Arvinthan v The The Queen

[2022] NSWCCA 44

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Arvinthan v R [2022] NSWCCA 44

Hearing dates:

7 February 2022

Date of orders:

2 March 2022

Decision date:

02 March 2022

Before:

Leeming JA at [1];
Rothman J at [8];
Harrison J at [67]

Decision:

(1)   Leave to appeal granted;

(2)   Appeal allowed;

(3)   The aggregate sentence imposed upon the applicant, Keerthy Arvinthan, by the District Court at Parramatta on 25 February 2021 is quashed and in lieu thereof, the applicant is sentenced to an aggregate sentence of 3 years and 10 months, commencing 1 March 2020 and concluding, 31 December 2023, with a non-parole period of 2 years and 4 months, concluding 30 June 2022;

(4)   The applicant be first eligible for release on parole on 30 June 2022.

Catchwords:

CRIME – appeal – victim under 18 – fact taken into account in assessment of objective seriousness – not an aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) – error – resentenced – enter with intent to commit serious indictable offence – aggravated break and enter and commit serous indictable offence – in each case, serious indictable offence not an aggravating feature of the principal offence – lesser sentence warranted

Legislation Cited:

Crimes Act 1900 (NSW), ss 111(1), 112(2)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)

Cases Cited:

Alesbhi v R; Esbhi v R [2018] NSWCCA 30

Gore v R; Hunter v R (2010) 208 A Crim R 353; [2010] NSWCCA 330

Jonson v The Queen (2016) 263 A Crim R 268; [2016] NSWCCA 286

Josefski v R (2010) 217 A Crim R 183; [2010] NSWCCA 41

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

McLaughlin v R [2013] NSWCCA 152

R v Olbrich (1999) 199 CLR 270; [1999] HCA 54

R v Seymour [2012] NSWSC 1010

R v Wickham [2004] NSWCCA 193

Veen v The Queen (No 2) (1998) 164 CLR 465; [1988] HCA 14

Category:

Principal judgment

Parties:

Keerthy Arvinthan (Applicant)
Regina (Respondent)

Representation:

Counsel:
T Ramrakha (Applicant)
M Gleeson (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2019/408802

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

[2021] NSWDC 253

Date of Decision:

25 February 2021

Before:

Bourke SC DCJ

File Number(s):

2019/408802

Judgment

1. LEEMING JA: I agree with Rothman J. I wish to elaborate one aspect of this appeal. That aspect is the correctness of the Crown’s concession that it had been wrong to submit to the sentencing judge that one of the offences to which the applicant had pleaded guilty, that of aggravated break, enter and commit a serious indictable offence (sexual touching), was further aggravated by reason of s 21A(2)(ea) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the victim being a 17 year old. It should be noted that the sentencing judge is not to be faulted, for the Crown’s error was not corrected by counsel then appearing for the applicant.

2. It is true, of course, that “the offence was committed in the presence of a child under 18 years of age”. But a deal of law now governs the application of the aggravating factor in s 21A(2)(ea).

3. First, it is well established that the circumstance of aggravation is not made out unless the presence is a “knowing” presence. Thus where a two-year old child was present but asleep during a crime of violence, the aggravating factor was not made out: R v Seymour [2012] NSWSC 1010. Other examples may be seen in this Court’s decision in Alesbhi v R; Esbhi v R [2018] NSWCCA 30 at [54]-[55]; contrast Jonson v The Queen [2016] NSWCCA 286; 263 A Crim R 268, where the child was not present in the room, but heard the blow and later saw her mother on the floor bleeding (see at [66] and [74]).

4. Secondly, there are offences where the presence of a child who is under 18 years of age is an element of the offending. In such cases, the assessment of the objective seriousness of the offending will necessarily incorporate the fact that there is a child, and it would be plain double-counting to regard s 21A(2)(ea) to have any operation in such case. In that case, the concluding command in s 21A(2) “The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence” applies. Thus it is not the case that every offence involving a child (such as those created by Subdivisions 5, 6, 7, 8 and 9 of Division 10 of the Crimes Act 1900 (NSW)) is made more serious because it is committed in the presence of the child who is the victim of the offence. However, if another child were present and witnessed the offending upon the first child, then s 21A(2)(ea) would apply.

5. In the present case, the applicant pleaded guilty to the compound offence created by s 112(2) of aggravated break and enter and commit a serious indictable offence. The guilty plea necessarily amounted to an admission of (a) the breaking and entering, (b) the commission of the offence of sexual touching and (c) the circumstance of aggravation – namely, knowledge of the presence of the victim in the dwelling: see s 105A. The serious indictable offence, sexual touching contrary to s 61KC of the Crimes Act, does not have as an element that the victim is a child (there are separate, more serious offences of sexual touching of a child under 10 or between 10 and 16 in ss 66DA and 66DB). Had the victim been younger, and had the applicant been charged with and pleaded guilty to aggravated break and enter and commit a serious indictable offence namely, touching of a child between 10 and 16 contrary to s 66DB, then it would be clear that s 21A(2)(ea) was inapplicable.

6. The serious indictable offence which was an element of the compound offence for which the applicant was sentenced was not an offence which had as an element the fact that the victim was a child. But even so, an assessment of the sexual touching offence which was an element of the compound offence to which he pleaded guilty and for which he was sentenced necessarily comprehends the fact that the victim was aged 17. Thus it would be double-counting if the court imposing sentence both assessed objective seriousness having regard to the victim’s age, and then regarded the offending as more serious because she was 17. That is to say, the fact that the victim of the serious indictable offence was aged 17 is fully captured in the determination of the objective seriousness of the offending, and is not made worse by s 21A(2)(ea). Once again, had there been another child awake in the bedroom, the circumstance of aggravation would have been made out.

7. For those reasons, in addition to those given by Rothman J, I agree that the Crown was correct to concede that this appeal should be allowed. I agree with the balance of Rothman J’s reasons, and with the resentencing he proposes.

8. ROTHMAN J: On 25 February 2021, in the District Court at Parramatta, his Honour Judge Bourke SC sentenced Keerthy Arvinthan (hereinafter “the applicant”) to an aggregate sentence of imprisonment of 4 years and 6 months, including a non-parole period of 2 years and 9 months. The applicant seeks leave to appeal against the sentence imposed upon him. The application for leave to appeal and the appeal were heard concurrently.

9. The applicant initially pleaded guilty at Parramatta Local Court and, thereafter, adhered to that plea of guilty. The plea was to two offences committed between 28 and 31 December 2019, being enter a dwelling with intent to commit a serious indictable offence, contrary to s 111(1) of the Crimes Act1900 (NSW) (Sequence 4) and aggravated break and enter and commit serious indictable offence (sexual touching), contrary to s 112(2) of the Crimes Act (Sequence 4). Further, the sentence took account of a larceny on a Form 1 document, particularised as a cigarette lighter and packet of cigarettes, in relation to the offence of enter dwelling with intent.

10. The offence of enter a dwelling with intent to commit a serious indictable offence carries a maximum sentence of 10 years’ imprisonment and there is no prescribed standard non-parole period. For that offence, his Honour set an indicative sentence of 2 years, taking into account the Form 1 offence. The Form 1 offence taken into account was the larceny described above.

11. The offence of aggravated break and enter and commit serious indictable offence (sexual touching), contrary to s 112(2) of the Crimes Act, carries a maximum sentence of 20 years’ imprisonment and there is a prescribed standard non-parole period of 5 years. The learned sentencing judge indicated a sentence of 3 years and 4 months, with a non-parole period of 2 years as the indicative sentence for the aggravated break and enter and commit indictable offence.

12. As earlier indicated, the applicant pleaded guilty in the Parramatta Local Court and adhered to that plea. One of the issues raised in this application is the failure of the sentencing judge to reduce the sentence imposed by an amount that reflects the utilitarian value of the plea of guilty. There are two grounds of appeal:

Ground 1: The sentencing judge failed to take into account the relative seriousness of the serious indictable offence, the subject of Sequences 4 and 7, including the maximum penalties for those offences;

Ground 2: The sentencing judge erred by finding that Sequence 7 was more serious because it was committed in the presence of a child under 18 years of age.

13. The Crown concedes that his Honour was in error in relation to the failure alleged as Ground 2 of the appeal. It is necessary to summarise the facts briefly. As a result of a plea of guilty and the arrangements for the proceedings on sentence, there were agreed facts which form the basis on which his Honour sentenced the applicant.

14. On 27 December 2019, the applicant stole a packet of cigarettes and a lighter from a table in the backyard of Victim 1. This was the offence that was notified on the Form 1, taken into account on the charge of enter dwelling with intent to commit a serious indictable offence.

15. In the early hours of the morning of 29 December 2019, the applicant returned to the house of Victim 1 and entered the house through an open back door. The applicant entered the victim’s bedroom.

16. Victim 1 woke up to find the applicant standing by her bed. The applicant was looking for cigarettes. The victim subsequently chased him from the house, locked the doors, and called the police. This is the offence of enter with intent to commit serious indictable offence (Sequence 4).

17. Once reported, the police tracked the applicant to a location not far from the scene of the offence and questioned him. The police did not arrest the applicant at that time.

18. At approximately 3:30 am on 31 December 2019, the applicant broke into the house of Victim 2 by removing a fly screen and prying open a window that was slightly ajar. Victim 2 woke to find the applicant lying next to her on the bed. At the time, he was touching her upper thigh under the bed covers.

19. Victim 2 screamed and jumped out of bed. Victim 2 was then able to take a series of photographs of the applicant as he jumped out of her window. These latter facts are the facts that gave rise to the aggravated break and enter and commit serious indictable offence (sexual touching) (Sequence 7).

20. The applicant was arrested at approximately 4 am on the morning of 31 December 2019. He participated in an Electronically Recorded Interview of a Suspected Person (ERISP). During the ERISP, the applicant identified himself as the person in the photographs taken by Victim 2. The applicant also admitted to wanting to have sexual intercourse with Victim 2.

Applicant’s Submissions

Ground 1

21. The sentencing judge did not refer to the maximum penalties that applied to the serious indictable offences that were an element of the offences charged. The relevant maximum penalties are: in relation to the enter with intent, the serious indictable offence was larceny, carrying a maximum penalty of 5 years’ imprisonment and no standard non-parole period. In relation to the aggravated break and enter, the serious indictable offence that was committed was sexual touching, an offence under s 61KC of the Crimes Act, carrying a maximum penalty of 5 years’ imprisonment with no prescribed standard non-parole period.

22. The submission of the applicant was that the serious indictable offences are an “essential particular” of each offence. Therefore, it was necessary for his Honour to characterise the seriousness of the indictable offence that forms the element of each of the enter, and the break and enter, offences. The applicant submitted that it was “contextually meaningless” to refer to the objective seriousness of offences such as these, without reference to the contextually short maximum penalties of the relevant serious indictable offences.

23. Moreover, the applicant submitted that his Honour failed to make an accurate assessment of the overall seriousness of the offences. This failure was due, on the submission of the applicant, at least in part, to the failure to consider the short maximum penalties applicable to each of the indictable offences that were said to be serious, and which gave rise to the two offences of enter and break and enter.

Ground 2

24. In his remarks, the sentencing judge considered that the aggravated break and enter offence was further aggravated because it was committed in the presence of a child. This reflected the Crown’s submissions on sentence and his Honour took into account this aggravating feature pursuant to what his Honour considered were the terms of s 21A(2)(ea) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

25. The provisions of s 21A(2) list a number of aggravating factors to be taken into account in determining an appropriate sentence for an offence that has been committed. Paragraph (ea) of s 21A(2) lists as an aggravating factor that “the offence was committed in the presence of a child under 18 years of age”, but in this case the person under the age of 18 was the victim of the offence. Victim 2 was 17 years of age at the time of the offence.

26. The applicant submitted that it is contrary to the language and purpose of the provision to take into account the victim’s age as an aggravating factor under this provision. Rather, the provision is directed to the commission of an offence in circumstances where a person under the age of 18 is present, but is not the victim of the offence.

27. The applicant submitted that the purpose of the provision is aimed at the deleterious effect that the commission of a crime might have on the emotional well-being or moral values of the child who was present as a witness to the crime. ^[1]

    1. Gore v R; Hunter v R (2010) 208 A Crim R 353; [2010] NSWCCA 330 at [104]; R v Seymour [2012] NSWSC 1010 at [43]; McLaughlin v R [2013] NSWCCA 152 at [31]-[32]; Alesbhi v R; Esbhi v R [2018] NSWCCA 30 at [54].

28. According to the applicant, the aggravating factor is not available under the statute. Nor is it available under common law principles. The age of a “child” is not universally defined in the Crimes Act and differs between provisions. There is no offence of sexually touching a child over the age of 16. The offence of touching the child between the ages of 10 and 16 is proscribed by s 66DB of the Crimes Act.

29. At common law, on the submission of the applicant, in order for the aggravating factor associated with committing a crime in the presence of a child to operate, the prosecution would need to establish, beyond reasonable doubt, that the applicant knew that the victim was 17 years of age, or could have reasonably foreseen that she was, in respect of which there was no evidence. ^[2]

    2. R v Wickham [2004] NSWCCA 193 at [25]; Josefski v R (2010) 217 A Crim R 183; [2010] NSWCCA 41 at [3] and [39]; R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27].

Resentence

30. Finally, the applicant submitted that if the Court were satisfied that error had been established, a lower sentence is warranted and should have been imposed for reasons associated with each of the grounds and because:

1. the applicant had shown remorse, having regard to his expressions of remorse, his admissions, and his plea of guilty; and

2. as at the date of sentence, the applicant’s prospects of rehabilitation were plainly not good. However, it could not be said, of any young person, that he had no prospects of rehabilitation, and this is a matter that should be taken into account by the Court, on resentence.

Respondent’s Submissions

Ground 1

31. The Crown submitted that his Honour’s sentencing remarks in the present case complied with that which was required to ascertain the overall objective seriousness of the applicant’s offending. As part of his Honour’s reasoning, the Crown submitted that his Honour took into account the circumstances and gravity of the serious indictable offences involved in the offences with which the applicant was charged. Further, it was appropriate for his Honour to take those matters into account in the manner which he did.

32. In relation to the enter with intent to commit serious indictable offence charge, the Crown submitted that his Honour found that the applicant’s entering into the house of Victim 1 “was accompanied by an intention to steal, which is itself a serious offence”. ^[3] This latter phrase describing “a serious offence”, was a reference to the serious indictable offence element of the offence of enter with intent.

    3. Appeal Book p 17; Remarks on Sentence at [20].

33. Further, in respect to the charge of enter with intent, the Crown submitted that it is clear from the Remarks on Sentence, read as a whole, that the sentencing judge was aware of, and took into account, the nature of the serious indictable offence, and the circumstance that the serious indictable offence involved the minor intention to steal cigarettes. His Honour’s elevation of the seriousness of the offence above the lower range, as described, was a reference to the other factors to which his Honour had referred.

34. In relation to the break and enter offence, the Crown submitted that his Honour’s remarks, in relation to the serious indictable element of this offence, were indicative of his Honour’s contemplation of the seriousness of the serious indictable offence. His Honour remarked, according to the submission, that it had involved skin on skin contact with the victim’s upper thigh but concluded that the objective seriousness of the offence was towards the lower end of the seriousness. ^[4]

    4. Appeal Book, p 18; Remarks on Sentence at [24]-[25].

Ground 2

35. As is clear from the terms of [36] of the Crown’s Written Submissions, and as was reiterated in oral submissions, the Crown accepts that the sentencing judge erred in finding that the offence of break and enter was aggravated by the factor described in s 21A(2)(ea) of the Crimes (Sentencing Procedure) Act. The Crown makes that concession in circumstances where the child in whose presence the offence was said to have been committed was also the victim of the offence.

36. The Crown submits that both the text of the provision, in particular, the reference to the offence being “committed” in the “presence” of the child, and the purpose of the provision preclude the child to which the paragraph refers being the victim of the offence. The Crown accepts that the Court accurately described the purpose of the provision as being to protect against the deleterious effects upon a child who is a witness to the crime committed, rather than a victim. ^[5]

    5. Gore v R, supra, at [104].

Resentence

37. If, as is conceded, the Court found error, the Crown accepts that it is necessary for the Court to resentence. ^[6] However, the Crown submits that, given the nature of the offences; the seriousness of the offences; and, the subjective circumstances of the applicant, including his criminal history, the Court should determine that no lesser sentence than that imposed at first instance should have been imposed in all of the circumstances, and dismiss the appeal.

    6. Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

Consideration

38. As can be seen from the foregoing, the Crown conceded Ground 2, namely, that the sentencing judge erred in finding that the offence was aggravated by the circumstance that it was committed in the presence of a child. In my view, the concession is appropriate.

39. The reference in s 21A(2)(ea) of the Crimes (Sentencing Procedure) Act refers to the commission of an offence for which the child is present but not the victim. While the fact that a person is a child may be a factor that increases the moral culpability of an offender who has committed an offence against that person, and, accordingly, the objective seriousness of the offence, such a factor is part of the assessment of the objective circumstances of the offending. It is not aggravated by the fact that the offence is one that occurred “in the presence” of a child.

40. As a consequence of the foregoing, it is necessary for the Court to resentence. ^[7] Further, it is unnecessary to deal with Ground 1 as part of the appeal, although the underlying issue is dealt with later in these reasons because the issues relate to the resentencing exercise.

    7. Kentwell v The Queen, supra, at [42] (French CJ, Hayne, Bell and Keane JJ).

41. The Crown submits that the Court, in exercising its discretion on resentence, should determine that no lesser sentence is warranted in law. Unless it can be said that the sentence imposed could not be lower and still be a sentence that was appropriate to the offending, or that the circumstance recited by the sentencing judge, namely that the sentence was aggravated by the fact that it was committed in the presence of a child, had no effect on the sentence, a lower sentence would be warranted.

42. The applicant, on resentencing, relies upon two affidavits: one from his solicitor and one on his own behalf. The custodial records annexed to the affidavit of the applicant’s solicitor show a custodial history that reveals no offending and an extremely cooperative approach in custody. The applicant has few or no associates in prison; has few or no associates in Australia; and has few associates in Sri Lanka.

43. The applicant has completed programs in prison that will serve him well on his release. The applicant accepts that he is to be deported to Sri Lanka at the conclusion of his sentence. The fact of his deportation is not a matter that the Court should take into account in fixing a sentence. However, it is a factor that goes to the applicant’s prospects of rehabilitation.

44. The applicant has previously committed an offence of entering a building with intent to commit an indictable offence for which he received a bond. He also has a record for common assault, stalk and intimidate, and sexually touch another person without consent.

45. The need for specific deterrence, which, on the foregoing basis, would seem to be significant, is qualified to the benefit of the applicant as a result of what seems to be an excellent record in custody and an attitudinal change to offending which is evident from the conversations recorded in the notes of his custodial history and is attested to in the affidavit of the applicant.

46. General deterrence remains a significant factor, as these are serious offences that are committed in the homes of the victims. ^[8]

    8. Crimes (Sentencing Procedure) Act, s 21A(2)(eb).

47. Further, the aggravated break and enter and commit serious indictable offence, which involved the applicant lying on the bed next to the victim and touching her thigh, would have had a serious and frightening effect on the victim, regardless of her age, but even more so when the person was not of mature years.

48. It is necessary to deal with the applicant’s submissions in relation to Ground 1 of the appeal for the purpose of the resentencing exercise. The seriousness of the serious indictable offence that is committed in an enter dwelling offence under s 111(1) of the Crimes Act or in a break and enter under s 112 of the Crimes Act may be a relevant factor in determining the objective seriousness of the offence for which an offender is to be sentenced. But the kernel of the issue on which the sentencing court is required to sentence is the entering of a dwelling or the break and enter.

49. In most circumstances, the seriousness of the indictable offence that was committed or was intended to be committed is a factor, but it may have no impact upon the sentence to be imposed on an offender. Obviously, if the serious indictable offence is extremely serious, then the seriousness of the enter dwelling or break and enter dwelling is exacerbated. There may be other circumstances where the seriousness of the indictable offence may impact upon the sentence to be imposed.

50. The fact that the serious indictable offence that was intended or was committed is at the lowest level to qualify as a serious indictable offence results in the offence for which the sentence is to be imposed not being aggravated on account of the greater seriousness of the serious indictable offence intended or committed. On the other hand, if, as stated, the offence to be committed were, for example, murder or rape or assault occasioning grievous bodily harm, then the seriousness of the break and enter is increased and it would be necessary for the sentencing judge, if aggravating the seriousness on that account, to make reference to it.

51. Where no aggravation of the entry offence or the break and enter offence is to be applied for the seriousness of the intended or completed indictable offence, then a reference to that effect, while useful, is unnecessary. This is what the sentencing judge has done in this exercise.

52. In this sentencing exercise, as already pointed out, the serious indictable offence committed in relation to the enter dwelling offence with intent is at the lowest end of serious indictable offences. As a consequence, it does not render any worse, the offence of entering a dwelling with intent.

53. Similarly, the same can be said for the serious indictable offence involved in the aggravated break and enter and commit serious indictable offence. Notwithstanding the low maximum sentence to be imposed for the serious indictable offence committed, the offence is serious by reason of the damage that would be done to a victim because of the offence; damage which ought to have been contemplated by a person committing the offence.

54. The purposes of sentencing are set out in s 3A of the Crimes (Sentencing Procedure) Act and are otherwise part of the common law. ^[9] They include ensuring the offender is adequately punished; deterrence of the offender, and of others who may be tempted to offend (specific and general deterrence); protection of the community; promotion of rehabilitation of the offender; denunciation of the conduct of the offender; making the offender accountable for his or her actions; and recognising the harm done to the victim of the crime and to the community.

    9. Veen v The Queen (No 2) (1998) 164 CLR 465; [1988] HCA 14.

55. I have already dealt with specific and general deterrence and, to some degree, the issue of rehabilitation. Before the learned sentencing judge, the applicant relied upon a psychological evaluation of Ms Thea Gumbert of 26 July 2020.

56. The applicant’s background is that he was raised near Colombo by his maternal grandmother. He never met his parents and was told very little about them. Further, he has never asked why he was not in the care of his parents, assuming they were still alive.

57. The applicant came to Australia as a consequence of his uncle paying for someone to take him on a boat. He arrived speaking no English, having no money or contacts in Australia and no plan for what he would do upon arrival. The voyage was described as “horrible”. ^[10]

    10. Appeal Book, p 68; Psychologist Report, Thea Gumbert, 26 July 2020, p 3.

58. He had some limited contact with his uncle in Sri Lanka, while he was living in Sydney, and prior to his arrest. The applicant reports no prior diagnoses of mental health difficulties and described himself to the psychologist as “perfectly alright”. ^[11]

    11. Appeal Book, p 69; Psychologist Report, Thea Gumbert, 26 July 2020, p 4.

59. The applicant has never been in a sexual relationship and has had only one romantic relationship. To the psychologist, the applicant minimised the offences with which the Court is now dealing. He was scored in terms of recidivism using static actuarial measures, which are, to some extent, unreliable, and do not alter for changed circumstances, but which scored him as having a well above-average risk of sexual recidivism.

60. The psychologist formed the impression that the applicant was an emotionally immature young man, lacking in appropriate social skills and the means to form relationships. Further, the psychologist formed the impression that the applicant was somewhat guarded in relation to his mental health and offending behaviour and that the offences reflected maladaptive means to overcome intimacy deficits and to obtain sexual gratification. The applicant, according to the psychologist, evinced a lack of insight into the harmful nature of his actions.

61. I do not consider that the objective seriousness of the aggravated break and enter and commit serious indictable offence is in the lowest range, having regard to the facts and circumstances of the offending and the nature of the serious indictable offence that was committed. I accept that the enter dwelling with intent to commit a serious indictable offence is, while not at the lowest level of objective seriousness, relatively close to it. I consider the aggravated break and enter and commit serious indictable offence to be below mid-range in the objective seriousness.

62. I also accept that the applicant has shown some remorse and has some prospects (although not good) of rehabilitation. I consider that his growing maturity will provide some prospects of rehabilitation. I have already referred to, and taken into account, that the offences which occurred in the homes of victims involved some degree of planning.

63. In terms of subjective circumstances, I have set out the significant hardship that the applicant has suffered in his life so far, and that he is at a relatively high risk of reoffending. These are findings that were made by the sentencing judge and with which the applicant does not cavil.

64. I consider his youth and the hardship that he has suffered to be circumstances that warrant a finding of special circumstances.

65. I would propose that an aggregate sentence be imposed, and would set indicative sentences as follows:

1. Enter a dwelling with intent to commit a serious indictable offence, contrary to s 111(1) of the Crimes Act, for which a maximum sentence is 10 years’ imprisonment and there is no standard non-parole period: an indicative sentence of 18 months, taking into account the larceny of the lighter and packet of cigarettes, notified on a Form 1;

2. For the aggravated break and enter and commit serious indictable offence (sexual touching), contrary to s 112(2) of the Crimes Act, for which the maximum sentence is 20 years’ imprisonment and for which there is prescribed a standard non-parole period of 5 years: an indicative sentence of 3 years, with an indicative non-parole period of 18 months.

66. As a consequence of the foregoing, I propose that the Court should make the following orders:

1. Grant leave to appeal.

2. Allow the appeal.

3. Quash the aggregate sentence imposed upon the applicant, Keerthy Arvinthan, by the District Court at Parramatta on 25 February 2021 and, in lieu thereof, sentence the applicant to an aggregate sentence of 3 years and 10 months, commencing 1 March 2020 and concluding, 31 December 2023, with a non-parole period of 2 years and 4 months, concluding 30 June 2022.

The applicant be first eligible for release on parole on 30 June 2022.

67. HARRISON J: I agree with Rothman J and with the additional remarks of Leeming JA.

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Endnotes

Decision last updated: 02 March 2022