BG v The Queen

[2018] NSWCCA 161

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	BG v R [2018] NSWCCA 161
Hearing dates:	8 June 2018
Date of orders:	03 August 2018
Decision date:	03 August 2018
Before:	Simpson AJA at [1] Bellew J at [2] Wilson J at [84]
Decision:	(1)   Leave to appeal is granted.  (2) The appeal is dismissed.
Catchwords:	CRIMINAL LAW – Sentence – Appeal – Asserted error in assessment of objective seriousness by the sentencing judge – Asserted error in assessing the discount to reflect the utilitarian value of the applicant’s plea of guilty – Whether applicant entitled to a discount to reflect assistance to the authorities - Whether sentence manifestly excessive – Whether sentencing judge erred in failing to find special circumstances – No error established   CRIMINAL LAW – Sentence – Appeal – Where applicant submitted that there had been a failure on the part of the sentencing judge to give proper weight to his subjective case – Observations as to the narrow circumstances in which such a failure will amount to error – Observations as to the difficulty in advancing such a submission and the necessity to establish a miscarriage of the sentencing discretion – No error established
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Caristo v R [2011] NSWCCA 7 Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54 Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45 House v R (1936) 55 CLR 449; [1936] HCA 40 King v R [2015] NSWCCA 99 Mulato v R [2006] NSWCCA 282 R v Baker [2000] NSWCCA 85 R v Cramp [2004] NSWCCA 264 R v El-Hayek [2004] NSWCCA 25; 144 A Crim R 90 Zreika v R [2012] NSWCCA 44; 223 A Crim R 460
Category:	Principal judgment
Parties:	BG – Applicant Regina – Respondent
Representation:	Counsel: J Eaton (Solicitor) – Applicant E Balodis – Respondent   Solicitors: C Hyland, Solicitor for Public Prosecutions (NSW) – Respondent
File Number(s):	2014/31192; 2014/31287
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 4 April 2016 Before: Her Honour Judge Wells SC

Judgment

1. SIMPSON AJA: I agree with Bellew J.

2. BELLEW J: On 1 April 2016 BG (“the applicant”) pleaded guilty before the District Court at Lismore to a number of offences, the details of which are as follows:

Count	Offence	Date of offending	Statutory provision	Maximum penalty	Standard non-parole period
1	Intentionally destroy property with intent to endanger life	6 October 2013	Crimes Act 1900 s 198	25 years imprisonment	No
2	Aggravated break, enter and steal in company	6 October 2013	Crimes Act 1900 s 112(2)	20 years imprisonment	5 years imprisonment
3	Aggravated enter with intent to steal in company	6 October 2013	Crimes Act 1900 s 111(2)	14 years imprisonment	No
4	Assault occasioning actual bodily harm in company	6 October 2013	Crimes Act 1900 s 59(2)	7 years imprisonment	No
5	Specially aggravated enter with intent to steal (recklessly cause grievous bodily harm)	16 November 2013	Crimes Act 1900 s 111(3)	20 years imprisonment	No
6	Reckless wounding	16 November 2013	Crimes Act 1900 s 35(4)	7 years imprisonment	3 years imprisonment
7	Recklessly cause grievous bodily harm	16 November 2013	Crimes Act 1900 s 35(2)	10 years imprisonment	4 years imprisonment
8	Recklessly cause grievous bodily harm in company	16 November 2013	Crimes Act 1900 s 35(1)	14 years imprisonment	5 years imprisonment
9	Aggravated break, enter and steal (in company)	16 November 2013	Crimes Act 1900 s 112(2)	20 years imprisonment	5 years imprisonment

3. In addition, the applicant asked the sentencing Judge to take into account the following matters on a Form 1.

Date	Brief description of offence
6 October 2013	Larceny of memorabilia, electronic equipment and cash
6 October 2013	Steal motor vehicle belonging to the victim JA
16-17 November 2013	Assault occasioning actual bodily harm in company upon the victim RW
16-17 November 2013	Assault occasioning actual bodily harm in company on the victim SP
16-17 November 2013	Assault occasioning actual bodily harm in company on the victim JA
16-17 November 2013	Steal motor vehicle belonging to the victim SP
16-17 November 2013	Destroy motor vehicle by fire belonging to the victim SP.

4. On 4 April 2016 the sentencing Judge imposed an aggregate sentence of 9 years imprisonment with a non-parole period of 6 years and 4 months imprisonment.

5. The applicant now seeks leave to appeal against that sentence on the grounds set out below.

THE FACTS

6. The applicant was sentenced with two co-offenders, to whom I shall refer as DR and AW. There was also a fourth offender, PG. A statement of agreed facts was tendered on sentence the details of which were recorded by the sentencing Judge (commencing at ROS 3) in the following terms (noting that the names of the applicant, his co-offenders, and the victims have all been anonymised):

There are separate agreed facts with respect to each of the three offenders but I will deal with those together. The complainant JA was aged seventy-three at the time of these offences and he lived alone at his house at Spring Street, East Lismore. He had lived there since he was born in 1939. There is also a bomb shelter in the yard that was built during World War Two. JA had an interest in radio and electrical hobbies and was a longstanding member of the Summerland Amateur Radio Club at another suburb in Lismore, Richmond Hill. The offender DR was well-known to JA as he too had been a long-term member of the same radio club. However in more recent years, DR had moved to Glen Innes where he resided. DR was an associate of the offender BG who was also from Glen Innes and through him, came to meet PG.

In September 2013 at a time when BG and PG were short of money and in debt, DR told them of the radio equipment and memorabilia owned and held by JA at his house. He also told them that JA was a paedophile. Ultimately DR provided them with relevant information enabling PG and BG to attend at the house with the plan to steal items of value from JA's house. DR agreed that he would buy some of that property. A couple of weeks before the first offence, DR drove the co-offenders PG and BG from Glen Innes all the way to Lismore in his car to show them where JA lived. They drove past the house at East Lismore and returned to Glen Innes.

On 6 October 2013, the date of the first set of offences, DR again drove PG and BG to Lismore in his car. They had taken the precaution of wearing military fatigues, had prepared balaclava disguises cut from sleeves and each had latex gloves to avoid detection. On dark, DR dropped them up the street from JA's house. They later entered his premises and had a look around before they waited for a period of some hours in the bunker area or bomb shelter that was in JA's yard.

He returned at 8pm. He reversed his car into the garage and PG and BG followed him in. As he was getting out of his vehicle they approached him wearing the balaclavas. PG grabbed JA first by the scruff of his neck and then BG, grabbed him, head-butted him and pushed him over a tool chest or similar. He was hit in the side of the face a couple of times and punched in the ribs. PG and BG closed the garage door.

JA was forced upstairs by both of them, though in evidence BG said that he carried him upstairs. At the top of the stairs he was again knocked to the ground and further assaulted. At some point his wallet was taken containing about $900.00, credit cards and PIN numbers. A bayonet was pointed towards him and he was threatened to reveal his PIN. The offender BG, in evidence to this Court, denied he did such a thing but ultimately said that he did not remember that happening.

While these things were taking place, the offenders stood over JA and called him various names such as "dirty rocky." He apparently was kicking back at them saying that he had never treated anyone as bad as this. At some point his hands and feet were tied with electrical cord. Again in his evidence to this Court, BG denies doing that or even having any knowledge that JA was restrained in that way.

As was the case in the sentencing proceedings of PG, that proposition is not one that is reasonably open to acceptance. According to the facts, both offenders gained access to a locked room in JA's house where he had a range of army memorabilia and collectable coins. Both offenders spent considerable time carrying the items individually or in a washing basket down to JA's car that was parked in the garage. The facts disclose that three or four such trips were made by the offenders loading stolen property into the back of the victim's van. Furthermore, when police and emergency services arrived at the house, JA was observed to still have the cord partially restraining him. Bearing those matters in mind, while it could not be reasonably found that it was BG and not PG who restrained JA in that way, it is accepted - and the Crown has satisfied me beyond reasonable doubt - that the offender BG must have been aware that JA was restrained by that electrical cord in order to enable them to make those large number of trips to and from the car downstairs.

After they finished loading the stolen property, one of the two offenders used petrol from a jerry can found in JA's garage, splashed it around and set fire to a section of JA's house. Each denies being responsible for that act. The Court is not in a position to be satisfied one way or the other which person was responsible for splashing petrol around. It leaves the Court in the position of sentencing BG, as was the case with PG, as implicated by being part of a joint criminal enterprise and who did utterly nothing to prevent that fire from occurring or to raise help or assist JA who at the very least, according to the concessions made by BG in his evidence to this Court, was an elderly man who was disabled by a number of blows that he had received at the hands of these two offenders. No matter which way one considers that factual scenario, the complainant JA was placed in a very dangerous situation and neither PG nor BG seemed at all concerned. BG, in his evidence to this Court, was simply unable to tell the Court why he did nothing when he was aware that a fire had been lit. His evidence, it should be noted, was that by the time he was aware that the fire was lit, he was seated in the van downstairs ready to leave and his focus was on getting away from the premises.

After they left JA's home, they drove to an ATM in Lismore and attempted to withdraw cash. That attempt failed as they did not have the PIN. They returned to Glen Innes in JA's car, that was hidden in BG's sister's shed. It remained there for a couple of days, was unloaded and subsequently removed and set on fire.

After they left the house, JA managed to partially free himself and started to go downstairs until he could smell smoke and saw that the stairs were on fire. He made his way to the front door of the house. Fortunately by that time police and the fire brigade arrived, after being called by nearby neighbours, who had the decency to help. They noted that the speed of the fire was alarming. They saw that the rear of the home was engulfed in flames. The front door had already been padlocked and JA was unable to get out at that point. Eventually, a pane of glass was smashed and emergency services and police were able to extricate JA.

He was taken to Lismore Hospital where he spent three days suffering from cuts and bruises to his face, left and right eye and upper body. His hair was singed and his face had blood over it. A scan of his facial bones revealed a fractured nose with minimal displacement and extensive bruising around the eyes.

His house was rendered unliveable and a large, valuable quantity of his property including his car and his memorabilia and coin collection were stolen.

Because he was unable to return and live in that house, he moved in with RW, aged fifty-six, and SP, aged fifty, who lived at Richmond Hill. JA jointed owned that house with SP and it was situated next door to the Summerland Radio club house. Subsequently this group that is, DR, BG and PG, discussed breaking into the radio club house both because there was a desire to steal the radio gear and because of the claim that JA was a paedophile.

On Saturday 16 November 2013, DR drove PG, BG and a fourth person, JW from Glen Innes to Lismore. He drove the same car that he used on previous journeys. He dropped the three offenders, PG, BG and JW in bushland area not far from the radio club. After going past a couple of houses, the three co-offenders were able to locate the radio club house however, they soon went to the residence next door because a sensor light came on between the house and the shed. They noticed that the shed was locked and went straight into the residence to get the key. At this time, about 9.50pm, JA, RW and SP were at home. JA was in his bed watching TV and RW and SP were in their own room. The three offenders gained entry to the house by further opening a sliding door leading into the kitchen. All three were wearing camouflage clothing and items covering their faces. The offender PG approached SP first of all and punched him in the head with a closed fist a couple of times. When SP did not fall down, PG admitted to police that he hit him over the head with a flat screen TV at which stage SP stopped fighting back. SP though says that he was hit with several objects after that and eventually tied up with rope and cable ties.

At about the same time, RW who tried to get out of the house, was chased and caught by PG outside. PG admitted to police that he hit her. She was detained outside for a period of time while she begged him to allow her to go inside. At some stage while she was out there, she claims the offender PG told her that JA had raped him when he was eight and that was why he was there and that was why his house had been burned down. PG disputed that evidence and said that he had told her that he was raped as an eight year old and denied ever having previously met JA. That was confirmed by PG in his evidence. The only basis upon which he and BG had for their understanding that JA was a paedophile, was from their co-offender DR who said he had been told things at the radio club.

At one stage RW was threatened and picked up by the neck. PG conceded that when she first ran off, he hit her as he tackled her. He said that she started yelling and screaming and he hit her again and put his hand over her mouth. He said he hit her with his closed fist on top of her head. He said that she begged him not to hurt her and he says that he had JW come out and assist to restrain her. JW denies that he took part in any of that and that is confirmed by the account of co-offender BG. JW's role, according to BG, was confined to standing watch over the three complainants once they were together in a room inside the house. At some point RW became unconscious and later woke to find herself lying on the bed naked. She had no idea how, or who, had removed her clothing.

JA again was assaulted in his room, he was struck around the face and the upper body and he was told that they were there to get even with him. He heard SP confront the intruders and heard him being told that they would get even with him for protecting a paedophile.

All three complainants were placed in the same room and guarded by JW as I have said whilst PG and BG went out to look in the radio club house shed. In evidence BG denied he did that but that fact is confirmed by closed-circuit TV footage that the offenders left behind. Entry was gained to the radio club house by cutting the padlock with bolt cutters and jemmying open the doors. A large amount of property was stolen including a number of radios, related equipment and other electrical items. When the offender PG noticed the security cameras he tried to disconnect them by pulling the wires. He also went into the computer room and started unplugging the computers or the radio gear. He told police that he later took that away however the hard drive from the club house closed-circuit TV was mistakenly left behind. The items were loaded into a Holden Commodore which belonged to SP. Before they left the premises, the offender PG returned inside the house and using spray paint he had located in the shed, wrote a number of insulting comments on the walls of the residence in relation to the claim that Mr JA was a paedophile. The three offenders left and returned to Glen Innes driving SP's Commodore.

The property was divided up and on-sold. When police ultimately searched premises belonging to the offenders, some items were located.

Injuries were suffered by each of the complainants on this occasion. SP had multiple lacerations to his head and face as well as swelling and bruising. He had an abrasion to the right shoulder and a small wound to the left shoulder. He had a nasal bone fracture, bruises and a left frontal contusion as well as bruises to the scalp. He had a number of lacerations to his head stitched. These included three sutures above the left ear, one on the left arm, three over the left eye, six over the right eye and four to a cut in the back of the head. He was discharged from hospital on 19 November 2013.

JA received bruising around the eyes, his right eye being so severely injured it closed due to swelling. There was sub-conjunctival bruising to his right eye, a tender, swollen nose, superficial abrasions and bruising to the face, back and wrists. CT scans of his head and face showed a number of facial fractures that were very serious. He underwent surgery to stabilise those fractures on 23 November 2013 and was discharged on 29 November 2013.

RW was examined the following morning at the hospital. Her injuries included multiple bruising and abrasions over the head and face including around the eyes, chin and inside the mouth. She had cuts above the left eyebrow to the top of the scalp which required stitching. She had bruising over the right cheek bone and around the right eye. There were bruises and abrasions on the front and rear of her body. She too had a number of facial fractures. She also had a cut to the left forehead and back of the head, both of which were cleaned and stitched.

Police located some of the property that had been stolen at the residence of another person, (not one of these co-offenders) subsequent to these offences. This person admitted that he had purchased the property from the offender PG. When the police searched premises in Glen Innes they found a number of relevant items that were stolen from JA's premises. Initially when interviewed by the police, PG claimed that those items had come from his family or had been given to him. When the allegations were put to him he declined to comment on them and said he had no knowledge of them. When he was shown stills from the closed-circuit TV footage he denied that he was in any of the images and did not wish to say anything else.

Subsequently, he saw the person to whom he had sold other property coming into the police station. After that, the offender PG had a change of heart and made a number of admissions in relation to both sets of offences and implicated his co-offenders who appear before the Court today. He also provided a statement expressing his willingness to assist the authorities and give evidence in Court.

When police searched DR' premises on 30 January 2014 some radio items, collector coins, the camouflage clothing and so on were located. They executed a warrant at BG's premises at about the same time or the following day and again seized a number of items related to these offences. The offender BG gave false explanations for his possession of those items. It was not until 7 January 2015 that BG participated in an interview with police and made comprehensive admissions nominating, not only himself, but his co-offenders as being involved in the offences. He did confirm many of the facts stated by his co-offender PG one year earlier however, he denied that he had, as I have mentioned, any knowledge that JA had been bound and claimed that it was PG who set fire to JA's house. He did though admit to seeing the flames and that PG had told him that the fire had been set to get rid of evidence. He did admit head-butting JA. He claimed that he had no idea that JA would be residing at the residence next to the Summerland Radio Club house when they went there a little over a month later. Even if one could accept that, or to find beyond reasonable doubt that he did know that for a fact, he was very quick, as were the others, JW and PG to enter the residence and thereafter, remain for a very long time while a series of severe offences were committed against the three complainants.

On 25 August 2014 police confirmed that the DNA of the co-offender JW had been located on a pair of camouflage pants seized from DR' house on 30 January 2014. The agreed facts concerning JW indicate that he was invited to participate in the offences on 16 November 2013 to make a little bit of money. He was only told that he would assist with loading the equipment and had no knowledge of the earlier incident. Further he was led to believe that there would not be any persons staying at the radio club house. However as indicated, he seemed to have little hesitation in joining the others in going into the residence and staying there for a considerable period of time. I do note first of all the comments by BG who told police that JW was pretty much standing back just watching the whole thing. He said that JW did not really say or do much; he thought that JW was more astounded about what was happening than anything. It is, it seems, accepted by the Crown that JW's role was to guard the room where the three complainants were rounded up while PG and BG went out to the shed and radio club house. I have also noted that both PG and BG are far more physically intimidating than JW. In addition they took a far more pro-active role than he did, hence he would have been less than willing to intervene in their activities to prevent the offences.

The offender DR had the role of driving the other offenders first of all to point out JA's first residence and then to drive them to the scenes of the crimes on each occasion. He pleads guilty to being an accessory before the fact to the offence of entering JA's premises and stealing property that was there. He admitted that stealing a motor vehicle was reasonably foreseeable within the joint criminal enterprise.

THE GROUNDS OF APPEAL

7. The applicant filed handwritten grounds of appeal and submissions on 21 December 2017. On 7 May 2018 further written submissions, referred to as “the revised applicant’s submissions” were filed pursuant to an order made by the Registrar. Those submissions articulate nine grounds of appeal which are set out below in the terms in which they have been framed.

GROUND 1 – Error and confusion of law in assessing the applicant’s objective-subjective seriousness of culpability

The reasons of the sentencing Judge

8. Her Honour made the following findings as to the objective seriousness of the applicant’s offending in respect of count 1 (commencing at ROS 13):

In terms of the objective seriousness of these offences, first of all the offence of destroying property with intent that concerns BG only, the offence carries a maximum of twenty-five years imprisonment. Although he took part in a premeditated, planned aggravated break, enter and steal from the complainant's home, the facts that he was part of a premeditated plan to burn the house can't be proved beyond reasonable doubt nor can it be proven that he was a principle (sic) or an instigator in that arson. As noted, both he and PG point the finger at each other and they must be dealt with equally in this respect in terms of the facts. At any rate, the petrol was taken from the complainant's garage and it must follow that whoever lit the fire did so to get rid of the evidence on behalf of both of them. It is a serious factor that BG was aware that the house was alight and showed little concern let alone expressed dissent about what was taking place. He said in his evidence, he did not know why he let it happen or what he was thinking at the time. It is clear that he left the complainant who was an elderly, vulnerable man at that stage at the very least, severely beaten, in quite dire circumstances. The danger to JA's life was very high as can be inferred from the fact that his hair was singed. But for the arrival of the fire brigade and the police, he may not have survived.

As a result of this offence, he suffered considerable property loss notably including the family house that he had lived in since 1939. It had to be ultimately sold at a greatly reduced price because of the damage. He also lost machinery and equipment worth about $10,000. The fire that was lit caused potential danger to other residents of that part of Lismore and of course, caused a dangerous situation for the emergency services who had to put it out.

Taking into account those factors, his offending lies at the upper end of the mid-range of objective seriousness for this offence. I also take into account in that regard the matters on the Form 1.

9. As to the remainder of the offending of 6 October 2013 (counts 2-4), her Honour said (commencing at ROS 14):

In relation to the offences of 6 October 2013, that is the aggravated break, enter and steal offence that concerns BG only, aggravated enter a dwelling house that concerns BG and DR and the larceny that concerns DR, for which they are to be sentenced, the role of BG was that of principle (sic) offender whilst DR was an accessory before the fact. It must be borne in mind that a considerable amount of property was taken, estimated by JA to be worth about $15,000. That property was uninsured. He lost not only items of value but items that were the result of years of diligent collection. The offences were planned weeks in advance and involved considerable effort including a couple of round trips of six hours each from Glen Innes, one being for the reconnaissance of JA's property and the other for the commission of the offence. The planning is also demonstrated in the use of camouflage clothing, disguises and gloves. There was planning reflected in the fact that the offender DR only drove BG and PG to the property and left. Clearly it was also a part of the plan that they would steal JA's car in order to get away and to take the property.

It is a relevant matter in terms of the objective seriousness of these offences that each of the offenders BG and DR were motivated by some financial return but they also it seems sought to justify their offending by relying on what could only be regarded as a flimsy allegation that JA was a paedophile. Whether or not it was correct is quite beside the point. The information came to them in a hearsay form. It is irrelevant as any sort of excuse or justification. It is frequently said that the Courts cannot condone conduct such as this; people taking the law into their own hands. I should be denounced in the strongest terms, because the wrong people can after get hurt. Even the right people on occasions can suffer far too much. The rule of law in our community requires that offenders be investigated and tried by the appropriate authorities and if convicted, punished in accordance with law, not in accordance with what some gang of men think should happen. In reality the real motivation behind these offences was financial and the allegation that he was a paedophile was merely a pathetic attempt to justify what they were doing.

The assault occasioning actual bodily harm in company on 6 October 2013 concerns only the offender BG. JA was severely assaulted by him and PG who grabbed him from his garage in the dark. That alone must have been more than sufficiently terrifying however, he was also taken inside his house. He was a seventy-three year old man against two much younger, stronger, fitter men and assaulted. He was bound and left helpless on the ground. It is inconceivable that he offered any threat or justification for the punishment that was dealt out to him. Violence of that kind was entirely unnecessary to their purpose in taking his property. It is serious as well because he was hospitalised for a period of time in relation to his injuries.

Taking those matters into account, that offence lies at the upper end of the mid-range of objective seriousness.

10. Her Honour then turned to the offending on 16 November 2013 (commencing at ROS 16):

In relation to the matters of aggravated break, enter and steal concerning BG and the aggravated enter a dwelling house concerning BG and DR and larceny of DR, his offending lies just above the mid-range of objective seriousness concerning those offences.

However, I take a different view in terms the objective seriousness concerning DR. There is evidence before the Court that is not challenged and is accepted that he has a substantial intellectual disability. To some limited extent that should be taken into account in relation to the adverse impact that would have upon his judgment and his moral culpability for these offences. By the same token, in looking at the whole picture, he was no mere chauffeur. He played a significant role in that regard and he provided information to PG and BG, without which the offences would not have occurred. In fact, to some extent, unwittingly perhaps, he played a crucial role in the offences. There was, for him, some incentive of reward in terms of money or property that was taken from JA or the Summerland Radio Club. It might be the case that he was not prepared for or aware of what occurred to JA on the occasion of the October offence but certainly he would have known just what his co-offenders PG and BG were capable of when he assisted with the planning and driving for the second set of offences over a month later.

11. Her Honour then said (commencing at ROS 17):

In relation then to that second set offences, first of all BG faces a charge of specially aggravated entering a dwelling house. This offence carries many of the serious factors found in the commission of the main offence on the previous date in October. There was pre-meditation, planning and financial motivation. Obviously this was not an offence where the occupying residence was set alight, but there are other features which are serious.

As I have observed for both of them, this was no longer an isolated or one-off offence. At least by that stage each of them knew what the offender PG was capable of doing. I do not suggest for a moment that they are to be sentenced for anything that did not happen but their knowledge of what PG did during the first set of offences in October is relevant to their knowledge with respect to what occurred in terms of the later events. It is a relevant matter in terms of this offence concerning BG that the same complainant JA was targeted and not only he, but his friends were terrorised and physically attacked for no reason other than them being present.

Although not aware of what was happening, RW was left in a state of undress and was injured which was a most demeaning and troubling aspect for her.

The other charges concerning that second date faced by BG include wounding, grievous bodily harm and aggravated grievous bodily harm. Again, whether or not it was he or PG who was responsible for inflicting all or some or most of the damage, this was a sustained and vicious attack upon three people who were in their own home. They are entitled to expect the safety and security of the sanctity of their home and were deprived of that. Each was hospitalised for their injuries. With respect to count 6, the objective seriousness falls about the mid-range. With respect to counts 7 and 8, the grievous bodily harm and aggravated grievous bodily harm, those matters fall towards the upper end of the mid-range of objective seriousness.

The aggravated break, enter and steal of the Amateur Radio club, concerns all three offenders, BG, JW and DR. JW's involvement is restricted but it was nevertheless a necessary role of guarding the complainants whilst BG and PG removed over $30,000 worth of property from that clubhouse. A mitigating factor was that the clubhouse was not a residence. On the other hand, the offenders ending up breaking into a residence in order to facilitate entry into the clubhouse. They had financial motivations once again. Taking those matters into account the offence falls below the mid-range of objective seriousness.

12. Her Honour also said (at ROS 20):

It is clear from the material that is before the Court at this stage that PG is properly regarded as the ring leader in the commission of the offences. He had quite a dreadful criminal record including offences of this kind. He had served lengthy terms of imprisonment in relation to such offences. I accept the claim made by the offender BG that he was to some extent under the influence of PG by becoming involved in these offences. He described PG as nagging at him to commit the offences. BG had a limited criminal record, with the most serious being an offence of affray in 2011 for which he served a short period of imprisonment. There are some other less serious offences on his record. It is relevant that he was aged 21 at the time of these offences, compared to that of PG who was aged 26.

Submissions of the applicant

13. It was submitted on behalf of the applicant that the sentencing Judge had erred in “over-assessing (the applicant’s) objective seriousness criteria of culpability in the commission of the crimes that he had pleaded guilty to, which led to potential errors in sentencing”. Specifically, it was submitted that:

1. at the time of the offending in count 1, the applicant was “very confused” and that her Honour had erred in assessing the objective seriousness of his offending by failing to consider such “subjective element”;

2. her Honour had erred in her assessment of the objective seriousness of the offending in counts 2 and 3 by failing to properly recognise that the applicant was under the “undue influence” of PG;

3. in respect of the entirety of the offending of 16 November 2013 (counts 5-9) her Honour had “inadvertently erred” by “consistently assessing the objective seriousness of the crimes at the higher end of the objectiveness spectrum, leading the applicant to speculate whether there has been some form of confusion between the subjective versus objective seriousness scale”.

14. The oral submissions advanced on behalf of the applicant focussed upon the role of PG in the offending, the essence of such submissions being that the applicant was under PG’s influence and that this factor had not been properly recognised by the sentencing Judge.

Submissions of the Crown

15. The Crown emphasised that any assessment of the objective seriousness of an offence is necessarily a discretionary matter for a sentencing Judge, and that no error had been shown in the assessment which had been made in the present case. The Crown made specific reference to the particular role played by the applicant in each instance of offending, and also relied upon the fact that each of the victims had suffered serious injury, with JA having been injured on both of the occasions on which the applicant had offended.

Consideration

16. In considering this ground, it is appropriate to make reference to two matters at the outset.

17. Firstly, the characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge. This Court will be very slow to determine such matters for itself, or to set aside the judgment made by a sentencing judge exercising a broadly based discretion: Mulato v R [2006] NSWCCA 282 at [37] per Spigelman CJ. The question is whether or not the conclusions reached by the sentencing judge were open.

18. Secondly, one of the submissions advanced in support of this ground (as well as in support of a number of the remaining grounds discussed below) was that the sentencing Judge had failed to give appropriate weight to particular subjective factors. Leaving aside the fact that the circumstances in which such a failure will amount to error are narrowly confined (see R v Baker [2000] NSWCCA 85 at [11]), such a submission suffers a very significant preliminary difficulty, because it accepts that some consideration was given to those particular factors: King v R [2015] NSWCCA 99 at [56].

19. It follows that an applicant who asserts that a sentencing judge failed to give adequate weight to a subjective factor must, in order to succeed, persuade this Court that that the sentencing discretion has miscarried. Such a challenge can only be successfully mounted if error of the kind identified in House v R (1936) 55 CLR 449; [1936] HCA 40 is made out: King at [56].

20. In the present case, her Honour found that the applicant’s role in the offending in count 1 on 6 October 2013 was premeditated and planned. That finding was amply supported by evidence that the applicant and PG had:

1. been provided with relevant information in advance, thus enabling them to attend the house with plan to steal items from it; and

2. worn balaclavas to avoid detection.

21. In terms of the remainder of the offending on 6 October, her Honour concluded that (inter alia):

1. the applicant’s role was that of a principal offender;

2. the offending was planned weeks in advance; and

3. such planning was also demonstrated by the use of camouflage clothing and disguises.

22. In terms of the offending on 16 November 2013, her Honour found that:

1. it was repeated and that because of this, the applicant knew by that time what PG was capable of doing;

2. there was premeditation, planning and financial motivation on the part of the applicant in respect of count 5;

3. counts 6, 7 and 8 had involved a sustained and vicious attack upon three people in their own home, each of whom was entitled to, but deprived of, safety and security; and

4. count 9 was (inter alia) financially motivated.

23. In my view, the findings made by the sentencing Judge were open on the evidence. The applicant’s offending was both serious and pre-meditated, and the evidence supported the conclusions of the sentencing Judge as to where the offending fell on a scale of objective seriousness. To the extent that it was submitted before this Court that her Honour had failed to properly recognise the fact that the applicant was under the influence of PG, her Honour specifically found (as set out at [12] above) that this was the case “to some extent”. In reaching that conclusion, her Honour noted that the applicant was aged 21 at the time of the offending whilst PG was aged 26. Clearly her Honour took all of these factors into account.

24. It was also submitted before this Court that the sentencing Judge had failed to take into account the fact that the applicant was “very confused” at the time of the offending on 6 October 2013. A conclusion that the applicant was in that frame of mind at the time of the offending was not supported by the evidence. The applicant gave evidence on sentence. At no stage did he assert that he was confused. He did say (T20.27 – T20.32) that he had consumed ice, cannabis and alcohol prior to each instance of offending, but gave no evidence as to their effect. To the extent that it might be suggested that any state of confusion arose from his consumption of such substances, that was not a mitigating factor.

25. For all of these reasons this ground is not made out.

GROUND 2 – The guilty plea and the correct assessment of culpability under each section of the relevant legislation

The reasons of the sentencing Judge

26. Her Honour said (at ROS 27):

I have determined that it is appropriate in relation to each of the offences with respect to each of the offenders that a discount of 25% for all offences, including all of those committed by BG, are appropriate in the circumstances.

Submissions of the applicant

27. The primary submission made on behalf of the applicant in support of this ground was articulated in the revised written submissions in the following terms:

The issue at law which the applicant wishes to press is that for each count, for which he pleaded guilty to (sic) at the first available opportunity, given his circumstances and his grossly limited intellectual understanding of his situation (at the terror he faced in jail – i.e.: Long Bay Gaol and intimidation), there were compelling factors of inherent mitigation which were not duly incorporated into the judicial reasoning of her honour.

28. In oral submissions, reference was made to her Honour’s consideration of the applicant’s subjective circumstances. It was submitted, in effect, that the sentence which was imposed did not reflect proper weight having been given to such circumstances. The issues discussed at [18]-[19] above therefore arise again.

Submissions of the Crown

29. The Crown submitted that the terms in which this ground was advanced rasied essentially the same matters relied upon by the applicant in respect of ground 1. The Crown relied upon its submissions in support of that ground.

Consideration

30. Plainly, the applicant received the full discount to reflect the utilitarian value of his pleas of guilty.

31. Moreover, any complaint that the sentencing Judge failed to properly assess, and give weight to, the applicant’s subjective case, must be rejected. Commencing at ROS 20 her Honour reviewed the applicant’s subjective circumstances. In doing so, her Honour found that the applicant:

1. suffered trauma in his early upbringing due to having suffered violence at the hands of his father;

2. carried a heavy burden of guilt arising from the circumstances in which his father died;

3. left home at the age of 16 years and had mixed success in his education at least in his early years;

4. enjoyed greater educational success in his later years and had completed some studies in 2013;

5. experienced feelings of inadequacy during his life;

6. had difficulty from a young age with drug and alcohol abuse, but had nevertheless spent his time in custody completing remedial programs;

7. was diagnosed with ADHD during his childhood for which he was prescribed medication;

8. was aged 21 at the time of the offending;

9. had a limited criminal history;

10. had expressed regret and remorse for his participation in the offending, both to a psychologist and in his sworn evidence to the Court; and

11. had positive prospects of rehabilitation.

32. It is apparent from the terms in which her Honour reviewed the applicant’s subjective case that she gave it full consideration.

33. This ground is not made out.

GROUND 3 – The inadequate discount on sentence issue

The evidence in the sentence proceedings

34. The statement of agreed facts which was before the sentencing Judge recorded (at p 9) that on 7 January 2015 the applicant participated in a electronically recorded interview with police, in the course of which he nominated his co-offenders as having been involved in the offending. Leaving aside some limited exceptions, the agreed facts recorded that in doing so the applicant effectively confirmed many of the matters which had previously been disclosed to police by PG.

The reasons of the sentencing Judge

35. As noted at [26] above, the sentencing Judge allowed a discount of 25% to reflect the utilitarian value of the applicants plea of guilty.

Submissions of the applicant

36. The applicant accepted that he was given the benefit of a discount of 25%. However, it was submitted that he was entitled to receive a further discount for his assistance in disclosing the involvement of the co-accused. The applicant’s written submissions made reference to a report of Patrick Sheehan tendered before the sentencing Judge which, it was submitted, contained an indication of the applicant’s “latent assistance” to the authorities. It was submitted that the sentencing Judge had failed to take this into account.

Submissions of the Crown

37. The Crown pointed out that the applicant had not approached police until almost one year after PG had spoken to them and that in these circumstances the applicant was not entitled to any discount over and above that referable to the utilitarian value of his pleas of guilty. The Crown also pointed out that counsel for the applicant on sentence did not submit that the applicant was entitled to any discount for assistance.

Consideration

38. There were two reports of Mr Sheehan before the sentencing Judge, dated 26 June 2015 and 23 March 2016 respectively. Contrary to the submissions advanced on behalf of the applicant, neither report makes any reference to the issue of assistance. In any event, the matters of which the police were informed by the applicant, and to which reference was made in the agreed facts, did not amount to the kind of assistance contemplated by s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

39. It is also significant, as the Crown pointed out, that counsel appearing for the applicant on sentence made no submission to the sentencing Judge that the applicant should receive an additional discount for assistance. It follows that the submissions of the applicant before this Court sought to advance a submission which was not advanced at first instance. It is well established that this Court will not lightly entertain such submissions: Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 at [81].

40. This ground is not made out.

Ground 4 – The court recognised that the applicant was under the influence of PG, but this recognition did not transfer into meaningful sentencing moderation

The reasons of the sentencing Judge

41. As set out at [12] above, the sentencing Judge found that the applicant was under the influence of PG to some extent.

Submissions of the applicant

42. The revised written submissions of the applicant acknowledged her Honour’s references to the respective roles played by the applicant and PG. It was submitted that her Honour’s findings did not “transfer across into the sentencing matrix and the sentencing process”.

Submissions of the Crown

43. The Crown relied on the submissions advanced in respect of ground 1.

Consideration

44. Once again, this ground is essentially based upon the proposition that the sentencing Judge failed to give appropriate weight to a particular subjective consideration, namely the fact that the applicant was under the influence of PG. Her Honour clearly took that factor into account in determining the appropriate sentence. No error has been identified.

45. This ground is not made out.

Ground 5 – The applicant’s youth, criminal history and restorative justice

The evidence before the sentencing Judge

46. In the first of his reports, Mr Sheehan stated (at para 22) that psychometric assessment of the applicant’s cognitive functioning established that his intellectual skills were in the average range.

47. Further, there was no dispute that the applicant was 21 years at the time of the offending and that his criminal history (which was before the sentencing judge) consisted of:

1. an offence of goods in custody for which he was fined and placed on a bond for a period of 9 months in 2001;

2. offences of:

3. possessing an unregistered firearm;

4. possessing an unauthorised firearm;

5. possessing a prohibited drug; and

6. cultivating a prohibited plant (for which he received concurrent 3 month fixed terms, together with an 18 month bond) in 2012; and

7. affray, for which he received a sentence of 12 months imprisonment, with a 2 month and 2 week non-parole period, in 2012.

The reasons of the sentencing Judge

48. As set out at [31] above, the sentencing Judge exhaustively reviewed the applicant’s subjective case. In doing so her Honour specifically referred to the fact that the applicant had a limited criminal history, and was aged 21 at the time of the offending.

Submissions of the applicant

49. It was submitted that the applicant was a young and impressionable person of “grossly limited intellectual capacity”, and that his youth and related issues had not properly been taken into account by the sentencing Judge. It was further submitted that the applicant’s criminal history was “marginal” and that the sentence imposed upon him demonstrated that insufficient weight had been given to the issue of his rehabilitation. In oral submissions, the applicant was variously referred to by his solicitor as being “a person of at best average intelligence”, and a “21 year old man of limited intelligence”.

Submissions of the Crown

50. The Crown submitted that the sentencing Judge had clearly recognised both the applicant’s age and his criminal history and that no error was demonstrated.

Consideration

51. The oral submissions made to this Court as to the level of the applicant’s intelligence overstated the position, and were not supported by the evidence. Mr Sheehan found, on the basis of a psychometric assessment, that the applicant’s intellectual skills were in the average range.

52. Moreover, it is again apparent that her Honour took into account the applicant’s youth and his criminal history when determining sentence. As far as the latter is concerned, although such history was not extensive, it did include a matter for which the applicant had previously served a term of imprisonment.

53. This ground is not made out.

GROUND 6 – The applicant’s rehabilitative efforts were not adequately reflected in sentencing

The evidence before the sentencing Judge

54. In the second of his reports, Mr Sheehan stated (inter alia) the following:

18…The indications are that he’s progressing well in custody and doing his best to correct his behaviour and plan towards a better future. Any potential pathway to works release and other “C3” programs is recommended as a means to maximise his changes of positive community integration.

19. (BG) has shown that he can respond favourably to community supervision. A period of community supervision would provide an added corrective influence towards positive community adjustment, by providing structure, boundaries and support. Stable accommodation, positive social support, substance-abstinence and rewarding employment will be key features associated with (BG’s) successful adjustment to the community.

The reasons of the sentencing Judge

55. The sentencing Judge said (at ROS 22):

In his case there are, as well as the various certificates that he has completed, some references that speak very well of him. His prospects of rehabilitation have positive aspects in terms of his obvious capacity for further education and contributing in a meaningful way to the community. However, there are also a number of aspects of his behaviour that cause concern. Although I accept that he is remorseful for his participation in these offences, unlike PG his remorse came at a rather late stage.

Submissions of the applicant

56. It was submitted that the applicant was a person with strong prospects of rehabilitation, and that he possessed the characteristics required to ensure that such rehabilitation was successful.

Submissions of the Crown

57. The Crown submitted that it was evident that all subjective matters, including the applicant’s prospects for rehabilitation, had been addressed by the sentencing Judge.

Consideration

58. The submission advanced in support of this ground again effectively asserts that her Honour gave insufficient weight to the issue of rehabilitation. There can be no doubt that her Honour took into account, and assessed, the applicant’s prospects of rehabilitation, and gave them appropriate weight. No error has been demonstrated arising from the manner in which her Honour dealt with this issue.

59. This ground is not made out.

GROUND 7 – The applicant is the foundation of his family and is needed to support his family

The evidence before the sentencing Judge

60. In the first of his reports (commencing at para 5) Mr Sheehan summarised the applicant’s family background. He made reference to the circumstances in which the applicant’s father had died, and reported that because of those circumstances the applicant had carried “a heavy burden of guilt”, believing himself to be responsible for the death of his father. Mr Sheehan also reported that following the death of his father, the applicant did not enjoy a good relationship with his mother’s new partner and was “kicked out” of home at the age of 16 years. He had never returned to the family home and had experienced unstable accommodation since that time.

61. Finally, Mr Sheehan reported that the applicant had a younger brother and a younger sister, but had enjoyed little contact with his family for a number of years. He reported that the applicant had “re-established” a family relationship in late 2012, and that he currently speaks to his mother once per week via phone.

The reasons of the sentencing Judge

62. Commencing at ROS 20, the sentencing Judge made reference to a number of the aspects of the applicant’s family circumstances to which Mr Sheehan had referred.

Submissions of the applicant

63. It was submitted that the applicant was the “sole source of support” for his family and that upon his release, he would continue to be the primary source of financial and emotional stability. The effect of the submission put on behalf of the applicant was that these circumstances were not properly taken into account, or were given insufficient weight, by the sentencing Judge.

64. When asked in oral submissions to refer the Court to the evidence that the applicant was the sole source of support for his family, the applicant’s solicitor cited nothing more than the evidence that the applicant’s father was deceased.

Submissions of the Crown

65. The Crown submitted that it was evident from the remarks of the sentencing Judge that her Honour had taken into account, as part of the applicant’s subjective case, his family circumstances.

Consideration

66. This ground was argued on the basis that there was evidence before the sentencing Judge that the applicant was, in fact, the sole source of support for his family. The evidence did not reach that height. Further, whilst it is obviously the case that the applicant’s father died some time ago, it is also evident that for some period of time the applicant had no contact with his family at all and that such contact is presently limited to that to which Mr Sheehan referred. It is also evident that her Honour took into account the factors to which Mr Sheehan had referred regarding the applicant’s background.

67. This ground is not made out.

GROUND 8 – Manifest excessiveness in sentencing

Submissions of the applicant

68. The submissions advanced on behalf of the applicant in support of this ground centred upon sentencing statistics for this type of offending. It was submitted that such statistics demonstrated that the sentence imposed was “somewhat harsher, given the circumstances, than (it) would necessarily have to be”.

Submissions of the Crown

69. The Crown submitted that no error had been demonstrated on the basis of the sentencing statistics relied upon. The Crown also made reference to the circumstances of the offending, and the applicable maximum penalties.

Consideration

70. In order for this ground to be established, it is necessary for the applicant to demonstrate that the sentence imposed was unreasonable or plainly unjust: Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54. Nothing in the statistical material indicates that this is so. As has been said on many occasions, consistency in sentencing is not demonstrated by, and does not require, numerical equivalence. What is sought is consistency in the application of relevant legal principles: Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45 at [48]-[49].

71. Further, the applicant’s offending was, on any view, serious. As the sentencing Judge pointed out, there was a degree of planning, and there was repeat offending against the victim JA. Quite apart from JA, the injury and loss sustained by the remaining victims was significant.

72. As set out in the table in [2] above, each of the offences carried significant maximum penalties. Several of them had prescribed standard non-parole periods. These penalties represented, in each case, the legislative guide posts to which the sentencing Judge was required to, and obviously did, have regard.

73. In terms of the first group of offences, her Honour properly categorised such offending as amounting to “two serious, violent premeditated attacks” (at ROS 3.4). JA’s home was destroyed by fire. He was fortunate not to have been more seriously injured. The break enter and steal offence committed at that time was premeditated and planned and as her Honour found (at ROS 14.3) the applicant did nothing to assist JA, even though he was aware that the house was alight.

74. In terms of the second group of offences, the sentencing Judge (at ROS 18) properly categorised the offending as amounting to a sustained and vicious attack upon three people who were entitled to feel safe and secure in their home. In the applicant’s case, this represented repeat offending which exhibited many of the factors which were common to the earlier offending. Moreover the planning in respect of the second offending was even greater than the first, and involved lengthy “reconnaissance” trips by the offenders and the use of disguises and camouflage.

75. It is also important not to lose sight of the fact that the applicant asked her Honour to take into account a total of 7 matters which were contained in a Form 1.

76. Her Honour imposed an aggregate sentence. It is apparent from her reference to the indicative sentences that she afforded the applicant the benefit of a significant degree of concurrency. That approach was, in the circumstances, particularly favourable to the applicant.

77. For all of these reasons I am not persuaded that the sentence is manifestly excessive.

GROUND 9 – Her Honour erred in failing to find the inherent special circumstances which are self-evidently there in the applicant’s matter

The reasons of the sentencing Judge

78. When imposing sentence on the offenders DR and JW, her Honour made findings of special circumstances (at ROS 28 and ROS 29 respectively). When imposing sentence upon the applicant (at ROS 29-30) her Honour made no such reference. However, the aggregate sentence imposed upon the applicant reflected an adjustment of the ratio between the head sentence and the non-parole period from 75% to 70%.

Submissions of the applicant

79. It was submitted that even allowing for the fact the finding of special circumstances is discretionary in nature, it had been open to the sentencing Judge to make such finding, and that her Honour had erred in failing to do so.

Submissions of the Crown

80. The Crown pointed out that although her Honour had not made specific finding of special circumstances, the adjustment of the ratio was tantamount to such a finding and that no error had been established.

Consideration

81. A finding of special circumstances is necessarily a discretionary one with which this Court will be slow to interfere: R v El-Hayek [2004] NSWCCA 25; 144 A Crim R 90; Caristo v R [2011] NSWCCA 7; R v Cramp [2004] NSWCCA 264. In the present case, the obvious adjustment of the ratio between the head sentence and the non-parole period was consistent with a finding of special circumstances having been made. It is open to infer that it was her Honour’s intention to make such a finding based upon what she found to be the applicant’s generally positive prospects of rehabilitation, even though such finding was not expressly stated.

82. This ground is not made out.

CONCLUSION AND ORDERS

83. I propose the following orders:

1. Leave to appeal is granted.

2. The appeal is dismissed.

84. WILSON J: I agree with Bellew J.

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Decision last updated: 06 August 2018