Er v R

[2018] NSWCCA 286

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Er v R [2018] NSWCCA 286
Hearing dates:	26 November 2018
Decision date:	07 December 2018
Before:	Hoeben CJ at CL at [1]; Bellew J at [66]; Campbell J at [67]
Decision:	(1)   Leave to appeal against sentence is granted. (2)   The appeal is allowed and the sentence imposed on the applicant by his Honour Judge Bennett SC on 17 November 2017 is quashed. (3)   In lieu thereof the applicant is sentenced as follows: (a)   In respect of the drive while disqualified offence on 23 March 2016 imprisonment for 9 months, commencing 1 October 2017 and expiring 30 June 2018. (b)   For the break enter and steal offence on 23 March 2016 imprisonment with a non-parole period of 1 year and 8 months, commencing 1 February 2018 and expiring 30 September 2019, with a balance of term of 1 year and 4 months expiring 31 January 2021. (c)   The applicant is disqualified from holding a driver’s licence for 12 months commencing 30 September 2019 until 29 September 2020.
Catchwords:	CRIMINAL LAW – sentence appeal – one count of break enter and steal and one count of driving while disqualified – imprisonment for 5 years and 6 months with a non-parole period of 3 years – whether sentencing judge misapprehended the sentence imposed upon a co-offender – whether parity principle breached – whether sentencing judge took into account the totality principle – whether sentencing judge acted upon an erroneous maximum penalty in respect of the drive while disqualified offence – whether overall sentence manifestly excessive – error in the sentencing process made out – need to re-sentence – appeal allowed and sentence reduced.
Legislation Cited:	Crimes Act 1900 (NSW) – s 112(1)(a) Crimes (Sentencing Procedure) Act 1999 (NSW) s3A, 19(2) Criminal Appeal Act 1912 (NSW) – s 5(1)(c) Criminal Procedure Act 1986 (NSW) – s 166 Road Transport Act 2013 (NSW) – s 9, 54(1)(a), 205A Road Transport (Driver Licence Disqualification) Act 2017 (NSW)
Cases Cited:	Andreata v R [2015] NSWCCA 239 Estephan v R [2015] NSWCCA 100 Kandemir v R [2018] NSWCCA 154
Category:	Principal judgment
Parties:	William Er – Applicant Regina – Respondent Crown
Representation:	Counsel: S Howell – Applicant M England – Respondent Crown Solicitors: E McWilliams – Applicant Solicitor for Public Prosecutions – Respondent Crown
File Number(s):	2016/096895
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 17 November 2017 Before: Bennett SC DCJ File Number(s): 2016/096895

JUDGMENT

1. HOEBEN CJ at CL:

Offences and sentence

The applicant pleaded guilty in the District Court seventeen days before trial to one count of break enter and steal pursuant to s 112(1)(a) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is imprisonment for 14 years.

2. The applicant was also sentenced for one offence of driving while disqualified pursuant to s 54(1)(a) of the Road Transport Act 2013 (NSW) which was before the court by way of a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW).

3. After a discount of approximately 10 per cent for the plea of guilty to the break enter and steal offence, the applicant was sentenced to imprisonment for 5 years with a non-parole period of 2 years and 6 months. After a discount of 25 per cent for the drive while disqualified offence, the applicant was sentenced to imprisonment for 18 months. The total term of imprisonment was 5 years and 6 months with a non-parole period of 3 years. The sentence was to commence on 1 October 2017. The applicant was also disqualified from driving for 2 years.

4. The applicant seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against the above sentence which was imposed on 17 November 2017.

5. The applicant relies upon the following grounds of appeal:

Ground 1 – The sentencing judge erred by misapprehending the sentence imposed upon the co-offender Mr Aslett

Ground 2 – The sentence imposed upon the applicant for the break, enter and steal offence, when compared to those imposed upon each of his co-offenders was such as to engender a justifiable sense of grievance

Ground 3 – The sentencing judge erred in not taking into account the totality principle in relation to the prior sentence imposed upon the applicant for the break, enter and steal offence he committed on 6 March 2016 and drive whilst disqualified offence in April 2016

Ground 4 – The sentencing judge erred in acting upon an erroneous maximum penalty in respect of the drive whilst disqualified offence

Ground 5 – The overall sentence imposed is manifestly excessive

FACTUAL BACKGROUND

6. The break enter and steal offence was committed in the following circumstances. The victim had lived at premises in Wakeley for some 30 years. The house was a single level brick home in a residential area. On 23 March 2016, the victim left home at about 7am to take his wife to work. The home was locked and secured when he left. At about 12.30pm, William Aslett and Michael Huynh and the applicant arrived at the house in a blue Toyota Corolla. Michael Huynh was driving the vehicle at the time.

7. What occurred thereafter was captured, at least in part, by CCTV cameras installed at a neighbouring property.

8. The applicant left the vehicle, which was parked in the driveway, went to the front door and knocked. (His Honour found that this was for the purpose of confirming that there was no-one at home.) The applicant returned to the motor vehicle and entered the left hand rear passenger seat. The vehicle reversed down the driveway for a few metres and stopped.

9. Aslett and Huynh then left the vehicle and jumped over the boundary fence. As they did so, the applicant reversed the motor vehicle down the driveway and away from the immediate vicinity of the house. Aslett attempted to cover his face and Huynh wore a sombrero hat which served the same purpose. (His Honour found that this was done to make their identification more difficult.) The sombrero was left at the scene and subsequently, Huynh’s DNA was matched to the sombrero.

10. The rear door of the premises was forced open. It was not established whether Aslett or Huynh was the person who forced entry.

11. The items stolen were: $100,000 in cash, four gold bracelets, five gold necklaces, a 24 carat gold ring, 2000 Euros and about $100 in US currency. Two passports, each respectively of the victim and his wife, were also stolen.

12. Images were captured of Aslett and Huynh jumping over the back fence and returning to the motor vehicle approximately an hour later. The vehicle was then driven away by the applicant.

13. The victim returned home at about 3.45pm and found his house ransacked and the property missing. The police were called. He was found in a state of distress when they arrived. He explained that the money was in the premises as funds for a holiday, which was to be of three months’ duration. They were intending to leave on 4 April 2016 so that the loss of the passports was a serious matter.

14. That afternoon, Huynh was shown to have attended a currency exchange where he exchanged $112 in US currency for $115 in Australian currency. He was dressed similarly to how he presented at the victim’s home in the CCTV images.

15. Huynh was arrested at Fairfield Police Station on 24 March 2016. He participated in an interview and made partial admissions. He gave information about his alleged movements that day and denied ever having been to the victims’ premises. He claimed not to be able to recognise the vehicle when initially shown a picture of it but subsequently agreed that the vehicle was registered to his father but that he drove it.

16. On 24 March 2016, Huynh participated in a second interview. He said that he was at the scene but waited outside as “they did what they did”. He saw handbags being taken out of the house and some cash. He claimed to have been paid less than $1,000. He claimed not to know the names of the other offenders.

17. On 29 March 2016, police approached Aslett in Liverpool and arrested him. On 30 March 2016, police arrested the applicant and took him to Green Valley Police Station. He participated in an interview. He denied knowledge of a break, enter and steal at Wakeley. He said that he was under the influence of Xanax at the time. He denied doing any “break and enter”.

18. The applicant spoke of being friends with Aslett and Huynh. He remembered being with Aslett, but he could not remember doing a break, enter and steal. He might have knocked at a door. He agreed that he might have driven a blue car, but he did not have a licence. He said that he did know who was in the car with him. He subsequently agreed that Aslett and Huynh would have been in the car. The applicant admitted that he drove the car away from the house, but said that he did not go into the house.

19. At the time of the break enter and steal offence, the applicant did not have a driver’s licence and was disqualified from driving. He had never held a driver’s licence.

Sentence proceedings

20. The sentencing judge noted that the applicant was the driver of a motor vehicle in which he conveyed himself and his two accomplices from the crime scene. At the time he was a disqualified driver and this was the second or subsequent such offence. This meant that under the legislation which applied at the time, the maximum sentence was imprisonment for 2 years with a disqualification from driving of 2 years.

21. When imposing a sentence of 18 months for the driving while disqualified offence, his Honour explained that he had allowed a discount of 25 per cent because the applicant had pleaded guilty at an early point in time. His Honour went on to explain the length of the sentence as follows:

“I find that his driving whilst disqualified on this occasion falls within the range of a worst case example of that offence, against his contumacious disregard of his obligations to the community and the fact that he committed the offence in the commission of a serious break enter and steal. There will be some accumulation between that sentence and what I intend to impose for the break enter and steal.” (Sentencing judgment 3.3)

22. The sentencing judge also noted that as of the date of sentence for these matters, the applicant was already in custody for four other matters. He noted that the applicant was serving a sentence of imprisonment of 6 months that would conclude on 26 December 2017 for an offence of being found on drug premises. He was also serving the balance of parole for an earlier break enter and steal offence. That balance of parole extended from 27 June 2017 to 31 January 2018.

23. The sentencing judge took those matters and his assessment of the drive while disqualified offence into account when fixing the commencement date for this sentence. On that issue, his Honour said:

“The commencement date of the first of the sentences, which will be for the drive whilst disqualified, I should determine in accordance with the exercise of discretion that I have, as discussed by Simpson J in the decision in Callaghan [2006] NSWCCA 58. He has two days in custody referable to this break, enter and steal, on 30 and 31 March 2016, and he has been in custody thereafter, from 11 August 2017.

Although there are other periods of imprisonment earned for other crimes proximate to the events with which I am presently concerned, the only custody that I need to bring to account at the moment is the sentence that will expire on 26 December 2017, and the balance of parole to expire on 31 January 2018. In the exercise of discretion, I should not overlook that but for this other raft of misconduct he might well have been given another opportunity to be released to parole. Accordingly, I should commence the first of these sentences today at some point between 27 June 2017 and 31 January 2018, but not as far back as 11 August 2017. I shall commence the first of these sentences today on 1 October 2017.” (Sentence judgment, 3.7-4.2)

24. In the course of reviewing the facts, the sentencing judge noted the following:

“The Crown cannot prove beyond reasonable doubt who entered. The Crown cannot prove beyond reasonable doubt that the offender was aware of the value of the property, and the Crown cannot prove beyond reasonable doubt the portion of the property that each of the offenders appropriated.

This might well be so, but this is a joint criminal enterprise upon which the three were engaged. It is the loss suffered by the victim that it is significant. There is no challenge to the assertion that the property identified was stolen; the offender has pleaded guilty to the charge and thereby admitted all of the elements that were required of the Crown in proof of the case. The most that can be said in these circumstances is that the Crown is not in the position to show the precise extent to which each of these offenders benefited from this crime, and I do not overlook that when I assess the sentence to be imposed upon this offender.” [The reference to “the offender” is a reference to the applicant.] (Sentence judgment, 5.4)

25. His Honour noted that none of the stolen property had been recovered. His Honour regarded the loss of the passports in those circumstances as a significant matter for the victims. His Honour also noted that although there was no evidence before him to this effect, that the jewellery taken would have had at least some sentimental value to the victim and his wife. His Honour regarded the break enter and steal offence as a serious example of such a crime.

26. His Honour reviewed the applicant’s subjective case. He was aged 19 at the time of the offending and at the time of sentence was 21. His Honour noted that notwithstanding his relatively young age, he had accumulated a long list of previous offences. This was the third break enter and steal offence of which he had been convicted. His other prior convictions included assaulting a police officer, escaping police custody, intimidation, breaching an apprehended violence order, two stealing offences and being found on drug premises. The record of his driving offences covered in excess of four pages and included driving in a manner dangerous.

27. By way of comparison with Aslett and Huynh, the sentencing judge noted that His Honour Acting Judge Armitage had sentenced them on 11 April 2017. Aslett was aged 23 and Huynh was aged 25 when the break enter and steal offence occurred. Aslett pleaded late and was given the benefit of a 12.5 per cent discount for the utility of the plea. Huynh pleaded early and was given the benefit of a 25 per cent discount for the utility of the plea. Aslett had an extensive criminal history and Huynh had prior convictions for drugs, possessing a prohibited weapon, damage to property and goods in custody. When the break enter and steal offence occurred there was an outstanding warrant for the arrest of Huynh and Aslett was on parole for manslaughter.

28. His Honour also noted that Acting Judge Armitage had found that the prospects for rehabilitation were reasonable in the case of Aslett, and reasonably good for Huynh. Armitage ADCJ had also found that in the case of Aslett there was limited remorse and on the part of Huynh a greater level of remorse than that shown by Aslett.

29. Huynh was sentenced to imprisonment in respect of the break enter and steal offence with a non-parole period of 1 year commencing 24 November 2016 and expiring 23 November 2017, and a balance of term of 1 year expiring 23 November 2018. Aslett was sentenced for the break enter and steal offence to a non-parole period of 2 years, commencing 29 September 2016 and expiring 28 September 2018, with a balance of term of 1 year expiring 28 September 2019.

30. The sentencing judge rejected the applicant’s submission that his criminality was not of the same level as Aslett. His Honour found that the applicant’s role of going to the house and knocking on the door, together with looking after the car and driving the offenders so that they could escape after the crime, were integral to the commission of the offence. His Honour found that regardless of who went into the house and took the property, all three offenders were participants in a joint criminal enterprise in which they divided their roles and the victims suffered the loss. His Honour regarded it as artificial to embark upon some endeavour to break up the individual benefits derived by the offenders. This was particularly so when the applicant had not given evidence in the sentence proceedings.

31. His Honour characterised the expressions of remorse as hearsay representations in the pre-sentence report and in a report of Mr Diment, a psychologist, who had seen the applicant. His Honour considered that the pre-sentence report did not assist the applicant. This was because it set out in detail a number of offences for which the applicant had received good behaviour bonds, which he had almost always breached. In particular, his Honour noted that the applicant had been released from custody in February 2015, subject to parole in relation to an offence of contravening an apprehended violence order. The applicant’s response to supervision was considered unsatisfactory in that he had failed to report as directed, had failed to attend alcohol and other drug assessments and had breached the attendance requirements of an addiction program. This had ultimately led to him being removed from it. In October 2016, he had been assessed as unsuitable for an Intensive Corrections Order due to his failure to co-operate with the assessment process. This had led to a sentence of imprisonment for 13 months in relation to an earlier drive while disqualified offence.

32. His Honour relied largely upon the history recorded by Mr Diment in setting out the applicant’s background. He was the youngest in a family of five children. His parents separated when he was very young and thereafter, he resided with his mother and had no contact with his biological father. He has a five month old child from a relationship which by the time of sentence, had broken down.

33. His Honour noted that he was described by others, including his mother, as a “quiet person who appeared to be easily led and influenced by negative peers”. He had been assessed as having low cognitive functioning. He was expelled from school and attended a behavioural school from which he departed half way through year 9. When he was able to obtain work, it was work of a menial kind in various positions. He was assessed as having an unresolved polysubstance abuse problem. That commenced in his teenage years when he was about 15. It began with cannabis and extended to “Ice”. It was submitted to his Honour from the bar table that the applicant’s participation in this crime was to facilitate his drug use.

34. He was assessed in the psychological and pre-sentence reports as having a medium to high risk of re-offending. The psychological report stated that he had extensive criminogenic needs to do with education, employment, financial circumstances, family and relationship issues and alcohol and other drug use. For those reasons, his Honour found that there were special circumstances that required him to be subject to an extended period of supervision while on parole.

35. His Honour noted that psychological testing showed evidence of severe anxiety and moderate depression. He was at a marked risk of experiencing clinical and behavioural problems. He was assessed as likely to be impulsive, to engage in seemingly self-destructive behaviours with a high potential for alcohol and substance abuse, as well as illegal activities. The testing showed problems with social detachment and discomfort in close relationships. There were risks of limited anger control and hostility.

36. The sentencing judge took into account the applicant’s drug use as an explanation for the offending, but did not accept that it provided any excuse. His Honour stressed that the decision to use drugs and place himself under the influence of them was made by the applicant and that self-induced intoxication, either by way of alcohol or drugs, was not a matter which could be taken into account in mitigation of penalty. His Honour noted, however, that the fact of his drug addiction could not be ignored when assessing his personality and explaining the anti-social conduct which had occurred.

25. His Honour found that because of the seriousness of the offending, nothing less than a custodial sentence would be appropriate. By reference to the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act (The Sentencing Act), his Honour gave weight to general deterrence and specific deterrence. In accordance with that section, His Honour had regard to punishment, denunciation and recognition of harm. His Honour noted that the sentence must provide a basis upon which rehabilitation could, if possible, be achieved.

26. In the absence of direct evidence from the applicant, his Honour was not prepared to find that he was truly contrite and remorseful. On the contrary, his Honour found that the pattern of offending by the applicant, which his criminal record revealed, strongly suggested that he was not remorseful for these offences. His Honour concluded that by reference to the history of previous offending, the applicant appeared to be uninhibited when it came to the opportunistic commission of offences. His Honour expressed the hope that the applicant would take the opportunity provided by the extended parole period, to address his criminogenic needs and do what he could to rehabilitate himself.

27. When handing down the sentence for the break enter and steal offence, his Honour explained its basis as follows:

“For the break, enter and steal, I am conscious of the need to observe parity. The circumstances of the offending and the background seem to me to be comparable with offender Aslett, though I am not at this stage of the view that there are reasonable prospects of rehabilitation. There are hopes for rehabilitation and I accept that the offender might sincerely hold the view that he wants to be rehabilitated, but to take the view that there are prospects that could be described as reasonable I believe is ambitious.

I see no reason not to adopt a sentence as was imposed upon Aslett by Judge Armitage in the circumstances. Accordingly, I impose a non-parole period of two and a half years’ imprisonment that shall commence on 1 April 2018 and expire on [30 September 2020]. I impose a further period of imprisonment of two and a half years to commence at the expiration of the non-parole period, and that shall expire on [31 March 2023].” (Sentence judgment, 18.1)

The appeal

40. As I said in Estephan v R [2015] NSWCCA 100 at [83] (R A Hulme and Wilson JJ agreeing):

“83   I agree with the Crown that despite the order in which the grounds of appeal have been set out, it is appropriate to deal with grounds 3, 4 and 1 before ground 2, which raises the issue of parity. As this Court has said on many occasions, an argument relating to parity should await the determination of the other grounds since a complaint of disparity accepts that the sentence is otherwise appropriate: England v R; Phanith v R [2009] NSWCCA 274 per Howie J (with whom McClellan CJ at CL and Fullerton J agreed) at [22]; Jimmy v R [2010] NSWCCA 60; 269 ALR 115 at [251]; Corda v R [2014] NSWCCA 281 at [59]).”

41. Accordingly, I propose to deal with the ground of appeal raising parity last.

Ground 1 – The sentencing judge erred by misapprehending the sentence imposed upon the co-offender Mr Aslett

42. This ground is based on the intention expressed by the sentencing judge to impose a sentence such as was imposed upon Aslett by Armitage ADCJ. Despite that expression of intention, his Honour did not give effect to it.

43. The sentence imposed on Aslett by Armitage ADCJ was imprisonment for 3 years with a non-parole period of 2 years. The sentence imposed on the applicant was imprisonment for 5 years with a non-parole period of 2 years and 6 months.

44. The overwhelming inference is that his Honour, for reasons that are not apparent on the face of the sentence judgment, must have misapprehended the sentence imposed upon Aslett.

45. It follows that there is an unexplained inconsistency between his Honour’s expression of intention and what he actually did which has resulted in a significantly longer sentence being imposed on the applicant. That, in my opinion, is analogous to a misapprehension of fact and constitutes error on the part of the sentencing judge. This is the case notwithstanding that his Honour recognised a difference between the findings made in respect of Aslett and those made by him in respect of the applicant in that Aslett had “reasonable prospects of rehabilitation”. That difference in background could not explain the significant difference in the sentences imposed.

46. Accordingly, error having been established, it will be necessary for this Court to re-sentence the applicant in respect of the break enter and steal offence.

Ground 3 – The sentencing judge erred in not taking into account the totality principle in relation to the prior sentence imposed upon the applicant for the break, enter and steal offence he committed on 6 March 2016 and drive whilst disqualified offence in April 2016

47. Given the finding in relation to Ground 1, which will require the applicant to be re-sentenced for the break enter and steal offence and which will require this Court to apply the principle of totality, there is no need to consider this ground further.

Ground 4 – The sentencing judge erred in acting upon an erroneous maximum penalty in respect of the drive whilst disqualified offence

48. At the time the applicant committed the drive while disqualified offence, the maximum penalty applicable for a second or subsequent offence (which this offence was by operation of s 9 of the Road Transport Act) was imprisonment for 2 years. His Honour at the commencement of his remarks stated that the maximum penalty was imprisonment for 2 years.

49. In October 2017 (i.e. in the month before the applicant was sentenced) the NSW Parliament reduced the maximum penalty applicable for a second or subsequent offence of drive whilst disqualified from 2 years to 12 months (Item [3] of Schedule 1 of Road Transport (Driver Licence Disqualification) Act 2017. The amending legislation commenced on 28 October 2017. By virtue of s 19(2) of the Sentencing Act, the reduced penalty extended to the applicant’s offence and his sentencing despite his offence having been committed before the commencement of the amending legislation.

50. Section 19(2) of the Sentencing Act provides:

“19   Effect of Alteration in Penalties

…

(2)    If an Act or statutory rule reduces the penalty for an offence, the reduced penalty extends to offences committed before the commencement of the provision of the Act or statutory rule reducing the penalty, but the reduction does not affect any penalty imposed before that commencement.”

51. The applicant’s sentence for the driving while disqualified offence was imposed after the commencement of the amending legislation. The maximum penalty applicable was therefore 12 months not 2 years. This affected the length of the sentence imposed by his Honour in that his Honour took as the starting point for the sentence which he imposed the maximum penalty of 2 years before applying a 25 per cent discount to arrive at a sentence of 18 months imprisonment.

52. It is fundamental to the integrity of the sentencing process for a sentencing judge to correctly state the maximum penalty for an offence. This has consistently been identified by the High Court as an important guidepost for sentencing judges (Kandemir v R [2018] NSWCCA 154 at [66] (Price J with whom Beazley P and R A Hulme J agreed); Andreata v R [2015] NSWCCA 239 at [28] (Beech-Jones J with whom Ward JA and Adams J agreed).

53. At the same time, s 205A of the Road Transport Act was also amended so that the minimum term of disqualification was 6 months, and the default position in the absence of any order made by the court, was a period of disqualification of 12 months.

54. The Crown conceded that the applicable maximum penalty for the offence of drive while disqualified, being a second or subsequent offence, was 12 months imprisonment and not 2 years, as stated by his Honour. Accordingly, the sentence imposed for this offence of 18 months imprisonment was in excess of the applicable maximum penalty. It will be necessary for the applicant to be re-sentenced in respect of that offence.

Ground 5 – The overall sentence imposed is manifestly excessive

55. There is no need to consider this ground in that this Court will be required in the independent exercise of its discretion to re-sentence the applicant in respect of each offence.

Ground 2 – The sentence imposed upon the applicant for the break, enter and steal offence, when compared to those imposed upon each of his co-offenders was such as to engender a justifiable sense of grievance

56. In the re-sentencing exercise to be carried out by this Court, it will be necessary to have regard to the parity principle and in particular, the relationship between the sentence to be imposed on the applicant and that imposed on Aslett and Huynh.

Re-sentence

57. On re-sentencing for the driving while disqualified offence, no objection was taken to the starting point for that sentence being 1 October 2017, as chosen by his Honour. In addition, no objection was taken to characterising the offending as a very serious example of that kind of offence so that the maximum sentence of 12 months imprisonment should be used as the starting point. When a 25 per cent deduction is made for the utilitarian value of the plea of guilty, the resulting sentence is imprisonment for 9 months. In due course, there should be some concurrency with the sentence imposed for break enter and steal in that the driving component formed a part of each offence.

58. When re-sentencing for the break enter and steal offence, the factual findings by the sentencing judge which have not been challenged should be applied. Accordingly, the following matters are relevant to re-sentencing.

1. The maximum penalty for the break enter and steal offence was 14 years imprisonment.

2. The break enter and steal offence was “a serious example of this crime”.

3. That the break enter and steal offence was “towards the mid-range” and that “it is a very serious matter where … the value of the property stolen is significant. It included $100,000 in cash, four gold bracelets, four gold necklaces, one 24 carat gold ring, four gold coins, 2000 Euros and 100 US dollars”. None of the jewellery nor the $100,000 in cash was recovered.

4. The applicant’s role in going to the house and knocking on the door to make sure there was no-one home and in providing transport for the other two offenders from the house was integral to the commission of the offence.

5. Irrespective of who actually entered the house, all three were participants in a joint criminal enterprise.

59. While it is true that all three offenders were engaged in a joint criminal enterprise, and to that extent their culpability was equal, the functions which they performed were somewhat different. The CCTV cameras showed that Huynh and Aslett were in or at the house for over an hour. While it is not known who actually forced open the door, nor whether both or only one of them entered the house and ransacked it, I find it difficult to accept that only one of either Huynh or Aslett would have entered the house and the other would have remained outside for over an hour. Accordingly, there is a strong likelihood that they both entered the house and engaged in the ransacking process. That being so, their participation in the break enter and steal offence should be regarded as somewhat greater than that of the applicant, whose participation was somewhat more passive.

60. Other relevant matters on re-sentence arise from the respective subjective cases of the offenders:

1. The applicant was younger than each of the co-offenders.

2. All three offenders had a considerable criminal history but that of Aslett was considerably worse than the other two and that of the applicant was slightly worse than that of Huynh.

3. Unlike each of his co-offenders, the applicant was not on conditional liberty at the time of the offence.

4. Each offender had a background punctuated by drug use and addiction.

5. Compared to the sentence imposed on Huynh, the applicant’s head sentence was 3 years longer and the non-parole period was 1 year and 6 months longer. Compared to the sentence imposed upon Aslett, the applicant’s head sentence was 2 years longer and the non-parole period 6 months longer.

6. That differential is not explained by the application of the differing sentencing discount in each case, i.e. in Huynh’s case before a discount the head sentence was 2 years and 8 months. In Aslett’s case before a discount the head sentence was 3 years and 6 months; in the applicant’s case before a discount the head sentence was 5 years and 6 months.

61. The difference between the applicant’s sentence and that of his co-offenders cannot be explained on any rational basis. On the contrary, there were several differences relevant to the question of parity which were favourable to the applicant. These were his age, his lesser level of participation, his criminal record was less serious than that of Aslett and he was not at conditional liberty at the time of the offending. On the negative side, his prospects of rehabilitation were less than those of his co-offenders and his Honour was not prepared to find that he was remorseful.

62. An affidavit of the applicant, sworn 2 November 2018, was before the Court. It was to the effect that he had been in custody since 27 June 2017 and had completed a “Fitness Certificate 3” course, a “Foundation EQUIPS” program and was presently participating in the “EQUIPS Addiction” course. He said that he had not used drugs since he had been in custody.

63. There was also before the Court an affidavit from a solicitor employed by the Crown, affirmed 5 November 2018. That affidavit had annexed to it documentation which referred to the following breaches of discipline while the applicant was in custody.

2.8.18 – fail to supply a urine sample

1.6.18 – failure to comply with Correctional Centre routine in that he obstructed the full view of security cameras, making it impossible for any officer to do security checks on his cell.

4.1.18 – refuse to supply a urine sample.

64. Without further evidence and in particular cross-examination, it is not possible to determine whether there has been an improvement in the applicant’s behaviour while in prison. The applicant’s explanation that he was unable to pass urine for physical reasons, sits uneasily with the reports relating to those matters, particularly when one has regard to the breach of prison discipline. I have concluded that in the circumstances it would be unsafe to make a finding either in the applicant’s favour or against him based on that material.

65. Taking the above matters together, I have concluded that the position of the applicant from the point of view of his subjective case is closer to that of Aslett than Huynh. His youth and his lesser contribution to the offending, however, put him in a somewhat more favourable position. Accordingly, on re-sentence his sentence should be somewhat less than that imposed on Aslett but greater than that imposed on Huynh. The sentence which I would impose is one of imprisonment for 9 months in respect of the drive while disqualified offence and for the break enter and steal offence, imprisonment for 3 years with a non-parole period of 1 year and 8 months, i.e. a total sentence of imprisonment for 3 years and 4 months with a non-parole period of 2 years. Accordingly, the order which I propose is:

1. Leave to appeal against sentence is granted.

2. The appeal is allowed and the sentence imposed on the applicant by his Honour Judge Bennett SC on 17 November 2017 is quashed.

3. In lieu thereof the applicant is sentenced as follows:

1. In respect of the drive while disqualified offence on 23 March 2016 imprisonment for 9 months, commencing 1 October 2017 and expiring 30 June 2018.

2. For the break enter and steal offence on 23 March 2016 imprisonment with a non-parole period of 1 year and 8 months, commencing 1 February 2018 and expiring 30 September 2019, with a balance of term of 1 year and 4 months expiring 31 January 2021.

3. The applicant is disqualified from holding a driver’s licence for 12 months commencing 30 September 2019 until 29 September 2020.

66. BELLEW J: I agree with Hoeben CJ at CL.

67. CAMPBELL J: I agree with Hoeben CJ at CL.

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Decision last updated: 07 December 2018