Gavellas v The The King

[2022] NSWCCA 229

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Gavellas v R [2022] NSWCCA 229

Hearing dates:

11 October 2022

Date of orders:

25 October 2022

Decision date:

25 October 2022

Before:

Macfarlan JA at [1]
Button J at [2]
Wilson J at [3]

Decision:

1. An extension of time in which to file an application for leave to appeal is granted until 22 August 2022;

2. Uphold ground 2;

3. Dismiss the appeal.

Catchwords:

CRIME – appeal against sentence – specially aggravated break enter commit serious indictable offence being assault occasioning actual bodily harm – Form 1 offence of intentionally damaging property – principal offence involved violence and was committed in company – question of whether aggravating features under s 21 Crimes (Sentencing Procedure) Act 1999 (NSW) were incorrectly held to exist – question of error of fact made by sentencing judge - factual error established – no lesser sentence warranted – appeal dismissed.

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)

Crimes Act 1900 (NSW)

Criminal Procedure Act 1986 (NSW)

Supreme Court (Criminal Appeal) Rules 2021

Cases Cited:

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 [No 1 of 2002] (2002) 56 NSWLR 146

House v The King (1936) 55 CLR 499; [1936] HCA 40

Johnson v R [2005] NSWCCA 186

Lay v R [2014] NSWCCA 310

R v Henry (1999) 46 NSWLR 346

Category:

Principal judgment

Parties:

C Gavellas (Applicant)
The King (Respondent)

Representation:

Counsel:
T Bicanic (Applicant)
J Roy (Respondent) (Crown)

Solicitors:
Proctor & Associates (Applicant)
Solicitor for Public Prosecutions (NSW) (Crown) (Respondent)

File Number(s):

2019/371884

Publication restriction:

An order was made in the District Court on 7 July 2021 that there be no publication of the names of the victim of the crime, or those of his immediate family

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

7 July 2021

Before:

G D Woods KC DCJ

File Number(s):

2019/371884

Judgment

1. MACFARLAN JA: I agree with Wilson J.

2. BUTTON J: I agree with Wilson J.

3. WILSON J: On 7 July 2021 Cooper Gavellas, the applicant, was sentenced before the District Court sitting at Gosford with respect to a charge of specially aggravated break and enter and commit serious indictable offence, the serious indictable offence being assault occasioning actual bodily harm, contrary to s 112(3) of the Crimes Act 1900 (NSW). The sentence imposed upon him, a term of imprisonment for 5 years and 3 months with a non-parole period of 3 years, took into account on a Form 1 document a further related offence of intentionally damaging property contrary to s 195(1)(a) of the Crimes Act. The sentence commenced on 26 November 2019 and will expire on 25 February 2025. The NPP expires on 25 November 2022.

4. By Notice filed on 22 August 2022, that is, over thirteen months after sentence was imposed, the applicant now seeks an extension of time in which to bring an application for leave to appeal. The Crown, conceding error with respect to one of the grounds advanced by the applicant, does not oppose an extension of time.

The Proceedings in the District Court

5. The applicant was committed for sentence to the District Court at Gosford, having entered a plea of guilty to the s 112(3) offence when the matter was before the Local Court at Wyong on 21 October 2020. The associated charge of damaging property was referred to the court pursuant to s 166 of the Criminal Procedure Act 1986 (NSW). The applicant appeared before his Honour Acting Judge G D Woods KC on 11 June 2021, when evidence was received, and submissions were taken.

The Crown Case

6. The facts of the offences were before the sentencing court by way of an Agreed Statement.

7. On the evening of 19 October 2019, the victim of the applicant’s crime, Mr Z, was at home with his de facto partner, Ms R, and her eldest daughter, a girl aged 13 years. The family lived in a unit in a complex of six apartments at The Entrance. Mr Z was in his bedroom, which overlooked the driveway of the apartment block, a little after 8.30 that evening, wearing headphones and using his computer, when a male, either the applicant or his unidentified co-offender, knocked on the bedroom window. The male asked Mr Z if he was “Shane”. Mishearing, and thinking the male had identified himself as Shane, a frequent caller to a neighbouring unit, Mr Z responded, “Yeah”. The male then asked Mr Z to come outside, but he refused, suggesting the male return the following day. The applicant or his co-offender then smashed the glass of the bedroom window, and one of the offenders climbed inside. He was armed with a rubber mallet and used it to smash Mr Z’s laptop computer, damaging it beyond repair, this being the offence on the Form 1 document. The second of the two offenders then climbed through the window. That the offence was committed in company was a feature of aggravation for the purposes of s 112(2) of the Crimes Act.

8. Hearing the noise Ms R came to the door of the bedroom and called out. Mr Z backed away in her direction and, reaching the door, left the bedroom and pulled the door shut behind him. He held it closed, calling to the intruders, “What are you doing? We’ve got a child here. Leave us alone”. The applicant and his co-offender forced the door open, causing Ms R to rush to her daughter’s bedroom, and Mr Z to back into the bathroom. Ms R called out, “Stop, please stop”.

9. The intruders took hold of Mr Z and began to punch him repeatedly to the head and body. One of the men struck him in the head with the mallet. Ms R ran to the bedroom to get her mobile phone but saw that it and Mr Z’s phone had been taken.

10. Mr Z was eventually able to grasp the mallet from his attackers and began to swing it at them, hitting one of the men and shouting to them that he was not Shane. One of the offenders said, “I’m sorry”. Mr Z then saw a third male standing outside his smashed bedroom window, gesturing to the other two to leave. One of the intruders went to the front door of the apartment and left; the other, after taking the mallet from Mr Z, climbed out through the broken window.

11. Ms R went to the door and saw the third male and another offender standing there. She said, “Give me a phone, I need to call the Ambulance”. The third male said to his companions, “Who took her phone? Give her back her phone”. One of the intruders approached Ms R and handed her the phone, saying “He said his name was Shane”. When she responded that it was not his name the male said, “My bad”. The three men walked away.

12. Ms R telephoned the Emergency Services and asked for an ambulance. Police and ambulance officers arrived soon after. Mr Z was taken to hospital. On examination he was found to have multiple abrasions to his body and head, swelling to his temple area (the occasioning of this injury constituting the serious indictable offence averred in the charge), and a 6 centimetre wound to the back of his head – the infliction of the wound constituting the circumstance of special aggravation. A scan found no fractures or other injury. The wound was sutured. Mr Z was kept in hospital under observation until the following day.

13. Crime scene officers examining Mr Z’s home found a fingerprint on the internal sill of the window in the main bedroom which had been used by the intruders to enter the premises. The fingerprint was that of the applicant. An examination of call charge records for the mobile phone service used by him showed that the phone had been in the vicinity of Mr Z’s unit at the time of the offence.

14. The applicant was arrested on 26 November 2019. He refused to be interviewed.

15. The Crown additionally tendered the applicant’s criminal record, which showed offences pre-dating the present matter of possessing a prohibited drug from 2018, dealt with - after a non-conviction bond pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) was called up - by way of a fine; failing to appear, from May 2019; driving with a drug present in the blood, dealt with in September 2019 by a fine and disqualification from driving; and an offence of driving whilst disqualified, committed on 6 October 2019. The applicant had also been convicted of two further driving offences (driving whilst disqualified and driving with a drug in the blood) committed after the present matter, and a common assault from June 2020, dealt with in February 2021. The applicant’s custodial history showed that he had incurred some institutional infringements since being remanded in custody after arrest.

16. The sentencing court received Victim Impact Statements from Mr Z and Ms R. Mr Z referred to the emotional trauma caused by the home invasion and the anxiety he felt at the memory of his partner screaming in terror and his own feelings of being unable to protect her and his step-daughter. The family had been forced to move from their home due to ongoing feelings of distress. Ms R said that the crime had had a long-lasting effect upon her and her family. She described the trauma of having seen her partner brutally beaten, and left covered in blood, and her own fear that he would die. She said that the scene she witnessed repeatedly replayed in her mind, and the family had been left feeling unsafe in their own home. Her eldest daughter was left with deep seated anxiety and required ongoing counselling; her youngest daughter, who had not been present that night; had never returned to the family to live, due to the fears of the child’s father for her safety.

The Applicant’s Case

17. The applicant was called to give evidence on 11 June 2021. He told the sentencing court that he was deeply sorry for the offence, which had occurred when he was “caught up in a bad dark time […] with bad people […]” with whom he would never again associate. The applicant mentioned a cousin who was an associate of outlaw motorcycle gangs and said he planned to have no association with his cousin. He referred to his drug use and said he had realised how ugly drug use was and had not used drugs since entering into custody and would not use drugs upon release. When asked by his Senior Counsel if he had thought about what he had put his victim through, he responded:

“Yes, I've taken this into strong considerations, every day I think about it, [...] you know, it’s not nice really. It’s not a nice thing that I was a part of and that when I was there when it happened and I saw it unfold and I’m not proud to have been a witness of it or had something to do with it and I feel terrible for [Mr Z] and I hope he gets to read my letter and take it into consideration. Yeah.”

18. In further evidence-in-chief given by leave during submissions, the applicant said that he had been the person who apologised to Mr Z and Ms R and insisted that Ms R’s phone be returned to her (the latter claim contradicting the Agreed Statement of Facts).

19. The letter to Mr Z to which the applicant referred was a handwritten letter of apology in which the applicant asked for Mr Z’s forgiveness. He said,

“I want you to no that day changed my life and waking up in custody every day there is not a single morning that I don’t wish I could turn back time and prevent it from taking place not only because it has landed me in prison but because I no it was wrong and you don’t deserve to be in that situation, and any effect it’s had on anyone else weather being close to your or close to me" (reproduced as in original).

20. The applicant’s mother also gave evidence on sentence. Mrs Gavellas, who works as a primary school teacher, said that the applicant was the youngest of her three sons. Her other sons worked as tradesmen and her husband was a building supervisor by occupation. Mrs Gavellas said that the family fully supported the applicant and would assist him upon his release from custody, particularly with remaining abstinent from drug use. She observed that, since the applicant went into custody, she had maintained regular contact with him and has seen him change from the frequently drug or alcohol affected person he was prior to arrest, to a clear headed young man who expressed his relief at being drug free. She believed that he had achieved an internal calm and sense of peace that would aid him upon his release. Mrs Gavellas said that her son had been employed in landscaping, and building and gas services, and had been very highly regarded by employers. She was confident he would resume employment upon release.

21. Correspondence from Mr Noone, the Director of GE Civil Enterprises, confirmed that the applicant had been a valued employee and would be employed again on his release from prison.

22. The applicant tendered a psychological report from Kim Dilati, dated 16 November 2020. Dr Dilati interviewed the applicant over a two hour period on 16 November 2020. She regarded him as an anxious man who was a “vague historian”. She thought that he was of below average intelligence and displayed “minimal insight into his drug use and mental health”.

23. He gave an account of an unhappy childhood with overly strict parents, from whom he felt alienated. He said that he had felt he did not “fit in” and perceived himself as the “black sheep of the family”. He felt that he had become closer to his mother and brothers recently, but not to his father. The applicant told Dr Dilati that he had done what he wanted to do as an adolescent and left home at the age of 16 when there was discord in the family. He thereafter had a transient and unstable lifestyle, associating with an older cousin who introduced him to criminal friends and behaviours. His substance use increased.

24. The applicant said that he experienced Attention Deficit Hyperactivity Disorder in primary school, and at age 17 or 18 had been “diagnosed with anxiety” and medicated with an anti-depressant. He ceased to use the medication a year or two before entering custody. In custody, he described obsessive compulsions, such as showering many times daily.

25. Dr Dilati recorded the applicant as having described himself as “immune to violence”, having been assaulted on multiple occasions as a teenager, and having seen “a lot of violence”, including in custody. He described “an extensive history of conduct disorder”, including oppositional behaviour, shoplifting, suspensions at school, truancy, and defiance of teachers and other authority figures. His school grades declined, and he completed his education in a Behavioural School, leaving without gaining the School Certificate. At 19 years he commenced a carpentry apprenticeship but did not complete it. He undertook three years of a four year landscaping course, leaving due to lack of interest. Subsequent employment as a concreter and thence a shopfitter was terminated as he was “slacking off a lot”. He understood that he had employment on his release, as a maintenance worker.

26. The applicant reported a problematic history with alcohol and drug use, from age 13. He had used cannabis and cocaine regularly, and frequently used methamphetamine, MDMA (or ecstasy), and other drugs, including GHB. He reported experiencing symptoms consistent with drug-induced psychosis. He regularly drank excessive quantities of spirits. He denied drug use in custody, saying he had been abstinent for 12 months, and wished to abstain from alcohol and drug use upon release.

27. He said that at the time of the commission of the offence he had been using cocaine, had not slept for over 24 hours, and felt paranoid and “a bit scared”. He acknowledged having assaulted the victim, believing him to be a person his companion wished to take revenge upon. He said that he felt badly that it had happened and wished to apologise to the victim “from the bottom of [his] heart”.

28. On examination Dr Dilati concluded that the applicant exhibited signs of a Generalised Anxiety Disorder and substance use disorders (stimulants, cannabis, and alcohol). She suggested that the applicant had suffered from these disorders, exacerbated by his negative lifestyle and associates at the time of the offending behaviour. She thought that his offending was related to his polysubstance abuse. Dr Dirani speculated that the applicant had an acquired brain injury because of the length of time over which he had abused drugs and alcohol. She regarded him as remorseful, and open to a treatment programme, although was cautious about his likely rehabilitation, noting that it was contingent upon his commitment to treatment and desire to change.

The Submissions to the Sentencing Court

29. As the applicant relies upon the erroneous submissions made by his Senior Counsel on sentence as pointing to error by the sentencing judge, it is of some relevance to consider the arguments advanced in the District Court.

30. The Crown filed written submissions noting that the s 112(3) offence carried a maximum sentence of 25 years imprisonment, and a standard NPP of 7 years. The offence to be taken into account on a Form 1 document carried a maximum sentence upon conviction of 5 years imprisonment. The Crown characterised the principal offence as a serious one, pointing to the number of men involved, the level of planning inherent in the decision to bring a weapon, the dangerousness of the blows directed to the victim’s head with the mallet, and the applicant’s knowledge that there were people in the premises. The Crown submitted that the offence fell at the middle of the range of objective gravity for an offence of its type. Referring to features of the offending that aggravated the conduct pursuant to s 21A(2) of the Crimes (Sentencing Procedure) Act the Crown pointed to the actual use of a weapon (s 21A(2)(c)); the commission of the crime inside the victim’s home (s 21A(2)(eb)); and the presence of a child (s 21A(2)(ea)). The Crown noted that, even though an element of the offence was entry to a dwelling house, there was no double counting in considering the s 21A(2)(eb) feature, as the element did not require proof that the dwelling house was that of the victim. The sentencing court was referred to Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 [No 1 of 2002] (2002) 56 NSWLR 146 at [42] for the approach to be taken to offences before the court on a Form 1 document.

31. Pointing to the risk assessment made by Dr Dilati, and the longstanding history of anti-social behaviour she had detailed, the Crown submitted that prospects for rehabilitation were guarded. Although the applicant’s anxiety disorder might mean that a custodial sentence would be more onerous for him than for others without that disorder, the Crown submitted that, consistent with what was said in R v Henry (1999) 46 NSWLR 346 at [69], the applicant having chosen to use drugs and alcohol in a problematic way, his associated disorders could not be a matter in mitigation of sentence, and those in the grip of drug addiction must take responsibility for their own actions. There being no causal nexus between the disorders and the offending, moral culpability was undiminished, and principles of general and specific deterrence should be given full weight.

32. Senior Counsel for the applicant argued in written submissions that the offence fell within the mid-range for such offending. She listed a number of statutory features of aggravation as relevant to be taken into account, being:

“ * 21A(2)(b) The offence involved violence

* 21A(2)(c) The offence involved a weapon

* 21A(2)(e) The offence was committed in company

* 21A(2)(eb) The offence was committed in the home of the victim”.

33. (Those features pursuant to s 21A(2)(b) and s 21A(2)(e) were both elements of the offence and could not constitute features of statutory aggravation. Senior Counsel’s submissions were incorrect in this regard).

34. Otherwise, the applicant submitted that he was remorseful, was unlikely to reoffend, and had good prospects of rehabilitation. It was argued that a finding of special circumstances should be made due to his age, risk of institutionalisation [despite the fact that he had never before been incarcerated], and his need for rehabilitation and supervision upon release from prison.

The Remarks on Sentence

35. The sentencing judge accepted the facts of the offences to be as they were summarised in the Agreed Statement. He observed, “[…] it is plain that [Mr Z] received a belting with various bruises and marks on his body” and noted the information in the Victim Impact Statements, which outlined the trauma occasioned to Mr Z and his family. His Honour concluded that:

“The conduct within a broad category of what I can call home invasions is below mid range but nonetheless serious and deserving of a prison sentence.”

36. The sentencing judge accepted that the applicant had become caught up in the offences through his drug use. Although noting that the offence was committed as part of a joint criminal enterprise and, even though the second intruder had never been identified, his Honour was prepared to distinguish between the applicant’s role and that of the second man, at least on the basis that the applicant was the younger of the men and had apologised at the scene. His Honour found that the applicant “was not the principal offender”. Favourably to him, his Honour accepted that the applicant was deeply ashamed of his conduct and genuinely remorseful for it. He accepted also that the applicant had abstained from drug use whilst in custody and was motivated to continue to do so on release to the community. The support he would receive from his family would assist him and was regarded by the Court as a most favourable feature. A 25% discount on the sentence that would otherwise have been imposed was allowed to reflect the utilitarian value of the early plea of guilty. His Honour said:

“I take into account the considerations relevant to sentence set out in s 3[A] of the Crimes (Sentencing Procedure) Act and in s 21A. I am conscious of the common law principles and I take those into account and I take into account all the evidence to which I have made reference and the submissions of counsel. This is a case where, as the Crown argued, general deterrence is significant; to intrude into somebody's house in this violent fashion unexpectedly for them, was shocking and other persons who think about engaging in such conduct should be aware, through publicity given to court proceedings, that the community and the law will not tolerate such misbehaviour. It is necessary also to teach him a salutary lesson but I accept that the shock of imprisonment has indeed been a salutary lesson for this young man in any event. Rehabilitation is an important consideration and I take that into account seriously in this case.”

37. A finding of special circumstances was made on the basis of the applicant’s youth, that he had not previously been in custody, and his need for supervision to assist him with drug rehabilitation. Taking into account the offence on the Form 1 document, sentence was imposed.

The Application to this Court

38. If granted an extension of time and leave to appeal the applicant seeks to advance two grounds of appeal against sentence:

“Ground 1: The learned sentencing judge erred by taking into account two statutory aggravating factors that were either already elements of the principal offence or otherwise inherent elements of the principal offence, namely:

i. That the offence involved violence pursuant to section 21A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Act); and

ii. That the offence was committed in company pursuant to section 21A(2)(e) of the Sentencing Act.

Ground 2: The learned sentencing judge erred by taking into account that two children were at home at the time of the offending contrary to the agreed facts at paragraph [5] which state that only the eldest of the two children was home at the time.”

39. The Crown concedes that the second of the grounds is made out.

40. On that basis, and despite there being no explanation as to why the Notice of Intention to Appeal that was filed on 12 July 2021 was allowed to expire on 11 July 2022, without any application for an extension of the Notice being made pursuant to rule 3.2 of the Supreme Court (Criminal Appeal) Rules 2021, I would extend the time in which to bring the application.

Ground 1

41. In support of this ground the applicant points to the passage of the Remarks on Sentence extracted above at [36] and contends that, in referring as his Honour did to “the submissions of counsel” it must be concluded that the sentencing judge accepted the erroneous submission filed on behalf of the applicant to the effect that the features of statutory aggravation provided for by s 21A(2)(b) (the offence involved violence) and s 21A(2)(e) (the offence was committed in company) were made out, and the sentence imposed wrongly elevated by that flawed conclusion.

42. If the impugned paragraph could support the argument based upon it error would be made out. The s 112(3) offence to which the applicant pleaded guilty was averred as follows:

“On 19 October 2019, at The Entrance in the State of New South Wales, being in company with persons unknown, did break and enter the dwelling house of [Mr Z] at [address] and did commit a serious indictable offence therein, namely, assault occasioning actual bodily harm, and at the time of the offence did wound [Mr Z]”.

43. One element of the offence as averred by the Crown was the commission by the applicant of a serious indictable offence, being assault occasioning actual bodily harm (“AOABH”). An assault (encompassing a battery) involves the application of force, whilst proof of actual bodily harm required the Crown to prove that some injury to the body was inflicted on Mr Z during the assault that was not trivial. Inherent in those elements, and thus in the s 112(3) charge as averred, was the use of violence. Another element of the charge as averred was that the applicant was “in company with persons unknown”.

44. As elements of the offence included the use of violence, and that the applicant was in company, those aspects of the matter could not be considered as features of statutory aggravation. That is so because, after listing those features which constitute a circumstance of statutory aggravation, s 21A(2) provides:

“The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence”.

45. This Court has repeatedly stressed the importance of compliance with s 21A(2), and compliance with the common law, which is to similar effect. In Johnson v R [2005] NSWCCA 186 Hunt AJA observed, at [22]:

“In any event, the provision in s 21A(2) does no more than reflect the common law. A matter is taken into account by way of aggravation of sentence when, by reason of that matter, the judge imposes a sentence more severe than he or she would otherwise have imposed: The Queen v De Simoni (1981) 147 CLR 383 at 388. In my view, it is a fundamental principle of sentencing which needs no statute to support its existence that a matter may not be taken into account in aggravation of sentence if it is already an element of the crime, for that would necessarily amount to double counting of the same matter. The importance of the inclusion of that principle in s 21A(2) is to remind judges who inevitably use the provisions of the section as a “check list” applicable to all offences to ensure that any particular matter listed as an aggravating factor is not already an element of the offence.”

46. If the sentencing judge had treated the use of violence and the fact that the applicant was in company as aggravating features pursuant to s 21A(2) when imposing sentence on the applicant, it would constitute error.

47. However, it must be observed that three words in one paragraph of sentencing remarks is a very slender basis from which to contend for error. To treat it as evidence of error requires this Court to read into the particular sentence words that are not there, and to infer an approach that was not, in my conclusion, the approach taken by the sentencing court.

48. It is notable that the sentencing judge did not articulate any feature of statutory aggravation in the impugned paragraph. His Honour said that he had taken into account the “considerations relevant to sentence” given in s 3A and s 21A of the Crimes (Sentencing Procedure) Act and, separately, in the succeeding sentence of his Remarks, he said that he had taken into account “the submissions of counsel”. Since the features of statutory aggravation captured by ss 21A(2)(b) and (e) were not “considerations relevant to sentence”, there is no reason to conclude – other than from the reference in the following sentence to the submissions of counsel – that his Honour wrongly had regard to elements of the offence as aggravating features.

49. In the following sentence his Honour said only that he had “taken into account” the submissions made to the court. At least insofar as the identification of the features relevant to s 21A(2) was concerned, the submissions were in conflict. The Crown correctly pointed out that ss 21A(2)(c), (ea) and (eb) applied; the applicant incorrectly pointed out other features, being ss 21A(b) and (e), as applicable. It cannot be that his Honour intended to convey that he had taken into account, and also acted upon, submissions that provided conflicting information. The better interpretation of what was said is that derived from the words used with nothing additional read into them; that is, is Honour had “taken into account” the submissions. To take a submission into account simply means to consider it; it does not necessarily mean to accept it and act upon it.

50. Undoubtedly, his Honour could have expressed the matter with more clarity, and specifically rejected Senior Counsel’s submission as to the relevance of ss 21A(2)(a) and (e) in his Remarks. Be that as it may, there is nothing in what his Honour did say that establishes error in this regard, and nothing in the penalty imposed that points to elements of the offence having been treated by the court, as opposed to counsel, as features of aggravation.

51. This ground cannot be made out.

Ground 2

52. This ground asserts error in the reference in the Remarks on Sentence to the presence of “two children”. In circumstances where the Agreed Facts disclosed the presence in the house of a 13 year old child, his Honour said in his Remarks:

“[…] on 19 October the victim was at home with his partner, Ms [R], and her two daughters aged 13 and 19.”

53. Nothing further was said by the sentencing judge about the presence of “children”.

54. It should firstly be observed that, if the transcript is an accurate one, his Honour did not refer to “two children”; he referred to Ms R’s “two daughters”. If the age recorded in the transcript of the Remarks, “19”, is correctly transcribed, this was plainly not a reference to a child. Perhaps there has been a transcription error, since the age of the daughter who was not present at the time of the offence was 9. If that is so, the sentencing judge erroneously referred to the presence of a second child, which is factually inaccurate. Even if the transcript is accurate, it is inaccurate to suggest that there was a fourth person present in the house.

55. The applicant contends that the inaccuracy is material error, submitting that:

“The fact that, in his Honour’s synthesis, there are two children present during the violent home invasion is detrimental to the applicant. It is clearly a relevant factor that his Honour can be taken to have had regard to in assessing the objective gravity of the principal offence”.

56. The Crown concedes the error, although arguing that no lesser sentence is warranted in law.

57. Although it is not clear to me that this was anything more than an inaccurate recitation of a fact that had no bearing upon the sentence imposed, the Crown having conceded the error, and there being at least a possibility that the error affected the ultimate outcome, I would uphold this ground. In House v The King (1936) 55 CLR 499; [1936] HCA 40 the plurality said, at 505, that:

“If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.”

58. In Lay v R [2014] NSWCCA 310 Fullerton J, with the concurrence of Hoeben CJ at CL and Hamill, J said at [53]:

“Where a factual error is made in the exercise of the sentencing discretion adverse to an offender, or where the sentencing judge failed to consider a material fact or an immaterial fact was erroneously relied upon in the House v The King sense ([1936] HCA 40; 55 CLR 499), this Court does not assess whether, and to what extent, the error influenced the outcome. The sentencing discretion having miscarried, it is the duty of this Court to exercise the sentencing discretion afresh (see Baxter v R [2007] NSWCCA 237; 173 A Crim R 284 per Spigelman CJ at [19], the approach recently endorsed as correct by the High Court in Kentwell v R [2014] HCA 37; 313 ALR 451 at [40]-[43]).”

59. The factual error as to the number of persons present in the house at the time of the commission of the offence, perhaps including two children, is sufficient to establish the ground advanced.

60. Error having been made out it is the duty of the Court to quash the sentence imposed upon the applicant and proceed to re-sentence, if of the opinion that some other sentence is warranted in law and should have been passed. I am not of that opinion.

61. This was an armed home invasion committed by two men with a third outside, evidently as lookout. Having smashed their way into residential premises at night, well knowing that at least one person was at home, the applicant and his co-offender then forced their way out of a closed bedroom, even after they had been told that there was a child present. They chased Mr Z into a bathroom and subjected him to considerable violence, including by directing blows to the particularly vulnerable head, as Ms R screamed at them to stop. Mr Z was wounded, as well as suffering multiple abrasions to his body. As would be expected of a violent home invasion, the occupiers were left in a state of great distress, having to move away from their home due to ongoing feelings of being unsafe. The fact that the offenders broke into the wrong home cannot mitigate the offence, objectively or subjectively. This was an offence that required the imposition of a stern penalty. There was nothing in the applicant’s case that called for a diminution of the principle of general deterrence, and the sentence had to be one that would deter others from carrying out similar crimes.

62. Although I accept, as did the sentencing judge, that the applicant was remorseful, and that the support available to him from his family is a positive feature, there is nothing in his subjective case that requires any significant amelioration of sentence, other than his early plea, which entitles him to a discount of 25% on sentence.

63. Even proceeding on the basis of the unchallenged, if entirely unsupported finding of fact made by the sentencing judge that the applicant was the youngest of the two intruders – impossible to say given that the second man was never identified – and therefore that the applicant’s role was the lesser, I would not impose a sentence that was lower than that imposed at first instance.

64. For those reasons I propose the following orders:

1. An extension of time in which to file an application for leave to appeal is granted until 22 August 2022;

2. Uphold ground 2;

3. Dismiss the appeal.

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Decision last updated: 25 October 2022