R v Flanagan

Case •

[2024] NSWCCA 249

•

20 December 2024

No judgment structure available for this case.

Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: R v Flanagan [2024] NSWCCA 249
Hearing dates: 22 November 2024
Date of orders: 22 November 2024
Decision date: 20 December 2024
Before: Hamill J at [1]
N Adams J at [2]
Coleman J at [9]
Decision:

The appeal is dismissed.

Catchwords:

CRIMINAL LAW — Appeals — Crown appeal against sentence — Manifest inadequacy — Aggregate sentence — Totality — Aggregate sentence not reflecting the totality of the criminality — Appeal dismissed.

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Appeal Act 1912 (NSW)

Cases Cited:

Aryal v R [2021] NSWCCA 2

Ayoub v R [2024] NSWCCA 168

Bojlevski v R [2024] NSWCCA 208

Bugmy v R (2013) 249 CLR 571; [2013] HCA 37

Cahyadi v R (2007) [2007] NSWCCA 1; 168 A Crim R 41

CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9

Legge v R [2007] NSWCCA 244

R v Brown [2012] NSWCCA 199

R v Grover [2013] NSWCCA 149

R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R 149; [1999] NSWCCA 111

R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159

R v Ponfield (1999) 48 NSWLR 327; [1999] NSWCCA 435

R v Sara [2020] NSWCCA 119

WS v R [2023] NSWCCA 52

Category:Principal judgment
Parties: Rex (Appellant)
Paul Flanagan (Respondent)
Representation:

Counsel:
C Tran (Appellant)
P Krisenthal (Respondent)

Solicitors:
Solicitor for Director of Public Prosecutions (Appellant)
O’Brien Criminal & Civil Solicitors (Respondent)
File Number(s): 2022/317306
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
District Court
Jurisdiction:
Criminal
Date of Decision:
16 August 2024
Before:
David DCJ
File Number(s):
2022/317306

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mr Paul Flanagan entered pleas of guilty in relation to three offences committed in October 2022, being one offence of aggravated break, enter and steal contravening s 112(2) of the Crimes Act 1900 (NSW) and two offences of robbery armed with a dangerous weapon, contravening s 97(2) of the Crimes Act. The offences took place over a matter of days, and involved partly different co-offenders, different victims and distinct conduct. The sentencing judge considered the break and enter offence to be in the mid-range of objective seriousness, while the two robberies were considered to be at the mid-range, and upper end of the mid-range respectively. Her Honour also referred to various subjective matters which were considered to be mitigating factors, including his childhood circumstances, his mental health and his youth. He was sentenced to an aggregate term of imprisonment of 5 years and 10 months, with a non-parole period of 3 years and 6 months. The indicative sentences for the offences were 2 years and 9 months for the aggravated break and enter offence, and 4 years and 9 months, and 5 years and 2 months, respectively, for the armed robbery offences.

The Director of Public Prosecutions appealed pursuant to s 5D(1) of the Criminal Appeal Act 1912 (NSW) on the sole ground that the sentence was manifestly inadequate. As was accepted at the hearing, the narrow issue on this appeal concerned the sentencing judge’s application of the principle of totality when imposing an aggregate term of imprisonment, namely whether there was inadequate notional accumulation of the sentences.

The Crown contended that the notional concurrency of the indicative sentences for the various offences went beyond what was open to the sentencing judge, given the profound differences in the offending. It was submitted that this resulted in a manifestly inadequate sentence. The respondent submitted that the sentencing judge made several findings as part of the sentencing exercise, and that the purposes of sentencing pulled in different directions in these circumstances. It was submitted that her Honour carefully analysed these factors and that the sentence imposed was within the permissible range of sentences.

The Court (Hamill, N Adams and Coleman JJ) dismissed the appeal and held:

Per Coleman J (Hamill J agreeing)

The sentencing judge noted the distinct instances of the offending and the fact that there were different victims. The aggregate sentence imposed recognised the separate criminality by applying a modest amount of notional accumulation of the indicative sentences, as the Crown on sentence had suggested: [109]. That there was only “modest” notional accumulation does not mean that a public perception that people are sentenced less seriously for committing multiple offences could reasonably be held. The aggregate sentence imposed ought not be perceived as insignificant when all relevant matters, including the respondent’s subjective case, are taken into account: [110].

The Crown’s submission that the aggregate sentence imposed by the sentencing judge must be inadequate because it was only slightly higher than a sentence for one matter, appropriately applying the guideline judgment, ignores matters such as the respondent’s early plea and the impact of his subjective case. It also treats the guideline judgment effectively as a “tramline”, confining the exercise of the sentencing discretion: [111]-[112].

R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R 149; [1999] NSWCCA 111, considered.

Legge v R [2007] NSWCCA 244, referred to.

The Crown’s approach to discern the manifest inadequacy of the aggregate sentence by considering the indicative sentences of each offence reflects an attempt to calculate the amount of notional concurrence and accumulation. It is not of assistance to attempt to construe the sentence and the sentencing judge’s remarks in this way. In some cases it may be open to consider the potential for accumulation and concurrency in assessing the exercise of the sentencing discretion, however this is not such a case: [113]-[115].

Bojlevski v R [2024] NSWCCA 208, applied.

It was plainly open to the sentencing judge to moderate the sentence in the way her Honour did: [116]. While it may be thought that the aggregate sentence is lenient, that a different court may have imposed a different sentence does not, of itself, indicate error. Sentencing judges must be allowed flexibility in exercise of the sentencing discretion and the weight given to relevant factors are properly matters for the sentencing judge: [117]. It was open to the sentencing judge to conclude that, taking into account the matters she did in the instinctive synthesis of the sentencing process, the aggregate sentence imposed reflected the total criminality of the offending: [119].

R v Sara [2020] NSWCCA 119, applied.

Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1, considered.

Per N Adams J

The aggregate sentence imposed was manifestly inadequate, but upon exercising the residual discretion, the appeal should be dismissed: [2]. The principle of totality required that the aggregate sentence encompass the criminality of all three offences, and the aggregate sentence in these circumstances did not do so given the significant degree of concurrence: [6]. The minor degree of accumulation reflected in the aggregate sentence imposed does not reflect the need for the Court to avoid any suggestion that an offender has received a discount for multiple offending. While the sentencing judge ultimately acted on the Crown submission that there should be a “modest” degree of notional accumulation in the aggregate sentence, the degree of notional accumulation in the aggregate sentence imposed was too modest to reflect the separate serious criminality involved in the respondent’s offending: at [7]-[8].

R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159, referred to.

CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9, applied.

JUDGMENT

  1. HAMILL J: I joined in the order made on 22 November 2024 dismissing the prosecution appeal against the asserted inadequacy of the aggregate sentence imposed on the respondent for the reasons provided by Coleman J. As his Honour explains, the “modest” accumulation settled on by Judge David reflected the position taken by the appellant at first instance. That position, and her Honour’s acceptance of it, was justified in the circumstances of the case. Further, her Honour correctly applied well established principles and the decision concerning the extent of “notional” accumulation and concurrence within an aggregate sentence, and more broadly, is one in relation to which a sentencing Judge enjoys a broad discretion with which an intermediate appellate court should not lightly interfere. The sentence was lenient given the gravity of the offending, but such a disposition was warranted by the personal circumstances of the respondent. 

  2. N ADAMS J: On 22 November 2024 I joined in the orders of the Court that the Crown appeal in this matter be dismissed. I did so on the basis that although I was satisfied that the aggregate sentence imposed was manifestly inadequate, I would have exercised the residual discretion and dismissed the appeal on that basis.

  3. I have had the advantage of reading the reasons of Coleman J for dismissing the appeal. I am grateful to his Honour for his summary of the facts, evidence, submissions and sentencing remarks of the primary judge. As noted by Coleman J, no complaint was made that the indicative sentences were manifestly inadequate; this appeal turned on the narrow question of whether there had been inadequate notional accumulation as between the three offences.

  4. As Coleman J has noted, the three separate offences were all serious. The first offence (aggravated break, enter and steal) was committed in the company of two co-offenders, involved forced entry and extensive upheaval in the premises. Property to the value of $33,400 was stolen. The second offence (robbery armed with a dangerous weapon) involved the respondent returning to the scene of another aggravated break and enter and pointing a firearm (a .22 calibre pump action rifle) and cocking its trigger at one of the victims whilst stealing his car (the aggravated break and enter, which was taken into account on a Form 1 in relation to Count 2, was committed at 4.40am in the morning when the victim family was at home). The third offence (Robbery armed with a dangerous weapon) involved the respondent discharging a firearm in the robbery of a jewellery store in which glass cabinets were smashed and significant property stolen.

  5. The sentencing judge noted indicative sentences of 2 years and 9 months for count 1, 4 years and 9 months for count 2 and 5 years and 2 months for count 3. In response to the Crown submission that there should be a “modest” amount of notional accumulation, the sentencing judge imposed an aggregate sentence of 5 years and 10 months imprisonment with a non-parole period of 3 years and 6 months. The head aggregate sentence of 5 years and 10 months was only 8 months longer than the indicative sentence of 5 years and 2 months for count 3.

  6. It is to be accepted that the respondent had a strong subjective case. His moral culpability was reduced based on both “Bugmy” factors (Bugmy v R (2013) 249 CLR 571; [2013] HCA 37) and mental health grounds. There was a strong need for rehabilitation, evidence of recent demonstrated insight and remorse as well as a risk of institutionalisation. In cases such as this where offenders have committed serious crimes but present with strong subjective factors the purposes of sentencing can pull in different directions. The difficulty is that, even having regard to the respondent’s strong subjective case, principles of totality required that the aggregate sentence encompass the criminality of all three offences and I am not satisfied that the aggregate sentence did so given the significant degree of concurrence.

  7. As this Court observed in the oft cited passage in R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [18], public confidence in the administration of justice requires the Court to avoid any suggestion that an offender has received some kind of a discount for multiple offending. The minor degree of accumulation reflected in the aggregate sentence imposed on the respondent does not reflect the need for caution expressed in R v MAK; R v MSK.

  8. My reason for joining in the orders of the Court dismissing this Crown appeal is that the sentencing judge ultimately acted on the Crown submission that there should be a “modest” degree of notional accumulation in the aggregate sentence imposed. The role played by the Crown in bringing about the sentence pronounced is relevant to the exercise of the residual discretion: CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9 at [38]. The degree of accumulation was modest (as was submitted by the Crown) but, for my part, it was simply too modest to reflect the separate serious criminality involved in, in particular, the two offences involving firearms on separate victims.

  9. COLEMAN J: This is an appeal by the Director of Public Prosecutions against the sentence imposed upon the respondent, Paul Flanagan, by her Honour Judge David at the Campbelltown District Court on 16 August 2024. The appeal is brought pursuant to s 5D(1) of the Criminal Appeal Act 1912 (NSW).

  10. This appeal was heard on 22 November 2024. At the conclusion of oral addresses, the Court ordered that the appeal be dismissed. The Court reserved its reasons for reaching that conclusion. These are my reasons for joining in the making of that order.

Background

  1. The respondent entered pleas of guilty to three offences being:

  1. Aggravated (in company) break, enter and steal, an offence under s 112(2) of the Crimes Act 1900 (NSW) (H91635934/1). This carries a maximum penalty of 20 years imprisonment, with a standard non-parole period of 5 years. There was also a matter on a Form 1 to be taken into account for this matter, being larceny, an offence under s 117 of the Crimes Act;

  2. Robbery armed with a dangerous weapon, an offence under s 97(2) of the Crimes Act (H93122180/1). This carries a maximum penalty of 25 years imprisonment. There is no standard non-parole period. There was also a matter on a Form 1 to be taken into account for this matter, being aggravated (in company) break, enter and steal, an offence under s 112(2) of the Crimes Act; and

  3. Robbery armed with a dangerous weapon, an offence under s 97(2) of the Crimes Act (H91379650/1). This carries a maximum penalty of 25 years imprisonment. There is no standard non-parole period.

  1. The sentencing judge imposed an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSPA) of 5 years and 10 months imprisonment with a non-parole period of 3 years and 6 months. The indicative sentences for the offences were 2 years and 9 months, 4 years and 9 months and 5 years and 2 months respectively.

  2. The sole ground of appeal is that the sentence was manifestly inadequate.

  3. At the hearing of the appeal, counsel for the Crown accepted that there was one very narrow point in support of the Crown submission that the sentence imposed was manifestly inadequate. That point was with respect to the application by the sentencing judge of the principles of totality when arriving at the aggregate sentence that her Honour imposed.

  4. To deal with that matter, it is necessary to set out the facts of the offending, the subjective case of the respondent and the reasons for sentence by the sentencing judge.

The facts of the offending

  1. The facts of the offending were contained in ‘Agreed Facts’ in the Court below. The sentencing judge appropriately summarised those agreed facts in her remarks on sentence. There was no complaint by the Crown that her Honour’s summary of the facts was inadequate or incomplete. The following summary is drawn from her Honour’s summary and those ‘Agreed Facts’ in the Court below.

Aggravated (in company) break, enter and steal, an offence under s 112(2) of the Crimes Act 1900 (NSW) (H91635934/1)

  1. With respect to this offence, there were two co-offenders, Ms Sheena Sanders and Mr Dwayne Cubby.

  2. The victims of this offending were the owners and residents of a property in Bonnyrigg Heights. The couple reside at the property with their two children.

  3. About 10:20am on Thursday 20 October 2022, the respondent and the co-offenders attended at the property in a white Toyota Camry driven by the respondent. They parked in the driveway of the property. Ms Sanders got out of the rear passenger side of the Camry and approached the front door of the house, where she knocked several times to ensure that no one was at home.

  4. The respondent got out of the driver’s seat of the Camry and met Ms Sanders at the front door. Ms Sanders picked up a package that had been delivered earlier and left at the front door and returned to the Camry with it (H91635934/2 – Larceny). The respondent knocked on the door several times to again confirm that no one was home. Ms Sanders and Mr Cubby got out of the Camry, approached the front door, and then went around to the side of the house.

  5. The respondent took a knife from the ‘bum bag’ he was carrying around his waist and used it to cut a hole in the wire mesh of the screen door. He then unsuccessfully tried to unlock the door by putting his fingers through the hole he had just cut.

  6. Ms Sanders and Mr Cubby jumped the side fence and Mr Cubby opened the side gate, giving access to the rear of the yard of the property before returning to the respondent in the front yard. The respondent tried unsuccessfully to force open a window at the front of the property.

  7. All three then returned to the rear yard and made their way to the internal laundry door. Mr Cubby opened the flyscreen laundry door. Ms Sanders picked up a shovel with the intention of using it to force entry into the premises, but the respondent and Mr Cubby kicked the door several times with enough force to eventually force it open. They entered the house through the door into the laundry, which gave them access to the rest of the house.

  8. Ms Sanders kept watch outside while the respondent and Mr Cubby ransacked a number of rooms inside the house. They took property belonging to the victim including car keys, a set of house keys for the property, designer bags and slides and an amount of small miscellaneous items (H91635934/1 – aggravated break, enter and steal). The total value of the property stolen amounted to $33,400.

  9. All three then ran back through the side gate to the Camry and got into it with the property stolen from within the house. They then left in the Camry with the respondent driving at 10:32am.

  10. The above was captured on clear, colour CCTV cameras at the premises.

  11. At about 10:30am that day one of the victims checked his CCTV cameras on his phone as he was expecting a delivery. He noticed three suspicious people wandering around his house, so he contacted a friend telling him he thought he had been robbed and asking him to attend his house. When the friend arrived at the property, he rang the victim and confirmed that he had been robbed and that they kicked in the side laundry door.

  12. The victim arrived home at around 11:00am and saw that every drawer and cupboard in the house had been ripped open. He then contacted police, who arrived later that day and were provided with the CCTV footage. The victim changed all the locks on the house that day and has subsequently installed steel bars at the house as a result of this offending.

  13. The respondent was arrested by police for an unrelated matter on 24 October 2022. He was later charged for these offences.

Robbery armed with a dangerous weapon, an offence under s 97(2) of the Crimes Act 1900 (NSW) (H93122180/1)

  1. The victims of this offending all resided at a house in Busby together. All of them were home on the morning of 22 October 2022.

  2. The premises is a two-story house with four CCTV cameras covering the area outside.

  3. On Friday 21 October 2022, the members of the household went to bed at various times. The house was completely locked up when the last occupant went to bed.

  1. About 4:40am on 22 October 2022, the respondent and the co-offender, Mr Cubby, walked around the area outside the property for a few minutes. They then opened the left side gate and walked to the kitchen window. The window was unlocked but closed shut and completely covered by a sealed flyscreen. One of the offenders broke open the flyscreen, opened the kitchen window and both offenders entered the house.

  2. About 4:50am, one of the victims heard keys rattling downstairs for a few seconds and thought it was another occupant getting ready for work. He then heard more rattling and, feeling something was wrong, he ran downstairs and saw that the front door and garage door were open. He looked at the living room table and saw that keys were missing. At that point he yelled “we get robbed” and ran out the front door but did not see anything. Another victim had made his way downstairs after hearing the other yell out.

  3. The two occupants ran onto the street outside and nearby to see if they could find the intruders. One saw a male on a motorbike on the corner of a nearby road. He pointed at the male before the male rode away. The victim tried to intercept him but was unsuccessful. He returned to his home. The person on the motorbike was the respondent.

  4. The items that were stolen by the respondent and Mr Cubby were sets of keys to four cars kept at the property, all of which had house keys and the garage remote on them. Those cars were owned by various members of the household (H93122180/2 - aggravated break, enter and steal).

  5. After leaving the premises the respondent and Mr Cubby approached the respondent’s brother, Mr Adrian Flanagan, and told him what had taken place. The respondent and Ms Cubby had met Ms Renee Clarke about one week earlier and told her that they would pay her money if she were to drive them places from time to time. The respondent contacted her and arranged for her to drive to collect the offenders and drive them to the premises which they had broken into.

  6. About 6:20am Ms Clarke left her home and collected the respondent and the other co-offenders. About 7:00am Ms Clarke stopped her car on an adjacent street, approximately 50 metres from the premises. The three males exited the car and Ms Clarke remained seated in the driver’s seat.

  7. The Flanagans each carried with them a black bag. Inside the bag carried by Adrian Flanagan was a loaded glock pistol. Inside the bag carried by the respondent was a .22 calibre pump action rifle.

  8. All three males walked towards the premises. Adrian Flanagan and the respondent approached the cars parked in the driveway. The respondent unsuccessfully attempted to open the door of a car which was locked so he retreated to the neighbouring fence where Mr Cubby was waiting. Adrian Flanagan used a key to unlock one of the other cars which was parked in the driveway of the premises. Adrian Flanagan entered the driver seat and started the car.

  9. Three of the occupants of the house were now downstairs in the dining area. One heard the sound of the car starting. He yelled out “that’s mum’s car”. The three of them all ran outside. One of the occupants ran to the car and opened the driver’s door and yelled “get out”. He took hold of Adrian Flanagan and tried to pull him from the car. Adrian Flanagan was kicking out and protecting his face with his hands.

  10. The respondent walked towards the car holding a firearm. He yelled words to the effect of “let go and walk back”. One victim put his hands up and yelled “don’t shoot me”. The other let go of Adrian Flanagan and the occupants of the house retreated for cover. One of the victims heard the respondent cock the firearm. He recognised the respondent as the same person he saw on the motorbike earlier that morning.

  11. Adrian Flanagan reversed the car up the driveway. The respondent then entered the rear seat of the car, which then drove away.

  12. The victims feared for their own lives and that of their mother during the armed robbery (H93122180/1 – robbery armed with a dangerous weapon).

Robbery armed with a dangerous weapon, an offence under s 97(2) of the Crimes Act 1900 (NSW) (H91379650/1)

  1. About 4:30pm on Monday the 24th of October 2022 the respondent was the passenger of a motorbike which rode through the car park of Carnes Hill Marketplace. The motorbike rode onto the footpath directly in front of the central entrance to Carnes Hill Marketplace. The respondent got off the motorbike and entered the shopping centre. He was captured on CCTV in distinctive clothing including a black hat, mask and sunglasses and carrying two large duffel bags.

  2. The respondent walked into Diamond Hill Jewellers, located next to the central entrance of the shopping centre. The sole occupant of this store was the owner/ victim.

  3. The victim was in his rear office and heard the buzzer at the door go off. He looked at the monitor in the office and saw the offender standing in the store. The victim went out to the store to greet the customer. He was shocked when he saw that the person had a mask over their face and was holding a gun and pointing it at him. The victim was very scared, turned around, went back into the office and closed the door behind him. He began screaming “Help! Help!” and heard the man fire the gun once and then a second time. The victim did not know if the man was firing the gun at him or into the glass. The victim was scared and continued screaming to get the attention of others.

  4. The victim heard the glass smashing on the display cabinets. CCTV from inside the jewellery store depicts the respondent producing a hammer from inside his duffel bag and smashing the glass display case containing jewellery. The offender attempted to place a full jewellery display into his duffel bag however he realised it was too large and discarded it. He then took several handfuls of jewellery and placed it in his duffel bag. He held his hammer in one hand and the firearm in the other hand during this process. At one point when the respondent was smashing the glass cabinets, the victim stepped out from the back office but returned after the respondent turned around holding the gun. The respondent then ran from the location in the same direction he came.

  5. The victim stepped out from his office and activated the duress alarm once the respondent had left.

  6. Several witnesses who were at the shopping centre heard loud noises/gun shots and reported the matter to police.

  7. The offender ran out of the shopping centre and got onto the rear of the motorbike he arrived on. His co-offender then rode with him from the location.

  8. Police were contacted and after confronting the respondent and following a brief chase, he was arrested. The chase and arrest of the offender was captured on clear, colour CCTV footage from a nearby residence which was viewed and obtained by police.

  9. Police located two duffel bags on the respondent containing jewellery. Also located was a small resealable plastic bag containing a crystal-like substance and 138 rounds of .22 calibre ammunition with an empty casing. The same ammunition was in the located sawn-off shotgun.

The subjective case of the respondent

  1. In terms of the respondent’s subjective case, the sentencing judge had before her a report of Dr Christopher Bench, psychiatrist, dated 16 July 2024. There was also a Sentencing Assessment Report and the respondent’s record of prior offending.

  2. There was no challenge by the Crown to Dr Bench’s report and the author was not required for cross-examination.

  3. In summary, the respondent was born in Liverpool, New South Wales, in 1999. He was aged 23 at the time of offending and 25 at the time of sentence. He is the eldest of five children, but the siblings did not have a close relationship because they were separated and under the care of the Department of Community Services (DOCS).

  4. The respondent was removed from his home when he was aged 10 due to domestic violence and drug abuse in the family. His father perpetrated severe domestic violence on his mother which he witnessed. His father was jailed as a result.

  5. His mother died as a result of a heroin overdose when he was 16 years old.

  6. The respondent’s father was diagnosed with drug-induced schizophrenia and abused heroin and amphetamines. One of the respondent’s brothers is also in prison and abuses amphetamines and cannabis.

  7. When he was removed from his home he was placed in many different foster families. He lived with his grandmother briefly, albeit unsuccessfully. He ran away from DOCS custody at age 13.

  8. He was physically and sexually abused when he was aged 12 and 13, both times whilst he was in a juvenile justice centre. He is presently engaged in civil litigation relating to that abuse.

  9. At age 14 when driving a car, he was involved in a significant car accident where people were seriously hurt.

  10. He has a limited educational history. He attended three different primary schools but left in year six. He never attended high school. He had been suspended on a number of occasions when he was at school.

  11. He has a very limited employment history. The longest period of employment was for six months during which he completed staging for events. He has also worked as a roofer. He was unemployed at the time of the offending.

  12. He has two daughters aged seven and five at the time of the sentence, each from different relationships. One daughter lives with his aunt under the supervision of the Department of Family and Community Services (FACS) and the other with the child’s mother.

  13. The respondent was homeless at the time of the offending. He was couch-surfing at that time.

  14. He does have a significant criminal history. His offending commenced when he was a child and continued during his adolescence resulting in detention in juvenile justice centres on a repeated basis. He reported that during this period he had not been out of custody for more than six to eight weeks before being returned back into custody. His longest period of detention was two and a half years.

  15. His offending continued as an adult and included armed robbery, offences of violence, break and enter offences, firearm offences, home invasion and larceny. He has been sentenced to terms of imprisonment on multiple occasions and his longest period out of prison was for a period of 11 months, prior to his arrest for these matters.

  16. He started drinking alcohol at age 12. He has not drunk alcohol now for some years. He started using cannabis at age 12 and from that time used that drug on a daily basis up until his arrest for these matters. Prior to his arrest he was smoking 2g of cannabis a day. He has not used cannabis since he has been in custody for these offences.

  17. The respondent commenced using amphetamines at age 13. He used them from age 14 on a daily basis when he was not incarcerated up until his arrest for these offences. At the time of the offending he was injecting approximately 1.5g of amphetamines daily.

  18. The respondent started using heroin at age 17 and continued to use it on a daily basis from age 18. At the time of his arrest he was injecting approximately 1g of heroin per day.

  19. He used GHB from age 21. He used that drug daily for the 11-month period he was out of custody. At the time of his arrest for these matters he was ingesting approximately 70mls of GHB per day. He has not consumed any of this drug since he has been in custody.

  20. He reported to the psychiatrist that he commenced a rehabilitation program, but he was unable to complete this due to personal problems when his brother had his own substance abuse issues and became homeless.

  21. The respondent also developed a gambling problem during his most recent period out of custody when he was aged 22. He was gambling daily on poker machines. He was putting up to $8,000 per day through the machines and noted to the psychiatrist that he offended in order to further his gambling and substance abuse. He received a $33,000 payout on the day of his release which related to the physical abuse he suffered whilst detained in juvenile justice. He spent all this money in two to three days on gambling and drugs.

  22. Dr Bench opined that the respondent satisfied the diagnostic criteria for a cluster B personality disorder with antisocial and borderline traits, a Cannabis Use Disorder in enforced remission, Stimulant Use Disorder in enforced remission, Opioid Use Disorder, Post-traumatic Stress Disorder (PTSD), Substance-induced Psychotic Disorder in remission and Gambling Disorder in remission.

  23. Dr Bench noted that the respondent reported significant stressors in his life at the time of the offending conduct relating to his ongoing financial difficulties from his drug and gambling abuse. The respondent reported to Dr Bench that at the time he had given up and wanted to die or get killed by the police. He was sleeping a couple of hours every couple of days and was only getting energy from the drugs he used. He was barely eating and was experiencing frequent passive suicidal ideations.

  24. Dr Bench was of the opinion that his cluster B personality disorder with antisocial borderline traits and PTSD would have been present at the time of the offending. He said the most significant causal connection between the respondent’s mental health conditions and his offending behaviour related to his intoxication on cannabis, amphetamines, heroin and GHB. He said that such a degree of intoxication likely contributed to a significant degree of impulsivity and disinhibition. This likely prevented the respondent from considering the consequences of his actions in a rational and reasonable manner.

  25. The author of the Sentencing Assessment Report recorded that the respondent confirmed he was homeless at the time of the offending and extremely dependent on illicit substances. He was acting on “survival instincts”, as he had done in his formative years. He disclosed the suicidal ideations and that he had feelings of hopelessness and considered that he was better off dead or back in custody.

The reasons of the sentencing judge

  1. The sentencing judge undertook an assessment of the objective seriousness of the three offences. There is no complaint by the Crown with respect to her Honour’s consideration of matters going to the objective seriousness of the offending or her Honour’s conclusions in that regard.

  2. With respect to the break and enter offence her Honour appropriately considered the application of the guideline judgment in R v Ponfield (1999) 48 NSWLR 327; [1999] NSWCCA 435, including factors such as the damage caused, the value of the goods stolen and the degree of planning, which her Honour considered was unsophisticated. Her Honour assessed the objective seriousness of this offending as being “at the mid-range of objective seriousness for offences of this type”.

  3. As to the robberies, her Honour considered the relevant factors from the guideline judgment in R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R 149; [1999] NSWCCA 111 (“Henry”), including the respondent’s youth and prior criminal record, the weapon used, the limited degree of planning and the threats of violence involved. With respect to the latter factor, her Honour referred to the use of a gun in each of the robberies and the discharge of the weapon in the robbery in the shopping centre, which she appropriately concluded involved a real threat of violence and harm to the victim and to members of the public in the shopping centre. Her Honour considered the vulnerability of the victims, the amounts taken in each of the robberies and the pleas of guilty by the respondent in the face of strong Crown cases.

  4. Her Honour concluded that the first of the robberies fell at the mid-range of offending for like offences. She assessed the robbery at the shopping centre as being “at the upper-end of the mid-range of objective seriousness for offences of this type”.

  5. Her Honour considered, in an orthodox way, the application of s 21A of the CSPA. Again, there is no complaint by the Crown as to her Honour’s conclusions in that regard. Her Honour considered the respondent’s criminal history did not aggravate the offending but meant that he was not entitled to the leniency he might have been afforded if he had come before the Court with no criminal history.

  6. Her Honour noted that the respondent was entitled to a 25% discount on the sentence to be imposed by reason of his early guilty pleas: s 25D(2)(a) CSPA. She found that the respondent had some insight into his offending and “has come to see the magnitude of his actions and regret them, quite apart from the consequences that he himself has suffered”. She was satisfied he had expressed “broad and limited” remorse.

  7. The sentencing judge found that the respondent’s prospects of rehabilitation largely depended upon his ability to abstain from drugs and alcohol and to live a pro-social life, which he had plainly been unable to do. He had a genuine desire to live such a life. The respondent told Dr Bench of his desire to abstain from illicit substances on a lifelong basis. Her Honour referred to the treatment plan proposed by Dr Bench. She also referred to the respondent’s hope of completing a violent offender program in custody. He had already engaged in mental health care with Justice Health and had been compliant with taking his medications.

  8. Her Honour found that the respondent had some reasonable prospects of rehabilitation if he accepted support and when challenged, rather than turning to anti-social peers, he was to turn to those in the system who support him.

  9. Having regard to the respondent’s subjective case, her Honour, applying Bugmy v R (2013) 249 CLR 571; [2013] HCA 37, accepted that the respondent’s experience of growing up in an environment of alcohol and violence had left a mark on him. She said:

“I acknowledge that a background of this kind, as experienced by this offender, has affected him throughout his life and has compromised his capacity to mature and make rational decisions and that he has fewer emotional responses to guide his behaviour as a result of that dysfunction and disadvantage and that therefore, he bears lesser moral culpability than someone with a more normal-if I could say-or more advantaged upbringing.”

  1. Additionally, whilst her Honour accepted that the respondent’s mental health condition was present at the time of the offending, she was not satisfied that his mental health condition “was of such magnitude that there should be a significant causal link such that his moral culpability for the offending should be reduced significantly but I do accept that some reduction in moral culpability is appropriate.” Her Honour continued:

“I do also take into account that, given the relationship between the disadvantage and the mental health of the offender, he is clearly a person who has had a troubled and traumatic upbringing. He has battled addiction, homelessness, childhood trauma, a significantly disrupted home life and education. He was exposed to drugs at an early age.

I am satisfied, given the origins of both his mental health and other features, that it is appropriate to moderate also the need for specific and general deterrence in this case. I also find, as a consequence of these factors, there is a very strong need for his rehabilitation in these circumstances for treatment outside the prison upon release.”

  1. The youth of the offender was also considered by her Honour to be relevant to the sentencing exercise. She considered the fact that, notwithstanding his not insignificant criminal history, he is still a young person. She took into account that by reason of his compromised emotional intellectual resources, the principles relevant to sentencing of youths ought to be given some weight in the sentencing exercise.

  2. As part of the matters considered in the instinctive synthesis of the sentence to be imposed, her Honour did expressly consider the principle of totality. As I have observed, the principal issue in the appeal concerns her Honour’s application of the totality principle in arriving at the aggregate sentence she did. It is appropriate, therefore, to set out the passage from her Honour’s remarks on sentence dealing with this issue:

“TOTALITY

The Court sentencing offender (sic) for multiple offences must determine the appropriate sentence for each individual offence and then consider questions of accumulation, or concurrence, bearing in mind the principles of totality. The effect of the totality principle is to require me, having assessed all the individual sentences, to stand back and consider whether the overall sentence to be imposed is just and appropriate and reflect the overall criminality of the offending. In sentencing for multiple offences, regard should be had to the chronology of offending.

As noted in McIntosh v R, early offending will usually attract a degree of leniency which would not be afforded with respect to subsequent offences, nd (sic) that is Davis v R [2019] NSWCCA.

The offences occurred within a relatively short temporal period. The Crown submits that the principal offences represent distinct instances of offending occurring over several days and with different victims. As such, there should be a modest amount of accumulation to reflect the criminality and I agree that there must be some accumulation notwithstanding it occurred over a short period of time lest there be a public perception that people are sentenced less seriously for committing multiple offences.”

  1. Her Honour then considered the standard non-parole period for the break and enter offence, as required by s 54B of the CSPA. She found special circumstances so as to vary the statutory ratio between the head sentence and non-parole period and, taking into account the matters on the Form 1s where appropriate, proceeded to impose the aggregate sentence of 5 years and 10 months with a non-parole period of 3 years and 6 months, commencing on 24 October 2022.

Crown submissions

  1. As has been stated, the very narrow point on the appeal is whether her Honour appropriately applied the principle of totality to the aggregate sentence she imposed. The Crown submits that by reason of the circumstances of the offending involving distinct offending in numerous respects, her Honour erred in the application of that principle by arriving at a degree of notional concurrency of the indicative sentences for the offences. The Crown submitted that the notional concurrency went beyond what was open to her Honour given the profound differences in the offending and, consequently, the limited capacity for the sentence for one offence to comprehend the criminality of the others, having regard to the separate discrete conduct in each case and different victims: citing Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 (“Cahyadi”) at [27].

  2. The Crown pointed to the following matters which indicated the differences in the offending:

  1. the offending occurred on different days (namely Thursday 20 October 2022, Saturday 22 October 2022 and Monday 24 October 2022);

  2. the offending involved different groups of co-offenders. The respondent was in the company of Ms Sanders and Mr Cubby on 20 October 2022, Mr Cubby, Mr Adrian Flanagan and Ms Clarke on 22 October 2022 and an unknown male on 24 October 2022;

  3. the offending involved different victims. On 20 October 2022, the victims were two of the occupants who resided at the house in Bonnyrigg Heights with their two children. On 22 October 2022, the victims were the family who lived in the house which was robbed. On 24 October 2022, the victim was the jewellery store owner; and

  4. the offending involved different kinds of conduct. The Crown submitted an empty home was broken into and ransacked whilst the respondent was armed with a knife on 20 October 2022. A home was broken into and a vehicle ultimately stolen whilst the respondent was armed with a gun on 22 October 2022. The jewellery store was robbed whilst the respondent was armed with a gun on 24 October 2022.

  1. The Crown accepted that the Solicitor Advocate appearing before the sentencing judge submitted that there should be a “modest” degree of accumulation because of the distinct offending which occurred over several days with different victims. It was conceded that her Honour did not get as much assistance from the Crown on this issue as could have been given. The Crown submitted, however, that what occurred in this case was unreasonably modest having regard to those factors and the notional degree of concurrency resulted in an unreasonable and manifestly inadequate outcome.

  2. The Crown accepted that the subjective case of the respondent may have attracted some leniency. However, it submitted that this cannot explain or justify the degree of notional concurrency implicit in the aggregate sentence. That degree of notional concurrency revealed, in the Crown’s submission, that the sentencing discretion miscarried and resulted in a manifestly inadequate aggregate sentence.

Respondent’s submissions

  1. The respondent submitted that in considering the issue of totality, it was important to note that the sentencing judge made several significant findings as part of the sentencing exercise. These related to the objective gravity of the offending and that on the subjective case of the respondent the “Bugmy issues” were vitally important. So too were the findings made by her Honour with respect to the respondent’s mental health and the strong need for rehabilitation. Counsel referred to her Honour’s findings that the respondent had demonstrated insight and remorse and that he faced a risk of institutionalisation.

  2. Counsel for the respondent submitted these findings meant that the purposes of sentencing pulled in different directions in significant respects. He submitted that as to totality, her Honour approached that issue in a textbook fashion. He referred to the principles that the sentencing exercise involves a discretion and that the sentencing judge is to be given as much discretion as possible.

  3. In terms of the nature of the offending conduct in this case, it is accepted that the offending occurred on different days although, as the sentencing judge noted, within a relatively short temporal period. Counsel submitted that the “group of offenders suggests a similar configuration of likeminded persons which does little to distinguish the offending”. He submitted that there were significant similarities in the offending — all offences were committed in order to gain funds for ongoing drug use. He accepted there were different victims in three of the offences.

  4. Counsel for the respondent submitted that the asserted differences between the offending, as outlined by the Crown, were not such as to set each offence apart. He submitted each of the relevant differences were recognised by the sentencing judge’s remarks on sentence. Indeed, her Honour specifically referred to the fact that the offending occurred on different days and involved different victims such that there would be a modest degree of accumulation to reflect the criminality of the offending.

  5. Counsel referred to her Honour’s description of the level of accumulation imposed as being “modest” which was, in fact, an acceptance of the Crown’s submission that the level of accumulation should be “modest”.

  6. In all circumstances, counsel submitted that her Honour faced a difficult sentencing exercise. Whilst accepting the offending was objectively serious, the subjective case for the respondent was positive and full effect was required to be given to the issues created by his dysfunctional background. As recognised by the trial judge, he submitted there was a very strong need for rehabilitation in a young offender who had already begun to show signs of institutionalisation. Counsel submitted that her Honour carefully analysed all of these factors, balancing the competing and conflicting purposes of sentencing and, whilst the aggregate sentence imposed may be considered lenient, it was within the permissible range and not unreasonable or plainly unjust.

Legal principles

  1. The applicable legal principles on Crown appeals where it is submitted the sentence is manifestly inadequate are well known. There was no dispute between the parties as to those principles and, having regard to the narrow nature of the appeal as it was ultimately argued, they need not be traversed in great detail.

  2. Each party accepted that the ground of manifest inadequacy entails an assertion that the sentence imposed is unreasonable or plainly unjust that must be recalled, remembering that there is no correct sentence, and this Court must not interfere merely because it would have exercised the sentencing discretion differently from the sentencing judge. The relevant principles were summarised by Harrison J (as the Chief Judge then was) in R v Sara [2020] NSWCCA 119 (“Sara”) at [97]-[99]:

[97] “The assertion that a sentence is manifestly inadequate is an assertion that the sentence is “unreasonable or plainly unjust”, as that expression is used in House v R : see Markarian v R (2005) 228 CLR 357; [2005] HCA 25 ; at [25]. In other words, the Court must be satisfied that the non-parole periods and total sentences imposed were outside the range of sentences that could have been imposed: see R v Mereb; R v Younan [2014] NSWCCA 149 at [32].

[98] However, appellate intervention will not be justified simply because the result arrived at below is markedly different from other sentences imposed in other cases. The Court must be driven to conclude that there must have been some misapplication of principle: Wong v R (2001) 207 CLR 584; [2001] HCA 64 at [58];Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45 at [58]–[59], [75]–[76]; R v Pham (2015) 256 CLR 550; [2015] HCA 39 ; at [28].

[99] In assessing whether the sentence imposed was “unreasonable or plainly unjust”, the following principles apply:

(1) Sentencing is a discretionary judgment and there is no single correct sentence: Bugmy v R (2013) 249 CLR 571; [2013] HCA 37; at [24].

(2) The Court of Criminal Appeal must not substitute its own opinion merely because it would have exercised the sentencing discretion differently to the sentencing judge: Lowndes v R (1999) 195 CLR 665; [1999] HCA 29 ; at [15].

(3) Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency of approach: Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54 at [6]; Markarian at [25]; Hili at [58].

(4) The weight to be given to the various factors to be taken into account (including the evidence and various purposes of sentencing) is a matter for the sentencing judge: Bugmy at [24], [99].

(5) Although the Court of Criminal Appeal is not bound by the sentencing judge’s assessment of objective seriousness, the Court should be very slow to form its own view: CMB at [78]; Mulato v R [2006] NSWCCA 282 at [37].

(6) Whether or not manifest error has occurred is not “fundamentally intuitive”. What reveals manifest inadequacy is a consideration of all of the matters that are relevant to fixing the sentence: Hili at [60].

(7) Reviewing a history of sentencing can establish a range of sentences that have in fact been imposed. However, that history does not establish either that (i) that range is the correct range; or (ii) that the upper or lower limits to the range are the correct limits. They are only a yardstick against which to examine a proposed sentence: Hili at [54] approving Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 at [303]–[304].”

  1. As to the issue of totality, in Cahyadi at [27]-[28] Howie J, with whom Adams and Price JJ agreed, said:

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

[28] This issue was most recently discussed in R v MMK [2006] NSWCCA 272 where the Court stated:

[11] One of the limiting principles that constrains a sentencing court in seeking to promote the purposes of punishment is the principle of proportionality. Another is the, not-unrelated, principle of totality and it is this principle that operated in the present case. It is the application of the totality principle that will generally determine the extent to which a particular sentence is to be served concurrently or cumulatively with an existing sentence in accordance with statements of the High Court as to the operation of the principle in Mill v R (1988) 166 CLR 59; Pearce v R (1998) 194 CLR 610 and Johnson vR (2004) 78 ALJR 616.

[12] In R v Holder (1983) 3 NSWLR 245, Street CJ described the principle as follows: (at 260)

… The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing Judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing Judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences …

[13] In some cases the fact that a sentence for a particular offence is to be served completely concurrently with another sentence for a different offence will result in a sentence that is erroneously inadequate because it does not reflect the totality of the criminality for which the offender was to be punished for the two acts of offending: see for example R v Brown [1999] NSWCCA 323. This may be so even if the two offences arise from the same precise criminal act, such as the dangerous driving of a motor vehicle on the one occasion: R v Janceski (No 2) [2005] NSWCCA 288. The same principle has been applied to sexual assault offences arising from a single incident of sexual assault: R v Gorman (2002) 137 A Crim R 326. Although, it has been held that a determination of the extent, if any, that a sentence is to be served cumulatively with another sentence is an exercise of discretion on which minds might differ, R v Hammoud (2000) 118 A Crim R 66, that discretion is generally circumscribed by a proper application of the principle of totality.

That was a case where it was held to be appropriate to impose a sentence completely concurrent with sentences then being served by the offender even though the offence, for which sentence was imposed, was a completely separate and discrete act of serious criminality.”

  1. It can thus be seen that it is the principle of totality that requires a sentencing court, when sentencing an offender for multiple offences and imposing an aggregate sentence, to assess whether the aggregate sentence is just and appropriate, having regard to the totality of the criminality involved in the offending. In Ayoub v R [2024] NSWCCA 168 at [29]-[30], Dhanji J, with whom Harrison CJ at CL and N Adams J agreed, said:

[29] “The principle of totality is well established. In Nguyen v R (2016) 256 CLR 656; [2016] HCA 17 Bell and Keane JJ said (at [37]):

Just as a sentencing judge is accorded as much flexibility as is consonant with the statutory sentencing regime in determining the appropriate sentence, so, too, the judge is to be accorded the same flexibility in determining the structure of two or more sentences. The [ Crimes (Sentencing Procedure) Act 1999 (NSW)] does not confine the approach to be taken to the structure of two or more sentences. It assumes concurrency in the absence of a direction to the contrary. The sentencing judge was required to impose an appropriate sentence for each offence and to structure the sentences such that the overall sentence was just and appropriate to the totality of the appellant’s offending behaviour. As the Court of Criminal Appeal correctly said, the question of concurrency or partial accumulation required consideration of whether the sentence for the manslaughter offence could encompass the criminality of both offences. (footnotes omitted)

[30] The question of whether the sentence for one offence can “encompass the criminality” of other offences, has also been expressed in terms of whether the total sentence is sufficient to comprehend the total criminality: Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 at [27]R v XX (2009) 195 A Crim R 38; [2009] NSWCCA 115 at [52]. In answering that question, it is necessary to bear in mind that, particularly in the context of long sentences, the severity of a sentence increases at a rate greater than the increase in its length. That is, a sentence of 10 years is more than twice as severe as a sentence of 5 years: R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [16].”

Disposition

  1. The Crown has not identified any patent error of principle in the sentencing judge’s remarks on sentence. It is not said that her Honour failed to take into account any relevant matter, nor that she took into account an irrelevant matter. Nor is it said that her Honour made an error of fact in her remarks on sentence. It is not submitted that any error in the aggregate sentence is disclosed by reason of the length of the indicative sentences.

  2. The Crown submitted that her Honour gave too much notional concurrence to the indicative sentences for the three offences, with the result that the aggregate sentence did not reflect the totality of the criminality. By reason of the differences in the offences set out in the Crown submissions above, the Crown submitted that this notional concurrence meant that the aggregate sentence was unjust and manifestly inadequate.

  3. I do not accept the Crown submissions.

  4. It is true that the offences were committed on separate occasions, albeit over a limited timeframe. It is also true that there were different victims. However, the sentencing judge noted the distinct instances of the offending and that there were different victims. The aggregate sentence imposed recognised the separate criminality of the separate offending by applying a modest amount of notional accumulation of the indicative sentences. Importantly, the Crown on sentence submitted to her Honour that a “modest” degree of notional accumulation was required. That was what her Honour did as she expressed in the remarks on sentence and is apparent from the aggregate sentence itself.

  5. Her Honour found that there must be some accumulation notwithstanding that the offending occurred over a short period of time “lest there be a public perception that people are sentenced less seriously for committing multiple offences”. That there was only “modest” notional accumulation does not mean in this case that such a public perception could reasonably be held. The respondent received a sentence of full-time imprisonment of 5 years and 10 months. In my opinion, this ought not be perceived as being an insignificant sentence for these offences when all of the matters relevant in the sentencing exercise, particularly the respondent’s subjective case, are properly taken into account.

  1. As well as focussing on the different and distinct nature of the offending conduct, the Crown’s written submissions sought to also address the asserted inadequacy of the aggregate sentence by applying the applicable factors from the guideline judgment in Henry to the two robbery offences (see [38]-[40] Crown written submissions). Based on that guideline, the Crown then sought to advance a submission that a sentence for one armed robbery in these circumstances would likely have been “at least toward the upper range of four to five years if not more than five years.” It was then submitted that because there were two distinct armed robbery offences here, the aggregate sentence imposed of 5 years and 10 months failed to adequately comprehend the criminality of those offences, particularly as there was a Form 1 matter to take into account for one of the robbery offences. In other words, the Crown submits that when the guideline sentence discussed in Henry is applied for each of the robbery offences, because the aggregate sentence for the three matters is only slightly higher than a sentence for one matter, appropriately applying the guideline judgment, the aggregate sentence must be inadequate.

  2. I do not accept this submission. It ignores the 25% discount to which the respondent was entitled for his early guilty plea. It ignores the differences in the factors that apply in this case to those outlined in the guideline judgment. It does not take into account the impact of the respondent’s subjective case on the application of the guideline sentence. Further, it treats the guideline judgment effectively as a “tramline” confining the exercise of the sentencing discretion: see Legge v R [2007] NSWCCA 244 at [59] per Spigelman CJ.

  3. The Crown also submitted that a different way to discern the asserted manifest inadequacy of the aggregate sentence was to consider the indicative sentences for each offence. It correctly noted the caution that must be applied to such an approach (referring to Aryal v R [2021] NSWCCA 2 at [50] and WS v R [2023] NSWCCA 52 at [46]). The Crown noted the indicative sentence for the most serious offence, being the 24 October robbery at the jewellery store, was 5 years and 2 months, but the aggregate sentence was “only five years and ten months in its entirety”. Thus, it was submitted, having regard to the seriousness of the other offences and the indicative sentences for those offences, “only eight months of accumulation could not adequately reflect their separate criminality”.

  4. This approach reflects an attempt to calculate the amount of notional concurrence and accumulation her Honour applied in reaching the aggregate sentence. I do not consider it is of assistance to attempt to construe the sentence and her Honour’s remarks to work out the degree of notional concurrence and accumulation applied for the respective indicative sentences. As Leeming JA said in Bojlevski v R [2024] NSWCCA 208 (“Bojlevski”):

[7] “…It is idle to seek to construe the reasons with a view to working out what particular possibility the judge had in mind, in circumstances where the point of imposing an aggregate sentence is that his Honour was not required to attend to any of the detail. Another way of putting this is that the proper exercise of the discretion to impose an aggregate sentence requires regard to be had to the individual sentences that would have been imposed for each offence, and to the principle of totality, but not to the questions of concurrency and accumulation had individual sentences been imposed.” …

  1. In an appropriate case, it may be open to consider the potential for accumulation and concurrency in an aggregate sentence in so far as that would cast light on whether the sentencing discretion has been properly exercised: Bojlevski at [18] per Fagan J referring to R v Brown [2012] NSWCCA 199 at [35] and R v Grover [2013] NSWCCA 149 at [60]-[66]. I do not consider, however, that this is such a case.

  2. I consider that her Honour approached the sentencing exercise in an orthodox and, with respect, logical and coherent manner. Having regard to the strong subjective case of the respondent it was plainly open to her Honour to moderate the sentence by reason of the reduction in the moral culpability of the offender and her finding with respect to rehabilitation. Additionally, the 25% discount (applied to the indicative terms) must be factored in.

  3. It may be thought that by reason of the nature and seriousness of the offending the aggregate sentence is lenient. However, that a different court may have imposed a different sentence does not, of itself, indicate error. The principles from the authorities extracted above indicate that sentencing judges must be allowed flexibility in the exercise of the sentencing discretion consonant with the proper application of principle. The weight given to relevant factors in the exercise of the sentencing discretion are properly matters for the sentencing judge.

  4. The Crown did not refer to any other matters where offenders were sentenced for like offences to support its argument that the sentence was manifestly inadequate by seeking to establish a range of sentences for such offences and that this sentence was outside that range. That may be because of the well-known limitations of the use of such an exercise, which can only indicate a yardstick, not whether the range (both to its upper and lower limits) is correct: Sara at [99](7) and the cases there cited. It relied solely on the argument that her Honour erred in the application of the principle of totality.

  5. In my opinion, her Honour appropriately considered the application of the principle of totality in the exercise of her sentencing discretion. It was open to her to conclude that, taking into account the matters she did in the instinctive synthesis of the sentencing process, the aggregate sentence she imposed reflected the total criminality of the offending.

  6. It is for these reasons that I concluded the Crown appeal should be dismissed.

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I certify that this page and the 34 preceding pages are a true copy of the reasons for judgment herein of the Honourable Justices Hamill, Adams & Coleman.

Dated: 20 December 2024     Associate:

Decision last updated: 20 December 2024

Cases Citing This Decision

0

Cases Cited

40

Statutory Material Cited

3

Aryal v R [2021] NSWCCA 2
Ayoub v The King [2024] NSWCCA 168
Bojlevski v The King [2024] NSWCCA 208