Honeysett v The King

[2023] NSWCCA 138

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Honeysett v R [2023] NSWCCA 138

Hearing dates:

29 May 2023

Decision date:

16 June 2023

Before:

Button J at [1]
Wilson J at [2]
Sweeney J at [94]

Decision:

(1) Leave to appeal is granted;
(2) The appeal is dismissed.

Catchwords:

CRIME – appeal against sentence – multiple property crimes – aggravated break and enter with intent – break enter steal – applicant with lengthy history of property offending – breach of conditional liberty – dysfunctional background – “Bugmy” features – question of manifest excess

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Procedure Act 1986 (NSW)

Inclosed lands Protection Act 1901 (NSW)

Cases Cited:

Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2

Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57

The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39

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

Category:

Principal judgment

Parties:

Terrence Honeysett (Applicant)
Rex (Respondent)

Representation:

Counsel:
P Coady (Applicant)
M Swift (Respondent)

Solicitors:
Aboriginal Legal Service (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2020/367487; 2021/130097

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

16 August 2022

Before:

Judge Baly SC

File Number(s):

2020/367487; 2021/130097

JUDGMENT

1. BUTTON J: I agree with Wilson J.

2. WILSON J: On 16 August 2022 Terrence Dean Honeysett, the applicant, was sentenced in the District Court to an aggregate term of 6 years imprisonment, with a non-parole period (“NPP”) of 3 years for multiple property crimes, all of which had been committed in the Ashmont area in southern New South Wales. He now seeks the leave of this Court to appeal against the sentence imposed, proposing the single ground that it is manifestly excessive.

3. The details of the individual offences, the applicable maximum penalty, and indicative terms are below. The original sequence numbers for each charge have been abbreviated.

Reference	Offence	Indicative Sentence
H704/4	Aggravated Break Enter with Intent to Commit a Serious Indictable Offence (Loth Street) s 113(2) Crimes Act 1900 (NSW) Maximum penalty: 14 years imprisonment	5 years imprisonment
H704/1	Break Enter and Steal (Frances Court) s 112(1)(a) Crimes Act 1900 (NSW) Maximum penalty: 14 years imprisonment	Taken into account on a Form 1 document to H704/4
H704/2	Break Enter and Steal (Grinton Avenue) s 112(1)(a) Crimes Act 1900 (NSW) Maximum penalty: 14 years imprisonment	Taken into account on a Form 1 document to H704/4
H704/3	Attempt Break Enter and Steal (Loth Street; Mr McInerney) s 112(1)(a) Crimes Act 1900 (NSW) Maximum penalty: 14 years imprisonment	Taken into account on a Form 1 document to H704/4
H704/7	Break Enter with Intent to Commit a Serious Indictable Offence (Frances Court; Ms Miller) s 113(1) Crimes Act 1900 (NSW) Maximum penalty: 10 years imprisonment	2 years imprisonment
H704/12	Enter Inclosed Lands (Swan Street) s 4(1)(b) Inclosed lands Protection Act 1901 (NSW) Maximum penalty: Fine of 5 penalty units Before the court pursuant to s 166 Criminal Procedure Act 1986 (NSW)	s 10A Conviction without further penalty
H228/3	Enter Inclosed Lands (Hurd Street) s 4(1)(b) Inclosed lands Protection Act 1901 (NSW) Maximum penalty: Fine of 5 penalty units Before the court pursuant to s 166 Criminal Procedure Act 1986 (NSW)	s 10A Conviction without further penalty
H228/7	Possess Housebreaking Implements (knife) s 114(1)(b) Crimes Act 1900 (NSW) Maximum penalty: 7 years imprisonment	1 year imprisonment
H228/8	Larceny (cigarettes) s 117 Crimes Act 1900 (NSW) Maximum penalty: 5 years imprisonment	6 months imprisonment
H228/9	Larceny (Puma thongs) s 117 Crimes Act 1900 (NSW) Maximum penalty: 5 years imprisonment	6 months imprisonment

The Proceedings in the District Court

4. Having entered pleas of guilty in the Local Court to the principal offences (sequences H704/4, H704/7, H228/7, H228/8 and H228/9) and been committed to the District Court for sentence, the applicant appeared before her Honour Judge Baly SC on 16 August 2022 for sentence hearing. He adhered to the pleas entered before the Magistrate, acknowledged his guilt of the offences to be taken into account when sentence was imposed for the offence sequence H704/4, and entered pleas of guilty to the two offences that were before the sentencing court as related matters pursuant to s 166 of the Criminal Procedure Act1986 (NSW).

The Crown Case

5. The Crown tendered a statement of facts that had been agreed by the applicant. All of the offences before the sentencing court had been committed in the space of two days, on 26 or 27 December 2020; all occurred within an area of Ashmont which was, at the time, where the applicant himself lived.

6. Sequence H704/4, an offence of aggravated break and enter with intent to commit a serious indictable offence, being stealing, occurred in the very early hours of 27 December 2020. The occupier, Ms Wray, had gone to bed the previous evening in her locked house on Loth Street, and was asleep in her bed. Her three year old grandchild, who was staying with her, was asleep beside her. Ms Wray woke in the night due to a light being turned on in an adjacent bedroom. As she lay in bed the applicant entered her bedroom and walked up to her bed. He stood leaning against the bed next to where the sleeping child lay. Ms Wray said that her grandchild was “just there”. She saw the applicant put out his open hands and place his palms against the child’s back. The applicant then walked out of the bedroom.

7. Ms Wray turned on a light. She could see the applicant standing in her kitchen near the refrigerator, with his back to her. She watched him walk through the kitchen and the adjacent laundry, and out through the open back door. He passed through the open side gate to the property, a gate that had previously been shut.

8. How the break to the seal of the property was effected was not specified in the facts. The circumstance of aggravation averred in the charge was the presence of Ms Wray and her grandchild in the house at the time of the commission of the offence.

9. The three offences that were taken into account when sentence was imposed for that crime all occurred in the hours prior to the break in at Ms Wray’s home.

10. At some time shortly before 3:30pm on Boxing Day 2020 the applicant broke into a house at Frances Court, gaining access by cutting through the secured flyscreen of an otherwise open bathroom window. When the occupier, Mr Smith, returned home he found a rear sliding door open and the flyscreen of the bathroom window cut open. A 35cm knife that had been used to cut the flyscreen had been left on the windowsill, as had a cigarette butt from which the applicant’s DNA was recovered.

11. Mr Smith discovered that a cupboard in the lounge room had been opened and a Nintendo Switch and PlayStation 3, together with about 20 games, had been stolen. Cupboards in the kitchen had been searched and a bottle of wine and a quantity of food taken. Other rooms had also been searched and items of jewellery removed. Some of the jewellery had considerable sentimental value, as well as monetary worth. Other items stolen included a backpack, knives, a small sum of money, and a hair comb. Numerous other pieces of property had been moved within the house, or gathered in two suitcases taken from the house, and then moved to the rear courtyard, in readiness for removal. These items – to which the principle of asportation applied – included 3 iPads, a lawn mower, and a whipper snipper.

12. The applicant was recorded by closed circuit surveillance cameras at the front door of the property shortly after 3:30pm, and later carrying items of property away. When the applicant was arrested on 28 December 2020 knives stolen from the property together with some toiletries were recovered. This offence is reflected by sequence H704/1.

13. The second break enter and steal offence that was on the Form 1 document was sequence H704/2. It took place later on 26 December 2020, between 7pm and 10pm, when the applicant broke into a home in Grinton Avenue. Entering through a closed but unlocked door the applicant searched the property and stole an iPad, an opal ring, some scissors, a Bluetooth speaker, and a bottle of shampoo. The house was left in a state of disarray. The speaker and shampoo were in the applicant’s possession when he was arrested.

14. Sequence H704/3, also on the Form 1 document, was an offence of attempt break enter steal, committed at 3:13am on 27 December 2020, at a property in Loth Street that was occupied by Mr McInerney. Closed circuit surveillance cameras recorded the applicant enter the yard of the house and approach a rear sliding door, which he unsuccessfully tried to open. He left when he could not gain access. He went on to Ms Wray’s house, committing the offence reflected by sequence H704/4.

15. After leaving Ms Wray’s home the applicant made his way to a property at Swan Street, where the occupier was a woman and her 6 year old daughter. At about 4:20am the occupier, who had been asleep in the loungeroom with her daughter, awoke to a sound at her front door. Her dogs began to bark. She got up and went towards the front door. She saw the applicant, who was carrying an item similar to pliers in his hand, walk in through the door. She challenged him immediately and, when he did not respond, told him to get off her property. The applicant went back outside and, when the occupier followed him, he began to run down Swan Street and into Loth Street. This offence, entering inclosed lands, was reflected by sequence H704/12, before the sentencing court as a related matter.

16. The next offences were sequences H228/3 and H228/7, offences of entering inclosed lands and possess housebreaking implements respectively. At about 5:33am on 27 December 2020 the applicant was filmed by a closed-circuit security camera entering a property in Hurd Street through a rear gate. He was holding a knife in his hand, the knife being relied upon as the implement capable of housebreaking. The applicant was recorded as he walked up onto the back veranda of the house, and around to the side of the property, testing the lock of a side gate. He went to and looked through a bathroom window and a child’s bedroom window, before crossing back to the rear gate and leaving the property. The occupier discovered the offences later in the morning on noticing that the rear gate, previously wedged closed, was open.

17. Minutes after leaving the Hurd Street property shortly after 5:33am on 27 December 2020 the applicant committed a break and enter with intent to steal, sequence H7404/7. It occurred when the applicant broke into a house at Frances Court, entering the property by the front door. One of the occupants, Ms Miller, was woken by the sound. Moments later she saw her bedroom door opened from the outside and then quickly closed again. After some minutes the bedroom door was again opened, and the applicant walked into the bedroom. Ms Miller saw him enter and, in a panic, woke her partner who was sleeping beside her. On waking, Mr Gilchrist saw the applicant standing in the bedroom with a knife in his hand. The applicant fled.

18. On checking the house Mr Gilchrist and Ms Miller found that the bedroom of Ms Miller’s daughter had been searched, but nothing was taken. Surveillance footage taken at the property showed the applicant walking through the front garden with a knife in his hand. (The knife seems to have been relied upon as a feature of the break, rather than as constituting the feature of being armed.)

19. Later that morning, at about 8 o’clock, the occupier of a property in Tobruk Street saw the applicant standing outside her front fence for some minutes. He then walked in through the front gate, approaching the front door. On reaching the door the applicant stooped to pick up a pair of Puma thongs and, taking them with him, walked off. This act was reflected by sequence H228/9, an offence of larceny.

20. The final offence dealt with by the sentencing court, which may have been committed first in time, was one of larceny, reflected by sequence H228/8. At a time on 26 December 2020 that was not specified by the evidence the applicant was found standing on the rear veranda of a property in Crawford Street. A woman who was at the property visiting her two sisters saw the applicant there, and asked him who he was. He told her, “I’m going” and walked away. A packet of cigarettes that had been on a table on the veranda was found to be missing.

21. Although the statement of facts gave no detail of it, the applicant was arrested on 28 December 2020, in possession of some of the stolen property.

22. Also tendered by the Crown was a copy of the applicant’s criminal history. It was a lengthy document of some 32 pages and contained numerous entries for crimes committed between 1982 and 2020. The first entry against the applicant was for an offence of break enter and steal, dealt with in the Children’s Court in 1982 by way of a recognisance. About 18 months later the applicant was placed on probation by the Children’s Court for another similar offence, breaking and entering with intent to steal. That period of probation was breached by a further such offence, dealt with in the Children’s Court by a further period of probation. That same year, 1985, the applicant was committed to an institution for 12 months for two counts of break enter and steal.

23. Another term of institutionalisation, for 2 years, was imposed in 1986 for an offence of assault and rob, committed when the applicant was subject to his second term of probation. Further periods of detention were ordered by the Children’s Court in 1986 for offences of stealing a motor vehicle, receiving and six counts of break enter and steal. In 1987 another 12 months in an institution was imposed upon the applicant for a further offence of break enter and steal. When he left the institution without leave the applicant was punished for further terms of 12 and 6 months in an institution respectively, for offences of absconding and malicious injury.

24. Minor drug offences in 1987 were penalised in the Local Court, the applicant having reached adulthood, by way of fines.

25. In 1988 the applicant was imprisoned for an offence of break enter and steal, with a term of 3 years imprisonment imposed upon him in the District Court. In that same year he was gaoled or otherwise penalised for offences of assault, offensive behaviour, entering inclosed lands, two counts of larceny, receiving, break and enter with intent, malicious damage, and resisting police.

26. The following year saw the applicant gaoled for an offence of assault occasioning actual bodily harm. In 1990 fines or terms of imprisonment were imposed by the Local Court for offences including two counts each of malicious damage, resisting police, and larceny, and one of using a conveyance unlawfully. A further conviction for larceny was dealt with by way of a recognisance with the supervision of the Probation and Parole Service. A period of parole that the applicant entered in 1990 was revoked.

27. In 1991 gaol terms were imposed for being carried in a conveyance, two counts of break and enter with intent, one of attempt break and enter, and two of break enter and steal. Upon release from custody the applicant was almost immediately back before the Local Court, with convictions recorded in 1993 for offences of larceny (three counts), failing to appear, having goods in custody, malicious damage, assault, assault police, resisting arrest, and entering a dwelling house in the night. Recognisances were imposed for each of those offences. The recognisances were called up later in 1993 and terms of imprisonment imposed in lieu.

28. In 1994 the applicant was fined for entering inclosed lands and gaoled for assault. Further terms of imprisonment were imposed in 1995 for stealing a motor vehicle, and break enter and steal (two counts). An offence of breaking and entering with intent was dealt with by way of a recognisance for nine months. In 1996 another offence of break enter and steal saw the applicant again imprisoned.

29. In September 1997 the Wagga Wagga District Court imposed a term of 28 months imprisonment, with a minimum term of 9 months, for an offence of aggravated indecent assault. Release was made subject to accepting the supervision of the Probation and Parole Service. The applicant breached that parole, and was later (in November 1999) gaoled for larceny and an offence of break enter and commit sexual assault.

30. Also in 1999 the applicant was gaoled for short terms of imprisonment for offences of assault occasioning actual bodily harm, larceny, break enter and commit felony, and assault.

31. A conviction for common assault saw the applicant fined in December 2000.

32. In 2001 the applicant was fined for using a carriage service in an offensive manner, entering prescribed premises, and entering inclosed lands. He was gaoled for assault and break enter and steal. Another offence of entering inclosed lands was before the court in 2003, and dealt with by a fine. Later in 2003 the applicant was fined for entering prescribed premises, and gaoled for indecent assault. In 2005 he was fined for, among other more minor offending, resisting police, and carrying a knife in a public place.

33. A further sexual offence, committing an act of indecency on a person under 16 years, was penalised in 2006 by way of a supervised bond, conditional upon the applicant accepting treatment and counselling for “sex offending”. A term of imprisonment was imposed for an offence of assault, with further terms imposed that year for larceny, and two counts of having goods in custody. As a person placed on the Child Protection Register the applicant failed to comply with reporting conditions in 2006, and was gaoled for 18 months, with a NPP of 6 months. Supervision was again mandated.

34. The following year, 2007, the applicant was again before the court for having goods in custody, being gaoled for 3 months. He was also gaoled for possessing a prohibited drug, and convicted without further penalty for entering inclosed lands.

35. In 2008 the applicant was convicted in the District Court of aggravated break enter and commit serious indictable offence, the circumstance of aggravation being that people were in the premises. A term of 3 years imprisonment was imposed; parole was made subject to accepting supervision, and treatment for drug and alcohol abuse. Two counts of breaking entering and stealing were penalised by short terms of imprisonment in 2009, with a longer sentence imposed in 2011 for two further such offences. Later in 2011 another gaol term was imposed upon the applicant for two offences of break and enter with intent to steal.

36. In 2013 the applicant was gaoled for another failure to comply with reporting obligations as a person on the Child Protection Register. A term of 8 months imprisonment with a NPP of 6 months was imposed. Later that year a further gaol term was imposed for entering a building with intent to commit an indictable offence, with a term of 3 years with a NPP of 2 years fixed. Parole was ordered to be supervised.

37. In June 2016 the District Court at Wagga Wagga imposed a term of imprisonment for 5 years upon the applicant for an offence of break enter and steal, with a NPP of 2 years 6 months fixed. Supervision was directed for the period of parole. At the same time the court imposed shorter terms of 18 months imprisonment for an offence of stalking, and 2 years imprisonment for an offence of break enter with intent to steal.

5. The current offending all occurred when the applicant was subject to the parole directed by Wagga Wagga District Court in June 2016.

6. There were other offences committed during that period of parole, offences of having goods in custody, and breaking entering and stealing, penalised in September 2020 by Community Correction Orders (“CCOs”) for three years, supervised by the Community Corrections Service, and conditional on obeying a curfew between 10pm and 6am each night. Offences of possessing housebreaking implements and entering inclosed lands were taken into account when the sentence for the break enter steal was imposed.

7. Further three year CCOs were imposed in December 2020 for two counts of failing to comply with reporting obligations. These orders were made subject to a requirement to abstain from the use of illicit drugs and alcohol, and to be supervised by the Community Corrections Service.

8. The applicant was in breach of the multiple CCOs he was subject to and - specifically for the offences committed at night - the curfew imposed as part of two of the orders, by the commission of these offences.

9. A Custodial History evidenced the multiple revocations of parole that had been issued against the applicant over the years, when he breached parole. It also noted the multiple institutional offences committed by the applicant when in custody including, in the month before her Honour imposed sentence for these matters, an offence of intimidation.

The Subjective Case

43. The applicant gave evidence before the sentencing court. He said that when he had spoken to Dr Jenna Bollinger, and earlier when he had seen Professor David Greenberg, he had told each the truth about his circumstances.

44. Referring to the history he gave of sexual abuse when institutionalised, the applicant said that he “had a case going” for compensation, with a firm of solicitors acting for him.

45. Observing that the Custody Based Intensive Treatment (“CUBIT”) programme had done some good, the applicant said that he needed psychiatric help to assist him to deal with the sexual abuse that had occurred at home and in detention when he was a child. He said that his childhood had been “straight out of a horror movie” and, feeling lost, he had turned to alcohol. He said that none of the psychologists and other professionals he had spoken to in the past had helped him, and had instead given him “the cold shoulder”. The applicant said that he felt that he was “coming back through the revolving door” and no-one cared enough to help him. He felt that he needed to sit down with somebody and get some things off his chest, as what had happened to him in childhood played “a big part” in his offending history.

46. The applicant said that he had been moved frequently whilst held on remand, and that the many moves had required him to spend extended periods in isolation due to the COVID-19 virus. There had been multiple “lock-ins” during the time he had spent on remand, all due to the pandemic. He felt that the time he had spent in custody since arrest in December 2020 had been worse than previous periods of imprisonment, due to the COVID-19 rules. He had not seen his family, although he had spoken to them on the telephone regularly.

47. When at Nowra he had been able to work for about eight months in the kitchens, and had greatly enjoyed both the work and being fully occupied. He said that he had also been able to paint, creating Aboriginal art that he said had been highly praised by those who had seen it. Describing himself as “a contemporary artist” the applicant said that he had sold some paintings, and wanted in the future to follow up his art and pursue a career in that area. He found painting to be a good way to express himself, and to calm his mind.

48. The applicant described some of the things he had been told or seen in custody connected with the use of drugs by inmates, including an inmate who had killed his mother when drug affected, and who collapsed through drug use in prison, subsequently dying. He said:

“I believe ice is the devil’s concoction and I believe it opens doorways in your head for bad things to happen.”

49. The applicant said that, on release from custody, he wanted to go to a facility like a “half way house” where he could be supervised for a time. He had made inquiries with the Community Restorative Centre, an organisation that assisted institutionalised offenders to adjust to life in the community. He had also made some inquiries through Corrective Services in an attempt to identify a residential drug and alcohol rehabilitation service that would assist him, but found the service unhelpful. Nevertheless, it was his objective to secure admission to a rehabilitative facility.

50. His goals for the future were:

“[…] I just want to do something so I could – maybe volunteer at a soup kitchen or something or do something like that, but my real goal is – in life is to concentrate on my artwork, to do something with cooking, to do something with being a chef, and to do something with being a drug and alcohol counsellor, because I find that when you talk to people about their problems, while you’re helping them, you’re helping yourself too, you know what I mean. It’s like – I don’t want to – I don’t want to do this for – just for myself. I want to do it for other people, too, like, you know what I mean. I don’t want to put myself first at the moment and get my life straightened out before I do, but I really want to help people in my situation to sort of snap out of it.”

51. The applicant tendered a psychological report prepared for use on sentence by Dr Bollinger, a Forensic Psychologist. Dr Bollinger assessed the applicant on 22 June 2022, administering a number of tests to him. The applicant was aged 53 at the time and presented as stable and without evidence of psychosis or other perceptual disturbances.

52. The applicant provided a history of being the youngest of 14 children to his parents. Born with club feet he spent much of his early years in hospital being treated, and with his feet in plaster.

53. The applicant said that he and his family had been the victims of entrenched racism, and he recalled a childhood blighted by segregation. His parents separated when he was three or four years of age, and he recalled witnessing his mother violently attacking his father. After the separation, the applicant moved to live with his mother and siblings, being required to share a bed with his mother and an older sister who he said had sexually abused him. A complaint made contemporaneously to his mother was not believed. An older brother was used by his mother as the disciplinarian, but he frequently went too far and subjected the applicant to severe beatings.

54. The applicant attended a local primary school at Ashmont but moved schools with some frequency as he “got kicked out” of every school he attended for bullying others or fighting. He began skipping school as early as primary school and soon got into trouble. The applicant attended high school until year 8 but was expelled. The applicant viewed his expulsion as racially motivated. Some of the applicant’s education was undertaken in “boys’ homes”, but the applicant said that he was sexually assaulted by an officer of one of the institutions in which he was detained. He learned some “farm skills” but did not complete his education. He has never been employed.

55. The applicant had been involved in some relationships but said each failed when his girlfriend “cheated”. He subjected two of his partners to violence.

56. The applicant began drinking alcohol at about age 10, drinking methylated spirits on occasions when alcohol was not available. He used cannabis from about 11 years of age. At about the time of the preparation of the report the applicant said that he mainly used crystal methamphetamine, usually smoked, but occasionally injected.

57. The applicant reported past diagnoses of diabetes, Bipolar Disorder, Schizophrenia, a personality disorder and Korsakoff’s Syndrome. He recalled multiple suicide attempts over the years, and had been admitted to “mental institutions” on about six occasions. He had undertaken some therapy through CUBIT and felt that he wanted to “open up” about his history.

58. With respect to the offences the applicant said that he was living alone in a house littered with syringes and thought that he would be better off in gaol. He intended to be returned to custody by committing the present crimes. He expressed a wish to get psychiatric help and assistance with rehabilitation.

59. On psychometric testing the applicant returned results that placed him at high risk of both drug and alcohol use in the future, and which pointed to a possible diagnosis of Post Traumatic Stress Disorder (“PTSD”). Dr Bollinger thought that the applicant likely met the criteria for alcohol and drug use disorder and PTSD at the time of the offending. She opined:

“Mr Honeysett’s mental health likely contributed to the offending to a degree. He has been heavily institutionalised, with very short periods of time out of custody throughout his life. He does not have the skills or supports in place to cope with life out of prison particularly as he has limited capacity to structure his life with work or study.”

60. Dr Bollinger also thought that the applicant’s dysfunctional background and upbringing had played a role in both his contemporaneous mental state and the commission of the offences. She observed:

“[…] Mr Honeysett has a long history of various abuse including physical abuse, sexual abuse by at least two individuals and racial prejudice. He also lived in a chaotic home marked by domestic violence for his first years and he may have experienced some neglect, being the youngest in such a large family. Early trauma has been linked to various later mental health issues such as PTSD, depression, substance abuse and suicidality. For example, the Adverse Childhood Experiences study found that children who had four or more adverse childhood experiences were 12 times more likely to be injecting drug users than those who experienced one or none.

[…]

His early development would have led significantly, If not causally, to his mental health difficulties. His mental health is linked to his offending via difficulties accessing executive functioning and poor capacity to cope with difficulty in a non-institutionalised setting.”

61. The applicant’s previous engagement with the CUBIT programme was regarded as a positive feature suggesting some level of insight into the consequences of his traumatic background. However, the applicant, in Dr Bollinger’s opinion, presented “with a very high risk of reoffending” and “multiple risk factors” including a long history of crime, poor social supports, no employment history, and drug and alcohol use problems. He was noted to have “few, if any protective factors”.

62. A psychiatric report from 28 July 2010 was also tendered to the sentencing court. The report, prepared by Professor Greenberg (then) of Justice Health, for the State Parole Authority, was part of the material before the Authority at a Parole Hearing to be held soon after July 2010.

63. The applicant told Professor Greenberg that alcohol and drug use had played a significant role in his criminal history. He reported having been diagnosed with “wet brain” from alcohol related Korsakoff’s Syndrome, as well as schizophrenia and other mental illnesses. He was being treated with anti-psychotic medication in custody, and had been diagnosed with a Schizoaffective Disorder after a period of psychosis, stabilised by the time Professor Greenberg saw the applicant.

64. The applicant told Professor Greenberg that he had used drugs and alcohol from an early age and believed that he was an alcoholic. He had been admitted to three different residential rehabilitation programmes in the past, the most recent [as at 2010] being in 2007, but had always reverted immediately to substance abuse on finishing the programmes.

65. The applicant gave a personal and educational history largely consistent with that given to Dr Bollinger in 2022. He said he had never worked, but had been occupied with Aboriginal art in custody.

66. Professor Greenberg concluded that the applicant had a Schizoaffective Disorder (provisional diagnosis), Polysubstance Abuse and Alcohol Dependence, and an Anti-Social Personality Disorder. The applicant required psychiatric follow-up, counselling for reported “unusual sexual stimuli”, and complete and indefinite abstinence from alcohol and drugs.

The Remarks on Sentence

67. The sentencing judge heard evidence and submissions on sentence and imposed sentence ex tempore. Having set out the offences, maximum penalties, and agreed facts of the offending, her Honour observed that there was:

“[…] nothing remarkable about any of the offences. Each objectively falls well below the mid-range in terms of objective seriousness. This was, as the Crown Prosecutor says, a spree of offending. It was opportunistic, completely unplanned, and short lived.”

68. Her Honour noted that the larcenies were of low value and, setting aside the Loth Street break in (sequence H704/4), which would have occasioned distress to the occupants, the break and enter offences were unremarkable.

69. The applicant’s extensive and lengthy criminal history was regarded as an aggravating feature pursuant to s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999 (NSW), and as referred to in Veen v The Queen (No. 2) (1988) 164 CLR 465; [1988] HCA 14. Her Honour also observed that the applicant was subject to conditional liberty at the time of the offending, a further statutory feature of aggravation: s 21A(2)(j).

70. Her Honour accepted that the applicant is “a very unwell man” whose mental illness made custody particularly onerous. She noted the diagnosis and opinion given by Professor Greenberg in 2010 and concluded that the applicant’s offending was causally connected to his mental illnesses. As a consequence her Honour found that the applicant’s moral culpability for the offences was significantly reduced. For that same reason, the applicant was held not to be a suitable vehicle for the operation of the principle of general deterrence.

71. The sentencing judge went on to set out the circumstances of the applicant’s prejudicial childhood, drawn from both his own evidence and the reports before the court. She regarded the applicant’s alcohol and drug use as directly linked to his dysfunctional upbringing, and all of those features as linked to his institutionalisation. She observed that:

“There is no doubt that full weight must be given to the high level of deprivation and disadvantage that Mr Honeysett experienced growing up. That means that his moral culpability is, again, substantially or significantly reduced for these offences.”

72. Her Honour felt that there was room for optimism about the applicant’s future, because of both his resolve to rehabilitate, and his plans for the coming years. She said:

“To his credit, Mr Honeysett has given some considerable thought to the effect of Ice, in part because of what he has heard whilst he has been incarcerated. He related a number of experiences that he has heard about involving other inmates who have behaved extremely violently, to put it mildly, due to the effects of Ice. Mr Honeysett describes Ice as, “The devil’s concoction”. He is determined to stay free of that very damaging drug. I emphasise the insight that Mr Honeysett has shown in relation to the effects of the drug Ice.

73. Her Honour accepted that the applicant’s love of painting and his success in selling some of his work offered him a different and more favourable future than his past. She accepted that he was “at the cross-roads” and had taken steps to gain the assistance he would need upon release from custody. Some, albeit “thin” evidence of remorse was noted, as was the degree of insight that the applicant had shown with respect to his drug use and need for rehabilitation and counselling. Her Honour concluded:

“Nevertheless, despite all this, there is a high risk of reoffending. The Court must acknowledge the need to protect the community against Mr Honeysett’s repeat offending. That does need to sound in the sentence that is to be imposed.

There is no doubt in this case that a finding of special circumstances is well warranted. I accept that there are signs of optimism in terms of Mr Honeysett’s future. I accept that he does have plans and he has really thought about what he would like to do when he is released, and I repeat how much help he will need towards his goals.”

74. Allowing a 25% discount for the early pleas of guilty, sentence was imposed.

The Application to this Court

75. Conceding that there are no patent errors in the remarks of the sentencing judge, the applicant nevertheless contends that the outcome, as expressed in the indicative sentences, and in the aggregate sentence against which he seeks leave to appeal, is “unreasonably harsh”. He points to the indicative sentences for the larceny offences, submitting that, even for an offender with his criminal background, a sentence of full-time custody was disproportionate to the theft of such low value items as cigarettes and thongs. For the offence committed at Ms Wray’s home, sequence H704/4, whilst the applicant accepts that the facts were “unsettling”, it is submitted that the offence did not involve either violence or the threat of it and the indicative sentence was too high. He contends that the three offences taken into account when sentence was imposed for this offence could not have added in any substantial way to the indicated term of 5 years imprisonment.

76. Describing his subjective case as “most compelling” it is contended by the applicant that there were a combination of features that demanded significant leniency, being his early pleas of guilty, the difficult conditions of custody, the hardship of his childhood years, his mental health issues, the insight he had developed, and his institutionalisation.

77. The applicant argued that a just sentence would see his immediate or near immediate release to parole.

Consideration

78. Importantly, any exercise of reviewing a sentence imposed at first instance to determine a complaint of manifest excess proceeds on the well-understood basis that sentencing is a discretionary process and there is no single correct sentence for any particular offence. This principle was stated in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25; by the High Court at [27]:

“Express legislative provisions apart, neither principle, nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is. The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies” (footnotes omitted).

79. See also Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [46], and Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at [5] per Gleeson CJ, and at [26] per Gummow, Callinan and Heydon JJ.

80. For any offence, after taking into account all relevant features of the objective and subjective cases, and having regard to the applicable principles of sentencing law, there will be a range of sentences that could be properly imposed for that offence. In Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 the High Court gave consideration to what was meant by the phrase “an available range of sentence”, at [24]-[28]. The plurality (French CJ, Hayne, Kiefel, and Bell JJ) said, at [25]-[27]:

“Except where a mandatory sentence is prescribed, a judge fixing the sentence to be imposed on an offender exercises a discretionary judgment. The exercise of discretion is subject to applicable statutory provisions and judge-made law. […]

Reference to an "available range" of sentences derives from the well-known principles in House v The King. The residuary category of error in discretionary judgment identified in House is where the result embodied in the court's order "is unreasonable or plainly unjust" and the appellate court infers "that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance". In the field of sentencing appeals, this kind of error is usually referred to as "manifest excess" or "manifest inadequacy". But this kind of error can also be (and often is) described as the sentence imposed falling outside the range of sentences which could have been imposed if proper principles had been applied. It is, then, common to speak of a sentence as falling outside the available range of sentences.

The conclusion that a sentence passed at first instance should be set aside as manifestly excessive or manifestly inadequate says no more or less than that some "substantial wrong has in fact occurred" in fixing that sentence” (footnotes omitted).

81. To be successful then, a ground of appeal that complains of a manifestly excessive sentence must establish that the sentence imposed was outside the available range of sentence such as to be plainly unjust or unreasonable. Only if the sentence is outside the proper range such that there must have been some misapplication of principle will appellate intervention be warranted: The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 at [28].

82. It is immaterial to establishing such a ground that one or all of the judges comprising the intermediate appellate court might have imposed a lesser sentence at first instance. That is not the test and ignores the important constitutional role of sentencing judges in our system of criminal justice. If that was the test, it would have the effect of rendering this Court a court of opinion, rather than a court of law.

83. Applying the principles of law enunciated in Markarian, Pham and Barbaro & Zirilli to the applicant’s case, I do not accept that the sentence imposed by her Honour was plainly unfair or unjust. To the contrary, her Honour gave full weight to the subjective case, allowing what must have been a substantial reduction in sentence in recognition of the applicant’s tragic personal background and dysfunctional past and, favourably to him, accepting that he had developed both insight into the negative role of drug and alcohol abuse in his life, and a positive plan for the future. Her Honour was even prepared to find that the applicant was remorseful, despite a complete absence of evidence of it, beyond the entries of the pleas of guilty. She made proper allowance for the applicant’s mental illness, and for the difficulties he had faced in custody due to the COVID-19 pandemic, and allowed the maximum available discount to recognise the pleas of guilty.

84. What her Honour could not do was ignore the large number of property offences the applicant had committed, in the context of a long and repetitive history of like offending, in breach of conditional liberty, where the applicant had frequently been in breach of parole and other sentencing orders in the past.

85. Although the applicant’s submissions were apt to suggest that these were minor crimes that did not warrant the indicative sentences announced, that is to overlook the circumstances of their commission, at a time when the applicant was subject to parole and multiple CCOs, and against the further aggravating feature of the applicant’s criminal record.

86. In submitting that the offences were relatively minor the applicant tended to ignore that these were all offences committed in circumstances that were likely to have alarmed, even significantly distressed, the property owners. For the offence involving Ms Wray and her young grandchild, the gravity of the crime was not with respect to property that the applicant might have stolen had he the opportunity; it is the distress and sense of fear and insecurity inevitably occasioned to those whose home was unlawfully entered by a stranger, in the night. In the brief period when the applicant stood by Ms Wray’s bed with his hands on her three year old grandchild, Ms Wray must have been very frightened indeed for his safety, and hers. It is irrelevant that there was no violence or threat of violence in the commission of the offence.

87. After the applicant left, Ms Wray likely remained fearful. Such feelings can be on-going for those who have had the security of their homes breached by a criminal, a feature reflected in the maximum penalty of 14 years for an offence of this nature.

88. It is also not without significance that the indicated sentence of 5 years comprehended not just this offence, but three more crimes of a similar nature, each of which when separately prosecuted carried maximum penalties of 14 years imprisonment. There had to be some increase in the sentence indicated to reflect the offences on the Form 1 document, and there was no reason to expect that the increase should have been small.

89. All of the applicant’s crimes are likely to have caused alarm to those whose homes or lands he entered, or whose property he stole. Even the two counts of larceny were witnessed by a person at each premises where the property was taken, likely leaving an unsettled feeling in those persons. The seriousness of a larceny committed in such circumstances is not determined only by reference to the monetary worth of the property; other features also have relevance. Whilst the applicant complains that a 6 month sentence was completely unjustified, justification can be readily found in the circumstances in which each was committed, the fact that the applicant had only days earlier made a written promise to a court to be of good behaviour when entering a number of CCOs, and his decades long record for the commission of dishonesty offences. The protection of the community had to be a consideration on sentence, having regard to the applicant’s record, and the evidence before the sentencing court as to the high risk he posed of recidivism.

90. Further, any complaint about the sentences indicated for individual offences fails to take note of the high degree of notional concurrency of sentence reflected by the aggregate term imposed, or give due weight to the significant leniency inherent in the variation to the ratio of sentence, with the NPP representing only 50% of the total term.

91. The imposition of any sentence imposed upon an offender must have regard to s 3A of the Crimes (Sentencing Procedure) Act. The sentence imposed upon the applicant allowed generously for his rehabilitation, but it also had to denounce his crimes, make the applicant accountable, and recognise the harm done to those in the community who had suffered at his hands. By allowing such a generous variation to the ratio of sentence, her Honour gave due weight to all of the features referred to in s 3A. With 3 years on parole, her Honour also ensured that the applicant would have the sort of support he needed for an extended period, giving him the best chance of making good on the positive goals he has formed, whilst still protecting the community should the applicant return to criminal conduct.

92. Having considered all of the features of the objective and subjective cases, and noting the applicable sentencing law, I cannot conclude that the sentence imposed upon the applicant was unjust. It was within the available range for crimes such as these committed by a person with the applicant’s subjective case. The broad discretion that reposed in the sentencing judge did not miscarry.

Conclusion

93. For these reasons, the orders I propose are:

1. Leave to appeal is granted;

2. The appeal is dismissed.

94. SWEENEY J: I agree with Wilson J.

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Decision last updated: 16 June 2023