Higgins v R

[2020] NSWCCA 169

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Higgins v R [2020] NSWCCA 169

Hearing dates:

16 June 2020

Date of orders:

24 July 2020

Decision date:

24 July 2020

Before:

Johnson J at [1];
Wright J at [2];
Wilson J at [3]

Decision:

(1)   Leave to appeal on ground 1 is refused;

(2)   Leave to appeal on ground 2 is granted;

(3)   The appeal is dismissed.

Catchwords:

CRIMINAL LAW – sentencing – appeal against sentence – manifest excess – possess prohibited weapon – escape police custody – affray – resist police

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Domestic and Personal) Violence Act 2007 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Appeal Act 1912 (NSW)

Criminal Procedure Act 1986 (NSW)

Weapons Prohibition Act 1998 (NSW)

Cases Cited:

Bugmyv The Queen (2013) 249 CLR 571; [2013] HCA 37

Dagdanasar v R [2010] NSWCCA 310

Obeid v R (2017) 96 NSWLR 155

R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1

R v Crombie [1999] NSWCCA 297

R v Depoma [2003] NSWCCA 382

R v El Masri [2005] NSWCCA 167

R v Fernando (1992) 76 A Crim R 58

R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309

Salafia v R [2015] NSWCCA 141

Tuite v R [2018] NSWCCA 175

Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266

Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14

Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460

Category:

Principal judgment

Parties:

Jacob Higgins (Applicant)
The Crown (Respondent)

Representation:

Counsel:
I Nash (Applicant)
G Newton (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2019/008944

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

1 November 2019

Before:

English DCJ

File Number(s):

2019/008944

Judgment

1. JOHNSON J: I agree with Wilson J.

2. WRIGHT J: I agree with the orders proposed by Wilson J for the reasons which her Honour has given.

3. WILSON J: Jacob Higgins was sentenced before the District Court of New South Wales to a term of imprisonment of 3 years duration, with a non-parole period (“NPP”) of 1 year and 9 months for a number of offences. The sentence, imposed on 1 November 2019, commenced on 9 March 2019 and will expire on 8 March 2022; the applicant will be eligible for release to parole on 8 December 2020. He seeks leave to appeal against that sentence, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW).

4. The offences for which the applicant received that sentence, together with the maximum penalty applicable, any standard non-parole period (“SNPP”) and the indicative sentence with respect to each, are below.

Offence	Maximum Penalty	Indicative Sentence
Possess prohibited weapon s 7(1) Weapons Prohibition Act 1998 (NSW)	14 years imprisonment SNPP 5 years	2 years and 6 months imprisonment; NPP 12 months
Escape Police Custody Common Law offence ******* 2 counts of intimidation taken into account on a Form 1 document s 13(1) Crimes (Domestic and Personal) Violence Act 2007 (NSW)	At large ****** 5 years imprisonment (if prosecuted separately)	1 year and 3 months imprisonment
Affray s 93C(1) Crimes Act 1900 (NSW)	10 years imprisonment	1 year and 10 months imprisonment
On s 166 certificate Resist Police s 546C Crimes Act 1900 (NSW)	12 months imprisonment and / or a fine	Sentence imposed 6 months imprisonment to date from 9 March 2019, expiring on 8 September 2019

5. The applicant contends that there was error in the discount on sentence allowed to him, and in the imposition of a sentence that was manifestly excessive.

The Proceedings in the District Court

6. Having entered pleas of guilty in the Local Court and been committed for sentence, the applicant appeared for sentence before her Honour Judge English, sitting at the District Court in Wagga Wagga, on 1 November 2019.

The Crown Case

7. The Crown tendered a statement agreed between the parties that gave a factual account of the applicant’s crimes, all of which were committed on 8 or 9 January 2019.

8. On the morning of 8 January 2019, the applicant was involved in an altercation with another man, Jamie Thompson, outside the Narrandera Local Court. Mr Thompson told the applicant to stay away from his home.

9. That evening, when Mr Thompson arrived at his home, he saw the applicant walking in the street, and observed him to enter a neighbouring property and sit on the front lawn. There was a verbal exchange between the two men, with the applicant warning Mr Thompson, “Watch your house tonight, I’m gunna burn it down”.

10. At a distance of about 20 metres, the applicant believed he saw Mr Thompson with a gun, and so armed himself with a knife from the bag he was carrying. He waved the knife in Mr Thompson’s direction and again threatened him, calling out, “I’m gunna kill you and gunna burn your house down”.

11. Mr Thompson, who did not have a gun, went into his home and collected a baseball bat, returning to the street where he walked towards the applicant. The applicant told him, “You’re dead dog”. The use of the knife and the threats were reflected by the offence of affray.

12. When Mr Thompson continued to walk in his direction, the applicant fled, dropping his backpack as he ran. Mr Thompson picked up the bag and went inside his home. He telephoned police.

13. On examining the contents of the bag, Mr Thompson saw a knife and a Taser amongst other more everyday items. His wife took the bag to the local Police Station, and made a statement about what had occurred. Police began searching for the applicant, because of his possession of the Taser, a prohibited weapon.

14. The following day, the applicant attended Narrandera Police Station, evidently for an unrelated purpose, and was told he was wanted. He was placed under arrest. In relation to the Taser device found in his backpack, the applicant said that it did not work, as he had pulled it apart.

15. The applicant was secured in a custody area, although given access from time to time to both visiting relatives and a legal adviser. When the applicant’s girlfriend, Emma Orme, arrived to see him that afternoon, at about 3.40pm, the pair were accommodated in a visitor’s room, with the applicant locked into one half of the room behind a Perspex screen, and his girlfriend left in the unsecured second half of the room. Ms Orme left her part of the room, walked through a charging area to the secured entry to the applicant’s section of the room, and unlocked the door, releasing the applicant. The applicant ran from the police station, with a number of officers in pursuit. This is the common law offence of escaping police custody.

16. The applicant fled into an area of wetlands and jumped into the Murrumbidgee River, swimming to the southern bank of the river, and then running off into bushland. He was found, at about 6 o’clock that evening, swimming along the Murrumbidgee River.

17. The police officers who located the applicant directed him to come out of the river, but he declined. A number of locals with dinghies came to the assistance of the officers, and the applicant was surrounded by a small circle of boats. He continued to resist the efforts of the police officers and civilian volunteers to apprehend him, instead hurling pieces of wood and threats and abuse at all those around him. This conduct is reflected by the offence of resisting a police officer in the execution of duty, which was before the sentencing court on a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW), and by two counts of intimidation, before the court on a Form 1 document, and taken into account when sentence was imposed for the common law offence of escape.

18. After almost two hours in the water, the applicant agreed to swim into the river bank and surrender himself, in exchange for a promise from the arresting officers that he would be permitted to hug Ms Orme. He was arrested without further difficulty.

19. The applicant’s very lengthy criminal history formed part of the Crown case. It showed that the applicant had been in regular conflict with the criminal law since he was old enough to be held criminally liable. At the age of 10 years, he was charged with larceny, and later made subject to a recognisance of 6 months duration in the Children’s Court, in November 2000. Just after his 11^th birthday, the applicant was again charged, with a number of offences including destroying property and break enter steal, for which a combination of control orders and probation was imposed.

20. Regular appearances before the Children’s Court followed, with the equally regular imposition of control orders, for offences – often multiple offences – of stealing a motor vehicle, common assault, larceny, take and drive conveyance, destruction of property, entering enclosed lands, assault police officer, steal from dwelling, damaging property by fire, entering prescribed premises, using intimidation or violence to influence a person, intimidation, and offensive language amongst others.

21. By 14 years of age, the applicant was regularly breaching his community based sentences, and he seems to have spent more time in detention than out of it. Another offence of intimidation merited a control order of 6 months duration, imposed by the Children’s Court in May 2003. The applicant was back before the Children’s Court less than a year after his release from detention, to be sentenced for offences of aggravated break enter commit serious indictable offence and malicious infliction of grievous bodily harm, with a further 33 offences - including robbery, assault with intent to rob whilst armed occasioning wounding, steal from person, possess unregistered firearm, fail to surrender firearm, intimidation, escaping lawful custody, aggravated break enter and commit serious indictable offence, assault, and larceny - on a Form 1 document and taken into account on sentence. Control orders for 18 months, to date from March 2004, were imposed on 14 September 2004, with a NPP of 12 months fixed.

22. Two months after release to parole and whilst still subject to it, the applicant was again facing serious charges. He was dealt with before the Children’s Court on two occasions in what remained of 2005, in Narrandera and Woy Woy, for a number of offences, some being multiple counts, including assaulting and resisting police, aggravated break and enter with intent, break enter steal, damage property, and damaging property by fire. Further control orders followed.

23. In March 2006, the Children’s Court again imposed a control order on the applicant, on this occasion for an offence of break enter and steal from April of that year. Separate offences were dealt with on the same occasion, being offences, some of them multiple, of break enter steal, steal from dwelling, resist police, assault occasioning actual bodily harm (“AOABH”), escaping lawful custody, destruction of property, and intimidation, all dealt with by way of control orders.

24. After being released, the applicant committed five further break enter steal offences, on this occasion being penalised by supervised probation, imposed in September 2006. In December of that year, further control orders were imposed, for offences of aiding an inmate to escape, escaping from lawful custody, resisting police, and break and enter with intent to steal. Thereafter, the applicant’s appearances before the criminal courts occurred as an adult in the Local and District Courts.

25. His first adult offence, echoing much of his Children’s Court record, was intimidation, an offence which attracted a term of 12 months imprisonment.

26. Subsequently, the applicant has been before the courts for common assault (2008), behaving in an offensive manner (2008), destruction of property (2008), escaping police custody (2009), assault police (two counts, 2009), shoplifting (2009), affray (2009), common assault (2009), assault with intent to prevent apprehension (2010), aggravated break enter commit serious indictable offence (2010), assault law officer (2011), aggravated break enter commit kidnapping (2014), common assault (2014), kidnapping (2014), aggravated break enter and steal (2014), affray (2015), possess offensive weapon in detention centre (2015), and assault police (2016).

27. The majority of the convictions recorded in the adult jurisdiction have attracted custodial sentences and, when the applicant has been released to parole, he has regularly breached it, leading to its revocation, with the applicant then serving the balance of parole.

28. The applicant’s custodial history demonstrates that, when in custody, he is frequently in breach of rules, and is often punished for institutional offences. His gaol offences are even more numerous than those against the criminal law, with punishment imposed regularly for breaches such as fighting, intimidation, possessing drug implements, possessing offensive weapons, damaging property, assault, failing drug tests, refusing to provide a drug sample, creating prohibited goods, disobeying directions, and stealing.

29. A copy of the most recent order revoking the applicant’s parole was also before the sentencing court. It showed that the applicant had breached parole relating to his conviction for aggravated break enter commit kidnapping, an offence for which the Wagga Wagga District Court imposed a term of imprisonment of 4 years 10 months to date from 1 September 2014, expiring on 30 June 2019, with a NPP of 2 years expiring on 31 August 2016. The applicant had been released to parole on 1 November 2018, but parole was revoked from 8 January 2019, because the applicant failed to be of good behaviour by committing the offences that were before her Honour Judge English.

30. A sentencing assessment report (“SAR”) was before the sentencing judge. It noted the applicant’s lengthy criminal history, and the difficulty he had living a crime free life in the community.

31. On his most recent release to parole, on 1 November 2018, the applicant reported having been stressed by a “bad” relationship and difficulties in securing employment. He began using amphetamines and cannabis on a daily basis; his drug use having begun in childhood.

32. Of the offences for sentence, and despite his pleas of guilty, the applicant told the author of the SAR that the facts alleged relevant to the affray offence were “all lies and rubbish”, and claimed that Mr Thompson had shot at him and been the aggressor. Whilst he acknowledged having escaped from police custody and having had possession of a Taser, he did not accept that he had intimidated anyone. He did not believe that his conduct had been aggressive or violent to those civilians present when police were trying to arrest him. He blamed the police for permitting members of the public to be in the area, and did not see police officers as victims of crime. The author of the report observed:

“Mr Higgins has little regard to the impact that his offending has had on others.”

33. It was noted that, although the applicant was prepared to “engage with interventions to address his offending behaviour”, and recognised the need to address his drug use and violent behaviour, his response to supervision in the past had been poor, with the frequent revocation of juvenile and adult supervision and parole orders:

“due to failure to comply with reasonable direction, engage with interventions, and reoffending”.

34. The applicant was assessed as posing a medium – high risk of recidivism.

The Applicant’s Case

35. The applicant did not give evidence. At the time of the commission of the offences he was just short of his 30^th birthday; when sentenced he was aged 30.

36. Over objection from the Crown, a psychological report prepared in 2014 for sentence proceedings in that year, and a statement the applicant had made in relation to another matter, were tendered.

37. The psychological report was relied upon only in so far as it recorded the applicant’s account of his personal background, and the assessment made of his intellectual functioning.

38. As to the former, the applicant reported being the third of four children, and growing up in a family home where drug and alcohol use were common, and arguments between his parents frequently became physical. When he was aged three or four years, he and his siblings were removed from their parents’ care by other family members, and the children were sent to live separately with extended family. The applicant lived with an aunt, but she handed over care of him to the Department of Family and Community Services when he was aged 9. He thought that this might have been because he was “hyperactive” and “uncontrollable”, and noted a diagnosis of Attention Deficit Hyperactivity Disorder (“ADHD”) made when he was aged seven.

39. The applicant did not see his siblings for two or three years after he was placed in Departmental care. When in care, he was moved frequently between placements, probably because of his behavioural difficulties. In a period of four years the applicant had 20 placements, an unsettling experience that made him feel unwanted. It also had an impact on his education, and the applicant reported not having attended school between years 4 and 7.

40. Although his last foster placement, of six months duration, had been a positive experience, the applicant missed his family and home town and began to run away regularly, from about the age of 12 years. After a time he was returned to his father’s care.

41. When the applicant returned to school, in year 7, he found it difficult and was given a tutor to work with him in class. He truanted regularly and did not complete his schooling.

42. After leaving school the applicant acknowledged supporting himself through welfare payments and crime. He has completed some vocational courses in custody, but has no confidence of securing employment in the future.

43. The applicant reported having been involved in a stable relationship for the five years previous to sentencing in 2014, interrupted by periods of incarceration. Frequent imprisonment and his drug abuse had placed a strain on the relationship. The applicant has a young son with his wife.

44. The applicant reported no health issues. He had ceased taking medication decades previously for the ADHD diagnosed when he was seven, although an emotional breakdown in 2010 saw him prescribed Ritalin, which he quickly ceased to take.

45. The applicant reported having used cannabis since he was 12 years old, and amphetamine and methylamphetamine since he was 17. He has used alcohol since, he said, the age of four or five, but did not regard his use of it as problematic.

46. An assessment of his intellectual functioning placed him in the range of Borderline Intellectual Disability.

47. In 2014, the author of the psychological report regarded the applicant as a man with limited insight into his drug dependency who was ill-equipped to deal with difficulties. His long history of criminal behaviour was regarded as linked to his drug dependency. His ADHD and borderline intellectual functioning further complicated his situation.

48. The statement that the applicant tendered was one he had made to police in March 2019 concerning indecent acts with a youth worker at a detention centre, where the applicant was held when he was aged 14 to 16 years. The applicant told the police that the youth worker brought him food and cigarettes and showed him pornographic movies and, in exchange, the applicant would masturbate whilst the worker watched him. He also gave the police an account of a flirtation he had conducted with a female youth worker in another detention centre, culminating in her performing an act of fellatio upon him on one occasion.

49. The purpose of the tender of the applicant’s statement was, the applicant’s legal representative told the sentencing judge, that it:

“is part of the evidence in relation to his deprived background as a juvenile, that it impacts in relation to that, and that’s the reason that that statement is tendered, to assist your Honour in that regard”.

Submissions in the District Court

50. In submissions to the sentencing court, the Crown pointed out that all of the offences were committed when the applicant was subject to conditional liberty, having been released to parole. It was argued that the offence of affray was a more serious example of such an offence because of the use of a knife to threaten Mr Thompson with death. The remainder of the crimes were submitted to fall below the mid-range in terms of objective gravity. The Crown pointed to the applicant’s long history of criminality and illicit drug abuse to submit that his prospects were poor and specific deterrence had a particular role to play in the sentencing exercise.

51. The applicant submitted that the offences were not at the highest level. The Taser did not work, and the intimidation of the civilians who assisted police when the applicant was in the river consisted of “throwing sticks in their direction” and making threats. The affray involved no actual violence. Through his solicitor the applicant disputed having said to the author of the SAR that the facts relevant to the affray were “rubbish and lies”. The escape, described as having “done a runner”, was characterised as having provided an afternoon’s amusement for those involved, by an opportunistic, unplanned offence.

52. The applicant relied upon the 2014 psychological report, and his 2019 statement to police, to submit that:

“he’s had a deprived and dysfunctional growing up”.

53. The applicant acknowledged his struggles with drug addiction, and submitted that there should be a finding of special circumstances in his favour to assist him to address it with a longer than usual parole period.

54. He told the court through his solicitor that he planned to live with his father on release, and pursue employment opportunities. Although separated from the mother of his son, he continued to see his son, and would play an active role in the boy’s life on release.

The Remarks of the Sentencing Judge

55. After having received the evidence and heard the submissions of the parties, her Honour proceeded to sentence ex tempore.

56. Having set out the offences and the relevant maximum penalties that applied, her Honour turned to the facts, finding them to be as agreed between the parties (and set out above).

57. Drawing on the 2014 psychological report, she described the applicant’s background and personal circumstances, noting that he was exposed to substance abuse and domestic violence by his parents, followed by an unsettling and distressing experience in the care of the authorities. Her Honour had regard to the applicant’s history of substance abuse, to his diagnosis of ADHD, and to his borderline intellectual functioning.

58. Of the offences her Honour concluded that the offence of affray fell below the midrange of objective gravity, even though the applicant had used a knife in a public area on a January evening when others were in the area. She thought that the offence of escaping police and those connected with the circumstances of his arrest were at the lower end of seriousness, as was the prohibited weapon offence, given that the Taser was not in working order when it was recovered by police. However, her Honour noted that the offences were all committed when the applicant was on parole, a feature of aggravation.

59. Her Honour was prepared to allow a discount on the sentence that would otherwise be imposed of 25% to reflect the utilitarian value of the early pleas of guilty. She could not conclude that the pleas were evidence of remorse, since the applicant had disputed the facts of the offending to the author of the SAR, and had never demonstrated any understanding of or regret for his criminal conduct.

60. The sentencing judge concluded that the applicant’s prospects of rehabilitation were “extremely guarded”, with a high likelihood of reoffending, unless the applicant was prepared to accept and comply with supervision.

61. Her Honour was conscious of the deprivation of the applicant’s upbringing, and took it into account in accordance with the principles expressed in Bugmyv The Queen (2013) 249 CLR 571; [2013] HCA 37, and R v Fernando (1992) 76 A Crim R 58.

62. The applicant’s criminal history was treated as disentitling him to leniency, and pointing to a strong requirement for the sentence to reflect specific deterrence. Her Honour was not able to conclude, on the basis of a five year old report, that the applicant was not a suitable vehicle for general deterrence, and concluded that general deterrence had a role to play on sentence.

63. She was prepared to accept the applicant’s submission that special circumstances should be found, on the basis that he was institutionalised and would be assisted by a longer period of parole than the statutory ratio allowed.

64. Her Honour concluded that there should be some level of accumulation of sentence between the offences, and with the balance of parole that the applicant served. The aggregate sentence noted above was imposed.

The Application to this Court

65. If granted leave, the applicant seeks to advance two grounds of appeal:

1. “Her Honour erred in allowing only a 25% discount in respect of each guilty plea for both utilitarian value and contribution [sic ?contrition]; and

2. The aggregate sentence is manifestly excessive”.

Ground 1: “Her Honour erred in allowing only a 25% discount in respect of each guilty plea for both utilitarian value and contribution [sic ?contrition]”

66. The argument in support of this ground is that the applicant should have received a discount on sentence greater than that allowed by the sentencing judge, to reflect the dual components of it. That is, the utilitarian value of the pleas of guilty attracted of themselves a discount of 25%, and there should have been an additional discount to reflect the “evidence of contrition associated with pleas of guilty”. Reliance is placed on the guideline judgment of R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309, at [160(ii)], wherein Spigelman CJ reflected that allowing a discount of up to 35% to encompass all mitigating features remained appropriate.

67. There are two insurmountable problems with the applicant’s contention.

68. Firstly, it is not and has never been the law that a finding that an offender is contrite must or should attract a quantified discount on sentence. Remorse and contrition are features to be taken into account in determining the sentence, rather than by reducing the sentence that would otherwise have been imposed by a specific percentage discount. Those principles are made clear in R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1, at [32(5)].

69. Having entered his pleas of guilty in the Local Court, the applicant was entitled to a discount on the sentence that would otherwise have been imposed of 25%, to reflect its utilitarian value. That is the general, if not immutable, position at common law: Thomson & Houlton at [152] – [154]; Borkowski at [31] – [32].

70. These being proceedings which commenced after 30 April 2018, the common law position had been overtaken by statute. The sentencing court could only apply a 25% discount on sentence to reflect the utilitarian value of the pleas, in compliance with the provisions of Division 1A of Part 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Section 25A(2) provides that:

25A    Application of Division

…

(2) A court must not apply any other discount for the utilitarian value of a guilty plea to an offence to which this Division applies other than the discount provided for by this Division.

71. The mandatory discount to be applied to the sentence that would otherwise have been imposed upon the applicant was that specified by s 25D(2)(a) of that Act, one of 25%, because the applicant’s pleas had been accepted by a Magistrate in committal proceedings.

72. There was thus no common law or statutory basis for a further nominated discount to be applied to reflect the contrition that a plea of guilty might evidence.

73. The second difficulty with the applicant’s argument relates to the aspect of contrition: the sentencing judge did not find that the applicant was contrite or remorseful. To the contrary, although her Honour referred to the submission from the bar table as to the applicant’s contrition, she could not on the evidence before the court accept that he was in fact contrite. The applicant did not give any evidence. His only account of the offences that was in evidence before the sentencing court was that which he had given to the author of the SAR. That account disputed the facts of the affray as “lies and rubbish”, minimised the threatening nature of his conduct towards those endeavouring to extract him from the Murrumbidgee River, and diminished the seriousness of his possession of a Taser on the basis that he had dismantled it, and it was not capable of operation at the time when it was seized by police.

74. None of this was consistent with contrition, or remorse. As her Honour observed:

“It is difficult to find him genuinely remorseful and contrite, having regard to the contents of the sentencing assessment report which have sought to be explained by his solicitor from the bar table. As I have said, the offender himself did not give evidence nor even write a letter to the Court expressing his regret. He fails to demonstrate victim empathy and, it appears, to understand how the impact of his offending impacts upon the community, not just himself or his family”.

75. Despite the applicant’s apparent rejection of some of the facts, and his inability to acknowledge the impact of his crimes, her Honour was prepared to take into account that the maintenance of the pleas of guilty reflected a degree of contrition. That conclusion was not, and should not have been, reflected by a further discount on sentence.

76. To argue that her Honour was obliged to give a specific percentage discount to reflect the applicant’s remorse and contrition misapprehends both the law, and the evidence. I would not grant leave to advance this proposed ground.

Ground 2: “The aggregate sentence is manifestly excessive”

77. The applicant starts from what is contended to be the aggregate sentence absent any discount – 4 years imprisonment – to argue that, for offences assessed to be at the lower end of objective seriousness, such a sentence is unfair and unjust.

78. That argument fails to comprehend that the reference to a position within a range frequently used by sentencing courts to describe the outcome of the assessment of objective seriousness is neither precise, nor prescriptive on sentence.

79. The imprecise nature of citing the position of a crime within a notional range of seriousness has been the subject of comment by this Court in the past. In Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266 Basten JA (with whom Beazley P and I agreed) said, at [82]:

“[…] although it is conventional practice to divide objective seriousness into low, mid and high ranges (sometimes with further detail, such as “near the top of the low range”) there is no clear delineation of the scope of each range and it cannot be assumed that all judges apply the terminology uniformly. Accordingly, there is a difficulty in drawing firm conclusions from the penalties with respect to each range. Fourthly, to identify a standard range of penalties merely by reference to an assessment of objective seriousness is to discount the importance of other considerations, including evidence of steps taken to adopt better practices since the time of the offending”.

80. Acknowledging that imprecision, there is, as Basten JA said, a difficulty in drawing firm conclusions by reference to the position in a range of offending the instant offence was found to occupy. Such conclusions do not have inevitable consequences, able to be measured by so many years or so many months of imprisonment.

81. Determining the sentence to be imposed upon an offender is an instinctive rather than a formulaic exercise. A finding of fact about one matter relevant to the exercise of the sentencing discretion does not dictate what the sentence will be. Rather, it is simply one feature to be considered. It is necessary, on the basis of all factual findings and having regard to all relevant evidence, to synthesise the whole, in accordance with sentencing principles, and arrive at a sentence that properly reflects the gravity of the crime, and the weight to be given to the subjective case. As was observed in Salafia v R [2015] NSWCCA 141 at [77]–[78]:

“[77] The process of sentencing an offender is, as has been repeatedly stressed, an intuitive one. Sentencing cannot be a purely logical exercise of adding or subtracting from a penalty dependent upon the presence or absence of specific features: R v Engert (1995) 84 A Crim R 67 at 68; Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 476.

[78] Sentencing is very much a discretionary process. In Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600, it was noted (at [59] in the joint judgment of French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ),

‘In Markarian Gleeson CJ, Gummow, Hayne and Callinan JJ adopted the explanation of the sentencing discretion given by Gaudron, Gummow and Hayne JJ in Wong v The Queen that the description of the balance struck by a sentence as an "instinctive synthesis" is not used "to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features [footnotes omitted].’”

82. Here, her Honour regarded the applicant’s crimes as of a lower order of seriousness. That was an assessment that was well open to her. It did not mandate that she impose a sentence that fell at the very bottom of any notional range. Other features were of importance, and relevant to the determination of sentence.

83. The fact that the applicant had committed these offences when at conditional liberty and subject to parole was one feature to be taken into account and, as her Honour observed, it was an aggravating feature. The applicant’s criminal history was another feature to be considered. Favourably to the applicant, the sentencing judge did not treat the applicant’s criminal history as an aggravating feature, as she was entitled to do pursuant to s 21A(2)(d) of the Crimes (Sentencing Procedure) Act, and in accordance with the principles given in Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14. His antecedents did, however, operate to deny the applicant leniency, and to point to a need for greater weight to be given to specific deterrence, and the protection of the community.

84. Whilst the applicant’s background of deprivation was a feature that warranted due consideration in accordance with Bugmy, it did not lead to inevitable consequences any more than did other conclusions reached by the sentencing court. It is clear however, that her Honour treated this aspect of the applicant’s background and circumstances as mitigating the penalty to be imposed.

85. The applicant further complains that the theoretical availability of summary jurisdiction for the applicant’s crimes was a feature not reflected in the sentences imposed. That is perhaps because it was an irrelevant consideration.

86. The fact that an offence falls within Table 1 or Table 2 of Schedule 1 of the Criminal Procedure Act, and could have been disposed of summarily, is properly a relevant consideration on sentence only where an offender has lost a chance open to him or her to be dealt with in the Local Court, where a jurisdictional limit applies: R v Crombie [1999] NSWCCA 297 at [16]; R v El Masri [2005] NSWCCA 167 at [29]. The significance of that lost chance will vary, dependent upon the particular circumstances: R v Depoma [2003] NSWCCA 382 at [13].

87. In the applicant’s case, his criminal history and status as a parolee at the time of the commission of the offences made it impossible that summary jurisdiction could have been properly offered to him. To do so would have impermissibly fettered the legitimate exercise of the sentencing discretion: see Dagdanasar v R [2010] NSWCCA 310 at [40]. As was concluded in Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [112] by Johnson J (with whom McClellan CJ at CL and Rothman J agreed), unless it is “plainly wrong” that these offences were prosecuted on indictment, it is difficult to see how this feature advances the applicant’s case. The reality of his situation was that summary jurisdiction was simply not available to him.

88. The principles which apply to a claim of manifest excess are well known. They have been stated and restated, in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221, at [443], as one among many. There, R A Hulme J summarised them as follows:

“When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].

‘• Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.

• Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.

• It is not to the point that this Court might have exercised the sentencing discretion differently.

• There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.

• It is for the applicant to establish that the sentence was unreasonable or plainly unjust.’”

89. The applicant pointed to statistics held by the Judicial Commission, and to cases involving similar offences, but I do not find the statistics or cases particularly helpful. Nor is it particularly instructive to have regard to such material when the sentence appealed against is an aggregate sentence: Tuite v R [2018] NSWCCA 175 at [100] per Hoeben CJ at CL.

90. Having considered the evidence before the sentencing judge, her Honour’s judgment, and the submissions of the parties before this Court, I am not able to conclude that the sentence imposed is demonstrative of some misapplication of principle or other error.

91. Although I would grant leave to appeal on this ground, I would dismiss the appeal.

92. The orders I propose are:

1. Leave to appeal on ground 1 is refused;

2. Leave to appeal on ground 2 is granted;

3. The appeal is dismissed.

**********

Decision last updated: 24 July 2020