Hillier v Director of Public Prosecutions - [2009] NSWCCA 312

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
HILLIER v DIRECTOR OF PUBLIC PROSECUTIONS (NSW) [2009] NSWCCA 312
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
2008/677

HEARING DATE(S):
20 July 2009

JUDGMENT DATE:
22 December 2009

PARTIES:
Mark Anthony Hillier (Applicant)
Director of Public Prosecutions (NSW) (Respondent)

JUDGMENT OF:
Basten JA Hulme J Johnson J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/677

LOWER COURT JUDICIAL OFFICER:
Cogswell DCJ

LOWER COURT DATE OF DECISION:
5 September 2008

COUNSEL:
J Stratton SC (Appellant)
J Girdham (Respondent)

SOLICITORS:
S E O’Connor, Legal Aid Commission of NSW (Appellant)
S Kavanagh, Solicitor for Public Prosecutions (Respondent)

CATCHWORDS:
CRIMINAL LAW – appeal against sentence – proper approach to sentencing –whether principle of totality complied with – whether finding of special circumstances warranted – whether manifestly excessive
SENTENCE – relevant factors – antecedent criminal history – conditional liberty – offender in possession of lengthy record of prior criminal conduct – offences committed whilst on parole – whether relevant to assessment of objective seriousness of offences
WORDS & PHRASES – "conditional liberty" – "criminal record" – "objective seriousness" – "special circumstances" – "tinkering"

LEGISLATION CITED:
[Crimes Act 1900] (NSW), ss 4, 59, 61, 111, 112, 113, 195
[Crimes (Sentencing Procedure) Act 1999] (NSW), ss 21A, 32, 33, 44, 54A
[Criminal Appeal Act 1912] (NSW), ss 6, 7
[Probation and Parole Act 1983] (NSW), s 20A

CATEGORY:
Principal judgment

CASES CITED:
[Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002] [2002] NSWCCA 518; 56 NSWLR 146
[C-P v R] [2009] NSWCCA 291
[Dinsdale v The Queen] [2000] HCA 54; 202 CLR 321
[Director of Public Prosecutions (NSW) v RHB] [2008] NSWCCA 236
[Eedens v R] [2009] NSWCCA 254
[Edington v Fitzmaurice] (1885) 29 Ch D 459
[Engert] (1995) 84 A Crim R 67
[Griffiths v The Queen] [1989] HCA 39; 167 CLR 372
[House v The King] [1936] HCA 40; 55 CLR 499
[Jones v Regina] [2006] NSWCCA 385
[O’Sullivan v R] [2006] NSWCCA 368
[R v AD] [2008] NSWCCA 289
[R v AEM] [2002] NSWCCA 58
[R v Astill (No 2)] (1992) 64 A Crim R 289
[R v Baleisuva] [2004] NSWCCA 344
[R v Burke] [2000] NSWCCA 450
[R v Ceissman] [2004] NSWCCA 466
[R v Derbas] [2003] NSWCCA 44
[R v Garvey] [2003] NSWCCA 226; 142 A Crim R 194
[R v Harris] [2007] NSWCCA 130; A Crim R 267
[R v Hayes] (1984) 1 NSWLR 740
[R v Henry] [1999] NSWCCA 111; (1999) 46 NSWLR 346
[R v Johnson] [2004] NSWCCA 140
[R v Knight] (2005) 155 A Crim r 252
[R v Matthews] [2007] NSWCCA 294
[R v McNaughton] [2006] NSWCCA 242; 66 NSWLR 566
[R v Opa] [2004] NSWCCA 464
[R v Ponfield] [1999] NSWCCA 435; 48 NSWLR 327
[R v Scott] [1999] NSWCCA 434
[R v Simpson] [2001] NSWCCA 534; 53 NSWLR 704
[R v Skornia] [2000] NSWCCA 422
[R v Tortell] [2007] NSWCCA 313
[R v Vera] [2008] NSWCCA 33
[R v Way] [2004] NSWCCA 131; 60 NSWLR 168
[Regina v Smith] [2001] NSWCCA 152
[SGJ v R] [2008] NSWCCA 258
[Veen v The Queen [No 2]] [1988] HCA 14; 164 CLR 465

TEXTS CITED:

DECISION:
(1) Grant leave to appeal with respect to the sentences imposed in the District Court on 5 September 2008 in relation to:
(a) the assault occasioning actual bodily harm, and
(b) the break, enter and steal committed at Blacktown on 4 January 2007.
(2) In respect of each sentence, allow the appeal and re-sentence the applicant as follows:
(a) for the assault occasioning actual bodily harm, taking into account the matter on the Form 1, set –
(i) a non-parole period of two years and three months to commence on 12 May 2008 and expire on 11 August 2010, and
(ii) a balance of the term of the sentence of nine months, commencing on 12 August 2010 and expiring on 11 May 2011;
(b) in respect of the break, enter and steal, set –
(i) a non-parole period of three years and four months commencing on 12 February 2010 and expiring on 11 June 2013, and
(ii) a balance of the term of imprisonment of one year and two months commencing on 12 June 2013 and expiring on 11 August 2014
The applicant will be eligible for release on parole on 11 June 2013.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2008/677
BASTEN JA
RS HULME J
JOHNSON J
22 December 2009

Mark Anthony HILLIER v DIRECTOR OF PUBLIC PROSECUTIONS (NSW)

Headnote

On 16 October 2005 the applicant was surprised in the act of attempting to break into a car in Seven Hills with a screwdriver. On being interrupted by the owners, being a couple with a young child, the applicant assaulted the father, Mr Hardy, stabbing him in the hand with the screwdriver. He also threatened Mrs Hardy with the screwdriver. The applicant pleaded guilty to the assault on Mrs Hardy and to damaging the motor vehicle. He was put on trial for the assault on Mr Hardy, and was convicted of assault occasioning actual bodily harm. The sentencing judge, Cogswell DCJ was invited to take into account a further charge of break, enter and steal committed on 7 February 2007, included on a form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW), and was also sentenced for a further offence of break, enter and steal, committed on 4 January 2007. That offence was committed whilst the applicant was on parole. Further, the applicant had a lengthy record of prior criminal conduct.

His Honour imposed a sentence of four years imprisonment with a three year non-parole period in respect of the assault occasioning actual bodily harm, a sentence of five years with a non-parole period of 3.5 years in respect of the break, enter and steal committed on 4 January 2007, and sentences of six months each for the assault on Mrs Hardy and the damage to the motor vehicle. The sentence in respect of the break, enter and steal was to commence six months prior to the expiry of the non-parole period of the sentence in respect of the more serious assault, within which the two six month sentences were wholly absorbed. Accordingly, the total non-parole period was six years, with a balance of term of 1.5 years.

The Applicant appealed against these sentences on the basis that appellable error afflicted the sentencing exercise, and that individually and as accumulated, they were manifestly excessive.

The issues for determination on appeal were:

the extent to which antecedent criminal history, and the fact that an offence has been committed whilst on parole, should be taken into account in the sentencing process;

whether the degree of accumulation between the sentences was erroneous;

whether a finding of special circumstances was warranted so as to vary the ratio between the non-parole period and the balance of term;

the appropriate sentences to be imposed.

The Court held, granting leave, quashing the sentences, and re-sentencing the applicant:

In relation to (i)
(per Basten JA, Johnson J agreeing)

Although antecedent criminal history will not affect the objective seriousness of an offence and thus the upper boundary beyond which a sentence could not properly extend, it may be relevant to determining the appropriate sentence within that range, according to the weight placed on considerations such as personal deterrence and related criteria: [14]–[21].

Veen v The Queen [No. 2] [1988] HCA 14; 164 CLR 465, R v Way [2004] NSWCCA 131; 60 NSWLR 168; R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566, considered.
Engert (1995) 84 A Crim R 67, referred to.

(per RS Hulme J)

Authority in this Court dictates that neither an offender's antecedent criminal history, nor the fact that an offence was committed whilst the offender was on conditional liberty is relevant to the objective seriousness of an offence. It is nonetheless difficult to reconcile this principle with statements of the High Court in Veen v The Queen: [74], [91], [108]–[110].

Veen v The Queen [No. 2] [1988] HCA 14; 164 CLR 465, R v Way [2004] NSWCCA 131; 60 NSWLR 168; R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566, considered.

In relation to (ii)
(per Basten JA, Johnson J agreeing)

Given the fact that the principal offences were entirely separate, a large degree of accumulation was appropriate. No error has been shown in that regard: [52].

(per RS Hulme J)

No basis arose upon which concurrency between the sentences was justified, as all the offences involved discrete criminality and none was but an incident of another: [71].

In relation to (iii)
(per Basten JA, Johnson J agreeing, RS Hulme J not deciding)

There may be situations in which the primary facts as found indicate a firm basis for a finding of special circumstances. It is possible that in such a situation, a failure to refer to the possibility of special circumstances being found may demonstrate error, however the facts in the present case provided no basis for such an inference: [57].

R v Astill (No 2) (1992) 64 A Crim R 289, referred to.

In relation to (iv)
(per Basten JA, Johnson J agreeing)

In respect of the assault occasioning actual bodily harm, the fact that the offence was committed whilst on parole should not have been used in order to increase the otherwise appropriate range. Taking the additional matter into account, an appropriate sentence is a fixed term of 2 years and three months: [30]–[36], [117].

In respect of the break, enter and steal, the applicant's criminal history was inappropriately taken into account in determining the objective seriousness of the offence. An appropriate sentence is 4.5 years, with a non-parole period of three years and four months: [41]–[46], [122].

R v Skornia [2000] NSWCCA 422; R v Garvey [2003] NSWCCA 226; 142 A Crim R 194; R v Baleisuva [2004] NSWCCA 344, referred to.

It is doubtful whether the principle against 'tinkering' should be applied to a sentence challenged by an offender, acting as it does, against the interests of liberty of the offender. In the present case, the reduction of a sentence by six months cannot in any event be characterised as 'tinkering': [48]–[49].

Dinsdale v The Queen [2000] HCA 54; 202 CLR 321; Jones v Regina [2006] NSWCCA 385, referred to.

(per RS Hulme J, dissenting)

In respect of the assault occasioning actual bodily harm, once the fact that the offence was committed whilst on parole is removed from consideration, a fixed term of imprisonment of 1.5 years is appropriate: [78].

In respect of the break, enter and steal, upon consideration of the factors appropriately relevant to the objective seriousness of the offence, the starting point of seven years adopted by the sentencing judge was not manifestly excessive, and accordingly, neither was the sentence of five years actually imposed: [101].

R v Ponfield [1999] NSWCCA 435, referred to.

IN THE COURT OF

CRIMINAL APPEAL

CCA 2008/677
BASTEN JA
RS HULME J
JOHNSON J
22 December 2009

Mark Anthony HILLIER v DIRECTOR OF PUBLIC PROSECUTIONS (NSW)

Judgment

BASTEN JA: On 16 October 2005 the applicant was surprised in the act of attempting to break into a car in Seven Hills with a screwdriver. On being interrupted by the owners, being a couple with a young child, the applicant assaulted the father, Mr Hardy, stabbing him in the hand with the screwdriver. He also threatened Mrs Hardy with the screwdriver. The applicant pleaded guilty to the assault on Mrs Hardy and to damaging the motor vehicle. He was put on trial for the assault on Mr Hardy. The real issue in dispute was not the occurrence of the assault, but rather the seriousness of the offence. The more serious offence (of which he was acquitted) involved an intention to hinder lawful apprehension. He was convicted by a jury of a lesser offence, namely assault occasioning actual bodily harm.
When the applicant came before Cogswell DCJ for sentence on 5 September 2008, his Honour was invited to take into account a further charge of break, enter and steal committed on 7 February 2007, which was included on a form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act”). He was also sentenced for a further break, enter and steal, committed at a house in Blacktown on 4 January 2007, to which he had pleaded guilty.
On the charge of assault occasioning actual bodily harm, the judge imposed a sentence of four years imprisonment, with a three year non-parole period. The maximum penalty for that offence was five years imprisonment. His Honour found that the offence fell within the “mid-range” in terms of objective seriousness.
In respect of the break, enter and steal, his Honour imposed a sentence of five years with a non-parole period of 3.5 years. These two sentences, which covered the primary offences, were largely accumulated, the sentence for the latter offence commencing six months before the completion of the non-parole period for the assault.
There were two further offences, namely the assault on Mrs Hardy and the damage to the Hardys’ motor vehicle. On each of these, the applicant was sentenced to imprisonment for six months, by way of a fixed term, each to be served concurrently with the other and concurrently with the sentence for the assault on Mr Hardy.
The result was an overall period of imprisonment for 7.5 years, with a non-parole period of six years, the balance of term being 1.5 years.
The application for leave to appeal against the sentences was based primarily upon the proposition that the sentences individually and as accumulated were manifestly excessive. At the hearing of the application, counsel appearing for the applicant put the matter on a somewhat different basis. He alleged errors of principle on the part of the sentencing judge in taking into account both the lengthy prior record of the applicant for similar offences, and the fact that the break, enter and steal was committed whilst on parole, in determining the objective severity of the offences. This approach was said to be inconsistent with the principles identified by this Court in R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 (Spigelman CJ, McClellan CJ at CL, Grove, Barr and Bell JJ). These factors did not demonstrate that the sentence was necessarily manifestly excessive, but they raised a question as to whether there was a relevant error in the sentencing exercise. In these circumstances, it is appropriate to grant leave to appeal. That leave should extend to each of the principal sentences and the various grounds relied upon, as an error in respect of one sentence may have affected the totality of the period of imprisonment imposed.

Taking antecedent criminal history into account

It has long been axiomatic that a sentencing judge has a significant degree of freedom from review in determining the appropriate sentence for a particular offence. That principle gives appropriate recognition to the fact that sentencing is not an exercise in precision and that a result which falls within a reasonable range will not be open to challenge, absent a specific misapplication of principle. As noted by Gleeson CJ in Engert (1995) 84 A Crim R 67 at 68:
“A moment’s consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration.”
In the language of House v The King [1936] HCA 40; 55 CLR 499 at 505, an appellate court will intervene only if it is established that the sentencing judge acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect the exercise, mistook the facts or failed to take into account some material consideration. Further, it is only in circumstances where the court is of the opinion that some other sentence is warranted in law and should have been passed that it is empowered to intervene: Criminal Appeal Act 1912 (NSW), s 6(3).
The process of sentencing operates at a number of different levels. The first level requires the determination of primary facts. The second requires the identification of relevant considerations; the third, a judgment as to the operation of those considerations in the process of determining the sentence. That is not to suggest that any mechanistic exercise is involved. Nor is it to suggest that it is necessarily wrong for the sentencing judge to ignore these factors in giving reasons for sentence.
It is apparent from a cursory examination of sentencing cases and texts that the process of appellate review, and indeed the imposition of sentences, has become more analytical over the years. The expectation that a sentence will be explained and justified by way of articulated reasons prevents the courts from reliance upon an unexplained exercise of “instinctive synthesis”. Synthesis envisages a number of elements, which it is expected can be articulated, whether by the sentencing judge or by the appellate court. As explained in House, if it does not appear “how the primary judge has reached the result embodied in his order, … if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance”: at 505.
A higher level of analytical assessment of sentencing may have arisen from increasing expectations as to the nature of the reasons expected of sentencing courts, but also from increasing statutory regulation of the sentencing process. (The two reasons are not, of course, unrelated.) For present purposes, the primary facts in relation to the alleged extraneous considerations were not in doubt: these were the applicant’s lengthy criminal record and the fact that he was on parole at the date of the break, enter and steal in January 2007. Nor was it in dispute that these facts were relevant matters to be taken into account: the issue was how they should be taken into account. Purpose is important in sentencing.
The last proposition is illustrated by the decision of the High Court in Veen v The Queen [No 2] [1988] HCA 14; 164 CLR 465. The question was whether in taking into account the fact that this was the second violent killing in which Mr Veen had been involved, the sentence of life imprisonment had been imposed in order to protect the community from future crimes or whether it was part of the punishment for the crime which had been committed. The joint judgment of Mason CJ, Brennan, Dawson and Toohey JJ acknowledged “that the practical observance of a distinction between extending a sentence merely to protect society and properly looking to society’s protection in determining the sentence calls for a judgment of experience and discernment”: at 474.
The Court also noted two subsidiary principles, one of which was expressed in the following terms at 477:
“The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences ….”
The distinction identified in this last passage acquired new significance in the light of the statutory requirement (in relation to particular offences) for the imposition of a standard non-parole period, said to represent “the non-parole period for an offence in the middle of the range of objective seriousness for” the relevant offence: Sentencing Procedure Act, s 54A(2). The meaning of that provision and particularly the words “objective seriousness” were addressed by this Court in R v Way [2004] NSWCCA 131; 60 NSWLR 168 (Spigelman CJ, Woods CJ at CL and Simpson J). The Court drew a distinction between factors relevant to the objective seriousness of the offence and factors which might be described as “personal to the offender”: at [84]-[88]. The Court continued at [92]:
“For instance, while the antecedent criminal history, or the fact that the offender has re-offended while on conditional liberty can be relevant for a determination of an appropriate level of punishment where either: ‘… illuminates the moral culpability of the offender in the instant case, or shows dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences,’ … per the majority in Veen [No. 2], considerations of this kind are more relevant to the measure of punishment for the individual offender, than they are to a consideration of where the offence before the court falls within the spectrum of conduct which may constitute the offence in the abstract.”

It appeared from that passage that the distinction involved a matter of emphasis or weight, rather than a categorical separation. A degree of ambivalence in earlier decisions led to the constitution of a five judge Court in McNaughton, to determine the proper role of such matters as a criminal history, in the sentencing process. Spigelman CJ at [24] stated:
“Notwithstanding the views expressed by some judges, I interpret the joint judgments in both Veen v The Queen (No 2) and in Baumer [v The Queen [1988] HCA 67; 166 CLR 51] as establishing that the principle of proportionality requires the upper boundary of a proportionate sentence to be set by the objective circumstances of the offence, which circumstances do not encompass prior convictions.”
The context in which the matter arose in McNaughton was the identification in s 21A(2)(d) of the Sentencing Procedure Act of a “record of previous convictions” as an aggravating factor, and its significance in the light of the direction that the Court is not to have regard to any such aggravating factor “if it will be contrary to any Act or rule of law to do so”: s 21A(4). McNaughton held that it would be contrary to such a rule to take account of an antecedent criminal history in determining the objective seriousness of the offence and thus the upper boundary beyond which a sentence could not properly extend.
McClellan CJ at CL agreed with the Chief Justice but added the following remarks at [63]:
“If the question is asked ‘is it a worse crime to commit an offence having been previously convicted for the same or similar offence’ the general community would probably answer ‘yes’. Although the Crown argued that this was because prior offending informs the mens rea of the instant offence there are difficulties with this argument, including matters of proof. There is force in the argument that it may inform the moral culpability of the offender for the instant offence. However, as Howie J indicated in R v Wickham [2004] NSWCCA 193 and the Chief Justice confirms, that argument was rejected by the High Court in Veen v The Queen (No 2).”
Grove J also agreed with the Chief Justice, adding some further remarks. Barr and Bell JJ, in a joint judgment stated at [81]:
“We agree with the Chief Justice’s reasons for rejecting the Crown’s contention that an offender’s record of previous convictions may be taken into account as part of the objective circumstances of the offence for the purposes of determining the upper boundary of a proportionate sentence.”
This principle requires, in an entirely hypothetical sense, that an offender who commits 10 virtually identical offences of break, enter and steal each of which would allow a sentence within the range from two to three and a half years, would not receive a greater sentence than three and a half years for any offence, but might see the sentences increasing from the bottom end of the range to the higher end of the range as an increasing record is reflected in greater weight being placed on personal deterrence and related criteria. The same analysis would apply in relation to offences committed on parole or other forms of conditional liberty and those not so committed.
This result does not follow as a matter of logic from any underlying principle. To treat a second or subsequent offence as “more serious” than a first or earlier offence does not necessarily involve imposing an additional penalty in respect of the earlier offence. It merely accepts the fact of an earlier offence as relevant to the moral culpability in respect of a later offence and, of itself, warrants a higher sentence. However, to adopt that approach would be inconsistent with the line of authority referred to above. It would be an error within House, on the part of a sentencing judge. The question is whether the sentencing judge in the present case did adopt such an erroneous approach.

Sentence for assault

To answer the question just posed, it is necessary to provide some further background to the offences for which the applicant was sentenced, and then to refer to his Honour’s remarks on sentence.
The first offence in time and that for which he was first sentenced was the assault on Mr Hardy occasioning actual bodily harm.
It is convenient to put to one side the fixed terms of six months imposed for the assault on Mrs Hardy and the malicious damage to the motor vehicle. Each of these sentences commenced on 12 May 2008, as did the sentence occasioning actual bodily harm to Mr Hardy. In practical terms they were entirely absorbed within the non-parole period for the more serious offence and no challenge was raised in respect of those sentences.
The events of 16 May 2005, when the applicant was confronted by Mr Hardy as he was attempting to break into the Hardys’ car, fell within a short compass. The facts do not appear in any detail from the original material provided to the Court. It is sufficient to take the summary of the prosecution case, as set out in the applicant’s submissions, bearing in mind the offence for which the applicant was convicted.
On Sunday 16 October 2005, Mr Hardy and his wife returned to their home after lunching with friends and saw a silver laser hatchback parked in the driveway, facing the street. They got out of their car. Mrs Hardy saw the applicant getting out of the Hardy family’s second vehicle, a Toyota Land Cruiser. Mrs Hardy said, “I don’t know you, you bastard.” The applicant pushed her and swung a screwdriver at her. That constituted the charge of common assault to which the applicant pleaded guilty. At the time, Mrs Hardy was holding her six week old baby and her five year old son was in the vicinity.
Mrs Hardy tried to grab to the applicant, but he said, “Keep back. I’ll stab you.” The applicant tried to get into the Laser, and Mr Hardy grabbed him to prevent him from doing so. The applicant swung the screwdriver at Mr Hardy who received a cut to the palm of his right hand. That constituted the offence for which he was convicted by the jury.
In his sentencing judgment, the trial judge noted at [14]:
“Before turning to matters personal to Mr Hillier, I need to make some observations about the assault occasioning actual bodily harm on 16 October 2005. It was aggravated by three features referred to in s 21A of the Crimes (Sentencing Procedure) Act 1999. One is that it involved the use of a weapon. A second is that it was committed in the presence of a child under eighteen. The third is that it was committed whilst Mr Hillier was on conditional liberty. He was on parole. I find that offence to be in the middle of the range of objective seriousness for these kinds of offences, particularly given the use of the weapon and the presence of a child. It could be a shocking experience for an infant to witness his father being attacked in this way.”
It may be seen that his Honour did not expressly identify the applicant’s criminal record as an aggravating feature in what appeared to be a description of the objective circumstances of the offence. He had earlier referred to the fact that the applicant had “a long criminal record”, with numerous offences of breaking, entering and stealing and that he had received sentences of imprisonment for a number of those offences: at [12]. Although the role played by the criminal record may be unclear, it was not listed as one of the three specific features taken into account by way of aggravation and it was not shown that it was dealt with in contravention of the principles established in McNaughton.
A different conclusion must be reached with respect to the fact that the offence was committed whilst the applicant was on conditional liberty. In Way, at [92] this factor was identified as one to be taken into account in determining the appropriate punishment of the offender, rather than the objective seriousness of the offence. At least by implication, it should not be used to increase the otherwise appropriate range, based on the objective seriousness of the offence. Compared with a criminal record, there is a greater risk of double punishment in respect of breach of parole. That breach may itself be dealt with by an order revoking conditional liberty, with the result that the offender will continue to serve in custody the sentence imposed for the earlier offence.
Accepting that an error has been identified in the sentencing with respect to the assault occasioning actual bodily harm, the next question is whether any other sentence ought to have been imposed.
Once the fact of conditional liberty is removed from this part of the equation, there may be some doubt as to whether the offence was in the middle of range of objective seriousness. Although there was a weapon involved, it was an opportunistic use of a screwdriver which the applicant was carrying for a different (albeit unlawful) purpose. The injury inflicted must be assumed to have been quite minor, there being no medical record or photographs which allowed an assessment of the wound inflicted. In sentencing, the trial judge made no finding as to its seriousness. It must be assumed, in the applicant’s favour, that it was not serious. The presence of the child was undoubtedly a circumstance of aggravation, but no reference was made to where precisely the child was, or what he might have witnessed which could have constituted a shocking experience.
Further, to describe an offence as “in the middle of the range of objective seriousness” does not indicate with precision the range of penalty which might be thought appropriate. In relation to this assault, the maximum penalty was five years imprisonment. Based on a permissible approach to that offence taken in isolation, a sentence in excess of 2 years imprisonment was not warranted.
There was, however, a further factor relevant to the sentence imposed, namely the requirement under s 32 of the Sentencing Procedure Act to take into account another offence of break, enter and steal. That offence was committed on 7 February 2007. It involved entry into a house at Kingswood, by smashing a window. The applicant stole a jewellery box, perfume and other items, including a television: sentencing judgment at [10]. The facts also described a kicking in of the front door and the breaking of a screen mesh door.
His Honour did not quantify the effect of taking that matter into account, nor was he required to do so: see Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146 at [44] (Spigelman CJ). Although taking an offence into account pursuant to s 33 of the Sentencing Procedure Act does not involve sentencing “for” that additional offence, it nevertheless justifies an increase in the sentence otherwise appropriate. Generally speaking, it is inappropriate to take into account an offence of a completely different kind: see Attorney General’s Application, at [51]-[57]. The similarity in the present case was presumably thought to be based on the fact that the assault occurred in the course of an attempted break, enter and steal, although from a motor vehicle. One difficulty in approaching the matter on the basis of a further offence of this kind is that a break, enter and steal carries a maximum penalty of 14 years, compared with the penalty of five years for the assault. Such a disparity increases the difficulty in knowing how the further offence should affect the sentence for the lesser offence.
In the present case, and disregarding the additional matter, it would not have been appropriate to impose a sentence in excess of 2 years imprisonment. Taking the additional matter into account, a sentence of 3 years would have been appropriate. Given the error identified above, and the fact that the sentence, properly considered, appears to be manifestly excessive, this Court should intervene. The sentence warranted in the circumstances was one of 3 years imprisonment with a non-parole period of two years three months. Given that there is to be a further accumulated sentence, it is appropriate to impose a fixed term of 2 years three months.

Sentence for break, enter and steal

The applicant was separately sentenced with respect to breaking and entering, and stealing from, a dwelling house. The offence occurred at Blacktown on 4 January 2007. The back door of the premises had been kicked in, the house ransacked and property to the value of $12,500 stolen. The property included jewellery, a laptop computer, an Austrian passport and three airline tickets.
In respect of that offence, the applicant was identified as a result of a DNA comparison. He pleaded guilty. His Honour noted that the offence involved not merely the ransacking of the house, but the taking of items which would have caused the owner “a great deal of inconvenience and stress”: at [11]. He regarded the ransacking of the premises as an aggravating feature. He noted that that offence also was committed whilst the applicant was on parole.
It is necessary to set out his Honour’s comments in respect of this offence as they appeared in the judgment on sentence:
“15As for the break and enter and steal which occurred on 4 January 2007, that too was committed whilst Mr Hillier was on parole. I do not regard it as being a professional exercise in a way that would aggravate the offence. But I do regard the ransacking of the premises – the contents of the house – as an aggravating feature.
16I do not regard the motivation of financial gain as a factor because that is part of the offence of breaking and entering and stealing. However as I have said, his criminal record is such that there is a very important need to emphasise deterrence.”
His Honour further stated at [24]:
“For the break enter and steal, given his criminal record and the presence of the aggravating factors, I would regard a sentence of seven years as being appropriate. However because he has pleaded guilty to break enter and steal, I propose to reduce that to five years. I regard a non-parole period of three and a half years as appropriate for the break enter and steal offence.”
While it is possible that the reference to the applicant’s criminal record, where it appears in the opening sentence of [24] may be considered as looseness of expression, the context suggests that the criminal record was, inappropriately, taken into account in determining the objective seriousness of the offence.
There remains a question as to how that error affected the sentence imposed. The applicant submitted that commencing with a sentence of seven years, being half the statutory maximum, demonstrated a manifestly excessive outcome. Attention was drawn to three previous decisions of this Court, R v Skornia [2000] NSWCCA 422, R v Garvey [2003] NSWCCA 226; 142 A Crim R 194 and R v Baleisuva [2004] NSWCCA 344. The latter cases involve industrial premises, whereas the first involved a dwelling house. In that matter the applicant was sentenced to four years imprisonment with a non-parole period of two years and was refused leave to appeal. Hulme J (with whom Barr J agreed) described the sentences as “well within the normal range of sentences for offences such as his”: at [12]. On the basis of somewhat different facts, and given the conclusion reached, it is of limited assistance in indicating the upper end of the appropriate range.
The applicant also relied upon statistics prepared by the Judicial Commission which, out of a sample of more than 1,000 offenders (of which 879 received custodial sentences), indicated that only 27 (or 3%) had received a higher head sentence and only eight a higher non-parole period than the applicant.
The Director took issue with the way in which the statistics were presented. It was, he contended, more helpful to have regard to the sentences which were the same or greater than the applicant’s, rather than merely those which were greater. On that basis the relevant figure was 6% of the sentences imposed, rather than 3%, because the applicant’s sentence fell within a category which itself contained 3% of all the sentences. The Director also noted that, on a slightly more sophisticated approach, some 7% received the same or a greater sentence than the applicant. However, on any view, the sentence appears to have been above the 90^th percentile as demonstrated by the available statistics.
The difficulty in applying these statistics is that they record punishment imposed, rather than the potential range of punishment considered to be available. In many, if not most, cases there will be factors which result in the sentence imposed not being at the top of a range. Yet, in the present case the sentencing judge was undoubtedly entitled to impose a sentence at the high end of the range, given the applicant’s recidivism and the need for a significant element of deterrence. Nevertheless, because the sentence is at the top end of the range of sentences actually imposed, it is open to infer that his Honour increased the sentence attracted by the objective seriousness of the offence by relying on the applicant’s criminal record. That inference should be drawn.
In re-sentencing the applicant, it is necessary to make an appropriate allowance for the guilty plea (which was no doubt in part a consequence of the applicant being linked to the crime through DNA testing). It is also appropriate to recognise that personal deterrence requires that the sentence be at the high end of the appropriate range. A sentence of four and a half years is appropriate. Absent special circumstances, a non-parole period of three years, four months should be specified. (If the proportion adopted by the sentencing judge were maintained, the figure would be three years two months. However, departure from the statutory maximum for the balance of the sentence requires justification: Sentencing Procedure Act, s 44(2).)
It is arguable that these adjustments constitute relatively minor changes to the sentencing undertaken below. However that is not a reason for the Court not to intervene once error has been identified in accordance with House v The King at 504-505.
Part of the discourse in this area of jurisprudence involves “strong resistance … against appellate ‘tinkering’ with sentences”: see Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [62] (Kirby J). However, that language has usually been adopted in cases which, like Dinsdale itself, involved appeals by the Director of Public Prosecutions against the inadequacy of a sentence: see, eg, R v Burke [2000] NSWCCA 450 at [27]; Regina v Smith [2001] NSWCCA 152 at [41]; R v Ceissman [2004] NSWCCA 466 at [8]; R v Matthews [2007] NSWCCA 294 at [49]; R v Tortell [2007] NSWCCA 313 at [52]; R v Vera [2008] NSWCCA 33 at [26]; R v AD [2008] NSWCCA 289 at [78]. On occasion, that language has also been adopted in relation to a challenge by an offender seeking to reduce his or her sentence: see, eg, Jones v Regina [2006] NSWCCA 385 at [25]. Whether it is appropriate in such cases may be doubted and should at least be justified, acting as it does, against the interests of liberty of the offender. Jones itself involved a rejection of the alleged specific errors and a final consideration of whether the period of mandatory custody was manifestly excessive because it was an unduly high proportion of the sentence: at [11]. Where a variation (in that case one month) could be described as “tinkering”, it might equally be said that it was not clearly outside a permissible range, in circumstances where no other error had been demonstrated. Alternatively, the result might be achieved by the application of s 6(3) of the Criminal Appeal Act.
In any event, the reduction of a sentence by six months cannot appropriately be characterised as “mere tinkering”, were that test otherwise appropriate. Once that intervention is deemed appropriate, it is necessary to specify a non-parole period in accordance with s 44.

Totality

The sentencing judge directed that the sentence for the assault should commence on 12 May 2008, being the date on which the non-parole period for a number of prior unrelated offences ended. The non-parole period as specified by his Honour ended on 11 May 2011. The sentence for the break, enter and steal at Blacktown was directed to commence on 12 November 2010, being six months before the completion of the non-parole period for the assault. On the sentences fixed by his Honour, the applicant would serve 2.5 years of custody attributable solely to the assault and 3.5 years custody attributable solely to the break, enter and steal sentence, before becoming eligible for parole.
In expressing the matter in these terms, account is taken not only of the overlap between the two non-parole periods, but the fact that the first six months of the non-parole period for the assault was to be served concurrently with the fixed six month terms for the assault on Mrs Hardy and the damage to the car.
Given the fact that the principal offences were entirely separate, a large degree of accumulation was appropriate. The result was to impose a significant minimum custodial sentence upon the applicant by way of personal deterrence. Given the apparent failure of earlier sentences to have that effect on his behaviour, no error was shown in that regard.
If there ever were a legitimate complaint about totality, it will be removed by the re-sentencing exercise. Not only are the non-parole periods in each case reduced, but the period of overlap between the sentences will be maintained. The degree of overlap is thereby marginally increased, and the proportion accumulated marginally reduced.

Special circumstances

Finally, the applicant complains that the primary judge failed to find “special circumstances” so as to warrant a variation in the statutory formula with respect to the non-parole period and the balance of sentence.
Because the balance of the sentence for the assault is wholly encompassed within the non-parole period for the second sentence, the proposed adjustment need only be considered with respect to the second sentence. His Honour imposed a sentence of five years imprisonment with a non-parole period of 3.5 years. The balance of the term was therefore 1.5 years, or 43% of the non-parole period. That constituted a contravention of s 44(2) of the Sentencing Procedure Act, absent a finding of special circumstances. However, the degree of departure is small and is not the subject of a challenge.
Had his Honour found special circumstances, he should have recorded his reasons for that conclusion. It should not be inferred that he intended to make such a finding. Rather, he stated at [21]:
“I regard his prospects of rehabilitation as poor. They are not hopeless, but they are poor. I do not accept that there is evidence of remorse, apart from that which is demonstrated by the pleas of guilty. I do accept that he has poor health.”
There may be circumstances in which the primary facts as found, or the inferences drawn by the sentencing judge from them, indicate a firm basis for making a finding of special circumstances. It is possible that, in such a case, a failure to refer to the possibility of special circumstances may demonstrate error in the sense that the sentencing judge failed to turn his or her mind to the question. Even then, it may be necessary to demonstrate that the applicant sought such a finding. The facts in this case did not give rise to the relevant inference: cf R v Astill (No 2) (1992) 64 A Crim R 289 at 295-296 (Kirby P, dissenting), 300-302 (Sully J), 304 (Lee AJ).
Counsel for the applicant, having accepted that the individual sentences roughly complied with the statutory ratio, then noted that the effective parole eligibility period, as a proportion of the whole sentence period, either including the two primary sentences or those sentences together with unrelated sentences, gave rise to a non-parole period which was either 80% or 83% of the total sentence. That result was challenged as inappropriate.
These submissions were misconceived. First, it is well understood that where sentences are accumulated the balance of the term, as a proportion of the mandatory period of imprisonment, although comprising the statutory ratio of 25% of the final sentence, will constitute a much diminished proportion of the overall period of imprisonment. However, because the ratio imposed by s 44 is calculated by reference to an individual sentence and not to an accumulated term of imprisonment comprising several sentences, that result does not entail legal error: see Director of Public Prosecutions (NSW) v RHB [2008] NSWCCA 236 at [18]. Secondly, a finding of special circumstances is only relevant where the balance of the term of the sentence exceeds one-third of the non-parole period. A smaller proportion does not engage the statutory precondition.
That does not necessarily address all aspects of the exercise. The fact that s 44 operates with respect to a specific sentence, usually the sentence last commencing, where there is a number of sentences, does not mean that the considerations which may give rise to a finding of “special circumstances” are limited to the considerations relevant to that sentence: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704. The relevant considerations sufficient to justify a finding of “special circumstances” may flow from the structure of the several sentences. Nor is it necessary to rely upon statements in Griffiths v The Queen [1989] HCA 39; 167 CLR 372, dealing with quite a different statutory regime, to support that proposition. It is sufficient to note that the “totality principle” may affect the cumulative period of mandatory custody, so as to reduce the non-parole period of the last sentence. The effect of that consideration may be to warrant a lengthier period of eligibility for release on parole.
It is also important to note that the desirability of a longer period on parole does not justify an increase in the otherwise appropriate sentence with respect to the last commencing sentence. As a result, the period of eligibility for parole may constitute a smaller proportion of an aggregate of consecutive sentences than might have been thought appropriate if there had been a single lengthy sentence. The flexibility to achieve longer parole eligibility period than the statutory proportion existed under the Probation and Parole Act 1983 (NSW), s 20A(2), discussed in Griffiths, and is not inconsistent with s 44.
Nevertheless, in the present case the possibility of a finding of special circumstances, consequent upon a consideration of the overall length of the period of mandatory custody, arose equally in relation to the sentences imposed by the trial judge as they do under the proposed re-sentencing.
No error was demonstrated in respect of his Honour’s failure to find “special circumstances” for the purposes of s 44 of the Sentencing Procedure Act. In re-sentencing the applicant, it is therefore appropriate to apply the statutory ratio in relation to the sentence having an effective balance of the term.

Conclusion

The following orders should be made:
(1)Grant leave to appeal with respect to the sentences imposed in the District Court on 5 September 2008 in relation to:
(a) the assault occasioning actual bodily harm, and
(b)the break, enter and steal committed at Blacktown on 4 January 2007.
(2)In respect of each sentence, allow the appeal and re-sentence the applicant as follows:
(a)for the assault occasioning actual bodily harm, taking into account the matter on the Form 1, set –
(i)a non-parole period of two years and three months to commence on 12 May 2008 and expire on 11 August 2010, and
(ii)a balance of the term of the sentence of nine months, commencing on 12 August 2010 and expiring on 11 May 2011;
(b) in respect of the break, enter and steal, set –
(i)a non-parole period of three years and four months commencing on 12 February 2010 and expiring on 11 June 2013, and
(ii)a balance of the term of imprisonment of one year and two months commencing on 12 June 2013 and expiring on 11 August 2014.
The applicant will be eligible for release on parole on 11 June 2013.
RS HULME J: The facts of this matter are set out at some length in the judgment of Basten JA. In short, following his conviction of an offence of assault occasioning actual bodily harm, the Applicant stood to be sentenced for 4 offences. The first in time was malicious damage to Mr Hardy’s vehicle, occasioned during the course of what was obviously an attempt to steal it.
The second was the assault occasioning actual bodily harm to Mr Hardy. The third was the assault on Mrs Hardy. This and the two previously mentioned offences occurred on 16 October 2005.
The fourth was an offence of breaking, entering and stealing committed on 4 January 2007. In sentencing the Applicant in respect of the offence involving Mr Hardy, Cogswell DCJ was asked to take into account a fifth offence, viz the breaking and entering and stealing from another house on 4 February 2007.
The sentences imposed by his Honour were:-
(i)Malicious damage – imprisonment for a fixed term of 6 months commencing on 12 May 2008;
(ii)Assault occasioning actual bodily harm – imprisonment for a period of 4 years, including a non-parole period of 3 years, both periods commencing on 12 May 2008;
(iii)Common assault on Mrs Hardy - imprisonment for a fixed term of 6 months commencing on 12 May 2008;
(iv)Breaking, entering and stealing – imprisonment for a period of 5 years, including a non-parole period of 3 years and 6 months, both periods commencing on 12 November 2010.
The effective sentence thus imposed by Cogswell DCJ was imprisonment for a period of 7½ years, including a non-parole period of 6 years and a period of 1½ years when the Applicant will be eligible for parole. It will be appropriate to say something later about the commencing date of 12 May 2008 chosen by his Honour.
The maximum periods of imprisonment prescribed by Parliament for the Applicant’s offences and the sections of the Crimes Act providing for those penalties are:-
Malicious damage – 5 years – s195(1)
Assault occasioning actual bodily harm – 5 years – s59(1)
Assault on Mrs Hardy – 2 years – s61
Break, enter and steal – 14 years – s112(1)
As Basten JA has pointed out, no criticism was made of the length of the sentences imposed on the first 2 offences or of them being made concurrent with the sentence imposed on the third offence. I confess however that, except possibly on grounds of totality – a topic to which I shall return - I see no basis upon which that concurrency was justified. All offences involved discrete criminality and none was but an incident of another. Furthermore, particularly when regard is had to the Applicant’s record, the inference is inescapable that the first offence was premeditated. The remarks of this Court in, for example, R v Harris [2007] NSWCCA 130; (2007) A Crim R 267 make it clear that such discrete criminality should ordinarily attract additional punishment.
On the other hand, the sentence imposed for the offence of assaulting Mr Hardy was not one that could be justified by the circumstances. Cogswell DCJ observed that that offence:
“was aggravated by three features referred to in s21A of the Crimes (Sentencing Procedure) Act 1999. One is that it involved the use of a weapon. A second is that it was committed in the presence of a child under eighteen. The third is that it was committed whilst Mr Hillier was on conditional liberty. He was on parole. I find that offence to be in the middle of the range of objective seriousness for these kinds of offences, particularly given the use of the weapon and the presence of the child. It could be a shocking experience for an infant to witness its father being attacked in this way.”
However, the offence was unpremeditated. To the extent to which a weapon was involved, it was the opportunistic use of a screwdriver and such material as there is as to the extent of the bodily harm indicates it was at the extreme of the lower end of such harm. There was no evidence before this Court that either of the children in the vicinity – one aged 6 months and the other 5 years – in fact witnessed the assault.
His Honour’s finding that the offence was in the mid-range of objective seriousness seems clearly to have been influenced by the fact that an offender was on conditional liberty at the time and it has been held by this Court that that fact is not relevant to objective seriousness – R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at 187. The relevant circumstances did not justify his Honour’s conclusion that the offence fell within the middle of the range of objective seriousness. The offence merited a prison sentence but was otherwise close to the bottom of the scale.
Of course in fixing a sentence for the offence of assault occasioning actual bodily harm, Cogswell DCJ had also to take into account the offence of breaking, entering and stealing committed on 4 February 2007 though the decision of this Court in Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 means that there were limits as to how this could occur. In that case, at [18] and [42] the Chief Justice said:-
“A number of propositions with respect to the process of taking into account matters on a Form 1 are well established and are uncontroversial. First, the entire point of the process is to impose a longer sentence (or to alter the nature of the sentence) than would have been imposed if the primary offence had stood alone. Secondly, it is wrong to suggest that the additional penalty should be small. Sometimes it will be substantial. …
… Although a court is sentencing for a particular offence, it takes into account the matters for which guilt had been admitted with a view to increasing the penalty… by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community’s entitlement to extract retribution for serious offences when there are other offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. …”
Particularly given the Applicant’s record and the offence committed in January 2007, it is clear that personal deterrence was a factor entitled to substantial weight in the sentencing process although, given the fact that the sentences on the other offences could be expected to also reflect factors of personal deterrence and operate as such, undue weight on this factor had to be avoided.
Retribution was also entitled to substantial weight, a view confirmed by some of the remarks quoted in R v Harris from R v Hayes (1984) 1 NSWLR 740 at 742 and R v Scott [1999] NSWCCA 434.
An appropriate sentence for the assault occasioning actual bodily harm offence, taking account of the offence on 4 February 2007, was 2 years imprisonment. Because I propose that this not be the last of the Applicant’s sentences, I would not divide that period into non-parole and balance of term periods but impose a fixed term of imprisonment of 1½ years.
I turn then to the break, enter and steal offence committed on 4 January 2007. As has been said, the sentence imposed on this offence was imprisonment for a period of 5 years, including a non-parole period of 3 years and 6 months. In arriving at this sentence, Cogswell DCJ commenced with a period of 7 years and reduced it by 2 years on account of the Applicant’s plea of guilty. Some of his Honour’s remarks concerning this offence and the Applicant bear repetition:-
“15.As for the break and enter and steal which occurred on 4 January 2007, that too was committed whilst Mr Hillier was on parole. I do not regard it as being a professional exercise in a way that would aggravate the offence. But I do regard the ransacking of the premises – the contents of the house – as an aggravating feature.
16.I do not regard the motivation of financial gain as a factor because that is part of the offence of breaking and entering and stealing. However, as I have said, his criminal record is such that there is a very important need to emphasise deterrence.
17.There is a pre-sentence report… It noted an extensive history of involvement with the Probation and Parole Service. It says despite his associate with the service he has continued to embark on a lifestyle of drug use and offending behaviour. It notes that his record reflects numerous breaches and revocations of the opportunity to participate in parole supervision.”
18.His education was interrupted, he did not consistently attend school. He has been employed only once for about 4 months. Drug abuse is a significant feature of his personal history. He commenced using cannabis aged 10. He stayed on amphetamines at the age of 13 and moved onto heroin at the age of 14. … he says that the attempt to break into the car which occurred on 16 October 2005 was in order to support his partner’s drug habit.
19.The report notes that he has struggled to cope with changes to society when he is released from custody…
21.I regard his prospects of rehabilitation as poor. They are not hopeless, but they are poor. I do not accept that there is evidence of remorse, apart from that which is demonstrated by the pleas of guilty. I do accept that he has poor health.
24.For the break, enter and steal, given his criminal record and the presence of the aggravating factors, I would regard a sentence of 7 years as being appropriate. However, because he has pleaded guilty to the break, enter and steal, I propose to reduce that to 5 years. I regard a non-parole period of 3 ½ years as appropriate for the break, enter and steal offence.
Counsel for the Applicant submitted that Cogswell DCJ took into account the Applicant’s criminal record in determining the objective seriousness of the offence. I do not agree. Certainly, his Honour did not divide his remarks into some dealing with objective seriousness and others dealing with subjective matters but his Honour’s remarks when dealing with the break enter and steal offence provide no grounds for thinking that he did otherwise than follow the course that sentencing judges for years followed and which was referred to by this Court in R v Way at [93] and [98] and implicitly recognised in [99] as a permissible course in the case of offences not the subject of standard non-parole periods.
Nor am I prepared to infer from the fact that the sentence for this offence is, by comparison with the statistics, a heavy one that Cogswell DCJ regarded the Applicant’s criminal record as relevant to the objective gravity of the offence. There are other equally likely explanations for the result.
Was the sentence imposed for this offence manifestly excessive? There is no doubt that the Applicant’s subjective circumstances argued for a sentence at or very close to the top of any available range. He was born in April 1971 and was thus 37 at the time he was sentenced by Cogswell DCJ. His criminal history was extensive. It included two occasions when the Applicant resisted arrest, two of assault and one of using an offensive weapon to prevent lawful apprehension. The penalties imposed on the first four of these offences were such that they can be disregarded but the penalty imposed on the fifth – imprisonment for 2 years including a non-parole period of 8 months – suggests that offence was by no means trivial and should have provided a warning to the Applicant against any offences of violence.

More significant however is the Applicant’s record for dishonesty. He had been sentenced in the Childrens’ Court on numerous occasions including 9 when he was dealt with for at least 15 offences of dishonesty and in the Local, District or Drug Courts prior to December 2004 on 11 occasions when he was sentenced for 28 offences of dishonesty. These latter included 10 of breaking and entering and stealing or with an intent to steal, 4 of receiving or having goods in custody and 10 involving the theft or illegal use of motor vehicles. The longest individual sentences imposed were of 6 years (including a non-parole period of 3½ years) imposed in March 1989 for armed robbery, and 5½ years (including a non-parole period of 3 ½ years) imposed in April 1999 for aggravated break, enter and steal. He is someone to whom the words of the High Court in Veen v The Queen (No 2) (1988) 164 CLR 465 at 477 are apposite:-
The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted.
Clearly the Applicant is a recidivist, who has chosen or been unable to learn from his past experience with the courts and the punishments imposed on him. However, insofar as any inability is due to his drug addiction – and there is no evidence of any other cause – when account is taken of the number of chances that have been afforded the Applicant to free himself of addiction, I do not regard that as a mitigating factor - see also R v Henry [1999] NSWCCA 111 at [171] et seq; (1999) 46 NSWLR 346 at 381 et seq.
Furthermore, at the time of his offence the Applicant was on parole having been released to that circumstance less than 2 weeks earlier, viz on 23 December 2006. This Court has made clear on numerous occasions that the commission of offences while on conditional liberty is a seriously aggravating circumstance.
Recognition should be afforded to the other factors to which Cogswell DCJ referred although it should also be mentioned that, prior to his acknowledgement of involvement in the breaking, entering and stealing offences, the Applicant had been linked to those offences by DNA comparison and, given the discount known to be available for a plea, it is impossible to regard those pleas as any evidence of remorse – see R v Derbas [2003] NSWCCA 44 at [22]; R v Opa [2004] NSWCCA 464 at [21]; O’Sullivan v R [2006] NSWCCA 368 at [15] – [17]. This Court does not have any evidence of the circumstances that led to the Applicant’s pleas on the other charges and accordingly I am prepared to assume that they provided some evidence favourable to the Applicant on the topic.
It should also be noted that there was nothing to suggest that the Applicant’s poor health would make his time in prison harder.
I find it impossible to avoid the conclusion that very probably the Applicant will continue to prey on the rest of the community for the balance of his life and in the circumstances to which I have referred regard a sentence at or very close to the top of any available range as the sentence that should be imposed.
Of course, it is not permissible to impose a sentence exceeding that which is appropriate for a crime merely to protect society – Veen v The Queen (No 2) at 473. Furthermore, in R v McNaughton [2006] NSWCCA 242 at [15]; (2006) 66 NSWLR 566 at 572 this Court laid down (or reaffirmed) that “a sentence should not exceed what is proportionate to the gravity of the crime, having regard to its objective circumstances.” In that case and in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168, the Court identified factors which did or did not constitute such objective circumstances.
Those that do include “the actus reus, the consequences of the (offending) conduct, and those factors that might properly have been said to have impinged on the mens rea of the offender” – R v Way at [85]; “matters of motivation (for example provocation, robbery to feed a drug addiction), mental state (for example, intention is more serious than recklessness), and mental illness, or intellectual disability, where that is causally related to the commission of the offence, in so far as the offender’s capacity to reason, or to appreciate fully the rightness or wrongness of a particular act, or to exercise powers of control has been affected” – R v Way at [86];
Those that do not include “matters which may be said to explain or influence the conduct of the offender or otherwise impinge on her or his moral culpability, for example, youth or prior sexual abuse” – R v Way at [86]; prior convictions – R v McNaughton at [24], R v Way at [92]; and re-offending while on conditional liberty – R v Way at [92 – 99].
In R v Johnson [2004] NSWCCA 140 at [33] Simpson J with the concurrence of the other members of the Court held that prevalence also had no bearing on the assessment of the objective gravity of an offence.
Attention is, of course, required to the terms of the statutory provision constituting the offence. Section 112 of the Crimes Act, against which the Applicant offended, so far as is presently relevant provides that, unless the offence is committed in defined circumstances of aggravation or special aggravation when an offender is liable to a higher penalty:-
(1) A person who:
(a) breaks and enters any dwelling-house or other building and commits any serious indictable offence therein, or
(b)being in any dwelling-house or other building commits any serious indictable offence therein and breaks out of the dwelling-house or other building,
is guilty of an offence and liable to imprisonment for 14 years.
The reference to “any serious indictable offence”, encompassing as it does any offence that is punishable by life or for a term of 5 years or more – Crimes Act, s4 – means that the 14 years maximum is less than usually useful as an indicator, particularly as stealing - larceny and for which the maximum penalty is 5 years imprisonment - is one of the less serious indictable offences – see R v Ponfield [1999] NSWCCA 435 at [19]; (1999) 48 NSWLR 327. Of course, there are few of the more serious indictable offences that would not amount to or involve circumstances of aggravation or special aggravation, expressions that include corporal violence, the intentional or reckless infliction of actual bodily harm, and deprivation of liberty but there is at least one – demanding property with menaces under s99 – and for which the maximum penalty is, depending on the circumstances, 10 or 14 years that does.
Even when the serious indictable is confined to stealing, there is potential for wide variation in the seriousness of that element. At one extreme, the property stolen may have little value and be easily replaced. At the other, it may be a family heirloom and practically irreplaceable or worth, for example in the case of a bank, millions of dollars. Even in the case of a dwelling house, the value of property stolen may well run into 6 figures.
Of course, there are also the elements of breaking and entering and the nature of the property subject to those actions. The elements of breaking and entering are, in themselves reasonably limited in their ambit of operation although obviously there is scope for variation between, for example, simply pushing wider a door that is ajar, jemmying a door open with some but little damage and substantially damaging it or some other part of the building. The nature of the building is calculated also to vary the seriousness of an offence. Absent some unusual features, entering a garden shed could not be regarded as of itself particularly serious while entering a dwelling house may reasonably be regarded as at or close the other extreme. Particularly combined with a forced breaking, the entering of a dwelling house involves not just an interference with physical property but a violation of a victim’s privacy and security. Remarks quoted or referred to in R v Harris and R v Ponfield make clear that the breaking and entering alone are serious ingredients of the offence.
Such remarks derive support from the terms of s111(1) and s113(1) of the Crimes Act. The first of these renders it an offence punishable by 10 years imprisonment simply to enter a dwelling house with intent to commit a serious indictable offence without in fact committing one. Section 113(1) makes it an offence punishable by 10 years imprisonment to break and enter any dwelling house or other building, again simply with an intent to commit any serious indictable offence.
Against the background of these sorts of considerations, where does the objective seriousness of the Applicant offence place it? Counsel for the Applicant correctly described it as an unremarkable break and enter, save that the value of the property stolen was higher than usual, some $12,610. During daylight hours, the Applicant had kicked in the back door, damaging the doorjamb and lock, ransacked the premises and stolen a variety of items including a laptop computer, 3 airline tickets, an Australian passport, and jewellery.
The fact that the serious offence was (merely) stealing argues against anything like the 14 years maximum. The fact that the value of the property stolen was (merely) some $12,610 leads me to the view that it was relatively low by comparison with a worst case than involved stealing although one should also recognise that there was damage to the door that no doubt cost something to fix. The ransacking of the house should fairly be regarded as further damage although again I would not regard this as high on any relevant scale.
In addition there were the serious elements of breaking and entering with their incidence of violation.
Together, all of these matters lead me to the view that the objective seriousness of the offence justified a sentence of 7 years imprisonment. I have earlier expressed the view that the subjective circumstances of the Applicant and his offending justify a sentence at or very close to the top of any available range and in combination these views lead to the conclusion that Cogswell DCJ’s starting point of 7 years for the sentence on the break, enter and steal charge was not manifestly excessive. It follows that neither was the sentence of 5 years actually imposed for this offence and, although it may be necessary to alter the starting date for this sentence, otherwise the appeal against it should be dismissed.
I should add that in arriving at the figure of 7 years, I have not been influenced by the statistics or the sentences imposed in prior cases. Summaries of some of those are set out in the judgment in R v Harris to which I was a party. Many, if not all of those earlier sentence will, or at least may, have been the product of mixing together subjective and objective factors in a way proscribed by R v McNaughton. Furthermore, particularly against the background of s111(1) and s113(1), one might be permitted to wonder whether in many of those cases enough weight has been given to the elements of breaking and entering.
In the result, the sentences I favour are:-
(i)Malicious damage – imprisonment for a fixed term of 6 months;
(ii)Assault occasioning actual bodily harm – imprisonment for a fixed term of 1½ years;
(iii)Common assault on Mrs Hardy - imprisonment for a fixed term of 6 months;
(iv)Breaking, entering and stealing – the sentence imposed by Cogswell DCJ, viz. imprisonment for a period of 5 years.
The periods listed total 7½ years. However the principal of totality means that the sentences on the 4 offences should not simply be accumulated and on that ground I would reduce the effective sentence on the Applicant to 6½ years. Because Cogswell DCJ made the sentences for malicious damage, the assault on Mrs Hardy and the assault occasioning actual bodily harm to Mr Hardy concurrent and there was no challenge to this during the hearing of the appeal, I would allow that situation to remain although regarding it as effecting sufficient reduction on the grounds of totality from the simple aggregation of all of the sentences. There should be some division of the sentence on the fourth mentioned offence into a non-parole period and balance of term when the Applicant will be eligible for parole. The fact of accumulation of sentences is a special circumstance and I would not interfere Cogswell DCJ’s division of the fourth term into a non-parole period of 3½ years and a balance of term of 1½ years.
The other members of the Court have taken the view that, in determining that the sentence for the breaking, entering and stealing offence should be 5 years, Cogswell DCJ (wrongly) took into account the Applicant’s criminal record in determining the objective seriousness of the offence. Had I taken that view, in the circumstances of this case I would nevertheless not have interfered with the sentence. Having regard to the discretionary nature of sentencing and to the fact that in any particular case there is not merely one but a range of sentences that are proper, I would not take the view that, within the terms of s6(3) of the Criminal Appeal Act 1912, “some other sentence, whether more or less severe is warranted in law and should have been passed”.
I said that I would return to the topic of the commencing date of 12 May 2008 selected by Cogswell DCJ. That was agreed by counsel before his Honour as the first date upon which the Applicant was in custody solely referable to the subject offences. Immediately prior to that date the Applicant had been serving sentences for, inter alia, larceny and taking and driving a conveyance without the consent of the owner, the first of which sentences commenced on 14 February 2007. On 1 March 2007 the Parole Board had revoked the Applicant’s then parole requiring him to serve a balance of parole from 13 February to 30 December 2007. Although the effect of all this is that prior to the expiration of the custodial period I propose, the Applicant will have been in custody for a continuous period of 5 years and 9 months, given the seriousness of his offending and his abuse of parole, I am not disposed to extend the balance of term further than I have indicated.
Before I conclude, I would add this. Particularly as the contrary was not argued, I have thought it appropriate to follow what this Court has said in R v Way and R v McNaughton, and not, for example in In Re Attorney-General’s Application [No 1] under s26 of the Criminal Procedure Act; R v Ponfield and Others [1999] NSWCCA 435; (1999) 48 NSWLR 327 at [48]. The first of these cases was concerned with the expression “objective seriousness” in s54A of the Crimes (Sentencing Procedure) Act, the second with what was said to be the principle that a sentence should not exceed what is proportionate to the gravity of a crime having regard to is “objective circumstances”. Although obviously the similarity in terminology provides an incentive to meld the two concepts, I am by no means sure that that is justified. “Objective seriousness” in the context of s54A may more readily exclude the mental state of the offender than does the expression “objective circumstances” for, as was said in Edington v Fitzmaurice (1885) 29 Ch D 459 at 483, “the state of a man’s mind is as much a fact as the state of his digestion”.
Furthermore, with due deference to the five judges who participated in the decision in R v McNaughton, I find a deal of what said in that case impossible to reconcile with what the majority of the High Court said in Veen v The Queen (No 2) at 477-478: viz:
“… The antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell (1970) AC 642 at p650. The antecedent criminal history is relevant, however, to show whether the instant offences is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner’s claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community’s understanding of what is relevant to the assessment of criminal penalties.”
I, and I suspect most people, would regard an offence as more grave than otherwise if committed pursuant to a continuing attitude of disobedience of the law (rather than an uncharacteristic aberration), or in breach of a grant of conditional liberty or otherwise attendant with a higher degree of moral culpability. Their Honour’s reference to “the community’s understanding of what is relevant to the assessment of criminal penalties” is an indication that those judges thought the same. Furthermore, once the contention that antecedent criminal history was relevant only to a claim for leniency, i.e. reducing or possibly reducing a sentence from what would otherwise be appropriate, was rejected, it follows that that history could be used to increase it from that level, so long as the increase did not result in a sentence disproportionate to the gravity judged by, inter alia, the matters mentioned in the passage, including moral culpability.
The effect of the decision in R v McNaughton is to remove as a factor relevant to the objective circumstances of an offence, and thus the maximum penalty that case permits, part of the moral culpability of an offender. I cannot accept that such a result is correct.
I have recorded that in R v Way, at [85–86] it was said that “those factors that might properly have been said to have impinged on the mens rea of the offender”, “matters of motivation (for example provocation, robbery to feed a drug addiction), mental state (for example, intention is more serious than recklessness), and mental illness, or intellectual disability, where that is causally related to the commission of the offence, in so far as the offender’s capacity to reason, or to appreciate fully the rightness or wrongness of a particular act, or to exercise powers of control has been affected” could be taken into account in assessing objective seriousness but that “matters which may be said to explain or influence the conduct of the offender or otherwise impinge on her or his moral culpability, for example, youth or prior sexual abuse” could not. I have wondered whether, within the former category or by analogy one could include, not convictions or conditional liberty as such, but any “continuing attitude of disobedience” to be inferred from those convictions (or conditional liberty) and the subject offence. However, I have taken the view that to do so would be too much of a refinement in the practical operation of the criminal law to be consistent with R v Way and R v McNaughton.
This appeal provides also yet another illustration of some of the complexities that now bedevil sentencing and impose what might fairly be regarded as an undue burden on scarce resources. The issue of what sentence is merited by an offender’s criminality judged against the specification of an offence and the penalty prescribed for it becomes almost subsumed in a consideration of, if not minutiae, detail. Lengthy checklists, e.g. s21A of the Crimes (Sentencing Procedure) Act, of matters are required to be considered (though not “if it would be contrary to any Act or rule of law to do so”), and any omission to refer to a matter in the checklists that is the subject of some evidence is readily construed as a failure of the sentencing process. Some matters can be taken into account in one way but not another and what are in practice fine distinctions having little to do with criminality e.g. mental illness of intellectual disability on the one hand, youth on the other – see R v Way, at [85-86] - are drawn. Again a mistake (or looseness in expression in a busy sentencing day) commonly leads to sentencing having to be reviewed. Standard non-parole periods, some bearing no sensible relationship with the maximum penalties provided, have to be taken into account.

It is unsurprising that in R v McNaughton, at [16], the Chief Justice queried the possibility of the continuation of instinctive synthesis.
The orders I propose are:-
(i)Confirm the sentences of imprisonment for a fixed term of 6 months commencing on 12 May 2008 imposed by Cogswell DCJ on 5 September 2008 in respect of the offences of malicious damage and assault on Mrs Hardy;
(ii)Allow the appeal in respect of the other sentences imposed by Cogswell DCJ on that day;
(iii)Quash those other sentences and in lieu thereof sentence the Applicant as follows;
(iv)On the charge of assault occasioning actual bodily harm, sentence the Applicant to imprisonment for a fixed term of 18 months commencing on 12 May 2008;
(vi)On the charge of breaking entering and stealing committed on 4 January 2007, sentence the Applicant to imprisonment for a non-parole period of 3 years and 6 months commencing on 12 November 2009 and a balance of term of 1 year and 6 months commencing on 12 May 2013;
(vii)Record as the date upon which it appears to the Court that the Applicant shall first become eligible for parole, 12 May 2013.
JOHNSON J: I have had the advantage of considering the draft judgments of Basten JA and RS Hulme J in this matter. It is not necessary to repeat in this judgment the recital of facts contained in those judgments.
I agree that it is necessary for this Court to resentence the Applicant.
I have determined that the appropriate sentences to be passed upon the Applicant are those proposed by Basten JA. I will briefly express my reasons for joining in those orders.
This was a far from trivial offence of assault occasioning actual bodily harm. The Applicant turned on Mr Hardy using a screwdriver as a weapon and inflicted injury upon him which, fortunately, was not particularly serious. The Applicant was interrupted in the commission of another criminal act, and turned on Mr Hardy when challenged in that activity. Although the degree of actual bodily harm was not great, the circumstances of the offence itself were comparatively serious.
The task of the sentencing Judge on the first count was rendered more difficult by the fact that a break, enter and steal offence was placed on a Form 1, to be taken into account on sentence for the offence of assault occasioning actual bodily harm. Thus, a dishonesty offence with a maximum penalty of 14 years’ imprisonment was to be taken into account when the Applicant was sentenced for an offence of violence carrying a maximum penalty of imprisonment for five years. This was in circumstances where the Applicant had a lengthy history of offences of dishonesty including break, enter and steal offences. Of course, his Honour was bound to take the Form 1 offence into account within the confines of the principles in Attorney General’s Application Under Section 37 of the Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) (2002) 56 NSWLR 146.
This Court has expressed concern with respect to the inappropriate selection of charges to be placed on a Form 1. See, for example, SGJ v R [2008] NSWCCA 258 at [23]-[29], Eedens v R [2009] NSWCCA 254 at [17]-[19] and C-P v R [2009] NSWCCA 291 at [2]-[9]. Paragraph 20 of the Prosecution Guidelines of the Office of the Director of Public Prosecutions (NSW), entitled “Charge Negotiation and Agreement: Agreed Statements of Facts: Form 1”, provides that the decision to place offences on a Form 1 should be based on principle and reason, not administrative convenience or expedience alone. The Guidelines state that, generally speaking, the maximum penalty of offences placed on a Form 1 should be less than the maximum penalty available for the principal offence. It is not clear how the letter and spirit of the Prosecution Guidelines were met by the insertion of a break, enter and steal offence on a Form 1 behind the assault occasioning actual bodily harm offence. It might be thought that a more appropriate location for this matter was on a Form 1 behind the break, enter and steal offence for which the Applicant was also to be sentenced.
In any event, it was necessary for the sentencing Judge to take into account the break, enter and steal offence on the Form 1 when passing sentence for the offence under s.59 Crimes Act 1900. Making all due allowance for the limited use which could be made of the Form 1 offence having regard to the decision in Attorney General’s Application (No. 1 of 2002), it was necessary for the sentence for the s.59 offence to reflect, in a real way, the serious break, enter and steal offence taken into account on the Form 1. In addition, the Applicant had little operating in his favour at the subjective level, having regard to his criminal history and the fact that the offences were committed whilst he was subject to conditional liberty. In my view, the sentence proposed by Basten JA on the s.59 offence, taking into account the matter on the Form 1, is an appropriate sentence.
I agree with Basten JA with respect to the proposed sentence on the second count, the charge of break, enter and steal. The proposed sentence pays due regard to the objective circumstances of the offence and the subjective circumstances of the Applicant.
I agree with Basten JA’s approach to accumulation and concurrency of the sentences. The total effective sentence represents a proper period of incarceration for the totality of the criminality involved: R v AEM [2002] NSWCCA 58 at [70]; R v Knight (2005) 155 A Crim r 252 at 272 [112].
I agree with the orders proposed by Basten JA.
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AMENDMENTS:

15/03/2010 - Typographical error - corrected the word "absent" - Paragraph(s) 8

LAST UPDATED:
15 March 2010