Mm v R

[2016] NSWCCA 235

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	MM v R [2016] NSWCCA 235
Hearing dates:	10 February 2016
Decision date:	28 October 2016
Before:	Bathurst CJ at [1] Johnson J at [2] R S Hulme AJ at [144]
Decision:	1. The Applicant is granted an extension of time to 30 October 2015 to apply for leave to appeal against conviction and sentence. 2. The Applicant is granted leave to appeal against conviction. 3. The conviction appeal is dismissed. 4. The Applicant is granted leave to rely upon Ground 1(b) on sentence. 5. The Applicant is granted leave to appeal against sentence. 6. The sentence appeal is dismissed.
Catchwords:	CRIMINAL LAW – appeal against conviction– offence of specially aggravated break and enter and committing serious indictable offence – s.112(3) Crimes Act 1900 – plea of guilty in District Court – whether plea of guilty occasioned a miscarriage of justice – plea of guilty by Applicant in open court – Applicant understood elements of the offence – decision to plead guilty was voluntary and not a product of undue or improper pressure – Applicant considered it to be in his interests to plead guilty – miscarriage of justice not established – conviction appeal dismissed CRIMINAL LAW – appeal against sentence – whether admission of statement of facts occasioned a miscarriage of justice – Applicant aware of elements of offence and circumstances of offence – miscarriage of justice not established – whether failure to adduce evidence of Applicant’s mental condition caused a miscarriage of justice – such evidence would not have assisted Applicant on sentence – miscarriage of justice not established – whether sentence manifestly excessive – no error in finding it was an extremely serious s.112(3) offence – sustained hammer attack to head of victim – Applicant on parole at the time of the offence with significant criminal history for robbery and other offences – substantial discount for assistance to authorities – sentence not manifestly excessive – sentence appeal dismissed
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	AM v R [2012] NSWCCA 203; 225 A Crim R 481 Aslett v R [2012] NSWCCA 235 Barbaro v The Queen [2014] HCA 2; 253 CLR 58 Betts v The Queen [2016] HCA 25; 90 ALJR 758 Bungie v R [2015] NSWCCA 9 De Jong v R [2015] NSWCCA 32 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 Duncombe v R [2013] NSWCCA 271 Hutchinson v R [2014] NSWCCA 317 Kelly v R [2007] NSWCCA 357 Kennedy v R [2016] NSWCCA 114 Khoury v R [2011] NSWCCA 118; 209 A Crim R 509 Loury v R [2010] NSWCCA 158 Magaming v The Queen [2013] HCA 40; 252 CLR 381 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Marshall v R [2007] NSWCCA 24 Maxwell v R [2007] NSWCCA 304 Maxwell v The Queen [1996] HCA 46; 184 CLR 501 McDonald v R [2014] NSWCCA 127 Meissner v The Queen [1995] HCA 41; 184 CLR 132 Micklesson v R [2009] NSWCCA 61 Milane v R [2006] NSWCCA 281 Muldrock v The Queen [2011] HCA 39, 244 CLR 120 Ngati v R [2013] NSWCCA 307 O’Grady v R [2013] NSWCCA 281 Palijan v R [2010] NSWCCA 142 R v Baghadi [2008] NSWCCA 239 R v Booth [2014] NSWCCA 156 R v Campbell [2014] NSWCCA 102 R v Chaaban [2006] NSWCCA 107 R v Cheh [2009] NSWCCA 134 R v Dole; R v Nguyen [2010] NSWCCA 101 R v GD [2013] NSWCCA 212 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Huynh [2005] NSWCCA 220 R v KCH [2001] NSWCCA 273; 124 A Crim R 233 R v Little [2013] NSWCCA 288 R v Loveridge [2014] NSWCCA 120; 243 A Crim R 31 at 59 [220]. R v Robinson [2014] NSWCCA 12 R v Thalari [2009] NSWCCA 170; 75 NSWLR 307 R v Van Rysewyk [2008] NSWCCA 130 R v Wilkes [2001] NSWCCA 97; 122 A Crim R 310 Rossi-Murray v R [2009] NSWCCA 177 Sheen v R [2012] NSWCCA 259; 215 A Crim R 208 Spark v R [2012] NSWCCA 140 Srikantharajah v R [2012] NSWCCA 209 Wong v Director of Public Prosecutions [2005] NSWSC 129; 155 A Crim R 37 Wootton v R [2014] NSWCCA 86
Category:	Principal judgment
Parties:	MM (Applicant) Regina (Respondent)
Representation:	Counsel: Mr T Gartelmann SC (Applicant) Mr J Pickering SC (Respondent)   Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2013/70507
Decision under appeal	Court or tribunal: District Court of New South Wales Date of Decision: 15 May 2014 Before: Blanch J File Number(s): 2013/70507

Judgment

1. BATHURST CJ: I agree with Johnson J.

2. JOHNSON J: The Applicant, MM, seeks an extension of time to bring an application for leave to appeal against conviction and sentence for an offence of specially aggravated break enter and commit serious indictable offence contrary to s.112(3) Crimes Act 1900.

3. A pseudonym (which does not utilise the Applicant’s correct initials) is used in this judgment to describe him because of evidence of the Applicant’s assistance to authorities. Other steps have been taken in the judgment to remove potential identifying features. This Court made a non-publication order with respect to the Applicant’s name at the hearing on 10 February 2016.

4. Following a plea of guilty entered on 10 April 2014, the Applicant was sentenced on 15 May 2014 by Blanch J, the Chief Judge of the District Court, to a term of imprisonment of nine years commencing on 7 March 2013, with a non-parole period of six years, expiring on 6 March 2019.

Grounds of Appeal

5. The Applicant relies upon Amended Grounds of Appeal, filed in Court on 10 February 2016, which identified the following grounds:

Conviction

1   The plea of guilty occasioned a miscarriage of justice.

Sentence

1   The admission of the statement of facts on sentence occasioned a miscarriage of justice.

1(b)   The failure to adduce evidence of the Applicant’s mental condition caused a miscarriage of justice.

2   The sentence is unreasonable or plainly unjust.

Extension of Time and Leave to Rely Upon Sentence Ground 1(b)

6. Having considered the affidavits of the Applicant’s solicitor, Bryan Dowe, affirmed 22 October 2015 and 2 November 2015, read in support of the extension of time application, I would grant the Applicant an extension of time to appeal against conviction and sentence.

7. The Applicant sought leave at the hearing to add sentence Ground 1(b) to his grounds. The Crown was in a position to meet this ground at the hearing. The Applicant should have leave to rely upon sentence Ground 1(b).

The s.112(3) Crimes Act 1900 Offence

8. The Applicant was committed for trial and thereafter entered a plea of guilty to the charge on an indictment at special sittings before the Chief Judge at country sittings of the District Court on 10 April 2014. The proceedings were then adjourned to 15 May 2014 in Sydney for a hearing on sentence. At the conclusion of the sentencing hearing, his Honour moved directly to sentence the Applicant by way of ex tempore remarks on sentence.

9. The Applicant pleaded guilty on 10 April 2014 to an offence charged in the following terms (aspects of the charge have been deleted as they may serve to identify the Applicant):

“On 7 March 2013 at [XXX] in the State of New South Wales, you did break and enter the dwelling house of [the male victim] at [XXX] and did commit a serious indictable offence therein, namely larceny of a handbag containing money and personal items of property of [the female victim], in circumstances of aggravation, namely that you were armed with an offensive weapon namely a hammer, and in circumstances of special aggravation namely you did inflict grievous bodily harm upon [the male victim].”

10. The maximum penalty for this offence is imprisonment for 25 years and a standard non-parole period of seven years is specified.

Facts of the Offence

11. A document entitled “Statement of Facts on Sentence” was admitted in evidence, without objection, in the sentencing proceedings. The facts may be summarised as follows.

12. On 6 March 2013, at about 10.00 pm, the female and male victims returned to their unit after an evening out. The female victim was then 41 years old and the male victim was 45 years old. The female victim was still awake at 12.15 am when she heard their dogs barking. She went to the door and saw the Applicant (then aged 35 years) on the back veranda.

13. The Applicant said that he was armed and wanted to buy drugs, but the female victim told him she had none. The Applicant told her he had a gun and she believed him. The Applicant told her that he needed cash and asked to come inside.

14. The female victim refused and closed the door saying that she would get the dogs. The Applicant smashed the door’s glass panel with a hammer then put his hands through the door to unlock it and entered.

15. The male victim came into the kitchen and said “What are you doing mate?”. The male victim went to arm himself with a pole but the Applicant struck him to the head twice with the hammer, causing him to fall to the floor. The Applicant struck the male victim to the head five more times with the hammer as he lay on the ground.

16. The female victim grabbed a knife and backed away. The Applicant told her he needed money and she gave him $25.00. The Applicant took her handbag containing $600.00 and a camera before he left.

17. Police and ambulance officers attended. The male victim was taken to hospital with a fractured right clavicle, an open compound fracture to the right jaw which required surgical repair, two depressed skull fractures that resulted in a brain contusion and required insertion of a plate and mesh, and several wounds to his face and head that required suturing.

18. Within hours, police arrested the Applicant on 7 March 2013 at his home where they found clothing worn and items taken during the offence. A camera and the female victim’s empty handbag were later recovered. The Applicant declined to participate in an interview with police.

The Applicant’s Subjective Circumstances

19. The Applicant was aged 35 years at the time of the offence. The sentencing Judge was informed that the Applicant has two children who live with their mother in rural New South Wales.

20. The Applicant has an extensive criminal history including offences of break, enter and steal (1991), armed robbery causing grievous bodily harm and armed robbery with wounding (1993), indecent assault, assault occasioning actual bodily harm and common assault (1996-1997), breach of parole (1998), aggravated robbery (1999), breach of parole (2003), steal from the person and common assault (2003), aggravated take and drive a motor vehicle whilst armed with a weapon and use offensive weapon to prevent lawful detention (2005), and robbery in company (2005).

21. The Applicant was sentenced to terms of imprisonment for most of these offences including, for the 2005 robbery in company offence, a sentence of imprisonment for six years and nine months with a non-parole period of four years and six months commencing on 24 July 2006.

22. The Applicant was subject to parole at the time of the present offence. His parole was revoked and he served a period from 7 March 2013 to 1 June 2013 arising from his parole revocation.

23. The sentencing Judge referred to the Applicant’s subjective features (ROS3):

“He was born in 1976, so he was only 13 at the time that his offending began and he has a number of convictions on his criminal record which all indicate a continuous course of criminality over a long period of time.

The subjective circumstances of the case are that he comes from the Aboriginal community. He grew up in Newcastle and apparently began taking drugs and it is his drug addiction which led to the commission of the offence. It is quite clear in this particular case that when he went to the home, he went there demanding drugs. It was only when he did not get the drugs that he then sought to get the money obviously to buy drugs.”

24. His Honour turned to the Applicant’s assistance to authorities (ROS3-4):

“A significant feature of this case is the matters referrable to s 23 of the Act, the assistance that he has given. I will not go into that in these remarks but there is a letter from the Crime Commission and there is also a letter from the police. It is perfectly apparent from both of those letters that the assistance he has given is of the highest order and has had some significant results. It also appears that he has indicated a willingness to provide further assistance in terms of giving evidence if needs be.

Those factors lead to two results. One of them is that he has had to be housed especially within the prison system and, because he is housed in special circumstances, he is more confined. He has less access to courses and other activities within the gaol that might ameliorate his prison conditions. The second result is that when he is released, he is going to be vulnerable to repercussions from the assistance that he has given and special precautions will need to be taken for his rehousing and substitute identification for the foreseeable future once he is released from custody. Those ramifications of the assistance do need to be taken into account.”

25. His Honour said with respect to the Applicant’s remorse and prospects of rehabilitation (ROS4):

“So far as the questions of remorse and rehabilitation are concerned, the assistance that he has given and will continue to give is assistance that in my view do indicate a degree of remorse and they also do indicate that he will have better prospects of rehabilitation largely because he will have to be relocated, renamed and significantly protected on his release.”

Other Findings of the Sentencing Judge

26. The sentencing Judge noted that the Applicant had been committed for trial and entered a plea of guilty on 10 April 2014 in special sittings arranged at a country court to review matters listed for trial. His Honour accepted that the Applicant was “entitled to have a discount for that plea of guilty, although it did not come at the earliest opportunity and he would not be entitled therefore, to a 25% discount” (ROS2).

27. Reference was made to victim impact statements placed before the sentencing court. His Honour observed that the male victim had “suffered significant injuries with lasting consequences so far as he is concerned and both of them have suffered from the trauma of having their home invaded and being the subject to such violent conduct” (ROS2-3).

28. His Honour described the offence as “an extremely serious offence” with an aggravating factor being that it was committed whilst the Applicant was on parole for robbery.

29. After addressing the Applicant’s subjective circumstances, the sentencing Judge returned to determine an appropriate sentence (ROS4-5):

“In terms of what all that translates into, in my view a starting point for the sentences here is a starting point of somewhere about the order of 14 or 15 years. That sentence should be reduced because of the plea of guilty. But significantly it should be reduced for the s 23 matters and in my view the level of reduction of his sentence should be one-third.

On that basis, the sentence of what was something over 14 years comes down to something over nine years, and in terms of arriving at an appropriate sentence he should be given the benefit of odd months and in my view the total sentence, therefore, should be a sentence of nine years.

That then leads to the question of what should be the non-parole period. In the ordinary course of events, the non-parole period would be 81 months in respect of a sentence of nine years. There are reasons in this case to vary the statutory ratio. Of course he is going to gaol for a long time. But of significance is rather the fact that when he is released from custody, his release is going to be a difficult thing to cope with and, because of that, there are special circumstances to reduce the non-parole period below that 81 months. In my view, an appropriate non-parole period in the circumstance would be 72 months or six years.

The other question that needs to be addressed here is the question of when to start the sentence from. He has been in custody since 7 March 2013. His parole was revoked, but of course he could have been re-released to parole because he was very close to the end of his parole period at the time and in my view the appropriate starting point is 7 March 2013 rather than 1 June when his revocation ran out.”

30. It will be seen that this Honour had regard to applicable discounts and made further adjustments, rounding periods downwards, before determining to backdate the sentence entirely to the Applicant’s date of arrest.

31. For the purpose of s.23(4) Crimes (Sentencing Procedure) Act 1999, his Honour indicated that the Applicant’s level of assistance had resulted in the reduction of the sentence by a period of five years, with half of that relating to past assistance and the other half to future assistance (ROS5).

Conviction Ground - The Plea of Guilty Occasioned a Miscarriage of Justice

32. Before moving to determine this ground of appeal, it is necessary to say something about the hearing which proceeded before this Court.

33. In support of this ground, the Applicant relied upon his own affidavit affirmed 20 October 2015 and an affidavit of his solicitor, Bryan Dowe, affirmed 14 January 2016. The Crown relied upon an affidavit sworn 18 December 2015 of Gemunu Kumarasinhe, the Applicant’s barrister in the District Court and an affidavit sworn 12 January 2016 of Stephen Charles Wright, the Applicant’s solicitor in the District Court.

34. At the hearing, the Applicant, Mr Kumarasinhe and Mr Wright were cross-examined.

Applicable Principles on Appeal Against Conviction Following Plea of Guilty in the Sentencing Court

35. The principles to be applied where a person seeks to challenge, on appeal to this Court, a conviction following a plea of guilty in the District Court were summarised in R v Thalari [2009] NSWCCA 170; 75 NSWLR 307 at 312-313 [32]-[35]:

“32    This Court may quash a conviction entered upon a plea of guilty in the sentencing court if it is demonstrated that a miscarriage of justice will occur if the Appellant is not permitted to withdraw the plea: R v Boag (1994) 73 A Crim R 35 at 36; R v Van (2002) 129 A Crim R 229; Elmir v R [2009] NSWCCA 22 at [33]ff.

33    The onus lies upon the Appellant to demonstrate that leave should be granted: R v Marchando (2000) 110 A Crim R 337 at 338 [4]; R v Toro-Martinez (2000) 114 A Crim R 533 at 536-537 [16]-[23]. The Appellant must establish a good and substantial reason for the Court taking the course of granting leave to withdraw the plea: R v Sewell [2001] NSWCCA 299 at [39]; Wong v Director of Public Prosecutions (2005) 155 A Crim R 37 at 46 [39]. An application to withdraw a plea of guilty is to be approached with caution bordering on circumspection: R v Liberti (1991) 66 A Crim R 120 at 122; R v Parkes [2004] NSWCCA 377 at [48].

34    The plea of guilty itself is a cogent admission of the ingredients of the offence: R v SL [2004] NSWCCA 397 at [51]. Indeed, it has been described as the most cogent admission of guilt that can be made: Charlesworth v R [2009] NSWCCA 27 at [25].

35    A person may plead guilty upon grounds which extend beyond that person’s belief in his guilt, and the entry of a plea of guilty upon such grounds nevertheless constitutes an admission of all the elements of the offence, and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred, and this will normally only arise where the accused person did not understand the nature of the charge, or did not intend by his plea to admit his guilt of it: Meissner v The Queen (1995) 184 CLR 132 at 157; Wong v Director of Public Prosecutions at 45-46.”

36. In R v KCH [2001] NSWCCA 273; 124 A Crim R 233, Ipp JA observed, at 238-239 [32], that there is no closed catalogue of circumstances that are capable of giving rise to such a miscarriage of justice and each case depends on its own circumstances.

36. In Maxwell v The Queen [1996] HCA 46; 184 CLR 501, Dawson and McHugh JJ said at 510-511 [19]-[20] (footnotes omitted):

“19.    An accused is entitled to plead guilty to an offence with which he is charged and, if he does so, the plea will constitute an admission of all the essential elements of the offence. Of course, if the trial judge forms the view that the evidence does not support the charge or that for any other reason the charge is not supportable, he should advise the accused to withdraw his plea and plead not guilty. But he cannot compel an accused to do so and if the accused refuses, the plea must be considered final, subject only to the discretion of the judge to grant leave to change the plea to one of not guilty at any time before the matter is disposed of by sentence or otherwise.

20.    The plea of guilty must however be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance, fear, duress, mistake or even the desire to gain a technical advantage. The plea may be accompanied by a qualification indicating that the accused is unaware of its significance. If it appears to the trial judge, for whatever reason, that a plea of guilty is not genuine, he or she must (and it is not a matter of discretion) obtain an unequivocal plea of guilty or direct that a plea of not guilty be entered. But otherwise an accused may insist upon pleading guilty."

38. In R v KCH, Ipp AJA (Sperling J agreeing) said at 247 [93]-[94]:

“93 I appreciate that in Maxwell v The Queen Dawson and McHugh JJ said at 511 that even the ‘desire to gain a technical advantage’ may result in a plea of guilty not being an admission of guilt. With respect, however, I do not understand a ‘technical advantage’ to apply to or include the situation where an accused person, without any undue or improper pressure, freely and voluntarily makes a decision to plead guilty to one offence, not because he believes that he is guilty, but because he thinks that this is a good way of avoiding the risk of being found guilty of other offences, or of receiving a reduced sentence, or of protecting his evidence with a view to bringing an appeal at a later stage.

94    As long as the decision to plead guilty was made freely and voluntarily, the decision stands. This is the necessary corollary of the principle laid down in Maxwell v The Queen at 511 that if the plea of guilty is genuine, and the accused person knows what he is doing, he may, for “whatever reason” insist on pleading guilty.”

39. In Wong v Director of Public Prosecutions [2005] NSWSC 129; 155 A Crim R 37, Howie J, after referring to Meissner v The Queen [1995] HCA 41; 184 CLR 132 at 157, said at 46 [36]-[37]:

“36    If, on the other hand, the advice was concerned with whether he should plead guilty despite his denial of the offence in order, for example, to obtain some advantage for himself then the focus of the proceedings might be different. Simply because a defendant is induced to plead guilty because of legal advice given to him, it does not follow that he should be allowed to withdraw the plea of guilty even if others might disagree with the advice. This is because there will be no miscarriage of justice arising. The issue in such a case might focus on whether the plea of guilty was entered in the exercise of a free choice in the defendant’s own interests. Of course the fact that a person is induced into taking a course of action does not mean the person in acting on that inducement is not acting from a free choice. It is not every threat, inducement or pressure applied to a defendant that either requires or justifies a court in permitting the defendant to withdraw a plea of guilty: Sewell above at [34].

37    But if the plaintiff by taking the advice proffered to him, entered the plea of guilty as a result of the exercise of a free choice in what he believed to be his best interests at the time, and if, when he entered the plea, he understood that he was admitting his guilt of the offence to the court, it does not follow that a miscarriage of justice would arise by refusing the application simply because he maintains his innocence of the charge and has always done so, or because he now regrets taking the advice. As Dawson J stated in Meissner in the passage quoted above, a miscarriage of justice will normally only arise in that situation where the defendant did not understand the nature of the charge or did not intend by his plea to admit his guilt of it.”

40. These passages from Wong v Director of Public Prosecutions were cited by this Court in Kennedy v R [2016] NSWCCA 114 at [56].

41. The Applicant relies substantially on the decision of this Court in R v Wilkes [2001] NSWCCA 97; 122 A Crim R 310. Wood CJ at CL (Giles JA and Simpson J agreeing) referred to a number of authorities applicable to the factual circumstances of that case, and said at 314-315 [20]:

“The principles established by these decisions are now settled. As a consequence, the present appeal hinges upon three considerations:

a)    whether the advice given to the appellant was or was not imprudent and inappropriate;

b)    whether his plea was or was not attributable to a consciousness of guilt; and

c)    whether the material before this court shows that there is or is not a real question about his guilt.”

Submissions of the Parties

42. It was submitted for the Applicant that the material relied upon pointed to the Applicant having been given imprudent and inappropriate legal advice in connection with his decision whether to plead guilty to the offence. It was submitted that the effect of the advice was to procure the Applicant’s plea of guilty with an expectation that the sentence to be imposed for the offence would lie within an unrealistic range. The submission continued that the effect of the advice given to the Applicant was to impose inappropriate pressure on him in determining his plea. As a result, it was submitted that the Applicant was induced to plead guilty, irrespective of his guilt of the offence, and thus his plea was not attributable to a genuine consciousness of guilt.

43. It was submitted that there was a real question about the guilt of the Applicant for the offence to which he pleaded guilty.

44. The Crown submitted that the evidence disclosed that the Applicant chose to plead guilty, hoping to get a substantial discount on sentence (which he did) and a good result (which he believed he did not). It was submitted that there is no evidence that the Applicant was overborne, tricked, pressured or coerced by his lawyers to plead guilty. The Crown submitted that a failure to ultimately get the sentence which an offender hoped for, after pleading guilty, cannot amount to a miscarriage of justice.

45. The Crown submitted that the Applicant’s account as to the length of sentence he was told that he may receive had an air of incredibility about it. This was a very serious offence under s.112(3) Crimes Act 1900 for which a substantial sentence was to be expected, even after a significant discount for the Applicant’s assistance to authorities. This was especially so as the Applicant was on parole for a robbery offence at the time of the commission of the present offence.

46. The Crown submitted that it was the Applicant who approached the police seeking to offer assistance to the authorities and that this context supported the wish of the Applicant to plead guilty to this offence so as to obtain assistance on sentence arising from his co-operation.

Decision

47. At the outset, it should be said that the legal representation of the Applicant in the District Court was far than ideal. The counsel and solicitor who appeared for him in that Court gave evidence which contained a number of internal inconsistencies, as well as inconsistencies between their own separate accounts.

48. For the purpose of determining the conviction ground, it is not necessary to resolve every factual dispute arising from the evidence of the Applicant and his former counsel and solicitor. I will move to a number of findings of fact reached after considering the entirety of the evidence.

49. On 25 July 2013, the Applicant provided written instructions to his legal representatives in which he stated that he understood he was charged with specially aggravated break and enter with intent to inflict grievous bodily harm. He instructed his legal representatives to plead not guilty on his behalf and understood that the matter would proceed to a District Court trial.

50. On 13 February 2014, the Applicant provided written instructions concerning the events giving rise to the charge. In those instructions, he said that prior to attending the house he had consumed a number of Xanax tablets and a quantity of vodka cruisers. He said that he had gone to the premises and knocked on the door. He said that the female victim came to the door and, as he spoke to her, the male victim attacked her and the Applicant then attacked him. He said that he picked up a hammer and, in the course of pushing the female victim inside, he broke the door. He admitted that he struck the male victim a number of times with the hammer. The Applicant said that he had caused damage to the door and would plead guilty to recklessly causing grievous bodily harm to the male victim. However, he said that there was no break and enter. He said that he was given a bag which the police later found at his place.

51. When the matter came before the District Court, the Applicant pleaded not guilty to the charge under s.112(3) Crimes Act 1900 and a trial date was fixed for 12 May 2014.

52. As noted earlier, the matter was listed, together with many others, at the special sittings at a country District Court before the Chief Judge of the District Court in early April 2014.

53. By this time, the Applicant had approached police and was providing significant assistance to the New South Wales Crime Commission. It is neither necessary nor appropriate to outline the nature of that assistance. It is sufficient to observe that the sentencing Judge characterised the assistance as being “of the highest order” (see [24] above).

54. Under cross-examination in this Court, the Applicant was asked (T7.23-43, 10 February 2016):

“Q. I want to ask you some questions about when you first started speaking to New South Wales Police or the Crime Commission about providing assistance. Can you remember how long that was before you actually entered this plea of guilty that you started giving assistance?

A. Probably about six months, something like that. Assist - yes, my memory is not very - but probably about six months after.

Q. And you made quite a large number of statements to New South Wales Police and the Crime Commission about a range of matters, is that correct?

A. Yes.

Q. When you started providing that assistance to the New South Wales Police and the Crime Commission, did you think that you would now plead guilty to these matters because you thought that you were going to get a discount on sentence and you thought that prior to meeting your barrister, Mr Kumarasinhe, did you not?

A. Yes.

Q. So before meeting your barrister, you were already starting to think that you would plead guilty to these offences, is that right?

A. That’s right, yes.”

55. I accept that the discussions which the Applicant had with his legal representatives concerned the prospect of pleading guilty to the s.112(3) offence. The Crown was not prepared to accept a plea of guilty to a lesser offence.

56. The evidence concerning the discussions which took place is unsatisfactory, confusing and contradictory. However, I am satisfied that the Applicant and his counsel discussed possible sentences which may be imposed if he pleaded guilty to the s.112(3) charge. The Applicant was told (correctly) that he would receive a significant discount for his assistance to authorities with a further discount for a plea of guilty. I am satisfied that the discussion descended to the possible duration of a sentence. It should be kept in mind that the s.112(3) offence carried a maximum penalty of 25 years’ imprisonment with a standard non-parole period of seven years.

57. Under cross-examination, the Applicant was asked (T8.39-9.28, 10 February 2016):

“Q. I just want to ask you about your own thought process. It’s not uncommon, I imagine, for you when you’re charged with an offence to think about what sentence you might get. Did you think about that in this particular matter when you were charged, about what sentence you might get prior to speaking to Mr Kumarasinhe?

A. Yeah, I thought I’d probably get about eight years, eight or nine, yeah.

Q. You obviously appreciated that you were on parole at the time you committed this offence and you were certainly sentenced to a total sentence of about six years, nine months?

A. Yes.

Q. Is that why you thought, I’d get a bit more, I could get about eight years?

A. Yeah, that’s what I thought I’d do, that’s right.

Q. I’m interested then when you say that Mr Kumarasinhe said that you could get 18 months or two years whether you, yourself wondered, well that doesn’t sound right because I was thinking of eight years?

A. Yeah, that’s with the 50% off. I was thinking then if - that he was right, you know, with the 50% off the eight years I was thinking well I would, I probably would get out.

Q. Is it the case that if you’d got 18 months or two years sentence that you would have had no problem with pleading guilty?

A. Yeah.

Q. So really today your problem is that you’re not happy with the sentence you’ve received, it doesn’t concern you pleading guilty if you’d actually got a sentence that you would have been happy with, is that right?

A. Yeah, but in this - yeah, that’s one of them, yeah. Plus the circumstances behind what happened that night, it’s just not - yeah, everything doesn’t add up to what I believe happened. I’ve got a bad memory for what happened that night, I took a lot of pills but--.

Q. I’m just wondering [MM], whether it was actually the thought of the sentence that you were going to get or whether one of the reasons you’re pleading guilty is because you made this decision to assist the authorities and this was part of assisting the authorities that you’d also plead guilty and be sentenced to this matter. Am I wrong or right about that?

A. Yes, that’s right. That’s right.”

58. I accept that the Applicant may have been informed by his counsel that a sentence in the order of eight years may have been imposed, but that counsel added as a rider that it remained a matter for the sentencing Judge. However, I do not accept that such a period was said to represent the possible undiscounted head sentence.

59. I am not persuaded, given the maximum penalty, standard non-parole period, the very serious circumstances of the s.112(3) offence itself and the Applicant’s prior criminal history, that the Applicant’s counsel suggested that a non-parole period as low as 18 months or two years was possible. Even allowing for the unsatisfactory aspects of the Applicant’s legal representation, a period of this type would be fanciful to any experienced criminal lawyer as a potential sentencing outcome in this case. This was recognised by senior counsel for the Applicant before this Court (T58.4-9, 10 February 2016):

“RS HULME AJ: The inherent probabilities argue very strongly against him receiving advice of 18 months to two years.

GARTELMANN: It’s conceded that any such advice would have been fantastic. Therefore it makes it harder to think even the most ignorant or stupid counsel would have given it.”

60. On 10 April 2014, the Applicant gave written instructions to his legal representatives to enter a plea of guilty to the charge of specially aggravated break and enter and commit serious indictable offence, namely inflicting grievous bodily harm.

61. On that day, the Applicant appeared before the Chief Judge and, having heard the s.112(3) charge read out to him in open court, he pleaded guilty to the charge. It may be noted that the terms of the charge to which he pleaded guilty were expressed in greater detail than the summary form utilised in the instructions. I am satisfied, however, that the Applicant was aware of the elements of the charge to which he pleaded guilty, including the break and enter component as to which he had earlier indicated a denial.

62. It should be observed, at this point, that the Applicant had disputed parts only of the allegation brought against him in instructions which he had given at an earlier time. This was never a case where the Applicant denied that he had been present at all at the scene of the crime. The areas of apparent controversy concerned matters of detail as to what occurred, although he admitted that he had attacked the male victim with a hammer in the severe fashion outlined. It should also be noted that the Applicant stated that he had consumed both a powerful restricted substance and a significant quantity of alcohol before attending the premises.

63. The sentencing proceedings were adjourned from 10 April 2014 to 15 May 2014 at the Downing Centre in Sydney. During the course of the sentencing hearing, the sentencing Judge expressed his provisional view as to the appropriate sentence to be applied before factoring in the significant discount to which the Applicant was entitled for his assistance to authorities together with a 15% discount for the plea of guilty (T3, 15 May 2014 - AB52). Submissions were made on the question of sentence by the Crown and counsel for the Applicant and his Honour proceeded to pass sentence as indicated earlier in this judgment.

64. I accept that the Applicant expressed dissatisfaction at the sentencing outcome in the course of a discussion which he had with his legal representatives in the cells later on 15 May 2014. This reflected his hope or belief that a lesser sentence should have been passed upon him in all the circumstances. I accept that the discussions which had taken place between the Applicant and his legal representatives at earlier times had contributed to this hope or belief on his part. That said, I accept as well that the Applicant was told that the sentence to be imposed would be a matter for the sentencing Judge.

65. I am satisfied that the Applicant well understood the charge to which he was pleading guilty in open court on 10 April 2014 and the elements of that charge. At an earlier time, the Applicant had given instructions to contest that charge, with those instructions being directed to some, but not all, of the elements of that charge.

66. The focus of the Applicant’s interest was his desire to rely upon his assistance to authorities as a very substantial factor operating in his favour on sentence. In truth, it may be said that there was little else operating in his favour on sentence. He had a very poor criminal history and the present offence had been committed whilst on parole.

67. The Applicant bears the onus of establishing a good and substantial reason for the Court taking the course of granting leave to withdraw the plea: R v Thalari at 312 [33]-[34].

68. The Applicant pleaded guilty to the s.112(3) charge in open court, knowing the elements of the offence. The plea of guilty is a cogent admission of the elements of the offence: R v Thalari at 312-313 [34].

69. The Applicant saw it as being in his interest to plead guilty to obtain the benefit of a reduced sentence. He was not subjected to force or pressure by his legal representatives. Keeping in mind the principles in Maxwell v The Queen, Meissner v The Queen and R v KCH, the Applicant made a free and voluntary decision to plead guilty to the s.112(3) charge.

70. I am not persuaded that the principles in R v Wilkes, when applied to this case, result in a conclusion favourable to the Applicant. It is necessary for the Applicant to demonstrate that each of the three principles in R v Wilkes applies in this case.

71. The Applicant understood the elements of the offence to which he ultimately pleaded guilty. He had admitted some, but not all, of those elements in the past in instructions. He admitted, as well, that he had used significant quantities of a drug and alcohol prior to the events giving rise to the charge. It was his desire to rely upon his assistance to authorities and his plea of guilty on sentence.

60. It has not been demonstrated that the Applicant’s plea was not attributable to a consciousness of guilt. Nor has it been shown that there is a real question about his guilt. I do not consider that the features relied upon, by reference to the statements of the male and female victims attached to Mr Dowe’s affidavit of 14 January 2016, are of any real assistance to the Applicant.

61. The Applicant has not demonstrated that his decision to plead guilty to the s.112(3) offence was the product of any undue or improper pressure. He freely and voluntarily made a decision to plead guilty because he thought that this would result in him receiving a reduced sentence by application of the discount for his assistance to authorities and his plea of guilty.

62. The fact that the sentence passed was greater than he hoped or believed may be imposed does not give rise to a miscarriage of justice of the type which must be demonstrated, before this Court, will quash a conviction following a plea of guilty at first instance.

63. Although I would grant the Applicant leave to appeal against conviction, I would dismiss the appeal against conviction.

Sentence Ground 1 - The Admission of the Statement of Facts on Sentence Occasioned a Miscarriage of Justice

Submissions of the Parties

76. Mr Gartelmann SC, for the Applicant, submitted that the Court should find that the Applicant had not read, or had read to him, the statement of facts tendered at the sentencing hearing. It was submitted that this failure gave rise to a miscarriage of justice, relying upon the decision of this Court in Loury v R [2010] NSWCCA 158.

77. The Crown submitted that the statement of facts was settled between counsel for the Applicant and the Deputy Director of Public Prosecutions who appeared at the sentencing hearing. The fact that the statement of facts was not signed on behalf of the Applicant did not constitute a difficulty in its tender and use at the sentencing hearing. The statement of facts was tendered without objection at the sentencing hearing.

78. The Crown submitted that the statement of facts constituted an unremarkable summary of the evidence of the offence. It was submitted that the statement of facts expanded upon each of the elements of the offence itself to which the Applicant had pleaded guilty. The Crown submitted that no miscarriage of justice had been established in accordance with this ground.

Decision

79. I have rejected the Applicant’s conviction ground. The Applicant was aware of the elements of the offence to which he pleaded guilty in open court. The statement of facts provided a more detailed account of the offence by reference to the particular elements themselves. The Applicant was aware of the nature of the allegations made against him in support of each element.

80. It is the case that the statement of facts made provision for signature on behalf of the Crown and the Applicant. This is a common procedure in preparation of a statement of facts for a sentencing hearing. The statement of facts here was signed only by the Deputy Director of Public Prosecutions for the Crown. No person signed on behalf of the Applicant. The circumstances of this case illustrate the practical importance of adoption of the statement of facts by signature on behalf of each party. However, the present ground of appeal does not turn upon that consideration.

81. The Applicant was aware that the offence to which he pleaded guilty contained a number of elements:

1. break and enter a dwelling house - he was aware that the Crown case was that he had smashed a hammer through the glass panel on the door and entered the house - this is what the statement of facts asserted;

2. commit a serious indictable offence, larceny of a handbag containing money and personal items - the statement of facts alleged that he took the handbag which contained $600.00 in cash and a camera - the Applicant was aware of this allegation;

3. in circumstances of aggravation, being armed with an offensive weapon, a hammer - the Applicant was aware that this was the Crown allegation;

4. in circumstances of special aggravation, inflicting grievous bodily harm upon the male victim - the Applicant was aware of this allegation and admitted that he had used the hammer to inflict grievous bodily harm in this way.

82. The circumstances of Loury v R are, in my view, distinguishable. That case involved a successful appeal against conviction where several factors were found to have contributed to a miscarriage of justice. The difficulties concerning the statement of facts in Loury v R were but one factor and are different to the present case.

83. In the circumstances of this case, including the Applicant’s admission of the elements of the offence by his plea, I am not persuaded that the admission of the statement of facts occasioned a miscarriage of justice.

84. I would reject the first ground of appeal on sentence.

Sentence Ground 1(b) - The Failure to Adduce Evidence of the Applicant’s Mental Condition Caused a Miscarriage of Justice

Submissions of Parties

85. It was submitted for the Applicant that the Court should find that the Applicant instructed his legal representatives that he had a psychiatric history, and that a report should be obtained for the purpose of the sentencing hearing.

86. In support of this ground of appeal, the Applicant relied upon an affidavit of Bryan Dowe, affirmed 18 November 2015, which annexes a copy of a report dated 23 October 2015 of Dr Gerald Chew, forensic psychiatrist. The Applicant sought to rely upon this report to demonstrate that evidence concerning his mental condition ought to have been obtained, and that the failure to do so caused a miscarriage of justice.

87. The Crown submitted that psychiatric evidence of the type contained in Dr Chew’s report would have provided little assistance to the Applicant on sentence. It was submitted that no miscarriage of justice had resulted from the absence of psychiatric evidence.

Decision

88. The evidence in this Court of the former legal representatives on this issue is, once again, unsatisfactory and confusing. I accept that there was some discussion between the Applicant and his legal representatives concerning a possible report being obtained. It was not the case that the sentencing hearing was to proceed to finality at the country court on 10 April 2014. It was to be adjourned to Sydney on 15 May 2014, so an opportunity existed for this aspect to be further explored.

89. This Court has expressed resistance to efforts being made to rely upon a psychiatric report before this Court, when that material was not placed before the sentencing Court. The Court has accepted, however, that circumstances may exist which give rise to a miscarriage of justice in this context.

90. The Court has emphasised that caution must be exercised in the admission of evidence of this type before this Court, with regard to be had, amongst other things, to the potential significance of the evidence to have affected the outcome at first instance: Khoury v R [2011] NSWCCA 118; 209 A Crim R 509 at 531 [121]. The decision of the High Court of Australia in Betts v The Queen [2016] HCA 25; 90 ALJR 758 has emphasised the restrictions upon this Court’s appellate function when psychiatric evidence, not tendered in the sentencing court, is sought to be placed before this Court.

91. Dr Chew conducted a psychiatric assessment of the Applicant on 18 October 2015. He had not seen the Applicant before then. He had been provided with copies of Justice Health medical records concerning the Applicant for the period 2005 to 2013.

92. Dr Chew noted that the Justice Health records disclosed a debate as to whether the Applicant had a primary psychotic disorder or not. A report in October 2008 from a Dr Elliott indicated that the Applicant did not have a primary psychotic disorder. In March 2011, Dr Bench, a psychiatrist, considered the Applicant’s history was more consistent with drug-induced psychosis than schizophrenia.

93. Dr Chew concluded that the Applicant presented with a complex set of psychiatric symptomatology. Dr Chew diagnosed drug-induced psychosis, currently in remission in a controlled environment free from drugs. In addition, Dr Chew stated that the Applicant presented with a number of depressive and anxiety symptoms which were best encapsulated by the diagnosis of post-traumatic stress disorder relating to childhood trauma.

94. Dr Chew expressed the opinion that the Applicant’s mental state at the time of the offence may have contributed to his behaviour. From the history provided, the Applicant was suffering from increased paranoia related to amphetamine use and was also intoxicated with benzodiazepines. His increased paranoia caused him to travel to the country town where the offence occurred and the combination of this, and his intoxication, would have affected his judgment.

95. The fundamental difficulty for the Applicant in this case is that evidence along the lines of that contained in Dr Chew’s report would have had little role to play on sentence. By the time of this offence, the Applicant had a criminal history for serious crimes of violence and dishonesty. His abuse of drugs was known to, and taken into account by, the sentencing Judge, including the role of drug abuse in the commission of the offence itself. The report of Dr Chew adds little to this picture.

96. It is well recognised that the commission of serious offences whilst under the influence of drugs or alcohol, by way of self-induced intoxication, provides no assistance to an offender by way of mitigation: s.21A(5AA) Crimes (Sentencing Procedure) Act 1999. Even before the commencement of that provision, courts around Australia had consistently rejected the proposition that intoxication can mitigate the seriousness of an offence or reduce an offender’s culpability: R v Loveridge [2014] NSWCCA 120; 243 A Crim R 31 at 59 [220].

97. The Applicant’s drug addiction would not assist him in mitigation of penalty: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at 385 [197], 386 [206], 391 [236], 397-398 [273].

98. In my view, the report of Dr Chew would have provided no real assistance to the Applicant on sentence. There was no realistic basis upon which the Applicant could have called in aid, in a manner which was favourable to him, the well-known principles in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at 43 [177].

99. The fact that the Applicant was a drug user and that this had contributed to the offence was noted by the sentencing Judge. Given the Applicant’s history, there was no reasonable basis for a positive view as to his prospects of rehabilitation, apart from what flowed from his assistance to authorities. The sentencing Judge made favourable findings to the Applicant by reference to this feature of the case (see [25] above).

100. The Applicant has not demonstrated that the failure to adduce evidence on sentence of the Applicant’s mental condition caused a miscarriage of justice.

101. I would reject sentence Ground 1(b).

Sentence Ground 2 - the Sentence is Unreasonable or Plainly Unjust

The Applicant’s Submissions

102. Whilst acknowledging the seriousness of the offence in this case, Mr Gartelmann SC submitted that the sentence imposed was unreasonable or plainly unjust. He submitted that the starting point adopted by the sentencing Judge of a head sentence of 14 or 15 years did not accord with the level of seriousness of the offence itself.

103. It was submitted that the finding that the offence was “extremely serious” was not warranted. In this respect, the Applicant submitted that in assessing the seriousness of a s.112(3) offence, the nature of the “serious indictable offence” involved is a relevant consideration: R v Huynh [2005] NSWCCA 220 at [27]; Maxwell v R [2007] NSWCCA 304 at [28]; Kelly v R [2007] NSWCCA 357 at [19]. Here, the serious indictable offence was larceny, which carried a maximum penalty of five years, thereby lying at the bottom level of the five-year threshold for a “serious indictable offence” under s.4 Crimes Act 1900.

104. By reference to the circumstances of aggravation in s.105A Crimes Act 1900, it was submitted that the Applicant was armed with an offensive weapon and entered the premises knowing persons were present, but that no further additional circumstances were involved, with the use of corporal violence being inherent in the circumstances of special aggravation relied upon.

105. Having regard to the range of conduct potentially constituting s.112(3) offences, it was submitted that the presumed nominal starting point for the sentence was excessive. It was submitted further that the resultant sentence was excessive when all the circumstances of the case are taken into account, including the utilitarian value of the plea and, in particular, the assistance to authorities which was of “the highest order”.

106. Senior counsel for the Applicant took the Court to a number of other sentencing decisions for s.112(3) offences. These were R v Chaaban [2006] NSWCCA 107; Milane v R [2006] NSWCCA 281; R v Baghadi [2008] NSWCCA 239; R v Van Rysewyk [2008] NSWCCA 130; Micklesson v R [2009] NSWCCA 61; R v Cheh [2009] NSWCCA 134; R v Dole; R v Nguyen [2010] NSWCCA 101; Srikantharajah v R [2012] NSWCCA 209; Aslett v R [2012] NSWCCA 235; Sheen v R [2012] NSWCCA 259; 215 A Crim R 208; R v GD [2013] NSWCCA 212; O’Grady v R [2013] NSWCCA 281; R v Little [2013] NSWCCA 288; Ngati v R [2013] NSWCCA 307; R v Robinson [2014] NSWCCA 12; Wootton v R [2014] NSWCCA 86; R v Campbell [2014] NSWCCA 102; McDonald v R [2014] NSWCCA 127; R v Booth [2014] NSWCCA 156; Bungie v R [2015] NSWCCA 9 and De Jong v R [2015] NSWCCA 32.

107. Although he acknowledged that the sentencing pattern disclosed by these cases could not be equated with the available sentencing range, counsel submitted that these cases may properly inform the Court’s assessment of the sentence imposed in the Applicant’s case: Barbaro v The Queen [2014] HCA 2; 253 CLR 58 at 71 [28], 74 [41].

Crown Submissions

108. The Crown submitted that this was a very serious example of a s.112(3) offence. It was submitted that this Court has stressed that home invasion offences will be treated seriously as they represent a breach of the right of every person to feel safe in his or her own home: Palijan v R [2010] NSWCCA 142 at [22].

109. The Crown submitted that the fact that the serious indictable offence pleaded was larceny did not undermine the characterisation of the objective seriousness of this offence as being “extremely serious”. It was submitted that the objective seriousness of a s.112(3) offence is determined by reference to all the circumstances of the offending, and the fact that the relevant indictable offence is larceny does not necessarily reduce the objective seriousness of the offence: R v Huynh at [27], [29].

110. It was submitted that very serious violence was inflicted during the course of the offence, which was committed whilst the Applicant was on parole for an offence of robbery in company.

111. The Crown submitted that the circumstance of special aggravation that was pleaded was the intentional infliction of grievous bodily harm. The offence involved the violent entry to the home of the two victims at night. Although the female victim was not physically harmed during the commission of the offence, she was confronted by the Applicant who told her that he was armed with a gun. The attack on the male victim was extremely violent.

112. With respect to the cases relied upon by the Applicant, the Crown submitted that they did not demonstrate a range, nor did they fix an upper limit of sentence inhibiting the exercise of the sentencing discretion: Spark v R [2012] NSWCCA 140 at [50].

113. The Crown submitted that the sentence imposed was not unreasonable or plainly unjust.

Decision

114. This Court has observed that a very diverse range of offending may be accommodated within the terms of an aggravated offence under s.112(2), or a specially aggravated offence under s.112(3) Crimes Act 1900: Marshall v R [2007] NSWCCA 24 at [35].

115. It is useful to set out the terms of s.112:

“112 Breaking etc into any house etc and committing serious indictable offence

(1)    A person who:

(a)    breaks and enters any dwelling-house or other building and commits any serious indictable offence therein, or

(b)    being in any dwelling-house or other building commits any serious indictable offence therein and breaks out of the dwelling-house or other building,

is guilty of an offence and liable to imprisonment for 14 years.

(2)    Aggravated offence

A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 20 years.

(3)    Specially aggravated offence

A person is guilty of an offence under this subsection if the person commits an offence under subsection (2) in circumstances of special aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 25 years.”

116. It is also helpful to consider the terms of s.105A which defines “circumstances of aggravation” and “circumstances of special aggravation”. Section 105A provides:

“105A     Definitions

(1)    In sections 106–115A:

building includes any place of Divine worship.

circumstances of aggravation means circumstances involving any one or more of the following:

(a)    the alleged offender is armed with an offensive weapon, or instrument,

(b)    the alleged offender is in the company of another person or persons,

(c)    the alleged offender uses corporal violence on any person,

(d)    the alleged offender intentionally or recklessly inflicts actual bodily harm on any person,

(e)    the alleged offender deprives any person of his or her liberty,

(f)    the alleged offender knows that there is a person, or that there are persons, in the place where the offence is alleged to be committed.

circumstances of special aggravation means circumstances involving any or all of the following:

(a)    the alleged offender intentionally wounds or intentionally inflicts grievous bodily harm on any person,

(b)    the alleged offender inflicts grievous bodily harm on any person and is reckless as to causing actual bodily harm to that or any other person,

(c)    the alleged offender is armed with a dangerous weapon.

(2)    The matters referred to in:

(a)    paragraph (c), (d) or (e) of the definition of circumstances of aggravation, or

(b)    paragraph (a) or (b) of the definition of circumstances of special aggravation,

can occur immediately before, or at the time of, or immediately after any of the elements of the offence concerned occurred.

(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.

(3)    The definitions in subsection (1) are not mutually exclusive.”

117. Section 105A(3) makes clear that the definitions of “circumstances of aggravation” and “circumstances of special aggravation” contained in s.105A(1) are not mutually exclusive.

118. The Crown is entitled to rely on circumstances of aggravation (or special aggravation) other than those charged in the indictment: Marshall v R at [10]; Rossi-Murray v R [2009] NSWCCA 177 at [52].

119. It is correct that a sentencing court should keep in mind the nature of the “serious indictable offence” involved in a s.112(3) offence. That element, of course, forms part of the basic s.112(1) offence. Although remaining a relevant factor on sentence, by the time one gets to a “specially aggravated offence” under s.112(3) of the Act, other features of the offence are bound to assume greater importance on sentence.

117. In this case, several “circumstances of aggravation” existed:

1. the Applicant was armed with an offensive weapon, a hammer;

2. the Applicant knew that there were persons in the place where the offence was committed;

3. the Applicant used corporal violence against the male victim - this is an aggravating circumstance distinct from the fact that grievous bodily harm was caused to the victim: Maxwell v R at [13].

121. In addition to these circumstances of aggravation, the Applicant intentionally inflicted grievous bodily harm on the male victim so as to render the offence one of special aggravation.

122. In determining the objective seriousness of a s.112(2) or s.112(3) offence, the sentencing court should have regard to the nature of the offences committed in the premises, the type of premises entered, the nature and value of property taken, damage to any property and the time of day when the offence occurred. The number of aggravating factors present, and the severity of them individually, and in combination, will also be relevant matters: Marshall v R at [37]-[39]; Maxwell v R at [26].

123. The maximum penalty (25 years’ imprisonment) and standard non-parole period (seven years) for a s.112(3) offence are not formalities, but represent important yardsticks or guideposts created by the legislature for sentencing courts: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 372 [30]-[31]; Muldrock v The Queen [2011] HCA 39, 244 CLR 120 at 132 [27], 133 [31]; Magaming v The Queen [2013] HCA 40; 252 CLR 381 at 396 [48].

124. Section 112(3) constitutes a further example where the legislature has prescribed a maximum penalty of 25 years’ imprisonment with a standard non-parole period of seven years. The temporal gap between these two statutory guideposts has been discussed in the context of other offences. In Duncombe v R [2013] NSWCCA 271, with the concurrence of Hoeben CJ at CL and Bellew J, I said at [49]-[53]:

“49   In the case of offences under s.33 Crimes Act 1900, this Court has noted the wide gap between these two guideposts: R v Mitchell; R v Gallagher [2007] NSWCCA 296; 177 A Crim R 94 at [36]-[38]; Anderson v R [2008] NSWCCA 211 at [17]; R v Wright [2009] NSWCCA 3 at [19]; Sproates v R [2009] NSWCCA 29 at [43].

50   In the context of the offence of possess pistol contrary to s.7 Firearms Act 1996, it has been said that a maximum penalty of 14 years and a standard non-parole period of three years constitute ‘two irreconcilable standards’: R v Najem [2008] NSWCCA 32 at [38]; Thalari v R [2009] NSWCCA 170; 75 NSWLR 307 at 320 [84]-[85].

51   A similar comment was made concerning a maximum penalty of 14 years and a standard non-parole period of four years, for car rebirthing contrary to s.154G Crimes Act 1900, where it was said that it was ‘difficult to reconcile’ these two periods: R v Hamieh [2010] NSWCCA 189 at [54]-[56].

52   A similar observation may be made concerning the respective periods of 25 and seven years for a s.33(1)(b) offence such as in this case. Concentration upon the standard non-parole period may serve to distract from the maximum sentence, in a manner which may operate in an unduly favourable fashion to an offender. The sentencing Judge in this case was alive to this consideration … .

53   Despite that wide gap, it is, of course, necessary for a sentencing court to have regard, and give appropriate weight, to both periods. Undue focus on the standard non-parole period may serve to distract from the proper role of the maximum penalty on sentence.”

125. Howie J addressed this topic in Maxwell v R, at [26], with respect to s.112(2) offences:

“The problem of applying the standard non-parole provisions in relation to a s 112(2) offence has been recognised by this Court: see Marshall v R [2007] NSWCCA 24. The difficulty is derived firstly from the fact that the standard non-parole period specified is 5 years imprisonment as against a maximum sentence of 20 years and, secondly, by the breadth of the range of offences that may fall within the scope of the section. One of the relevant matters referred to in Marshall for determining where the objective seriousness of the offence lies is the number of aggravating features present.”

126. The maximum penalty of 25 years’ imprisonment indicates the seriousness with which an offence under s.112(3) is regarded. The offence carries the highest maximum penalty prescribed by the legislature short of life imprisonment: AM v R [2012] NSWCCA 203; 225 A Crim R 481 at 489 [67].

127. Where the special aggravating circumstance is the intentional infliction of grievous bodily harm, it should be kept in mind that this is the mental element for murder if the victim died: AM v R at 489 [68]. This aspect serves to emphasise the gravity of s.112(3) offences of this type.

128. It may be said that the setting of the seven-year standard non-parole period is intended to allow for the wide range of circumstances which may give rise to a s.112(3) offence. It remains important, however, that undue attention is not directed to the standard non-parole period with the risk of distracting proper attention being given to the maximum penalty. Both periods are important statutory guideposts.

129. The combination of factors in this case may be characterised appropriately as an “extremely serious” s.112(3) offence.

130. The Applicant attended the victims’ premises in the early hours of the morning. He told the female victim he was armed and wanted to buy drugs. She refused him entry and he smashed a hammer through the glass panel of the door and entered the house.

131. The Applicant attacked the male victim to the head with the hammer. He struck the victim twice, and continued to strike him to the head another five times after he had fallen to the floor and was lying on the ground. The ferocity of this attack itself, and the serious injuries which were caused, represent a very important feature of the offence on sentence.

132. The Applicant took the female victim’s handbag which contained cash and a camera. Although this aspect of the offence may be regarded as unremarkable, it would be wrong to focus on this aspect rather than considering the entire terrifying event, which included a sustained and ferocious hammer attack to the head of a man lying on the ground inside the house.

133. The Applicant was on parole at the time of the offence and had a history of serious offences of violence. He was not a young offender. There was nothing available to the Applicant by way of mitigation, apart from the circumstances brought about by his assistance to authorities and his decision to plead guilty to the offence.

134. I do not consider that the circumstances of the offences in the other cases relied upon for the Applicant (at [106] above) assist him to demonstrate that the sentence imposed in this case was manifestly excessive.

135. There are features of these cases which serve to distinguish them from the present case. Only four of them concerned a circumstance of special aggravation involving infliction of grievous bodily harm. What the cases illustrate is the relatively wide range of circumstances in which s.112(3) offences can occur.

136. The cases do not demonstrate a range of penalty, nor do they fix an upper limit of sentence inhibiting the exercise of the sentencing discretion: Spark v R at [50]. The cases serve to demonstrate that the Applicant received a substantial sentence, but not one which may be characterised as unreasonable or plainly unjust.

137. The most experienced sentencing Judge in this case paid close attention to the circumstances of the offence itself, the Applicant’s poor criminal history, his history of drug abuse, the fact that the offence was committed whilst on parole and the statutory guideposts constituted by the maximum penalty and standard non-parole period. In addition, his Honour had close regard to the factors operating in the Applicant’s favour by way of his assistance to authorities and his plea of guilty. The consequential positive aspects flowing from these steps, by way of contrition and improved prospects of rehabilitation, also operated in favour of the Applicant.

138. It is true that the starting point adopted by the sentencing Judge was a substantial one. However, this was an extremely serious s.112(3) offence committed by an offender on conditional liberty with a history of committing serious crimes. I am not persuaded that consideration of the starting point adopted by the sentencing Judge supports a conclusion that the ultimate penalty imposed was manifestly excessive.

139. His Honour had regard to s.23 Crimes (Sentencing Procedure) Act 1999 in reducing the sentence for assistance to authorities. In considering the present claim for manifest excess, it is necessary to keep in mind, as well, as a final and critical consideration, that a lesser penalty that is imposed under s.23 in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence: s.23(3); Hutchinson v R [2014] NSWCCA 317 at [34].

140. It has not been demonstrated that the sentence imposed upon the Applicant was manifestly excessive. The sentence imposed was not unreasonable or plainly unjust.

141. I would reject the second ground of appeal on sentence.

Conclusion

142. Having regard to the grounds advanced for the Applicant, I would grant leave to appeal against conviction and sentence, but would dismiss the appeals.

143. I propose the following orders:

1. grant the Applicant an extension of time to 30 October 2015 to apply for leave to appeal against conviction and sentence;

2. grant leave to the Applicant to appeal against conviction;

3. conviction appeal dismissed;

4. grant leave to the Applicant to rely upon Ground 1(b) on sentence;

5. grant leave to the Applicant to appeal against sentence;

6. sentence appeal dismissed.

144. R S HULME AJ: I have had the advantage of reading the reasons of Johnson J in this matter. I agree with the orders proposed by his Honour and generally with his Honour’s reasons.

145. Four grounds are advanced in support of the claim that the Applicant’s conviction amounted to a miscarriage of justice. One was that he is not guilty, a second seems to be that he did not appreciate material parts of the sentencing proceedings and when he tried to say something he could not, a third was that his lawyers did not communicate to him the contents of the Statement of Facts relied on by the Crown, a fourth was that his plea of guilty was attributable to his being wrongly advised as to the likely sentence he would receive.

146. There is no evidence which comes close to being persuasive of the first ground, even if one puts aside the Applicant’s plea. The same may be said of the second. What the Applicant wanted to say was not made apparent, nor is it clear on which of two separate days during which the matter was dealt with was it that the Applicant said he was prevented from talking. On the first of these days he pleaded guilty and on the second there were many separate occasions when one or other of the counsel and the judge spoke and there is nothing in the transcript to suggest the Applicant sought to interrupt or wanted to speak.

147. His counsel and solicitor gave evidence contradicting the third and there is nothing in any of the evidence to provide a basis for preferring the evidence of the Applicant on the topic.

148. According to the Applicant’s evidence in this Court, when originally charged he thought he would be sentenced to imprisonment for something of the order of eight or nine years. He was on parole at the time of the incident alleged and his previous sentence – for an offence of robbery in company – was for a period of six years and nine months. Previously he had been convicted of numerous offences of dishonesty and served at least seven sentences of imprisonment.

149. Prior to pleading guilty to the offence with which this Court is concerned, the Applicant’s solicitor visited him in custody on a number of occasions. On one such occasion in 2013, aware that he was charged with aggravated break and enter, the Applicant informed his solicitor that he was not guilty of the charge because he had been invited into the victim’s home and did no “breaking” because he neither opened any door not smashed any window.

150. Some support for this account is provided by two documents handwritten by the Applicant’s solicitor. The first, dated 25 July 2003 includes the following:-

I, …, understand that I am charged with specially aggravated Break and Enter with intent to inflict Grievous Bodily Harm.

I instruct my solicitor to plead NOT GUILTY on my behalf.

151. The second, dated 13 February 2014, after recounting what the Applicant said occurred, includes the following:-

I will plead guilty to recklessly causing GBH

There was no B & E.

152. At some stage the Applicant began to assist the authorities and commenced thinking of pleading guilty. After this he was visited by counsel who, according to the Applicant, said, “Just plead guilty, you’ll get 50% off” and “You’ll do 12 to 18 months” and on a later visit said, “You’ll do no more than two years”.

153. On the morning of 10 April 2014, the first day of the sentencing proceedings, the Applicant’s solicitor prepared a third document which reads:-

I, …, instruct my legal advisers to enter a plea of guilty to the charge of Special Aggravated B & E commit serious indictable offence namely inflicting GBH on 7 March 2014. (sic)

154. The Applicant has reading and writing difficulties and although all three documents are in the handwriting of the Applicant’s solicitor, they all bear the Applicant’s signature which, according to the solicitor was affixed after the documents were read to the Applicant.

155. Later on 10 April 2014 the Applicant was arraigned on, and pleaded guilty to, the charge (aspects have been deleted as they may serve to identify the Applicant):-

For that he on 7 March 2013 at [XXX] in the State of New South Wales, did break and enter the dwelling house of [XXX] at [XXX], and did commit a serious indictable offence therein, namely larceny of a handbag containing money and personal items, the property of [XXX], in circumstances of aggravation, namely that he was armed with an offensive weapon, namely a hammer and in circumstances of special aggravation, namely he did inflict grievous bodily harm on [XXX].

156. It is an inevitable inference from the three letters of instructions that the issue of whether the Applicant’s offence involved breaking and entering was the subject of discussion between him and his legal advisers and serious consideration to the issue of breaking and entering was given by the Applicant. In light of this the balance of probabilities is heavily in favour of the conclusion that when the Applicant pleaded guilty to a charge that included the words “did break and enter” he did so, conscious of these words.

157. Given the Applicant’s record, the fact that the offence charged against him carried a maximum penalty of 25 years’ imprisonment and a standard non-parole period of seven years, and the extent of injury to the male victim, the probabilities are also strongly against anyone giving the Applicant the advice he says he received to the effect that his sentence would not exceed two years.

158. As the judgment of Johnson J makes clear the onus is on the Applicant to show that a miscarriage of justice will occur if he is not allowed to withdraw his plea. The matters to which I have referred, satisfy me that the Applicant has not discharged that onus.

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Decision last updated: 28 October 2016