since entering custody, and understood that the staff would have been frightened by his actions, with an ongoing impact on their ability to work likely.

15. [70]

    Under a heading “Mental health” the report author observed:

16. [71]

    The applicant was assessed as presenting a “Medium-Low’ risk of reoffending.

17. [72]

    The Crown tendered some limited information with respect to the co-offender, who had been dealt with before the Children’s Court at Campbelltown on 7 June 2021, for the same two s 97(1) offences, and made subject to a 14-month suspended control order pursuant to s 33(1B) of the Children (Criminal Proceedings) Act 1987 (NSW). The Statement of Facts that was before the Children’s Court was broadly consistent with that before the District Court with respect to the applicant. The only material difference is that the co-offender is recorded as demanding cigarettes from Ms Matthew and Mr Parikh whilst pointing the hammer at them, prior to taking the cigarettes himself. A criminal history (by way of a name and date of birth check) recorded the co-offender as having no prior entries.

18. [73]

    A letter going to matters relevant to s 23 of the Crimes (Sentencing Procedure) Act was tendered in the Crown case. As there is no challenge to the way in which that material was dealt with by the sentencing court, it is not considered further (other than to note, below at [48], the discount on sentence that was applied).

19. [74]

    The applicant did not give evidence.

20. [75]

    He relied upon a psychiatric report prepared for the sentence hearing by Dr Tanveer Ahmed, dated 31 January 2022. Dr Ahmed had conducted an interview with the applicant by telephone that same day. The doctor took a history from the applicant of growing up in a large family in Western Sydney, living with his mother and step-father, and maintaining contact with his father after his parents had separated when he was a young child.

21. [76]

    The applicant reported “…a several year history of drug use, primarily cocaine”. He told Dr Ahmed that he had begun to use cocaine at about 16 years of age, receiving the drug “…usually for free” from friends for whom “…he functioned as something of their security in case anything went wrong”.

22. [77]

    The applicant reported that, as a 13 and 14 year old, he sometimes felt overwhelmed by panic and would run away from his parents’ respective homes, his mother and father having separated when he was about 4 years old. He felt a degree of social anxiety, sometimes at school, where he got into scuffles. He was occasionally suspended from school, but never expelled, and completed Year 12. Drug use helped him socialise with others and was “…a prime reason for him to continue it”. The applicant reported that his size and strength meant that others utilised him for his “…intimidating presence”.

23. [78]

    He said that he had seen a drug and alcohol counsellor in custody and planned to follow up that contact.

24. [79]

    Dr Ahmed reported, under a heading “Mental State Examination”:

25. [80]

    The doctor concluded that the applicant “…suffers two diagnoses”, being Cocaine Dependence and Panic Disorder. Although he did not explain the basis of his opinion Dr Ahmed stated:

26. [81]

    The applicant also tendered a number of written references from family and others. His grandfather, Pastor Misi, had been surprised to learn of the charges as the applicant had been “part of the youth” in the church community from a very young age and was, in his observation, an upstanding young man who was always supportive of family. Pastor Misi said that the applicant was remorseful and would emerge a better person. The applicant’s mother regarded him as a man of morals who was “…dependable, responsible, honest, and courteous”. She believed him to repent of his conduct.

27. [82]

    The applicant’s girlfriend wrote that he was a loving and strong-minded person who always put the needs of others before his own. She observed that, “[h]aving been a victim of domestic violence and negligence…” her partner saw himself as a father figure for his siblings and was a positive influence on both his and her own family. She regarded him as an honourable individual and valuable member of the community.

28. [83]

    Pastor Schmidt-Lauano had known the applicant in 2019 as a member of the Youth Group of the Cornerstone of Hope Ministry. She regarded the applicant as a respectful member of the church who had participated in both musical and sporting activities and been well regarded by his peers. Another religious figure, the Minister of a Samoan Church, spoke highly of the applicant as a hardworking and trustworthy gentleman whose offending was out of character. The Chaplain from Parklea Correctional Centre had known the applicant from May 2021 to February 2022, when he wrote the reference tendered to the sentencing court. He observed that the applicant had participated in or completed the “International Prison Fellowship Journey” and the Salvation Army’s “Positive Lifestyle Programme”. He had also attended chapel on a regular basis. Reverend Tukutama reported that the applicant had grown up between the Samoan way of life and the Australian way of life and, further, was caught between his parents in their separate lives. Growing up in the “hyphens” of life had left him conflicted and angry.

29. [84]

    Both parties filed lengthy written submissions.

30. [85]

    The Crown referred the sentencing court to the Guideline judgment of R v Henry and Ors (1999) 46 NSWLR 346; [1999] NSWCCA 111, noting that the applicant’s crimes shared most of the features referred to in Henry at [162], which are as follows:

31. [86]

    Referring to the second of those features, the use of a weapon, the Crown submitted that the use of weapons went beyond the typical weapon envisaged in Henry in that, in the first of the offences, the applicant had been armed with and used a hand saw of such length that Mr Patel had had to take evasive action to avoid being struck by it, whilst the co-offender, also armed, had additionally thrown a candle at Mr Patel. In the second of the robberies, the applicant had been armed, but had also used a glass bottle as a weapon, throwing it at Mr Parikh; whilst the co-offender had used the hammer with which he was armed to smash merchandise, thus elevating the level of violence displayed to people and property, and consequently the perceived threat. For those reasons the Crown submitted that the offence was “…slightly above that which is contemplated in Henry”. The Crown contended that, since proof of being armed was the element to be proved to establish an offence of robbery whilst armed, the actual use of a weapon elevated the gravity of the crimes.

32. [87]

    Further, the Crown argued that the presence on the second occasion of two staff members aggravated the gravity of the crime, as did the fact that both offences were committed in company.

33. [88]

    As to the subjective case the Crown noted that the applicant had chosen not to give evidence and, referring the court to the principles derived from decisions such as R v Qutami [2001] NSWCCA 353 and Imbornone v R [2017] NSWCCA 144, submitted that the applicant’s untested and unsworn representations should be treated with caution. The Crown argued that the applicant’s contention that sentence should be mitigated pursuant to the principles in Bugmy v R (2013) 249 CLR 571 should be rejected as entirely unsupported by evidence.

34. [89]

    The applicant’s counsel argued that the applicant had been, prior to the commission of these offences, “a good church going youth” who had gone “off track” under the influence of others. It was submitted that “…some form of ‘suspended’ sentence” should be imposed.

35. [90]

    Referring to Dr Ahmed’s opinion that there was an “overlap” between the panic disorder and cocaine dependency that Dr Ahmen thought the applicant suffered from, the applicant submitted that “…the Del [sic] La Rosa principles […] operate to mitigate the moral culpability of his offending”. It was contended that the applicant had acted under the influence of his co-offender, who was described in submissions as “the initiator of the offending” who “played a greater role in both robberies”. The court was asked to consider “parity of dealing” with respect to the suspended control order imposed upon the co-offender. In oral submissions, counsel for the applicant accepted that the parity issue was “complicated” by the fact that the co-offender was dealt with in the Children’s Court, but submitted that the terms of the suspended control order imposed upon the co-offender would “give the Court some idea of where the parity may well lie”.

36. [91]

    The applicant also argued that:

37. [92]

    An intensive correction order (“ICO”) was submitted to be an appropriate outcome.

38. [93]

    In handing down sentence ex tempore the sentencing judge, having correctly noted the maximum penalty for an offence contrary to s 97(1), set out the facts of the crimes as they had been given in the Agreed Facts. On the basis of that evidence his Honour concluded that the first of the robberies was “a mid-range offence” whilst the second was “slightly above the mid-range”. His Honour noted that:

39. [94]

    His Honour noted that the applicant had chosen not to give evidence, and the reports of what the applicant had said to others at other times were contradictory in some regards. With respect to the circumstances of the applicant’s childhood his Honour observed that, whilst the SAR made reference to the applicant having witnessed domestic violence in the family home, the applicant had not mentioned that feature of his early life when giving a history to Dr Ahmed, who recorded only that the applicant had grown up with his mother and step-father, with whom he got along, and that he had maintained contact with his father. There was no reference to domestic violence in the letter from the applicant’s mother. His Honour was not persuaded on balance that the applicant had a disadvantaged childhood of the type discussed in Bugmy v R (2013) 249 CLR 571.

40. [95]

    The sentencing judge also rejected the applicant’s contention that his co-offender had initiated the robberies and played a greater role in them. His Honour noted that there was no sworn evidence to support that claim, and the Agreed Facts established that both offenders had participated equally in the offending conduct. His Honour was sceptical as to the second-hand assertions of the applicant’s remorse.

41. [96]

    Having regard to the applicant’s admissions against interest to Dr Ahmed that he had acted as “security” for friends who were drug suppliers, and had used illicit drugs himself over a period of years, the sentencing judge could not conclude that the applicant was a person of good character; although he did extend leniency to the applicant as a first offender. The applicant’s prospects of rehabilitation were assessed as “guarded”.

42. [97]

    His Honour was not persuaded that the evidence of a panic disorder and cocaine dependency was significant on sentence. He said:

43. [98]

    He concluded that there was a need for the sentence imposed to reflect the requirement for both general and specific deterrence, but also a need to encourage the applicant’s rehabilitation.

44. [99]

    The applicant’s early plea of guilty was reflected by a discount on the sentence that would otherwise have been imposed of 25%, with the s 23 issue reducing sentence by a further 25%, to a total reduction on sentence of 50%. His Honour made a finding of special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act, because of the applicant’s age (being 20 at the time of sentence and 18 at the time of the offences); the fact that he had not previously been in a prison environment, and the difficulties that had applied to the custodial environment during the applicant’s time in custody due to the COVID-19 pandemic.

The Application to this Court

1. [100]

   The applicant complains that the sentencing judge erred in “…not giving any weight to parity in respect of the co-offender…” and, as a consequence, he has a justified sense of grievance. The phrase “any weight” must be understood to be a ground contending that his Honour failed to take into account a material consideration, that being the application of the parity principle, an error of the type referred to in House v The King (1936) 55 CLR 499 at 505.

2. [101]

   The parity principle is one about which a great deal of jurisprudence exists that need not be expanded, or expounded, upon here. An authoritative and frequently quoted statement of it may be found in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49, at [28]. The full paragraph bears re-reading but by way of a concise statement, the High Court there said of the principle:

3. [102]

   The applicant faces two significant hurdles in establishing that the sentencing judge was in error in not applying the parity principle: the absence of any meaningful evidence before the sentencing court that would have allowed his Honour to properly consider the parity issue; and, critically, the fact that the co-offender was a child.

4. [103]

   If, in those cases where the parity principle applies, a sentencing court is to properly apply it, the court must be given the information necessary for it to do so. It is not the court’s task to hunt for evidence; that is the role of the parties. Here, the Crown provided the sentencing court with some limited material concerning the co-offender, being a statement of facts, a record evidencing the absence of a criminal record, and the term of the sentence imposed. His Honour was not given any evidence or information as to other material in the Crown case, such as a copy of the report from Juvenile Justice that must have been before the Children’s Court; or of the subjective case put before that court. Neither were the remarks on sentence of the magistrate who imposed sentence obtained and tendered, even assuming they had been taken out, a most uncommon practice in the Children’s Court.

5. [104]

   In those circumstances, had the sentencing judge been required to give full attention to the operation of the parity principle, it would have been impossible for him to do so in any meaningful way. He had no information concerning the subjective case, other than that the co-offender at age 17 years had no criminal record; and no information as to the matters taken into account by the sentencing magistrate when determining the sentence that was imposed. No informed comparison of the crimes and the criminals could have been undertaken by his Honour.

6. [105]

   His Honour pointed that out to counsel for the applicant in the course of discussion during submissions, observing that:

7. [106]

   If the applicant considered that his Honour was bound to have regard to the sentence imposed upon the co-offender and give full attention to the principle of parity, the absence of evidence could have been addressed by seeking an adjournment to permit relevant evidence to be obtained. No such application was made to the sentencing court, and there was no attempt to redress the absence in the evidence. In those circumstances, where inadequate information was given to the court and only the barest of submissions concerning the application of the principle was made, it can hardly be wondered at that his Honour did not refer to the parity issue: there was no utility in doing so.

8. [107]

   The second hurdle for the applicant, and the most significant, is also the likely basis of the failure of either the Crown or the applicant to secure a full account of the proceedings against the co-offender: he was dealt with in the Children’s Court under a completely different sentencing regime, in effect removing the sentence imposed upon him from consideration under the parity principle.

9. [108]

   The imposition of sentence upon children is governed by the Children (Criminal Proceedings) Act. Courts which exercise functions under that Act, such as the Children’s Court, are bound by the principles set out in s 6, as follows:

10. [109]

    Those principles, which give emphasis to the requirement of children of guidance, assistance, education, and stability of family life, do not apply to adults.

11. [110]

    Further, the range of penalties applicable to a child dealt with in the Children’s Court are completely different to the range of penalties that can be imposed upon an adult offender. Division 4 of Part 3 of the Children (Criminal Proceedings) Act provides for the penalties that may be imposed upon a child, with the most significant sanction available being a “control order”, that is, an order committing the child offender “…to the control of the Minister administering the Children (Detention Centres) Act 1987…” for a period not exceeding 2 years: s 33(g)(i). Any penalty imposed upon a child is ordinarily imposed without a conviction being recorded: s 14 of the Children (Criminal Proceedings) Act.

12. [111]

    The sentencing regime applicable in the Children’s Court is, as Judge Colefax observed in discussion with counsel, “a substantially different sentencing regime”. That greatly reduces, almost to vanishing point, the relevance of a sentence imposed in the Children’s Court upon a co-offender who is a child. That is because the parity principle requires like cases to be treated alike; where there are differences in the cases of two offenders, the law permits a differential approach.

13. [112]

    In the case of the applicant the differing jurisdictions in which he and his co-offender were respectively sentenced requires a different approach to be taken to each on sentence. As Simpson J (as her Honour then was) observed in Ruttley v R [2010] NSWCCA 118 at [55] – [56] (McClellan CJ at CL and Fullerton J agreeing) of a ground of appeal dealing with parity of sentence between an adult and a child offender:

14. [113]

    This is not the rare case to which her Honour referred. There is no error in the approach of the sentencing judge to the operation of the principle of parity. He well understood the significance of the differences between the sentencing regime that applied to the co-offender, and the regime applicable to the applicant that his Honour was administering.

15. [114]

    One can understand that, subjectively, a 19 year old offender may feel aggrieved when given a prison sentence in circumstances where a juvenile co-offender received a community based sentence, but where that difference reflects the operation of different legislative sentencing schemes, the sense of grievance cannot be regarded as justified.

16. [115]

    This ground should be dismissed.

17. [116]

    Ground 3 is pleaded as error in the application of sentencing principles, particularised by a long list of purported failings of the sentencing judge in imposing sentence upon the applicant. Many asserted failings are as to the weight given to individual features relevant to the exercise of the sentencing discretion.

18. [117]

    Error will be established where a sentencing judge acts upon a wrong principle. Complaints about weight, however, do not readily fall within the formulation of appealable error given in House v The King at 505. The weight accorded to evidence or any of the various purposes of sentencing are discretionary matters for the sentencing judge, and the discretion is wide. It is not the role of this Court to interfere in discretionary decisions, unless it can be established that the sentencing discretion miscarried. That is clear from House v The King, where the Court said, at 504 – 505:

19. [118]

    The point was taken up in Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29, at [15] where the High Court said:

20. [119]

    Within a range of sentences for the particular offence and offender “the weight to be given to the evidence and the various, conflicting, purposes of sentencing” is a matter for the sentencing judge: Bugmy, at [24].

21. [120]

    Taking the listed complaints that constitute ground 3 and treating each as particulars of error in the application of principle, none can establish that the sentencing judge erred in the application of sentencing principles, for the reasons below.

22. [121]

    Error in not giving weight to the applicant’s “diagnosed psychiatric condition” to ameliorate the principles of deterrence: The only evidence before the sentencing court that suggested the applicant had “a psychiatric diagnosis” was the report of Dr Ahmed. Dr Ahmed spoke to the applicant by telephone to conduct a psychiatric assessment; he did not see him, even via an audio-visual link; and the doctor was not provided with any medical records or independent medical or social history. Based wholly on what the applicant told him, Dr Ahmed concluded that the applicant had a “panic disorder” and “cocaine dependence”.

23. [122]

    The basis upon which Dr Ahmed appears to have concluded that the applicant had a panic disorder was the applicant’s assertion that, at age 13-14, he had sometimes felt panicked, and ran away from home; and felt socially anxious at school. As the sentencing judge observed during the sentence proceedings, the applicant did not give evidence, of the truthfulness and accuracy of the history given to Dr Ahmed, or anything else. The history the doctor obtained was hearsay, the reliability of which could not be tested. It was unsupported by any independent evidence and contradicted by other material in the applicant’s case, also derived from the applicant’s assertions, necessarily pointing to its unreliability.

24. [123]

    Accepting for the purposes of the sub-ground that the diagnoses were valid, the most that Dr Ahmed said as to any link between the disorders he diagnosed, on the slender basis of a history of questionable reliability, was that there was “a direct overlap” between the conditions and the charges. What that opinion means is not entirely clear, and the foundation for it was not explained or otherwise made apparent. It is not evidence of a causal link between the offending conduct and the condition.

25. [124]

    It was open to his Honour to conclude that there was no causal link between the panic disorder referred to and the commission of the offences.

26. [125]

    Even had his Honour accepted that the applicant suffered from a relevant psychiatric condition, the applicant’s contention that there must have been a reduction in moral culpability and in the application of the principle of general deterrence by the sentencing judge must be rejected. Nothing in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 mandates that a particular consequence or consequences follow from evidence of a mental condition or other impairment. The features listed at [177] of that judgment are features that may have significance in the determination of sentence; that they do have such significance is a matter to be determined by a proper assessment of the evidence in the particular case. The point was made both before and after judgment was given in De La Rosa. In R v Engert (1995) 84 A Crim R 67 Gleeson CJ said, at 68:

27. [126]

    In Aslan v R [2014] NSWCCA 114 Simpson J, as her Honour then was, when referring to the considerations listed at [177] in De La Rosa observed, at [34] – [35], that none of the principles were “absolute” She continued:

28. [127]

    Having regard to the limited evidence for any psychiatric condition suffered by the applicant, and the absence of evidence that any such condition had a causal role to play in the commission of the offences, or was otherwise relevant to sentence, there was no error in the way the sentencing judge treated this feature of the matter. His Honour understood the relevant principles, and applied them.

29. [128]

    Error in not accepting the [psychiatrist’s] finding that the panic disorder overlapped the offending, diminishing moral culpability: This complaint is adequately addressed above. There was a sound basis for the conclusion reached by the sentencing judge, which was in accordance with principle.

30. [129]

    Making no finding as to the applicant’s immaturity and susceptibility to the influence of others: As the sentencing judge noted during the sentence proceedings in an exchange with counsel, there was no evidence that the applicant had been influenced by the co-offender beyond his own hearsay assertions as to being easily influenced by others. Nothing in the objective material supported the conclusion the applicant contends for.

31. [130]

    Finding that the applicant was not of good character: His Honour did not conclude that the applicant was not of good character; rather, he declined to find that the applicant was of good character. In light of the evidence the applicant tendered through which he conceded having acted as “security” for drug dealer friends for some time prior to the commission of the offences and having used illegal drugs since he was aged 16, his Honour’s finding was well open to him. There was evidence from family and associates from church as to the applicant’s character, but that evidence was significantly undermined by the applicant’s admitted wrongdoing. The authors of the various testimonials appear not to have been aware of the applicant’s role in protecting drug dealers, or his years of illicit drug use. His Honour did afford some leniency to the applicant as a person without prior criminal convictions. Nothing in the approach of the sentencing judge was wrong in law.

32. [131]

    Finding that there was no evidence of special circumstances based upon upbringing and “domestic violence”: The evidence of a disadvantaged upbringing where the applicant had been affected by domestic violence was both limited, and contradicted by other evidence. Counsel’s submission to this Court that the applicant had a “challenging upbringing” where domestic violence was “prevalent” was in no way supported by credible evidence.

33. [132]

    Whilst the author of the SAR referred to the applicant having witnessed domestic violence in the family, based upon the applicant’s assertion to that effect, there was no other evidence of it at all. Notably, the applicant’s mother did not refer to any dysfunction or disadvantage in the applicant’s childhood, although she was consulted for the preparation of the SAR. The applicant made no assertions concerning violence or disadvantage to Dr Ahmed; to the contrary he appeared to suggest that his family life had been stable and he had gotten along with his mother, step-father, and father. Given those inconsistencies in the evidence, his Honour was not persuaded on balance that the applicant had established that his childhood circumstances were blighted by the sort of profound deprivation discussed in Bugmy, a conclusion that was well open to him.

34. [133]

    Insofar as this complaint concerns reliance upon this feature to make a finding of special circumstances, since his Honour found that there were special circumstances based upon other features, the utility of this complaint is negligible.

35. [134]

    Misconstruing the risk assessment in the SAR: The author of the SAR noted that the applicant had “been assessed as at a Medium-Low risk of reoffending” according to a standard risk assessment tool, the Level of Service Inventory – Revised (“LSI–R”). The applicant complains that his Honour’s formulation of the evidence was wrong, in that he “placed too much significance on the word order of medium to low instead of low to medium”.

36. [135]

    In his remarks his Honour cited the evidence in this way:

37. [136]

    It is not clear to me that it constitutes error, of acting on a wrong principle or anything else, to describe the evidence of risk assessment as his Honour did, ordering the words as he did, particularly as there was no evidence before the sentencing court to give any particular meaning or significance to the phrase “Medium-Low” in the context of the LSI-R. His Honour did not, in any event, adopt the risk assessment as a finding of fact; he had regard to it in finding that the applicant’s prospects of rehabilitation were “guarded”. That finding was open to his Honour, whatever the precise meaning of the phrase “Medium-Low”. The applicant had acknowledged having a long-standing cocaine addiction; to feed that addiction he had been prepared to offer his services as a security guard for drug dealers, and to rob others of their property when armed. His addiction, and the criminality to which he had turned to support it, were clear risk factors for recidivism.

38. [137]

    Other than acknowledging his addiction, there was very little evidence to suggest that the applicant had taken any meaningful steps to address his drug use. He had made contact with a drug and alcohol counsellor since entering custody, and stated his intention to “follow up” that contact. He told the author of the SAR that he was willing to address his addiction. The process of drug rehabilitation was in its extreme infancy, and did not require or even justify a finding that the applicant had good prospects in that regard.

39. [138]

    There was evidence that the applicant’s family and church members were supportive, and that he had employment to go to on release from custody, features to which his Honour referred. However, in circumstances where it seems that none of those around the applicant had been aware of his drug use and criminality to support drug use, it was open to his Honour to regard the importance of that support as somewhat reduced.

40. [139]

    The complaint as to his Honour’s treatment of the phrase used to describe the risk assessment amounts to little more than a semantic argument; it does not establish error.

41. [140]

    Finding that the applicant’s prospects of rehabilitation were guarded: I have addressed this complaint above. There was some evidence that was positive for the applicant, being his family support and employment opportunities. That evidence had to be assessed against the applicant’s long-term drug use, and the very limited steps taken to address it, and in light of his poor custodial conduct following admission to custody after arrest, including as it did participation in a serious assault. His Honour’s conclusion demonstrates no misapplication of principle.

42. [141]

    Finding that there was no evidence of remorse: His Honour made no such finding. He referred to the “second hand expressions” of remorse and observed that he treated them with scepticism. That approach is entirely in accordance with well-settled law; see Quatami at [58] – [59], Imbornone at [57], R v Harrison [2001] NSWCCA 79 at [44], and Pritchard v R [2022] NSWCCA 130 at [90] for example. In Harrison, Spigelman CJ said at [44], of untested assertions made by an offender:

43. [142]

    Whilst to “provide” evidence of remorse pursuant to s 21A(3)(i) of the Crimes (Sentencing Procedure) Act does not require an offender to give evidence, as observed in Butters v R [2010] NSWCCA 1 at [17], the weight to be afforded to untested claims made to others may be small. Where there is no evidence from the offender a sentencing court is entitled to be cautious about accepting his or her hearsay statements of remorse to others. It is one thing for an offender to take an oath or affirmation to tell the truth, give evidence of remorse in open court, perhaps in the presence of any victim of the crime, and submit to cross-examination; it is quite another to simply tell a (generally) sympathetic or accepting listener that one is remorseful and rely upon the report of that untested assertion to claim a reduction on sentence. The sentencing court has no way of fully assessing the genuineness of untested claims to others and where, as here, the offender did not give consistent accounts of relevant matters in what he said to others, a court is entitled to be sceptical as to the veracity and genuineness of the claim. That assessment was one within the discretion of the sentencing judge to make, and there was no misapplication of principle.

44. [143]

    Misapplying the principles derived from Henry: The complaint made against this sub-ground is that his Honour “too rigidly” applied the guideline judgment of Henry. Of the guideline, his Honour said no more than that the applicant’s conduct was “captured by the criteria set out in that case”. That passing reference in remarks which appear across over eight pages of transcript cannot establish that the sentencing judge treated the decision in Henry as anything other than a guideline. Features not referred to in Henry, such as an early plea of guilty and the s 23 Crimes (Sentencing Procedure) Act evidence, were clearly considered by his Honour, and appropriately taken into account on sentence. No error has been demonstrated.

45. [144]

    Double counting possession of an offensive weapon by treating it as an aggravating feature: The submission for the applicant is that the sentencing judge “double-counted” in his consideration of some aspects of the evidence in assessing the objective gravity of the offences. As his Honour specifically said in his Remarks, he was conscious of the risk of double counting, and took care not to do so when having regard to the fact that, during both robberies, the applicant and his co-offender were not simply “armed with an offensive weapon”, proof of which feature was necessary to establish the elements of the offence of armed robbery, weapons and projectiles were additionally used during the commission of the offences.

46. [145]

    To be armed has a meaning which “includes bearing or having the immediate physical possession of the weapon” pursuant to s 4 of the Crimes Act, which is available for use. Thus, the element of being armed for the purposes of an offence contrary to s 97(1) is proved if the evidence establishes to the criminal standard that the offender had on or about him or herself the particular weapon and it was available for use. To in fact use a weapon goes beyond that which is required in proof of the element of being armed.

47. [146]

    When assessing the objective gravity of the offences the sentencing judge had regard to the fact that not only were the applicant and his co-offender armed, use was made of the weapons or other instruments, increasing the gravity of the offences. During the first robbery the applicant was armed with a handsaw; he also used the handsaw by lunging at Mr Prasad with the weapon, forcing him to jump out of the way or be struck by it. In the second of the robberies, the applicant was armed with a knife, and additionally took up a bottle and threw it towards Mr Parikh. Those features made the offences more serious than one committed without use of the weapon or any other instrument, as the sense of threat and violence was heightened, no doubt with a commensurate increase in the fear felt by those present. As Schmidt J said in Johan v R [2015] NSWCCA 58 at [116] (of a s 97(2) offence, although the principle is the same), with the concurrence of Leeming JA and Simpson J (as her Honour then was):

48. [147]

    No error is demonstrated.

49. [148]

    The applicant has failed by Ground 3 to show that the sentencing judge acted upon a wrong principle, or misapplied principle.

50. [149]

    Ground 2, dealt with last as it relies, at least to some extent, on the errors asserted by grounds 1 and 3, complains that the sentence imposed upon the applicant was unfair and unjust. Only brief submissions were advanced in support of this ground, which can be quickly dealt with.

51. [150]

    The principles applying to such a ground have been helpfully summarised in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221, at [443]. It is not intended here to re-state them.

52. [151]

    The sentence imposed upon the applicant had to recognise two violent armed robberies, offences which carry a maximum sentence of 20 years imprisonment, committed at night, in company, against service station attendants, who were vulnerable victims (as described in Henry at [162(v)]). Both offenders were armed, and weapons or projectiles were used to increase the threat to the victims, to encourage their compliance. In the second robbery the applicant also threatened to kill one of the attendants, doubtless heightening the fear of those present. The offences were committed for financial gain by an applicant with, setting aside the s 23 evidence, a relatively limited subjective case. The sentence imposed had to make the applicant accountable for his crimes, adequately punish him, and deter him and others from such crimes in the future; it had to recognise the harm done, and denounce the conduct.

53. [152]

    A person sentenced for two armed robberies should ordinarily expect to receive a full-time custodial sentence: Henry at [113]; R v Roberts (1994) 73 A Crim R 306 at 308; R v Crotty (Court of Criminal Appeal (NSW), 29 February 1994, unrep) at 5. This matter does not fall outside that usual expectation. The applicant has failed to demonstrate that the aggregate sentence imposed upon him was manifestly excessive.

54. [153]

    This ground should be dismissed.

Conclusion

1. [154]

   For these reasons I propose the following orders:

   1. (1)

      Leave to appeal is granted;

   2. (2)

      The appeal is dismissed.