Josefski v R

[2010] NSWCCA 41

New South Wales
Court of Criminal Appeal

CITATION:	Josefski, Shane Stewart v R [2010] NSWCCA 41
HEARING DATE(S):	16/02/2010
JUDGMENT DATE:	8 March 2010
JUDGMENT OF:	James J at 1; Howie J at 6; Davies J at 68
DECISION:	Leave to appeal is granted but the appeal is dismissed.
CATCHWORDS:	CRIMINAL LAW - Sentence - whether offender punishable for unforeseen results of offence - whether sentence manifestly excessive - whether Court should interfere to correct disparity
LEGISLATION CITED:	Crimes Act 1900 - s 112(2) Crimes (Sentencing Procedure) Act 1999 - ss 3A, 3A(g), 21A(2)(g), 21A(4) Sentencing Act (NT)
CATEGORY:	Principal judgment
CASES CITED:	R v Wickham [2004] NSWCCA 193 Clarke v R [2009] NSWCCA 13 R v Agius [2000] 115 A Crim R 387 DPP v Arvanitidis [2008] VSCA 189 Lambie v State of Tasmania [2007] TASSC 10 R v Boyd [1975] VR 168 Wise v The Queen [1965] Tas SR 196 Inkson v R (1996) 6 Tas R 1 R v Agius [2000] SASC 258; 115 A Crim R 387 Staats v The Queen (1998) 123 NTR 16; 101 A Crim R 461 R v Berg [2004] NSWCCA 300; 92004} 41 MVR 399 R v Previtera (1997) 94 A Crim R 76 R v Tzanis [2005] NSWCCA 274 R v MA [2004] NSWCCA 92; 145 A Crim R 434 R v MMK [2006] NSWCCA 272; 164 A Crim R 481 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 R v Youkhana [2004] NSWCCA 412 R v Solomon [2005] NSWCCA 158 R v henry [1999] NSWCCA 107; (1999) 46 NSWLR 346 R v Borkowski [2008] NSWCCA 102
PARTIES:	Shane Stewart JOSEFSKI v REGINA
FILE NUMBER(S):	CCA 2008/11887
COUNSEL:	P Leask - Crown R Burgess - Applicant
SOLICITORS:	S Kavanagh - Crown S O'Connor - Applicant
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2008/11887
LOWER COURT JUDICIAL OFFICER:	Ellis DCJ
LOWER COURT DATE OF DECISION:	28/10/2008

2008/11887

JAMES J
HOWIE J
DAVIES J

MONDAY 8 MARCH 2010

Shane Stewart JOSEFSKI v REGINA

Judgment

1 JAMES J:

I agree with Howie J that, for the reasons given by his Honour, leave to appeal should be granted but the appeal against sentence should be dismissed.

2 As regards the sentence for the offence of breaking entering and stealing, I consider, as does Howie J, that both the emotional harm suffered by Ms Wickham and the presence of her child in the premises were reasonably foreseeable by the applicant. The suffering of emotional harm by a victim of the offence of breaking entering and stealing is not, of course, an element of the offence.

3 Accordingly, as Howie J says in his judgment, it is unnecessary for the determination of this application to decide the correctness of his Honour’s statement in par 25 of his judgment in R v Wickham [2004] NSWCCA 193, that there is a common law rule that the only consequences of an offence to which a sentencing court can have regard are consequences that were intended or could reasonably have been foreseen by the offender. His Honour’s statement was accepted, without discussion, by Kirby J, with whose judgment the other members of the Court agreed, in Clarke v R [2009] NSWCCA 13 at [14] (subject to a qualification which, for present purposes, is irrelevant.

4 I agree with Howie J’s guarded conclusion that it seems that the statement made by his Honour in Wickham should still be taken as representing the common law, particularly having regard to the decision of the Supreme Court of South Australia Court of Criminal Appeal in R v Agius [2000] 115 A Crim R 387 especially at 405 per Gray J; the decision of the Supreme Court of Victoria - Court of Appeal in DPP v Arvanitidis [2008] VSCA 189 at [52] per Redlich JA; and the decision of the Supreme Court of Tasmania – Appellate in Lambie v State of Tasmania [2007] TASSC 10 at [25] to [29] per Underwood CJ.

5 I comment that it is curious that the decision of the Full Court of the Supreme Court of Victoria in R v Boyd [1975] VR 168, which has been relied on in subsequent cases, would appear to have been based, at least in part, on a misreading of parts of the judgments of Crisp J and Neasey J in Wise v The Queen [1965] Tas SR 196.

6 HOWIE J: The applicant was sentenced at Coffs Harbour District Court for two offences by Ellis DCJ (the Judge). The applicant had pleaded guilty in the Local Court to a charge of aggravated break enter and steal contrary to s 112(2) of the Crimes Act and one charge of robbery in company contrary to s 97 of that Act. The first charge took place on 19 February 2008 and the second on 3 March 2008. The break and enter offence carried a maximum penalty of imprisonment for 20 years and a standard non-parole period of 5 years was prescribed. The robbery offence carried a maximum penalty of imprisonment for 20 years. The applicant also asked the Judge to take into account three matters on a Form 1. They all occurred on 14 January 2008.

7 For the break and enter offence and taking into account the matters on the Form 1 the applicant was sentenced to a term of imprisonment made up of a non-parole period of 2 years 6 months with a balance of term of 2 years. That sentence commenced on 28 August 2009. For the robbery offence the applicant was sentenced to a term of imprisonment made up of a non-parole period of 2 years with a balance of term of 1 year 8 months. That sentence commenced from 28 August 2008. The total effective sentence was 5 years 6 months with an overall non-parole period of 3 years 6 months.

8 In fixing these sentences the Judge awarded the applicant the benefit of a discount of 40 per cent for the utilitarian value of his plea and assistance.

9 There are three grounds of appeal. The first contends that his Honour erred in finding matters of aggravation in respect of each of the offences. The second ground complains of disparity with a sentence imposed upon a co-offender to the break and enter offence. The third asserts that the sentences are manifestly excessive.

Facts

10 The facts can be briefly stated. The break enter and steal offence occurred on 19 February 2008 on domestic premises in Casino where Jason Cooke, his partner Ms Wickham and their 19 month old daughter resided. Mr Cooke became aware of the presence of two persons in the yard of the premises. He recognised the applicant but not the other man, who was a co-offender named Laycock. The two men walked to the front of the house, and Laycock used a sledgehammer to smash in the front door. Mr Cooke told Ms Wickham to contact police and then fled the house to the premises of an acquaintance. Ms Wickham rang the police and then ran to the front room to secure her child. She yelled, "Get away from the door cause my baby is in here". She heard an older male voice say, "Get a gun in her mouth and shoot her and shoot the kid in the head". Ms Wickham ran to the back door with her daughter and hid. She heard the men enter the house and heard a different and younger voice say, “I know you are in here. We have a scanner so don't bother ringing the cops. Tell him not to run or we will shoot him in the back". At the sound of police sirens the two men left the house and drove away in a waiting vehicle.

11 After his arrest on 4 March 2008 the applicant was interviewed and said that the offence had been organised by an acquaintance of his named Scott who knew Mr Cooke as a supplier of cannabis. He said that they went to the premises to steal drugs. Mr Cooke alleged that money had been taken as well as two mobile phones and some food. About $400 worth of damage was done to the front door.

12 The robbery occurred in the evening of 3 March 2008 at a Chinese restaurant in Urunga. The owner of the restaurant, his wife and their two children were present cleaning the premises after the day’s trading. There were no patrons and the front door was closed but not locked. The applicant and an accomplice asked one of the children if the restaurant was open. After being told it was closed, the two men entered the restaurant and demanded money. The co-offender searched the drawer of the cash register that was open and took some cash. The applicant did likewise. As they were leaving, the accomplice picked up a laptop but the owner of the premises was able to retrieve it. The accomplice dropped some of the money and the applicant helped him to pick it up before they ran away. About $150 was taken from the restaurant and $15 was recovered from the footpath. When he was arrested the applicant admitted this offence.

Subjective factors

13 The applicant was aged 34 at the time of the offences. He was born in Queensland and was the youngest of four siblings. His parents separated when the applicant was aged 12 and he remained alone with his father who, it is said, was a violent alcoholic. After about 12 months he left to live with an elder sister with whom he resided off and on for a number of years. He left school in year 10. He has a criminal record dating from 1990 for offences of dishonesty, driving matters and what might be described as “street offences”. He has been sentenced to terms of imprisonment usually in the Local Court. He also has offences in Queensland. The Judge found that his record was an aggravating factor and there has been no challenge to that finding.

14 There was a psychological report in evidence. The applicant said he commenced drinking alcohol in his early teens and by the age of 17 was drinking daily. At about this age, when he was working on a property in Victoria, he was required to clean out a wheat silo, but slipped and fell into it. He was trapped there for seven days until he was discovered. When he was aged 22 he was working on the Gold Coast when his right foot was severed. It was surgically attached after many operations. The applicant maintained that when he was released from hospital he was dependent upon morphine and later developed a heroin addiction.

15 The applicant had been in a relationship for the past six years and from which two children were born. The applicant's partner has two children from a previous relationship. She suffers from pulmonary lung disease. The applicant had been on a methadone maintenance programme for the past two years but considered that alcohol was his main problem. He told the psychiatrist that at the time of the offending he was consuming alcohol, using amphetamines and taking an anti-anxiety medication. He claimed to have been under the influence of alcohol and drugs at the time of the offences.

16 The psychologist placed him in the category of high to moderate risk of reoffending. She believed that the drugs that the applicant had consumed would have had a significant effect on his cognitive and social behavioural functioning. She believed that the applicant could benefit from counselling and psychotherapy.

Ground 1 – aggravating factors

17 In respect of the break and enter offence the complaint is that his Honour erred in taking into account as aggravating factors that the emotional harm to Ms Wickham was substantial and that the offence was committed in the presence of a child under the age of 18 years.

18 As to the first of those matters it was noted that the Crown did not rely upon, as a matter of aggravation, that the applicant knew that persons were in the premises. The applicant gave evidence before the Judge that he did not know Mr Cooke and knew nothing about his domestic arrangements. There was some questioning as to whether he said, or heard the threats made to the woman in the house. His Honour found that they were said by Laycock, despite the different description given of the two voices.

19 Although the Crown did not charge the applicant with knowing that a person was in the house, it did not mean that the Judge could not take that factor into account. The Crown need only allege one aggravating factor, which in this case was that the offence was committed in company. Section 105A of the Crimes Act that sets out the aggravating factors that apply to a s 112 offence states the following in relation to the aggravating factor that the offender knew that a person or persons were in the premises.

(2A) For the purposes of paragraph (f) of the definition of “ circumstances of aggravation ”, if there was a person, or there were persons, in the place in relation to which an offence is alleged to have been committed at the time it was committed, the defendant is presumed to have known that fact unless the defendant satisfies the court that he or she had reasonable grounds for believing that there was no one in the place.

20 The Judge made no finding as to whether the applicant had reasonable grounds for believing that there was no one in the premises. I would have thought that the real position was that the applicant did not know whether or not there was any person in the premises. No action was taken to find out whether there was any person present before the door was smashed in.

21 But the issue is whether the offence should have been aggravated by the emotional harm suffered by Ms Wickham. The applicant relies upon the following passage from the decision of this Court in R v Wickham [2004] NSWCCA 193 at [25] in relation to s 21A(4) of the Crimes (Sentencing Procedure) Act 1999 (underlining added):

24 This provision can operate in one of two ways. Firstly, it can impose a limitation on the use to be made of a particular factor not otherwise apparent in the provisions of s 21A(2) or (3). For example, s 21A(2)(d) provides that an aggravating feature is that
the offender has a record of previous convictions. On its face that provision would indicate that a prior criminal record is a matter of aggravation by making the offence more serious. Yet the common law rule is that a prior record does not have the effect of aggravating an offence but it may either deprive the offender of leniency or indicate that more weight is to be given to retribution, personal deterrence and the protection of the community: R v Shankley [2003] NSWCCA 253 at [31]. It has been held that s 21A(2)(d) should be read according to that common law principle: R v Johnson [2004] NSWCCA 76.

25 Similarly the aggravating factor in s 21A(2)(g): The injury, emotional harm, loss or damage caused by the offence was substantial would be limited by the rule that the effect upon persons of the death of the victim is not an aggravating feature of an offence such as murder: R v Previtera (1997) 94 A Crim R 76. It would also be limited by the common law rule that the court is only to have regard to the consequences of an offence that were intended or could reasonably have been foreseen: Wise v R [1965] Tas SR 196; R v Boyd [1975] VR 168.

22 The submission is that unless the applicant could reasonably have foreseen the harm occasioned to Ms Wickham he should not have been sentenced taking it into account.

23 Since writing that passage in Wickham I have become aware that there is some controversy as to whether the underlined statement is a correct principle of the common law. This matter was raised with counsel on the hearing of the appeal and they were given the opportunity of making further submissions in writing after the Court reserved its decision. Both parties took that opportunity although the Crown submissions were late and not in accordance with the leave given by the Court.

24 In Inkson v R (1996) 6 Tas R 1 the Court of Criminal Appeal of Tasmania considered the correctness of Boyd insofar as one of the principles enunciated in that case by Gowans J was said to have been derived from Wise. The particular proposition from Boyd was as follows:

(5) If the consequences of the prisoner's acts were not such as would reasonably have been foreseen by him, then such consequences ought not to be used against him; but if they ought to have been foreseen by him they are relevant circumstances; the consequences, however, should not be allowed to take over from all other considerations. (I refer to what was said by Crisp J in Wise v R supra)."

25 Underwood J stated at 11:

I do not understand either Crisp J or Neasey J to be expressing the view espoused by Gowans J in Boyd, that a consequence of a criminal act that was neither foreseen nor reasonably foreseeable is to be ignored. It is worth setting out part of Dr Goodhart's note in 80 LQR 18 with respect to the relevance of consequences in the sentencing process. At 19, Dr Goodhart referred to a dangerous driving case in which a man killed a motor cyclist, and quoted the sentencing judge who said, "it would be quite wrong for the court to measure a man's culpability by the amount of damage he did." Dr Goodhart commented:

"This is a view on which there seems to be a division of judicial opinion. From the stand point of strict morality it is correct to say that a man's moral guilt must be measured by the degree of his negligence and not by the consequences of his act. It is less certain, however, whether this moral measurement should be applied to legal punishment, because other considerations may be of importance. There is, of course, the feelings of those who have suffered from the accident ... Such feelings may be nothing more than thwarted desire for retribution, which undoubtedly is reprehensible, but on the other hand they may represent the ordinary man's conception of justice which is a necessary factor in establishing respect for the law. Of greater importance, however, is the deterrent effect of punishment which has been said to be the primary justification for the criminal law."


I understand Dr Goodhart's view to be that there is a good argument for the proposition that the consequences of a crime are relevant to the issue of deterrence and, I would add, retribution.

In R v Holness and Banks 39/1970, Burbury CJ referred to Dr Goodhart's article and the judgment of Crisp J in Wise (supra). His Honour held that the consequences are relevant but, of course, possess no priority over other considerations in the sentencing process. In R v Bayley 77/1972, Burbury CJ said that the law does take into account the consequences in determining the appropriate punishment. It is, of course, fair to observe that both Holness and Banks and Bayley were cases of manslaughter in which death was an ingredient in the crime. In Hardy v R CCA 8/1980, the applicant sought leave to appeal against sentences passed upon conviction for stealing and obtaining goods by a false pretence. At 1 of his reasons for judgment the Chief Justice said:

"The consequences of a criminal act may properly be taken into account in considering sentence, notwithstanding that those consequences may be fortuitous and notwithstanding that they may not have any direct correspondence to the extent of the moral turpitude of the accused's act." His Honour referred to Wise as authority for that proposition. In R v Bennett CCA 17/1990, I observed, "it was appropriate to take into account the consequences of the applicant's criminal conduct" and Crawford J said, "it was proper to take into account the actual consequences which flowed from the criminal act to the respondent."

It seems to me, with respect to those who might hold a different view, that principle (5) expressed by Gowans J in Boyd (supra) and set out above, has not been the law in Tasmania.

26 His Honour went on:

The position in South Australia is not entirely clear. In Feldman v Samuels [1956] SASR 55 Napier CJ held that a consequence was relevant in the sentencing process but went on to say at 57 that a fortuitous event "something unintended and unforeseeable" was something that ought to be ignored. In R v Teremoana (1990) 54 SASR 30, Cox J said at 38: "The harm that a crime causes the victim will usually be a relevant factor in sentencing the defendant, certainly where the harm was intended and sometimes where it was not, provided, of course that to take it into account would not amount to punishing the defendant for some other serious crime. So far as unintended or unforseen consequences are concerned, it is not possible, I think to generalise. If a defendant foresaw that his criminal act would probably cause injury to another, obviously that circumstance might be taken into account when imposing sentence, even though he did not actually intend to cause the injury. What of the consequence - physical harm, say, or fear - that was not foreseen? That will depend on the particular circumstances."

His Honour then went on to refer to a number of cases, most of which I have referred to above, and left unresolved the question of taking into account consequences that were neither foreseen nor ought to have been foreseen.

R v Webb [1971] VR 147 was referred to by Gowans J in Boyd. This was a case of an appeal against a sentence for rape. One of the grounds of appeal was that error occurred in imposing sentence in that the sentencing judge took into account the fact that a child was conceived as a result of the intercourse between the applicant and the complainant. Winneke CJ, delivering the judgment of the court, said at 150-151: "It is always open to a judge to have regard to the fact that no evil effect resulted from the crime to the victim. That is a common occurrence and a fact properly taken into account. [I interpolate that this is so regardless of whether that was entirely fortuitous] But conversely, a learned judge is equally entitled, in our view, to have regard to any detrimental, prejudicial, or deleterious effect that may have been produced on the victim by the commission of the crime." Boyd was referred to in McCormack and Ors v R (1980) 2 A Crim R 405. The judgment of the Court of Criminal Appeal in Victoria was delivered by Young CJ. At 409 the learned Chief Justice referred to Wise and Boyd and held that in the case under consideration the relevant consequence was foreseeable and thus was an aggravating feature in the sentencing process. I have been unable to find a subsequent case in Victoria in which the court has directly dealt with the relevance of a consequence that was neither foreseen nor foreseeable.

This overlong excursion into this issue leads me to conclude that in Tasmania at least, it has long been held that the consequences of a criminal act are relevant in the sentencing process regardless of whether they were foreseen or ought to have been foreseen. They are relevant to the issue of deterrence and denunciation. However, what weight such consequences have in the sentencing process will depend on the facts of each case. Obviously, an unforeseen consequence will have less weight than a foreseen consequence and, a consequence that was neither foreseen nor ought to have been foreseen, will have even less weight.

27 Crawford J stated at 23 -24:

On the hearing of the appeal it was suggested that the sentencing judge was entitled to have regard to Mr Stephens' death being a consequence of the applicant's crime. With respect to counsel I find the suggestion offensive to principles of fairness and justice and one which ought be attractive only to unreasoning emotion. On the evidence the assault by Sutton caused Mr Stephens' death. It was not open on the evidence to find that the violence administered earlier in the evening by the applicant caused death. If the contrary was the case he would have been convicted of murder or manslaughter and sentenced accordingly. He was not to be sentenced for a crime more serious than that of which he was convicted. Lovegrove v R [1961] Tas SR 106 at 107; R v Causby (supra) at 65; R v De Simoni (1981) 147 CLR 383. He was not to be sentenced because he was suspected of having committed a murder or a manslaughter, for that would offend the same principle, nor was he to be sentenced for almost committing a murder or a manslaughter.

Subject to those considerations it is undoubtedly a correct statement of principle that the actual consequences of conduct constituting a crime may be taken into account (although, as will be seen, the validity of that statement must not be regarded without exception). It was so stated in Wise v R [1965] Tas SR 196 at 202 and 209. In Hardy v R 8/1980 at 1, Green CJ included even fortuitous circumstances: '... the consequences of a criminal act may properly be taken into account in considering sentence, notwithstanding that those consequences may be fortuitous and notwithstanding that they may not have any direct correspondence to the extent of the moral turpitude of the accused's act - see Wise v R [1965] Tas SR 196."

A contrary view, also based on Wise v R, was expressed by Gowans J in R v Boyd [1975] VR 168 at 179: "If the consequences of the prisoner's acts are not such as would reasonably have been foreseen by him, then such consequences ought not to be used against him; but if they ought to have been foreseen by him they are relevant circumstances; the consequences, however, should not be allowed to take over from all other considerations. (I refer to what was said by Crisp, J, in Wise v R, supra.)" There was nothing in Wise v R to support either of the conclusions of Green CJ and Gowans J with regard to fortuitous consequences, but the view of Gowans J was shared by Napier CJ in Feldman v Samuels [1956] SASR 55 at 57 who said that "if I could regard it as a fortuitous event-something unintended and unforeseeable - then I should think that it ought to be ignored". In R v Teremoana (1990) 54 SASR 30, Cox J, with whom Jacobs J agreed, thought that foreseeable harm would normally be taken into account but he refrained from expressing an opinion as to consequences not foreseen nor reasonably foreseeable. I conclude that there is no satisfactory line of authority on the point in question.

Whether the test of a consequence which is foreseen or which is reasonably foreseeable is the correct one may, I think, be safely left for determination in another case on another day.

28 Zeeman J referred to Boyd with approval as follows at 32:

Of more particular relevance are the following principles: 1 In assessing an appropriate sentence, a sentencer may not have regard to the possibility that the offender may have committed a more serious crime (R v King (1925) 25 SR (NSW) 218 at 222; R v Boyd [1975] VR 168 at 172; R v McCormack [1981] VR 104 at 108). 2 Whilst the consequences of a crime are relevant, only those consequences as should reasonably have been foreseen by the offender may be taken into account (R v Boyd (supra) at 172).

Provided that the principles laid down in R v De Simoni (supra) are not offended, the results of criminal conduct may be taken into account (R v Wise [1965] Tas SR 196 at 202, 309).

29 In R v Agius [2000] SASC 258; 115 A Crim R 387 Olssen J stated:

[29] There is an undeniable weight of authority to the effect that, where, as here, the commission of an offence produces an outcome which is totally unforeseen and was unforeseeable by a reasonable person, then, at common law, such outcome is not relevant for sentencing purposes, other than as general historical background and as evidencing the infliction of some degree of harm to the victim. It should otherwise not be accorded undue weight in the sentencing process. (See Feldman v Samuels (1956) SASR 55 at 57, The Queen v Mayne (1987) 137 LSJS 100 at 101, R v Boyd (1975) VR 168 at 172. Cf R v McCormack & Ors (1981) VR 104 at 108 and R v Teremoana (1989-90) 54 SASR 30 at 39 ("Teremoana").)

[30] This is particularly so in cases in which an accused might have been convicted of a more serious offence reflecting the actual physical outcome; and was not. The conduct of the Crown in accepting a plea to a lesser offence and the concessions implicit in that acceptance must be given due significance (The Queen v De Simoni (1980-1981) 147 CLR 383 at 392, R v Overall (1993-1994) 71 A Crim R 170 at 179).

[31] It is not to be forgotten that the respondent was originally charged with the offence of unlawfully and maliciously causing grievous bodily harm with intent to resist or prevent lawful apprehension. That charge was, quite realistically, not proceeded with by the Crown, because there would have been obvious difficulty in proving the requisite malice or intent. A point made in the above authorities is, in effect, that an offender cannot, by an indirect means, be dealt with as if he or she had been convicted of a more serious offence. Moreover, the concession implicit in the acceptance of the plea to the lesser offence must, in the circumstances, have been taken to be that the infliction of grievous bodily harm was not an issue by way of aggravation (cf R v Overall (supra)).

30 His Honour later went on:

[36] During the course of submissions in this matter a good deal of discussion focused on the issue, which Cox J specifically left open in Teremoana at 38-39, as to the extent to which evidence of consequences of offending conduct which would not have been foreseen by any reasonable person at the time is relevant.

[37] For myself, I do not find the authorities bearing on causation, which are applicable to considerations of criminal liability, decisive for present purposes. (See, for example, Royall v The Queen (1991) 172 CLR 378 at 448-451.)

[38] As Cox J pointed out in Teremoana at 39, once criminal liability is established, then due regard must be paid to the specific provisions of s10(d) and s10(e) of the Criminal Law (Sentencing) Act. These require the sentencing judge to "have regard to" both "the personal circumstances of any victim of the offence" and also "any injury, loss or damage resulting from the offence."

31 His Honour then went on to consider particular provisions of the relevant legislation in South Australia that require a sentencing judge to have regard to the “practical consequences of an offender’s action upon a victim”.

32 Grey J, with whom Wicks J agreed, stated (footnotes not reproduced):

[98] The issue of causation is complex. Judicial opinion has often been divided. The issue may arise when the Court considers both guilt and penalty. Should there be a different approach to causation or a different test imposed?

[99] It is said that to punish for something not reasonably foreseeable would be unjust as it would offend the concepts of justice and fairness. Unless a statute were to expressly provide, offenders should not be criminally responsible for true fortuities.

[100] Alternatively, it has been contended that those who engage in crime must accept the consequences, foreseeable or unforeseeable. The principles of general deterrence therefore justify punishment for unforeseeable consequences. These two views are diametrically opposed.

[101] In my opinion, the approach to causation should where possible, be consistent, whether dealing with an issue going to guilt or penalty. The common issue is one of causal responsibility.

[102] The provisions of the Sentencing Act reinforce the fundamental principle that a just punishment is to be imposed. All sentencing rules, requirements and guidelines are subservient to this fundamental principle. In my view, it is unjust to punish for unintended, unforeseen and not reasonably forseeable consequences. Sentencing principles of general deterrence do not require such a result. To be relevant to general deterrence, the assumption would have to be made that conduct will be moderated by the risk of the not reasonably foreseeable consequence. To so reason involves an internal contradiction. No basis has been demonstrated for concluding that behaviour would be moderated by having regard to that which cannot be reasonably foreseen. I respectfully adopt the remarks of Napier CJ in Feldman v Samuels; the Victorian Full Court in Boyd and the remarks of Zeeman J in Inkson. I draw support from the reasoning of Brennan and McHugh JJ in Royall.

[103] This is a most unusual and unfortunate case. Nevertheless the Court should not treat an unintended, unforeseen and not reasonably foreseeable consequence as relevant to the issue of sentence. Causal responsibility has not been established.

33 In Lambie v State of Tasmania [2007] TASSC 10 Underwood J, after referring to the judgment of Grey J above, stated:

[28] Gray J concluded that this principle, applicable to criminal liability for conduct, should also be applied to culpability for the consequences of criminal conduct, and held at 488:

… the Court should not treat an unintended, unforeseen and not reasonably foreseeable consequence as relevant to the issue of sentence. Causal responsibility has not been established.

[29] I think that the preponderance of authority now indicates that this Court should adopt the same proposition. However, unfortunately, none of this was the subject of argument on this appeal and this Court should be reluctant to declare the common law on any issue without the benefit of submissions from counsel. Fortunately it is not necessary to do so in this case because:

• the appalling consequences of the appellant's criminal conduct were unforeseen by him and not reasonably foreseeable;
• even if my opinion in Inkson is good law, the exceptional circumstances of this case are such that the consequences should carry little adverse weight in the sentencing process.

34 The decision in Boyd has been followed in Victoria consistently. In Director of Public Prosecutions v Arvanitidis [2008] VSCA 189 Redlich JA, with whom the others members of the court agreed, stated:

[52] The consequence of conduct is punishable, though not intended or foreseen, where an element of the offence is the consequences of the act. 51 The law has for some time distinguished such offences from those which had unintended and unforeseen consequences which were not an ingredient of the offence. Where the offence is of the latter kind, if the consequences of the offender’s acts are not such as would reasonably have been foreseen, the consequences are not generally to be used against the offender. ⁵²

Footnote 52 is a reference to Boyd.

35 The Crown in its submissions referred to most of these decisions, but not to Arvanitidis. However, it drew the Court’s attention to what was said by Angel J in Staats v The Queen (1998) 123 NTR 16; 101 A Crim R 461. Although his Honour was “inclined towards the view of Underwood J” in Inkson, Angel J resolved the issue by reference to a particular provision of the Sentencing Act (NT). In my opinion this decision does not assist this Court in resolving what is the common law of this State.

36 The Crown, however, relied upon s 3A of the Crimes (Sentencing Procedure) Act 1999 particularly having regard to what the Chief Justice said in R v Berg [2004] NSWCCA 300; (2004) 41 MVR 399 as to the implications of that section upon the continued application of the principle enunciated in R v Previtera (1997) 94 A Crim R 76. That decision held that a court could not take into account the effects of the death of the deceased upon family or others when sentencing for murder.

37 The particular part of s 3A relied upon is 3A(g) which in effect states that one of the purposes of punishment is “to recognise the harm done to the victim and the community”. Reliance is also placed upon s 21A(2)(g) of the Act that in effect provides that it is an aggravating factor for the purpose of sentencing that “the injury, emotional harm, loss or damage caused by the offence was substantial”. In Berg the Chief Justice questioned whether the existence of s 3A(g), s 21A(2)(g), and the introduction of victim impact statements into sentencing proceedings might result in a need to revisit Previtera. In R v Tzanis [2005] NSWCCA 274 a specially constituted Court of five judges was convened to reconsider Previtera but, after hearing argument in the matter, the Court determined that it was not a suitable vehicle for that purpose. This Court has continued to apply Previtera and the obiter of the Chief Justice in Berg has never again been considered in that regard.

38 In my opinion neither the existence of s 3A(g) or s 21A(2)(g) leads to a conclusion that the common law of this State has been altered by the introduction of those provisions. Neither was intended to alter the law that existed prior to their introduction. Section 3A generally has been regarded as a codification of the common law principles of sentencing: see R v MA [2004] NSWCCA 92; 145 A Crim R 434 at [23]. It has been held that the purposes of punishment stated in the section are constrained by other sentencing principles that exist under the common law such as the principles of proportionality and totality: R v MMK [2006] NSWCCA 272; 164 A Crim R 481 at [11]. Wickham is itself authority for the proposition that nothing in s 21A was intended to alter the common law principles of sentencing and see R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [56]-[57].

39 It seems, therefore, that the statement made in Wickham and quoted above does still represent the common law of this State. It is unnecessary to ultimately decide the issue but, in the absence of any clear legislative statement to the contrary, it seems that this Court should as a matter of comity apply the common law as pronounced in South Australia and Victoria.

40 In the present case the evidence is not that the applicant believed that there was no person in the house when he entered it. His co-offender told him that the man Cooke lived there but that did not mean that there was no-one else residing in the premises. The applicant did not know Cooke so he knew nothing about his marital status. Although Cooke had left the premises there was no evidence that the offenders knew this. The applicant had no reasonable grounds for believing that there was no person present in the premises and it would have been open for the prosecution to rely upon the fact that there were persons in the premises as an aggravating factor.

41 These were ordinary residential premises. It was night. The applicant ought to have foreseen that there might be persons in the premises. He ought to have foreseen that any person in the premises would be adversely affected by the conduct of his co-offender, to which he was a party, in smashing open the door of the premises with a sledgehammer. It would in my view bring the law into disrepute for the offender to avoid the harm inflicted upon a person in the house in that situation.

42 It should also be noted that the facts refer to two statements overheard by Ms Wickham, one made by what she described as an older voice and the other by a younger voice. It is open to conclude that one of those statements was made by the applicant. Both of the statements indicated that the intruders knew that there were persons in the premises at least at the time the statements were made.

43 In my opinion it was open to the sentencing judge to take into account any harm suffered by Ms Wickham even though the applicant may not have actually known of her presence at the time he broke into the premises. It was reasonably foreseeable that there would be a person or persons in the premises and that any person in the premises would suffer emotional harm caused by the breaking into the premises in the way that the applicant did.

44 It was also submitted that the Judge was in error in taking into account that the harm suffered by Ms Wickham was substantial because the harm suffered was no more than would be expected of a person in her situation. After some dialogue between the Bench and counsel for the applicant on the hearing of the appeal, the submission was withdrawn but something should be said about it because it seems to be a common misunderstanding of the decisions of this Court in R v Youkhana [2004] NSWCCA 412 and R v Solomon [2005] NSWCCA 158.

45 Those two decisions were dealing with offences of armed robbery. In Youkhana it was held that a judge erred in taking into account the effects upon the victim of the robbery where the effects were no more than might be expected. In Solomon it was explained that this was so because the guideline judgment on armed robbery offences took into account the usual effects upon a victim of an armed robbery. Therefore, if a sentencer were to both apply the guideline and take into account the effects upon the victim, it would give rise to double counting of that factor unless the effects were more serious than would generally be expected.

46 But there is no general principle that injuries to a victim should be ignored or discounted because they are no more than would be expected as the result of the crime committed upon that type of victim. In a sentencing decision considered by this Court on a Crown appeal, although the Crown did not raise the point, a Judge refused to take into account the injuries suffered by an 80 year old rape victim because they were what would be expected of such a victim who suffered such an attack. The absurdity of such an approach must be apparent. The Court has no knowledge of how a victim of rape of that age might react to the offence. It can be predicted that it is likely to be severe, but why for that reason should the effect on the victim be disregarded?

47 In this case the Judge was entitled to take into account the emotional injuries suffered by Ms Wickham, even though it could be predicted that any female in her situation, particularly having a young child under her protection, would be traumatised by the events of that evening. The first complaint should be dismissed.

48 The second complaint in respect of the sentencing for the break and enter offence is that the Judge took into account that the offence was committed in the presence of a child under the age of 18. It was argued that there was no evidence that the applicant knew a child was present. The answer to the specific complaint in my view is that the applicant ought to have foreseen the possibility that a child would be in the premises, they being an ordinary domestic dwelling in a street of Casino at night. Again in my opinion it would bring the law into disrepute, if an offender could break into such premises without having regard to the fact that a child might be in the premises and the Court then refuse to take into account that the offence was committed in the presence of a child who happened to be there.

49 The third complaint under this ground is that the Judge appears to have taken into account that the robbery offence was committed in the home of the victims where in fact it occurred in a restaurant. The relevant passage of the remarks is as follows:

The victims, in relation to the robbery, were vulnerable by reason of their occupation. The Court notes that the aggravating factor of s.21A subs 2(ea), that is, the offence was committed in the presence of the child under 18 years and s 21A subs 2(eb), the offence was committed in the home of the victim, were amendments which came into play on 1 January 2008. These two offences were committed in February and March. In relation to the aggravated break, enter and steal those two additional aggravating factors, that is, that there was a child under eighteen present and that it was committed in the victim's home.

50 It is not clear to me that his Honour was taking those two aggravating factors into account in respect of the robbery. His Honour states that those two factors applied to the break and enter offence. It should be noted, however, that the robbery was committed in the presence of two children under the age of 18.

51 The first ground of appeal fails.

Ground 3 – manifestly excessive

52 It is appropriate to consider this ground next because, if it is made out, the Court will consider the issue of parity when it comes to resentence the applicant.

53 The complaint is that his Honour’s sentence for the robbery offence was too severe having regard to the guideline judgment in R v Henry [1999] NSWCCA 107;(1999) 46 NSWLR 346. The Judge stated:

In relation to the robbery the court takes into account the guideline judgment of Henry where it was said that the starting point was a period of 4 or 5 years for those offences which contained the seven criteria set out by the Chief Justice. It seems to the Court that the starting point in this case should be higher than the Henry starting point because of the fact that the number of the favourable subjective matters listed in Henry did not exist for this offender.

54 There were certain characteristics of the normal type of robbery that were set out by the Chief Justice in Henry at [162] as follows:

(i) young offender with no or little criminal history;

(ii) weapon like a knife capable of killing or inflicting serious injury;

(iii) limited degree of planning;

(iv) limited, if any, actual violence but a real threat thereof;

(v) victim in a vulnerable position such as a shopkeeper or taxi driver;

(vi) small amount taken;

(vii) plea of guilty, the significance of which is limited by a strong Crown case.

It is pointed out that (vii) refers to a late plea of guilty and that this has been taken as being a discount of 10 per cent.

55 The complaint is that the only factor that was not present in this case was that the applicant was not a youthful offender with limited record. But that was a significant matter because, as has been pointed out, the applicant’s criminal record was an aggravating factor. The fact that the guideline refers to a late plea was set off by the fact that the Judge gave the applicant a discount of 40 per cent for his plea and assistance. That was a discount from the starting sentence and, accordingly, should not have factored into it (vii) otherwise the discount was double counted.

56 It was submitted that the applicant’s intoxication by drugs and alcohol should have been considered as a mitigating factor in light of the young age he commenced to drink alcohol and that his drug addiction was a result of the use of morphine in hospital. But as against that was the fact that his amphetamine use started before he was treated in hospital. He briefly used it from the age of 13 but then recommenced again when aged 20. He had undergone a course of methadone treatment that ceased in 2000. He was not using heroin at the time of the offending. In my opinion there was nothing in this history that indicated any leniency should have been shown to him because he committed the crime under the influence of alcohol and drugs. He had been given the benefit of parole and bonds before some of which had conditions for drug and alcohol treatment.

57 I am unpersuaded that a starting sentence of 6 years for the robbery before discount was outside the permissible range.

58 It was submitted that the starting sentence for the break and enter was also beyond the Judge’s discretion. There was a starting sentence of 8 years before discount. Of course this sentence took into account the three matters on the Form 1. One of those matters was of some seriousness. The three offences all arose from the one incident and involved a person that owed money to the applicant. The applicant approached the premises of that person armed with a machete or a similar object. He banged on the screen door of the premises asking for the person. When told by the occupants that the person was not at home, the applicant yelled to a companion, “Hey get the gun out now I’m gunna shoot these two right now”. The applicant left shortly after stating, “Tell Tony we’ll be back later”.

59 In my opinion it was a serious offence to force entry into domestic premises by the use of a sledgehammer. For the reasons I have given in dismissing ground 1, the applicant was appropriately sentenced on the basis of causing substantial harm to the occupant. I am not persuaded that the starting sentence was outside the range open to his Honour.

60 In any event the sentences imposed upon the applicant for two completely independent and separate acts of criminality were lenient when consideration is given to the degree of accumulation between the two sentences. It was a period of 12 months yet the two offences were committed some weeks apart, with different co-offenders and in different country towns by an offender with a bad criminal record.

61 This ground should be rejected.

Ground 2 - parity

62 The co-offender Laycock pleaded guilty to the break and enter offence and was sentenced by Black DCJ. He was sentenced to imprisonment for 3 years and an order made that the sentence be served by periodic detention. I have no doubt at all that this sentence is manifestly inadequate and to a very significant degree. It is difficult to understand why there was no Crown appeal lodged against that sentence, particularly in light of the sentence imposed upon the applicant.

63 The sentencing remarks of Judge Black are completely inadequate to justify the length of the sentence imposed or the order for periodic detention. The exercise of his Honour’s discretion is of more concern because Judge Black had the sentencing remarks of Judge Ellis in respect of the applicant before him. Judge Black’s remarks fail to justify how he could impose a sentence on Laycock that was so far disparate with the sentence imposed by Judge Ellis on the applicant.

64 A number of Judge Black’s finding cannot sustain scrutiny. For example, notwithstanding that he heard from Ms Wickham, he found that her emotional injuries were not substantial in the absence of medical evidence. This is even though he was prepared to accept that she had suffered significant trauma that would remain with her for a lengthy period of time. Further His Honour awarded a discount of 25 per cent to Laycock that could not be sustained in light of the late plea of guilty. His Honour inappropriately inflated that discount by a misapplication of what is known as the “Ellis discount” and by taking into account assistance that did not warrant any discount at all. Because the sentence of Judge Black and his remarks are not under scrutiny in this Court, is unnecessary to list other erroneous findings that his Honour made or detail further the unsupportable reasons that he gave for departing so markedly from the sentence imposed upon the applicant.

65 In those circumstances the discretion of Judge Black miscarried and there is no justifiable sense of grievance that could be held by the applicant because of the erroneously lenient sentence imposed upon Laycock: There is a well-known line of authority of this Court that holds that an appropriate sentence should not be reduced because of an inadequate sentence imposed upon a co-offender. In R v Borkowski [2008] NSWCCA 102 with the concurrence of McClellan CJ at CL and Simpson J, I stated:

[69] It is well established that this Court will not reduce a sentence that is otherwise appropriate simply because there is disparity between it and a manifestly inadequate sentence imposed upon a co-offender: R v Diamond (NSWCCA, 18 February 1993 unreported); R v Chen [2002] NSWCCA 447. That is because the sense of grievance held by the offender is unjustified where the co-offender’s sentence is unduly lenient to a significant degree. This is so even where the co-offender’s sentence was imposed by this Court: R v Ismunandar and Siregar [2002] NSWCCA 477; 136 A Crim R 206. There reliance was placed upon the judgment of Gleeson CJ in R v Rexhaj (NSWCCA, 29 February 1996, unreported) where his Honour stated:

The principle which underlies … [intervention for disparity] … is that inconsistency in punishment may lead to an erosion of public confidence in the administration of justice … . There are, however, other things which may also lead to an erosion of public confidence in the administration of justice, and they include the multiplication of manifest errors. That is why numerous judges have stressed the unattractiveness of responding to one wrong decision by making another wrong decision.

66 This is a clear case where that authority should be applied. In my opinion the sentence imposed upon Laycock was inadequate even before the order of periodic detention was imposed. There was no justification for a sentence of less than four years. I have little doubt that Black DCJ had decided to impose a sentence of periodic detention before he decided what the sentence ought to have been.

67 I propose that leave be granted to appeal but the appeal be dismissed.

I agree with Howie J

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