Avery v R

[2015] NSWCCA 50

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	Avery v R [2015] NSWCCA 50
Hearing dates:	23 March 2015
Date of orders:	02 April 2015
Decision date:	02 April 2015
Before:	R A Hulme J at [1] Davies J at [2] Bellew J at [3]
Decision:	Leave to appeal granted. Appeal dismissed.
Catchwords:	CRIMINAL LAW – Appeal – Applicant sentenced for two separate offences of aggravated break and enter together with an offence of being carried in conveyance taken without the owner’s consent – Whether sentencing judge made erroneous factual findings regarding the applicant’s participation in joint criminal enterprise – Whether sentencing judge erred in failing to have regard to evidence of the applicant’s intoxication – Whether sentencing judge gave proper effect to finding of special circumstances – Whether the discount for assistance which was applied by the sentencing judge was appropriate – Whether sentence manifestly excessive – Leave to appeal granted – Appeal dismissed. CRIMINAL LAW – Appeal – Procedure – Where submissions in support of grounds of appeal were not put to the sentencing judge – Party to be bound by the conduct of the case at first instance
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 Hutchinson v R [2014] NSWCCA 371 Kendall v R [2015] NSWCCA 13 LB v R [2013] NSWCCA 70 R v Cahyadi [2007] NSWCCA 1; (2007] 168 A Crim R 41 R v Ellis (1986) 6 NSWLR 603 R v Ehrlich [2012] NSWCCA 38; (2012) 219 A Crim R 415 R v Fernando (1992) 76 A Crim R 58 R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151 R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38 SL v R [2015] NSWCCA 35 SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249 Zreika v R [2012] NSWCCA 44
Category:	Principal judgment
Parties:	Daniel Avery - Applicant
Representation:	Counsel: Mr R Wilson - Applicant Ms N Williams - Respondent Solicitors:
File Number(s):	2012/273988
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Before: Wells DCJ

Judgment

1. R A HULME J: I agree with Bellew J.

2. DAVIES J: I agree with Bellew J.

3. BELLEW J: On 3 June 2013 Daniel Avery (“the applicant”) appeared before the Grafton Local Court and pleaded guilty to the following offences:

1. aggravated break and enter and commit a serious indictable offence: Crimes Act 1900 s. 112(2) (count 1);

2. allowing himself to be carried in conveyance knowing that it had been taken without the consent of the owner: Crimes Act 1900 s. 154A(1)(b) (count 2);

3. aggravated break and enter and commit a serious indictable offence: Crimes Act 1900 s. 112(2) (count 3).

4. The maximum penalty for each of counts 1 and 3 is imprisonment for 20 years. A standard non-parole period of 5 years is prescribed.

5. The maximum penalty for count 2 is imprisonment for 5 years. There is no standard non-parole period for that offence.

6. On 17 December 2013 in the District Court her Honour Judge Wells imposed the following sentences:

1. in respect of count 1, a non-parole period of 9 months commencing on 6 May 2013 and expiring on 5 February 2014 with an additional term of 4 months, expiring on 5 June 2014;

2. in respect of count 2, imprisonment for a fixed term of 6 months commencing on 6 May 2013 and expiring on 5 November 2013;

3. in respect of count 3 a non-parole period of 2 years commencing on 6 November 2013 and expiring on 5 November 2015, with an additional term of 1 year and 10 months expiring on 5 September 2017.

7. The total effective sentence was one of imprisonment for 4 years and 4 months with a non-parole period of 2 years and 6 months, to date from 6 May 2013. The applicant now seeks leave to appeal on 8 grounds which are discussed below.

THE FACTS

8. A separate statement of facts in respect of each instance of offending was tendered before the sentencing judge.

Count 1

9. The agreed facts in respect of count 1 were in the following terms:

“About 1:34am on Wednesday 29th December 2010 the accused Daniel Avery along with two other Aboriginal males attended the Casino Golf Club, Casino. All three males had shirts over their heads to hide their identity. The (applicant) who was wearing black and white tracksuit pants with white sneakers, picked up a brick and ran at the rear door throwing the brick at the rear entrance.

The second male who was wearing a rear (sic) shirt also through (sic) a brick at the rear doors. The young person proceeded to run at the doors kicking out at the doors before trying to force the glass back by using his hands.

It’s believed that while (the applicant) was forcing his way to (sic) into the licence (sic) premises using his hands, (the applicant) has cut himself on some of the broken glass on the rear door.

(The applicant) was able to break the glass resulting in all three males entering the licence (sic) premises.

As the two males ran towards the front bar (the applicant) picked up a clear container near the front entrance before running to the front bar area.

(The applicant) along with the third Aboriginal male proceeded to smash the front fridge doors where (the applicant) and the third Aboriginal male proceeded to take various bottles of alcohol.

After (the applicant) has filled his container with bottles of alcohol, (the applicant) along with the two Aboriginal males have fled the licence (sic) premises through the rear doors, towards the golf course. Within minutes security was on scene followed by staff.”

Count 2

10. The agreed facts in respect of count 2 were in the following terms:

“Between 1:30am and 5:15am on Sunday 23rd January 2011 vehicle BF95JH a 1991 White Holden Commodore Wagon, registered to Stevie COX was stolen From (sic) the carpark at the Mallanganee Hotel, Mallanganee. The vehicle was locked and secured by the victim having the only key.

About 10:30am on Wednesday 26th January 2011 Tabulam and Casino Police attended the Tabulam Aboriginal Reserve as a result of information supplied by the community, involving two stolen motor vehicles being driven around the community.

After patrolling the Tabulam Aboriginal Reserve, police located the Nissan Patrol abandoned on Jubullum Street prior to Walker Street, while the commander (sic) wagon was located south on Walker Street, again abandoned.

Police secured both vehicles and as a result of both still being driveable, both where (sic) conveyed to Tabulam Police Station where a rostered tow was arranged.

The vehicle was towed from the location and preserved for fingerprinting and DNA gathering. Crime Scene Police attended and conducted a forensic examination of both vehicles. As a result of the examination DNA belonging to the accused was located on a can VB Beer inside the White Holden Commodore registration BF95JF (sic) (NSW).”

Count 3

11. The agreed facts in respect of count 3 were in the following terms:

“…MA and her son, MK, reside at 13 Shores Drive Yamba and have done so for approximately 4 years. About 5:30am on Saturday 22 December 2012 MK and MA were at home asleep. MK awoke after hearing a loud knocking at the front door. The front door is situated to the left hand side of the house and leads straight into the room where MK sleeps. The knocking was loud and consistent and as a result woke MK, who got up and opened the front wooden door.

As he opened the he was confronted by four male Offender’s (sic) who he described as aboriginal in appearance and they were not wearing any disguises on their face. One of the male offenders punched MK to the face which caused MK’s right front tooth to break. The punch also caused MK to be knocked backwards as two of the Offender’s (sic) entered the home.

On entering these premises one of the Offender’s (sic) was yelling “where’s the money, where’s the money?” (MK) yelled out to his mother MA, who had been asleep in her bedroom, which is adjacent to the lounge room, “we’re being robbed”. MK began to run towards his mother’s bedroom up three stairs into the lounge room and as he did so was assaulted from behind which resulted in him being knocked unconscious and was then left lying on the lounge room floor.

MA got out of bed and dressed, as she was in her underwear and put on a loose fitting dress. When MA came out of her bedroom she saw Daniel Avery, TL and two other offences (sic) in the house and her son (MK) lying conscious on the lounge floor with two of the offender’s (sic) over the top of MK punching him. As she looked out of her room MA saw TL coming towards her, she immediately returned to her room to find something with which to defend herself and closed her bedroom door. Once in the bedroom she heard the door coming off its track and turned back and saw the door had been broken by TL. She tried to push the door back but TL pushed the door and it came down over the top of MA. The door was on top of her only momentarily before TL grabbed the door and threw it to one side. He then grabbed hold of MA’s arms and pulled her up. MA screamed and TL punched her to the left temple. This caused great distress to MA causing her to wet herself. TL punched MA a number of times knocking her over, breaking her nose and cheek bone. Her lip was split, her teeth became loose and she lost some of her fillings as a result of these punches. TL was yelling “I want the money, I want the money”. MA was badly injured and fought back kicking and punching TL.

When TL eventually stopped punching her, he pulled her dress off, up over her head and pushed MA (sic) face first down onto the bed. MA was able to turn over and continued to fight back by punching and kicking him. TL grabbed one of her legs to stop her from kicking him and came over the top of her, pushing her dress over her face so she was unable to see his face. TL held her down by placing his elbow on her collar bone. She then felt his other hand around her crotch and move inside her underwear. TL then felt around her vagina in a rubbing motion and she felt him insert 2 fingers inside her vagina. He then forcefully moved his fingers in and out of her vagina for at least at minute. Whilst this was occurring MA continued to fight TL and believed she may have kicked him in the testicles which caused him to stop his assault on her.

TL then walked out of the room followed by MA to the Lounge room where he went to a coffee table and grabbed the keys to MA’s car. MK was up by this time and made an attempt to stop this male but MA said “No, let him go.”

All four Offender’s (sic) then ran out of the house. MA then heard her car start up and drive away.”

12. The facts were summarised by her Honour (at ROS 1-3), following which her Honour made reference to the contents of an interview in which the applicant had participated with police. In particular her Honour said:

13. “A month late (sic) in January 2013 this offender was arrested in relation to another matter. He made admissions to the Yamba offence. He said that he had been drinking with others and they went to a house around daybreak to get some cannabis. He says that one of the offenders hit MK in the head hard. He was knocked out when the offender entered.

14. The offender searched around the lounge-room and took a pack of cigarettes. He saw TL hit MA. He did not see or participate in offences with her in the bedroom. He did see that once she came out of the bedroom her face was badly injured and black from bruising. At that stage, believing that TL had gone too far, he encouraged them to leave. Apparently they all later took part in burning her car, though he is not subject of a charge in relation to that.

15. He told the police that he believed that they were going there to buy cannabis and admits that he fully participated in taking some property that was taken, namely $1500 cash, an iPhone and a car from the house. He received, he says, $50 and a packet of cigarettes.”

GROUND 1 – The sentencing judge erred by finding a fact adverse to the applicant which it was not open to her to find, namely that the applicant took part in the violent assault upon MK on 22 December 2012

Her Honour’s findings

16. The assault on MK was committed in the course of carrying out the joint criminal enterprise which was the subject of count 3. Having summarised the facts along with aspects of the applicant’s interview with police, her Honour said (at ROS 3):

“Lately it is a well worn excuse advanced often by a number of young menthat the reason they go to another citizen's house is because they wanted toobtain or purchase cannabis. This excuse for what is a home invasion hasbeen advanced all too regularly before the courts. There is no alternativeevidence before the Court, other than in the agreed facts, to explain why theywent there. However that (sic ) the offender immediately seemed prepared and didtake part in a vicious and cowardly assault upon the occupants of the house. Although he did not assault MA he was certainly aware that she was being assaulted and he was a part of the group that burst into the house on that particular night. MK received a broken tooth, as noted. MA received bruising around both eyes, a swollen left eye, a 2 centimetre laceration to the lip, bruising and abrasions over the right clavicle and bruising to both feet, arms and back” (emphasis added).

17. In the context of considering the objective seriousness of the offending her Honour then said (at ROS 4):

“There were four people involved, four young men, including this offender, who is clearly a fit strong young man. They entered a residence where people should expect to feel safe and secure at around 5.30am. This would have caused considerable alarm to the occupants of the house. There was a flurry of extreme violence in which this offender was involved” (emphasis added).

18. Finally, her Honour said (at ROS 5):

“Whilst, as part of the agreed facts, it must be accepted that the offenders went there to get drugs, this offender joined in this serious offence with a great deal of enthusiasm” (emphasis added).

Submissions of the applicant

19. Counsel for the applicant submitted that the extracts of the remarks on sentence set out at [13]-[15] above, and particularly the italicised parts within those extracts, supported a conclusion that her Honour erroneously found that the applicant was involved in assaulting MK. It was submitted that there was nothing in either the agreed facts or in the applicant’s record of interview which provided a proper basis for such a finding.

20. Particular reliance was placed on the fact that in the passage of her Honour’s remarks set out in [13] above, her Honour expressly stated that the applicant was not responsible for the assault on MA but made no similar statement in the following sentence when making reference to the assault on MK. It was submitted that this, combined with her Honour’s references to the applicant being involved in a “a flurry of extreme violence” (at [14] above) and to the applicant having “joined in this serious offence with a great deal of enthusiasm” (at [15] above) supported the conclusion that her Honour had erroneously found that the applicant had taken part in the assault upon MK. It was submitted that this finding was significant in her Honour’s determination of the objective seriousness of the offending and caused the sentencing discretion to miscarry.

Submissions of the Crown

21. The Crown accepted that on the facts before the sentencing judge the applicant did not inflict any violence upon either MA or MK. However it was submitted that on a fair reading of the entirety of the material before the sentencing judge there was no doubt that the applicant was in the midst of the violence which was taking place, and that he played a pivotal role in what had occurred. It was submitted that the presence of the applicant in the premises generally, and at the front door and the lounge room in particular, provided encouragement to the co-offenders and necessarily engendered additional fear in the victims.

22. Viewed in this way, it was submitted by the Crown that her Honour’s observations were supported by the evidence before her.

Consideration

23. In considering this ground a number of matters must be emphasised at the outset.

24. Firstly, the sentencing judge did not make any finding that the applicant had actually played any direct part in the assault upon MK. Her Honour’s observations must be viewed in the context of the Crown case against the applicant in respect of count 3 being based upon a joint criminal enterprise.

25. Secondly, there was a lengthy statement of facts tendered on sentence in respect of count 3. Her Honour can be assumed to have been familiar with those facts which she summarised in her sentencing remarks. Those facts made it clear that it was no part of the Crown case against the applicant that he participated in any direct way in the assault upon MK.

26. Thirdly, her Honour summarised aspects of the applicant’s interview with police (at [12] above). In doing so, her Honour made express reference to the fact that the applicant had told police that “one of the offenders” (in other words, someone other than the applicant himself) had assaulted MK.

27. In my view, there is no room for the suggestion that her Honour was under some misapprehension about the precise role played by the applicant in the joint criminal enterprise which formed the basis of count 3. In particular, her Honour could not possibly have been under the misapprehension that the applicant was directly involved in the assault upon MK.

28. The various extracts from the sentencing remarks upon which the applicant relied in support of this ground can only be sensibly construed as references to the applicant’s participation in the broader joint criminal enterprise in which he had admitted, by his plea of guilty, to having taken part. There is no basis upon which to conclude that her Honour was either not aware of the facts, or that she had somehow misconstrued them.

29. Ground 1 is not made out.

GROUND 2 – The applicant was denied procedural fairness because the sentencing judge found a fact which was adverse to the applicant, contrary to the agreed facts and which had not been the subject of any cross-examination or submissions, namely that the applicant took part in the violent assault upon MK on 22 December 2012 without giving the applicant the opportunity to adduce further evidence or make further submissions.

30. Ground 2 is inextricably linked to Ground 1.

31. In light of the conclusion I have reached in respect of Ground 1, Ground 2 is not made out.

GROUND 3 – The sentencing judge erred by taking into account, in assessing the objective seriousness of the applicant’s conduct, the circumstance that MA had been sexually assaulted by one of the co-offenders on 22 December 2012.

The findings of the sentencing judge

32. The agreed facts which were before the sentencing judge made reference to the sexual assault on MA. That assault fell outside the ambit of the joint criminal enterprise alleged by the Crown. There was no suggestion at all that the applicant participated in it. It is not clear why there was a reference to it in the statement of facts tendered in respect of count 3 but there was no ambiguity in the Crown’s position as evidenced by the following statement made to her Honour by the Crown during the sentence proceedings (at T16 L16):

“The Crown is saying that’s not within this offender’s contemplation at the time that’s all.”

33. Against that background her Honour said, in reference to the sexual assault (at ROS 2):

34. “That aspect of the offence is not a matter for which this offender faces a charge, nor is he to be held responsible because it falls outside the plan that was embarked upon. Nevertheless it is a significant matter in the circumstances of these young men entering someone's house as they did that night.”

35. Subsequently, when referring to the applicant’s interview (at ROS 3) her Honour said:

36. “He saw TL hit MA. He did not see or participate in offences with her in the bedroom”.

Submissions of the applicant

37. It was submitted that notwithstanding her Honour’s express statement that the applicant was not to be held responsible for the sexual assault, an error arose as a consequence of her Honour’s reference (in the passage set out in [30] above) to the fact that it was “nevertheless…a significant matter.” Counsel for the applicant submitted that the sexual assault of MA was not a matter which her Honour was entitled to even consider, let alone a matter to which she was entitled to attach significance.

Submissions of the Crown

38. The Crown submitted that it was clear from her Honour’s remarks that the sexual assault was not taken into account on the applicant’s sentence. It was submitted that her Honour had clearly indicated that the applicant was not to be held responsible for that offence, and had also indicated the reasons why that was so.

Consideration

39. The reference to the “significance” of the matter was preceded by the sentencing judge expressly acknowledging that the sexual assault:

1. fell outside the scope of the joint criminal enterprise;

2. was not a matter which was the subject of a charge against the applicant; and

3. was not a matter for which he was responsible.

40. Such statements make it clear that her Honour was obviously well aware of the fact that the sexual assault was not something which could be taken into account in sentencing the applicant. In the face of such statements, I am not able to accept the proposition that her Honour somehow took the sexual assault into account in assessing the objective seriousness of the applicant’s offending in count 3.

41. Ground 3 is not made out.

GROUND 4 - The sentencing judge failed to give any or any significant effect to her finding of special circumstances in relation to the offence of 29 December 2010.

The findings of the sentencing judge

42. This ground was limited to the sentence imposed in respect of count 1.

43. Having dealt with the applicant’s subjective circumstances, her Honour said (at ROS 8):

“Special circumstances are found given that this has been his first time in custody in adult prisons and that he will also need an extended period under supervision once he is released from prison to assist with his prospects of rehabilitation.”

Submissions of the applicant

44. The applicant submitted that the sentence imposed in respect of count 1 reflected a variation of only 3 weeks from the statutory ratio and failed to reflect her Honour’s finding of special circumstances. It was submitted that such a variation was not sufficient to give any real effect to that finding.

Submissions of the Crown

45. The Crown submitted that the sentence imposed in respect of count 1 was a modest one and that in all of the circumstances the variation at which her Honour arrived was appropriate. The Crown also relied upon the overall sentence which, it was submitted, properly reflected her Honour’s findings.

Consideration

46. Her Honour imposed a total effective sentence of 4 years and 4 months imprisonment with a non-parole period of 2 years and 6 months. That non-parole period represented 57 per cent of the total sentence. That, on any view, was a substantial variation of the statutory ratio.

47. The submissions advanced on behalf of the applicant in support of this ground fail to have regard to the total effective sentence which was imposed. That sentence clearly gave effect to her Honour’s finding of special circumstances.

48. Ground 4 is not made out.

GROUND 5 - The sentencing judge failed to properly apply principles of totality, in particular when considering the degree of accumulation upon the existing sentences.

Her Honour’s findings

49. Immediately prior to pronouncing sentence, her Honour said the following:

“He has spent a long time now in custody. When regard is had only tothese matters he has been on remand for a short period. In addition he has served a lengthy period of imprisonment in relation to the matters for which he was on bail at the time of the Yamba offence. Accordingly the principles of totality are taken into account in that had he been sentenced all of these offences at once the Court would have imposed a sentence that took into account the offence that fell in between these two offences in time” (emphasis added).

Submissions of the applicant

50. Counsel for the applicant submitted that there was no indication in the remarks on sentence that her Honour had considered the significance of the total effective sentence which she imposed.

51. It was further submitted that her Honour should have considered such sentence in the light of the extent of the discount for the applicant’s assistance to the authorities so as to ensure that the discount was not eroded by any accumulation.

Submissions of the Crown

52. The Crown submitted that it was essential that any sentence have appropriate regard to the totality of the applicant’s offending behaviour, and that such a requirement had been met in the present case. The Crown also emphasised that considerations of totality and accumulation were matters within the discretion of the sentencing judge who should be allowed as much flexibility in sentencing as is consonant with consistency of approach.

53. The Crown further submitted that her Honour’s express reference to principles of totality made it clear that those principles were in fact applied when determining sentence.

Consideration

54. Considerations of concurrence, accumulation and totality are matters within the discretion of a sentencing judge: R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38 per Hall J at [52] citing R v Cahyadi [2007] NSWCCA 1; (2007] 168 A Crim R 41 at [27] and following per Howie J. Nothing said by her Honour suggests that her discretion in this regard miscarried. On the contrary, the proposition that her Honour failed to apply principles of totality ignores her Honour’s express reference to those principles in the italicised portion of those parts of her remarks set out at [44] above.

55. The submissions of the applicant also ignore the substantial adjustment to the statutory ratio which is reflected in the overall sentence, and which resulted from her Honour’s finding of special circumstances. In light of that adjustment her Honour must necessarily have been aware of the effect of the accumulation which she had determined was appropriate.

56. Ground 5 is not made out.

GROUND 6 – The sentencing judge erred in relation to the discounts for assistance to authorities

The evidence

57. When interviewed on 22 January 2013, the applicant was asked to identify those in whose company he committed the offending in count 3. He said, in answer to question 289:

“Um, me, TL, um, Ed Walker and Robbie Williams.

Q 290: You’ve known then (sic) all for a long time.

A: Yeah, yeah, yeah, Robert Williams I now (sic) him he’s my uncle.

Q 291: Yeah.

A: Yeah.

Q 292: And Eddie Walker where’s Eddie from?

A: He’s from Tumbulgum.

…

Q 298: Yeah. And you said on the earlier recording that it was TL’s idea throughout.

A: Yeah.”

58. Following the interview, the applicant signed an undertaking to give evidence at any proceedings against the co-offender TL for offences arising out of the offending in count 3.

59. When giving evidence on sentence, the applicant said in cross-examination (commencing at T10 L13):

“Q: In relation to you giving evidence you know TL (sic) has been arrested?

A: Yeah.

Q: He’s been charged?

A: Yeah.

Q: You’ve nominated Ed Walker and Robert Williams as also being co-accused, is that correct?

A: Yeah.

Q: Pardon?

A: Yes.

Q: They are the people that you’ve nominated, are you willing to give evidence in relation to those two if they are arrested at a future later date as well?

A: Yeah.

Q: I beg your pardon?

A: Yes.”

The findings of the sentencing judge

60. At ROS 6 her Honour said:

“He has pleaded at the earliest possible opportunity in relation to each ofthese offences and that will merit a twenty five per cent discount against thesentence that would otherwise have applied. In addition he has undertaken togive evidence. When arrested in January 2013 he made admissions to thepolice indicating one of the other people who was involved. The assistancethat he has given will be in relation to this serious offence. It does not relate toany other offences. He has identified only one of the co-offenders who waspresent. The assistance that he proposed to give was timely occurring whenhe was arrested by police and when he was questioned about this offence.Although there is no evidence before the Court he will probably suffer harshercustodial conditions and there is a risk of injury to him should he giveevidence. In all I have determined that the assistance should merit a further twenty per cent discount so that the total discount that will apply will be one of forty five per cent in total.”

Submissions of the applicant

61. Counsel for the applicant submitted that there were three errors arising out of the manner in which her Honour dealt with the issue of assistance. It was submitted that her Honour had:

1. erroneously found that the applicant had only identified one of his three co-offenders;

2. failed to specify the sentences which would have been imposed but for the assistance and, in particular, failed to specify the proportion of the discount referable to each of past and future assistance; and

3. failed, in relation to the offending in count 2, to ensure that the discount effectively applied to the non-parole period.

62. As to the first of those matters, it was submitted that the applicant had in fact identified his three co-offenders in respect of the offence in count 3, both in his interview with police and when giving evidence. It was also pointed out that when giving evidence the applicant had expressly undertaken to give evidence against the co-offenders Walker and Williams in the event that either of them was apprehended in the future. It was submitted that her Honour’s error in this regard was significant and that a proper understanding of the level of the applicant’s past and future assistance may have led her Honour to allow a greater discount than she did.

63. As to the second matter, it was submitted that it had been incumbent upon the sentencing judge to quantify the amount by which the sentences had been reduced for each of past and future assistance in accordance with s. 23(4) of the Crimes (Sentencing Procedure) Act 1999 NSW (“the Sentencing Act”). It was submitted that her Honour had erred in failing to do so and that although, in light of s.23(6) of the Sentencing Act, that error did not invalidate the sentence, it was indicative of the fact that her Honour may not have given proper consideration to the value of the applicant’s past assistance.

64. Finally, counsel for the applicant pointed out that the sentencing judge had imposed a fixed term of 6 months imprisonment in respect of the offending in count 2 but had given no reason for doing so. It was submitted that in view of her Honour’s failure to comply with s. 23(4)(b) of the Sentencing Act, this Court was left to speculate as to her Honour’s intentions in setting a fixed term.

65. In oral argument before this Court, counsel for the applicant conceded that the discount which was applied was “not ungenerous” but stressed the importance of correctly identifying the level of assistance. Counsel then submitted that the considerations discussed in R v Ellis (1986) 6 NSWLR 603 should operate in the applicant’s favour to increase the discount to one of 50 per cent. No such submission was put to the sentencing judge.

Submissions of the Crown

66. The Crown submitted that although the applicant nominated the persons Walker and Williams as his other co-offenders in respect of the offending in count 3, there was no independent corroboration of their involvement and they had not been arrested. The Crown also pointed out that the offending in counts 1 and 2 involved others who were not named or otherwise identified by the applicant. It was submitted that in these circumstances there was in fact no error in her Honour’s findings.

67. The Crown appeared to accept that the sentencing judge had failed to comply with s. 23(4) of the Sentencing Act. However, it was submitted that her Honour’s failure to do so was not a ground upon which the present appeal ought be allowed.

Consideration

68. This Court has previously emphasised that where a discount is to be applied to reflect a plea of guilty along with past and future assistance, the relevant apportionment should be indicated: Hutchinson v R [2014] NSWCCA 317 per Fullerton J at [31] citing LB v R [2013] NSWCCA 70 and R v Ehrlich [2012] NSWCCA 38; (2012) 219 A Crim R 415. Her Honour did not approach the matter in accordance with those authorities and in doing so failed to comply with s. 23(4) of the Sentencing Act. However, given the provisions of s. 23(6), her Honour’s failure in that regard does not invalidate the sentence she imposed.

69. The terms of the applicant’s signed undertaking to give evidence were limited to giving evidence against the co-offender TL in respect of the offending in count 3. Although the applicant identified the other two co-offenders by name, there was no evidence before her Honour that such identification was in fact correct. Neither person, it seems, has ever been arrested. In these circumstances, her Honour’s observation (in the passage set out in [55] above) that the applicant had identified only one of his co-offenders in respect of count 3 was, strictly speaking, correct. Moreover, there was no assistance rendered by the applicant in terms of identifying, or agreeing to give evidence against, any of those involved with him in the offending which was the subject of count 1 or count 2.

70. The real issue which arises in respect of this ground is whether the discount applied by her Honour was appropriate in all of the circumstances. This Court has previously observed that it would be exceptional for a discount of more than 40 per cent to be given in respect of a plea of guilty and assistance absent evidence that the offender will serve the sentence in more difficult conditions than other prisoners because of the assistance given: R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151. It has also been observed by this Court that a combined discount for plea and assistance should not normally exceed 50 per cent and that a discount exceeding that amount should normally be reserved for cases which are regarded as exceptional: SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249. In SL v R [2015] NSWCCA 30 Davies J, having cited the decisions in Sukkar and SZ observed (at [44]) that it is not exceptional for an applicant simply to provide information on the identity of a co-accused or even to give evidence against a co-accused. His Honour observed that such assistance often results in an offender requiring protective custody but that such hardship is inherent in the offer and the discount that results. In any event, as I have observed, there was no evidence in the present case that the applicant’s conditions of custody were rendered more harsh as a consequence of his assistance. These authorities recognise that the discount for plea and assistance must not be such as to result in the imposition of a sentence which is unreasonably disproportionate to the nature and circumstances of the offence: Hutchinson (supra).

71. In the present case her Honour found that there was no evidence that the applicant’s conditions of custody would be rendered harsher as a consequence of his assistance. Notwithstanding that, the discount applied by her Honour was in excess of the 40% referred to in Sukkar. Viewed in that light, the discount is a generous one. So much was conceded by counsel for the applicant in oral argument.

72. To the extent that the applicant’s submissions relied upon the application of the principles in Ellis, no such submission was ever put to the sentencing judge. It is not open for a party to come to this Court and assert error on the part of a sentencing judge based upon a failure to take a particular course which the judge was never asked to take. Generally speaking, a party is bound by the manner in which the case is conducted at first instance: Zreika v R [2012] NSWCCA 44 at [80] and [82] per Johnson J.

73. The applicant’s assistance, whilst obviously valuable, was limited. There was, as I have indicated, no evidence which suggested that his conditions of custody were rendered more onerous as a result. In my view, given these circumstances, the discount applied by her Honour was, to say the least, generous.

74. Ground 6 is not made out.

GROUND 7 – The sentencing judge erred by failing to take into account the applicant’s intoxication

The evidence

75. When interviewed by police on 22 January 2013, the applicant was asked:

“Q 122: Or, did you hear anything going on inside the house when you went in?

A: No I didn’t hear shit man ‘cause I was drunk bro, nothing, nothing…take, well I went in there and that’s when I looked and old bud was there and Eddie Walker was, you know trying, ask him where the money and the sticks and that were.”

76. In a second interview conducted on the same day the applicant was asked the following questions about what he did in the period leading up to the offending:

“Q 21: Can you tell me again what happened once you arrived in Yamba and then throughout that evening?

A: Just, you know just, we just rocked up and yeah just seen TL and that there at his house and just jumped out you know.

Q 22: Yeah,

A: Shook his hand and cuddled like - -

Q 23: Yeah.

A: - - and just, you know, had a drink.

Q 24: And you’ve known TL for a long time.

A: Yeah I knew him for a long time yeah.

Q 25: Yeah what happened then?

A: And just you know just got pissed.

Q 26: Through the night.

A: Yeah through the night.

Q 27: Yeah was it a bit of a party then yeah.

A: Yeah I reckon there was…there.

Q 28: How many do you reckon?

A: I reckon there was about forty of us.”

The findings of the sentencing judge

77. In the course of the sentence proceedings, the applicant’s solicitor submitted that the principles in R v Fernando (1992) 76 A Crim R 58 were directly applicable. In the course of doing so, and in the context of the applicant’s upbringing, her Honour noted (at T19 L 15) that “there was alcohol”. The applicant’s solicitor then continued:

“Alcohol in the community where he grew up and certainly that alcohol is attributed to both parents”.

78. The applicant’s solicitor then addressed further matters in the course of which her Honour said (T19 L27):

“All right, I accept Fernando applies”.

79. It was not put to her Honour that the applicant’s intoxication at the time of his offending was of any significance on sentence. It was also not put to her Honour that she should take such intoxication into account on sentence, or make a particular finding about it. As outlined above, the submissions made to her Honour were restricted to pointing out that the applicant was brought up in an environment where alcohol was regularly (and excessively) consumed by members of his family.

80. Having outlined the circumstances of the offending in count 3, and having made reference to the fact that the applicant had made admissions in relation to that offending, her Honour said (at ROS 3):

“He said that he had been drinking with others and they went to a house around daybreak to get some cannabis”.

81. Further, at ROS 6, her Honour said:

“In this case the principles enunciated in Fernando clearly apply given his Aboriginal heritage and the deprived circumstances in which he was brought up both within his family and within the community where he grew up. He has clearly had contact with the abuse of alcohol and drugs for most of his life and has so engaged from a youngish age.”

Submissions of the applicant

82. It was submitted that the statements made by the applicant when he was interviewed constituted evidence that at the time of his offending he was intoxicated to a degree which was far greater than that for which her Honour allowed. It was submitted that the sentencing judge did not, at any stage, make any finding about the applicant’s intoxication, nor did she state that she had considered whether or not it was a factor that ought be taken into account. It was submitted by failing to take that factor into account, the sentencing judge had failed to properly consider the principles in Fernando and that as a consequence, her sentencing discretion had miscarried.

Submissions of the Crown

83. The Crown submitted that even when the evidence was taken at its highest, the references to the applicant’s intoxication were “passing at best” and were equivocal as to his actual state of intoxication at the time of the offending. It was submitted that the applicant’s level of intoxication could be properly gauged by the fact that he was able to sufficiently recall them when interviewed some weeks later. It was submitted that this, along with his apparent capacity to be able to drive the vehicle away from the scene of the offending in count 3, tended against the conclusion that he was intoxicated to any significant degree.

84. Counsel for the Crown also pointed out that the issue of intoxication was not the subject of any submission on sentence, other than in the context of the judgment in Fernando to which her Honour referred. In these circumstances, it was submitted that there was no error in the way in which her Honour dealt with the matter.

Consideration

85. The submissions advanced in support of this ground complained that her Honour failed to make a finding about the applicant’s intoxication at the time of the offending, and failed to find that such intoxication was relevant on sentence. The sentencing judge was not asked to make either finding. The observations of Johnson J in Zreika are again applicable.

86. What was put to her Honour on sentence was that the principles in Fernando applied. Her Honour accepted that submission and expressly stated that such principles applied. There is no reason to conclude that her Honour did not approach sentence in accordance with these statements.

87. Ground 7 is not made out.

GROUND 8 – The sentences are manifestly excessive

The findings of the sentencing judge

88. Having dealt with the facts of the matter, her Honour turned to consider the issue of objective seriousness (commencing at ROS 4):

“In relation to the objective seriousness, the Casino matter it is accepted, falls below the midrange and towards the lower end of objective seriousness. Though it is not by any means at the lowest end. It is a very serious offence. There was an element of planning, albeit not sophisticated given the attempt at disguises worn by the offenders. It did occur during a week day and at a time of night when no one was likely to be present. It was a business premises and not a residence which means that it is less serious. There was damage done to this small club that can ill afford the cost of offences such as this occurring there, in particular to pay for repairs. Not a lot of property was taken but the damage to this small club was considerable and would have cost a significant amount. The offenders ran away on foot. The circumstance of aggravation is that they were in company, which also is one of the less serious circumstances of aggravation available for offences of this kind.

In relation to the Yamba matter, it is clearly a much more serious matterand falls at the midrange or slightly above. There were four people involved,four young men, including this offender, who is clearly a fit strong young man.They entered a residence where people should expect to feel safe and secureat around 5.30am. This would have caused considerable alarm to theoccupants of the house. There was a flurry of extreme violence in which thisoffender was involved. The injuries though do not fall at the more serious end of the scale. The property taken, though substantial for the complainants, is not at the more serious end for offences of this kind.

Whilst, as part of the agreed facts, it must be accepted that the offenders went there to get drugs, this offender joined in this serious offence with a great deal of enthusiasm. On the other hand in his favour he did at a later point encourage the others to desist and leave. In all it caused a great deal of trouble for everyone, most particularly the complainants, but also for this offender and for very little return at all. According to the facts, at the moment they knocked on the door there was no attempt to buy drugs both on the version of the complainant and the accused. Their plan obviously changed very quickly indeed.”

89. Her Honour then proceeded to deal with the applicant’s subjective case. At the time of the offending in counts 1 and 2 the applicant had just turned 18 years and by the time of the offending in count 3 he had just turned 20. Her Honour noted his criminal history and the fact that it contained a number of offences of a similar kind before stating (at ROS 5):

“He has a record that indicates that he is, in terms of break and enter offences, a one man crime wave. At the time of the Yamba offence he was on bail for other break and enter offences which was the one for which he has just completed serving a sentence.”

90. Tendered to the court on sentence was a report of Allan Anderson, a Psychologist who had assessed the applicant. He reported that the applicant had provided a history of his mother having left his family when he was a baby and that he remained along with “about nine siblings” with his father. The applicant did not report being subjected to “much” physical abuse whilst growing up. He left school in Year 9 and had not worked since that time. Thus, the applicant had been unemployed from about the age of 15 to the age of 21. The applicant reported that he had started to drink alcohol at about the age of 15, and also stated that he started using cannabis at that time. Those matters were described as “usual in that family and in that local area”.

91. Testing administered by Mr Anderson indicated that the applicant showed no inclination on the part of the applicant towards violent behaviour, and no evidence of anxiety or stress. Mr Anderson said (at p. 3 of his report):

“Daniel impresses as a young man of average intelligence. He has not used any illicit substances whilst in jail and presents as a pleasant and polite young man who has, in my opinion, been the victim of circumstances and could not have had any other lifestyle other than the one in which he is being caught up.

Daniel has told me that when he is able to leave gaol this time he wanted to return to live with his father who, according to Daniel, has “lined up” some kind of work for him under the “work for the dole” program.

…

I would hope that when Daniel leaves jail on this occasion he may voluntarily decide to enter a rehabilitation centre such as Balunda, where he has previous experience, and probably try to complete a six month program there. I believe this would be very good for him if he were to have the patience and tolerance to do so.

Daniel has convinced me that when he leaves detention he does not want to use cannabis and he does not want to drink alcohol. I think this will be very difficult unless he undertakes a period of rehabilitation in a suitable centre. It would be very difficult, in my opinion, for Daniel to return to his home, live with his siblings and his father without being susceptible to alcohol and drug use again.

Daniel would certainly have been under the influence of alcohol and/or drugs when these offences were committed. He would certainly have been suffering from deep depression at the time of the said offences”.

92. It must be noted that nowhere in Mr Anderson’s report is there a reference to any history provided by the applicant as to his use of alcohol or drugs at the time of any of the offending. Moreover, Mr Anderson did not diagnose depression. His references to the applicant having been under the influence and in a “deep depression” at the time of his offending were apparently based solely upon the history provided by the applicant. They are deserving of little weight in the circumstances.

93. Having summarised Mr Anderson’s report, her Honour concluded (as previously noted) that the principles enunciated in Fernando clearly applied in light of the applicant’s Aboriginal heritage and the deprived circumstances in which he was brought up, both within his immediate family and within the broader community group.

94. Her Honour concluded that the offending, and particularly the offending in count 3, attracted application of principles of general and specific deterrence. She concluded (at ROS 7):

“As indicated he has been for some time now something of a one man crime wave, his offending has been rather unrelenting. As he is still, and was certainly at the time of the offences, a young man, rehabilitation remains a significant factor. On the one hand his remorse is indicated by his admissions to the police when arrested, by the early indication of a plea and by his willingness to assist the authorities. On the other hand his behaviour in committing these types of offences on an ongoing basis and the fact that he left Balunda, a program that would have assisted him greatly, means that his prospects of rehabilitation are guarded at this stage.”

Submissions of the applicant

95. In submitting that the sentences, both individually and overall, were manifestly excessive, counsel for the applicant turned firstly to the objective seriousness of the offending. He submitted that such objective seriousness was properly summarised as follows:

1. the serious indictable offence in respect of count 1 was stealing from unoccupied commercial premises at night;

2. the offending in count 2 amounted to the applicant being a passenger in a stolen car driven around an Aboriginal Mission;

3. the offending in count 3 was constituted by the applicant’s encouragement to, and support of, others but significantly did not involve directly participating in the assaults upon the two victims.

96. Counsel for the applicant also relied on the following additional matters in support of the conclusion that the sentences were manifestly excessive:

1. the early pleas of guilty;

2. what was said to be the “very significant” assistance to authorities;

3. the applicant’s age;

4. his deprived background;

5. his intoxication at the time of the offending in count 3; and

6. the existence of special circumstances.

Submissions of the Crown

97. The Crown submitted that in order to establish this ground it was incumbent upon the applicant to establish the sentences were unreasonable or plainly unjust. It was submitted that the unreasonableness or the unjustness of the sentence must be established in a context where there is no single correct sentence and where judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle: Kendall v R [2015] NSWCCA 13 at [47].

98. The Crown submitted that the sentences imposed on the applicant were not manifestly excessive having regard to the following factors:

1. the maximum penalties and, in respect of counts 1 and 3, the prescribed standard non-parole period;

2. the overall criminality involved;

3. the level of objective seriousness of the offending as found by the sentencing judge;

4. the fact that the applicant was on conditional liberty at the time of the offending in count 3; and

5. the nature and extent of the injuries inflicted upon the two victims of the offending in count 3.

Consideration

99. In my view, the submissions of counsel for the applicant tend to understate the seriousness of the applicant’s offending.

100. The offending in count 1 reflected steps having been taken by the applicant and his co-offenders to hide their identity. That was a clear indication of some degree of planning. The applicant was responsible for breaking into the premises by engaging in the violent act of throwing a brick through the rear entrance. Thankfully, because of the time at which the offending took place, no member of the public was placed in any danger. Once inside, the applicant proceeded to engage in further violence by smashing the front refrigerator door for the purposes of stealing quantities of alcohol.

101. The gravamen of the offending in count 2 was that that the applicant allowed himself to be carried in a stolen conveyance, knowing that it had been stolen. The fact that the use of the stolen conveyance may have been limited to use within the confines of an Aboriginal mission does not, in my view, significantly mitigate the offending.

102. The offending in count 3 was in the nature of what is generally described a home invasion. Its seriousness is self-evident, as is the fear which would have been engendered in the two occupants of the home.

103. Quite apart from the objective seriousness of the offending, the complaint of manifest excess also tends to overlook the fact that the applicant’s offending was committed against a background of a substantial criminal history for offending of this nature. Notwithstanding the applicant’s relative youth and his background, both of which her Honour took into account, considerations of general and personal deterrence were of obvious significance in determining an appropriate sentence.

104. The applicant was the beneficiary of a generous discount for his plea and assistance. He was also the beneficiary of a finding of special circumstances which resulted in a substantial variation being made to the length of the non-parole period.

105. In all of these circumstances I am unpersuaded that the sentences are manifestly excessive, in the sense of being unreasonable or plainly unjust: Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321.

ORDERS

106. I propose the following orders:

1. Leave to appeal granted.

2. Appeal dismissed.

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Amendments

13 May 2015 - Suppression of name of co-offender

Decision last updated: 13 May 2015