TB v The Queen

[2020] NSWCCA 108

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	TB v R [2020] NSWCCA 108
Hearing dates:	29 April 2020
Decision date:	29 May 2020
Before:	Bathurst CJ at [1]; Hoeben CJ at CL at [2]; Harrison J at [191]
Decision:	Leave to appeal granted. Appeal dismissed.
Catchwords:	CRIMINAL LAW – sentence appeal – offences of murder, two offences of specially aggravated break, enter and steal with intention to inflict grievous bodily harm, three offences of aggravated detain for advantage – two home invasions involved – basis of liability participation in a joint criminal enterprise – whether the sentence indicated for murder manifestly excessive – whether asserted error in indicative sentence produced a manifestly excessive aggregate sentence – whether error in the sentencing judge’s approach to special circumstances – no error established – appeal dismissed.
Legislation Cited:	Court Suppression and Non-Publication Orders Act 2010 (NSW) Crimes Act 1900 (NSW) – ss 18, 86(2)(a), 112(3) Crimes (Sentencing Procedure) Act 1999 (NSW) – ss 3,, 3A, 53A Criminal Appeal Act 1912 (NSW) – s 5(1)(c)
Cases Cited:	AB v The Queen [1999] HCA 46;198 CLR 111 Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 Beale v R [2015] NSWCCA 120 Book v R [2018] NSWCCA 58 Borg v R [2019] NSWCCA 129 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 Hogarth v The Queen [2012] VSCA 302; 37 VR 658 JM v R [2014] NSWCCA 297 Kerr v R [2016] NSWCCA 218 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mulato v Regina [2006] NSWCCA 282 Obeid v R [2017] NSWCCA 221 PD v R [2012] NSWCCA 242 Regina v AA, AC, SS, Tatchell and Wildsmith [2010] NSWSC 495 R v Brown [2012] NSWCCA 199 R v Evans, John [2017] NSWSC 1440 R v Graham Keys Smith [2012] NSWSC 1565 R v Kaine (No 2) [2013] NSWSC 1824 R v MA; R v Byquar; R v Ramos [2012] NSWSC 1527 R v Marwan Jubraeel [2014] NSWSC 838 R v Rolfe [2017] NSWSC 1393 R v Safar [2014] NSWSC 376 R v Simpson [2001] NSWCCA 534 R v Swan; R v Kimura (No 2) [2016] NSWSC 1819 SHR v R [2014] NSWCCA 94 Vaughan v R [2020] NSWCCA 3
Category:	Principal judgment
Parties:	TB – Applicant Regina – Respondent Crown
Representation:	Counsel: Mr T Game SC/Ms A Cook – Applicant Mr E Balodis – Respondent Crown   Solicitors: Kiki Kyriacou Lawyers – Applicant Solicitor for Public Prosecutions – Respondent Crown
File Number(s):	2014/309120
Publication restriction:	Order pursuant to the Court Suppression and Non-Publication Orders Act 2010 (NSW) that the publication of the identity or any information tending to reveal the identity of the applicant be prohibited on the grounds that the order is necessary to protect the safety of the applicant. This order is to take effect throughout the Commonwealth of Australia.
Decision under appeal	Court or tribunal: Supreme Court of NSW Jurisdiction: Criminal Citation: R v Sinclair [2017] NSWSC 686 Date of Decision: 15 May 2017 Before: R A Hulme J File Number(s): 2014/309120

JUDGMENT

1. BATHURST CJ: I agree with the orders proposed by Justice Hoeben and his Honour’s reasons.

2. HOEBEN CJ at CL:

TB (the applicant) seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the aggregate sentence imposed upon by him by Justice R A Hulme in the Supreme Court sitting in Sydney on 15 May 2017.

3. The Court made an order pursuant to the Court Suppression and Non-Publication Orders Act 2010 (NSW) that the publication of the identity or any information tending to reveal the identity of the applicant be prohibited on the grounds that the order is necessary to protect the safety of the applicant. This order is to take effect throughout the Commonwealth of Australia.

4. A preliminary matter arose in that the applicant’s application to appeal against the aggregate sentence imposed on him was out of time. When this matter was raised with the parties, the Crown advised that it did not oppose an extension of time being granted. In those circumstances, I am of the opinion that an extension of time to seek leave to appeal against sentence should be granted in favour of the applicant.

5. The applicant was sentenced for offences arising from two home invasions in which he participated. The first occurred at Medway on 28 April 2014 and the second at Badgerys Creek on 30 May 2014.

6. Counts 1 and 2 concerned the incident at Badgerys Creek on 30 May 2014. Count 1 alleged the murder of Keith Cini, contrary to s 18 of the Crimes Act 1900 (NSW). The offence carried a maximum penalty of imprisonment for life and there was a standard non-parole period of 20 years.

7. Count 2 alleged a specially aggravated break enter and steal offence, which was that the applicant had been in the company of Ryan Evans and had intentionally inflicted grievous bodily harm on Luciana Boldi, contrary to s 112(3) of the Crimes Act. The offence carried a maximum penalty of imprisonment for 25 years and there was a standard non-parole period of 7 years.

8. Counts 3 to 6 related to the incident at Medway on 28 April 2014. Count 3 alleged another specially aggravated break, enter and steal offence, in the company of Ryan Evans and Sam Franklin, together with the intentional infliction of grievous bodily harm to Brett Delamont, contrary to s 112(3) of the Crimes Act. This offence carried a maximum penalty of imprisonment for 25 years and there was a standard non-parole period of 7 years.

9. Counts 4, 5 and 6 all alleged the specially aggravated kidnapping of Alana Bush, Kirby Delamont and Jack Lisle, contrary to s 86(2)(a) of the Crimes Act. The offence carried a maximum penalty of imprisonment for 20 years. There was no standard non-parole period.

10. R A Hulme J imposed an aggregate sentence of imprisonment for 38 years with a non-parole period of 28 years and 6 months. The indicative sentences were as follows:

Offence	Starting Point	Indicative Sentence	Non-Parole Period
1. Murder of Keith Cini	35 Years	30 Years	22 Years 6 Months
2. Specially aggravated break, enter and steal (with intentional infliction of GBH on Luciana Boldi)	16 Years	13 Years 6 Months	10 Years
3. Specially aggravated break, enter and steal (with intentional infliction of GBH on Brett Delamont)	18 Years 6 Months	12 Years	9 Years
4. Aggravated detain for advantage (Alana Bush)	13 Years	8 Years 6 Months	N/A
5. Aggravated detain for advantage (Kirby Delamont)	13 Years	8 Years 6 Months	N/A
6. Aggravated detain for advantage (Jack Lisle)	14 Years	9 Years	N/A

11. The sentence commenced on 21 October 2014. The aggregate non-parole period will expire on 20 April 2043. The aggregate term will expire on 20 October 2052.

12. In order to better understand the aggregate sentence and the indicative sentences, it is necessary to have regard to the discounts found by the sentencing judge to be applicable.

13. In recognition of the utilitarian benefit to the criminal justice system flowing from the pleas of guilty for the Medway offence, his Honour allowed a discount of 25 per cent. Because the pleas for the Badgerys Creek offences were very late, his Honour allowed a discount of 5 per cent for each of them. Because of the applicant’s offer to give evidence against his co-offenders and in particular Ryan Evans, his Honour allowed a further 10 per cent discount applicable to all of the offences. Accordingly, the Medway offences were discounted by 35 per cent and the Badgerys Creek offences by 15 per cent.

14. The applicant relied upon the following grounds of appeal:

Ground 1 – The sentence imposed is manifestly excessive

Ground 2 – The sentencing judge erred in his approach to the subject of special circumstances and in failing to find special circumstances

FACTUAL BACKGROUND AND FINDINGS ON SENTENCE

15. In April 2014, the applicant was aged 22 years with a serious addiction to methamphetamine (“ice”). During a period of abstinence after a short stint in a rehabilitation program in the first half of 2012, he met Ryan Evans. A friend warned the applicant to stay away from Evans because of his drug use. However, when the applicant subsequently relapsed and became a very heavy ice user and supplier, he took to spending time with Evans, even living with him for a while. He knew Evans had a violent reputation. He had seen him on an occasion when “he grabbed [a] bloke and … hit him a couple of times, gave him a bloody nose and that sort of thing … and the bloke fell over”. In the applicant’s evidence about that incident, he agreed that Evans had “just hammered him and knocked him down”.

16. It was through Evans that the applicant met Sam Franklin. He was a long-distance truck driver and a regular user of ice.

Home Invasion at Medway

17. On 28 April 2014, Mr Brett Delamont (aged 50), Ms Alana Bush (aged 49) and their daughter Ms Kirby Delamont (aged 20) lived in a large house on a 30 acre rural property surrounded by similar acreage homesteads at Medway. Kirby Delamont’s boyfriend, Mr Jack Lisle, (aged 20) would frequently stay overnight.

18. The applicant knew the Medway property and the Delamont/Bush family quite well as he had been in a relationship with Kirby Delamont when he was aged 18.

19. The applicant was with Ryan Evans and Sam Franklin over the weekend of 26-27 April 2014. They were each desperately short of money and the applicant told the others that there was a good chance that a substantial amount of money could be stolen at the Delamont Bush home at Medway. They formulated a plan to carry out a home invasion. The applicant drew a “rough diagram” of what he knew of the house and he told the others who would be there and what he thought they should do. He told Evans that there would be at least one gun in the house.

20. On the Sunday evening, the three travelled from Taree to Ryan Evans’ home at Elderslie which was near Camden. They gathered various items to take, including rope, duct tape, face coverings, gloves and torches. The applicant said that it was Evans’ idea to use rope to tie up the occupants but he (the applicant) suggested that using duct tape would work better.

21. A pick handle was also taken. The applicant claimed that it was “just a bit of an intimidation factor”. He said “At that point I didn’t anticipate it being used to that extent”. He had told the others that Mr Delamont was not a “confrontational bloke” and he would hand over the money upon request. The applicant said “Mate, you’re not going to need that” (i.e. the pick handle), to which Evans replied “Just in case”. The applicant said “all right, whatever makes you happy”.

22. The applicant conceded that the agreement was to break and enter the property, detain the occupants and steal their property. He said that while he did not intend it, he foresaw the possibility that the occupants would sustain really serious injuries.

23. The four occupants at Medway retired at a modest hour to their respective bedrooms at opposite ends of the house. The house lights were off and the external doors were closed, but many were unlocked.

24. After gathering the various items and smoking some ice, the three men embarked upon the 80km journey to Medway. They travelled on rural roads so as to avoid the main Sydney - Melbourne highway.

25. The car was parked outside the property. At the applicant’s direction, they approached the house along a secondary driveway. The applicant led the others around to the back of the house where they entered by an unlocked laundry door.

26. The applicant told police that he thought there was a chance that two lots of people would be in the house, so the plan was for Evans and Franklin to go to the master bedroom while he looked around to see if there was anyone else in the house. If there was, he would call for assistance because he feared that he could be overpowered if he tried to tie anyone up while he was alone.

Events in the master bedroom

27. The applicant directed Evans and Franklin towards the master bedroom where Alana Bush and Brett Delamont were asleep. Upon entering the bedroom, Evans walked around to the far side of the bed, where Mr Delamont was lying, and struck him a number of times to his upper torso and head with the pick handle. Mr Delamont was rendered unconscious and was bleeding from the head.

28. Ms Bush, who was sleeping on the side of the bed closest to the door, awoke and immediately became aware of the presence of the two men in the room. She began to scream and continued to scream as loud as she could, hoping to wake the others at the far end of the house to alert them to the danger. The applicant said he heard a scream from where he was at the other end of the house.

29. Ms Bush saw Evans standing on Mr Delamont’s side of the bed holding the weapon while the other male, Franklin, was standing on her side of the bed. Evans told her to “shut up”. When she continued to scream he lunged at the bed with the pick handle. She was told again to “shut up”. The lights were off but as Franklin had a torch, Ms Bush was mostly able to see the two men and their movements. She could see that Mr Delamont was not moving and there was a large amount of blood around his head and on the bedding.

30. Evans bound Mr Delamont’s hands in front with one roll of duct tape, while Franklin used a second roll of tape to tape Ms Bush’s hands.

31. It appeared to Ms Bush from the outset that Evans was the dominant “aggressive” male. He was screaming at her and constantly moving. She described Franklin as the “passive male”.

32. Ms Bush began to scream again and Evans said “Shut up or I'll hit him again”. He struck Mr Delamont on the upper torso with the weapon. Ms Bush said “I felt as though my life was in danger and they would kill us”.

33. Evans demanded “Where's the cash?” Ms Bush responded “I don’t know, you’ve hurt him”. Evans threatened “I'll hit him again” to which she replied “Don’t hurt him just let me think” and “Leave my husband alone he does not deal with the money”. She deliberately took her time in an attempt to keep them in her room and away from her daughter and Mr Lisle. She directed Evans to a chest of drawers on Mr Delamont’s side of the bed where four thousand dollars in cash was kept.

34. Evans opened the drawers and located the money but then demanded “There has to be more, tell me what I want or I will hurt you”. Feeling that all their lives were in danger, she directed Evans to a chest of drawers on her side of the bedroom. The drawers were searched as Evans continued to hold the weapon and Franklin shone the torch. They located and removed a further four thousand dollars in cash.

35. Evans demanded “Where is your gun?” Ms Bush was shocked that he knew they had a firearm. She directed him to a walk-in wardrobe. Evans and Franklin entered the walk-in wardrobe and located Mr Delamont’s .22 magnum rifle in a brown vinyl case behind the door. They returned to the room and Evans asked for ammunition. Ms Bush was terrified at what the males would do with a loaded gun and despite knowing where the ammunition was she screamed “I don’t know where they are” and “we don't have any”.

36. At some point during these events, Evans demanded to know where there was more money. Ms Bush told him there was a small amount of money in a tin in the office. He demanded: “ Where are the phones?” She told him they just had mobile phones. The men took hers and Mr Delamont’s phone as well as her iPad.

37. As the two men stood at the bottom of the bed, Evans demanded “Tell me who else is in the house”. Ms Bush tried to arouse Mr Delamont by kicking him as she did not know what to do. He was not responsive and Ms Bush believed he was dying. Reluctantly, she told the intruders that her daughter and Mr Lisle were at the other end of the house.

Evans leaves the master bedroom

38. Evans left the master bedroom. Franklin stayed in the bedroom with Ms Bush. Ms Bush pleaded with him about Evans. She said “He’s crazy, please don't let him hurt them” and “Go get the crazy guy out of my daughter's room. He will kill her ... he will hurt her”. Franklin responded “No one is going to get hurt”. Referring to Mr Delamont, Ms Bush said “Look at the hole in his head ... look at this” and “he has killed my husband”. Franklin picked up a T-shirt from the floor and threw it to her, telling her to hold it against Mr Delamont's head. With her hands still bound, she held the shirt against Mr Delamont's head to stem the blood. She told Franklin “We need help he is bleeding, he is shaking I think he’s going to die”. Franklin said “I’ll ring someone when we leave”.

39. Ms Bush continued to plead with Franklin. She questioned why they had been targeted and he replied “This is not personal, this is random”. He also told her to “just be quiet”. Whilst alone in the room with Ms Bush, he repeatedly walked to the doorway to check the hallway. She estimated that she was alone with him for about five minutes.

Events in Ms Delamont’s bedroom

40. Mr Lisle awoke to Ms Bush screaming from the other end of the house and he woke Ms Delamont. Mr Lisle went to use his phone but before he could do so a man with “a pole” or “a bar” came into the bedroom followed by another man. The first man was Ryan Evans with the pick handle and the applicant was the other man.

41. Mr Lisle pulled the blanket over himself and lay on top of Ms Delamont to protect her. Evans struck at the bed with the pick handle a number of times, hitting Mr Lisle on the stomach. Demands were made of the pair. The intruders demanded that the pair lie “Face down, Face down” and “Give us your f... phones and wallets”. Ms Delamont and Mr Lisle were terrified and stayed still under the covers. They could hear movement throughout the bedroom. At some stage their phones were taken.

42. After a few minutes, they heard a male voice direct them to sit up in the bed with their eyes closed. They sat up with their eyes mostly closed. A man was standing next to Mr Lisle, shining a torch in his eyes. The two men then bound Ms Delamont’s and Mr Lisle’s hands and feet with duct tape and put pillowcases over their heads. Mr Lisle and Ms Delamont both feared that she was going to be raped.

Back in the master bedroom

43. After being left alone with Franklin for approximately five minutes, another man who Ms Bush called Male 3 entered. She saw he was shorter and stockier than the other men. He was wearing slightly lighter clothing than the others and had a lighter mask concealing his face. This was the applicant.

44. Ms Bush said that she immediately realised that the man who came into the room at this stage of the incident, joining Franklin, was not the “aggressive” man who had earlier left (i.e. Evans).

45. Franklin approached the bed and told Ms Bush to put her feet out. At this point, she thought she was going to be raped. Because she was wearing a shirt and underwear, she asked Franklin to let her put her pants on. He refused but when she took her feet out from under the covers, he pulled them across her legs to cover her. Franklin proceeded to tape her ankles together with duct tape. The applicant entered as this was happening.

46. The applicant dragged Mr Delamont’s feet out from under the covers and taped his ankles with a different roll of duct tape. He used a piece of rope that was there to tie Mr Delamont’s hands over the top of the duct tape. Mr Delamont was shaking and convulsing at this point. Despite her hands being bound, Ms Bush was attempting to continue holding the shirt to his head to stop the bleeding.

47. Franklin and the applicant removed pillowcases from pillows. Franklin placed one over Ms Bush’s head while the applicant placed another over Mr Delamont’s head. This prompted Ms Bush to believe that they were now going to be killed. She pleaded “Please don't kill us”. Franklin responded “Nobody is going to get hurt”. She continued to plead and Franklin told her to be quiet. Both men then left the room.

The intruders leave the house

48. Ms Bush attempted to get her hands out of the tape and found she could slide them out. She waited until she could not hear any noise before removing the tape from her ankles. She crept down the hallway to the office where there was a landline and rang 000 while hiding behind a desk, unaware whether the men were still in the house. Her call was logged at 1.29am.

49. Ms Bush then went to Ms Delamont’s bedroom and cut the bindings from her and Mr Lisle’s hands and feet. She told them to assist Mr Delamont. They went to the master bedroom where they found Mr Delamont in the foetal position, bound by duct tape, violently shaking with his face covered in blood. Police arrived at the scene at 1.41am.

50. The intruders were inside the home for 15-20 minutes. They went through various rooms including the study, kitchen and living area. They left with over $8,000 in cash, the firearm and firearm case, a number of handbags, a watch, Mr Delamont’s wallet, four mobile phones, two iPads, and a brown re-usable shopping bag.

51. On the journey away from Medway, Evans said “You weren't wrong, that was f... easy". During the journey, Franklin laughed about “the sound it made when Ryan hit Brett in the head”, and made comments including “You just clubbed him” and “F... made a cracking sound”. There was also laughter about Ms Bush being so panicked that she had difficulty speaking when Mr Delamont was unconscious and she was being asked where the money was.

52. The men returned to Elderslie. They then went out to buy drugs, spending $3,200 on ice which they shared. $200 was given to Evans’ father for board and they shared the balance of the proceeds. The applicant said that with his share he bought clothes and drugs and gambled the rest on poker machines. Evans kept the stolen rifle at his place.

Injuries

53. Paramedics stabilised Mr Delamont and transported him to Liverpool Hospital where he was examined by Dr Giles Mosely. As a result of being hit with the pick handle, Mr Delamont suffered:

1. a. a wound to the right side back of his head 3cm wide and 1 cm deep requiring suturing;

2. b. bruising to the left temporal area; and

3. c. a fractured skull with bruising to the brain.

Head injury experts believed Mr Delamont was struck around the head a number of times. He remained in hospital for two weeks under the care of a neurosurgical team. For the first five days he was suffering Post Traumatic Amnesia. After release from hospital, he was placed under a treatment plan with the Liverpool Brain Injury Rehabilitation unit. He continued treatment there.

54. At first Mr Delamont needed to redevelop everyday skills such as walking, eating, dressing and showering. He suffered initial language impairment. He required ongoing speech therapy, occupational therapy and physiotherapy. He needed to learn to drive again.

55. In June 2014, he was examined by Dr Veerabangsa. At that time, his speech was functional but he continued to suffer reduced attention, impairment of short term memory, reduced problem solving skills, reduced hearing in his left ear, vertigo and impaired balance. He was continuing with all therapies.

56. Dr Veerabangsa carried out an assessment on 25 November 2015, some 19 months post injury. Mr Delamont still showed difficulties and limitations, including reduced attention regulation and information processing, which affected his ability to retain information and to learn and remember new information. Dr Veerabangsa stated that Mr Delamont sustained:

“A moderate to severe traumatic brain injury as a result of the alleged assault on 28/04/2014. He received separate injury to the right side and the left side of the head as a result of impact from a blunt object. He has psychological and cognitive/memory difficulties as a result of the injuries sustained. At one year and nine months prognosis is good but long term if not permanent impairment is likely."

57. Mr Delamont did not recall the incident at all. He reported that he was unstable on his feet and at times had fallen. He suffered vertigo episodes. For a number of weeks he suffered more extreme vertigo and at those times he was unable to function at his pre-injury level, suffering nausea and being unable to get out of bed. He was undergoing further specialised treatment in relation to this.

58. Mr Delamont also suffered ongoing fatigue, he was unable to multi task and sometimes had difficulty holding conversations. His intellectual skill and business skill levels were greatly reduced. He was no longer able to conduct himself in his managerial role as the owner and director of his drilling company which employed approximately 12 staff members.

59. Mr Lisle suffered a red welt mark on his torso as a result of being hit when under the covers by the man with the weapon.

Home invasion at Badgerys Creek on 30 May 2014

60. As at May 2014, Keith Cini was 69 years of age. He lived at Badgerys Creek with his partner, Luciana Boldi, who was aged 67 years. They lived in a three bedroom home on a small farm on Elizabeth Drive. They occupied separate but adjacent bedrooms.

61. Mr Cini owned and operated Keith Cini Pty Ltd, a business which sold pigs to restaurants in the Sydney metropolitan area. He operated the business from his residential address.

62. Mr Cini employed a number of people in his day-to-day running of the business. The normal routine included delivering pigs to various locations every Wednesday and Thursday. Payments were generally received in cash which he would secure in a pin-coded safe located in a locked room (the study) in his home on Thursday night for deposit at the bank every Friday. The amount in the safe on any given Thursday night and Friday morning varied between $5,000 and $60,000.

63. Ryan Evans had previously worked for Mr Cini as a casual delivery driver and was aware of how the business operated.

64. In the weeks leading up to 30 May 2014, the applicant and Evans planned to carry out a second home invasion. The applicant told police that “Ryan and I had again gotten ourselves into financial troubles … smoking more drugs than we were selling … so we needed to do something to make some money”. At some point in time, they agreed to target Mr Cini.

65. In the early hours of 29 May, the applicant and Evans exchanged a series of text messages where they discussed carrying out the home invasion that night. They met that afternoon at Evans’ home at Elderslie. At about 10.15pm, they caught a taxi from there to the home of a friend of the applicant at Rossmore, which is about 14km from Badgerys Creek. The applicant was carrying a bag containing gloves and a balaclava.

66. The applicant and Evans sat around at Rossmore, smoking ice and talking until it was time to go to Badgerys Creek. When they arrived at the address, they sat in the car for 10 or 15 minutes observing the premises and smoking more ice.

67. When Mr Cini and Ms Boldi had retired to their respective bedrooms that evening, the external doors were securely locked. Sometime after 3.00am, the applicant and Evans left the car and pulled their balaclavas down. They had with them a pick handle, duct tape, gloves and face coverings. They entered the property by smashing a front window. The applicant cut his finger causing it to bleed.

68. Once inside the property, either one or both intruders came into contact with Mr Cini. It is thought Mr Cini was first attacked in his bedroom on the basis of his blood being found there. His blood was found in various other parts of the house as well, which indicated that the intruders had caused him to move around the house in order to facilitate them getting access to the safe. At some stage his ankles were bound with duct tape.

69. At some point both the applicant and Evans had Mr Cini outside Ms Boldi’s bedroom door. Ms Boldi was woken by Mr Cini calling “Luce”. She got out of bed, turned on the light and opened her bedroom door. She saw Mr Cini in the hallway with two figures near him. Ms Boldi said “I could only see the back of his head. I saw a dark figure with him. I am not sure if it was one or two people near him. I was still standing in the doorway to my bedroom when I saw a dark figure coming towards me. The person was wearing all black with the face covered. The person wasn’t very tall.” In a later statement providing more details of her observations she said “I saw [Mr Cini] to my left. I saw black figures standing over him, it was at least two people and I remember seeing arms and hands all over [Mr Cini].” In her oral evidence it emerged that she may have inferred that there were two intruders because she subsequently heard two voices.

70. Ms Boldi tried to close her door and stood with her back to the door but an intruder forced his way into her room by pushing the door in. She was struck to the head by an object that she believed to be a bat (in fact the pick handle). She fell to the ground behind the door and was struck to the head a further two or three times. She covered her head with her hands in an effort to protect herself. She recalled seeing a male with a bat over his head. She pleaded “No more, please stop”. She said that the man kept hitting her. She lay motionless pretending to be dead, trying not to breathe, and hoping he would stop hitting her. The intruder stopped hitting her and left her room. Photographs taken by a crime scene examiner showed quite a deal of blood on the back of the door and the wall beside it on the inside of the bedroom.

71. At some stage Mr Cini was violently assaulted in the hallway, including by being hit to the head with the pick handle. He was later found dead just outside his and Ms Boldi’s bedrooms.

72. Ms Boldi remained lying on her bedroom floor. She heard movement about the house from room to room and noises consistent with the premises being ransacked: crashing type noises, glass breaking and drawers being opened and closed. One of the intruders re-entered her bedroom and stepped on her legs as he walked in. Ms Boldi remained still, pretending to be dead. This offender searched Ms Boldi’s drawers and cupboard and emptied the contents of her handbag on the floor. That offender then left the room. At one point she heard a male voice saying “It's here, it's here”. At another point she heard what she believed was “That's enough Brian”. This was in fact the applicant saying “That's enough Ryan”.

73. Ms Boldi heard loud banging noises from the hallway area near the kitchen adjacent to the study, where the safes were. These noises continued until she heard a male voice state “Here it is”. There was silence for a period of time. There was then the loud sound of glass smashing in the lounge room.

74. Ms Boldi waited a short time until she thought it was safe. When she got up and left her bedroom, she saw Mr Cini lying motionless in the hallway. She went to the office and used the home phone to call 000. The call was logged at 4.04am.

75. The first police arrived about 10 minutes later. Officers found Ms Boldi crying and she had blood all over her face. They asked what happened and she replied “He is around there and isn’t moving.”

76. The officers found Mr Cini lying on his side in the hallway, apparently deceased. His ankles were taped together with duct tape and there was duct tape on his wrists. The plasterboard wall to the right near his head had a hole in it and had been sprayed with blood. The paramedics who arrived soon after noted that Mr Cini had sustained significant head injuries. He was pronounced dead.

77. Ms Boldi was treated for multiple head and arm injuries and was taken to hospital.

78. A crime scene examination found blood with the applicant’s DNA profile in various places in the house, namely in the deceased’s bedroom, the hallway (including on the deceased’s left wrist), the hallway side of Ms Boldi's bedroom door, the lounge room, the kitchen and the study door. His shoe impressions in blood were found up and down the hallway from where Mr Cini’s body lay down and around a corner to the study door. The door to Ms Boldi's bedroom had been forced off its hinges and was lying inside the room.

79. The intruders had ransacked the study but had been unable to access the safes which were bolted together and fastened to the floor. A number of sets of keys were found nearby, indicative of the intruders having tried them in their attempts to open the safes. One of the safes was later found to contain $18,248 in cash and $3,242 in cheques.

Injuries

80. Mr Cini was found to have died as a result of “blunt head injury”. There were numerous injuries involving the head, torso and extremities. He had sustained a very severe beating, principally to the head, where there were various abrasions, contusions and wounds, skull and jaw fractures and catastrophic brain injury.

81. Ms Boldi was taken to Liverpool Hospital where her injuries were recorded as: “multiple scalp lacerations, multiple head and finger lacerations and fractures, swollen and bruised right cheek, multiple bruises to bilateral shoulders and forearms, right shin bruising and multiple abrasions, right distal ulnar shaft fracture”. These were attributed to: “multiple episodes of blunt trauma to the face/head, neck, shoulders, trunk, upper and lower limbs.” She suffered a fracture of her right wrist. The treating doctor stated “Her multiple lacerations to scalp, forehead and finger will leave permanent scarring that may be disfiguring”.

82. Ms Boldi was referred to the care of a consultant hand surgeon at Fairfield Hospital where she underwent surgery on her hand. The surgeon recorded the injuries with which he was concerned as follows: “Right distal ulna fracture, left middle finger extensor laceration, left ring finger flexor laceration and proximal … fracture left... nail bed injury and ... Fracture”. He found her injuries to be consistent with “being struck by a blunt object, and being cut by a sharp object a number of times”. In his opinion “She will have permanent loss of function, strength and range of motion in her left hand due to the injury (despite her excellent compliance post operatively with hand therapy)”.

83. The sentencing judge was satisfied beyond reasonable doubt that the plan between the applicant and Evans was to carry out a home invasion: a joint breaking, entering and stealing at Mr Cini’s home in which they would meet any potential opposition by the occupants with violence and deprivation of liberty as necessary. His Honour rejected the applicant’s claim that he believed that nobody would be home and that he thought the plan was just to sneak in, steal money and sneak out.

84. His Honour found:

“112   Further, the offender says, in effect, that he did not want the violence to occur but I am satisfied that he was aware at the time of a likelihood of it occurring. Even though on his own version that he was not aware of the presence of the pick handle until they got out of the car, he agreed in cross-examination that at that point he knew that Evans was going to use it if there was anyone in the house and use it in a very savage way, not unlike he had done at Medway. He agreed that after he saw that Evans had the pick handle he proceeded with the plan because he was desperate for money.”

85. His Honour rejected the proposition that Mr Cini had been attacked and rendered unconscious within 10 or 15 seconds or so of Evans’ entry into the house.

86. His Honour considered it likely that Mr Cini was asked to help locate the money and was taken around the house by one or the other of the intruders. This was consistent with his blood being located at various places around the house. His Honour rejected the applicant’s claim that when he first saw Mr Cini he was already wounded and unconscious.

87. The sentencing judge found:

“118   Whatever may have been the actual events within the house, the simple fact is that the offender's version is not one that reduces his criminal culpability in any material respect. He probably did tell Evans, “that is enough”, but he continued his participation in the enterprise after both Ms Boldi and Mr Cini had been violently assaulted to the point where she was thought to be dead and Mr Cini was unconscious. He helped to search for money and other valuable property. He tied Mr Cini's feet with duct tape to incapacitate him when it was thought he was regaining consciousness. He continued to be present as Evans was “beating the living shit out of” Mr Cini.

119   The Crown contended that whilst the joint criminal enterprise might not have been to kill, I should nevertheless find that the offender had an appreciation that death of one or more of the occupants was a very real possibility. (T180.15) That may well be so but the evidence is not such that I am satisfied of it beyond reasonable doubt. I am satisfied that he participated with full knowledge that the infliction of grievous bodily harm to one or more occupants was a high likelihood.”

The harm caused

88. His Honour found that there was intense tragedy in the case. He noted that the applicant’s family, through the scourge of an evil and insidious drug, lost someone whom his mother described as a once “kind, gentle, sensitive and honest young man” to a lengthy time in prison. His Honour noted that the applicant’s parents were also acutely conscious of the devastating effects his actions have had upon others.

89. His Honour found that Ms Luciana Boldi’s life had forever changed, partly as a result of her physical injury but mostly because of the loss of her partner as well as the psychological and emotional trauma she experienced on that night. His Honour found that it was something that would never leave her and which had a negative impact on the way she was able to live her life in many ways.

90. In her victim impact statement, Mr Cini’s daughter described her father as an enthusiastic member of the community, an extremely hard worker, a business owner, an employer and a very loyal friend to many people. Hundreds had attended his funeral. His death had caused profound grief for many people.

91. His Honour noted that Mr Brett Delamont had no memory of the attack and that his description of his life before and after the home invasion was one of very marked contrast. He could not do many things that he was capable of in the past. The injuries had an adverse effect physically, intellectually, emotionally and financially. He continued to suffer on a daily basis in a variety of ways which included vertigo, fatigue and loss of his sense of smell as examples.

92. In her victim impact statement, Ms Alana Bush described suffering indescribable terror on two levels. She witnessed what the intruders did to her helpless husband and then the torture of thinking what might befall her daughter when the men were at the other end of the house. His Honour found that there was an unwarranted but continuing sense of guilt about not being able to protect her loved ones. His Honour noted that compounding all this was the long-term struggle to help her husband recover from his debilitating brain injury, a process that would never be complete. Ms Bush had lost her sense of security in her own home and an unhealthy hypervigilance robbed her of sleep. In her victim impact statement she said “Our lives are very different now. We are all still struggling to deal with the repercussions of such a shocking crime.” The sense of betrayal Ms Bush felt after it was revealed that the applicant was one of the intruders and that he had orchestrated the invasion made the situation all the worse for her.

93. Ms Kirby Delamont described in her victim impact statement her terror on the night, the terrible consequences for her father and the effect his difficulties have had upon the family. The long journey of helping him to perform tasks usually taken for granted (walking, feeding, toileting and the like) had been extremely difficult.

94. His Honour assessed the seriousness of the applicant’s offending as follows:

“Murder

127   The maximum penalty for murder is imprisonment for the term of a person's natural life with no prospect of parole: Crimes Act 1900 (NSW), s 19A. Section 61 of the Crimes (Sentencing Procedure) Act 1999 (NSW), provides that a court is to impose such a sentence if satisfied “that the level of culpability [of the offender] in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence.” This is subject to the general discretion provided in s 21 of the Crimes (Sentencing Procedure) Act for a court nevertheless to impose a sentence of imprisonment for a specified term.

128 I am satisfied that the objective seriousness of the offence of murder (in the manner in which it was committed by this offender) is well above the middle of the range, but it is not so grave as to warrant the imposition of the maximum penalty. The community's interest in the four matters mentioned in s 61 can be adequately met by a lengthy determinate sentence.

129   In making my assessment of the objective seriousness of the offence I have taken into account that the evidence does not establish that the offender was aware of the possibility of death occurring. Nevertheless, the offence involved the gratuitous infliction of extreme violence with a weapon upon an older man, disturbed from his sleep in his own home, by an intruder who was accompanied by this offender. This offender was well aware that Evans was armed, that the premises were occupied, and that grievous bodily harm could well be inflicted upon one or more occupants.

130   The fact that the offender did not specifically intend that such harm would be inflicted does not diminish the seriousness of the offence to any significant extent. On his own account, the offender willingly complied with Evans’ request that Mr Cini be incapacitated by way of tying his feet together with duct tape, thereby rendering him more vulnerable. He contributed in that way, at least, to the gratuitous cruelty with which Mr Cini was treated. Further, the fact that he was well aware of the extreme violence that Evans was capable of in such circumstances (for example, by having seen what he had done a month earlier to Mr Delamont), makes his willing intrusion into the premises with Evans to satiate a desire for money a matter of very grave seriousness. Finally, despite the offender's high level of culpability, on the evidence before me in these proceedings it has to be seen as less than that of Evans.”

The other offences

95. His Honour went on to assess the seriousness of the other offences:

“131   The other offence at Badgerys Creek concerning the infliction of grievous bodily harm upon Ms Boldi, and the offences at Medway, are all at about the same level of objective seriousness (well above the mid-range) although the offence concerning Mr Delamont is the worst of them because of the level of harm caused.

132   In relation to the Medway offences I am particularly mindful of the fact that the offender was instrumental in the formulation and execution of the armed intrusion by three masked men. The offences were committed against people who were asleep in a home in a semi-remote rural location. Substantial physical injury was caused to Mr Delamont, beyond that necessary to make out the element of grievous bodily harm, and substantial emotional harm was caused to all of the occupants.

133   Again, in respect of the offences concerning Ms Boldi and Mr Delamont, the fact that the infliction of very serious physical harm was not specifically intended by the offender but was foreseen, I am satisfied, as something that could well occur is not something that diminishes to any great extent the seriousness of these crimes.”

96. In relation to the applicant’s subjective case, his Honour took into account that he came from a good family who had been very supportive of him and had given him every opportunity. The applicant began using drugs in his final years of school when he was 16 or 17. He experimented with ecstasy, amphetamine and cocaine. He also commenced using alcohol. When his parents found out about these things, they intervened and arranged for him to see a psychologist. Unfortunately, after a short period of improvement, the applicant returned to his old ways.

97. The applicant commenced using ice at the age of 20 and became addicted straight away. Initially it gave him confidence but over time it had the opposite effect, making him paranoid and unable to function.

98. The applicant’s parents became concerned about his erratic behaviour and sought to intervene, causing him to leave home for a few weeks. His parents sought advice as to how to obtain treatment for him and contacted drug rehabilitation programs across the country. On 29 January 2012, as part of this process, he was taken by his father to Adelaide where he was admitted to a residential facility for drug addiction. He did not complete the course and discharged himself after two weeks.

99. The applicant returned to his parents’ home and underwent counselling with a psychologist. For a period he progressed well and experienced abstinence. However, on his 21st birthday he relapsed with the use of cocaine and thereafter deteriorated in drug use and alcohol abuse to such a point that he could no longer go to work and would lie on the couch all day. On 4 April 2013, he left the family home. Except for a single day in mid-2014, he had no contact with his family until after his arrest in October 2014.

100. In this period of a year and a half, the applicant lived with people who were involved with drugs. He developed what he described as a “huge habit”, using about 2 grams of ice (at a cost of about $500) per day. He said, “Drugs took over my life”. He had employment but lost it on a day when police charged him with drug possession (20 March 2014). He became a drug supplier to fund his addiction and this became a full-time occupation.

101. The applicant described this as the lowest point in his life. He had lost a considerable amount of weight. He had only one bag of clothes and was living with friends. He rarely knew what day it was and he had scabs all over his face and arms.

102. In a letter to his parents the day before he was arrested, he said that he was going to kill himself because he was disgusted with what he had become and done. The letter was an exhibit in the sentence proceedings.

103. His Honour noted that except for the first two weeks, the applicant had spent his time in prison in a Special Management Area Placement. This is the least restrictive form of protective custody. His custodial conditions under that regime are no different from normal custody. It was common ground that over the last two and a half years, while the applicant has been in custody, he had not used any illicit substances and had applied himself productively to employment as a barber and as a cleaner in the gymnasium. He was receiving regular visits from his family and also maintained frequent contact with them by telephone. His mother described having her “old son back again”.

104. His Honour found that the applicant was genuinely remorseful.

105. In relation to rehabilitation, his Honour noted that drug abuse had been the underlying feature of his offences. There was no suggestion that he was predisposed to involvement in violent conduct when not abusing drugs. It was also common ground that he must undergo a very lengthy term of imprisonment. His Honour found that because the applicant had not used drugs while in the custodial environment, it was reasonable to forecast that his renewed commitment to his family and their strong support would enhance his prospects of rehabilitation. His Honour therefore assessed his prospects of rehabilitation and of not further offending as good.

Other matters bearing upon the assessment of sentence

106. His Honour had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). His Honour found that in this case the need for general deterrence and denunciation of the offending was of particular significance. There needed to be a recognition of the harm caused both to the victims and by extension to the community by the offending.

107. His Honour found that general deterrence was particularly significant in relation to armed home invasion style offences. This was because they were offences that strike great fear in victims and in the community generally. His Honour regarded such offences as dangerous in that there was an inherent and grave risk that any resistance would be met with the infliction of extreme harm. His Honour noted that in this case, the intruders were not met by any resistance at all, rather the victims were met with quite unnecessary gratuitous and brutal violence.

108. In relation to special circumstances, his Honour said:

“174   It was submitted that I should find that there are special circumstances that would warrant enlarging the parole period of the sentence at the expense of the non-parole period. I have considered that submission but have concluded that the period of parole that will be allowed for if the usual ratio is adopted would be appropriate in all of the circumstances.”

THE APPEAL

Ground 1 – The sentence imposed is manifestly excessive

109. The applicant focused on the indicative sentence for murder of 30 years which had as its starting point a sentence of 35 years before the application of a discount of 15 per cent for the plea of guilty and assistance. The applicant submitted that this was a very heavy sentence which failed to reflect his liability and the basis of the plea, particularly when considered in combination with his remorse and the other positive findings made by the sentencing judge.

110. The applicant submitted that the basis of his plea of guilty to the murder charge was extended joint criminal enterprise. He submitted that although the Crown had challenged that description and sought to characterise his participation in the offending as part of a joint criminal enterprise to inflict very serious injury on one or more of the occupants, it was unsuccessful in that endeavour. In order to establish that this involved less serious culpability, the applicant relied upon the finding of the sentencing judge at [129] of the sentence judgment:

“129   In making my assessment of the objective seriousness of the offence I have taken into account that the evidence does not establish that the offender was aware of the possibility of death occurring. Nevertheless, the offence involved the gratuitous infliction of extreme violence with a weapon upon an older man, disturbed from his sleep in his own home, by an intruder who was accompanied by this offender. This offender was well aware that Evans was armed, that the premises were occupied, and that grievous bodily harm could well be inflicted upon one or more occupants.” (Emphasis added)

111. The applicant submitted that this finding (in that part of the paragraph underlined above) was fundamental to his Honour’s assessment of objective seriousness and conclusively established extended joint criminal enterprise as the basis for the finding of murder.

112. Although not raised as a ground of appeal, the applicant submitted that his Honour’s assessment of the objective seriousness of the murder offence at “well above the middle of the range” was excessive and wrong, and that a proper analysis of previous cases involving extended joint criminal enterprise demonstrated this.

113. The applicant submitted that the finding at [129] was also important because it set out his Honour’s actual finding as to his state of mind at the time of the offending. The applicant submitted that in terms of the gradation of the objective seriousness of the murder offence, a finding of involvement on the basis of extended joint criminal enterprise was less serious than a finding of joint criminal enterprise to commit grievous bodily harm. This was because it made his connection with the murder more remote, i.e. extended joint criminal liability based upon the foresight that Evans might well act so as to inflict grievous bodily harm on one of the occupants.

114. The applicant submitted that while he was not seeking to minimise or avoid the seriousness of what happened and his part in it, his actions were not such as to justify a finding of objective seriousness “well above the middle of the range”. The applicant submitted that his level of participation was very different and significantly less serious than that of a person who actually commits the offence in the direct sense or even aids and abets the commission of the offence.

115. The applicant submitted that when one looked at the cases referred to in his written submissions and in the schedule attached, a pattern of sentencing was revealed which made clear that this indicative sentence was well above the upper limit of the pattern of sentencing which those cases suggested. The applicant submitted that it was not reasonably open to his Honour to impose a sentence of that length. This was particularly so when he was a young man with no prior history of committing offences of violence and with good prospects of rehabilitation.

116. The applicant submitted that he was not a person of violent disposition and because liability in this case was based on extended joint criminal enterprise, the Court had to look at the characteristics of the offender in the circumstances. He submitted that when all those things were brought together, it was difficult to see how such a lengthy sentence involved a proper exercise of the sentencing discretion.

117. The applicant submitted that being a participant in the crime of murder with an intention to inflict grievous bodily harm was far more serious than a person who participated in a serious home invasion but was found liable for murder on the basis of what he foresaw his co-offender might reasonably do in the circumstances. It was on that basis that the applicant challenged the proposition put forward by the sentencing judge at [130], i.e. the fact that the applicant was found liable for murder on the basis of extended joint criminal enterprise, rather than a more direct participation, did not diminish the seriousness of the offence to any significant extent.

118. The applicant submitted that in order to properly assess the objective seriousness of his offending, the Court had to look at the personal circumstances of his involvement in these offences and then look at the findings which were made about liability at [129], i.e. foresight of the possibility of the commission of grievous bodily harm. The applicant submitted that being liable for the crime of murder on the basis of his knowledge that Evans was armed with a pick handle and had done similar acts of violence to a victim in the Medway offence, was significantly less serious than liability as a principal offender or as an aider and abettor. The applicant submitted that his Honour did not find that he [the applicant] foresaw that Evans would form the intention to kill and would carry out that intention. He submitted that his Honour had been explicit in not making such a finding.

119. While accepting that sentencing decisions in other individual cases cannot establish an identifiable range of sentences, the applicant submitted that as noted in Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 (Hili and Jones), sentencing judges must have regard to what has been done in previous cases in order to achieve consistency in the application of legal principle. The applicant further acknowledged that this task was made more difficult by the fact that he was sentenced to an aggregate sentence. The applicant relied upon the observations of Grove AJ (with whom Macfarlan JA and McCallum J agreed), in R v Brown [2012] NSWCCA 199 at [17]. In that case, Grove AJ noted that where an aggregate sentence was imposed on an offender, a finding that there was an erroneous approach to an indicative sentence might also reveal error in the aggregate sentence. The applicant accepted that the materiality of any error in an indicative sentence must still be demonstrated (PD v R [2012] NSWCCA 242 at [44] (Beech-Jones J, Basten JA and Hall J agreeing). The applicant submitted that an indicative sentence that was substantially beyond the range of recorded sentences for that type of offending could support a submission that the aggregate sentence was manifestly excessive.

120. The applicant submitted that there was utility in comparing the indicative sentence of 30 years and 22 years and 6 months as a non-parole period with the sentences of other similar offenders. On that basis, the applicant took the Court to three cases of murder where the victim was killed during the carrying out of a violent home invasion. The applicant noted that in addition to the three cases discussed in his written submissions, there was annexed to those submissions a table which set out the facts of and sentences imposed in other cases of murder where the offender was sentenced on the basis of extended joint criminal enterprise.

R v Evans, John [2017] NSWSC 1440 (Evans)

121. This case concerned an offender sentenced for murder arising out of a home invasion. There were two offences of aggravated break, enter and commit a serious indictable offence (larceny and causing actual bodily harm respectively) dealt with on a Form 1. The offender was sentenced to a term of imprisonment of 24 years with a non-parole period of 18 years. The sentencing judge stated that the sentence would have been 32 years but for the offender’s plea of guilty and his assistance to authorities.

122. The victim of the murder was a 65 year old man who had lived in a unit in Terrigal. The offence occurred between 11pm and 2am. The offender and his girlfriend had driven to the premises under the mistaken belief that a drug dealer who had previously occupied the premises still lived there. Both the offenders had agreed to enter the premises, threaten any occupant and use violence to steal any property, cash or drugs they could find. They confronted the victim and restrained him with electrical tape. The victim was subjected to forceful and sustained assaults to the body and head. An autopsy found that the cause of death was acute cranio-facial trauma. There were injuries to the head, face, torso and arms indicative of a “severe assault”. The objective seriousness was assessed to be in the middle of the range. His Honour noted that the offence occurred in company, in the middle of the night and in the home of the victim where he was entitled to feel safe. His Honour found that the injuries indicated a particularly savage and brutal assault. The basis for the plea of guilty was felony murder. The sentencing judge did not make a specific finding of whether it was the offender or his girlfriend or both who had done the acts causing death.

123. The offender’s subjective case was complicated in that there was evidence of violent abuse during childhood at the hands of his mother’s partner and evidence of sexual abuse as a child by his step-father’s brother. The offender ran away from home at age 12 and lived on the streets. The offender’s education was limited. He had abused substances including marijuana, heroin and ice. He had been diagnosed with PTSD, depression and anxiety.

124. The offender’s criminal history was extensive, including multiple robberies, break and enter offences, assaults, and damage to property. The sentencing judge allowed a discount of 15 per cent for assistance to authorities in relation to the prosecution of his girlfriend in the murder. A discount of 10 ten percent was afforded for the plea of guilty.

125. The offender’s moral culpability was reduced on account of the substantial physical, psychological and sexual abuse he endured in childhood, which explained in part his early offending and drug abuse. The sentencing judge made some allowance for the offender’s expressions of remorse, but indicated scepticism as to whether they were entirely genuine. His Honour did not find good prospects of rehabilitation. His Honour declined to find special circumstances.

R v Swan; R v Kimura (No 2) [2016] NSWSC 1819 (Swan)

126. This case concerned the sentence imposed on two offenders for murder. The two offenders were found guilty by a jury following a trial. The victim was a 77 year old man residing in Department of Housing accommodation in Redfern. The murder arose out of an agreement between the co-offenders to assault and rob the victim and inflict grievous bodily harm on him in his apartment. The victim died eight months after the injuries were inflicted upon him.

126. Mr Swan was sentenced to 26 years and 6 months imprisonment with a non-parole period of 19 years and 6 months. Mr Kimura was sentenced to 23 years imprisonment with a non-parole period of 17 years.

127. The offences occurred early in the morning when the offenders entered the residential block and went to the victim’s door. Mr Swan climbed through the balcony and let Mr Kimura inside. At the time Mr Swan was holding a butcher’s knife or machete. Both offenders were inside the flat when the assault on the victim occurred. The sentencing judge found that Mr Swan conducted the assault but was not satisfied to the requisite standard that Mr Kimura had also participated in the assault.

128. The injuries sustained by the victim included bleeding on multiple areas of the brain, bruising to the brain, facial fractures, a jaw fracture, a fracture of the sternum, multiple rib fractures, bruising to the lungs and other injuries. Although the victim was able to speak to police on the night of the offences and the next day, he thereafter suffered cognitive decline secondary to traumatic brain injury, and never recovered.

129. The offenders had stolen the victim’s television, wallet and bottles of spirits. Aggravating factors included that the offence was committed in company, in the victim’s home and upon a vulnerable person. Mr Swan’s offending was aggravated by the fact that he was on conditional liberty at the time of the offence. The sentencing judge found the objective seriousness to be just above the mid-range.

130. Mr Swan was a 34 year old man of Aboriginal descent. He described being physically abused by both of his parents as a child. There was evidence of substantial drug use, including heroin, methylamphetamine, methadone and significant quantities of cannabis. The sentencing judge noted that the offender maintained his innocence and did not find remorse. The offender had a substantial record for both assault and property offences. The sentencing judge indicated that she that was satisfied that Mr Swan’s moral culpability was reduced on account of his violent upbringing.

131. Mr Kimura was 53 years old and had a minor criminal history. This offender described a happy childhood to treating psychologists. There was evidence that he had been violently assaulted by other inmates while in custody. There was evidence that he experienced above average levels of anxiety. He maintained his innocence and the sentencing judge found that he sought to minimise his role when giving evidence at trial. Her Honour accepted that Mr Kimura’s conditions in prison were more onerous given the threats and anxiety he had experienced from the assault upon him while in custody. Her Honour allowed some degree of mitigation for Mr Kimura’s willingness to facilitate justice throughout the trial.

R v Kaine (No 2) [2013] NSWSC 1824 (Kaine)

133. This case also concerned an offender sentenced for the murder of a vulnerable elderly person arising out of a home invasion. The victim was a 62 year old disability pensioner who lived in a single bedroom unit in Waratah. He had suffered from cranial dystonia for 20 years. He was very thin, unsteady on his feet, walked with a limp, had difficulty holding things and had a speech impediment.

134. The offender learned of the victim through a third party. That person falsely told him that the victim was a paedophile. The offender had strong views about paedophiles and believed what he had been told. He told Dr Westmore that he felt the victim was “pretty evil” and a threat to children in the community. There was evidence that the offender had been sexually molested as a child.

135. On 3 October 2011, a neighbour heard noises coming from the victim’s unit that sounded like people moving furniture around. After about 15 minutes the neighbour heard the front door open and slam closed. The neighbour witnessed a man running down the stairs. Neighbours discovered the victim the next afternoon. He was dead on his bed with two wardrobes tipped over on top of him.

136. Subsequent investigations revealed that the victim had died from multiple injuries. He suffered severe blunt force trauma to his face and head, extensive bruising to the face, multiple fragmented fractures to the cranium and jaw as well as a broad fracture over the top of the skull. There was a significant underlying brain injury. The sentencing judge found these injuries to have been caused by a small TV set (found nearby) being smashed on the victim’s face while he was prone. Additionally, there were 18 stab wounds and 18 slash wounds, primarily to the face, neck, chest and abdomen. Some of these wounds were sufficiently deep to penetrate the bone.

137. At trial the offender unsuccessfully relied upon the defence of substantial impairment by abnormality of the mind. He also unsuccessfully relied upon self-defence and provocation. The judge rejected his account which included that Mr Griffin had indecently assaulted him and attempted to lure him into the bedroom for sexual activity.

138. The offender had a substantial criminal history which included assaults, malicious wounding, possession of drugs, damaging property, break and enter, larceny and goods in custody. He described a reasonably happy childhood until he was molested by a Catholic priest in secondary school and by a man in a railway station toilet. There was evidence that the offender suffered from depression and that he had been prescribed Avanza, Serapex and Codeine. The sentencing judge indicated that he was not satisfied that there was any mental condition which contributed to the offending. The sentencing judge found that the prospects for rehabilitation were “problematic” and the offender was not remorseful.

139. The offender was sentenced to a term of imprisonment of 30 years with a non-parole period of 22 years and 6 months.

140. The applicant submitted that each of these three cases involved the murder of a vulnerable elderly person arising out of a home invasion by the offenders. The applicant submitted that the sentences imposed on the offenders were more lenient than the sentence indicated for him. The applicant accepted that the murder of Keith Cini was a very serious example of an offence of this kind but submitted that his liability was still very much removed from the liability of the co-offender Evans and the offenders in the cases set out above.

141. The applicant submitted that there were factors favourable to him. These included the finding that he was genuinely remorseful, that he had good prospects of rehabilitation, that he was unlikely to re-offend and that he had remained abstinent from drugs from the time of his arrest. The applicant submitted that he was not the person who committed the acts of violence. He noted that he was a young offender with a limited record.

142. The applicant accepted that he was sentenced for six offences in total. He received an aggregate term of imprisonment of 38 years. He submitted that inherent in the aggregate sentence was a period of accumulation of 8 years. He accepted that the sentencing judge must have allowed for a significant amount of concurrence in formulating the aggregate sentence to reflect the principle of totality. Nevertheless, the applicant submitted that given the basis of the plea to the offence of murder, and the other matters to which reference has been made in the three “comparable” cases, the indicative sentence for murder was manifestly excessive and that this indicative sentence had resulted in an aggregate sentence that was manifestly excessive.

143. The applicant submitted that while he accepted that there was obvious concurrence within the aggregate sentence, any amelioration arising from that concurrence did not serve to “correct” the otherwise manifestly excessive aggregate sentence.

Consideration

Legal Principles

144. In order to succeed on a ground of appeal alleging that a sentence was manifestly excessive, the applicant must establish that the sentence was “unreasonable” or “plainly unjust”: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [25] (Markarian), Hili and Jones; Book v R [2018] NSWCCA 58 at [54]-[56].

145. Consideration of whether a sentence is unreasonable or plainly unjust is undertaken in the context that there is no single correct sentence and that sentencing is not a mathematical exercise. Sentencing judges are required to balance many different and conflicting features: Markarian at [27]; Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2 (Barbaro); 253 CLR 58 at [34].

146. Sentencing judges are to be allowed as much flexibility as is consonant with consistency of approach and applicable sentencing principles and this Court will not interfere in a sentence merely because it may have exercised its sentencing discretion differently; Obeid v R [2017] NSWCCA 221 at [443]. There will be a range of possible sentences that could be imposed without error; AB v The Queen [1999] HCA 46;198 CLR 111 at [128].

147. In Obeid v R, R A Hulme J (with whom Bathurst CJ, Leeming JA ,Hamill and N Adams J agreed) conveniently summarised the principles relevant to this ground of appeal. His Honour stated:

“443   When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].

•   Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.

•   Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.

•   It is not to the point that this Court might have exercised the sentencing discretion differently.

•   There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.

•   It is for the applicant to establish that the sentence was unreasonable or plainly unjust.”

148. The appeal is against the aggregate sentence. The principles applicable to the imposition of an aggregate sentence were comprehensively set out in JM v R [2014] NSWCCA 297. R A Hulme J (with whom Hoeben CJ at CL and Adamson J agreed) set out the legislative regime for an aggregate sentence as provided for in s 53A of the Crimes (Sentencing Procedure) Act and at [39]-[40] set out a number of propositions which emerged from the legislative provisions and cases which had considered them:

“39A   ...

1. Section 53A was introduced in order to ameliorate the difficulties of applying the decision in Pearce v The Queen [1998] HCA 57; 194 CLR 610 in sentencing for multiple offences: R v Nykolyn [2012] NSWCCA 219 at [31]. It offers the benefit when sentencing for multiple offences of obviating the need to engage in the laborious and sometimes complicated task of creating a "cascading or 'stairway' sentencing structure" when the principle of totality requires some accumulation of sentences: R v Rae [2013] NSWCCA 9 at [43]; Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36 at [231]; Behman v R [2014] NSWCCA 239; R v MJB [2014] NSWCCA 195 at [55]-[57].

...

4.    It is still necessary in assessing the indicative sentences to have regard to the requirements of Pearce v The Queen [1998] HCA 57; 194 CLR 610. The criminality involved in each offence needs to be assessed individually. To adopt an approach of making a "blanket assessment" by simply indicating the same sentence for a number of offences is erroneous: R v Brown [2012] NSWCCA 199 at [17], [26]; Nykolyn v R, supra, at [32]; [56]-[57]; Subramaniam v R [2013] NSWCCA 159 at [27]-[29]; SHR v R, supra, at [40]; R v Lolesio [2014] NSWCCA 219 at [88]-[89]. It has been said that s 53A(2) is “clearly directed to ensuring transparency in the process of imposing an aggregate sentence and in that connection, imposing a discipline on sentencing judges”: Khawaja v R, supra, at [18].

...

6.    One reason why it is important to assess individually the indicative sentences is that it assists in the application of the principle of totality. Another is that it allows victims of crime and the public at large to understand the level of seriousness with which a court has regarded an individual offence: Nykolyn v R, supra, at [58]; Subramaniam v R, supra, at [28]. A further advantage is that it assists when questions of parity of sentencing as between co-offenders arise: R v Clarke, supra, at [68], [75].

...

8.   Specification of commencement dates for indicative sentences is unnecessary and is contrary to the benefits conferred by the aggregate sentencing provisions: AB v R, supra, at [10]. Doing so defeats the purpose of a court availing itself of the power to impose an aggregate sentence: Behman v R [2014] NSWCCA 239 at [26]. See also Cullen v R, supra, at [25]-[26].

...

40   The following further propositions emerge from the cases in relation to appellate review of aggregate sentencing exercises:

...

11. The indicative sentences recorded in accordance with s 53A(2) are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence: R v Brown, supra, at [17]; Nykolyn v R, supra, at [58]; PD v R [2012] NSWCCA 242 at [44]; R v Rae [2013] NSWCCA 9 at [32]-[33], [42]-[43]; Truong v R; R v Le; Nguyen v R; R v Nguyen, supra, at [218], [227]; Subramaniam v R, supra, at [28]; SHR v R, supra, at [40]; R v Clarke, supra, at [56]; Martin v R [2014] NSWCCA 124 at [47]; JL v R [2014] NSWCCA 130 at [17]; Stoeski v R, supra, at [43]; CL v R [2014] NSWCCA 196 at [53]-[55].

12.    Even if the indicative sentences are assessed as being excessive, that does not necessarily mean that the aggregate sentence is excessive: PD v R at [44],[82]; BJS v R [2013] NSWCCA 123 at [252]-[254].

13.    A principle focus of determination of a ground alleging manifest inadequacy or excess will be whether the aggregate sentence reflects the totality of the criminality involved: R v Brown, supra, at [37]; R v Rae, supra, at [42]-[46], [62], [69]. This Court is not in a position to analyse issues of concurrence and accumulation in the same way that it can analyse traditional sentencing structures: Truong v R; R v Le; Nguyen v R; R v Nguyen, supra, at [231]; Martin v R, supra, at [33]-[41].

...”

149. That statement of principle, insofar as it relates to the approach to be taken to a ground of appeal alleging manifest excess in the case of an aggregate sentence was considered by this Court in Kerr v R [2016] NSWCCA 218 at [114] where Bathurst CJ (with whom Hoeben CJ at CL and Price J agreed) said:

“114   As R A Hulme J pointed out in JM v The Queen [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40], the principal focus in the determination of a ground alleging manifest excess in the case of an aggregate sentence will be whether the sentence reflects the total criminality. Further, the indicative sentences recorded in accordance with s 53A(2) of the Sentencing Procedure Act are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence. However, the fact that the indicative sentences are excessive does not necessarily mean that the aggregate sentence is excessive.”

150. Implicit in the applicant’s submissions in relation to this ground of appeal is the proposition that extended joint criminal enterprise is a less serious or less culpable form of murder than that perpetrated by an aider and abettor or somebody involved in a joint criminal enterprise which results in murder. While the correctness of that proposition can be accepted as an abstract proposition, it is necessary to consider the individual facts of each case in order to assess the extent to which those facts inform a finding as to the moral culpability of a person convicted of murder based on extended joint criminal responsibility. It is also trite to observe that an analysis of the specific facts is necessary to assess the objective seriousness of the offending.

151. In this case his Honour made a number of important findings which informed his finding as to the objective seriousness of the offending even though it was offending based on extended joint criminal enterprise as distinct from a joint criminal enterprise. These findings were directed at the moral culpability of the applicant.

152. The findings were:

“118   The simple fact is that the offender’s version is not one that reduces his criminal culpability in any material respect. He probably did tell Evans “that is enough” but he continued his participation in the enterprise after both Ms Boldi and Mr Cini had been violently assaulted to the point where she was thought to be dead and Mr Cini was unconscious. He helped to search for money and other valuable property. He tied Mr Cini’s feet with duct tape to incapacitate him when it was thought he was regaining consciousness. He continued to be present as Evans was “beating the living shit out of” Mr Cini.”

“119   I am satisfied that he participated with full knowledge that the infliction of grievous bodily harm to one or more opponents was a high likelihood”.

“129   This offender was well aware that Evans was armed, that the premises were occupied and that grievous bodily harm could well be inflicted upon one or more occupants.”

“130   The fact that the offender did not specifically intend that such harm would be inflicted does not diminish the seriousness of the offence to any significant extent. On his own account the offender willingly complied with Evans’ request that Mr Cini be incapacitated by way of tying his feet together with duct tape, thereby rendering him more vulnerable. He contributed in that way at least to the gratuitous cruelty with which Mr Cini was treated. Further, the fact that he was well aware of the extreme violence that Evans was capable of in such circumstances (for example by having seen what he had done a month earlier to Mr Delamont) made his willing intrusion into the premises with Evans to satiate a desire for money a matter of very grave seriousness ...”

153. In the course of submissions, the following exchange took place between the Chief Justice and senior counsel for the applicant in which senior counsel for the applicant in effect conceded the above proposition:

“BATHURST CJ: To what extent do we take into account though the fact that the circumstances which the applicant had the foresight was in the context where, without putting it crudely, that Mr Evans was likely to bash anyone who came in his way, and bash them badly?

GAME: Yes, but your Honour is constrained by that finding at 129 and in a--

BATHURST CJ: When you say I’m constrained by it, that’s a conclusion the judge reached from the surrounding facts. He wasn't prepared to go so far as to say there was an intention to inflict grievous bodily harm or an intention to kill.

GAME: Or a foresight of death.

BATHURST CJ: Or a foresight of death. He says he didn’t kill anybody on the previous occasion. So I accept all of those things but why can't the judge, accepting there was an extended joint criminal enterprise, take into account when considering the moral culpability of this applicant what occurred before which would inform the degree of foresight he should have had when the second incident took place?

GAME: That’s how he - that’s the reasoning is all based on what happened on the previous occasion. So we’re not challenging that, your Honour, but we are saying that that is the finding and that is a far cry from an aider and abettor and it is a far cry from being a joint criminal enterprise to commit grievous bodily harm. It is to be remembered that he did at a certain point say “stop” or some words to that effect. So I’m not trying to argue your opinion but I am saying this is a quite significant point and that is this is far from square of a finding of extended joint criminal enterprise on the basis of foresight that, to see the words, “could well be inflicted grievous bodily harm” and to use your Honour the Chief Justice’s language, something like he knew what Evans was like. That’s the thing that informs the culpability. But it’s not like us extending joint criminal enterprise. It doesn’t extend past. It’s just how it’s made out in this case.

BATHURST CJ: And the way it is made out in this case informs the moral culpability of this offender.

GAME: Yes, no doubt at all. No doubt at all. ...” (AT.17.17-18.6)

154. It follows that if those matters to which I have referred at [152] do inform the finding as to the applicant’s moral culpability which has been accepted by senior counsel for the applicant then it was well open to his Honour to make the finding as to objective seriousness which he did, i.e. well above the mid range. It was also well open to his Honour to assess the indicative sentence for murder at 30 years with a non-parole period of 22 years and 6 months.

155. It should also be noted that in challenging the sentencing judge’s assessment of the objective seriousness of the murder offence, the applicant was challenging a fundamental discretionary step in the sentencing process. As was said by Spigelman CJ (with whom Simpson J agreed) in Mulato v Regina [2006] NSWCCA 282:

“37   Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour...”

156. In the same case, Simpson J said:

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

47    One consequence of this (which might aptly be termed a separation of powers) is the need for first instance judges to make clear findings of fact, and clear evaluations of such matters as objective seriousness. Absence of clarity in such findings may result in the need for the appellate court to undertake the task itself.”

157. It follows for the reasons set out above that the assessment of objective seriousness of the murder offence was well open to his Honour for the reasons which his Honour gave.

158. The applicant’s challenge to the sentence indicated for the murder offence failed to have adequate regard to the fact that that sentence cannot be looked at in isolation but as part of six separate indicative sentences which produced an aggregate sentence of 38 years imprisonment with a non-parole period of 28 years and 6 months. Accordingly, to succeed under this ground of appeal it is necessary to establish that the aggregate sentence is manifestly excessive and not focus on one of the indicative sentences (Beale v R [2015] NSWCCA 120 at [78]). Whether an error in relation to one of the indicative sentences affects the aggregate sentence is a significant issue in this case. Even if (which is not conceded) the indicative sentence for murder was manifestly excessive, that does not necessarily mean that the aggregate sentence was itself manifestly excessive (PD v R at [44]; SHR v R [2014] NSWCCA 94 at [40]-[42]).

159. It needs to be kept in mind that indicative sentences are not notionally accumulated in the same way as sentences are accumulated or made concurrent pursuant to s  55 of the Crimes (Sentencing Procedure) Act 1999 (NSW). This was made clear in Vaughan v R [2020] NSWCCA 3. There, Johnson J (with whom Macfarlan JA and R A Hulme J agreed) said:

“90   The only operative sentence imposed by the Court is the aggregate sentence under this statutory scheme. The Court is required to indicate sentences for the purpose of understanding the components of the aggregate sentence in general terms. However, the Court does not pass indicative sentences. The periods indicated by the sentencing Court have no practical operation at all.

91   The principles of sentencing concerning accumulation and concurrency at general law, as explained in Pearce v The Queen, have no application where an aggregate sentence is used by the sentencing Court. The principle of totality has operation with the sentencing Court to undertake that task bearing in mind totality: ZA v R (2017) 267 A Crim R 105; [2017] NSWCCA 132 at [68]-[84].”

160. In the same case, R A Hulme J said:

“117   The applicant's argument proceeds on a premise that the indicated sentence for one offence is "accumulated" upon the sentence for another offence. However, in setting an aggregate sentence, a judge does not need to assess a precise degree of accumulation at all. The judge simply determines the aggregate sentence by assessing what is appropriate to reflect the totality of criminality in all of the offending. Quite commonly, there are references to there being “notional accumulation” – but if such a reference is apt at all, sight should not be lost of the fact that it is truly something that is “notional”.

118 The fallacy in the applicant's argument as to the intention of Parliament in introducing the regime for aggregate sentencing in 2010 is evident from the fact that a sentencing court is only required to indicate the term of individual sentences that would have been imposed: s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act). It is necessary to also indicate the non-parole component of any such individual sentence only if the offence is one for which a standard non-parole period is prescribed: ss 44(2C) and 54B(4) of the Act. Accordingly, Parliament cannot have intended that the only modification to sentencing for multiple offences was to remove the requirement to include commencement and conclusion dates for individual sentences ...”

161. The sentencing judge was required to set indicative sentences for the individual offences but was not required to address how they were to be accumulated. That still allows for an indicative sentence to be relied upon to indicate manifest excess (or inadequacy) but it says nothing of how much the length of that indicative sentence formed part of the aggregate sentence. Accordingly, contrary to the applicant’s submission, it cannot be accepted that the indicative sentence for the murder offence formed 30 years of the aggregate sentence after which there was a further 8 years added that was derived from the indicative sentences for the remaining offences.

162. It needs to be kept in mind that leaving aside the indicative sentence for murder, the other five offences were very serious and after deduction for the discounts, collectively produced indicative sentences of 51 years.

163. It follows that the emphasis on the indicative sentence for murder by the applicant is largely misconceived. The extent of the concurrency of the indicative sentences which produced the aggregate sentence is simply not known. Given the serious offending in all six counts, and the lengthy indicative sentences, the level of notional concurrency must have been high and the contribution of the indicative sentence for murder to the aggregate sentence must have been considerably less than 30 years. Put another way, it would be necessary to consider the criminality displayed in all of the offences committed by the applicant in the two home invasions in order to assess whether the aggregate sentence is manifestly excessive. That has not been done by the applicant. Rather, the approach of the applicant has been to focus almost entirely upon the sentence indicated for the murder offence.

164. It also needs to be kept in mind that the context for the offending was not just two home invasions but rather two very serious instances of such offending which has traditionally been regarded as very serious by the courts. In Hogarth v The Queen [2012] VSCA 302; 37 VR 658 at [1] the Court (Maxwell P, Neave JA and Coghlan AJA) referred to a typical home invasion:

“Home invasion is a particularly nasty form of criminal conduct. Typically a home invasion involves multiple offenders entering a person’s home carrying weapons intending to rob or injure the victims in revenge for some actual or perceived wrong. The entry of the offenders – acting in anger and often fuelled by alcohol – is itself a terrifying experience for the householders irrespective of what may occur after entry.”

Significantly, these two home invasions were not typical in that they targeted people known to the offenders who would have money on the premises, such money having been lawfully obtained.

165. The applicant relied upon three comparable cases which were closely analysed together with a schedule of cases which set out the facts of offences based on extended joint criminal enterprise. The limitations upon using comparable cases to make out a claim of manifest excess are well known. Hili and Jones set out the limitations on the use that can be made of so called comparable cases. What is to be sought is consistency in legal principle by the treatment of like cases alike, and different cases differently (Hili and Jones at [47]-[49]). As was pointed out in that case, approving what was said by Simpson J in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 at [303]-[305], a history of sentencing can reveal a range but does not establish that the range is the correct range. Passed sentences can stand as a yardstick against which a sentence can be measured but it is only by examination of the whole of the circumstances that have given rise to the sentence that any unifying principle may be discerned: Hili and Jones at [54]; see also Barbaro at [27]-[28].

166. There were significant differences between the facts of this matter and the three “comparable” cases relied upon by the applicant. In Evans the objective seriousness of the offending was assessed to be in the mid-range of objective seriousness “albeit that such a range was a very wide one” (Evans at [66]).

167. Two offences of aggravated breaking, entering and stealing, which related to two further and separate home invasions were taken into account on a Form 1. The applicant in Evans had a deprived upbringing. His intellectual ability was low and he was diagnosed with some mental difficulties. The sentencing judge found that the offender's moral culpability was reduced and that there should be less emphasis given to general deterrence, retribution and denunciation. A countervailing feature was that there was a need for personal deterrence and protection of the community.

168. By way of contrast in this matter, the applicant was sentenced for six very serious offences including the murder offence. The finding by the sentencing judge of reduced moral culpability because of his troubled upbringing is to be contrasted with the applicant’s upbringing which was loving and supportive. Those significant differences adequately explain the differences between the sentences imposed on Evans and this applicant.

169. In Swan the sentencing judge found that the offence was a gratuitous and cowardly attack upon a vulnerable victim and that the objective seriousness was just above the mid-range of seriousness. Swan also had a traumatic childhood and background which reduced his moral culpability. There is nothing in Swan which would indicate that the sentence in this matter was manifestly excessive. This is particularly so when one has regard to the fact that the applicant in this matter was being sentenced not only for the murder offence but for five other very serious offences.

170. In Kaine the offender had been sexually abused as a child and had an “over valued preoccupation about paedophiles”. The sentencing judge reduced the emphasis on general deterrence because he considered that “something [was] not quite right with the offender mentally...” Once again the difficulty with comparing the sentences imposed is that Kaine had a troubled upbringing and was sentenced for only one offence.

171. The applicant also relied upon a table of cases setting out the details of offenders who had been sentenced for murder on the basis of extended joint criminal enterprise. These offences covered a wide range of circumstances which gave rise to a number of different objective and subjective issues. What differentiated the applicant’s case in these proceedings from those in the plaintiff’s schedule, is the applicant’s knowledge of Evans’ violent tendencies and the high likelihood of grievous bodily harm occurring as a result.

172. The schedule of comparable cases, although informative, did not provide a ceiling above which the indicative sentence for the murder of Mr Cini is located. Many of the cases involved an offender who only contemplated the possibility of his accomplice intentionally causing grievous bodily harm (Borg v R [2019] NSWCCA 129 (Borg). In R v Marwan Jubraeel [2014] NSWSC 838 (Jubraeel); and R v Safar [2014] NSWSC 376 the offender only contemplated that a gun might be used just before it was fired. In Jubraeel; R v Graham Keys Smith [2012] NSWSC 1565 and Regina v AA, AC, SS, Tatchell and Wildsmith [2010] NSWSC 495 the objective seriousness of the offenders was below the mid-range.

173. The facts concerning the offender MA in R v MA; R v Byquar; R v Ramos [2012] NSWSC 1527 are similar. MA had committed home invasions with the same gang before the final one led to the death of an occupant who confronted them. MA did not strike the deceased. MA was aged 17 and 8 months at the time of the murder and so was still a juvenile. Despite the seriousness of the offence, his age had to be taken into account as a discounting factor. MA was also at the bottom of the gang’s hierarchy.

174. The offender in R v Rolfe [2017] NSWSC 1393 (Rolfe) participated in a “bikie murder”. He accompanied two others while armed, anticipating that the intended victim would suffer a “touch up” which could include the infliction of grievous bodily harm. Instead one of his accomplices, who was also armed, shot and killed the victim. The sentencing judge found the objective seriousness to be well above mid-range (Rolfe at [147]) and the starting point to be 28 years. Importantly, the offender had given “exceptional” assistance and the total value of his plea and assistance was assessed at 50 per cent. Although armed, Rolfe did not expect the shooting to occur. That can be contrasted with the knowledge the applicant had of Evans’ use of the pick handle at Medway and his knowledge of what was likely to occur at Badgerys Creek.

175. Generally speaking, the factual circumstances of the offending set out in the schedule are very different to those in this matter. Like the matters of Evans, Swan and Kaine, the offenders in the schedule were primarily charged with one offence only, not six offences which were well above the mid-range of objective seriousness such as we have here. Given their diverse facts and subjective features, the cases on the schedule do not establish a range of sentences against which the offending in this matter can be assessed. Even if the indicative sentence for the offence of murder in this case is manifestly excessive, given the remaining very serious offences and the substantial sentences indicated for them, the aggregate sentence is not manifestly excessive.

176. This ground of appeal should be dismissed.

Ground 2 – The sentencing judge erred in his approach to the subject of special circumstances and in failing to find special circumstances

177. His Honour dealt with the question of special circumstances as follows:

“174   It was submitted that I should find that there are special circumstances that would warrant enlarging the parole period of the sentence at the expense of the non-parole period. I have considered that submission but have concluded that the period of parole that will be allowed for if the usual ratio is adopted would be appropriate in all of the circumstances.”

178. The applicant submitted that in accordance with the decision of this Court in R v Simpson [2001] NSWCCA 534 a consideration of whether or not to reduce the non-parole period does not depend only upon the extent to which a non-parole period may be reduced to allow more time to be spent in rehabilitating the offender. The applicant submitted that that was only one aspect of special circumstances and that his Honour erred in focusing solely on that issue and not on what the applicant considered was the most important issue. The applicant submitted that the most important issue for consideration when considering special circumstances, is to determine the minimum period which an offender should serve in custody given the nature and seriousness of the offending. The applicant submitted that his Honour had erred in restricting his consideration purely to questions of whether a reduction in the non-parole period would better enable the offender to be rehabilitated.

179. The applicant submitted that had his Honour turned his mind to the correct question, i.e. what was the minimum time that an offender should spend in custody, he would have reduced the non-parole period accordingly. This was because the applicant was a young man who had never been in custody before, who had a serious drug addiction, was mightily contrite and who was clearly remorseful.

180. The applicant submitted that it was entirely unrealistic to focus purely upon questions of rehabilitation when such a long sentence was involved. This was because it was impractical to try to predict an offender’s rehabilitation needs 25 years into the future.

181. In written submissions, the applicant submitted that his Honour was in error because there was nothing in his reasons which revealed his approach to any factors relevant to a consideration of special circumstances. In that regard, the applicant referred to questions of youth, his first time in custody and insight into the offending which were matters which were actually put to the sentencing judge. The applicant also referred to matters of contrition and remorse, prospects of rehabilitation and the notional accumulation inherent in the aggregate sentence as being matters which his Honour should have considered in the context of special circumstances but which he did not. The applicant submitted that had his Honour properly considered those matters, he would have reduced the non-parole period accordingly.

Consideration

182. The issue of special circumstances was only briefly raised in the sentence proceedings. The submissions made on behalf of the applicant were:

“In the circumstances the offences need to be marked with substantial sentences as overall terms but there are special circumstances in my submission. His youth. Horrendous offences I know but first gaol experience and it will continue for many years, decades and not a mitigating factor I know not that what I know matters but by way of submission but an explanation has been offered to you as to how he found himself in that place and through choices made to abuse methamphetamine – I won’t say uncontrollable – choices made to abuse methamphetamine but an insight as to how he found himself there and the choices that he made and the wrongness that he did. That your Honour would be comfortable in finding special circumstances so that there is a variation and that there is a lengthy period on parole where he can genuinely be a constructive member of the community.” (AB 892, T.201.1-.13)

183. Significantly, nothing further was put in the sentence proceedings and in particular, nothing was said concerning contrition and remorse, prospects of rehabilitation or notional accumulation which was inherent in the aggregate sentence in the context of whether his Honour should find special circumstances.

184. The effect of the judgments in R v Simpson is that a consideration of special circumstances is not to be limited purely to questions of rehabilitation. The Court found that there was a wide range of considerations which could be taken into account when considering whether to make a finding of special circumstances. I do not understand R v Simpson to be authority for the proposition that a sentencing judge must look for matters which could give rise to special circumstances in the absence of any specific submission being made to him or her on behalf of an offender. The effect of R v Simpson and subsequent cases is that it is not incumbent upon a sentencing judge to look for matters which might amount to special circumstances in the absence of his or her attention being drawn to them. In those instances, the approach of this Court has been that just because it is open to a judge to make a finding of special circumstances, does not mean that the judge is in error in not doing so in the absence of any submission to the effect that he or she should take one or all of those matters into account.

185. In this case, contrition and remorse were considered by his Honour specifically under that heading. His Honour was not asked to consider those matters again in the context of special circumstances. Similarly, his Honour specifically considered the prospects of rehabilitation and determined that they were positive but not in the context of special circumstances. In relation to the question of notional accumulation in the aggregate sentence, this matter was not raised with his Honour in the sentencing proceedings at all. In those circumstances, I have concluded that his Honour did not err in not considering those matters in the context of special circumstances when he was not asked to do so.

186. In relation to the matters which were put to his Honour as giving rise to special circumstances, they were matters which his Honour did specifically refer to in the sentence judgment but not in the context of special circumstances. When they were raised before him as giving rise to special circumstances, his Honour’s finding was as set out at [177] and in particular, the final sentence:

“I have considered the submission but have concluded that the period of parole that will be allowed for if the usual ratio is adopted, would be appropriate in all the circumstances”.

187. I read that as an indication that his Honour had taken into account the statutory non-parole period as the minimum period of incarceration necessary to reflect the criminality of the offending and the applicant’s subjective case. I am fortified in that conclusion by the concluding words in [166] which was dealing with the extent of the discounts to be allowed in favour of the applicant. Relevantly, his Honour there said:

“Any greater allowance would render the resulting sentences unreasonably disproportionate to the nature and circumstances of the offences”.

188. His Honour clearly had in mind at this point in his sentence judgment the minimum period of incarceration necessary to reflect the seriousness of the offending conduct.

189. This ground of appeal has not been made out.

190. Accordingly, the orders which I propose are:

1. Grant leave to appeal.

2. Dismiss the appeal.

191. HARRISON J: I agree with Hoeben CJ at CL.

**********

I certify that this and the 51 preceding pages are a true copy of the reasons for judgment herein of the Honourable Justice Hoeben, Chief Judge at Common Law and of the Court.

Morna Lynch

Associate Date: 29 May 2020

Decision last updated: 07 September 2020