R v Chaaban

[2006] NSWCCA 107

CITATION:	R v Chaaban [2006] NSWCCA 107
HEARING DATE(S):	9 February 2006
JUDGMENT DATE:	7 April 2006
JUDGMENT OF:	Hunt AJA at 1; Simpson J at 6; Rothman J at 21
DECISION:	(a) Appeal allowed; (b) Respondent resentenced; (c) The sentence of Ellis DCJ be quashed and in lieu thereof the following sentence be imposed: (i) Count 3 - maliciously inflict grievous bodily harm with intent to do so contrary to s.33 of the Crimes Act 1900 on 21 January 2004; fixed term of imprisonment of three years to commence on 14 July 2004 and to expire on 13 July 2007; (ii) Count 1 - specially aggravated break enter and steal, contrary to s.112(3) of the Crimes Act 1900 on 21 January 2004: a non-parole period of two years and six months to commence on 14 July 2005 and to expire on 13 January 2008 with a balance of term of two and a half years to expire on 13 July 2010.
CATCHWORDS:	Criminal law - crown appeal - sentencing - manifest inadequacy - specially aggravated break enter and steal - malicious infliction of grievous bodily harm - standard non-parole period - relative criminality - objective criminality - subjective factors
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900
CASES CITED:	R v Gallagher (1991) 23 NSWLR 220 R v Wall [2002] NSWCCA 42 R v Prasad (2004) 147 A Crim R 385 Dinsdale v The Queen (2000) 202 CLR 321 Johnson v The Queen (2004) 78 ALJR 616 Markarian v The Queen [2005] 8 HCA 25 R v Abboud [2005] NSWCCA 251 R v AA [2006] NSWCCA 55 R v Ponfield (1999) 48 NSWLR 327 R v Henry (1999) 46 NSWLR 346
PARTIES:	C: The Queen R: Nazmi CHAABAN
FILE NUMBER(S):	CCA 2005/1836
COUNSEL:	C: J A Girdham R: Mark Higgins
SOLICITORS:	C: S Kavanagh, DPP R: Steve O'Connor, LAC
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/21/0278
LOWER COURT JUDICIAL OFFICER:	Ellis DCJ

- 16 -

2005/1836

HUNT AJA
SIMPSON J
ROTHMAN J

7 April 2006

REGINA v Nazmi CHAABAN

Judgment

1 HUNT AJA: The sentences now proposed are, before the 50% discount is taken into account, effectively a full term (or head sentence) of eleven years with a non-parole period of seven years. Such a sentence would fairly be described as being at the lower end of what would have been appropriate in the circumstances of this case were it not for the applicant’s guilty plea and his assistance to the law enforcement authorities.

2 I do not understand why the Crown has not objected to the 50% discount allowed by the sentencing judge. There is always a problem with giving discrete discounts for more than one specific issue for which a discount must be specified in the particular case. A sentencing judge should not ignore the terms of s 23(3) of the Crimes (Sentencing Procedure) Act 1999 (the section dealing with discounts for assistance provided to law enforcement authorities), which provides:

A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence.

3 In Regina v Gallagher (1991) 23 NSWLR 220 at 232 — well before s 23(3) was enacted — Gleeson CJ (with whom I expressly agreed on this issue, at 234), after pointing out that discounts of this kind are for the benefit of both the Crown and the offender, and that there is usually no-one to put an opposing or qualifying point of view, said:

Public confidence in the administration of criminal justice would be diminished if courts were to give uncritical assent to arguments for leniency, which are being jointly urged by both the prosecution and the defence, in circumstances which may call for a close examination of the alleged assistance. Care must also be taken to ensure that the ultimate sentencing result that is produced is not one that is so far out of touch with the circumstances of the particular offence and the particular offender that, even understood in the light of the considerations of policy which supports [the discounts given], it constitutes an affront to community standards. If sentencing principles are capable of producing an outcome of that kind, then that calls into question their legitimacy.

I have added the emphasis to the second sentence.

4 In my view, the 50% accumulated discount given in this case has ignored both s 23(3) and community standards. However, as the Crown has not raised the issue, I can take the matter no further.

5 I agree with the orders proposed by Rothman J, for the reasons given by Simpson J and these additional reasons.

6 SIMPSON J: I have read in draft the judgment of Rothman J. I agree with the orders proposed. I can state my reasons succinctly.

7 The true nature of the respondent’s criminal conduct is plain from the short description of the events given by Rothman J. I need not add to that. These were very serious crimes. The sentences imposed were as set out by Rothman J; they resulted in an overall sentence of four and a half years with a non-parole period of three years, against a statutory maximum, in respect of each offence, of 25 years, and a standard non-parole period of seven years.

8 The Crown has put, essentially, three propositions:

- the sentences, individually and in aggregate, were manifestly inadequate and disproportionate to the criminality involved;

- the sentencing judge was in error in finding that the respondent’s offences were below the middle of the range of objective seriousness;

- the sentencing judge failed to take into account several aggravating features, required by s.21A(2) of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”) to be taken into account.

9 In the context of the first of these propositions, the Crown submitted that the judge gave undue emphasis to the pleas of guilty, assistance to police and subjective factors. The Crown stopped short, however, of arguing that a combined discount of 50% in respect of the utilitarian value of the plea, contrition and remorse, and assistant to authorities, was not open to his Honour.

10 In my opinion each of the Crown propositions set out above has been made good. In reaching this conclusion I have not overlooked the strong subjective case advanced on behalf of the respondent. His start in life was anything but auspicious. It is to his credit that he attained the age of almost 26 years with no criminal record of any significance. That record as was disclosed was rightly assessed by the judge as immaterial to the sentencing exercise. The respondent was and is entitled, in the sentencing decision, to recognition of that circumstance. He was, of course, entitled to a discount of up to 25% in recognition of the utilitarian value of the pleas of guilty; and to a further discount in respect of both past and promised future assistance to authorities; it is undesirable to be too specific about the nature of the assistance; it is sufficient to say that it included an undertaking to give evidence against co-offenders. It appears to me that it must have been of substantial value.

11 However, those circumstances cannot be allowed to overshadow the objective gravity of the offences. In relation to Count 3, the offence of maliciously inflicting grievous bodily harm with intent to do so, the gravity of the offence may, in part, be gauged by reference to medical evidence. Mr Wormleaton suffered lacerations to the back of the head, to the left cheek, to the left rib, to the left great toe, and two large lacerations to the left forearm with tendon and nerve injury, and a seriously fractured arm.

12 Count 1, the offence of especially aggravated break, enter and steal, was also a very serious instance. This offence took place in the home of the Wormleaton family. The family were present; it was evening; Mr and Mrs Wormleaton were asleep in bed; both were blindfolded and Mr Wormleaton had his hands handcuffed behind his back; there were five offenders present; they were armed with knives and a gun; one of the offenders appropriated a machete which belonged to Mr Wormleaton and used it to cause serious injury; in lay terms his forearm bone was virtually completely severed.

13 In a victim impact statement Mr Wormleaton claimed to have lost his physical capacity ever to operate to his full potential, to have lost his business; to have become bankrupt; and to have lost all of his material possessions. He said that he now lives in rental accommodation and claims disability benefits.

14 Mr Wormleaton also referred to the effect on him, emotionally, of the knowledge that his wife and daughter had been sexually assaulted, but, of course, as Rothman J has made clear, this cannot be taken into account in relation to the sentencing of the respondent.

15 Those circumstances, alone, make it plain that that offence could not reasonably be classified as lower than the middle of the range of objective seriousness of offences against s33 of the Crimes Act 1900. It was an error to do so.

16 That Mr Wormleaton suffered grievous bodily harm could not be taken into account in respect of this offence as an aggravating feature. That is because it is an element of the offence of especially aggravated break, enter and steal (constituting a circumstance of special aggravation) with which the respondent was charged. The other circumstances I have outlined, however, are all relevant to the evaluation of the objective seriousness of the offence. It was, in my opinion, also an error to characterise this offence as of less than the middle of the range of objective gravity.

17 Further, although his Honour said that he had taken into account s.21A of the Sentencing Procedure Act, he expressly said that the only aggravating feature was the vulnerability of two victims, one of those being Michael Wormleaton who suffered from cerebral palsy, and the other Ben Ball who was recovering from major surgery. As the Crown has pointed out, the first offence was aggravated by having been committed in company (s.21A(2)(e)), by involving multiple victims, by involving a series of criminal acts (s.21A(2)(m)), and by being part of a planned or organised criminal activity. The second offence was aggravated by having been committed in company and by reason of the extent of the injury and emotional harm as well as loss and damage that was caused (s.21A(2)(g). That these factors were overlooked is plain from the explicit statement that only victim vulnerability was relevant.

18 These errors resulted in sentences that were, both individually and in their combined effect, manifestly inadequate. They indicate, among other things, that insufficient regard was paid to the standard non-parole period, which was, in respect of each offence, seven years. The fixed term imposed in respect of Count 3 and the non-parole period imposed in respect of Count 1 each represents a sentence to be served of 28.5% of the standard non-parole period.

19 The total non-parole period that resulted after accumulation and the combination of the sentences is less than 43% of the standard non-parole period applicable to each offence. Even if I were not of the view that it was an error to regard the offences as below the middle of the range of objective seriousness, so great a departure would, other than in an exceptional case, be questionable. Of course, the correct way to gauge the adequacy of the sentences is to factor in the 50% by which they have been discounted. This results in a notional sentence on the third count of a fixed term of imprisonment of four years, and on the first, of a term of imprisonment for seven years with a non-parole period of four years. The total sentence, before discounting, would have been imprisonment for eight years with a non-parole period of five years. The fixed term and the non-parole period in respect of Count 1 would each equate to 57% of the standard non-parole period. The combined non-parole period for both offences would equate to 71.4% of a single standard non-parole period.

20 Having regard to the respondent’s very unfortunate history, to the absence of any previous criminal behaviour of any substance, and to the principles which govern Crown appeals, and most particularly to the 50% discount, I agree with the sentences proposed by Rothman J. Were it not for those circumstances, I would have considered that even those proposed sentences fail to meet the needs of justice in this case.

21 ROTHMAN J: The Crown appeals the sentence imposed upon Nazmi Chaaban on 7 November 2005 by his Honour Ellis DCJ. His Honour sentenced the respondent after a plea of guilty to two charges (a third charge was an alternative charge which was fully satisfied by the guilty plea). The two relevant charges were:

Count 1: specially aggravated break, enter and steal; in contravention of s.112(3) of the Crimes Act 1900 for which there is a maximum penalty of 25 years’ imprisonment. Date of offence: 21 January 2004.

Count 3: malicious infliction of grievous bodily harm with intent so to do contrary to s.33 of the Crimes Act 1900 which carries a maximum penalty of 25 years’ imprisonment. Date of offence: 21 January 2004.

22 His Honour sentenced the respondent to the following sentences:

Count 3: a fixed term of imprisonment for two years commencing on 14 July 2004 and to expire on 13 July 2006.

Count 1: imprisonment for three years and six months commencing on 14 July 2005 and to expire on 13 January 2009 with a non-parole period of 2 years expiring on 13 July 2007.

23 In this case the Crown relies upon manifest inadequacy and the failure to have proper regard to the standard non-parole period. In order to deal with the appeal, it is necessary to have an understanding of the circumstances of the offences; to deal with the principles that this court applies on an appeal by the Crown; and then, the application of the principles to sentencing. To the extent that the grounds of appeal are made out, the Court is required to re-sentence.

Facts

24 The respondent, Nazmi Chaaban, was one of six persons, the others being Messrs Buckley, Ball, Martin, Mekoreh and Singh, who, in the early morning of 21 January 2004 broke into the Wormleaton family residence in Glenorie. All of the occupants of the house were, at this stage, asleep. The occupants were David and Jodie Wormleaton and their children Tara (16) and Michael (13). Also occupying the house at the time was a family friend, Ben Bell, who was 18 years of age. Michael, the young boy, was not easily able to move because of his cerebral palsy. Ben Bell was, also, partly immobile, because he was recovering from having a lung removed.

25 One of the co-accused, David Buckley, had been living with the family and was younger than the other accused. He knew that David Wormleaton was growing cannabis plants. Unhappy with his treatment by the family, on the night of 20 January 2004 in the apartment of Mr Singh, he complained to the respondent and the other co-accused, who were all present. The respondent knew the person complaining as “Tommy”. It was decided that the group would break in and steal the cannabis plants. This plan proceeded and succeeded; in all, $2,500 cash, some cameras and phones, together with the cannabis plants, were taken. Different roles were played by each of the co-accused.

26 Mr Buckley’s role was to move the plants from the residence into the accused’s vehicles. Mr Ball was left to guard the vehicles. Messrs Martin and Mekoreh had the task of detaining David, Jodie and Tara Wormleaton. Their job also was to steal the cash and property. During the course of the night, these two co-accused physically assaulted David Wormleaton and sexually assaulted Jodie Wormleaton and Tara Wormleaton. They were armed with a large kitchen knife, a loaded gun and a machete which belonged to David Wormleaton. The respondent’s role was to detain Michael Wormleaton and Ben Ball. The respondent also assisted in the chase of David Wormleaton. At times the respondent was armed with the same large kitchen knife to which reference has already been made. Mr Athol Singh was, with Mr Ball, guarding the vehicles.

27 The events unfolded in the following way. While the respondent ushered the boys into a room and held them there through threat, but not physical violence, Messrs Martin and Mekoreh detained David and Jodie Wormleaton in their room by using handcuffs found there. They beat David Wormleaton. Tara Wormleaton was then brought in and tied up. Messrs Martin and Mekoreh then cut off the clothing of the females and digitally penetrated the vagina of each female. Each was also vaginally penetrated by an unknown object resulting in physical damage. There was a safe in the room to which David Wormleaton would not provide the code because, he protested, he did not know it. The assault of his wife and daughter was used as a means of attempting to coerce David Wormleaton’s assistance.

28 At some point David Wormleaton broke through a bathroom window to the garden and ran, pursued by Messrs Martin and Mekoreh and the respondent. He was caught and a knife struggle ensued. His hands were cut. According to David Wormleaton he again ran, was caught and his arm was severely wounded with the machete. His assailants then returned to the vehicle and drove away. It is agreed that the machete struggle took place, however, it is the respondent’s claim that the co-accused Martin, took the knife as they chased David Wormleaton. The respondent saw a knife struggle, but did not see the machete struggle. On his evidence, it was after the knife struggle that Messrs Martin, Mekoreh and he returned to their vehicle.

29 The respondent was paid $1,000 and, some days later, given some cannabis plants. According to the respondent, he learnt only through others that Messrs Martin and Mekoreh had sexually assaulted the females. He asked his co-accused and was threatened by them. The co-accused also disposed of his clothing. It was stained with blood, he claims, from running into David Wormleaton’s hands in the garden chase.

30 Prior to the planning and implementation of the offence, the respondent had spent the day with Messrs Martin and Mekoreh smoking ice, cannabis and taking ecstasy.

31 During the course of the incident in question, it is alleged that the respondent bound Ben Bell with wire, although the respondent does not recall this event. The respondent also claims that the group threatened him at the apartment when he resisted the plan and that Messrs Martin and Mekoreh yelled orders at him at the scene, as a result of which he was afraid for his own safety if he did not comply. While he maintains that he did not know that Messrs Martin and Mekoreh would be armed until they arrived at the Wormleaton’s house, as already pointed out, he himself was armed, for at least part of the time.

32 The attack on David Wormleaton, after he tried to escape, was one in which the respondent’s role was limited to chasing him down and taking hold of him in the early stages of the struggle. Nevertheless, the respondent, at one stage during this time, was carrying a knife and the struggle to which, on his version, the respondent was an onlooker and minor participant, was such that David Wormleaton’s forearm bone was severed. (Although the respondent contends the severing was occasioned by an assault with the machete, not the knife, at a time after the respondent had ceased to be involved.)

33 For the purpose of dealing with the objective seriousness of the offences with which the respondent was charged, it is necessary to disregard the sexual assault because this was an unplanned extension that was not agreed and not known about by the respondent. However, in dealing with parity, it should be borne in mind that the sexual assaults on Jodie and Tara Wormleaton were the subject of separate charges from the matters that gave rise to the charges against the respondent.

34 There are a number of subjective matters which need to be taken into account in dealing with the respondent and his sentencing. The respondent was born in Lebanon and his mother was killed when he was 4 months’ old. His father was killed during the civil war while the respondent was an infant. On the death of his parents, the respondent was passed from pillar to post, predominantly to different members of the family. He at one stage was taken in by an aunt, although reluctantly by her, and he was included in her family’s immigration to Australia. This aunt, it is said, beat him and treated him as a household slave. He ran away from home a few times and, for some part of the time, lived on the streets. He was sent to Germany to live with an uncle who suffered from an addition to cocaine and who also beat him. After 12 months, he returned to Australia and lived with another uncle and an aunt. He has completed less than three years of formal schooling. He has traumatic recollections of dead bodies and violence in Lebanon. He is depressed, slightly intellectually disadvantaged and suffers suicide ideation. There is no evidence of a drug addition. He was, according to the sentencing judge, acutely remorseful.

Principles on Crown Appeal

35 The principles applicable by this Court are well known and have been stated on many occasions. They were summarised by Wood CJ at CL in a much cited paragraph in R v Wall [2002] NSW CCA 42, which is cited in full in R v Prasad (2004) 147 A Crim R 385 at [27] in the following terms:

“(a) The normal restriction upon appellate review of the exercise of a discretion, as set out in House v The King (1936) 55 CLR 499, applies to Crown appeals against sentence: Dinsdale v The Queen (2000) 202 CLR 321; with the result that this Court cannot merely substitute its opinion, as to the appropriate sentence, for that of the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665 at 671; rather, it may interfere only where error either latent or patent is shown; R v Tait (1979) 46 FLR 386 at 388; and Wong and Leung v The Queen (2001) 207 CLR 584; 76 ALJR 79 at [58] and [109].
(b) Appeals by the Crown should generally be rare; Malvaso v The Queen (1989) 168 CLR 227 at 234, and unless there is a clear error of principle identified, it would be exceptional for the Court to interfere: R v Baker [2000] NSWCCA 85.
(c) A Crown appeal against sentence is concerned with establishing matters of principle ‘for the governance and guidance of courts having the duty of sentencing convicted persons’: per Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 but this power extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing, that is, where the sentence is definitely outside the appropriate range for the case in hand: Everett v The Queen (1994) 181 CLR 295 at 299, 74 A Crim R 241 at 244; Dinsdale v The Queen (2000) 202 CLR 321, 115 A Crim R 558, and Wong and Leung v The Queen .
(d) The Court has a lively discretion to refuse to intervene even if error has been shown, and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal: R v Allpass (1993) 72 A Crim R 561, Director of Public Prosecutions v Papazisis (1991) 51 A Crim R 242 at 247, and Wong and Leung v The Queen at [110].
(e) A sentence which is imposed as a consequence of a successful Crown appeal will generally be less than that which should have been imposed by the sentencing court: R v Holder and Johnston (1983) 3 NSWLR 245 at 256, and will generally be towards the lower end of the available range of sentence: Dinsdale v The Queen at para [62].”

36 I have previously stated that to that summary should be added the statement in Dinsdale, supra, concerning the Court’s “strong resistance” to tinkering with sentences and the injunction to appellate courts in the joint judgments of Gummow, Callinan and Heydon JJ in Johnson v The Queen (2004) 78 ALJR 616 at [26].

37 The principles associated with flexibility were recently confirmed by the High Court in Markarian v The Queen [2005] 8 HCA 25 in the following terms:

“[25] …Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? …

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

[30] Legislatures do not enact maximum available sentences as mere formalities. …

[31] It follows that careful attention to maximum penalties will almost always be required, first, because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yard stick.”

38 In this case, the respondent relies, heavily, on the “exceptional nature of the power to appeal” granted to the Crown and the residual discretion opposed in the Court to refuse such an appeal. As I (with whom Grove and Howie JJ agreed) said in R v Abboud [2005] NSWCCA 251:

“While the power reposed in either the DPP or the Crown to appeal a sentence under s.5C of the Criminal Appeal Act 1912 has been described in a number of ways to emphasis its exceptional character, ultimately, it is a power granted by the legislature that, while the Court may discourage its use on other than rare occasions, is available to the Crown and when such an appeal is filed, it must be dealt with in accordance with principle.”

39 As was pointed out recently by Hulme J (R v AA [2006] NSWCCA 55) the rarity of a Crown appeal will depend largely upon the degree to which sentencing judges make error and impose manifestly inadequate sentences. Similarly the residual discretion reposed in the Court not to intervene on a Crown appeal is a discretion to allow error to stand because to intervene would, in the circumstances, be unfair to the respondent. It depends very much on a subjective assessment by the Court on the effect of an intervention, the timing of it and issues associated with double jeopardy. (See R v AA, supra, at [57], [58] and [1])

40 This is not a matter which raises the subjective elements and issues of fairness that would enable the Court to exercise its residual discretion not to intervene if error were shown. I deal, then, with the sentence, any errors that are apparent and, if so, the sentence to be imposed.

Sentence

41 His Honour’s finding is that the criminality of this offender is “at the low to mid level of the range”. That assessment is done because of the assessment of the relative criminality of this offender to the co-accused, Messrs Martin and Mekoreh. In relation to Martin and Mekoreh, his Honour was of the view that they were at the “moderate, middle or average range”.

42 This is a fundamental finding which forms the basis of the sentence that is thereafter imposed. While it is usually within the discretion of the Court to determine the relative criminality of an offender and of the offence committed, there are times when that analysis is manifestly incorrect and requires correction on appeal.

43 As stated above, this was a situation in which a family was asleep and were attacked by a gang of five persons, three of whom entered the premises, detained and physically restrained the inhabitants, and assaulted them with weapons, partially severing a forearm, in order to steal money and goods. While the growing of cannabis is not condoned by the Court, the fact that the victim was growing cannabis is irrelevant to the criminality involved in the offences with which we are now dealing. I have deliberately not taken into account, in dealing with the criminality, the sexual offences, because, as earlier stated, they were not part of the joint criminal enterprise and were the subject of separate charges against the two offenders in question.

44 Nevertheless, even ignoring the sexual assaults, it is extremely difficult to understand how it is that his Honour could describe the criminality of the two principal offenders as mid range. It is also difficult to understand how the respondent’s criminality could be described as “the low to mid level of the range”. While it is always possible to imagine a worse case (although in this case, it is difficult) that is not the task in determining objective criminality. The possession by a judge of a vivid imagination does not lessen the objective criminality of an offence. It is always possible to imagine a worse case than the one currently before the Court.

45 The other aspect of the finding of his Honour which is of concern is the determination of relative criminality as between the offenders in question. In this case, the offence that was occurring was a joint criminal enterprise, planned and implemented. While the respondent states that he was unaware, beforehand, that his co-offenders would be armed, it is clear on the facts that the respondent, himself, was armed during the offences in question. It seems, on its face, that the sentencing Judge has determined relative criminality in a manner which has been unduly affected by the occurrence of the sexual assaults. As previously stated, the sexual assaults were the subject of separate charges and, while it is permissible to take them into account in determining the relative criminality of the respondent compared to those that engaged in the sexual assault, it is not permissible to take them into account to the extent seemingly done by his Honour in relation to the sentences imposed for these offences. Each of these offences has a maximum penalty of 25 years’ imprisonment. Further, each of them has a standard non-parole period under Division 1A of the Crimes (Sentencing Procedure) Act 1999. The standard non-parole period for each is seven years’ imprisonment. The necessary assumption on that basis, and the operation of s.44(2) of the Crimes (Sentencing Procedure) Act 1999, is that in an ordinary case, the standard non-parole period will be seven years and the balance of the term will be a further two years and four months.

46 Of course, the standard non-parole period is fixed by reference to a person who is sentenced after a plea of not guilty and makes no allowance for pleas of guilty and/or assistance. Nor does it allow for any assessment of the subjective elements of the offender.

47 As already stated, the subjective elements associated with this offender are significant. His childhood was horrendous and he is entitled to as much leniency as is consonant with a proper approach to the offences in question, certainly if he were able to show prospects of rehabilitation.

48 However, the sentence fixed by his Honour is less than a third of the standard non-parole period in relation to both Count 3 and Count 1. Taking into account all of the subjective factors, including that this will be the first time that the respondent has gone to gaol, this sentence is manifestly inadequate.

49 While the sentencing judge refers to the judgments of the Court of Appeal in Ponfield (1999) 48 NSWLR 327 and Henry and to communal attitudes being such that “one of the greatest fears … is that whilst residing in the home, [members of the community] would be the subject of home invasion of this type”, his Honour’s sentence does not reflect that attitude. Neither does it reflect the greater seriousness of these offences than the offences dealt with in the judgment in R v Henry (1999) 46 NSWLR 346 at [162], [163].

50 I do not cavil on appeal with the sentencing judges quantification of a discount for the utilitarian value of the plea of guilty and contrition. His Honour assessed the value as 25 percent. Further, the sentencing judge determined that there should be a significant discount (25 percent) on account of the assistance to police. This results is a total discount of 50 percent for the plea of guilty, contrition, remorse and assistance to police and is a discount which is higher than one would expect given the circumstances of the plea and the assistance. Nevertheless, given that these are matters that ought to remain within the discretion of the sentencing judge, I am not prepared to interfere with that assessment.

51 I have continued to rely upon the basis that there are special circumstances warranting a departure from the statutory ratio of non-parole period to parole period. I have not fixed a balance of term in relation to Count 3 because it will be overtaken by the period that would otherwise be served as the non-parole period in Count 1.

52 I have taken into account the subjective elements of the respondent’s childhood in his favour, although I will not allow the sentence to go lower than the range available for the offence in question. I also follow the injunction that, on a Crown appeal, the sentence fixed should be at the lowest end of the range available. I propose that the Crown appeal be allowed and that the respondent be re-sentenced. I propose that the sentence of Ellis DCJ be quashed and in lieu thereof, the following sentence be imposed:

Count 3: maliciously inflict grievous bodily harm with intent to do so contrary to s.33 of the Crimes Act 1900 on 21 January 2004; fixed term of imprisonment of three years to commence on 14 July 2004 and to expire on 13 July 2007.

Count 1: specially aggravated break enter and steal, contrary to s.112(3) of the Crimes Act 1900 on 21 January 2004: a non-parole period of two years and six months to commence on 14 July 2005 and to expire on 13 January 2008 with a balance of term of two and a half years to expire on 13 July 2010.

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