R v Reilly

[2012] NSWCCA 166

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	R v Reilly; R v Smith [2012] NSWCCA 166
Hearing dates:	28 June 2012
Decision date:	13 August 2012
Before:	Basten JA Price J S. G Campbell J
Decision:
Catchwords:	CRIMINAL LAW - appeal - sentencing - co-offenders in a 'ram raid' - whether sentencing judge failed to apply a discount for utilitarian value of pleas of guilty - whether Smith's sentence was manifestly excessive - whether sentencing judge failed to give Smith credit for pre-sentence custody - whether sentencing judge erred in the manner in which he took Form 1 matters into account - parity - whether sentencing judge failed to take into account Reilly's lack of significant previous convictions - whether Reilly had a justifiable sense of grievance - re-sentence.
Legislation Cited:	Crimes Act 1900 s 112(2), s 113(2), s 154F, s154G, s 195(1)(b)
Cases Cited:	Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 Devine v R [2009] NSWCCA 261 Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 Forbes v R [2009] NSWCCA 292 Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462 Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520 House v R [1936] HCA 40; (1936) 55 CLR 499 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 R v English [2000] NSWCCA 245 R v Ilbay [2000] NSWCCA 251; R v Kollas and Mitchell [2002] NSWCCA 491 R v Lawrence [2005] NSWCCA 91 R v McHugh (1985) 1 NSWLR 588 R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 R v Timmis [2003] NSWCCA 158
Category:	Principal judgment
Parties:	Beau Alexander Smith Steven John Reilly Crown
Representation:	Mr I Nash (applicant Reilly) Mr W Hunt (applicant Smith) Ms M Cinque (respondent)
File Number(s):	2010/279129 2010/254838
Decision under appeal	Date of Decision: 2011-07-28 00:00:00 Before: Black DCJ File Number(s): 2010/279129 2010/254838

Judgment

1. BASTEN JA: I agree with Price J.

1. PRICE J: Beau Alexander Smith and Steven John Reilly seek leave to appeal against the sentences imposed upon them by Black DCJ (the judge) in the District Court at Lismore on 28 July 2011. For the sake of convenience, the appeals were heard together. With no disrespect to the applicants, I will refer to them by their surnames.

1. Smith and Reilly were co-offenders in an offence of aggravated break and entering the Target Country Store at Goonellabah on 23 January 2010 and stealing property of Target Australia Pty Ltd. The circumstance of aggravation was that the co-offenders had committed the offence in the company of each other. This offence contravened s 112(2) Crimes Act 1900 which carries a maximum penalty of 20 years imprisonment with a standard non-parole period of 5 years. They had pleaded guilty in the Local Court and adhered to their pleas in the District Court.

1. Each of the applicants asked the judge to take into account on sentence two offences that had been included on a Form 1. One matter was an offence of stealing a motor vehicle contrary to s 154F Crimes Act which is punishable by 10 years imprisonment. The other was an offence of damaging a motor vehicle by fire contrary to s 195(1)(b) Crimes Act which is punishable by 10 years imprisonment.

1. Smith was sentenced to imprisonment for 5 years to commence on 17 August 2011 and to expire on 16 August 2016 with a non-parole period of 3 years 9 months expiring on 16 May 2015.

1. Reilly was sentenced to imprisonment for 5 years to commence on

28 July 2011 and to expire on 27 July 2016 with a non-parole period of 3 years expiring on 27 July 2014.

1. The facts of the offences were not in dispute and a statement of agreed facts was tendered. The facts can be briefly stated.

1. Smith, Reilly and a female co-offender stole a Holden Commodore sedan at about 5.20am on 23 January 2010. Smith drove the vehicle to the Target Country Store at the Goonellabah Shopping Village. Reilly was in the front seat and the female co-offender sat in the rear seat. Smith reversed the vehicle through the front glass doors of the Target Country Store. All of the offenders entered the store. Reilly smashed a display counter at the front of the store and stole eleven Apple iPods, five Optus mobile phones and seven Samsung Digital Cameras. Smith ran to the back of the store and stole two 48cm LCD flat screen televisions. The female co-offender assisted Reilly in smashing the display counters at the front of the store.

1. All three offenders loaded the stolen items into the Commodore; then got into the vehicle which was driven away by Smith to a grassed area. Smith and Reilly then set the vehicle on fire by using a lighter and fluid. The property was apparently removed from the vehicle before it was set on fire and taken to Smith's residence, where it was divided among the three involved in the theft.

1. The value of the property stolen from the store amounted to $4,112.76 and the damage occasioned to the store as a result of the 'ram raid' was $5,599.86. Target Country sought compensation in the sum of $9,712.62. The owner of the Commodore sought compensation in the amount of $1,000 for the damage to the vehicle that was totally destroyed by fire.

Smith's subjective circumstances

1. Smith was born on 25 September 1987. He was 22 years old at the time of the offending. The Probation and Parole Pre-Sentence Report disclosed that Smith, a young Aboriginal man, was one of fourteen children. Since leaving school at sixteen, he had limited casual employment until 2008 when he gained regular employment working for a local building supplier. Since his teenage years Smith has had a long-term pattern of polysubstance and alcohol abuse with periods of sobriety that have been preceded by the completion of the MERIT program in 2007 and the Balund-a program in 2008. Ms Mellor, the author of the report, observed that Smith who "comes from a negative background and has amassed a long criminal history... continues to make positive attempts to address his offending behaviour." Smith had reported that he was raised in a family where the eldest males, including his father condoned criminal behaviour and associated substance abuse.

1. The material before the judge included a letter from the Post Release Program Co-ordinator ACE North Coast which recounted that the applicant had been, since 2010, a voluntary participant in an indigenous employment program run by ACE Community College. Smith, who had been reliable and forthright, had worked hard at maintaining his relationship with his partner, who was very supportive of him.

1. During the sentence proceedings, Ashleigh Aitken, Smith's partner, gave evidence that they had been in a relationship since 2007 and had two children. She had noticed a change in Smith as he now took responsibility for the things that he had done, which he did not do when he was younger.

1. Smith has an extensive criminal history which includes offences of break, enter and steal, possession of housebreaking implements, take and drive a conveyance without the owner's consent, stealing from the person, aggravated break, enter and steal, common assault and assault occasioning actual bodily harm. For an offence of aggravated break, enter and steal and commit serious indictable offence in company, he was sentenced in the District Court at Lismore on 16 November 2006 to imprisonment for 3 years with a non-parole period of 16 months. Smith had been sentenced in the Children's Court in August 2005 for an aggravated break, enter and steal in company to a control order for 12 months that was suspended. He was sentenced in the Local Court on 25 November 2009 to concurrent terms of imprisonment of 18 months that were suspended pursuant to s 12 Crimes (Sentencing Procedure) Act 1999 on his accepting the supervision and guidance of the Probation and Parole Service for offences of common assault and take and drive conveyance without the owner's consent. At the same time, he was placed on a two year s 9 good behaviour bond for the offence of mid-range PCA.

1. At the time the present offences were committed, Smith was subject to these suspended sentences and the s 9 bond.

Reilly's subjective circumstances

1. Reilly was born on 12 May 1985 and was 24 years old at the time of the commission of the offence. A Probation and Parole Pre-Sentence Report disclosed that Reilly, who is of South Sea Islander origin, is a twin and the second eldest of eight siblings. His parents separated when he was aged two. Reilly's father subsequently settled in Lismore and established a new relationship. He has five half brothers and a half sister and lived with his father. Reilly was educated to year 10. His employment history includes a two year term as an apprentice butcher and various labouring positions.

1. Reilly told Mr O'Rourke, the author of the report that at the time of arrest, he was consuming excessive levels of alcohol and was addicted to amphetamines, methamphetamines and cannabis. The costs associated with maintaining his substance dependence had provided the catalyst for his offending. Mr O'Rourke considered that Reilly displayed a limited understanding of the negative impacts his substance abuse may have had on his mental health and daily interaction with others. However, he had successfully completed detoxification and was discharged from the Riverlands Detoxification Unit on 26 July 2011. Reilly presented as an immature person but was personable and co-operative. Mr O'Rourke reported that Reilly claimed that his actions were the result of poor consequential thinking coupled with what he described as a struggle with overwhelming drug and alcohol dependencies. A further Probation and Parole report was tendered that informed the judge that Reilly was assessed as suitable for entry to the assessment phase of the Balund-a program.

1. A report from Jane Wilson, psychologist was also before the judge. In summary, Ms Wilson stated that Reilly, who was born with substance dependence, had experienced ongoing significant substance issues since the age of 13. Reilly's Neonatal Abstinence Syndrome and his traumatic birth resulted in developmental delays, which compromised his self-esteem and precipitated his adult drug-taking behaviours. Ms Wilson opined that Reilly's under-developed capacity for consequential thinking prevented him from having the ability to adequately think through the consequences of his actions before engaging in anti-social criminal behaviours.

1. Reilly's prior criminal history revealed convictions for larceny (2004), entering prescribed premises and use of offensive language (2005), and use of offensive language (2006). Fines had been imposed by the Local Court for each offence.

Some findings by the judge

1. The sentencing proceedings for Smith and Reilly were heard together. Neither Smith nor Reilly gave evidence. Upon the conclusion of the submissions on sentence, the judge sentenced the applicants.

1. The findings by the judge in his ex tempore remarks include:

The offence would not seem to amount to a mid range offence.

The two matters on the Form 1 elevated the appropriate sentence for the offence.

There were no significant aggravating features.

Despite Smith's comparatively young age of 23, he had a serious criminal record including a similar type of offence, but not "a ram raid type" offence.

Smith's background made it extremely difficult for Smith to expect leniency by way of sentence reduction or a finding of special circumstances.

Reilly, who was 26 years old, had much less of a criminal record than his co-offender.

In Reilly's case, there was material justifying a finding of special circumstances.

The pleas of guilty were early and valuable.

There was no reason to differentiate between the offenders as some authorities had shown "that past records should not affect the approach to the instant offence" (ROS at 4).

Pleas of guilty

1. Both applicants complain that the judge failed "to identify, calculate or apply any sentencing discount to reflect the utilitarian value of the applicant's early plea of guilty": Smith - Ground 1, Reilly - Ground 4. As the pleas had been entered at an early stage, a utilitarian discount of 25 per cent was said to be properly available. The applicants submitted that the head sentences of 5 years suggested that a utilitarian discount had not been applied.

1. The Crown accepted that the judge had not explicitly quantified the discount for the pleas, but submitted that the discount had not been overlooked. The judge, who was very experienced, was not under an obligation to identify the discount awarded for the pleas and there was no error.

1. Although sentencing judges have been encouraged to quantify the discount awarded for a plea, it is not mandatory for them to do so: R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 per Spigelman CJ at [160]; R v Lawrence [2005] NSWCCA 91 per Spigelman CJ at [14].

1. In R v Lawrence [2005] NSWCCA 91 Spigelman CJ observed at [14] - [15] that although the guideline established in Thomson did not require sentencing judges to identify the discount, the rationale for providing a guideline included "the need to ensure that participants in the New South Wales criminal justice system had no reason to be sceptical about whether or not the benefits of a guilty plea were in fact made available to the accused."

1. In Lawrence, a ground of appeal that the sentencing judge had erred in failing to take into account the applicant's plea of guilty was dismissed. In his remarks on sentence, the sentencing judge referred to the plea of guilty but did not explicitly refer to the fact that he had taken it into account, nor did he quantify the benefit of the plea. Spigelman CJ, with whom the other members of the Court agreed, concluded that in view of the sentencing judge's long experience and the structure and length of the sentence imposed, that he had not failed to take the plea into account and to give it appropriate weight. The final head sentence had been 27 months which could be arrived at by reducing the sentence of 3 years by a 25 per cent discount for the plea.

1. In Devine v R [2009] NSWCCA 261, this Court upheld an appeal where the judge in his sentencing order did not refer to the plea of guilty at all, otherwise than to note that it had been entered in the Local Court. It appears that the sentencing judge had observed on the previous day, that the pleas were entered in the Local Court at the first available opportunity. At the close of submissions, the sentencing judge indicated that he intended to impose a non-parole period of 18 months, but made no reference to having taken the plea into account in the calculation of the sentence nor did he quantify the utilitarian value of the plea.

1. The utilitarian value of a plea is generally assessed in the range of 10-25 per cent discount on sentence: R v Thomson; R v Houlton at [160]. The amount of the discount is largely determined by the timing of the plea: R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 at [32]. It appears from the submissions made to the judge that in Smith's case, there had been discussions between the Crown and Smith's legal representatives as to whether there should be a committal hearing and as the plea was entered, a committal hearing was not required (AB 82). Reilly admitted his involvement in the offending when he participated in an electronically recorded interview at Lismore Police Station. Mr Cusack, who appeared for Reilly told the judge that there was "a plea of guilty at the outset" (AB 83). In these circumstances, a discount of 20-25 per cent on sentence would normally have been considered appropriate.

1. Unlike what occurred in Devine, the judge expressly stated that he had taken the guilty pleas into account. The judge said (ROS 3-4):

"Balancing all those various matters and adding in the fact that this was an early plea and a valuable plea in my view given the potential evidence available, perhaps it is difficult precisely to calculate the discount given for the plea because when one starts with the appropriate sentence for the indictment offence and then adds in the significant increase because of the Form 1 offences that makes calculating discounts very difficult. All I can assure the parties is that I have taken into account that plea in arriving at what I consider to be the appropriate sentence for this offence, taking into account the Form 1" (italics added).

1. These remarks were spoken moments before the judge imposed sentence. It is evident that his Honour was acutely aware that the pleas had significant utilitarian value and a discount was to apply to the sentence. Although the head sentences do not fit neatly into the application of a discount of 20-25 per cent, sentencing is not an arithmetical exercise but one of instinctive synthesis: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 per McHugh J at [84]. Whilst the mathematics might provide an indication as to whether a utilitarian discount has been applied, a judge's sentencing remarks are a more valuable guide. I would reject the notion that the judge, having assured the parties that he had taken into account the pleas just prior to passing sentence, would renege on his promise. Furthermore, his Honour is a very experienced sentencing judge.

1. I am not persuaded that his Honour did not apply an appropriate discount for the utilitarian value of the pleas of guilty. I would reject these grounds of appeal.

Beau Alexander Smith

1. Two further matters were raised in Smith's appeal, the first of them being expressed in the alternative to the issue just dealt with. Ground two of Smith's appeal is as follows:

"In the alternative to Ground One, if the sentencing Judge is found to have applied an appropriate sentencing discount to reflect the utilitarian value of the applicant's early plea of guilty, the starting point (sic) sentence was manifestly excessive, given the findings made and the circumstances of the case."

1. Mr Hunt, counsel for Smith, submitted, that if a 25 per cent discount for the plea had been applied, the starting point of the sentence was manifestly excessive, as was the resulting discounted sentence. Mr Hunt referred to the judge's finding that the offence was not in the middle of the range of objective seriousness, and to the offences on the Form 1, and contended that the sentence was not justified.

1. The Crown pointed out that the starting point of the sentence allowing for a 25 per cent discount for the plea was a head sentence of 6.66 years for which the non-parole period, applying the statutory ratio would have been 5 years. In addition to the objective seriousness of the offence itself, there were the offences on the Form 1, Smith's extensive criminal history for similar offences and his breach of three "good behaviour bonds". The Crown argued that the judge's finding that Smith's criminal record made it extremely difficult for Smith to expect leniency or for special circumstances to be found, was generous to Smith, as his record should have impacted upon considerations of retribution, deterrence and protection of society.

1. The applicant must show that the sentence was unreasonable or plainly unjust in order to make good his complaint that the sentence is manifestly excessive: Markarian at [25]. Intervention by this Court is neither warranted simply because it might have exercised the sentencing discretion in a manner different to the sentencing judge: Markarian at [28]; Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 at [57], nor simply because the sentence is markedly different from other sentences that have been imposed in other cases: Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520 at [59]. Whilst prior decisions and sentencing statistics are helpful when they assist in identifying a range or pattern of sentences for a particular offence, each case must be considered in the light of its own facts. No two cases are the same and there is no single correct sentence: Markarian at [27].

1. An offence contrary to s 112(2) Crimes Act embraces a wide range of criminal conduct. The agreed facts referred to the offence as a 'ram-raid' and the judge's attention was drawn by the Crown to Forbes v R [2009] NSWCCA 292 in which Hidden J at [54] - [61] reviewed a number of authorities that had considered an offence of this type and some emphasis was placed on Forbes in the appeal.

1. In my opinion, a 'ram-raid' is a serious instance of an offence of break, enter and steal because of the inevitable destruction that is unleashed by the use of a motor vehicle to smash into commercial premises and the difficulty that store owners have protecting their property from such an offence. Both specific and general deterrence would normally play an important part in the sentencing task for a ram-raid offence.

1. Although the offence was not professionally planned, it was planned and well executed. A significant amount of property was stolen and the damage to the Target store was not inconsiderable. When the judge said there were no "significant aggravating features", his Honour overlooked Smith's conditional liberty, being the two suspended sentences of imprisonment for 18 months and the s 9 good behaviour bond to which he was subject at the time of the offending. His Honour's oversight was to Smith's advantage. Furthermore, there were the offences on the Form 1 that involved the theft and destruction by fire of the Commodore. Smith's previous record included two offences of aggravated break, enter and steal. Whilst these offences were not ram-raids, Smith's continuing disregard of the law called for added weight to be given to deterrence and protection of society, but his Honour confined Smith's record to the question of leniency. This also was to Smith's advantage.

1. In Forbes the "ram-raid" had caused more than $16,000 damage to the arcade where it had occurred and an ATM machine containing about $54,500 was stolen. Forbes was charged with an aggravated, break and enter contrary to s 112(2) Crimes Act. Five offences which included the larceny and stealing of motor vehicles that had been involved in the commission of the crime, were included on a Form 1 and were taken into account on sentence. Forbes was also charged with one count of facilitating boat re-birthing contrary to s 154G Crimes Act. Forbes was sentenced on the s 112(2) offence to imprisonment for 6 years 8 months, comprising a non-parole period of 3 years 4 months and a balance of term of the same length. Forbes had pleaded guilty and the sentence was arrived at after discounting a starting point by 20 per cent for the utilitarian value of the plea of guilty. Hidden J (with whom McClellan CJ at CL and McCallum JJ agreed) considered at [61] that this was a "serious offence of its kind." Forbes's appeal against sentence was dismissed.

1. Although the offence in Forbes was well planned and the money stolen and property damage were greater than in the present appeal, Forbes subjective case was more favourable than that of Smith. Forbes was not on conditional liberty at the time of the offence and the sentencing judge considered that Forbes had good prospects of rehabilitation. Special circumstances were found justifying the substantial reduction in the length of the non-parole period. In any event, the undiscounted starting point of the sentence in Forbes was 8 years which is significantly more than the starting point of the present sentence.

1. The cases helpfully reviewed in Forbes by Hidden J include offences contrary to s 113(2) Crimes Act that carries a lesser penalty of 14 years imprisonment. Whilst acknowledging the usefulness of all of this material, each case must be determined on its own facts. The cases reviewed and the sentence imposed in Forbes do not persuade me that Smith's sentence was outside a legitimate exercise of his Honour's sentencing discretion.

1. The Court's attention was drawn to Judicial Commission sentencing statistics for s 112(2) offences, but the limited use that may be made of these statistics is further diminished by the wide embrace of offending that might be charged under the section.

1. Smith has not shown that the sentence was unreasonable or plainly unjust. I would reject this ground of appeal.

1. Ground 3 of Smith's appeal is that "the sentencing judge failed to accord the applicant any direct or notional credit for a period of 26 days served in custody referable to the index offences alone."

1. During the proceedings on sentence, the judge was informed that Smith had been arrested on 26 July 2010 for the matters that he stood for sentence, but was immediately granted bail. Smith was arrested on 22 March 2011 for an unrelated charge (an assault occasioning actual bodily harm) and asked that his bail be revoked. The Crown told the judge that Smith was subsequently dealt with in the Local Court for the breaches of the suspended sentences and the good behaviour bond. Smith had received "a four month non-parole period" dating from 18 April 2011 to 17 August 2011 and had also received a "similar fixed sentence in relation to the additional charge": T18 15-20.

1. The Crown was referring to the sentences imposed on Smith at the Lismore Local Court on 18 April 2011. The s 9 bond for the mid-range PCA was revoked and a fixed term of 3 months imprisonment commencing on 18 April 2011 was imposed. The suspension of the sentences of 18 months imprisonment for the common assault and take and drive conveyance were revoked and ordered to commence on 18 April 2011, with non-parole periods of 4 months commencing on 18 April 2011 and expiring on 17 August 2011. Smith was further sentenced to a term of 4 months imprisonment commencing on 18 April 2011 for the assault occasioning actual bodily harm.

1. The Crown put to the judge that these sentences were not lengthy and that the sentence to be imposed should start on 17 August 2011.

1. Mr Fuggle who appeared for Smith, submitted that as Smith's bail had been revoked on 22 March 2011, his sentence should commence from that date. His Honour told Mr Fuggle that he did not agree with this submission. Mr Fuggle then asked the judge to consider giving some credit for the pre-sentence custody and the commencement date of the sentence be "somewhat sooner" than 17 August 2011.

1. This Court has emphasised the desirability of sentencing judges backdating a sentence to take into account pre-sentence custody and to give reasons if this has not been done: R v McHugh (1985) 1 NSWLR 588; R v English [2000] NSWCCA 245. The decision to backdate a sentence is discretionary. Therefore, an appeal against a refusal to backdate a sentence can only succeed in accordance with the principles in House v R [1936] HCA 40; (1936) 55 CLR 499.

1. His Honour dealt with this issue in the following way (ROS at 4):

"In the case of Beau Alexander Smith that will start on 17 August 2011 and I say that because he was sentenced for other outstanding matters in my view in a comparatively lenient way, bearing in mind this, and the extra time is not such as to amount to a significant increase, so it will commence on 17 August 2011 and expire on 16 August 2016."

1. Although not entirely clear, it seems that the judge's reason for not backdating the sentence in any way was that the sentences imposed by the magistrate were "comparatively lenient". Whilst it was within his Honour's sentencing discretion to accumulate the sentence upon the Local Court sentences, in my view, the judge ought to have paid regard to the pre-sentence custody that had been served before the commencement of the Local Court sentences. His Honour was not sitting upon a leniency appeal from the decision of the magistrate and acted upon a wrong principle. As a consequence, Smith did not receive credit in either the District Court or Local Court for the 26 days in custody between 22 March 2011 and 18 April 2011 which is plainly unjust. In my respectful opinion, his Honour's sentencing discretion miscarried and the commencement date of the sentence should be backdated to reflect that period.

Steven John Reilly

1. Reilly's first ground of appeal is that "the sentencing judge erred in the manner in which he took the Form 1 matters into account".

1. Mr Nash, counsel for Reilly, submitted that the judge approached the sentencing task in a "top down fashion," or at least was impermissibly distracted from imposing the appropriate sentence for the s 112 offence by a concern to properly quantify the punishment for the Form 1 matters. Mr Nash argued that, rather than the circumstances of the Form 1 offences being included in the assessment of the seriousness of the s 112 offence, those matters were put aside and then used to increase the appropriate sentence for the primary offence. The judge's reference to R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 and the difficulties in quantifying the utilitarian discount for the plea were said to support Reilly's complaint.

1. The Crown's response was that had the judge taken the matters on the Form 1 into account in assessing the objective seriousness of the principal offence, there may have been an error, particularly if this had led to some form of double counting. There had been no such error; rather the judge sentenced the applicant in accordance with the principles in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146.

1. The focus of Reilly's complaint was the judge's remarks at (ROS 1-2):

"If [the two Form 1 matters] are properly regarded as part of the overall offence which I think might offend against Di Simoni then I would not have a problem describing this as a mid range offence...If it would be wrong to take into account the two matters on the Form 1 and again doing the best I can on the authorities it would not seem to amount to a mid-range offence but at the end of the day the two matters to be brought into account on the Form 1 elevate the appropriate sentence for this offence."

1. I do not think that there is any merit in Reilly's complaint. The judge did not adopt a "top down approach" which considers the sentence that would have been imposed if the court had been sentencing for the full range of offences (the principal offence and the two offences on the Form 1). It is trite to observe that the "top down approach" is not to be followed when Form 1 matters are to be taken into account. As Spigelman CJ said in the guideline judgment in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 at [39]:

"The sentencing court is sentencing only for the 'principal offence'. It is no part of the task of the sentencing court to determine appropriate sentences for offences listed on a Form 1 or to determine the overall sentence that would be appropriate for all the offences and then apply a 'discount' for the use of the procedure. This is not sentencing for the principal offence."

1. Although in his ex tempore remarks the judge expressed a concern that he might infringe the principles stated in De Simoni, he need not have done so. The requirement to take into account the two Form 1 offences, did not involve circumstances of aggravation which would have warranted a conviction for a more serious offence. Having enunciated this concern, his Honour correctly disavowed a 'top-down approach" when he said "at the end of the day the two matters to be brought into account on the Form 1 elevate the appropriate sentence for [the s 112(2)] offence." His Honour recognised that the sentence for the principal offence was to be increased by reason of the Form 1 offences and that Reilly [and Smith] were being sentenced for the principal offence.

1. His Honour adopted a "bottom up" approach and no error has been demonstrated: R v Timmis [2003] NSWCCA 158. The Form 1 offences did not increase the objective seriousness of the 'ram raid', but increased the weight that was to be given to deterrence and retribution: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 per Spigelman CJ at [42].

1. It is convenient to deal with Reilly's second and third grounds of appeal together, which are:

iiThe sentencing Judge erred in failing to take into account as a mitigating factor that the offender did not have any significant record of previous convictions.

iiiThe applicant has a justifiable sense of grievance arising out of the disparity between the sentence he received and that imposed upon a co-offender, Smith.

1. Mr Nash submitted that the judge gave no weight to Reilly's limited criminal history which is demonstrated by the identical head sentences of the co-offenders. In finding special circumstances, the judge did not explicitly refer to Reilly's record. Mr Nash contended that Reilly's criminal history compared to that of Smith and the fact that he was not on conditional liberty should have properly been brought to bear so as to differentiate between the two co-offenders. Mr Nash argued that Reilly had a justifiable sense of grievance.

1. The Crown contended that the judge did expressly refer to Reilly's lesser criminal history and took it into account in finding special circumstances. The Crown submitted that there was no marked disparity between the sentences of the co-offenders.

1. The judge relevantly said (ROS 3):

"The other offender Mr Reilly he is aged twenty-six, he has much less of a criminal record but again the authorities seem to indicate that records are not necessarily relevant in assessing the criminality of the instant offence...

In his case that is the case of Mr Reilly there is material justifying the finding of special circumstances."

1. And (ROS 4):

"The sentence I see no reason to differentiate between the offenders, as I have said some authorities show that past records should not affect the approach to the instant offence and I give effect to that."

1. A marked disparity between the sentences imposed on co-offenders of a degree or a kind which gives rise to a justifiable sense of grievance is required before appellate intervention: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295. The applicant must show that a reasonable person, looking at the circumstances of the case, would regard the applicant's grievance as justified: R v Ilbay [2000] NSWCCA 251; R v Kollas and Mitchell [2002] NSWCCA 491. The plurality (French CJ, Crennan and Kiefel JJ) in Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462 said at [31]:

"The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise." (footnotes omitted)

1. Smith had an extensive history of previous criminal convictions whereas Reilly did not. Although Smith's prior offending did not increase the objective seriousness of his offence, it gave rise to considerations of retribution, deterrence and protection of society, that were absent in Reilly's case: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566. Moreover, it was an aggravating factor in Smith's case that he was subject to conditional liberty when he offended. In my respectful opinion, his Honour erred in failing to recognise these important matters of distinction when he concluded that there was no reason to differentiate between Reilly and Smith. The differences should have been reflected in a lesser head sentence and are not explained by the finding of special circumstances that resulted in a shorter non-parole period. The sentence imposed should be quashed and Reilly re-sentenced.

1. Accordingly, it is unnecessary to deal with the fifth ground of Reilly's appeal which raises a complaint that the sentence was manifestly excessive.

Reilly's Re-sentence

1. Reilly has filed an affidavit from which it appears that he is taking positive steps whilst in custody. He has been promoted to clerk of the kitchen and has been recommended for inclusion in a warehousing traineeship course. Reilly is on the waiting list for the Smart Recovery Program and has completed a hygiene course. Custody has been a great shock to him and he misses his family deeply.

1. The maximum penalty for the offence is 20 years imprisonment and the standard non-parole period is 5 years. Bearing in mind these two legislative guideposts and taking into account the offences on the Form 1, when the objective seriousness of the criminality involved and the subjective features of Reilly are considered and a 25 per cent utilitarian discount for the plea is allowed, Reilly should be sentenced to a term of imprisonment of 4 years 6 months. I do find special circumstances being the additional assistance that Reilly will require to overcome his drug addiction upon release and maintain the judge's relationship between the balance of term and the non-parole period. Accordingly, the non-parole period will be 2 years 9 months and the balance of term 1 year 9 months.

Orders

1. I would propose the following orders:

(a)in the case of Beau Alexander Smith:

1.Leave to appeal granted.

2.Appeal upheld, albeit to a limited extent.

3.The sentence passed in the District Court of 5 years with a non-parole period of 3 years 9 months is confirmed, but is to commence on 22 July 2011. The non-parole period is to expire on 21 April 2015. The balance of term of 1 year 3 months is to commence on 22 April 2015 and is to expire on 21 July 2016.

4.The earliest date Smith is eligible to be released to parole is 21 April 2015.

(b)in the case of Steven John Reilly:

1.Leave to appeal granted.

2.Appeal upheld.

3.The sentence passed in the District Court is quashed.

4.Steven John Reilly is sentenced to a term of imprisonment consisting of a non-parole period of 2 years 9 months to commence on 28 July 2011 and to expire on 27 April 2014. The balance of term of 1 year 9 months is to commence on 28 April 2014 and is to expire on 27 January 2016.

5.The earliest date Reilly is eligible to be released to parole is 27 April 2014.

1. S. G CAMPBELL J: I agree with Price J.

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Decision last updated: 13 August 2012