R v Dole; R v Nguyen

[2010] NSWCCA 101

New South Wales
Court of Criminal Appeal

CITATION:	R v Dole; R v Nguyen [2010] NSWCCA 101
HEARING DATE(S):	2 February 2010
JUDGMENT DATE:	13 May 2010
JUDGMENT OF:	McClellan CJatCL at 1; Howie J at 2; Harrison J at 14
DECISION:	1. Appeal allowed. 2. Sentences imposed in the District Court quashed. 3. Each of the respondents is sentenced to a term of imprisonment made up of a non-parole period of 2 years and a balance of term of 1 year and 4 months. The sentences should date from 21 July 2009 and the non-parole period expire on 20 July 2011 the date upon which the respondents are eligible to be considered for release to parole.
CATCHWORDS:	CRIMINAL LAW – Crown appeal – specially aggravated break and enter and commit serious indictable offence – whether sentencing judge failed to give sufficient weight to the objective criminality of the offences or gave disproportionate weight to the respondents' subjective circumstances – whether sentencing judge erroneously double counted factors when determining degree of departure from the standard non-parole period - whether degree of departure from the standard non-parole period so great as to manifest error - sentences manifestly inadequate – appeals allowed.
LEGISLATION CITED:	Crimes Act 1900 Criminal Appeal Act 1912 Crimes (Appeal and Review) Act 2001 Criminal (Sentencing Procedure) Act 1999
CATEGORY:	Principal judgment
CASES CITED:	Barlow v The Queen [2008] NSWCCA 96; (2008) 184 A Crim R 187 Carroll v The Queen [2009] HCA 13; (2009) 254 ALR 379 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Mulato v Regina [2006] NSWCCA 282 Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 R v Fidow [2004] NSWCCA 172 R v JW [2010] NSWCCA 49 R v Mitchell [2007] NSWCCA 296; (2007) 177 A Crim R 94 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 SKA v R; R v SKA [2009] NSWCCA 186 Woodgate v R [2009] NSWCCA 137
PARTIES:	Regina Yasir Dole (Respondent) Steven Nguyen (Respondent)
FILE NUMBER(S):	CCA 2008/15208; 2008/15209
COUNSEL:	P Leask (Crown) J Galluzzo (Respondent Dole) D Pullinger (Respondent Nguyen)
SOLICITORS:	S Kavanagh, Solicitor for Public Prosecutions (Crown) The Criminal Law Centre (Respondent Nguyen)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2008/15208; 2008/25209
LOWER COURT JUDICIAL OFFICER:	Ellis DCJ
LOWER COURT DATE OF DECISION:	21 July 2009 (date of sentence)

2008/15208; 2008/15209

McCLELLAN CJ at CL
HOWIE J
HARRISON J

13 May 2010

R v Yasir DOLE; R v Steven NGUYEN

Judgment

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

2 HOWIE J: I have received the benefit of reading the judgment of Harrison J in draft. I agree that the sentences are manifestly inadequate to a significant degree. I am able to adopt the facts and generally the arguments set out by his Honour in his judgment. However, I wish to make some short additional observations of my own and reach a different conclusion from his Honour as to the result of the appeal by the Crown.

3 I cannot agree with the sentencing judge's conclusion that "in this case the motive is not aggravating as it usually is". Why is it less aggravating to break into a person's house intending to inflict violence upon him for the sake of vigilante-type revenge than it is to break into a person's house to steal property? This was an offence where the whole purpose of the crime was to inflict injury upon the occupant in his own home. That is a serious offence regardless of the motive that led to that conduct.

4 Nor do I appreciate how the motive was "perfectly understandable", to quote the sentencing Judge. The courts should give no countenance to such conduct whatever the motivation for it. It is an anathema to the rule of law, which the courts seek to enforce, to have persons like the respondents deciding guilt and punishment upon a member of the community. The sentence needed to be a significant one for the purpose of general deterrence regardless of the subjective cases of the two respondents. There was not the slightest evidence to suggest that either of the respondents did not appreciate the consequences of their conduct. Nothing in the psychological reports could lead to that conclusion and the nature of the offending itself contradicts his Honour's finding.

5 Of course there can be worse cases of home invasion under the section but that does not reduce the seriousness of the respondents' conduct. This was a planned attack upon a defenceless man by masked men armed with a weapon. The fact that they stopped when they had drawn blood, if that is what they did, simply indicates that they had achieved their purpose. They did not know of the extent of his injury, nor did they care. I do not understand why his Honour viewed the reckless infliction of wounding in this case as being "toward the lower to mid range" of such an offence, whatever that might mean. The victim was immediately attacked by three men, one who was armed with a weapon which was used to beat him about the head. The victim received "2 full thickness lacerations (approximately 6 cm and 2 cm) to the occipital area and there were multiple scalp haematomas." He received 17 stitches. This was an intentional not reckless wounding and was a significant offence in itself.

6 I do not understand how the victim could be said to have provoked the attack. The evidence of the respondent Nguyen's sister was irrelevant, as was the question of whether she was telling the truth or not. As his Honour noted, the victim was not on trial. Yet to suggest that he provoked the conduct is to conclude that he did what was alleged against him and to that extent was partly to blame for the conduct of the respondents. Provocation is in my opinion an inapt concept when dealing with vigilante conduct such as this.

7 There was a victim impact statement that vividly described the effects of the offence upon the victim. It is what would be expected but that does not mean that it was not a matter of aggravation. Yet all his Honour noted was that his claim of being unable to return to work was not supported by "psychological or psychiatric material". The effect upon the victim was more than his inability to return to work. He stated that it left him emotionally scarred, and I do not understand why he would be disbelieved about the effects of the attack upon his mental well-being. The offence was aggravated by its long lasting effect upon the victim.

8 Although this Court will generally respect the decision of a sentencing judge in the assessment of the objective seriousness of an offence, in my opinion it was not open to the Judge to conclude that it was less than mid-range. Of course the pleas of guilty and subjective factors will take the sentence well under the standard non-parole period but the sentence still must reflect the objective seriousness of the respondents' conduct.

9 There was a considerable amount of double counting but his Honour seems to have overlooked that a non-parole period must reflect all aspects of punishment. That was made perfectly clear by the High Court as long ago as 1974 in Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 and most recently applied by this Court in Woodgate v R [2009] NSWCCA 137. A non-parole period of 5 months achieved none of the purposes of punishment including denouncing the respondents' conduct, general deterrence and retribution.

10 His Honour thought that this was a difficult sentencing exercise. It was only so because his Honour was not prepared to treat the offence with the seriousness it required and was too distracted by the subjective considerations of the respondents.

11 This is another case of misguided leniency that has the unsatisfactory and unpalatable result of having the respondents returned to custody after being released to parole. But the sentences imposed upon each of the respondent's were plainly wrong and unjust so far as the community is concerned.

12 In my opinion the sentence before discount should have been 4 years. This results in a sentence of roughly 3 years 4 months applying a discount of 15 per cent. There are no special circumstances by reason of the fact that the respondents were serving their first time in custody and had no prior convictions. These are matters that are reflected in a general way in fixing the total term of the sentence. I am prepared to find special circumstances in the need for extended parole supervision on release but the effect should be moderate.

13 I propose the following orders:

1. The appeal is allowed.

2. The sentences imposed in the District Court are quashed.

3. Each of the respondents are sentenced to a term of imprisonment made up of a non-parole period of 2 years and a balance of term of 1 year and 4 months. The sentences should date from 21 July 2009 and the non-parole period expire on 20 July 2011 the date upon which the respondents are eligible to be considered for release to parole.

14 HARRISON J: The respondents entered pleas of guilty on 5 February 2009 to an indictment charging in each case one count of specially aggravated break and enter and commit serious indictable offence, namely reckless wounding, contrary to s 112(3) of the Crimes Act 1900. The offence of specially aggravated break and enter and commit serious indictable offence, namely reckless wounding, carries a maximum penalty of 25 years imprisonment. Pursuant to Division 1A Part 4 of the Crimes (Sentencing Procedure) Act 1999 there is a standard non-parole period of 7 years for this offence. The respondents were sentenced on 21 July 2009 by his Honour Ellis DCJ to 20 months imprisonment commencing on 21 July 2009 and expiring on 20 March 2011 with a non-parole period of 5 months commencing on 21 July 2009 and expiring on 20 December 2009.

15 The Director of Public Prosecutions appeals from this decision pursuant to s 5D of the Criminal Appeal Act 1912 upon the basis that the sentences imposed were manifestly inadequate. The Director contends that his Honour made the following errors:

1. He failed to give sufficient weight to the objective criminality of the offence and gave disproportionate weight to the respondents' subjective circumstances.

2. The degree of departure from the applicable standard non-parole period is so great that it manifests error.

3. He erroneously double counted factors when calculating (a) the degree of departure from the standard non-parole period and (b) the non-parole periods to be fixed in respect of the respondents' sentences.

Facts

16 The respondents and two other male offenders went to the home unit of the victim Andrew Hughes. They gained access to the premises by falsely informing Mr Hughes over the security intercom that they had a delivery for him. Mr Hughes opened the door and all four males forced their way into the apartment and commenced to attack Mr Hughes using a metal pole that they had brought with them. They wore dark clothing and covered their faces with hoods and bandanas.

17 Mr Hughes was able to get out into the stairwell where the attack continued. He was screaming for help and eventually the respondents and their companions ran outside to a car and drove off. They were seen by witnesses who gave the registration number of the car to the police. The brother of the respondent Nguyen owned the car. Police went to his premises where they found the respondents in company with one of the other offenders. When spoken to by police the respondent Nguyen admitted going to the victim's premises. He then nominated the respondent Dole and Selva Chetty as having gone there with him. Nguyen volunteered that they had gone to the victim's home because he had raped Nguyen's sister. Nguyen's brother confirmed that their sister had made a complaint that Mr Hughes had forced her to have sex with him and that he had posted pornographic pictures of her on the Internet.

18 The respondents refused to take part in a formal recorded interview with the police. Police seized various items of clothing from the vehicle used by the respondents. Salva Chetty's DNA was found on two items. The DNA of the respondent Dole was found on a black T-shirt. Mr Hughes' blood was also found on a navy jacket, which had been linked forensically to Chetty.

Evidence adduced by Nguyen

19 The respondent Nguyen tendered a clinical psychologist's report dated 2 April 2009 prepared by John Machlin. He also tendered testimonials by Stephen Clayton and Hernando Sarmiento. Mr Machlin suggested that the respondent had been damaged by the on-going abuse suffered at the hands of his father who was very violent. His parents separated and his mother left. Mr Machlin observed that "[t]here is a chronic, sometimes self-sabotaging anger and resentment in him". The respondent Nguyen had resorted to alcohol and substance abuse to deal with these circumstances.

20 The respondent Nguyen gave evidence that he had been told by his sister that Mr Hughes had raped her. He said that it was as a result of receiving that information that he committed the offence. The respondent's sister also gave evidence of the circumstances that gave rise to her complaint against Mr Hughes. Stephen Clayton was a family friend and gave evidence of the respondent's good character and assistance to the community.

Evidence adduced by Dole

21 The respondent Dole also tendered two reports from a psychologist dated 19 March 2009 and 23 March 2009. Testimonials were also tendered, including a letter confirming that the respondent was enrolled at a TAFE to commence in 2009.

22 The psychologist reported that the respondent had been referred by his mother who was concerned about his psychological well-being. The psychologist reported that the respondent met the DSM-IV diagnostic criteria for Major Depressive Disorder, recurrent, severe with psychotic features but said that he would require further assessment and monitoring over time to determine if a diagnosis of bi-polar disorder were more appropriate.

23 The respondent gave evidence during which he read onto the record a statement apologising for his actions. He described his close friendship with the respondent Nguyen and explained his motivation for committing the offence. He acknowledged that he had taken justice into his own hands.

Other subjective factors

24 Optus employed both respondents at the time they were sentenced and they had been so employed for over a year. At the time of the offence Nguyen was aged 21 and Dole was aged 20.

Findings of fact

25 The sentencing judge found that Nguyen held a genuine belief that his sister had been sexually assaulted by Mr Hughes and that he decided that the justice system would not be able to assist her. The respondent Nguyen had become enraged. His Honour said "I accept that his response to his rage was probably greatly governed by his dysfunctional upbringing, in that his father was violent and abusive to him and his mother during his formative years. From that upbringing it is probably little wonder that he had learnt that if you have a problem you resorted to violence to deal with it".

26 With respect to the respondent Dole his Honour found that he was "at that time and still is suffering from a major depressive illness which has made life a little difficult for him over the years". His Honour said of the respondent Dole that "he too became enraged and reached the same conclusion as Mr Nguyen that the only way that this man (the victim) would ever be punished would be for them to dish out the punishment".

27 His Honour's remarks on sentence also included the statement that the respondents "were not fully aware of the consequences of their actions, albeit for different reasons." These consequences are not identified by his Honour.

28 With respect to motive his Honour remarked as follows:

"Generally the motive involved involves some type of theft. Sometimes offenders hear about people who supposedly have large amounts of money or who are growing drugs or supplying drugs, sometimes it might be for the purpose of kidnapping someone in situations involving relationships that have gone wrong. Sometimes it involves a payback or a vendetta, it might be part of a bikie gang activity, in this case the motive is perfectly understandable while the action taken is totally unacceptable."

29 His Honour later noted that "in relation to the factors that [he had ] set out regarding matters to be considered in arriving at the level of criminality, that in this case the motive is not aggravating as it usually is …".

Balancing objective and subjective factors

30 The appellant submitted that this was a serious example of home invasion that was accompanied by a series of aggravating circumstances. The respondents were in company. They were armed with an iron bar. They applied corporal violence upon the victim in his home. They had planned the offence. The plan must necessarily have involved the infliction of violence. That is what occurred.

31 The violence resulted in injury. Even though not life threatening, the injuries were significant. Mr Hughes suffered two full thickness lacerations to the occipital region with multiple scalp haematomas as well as multiple abrasions and haematomas to the back and lower limbs. The victim impact statement referred to the mental trauma suffered by Mr Hughes, which is continuing. The appellant submitted that this was an important factor. He suffered an attack at the hands of a group of armed and disguised assailants, for no apparent or stated reason, so that the fear he experienced must have been considerable.

32 The appellant referred to a recent discussion by this Court of vigilante behaviour in R v Mitchell [2007] NSWCCA 296; (2007) 177 A Crim R 94 at [30] - [33] per Howie J as follows:

"[30] The offence was one well above the mid-range of objective culpability. True it was not one where the respondents cold-bloodedly singled out an innocent passer-by as the subject for their drug-fuelled aggression. If such had been the case, the offence would have been aggravated by that fact. I accept that it was a relevant factor that the respondents believed that the victim had been guilty of sexual activity to the respondent Mitchell: R v Swan [2006] NSWCCA 47. But a grievance with the conduct of another, whether justified or not, cannot be a license to commit crime even where the conduct alleged by the victim is one of sexual assault. In the circumstances of the present case the motive of the respondents for assaulting the victim was of limited mitigating value.

[31] The relevance of motive will vary depending upon the particular facts of the case. It may explain why the offence was committed without condoning or excusing it. The more serious the offence committed the less weight that can be given to motive as a mitigating factor, even if it might otherwise have had that effect. But as was pointed out in Swan , the existence of motive is relevant to other factors that may impact upon the sentencing discretion. In this case, particularly with respect to the respondent Gallagher, it partly explains why he committed such a serious offence notwithstanding that he had no prior criminal record and was otherwise considered a person of good character, apart from his use of illicit drugs. The existence of the motive indicated that in his case there was no need for personal deterrence. But because of Mitchell's prior offence of violence and because he was on a bond at the time, the significance of motive in this respect was reduced and it was appropriate to consider personal deterrence as a relevant factor notwithstanding his remorse.

[32] It is importance therefore to understand that the existence of a motive for the commission of a crime and the nature of that motive may be important factors in the exercise of the sentencing discretion but may in some cases point in different directions. It may to some degree mitigate the objective seriousness of the offence yet indicate the need for a more severe sentence in order to address issues of deterrence. In some cases, as where the use of illegal drugs explains the commission of the offence, it offers no mitigation of the objectives seriousness of the offence, yet may allow significance to be given to rehabilitation of the offender: see generally Wood CJ at CL in R v Henry (1999) 46 NSWLR 346.

[33] In Swan a significant matter was the fact that the offender was intellectually disabled. He offended against the victim not only in order to achieve personal retribution for the sexual assaults committed against him but also from a misguided view that he was dissuading the victim from assaulting other intellectually impaired persons, as he believed the victim had been doing. In considering what he did and the reason he did it, his intellectual impairment was a relevant factor. It was for this reason that the Court was able to attenuate the need to deter persons from taking the law into their own hands: see per Spigelman CJ at [60]. There was no such attenuating factor in the present case."

33 Comments to like effect are to be found in the judgment of Hall J in Barlow v The Queen [2008] NSWCCA 96; (2008) 184 A Crim R 187 at [40] as follows:

"[40] The nature of the conduct by the applicant could be correctly identified in the remarks on sentence as having been in the nature of 'vigilante' conduct. The seriousness of the offence in question, despite the purpose or motivation having been revenge for the alleged sexual assault by the victim upon her some six years before, involved a deliberate course of conduct, in company with another, whereby the applicant decided to act outside the law in seeking retribution for what she alleged had been done to her by the victim. Such conduct, as the sentencing judge correctly identified, is the antithesis of what is required in a society based on the rule of law and is to be denounced in the strongest terms."

34 The appellant submitted that his Honour gave too much weight to the respondents' grievance as a circumstance warranting mitigation. Even if it went some way towards explaining what was done, the sentences failed to satisfy what was a compelling case for general deterrence. His Honour did make reference to issues of "punishment, general deterrence, [and] specific deterrence". However, in the appellant's submission, this reference was not reflected in the sentences that were imposed in which the head sentences and the non-parole periods evidence an undue emphasis on subjective factors and insufficient emphasis upon the objective seriousness of the offence.

35 Moreover, the standard non-parole period for the offence, pursuant to s 54D, item 13 of the Crimes (Sentencing Procedure) Act is 7 years. That standard non-parole period applies to an offence where an offender is convicted after trial where it can be regarded as being in "the middle of the range of objective seriousness": R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [68] - [71]. In circumstances such as the present, where the respondents pleaded guilty, the standard non-parole period remains relevant as a guide or reference point, rather than as a starting point.

36 His Honour found that the level of criminality of the respondents was "low to mid range". He held that there were a number of factors warranting or justifying departure from the standard non-parole period. He referred to factors such as the pleas of guilty, provocation by the victim, the absence of prior convictions, each respondent being of good character, the unlikelihood of reoffending, good prospects of rehabilitation and demonstrated remorse.

37 However, in the appellant's submission, non-parole periods of 5 months failed to give sufficient regard to the standard non-parole period of 7 years. The magnitude of the departure from that standard non-parole period could not be justified, even upon the basis that the offending fell at the low to mid range on the scale of objective seriousness. Despite giving reasons for doing so, his Honour's departure from the standard was said to be indicative of error.

38 Finally, the appellant submitted that there were two instances of "double counting". First, his Honour's reference to "provocation", as something justifying a departure from the standard non-parole period must relate to his Honour's finding with respect to the respondents' "motive" in the commission of the offence. In such a case, there is an element of double counting involved because the motive was clearly something that his Honour took into account in forming the view that the respondents were unlikely to reoffend. The uniqueness of the provocation was coextensive with the likelihood of repetition.

39 Secondly, having found "special circumstances", his Honour said the following:

"I acknowledge that five months represents one quarter of the total sentence of twenty months and that the statutory ratio would normally involve three quarters or a reversal or [sic] that percentage, that is fifteen months to serve and five months additional. I have made the variation because of the significance of the motive and although you were misguided I at least understand why this crime was committed and on top of that you are each basically good young men, you each do have a future, you each will learn from this and in my view there is every reason to believe that neither of you will reoffend again and it is for that reason I have made the variation together with some of the other factors that I have pointed out during the course of my remarks."

40 According to the appellant's submissions, his Honour thereby fell into error. A finding that the offence fell below the mid range, together with the respondents' subjective factors, were employed by his Honour to justify a departure from the standard non-parole period. However, the subjective factors were double-counted to justify a major reduction of the statutory ratio for which s 44(2) of the Crimes (Sentencing Procedure) Act provides. The appellant submitted that such an approach was plainly erroneous in the light of remarks such as those of the Chief Justice in Regina v Fidow [2004] NSWCCA 172 at [18] as follows:

"[18] In R v Simpson (2001) 53 NSWLR 704, this Court identified the wide range of factors capable of constituting special circumstances. Nevertheless, on each occasion in which s44(2) of the Act is invoked, it is necessary for the sentencing judge to make a decision, as noted in Simpson at [68] that the circumstances are sufficiently special for the statutory proportion to be reduced. Section 44(2) requires the 'decision' to be that the statutory proportion of one-third be 'less'. 'Double counting' for matters already taken into account in reducing the head sentence, and therefore already reflected in the non parole period, must be avoided. (See Simpson at [47]). Almost all matters capable of constituting special circumstances have usually been taken into account in determining the head sentence and sentencing judges should ensure that double counting does not occur."

41 In this Court the respondent Nguyen submitted that his Honour's assessment of the objective seriousness of the offence should not be disturbed. He referred to the remarks of Simpson J in Mulato v Regina [2006] NSWCCA 282 at [46] as follows:

"[46] The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v The King [1936] HCA 40; 55CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance."

42 He further relied upon what was said in Carroll v The Queen [2009] HCA 13; (2009) 254 ALR 379 at [7] as follows:

"[7] It has long been established that '[i]nadequacy of sentence, an expression not found in the Criminal Appeal Act ... is not satisfied by a mere disagreement by the Court of Appeal with the sentence actually imposed'. Rather, as pointed out in Dinsdale v The Queen , error must first be identified by the appellate court. And as was held in House v The King , an appeal against an exercise of discretion, in this case a sentencing discretion, is governed by established principles."

43 The respondent Nguyen submitted, in effect, that the so-called double counting for which the appellant contended could not be sustained as an error. He contended that provocation was but one of a number of other factors justifying a departure from a standard non-parole period. In this case it was submitted that his Honour's finding that the respondents were unlikely to reoffend was based on "… all of the material including the evidence of the two offenders". Moreover the respondent submitted that his Honour's remarks concerning the fact that the respondents had not previously been in custody, had no prior criminal convictions and each had excellent prospects of rehabilitation wholly justified his Honour's finding of special circumstances and, presumably, the way that he applied that finding to the variation of the statutory ratio.

44 With respect to the question of his Honour's assessment of the objective seriousness of the offence the respondent Dole drew attention to what was said by Simpson J in SKA v R; R v SKA [2009] NSWCCA 186 at [134] as follows:

"[134] Post Pt 4 Div 1A, however, it is necessary for sentencing judges to take a more clinical approach. It is necessary, in every case, to evaluate the objective seriousness of the offence in question alongside and against the yardstick of a notional offence of its kind that falls into the mid-range of objective seriousness ( Way [76]). Accordingly, in Way , analysis of the meaning of 'objective seriousness' was undertaken. Factors relevant to the assessment are:

• the actus reus
• the consequences of the conduct
• factors that might properly be said to have impinged upon the mens rea of the offender
• the mental state of the offender at the time of the commission of the offence (eg intention as distinct from recklessness)
• mental illness or intellectual disability where causally related to the commission of the offence."

45 The respondent submitted that his Honour had in fact considered these factors in assessing the objective seriousness of the offence. Furthermore, his Honour considered the fact that the respondent discontinued the violence, which the respondent submitted, was a presently relevant consideration.

46 His Honour also gave due consideration to matters of general deterrence. In particular, his Honour said this:

"The court also notes that because of the mental illness he (Dole) is not a good vehicle for specific deterrence and would not normally be a good vehicle for general deterrence although the reality is here that this offence is an offence that calls for general deterrence notwithstanding in the case of Mr Dole the impact of mental illness".

47 Further, his Honour said, "[t]he significance of general deterrence in this case is that the community cannot tolerate those who take the law into their own hands".

48 The respondent Dole also submitted that his Honour fell into no error in the extent of his departure from the standard non-parole period. His Honour expressly addressed the need for relativity between sentences and the standard non-parole period and referred to cases such as Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 and Carroll v The Queen. The respondent submitted that having considered all of the relevant matters his Honour exercised his discretion and came to the view that no other sentence than one of full time custody was warranted. His departure from the standard non-parole period was not, according to this submission, infected with error in these circumstances.

49 The respondent Dole also submitted that there was no double counting by reason of the way in which his Honour dealt with "motive" and "provocation". The submission was not advanced beyond the way in which the other respondent promoted it.

Sentences manifestly inadequate

50 In my opinion, both sentences were manifestly inadequate. Sentences that provided for non-parole periods of 20 months in each case may well have been within a proper exercise of his Honour's sentencing discretion. The same cannot be said for sentences of 20 months when the period of full time custody that the respondents will serve is only 5 months.

51 This much would appear to have been clearly recognised in what his Honour had to say during the sentencing hearing. His Honour's remarks make it plain that he accepted that the offence was serious. He said this:

"As I indicated at the beginning and as each counsel has reiterated this is a difficult sentencing exercise weighing an excellent subjective case for each offender on the one hand against what is a serious criminal offence for which parliament has provided a maximum penalty of twenty five years and a standard non-parole period of seven. In the court's view, having taken into account s 5 of the Crimes (Sentencing Procedure) Act no sentence other than a sentence of imprisonment would be appropriate having regard to the level of seriousness of this offence. In the court's view, having considering [sic] all of the material, an appropriate starting point for a sentence before the utilitarian discount is applied is a sentence of two years imprisonment.

Applying a fifteen percent discount results in a sentence of twenty months rounded off by a week or so. A sentence of twenty months would mean that it would be possible for this court to suspend the sentence and/or impose periodic detention if the court determined that either of those two courses was appropriate. I say that because of the length of the sentence. Sentences under three years can be directed to be served by way of periodic detention and sentences of two years and under can be directed to be served by way of a suspended sentence.

It has been urged upon the court that a suspended sentence is all that is required. The Crown on the other hand contended that nothing less than a full time sentence was warranted. While it is the case that I am giving these remarks literally immediately after submissions and extemporaneously I have thought about the matter over the luncheon adjournment and ultimately I have concluded that a sentence of full time imprisonment is necessary. Given that conclusion it is necessary to consider what the non-parole period should be. In the court's view there are special circumstances, this will be the first time either young man has gone into custody. They have no prior criminal convictions, they have excellent prospects of rehabilitation and in the court's view it is appropriate to vary the statutory ratio significantly to make allowance for the excellent subjective material. In this case, that they each have to serve a sentence of full time imprisonment is likely to be more significant than the length of such a sentence, especially given that it is months rather than years."

52 Moreover, following the imposition of the sentences his Honour directed some further specific remarks to the respondents. His Honour said this:

"Mr Nguyen, Mr Dole I know that going into custody is not a very pleasant thing but as I have said to you during my remarks the community simply cannot tolerate people who take the law into their own hands and then essentially break into a man's own home and that is the reason why you are going into custody because the message has to go out. If I release you then the message that goes out that it is alright, if you don't like what someone has done to you, don't go to the police just go find him and beat him up. Now I appreciate that otherwise you have a lot going for you but like a lot of things in life there are consequences to our actions, yours were wrong, misguided and they require this court to send out a message that even when you have strong motivation that you simply are not permitted to take the law into your own hands."

53 To this extent his Honour patently and correctly acknowledged that the offences were serious and that the respondents could anticipate that a period of full time custody must be the necessary and expected result. As his Honour also indicated, the respective subjective factors favourable to the respondents were compelling. However, recognising as he did the seriousness of the offences, his Honour failed adequately to give effect to that recognition when imposing sentences of 20 months imprisonment with non-parole periods of only 5 months or one quarter of the head sentence.

54 The offence was what is commonly regarded or referred to as a home invasion. The respondents and their companions formed a group of assailants who were unknown to the victim and apparently unrecognisable by him. They dressed in a way intended to disguise their identity. The assault was planned and executed carefully. The victim was totally outnumbered and overpowered. This would appear to be reflected in the fact that he alone suffered any injury in the circumstances. The attack was effected with the advantage of surprise and would undoubtedly have been frightening and distressing for Mr Hughes. It is not possible to characterise what occurred as minor or insignificant. The maximum penalty and the standard non-parole period for this offence mark it out as a serious offence.

55 The subjective factors, that his Honour correctly identified and which he took into account when determining the head sentence, and in particular his reasons for departing from the standard non-parole period, should not also have been factored into the identification of special circumstances justifying so substantial a variation of the statutory ratio. I accept the appellant's submission that this is what his Honour did. I also accept that the assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. For that reason I would not in the particular circumstances of this case be inclined too readily to criticise the process of reasoning, arrived at with the undoubted advantage of all that was put to him on behalf of the respondents, including hearing them give evidence, that led his Honour to decide that a sentence of 20 months imprisonment was appropriate in this case. However, all that notwithstanding, in my opinion his Honour fell into error both to the extent that he incorporated the matters that led him to that decision into his separate and different decisions to impose sentences that did not reflect his own description of the seriousness of the offences and to vary the statutory ratio in accordance with s 44(2) in the way that he did. I do not consider that there are special circumstances over and above any matters of which the respondents have already received a benefit, which would justify a variation of the statutory ratio to such an extent. This is particularly so when regard is had to the fact that the sentences I propose are to be served without any deduction from the sentences for the time between the respondents' original release on parole on 20 December 2009 and today.

Discretion

56 Section 68A of the Crimes (Appeal and Review) Act 2001 prevents the Court of Criminal Appeal from exercising its discretion not to intervene on a Crown Appeal on the basis of the distress and anxiety to which all respondents to a Crown appeal are presumed to be subject. It does not remove this Court's residual discretion to reject a Crown appeal for reasons other than the distress and anxiety which a respondent suffers from being exposed to the risk of a more severe sentence: R v JW [2010] NSWCCA 49.

57 Each respondent was released on 20 December 2009 and remains on parole at present. It would appear that each respondent is progressing well on parole. The decision I have reached will mean that each respondent will therefore be reimprisoned at a time when they are making good progress in the community at large. However, neither respondent identified any matters going to the exercise of discretion by this Court to reject the Crown's appeals that have not otherwise been removed from consideration by the operation of s 68A. I have already said that the sentences that were imposed were, for the reasons I have given, manifestly inadequate. The question remains whether this Court should intervene in the exercise of its discretion.

58 In my opinion the original sentences, particularly having regard to the extent of his Honour's variation of the statutory ratio, cannot be allowed to stand. In forming a view about what sentences should be imposed I am mindful of, and have specifically and intentionally taken into account, the fact that the respondents have already served a period of 5 months in custody, for which credit must necessarily be given and that they have been at liberty on parole since 20 December 2009 until today. In those circumstances the respondents will have received the benefit of having spent a portion of their sentences on parole so that any further period on parole at the conclusion of their time in custody need not be extensive. His Honour discounted the sentences by 15 per cent for the utilitarian value of the respondents' pleas of guilty. I have increased that discount to 16.6 per cent for ease of calculation.

59 In my opinion sentences of imprisonment for 3 years in each case are appropriate. To each sentence I apply a discount of 16.6 per cent in respect of the respondents' pleas of guilty.

Orders

60 I propose the following orders:

1. The appeals are allowed and the sentences imposed in the District Court are quashed.

2. Steven Nguyen is sentenced to a term of imprisonment for 2 years and 6 months commencing on 21 July 2009 and expiring on 20 January 2012 with a non-parole period of 20 months commencing on 21 July 2009 and expiring on 20 March 2011 with a balance of term of 10 months commencing on 21 March 2011 and expiring on 20 January 2012. The earliest date upon which the respondent will be eligible for release is 20 March 2011.

3. Yasir Dole is sentenced to a term of imprisonment for 2 years and 6 months commencing on 21 July 2009 and expiring on 20 January 2012 with a non-parole period of 20 months commencing on 21 July 2009 and expiring on 20 March 2011 with a balance of term of 10 months commencing on 21 March 2011 and expiring on 20 January 2012. The earliest date upon which the respondent will be eligible for release is 20 March 2011.


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