The Queen v Morton[1997] QCA 266

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 217 of 1997

Brisbane

[R  v.  Morton]

THE     QUEEN

v.

DAREN JOHN MORTON

(Applicant) Appellant

Pincus J.A.

Shepherdson J.

White J.

Judgment delivered 29 August 1997

Separate Reasons for Judgment of each member of the Court, Shepherdson J dissenting.

1. APPLICATION GRANTED.

2. APPEAL ALLOWED.

3 SENTENCES IMPOSED REDUCED, ALL TO BE CONCURRENT AS FOLLOWS:  FOR THE ROBBERY, 4 YEARS;  FOR THE BREAKING, ENTERING AND STEALING, 2 YEARS;  FOR THE BREAKING AND ENTERING WITH INTENT, 1 YEAR.

CATCHWORDS: CRIMINAL LAW - appeal against sentence - armed robbery, breaking entering and stealing, breaking and entering with intent  - late night armed robbery of service station - applicant was driver of car to and from service station - sentences of 6 years, 4½ years and 2 years imposed respectively - whether sentences imposed too high.

Dempsey (C.A. No. 261 of 1995,  22 August 1995)

Hammond (C.A. No. 445 of 1996, 10 December 1996)

Pight v. The Queen (1995) 64 SASR 215

House v. The King (1936) 55 CLR 499

Counsel:  Mr P M Ridgway for the respondent.

Applicant/appellant appeared on his own behalf.

Solicitors:  Director of Public Prosecutions (Queensland) for the respondent.

Applicant/appellant appeared on his own behalf.

Hearing date: 8 August 1997.

REASONS FOR JUDGMENT -  PINCUS J.A.

Judgment delivered 29 August 1997

This is an application for leave to appeal against sentence, the applicant having been convicted in the District Court of armed robbery, of breaking, entering and stealing, and of breaking and entering with intent to commit an indictable offence.  In respect of these offences he was sentenced to, in order, 6 years, 4½ years and 2 years imprisonment.  It is common ground that the principal sentence of 6 years is a high one and the question for our consideration is whether it is so far from a proper sentence as to require correction.

It is necessary to set out the facts in a little detail, but a preliminary observation, in view of remarks made by the learned primary judge, is necessary.  The question before the Court is not whether each of us would, left to our own devices, personally favour a lighter or heavier sentence.  No doubt some judges would always be inclined to think that the general level of sentencing, prevalent at a particular time, is too severe or not severe enough, either over the whole range of offences or in respect of particular offences such as those of a sexual nature or offences of violence.  Obviously there is no level of sentencing which can be said to be "correct", in an abstract way;  a little study will disclose that some other respectable legal systems impose penalties much harsher or less harsh than those imposed in Australia;  incest is perhaps an example of an offence the seriousness of which is regarded quite differently in various countries. 

The point of these remarks is to emphasise that consistency in sentencing is notoriously difficult to achieve, but nevertheless of great importance if we are to have fair administration of the criminal law.  It is this Court which has, under Queensland law, the primary responsibility for determining (subject to the statutory maxima) whether challenged sentences are at a proper level and it is the responsibility of all the State’s magistrates and judges to respect that position.

One night the applicant and one Haines, intending to break into a shop in Flinders Street, West Townsville, being a shop operated by a Mr Parkes, broke into another shop, by mistake.  Subsequently, they both broke into Parkes’ shop, doing some damage in the process, and took away about $30,000 worth of property.  It appears that after stealing these goods Haines and the applicant went to Haines’ residence and spoke there to one Miles.  The applicant said something like, "Check out what we scored" and showed the proceeds of the theft to Miles;  both the applicant and Haines were in a celebratory mode.  Some of the property was recovered;  the value of the property which was not recovered plus the damage done amounted to about $18,000.

The offences just described - breaking and entering with intent and breaking, entering and stealing were the first offences in the applicant’s record other than a minor assault committed in 1994, in respect of which no conviction was recorded and the applicant was discharged absolutely.

To come now to the armed robbery, the most serious of the offences with which we are presently concerned, the applicant was the driver of a car which transported Haines to a location close to a service station and later drove him away.  The applicant was made criminally liable under s. 7 of the Criminal Code, not being directly a participant in the robbery.  He was observed in and near the car, acting furtively, at the time when Haines was off committing the robbery.  What Haines did will now be set out;  but one must keep in mind that it is unknown to what extent the applicant could have anticipated the way in which Haines would behave.

Haines went into the shop at the service station and got money ($145) out of the cash register while the attendant, a Mr Lee, was working in the forecourt.  Mr Lee came back in time to see Haines leaving.  He followed Haines and, on turning a corner, was confronted by Haines with a rifle, complete with telescopic sight;  it was loaded.  A bus arrived at the service station and some of the passengers disembarked.  When they came close to where Mr Lee and Haines were the rifle was waved at them and they were told to go back to the bus which they did.

Haines told Mr Lee to get onto his knees, which he did.  Haines put the muzzle of the rifle in the middle of Mr Lee’s forehead and told him not to look up until Haines had gone;  Mr Lee obeyed.  Haines then ran to the car at which the applicant had been waiting and was driven off by the applicant.  The police were advised of the robbery and a police car was positioned so as to intercept vehicles coming in the direction in which the applicant was driving.  But before reaching the police car the applicant or Haines turned off the headlights of the car in which they were travelling and the car was driven off the road into some scrub.  The police followed.  When they caught up with the applicant and Haines they found there were two rifles in the car, both with telescopic sights and both loaded.  Initially the applicant, while admitting having driven the car, denied any knowledge that it was to be used for a robbery.  He took a similar stance in respect of the theft of the goods from Mr Parkes’ store, saying that he did not know where property taken from the store came from.  Subsequently, it seems clear from what the primary judge was told, the applicant explored with his legal advisers the possibility of contesting these charges, but eventually it was decided to plead guilty;  the plea was late.

To return to the effects of the robbery, Mr Lee is said to have had a change for the worse in his attitude when dealing with customers and to be apprehensive that as a middle‑aged man his fearfulness may affect his prospects of getting alternative employment.  Mrs Donovan, one of his employers, has complained of difficulty in finding people willing to do the night shift at the service station.  Mrs Donovan has noticed a change for the worse in Mr Lee since the offence was committed and she herself has become rather depressed.

The applicant, who was 23 years of age when these offences were committed, appeared for himself in this Court.  He seems an intelligent and articulate person but, regrettably, has not evinced any significant remorse.  Nor does it appear that the applicant’s participation in these offences was prompted by any pressing need for money.  But from the information available to the primary judge one must tend towards the view that the applicant has every chance of avoiding being involved in similar criminal activity, after his release from prison.  The prospect of the applicant rehabilitating himself must be thought to be high.

Dempsey (C.A. No. 261 of 1995, judgment delivered 22 August 1995) was a rather similar case in which, by a majority, this Court gave leave to appeal and itself imposed a sentence of 4 years imprisonment.  The facts may be gathered in some detail from the principal judgment, that of Thomas J.  There, as here, the offender was guilty of breaking, entering and stealing.  This aspect of the matter was less serious than in the present case, because only one lot of premises was broken into and the value of what was taken was substantially lower.  Dempsey too was involved in the robbery of a service station;  but he was not a mere accessory as was the applicant, but rather the principal and sole offender.  He robbed a service station armed with a knife, threatening to cut up the attendant, who initially declined to give him money.  Dempsey was 27 years of age when he committed the offence and had what is described as a minor criminal history including two offences of dishonesty which "do not appear to have been serious matters".  There was a plea of guilty.

Looking at the two cases broadly, it seems difficult to justify the imposition of a sentence on the applicant 50% higher than that imposed on Dempsey, keeping in mind that Dempsey was the actual perpetrator of the armed robbery, had a more significant criminal history and was some years older than this applicant.

I have also derived assistance from the more recent decision of this Court in Hammond (C.A. No. 445 of 1996, judgment delivered 10 December 1996) and the joint judgment of Thomas, Dowsett and White JJ. in that case.  The reasons include a detailed analysis of a number of comparable cases a number of which are presently relevant.  The primary judge discussed Hammond and paid careful attention to a number of other decisions.

The applicant does not present as a person attracting sympathy, but if one focuses upon the need for consistency, it does not appear to me easy to defend a principal sentence as high as 6 years for these offences.  Certainly it could not be defended in relation to the applicant’s participation (as driver) in the robbery, considering his youth, pleas of guilty and virtual absence of prior convictions.  Nor does it appear to me that the breaking and entering with intent offence and the breaking, entering and stealing can take the proper penalty to the 6 year mark;  these offences were after all the first of any significance ever committed by this 23 year old.

The primary judge has taken into account all relevant matters and plainly approached the case with care.  Nevertheless, I am of opinion that his Honour’s conclusion cannot be upheld.  I would grant the application, allow the appeal and reduce the sentences imposed, all to be concurrent, as follows:  for the robbery,  4 years;  for the breaking, entering and stealing, 2 years;  and for the breaking and entering with intent 1 year.

REASONS FOR JUDGMENT - SHEPHERDSON J.

Judgment delivered 29 August 1997

I have had the benefit of reading the reasons for judgment prepared by Pincus JA.  As I disagree with him as to the outcome of the application, I shall state my reasons.  First though, I accept his resume of the circumstances of each offence save that I would add the following further facts:-

1. All offences were committed during September 1995 - the break and enter with intent and the break and enter and stealing both occurred on 9 September, and the armed robbery on 30 September.

2. The armed robbery occurred at about 3 am.

The sentences imposed on the applicant are ones in respect of which the "totality principle" was applied by the learned sentencing judge.  In Mill v. The Queen (1988) 166 CLR 59, the High Court discussed this principle.  Application of the principle requires the sentencing court to "look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences" (see p. 63).  The record in the matter now before this court shows the learned sentencing judge had that principle firmly in mind.

Of the offences to which the applicant had pleaded guilty, the armed robbery was the most serious.  For this offence he was exposed to a maximum penalty of life imprisonment (see s. 411 of the Criminal Code).  By that section any person who commits the crime of robbery is liable to imprisonment for 14 years.  However, "If the offender is or pretends to be armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, the offender wounds or uses any other personal violence to any person, the offender is liable to imprisonment for life" (s. 411(2)).

In the present case, the applicant has, by his plea of guilty admitted that he was armed with a rifle and that he used personal violence to David Woodward Lee.  The applicant was the driver of the "get-away car".  There can be no doubt that a rifle is a dangerous weapon.  It can be seen from s. 411(2) that armed robbery includes a situation where the offender is armed with any one of a range of dangerous or offensive weapons or instruments.  Furthermore, the presence of any one of the circumstances of aggravation specified in s. 411(2) increases dramatically the maximum penalty.  It is apparent that in recent years this Court has attempted to obtain consistency in sentencing.  To that end, one frequently sees mentioned a "range of sentences".  Sometimes the word "tariff" is exchanged for the phrase "range of sentences".   In Pight v. The Queen (1995) 64 SASR 215 the Full Court of the Supreme Court of South Australia was concerned with an appeal against a sentence; the offence then before the court was one for which the prescribed maximum penalty was life imprisonment.  At p. 218 Cox J. said:-

"I do not think there is or ever has been a tariff for causing grievous bodily harm with intent to do grievous bodily harm.  The crime has, like manslaughter, too big a range of seriousness for that with the worst cases falling just short of attempted murder."

I would, with respect, adopt His Honour's words which in my view apply to all offences for which the maximum penalty is life imprisonment (other than where such maximum is mandatory).

In my view it is not possible to say that there is a tariff or range of sentences for robbery with any one of the circumstances of aggravation mentioned in s. 411(2).

I note that the Director of Public Prosecutions has prepared a 4 page document headed "Armed Robbery - Service Stations" on which appears, in potted form, short particulars of a number of cases of armed robbery, and also armed robbery with an additional circumstance of aggravation.  Such documents, which have been called "schedules", are apparently standard parts of a Crown Prosecutor's equipment at trial and are tendered to a judge during sentencing submissions.  In the instant case Exhibit no. 8 before the learned sentencing judge contains the "Armed Robbery-Service Stations" schedule and Exhibit no. 13 is styled "Break and Enter schedule (under 5 break-ins)".

I cannot help wonder whether these schedules for different types of offences, although obviously intended to assist the learned sentencing judge and provide him with the sought after "range" do not tend to cause a sentencing judge to lose sight of the maximum penalty which the legislature has provided for a particular offence and instead focus on "the range" put forward.  If that were to occur, there is in my view a distinct risk that the intention of Parliament will be ignored and the sentencing judge may impose a sentence which does not reflect the criminality of the offender's conduct but something less.

The cases listed in any such schedule appear chosen by a person or persons in the office of the Director of Public Prosecutions.  What criteria are used is unknown.  What is clear is that not all the sentences for armed robbery of a service station are put before a sentencing judge.   Obviously that would not be possible.  Furthermore, the schedule of "Armed Robbery - Service Stations" in the present case shows that some armed robberies were committed by persons armed with a rifle, others by persons armed with a knife; others had a shotgun, or a replica pistol.  In my view, a robbery committed by a person armed with a knife may, as a general rule, not be thought as serious as a robbery committed by a person armed with a rifle or a shotgun.   Thus the penalty for say an armed robbery where a rifle is used will normally be greater than an armed robbery where a knife or stick is used.  That is not to say that armed robbery where a knife is used is not a serious offence - it is.

In my respectful view the vices contained in the "schedule system" are:-

1. the sentencing court's lack of knowledge of the method of selection used by the person or persons compiling the schedule; - are the cases truly representative or are they chosen to illustrate a specific range; does the compiler deliberately omit relevant cases outside the range in order to achieve a certain range?

2. the absence of other cases which no doubt could be put before the learned sentencing judge.

3. the risk that the maximum sentence fixed by Parliament is overlooked and that the sentencing judge focuses instead on the range produced by the schedule.

4. no two cases are identical - there are many variations in circumstances between particular cases - e.g. in a case of armed robbery - the weapon used, the age of the offender, presence or absence of a prior criminal history and if present, its relevance; whether the offence was committed while on parole or probation to name a few.

In addition, in the instant case, the armed robbery of a service station schedule includes a reference to a case (S.A. Jenkyns CCA 58/86) which was expressly disapproved by the High Court of Australia in The Queen v. Mill (supra).  That particular schedule is therefore hardly likely to inspire confidence in its accuracy and reliability.

In my respectful view, the initial approach of this Court in considering an application for leave to appeal against sentence should not be to strive for a range or tariff but first of all to apply the principles stated in House v. The King (1936) 55 CLR 499 at pp. 504-5 in the following well-known passage;

"But the judgment complained of, namely, sentence to a term of imprisonment, depends upon the exercise of judicial discretion by the court imposing it.  The manner in which an appeal against an exercise of discretion should be determined is governed by established principles.  It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.  It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.  In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.  . . . With respect to the particular jurisdiction conferred on courts of criminal appeal, limitations upon the manner in which will be exercised have been formulated."

Cases show that an appellate court in its criminal jurisdiction will interfere only if a sentence is manifestly excessive.  It may be that in a given case this Court will decide that although no error in the exercise of the discretion appears, nevertheless the sentence imposed is so far beyond the range for that case, that an error has been made resulting in a manifestly excessive sentence.  In such a case, this Court will interfere to prevent a substantial wrong. 

In the case presently before this Court the applicant has not demonstrated any error in the exercise of the sentencing discretion.  Further, even though there is no discernible error I am unable to see that the penalty imposed on the applicant as driver of the get away car for the major offence namely armed robbery in company was such that a substantial wrong has in fact occurred.  The penalty imposed, in my view also reflects application of the totality principle.  In The Queen v. Patane (CA 246 of 1996 - Judgment delivered 25/10/1996 but unreported) this Court said:-

"The question nevertheless is whether or not the sentences imposed by the sentencing judge were manifestly excessive in all of the circumstances.  It was not disputed that in the approach to sentencing, a Court must have regard to the totality of the criminality involved.  It was also accepted by Counsel for the applicant and also contended by Counsel for the Crown, that it was perfectly permissible for the sentencing judge in sentencing for the more serious offence to add something on for the fact that he was sentencing for several serious offences, particularly where it was not possible to make such sentences partly cumulative."

That passage confirms me in the views I have just stated.

  I would add by way of illustration, a decision of the Queensland Court of Criminal Appeal given over 60 years ago.   R. v. Holloway (No. 2) (1937) QWN2 illustrates well the need not to try to find a range for various types of robbery with any of the circumstances of aggravation, but to treat each such case on the basis that the maximum penalty is imprisonment for life.  In Holloway the applicant was a young man who had pleaded guilty to a charge that on 15 June 1936 on the mail train near Gympie, he stole with violence 5 pounds 4 shillings and a railway ticket and then and there used personal violence.  It appears from the short note that he had without warning attacked an infirm and physically weak old lady, who was sitting opposite him in a public railway train at a time when there was no-one else in the compartment.  He attacked her not only once but twice, and in the first attack made her fall over unconscious.  He was sentenced to 15 years imprisonment with hard labour. Each judge sitting in the Court of Criminal Appeal gave separate reasons, and none was prepared to interfere with the exercise of the learned trial judge's discretion.  Webb J. considered "there was a need for such punishment as would act as a deterrent".  Henchman J. said "The case calls for a severe sentence".   It may be said that that case was the product of a past age and that we live in more enlightened times.  The Penalties and Sentences Act 1992 now governs the exercise of the sentencing discretion and courts are obliged to pay due regard to what Parliament has provided in that Act. 

However, Holloway demonstrates well that the infirm old lady sitting in a railway compartment with only the young man Holloway for company, was, as events subsequently showed, in need of protection.  This she did not have.  In my view, in the case now before this court and indeed in Holloway's case the matter of deterrence was important and required to be reflected in the sentence imposed.  The courts, by their sentences can give protection to people such as Mr Lee, the victim in the present case.

Service station attendants working alone in the early hours of the morning are particularly vulnerable; in my view, for offences of the type now before this court, sentences should be appropriately severe to let persons minded to behave as the present applicant did, know that if caught, they will be severely punished.  The present case is a serious armed robbery. 

In R. v. Cook (1967) 2 NSWR 667 the Court of Criminal Appeal of New South Wales had before it an appeal by the Crown that a sentence imposed was inadequate.  In that case the respondent had pleaded guilty to a charge of assault and robbery while armed with an offensive weapon.  He was sentenced to imprisonment for a period of 5 years from 23 November 1967 being the date of the offence and arrest, and the non-parole period was fixed at 2½ years.  The offence had been committed at about 8.50 p.m. at Waitara Railway Station; the person assaulted was a female railway employee aged 46, who had been alone in the ticket office.  Just after a train left the station she left the ticket office, locking the door and went to change the indicator.  The respondent came up behind her and hit her from behind with the butt end of a knife - the knife was used as a bludgeon rather than a knife.   The respondent was a 30 year old man with no prior convictions and there was evidence that the crime was out of character for him.  At p. 669 the Court of Criminal Appeal said:- 

"It is relevant further to observe that Street CJ said:-

Public servants such as night officers and station masters, often at lonely wayside stations, are exposed to attacks and depredations of miscreants such as the prisoner and his accomplice.  They deserve the protection of the law; they need it and it is for the Court to give it to them."

With great respect, I would adopt the whole of that statement.  It is as relevant today - arguably more so - as it was then.  Of more than passing interest to note is that the Court then went on to say:-

"The offence committed by the respondent in the present case follows a well-known pattern where, in recent times persons alone at night in charge of railway stations or garages or other places providing services to the public are assaulted and robbed with varying degrees of menaces or violence.  The offence is a serious instance of that pattern."

In the thirty years since Cook, one asks one-self has there been any change in that type of conduct?  I regularly and frequently read in the newspapers and see on the television references to what seem to me to be increased numbers of such types of offences.  In Cook the Court of Criminal Appeal increased the sentence to 8 years imprisonment.  I do not consider the sentence in Cook when dealing with the present appeal.  I have set out above what I consider the relevant passages from the judgment.

In my respectful view this court, although seeking greater consistency in sentencing must on the hearing of applications such as the present bear firmly in mind the principles which I have set out earlier and on which appeals against the exercise of a sentencing discretion are dealt with.  In my respectful view, both the applicant and the Crown as respondent are entitled to no less than that.  If the application of such principles results in a reduction in the sentence imposed, such reduced sentence may at some future time be referred to a sentencing court or a subsequent Appellate Court.  However, the reduced sentence cannot be said to be the "correct sentence".  In my view there never can be a "correct sentence" where a court exercises a discretion.  Similarly, if the appellate court, applying the appropriate principles, dismisses the application for leave to appeal against sentence, it is not endorsing the sentence as the "correct sentence".  In my respectful view in cases where life imprisonment is the maximum penalty this Court should not endeavour to impose tariffs or ranges of sentences for what are really, as appears from the schedules prepared by the prosecution, "sub-classes" of particular types of offences.  Once that course of imposing tariffs is followed there is a  danger  that sentencing courts and appellate courts will tend to lose sight of the real range of penalties imposed by the legislature for the particular offence then before the court, and in lieu, substitute the "court - chosen" range or tariff.                 In my respectful view, the primary sentencing courts of this State, be they in the Magistracy, the District Courts or the Trial Division of this Court enjoy advantages over this Court.  Each of them is at the "coal face" and has the atmosphere of the particular hearing which has resulted in a particular sentence.  Each sentencing court does his or her best - a task not made any easier by the Penalties and Sentences Act 1992.  With great respect to those who may hold different views, I consider that all applications for leave to appeal against sentence (other than appeals by the Attorney-General) must be considered in accordance with the principles stated in House v. The King (supra) rather than deciding the outcome of the application against what is perceived by this Court to be a range for sentencing for the particular offence.

Finally, there is an added danger in the imposition of a tariff or range of sentences for a particular type of offence.  The danger is that sentencing courts will feel obliged to remain within the parameters of the range even though the type of offence is being committed with greater frequency than in previous times.  If that were the situation, then obviously the deterrent aspect of sentencing is taking a back seat in the sentencing process.  The sentencing court, in order to justify breaking beyond the range or tariff may need evidence of increase in the number of the particular offences being committed; it may need evidence of the increased cost to the community resulting from such types of offence.  In R. v. Joyce (1986) 1 Qd.R 47, a case concerning quite large numbers of burglary and housebreaking with substantial loss of property and no recovery, the Insurance industry put before the sentencing judge evidence of the prevalence of those types of offence and the increased costs to the community flowing from them.  On appeal the Court of Criminal Appeal after consulting other members of the Court reappraised the sentencing pattern for those types of offences.  Joyce is important because it shows that the prosecuting authority has an obligation to keep statistics and data and at appropriate times inform sentencing courts by producing suitable evidence of the need to review upwards the sentencing patterns for particular offences.  In this computer driven age, such an obligation should not be very difficult to discharge.   I do not suggest that such data be limited to offences where convictions ensue.  I should expect such data to include unsolved offences (e.g. burglary or housebreaking) for which no person has been arrested and charged.

I would dismiss the application.

REASONS FOR JUDGMENT - WHITE J

Judgment delivered 29 August 1997

I have had the opportunity of reading the reasons for judgment prepared by both Pincus JA and Shepherdson J.  I agree with the orders proposed by Pincus JA that the appeal ought to be allowed substantially for the reasons which he has set out.  Since Shepherdson J has dealt with matters of  principle in respect of sentencing I would wish to add some comment of my own.  I accept the approach which an appellate court to sentencing should take to appeals reflected in the passage quoted from House v. The King (1936) 55 CLR 499 at pp. 504-5 as quoted by Shepherdson J.  I accept also his observations that there can never be a "correct" sentence for an offence where the sentencing court exercises a discretion, but as this court observed in Bainbridge, Cullen and Ludwicki (1994) 74A Crim R 265 at p. 268

"It is important that crime be suppressed by appropriate sentences:  but a measure of uniformity and consistency in sentence is also necessary, lest the public lose confidence in the justness of the courts' sentences."

Those were armed robbery appeals by young offenders.  The court was critical of the failure of counsel below to assist on the question of comparable sentences and annexed to the judgment a document prepared by the Director of Public Prosecutions office setting out in table form what were said to be comparable sentences.

As Shepherdson J has mentioned there can be disadvantages in relying too completely upon schedules.  The court observed in Hammond CA No 445 of 1996 (judgment delivered 10 December 1996) at p. 10

"In looking for a measure of consistency if not uniformity in a review of the armed robbery cases schedules can be of assistance in giving an overview of the range of sentences imposed against certain basic factors such as age of the offender, previous relevant convictions, whether a weapon was used and so on.  But to appreciate if any particular case is of assistance it is necessary to have regard to the full judgment.  Sometimes factors which the compiler of the schedule may not have considered particularly relevant may have been omitted from the schedule but which, when appreciated, cause the sentence to be understood differently."

Hammond was an appeal against sentence for three charges of armed robbery, one of attempted armed robbery and two charges of unlawful use of a motor vehicle with circumstances of aggravation by a 25 year old heroin addict with a very minor previous offence for which no conviction had been recorded.  His head sentence of 7 years for the armed robberies was reduced to 5 years after an extensive survey of armed robbery sentence appeals by offenders of about that age and younger.  That decision and virtually all armed robbery sentence decisions emphasise that deterrence is a significant factor in the exercise of the sentencing discretion for such offences.  Reference is regularly made in the decisions to the vulnerability of persons who provide services to the public at night particularly at service stations, pizza deliveries and small shops and the need to take a firm line in sentencing those who threaten them.  I endorse those comments and emphasise that the relative ease with which such attacks can be made and the prevalence of the offence does require both personal and general deterrence in the imposition of sentences.

The governing principles to be considered when sentencing as set out in s. 9 of the Penalties and Sentences Act 1992 include all the matters to which Shepherdson J has referred including prevalence of the offence, s. 9(2)(h), but if the court is to move away from current sentencing trends and increase overall the penalty for armed robbery I would not see this case as the appropriate vehicle for that shift.  On a consideration of recent sentencing decisions of this court for armed robbery particularly those analysed in Hammond, I agree with Pincus JA that the sentence imposed below is too high and agree with the orders which he proposes.