R v Rose

[2015] NSWCCA 318

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	R v Rose [2015] NSWCCA 318
Hearing dates:	11 November 2015
Date of orders:	16 December 2015
Decision date:	16 December 2015
Before:	Ward JA at [1]; Davies J at [80]; RS Hulme AJ at [81]
Decision:	(1) Crown appeal be allowed. (2) Sentence imposed on the respondent on 25 June 2015 be set aside. (3) In its place, the respondent is sentenced to imprisonment for a term of 5 years, commencing on 11 October 2014 and expiring on 10 October 2019, with a non-parole period of 3 years to expire on 10 October 2017. (4) The earliest date upon which the respondent will be eligible for release on parole is 11 October 2017.
Catchwords:	CRIMINAL LAW – Crown sentence appeal – armed robbery – whether sentence manifestly inadequate – whether sentencing judge erred in approach to guideline judgment – whether sentencing judge erred in failing properly to consider the offender’s conditional liberty status at time of offending
Legislation Cited:	Crimes Act 1900 (NSW), s 97 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23, 44, 21A Criminal Appeal Act 1912 (NSW), s 5D
Cases Cited:	CMB v Attorney-General (NSW) [2015] HCA 9; (2015) 89 ALJR 407 Dinsdale v The Queen [2000] HCA 56; (2000) 202 CLR 321 Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462 Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293 Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 R v Button; R v Griffen [2002] NSWCCA 159; (2002) 54 NSWLR 455 R v Cortese [2013] NSWCCA 148 R v Harris [2015] NSWCCA 81 R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 R v Street [2005] NSWCCA 139 The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270 Yousif v R [2014] NSWCCA 180
Category:	Principal judgment
Parties:	Director of Public Prosecutions (Appellant) Joe Daniel Rose (Respondent)
Representation:	Counsel: Ms S Dowling SC (Appellant) Ms C Loukas SC (Respondent)   Solicitors: Solicitor for Public Prosecutions (Appellant) Aboriginal Legal Service (Respondent)
File Number(s):	CCA 2014/00281491
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: [2015] NSWDC 102 Date of Decision: 25 June 2015 Before: Mahony SC DCJ File Number(s): 14/281491

Judgment

1. WARD JA: The respondent, Mr Rose, pleaded guilty at Queanbeyan Local Court on 10 April 2015 to one count of robbery armed with an offensive weapon contrary to s 97(1) of the Crimes Act1900 (NSW). That offence carries a maximum penalty of 20 years’ imprisonment. No standard non-parole period applies.

2. On 25 June 2015, Mr Rose was sentenced to imprisonment for a term of 3 years and 3 months to date from 11 October 2014 and to expire on 10 January 2018, with a non-parole period of 21 months to expire on 10 July 2016.

3. The Crown had acknowledged that Mr Rose was entitled to a utilitarian discount of 25%. The Crown had also conceded that a finding of special circumstances for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) was appropriate.

4. The Director of Public Prosecutions appeals pursuant to s 5D(1) of the Criminal Appeal Act1912 (NSW) against the sentence imposed upon the respondent on the ground that it is manifestly inadequate.

Facts

5. At the sentencing hearing on 18 June 2015, an agreed statement of facts was tendered. The relevant facts (as drawn from that agreed statement unless otherwise indicated) may be summarised as follows.

6. Mr Rose was 23 years old at the time of the offence. The two victims of the armed robbery (Mr and Mrs Westwood) were aged 76 years and 74 years respectively. They lived on a 30 acre property at Bywong. There was a house and a number of sheds on the property. The shed nearest the residence contained a firearms cabinet as well as a number of cabinets containing ammunition. Securely stored in the firearms cabinet were a .22 calibre bolt action rifle and a 12 gauge double barrel shotgun.

7. On 14 September 2014, Mr Rose drove with his co-offender (Mr Brown), in Mr Brown’s car, with Mr Brown’s then girlfriend (Ms Pang) to Bywong, with the intention of breaking into the shed to steal the firearms. (I interpose here to note that there was some inconsistency between this stated fact and Mr Rose’s evidence at the sentencing hearing. In the course of that evidence, he agreed that he set out to go to the property and find guns but he also said that he did not “intend on choosing the property” and that he went that way and “just ended up out there”; denied that he had directed others to the address of the property and said they “went out that way”; and said that Mr Brown told him his boss lived on a particular road “so that’s where we started”. He said he did not know when guns “came into the plan”. Nevertheless, he also gave evidence that he knew the property because it had previously belonged to his grandfather and agreed it had not been selected at random.)

8. Mr Rose was dropped near the property. The other two drove away and parked nearby, waiting for about an hour and a half, and then drove to the boundary fence of the Bywong property parking the vehicle with a direct line of sight to the residence and the shed containing the firearm and ammunition cabinets.

9. Meanwhile, Mr Rose entered the shed at the rear of the property. Mr Westwood heard his dogs barking and went into the shed. He saw Mr Rose crouched at the rear of the shed. Mr Rose was holding a serrated knife approximately 8-9 inches long. (The Crown case was that Mr Rose also had with him a claw hammer. Although this is not referred to in the statement of facts tendered to the sentencing judge, in evidence Mr Rose said that he had had a little crow bar (a “jimmy bar thing”) with him.)

10. Mr Rose began to approach Mr Westwood who, fearing for his safety, took hold of a nearby metal frame and placed it between himself and Mr Rose. Mr Rose struck the metal frame, which hit Mr Westwood on the forehead and knocked him to the ground. Mr Westwood got to his feet in a dazed state. Mr Rose repeatedly said “I'm not gunna hurt you” but then went into a rage, saying repeatedly “I want your guns”. Mr Rose was alternately agitated and then calmed down. When agitated he was very aggressive. He threatened to kill Mr Westwood and his wife.

11. Mr Westwood attempted to pacify Mr Rose by asking him into the dwelling. Mr Rose was at the outside corner of the house. Mr Westwood called his wife to come outside and asked her to get Mr Rose a glass of water and a sandwich to calm him down. Mr Rose kept asking for the guns. Every time he took a drink of water he would wipe the glass clean.

12. After finishing the food, Mr Rose became agitated again. He told the victims to go inside the house. They heard the windows of the shed smash. Mr Rose again demanded the guns. Both victims told Mr Rose they were not in possession of guns but Mr Rose said that he knew they were and demanded access to them.

13. Mr Rose told the victims that he wanted the phone cut off. Mr Westwood told Mr Rose to leave his tools outside and took him inside. Mr Westwood pulled the house phone from the wall and showed Mr Rose that he had done so. Mr Rose demanded the victims’ mobile phones but did not take them. He continued to threaten to kill the victims and cut their throats.

14. Fearing for their lives, Mr and Mrs Westwood provided access to the shed and gave Mr Rose the gun safe keys. On gaining access to the shed Mr Rose made mobile phone contact with a person and said “[w]e’re right. I’ve got the keys, I’m right. I’m in”. (Pausing here, I note that Senior Counsel for Mr Rose, Ms Loukas SC, emphasised in the course of argument that the statement of facts did not state that the victims heard Mr Rose’s telephone conversation. There was no explanation as to where that information could otherwise have come from. It was not the subject of evidence from Mr Rose at the sentencing hearing.)

15. Mr and Mrs Westwood escaped from the residence in fear of their lives, running through paddocks to a neighbouring property. Mr Rose gained access to the gun cabinet; removed the firearms, ammunition and accessories which he placed in a wheelbarrow; and took them to Mr Brown who was waiting nearby. Police were contacted when Mr and Mrs Westwood reached the neighbouring property. By the time that the police attended the property a short time later the offenders were gone and the firearms, ammunition and accessories had been removed.

16. Following police investigations, the police executed a search warrant at a house in the ACT on 23 September 2014, recovering the .22 calibre rifle, ammunition and accessories and locating the barrel of a shotgun and the butt of a rifle that had been sawn from a firearm. Ms Pang was at that house at the time with another person. They were both arrested. Ms Pang provided an electronically recorded interview and statement to the police implicating Mr Brown and Mr Rose.

17. Mr Rose was arrested in the ACT on 1 October 2014 and was extradited to NSW. On entry into custody at Queanbeyan, Mr Rose declined legal advice and participated in an electronically recorded interview where he made full admissions in relation to his involvement in the matter. He indicated that he attended the location assuming that the residence would have firearms given that it was a property; and that, at the time of the incident, he was using the prohibited drug “ice” and was suffering from “withdrawals”.

Sentencing hearing

18. At the sentencing hearing it was conceded by Mr Rose’s solicitor that the offence occurred when Mr Rose was on conditional liberty relating to charges of a similar nature, although there was some uncertainty as to the status of the particular charges in respect of which he was on conditional liberty at the time.

19. A pre-sentence report dated 5 June 2015 was tendered in which reference was made to Mr Rose’s family’s ongoing support and his care of his young disabled sister. He was assessed as at medium risk of re-offending. His identified needs were alcohol/drug problems and emotional/personal problems. It was considered that he would benefit from a period of supervision by Community Corrections, including residential rehabilitation. He was assessed as unsuitable for a community service order due to unresolved drug issues.

20. A psychological report from Dr Magor-Blatch was also tendered, in which it was noted that Mr Rose’s drug dependency had been for a relatively short period of time. Dr Magor-Blatch considered that Mr Rose had every chance of a positive and strong recovery. She acknowledged the seriousness of the offence and the trauma caused to the victims and that the court might decide on a custodial sentence. However, she recommended that treatment be considered for Mr Rose and that, if this include residential rehabilitation, it take place within a residential therapeutic community with a record of success in working with stimulant use dependency. She noted that Mr Rose had detoxified from the effects of substance abuse but that this only represented a “gateway to treatment”.

21. Character references were also tendered.

22. Mr Rose gave evidence at the sentencing hearing. In the course of that evidence he conceded that it was not true (contrary to what he had told the writer of the pre-sentence report) that he had selected the premises at which the armed robbery took place at random. Rather, he had selected it because it used to be “our property”, i.e., that of his grandfather and mother. As noted earlier, he said that he did not intend on choosing that property; he went out that way and just ended up out there; and that he “thought I knew the place I could get in and out and it didn’t look like anyone was home”.

23. Mr Rose acknowledged that he was trying to break into the gun cabinet in the shed. He said that he did not know why “we” (presumably he and his co-accused) were thinking to steal guns or why he wanted to steal anything. He agreed that he had told police he had fears for his safety but that, being on drugs, he did not think about it properly.

24. Mr Rose said that at the date of the offence he had been awake for two or two and a half weeks on ice (a point or two a day) and had consumed ice on the morning of the offence.

25. Mr Rose said that he did not intend to hurt the victims. He had read the victim impact statements and he said that he understood that the victims were devastated by the incident. He had told the writer of the pre-sentence report that he had made an application for restorative justice, though he did not know what he could say to the victims to help them move on - just to say that he knows how he made them feel and that they were the same age as his grandfather. (A copy of a letter he has written (but not sent) to the Westwoods was part of the material before the Court on the hearing of the present application.)

26. By reference to the transcript, it appears that Mr Rose became emotional in the witness box when asked about a distressing event which had occurred a few years earlier (a motorbike accident in 2011 in which his brother suffered an acquired brain injury) but said that that was not the reason for him taking drugs.

27. Mr Rose expressed his motivation to rehabilitate himself and said he had abstained from using drugs during his incarceration. He was willing to undertake a residential drug rehabilitation program.

28. Mr Rose also gave evidence that he had provided information to the Australian Federal Police in relation to the guns, that being information as to location of the guns. There was little detail as to the nature of that assistance beyond Mr Rose saying he had spoken with a Canberra police officer, to whom he had given the phone number of a person with knowledge of the location of a gun, and with two members of the Australian Federal Police. He agreed that he was well aware of the danger of guns in the community. He accepted that he had a knife and a “little crow bar” with him. He knew that the victims were old and little and he did not doubt that they were terrified and that they remained terrified.

Remarks on sentence

29. The sentencing judge, having summarised the facts, the evidence at the sentence hearing, various aspects of Dr Magor-Blatch’s psychological report (including that testing of Mr Rose indicated diagnoses of substance use disorder, post-traumatic stress disorder and persistent depressive disorder), and the victim impact statements, summarised the submissions made for Mr Rose and the Crown, respectively.

30. His Honour concluded (at [41]) that the case fitted within the elements set out in the guideline judgment of R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 at [162], listing seven matters in that regard, including (at (iii)) that there was a “limited” degree of planning and (at (vi)) that a “small amount” had been taken.

31. His Honour noted (at [43]) that the guideline judgment took into account a guilty plea of “limited value”, which he understood to involve a late plea of guilty, whereas in the present case (as noted above) the Crown had acknowledged that a 25% discount was warranted.

32. At [44], his Honour expressed his satisfaction that the offending was the product of Mr Rose’s addiction to methylamphetamine and said that, while that did not constitute a mitigating factor, the impulsiveness involved in the conduct might be regarded as a mitigating factor in the circumstances, though also noting that there was “some planning” involved (in terms of the selection of the property and the purpose for which the crime was committed, namely, to obtain guns against a perceived threat).

33. His Honour concluded that the objective seriousness of the offending fell just below the mid-range of offences pursuant to s 97(1) of the Crimes Act but accepted that the offence was still very serious and a terrifying incident for the victims ([45]).

34. His Honour accepted that the offences had had a substantial impact on the victims ([46]), noting that the Crown did not submit that this would amount to an aggravating factor for the purposes of s 21A(2)(g) of the Crimes (Sentencing Procedure) Act ([47]). His Honour (at [49]) made clear that, by this, he was indicating that he had taken the victim impact statements into account but not so as to aggravate Mr Rose’s culpability.

35. It was accepted by his Honour that Mr Rose had not consumed any drugs while in custody and that he had good prospects of rehabilitation back into the community ([50]). His Honour noted that there were significant subjective factors to be taken into account, namely that Mr Rose was supported by his family and community; had already undertaken some steps to rehabilitate and address his drug problem; and was still young ([51]).

36. His Honour then stated (at [52]) that he had had regard to the principles of totality, proportionality and parity set out in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [45]. No indication was given as to how those principles had been factored into the sentencing process in the present case.

37. His Honour concluded that no sentence other than imprisonment was appropriate but also that, having found special circumstances, a long period of supervised rehabilitation (including residential rehabilitation) was appropriate to ensure Mr Rose’s return to a meaningful and productive life. His Honour then proceeded to set a non-parole period of 21 months’ imprisonment with a total term of imprisonment of 3 years and 3 months. (Having regard to the 25% discount considered appropriate, the undiscounted sentence must therefore have been 4 years and 4 months.)

Appeal

38. The sole ground of appeal in the notice of appeal filed on 3 July 2015 was that the sentence is manifestly inadequate. In written submissions, the Crown has identified two particular matters by reason of which it contends that his Honour erred in the exercise of his sentencing discretion leading to a manifestly inadequate sentence, those being:

1. The approach adopted to the guideline judgment in Henry.

2. The failure properly to consider the respondent's conditional liberty status at the time of the offending.

Evidence

39. At the hearing in this Court, the Crown relied on an affidavit of a solicitor in the Court of Criminal Appeal Unit of the Office of the Director of Public Prosecutions for New South Wales (Ms Meagan Betteridge) sworn 12 October 2015 relating to an offence in custody when Mr Rose was disciplined for the offence of possess offensive weapon or instrument and the punishment that was imposed. As to that evidence, Mr Rose has in turn sworn an affidavit in which he acknowledges that he received a jail charge for possession of a knife but deposes that he did not know the knife was there (it was found in a hole in his mattress); as well as to his training and occupation in jail and his case plan for parole. In the event of re-sentencing, I would not take into account the offence in custody charge on that basis.

40. Mr Rose’s solicitor has affirmed an affidavit annexing a letter of apology written by Mr Rose and addressed to Mr and Mrs Westwood (though not sent) as well as copies of training certificates obtained by Mr Rose while in custody. Mr Rose’s mother (Ms Causon) has also sworn an affidavit, filed 9 November 2015, deposing to the family support for Mr Rose and to Mr Rose’s devastation about the offence he committed; as well as his stress at the appeal hearing.

Submissions

41. The Crown accepts that on a manifest inadequacy appeal it is required to establish that the sentence imposed was unreasonable or plainly unjust in a sentencing environment where there is no single "correct" sentence, and 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 (referring to Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 325; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [25]; Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 at 538 [58]).

41. The Crown also accepts that the primary purpose of a Crown appeal against sentence is to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons in the exercise of its jurisdiction under s 5D Criminal Appeal Act. In that regard it submits that guidance is required for sentencing judges as to the proper approach to and application of the guideline judgment (Henry).

42. The Crown points to the following aspects of the offending, which it submits leads to the conclusion that the Henry guideline judgment was not correctly applied and the sentence in this case was manifestly inadequate.

43. First, the Crown submits that, unlike the position in Henry (at [162(iii)]), the degree of planning was much more than “limited”, in that the victims’ property was targeted because Mr Rose knew it had a gun safe and because it was isolated. It is submitted that even though Mr Rose was drug affected the offence was not impulsive, it being an agreed fact that he and Mr Brown spent some time discussing the offence that morning and that the co-offenders had dropped Mr Rose off at the property some one and a half hours before returning.

44. As to the degree of planning involved, Ms Loukas submits that it was open to his Honour to conclude that this was limited. First, she points to the evidence of Mr Rose’s sleep deprivation and drug use, which it is submitted evidenced a clear inability to engage in planning that was “much more than limited”. Second, it is submitted that Mr Rose’s planning related only to a break, enter and steal offence not the offence of armed robbery (in that his evidence was that it did not appear that anyone was at home as there were no cars parked on the property and he thought he could get in and out of the property without detection). In those circumstances, it is submitted that it was open to his Honour to find that the selection of the property, possession of house breaking implements, and presence of others waiting nearby involved planning that was not more than limited.

45. As to the reliance placed by the Crown on the discussion that it was agreed had taken place that morning between Mr Brown and Mr Rose (in the absence of Ms Pang), Ms Loukas points out that the agreed fact was that they were “presumably” discussing the matter. It is submitted for Mr Rose that that presumption could not support a finding beyond reasonable doubt that there was “much more than limited planning” as the Crown has asserted.

46. The second matter to which the Crown points, is that Mr Rose was in company with two others. The Crown submits that this was known to the victims because, during the offence, Mr Rose called his co-offender to tell him that he had gained access to the shed. The Crown maintains that this was a serious aggravating factor for the purposes of s 21A(2)(e) of the Crimes (Sentencing Procedure) Act.

47. Ms Loukas submits that it is not possible to conclude that the victims were aware that co-offenders were nearby simply by reference to the making of mobile phone contact. It is submitted that an aggravating factor must be proven beyond reasonable doubt (citing The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [24]) and that such a finding would not have been open to the sentencing judge on the evidence before him.

48. Third, the Crown emphasises that there was both actual violence and the very real threat of serious violence. It is noted that the victims’ vulnerability was increased by the cutting off of the phone line and that they were subjected to a lengthy ordeal from which they escaped by running across the paddocks to a neighbour's property, knowing that the respondent was now armed with guns and ammunition.

49. As to this, Ms Loukas notes that his Honour set out the agreed facts in relation to the violence and threats of violence and made reference to the impact of the violence on the victims. It is submitted that there was no failure on his Honour’s part in this respect.

50. Fourth, the Crown notes that the offence was aggravated by reason of it having been committed in the home of the victims (s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act.)

51. Again, Ms Loukas points out that his Honour referred to the victims being in a vulnerable position, his Honour having noted that they were “an elderly couple in their own home, at a remote location”. It was said that this was taken into account in the application of the guideline judgment and for it to have been taken into account again separately would raise the risk of double counting (R v Street [2005] NSWCCA 139 at [35]).

52. Fifth, the Crown submits that the goods taken (a .22 calibre rifle, a 12 gauge shotgun, a scope and numerous rounds of ammunition) did not equate to a “small amount” and points out that they were extremely dangerous goods the theft of which was a matter of grave concern.

53. Ms Loukas notes that at various parts of the remarks on sentence his Honour referred to the taking of the guns ([5], [6], [9], [18], [21] and [38]) and submits that his Honour properly took this into account.

54. The Crown argues that his Honour did not properly take into account the above matters when concluding that the offence “clearly” fitted within the elements set out in the Henry guideline judgment and in imposing a head sentence that was at the lower end of the range described in Henry for a typical offender (that range being a head sentence of 4-5 years). In effect complaint is made that his Honour adopted a mechanical or formulaic approach to the assessment of whether the present case fell within the guideline judgment.

55. The Crown also submits that the fact that Mr Rose was on conditional liberty for an armed robbery in company at the time of the offending demonstrated a continuing attitude of disobedience of the law and that this was a significant aggravating factor that greatly increased the need for personal deterrence (referring to Yousifv R [2014] NSWCCA 180 at [30]). Ms Loukas, in response, maintains that Mr Rose being on conditional liberty at the time was a matter taken into account by his Honour.

56. For Mr Rose, an additional factor raised is the assistance given by him to locate the stolen guns. Ms Loukas notes that the evidence Mr Rose gave (the nub of which has been summarised at [28] above) as to his assistance in providing information as to the location of guns was not disputed by the Crown at first instance. She submits that this warranted a reduction in the sentence in accordance with s 23(1) of the Crimes (Sentencing Procedure) Act.

Determination

58. There can be no doubt, in my opinion, that his Honour erred in characterising the subject matter of the theft as a “small amount” in the sense in which it appears that expression was used in the Henry guideline judgment (where the Court was considering armed robbery offences to obtain money to feed a drug addiction). Although only two guns were taken, on any view of the matter they were dangerous weapons and their theft (together with ammunition) was a serious issue. This aspect of the offending was well outside the notion of a “small amount”, as Ms Loukas in effect conceded. His Honour therefore erred insofar as he treated this as part of the elements of the offending that his Honour considered brought the matter clearly within the guideline judgment.

59. I am also persuaded that his Honour erred in concluding that the planning was “limited”. Notwithstanding Mr Rose’s drug-affected state and his inconsistent evidence as to when the intention was formed to steal the guns, Mr Rose accepted that he went to the property with the intention of stealing the guns and it was agreed by him that he spent some time with Mr Brown and Ms Pang in the course of the morning during which he and Mr Brown “presumably” discussed the matter. Mr Rose had the forethought to have brought with him not only a crow bar or “jimmy bar type thing” with which to break into the property or the gun safe but also a knife. There was also an element of planning obviously involved in the arrangements pursuant to which he was dropped off at the property and was to be collected there some time later. His Honour’s conclusion that there was some limited degree of planning so as to bring the matter within the Henry guideline judgment is not supported by the evidence.

60. As to the offence being “in company”, what is relevant is the coercive effect of the group. In R v Button; R v Griffen [2002] NSWCCA 159; (2002) 54 NSWLR 455, Kirby J said at [121] that:

…There must be such proximity as would enable the inference that the coercive effect of the group operated either to embolden or reassure the offender in committing the crime, or to intimidate the victim into submission.

61. It must be accepted that if one or both of the victims had heard what it is agreed Mr Rose said to the unidentified person on the other end of the phone this would be expected to have led to the belief that Mr Rose was not acting alone and to have increased their fear. Whether that would necessarily have led them to fear that the co-offender(s) was (or were) in the proximity of the shed is of course another matter.

62. Here, the agreed facts do not expressly record either or both of the victims having overhead the phone conversation and there is some lack of specificity as to the location of the offender and the victims at various points in the chronology of the offence. While it is difficult to see how else that conversation came to be known to the Crown, and hence included in the agreed facts, I would accept that this Court could not conclude beyond reasonable doubt that the victims did hear the conversation.

63. Nevertheless, it may readily be inferred that the fact of the nearby presence of Mr Brown was such as to have emboldened Mr Rose in the offending. Therefore, I consider that the evidence supported a finding that the offence was aggravated by Mr Rose being “in company”, though in circumstances where this does not seem to have been put to his Honour by the Crown as being an aggravating factor it is difficult to say that his Honour erred in not making such a finding.

64. As to his Honour’s characterisation of the other elements referred to in the Henry guideline judgment, although his Honour did make reference to the actual use and threat of serious violence, the vulnerability of the victims, the aggravating factor that the offence took place in the victims’ own home, and the terrifying ordeal that the victims suffered, the conclusion that this offence “clearly” fell within the elements of the guideline judgment is inconsistent with account having properly been taken of those matters and, when coupled with the errors noted above, error in the application of that guideline judgment has been demonstrated.

65. I do not accept that his Honour erred in approaching the assessment of the objective seriousness of the offending simply because his Honour did so principally by reference to the factors listed in Henry. Rather, the operative error was in concluding that the offending (having regard to the agreed facts and Mr Rose’s evidence) fell within that guideline judgment.

66. As to the assessment of objective seriousness as being just below the mid-range of offending for this offence, it is difficult to see on the face of his Honour’s reasons that any account was made of the fact that Mr Rose was on conditional liberty at the time of the offending. There was no more than a passing reference to that issue. In my opinion, this was a factor increasing the objective seriousness of the offending since it clearly demonstrated a continuing attitude of disobedience to the law (as Ms Loukas ultimately seems to have conceded) and hence his Honour erred in failing to take that factor properly into account.

67. As to the reduction in sentence that Ms Loukas maintains was warranted for Mr Rose’s assistance in locating the guns, the evidence on that issue was limited. It would have been open to his Honour to have concluded that on the evidence before him the assistance did not warrant any further reduction in the sentence, though it is unclear whether his Honour did in fact take this issue into account.

68. Error having been established in the factual basis on which his Honour applied the Henry guideline judgment and in his assessment of the factors relevant to the objective seriousness of the offending, was the sentence imposed one that was manifestly inadequate? I have concluded that the answer to that question should be “yes”. The objective seriousness of the offending was higher than the offending considered in the Henry guideline judgment. The victims were elderly; they were vulnerable (being in an isolated property and having been forced to cut off their home phone); there was a degree of planning (this was not some spontaneous drug-induced crime); and the property stolen could not be dismissed as a “small amount”. The objective seriousness of the offence was, in my view, above the mid-range for such offences. Mr Rose, though drug-affected and sleep deprived, was capable of understanding the consequences of his actions and his conduct occurred while on conditional liberty for similar offences. The offences occurred while Mr Rose’s co-offender was nearby and, for part of the time, while Mr Brown had a line of sight to the property. His presence must be taken to have had an emboldening effect. There was both actual violence and serious threats of violence. The ordeal was a terrifying one for the victims, taking place in their own home. They escaped in fear for their lives, knowing that Mr Rose by then had access to the guns and ammunition.

69. The fact that Mr Rose was drug-affected does not mitigate the circumstances of his offending nor does it make him a lesser vehicle for general deterrence. The evidence as to Mr Rose’s subjective circumstances similarly does not lessen the need for specific deterrence.

70. Accepting that the discount placed by his Honour on the utilitarian value of Mr Rose’s guilty plea was not inappropriate, and having regard to the evidence as to Mr Rose’s prospects of rehabilitation and the acknowledged need for a finding of special circumstances, I consider that the appropriate sentence should have been not less than 5 years’ imprisonment with a non-parole period of 3 years.

Residual discretion

71. I turn then to the question whether the Crown has negated any reason why the residual discretion in the exercise of the s 5D jurisdiction (to refuse to intervene) should not be exercised (see Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293; Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462; CMB v Attorney-General(NSW) [2015] HCA 9; (2015) 89 ALJR 407 at [36]).

72. The Crown points to the fact that there has been no relevant delay in either the institution of the Crown appeal or the period within which there is likely to be a resolution of the Crown appeal (referring to R v Harris [2015] NSWCCA 81 at [65]), noting that the appeal was filed and served eight days after sentence and that the appeal was listed for hearing (and has, I note, been heard) within 16 weeks of the date of sentence.

73. It is submitted by the Crown that concerns about interfering with Mr Rose’s rehabilitation diminish once it is accepted that any sentence imposed on him will involve a substantial parole period (arising from the extended period of parole that should be imposed pursuant to the finding of special circumstances that the Crown accepts - referring to the discussion in R v Cortese [2013] NSWCCA 148 at [68]-[69]) during which supervision and treatment can occur.

74. The Crown accepts that increasing the non-parole period will cause Mr Rose significant distress but argues that this is the natural consequence that invariably follows from incarceration, whether following sentence at first instance or after a successful Crown appeal.

75. For Mr Rose, it is submitted that the Crown has not discharged its onus in this regard and that the purpose of the appeal and the guidance required can be achieved by a statement of this Court that the sentences imposed were wrong and why they were wrong.

76. Ms Loukas notes that substantial progress has been made towards rehabilitation and submits that re-sentencing Mr Rose will have a negative effect on the progress of his rehabilitation (reference being made to the recognition in Green v The Queen; Quinn v The Queen at [43] that re-sentencing may have an effect on the progress towards an offender’s rehabilitation).

77. In that regard I note that what was said in Green v The Queen; Quinn v The Queen was that “the effect of re-sentencing on progress towards [the offender’s] rehabilitation” is one circumstance which “may”, combined with others (such as delay in the hearing and determination of the appeal and the imminent or past occurrence of the offender’s release on parole or unconditionally) “combine to produce injustice if a Crown appeal is allowed”. It was not suggested that there is a presumption that re-sentencing will negatively affect rehabilitation nor that such a potential effect is determinative of the issue as to whether injustice will result. Furthermore, while his mother has deposed to the stress and anxiety suffered by Mr Rose pending the Crown appeal, there is no similar evidence from Mr Rose to that effect and the appeal has been prosecuted without delay.

78. I consider that the Crown has discharged its onus in relation to the residual discretion not to intervene and that it is important, in the interests of general and specific deterrence and to maintain adequate standards of punishment, to impose an appropriate sentence for what was a very serious offence.

Orders

79. Having regard to the matters referred to above, including the objective seriousness of the offence, the fact that it was committed while Mr Rose was on conditional liberty for a similar offence, the vulnerability of the victims, Mr Rose’s subjective circumstances, and the finding of special circumstances (which warrants a longer period of rehabilitation through a residential program with expertise in dealing with drug addiction), I consider the appropriate orders are as follows:

1. Crown appeal be allowed.

2. Sentence imposed on the respondent on 25 June 2015 be set aside.

3. In its place, the respondent is sentenced to imprisonment for a term of 5 years, commencing on 11 October 2014 and expiring on 10 October 2019, with a non-parole period of 3 years to expire on 10 October 2017.

4. The earliest date upon which the respondent will be eligible for release on parole is 11 October 2017.

80. DAVIES J: I agree with the orders proposed by Ward JA and with her reasons. I also agree with the additional remarks of RS Hulme AJ.

81. RS HULME AJ: I have had the advantage of reading in draft form the reasons for judgment of Ward JA. I agree with the orders proposed by her Honour and, subject to the following remarks, with her Honour’s reasons.

82. There was no reasonable basis upon which the sentencing Judge could have regarded the Respondent’s offence as falling within the R v Henry [1999] NSWCCA 111; 46 NSWLR 346 guideline and even less for imposing on the Respondent a sentence which, when allowance is made for the Respondent’s plea was right at the bottom of the range of sentences contemplated in that case.

83. Demonstrably what was stolen, a .22 calibre rifle and scope, a 12 gauge double barrel shotgun, a leather ammunition belt and numerous rounds of ammunition cannot be regarded as, or equated with, a “small amount taken”, one of the characteristics of an offence to which the guideline applies.

84. Nor am I able to regard the Respondent’s offence as exhibiting “a limited degree of planning, a second of the characteristics referred to in R v Henry.

85. During the Respondent’s evidence on sentence, he agreed he “set out to go to the property and find guns”. Although a little later he said he did not know when guns came into his mind as a plan, he recounted an incident a few days before his offence when someone had pulled a gun on him and his friends and it then seemed a good idea to get one. The statement of facts recounts that on the morning of the offence, the Respondent and a co-offender, Brown, and Brown’s girlfriend met. They stopped for breakfast at Fyshwick and then drove to Bywong where the victims lived. The distance between these two places is over 30 kilometres.

80. The statement of facts records that the Respondent and Brown spent some time together in the absence of Brown’s girlfriend “presumably discussing the matter” and that thereafter the Respondent was dropped nearby by Brown who drove away and parked, waiting about an hour and a half. Later Brown drove his vehicle to the boundary fence of the victims’ property, taking up a position with a direct line of sight to the victim’s residence and shed.

81. It is clear that the offence occupied a substantial amount of time. After accosting the Respondent in a shed, the male victim on two occasions took the Respondent into his house in an endeavour to calm him down and demonstrate compliance with the Respondent’s demand that the phone be disconnected. Some food was also provided. At times the Respondent was calm but at other times in a rage threatening to kill the victims.

82. Three further circumstances distinguishing the subject case from R v Henry are firstly that the Respondent’s offence happened in the victims’ home (a term which in my view includes an adjacent shed), secondly, there were two victims who had to endure the Respondent’s rage and threats and suffer consequential psychological trauma and thirdly, that at the time the Respondent was on conditional liberty in respect of an offence of a similar nature. The courts have made it clear that the latter is a seriously aggravating circumstance.

83. Whether approached from the viewpoint of the decision in R v Henry or from basic sentencing principles including s 97(1) of the Crimes Act providing for a maximum penalty of 20 years imprisonment, the sentence imposed on the Respondent was manifestly inadequate.

84. It was submitted on behalf of the Respondent that the purposes of the appeal and the provision of guidance to sentencing courts could be achieved “by a statement of this court that the sentence imposed was wrong and why it was wrong”. I disagree. This court has made patently clear in R v Henry and other cases, the obligation which there is on sentencing judges to impose proper sentences. The sentence imposed in this case is an indication that that message has not been heard, at least by the judge who sentenced the Respondent.

85. There is however, one matter which bears on the residual discretion of the court not to interfere to which I must refer. For reasons I find impossible to comprehend, Counsel appearing for the Crown during the sentencing hearing in written submissions remarked “the guideline judgment of R v Henry (1999) 46 NSWLR 346 applies.

86. In some circumstances one might conclude that an erroneous submission by the Crown had led a sentencing judge into error. However, so well-known is the decision in R v Henry and so commonly is it applied that I do not regard it as possible to blame the Crown for the error his Honour made. In my view the court should exercise its discretion so as to allow the appeal and re-sentence the Respondent.

87. In his favour on that issue is the fact that he is but 24 and that he has the support of obviously caring parents who are both in a position and interested to assist. Prior to his addiction to methylamphetamine he himself has demonstrated a caring attitude and desire to assist his family. For reasons similar to those which were canvassed in the guideline judgment his sentence must be increased. However, there are grounds for making it towards to the bottom of the available range.

88. Thus I agree with the proposal of Ward JA that the sentence be one of imprisonment for 5 years including a non-parole period of 3 years.

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Decision last updated: 16 December 2015