Marshall v R

[2007] NSWCCA 24

New South Wales
Court of Criminal Appeal

CITATION:	Marshall v R [2007] NSWCCA 24 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	29/01/2007
JUDGMENT DATE:	14 February 2007
JUDGMENT OF:	McClellan CJ at CL at 1; Simpson J at 2; Howie J at 4
DECISION:	1. Leave to appeal is granted and the appeal is allowed in respect of the sentences imposed for Counts 3, 4 and 5. 2. The sentences for Counts 3, 4 and 5 are quashed and on those Counts the applicant is sentenced as follows: (a) On Counts 3 and 4 the applicant is sentenced to a fixed term of two years to commence on 15 December 2005 and expire on 14 December 2007. (b) On Count 5 the applicant is sentenced to a non-parole period of 4 years and 6 months to date from 15 December 2005 and to expire on 14 June 2010, the date upon which the applicant is eligible to be released to parole. There is a balance of term of 14 months to commence on 15 June 2010.
CATCHWORDS:	Criminal Law - Sentence - Effect of sentences exceeding the maximum penalty for the offence - Assessment of seriousness of offence of aggravated break enter and steal - whether offence above mid-range of seriousness - Totality - whether sentences ought to have been concurrent - whether any lesser overall sentence was warranted.
LEGISLATION CITED:	Crimes Act 1900 - ss 4, 105A(e), 105A(1)(f), 112(2), 112(3), 117 Crimes (Sentencing Procedure) Act 1999 - ss 21A, 44, 54B(3)
CASES CITED:	R v Tadrosse [2005] NSWCCA 145 R v Li (NSWCCA, unreported, 9 July 1997) R v Zegura [2006] NSWCCA 230 R v Way (2004) NSWLR 168 R v AJP (2004) 150 A Crim R 575 R v Hammoud (2000) 118 A Crim R 66 R v MMK [2006] NSWCCA 272 Cahyadi v R [2007] NSWCCA 1 R v Huynh [2005] NSWCCA 220 R v Ponfield (1999) 48 NSWLR 327 Mulato v R [2006] NSWCCA 282 Dang v R [2005] NSWCCA 430
PARTIES:	Matthew Marshall v Regina
FILE NUMBER(S):	CCA 2006/2497
COUNSEL:	V. Lydiard - Crown J. Stratton SC - Applicant
SOLICITORS:	S. Kavanagh - Crown S. O'Connor - Applicant
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/21/3255
LOWER COURT JUDICIAL OFFICER:	Maguire DCJ
LOWER COURT DATE OF DECISION:	21/04/2006

2006/2497

McCLELLAN CJ AT CL
SIMPSON J
HOWIE J

WEDNESDAY 14 FEBRUARY 2007

Matthew MARSHALL v R

Judgment

1 McCLELLAN CJ AT CL: I agree with Howie J.

2 SIMPSON J: I have read in draft the judgment of Howie J and, subject to what follows, agree with the orders proposed and his Honour’s reasons.

3 I am, however, unable to subscribe to the description, contained in paragraph 8 of the draft, that the error in sentencing the applicant, in respect of two offences, to terms of imprisonment that exceeded the statutory maximum, was “technical”. To my mind such an error is fundamental. I do agree with the view that such an error, committed in the context of sentencing for multiple offences, does not necessarily infect the overall sentencing discretion, or the sentences imposed in respect of other offences.

4 HOWIE J: The applicant pleaded guilty before a magistrate to three offences of aggravated break, enter and commit a serious indictable offence contrary to s 112(2) of the Crimes Act and two offences of larceny. He was committed for sentence to the District Court where he adhered to his pleas of guilty to the five counts. The offences in Counts 1, 2, and 5 were the s 112(2) offences and Counts 3 and 4 were the larcenies. The applicant asked that on each of Counts 2, 3 and 4 the court take into account on a Form 1 an offence of take and drive a motor vehicle and on Count 2 a further offence of drive in a manner dangerous to the public.

5 The maximum penalty for each of the s 112(2) offences was imprisonment for 20 years. There was also an applicable standard non-parole period of imprisonment for 5 years. The maximum penalty for each of the larceny offences was imprisonment for 5 years; see s 117 of the Crimes Act.

6 On 21 April 2006 Maguire DCJ (the Judge) sentenced the applicant as follows:

Count 1: a minimum term of 18 months imprisonment with a balance of term of 6 months.

Count 2: a minimum term of 18 months imprisonment with a balance of term of 6 months.

Count 3: a minimum term of 4 years with a balance of term of 16 months.

Count 4: a minimum term of 4 years with a balance of term of 16 months.

Count 5: a minimum term of 5 years with a balance of term of 20 months.

7 Each of the sentences was to commence on 15 June 2005 and, therefore, the overall sentence is one of 6 years 8 months with an overall non-parole period of 5 years to expire on 14 June 2010, the date upon which the applicant is eligible to be released to parole. The date of 15 June 2005 was the date of the expiration of a sentence that the applicant had been serving, being the balance of parole on an earlier sentence.

8 It should be noted immediately that the sentence imposed on each of Counts 3 and 4 exceeded the maximum penalty prescribed for the offence of larceny. There is a ground of appeal raising this complaint and it must of course succeed. In some circumstances the fact that one or more of a number of sentences for various offences passed on an offender exceed the applicable maximum penalty may not result in a conclusion that the sentencing discretion completely miscarried because that error could not have influenced the sentences in respect of the other offences or the overall sentence imposed. To that extent the error may be considered as technical: see R v Tadrosse [2005] NSWCCA 145. Whether in this case the error in exceeding the maximum penalty for two of the offences indicates that the discretion of the Judge has generally miscarried will be considered shortly.

The facts

9 The facts were not in dispute. They were summarised by the Judge in his sentencing remarks as follows:

Count one:

On 15 December the offender broke into the home of Rochelle Haywood while she and members of her family were asleep. He stole various valuable items to the value in excess of four and a half thousand dollars.

Count two:

Before 5am on 20 January the offender arrived at the home of Martin Brala. He was driving a stolen car. He broke into the home and stole valuable electronic equipment. Mr Brala disturbed him and when the offender drove off Mr Brala jumped onto the bonnet of the car. The offender continued to drive and the victim was dislodged and fell to the driveway.

Count three:

In the early afternoon of 2 February 2005 the offender was in a supermarket at Green Valley when the victim opened the cash register to lodge two dollars paid for an item purchased by the offender he grabbed money from the drawer. He drove away in a car previously stolen.

Count four:

On the following afternoon the offender, in the presence of a shop assistant dislodged a till from the counter in a video sore at Mt Pritchard. The till burst open and the offender grabbed two $50 dollar notes and ran away.



Count five:

Later the same day the offender broke into the home of fifty-six year old Miss Simmonds. He demanded money of which she had none available. He then took certain electronic equipment and other property to the value of more than $10,000. Thereafter at knifepoint he forced her out of her home. She managed to break free and the offender drove off in the victim’s car. He was arrested the following day.

10 It is worth making some observations on the nature of the charges. The serious indictable offence in each of the s 112(2) offences was stealing. The matter of aggravation relied upon in Counts 1 and 2 was that the applicant knew that persons were present in the premises where the offences were committed; see s 105A(1)(f) of the Crimes Act. In respect of Count 5 the matter of aggravation charged was that the applicant deprived Ms Simmonds of her liberty: see s 105A(e). However, the Crown made it clear on sentencing that it was also relying in respect of Count 5 upon the presence of two other aggravating features, although not charged, being that the applicant knew that there was a person present in the premises and that he was armed with an offensive weapon: see s 105A(a). It has been held that the Crown is entitled to rely upon other factors in aggravation in addition to that charged: R v Li (NSWCCA, unreported, 9 July 1997).

11 The short summary of facts given by the Judge in respect of Count 5 hardly discloses the extent of the applicant’s criminality and it needs some expansion. As she was preparing to go to bed and had just put out her light, the victim became aware that there was someone inside the house. She went to the bedroom door where the applicant confronted her while holding a torch that he shone in her face. He told the victim to get on her bed and place her hands behind her back. He demanded money and, when she said she had none, accused her of lying. He said, “I am already upset. I have been chased by the police. I need money”. The applicant searched the bedroom and took items of jewellery.

12 When he was finished, he shone the torch in her face, placed his hand at the back of her neck and guided her to her daughter’s room. He again told her to sit on the bed and put her hands behind her back. He put items of property in the room, including DVDs, into a suitcase. They then went to the lounge room where the applicant disconnected a DVD player and put it into the case. He then told the victim that they were going to the bank and that he would leave her car in Miller, a nearby suburb. The applicant threatened the victim with a kitchen knife and said, “Don’t make me do what I don’t want to do”.

13 The applicant forced the victim to leave the premises and was in possession of her car keys. He pushed her outside the house toward the garage by holding the back of her neck. She said to the applicant, “You don’t need to do this”. The applicant replied, “I told you I’d do this mum”. They went to the garage door and, when the applicant bent down to unlock it, the victim made her escape. She ran into the street. She saw the applicant run from her property but shortly he returned saying that he was taking her car. He opened the garage door and drove away in the victim’s vehicle. The property stolen from inside the house was valued at over $10,000.

The subjective case

14 The applicant was born on 10 May 1982 and aged 24 at the time of sentence. He had a record for offences of dishonesty since 1999 including numerous offences of taking motor vehicles and driving offences including negligent and furious driving. On 26 July 2002 he was dealt with in the District Court for offences of robbery while armed with a dangerous weapon. He was sentenced to imprisonment for 3 years with a non-parole period of 1 year 9 months. He also received a sentence of imprisonment for driving in a manner dangerous. While serving the sentence for the armed robberies he was sentenced to imprisonment in the Local Court for an offence of break, enter and steal.

15 On 28 September 2003 he was sentenced to imprisonment for a number of offences including break, enter and steal, and taking a motor vehicle. The longest sentence imposed was imprisonment for 20 months with a non-parole period of 15 months. The applicant was released to parole from that sentence on 12 November 2004. The first of the current offences was committed on 15 December 2004. His parole was revoked on 21 January 2005 and from 1 February 2005 until 14 June 2005 he was serving the balance of parole.

16 The applicant had been subject at various times to good behaviour bonds, community service orders, and parole with supervision. A pre-sentence report in evidence before the Judge stated that the applicant responded poorly to his latest period of supervision and was breached for further offences and “poor reporting”. He had experienced a “disturbed upbringing” because of his parents’ separation when he was aged 10. His father was a drug addict who spent time in custody. In his teens the applicant began abusing drugs and committing offences. He received only a basic education and had rarely worked. The applicant reported that he had been in the community for a total of three years since the age of 15. He had abused both heroin and cocaine. He said that he committed the present offences as “a means of supporting his drug habit and for basic survival as he had no income”. The officer preparing the report was of the view that his “pattern of antisocial behaviour” was entrenched.

17 There was in evidence a report from a psychologist. It contains considerable detail as to the applicant’s upbringing, which was described as being one of “dysfunction, abuse, neglect and instability”. His upbringing left the applicant “highly vulnerable to the development of emotional, social and behavioural difficulties”. The applicant reported that he was diagnosed with ADHD at the age of 13 or 14 and received medication to treat it. The applicant, however, told the psychologist that he did not believe that he suffered from that disorder and stopped taking medication when he left school. He gave a history of what the psychologist described as “significant substance abuse and dependence”. He expressed motivation to abstain from drugs but had no interest in counselling, as he believed he was the only one who could stop himself from using drugs. The psychologist described this attitude as “somewhat naive and unrealistic”.

18 The psychologist was of the opinion that the applicant “will benefit from intervention and support in a variety of areas in order to assist him in addressing his crimogenic needs”. Notwithstanding the applicant’s attitude to drug counselling, the psychologist believed that he would benefit from “counselling intervention designed to assist him in developing relapse prevention skills so that he might have a better chance of maintaining abstinence in the community”.

19 The applicant gave evidence before the Judge. In effect he confirmed much of what was contained in the reports as to his background. He stated that his father introduced him to armed robberies and selling and using drugs from about the age of 15. He said that he was no longer using heroin or cocaine. He gave evidence as to the circumstances of the offences. He said that he went into Ms Simmonds’s premises as he was trying to hide. He did not intend to hurt her but to make his escape and get money to support his addiction. He said that he was committed to change and had undertaken inquiries about getting assistance from counselling while in custody.

The sentencing remarks

20 The sentencing remarks were very brief comprising mainly the summary of the facts set out above and a large quotation from the pre-sentence report as to the applicant’s background. The Judge acknowledged that the applicant had given expressions of genuine contrition but doubted “his ability to deliver on rehabilitation”. The Judge then said:

His guilty plea is taken into account on sentence. It serves to achieve a lesser non-parole period than that provided for by law in some of these cases and in that regard I allow a twenty per cent discount. However in respect of the fifth count that consideration is overridden by my view that he demonstrates a level of criminality above the middle of the range. The terror that he inflicted on the aging female victim in that case deserves to be marked with a severe sentence. The sentences demanded here should act as a deterrent to this offender and others.

Having regard to the varying degrees of severity of the sentences I propose I see no call for accumulation

I see no special circumstances for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act.

I have examined these sentences carefully and regard them as properly reflecting the totality of the offender’s criminality.

21 This passage is the sum total of any attempt by the Judge to analyse what was not an uncomplicated sentencing exercise and to explain how he was deriving both the individual sentences and the total period of custody that he imposed upon the applicant. There is no attempt by his Honour to justify any of the sentences apart from that for Count 5.

22 When the sentences for Counts 1 to 4 are examined against one another, they are seen to be illogical having regard to the individual facts of each matter. They pay only lip service, if that, to the requirement that a court consider the appropriate sentence for each particular offence before considering the totality of the criminality for which the offender is to be punished. For example, it is impossible to comprehend how the Judge could conclude that a sentence for an impulsive act of stealing $100 from retail premises (Count 4) could warrant a sentence of almost three times the length of that imposed for breaking into a home, knowing that a person or persons were present and stealing property worth thousands of dollars (Count 1). And this is even without having regard to the maximum penalties prescribed for the offences, or the fact that the maximum penalty for the offence in Count 1 was four times that prescribed for Count 4.

23 There is no attempt by the Judge to explain, in respect of Counts 1 and 2, why he was reducing the non-parole period below the standard non-period applicable for those offences, other than by reason of the 20 per cent discount for the plea. This was notwithstanding s 54B(3) of the Crimes (Sentencing Procedure) Act that mandates that the court “identify in the record of its reasons each factor that it took into account”. It has been held by this Court on more than one occasion that the fact of a plea of guilty does not relieve the judge from complying fully with that section: see for example R v Zegura [2006] NSWCCA 230.

24 There is no attempt by the Judge, in accordance with decisions of this Court, to hypothesise what is an offence in the middle of the range of seriousness for an offence falling within s 112(2) of the Crimes Act in order to determine where in the range of seriousness the particular matters before the court fell: R v Way (2004) NSWLR 168 at [74]-[77]; R v AJP (2004) 150 A Crim R 575.

25 There is no reference to s 21A of the Crimes (Sentencing Procedure) Act or the relevant factors that needed to be considered in determining the seriousness of the offences and whether, and to what degree, they should lead to a departure from the standard non-parole period. Section 54(3) of the Act provides:

The reasons for which the court may set a non-parole period that is longer or shorter than the standard non-parole period are only those referred to in section 21A.

26 But even without a consideration of either s 54B(3) or s 21A the Judge ought to have made some reference to factors that were of significance in determining the sentence to be imposed upon the applicant. For example, there is not even a passing reference to the fact that the applicant was on parole at the time of the offences, an aggravating factor of particular significance both at common law and under s 21A(2)(j).

27 The Judge’s decision to make all sentences concurrent is illogical and erroneous in principle. His Honour stated:

Having regard to the varying degrees of severity of the sentences I propose I see no call for accumulation.

I accept that the decision whether to make sentences concurrent or cumulative, and to what degree, is discretionary: R v Hammoud (2000) 118 A Crim R 66. But generally speaking that discretion is informed by the principle of totality: R v MMK [2006] NSWCCA 272. The fact that the offences have common factors or may be seen as part of the one course of criminal conduct is not decisive. In Cahyadi v R [2007] NSWCCA 1 the exercise of the discretion was explained as follows:

27 ….. there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.


The discretion is not properly exercised by making the sentences for all offences concurrent but increasing the severity of the sentences progressively until a sentence is reached that will encompass the total criminality for all of the offences for which sentence is being passed. Yet this is what the Judge appears to have done.

28 In any event it was an error for the Judge to impose “varying degrees of severity” of the sentences if what he meant was that the sentences imposed for the offences would increase progressively regardless of whether any individual sentence reflected the criminality of the particular offence. As has already been noted, there was no justification in sentencing practice or theory for the sentences for Counts 3 and 4 to be more severe than the sentences for Counts 1 and 2. Quite the contrary there was every reason for the sentences for the larceny offences to be considerably less than those imposed for the s 112(2) offences simply because the criminality of the larcenies was nowhere near as serious as the break and enter offences.

The discount for the plea of guilty

29 The applicant complains that the Judge erred in failing to give him the benefit of a discount for the utilitarian benefit of the plea of guilty on Count 5. This complaint is based upon the passage quoted from the sentencing remarks above where the Judge, having indicated that a discount of 20 per cent would apply “to achieve a lesser sentence than that required by law in some of these case”, went on to state that “in respect of the fifth count that consideration is overridden by my view that he demonstrates a level of criminality above the middle range”.

30 It must be acknowledged that it is not easy to understand the relevant passage in the remarks. However, I do not believe that this complaint is justified. It seems to me that the Judge was intending in that passage to convey the following line of reasoning. In “some of these cases” (presumably Counts 1 and 2) the discount for the plea of guilty would result in a non-parole period less than “that provided for by the law” (that is the relevant standard non-parole period applicable to those counts). But in respect of Count 5, “that consideration” (that is the reduction of the standard non-parole period by reason of the discount for the guilty plea) was “overridden” by the seriousness of the offence. Therefore, in respect of Count 5 the discount for the plea would not result in a non-parole period less than the standard non-parole period because the criminality involved in that offence was greater than the mid-range of seriousness for a s 112(2) offence. So that had it not been for the plea of guilty, the non-parole period would have been greater than the standard non-parole period. The effect of the discount for the plea, however, was to reduce the otherwise appropriate non-parole period to the applicable standard non-parole.

31 If this was not what the Judge was attempting to convey by the passage, and I accept that there is room for argument about what was meant, I do not understand why the Judge imposed the standard non-parole period for Count 5 notwithstanding that he found that the offence was above the mid-range of seriousness.

Was the sentence manifestly excessive?

32 Although I would not uphold the complaint about the failure to take into account the discount for the plea of guilty, it does not follow that the attack upon the sentence for Count 5 necessarily fails. The applicant also complains that the sentence is manifestly excessive. It is argued that the offence in Count 5 did not warrant a sentence of 6 years 8 months having regard to the range of seriousness of offences that could be committed in breach of s 112(2) and in light of the statistical information available for sentences imposed for this type of offence.

33 For my part I find statistical information of less significance when dealing with standard non-parole period cases than might otherwise be the case. If the offence is one of mid-range seriousness, then, subject to any reasons for departing from that sentence in the particular case before the court, the appropriate sentence to impose is the standard non-parole period regardless of what the statistical information discloses. In the present case the statistical information presented to the Court reveals that the highest non-parole period imposed for a s 112(2) offence was 4 years and 6 months for all offenders, presumably including those who were convicted after trial. That means that no person was sentenced to a standard non-parole period even where prima facie it applied. I find it somewhat surprising that, in the more than four years during which the standard non-parole regime has applied, no one has committed an offence under s 112(2) of such seriousness that a sentence equal to, or greater than, the standard non-parole period was warranted.

Offence of mid-range of seriousness under s 112(2)

34 However, it is not an easy task to make sense of, and apply, the standard non-parole period provisions in relation to s 112(2) offences. Firstly, the standard non-parole period is 5 years as against a head sentence of 20 years. One would expect as a matter of logic and the application of ordinary sentencing principles that, if an offence was hypothetically of the mid-range of seriousness, it would carry a sentence of half the maximum penalty, that is a total term of ten years and, according to the statutory proportion under s 44 of the Crimes (Sentencing Procedure) Act, a non-parole period of seven and a half years. What then is to be made of the fact that the standard non-parole period is only 5 years? Does this disclose the intention of Parliament that the courts should take a more benign view of an offence under s 112(2) than the maximum penalty would seem to suggest? How does a court determine the sentence where the seriousness of the offence is somewhere above the mid-range of seriousness but below the most serious category of an offence under the section: by having more regard to the standard non-parole period or to the maximum penalty?

35 Secondly, the section can cover a very diverse range of offending. It is an element of the offence that a “serious indictable offence” is committed. But that category of offence includes any offence that is punishable by life or for a term of 5 years or more; see s 4 of the Crimes Act. Larceny is punishable by a term of five years and, therefore, is, on its face, at the lower end of seriousness for the type of offences that would fall within s 112(2). This might suggest that any offence under s 112(2), where the serious indictable offence is stealing, cannot be within the midrange of seriousness because there are many more serous offences that may give rise to a s 112(2) offence. For example, the offence committed in the premises might be a sexual assault committed on a child or an armed robbery.

36 This problem was considered in R v Huynh [2005] NSWCCA 220. Simpson J, with whom the other members of the Court agreed, stated:

[27]………..The assessment of where the offence lies in the range of offences of its type is to be made by reference to all of the facts and circumstances of the offence, and to the range of offences of its kind which come before the court. One circumstance which is here of relevance in that assessment is the quantity and value of the property stolen. It is not to the point that the property was recovered. It was, in fact, stolen, before being recovered. The fact that the maximum penalty for stealing barely takes that offence into s112(2) does not of itself determine where the offence lies in the scale of gravity of offences against s112(2). Certainly, one might ordinarily expect that offences involving violence would be regarded as more serious than stealing. But that does not preclude a finding that an offence under s112(2), where the “serious indictable offence” is larceny, being classified as in the middle of the range.

37 Therefore, in determining whether the offence falls within the mid-range of seriousness, the court has to have regard to the nature of the offence committed in the premises, including its seriousness as against offences of its type generally. Where that offence is larceny, the guideline judgement in R v Ponfield (1999) 48 NSWLR 327 might assist in determining the relevant factors to be considered in the evaluation of the seriousness of the offence. So the type of premises entered, the nature and value of the property taken, and whether there is substantial damage to, or ransacking of, the contents of the premises will be relevant considerations.

38 It is also necessary for the court to consider the element of aggravation charged, both as to its nature and what was actually done that gave rise to the aggravating factor. The number of aggravating factors present and the severity of them individually and in combination will also be relevant matters. Not all aggravating factors are of the same seriousness generally speaking. For example, the infliction of actual bodily harm might not be as serious as the fact that the offender is armed with an offensive weapon. The nature of the weapon and the actual threats made with it will be of significance. However, when consideration is given to any injury inflicted on the victim it will be relevant to take into account whether it was caused intentionally or recklessly. The extent of the injury will be significant but it should be noted that the malicious infliction of grievous bodily harm or a wounding leads to a more serious offence under s 112(3).

39 As to the aggravating feature of knowing that a person or person is present in the premises, matters of relevance will be the type of person present in the premises, for example whether there was a child or some other vulnerable person present, and whether the offender knew that the person or persons in the premises were particularly vulnerable. The time of day will be relevant so that if it is late at night, when the persons in the premises are likely to be asleep, this might indicate that the offence is more serious because the persons are for that reason more vulnerable.

40 In relation to the aggravating factor that the offender deprives a person of his or her liberty, the nature and period of the confinement will obviously be relevant. It will clearly be particularly aggravating where the person is taken hostage or removed by force or threats from the premises for some purpose of the offender, as it will be if the person is bound or gagged.

Was Count 5 above the mid-range of seriousness?

41 The Judge found that this offence was above the mid-range of serious for this offence but without explaining why he came to the assessment. Although this Court will not normally interfere with such a finding; Mulato v R [2006] NSWCCA 282, it is more likely to do so where no, or insufficient, reasons are given to justify it: Dang v R [2005] NSWCCA 430. Having regard to the range of offences that can arise under the section, I do not believe that it was open to the Judge to come to that conclusion. In my opinion the offence was one of mid-range of seriousness.

42 Although the offence committed in the premises was larceny, and not a particularly serious example of that offence, there were three aggravating features, two of them of particular seriousness. The use of the knife and the particular threat, “don’t make me do what I don’t want to do” were intended to terrify the victim. On one view the use of the knife converted the larceny into an armed robbery. But it was more significant than that because the use of the knife was intended to make the victim compliant in leaving the house with him for the purposes of obtaining money from her bank account. The aggravating feature of depriving the victim of her liberty was potentially a serious example of its kind because the victim was to be forced to accompany him out of her house so that she would be constantly under threat of the knife until the applicant’s purpose was achieved. But as it happened the victim was able to escape shortly after leaving the house and so the aggravating feature lost much of its force.

43 As has been noted, the applicant was on parole for similar offences. In my opinion that was an aggravating feature that in combination with an objective evaluation of the offence as being of mid-range of seriousness pushed the appropriate non-parole period above five years. There was no reason to find special circumstances having regard to the numerous opportunities the applicant had been given to address his drug problem in the past. The Judge was correct to have doubts about his prospects for rehabilitation. However, there should be a 20 per cent discount for the plea.

Should the Court intervene?

44 In my opinion the Judge’s sentencing discretion miscarried in a number of ways. It is not simply the case that I believe that the sentence for Count 5 is excessive and based upon an erroneous assessment of the seriousness of the offence for the purposes of applying the standard non-parole provisions. In my opinion the structure of the sentences generally was based upon errors as to the appropriate sentences for the larceny offences and the manner in which the issue of totality could be resolved. Therefore, it falls to this Court to exercise the discretion afresh within the confines of the power of this Court on an offender’s appeal.

45 In doing so the Court is to take into account an affidavit filed on behalf of the applicant for the purposes of re-sentencing him. That affidavit annexed a number of certificates and other gaol documents, including a letter from the applicant to his solicitor, relevant to the applicant’s endeavours at rehabilitation since being returned to custody. However, I do not believe that the material in the affidavit significantly impacts upon the overall sentence to be imposed upon the applicant. Notwithstanding the rehabilitative steps he has taken since he was returned to custody, in light of the fact that he was on parole at the time of the commission of these offences and the other opportunities he has been given to overcome his drug addiction, a sentence should be imposed that reflects both general and specific deterrence.

46 In my opinion the sentences imposed on Counts 1 and 2 were lenient, in light of the fact that the applicant was on parole for similar offending and having regard to the applicable standard non-parole period. The sentence for Count 5 was excessive and should be reduced. However, in my opinion there should have been partial accumulation between each of the sentences for the three s 112(2) offences. But this Court is effectively limited to the sentence imposed by the Judge, there being no Crown appeal, and an appropriate degree of accumulation would lead to a sentence in excess of that imposed upon the applicant. I do not believe that the criminality involved in the larceny offences when compared with that in Count 5 requires that the sentences for those offences be made cumulative between themselves or with Count 5.

47 Although the sentences imposed by the Judge for counts 3, 4 and 5 must be quashed and the applicant re-sentenced, in my opinion no lesser non-parole period than that imposed by the Judge is warranted having regard to the totality of the criminality of the offences for which the applicant was sentenced. There are to be fixed terms for each of the larceny offences by reason of the fact that those sentences are to be served concurrently with the sentence imposed for Count 5. Although the parole period is less than a third of the non-parole period for Count 5 this is because in my view the applicant should serve no lesser minimum period of custody than 5 years and the Court cannot increase the overall sentence to give the applicant the advantage of a longer period on parole.

48 I propose the following orders:

1. Leave to appeal is granted and the appeal is allowed in respect of the sentences imposed for Counts 3, 4, and 5.

2. The sentences for Counts 3, 4 and 5 are quashed and on those Counts the applicant is sentenced as follows:


(a) On Counts 3 and 4 the applicant is sentenced to a fixed term of two years to commence on 15 December 2005 and expire on 14 December 2007.

(b) On Count 5 the applicant is sentenced to a non-parole period of 4 years and 6 months to date from 15 December 2005 and to expire on 14 June 2008, the date upon which the applicant is eligible to be released to parole. There is a balance of term of 14 months to commence on 15 June 2008.


15 March 2007
49. THE COURT: Since judgment in this matter was published it has been brought to the Court's attention that there is an inconsistency between the term of sentence imposed for count 5 and the dates specified for the expiration of the balance of term and the non-parole period. As would be clear from the reasons for judgment, it was the intention of the Court that the term of sentence to be imposed was as pronounced but the dates need to be corrected. Therefore, the sentence for count 5 should read:

On Count 5 the applicant is sentenced to a non-parole period of 4 years and 6 months to date from 15 December 2005 and to expire on 14 June 2010, the date upon which the applicant is eligible to be released to parole. There is a balance of term of 14 months to commence on 15 June 2010.

**********

15/03/2007 - Edit error - Paragraph(s) Cover sheet, para 7, additional paragraph (49) added.