R v Matauaina[2020] QCA 274

SUPREME COURT OF QUEENSLAND

1. [1]
   FRASER JA:  I agree with the reasons for judgment of Brown J and the orders proposed by her Honour.
2. [2]
   BODDICE J:  I agree with Brown J.
3. [3]
   BROWN J:  On 7 February 2020 the applicant was convicted, on his own pleas of guilty, of one count of entering a dwelling with intent at night whilst armed in company (Count 1), one count of common assault (Count 3), one count of robbery armed in company (Count 4), one count of assault occasioning bodily harm whilst armed/in company (Count 9), and two counts of unlawful use of a motor vehicle (Counts 10 and 11).  The offences arose out of events that occurred in May 2018 (the 2018 Offences).^[1]
4. [4]
   The applicant was sentenced for the 2018 Offences on 13 February 2020 to four and a half years’ imprisonment on counts 1 and 4, with lesser periods of imprisonment imposed on counts 3, 9, 10 and 11 to be served concurrently with the sentences imposed on counts 1 and 4.  The sentences for the 2018 Offences were however, to be served cumulatively upon a five years and two month sentence previously imposed on 16 September 2019 that arose out of events in June 2017 (the 2017 Offences).  The applicant will be eligible for parole on 25 September 2022 as a result of the learned sentencing Judge extending the parole eligibility date from 25 May 2021 to 25 September 2022.
5. [5]
   The applicant seeks leave to appeal the sentence imposed on 13 February 2020 on the basis that it was manifestly excessive.  At the commencement of the hearing, the applicant sought leave, which the Court granted, to add an additional ground of appeal, namely that the learned sentencing Judge erred in failing to take into account parity considerations in relation to the co-accused, Lucas James Pain.

Circumstances of offending

6. [6]
   The facts agreed for the purposes of sentencing were set out in a schedule of facts,^[2] which included the following as the circumstances in which the offending occurred.  The applicant, along with co-offenders Pain, De Veny and an unidentified male, entered the complainants’ house at approximately 11.15 pm to steal money that they believed was held at that property.  Pain was armed with a hand-gun.  De Veny was armed with knuckledusters.  The applicant did not go to the house armed but subsequently armed himself with a kitchen knife upon entering the house.
7. [7]
   Pain pointed the handgun at one of the complainants who was asleep in the bedroom and demanded that she get up and get out of bed.  Following the demands of Pain, she then went to the living room and sat on the lounge with another complainant.  One of the male occupants escaped and called friends for assistance.  Pain then asked the complainants “where’s the money?” and made reference to “drug money”.  The applicant, Pain and De Veny searched the house while an unidentified male watched the complainants.  Approximately 15-20 minutes later three men, including the male who had initially escaped, arrived and entered the house.  The applicant struck one of the men on the right side of the face and pushed him up against a wall.  Pain greeted the three men and invited them to “come in and sit down” in the lounge room.
8. [8]
   The applicant, Pain and De Veny continued to rummage through the house and located sums of money, car keys and a mobile telephone, which they subsequently stole.  When one of the men who had come to assist the complainants asked one of the complainants what the offenders were searching for, Pain demanded that the male move to the other side of the room.  He refused to move.  The applicant then approached him, pulled him up from the lounge, pushed him against a glass door and held the knife to his throat, causing a small cut which then bled.
9. [9]
   The applicant and co-offenders subsequently told the complainants and males to stay in the house and wait for them to leave.  The applicant and co-offenders threatened the complainants and their friends that if they called the police, their associates who were waiting down the street would shoot them.  Prior to leaving, Pain demanded that one of the complainants delete all CCTV footage.  Once logged into the CCTV system however the complainant observed that the cameras were offline.  The applicant then stated that he had tampered with the wires of the CCTV cameras prior to entering the house.  The defendants left, stealing two cars as well as other items they found.  One of the cars was driven by the applicant.  The ordeal lasted approximately 30-35 minutes.

The applicant’s antecedents

10. [10]
    The applicant was 26 years of age at the time of the offending and 28 at the time of sentencing.  The applicant entered a timely plea of guilty just prior to the commencement of his trial following negotiations with the Crown that resulted in some charges being discontinued.
11. [11]
    The applicant had a criminal history which was relatively minor, until his offending escalated in 2017, for which he was sentenced in 2019.  In that instance, he was convicted after a trial.  The same learned sentencing Judge sentenced the applicant for both the 2017 and 2018 Offences.  The 2017 Offences involved a premeditated and prolonged kidnapping of an individual, by the applicant and two co-offenders, in order to seek the repayment of a debt.  The individual had tendons in his legs cut to the bone by a co-offender of the applicant in order to prevent him from escaping.  He was kept captive by the trio for some 13 hours.  The applicant was the driver.  He was convicted of grievous bodily harm, kidnapping and other lesser offences.  The learned sentencing Judge expressly took into account a period of 16 months that the applicant had spent in pre-sentence custody and sentenced him to five years and two months with parole eligibility at 25 May 2021, which her Honour estimated was at about the halfway mark.  The effective head sentence was therefore six and half years, of which he had to serve three years.
12. [12]
    As her Honour had taken account of all of the presentence custody at the sentence for the 2017 Offences, none of it fell to be declared at the sentence for the 2018 Offences.^[3]
13. [13]
    The applicant was on bail for the 2017 Offences at the time of committing the 2018 Offences.

Sentencing submissions

14. [14]
    The Crown proceeded on the basis that the applicant was a principal offender in relation to all of the 2018 Offences as he was armed with a knife, used actual violence and drove one of the stolen vehicles from the house.  The Crown submitted that the cases reflected that the range for similar offending was four to five years and that the appropriate starting point for the applicant should be a sentence of five years.  However, taking into account totality considerations, the Crown contended that the sentence should be reduced to the lower end of the range and served cumulatively on the sentence of five years and two months that he was then serving for the 2017 Offences.  The Crown submitted that the applicant’s parole eligibility date should be extended by 16 months from the previous parole eligibility date, namely to 25 September 2022.
15. [15]
    The defence submitted that four years was an appropriate head sentence with parole eligibility extended by 16 or 12 months given the cumulative nature of the sentence.  The defence particularly relied upon the applicant’s plea of guilty, his family support and his relative youth, together with the effect of his time in custody, as mitigating circumstances in his favour.

Decision of learned sentencing Judge

16. [16]
    In sentencing the applicant, the learned sentencing Judge noted that it was his second involvement in “organised thuggery” and that he had been on bail at the time of the 2018 Offences.^[4]  Her Honour considered that while the applicant did not attend the house armed, he had to know that a gun was in the possession of Pain.  Her Honour also noted while there were limited physical injuries inflicted, the applicant was the most physical of the offenders.  In particular, her Honour considered that:^[5]

“The nature of your offending and your capacity to consciously carry out these sort of plans – and your willingness to resort to this kind of violence says something about your character.”

17. [17]
    Her Honour stated that, in light of the previous offending, the need for personal deterrence was a strong factor.  She also referred to the fact that the applicant had co-operated by pleading guilty, that his family was hopeful for him and stated that he had sought courses and work whilst in custody.  She considered that his involvement in the 2018 Offences confirmed that he presented a risk to the community and that his crimes called for a sentence towards the upper end of the range to punish, deter and denounce.  She imposed a sentence of four and a half years with parole eligibility at 25 September 2022, which was to be cumulative upon the sentence for the 2017 Offences, which she referred to as being a five year sentence.  In doing so her Honour, extended the parole eligibility date by 16 months.  That was less than one third of the four and a half year sentence, which would have been 18 months.

Grounds of Appeal

18. [18]
    The applicant contends that the learned sentencing Judge failed to take into account parity considerations arising out of the sentence of the applicant’s co-accused Pain.  He further claims that her Honour erred in her consideration of totality, having regard to the sentence for the 2017 Offences.
19. [19]
    The applicant contends that a four and a half year starting point for the applicant was appropriate, but claims that, her Honour failed to consider the effective sentence that had been imposed upon the applicant in relation to the 2017 Offences.  The applicant relies on the fact that her Honour incorrectly referred to the applicant serving a five year sentence for the 2017 Offences when in fact, the effective sentence that he was serving was a six and a half year sentence.  Further, the applicant contends that, when being sentenced for the 2018 Offences her Honour overlooked that he had served 16 months in pre-sentence custody, which was part of the effective sentence for the 2017 Offences, when determining whether the sentence was “just and appropriate”.
20. [20]
    The applicant contends that the issue of totality required that the head sentence and the parole eligibility date should have received greater moderation.  The applicant submits that he should have received a head sentence of three years to be served cumulatively with the sentence for the 2017 Offences, making the period that the applicant was liable to serve in totality, nine and a half years.  The applicant contends that he should be eligible for parole after serving a further 12 months from the date of sentence.
21. [21]
    The applicant contends that the same conclusion should be reached by reference to the principles of parity when regard is had to the sentences of his co-offenders Pain and De Veny.  The applicant contends that parity required due proportion between the sentences imposed upon Pain and the applicant.  The applicant’s counsel submitted that, in terms of the time to be served, the applicant had a justifiable sense of grievance when his sentence is compared to that of Pain.  While Pain was sentenced to serve a further 16 months in custody, which commenced on the day of sentence, he had only been in custody for 12 months at the time he was sentenced.  In contrast, the applicant had been in custody for over 20 months and the further period of 16 months that he has to serve was not to commence until he had been in custody for three years.
22. [22]
    The applicant submits that in having the applicant serve the same period of time in custody when it was cumulative on the three year period, as opposed to Pain serving the same length of time after only a 12 month period, offended both parity and totality considerations.
23. [23]
    The Crown submits that on a proper reading of her Honour’s reasons, her Honour was cognisant of the effective sentence being served by the applicant for the 2017 Offences and was accurate in stating that the applicant was “now serving five years” (emphasis added).  The Crown further relies on the fact that her Honour was the sentencing Judge on both occasions.  The Crown submits that the real issue is whether the effective 11 year sentence, of which the applicant has to serve at least four years and four months in custody, was “disproportionate to the applicant’s actual overall culpability”.^[6]  It submits that when regard is had to all of the relevant matters, the sentence was “just and appropriate”.

Parity

24. [24]
    The parity principle applies “where a sentence, imposed on an offender by a court, might be such as to engender a justifiable sense of grievance in the offender because a lower sentence had been imposed on a co-offender”.^[7]  As was recognised by McHugh J and Dawson and Gaudron JJ, respectively the majority of the High Court, in Postiglione v The Queen,^[8] the parity principle is based on the concept of equal justice and requires that there should not be a marked disparity between sentences imposed on co-offenders which gives rise to a justifiable sense of grievance.  That requires that like should be treated alike, but that, if there are relevant differences, due allowance should be made for them.^[9]  Different sentences may be imposed upon like offenders to reflect different degrees of culpability or circumstances such as differences of age, background, criminal history or general character.^[10]  According to Dawson and Gaudron JJ in Postiglione discrepancy or disparity are not simply questions of the imposition of a different sentence for the same offence but a question of due proportion between those sentences having regard to the different circumstances of the co-offenders in question and their different degrees of criminality.
25. [25]
    Pain who was 29 years of age at the time of sentence was sentenced to an effective sentence of five years and approximately three months,^[11] to be suspended after serving a further 16 months.  At the time of sentence, he had been in custody for 12 months serving a sentence for drug offending and had been eligible for parole four months prior to sentence.  A period of 96 days was not declared on the basis that her Honour gave Pain the benefit of a suspended sentence.  He had a lengthy criminal history mostly for drug related offences.  He had a more significant criminal history in some respects than the applicant, but not in relation to previous organised offending like the applicant.  While he had a conviction for grievous bodily harm, that was some ten years prior to the present sentence.  He had been convicted for possession of schedule 1 drugs on two occasions.  He was on bail for aggravated possession of a schedule 1 drug at the time of the 2018 Offences.  He only pleaded guilty on the eve of trial.  He did have a number of mitigating circumstances including a period of enforced sobriety, evidence of some rehabilitation, the support of his parents and the offer of work upon his release.
26. [26]
    Pain was sentenced on the basis that he had a significant role in the 2018 Offences.  Pain was armed with a hand-gun, made threats to the complainants and appeared to be the ring leader as he made most of the demands.  The applicant’s offending was not however, regarded by her Honour as significantly less culpable than Pain insofar as he had armed himself with a knife upon entering the house, played an active role in the 2018 Offences and inflicted physical violence upon the complainants, albeit no significant physical injuries were inflicted.  Her Honour considered that all three offenders were active in the burglary and the armed robbery and that there must have been at least some level of planning and organisation behind it.  She did however accept, as was submitted, that De Veny was in a different position from Pain and the applicant.
27. [27]
    The applicant was slightly younger than Pain and had indicated that he would plead guilty the week before trial, after the prosecution agreed to discontinue a number of charges.  His criminal history was not as extensive as Pain’s or as serious, save that, as noted by her Honour, he had been involved in organised offending in the 2017 Offences.  The 2017 Offences involved significant violence being inflicted on the victim by a co-offender and the victim was held captive in significant pain for some hours.  Unlike the other offenders, his involvement in the 2018 Offences was not linked to drug offending.
28. [28]
    De Veny was 22 years of age and the youngest offender.  Quite correctly, neither the applicant’s counsel nor the Crown suggested that he was in a comparable position to his co-offenders.  Rather, the applicant suggested that his sentence represented the lower end of the range applicable to this offending.  He was armed with a knuckleduster but did not use actual violence.  He had a lesser criminal history mostly linked to drug offending.  He did not have any offences involving serious violence in his criminal history.  He committed the 2018 Offences while on probation and on bail.  He had in mitigation relevant personal circumstances, problems with drugs, evidence of remorse and had been undertaking an apprenticeship.  He had been accepting psychological support and had strong references, all of which persuaded her Honour that he had real prospects for his future.  He also had an early plea of guilty.  He was, at the time of sentence, serving a previous sentence for dangerous operation of a motor vehicle and breach of a probation order in relation to drug offending in the Supreme Court of Queensland.  Her Honour considered imposing a cumulative sentence, stating that “any cumulation would have to come with the usual care to avoid an oppressive result”.  Her Honour determined, however, that the present sentence should commence on the day of sentence, even though he had three months of his previous sentence to serve.  He had been in custody for some six months.  He was sentenced to three years imprisonment for the most serious offences with a parole date set at 12 December 2020.  Her Honour did not declare 28 days spent in pre-sentence custody.
29. [29]
    Both Pain and De Veny had become eligible for parole for their previous sentences prior to the sentences being imposed for the 2018 Offences.
30. [30]
    Whilst the applicant has framed the first ground of appeal in terms of parity by reference to the sentences that Pain and the applicant were serving for other offending as well as the 2018 Offences, the complaint of the applicant is, in the circumstances of this case, one more properly characterised as one of totality.  While account must be taken of a previous sentence a defendant is serving, in terms of parity, it will generally, but not in all cases, be a point of distinction in sentencing.
31. [31]
    Dawson and Gaudron JJ, with whom Kirby J agreed, in Postiglione considered, in the context of the particular facts of that case, that the total effect of a sentence of a co-offender must be considered, not only the increase in time to be served on top of a prior sentence.  Dawson and Gaudron JJ in particular had regard to the non-parole period and the time already served^[12] in determining that Postiglione did have a justifiable sense of grievance.  While their Honours recognised that the custodial situation may have no comparison to a co-accused and different criminal histories and custodial patterns may be such as to justify a real difference in the time each will serve in prison, their Honours considered that the previous sentences imposed upon Postiglione and Savvas were effectively brought to an end by the sentence under appeal.  Both co-offenders had been serving time for previous drug offending.  In those circumstances their Honours considered that Postiglione’s criminal history and criminality for the offences may properly be compared with the same matters as they pertained to Savvas.
32. [32]
    The present case is quite different from that considered in Postiglione.  In Postiglione the sentences imposed brought to an end the previous sentences making the extension of those sentences, by reference to the previous time served, a relevant point of comparison.  In the present case, the sentences of Pain and the applicant did not bring their previous sentences to an end.  In this case, the sentences of Pain and the applicant by reference to the previous sentence they were serving and the present sentence, resulted in Pain’s total sentence being eight years and seven months to serve 28 months, as opposed to the applicant’s total sentence being 11 years to serve four years and four months.  The circumstances of the previous offending of Pain and the applicant for which they were serving time were quite different, unlike in Postiglione.  Pain had become eligible for parole some four months prior to the present sentence being imposed.
33. [33]
    While the criminal culpability of Pain and the applicant for the 2018 Offences was not significantly different, there were a number of points of difference between the two co-offenders.  Her Honour appeared to adopt a higher starting point for Pain of between five and five and a half years and imposed an effective sentence of five years and approximately three months to serve a further 16 months.  Her Honour appeared to adopt a slightly lower starting point of five years for the applicant and the head sentence imposed was one of four and a half years.  The significant points of distinction between Pain and the applicant were the nature of the prior offending for which they were already serving time in custody and the fact that Pain had greater circumstances of mitigation.  The offences for which Pain had relevantly been in custody were drug offences and, unlike the applicant’s 2017 Offences, did not bear similarities to the 2018 Offences.  The applicant was, however, on bail for a similar offence at the time of committing the 2018 Offences.  While Pain had a prior conviction for grievous bodily harm, it was dated having occurred some 10 years prior to the 2018 Offences.  A head sentence was imposed upon Pain which was effectively nine months longer than that imposed upon the applicant and Pain’s time in custody for the 2018 Offences was effectively 19 months,^[13] in circumstances where he had shown steps towards rehabilitation for drug use.
34. [34]
    While the applicant was not eligible for parole for the 2017 Offences for another 15 months at the time of the sentence, that was the consequence of the serious offending compromising the 2017 Offences for which he was sentenced after trial.  Although Pain’s sentence was to be served concurrently with his previous sentence, the applicant’s head sentence was shorter than Pain’s head sentence and the applicant was eligible for parole after serving a further 16 months for the 2018 Offences, less than one third, not effectively 19 months as was the case with Pain.  Given the applicant’s previous offending and his committing these offences while on bail for the 2017 Offences, the cumulative sentence imposed upon the applicant was appropriate.
35. [35]
    There was “due proportion” between the sentences of Pain and the applicant having regard to the different circumstances of the co-offenders.  In the circumstances, the sentences did not result in a marked disparity giving rise to a justifiable sense of grievance.  Her Honour reduced the applicant’s head sentence to account for his slightly different role compared to Pain and imposed a lesser period in custody, which was less than one third, taking account of the differences and the cumulative nature of the sentence imposed.
36. [36]
    For those reasons, the applicant has not demonstrated that the disparity between the sentences imposed upon Pain and himself gives rise to a justifiable sense of grievance.  This ground of appeal has not been borne out.

Totality

37. [37]
    The applicant’s sentence for the 2018 Offences was made cumulative upon the sentence for the 2017 Offences with the applicant’s parole eligibility date extended by 16 months, to 25 September 2022.  That resulted in an effective head sentence of 11 years with parole eligibility after four years and four months, being eight months over the one third mark of the total sentence.  Given the offending was unrelated to the 2017 Offences, but of a similar nature, that was clearly open to her Honour.
38. [38]
    The principle of totality requires a sentencing Judge to sentence the offender in a way that is not disproportionate to an offender’s actual overall culpability.^[14]  The totality principle was approved in R v Mill,^[15] where the Court stated:^[16]

“The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed. (1979), pp. 56-57, as follows (omitting references):

“The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’.””

39. [39]
    As was recently reiterated by McMurdo and Mullins JJA in R v Kruezi,^[17] the principle in R v Mill was extended to lower the sentencing of an offender who was serving an existing sentence, the authority commonly cited being R v Gordon.  In R v Gordon,^[18] Hunt CJ at CL described the totality principle relevant to this context as follows:

“[W]hat counts is that the effective total of the sentences imposed (their ultimate practical effect) adequately and fairly represents the totality of the criminality involved… When a custodial sentence is to be imposed which will be cumulative upon, or which will overlap with, an existing custodial sentence, the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable.” (citations omitted)

40. [40]
    Sofronoff P recently reiterated, in R v Symss,^[19] referring to R v Makary,^[20] that:

“Cumulative sentences resulting in imprisonment of such length can be justified in some cases, such as when an offender is sentenced to a long term of imprisonment but then commits a further serious offence while imprisoned, or while at liberty after escaping, or, sometimes, while on bail awaiting trial for a set of offences for which he is later found guilty. If sentences in such cases were not made cumulative then the offender would effectively get a discount by a misapplication of the totality principle.”

41. [41]
    In Sofronoff P’s analysis in R v Symss, his Honour noted that the totality principle addresses the possibility that when a strictly arithmetical method is applied when sentencing for multiple offences the result may be disproportionate to an offender’s overall culpability.^[21]  His Honour suggested that when the effective cumulation of sentences would result in a term of imprisonment that the sentencing Judge regards as much too harsh, the common law provides a different avenue to alleviate harshness, by reference to the notion that a sentence should not be a crushing sentence.^[22]
42. [42]
    Given the applicant’s sentences for the 2018 Offences, while concurrent with each other, were to be cumulative upon the applicant’s sentence for the 2017 Offences, the learned sentencing Judge was required to consider whether the total period to be spent in custody adequately and fairly represented the totality of the criminality involved.  That required consideration of the effective head sentence of six and a half years imposed for the 2017 Offences for which the applicant had to serve three years.
43. [43]
    In the present case, the applicant submits that her Honour failed to properly apply the principles of totality in imposing the sentence upon the applicant, particularly when, in his submission, her Honour failed to consider the effective sentence that had been imposed for the 2017 Offences and had referred to the applicant as serving a sentence of five years.
44. [44]
    The Crown submits however that her Honour was acutely aware of the sentence that the applicant was serving for the 2017 Offences and ameliorated the otherwise appropriate sentence to account for totality and avoid a crushing effect.  It contends that the sentence of 11 years to serve four years and four months is not disproportionate to the applicant’s overall culpability.
45. [45]
    In sentencing the applicant, her Honour referred to the applicant as “now serving five years” for the 2017 Offences at the time of sentencing for the 2018 Offences.^[23]  It is to state the obvious to note that there is a considerable difference between the applicant serving an overall sentence of nine years and six months, which would be the result of a four and a half year sentence being served cumulatively with a five year two month sentence, as opposed to an eleven year sentence, which was in fact the case given that the effective sentence for the 2017 Offences was six and a half years.
46. [46]
    Her Honour was the sentencing Judge for the applicant in relation to the 2017 Offences.  The Crown made accurate submissions as to the fact that the sentence imposed for the 2017 Offences had taken into account 16 months spent in pre-sentence custody and placed her Honour’s sentencing remarks before her Honour at the sentence for the 2018 Offences.  That supports the contention that her Honour was aware of the applicant’s previous sentence when sentencing the applicant.  Her Honour was however having to sentence three co-offenders, all of whom had a number of factors that had to be considered.
47. [47]
    While her Honour’s sentencing remarks were careful and made it clear that she had regard to the totality of the applicant’s criminal behaviour constituted by the 2017 and 2018 Offences, I accept the applicant’s submission that her Honour, by oversight, did not consider the effective sentence of six and a half years to serve approximately three years imposed in relation to the 2017 Offences, but mistakenly had regard to the actual sentence imposed of five years two months.  That is based on the fact that, firstly her Honour referred to the sentence being served as one of five years.^[24]  While the Crown focussed on the fact her Honour referred to “serving” which strictly speaking was true, her Honour did not touch upon the total sentence that would be served by the applicant.  Secondly, her Honour’s reasons did not refer to the total sentence for the 2017 and 2018 Offences of 11 years with parole eligibility after serving four years and four months.  Nor did her Honour refer to any consideration of whether that sentence should be moderated for totality reasons.  Thirdly, this was in contrast to her Honour’s reasons in relation to De Veny, where her Honour expressly stated:

“This is a case where cumulative sentences would be appropriate as between the home invasion and later unrelated episodes of driving offences whilst on bail and so on. Any cumulation would have to come with the usual care to avoid an oppressive result.”

48. [48]
    In imposing the sentence upon Matauaina, her Honour stated:

“The fresh offending confirms that you do present a risk to the community and your crimes at that house, in my view, call for a sentence towards the upper range to punish, deter and denounce. It is appropriate that today’s sentence be cumulative on the sentence that you are already serving.”

49. [49]
    While the applicant’s overall culpability is significant, it is difficult to conceive that, had her Honour been imposing a sentence for the 2017 and 2018 Offences simultaneously, she would have imposed a sentence of 11 years, particularly given the minor physical injuries inflicted by the applicant in the 2018 Offences where he was not the ringleader.  To the extent that her Honour did modify the applicant’s sentence from that imposed upon Pain that appears to have been by reference to parity considerations rather than considerations of totality on a correct factual basis.
50. [50]
    In the circumstances, the sentence was disproportionate to the applicant’s actual overall culpability.  This ground is established.

Re-exercise of sentencing discretion

51. [51]
    The court must therefore re-exercise the sentencing discretion.  The applicant submits that the appropriate sentence is one of three years with the parole eligibility date extended by 12 months.  The three year sentence was proffered on the basis that three years represented the bottom of the range for the type of offending by reference to the sentence imposed upon De Veny, and that there was 18 months difference between the effective head sentence being served by the applicant and the five year term referred to by her Honour.
52. [52]
    De Veny however was in quite a different position from the other offenders given his age, lack of any actual violence and lack of criminal history for similar offences.
53. [53]
    In the present case, the 2018 Offences were of a similar nature to the 2017 Offences insofar as they both involved offending in company with violence, albeit the 2018 Offences did not involve violence as serious as the 2017 Offences.  The applicant did however engage in violent acts while armed with a knife, although the injuries inflicted were minimal.  The 2018 Offences involved distinct offending separate from the 2017 Offences, albeit of a similar nature and relatively proximate in time.  The applicant was on bail for that 2017 Offences at the time of the 2018 Offences being an aggravating feature of the latter offending.  As her Honour noted in sentencing the applicant, and that his associates, his offending was not connected with drugs nor could it be blamed on an angry over reaction.  Given the 2017 offences were serious and he was on bail when these offences were committed, a cumulative sentence was appropriate.^[25]
54. [54]
    At the sentence hearing the Crown referred to R v Leu; R v Togia^[26] as the most relevant case.  In that case there was a home invasion arising out of a drug deal where accusations of stealing had been made against one of the accused and threats of violence were exchanged.  The two accused went to the complainant’s house armed with a vacuum cleaner pipe and a small wooden stake.  The complainant was punched and kicked.  The complainant’s girlfriend was pushed out of the way and the complainant was struck with a stake resulting in relatively minor injuries.  The accused stole drugs and money and fled.  Both accused made admissions.  Both accused had formerly been in full time employment.  One of the accused was 20 years of age and had been sentenced to probation and community service for an armed robbery two years prior.  The facts reflected that it was at the lower end of such offending.  The 20 year old was on probation at the time he committed the offences the subject of the appeal.  The other accused was 23 and had a minor history.
55. [55]
    The Court of Appeal determined that the sentencing Judge had erred insofar as the sentences of five years with parole eligibility after three years were manifestly excessive.  After examining the relevant comparable cases Fraser JA noted that the range was three to five and a half years imprisonment.^[27]  The Court of Appeal resentenced each of the applicants reducing the sentence of the younger offender to four and a half years with parole eligibility after 16 months and the older offender who lacked a relevant criminal history to three and a half years with parole eligibility after 12 months.  Both had been armed and assaulted the victims.  The Court of Appeal considered that both had good prospects of rehabilitation, had shown remorse, had entered early pleas of guilty and had shown co-operation with authorities.  Parole eligibility was set at less than one third.  The lesser sentence of three and a half years with parole eligibility was based on the lack of any significant criminal history.  The sentence of four and a half years with parole eligibility after 16 months^[28] took account of the applicant’s previous conviction for robbery and the fact that the accused was on probation and community service orders at the time the home invasion occurred.
56. [56]
    The applicant in the present case, like the younger accused in R v Leu; R v Togia, has a relevant history for a similar offence for which he was on bail at the time.  The 2018 Offences were less violent than those committed by Leu and Togia.  The applicant does not, however, share the same mitigating factors given that he is older, entered a late plea of guilty, has more serious related offending and there is no evidence of remorse.
57. [57]
    Having regard to the analysis in R v Leu; R v Togia the sentence of four and a half years with parole eligibility would be an appropriate sentence that could have been imposed upon the applicant prior to the sentence being moderated for totality considerations.
58. [58]
    The appropriate sentence must reflect deterrence and denunciation given the fact that the applicant had committed similar serious offences for which he was on bail and had engaged in minor acts of violence in the 2018 Offences whilst armed.  In terms of mitigating factors, other than his age, a timely plea of guilty and family support, he has little to suggest that he has strong prospects of rehabilitation.
59. [59]
    In the present case, if the applicant had been sentenced for the 2017 and 2018 Offences at the one time, a sentence of ten years would have been appropriate.  Such a sentence would avoid it being a crushing sentence but would reflect the need for deterrence and denunciation and protection of the community while encouraging rehabilitation by providing parole eligibility after serving slightly less than one third of the sentence.
60. [60]
    Having regard to those matters, the appropriate sentence is one of three years and six months.  The parole eligibility date should be extended by slightly less than one third of that sentence.  The parole eligibility date should therefore be 25 June 2022, which extends the parole eligibility date by 13 months.

Conclusion

61. [61]
    I would grant the application, allow the appeal and set aside the sentences imposed by the District Court on counts 1 and 4 and instead impose a term of imprisonment of three and a half years.  Those terms of imprisonment, together with the other terms of imprisonment for counts 3, 9, 10 and 11 would be served concurrently with each other and cumulatively on the pre-existing sentence for the 2017 Offences.  I would order that the applicant be eligible for parole on 25 June 2022.