Hayek v R

[2016] NSWCCA 126

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Hayek v R [2016] NSWCCA 126
Hearing dates:	20 May 2016
Date of orders:	29 June 2016
Decision date:	29 June 2016
Before:	Bathurst CJ at [1] Schmidt J at [2] Wilson J at [3]
Decision:	1. Leave to appeal is refused.
Catchwords:	CRIMINAL LAW – sentence appeal – aggravated break enter and commit serious indictable offence – s 112(2) Crimes Act 1900 (NSW) – question of manifest excess – utility in considering notional “starting point” of sentence – relevance of sentencing statistics to determining manifest excess – other asserted errors raised in support of ground asserting manifest excess – assessment of objective gravity – weight given to subjective case
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Criminal Procedure Act 1986 (NSW) Drug Misuse and Trafficking Act 1986 (NSW) Poisons and Therapeutic Goods Act 1966 (NSW)
Cases Cited:	Ali v R [2010] NSWCCA 35 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Piscitelli v R [2013] NSWCCA 8 Pleasance v R [2016] NSWCCA 113 R v Dinsdale [2000] HCA 54; (2000) 202 CLR 321 R v Todorovic [2008] NSWCCA 49 SS v R; JC v R [2009] NSWCCA 114
Category:	Principal judgment
Parties:	Peter Hayek (Applicant) Director of Public Prosecutions (Respondent Crown)
Representation:	Counsel: Ms J Paingakulam (Applicant) Mr N Adams (Respondent)   Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2013/323624
Publication restriction:	None
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 16 February 2015 Before: Hock DCJ File Number(s): 2013/323624

Judgment

1. BATHURST CJ: I agree with Wilson J.

2. SCHMIDT J: I agree with Wilson J.

3. WILSON J: On 16 February 2015 the applicant was sentenced in the District Court of New South Wales for an offence of aggravated break, enter and commit serious indictable offence, contrary to s 112(2) of the Crimes Act 1900 (NSW). The serious indictable offence was robbery; the circumstance of aggravation relied upon by the Crown was that there were persons in the premises. The sentence imposed was one of 6 years imprisonment with a non-parole period of 4 years.

4. The maximum sentence for an offence contrary to s 112(2) is 20 years imprisonment. A standard non-parole period of 5 years is specified by Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

5. The applicant seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against that sentence, advancing a single ground of appeal, that the sentence imposed upon him was manifestly excessive.

The Proceedings before the District Court

6. The applicant entered a plea of guilty to the charge against him when the matter was in the Local Court and he was committed to the District Court for sentence. He adhered to that plea on 12 March 2015 before her Honour Judge Hock in the District Court. He additionally asked her Honour to take a further three offences into account when he was sentenced for the s 112(2) offence, pursuant to s 33 of the Crimes (Sentencing Procedure) Act, each of the offences being one of supplying a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1986 (NSW).

7. A further six related summary offences of possess prohibited drug (four counts contrary to s 10 of the Drug Misuse and Trafficking Act) and possess prescribed restricted substance (two counts contrary to s 16(1) of the Poisons and Therapeutic Goods Act 1966 (NSW)) were also before the sentencing judge, on a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW).

8. A statement of facts agreed by the parties was tendered in the Crown case. The sentencing judge found the facts of the applicant’s crimes in accordance with the agreed facts.

The Facts of the Applicant’s Crime

9. Shortly before 9 o’clock on the morning of 26 October 2013, Ms Gao arrived at the pharmacy where she worked, the Sydney Cove Chemist in The Rocks. She unlocked the entrance door to the pharmacy, entered the building, and closed the door behind her. Since it was not yet time to open the pharmacy for customers, she did not turn the lights on, but went into the dispensary in the rear of the premises and put her handbag on a counter. She then went upstairs to make some coffee.

10. Whilst Ms Gao was upstairs the applicant opened the closed door to the pharmacy and went inside. He was dressed in black clothing and was wearing black gloves. He was carrying a shopping bag. He went to the dispensary area, before moving towards the stairs.

11. Ms Gao was descending the stairs at that time, and saw the applicant at the bottom of the staircase. She asked if she could help him, and he responded by demanding that she take him to the safe. He demanded, “Codeine, Oxycontin, and money”. Ms Gao said she would cooperate, and walked towards the safe which was located in the ground floor dispensary.

12. When she approached the safe the applicant told her, “I don’t want to hurt you but I will if I have to”. Ms Gao was frightened that she would be hurt, and she opened the safe and stood back to give the applicant access to it. He told her to crouch down and turn away from him, but she remained standing. When the applicant told her to point out the codeine and oxycodone, she complied. The applicant took codeine, oxycodone and other drugs, including methadone, from the safe and piled them into the shopping bag he was carrying.

13. The applicant said, “where is the money kept?” and was told it was in the till. He moved in the direction of the till, demanding money from Ms Gao’s handbag as he walked past. Ms Gao gave him the cash she had in her bag, being $100.

14. On reaching the till in the pharmacy, Ms Gao opened it, and the applicant emptied it. He thought there should have been more and demanded, “where is all the other money”. Ms Gao told him that the till was emptied each night and “the big notes” had been removed.

15. The applicant told Ms Gao to show him where the drug Xanax was kept and, on it being pointed out to him, put all of the drug from the shelf into his shopping bag. Having filled his own bag, the applicant obtained another from Ms Gao, and put further items in it.

16. The applicant told Ms Gao:

“Sorry, I don’t want to do this, but I have a habit and the doctors won’t give me the drugs so I have to do this. Don’t call the cops ‘cause I know that you have contacted them and I will come after you. Now go back into the room and count to one hundred and don’t come out until you finish.”

17. Carrying the bags filled with drugs, the applicant left the pharmacy. He was seen by a man who was standing outside the pharmacy waiting for it to open, and the witness got the attention of a police officer on foot patrol in the area and pointed the applicant out. Senior Constable Heydon called out to the applicant to stop, but he ran off down George Street. The officer pursued him, and caught him soon after. The whole pursuit was captured by closed circuit surveillance cameras operating in the area.

18. A quantity of cash, $562 of the approximately $1500 stolen from the pharmacy, was found in the shopping bags, together with a quantity of drugs (methadone, oxycodone, buprenorphine, morphine, pethidine, fluritrazepam, and codeine) and a quantity of prescribed restricted substances (alprazolam and diazepam). The stolen drugs were valued in excess of $2000. The $100 taken from Ms Gao’s handbag was later found secreted in the applicant’s sock.

19. On arrest, the applicant claimed to have found the drugs in a bin at the back of the pharmacy. He said that the money was his. He refused to be formally interviewed.

20. The drugs and cash found in the applicant’s possession was returned to the pharmacy.

21. The charges that were to be taken into account on sentence were all offences of supplying a prohibited drug, charges referable to the applicant’s possession of the drugs that he had stolen, deemed by s 29 of the Drug Misuse and Trafficking Act to be possession for the purpose of supply. Those drugs were, respectively, 1.4 litres of methadone, 15.94 grams of oxycodone, and 140 milligrams of buprenorphine.

22. The applicant’s possession of the remaining stolen drugs was reflected by charges of possessing the particular substances, which were all either prohibited drugs or prescribed restricted substances. These charges were before the court on a s 166 certificate, to be dealt with pursuant to s 167 of the Criminal Procedure Act.

Other Evidence in the Crown Case

23. In addition to the facts and some photographs relating to the offence, the Crown tendered the applicant’s criminal history, his custodial history, and a pre-sentence report.

24. The applicant, who was born in August 1961 and was aged 52 at the time of the commission of the offence and 53 when sentenced, was first before the courts as a child, in 1977. He has a long history of criminal offending, including convictions for armed robbery, drug offences, larceny, break and enter offences, and firearms offences.

25. At the time of the commission of the present offence, the applicant was subject to parole, having been sentenced in the District Court in March 2010 to a term of 3 years and 6 months imprisonment, with a non-parole period of 2 years and 3 months, for an offence of conspiracy to cheat and defraud. When released to parole on 11 March 2013 (about six months prior to the present offence), the applicant had also served a number of other, shorter sentences imposed on the same date for various offences of dishonesty.

26. The applicant’s parole was revoked upon his arrest for this matter, with the sentence expiring on 11 June 2014.

27. As a consequence of sentences imposed upon him over the years, the applicant had considerable contact with Community Corrections. His first contact with the service was in 1979, and numerous reports had been prepared concerning him between then and his most recent release to parole in March 2013.

28. The author of the pre-sentence report gave an account of the applicant’s personal circumstances, education and employment history, and features related to his offending history.

29. The applicant reported an unsettled childhood following his parents separation when he was aged 10. He had, for a number of years, moved between each of his parent’s homes, foster placements, and a period spent in institutional care. After moving in his teenage years to reside permanently with his father, he experienced a period of stability.

30. The applicant was educated to year 11 and had been employed for a short time in the information technology industry.

31. He had been involved in two significant relationships as an adult and had a child from each relationship. Although the applicant had no contact with his adult son, the applicant had maintained a relationship with his teenage daughter who, on the death of her mother, was in the care of relatives as a ward of the Minister. The applicant supported his daughter’s education as a boarder at a private school, something he was able to do following receipt of a significant inheritance from his father, who died in 2012.

32. The applicant has a longstanding history of drug abuse, having first experimented with heroin at age 14. Other than during periods of incarceration, he had used prohibited drugs ever since. In the months leading up to the commission of the present offence, the applicant described himself as “out of control”, using prescription methadone in addition to other drugs he was able to obtain, including further methadone, heroin, and Xanax. On the day of the offence, he had taken six Xanax tablets.

33. In 2009 the applicant had been diagnosed with agoraphobia, and had difficulties with anxiety. He had previously been non-compliant with a treatment regime.

34. Although he had been living in a hostel at the time of his arrest, the applicant expressed the wish to buy a rural property and move away from Sydney. He evinced a wish to tackle his drug addiction, although the author of the pre-sentence report noted that the applicant’s motivation and resolve in that regard was yet to be tested.

The Subjective Case

35. The applicant gave evidence himself and tendered a report from a forensic psychiatrist, Dr Ellis, who saw the applicant for the purpose of preparing a report for use on sentence.

36. Dr Ellis saw the applicant on one occasion by way of audio-visual link. The applicant described a heavy addiction to cigarettes, and a long standing heroin addiction, typically injecting himself with that drug three or four times each day. He had also used cocaine irregularly, and experimented with LSD, amphetamines, and methylamphetamines. The applicant told Dr Ellis that his need to fund his heroin addiction was behind every crime he had committed.

37. Rather in contrast to the personal history given to the author of the pre-sentence report, the applicant told Dr Ellis that he had had a good upbringing, being raised by both parents, and attending school until age 15. He was self-taught in information technology and had been employed in a computer shop for about five years.

38. The applicant told Dr Ellis that, at the time of the commission of the offence, he had been homeless and distressed about his daughter, who was self-harming. He was abusing heroin and other drugs, as the prescribed methadone available to him was insufficient to stop him craving heroin. He said that the decision to rob the pharmacy had been an impulsive one and he had stolen some gloves prior to entering the premises. He was uncertain as to why he had stolen money, given that he had considerable funds of his own.

39. Dr Ellis concluded that the applicant had a severe Substance Abuse Disorder and he had some symptoms indicative of an underlying anxiety disorder. The applicant’s anti-social behaviour was likely related to his drug use. He was using drugs to cope with his psychological distress about his daughter’s situation. Dr Ellis thought that the applicant’s ability to control impulses and think rationally at the time of committing the offence was likely to have been impaired by his substance use. He opined that the applicant would benefit from a residential program directed to assist him with drug rehabilitation.

40. In his evidence on 12 February 2015, the applicant told her Honour that he had been accurate in the information he had given to the author of the pre-sentence report and to Dr Ellis. He said that, since his admission to Bathurst prison following his arrest, he had worked five days each week in prison industries, principally packaging confectionary and other small food items for sale. He had not failed any urinalysis test administered in custody.

41. He deposed that he had begun using drugs at about age 14 because of peer pressure, and in an attempt to “look cool” to impress a girl. His school results, which had previously been good, suffered as a result, and he left school half way through year 11. He emphasised that his many subsequent criminal offences had all been committed to support his heroin habit.

42. At the time of the offending conduct, the applicant told her Honour that he had read some posts on a social media website from his daughter and found that she was depressed and self-harming. Since his daughter’s mother had earlier committed suicide, he had become very anxious about her. In that distressed state, he had taken his prescription methadone, the take-away methadone dose intended for use on the forthcoming weekend, and a quantity of Xanax. Although it had not been his intention to leave his accommodation in an intoxicated state, he had been obliged to do so, and had committed the offence impulsively when he found the door of the pharmacy was unlocked.

43. The applicant said that he would have shared the drugs that he had with a friend, rather than keep them all and risk being robbed.

44. He said that he had “screwed up”, and there was no excuse for what he had done. He said that, if the victim of the crime had been present, he would apologise to her.

45. The applicant said that his intention for the future was to buy a hobby farm in a rural area, and have his daughter live with him.

46. In cross-examination, the applicant denied having planned the offence some days earlier, saying that he wore black clothes all the time and it was part of his mood.

47. Due to a recording error, the submissions on sentence made by the parties to her Honour were not recorded.

The Sentence Judgment

48. In her judgment on sentence, her Honour set out the agreed facts of the offences, noting that there was considerable overlap between the criminality of the principal offence and that of the offences to be taken into account on the Form 1 document, and before the Court on a s 166 certificate.

49. Her Honour considered the offence to fall within the middle of the range for an offence of its nature, noting that the serious indictable offence committed, robbery, was a more serious crime than the more usual object of a break and enter, larceny. There was additionally some planning, involving the applicant obtaining gloves to wear in an effort to avoid detection for the crime.

50. The fact that the applicant was on parole at the time of the offence was noted to be an aggravating feature of the offence.

51. Her Honour referred to the applicant’s personal circumstances, and to his lengthy criminal history which, she concluded, showed a continuing disregard for the law.

52. The applicant’s long term drug use was noted to be the basis of the applicant’s offending history but, despite that, the applicant had not been able to achieve rehabilitation from drug use. Her Honour considered the applicant’s prospects of rehabilitation to be bleak, unless he was able to conform to a treatment program.

53. The applicant was given the benefit of a reduction in the sentence that would otherwise have been imposed upon him of 25% to reflect the utilitarian benefit of his early plea of guilty.

54. Applying the totality principle, her Honour gave the applicant the benefit of some modest degree of concurrency with the sentence he served for the conspiracy to cheat and defraud offence, determining that the commencement date for the current sentence should be 26 April 2014, about two months before the expiration of the earlier sentence.

55. A finding of special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act was made because of the need for some adjustment to the usual ratio of sentence to give effect to the requirements of totality, and because her Honour considered that the applicant would benefit from an extended period of supervision.

56. Taking into account the three counts of supply prohibited drug, a sentence of six years imprisonment with a non-parole period of 4 years was imposed. The overall sentence expires on 25 April 2020; the non-parole period will expire on 25 April 2018.

57. The applicant was convicted of those offences before the Court on a s 166 certificate. Pursuant to s 10A of the Crimes (Sentencing Procedure) Act, no further penalty was imposed upon him.

58. Her Honour directed that the applicant should be referred to the Compulsory Drug Treatment Correctional Centre.

The Application for Leave to Appeal

59. As earlier noted, the only ground of appeal advanced by the applicant is a complaint that the sentence imposed upon him is manifestly excessive.

60. The applicant argues that, having regard to the discount on sentence of 25% allowed to him, the starting point for the sentence must have been 8 years imprisonment. Applying the same ratio of sentence evident in the sentence imposed by her Honour (being 67%), an 8 year sentence would have resulted in a non-parole period of 5 years and 4 months. This, it is submitted, is in excess of the standard non-parole period of 5 years, and is indicative of error.

61. It was submitted that the applicant’s long-standing drug addiction was a mitigating feature that should have ameliorated the sentence imposed, as should the applicant’s health issues and his need to provide support to his daughter.

59. Although there is no ground of appeal as to the assessment of the objective gravity by the sentencing judge, the applicant additionally argues that her Honour did not give sufficient weight to those features of the crime which made it less serious, such as the absence of a forcible break, and the modest value of the property stolen.

60. The applicant points to statistics held by the Judicial Commission to support the complaint of manifest excess.

Consideration

64. The arguments advanced by the applicant in support of his complaint of manifest excess are, without exception, flawed, and represent a misunderstanding of principle.

65. The ground itself is problematic, in that the applicant seeks to advance three specific asserted errors in support of it. Firstly, that the assessment of the gravity of the applicant’s crime as falling within the middle of the range was incorrect. Secondly, that the sentencing judge did not give adequate weight to the applicant’s subjective case, and particularly the fact that his long-term drug addiction was a feature that should have significantly mitigated the sentence to be imposed. Thirdly, by reference to the assumed “starting point” for the sentence and sentencing statistics, the sentence and the non-parole period were manifestly excessive.

66. As was pointed out most recently in Pleasance v R [2016] NSWCCA 113, at [110]:

“A ground asserting manifest excess is one which invites this Court to consider whether the length of the sentence imposed is demonstrated to be outside the range of a sound sentencing discretion, and thus unfair and unjust. It should not be advanced as a means of raising other asserted errors that could have been addressed by a specific ground. Ordinarily, a ground asserting that a sentence is manifestly excessive should be advanced only where specific error of the type identified in the joint reasons of Dixon, Evatt and McTiernan JJ in House v TheKing[1936] HCA 40; (1936) 55 CLR 499, at 504-505, cannot be identified, or as an alternative to grounds raising specific error.”

67. The first of the asserted errors is that the sentencing judge was in error in the assessment she made of the gravity of the offence. The applicant contends that her Honour did not give appropriate attention to features of the crime that mitigated its gravity, being the absence of a forcible break, the lack of actual violence, the modest value of the stolen property, and the recovery of the drugs which were taken. However, each of the features the applicant referred to were specifically noted by the sentencing judge.

68. What is not addressed by the applicant is the feature of the offending behaviour noted by her Honour that elevated the gravity of the crime, being the nature of the serious indictable offence committed. As the sentencing judge observed, for most offences of aggravated break, enter and commit serious indictable offence, the serious indictable offence is stealing. Stealing is a much less serious offence than robbery because there is no element of taking property from a person by putting that person in fear by force or threat of force.

69. The difference in the elements of the two offences and the criminality involved is reflected in the maximum penalties fixed for the discrete offences of larceny, contrary to s 117 of the Crimes Act, and robbery, contrary to s 94 of the Crimes Act. The former carries 5 years imprisonment, the latter 14 years imprisonment.

70. The fact that the serious indictable offence committed by the applicant was robbery, and not simple larceny, was a feature relevant to the assessment of the objective gravity of the offence. It had the effect, noted by her Honour, of elevating the gravity of the crime as against similar offences where larceny was the serious indictable offence committed.

71. Additionally, having robbed her, the applicant threatened the victim that he would “come after” her if she contacted police. That also elevated the gravity of the offence.

72. The assessment of the objective gravity of an offence is a matter for the sentencing judge. As was said in Ali v R [2010] NSWCCA 35, at [33]:

“This Court has emphasised that characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in finding facts and drawing inferences from those facts: Mulato v R [2006] NSWCCA 282 at [37], [46]. This Court is slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion, and the question must be whether the particular characterisation was open: Mulato v R at [37], [46]-[47].”

73. The characterisation made by the sentencing judge here was well open to her and her conclusion does not represent error.

74. The second asserted error raised by the applicant is that the sentencing judge did not give adequate weight to the applicant’s subjective case. Whilst the applicant’s health, and the need to support his daughter are referred to as features of his case that should have ameliorated the penalty, the applicant particularly relies upon a purported failure to treat the applicant’s drug addiction as a mitigating feature.

75. The applicant’s contention in this regard appears to be based upon a mistaken understanding that there is a principle of law to the effect that a drug addiction commenced when an offender was young is a mitigating feature for crime committed thereafter. There is no such principle. The authorities that the applicant relies upon to suggest that there is such a principle do not support the argument advanced.

76. SS v R; JC v R [2009] NSWCCA 114 at [102] and R v Todorovic [2008] NSWCCA 49 at [58] are cited by the applicant as authority for the existence of such a principle, but neither does more than allow for the possibility that there will be exceptions to the general rule that drug addiction is not a mitigating feature. One such exception may be that an addiction to illicit drugs was formed in youth, but that is dependent upon the circumstances of the particular case.

77. In SS v R; JC v R, JC had been introduced to cannabis at the age of 12 years by an abusive uncle who regularly assaulted and threatened him. His addiction continued in the context of a troubled childhood, until he committed the offences the subject of the appeal when he had just turned 17.

78. In Todorovic, the Court was hearing an appeal by the Crown against inadequacy of sentence imposed upon an offender who had a gambling addiction, and had committed the offences the subject of the appeal to obtain funds with which to gamble. The primary judge had been persuaded to deal leniently with the applicant because of her addiction, which was characterised as a psychological condition. Hulme J, with whom Grove and Simpson JJ agreed, rejected that approach, saying, at [57]:

“Furthermore if gambling, as a "way of controlling (an) emotional state and coping with personal problems by avoidance" in circumstances of "mild depression", "negative emotional states" and the consequences of dysfunctional relationships, is to be regarded as a reason for leniency, then why should not many of those who seek to ameliorate or blot out their suffering by resort to drugs and then to crime be treated similarly? After all, experience shows that many drug addicts suffer from Attention Deficit, Bipolar, Borderline Personality or other psychological disorders that are said to be causative of, or contributing factors to, their drug addiction.”

79. It is apparent that the Court in Todorovic was not endorsing that approach, it was affirming the general principle that addictions underlying criminal conduct could not mitigate that conduct.

80. An addiction formed as a child may be a mitigating factor in the particular circumstances of an individual case, but it is an entirely different proposition to suggest that it will always operate in that way, and for any person who began using drugs in youth.

81. In the applicant’s case, he began using illicit drugs at the age of 14, not because he was forced to by an abusive adult, or because his childhood was spent in circumstances of violence and deprivation, but because, as he told Dr Ellis, he wanted to look cool and impress a girl, and there was “peer pressure” to do so.

82. The applicant thereafter continued to use prohibited drugs, and did so despite the many opportunities he was given by sentencing courts over the years to take advantage of community based rehabilitation programs with the support of community corrections authorities, and despite his admission to a methadone program prior to the commission of this offence.

83. An addiction commenced in such circumstances and continued for the next three decades can do nothing to mitigate the applicant’s crime. Indeed, the fact that the applicant continued to use illicit drugs, and to commit crime in support of his habit, arguably elevated the need for the sentence imposed upon him to give particular prominence to specific deterrence in determining the sentence to be imposed.

84. In that way, the applicant’s long term unaddressed addiction to prohibited drugs could have legitimately increased the sentence required to be imposed upon him. To the applicant’s benefit, the sentencing judge refrained from taking such an approach.

85. The sentencing judge was not in error in the approach she took to the applicant’s drug habit.

86. The other aspects of the applicant’s subjective case referred to by him in submission to this Court were features considered by her Honour, but they were not matters which could greatly ameliorate the sentence, or even do so at all. The applicant was diagnosed in 2009 with agoraphobia with some anxiety, and he formerly suffered Hepatitis C connected with injecting drugs, but that illness had resolved. He told Dr Ellis that he had had some childhood illnesses, and currently suffered from poor sleep. Her Honour referred to the applicant’s health issues. The applicant’s need to support his daughter was also referred to by the sentencing judge as part of the applicant’s general circumstances. More was not required.

87. In my view, the sentencing judge considered the applicant’s subjective circumstances, and appropriately took them into account when determining the sentence to be imposed upon the applicant. There was no error in this regard.

88. The applicant’s third complaint is that the sentence imposed upon him was manifestly excessive. The applicant relies upon a mathematical calculation to argue for an excessive assumed starting point of sentence, and upon sentencing statistics held by the Judicial Commission for an offence contrary to s 112(2) of the Crimes Act for the period April 2008 to March 2015.

89. The applicant contends that the “starting point” of the sentence imposed upon him prior to the application of the 25% discount on sentence must have been a sentence of 8 years imprisonment. Since the corollary non-parole period, applying the sentencing judge’s ratio of head sentence to parole period of 67% would be in excess of the standard non-parole period of 5 years, it is asserted that there must be error.

90. It is generally neither appropriate nor helpful to take an assumed starting point of sentence as a basis upon which to argue that a sentence is manifestly excessive. In Piscitelli v R [2013] NSWCCA 8, at [91], it was said that:

“[…] this Court has cautioned against an analysis of starting points in order to determine whether a sentence is manifestly excessive: see SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249 at [40], Rutkowsky v R [2008] NSWCCA 10 at [10] and Yousef v R [2011] NSWCCA 104 at [30]. Instead, attention should be focussed upon the sentence actually imposed.”

91. Even if it is accepted that the starting point for the sentence imposed upon the applicant was one of 8 years, in the circumstances of this offence I would not regard that as manifestly excessive. Neither could it be said that, because the notional non-parole period (argued to be 5 years and 4 months) was in excess of the standard non-parole period of 5 years that there must necessarily be error.

92. A standard non-parole period specified by Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act is not prescriptive for an offence in the mid-range of objective seriousness, and the sentencing discretion is not exercised by reference solely to the Table to Division 1A. An offence may be assessed as falling within the mid-range, but a non-parole period greater or lesser than the standard may nevertheless be imposed, having regard to the features of the particular matter, objective and subjective.

93. Section 54B(2) of the Crimes (Sentencing Procedure) Act provides:

“The standard non-parole period for an offence is a matter to be taken into account by a court in determining the appropriate sentence for an offender, without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence for an offender.”

94. As was held in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120, at [26], “it is a mistake to give primary, let alone determinative, significance” to the standard non-parole period. The Court continued:

“Section 54B(2), read with ss 54B(3) and 21A, requires an approach to sentencing for Div 1A offences that is consistent with the approach to sentencing described by McHugh J in Markarian v The Queen:

"[T]he judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case." (emphasis added).”

95. In the applicant’s case, her Honour’s conclusion that this crime fell within the mid-range for offences of this nature did not require her to fix a sentence that would ensure a non-parole period of 5 years prior to the discount for the plea and adjustment for the finding of special circumstances. The standard non-parole period was merely one of the features the sentencing judge had to have regard to, as she did.

96. The statistics referred to by the applicant are no more indicative of error than is the notional starting point.

97. Firstly, the statistics do not distinguish between s 112(2) offences where the serious indictable offence is larceny, or a more serious crime. As has been noted, an offence contrary to s 112(2) can encompass a range of serious indictable offences - some are inherently more serious than others.

98. Secondly, the statistics cited are for “All Offenders” and can say nothing about the proper range of sentence for an individual with the applicant’s particular characteristics who committed a crime of the precise nature committed by the applicant. The statistics do not indicate whether the offenders encompassed within them were old or young, whether they had a criminal history or not, whether any prior record included offences of a like nature or not, or whether they had pleaded guilty or been found guilty.

99. Thirdly, the statistics do not take into account whether other offenders were, like the applicant, subject to conditional liberty at the time of the commission of the crime.

100. Fourthly, the statistics are for the “principal offence”. They do not encompass sentences imposed upon individuals who had other crimes taken into account on sentence, as did the applicant, who asked that three offences of supply prohibited drug be considered in the sentence imposed upon him. Although, in the circumstances of these offences, the increase to the sentence imposed for the principal offence would have been very modest, there had to be some increase to reflect the additional criminality of the applicant’s intention to pass some of the stolen drugs on to friends.

101. Statistics such as these permit no meaningful comparison or analysis.

102. In the statutory context of the maximum penalty and the standard non-parole period specified for an offence of this nature, the sentence imposed upon the applicant had to take into account the features particular to his crime: its objective gravity, the fact that he was on parole at the time of its commission, the applicant’s criminal record more generally, his long standing drug addiction, his relatively poor prospects of rehabilitation, and his personal circumstances more broadly. Those features of the matter had to be considered in conformity with sentencing law and principle. The sentence to be imposed had to be determined having regard to all of those matters.

103. The sentencing judge had regard to all relevant considerations and fixed a sentence which, in my view, is within the range of sentence that was properly open to the court. It is neither unreasonable nor unjust: R v Dinsdale [2000] HCA 54 at [22]; (2000) 202 CLR 321 at 325.

104. The applicant has failed to establish this ground.

105. I would not grant leave to him to bring the appeal.

order

106. The order I propose is:

1. Leave to appeal is refused.

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Decision last updated: 29 June 2016