R v Dennis

[2015] NSWCCA 297

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	R v Dennis [2015] NSWCCA 297
Hearing dates:	16 November 2015
Date of orders:	04 December 2015
Decision date:	04 December 2015
Before:	Johnson J   at [1] Beech-Jones J   at [5] R.S. Hulme AJ   at [63]
Decision:	(1)   Leave to appeal be granted; and (2)   The appeal be dismissed.
Catchwords:	SENTENCE APPEAL – applicant robbed passenger on a public train by cutting his throat – applicant on parole at time of offence – significant criminal record – sentence of eleven years with non-parole period of eight years and three months – offence of robbery while armed and inflict grievous bodily harm – standard non-parole period of seven years imprisonment – whether sentencing judge erred in assessment of objective seriousness – whether judge erred in using similarity with previous offence to determine whether offence was planned or premeditated – whether breach of procedural fairness by sentencing judge – whether sentence manifestly excessive – leave to appeal granted but appeal dismissed.
Legislation Cited:	- Crimes Act 1900 (NSW) – s 98 - Crimes (Sentencing Procedure) Act 1999 (NSW) – s 21A, s 54A - Evidence Act 1995 (Cth) – s 4(3)
Cases Cited:	- Barbaro v The Queen [2014] HCA 2; 253 CLR 58 - Button v R [2010] NSWCCA 264 - Dang v R [2014] NSWCCA 47 - Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 - Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam, Re [2003] HCA 6; 214 CLR 1 - Muldrock v The Queen [2011] HCA 39; 244 CLR 120 - Mulato v R [2006] NSWCCA 282 - R v Chisari [2006] NSWCCA 19 - R v Ibrahami [2005] NSWCCA 153 - R v JW [2010] NSWCCA 49; 77 NSWLR 7 - R v Pham [2015] HCA 39 - Tweedie v R [2015] NSWCCA 71 - Veen v R (No 2) [1988] HCA 14; 164 CLR 465 - Weir v R [2011] NSWCCA 123
Category:	Principal judgment
Parties:	Shane Barry Dennis – Applicant Crown – Respondent
Representation:	Counsel: W. Hunt, J. Paingakulam – Applicant E. Balodis – Respondent   Solicitors: Proctor & Associates – Applicant Solicitor for Public Prosecutions – Respondent
File Number(s):	2012/270220
Decision under appeal	Court or tribunal: District Court Date of Decision: 16 May 2014 Before: Knox SC DCJ

Judgment

1. JOHNSON J: I agree with the orders proposed by Beech-Jones J and his Honour's reasons for those orders.

2. I wish to make one additional observation. The Applicant's offence was a most serious example of a crime of violence committed against a citizen who was using the public transport system at night. At the time of this offence, the Applicant was on parole for an offence of violence committed against other citizens who were using public transport.

3. This Court has emphasised that crimes of violence in these circumstances warrant severe punishment, and that “persons who are required to use public transport at night should be considered as vulnerable and protected by the sentences imposed in the courts” (R v JW [2010] NSWCCA 49; 77 NSWLR 7 at 41-42 [207]-[208]).

4. The sentencing Judge applied this principle appropriately in this case, by reference to the objective gravity of this offence and the importance of specific deterrence and general deterrence on sentence.

5. BEECH-JONES J: On 18 March 2104 an indictment was presented in the District Court charging the applicant, Shane Barry Dennis, with an offence contrary to s 98 of the Crimes Act 1900 of committing a robbery whilst armed and at the time of the robbery inflicting grievous bodily harm. The indictment included an alternative count of robbery whilst armed and at the time of the robbery wounding the victim.

6. On 26 March 2014 a jury returned a verdict of guilty to the principal count. The offence carries a maximum sentence of twenty five years imprisonment. A standard non-parole period of seven years imprisonment has been prescribed for the offence pursuant to s 54A(1) of the Crimes (Sentencing Procedure) Act 1999 (the “Sentencing Act”).

7. On 16 May 2014 the applicant was sentenced to a term of imprisonment of eleven years with a non-parole period of eight years and three months. The sentence was fixed to commence on 1 May 2013. The applicant will be eligible for release on parole on 1 August 2022.

8. The Applicant now seeks leave to appeal from his sentence. In his notice of appeal he relies on two grounds, namely that the sentencing judge erred in his assessment of the objective seriousness of the offence and that the sentence imposed was manifestly excessive. In submissions filed after the hearing of the appeal leave was sought to add an additional ground, namely that there was a breach of procedural fairness. Leave to raise this ground was not opposed. I propose that leave to raise that ground be granted. I will deal with that ground before the complaint of manifest excess. Nevertheless, for the reasons that follow, I would grant leave to appeal but dismiss the appeal.

The offence

9. The sentencing judge recorded the facts of the offence as follows:

“At about 7pm on 29 August 2012, both the offender and the victim, Mr Zeng Zhang, who I will refer to as Mr Zhang, were seen on CCTV footage at Kingswood Railway Station. The offender entered a carriage in the front section of a train going from Kingswood to Werrington. Mr Zhang had earlier been on the same platform as the offender and had entered another carriage, carriage 3.

Mr Zhang was sitting in an empty carriage, using his mobile phone, looking down on it, when the offender attacked him from behind. The offender held the victim’s hair with one hand. He cut Mr Zhang’s throat with the other hand, through the dermis, epidermis, and platysma muscle levels. The cuts left a linear scar of about 16 centimetres in length. The offender used a device like a scalpel, the handle of which was later found in his possession in a backpack he was carrying.

Mr Zhang, who was using his mobile phone when he was attacked, dropped the phone on the carriage floor. The offender ran out of the carriage. It was possible to move between carriage 3 and carriages 1 and 2. Mr Zhang did not see what happened to the person who attacked him.

At the next station, Werrington, CCTV footage showed Mr Dennis running from the train from carriage 3 or 4, two or three carriages from the carriage where Mr Zhang was. Mr Zhang came out of the end carriage, clutching his throat, and collapsed onto the platform floor. He was in the company of another passenger who assisted him with his injuries. Police and paramedics came and Mr Zhang was taken to hospital.

Mr Dennis ran down the platform, through the station and outside. Mr Zhang was able to tell the police who attended him that his phone was equipped with an application called Find My iPhone, which was activated. Searches were activated of the iPhone application, which led to Mr Dennis being found in land adjacent to nearby St Marys railway line within a short space of time. Also found on him was Mr Zhang’s mobile phone in his left pocket and a scalpel handle in a small compartment of his backpack. He was also carrying clothing in a backpack which was that shown on the CCTV footage of the Werrington and Kingswood stations.” (emphasis added)

10. The written submissions of the Applicant contended that this part of the sentencing judgment contains factual errors. First it was contended that his Honour erred in stating that the Applicant attacked the victim from behind. This contention is correct. The victim’s evidence was that his attacker was in front of him when he slashed his throat. The materiality of this error is addressed below.

11. Second, the Applicant pointed to the portion of the above passage which referred to the victim dropping his phone on the floor of the carriage and the offender running out. It was contended that this was erroneous as it was the victim’s evidence that he, the victim, ran out of the carriage. I do not accept this complaint. It is correct that it was the victim’s evidence that he ran out of the carriage but, as noted by his Honour, the offender ran out of the carriage as well. The Applicant asserted that the significance of this is that the “applicant did not simply take the mobile phone and run away, leaving the victim alone and without assistance”. However, the Applicant did take the mobile, abscond and leave the victim without assistance.

The sentencing judgment

12. After setting out the facts of the offence, the sentencing judge identified the facts and circumstances relied on by the Crown to identify the applicant as the assailant. Relevantly his Honour described the Crown case as circumstantial but strong and also stated that during the police investigation the applicant lied about his whereabouts at the time of the offence. Otherwise I note nine matters about the sentencing judgment.

13. First, his Honour noted that approximately 3cm of the 16cm span of the cut on the victim’s neck “penetrated the dermis through the platysma muscle” and the “anterior jugular vein was injured and needed suturing”. His Honour noted that as a result of the scarring the victim “still experiences pain some two years later”.

14. Second, his Honour noted the effect of the judgment in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 (“Muldrock”) concerning the significance of the standard non-parole period and the assessment of the objective seriousness of the offence.

15. Third, his Honour assessed the objective seriousness of this offence. His Honour’s finding is the subject of complaint. His Honour stated:

“There is always a degree of gradation of injuries in terms of what constitutes grievous bodily harm. It is submitted here, as I have said, by defence counsel that the injury was relatively minor. I do not agree. Any cutting of somebody’s throat involves a very serious and potentially life-threatening injury.

While I need to confine my consideration to what actually occurred, the criminality of the act includes the fact and the act of cutting a throat while on a moving train, and that becomes relevant, if not to the issue of grievous bodily harm, certainly the issue of general deterrence.

The degree of violence was significant. It was a short but fierce attack accompanied by the victim being grabbed by the hair and shaken. The victim had no warning or knowledge of the offender’s approach until the offender had actually grabbed him. The attack only lasted a matter of seconds. In this regard, the victim himself may not have been under a prolonged apprehension of fear. Nevertheless, it would have been a terrifying experience. Notwithstanding the Crown’s initial submissions that the criminality involved is mid-range, I find the criminality to be above midrange by virtue of all the surrounding circumstances as I have listed them, including the premeditation and planning involved at least from the time when Mr Dennis was observed at the preceding platform, watching Mr Zhang as he used his phone, as well as the modus operandi involved, given the similarities and the matters that I will refer to later in these remarks.” (emphasis added)

16. Later in the sentencing judgment his Honour returned to the topic of whether the offence was premeditated stating:

“… it appears to have been opportunistic.

However, the offence necessitated, as I have found, some planning to carry out regarding not only the carriage of the weapon, the backpack in which the weapon was secreted, the particular entry and exit from the train at the various platforms, the fact that he ran away from the station into vacant land, where he hid.”

17. Otherwise his Honour noted that the offence was aggravated because it was committed while he was on parole for an offence of aggravated robbery (Sentencing Act, s 21A(2)(j)). However his Honour did not take into account as aggravating factors the fact that the offence involved the use of a weapon or involved violence as they are elements of the offence (Sentencing Act, s 21A(2)).

18. Fourth, his Honour noted that the applicant’s criminal history involved “a number of matters of violence and offences such as escape lawful custody”, assault and “aggravated robbery charges”. Placed before his Honour was the statement of facts concerning the offence in respect of which he was on parole, namely an offence of robbery aggravated by violence committed in 2011 (the “2011 offence”). On that occasion, the applicant assaulted two women on a train and stole one of their handbags. For that offence he was sentenced to two years and three months imprisonment with a non-parole period of nine months and ten days. The sentencing judge otherwise noted that the applicant had received a range of sentencing options but they do not “seem to have had any significant impact on this offender at all”.

19. Fifth, his Honour considered and rejected a submission that a finding of special circumstances should be made. His Honour noted that, in addition to his criminal record, the applicant had a poor record on parole and had a number of disciplinary offences in gaol. His Honour ultimately found that there was “no evidence on which I could base any finding of reasonable prospects for rehabilitation”.

20. Sixth, his Honour noted that the considerations of general deterrence “militate in favour of a condign sentence” in that people using public transport at night should be “free of fear, let alone of violence”.

21. Seventh, his Honour noted the applicant’s subjective circumstances. At the time of the sentencing the Applicant was 38 years of age. He had been married but his wife left him after he went to prison. She has formed a new relationship. The Applicant has three children. The sentencing judge described him as having a “very unfortunate background”. He was raised by his mother and her partners were abusive towards him.  The sentencing judge noted that in prison the applicant had undertaken various vocational courses but noted that “dirty urine tests” indicated that his “drug abuse problems” had continued and there does “not seem to be any real recognition of his criminal past”. His Honour addressed in detail a psychologist’s report that was tendered. His Honour concluded that there “was no evidence of any kind of indication of his acceptance of … responsibility on his part”.

22. Eighth, his Honour addressed the commencing date for the sentence. The Applicant’s parole for the 2011 offence was revoked on 6 September 2012 with effect from 29 August 2012. Apparently this was due to his being arrested for the subject offence and his drug usage. His Honour noted that the applicant had been in custody “solely referable” to the subject offence from 1 May 2013. His Honour commenced the sentence from that day.

23. Ninth the sentencing judge did not accept that the applicant was “remorseful in any way”.

24. After discussing various decisions of this Court involving broadly comparable circumstances his Honour imposed the sentence noted in [7].

Ground 1: Error in the assessment of the objective seriousness of the offence

25. Ground 1 of the application contends that the sentencing judge erred in his assessment of the objective seriousness of the applicant’s role in the offending as “above midrange” (see [15]).

26. The approach to be taken to a ground framed in these terms was stated by Spigelman CJ in Mulato v R [2006] NSWCCA 282 at [37] as follows:

“Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour.”

27. In his written submissions Counsel for the Applicant, Mr Hunt, submitted that five matters “inappropriately” affected the sentencing judge’s assessment of the objective seriousness of the offence, namely: (i) the weight given to the gravity of the victim’s injury; (ii) the consideration given to the potential outcome of the assault; (iii) the reliance by the sentencing judge on the degree of planning and premeditation involved; (iv) the reference by the sentencing judge to the applicant’s prior criminal record and (v) certain factual errors in the sentencing judge’s findings concerning the facts of the offence. I will deal with each in turn.

The victim’s injury

28. In his written submissions Mr Hunt pointed to the following parts of the sentencing judgment as being contradictory:

“I note the victim’s injuries constitute an element of the offence and the extent of the injury is not to be a factor in the sentence, as was set out in The Queen v. Shezari [2007] NSWCCA 19”

“Here the extent and nature of the injuries were serious and that is a relevant factor in accordance with the decision The Queen v. Mitchell (2007) NSWCCA 177 A Crim R 94 at 27.”

29. However in its submissions the Crown noted that the reference to “The Queen v Shezari” in the transcript of his Honour’s ex tempore judgment was most likely a typographical error and should have been a reference to R v Chisari [2006] NSWCCA 19 (“Chisari”). In Chisari at [22] Simpson J stated:

“It is, obviously, quite correct that the offence was aggravated by the identity of the victim, and by the extent of injury. These were both taken into account by the sentencing judge. Treating the extent of the injury as an aggravating feature requires some caution. An element of an offence against s33 is the infliction of injury amounting to grievous bodily harm. To take that into account as an aggravating feature would contravene the direction contained in the final words of s21A(2). Where, however, as here, the injury significantly exceeds the minimum necessary to qualify as grievous bodily harm, it is relevant to take the extent of the injury into account. This was done and, in my opinion, no error has been shown in this respect.”

30. The Crown submitted that when the passages in [28] are considered in light of this statement of principle it is clear that, allowing for typographical errors in the transcription of the reasons, the sentencing judge accepted that the infliction of grievous bodily harm could not constitute an aggravating factor, but the extent of the injury could still be taken into account. In the end result Mr Hunt did not dispute that analysis and in any event I accept it. There was nothing “inappropriate” in the sentencing judge’s consideration of the extent of the victim’s injury.

Potential outcome

31. This aspect of ground 1 concerns that portion of the sentencing judgment extracted at [15] above in which his Honour referred to the cutting of a person’s throat as “potentially life-threatening” but also stated consideration needed to be confined to “what actually occurred”. It was contended that it was somehow erroneous to refer to the possible consequences of the wound rather than the actual consequences. I disagree. The life threatening nature of the wound reflects upon the nature and quality of the act that led to it being inflicted. A cut to the throat may inflict the same or similar physical harm as a cut to the leg, however a sentencing judge is entitled to treat the former as far more serious than the latter. Although not specifically referred to by the sentencing judge, s 21A(2)(ib) of the Sentencing Act specifies that it is an aggravating factor that “the offence involved a grave risk of death to another person or persons”.

Degree of planning

32. It was contended that his Honour erred in determining the objective seriousness of the offence by having regard, inter alia, to the “premeditation and planning involved” in the offence (see [15]). The written submissions noted that before the sentencing judge the Crown did not submit that the aggravating factor specified in s 21A(2)(n) of the Sentencing Act was made out, namely that the “offence was part of a planned or organised criminal activity”, yet his Honour relied on premeditation and planning as “an aggravating feature of the applicant’s offending”.

32. Irrespective of whether it might or might not fall within s 21A(2)(n), it is open to a sentencing judge to consider whether a criminal offence was something that arose out of an unforeseen incident or was spontaneous on the one hand or premeditated or planned on the other, or fell somewhere in between. The specification of a particular aggravating factor in s 21A(2) does not preclude the sentencing judge from considering analogous circumstances as bearing upon the relative seriousness of the offending (Sentencing Act; s 21A(1)(c); see R v Ibrahami [2005] NSWCCA 153 at [19] to [24] per Latham J with whom Grove and Barr JJ agreed). In this case, by reference to the circumstances of the offence and bearing in mind the facts of the 2011 offence, the sentencing judge considered that the applicant had a modus operandi of robbing people on public trains which would be put into action if circumstances permitted. It was open to his Honour to consider that in the course of determining the seriousness of the offending.

Prior record as an aggravating factor

34. The written submissions also contended that the sentencing judge erred in assessing the criminality involved in the offence by having regard to the applicant’s prior criminal record. The submissions highlighted the reference to “… the modus operandi involved, given the similarities …” in the passage extracted above (at [15]) and contended that this was a reference to the 2011 offence. It was contended that this was an impermissible use of his prior criminal record and, in particular, was inconsistent with Veen v R (No 2) [1988] HCA 14; 164 CLR 465, esp at 477 to 478 (“Veen No 2”).

35. To address this it is not necessary to consider the passage in Veen No 2 concerning the relevance of an applicant’s prior criminal record to the sentencing process other than to restate that it is “a fundamental precept of the criminal law … that a sentence should not be increased beyond that which is proportionate to the crime in order to extend the period of protection of the community” (Muldrock at [60]). For present purposes it can be accepted that an offender’s criminal record is generally irrelevant to an assessment of the objective seriousness of an offence, as that is “to be assessed without reference to matters personal to a particular offender or class of offenders” (Muldrock at [27]).

36. However, as submitted by the Crown, the sentencing judge did not reason that the objective seriousness of the offence was increased by reason of the applicant’s poor criminal record. Instead, to an extent, the sentencing judge drew on the similarities between this offence and the 2011 offence as supporting a conclusion that the offence was premeditated or planned in the sense discussed above. This aspect of the reasoning is the focus of complaint by the additional ground addressed below, but at this point it suffices to state that it was open to his Honour to reason in that way.

Alleged factual errors

37. In his written submissions Counsel for the Applicant contended that the sentencing judge “made some factual errors which, while not of enormous significance, demonstrate the apparently unfavourable disposition of the sentencing judge towards the applicant in determining the objective seriousness of the applicant’s offending”. This submission should not have been made. No ground of bias was raised or pursued and an allegation of bias should not be introduced as a side wind.

38. The alleged errors have already been addressed. The significance of the error as to whether the victim’s throat was cut from behind or in front was said to be that it affected the sentencing judge’s conclusion about the “degree of planning or the stealth of the attack”. In support of this complaint the applicant’s submissions referred to a finding by the sentencing judge that the “victim had no warning or knowledge of the offender’s approach until the offender had actually grabbed him”. This was said to be erroneous because the attack came from the front and the victim gave evidence that just prior to the attack he saw someone coming down the stairs of the train “in the corner of my eye” but he was concentrating on his iPhone. That evidence does not undermine the sentencing judge’s finding that there was no warning prior to the attack. Robberies of this kind are not usually pre-announced. The error about the victim being attacked from behind as opposed to from the front was immaterial.

Conclusion on ground 1

39. The conclusion that the criminality involved in the offending was “above mid-range” was well open to the sentencing judge. This was a vicious life-threatening and, to an extent, premeditated attack and robbery carried out on public transport.

40. I would reject ground 1.

Ground 3: Error in using circumstances of 2011 offence to base finding of premeditation

41. The additional ground raised by the Applicant following the hearing is as follows:

“The sentencing judge erred:

By having regard to the applicant's offence committed in 2011 in determining the issue of premeditation in relation to the index offence, and

Failed to provide the applicant with procedural fairness in [the] manner in which he determined that issue.”

42. This ground is related to the matters addressed at [32] to [35]. It assumes an acceptance by the Court of the Crown's submission as to the use that was made by the sentencing judge of the facts concerning the 2011 offence and contends that, if his Honour did rely on those facts as material supporting a finding that the offence was premeditated, then his Honour erred in doing so because it was contrary to what his Honour stated during the sentence hearing.

43. The course of the sentencing proceedings reveals that the sentencing judge was concerned about the relevance of the 2011 offence. At the commencement of the hearing his Honour raised with Counsel for the Applicant the fact that “there seems to be a lot of commonality” between the two offences but the sentence imposed for the 2011 offence was “pretty generous” and “that doesn’t seem to have had the slightest impact on him”. Counsel for the offender addressed in response. He accepted that this offence was a “repeat type incident on a train” but submitted that the only relevance of the applicant’s record was that it “depriv[ed] him of leniency”. The following exchange then occurred:

“HIS HONOUR: Even if I took the view that when he was sentenced for the earlier matter that involved the use of a fist. He’s a big man. He was bigger then. You attack somebody’s throat on a moving train with a scalpel and that’s the only finding of fact that is consistent with the jury’s verdict that I am entitled to make and you might argue that elsewhere if you want to?

Counsel for the Applicant: No. I’m not arguing that, your Honour.

HIS HONOUR: In terms of general deterrence people on trains at night, moving trains, are entitled to be there with their own safety considerations being recognised by everybody else. And in terms of personal deterrence, again, it’s almost on all fours …

Counsel for the Applicant: I accept, your Honour, in this second, must address specific and general deterrence, I accept that, and I think on that basis your Honour could take that into account that similar fact type situation, I accept that. I just wanted to make it clear about in terms of the use of his record, your Honour.

HIS HONOUR: Yes. I’d only be taking into account as a matter of personal deterrence and general deterrence, and the fact that he was on parole is an aggravating feature.

Counsel for the Applicant: Yes.” (emphasis added)

44. Later in submissions Counsel for the Applicant submitted that his Honour could not “increase the sentence to take into account [the earlier offence] going to issues of general deterrence”.

45. In submissions in reply before the sentencing judge the Crown repeated its submission that the offence fell within the mid-range of objective seriousness. However, consistent with the ultimate finding in the sentencing judgment, his Honour indicated that he considered it to be “above mid-range”. The following exchange then occurred:

“HIS HONOUR: What do you say would make it above mid-range or could make it, and I’m not saying ‘would’, could?

[The Crown]: The offence occurred at night. It did involve unnecessary violence but as my friend pointed out that is an element of the offence. … And I would say that there is a degree of planning involved in this offence in that the offender did get on a different carriage, proceed to the carriage where the robbery took place and then left in a separate carriage …” (emphasis added)

46. In his further submissions Mr Hunt contended that the use by the sentencing judge of the facts of the 2011 offence to base a finding that the offence the subject of this appeal involved some “premeditation and planning” was inconsistent with the second emphasised portion of the exchange extracted in [43]. It was submitted that this involved procedural unfairness in that a “practical injustice” was occasioned to the applicant (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [37] per Gleeson CJ) (“Lam”). In particular it was submitted that the applicant lost the opportunity to make a submission that the facts of the 2011 offence could not or should not be used to support a finding that the subject offence was premeditated and planned, and this included the opportunity to argue that a direction be made under s 4(3) of the Evidence Act 1995 that that Act apply to the sentencing proceedings so as to engage the provisions of s 97 and 101 as a basis for the exclusion of that evidence.

47. The relevant principle governing a complaint of this kind was stated by Adamson J (with the concurrence of Simpson and Davies JJ) in Dang v R [2014] NSWCCA 47 at [45]:

“[45] The question whether a party has been denied an opportunity to be heard, being a matter of substance, must be determined by reference to the circumstances during the proceedings. The real question is whether there has been actual unfairness, not whether there has been a disappointment because an expectation engendered by the decision-maker has not been fulfilled: Re Minister for Immigration & Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; 214 CLR 1 … at [34] per Gleeson CJ. Commonly, unfairness will arise where someone has been deprived of the opportunity to make submissions or has failed to make submissions by reason of an indication, which ultimately proves to have been false, from the decision-maker.”

48. This formulation was cited with approval by R.A. Hulme J in Tweedie v R [2015] NSWCCA 71 at [24] (“Tweedie”). In that case at [54] Basten JA stated:

“Procedural unfairness only arises where an offender has been denied an opportunity to pursue a particular submission or to call relevant evidence or in circumstances where some representation has been made to him that would dissuade him from taking a course which had been intended.” (emphasis added)

49. I accept that a literal reading of the second emphasised statement in [43] is inconsistent with the approach that was taken by the sentencing judge, as explained at [32] to [35]. Nevertheless I am not persuaded that the statement of the sentencing judge produced any unfairness such as to warrant a conclusion that there was a denial of procedural fairness. The question of whether the offence was planned or premeditated and, if so, to what extent, was raised at the sentence hearing yet no submission was made on behalf of the applicant to suggest that it was not. Further, Counsel for the Applicant twice conceded the obvious similarity between the facts of the 2011 offence and the subject offence (see [43]).

50. If the sentencing judge had not made the second emphasised statement set out at [43] then in my view it seems inevitable that nothing further would have been said on this topic by Counsel for the Applicant. He said nothing about the degree of planning when this topic was raised. Further, there is no basis to conclude that, if the sentencing judge had specifically put him on notice that he might use the facts of the 2011 offence in the manner his Honour ultimately did, then Counsel for the Applicant might have sought to dissuade his Honour from that course (cf Lam at [36]). The efforts of Counsel for the Applicant were directed to ensuring that the Applicant’s prior criminal record was only used to deny his client leniency. However I am not satisfied that there is a realistic prospect that he would have sought to persuade his Honour that the facts of the 2011 offence could not have been used in the manner they were in the sentencing judgment. The “representation” by the sentencing judge did not “dissuade [Counsel for the Applicant] from taking a course which had been intended” (cf Tweedie at [54]). In this respect this case can be contrasted with Button v R [2010] NSWCCA 264 and Weir v Regina [2011] NSWCCA 123 where the sentencing judge imposed a longer sentence than that which was indicated during the course of the sentencing hearing in circumstances where it was likely that the indication affected the offender’s opportunity to make submissions in support of a lesser sentence.

51. I reject ground 3.

Ground 2: Manifest excess

52. The remaining ground is that the sentence was manifestly excessive.

53. In Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [59] the plurality stated:

“As was said in Dinsdale v The Queen ([2000] HCA 54; 202 CLR 321 at 325) …, ‘[m]anifest inadequacy of sentence, like manifest excess, is a conclusion’. And, as the plurality pointed out … in Wong [v The Queen [2001] HCA 64; 207 CLR 584 at 605] appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate ‘is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases’. Rather, as the plurality went on to say … in Wong, ‘[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons’. But, by its very nature, that is a conclusion that does not admit of lengthy exposition.

54. In his written submissions Mr Hunt pointed to four particular matters as indicative of the excessive nature of the sentence that was imposed. First it was contended that the sentencing judge was “inappropriately influenced by what he perceived as a lenient sentence” for the 2011 offence. However, although his Honour referred to the Applicant having received a “lenient sentence” for that offence, it was only in the context of explaining that his criminal record was such that the extension of leniency to him has not “had any significant impact on [the applicant] at all” (see [18]). This was not an inappropriate use.

55. Second it was contended that his Honour overstated the position by finding that in committing the offence the applicant was “motivated by greed, one assumes to fund a drug habit”. It was conceded by Mr Hunt that the offence was committed for financial gain but it was submitted that cannot be equated with “greed” when it is undertaken to fund a drug habit. That may be so, but manifest excess is not established by the inclusion of a loose word. The effect of his Honour’s finding is sufficiently clear.

56. Third, Mr Hunt submitted that in light of the statistics on sentencing provided by the Judicial Commission of New South Wales concerning offences under s 98(1) the sentence imposed on the applicant was “very stern”. His written submissions noted that during the period from October 2007 to September 2014 only two of 48 offenders sentenced for robbery whilst armed and causing wounding or grievous bodily harm were sentenced to a term of imprisonment in excess of the eleven years imposed on the Applicant, and of the eight offenders who went to trial, only one received a sentence that was more severe than that imposed on the Applicant. The position with non-parole periods appears to be similar.

57. There are a number of difficulties with reliance on these statistics which Mr Hunt's submissions acknowledge. It can be accepted that “statistics have a role to play in fostering consistency in sentencing” provided care “is taken to understand the basis upon which they have been compiled” (The Queen v Pham [2015] HCA 39 at [49] per Bell and Gageler JJ). Thus statistics “may well establish a range of sentences which have been imposed” however that range does not “mark the outer bounds of the permissible discretion”, instead the “history stands as a yardstick against which to examine a proposed sentence” (Barbaro v The Queen [2014] HCA 2; 253 CLR 58 at [41]).

58. It is evident from the statistics that there are only a few cases where the offender did not plead guilty. The circumstances of this offence were particularly vicious, the offence was aggravated as it was committed on parole, and the offender's record disentitled him to any leniency. In those circumstances it is not surprising that his sentence is at the upper end of the range of sentences that have been imposed.

59. Fourth, Mr Hunt pointed to the sentence being cumulative upon the expired portion of the Applicant’s parole period for the 2011 offence, and the absence of any finding of special circumstances. The bases for those aspects of the sentence have been explained. Neither are indicative of error or manifest excess.

60. Having regard to the maximum penalty and the standard non-parole period for the offence and given the viciousness of the attack, the circumstances in which it was committed, the Applicant’s poor criminal record and lack of prospects of rehabilitation, I am not persuaded that the sentence imposed was manifestly excessive.

61. I would reject ground 2 of the application.

62. The orders I propose are:

1. Leave to appeal be granted; and

2. The appeal be dismissed.

63. R.S. HULME AJ: I agree with the orders proposed by Beech-Jones J and subject to the following remarks, with his Honour's reasons. In my view there was a denial of procedural fairness when his Honour used the Applicant's prior offence for a purpose which his Honour had earlier implicitly disowned.

64. Whether, in the absence of his Honour's remark, Counsel for the Applicant would have made further submissions on the topic of premeditation and planning, will never be known. However, even if he did, it is impossible to believe they would or might have had any impact and led to a finding on the topic of planning and premeditation different from that which his Honour made.

65. I also agree with the additional remarks of Johnson J.

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Decision last updated: 04 December 2015