Duffy v R - [2009] NSWCCA 304

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
DUFFY, Michael John v R; MANGAN, Shane Kenneth v R [2009] NSWCCA 304

FILE NUMBER(S):
2008/2748
2007/8395

HEARING DATE(S):
26 October 2009

JUDGMENT DATE:
18 December 2009

PARTIES:
Michael John Duffy (App)
Shane Kenneth Mangan (App)
The Crown (Resp)

JUDGMENT OF:
Allsop P Fullerton J McCallum J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2007/2748

LOWER COURT JUDICIAL OFFICER:
Woods ADCJ

LOWER COURT DATE OF DECISION:
27 October 2008

COUNSEL:
D O'Neil (App Duffy)
D Patch (App Mangan)
V Lydiard (Resp)

SOLICITORS:
Legal Aid Commission (App Duffy)
G Murray (App Mangan)
Solicitor for Public Prosecutions (Resp)

CATCHWORDS:
CRIMINAL LAW
appeal against sentence
maliciously inflicting grievous bodily harm in company
whether error in factual findings by sentencing judge
whether error in failure to apply 25 per cent discount for guilty plea
whether error in appointment of applicant's role in commission of offence
whether failure to give sufficient weight to subjective circumstances

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Evidence Act 1995

CATEGORY:
Principal judgment

CASES CITED:
APT v R [2009] NSWCCA 230
House v The King (1936) 55 CLR 499
McKenna v R [2007] NSWCCA 113
R v Borkowski [2009] NSWCCA 102
R v Johnstone [2004] NSWCCA 307
R v Mitchell, R v Gallagher [2007] NSWCCA 296; 177 A Crim R 94
R v SY & Anor [2003] NSWCCA 291
R v Scott [2003] NSWCCA 286
Waters v R [2007] NSWCCA 219

TEXTS CITED:

DECISION:
1. Leave to appeal granted.
2. Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2008/2748
2007/8395
ALLSOP P
FULLERTON J
McCALLUM J
18 DECEMBER 2009

MICHAEL JOHN DUFFY v R
SHANE KENNETH MANGAN v R

JUDGMENT

ALLSOP P: I agree with Fullerton J.
FULLERTON J: Shane Kenneth Mangan and Michael John Duffy seek leave to appeal against sentences imposed in the District Court at Dubbo on 27 October 2008 after they both entered pleas of guilty on their arraignment on 19 June 2008 to maliciously inflicting grievous bodily harm in company contrary to s 35(2) of the Crimes Act 1900.
The pleas were accepted in discharge of an indictment where the objectively more serious offence of intentionally inflicting grievous bodily harm provided for in s 33(2) of the Crimes Act was also charged. That offence carries a maximum penalty of 25 years and a standard non-parole period of 7 years. A maximum penalty of 10 years is provided for a breach of s 35(2) of the Crimes Act.

Mr Mangan was sentenced to a term of imprisonment comprising a non-parole period of 2 years and 6 months with a balance of term of 18 months to date from 24 October 2008. Mr Duffy was sentenced to a term of imprisonment comprised of a non-parole period of 15 months with a balance of term of 7 months to date from 27 October 2008. The sentencing judge allowed a discount of 20 per cent for the pleas of guilty in the calculation of both sentences.

The grounds of appeal

Mr Mangan’s only ground of appeal complained that the sentencing judge imposed sentence on a factual basis that was not open to him on the evidence and that an excessive sentence was imposed as a result.

Mr Duffy’s first ground of appeal claimed that his Honour erred in failing to apply a 25 per cent discount for the plea of guilty. The second and third grounds of appeal respectively asserted a failure on his Honour’s part to properly assess the role that he played in the commission of the offence and a failure to give sufficient weight to the evidence of his subjective circumstances in mitigation of sentence.

The sentence proceedings

The applicants were sentenced in separate proceedings convened before the sentencing judge on successive days due to the court’s administrative arrangements. The applicants were, however, in every practical sense co-offenders having participated in a joint criminal enterprise to maliciously inflict grievous bodily harm and being named in the indictment as being in each other's company at the time the offence was committed.
In a report tendered in both proceedings Dr Geoffrey Fox, a neuropsychologist, reported that as a result of the head injuries inflicted by Mr Mangan the victim suffered permanent brain damage which was confirmed by CT scans. He also suffered loss of sight in his right eye and multiple fractures to his face requiring surgery. The victim was described by Dr Fox as “significantly handicapped” with deficiencies in cognitive performance and someone who was likely to experience episodes of agitation, anxiety and/or rage as a result of permanent damage to his limbic system. The evidence does not reveal the age of the victim although by reason of his relationship with Mr Mangan’s mother, it is reasonable to assume he was older than both applicants. Mr Mangan was 20 at the time of the offence and Mr Duffy was aged 22.

The statement of facts tendered by the Crown in each sentence proceeding was identical. It described the offence in the following way:
“On the 5th of September, 2006 Mangan, Sutcliffe [Mangan’s girlfriend] and Duffy drove to the home of Henderson. Mangan informed Henderson that he had received information concerning his mother and the victim and that there had been in a dispute.
All four then drove to Meares Street, Mudgee where Beggs [the victim] was seen walking along the street near his home.
The vehicle, driven by Sutcliffe, stopped nearby Beggs and a fight between Mangan and Beggs commenced with Mangan striking Beggs to the head and upper body with a wooden object similar to a baseball bat or pick handle. Duffy got out of the car, went over to where Beggs was being assaulted by Mangan and commenced to join in the assault. Mangan was continuing to assault Beggs with the wooden object. Beggs fell to the ground and was crying at the end of the assault.”
The statement of facts went on to describe the designation of a crime scene and the emergency medical treatment administered to the victim. It also noted that when Mr Mangan was interviewed on 6 December 2006 he denied any involvement in the offence and that when Mr Duffy was interviewed on 9 August 2007 he admitted his involvement.
Mr Duffy's record of interview was tendered by the Crown in his sentence proceedings. It contained a comprehensive account of the attack on the victim in which he participated and the circumstances in which it occurred, namely by agreement and prearrangement with Mr Mangan and at his instigation.
There were no other witness statements tendered to supplement the statement of facts in either sentence proceedings. The only other evidence tendered by the Crown on sentence comprised the applicants’ antecedent reports and pre-sentence reports. Both applicants had relatively minor criminal records. They both reported exposure to illicit drugs and the abuse of alcohol from early adolescence and being heavily intoxicated on the day of the offence. Mr Mangan also admitted to having used amphetamines that day.
Given the limited basis upon which Mr Mangan sought leave to appeal against his sentence, I propose to deal with his application first. For that purpose, it is not necessary to refer in detail to the evidence tendered on his behalf. Suffice to note that in a report by Alex Edgar, a forensic psychologist, the applicant sought to account for his conduct in the commission of the offence because of the physical abuse the victim had inflicted on his mother over many years in what appeared to be a highly dysfunctional de facto relationship, and the eruption of his feelings of anger and resentment into violence on the day of the offence. The applicant had also witnessed domestic violence between his parents from a young age and resorted to violence and intimidation in defence of himself when he was bullied as an adolescent.

Mr Mangan’s application for leave to appeal:
Was there error in the factual findings by the sentencing judge?

Although there was no objection to the tender of the statement of facts the sentencing judge was informed that not all of the facts were agreed. The facts in dispute were not further identified. They were not identified on the appeal. The finding under challenge on the appeal was not reflected in the statement of facts. I assume, however, that the prosecutor made it clear before the sentence proceedings that he intended to attribute to Mr Mangan the principal role in the joint enterprise and to prove that the assault was committed at his instigation by prearrangement with others, including Mr Duffy. It is not apparent how he proposed to prove those matters given that the statement of facts was silent on the issue.
The applicant gave evidence that the attack he launched on the victim was not premeditated. He said that he lost his temper when he came upon the victim by chance having received information that his mother (the victim’s de facto partner) was at the hospital near her home hiding after an argument with the victim. He denied soliciting the assistance of his friends, including Mr Duffy, to seek out the victim with the intention of punishing him in retaliation or retribution at his mother's mistreatment. He gave evidence that when he saw the victim on the street he became angry because the victim looked unconcerned when he knew his mother was hiding at the hospital in fear. He claimed he got out of the car with the piece of wood for protection, but also agreed with the proposition, put by his legal representative, that the attack he launched almost immediately thereafter was “fairly brutal and savage”. He said he believed at the time that the attack was justified, something that he only appreciated was misplaced a year or so after the event when reflecting upon his conduct and the injuries he had inflicted upon the victim.
The applicant refused to concede in cross-examination that he was in company with Mr Duffy, his girlfriend and Mr Henderson at the time the offence was committed because of the back-up they might have been called upon to provide in the event that he was successful in finding the victim. The prosecutor sought that concession by reading verbatim from Mr Henderson’s statement to police. The applicant also expressly denied in cross-examination saying to Mr Duffy, “Can you come with me because I'm going to fight him or hit him. Can you give me a hand if I get stuck“. This was something that the prosecutor informed the applicant Mr Duffy had told police in his record of interview. I note that the prosecutor also took the applicant to evidence Mr Duffy gave in his sentence proceedings before the sentencing judge the previous day when he deposed to the fact that the applicant had the piece of wood that he used to assault the victim in his lap as they drove around looking for the victim. Mr Mangan denied this was the case. He claimed that the wood was something he used to prop up the boot of his car on occasions, and that he only reached into the back seat for it when he saw the victim walking on the street and only then with the intention of using it defensively.
The sentencing judge made findings adverse to the applicant in a number of respects. He said:
“This offence was a very serious and aggravated attack which left the victim unconscious and requiring serious surgery and apparently some long term problems. Nothing can down play the seriousness of this assault.
It was not just one blow to the victim. There is an element of sustained attack with a stick and the attack continued even when a friend tried to drag him away. Whilst the offender was in company it was this offender who instigated the attack and asked others to come with him and there was nothing in the evidence to suggest that in fact at the time of the phone call from his mother that she had actually been physically attacked at that time by her partner. Whilst it is suggested that the finding of the victim that day was a chance encounter there is a reference in evidence to him picking up friends to be there with him in case.
…
I must find that the offender before me now was the main offender. He deliberately set out with some friends in case he needed assistance, to as it were solve a problem his mother had…”
There was no challenge on the appeal to his Honour’s finding that Mr Mangan instigated the attack upon the victim or that he was the principal offender. On any view of the matters in contest at the sentence proceedings this was a finding open to him. His Honour was also entitled to assess the applicant’s evidence as to the circumstances in which the attack occurred in the context of his admitted and entrenched antipathy towards the victim. The applicant submitted, however, that there was no evidence to support a series of interrelated findings in other parts of the sentencing reasons extracted above, namely that the applicant:
(a) deliberately set out with some friends in case he needed assistance to solve a problem that his mother had, and
(b) that he asked others to come with him, and that he picked up friends to be there with him in case.
These findings operated, so it was submitted, to impermissibly aggravate the offending because they were not supported by the evidence and were not otherwise capable of being established by inference from the evidence. Furthermore, it was submitted they were findings contradicted by the applicant’s sworn evidence that he came upon the victim by chance and that his friends were with him simply because he asked them to come with him to collect his mother. It was open to the prosector to invite his Honour to reject the applicant’s evidence on these matters as untruthful but that does not compel a finding that the converse was true.
Although his Honour made no finding adverse to the applicant on the basis of his allegedly having the weapon at hand in the car in preparation for the assault, the approach taken by the prosecutor when he referred the applicant to Mr Duffy’s evidence given the previous day, Mr Duffy’s account to police upon his arrest and to the contents of Mr Henderson’s statement, none of which were in evidence, was misguided. The prosecutor did not put to the applicant what he had allegedly said in the lead up to committing the offence and in the course of committing it drawn from that material which would have been an appropriate way of legitimately testing the applicant’s claim that he did not have the intention of harming the victim until he chanced upon him, and that he was not in the company of Mr Duffy and the others by prearrangement in case he needed back-up. Alternatively, he could have invited the applicant to read particular answers given by Mr Duffy in the record of interview, or to read parts of the narrative account in Mr Henderson’s statement to police and then to have asked the applicant to either confirm that the information was true, or to identify where it was false, in accordance with s 44(3) of the Evidence Act 1995. If the prosecutor was confronted with denials to questions framed in this way, as he must have expected would be the case, it was then open to him to attempt to prove those matters by admissible evidence. I note in that connection that Mr Duffy’s bail was continued at the conclusion of his sentence proceedings the previous day and that he was a compellable witness in the applicant’s sentence proceedings. Instead, the questions put in cross-examination not only revealed the source of the information contrary to the restriction on the use of previous representations in s 44 of the Evidence Act, but the form of the question was objectionable since it contained the assertion that the cross-examiner considered Mr Duffy (and Mr Henderson) to be telling the truth and invited the applicant to comment upon their veracity and admit that he was a liar by comparison. In the result and despite the fact that there was no objection to any of the questions put to the applicant by the prosecutor, the cross-examination was conducted inappropriately and with what I regard as associated unfairness. The applicant at no time conceded that he knew what Mr Duffy (or Mr Henderson) had told the police, much less that they had told the truth, and he ought not to have been invited to comment on their veracity at all.
Although it is not the law that a sentencing court is required to sentence on the facts most favourable to an offender, if sentence is to be imposed by reference to a finding adverse to an offender, and that finding extends beyond an admission of the essential elements of the offence inherent in the plea of guilty, the facts in support of such a finding must be established beyond reasonable doubt. While it is true that the sentencing judge did not specifically refer to planning or premeditation as an aggravating factor in accordance with s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999, he did sentence the applicant on the basis that he deliberately set out with some friends in case he needed assistance to deal with the victim. This was a finding adverse to the applicant and one that his Honour considered deprived him of the leniency that might otherwise have been available on his subjective case. It was only on the basis of admissible evidence (or inferences capable of being drawn from such evidence) that it was open to the prosecutor to refer to any of these matters as aggravating features of the offending or for his Honour to regard them as such.
It was the prosector’s duty to ensure that the adverse findings he invited the sentencing judge to make were established by admissible evidence. He failed to do so and I am satisfied that error infected the judge’s fact finding exercise as a result. It would also seem that his Honour may have transposed into the applicant’s sentence proceedings facts he found established in Mr Duffy’s sentence proceedings, given the detailed admissions in his record of interview. Nevertheless, it was the responsibility of the prosecutor to assist the sentencing judge so as to protect against the risk of this occurring.
Although I am satisfied that his Honour did not have an adequate evidential foundation to make the findings under challenge beyond reasonable doubt, he was nevertheless entitled to regard the attack by the applicant as a vicious and sustained revenge attack which he launched when he saw the victim on the street. His Honour did refer to fact that the victim’s injuries resulted in permanent disability and the fact that there was a weapon used to inflict the injuries as features of aggravation under s 21A(2). There was no challenge to that finding on the appeal.
In all the circumstances, and notwithstanding the fact that the error identified in the applicant’s sole ground of appeal has been made out, I am not persuaded that an undiscounted sentence of imprisonment of 5 years against the statutory maximum of 10 years was excessive in the circumstances. The objective seriousness of the offending was substantial. The fact that the applicant may not have foreseen or intended the extent of harm that resulted from the attack does not reduce the level of objective seriousness. The offence was not only properly aggravated by the nature and extent of the injuries suffered by the victim, and that a weapon was used to inflict them but, in my view, it was not mitigated to any material degree either by the applicant’s motivation to exact revenge because of the victim’s persistent mistreatment of his mother or by his level of intoxication. The ingestion of a cocktail of alcohol and drugs cannot excuse criminal conduct or its consequences. In an appropriate case, it may mitigate the offending to some extent where intoxication is indicative of the offence being committed on impulse or where it can be said that the offender's capacity to exercise judgment was otherwise impaired because of it (see Waters v R [2007] NSWCCA 219 at [38]). In the present case, absent a basis in the admissible evidence to ground a finding that the offence was premeditated, or that the applicant co-opted others to assist him to seek out and attack the victim, I accept that the influence of the intoxicants may have had some disinhibiting effect when the applicant chanced upon the victim en route to collecting his mother. This does not, however, moderate the degree of objective seriousness otherwise reflected in the evidence. The primary significance of the applicant’s drug and alcohol use went to his prospects of rehabilitation in light of the evidence from Ms Edgar that he had taken steps, albeit some time after the offence, to address longstanding issues of addiction. In addition, although the applicant expressed regret and remorse in his evidence, his appreciation of the serious criminality inherent in his offending would also appear to have crystallised some considerable time after the offending. For this reason, the quality of his contrition as a mitigating factor was muted to some degree.

It was submitted on the appeal that the applicant’s motive in instigating the attack ameliorated the seriousness of the offending. It is appropriate to emphasise that a grievance with another, whether justified or not, and irrespective of that person’s proven wrongdoing or suspected wrongdoing, cannot authorise the commission of a crime (see R v Mitchell, R v Gallagher [2007] NSWCCA 296; 177 A Crim R 94 at [23] and [30]-[32]. In the circumstances of the present case, and without underplaying the reality of the pain that all family members suffer where violence in a domestic setting is persistent and entrenched, the applicant’s motive for assaulting the victim was of negligible mitigating value.

After applying the discount for the plea of guilty to an undiscounted sentence of 5 years, and after finding special circumstances on the basis of the applicant’s youth and the fact that he has not previously served time in custody, a non-parole period of 2 years and 6 months was imposed with a balance of term of 18 months. I am not persuaded that another sentence is warranted at law as provided for in s 6(3) of the Criminal Appeal Act 1912.
The application for leave to appeal by Mr Duffy

I turn now to consider the grounds of appeal relied upon by Mr Duffy.

Ground 1: the sentencing judge failed to give an appropriate discount the plea of guilty

In my view, the first ground of appeal cannot be sustained. Although his Honour did not make patent why a discount of 25 per cent was not allowed for the plea of guilty this Court has repeatedly stated that the assessment of the utilitarian value of a plea of guilty is discretionary and that there is no presumption or entitlement to any particular discount within the guideline range: R v Scott [2003] NSWCCA 286 at [28]. The digest of the authorities most recently undertaken by Howie J in R v Borkowski [2009] NSWCCA 102 endorses the principle that it is the timing of the plea that is of primary importance in the assessment of its utilitarian value.
The applicant's reliance on R v Johnstone [2004] NSWCCA 307 as authority for the proposition that his Honour should have provided reasons explaining why the discount of 25 per cent was not applied is misplaced. As the Crown correctly pointed out in her submissions, the Court in Johnstone was concerned with an allowance by a sentencing judge of a 15 per cent discount for a plea of guilty in a combined discount of 50 per cent for the plea and assistance to authorities. The Court was satisfied that that combined discount was within the range of a sound sentencing discretion, but that error resulted from the failure of the sentencing judge to provide a brief, clear and simple explanation as to why the discount for the plea was moderated. The case is not authority for the proposition that in every case a judge needs to give reasons for not applying a discount of 25 per cent, or a discount approaching that figure.

It is clear from the sentencing remarks that a 20 per cent discount in the calculation of the applicant’s sentence was applied in circumstances where the plea of guilty was entered on arraignment in the District Court 18 months after the offence was committed and 10 months after the applicant was charged. The fact that it was not an early plea in a strict temporal sense was conceded before the sentencing judge. Both in submissions before sentencing judge and before this Court, what counsel sought to emphasise was that when he was interviewed by police almost 12 months after the offence the applicant made full admissions to each element of an offence contrary to s 35 of the Crimes Act, the offence to which he ultimately pleaded guilty on arraignment and the offence with which he was initially charged. Some time after the charge under s 35 was laid he was charged with the more serious offence under s 33 and, since that offence was strictly indictable, the matter proceeded as a committal for trial. Prior to the indictment being framed, and after representations were made on his behalf, an alternate count charging the s 35 offence was included on the indictment to which a plea of guilty was entered which the prosecutor accepted in full discharge of the indictment.
As Howie J recognised in R v SY & Anor [2003] NSWCCA 291 at [86] it does not always follow that a plea is entered at the first reasonable opportunity when the plea is entered on arraignment and after the Crown frames an indictment, including an alternate count, following negotiations or discussions with an offender’s representatives. His Honour went on to say:
“…Clearly there will be occasions where the nature of the bargain struck does indicate that the offender could not reasonably have been expected to plead guilty before the opportunity was presented to plead to some less serious charge. But that is not always so and it behoves the sentencing judge to look at the situation realistically in determining the value of the plea on the utilitarian basis…”
Despite there being some force in the complaint that the sentencing judge should have allowed a discount of 25 per cent, his appointment of the utilitarian value in the plea of guilty was essentially a discretionary matter. Accordingly, it should not be disturbed by this Court unless the exercise of the discretion is shown to be unreasonable in accordance with the principle in House v The King (1936) 55 CLR 499. I am unable to come to the positive view that the discretion has miscarried. Even were I wrong in this view, and a proper exercise of the discretion would have allowed for a 25 per cent discount for the plea of guilty, the applicant must demonstrate a sentence other than the sentence that was imposed is warranted in law as provided for in s 6(3) of the Criminal Appeal Act. I am not persuaded that this is the case.

Ground two: Was there error in the appointment of the applicant’s role?

The applicant’s second ground of appeal contended that his Honour wrongly attributed to him conduct in the way he participated in the assault more egregious than his admitted conduct and, for that reason, he proceeded to sentence the applicant on an erroneous basis.
Consistent with his account to police, the applicant gave evidence that he punched the victim in the chest as he was crouching over under attack from Mr Mangan who was thrashing him with the piece of wood (and that he threw a bottle at the victim). However he denied kicking the victim whilst he was on the ground. There was also uncontested evidence from the applicant that after punching the victim he withdrew from the attack and that he attempted to prevent Mr Mangan from continuing to assault the victim who was on the ground and obviously seriously injured.
In his remarks on sentence his Honour correctly attributed to the applicant the punches delivered at the victim’s chest but wrongly attributed to him kicks while the victim was on the ground at a time when he had already been repeatedly struck with heavy blows delivered by Mr Mangan. After imposing sentence but before the sentence proceedings concluded the error was drawn to his Honour’s attention by the prosecutor. The concession was accompanied by the submission that the error did not require any amendment to the sentence. His Honour accepted, without question, that he had made the error and openly acknowledged that he may have unwittingly transposed evidence from Mr Mangan’s sentence proceedings as the source of the error. He was not however persuaded that the error had any material bearing on the sentence. In that regard he is recorded as saying:
“… in the facts before me it makes no material difference because I considered that while I was thinking about it and I went on - well doesn’t make any difference and I was going on the basis of kicking (sic) but being actively participating, that’s the major point.”
The question is whether the applicant has persuaded this Court that, contrary to what his Honour decided, the error was in fact material and that his Honour’s finding that it made no material difference to the sentence compounded the error.
I am unable to view the error as either bearing the significance contended for by the applicant or to view his Honour’s implicit refusal to amend the sentencing order as demonstrative of error. While it was appropriate for sentencing purposes for a distinction to be drawn between the respective roles played by the co-offenders in the joint criminal enterprise, including the markedly different physical assaults they perpetrated upon the victim, they were nonetheless responsible at law for the acts of the other. Under cross-examination, the applicant conceded that even before Mr Mangan went to collect Mr Henderson as an additional reinforcement he had agreed to participate in assaulting the victim and that he did so without reservation. He also conceded that he joined in the assault at a time when the victim was already being beaten with a piece of wood and that he was crouched over under the reign of blows. For my part, the fact that he some short time later sought to intervene to prevent the attack continuing, it seems with the intention of avoiding what might have proved to be a homicide, does nothing to ameliorate the seriousness of the offence in which he had been a willing and active participant (see McKenna v R [2007] NSWCCA 113).
Accordingly the second ground appeal must fail.

Ground three: the sentencing judge failed to give sufficient weight to the applicant’s subjective circumstances

Together with the pre-sentence report, the sentencing judge received a report from a psychologist and some personal references attesting to the applicant’s work history and good character, including a reference from the applicant’s mother. She described the applicant as a caring and considerate person who was not prone to violence. She described him as hard working and responsible. In so far as his work history is concerned, it would appear that the applicant committed himself to an apprenticeship as a spray-painter after leaving high school and that it was only because of a downturn in work in the Wollongong area that he was in Mudgee at the time of the offence. The applicant informed the probation and parole officer he felt isolated in his new surroundings and, for that reason, that he was vulnerable to the influence of his co-offender and the associated abuse of alcohol. Upon his return to Wollongong after the offence he regained employment with his previous employer and completed his apprenticeship. His employer provided a reference where he was described as highly dependable, intelligent, capable and dedicated.
His Honour was satisfied that the applicant had sound prospects of rehabilitation. His Honour also recognised that sentencing an offender for a serious offence of violence, in circumstances where there is no previous record of violence and where the role played in a joint criminal enterprise was that of secondary participant, requires a sentencing court to approach the question of sentence with caution, particularly where, as with this applicant, there were subjective considerations that might otherwise warrant considerable leniency. The weight to be afforded those considerations in the calculation of sentence was a matter for the discretion of the sentencing judge.
Acknowledging as I must the required by this Court (see APT v R [2009] NSWCCA 230 at [13]) exercises when there is a challenge to the weight a sentencing judge is said to have afforded subjective circumstances, I am not persuaded that his Honour failed to consider the evidence bearing upon the applicant’s personal and vocational circumstances or his future prospects, or that he failed to attribute them due weight as part of the sentencing exercise. The third ground of appeal is not made out.
Accordingly, the orders I propose in each case are as follows:

1. Leave to appeal against sentence is granted.
2. The appeal is dismissed.

McCALLUM J: I agree with Fullerton J.
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LAST UPDATED:
18 December 2009