R v Rossi-Murray - [2009] NSWCCA 177

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
R v Rossi-Murray [2009] NSWCCA 177

FILE NUMBER(S):
2008/16926

HEARING DATE(S):
25/05/2009

JUDGMENT DATE:
8 July 2009

PARTIES:
Regina v Barmah Rossi-Murray

JUDGMENT OF:
Giles JA Howie J Buddin J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/16926

LOWER COURT JUDICIAL OFFICER:
C Armitage DCJ

LOWER COURT DATE OF DECISION:
02/02/2009

COUNSEL:
V Lydiard - Crown
M Ierace SC - respondent

SOLICITORS:
S Kavanagh - Crown
S O'Connor - Respondent

CATCHWORDS:
Criminal Law - Crown appeal - offences of home invasion and wounding with intent - whether offences is mid range of seriousness - whether departure from standard non-parole period too great - appropriateness of ex tempore remarks in complex sentencing case - failure to refer to aggravating factors including that offender on conditional bail.

LEGISLATION CITED:
Crimes Act 1900 - ss 33, 105A, 112(3)
Crimes (Sentencing Procedure) Act 1999 - s 21A

CATEGORY:
Principal judgment

CASES CITED:
Carroll v The Queen [2009] HCA 13; 83 ALJR 579
R v AB [2005] NSWCCA 360
The Queen v Osenkowski (1982)n 30 SASR 212
R v Li (NSWCCA, unreported, 9 July 1997)

TEXTS CITED:

DECISION:
1. The Crown appeal is allowed. 2. The sentences imposed in the District Court are quashed. 3. The respondent is sentenced on the offence of wounding with intent to inflict grievous bodily harm to a term of imprisonment consisting of a non-parole period of 3 years 6 months and a balance of term of 3 years 6 months to date from 15 April 2008. The non-parole period expires on 14 October 2011. 4. The respondent is sentenced on the offence of specially aggravated break and enter to a term of imprisonment consisting of a non-parole period of 5 years and a balance of term of 4 years to date from 15 October 2009. The non-parole period expires on 14 October 2014 the date upon which the respondent is eligible to be released to parole.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2008/16926
GILES JA
HOWIE J
BUDDIN J
WEDNESDAY 8 JULY 2009

REGINA v Barmah ROSSI-MURRAY

Judgment

GILES JA: I agree with Howie J.
HOWIE J: The respondent to this Crown appeal was sentenced in the District Court on 2 February 2009 for two offences to which he had earlier pleaded guilty. The first offence was contrary to s 112(3) of the Crimes Act, being a specially aggravated break, enter and steal offence committed on 5 March 2008 (“the home invasion offence”). That offence carries a maximum penalty of imprisonment for 25 years and there is a standard non-parole period prescribed of 7 years. The second offence was committed on the same date and was contrary to s 33 of that Act, being an offence of wounding with intent to inflict grievous bodily harm (“the wounding offence”). That offence also carries a maximum penalty of imprisonment for 25 years and has a standard non-parole period of 7 years.
The Judge sentenced the respondent on the home invasion offence to a term of imprisonment with a non-parole period of 3 years 6 months and a balance of term of 3 years and 6 months. That sentence dated from 15 April 2008 so that the non-parole period expires on 14 October 2011. The Judge sentenced the respondent on the wounding offence to a similar sentence but it commenced on 15 April 2009. The non-parole period for that offence expires on 14 October 2012 and that is the date upon which the respondent can first be considered for release to parole. The overall sentence was therefore 8 years with an overall non-parole period of 4 years and 6 months. The Crown contends that this sentence is manifestly inadequate.
The facts
The facts can be briefly stated. On 5 March 2008 the respondent and a co-offender named Douglas decided to steal steroids from the home of the victim of the wounding. Douglas informed the respondent that he would be armed. At about 10.20pm the two men drove to the victim’s house in Riverstone. Douglas produced a gun from beneath the seat of the vehicle and showed it to the respondent. The two men had made balaclavas from pillowcases earlier that day, and they put these on before entering the house. The respondent was armed with a hunting knife and Douglas with a handgun.
There were five persons residing at the premises at the time including the victim, who was aged 18 and his brother aged 20. The victim and another man named Ryan were watching television when the respondent and his co-offender arrived at the house.
The respondent and Douglas gained entry to the premises by the respondent kicking open the locked front door. They confronted the two men in the lounge room and demanded that they lie on the floor. Although they complied with this demand, Douglas struck Ryan to the back of the head with the weapon. The respondent took a number of vials of steroids from a cupboard in the kitchen. The victim’s brother became aware of the disturbance in the house and confronted the two men. The respondent ran from the house. A melee then ensued during which Douglas pointed the weapon at both the victim and his brother. The victim was able to grab the hand of Douglas that was holding the weapon and the firearm was discharged five times during the struggle.
At this time the respondent re-entered the premises with the knife in his hand. The victim confronted him and they struggled, during which the balaclava came off the respondent’s head. He was thus recognised by the victim and his brother who had known the respondent since he was a child. Ryan also recognised the respondent. The victim asked the respondent why he was doing this and he replied that he needed money. The victim forced the respondent to the ground and punched him repeatedly. The respondent then stabbed the victim twice to the chest and three times to the back. One of these wounds penetrated the victim’s lung. The respondent and Douglas then fled the premises.
The victim was taken to hospital and treated for his wounds including a drain placed in his chest. He was discharged from hospital on 10 March 2008.
On 8 March 2008 police approached the respondent in a vehicle in Tweed Heads. He was arrested but declined at that time to be interviewed. On 10 March he participated in an interview with police in which he admitted involvement in the offences. He described the stabbing as follows:
“…….. I grabbed the steroids, I grabbed the speed, and then on my way back out, Isaac [Douglas] got grabbed by two of ‘em, or three of ‘em, I don't know, I can't remember how many blokes were in the house, and then, like, I ran back inside and like, and whilst I was running back inside, I heard gunshots go off, like, fuckin, like I was shocked because, like, like, you know what I mean, like, I didn’t expect gunshots to go off, and yeah, like, I ran inside, and whilst like that, sort of got into a wrestle with two of ‘em or three of ‘em I can't remember, but they had me on me back and one of ‘em was beatin’ the fuck out of me, like, beatin’ me senseless, that’s how me face is all stuff[ed] up, and I blacked out, like two times, so I just started stabbin’ him, cause I fuckin’, I just freaked and like, yeah, and hesitated, I didn't know what else to do and that was me only way out of it, and then they identified me, because I used to know ‘em when I was little, like grew up with ‘em since [a] little kid and then yeah, we ran……………”
Later when asked specifically about the stabbing the respondent said:
“Mate I was just trying to get him off me, ‘cause he was like, had all his weight on top of me, I couldn’t, there, like, there was two of ‘em on me, I couldn’t, I just couldn’t get out of it, and I, ‘cause there was just too much weight on me……..And then, yeah, like, I blacked out, and then when I just started stabbin’ like…..”
He told the police he did not know whom he stabbed, how many times he stabbed the person or where he stabbed him.
The respondent explained to the police that he and Douglas had been to the premises earlier that day to purchase drugs, but the drugs, including steroids, were too expensive. Something about the attitude of the resident, with whom they dealt, upset the respondent and he took exception to the way they were treated. As a result they decided to do the robbery. He made the balaclavas about an hour or two before they left. The respondent’s girlfriend was present and unsuccessfully attempted to dissuade him. The respondent armed himself with the knife, “just if anything went wrong”. Although he knew that Douglas had a gun, he did not know that it was loaded.
The respondent’s subjective case
The respondent was born on 4 January 1989 and was aged 20 at the date of sentencing. He has a criminal record that commenced in 2004 when he was before the Children’s Court for offences including an aggravated robbery. He was sentenced to 18 months probation and a control order of 1 month. In 2005 he was before the court for break, enter and steal and aggravated break and enter in company. For the first offence he was placed on probation and for the second ordered to perform community service. In 2006 he was sentenced to a control order as a result of breaching the community service order and sentenced to a control order of 15 months for another aggravated break and enter offence.
In 2007 the respondent was dealt with in the Youth Drug Court for an offence of aggravated robbery and again sentenced to a control order for 15 months with a non-parole period of 7 months. He breached parole and in July 2008 was required to serve the balance of the control order. In February 2009 he was sentenced to 9 months imprisonment for an offence of damaging property. He was both on bail and parole when he committed the present offences.
There was a pre-sentence report in evidence. The respondent was described as being of “Aboriginal and Italian ethnicity”. Notwithstanding that his parents separated when the respondent was very young, he described being provided with a supportive home environment by his mother and his grandfather with whom the family resided. He described his relationship with his mother as “good”. He began using illicit drugs under peer pressure when aged 15. His mother described the respondent as “emotional”. He gave an account of being a victim of racism at school against which he retaliated with aggressive behaviour resulting in his expulsion.
At the time of the offending the respondent was unemployed and without finances. He told the officer preparing the report that he was under the influence of alcohol and withdrawing from drugs when he committed the offences. The respondent had been given the benefit of residential programmes to overcome his drug problems in 2006 but was discharged due to non-compliance. Probation records indicated that the respondent had relapsed into drug use in January 2008 after a short period of abstinence. He indicated to the officer preparing the report that he needed assistance to cope with life management and to avoid drug usage. He had expressed contrition for the effect of his conduct upon the victims.
A psychologist who had assessed the respondent for the purposes of sentencing described him as:
“…….. a young aboriginal man of some ability. As well as testing in the upper levels of the average rate of cognitive ability, he has evidently some sporting prowess, which has been recognized with selection of the state and national competition. However, he has not realised this potential, due to his behavioural and drug history. He still only 20 years of age, and so could still reclaim a more productive and successful life course. Given his abilities and talents, (the respondent) has the potential to be an asset to society, rather than a liability. However he will need to take active responsibility to address his drug and lifestyle issues if this is to come to fruition.”
The respondent gave evidence in the sentencing proceedings. He said that at the time he committed the offence he was “a little short of cash” and he owed money for drugs. He had been using drugs for about four months prior to the offences while he was on parole.
He first went into adult custody on 10 March 2008 and before that time had served periods in juvenile detention. He was released from custody on 15 August 2007 and was on parole until 15 April 2008. Initially he was working as a forklift driver but resigned from that employment, as he was not receiving sufficient salary. He then was able to find some casual labouring positions. It was during this period that he recommenced his drug use. He acknowledged having undertaken drug courses in the past and said he found them helpful. His mother has offered him accommodation when released. He was being held on protection because of threats made by other prisoners and had been stabbed on one occasion while in custody.
The sentencing remarks
The Judge described it as a difficult sentencing exercise having regard, principally, to the respondent’s youth, on the one hand, and on the other hand, “quite apart from the objective seriousness of the current offences, there is a substantial criminal record consisting of similar offences”.
At the beginning of his remarks he said:
“I say at the outset that the very high maxima imposed for both offences and the standard non-parole imposed for both are a very clear indication of the great seriousness with which the community regards these very prevalent offences. General and specific deterrence are on the authorities more than usually necessary considerations in relation to these very serious offences”
The Judge awarded the respondent a discount for the utilitarian value of his plea of guilty of 20 per cent. He found that the home invasion offence was in the mid range of objective seriousness, on the basis that the respondent did not know that the gun was loaded and, therefore, the discharge of the weapon was unexpected. His Honour assessed the wounding offence as within the mid range of seriousness. He stated:
“I do not think he intended to wound anybody with the knife as a positive matter, and I think that this occurred on impulse as a result of what happened in the melee, and the victim’s quite justified attack on the offender, that I think was by way of self-defence. That is no excuse for the wounding of course, but it does point to it being essentially unplanned, as opposed to there being a positive contemplation that the knife might be used if necessary.”
The Judge found that the respondent was remorseful and his prospects of rehabilitation were moderate. He determined that there were special circumstances being the need for a longer period of supervision to address the respondent’s drug rehabilitation and the fact that he was serving his sentence in an adult prison.
In relation to the fact that each of the offences carried a standard non-parole period, his Honour stated:
“Standard non-parole periods on a plea of guilty must of course be approached having regard to the principles in R v Way (2004) 60 NSWLR 168 and I have done so. I was not addressed at length about these principles when I indicated I was aware of them by either counsel, but shortly one must first regard the standard non-parole period as a very significant guidepost on a plea of guilty, and secondly one must, in considering whether or not to apply it, firstly reach a view as to whether the objective seriousness of the offence places it in the middle of the range for offences of its type or above or below the range, and secondly apply the subjective features of the offender before finally determining whether the standard non-parole period, or a non-parole period or greater or less than it should be applied. I have applied these principles in reaching the sentences imposed in this case.”
The Crown submissions
The Crown contends that the sentences imposed were manifestly inadequate in themselves and in combination because the Judge erred in the following respects:
“(a)determining that the home invasion offence was in the middle of the range of objective seriousness;
(b)determining that the wounding offence was in the middle of the range of objective seriousness;
(c) in giving too much weight to the respondent’s subjective case when balancing it against the weight of the objective seriousness of the offences and the other aggravating features;
(d)in failing to properly have regard to the standard non-parole period of 7 years in relation to each offence;
(e)in failing to impose a sentence which reflected the objective seriousness of the offending and the totality of offending.”
The Crown also contends that the sentencing judge made two patent errors, as follows:
“(a)his Honour erred in taking into account the actual wounding which is an element of the s 33 offence as an aggravating feature of the s 112(3) offence.
(b)his Honour erred in failing to take into account the aggravating fact that the respondent was on conditional liberty x 2, pursuant to s 21A(2)(j) Crimes (Sentencing Procedure) Act in relation to both offences.”
The Crown argues that each of the offences was of such objective seriousness that the Judge ought to have found both to have been above the mid range of seriousness. In so far as the home invasion offence is concerned, the Crown argues that the Judge gave too much weight to the assertion by the respondent that he did not know that the gun was loaded, especially in light of the fact that he returned to the house armed with a knife having heard the gun discharge. The Crown contends that there were a number of aggravating features attending the commission of this offence, and not simply the fact that the co-offender was armed with a dangerous weapon. The aggravating features were: the offence was committed in company, corporal violence was used on the man Ryan and that the respondent knew that there were persons in the premises at the time of the commission of the offence.
The Crown acknowledges that it was an error for the Judge to take into account as an aggravating feature of the home invasion offence that the victim was wounded as that fact was itself the subject of an independent charge. However, the Crown complains that it was not open for the Judge to disregard the fact that the firearm was discharged as an aggravating feature on the basis that the respondent did not contemplate that the weapon was loaded. The Crown contends that the respondent was criminally responsible for the discharge of the weapon as part of the joint criminal enterprise into which he entered with the co-offender knowing that the co-offender was armed with an apparently working firearm.
The Crown contends that the wounding offence was a serious example of its kind notwithstanding the nature of the wounds inflicted because of the following facts: the use of a knife as a weapon, the offence was committed in company, and the offence was committed in the home of the victim. The Crown submits that the Judge was in error in his finding that the respondent did not positively intend to wound anybody.
The Crown argues that the judge failed to take sufficiently into account the fact that the applicant was on conditional liberty, as a result of being both on bail and on parole at the time of the commission of the offences. This is not a matter to which any reference is made in the remarks on sentence. Yet, it is contended that the matter was of such seriousness as a matter of aggravation that a failure to mention the matter could be seen as a failure to take it into account.
It is argued by the Crown that the overall non-parole period failed to reflect appropriately the standard non-parole period for each offence, and that there were insufficient factors that would have warranted a reduction in the non-parole period to the degree as that determined by the Judge. This is so even if it is accepted that it was open to the Judge to find that each offence was in the mid range of seriousness and notwithstanding the pleas of guilty. In particular the Crown contends that the degree of accumulation between the two offences was insufficient to mark the seriousness of the two offences as independent but connected criminal offences.
The nature of the Crown’s appeal

The only ground of appeal relied upon by the Crown was that the sentence was manifestly inadequate. As was pointed out by the High Court in Carroll v The Queen [2009] HCA 13; 83 ALJR 579, the particular allegation contained in the notice of appeal was that the Judge erred by imposing a sentence that was unreasonable or unjust. No specific error was raised in the grounds of appeal that the Judge failed to take into account a relevant fact or took into account an irrelevant fact or made some specific error of principle.
The Crown has, as has been the usual practice in this Court for many years, sought to advance specific reasons for the inadequacy of the sentence in written submissions filed in this Court and served upon the respondent. Some of those reasons amount to an asserted failure by the Judge to take into account a relevant matter, for example the fact that the respondent was on conditional liberty. No point was taken by the respondent about the manner in which the Crown had framed its ground of appeal or the manner in which it had argued the appeal in the written submissions. In fact neither counsel sought to amplify their written submissions by oral argument before the Court. The respondent sought to answer each of the Crown’s allegations in written submissions filed on his behalf.
The respondent’s submissions
The respondent accepts that the sentencing remarks fail to refer to a number of matters that were aggravating features of the offence. However, he relies upon the fact that the Judge, during the course of submissions referred to the sentence that he had in mind, being that which he eventually imposed. He also during exchange with counsel referred to aggravating features that he intended to take into account notwithstanding that he did not mention those factors in his sentencing remarks. The submission is that it must follow, at least by inference, that the Judge took those matters into account when determining the sentence that he had foreshadowed even though he did not refer to them in his formal remarks
It was submitted that the Judge took properly into account when deciding the respondent’s criminality on the home invasion offence that he did not know the gun was loaded and therefore the discharge of the gun was not an aggravating factor of the offence so far as the respondent was concerned. It was not that the Judge had revised his initial view that the offences were below the mid range of seriousness by reason of the respondent having re-entered the house after the weapon discharged. Therefore, it was submitted, the Judge did not make any error in determining the level of objective seriousness of the offence having regard to the respondent’s conduct.
It was submitted that the Judge’s assessment of the wounding offence as being in the mid range was also appropriate and that he took into account the significant aggravating factors, being that the wounding occurred in the victim’s home and the commission of the offence in company. It was submitted that only one of the injuries was serious and this was appropriate to the level of objective seriousness determined by the Judge. It was noted that the wounding occurred when the victim was attacking the respondent and the stabbing occurred in order to stop the attack upon him and make good his escape.
The respondent notes that there was ample corroboration of the respondent’s evidence and statement to police about the circumstances of the stabbing and that the Judge was entitled to find the facts of the stabbing as he did. It was conceded that the plea acknowledged that he acted with the intention of inflicting grievous bodily harm but that was in the context of trying to extricate himself from an assault upon him.
As to the failure to mention the fact that the respondent was on bail and parole, it was submitted that the Judge could not have been unaware of these matters because they were raised in the evidence and in addresses. The Judge was entitled to form his view of the prospects of the rehabilitation of the respondent having heard the respondent in evidence and having questioned him. It was submitted that there was ample material to permit the Judge to moderate the sentence to reflect the respondent’s youth, remorse, his family support and matters evidencing a change in the respondent’s attitude to drugs.
It was submitted that it was within the Judge’s discretion to impose a sentence that was significantly below the standard non-parole period although it was conceded that the Judge failed to give specific reasons for reducing the non-parole period.
The Court was reminded of the approach to be taken to Crown appeals and the relevant principles set out in R v AB [2005] NSWCCA 360 and of the passage from the judgment of King CJ in The Queen v Osenkowski (1982) 30 SASR 212 as to the exercise of mercy arising where “a judge’s sympathies are reasonably excited by the circumstances of the case”.
Decision
In my opinion the sentences insufficiently reflect the objective seriousness of the two offences so as to be unreasonable and plainly wrong. This would be so having regard only to the maximum penalties prescribed. But the inadequacy is even more apparent when consideration is given to the standard non-parole periods as a guidepost to the appropriate sentence to be imposed for each offence. This is notwithstanding the pleas of guilty and the discount of 20 per cent for the utilitarian value of the pleas.
I am persuaded that, had the Judge properly considered the aggravating factors that applied to each offence, especially the fact that the offences were committed while the respondent was on conditional liberty for serious criminal offences of a similar nature, he could not have reasonably determined that a sentence with a total minimum period of custody of 4 years and 6 months could properly reflect the purposes of punishment that must be evident in the non-parole period. In my opinion the sentences imposed do not give effect to what the Judge said at the outset of his sentencing remarks about the seriousness of the offending, its prevalence and the need for both general and specific deterrence.
The respondent points out that there is a disconformity between the sentencing remarks, on the one hand, and matters referred to by the Judge in discussion with counsel, on the other, in so far as some matters that his Honour indicated he would view as aggravating factors during the Crown’s address were not referred to during the sentencing remarks. So in answer to the criticism made by the Crown that the judge failed to take into account a number of aggravating factors, the respondent relies upon comments made by his Honour indicating an acceptance of those matters as aggravating the seriousness of the offences during addresses.
This Court has shown a reluctance to take into account remarks made by a judge during counsel’s submissions as being incorporated by implication into the sentencing remarks. Yet the respondent asks the Court to do so in this case and, thereby, in effect, excuse the failure by the Judge to refer to matters that were of some significance in his evaluation of the seriousness of the offences and the relevance of the respondent’s subjective circumstances during the course of his remarks.
With respect to his Honour it is unfortunate that he felt some time constraint to resolve the determination of the sentence and its imposition upon the respondent by reason of the time of day and the pending list the next day. Sentencing can be complicated in this State particularly in light of the introduction of provisions such as s 21A and the standard non-parole period. Very experienced judges can fall into the traps that Parliament has unconsciously set for sentencing courts in the relevant legislation.
This matter was complex. There were two separate but related serious offences and in respect of each there was a standard non-parole period. In determining the objective seriousness of each offence there were a number of aggravating features to be considered and their significance assessed. Yet his Honour had to be careful not to double count matters of aggravation appearing in s 21A of the Crimes (Sentencing Procedure) Act 1999 with the elements of the offences. The Judge clearly fell into error in double counting the wounding by finding it as an aggravating feature of the home invasion offence.
The Judge entered into a dialogue with both counsel. This is not meant as a criticism, but there was a degree of fluctuation in the sentencing judge’s stated position during the addresses. Nor were the addresses conducted in a formal, ordered manner: the Judge called on one side to answer a particular submission from the other side or to supply information. Again this is not to be taken as any criticism. However, in those circumstances and without his Honour having the assistance of a transcript, I am not persuaded that the absence of a reference by his Honour to matters of significance in his sentencing remarks can be overlooked simply because he may have indicated during addresses that he intended to take them into account.
The Judge determined the sentences “on the run” in that he formed a view about them during addresses and raised his intentions with counsel. Once more this is not to be taken as a general criticism of his Honour or the manner in which he approached his task. That is no doubt an appropriate course to take in a simple case where there are few matters to be taken into account and weighed against one another in the synthesis that results from a balancing of factors pointing in different directions. But that was not this case. In my opinion, and with due respect to the sentencing judge, this was a matter warranting a degree of deliberation in which due regard was paid to the submissions that had been made to him and the application of the various principles that operated. Such deliberation is not apparent from the transcript.
As is so often the case in sentencing remarks coming before this Court by way of a Crown appeal, there was a failure to give adequate reasons for departing from the standard non-parole period. This was particularly so in this matter because the Judge found that each offence was within the mid range of seriousness. The simple fact that the respondent pleaded guilty was not a sufficient reason for the degree of departure from the standard non-parole period that there was in this case.
Here there were two offences each carrying a standard non-parole period of 7 years. Although they were connected offences in that they arose from the same events, they were very separate and distinct criminal acts and each warranted a significant sentence. The total criminality arising from these events was high. Even if it is accepted that it was open to the Judge to find that they were both, independently considered, within the mid range of objective seriousness, a combined head sentence of 8 years was in my opinion an unreasonable reflection of the totality of the serious criminality involved in them, as was a combined minimum term of imprisonment of 4½ years. His Honour’s discretion must have miscarried.
In any event, in my opinion, the failure by the Judge to refer in his sentencing remarks to the fact that the respondent was on bail and parole and the effect of that fact upon various aspects of the sentencing of the respondent reveals a failure to take into account a highly relevant fact that resulted in an error in the exercise of his discretion.
(a) The home invasion offence
The Crown contends that his Honour erred in his assessment of the objective seriousness of the home invasion offence. The Judge held it was in the mid range of seriousness. He indicated no more than that. In particular the Crown is critical that this assessment was based upon the Judge positively disregarding the fact that the weapon was discharged.
There were a number of aggravating factors present in this offence. The respondent conceded that the Judge was in error in rejecting those matters referred to in s 105A of the Crimes Act on the basis that the Crown had not alleged them in the indictment. It was unnecessary for the Crown to allege more than one aggravating factor: R v Li (NSWCCA, unreported, 9 July 1997). These factors were: that the respondent was armed with a knife; he was in company; corporal violence was used on the man Ryan; and the respondent knew that there were persons in the premises. Although the Judge indicated during the sentencing submissions that some of these matters would be taken into account under s 21A, they had a particular significance in this offence because each of them is a circumstance of aggravation that would have made the respondent liable to a more serious offence than a simple break and enter offence.
The Judge accepted that the respondent did not know the weapon was loaded. However, he was aware of the weapon before the home invasion and there was nothing to suggest that he did not believe it to be a real weapon capable of being fired. The plea to the offence accepted that to be so. In my opinion that fact was enough to make the respondent liable to the aggravating fact that the firearm was loaded and discharged during the course of the robbery. It was not the case that the respondent had made enquiry and had been told that it was not loaded. It was not as if the respondent was being found liable for another offence, such as would have been the case had some person been killed by the discharge of the weapon. In that case the prosecution would have to prove that the respondent contemplated the possibility that the weapon might be discharged. But that contemplation did not have to be found simply to prove a matter of aggravation that was not an element of the offence.
In any event the objective seriousness of the offence was not mitigated by the fact that the offender did not know that the gun was loaded. This is another instance of a judge taking into account as a mitigating factor that the offence was not aggravated. Had the respondent known that the weapon was loaded it would have been an offence well above the mid range of seriousness. The absence of that knowledge did not reduce the offence to mid range.
In my opinion, if the offence was only in the mid range, which I doubt, it was at the very upper end of that range of objective seriousness. Under s 21A(2) there were further aggravating factors in that the respondent had a record of previous convictions for a similar type, the offence involved multiple victims, and the respondent was on conditional liberty. There was little by way of mitigation apart from the plea of guilty and what prospects of rehabilitation there was in light of the fact that he had previously been given the chance of rehabilitation without success. He had youth but that was of little mitigation in light of his criminal history and the nature of the offence.
In my opinion the least sentence that could have been imposed for that offence should have been 12 years less the discount of 20 per cent. There should have been a sentence of at least 9 years with a non-parole period of 5 years.
(b) The wounding offence
The Judge held that the wounding offence was within the mid range of objective seriousness. In coming to that view he found as a fact that the respondent was acting in self-defence and that the wounding was “essentially unplanned, as opposed to there being a positive contemplation that the knife might be used if necessary”. But of course the offender was armed with the knife when he entered the premises. He told police that he took it with him, “just if anything went wrong”: Q 117. He re-entered the premises, after hearing the shots fired, “to try and get [Douglas] out of there”: Q 99.
The charge to which the respondent pleaded guilty alleged that the respondent intended to inflict grievous bodily harm at the time of the wounding. The fact that the respondent wounded the victim with that intention in the circumstances that he re-entered the premises to assist his co-offender meant that there was little mitigation in the fact that he might have found himself in difficulties from his intended victims. A person arming himself with a weapon in order to commit a violent crime must inevitably contemplate that he might be required to use it in order to escape, including defending himself. This is especially so when he goes to the aid of a co-offender. All that could be said in the present case was that the respondent did not act with gratuitous cruelty in stabbing the victim for no apparent reason. The absence of that factor was not a matter of mitigation. The wounding was aggravated in that the victim was in his own home and one of the wounds was relatively serious.
Again, if that offence was mid range, it was in the upper area of that range. The only matter that reduced its objective seriousness was that the wounding was not in the worst category. There was little by way of mitigation except in the subjective matters and the plea of guilty. However, I am unpersuaded that the sentence standing alone was manifestly inadequate particularly having regard to the nature of the injuries. There was no evidence of continuing disability caused to the victim and, therefore, the nature and extent of the grievous bodily harm did not aggravate the offence. The respondent also had little record for offences of violence.
(c) The total sentence
I have already indicated my opinion that the total sentence imposed did not sufficiently reflect the total criminality involved in the two offences and that the overall non-parole period did not pay sufficient regard to denunciation and deterrence, both specific and general. Although the offences were connected in that they arose out of the one criminal enterprise, the wounding resulted in a significant increase in the criminality involved in the home invasion offence, notwithstanding the grave seriousness of that offence. Standing alone the sentence for the home invasion should have been at least 9 years with a non-parole period of 5 years. The increase in the overall criminality as a result of the commission of the wounding offence was insufficiently reflected in an increase in the sentence for the home invasion offence by one year. Were this not a Crown appeal I would have increased the overall non-parole period as a result of the partial accumulation of the sentences for the two offences by at least 2 years. However it will be sufficient if there is an increase of 18 months by accumulation.
The backdating of the sentence to include part of the balance of parole to be served by the respondent was generous. It was not simply the commission of these offences that were breaches of the terms of his parole as he was also using prohibited drugs. However, the Crown has not complained about that matter and I would date the sentences from that chosen by the Judge. The Judge found that there were special circumstances and the Crown did not suggest that finding was erroneous.
In my opinion the Crown appeal should be allowed. There are no discretionary reasons for this Court to refuse to intervene in order to increase the sentence. The respondent should be sentenced to a total term of 10 years 6 months and an overall non-parole period of 6 years 6 months.
I propose the following orders:
1. The Crown appeal is allowed.
2.The sentences imposed in the District Court are quashed.
3.The respondent is sentenced on the offence of wounding with intent to inflict grievous bodily harm to a term of imprisonment consisting of a non-parole period of 3 years 6 months and a balance of term of 3 years 6 months to date from 15 April 2008. The non-parole period expires on 14 October 2011.
4. The respondent is sentenced on the offence of specially aggravated break and enter to a term of imprisonment consisting of a non-parole period of 5 years and a balance of term of 4 years to date from 15 October 2009. The non-parole period expires on 14 October 2014 the date upon which the respondent is eligible to be released to parole.

BUDDIN J: I agree with Howie J.
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LAST UPDATED:
8 July 2009