Tuite v R

[2018] NSWCCA 175

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Tuite v R [2018] NSWCCA 175
Hearing dates:	18 July 2018
Date of orders:	10 August 2018
Decision date:	10 August 2018
Before:	Hoeben CJ at CL at [1]; R A Hulme J at [109]; Button J at [120]
Decision:	(1) Leave to appeal granted. (2) Appeal dismissed.
Catchwords:	CRIMINAL LAW – sentence appeal – four counts of aggravated break enter and steal, one count of specially aggravated detain for advantage and one count of aggravated enter dwelling with intent – whether sentence manifestly excessive – young offender – dysfunctional background – whether totality principle properly applied – likelihood of institutionalisation – whether sentence properly characterised as “crushing” – all relevant principles applied by sentencing judge – challenge essentially to exercise of sentencing discretion – no House v R [1936] HCA 40; 55 CLR 499 error disclosed – leave to appeal granted but appeal dismissed.
Legislation Cited:	Crimes Act 1900 (NSW) – ss 86(2), 86(3), 109(2), 111(2),112(2), 117 Criminal Appeal Act 1912 (NSW) – s 5(1)(c)
Cases Cited:	Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 Chamseddine v R [2017] NSWCCA 176 Clinton v R [2014] NSWCCA 320 Dang v R [2014] NSWCCA 47 Fajloun and Fajloun v R [2011] NSWCCA 41 Haines v R [2012] NSWCCA 238 Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505 Hughes v R [2015] NSWCCA 330; (2015) 93 NSWLR 474 Hughes v R [2018] NSWCCA 2 JM v R [2014] NSWCCA 297 JT v R [2012] NSWCCA 133 Kresovic v R [2018] NSWCCA 37 KT v R [2008] NSWCCA 51; 182 A Crim R 571 Ma v R; Pham v R [2007] NSWCCA 240 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 R v Engert [1995] 84 A Crim R 67 R v Hearne [2001] NSWCCA 37; 124 A Crim R 451 R v MAK, R v MSK [2006] NSWCCA 381; 167 A Crim R 159 R v Meatuai [2016] NSWCCA 42 RG v R [2017] NSWCCA 60 Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 77 Vandeventer v R [2013] NSWCCA 33 Yang v R [2012] NSWCCA ZA v R [2017] NSWCCA 132
Category:	Principal judgment
Parties:	Michael Tuite – Applicant Regina – Respondent Crown
Representation:	Counsel: Mr H White – Applicant Mr F Veltro – Respondent Crown   Solicitors: J Krajcik – Applicant Solicitor for Public Prosecutions – Respondent Crown
File Number(s):	2013/075986;2013/076001;2013/136192
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: [2018] NSWCCA 175 Date of Decision: 26 February 2016 Before: Arnott SC DCJ File Number(s): 2013/075986; 2013/076001; 2013/136192

Judgment

1. HOEBEN CJ at CL:

Offences and sentence

The applicant seeks leave, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 to appeal against the sentence imposed upon him by his Honour Judge Arnott SC on 26 February 2016 at the Parramatta District Court.

2. The applicant was sentenced as follows:

Indictment 1 – verdicts of guilty after trial

Count 1 – Aggravated break, enter and steal (cause actual bodily harm) on 11 March 2013 at Sans Souci contrary to s 112(2) Crimes Act 1900 which carries a maximum penalty of 20 years imprisonment and a standard non-parole period of 5 years.

Count 2 – Specially aggravated detain for advantage at Sans Souci contrary to s 86(3) Crimes Act which carries a maximum penalty of 25 years imprisonment.

Indictment 2 – Plea of guilty in the District Court on 14 November 2014 (committed for trial on 27 February 2014)

Count 1 – Aggravated break, enter and steal (know person was present) on 10 March 2013 at Dundas contrary to s 112(2) Crimes Act which carries a maximum penalty of 20 years imprisonment and a standard non-parole period of 5 years.

Court Attendance Notices – pleas of guilty in the Local Court on 27 February 2014

H 50649527/5 – Aggravated break, enter and steal (knowing persons present) on 12 March 2013 at Breakfast Point contrary to s 112(2) Crimes Act which carries a maximum penalty of 20 years imprisonment with a standard non-parole period of 5 years.

H 50649527/8 – Aggravated enter dwelling with intent (knowing person was present) on 12 March 2013 at Breakfast Point contrary to s 111(2) Crimes Act which carries a maximum penalty of 14 years imprisonment.

H 50649527/9 – Larceny on 12 March 2013 at Breakfast Point contrary to s 117 Crimes Act which carries a maximum penalty of 5 years imprisonment.

H 50649527/7 – Aggravated commit serious indictable offence and break out (inflict actual bodily harm) on 12 March 2013 at Breakfast Point contrary to s 109(2) Crimes Act 1900 which carries a maximum penalty of 20 years imprisonment.

3. The applicant was sentenced to an aggregate sentence of imprisonment for 14 years, commencing 12 March 2014 with a non-parole period of 9 years expiring 11 March 2023.

4. The indicative sentences were:

Count 1 on first indictment (s 112(2) at Sans Souci) – 10 years imprisonment with a non-parole period of 6 years and 3 months.

Count 2 on first indictment (s 86(3) at Sans Souci) – 4 years and 6 months imprisonment.

Count 1 on second indictment (s 112(2) at Dundas) – 5 years imprisonment with a non-parole period of 3 years and 3 months.

S 112(2) at Breakfast Point (Mr To) – 3 years and 9 months imprisonment with a non-parole period of 2 years and 6 months.

S 112(2) at Breakfast Point (Mrs Haertsh) – 3 years imprisonment.

S 117 at Breakfast Point (Mrs Haertsh) – 2 months imprisonment.

S 109(2) at Breakfast Point (Mr Scotman) – 4 years imprisonment with a non-parole period of 2 years and 6 months.

5. A Notice of Intention to Appeal, dated 11 March 2016, was filed on 15 March 2017 and has been subsequently extended. On 1 May 2018 a Notice of Application for Leave to Appeal was filed with submissions.

6. The applicant relies upon a single ground of appeal – the sentence imposed was manifestly excessive.

Factual background

7. In respect of the verdicts of guilty after trial to the two counts on the first indictment (the Sans Souci offences) his Honour found facts consistent with the jury’s verdicts. No challenge has been made to his Honour’s fact finding in that regard.

8. In the early hours of 11 March 2013 the applicant and his co-offender, Christopher Chandler, broke into a house in Sans Souci by removing a fly screen from a kitchen window. A 60 year old woman, Mrs Wu, was alone and asleep in bed, her husband being interstate at the time, when voices woke her. She was at the bedroom door when she saw the co-offender standing in the hallway at the top of the stairs. He ran at her and commenced punching her head and face and pushing her. When she fell to the ground he kicked her face, upper body, neck and arms. He was quickly joined by the applicant who also punched and kicked Mrs Wu.

9. The co-offender gagged her mouth tightly with one of her husband’s ties and stuffed one of her dresses in her mouth. He blindfolded her with her husband’s sleeping mask, tying it so tightly that she was in pain. She begged the offenders to loosen it but they did not respond to her.

10. The victim heard ransacking noises around her and was eventually able to manoeuvre the eye mask so she could see what was going on. Both offenders wore gloves but nothing covering their faces or heads. Drawers were pulled out and tipped onto the floor. At one point the applicant asked her to tell him where the safe was “or I’ll kill you bitch”. She replied “What safe?” and offered to get her purse but he did not respond. After about half an hour one of the offenders took her into the study, forced her into a chair and her hands were tied with electrical cord.

11. The offenders found keys to two Mercedes Benz cars owned by Mrs Wu and her husband and drove off in them. The applicant was in the charcoal Mercedes and the co-offender was in a silver Mercedes. When Mrs Wu heard the cars being driven away she was able to free herself from the chair and dialed triple 0 at 6.03am.

12. The value of the property stolen was substantial. The two cars were worth $225,000 and the property stolen from the house was worth about $213,000. It included a significant amount of jewellery, watches, expensive pens, a handbag, a wallet containing credit cards, a mobile phone and vintage bank notes.

13. Between the time the offenders drove away and their arrest at 11pm that night they drove to Granville where they abandoned the silver Mercedes and drove to Sturt Street, Telopea where they left the charcoal Mercedes, and changed their clothes. Police later recovered DNA matching the applicant’s DNA on a handbag belonging to Mrs Wu found on the road near the abandoned silver Mercedes and on the steering wheel of the charcoal Mercedes.

14. At about 11pm on 11 March 2013 a taxi was called to pick up people from a block of units at 15 Sturt Street. The two offenders entered the taxi. Police stopped the taxi in South Wentworthville and arrested the two offenders. A search of the co-offender located $12,107 hidden down the front of his pants and he had an imitation Rolex watch, a gold coloured chain and a gold ring with 18 stones, all of which had been stolen during the break in, as well as other property.

15. When the applicant was apprehended by police he was in the process of secreting a sunglasses case under his seat which contained $13,667. He also had a bum bag containing $60 in vintage bank notes and a key to the charcoal Mercedes.

16. The injuries to Mrs Wu included swelling to her left eye, swelling and bruising to both sides of her face, cheeks and her tongue. She had multiple tender areas to her scalp and an inch-long laceration to the left side of her neck. She had numbness to all fingertips and bruising to both arms and shoulders. She was admitted to St George Hospital that day. A CT scan revealed a teardrop fracture of the C3 and a sprain of spinal ligaments from C4/5 down to C6/7. She was hospitalised for a week and then transferred to Calvary Hospital for rehabilitation from 19 March to 23 April 2013.

17. Mrs Wu’s victim impact statement disclosed that she suffers from post-traumatic stress disorder with nightmares, flashbacks, disturbed sleep and waking in the early morning around the time she was attacked, and anxiety. She has chronic neck pain and requires anti-inflammatory medication. She was absent from work for a year. She and her family moved from the house to live with their son. She is frightened of being alone, doing everyday tasks such as going for a walk and shopping and has lost her independence.

18. His Honour found that the s 112(2) offence fell above the middle of the range of objective seriousness for offences of this kind. In respect of the s 86(3) offence his Honour said “The seriousness of this offence is clearly high”.

19. For each of the offences his Honour found that general and specific deterrence were significant.

20. On the second indictment was one count contrary to s 112(2) committed at Dundas on 10 March 2013. The applicant was committed for trial from Central Local Court on 27 February 2014. He pleaded guilty in the District Court at Sydney on 14 November 2014.

21. The factual background to that offence was that Maria and Andre Jasadipura and their seven year old son went to bed at approximately 11.30pm in their house at 15 Kariwara Street, Dundas. At about 7am on 10 March 2013 the victims woke and discovered that property had been taken. A fly screen on one of the windows had been removed. Fingerprint analysis revealed the applicant’s fingerprints on the frame of the fly screen that had been removed.

22. The property that had been taken included an Apple iPad 2 in a black and grey case, a notepad computer, a cream coloured Oroton handbag, a black Guess wallet which contained a number of cards in Maria Jasadipura's name, a Samsung Galaxy notepad in a brown case, a man’s black leather wallet containing about $100 in cash and cards in Andre Jasadipura's name and a brand new Zippo lighter. Also taken were two sets of car keys belonging to the victims and each of the cars were taken with those keys, being a gold Ford Escape and a grey Volkswagen Golf.

23. At about 2pm on 10 March 2013 a witness observed two males and two females exiting a gold Ford Escape after parking it in a carpark at Grove Street, Merrylands. The witness contacted police, who identified the vehicle as stolen and arranged for it to be towed. On 11 March 2013 the applicant, with the co-offender Chandler, was stopped and searched by police and during the search, a Zippo lighter which was subsequently identified as belonging to Andre Jasadipura, was found. At about 2pm on 13 March 2013 police located the stolen Volkswagen Golf in Merrylands and found that it had sustained significant damage to the front and sides. The applicant was arrested and cautioned in respect of this offence on 2 May 2013 at Silverwater Gaol. He denied the offence and said that his fingerprints were on the fly screen because he “was probably stoned or something and wandered around it”.

24. His Honour found that the objective seriousness of this offence fell slightly below mid-range.

25. The factual background to the four charges to which the applicant pleaded guilty in the Local Court on 27 February 2014 was as follows.

H 50649527/5 – s 112(2) – Aggravated break, enter and steal (knowing persons present)

26. Between 4 and 4.45pm on 12 March 2013 Mr To and his son were upstairs in their two story townhouse at Breakfast Point when the applicant entered through a closed but unlocked security door. He stole a Louis Vuitton handbag containing a wallet with $435 cash inside it, a Mercedes car key, a garage remote control and a set of house keys. The applicant discarded the wallet on the street but kept the cash. A local resident found the wallet. Later the handbag and the cash were located.

27. His Honour found that the objective gravity of the offence “fell at a mid-point between the lower end of the range and the middle of the range for offences of this type”.

H 50649527/8 – s 111(2) – Aggravated enter dwelling with intent

H 50649527/9 – s 117 – Larceny

28. At about 4.50pm on 12 March 2013 Ms Carol Haertsh was in her ground floor unit at Breakfast Point working in her dining room with the sliding glass doors open. She left the room for a minute and the applicant entered the dining room through open doors from the rear courtyard. He took a set of keys that were on the table. Mrs Haertsh came back into the room and challenged the applicant as to what he was doing in the unit. He walked past her towards the spare room. Mrs Haertsh went to the back gate and alerted a neighbour who called the police. The applicant left the unit a few minutes later.

29. His Honour found that the seriousness of the s 111(2) offence to be “at a midpoint between the lower end of the range and the middle of the range of seriousness” for offences of this type. The larceny was “not a trivial instance” but a “direct attack upon the security of the person and property the law exists to protect”.

H 50649527/7 – s 109(2) – Aggravated commit serious indictable offence and break out (inflict actual bodily harm)

30. At about 5.10pm on 12 March 2013 Mr Paul Scotman was in his home at Breakfast Point when he heard a bang from his rear glass sliding door. He went to his lounge room to investigate and saw the applicant grabbing items from the kitchen bench top.

31. Mr Scotman challenged the applicant, who advanced towards him telling him to get out of his way or he would be bashed. The applicant punched Mr Scotman to the right side of his forehead causing him immediate pain. The two men grappled during which Mr Scotman was punched numerous times to his body causing him pain. Mr Scotman forced the applicant into the communal hallway where the applicant dropped Mr Scotman’s car keys that had been in his hand. Mr Scotman then released the applicant from a headlock and the applicant swung two punches at Mr Scotman which missed. The applicant then grabbed Mr Scotman’s shirt, around the collar area and pulled it over his head.

32. The applicant exited the unit but was discovered trying to hide behind a garden bed. Another local resident assisted Mr Scotman to block the applicant’s escape route until police arrived. When police arrived the applicant ran but was captured and arrested.

33. The applicant was searched and found with cash which he had stolen from Mr To’s premises.

34. Mr Scotman sustained deep bruising to one side of his chest, bruising to the side of his back and swelling and bruising to the right side of his forehead and eye area.

35. His Honour assessed the objective seriousness of the offence at slightly lower than the middle of the range of seriousness for offences of this type.

36. The applicant was taken into custody on 12 March 2013. He remained in custody until 29 May 2013 when he escaped. He was not recaptured until 14 June 2013. While he was an escapee, he committed further offences for which he was sentenced on 7 March 2014 in the Parramatta Local Court namely – Resist officer in the execution of duty, goods in custody, 10 counts of dishonestly obtain property by deception, police pursuit, take and drive conveyance without consent of owner and two counts of being carried in a conveyance without the consent of the owner and escape/attempt to escape from lawful custody.

37. On 7 March 2014 the application was sentenced in the Parramatta Local Court for these offences and received an overall sentence of 3 years, commencing 14 June 2013 with a non-parole period of 2 years and 6 months expiring 13 December 2015. On 20 March 2014 he was sentenced to a concurrent fixed term for four goods in custody offences.

38. In October 2014 at the Blacktown Local Court the applicant was sentenced to a fixed term of imprisonment of 9 months, commencing 9 October 2014 and expiring 8 July 2015 for possessing a mobile phone and a SIM card while in prison.

Sentence proceedings

39. His Honour made the following findings in relation to the applicant’s subjective case.

40. The applicant was aged 18 years and 10 months when the offences were committed and was 21 at the time of sentence. He had an extensive criminal history extending back to May 2007. In 2011 he was sentenced in the District Court for armed robbery with an offensive weapon causing wounding and was sentenced to 4 years and 6 months imprisonment with a non-parole period of 2 years. The current offences were all committed while the applicant was subject to conditional liberty.

41. The applicant did not give evidence on sentence but relied upon a psychologist’s report of Mr Borenstein dated 20 August 2015 and a psychological assessment report dated 8 July 2011 by Dr Emma Collins.

42. His Honour accepted the account of his upbringing which the applicant provided to the psychologists and found that the applicant grew up in a dysfunctional family dynamic and suffered significant emotional deprivation. He was introduced to seriously harmful drugs at a young age. His parents repeatedly separated. His father abused alcohol and smoked cannabis heavily and both parents were stabilised with methadone. His mother had a number of brain operations to remove tumours when he was young. He was placed into foster homes but because he would abscond from placements to go stealing with his brother when aged nine years old, he was returned to his mother. He was suspended from school a number of times for fighting and being defiant with his teachers. He attended an alternative school for children with behavioural problems but ultimately left school some time in year 8. He had completed years 9 and 10 while in custody. The applicant had never engaged in any real employment.

43. His Honour noted that the applicant’s serious offences were committed to supply his drug habit. It was not clear when the applicant commenced using drugs but he was smoking cannabis from about the age of 10 and at the age of 14 was using it heavily and intermittently abusing amphetamines. He was also binge drinking. His Honour concluded that the applicant’s most problematic drug was crystal methamphetamine (ice). The applicant had suffered from drug-induced psychosis which resolved when using anti-psychotic medication.

39. His Honour found that the applicant’s moral culpability for his offending was reduced because he had been introduced to seriously harmful drugs at a young age and grew up in an environment of significant emotional deprivation.

40. Despite the applicant’s plea of guilty to some of the offences, his Honour found that he had not demonstrated any contrition or remorse. His Honour regarded the applicant’s pleas of guilty as “equally consistent with the strength of the Crown case in these matters and the advantages that pleas of guilty bring with them”.

41. His Honour found that the applicant’s prospects of rehabilitation were poor despite his comparatively young age. His Honour said “the prospects of rehabilitation and the unlikelihood of his re-offending at this stage are poor” (Sentence judgment 20.5). His Honour based this finding on the applicant’s criminal history and because he had not meaningfully engaged in any attempt to address his drug and psychological issues. His Honour noted that his past attendance at residential rehabilitation programs had been short-lived.

42. His Honour found that the applicant’s record of repeat similar offending required that more weight to be given in the sentencing exercise to retribution, personal deterrence and the protection of the community.

The appeal

48. The applicant submitted that when regard was had to his criminal history and this sentence, at the expiration of the non-parole period (when he would be aged 28) he would have spent all but 14 months in custody since he was aged 14 years. The applicant submitted that this raised significant issues in relation to institutionalisation. The applicant noted that the issue of institutionalisation had been raised by both psychologists. The applicant did, however, concede that the parole period of 5 years specified in the aggregate sentence did have regard to the issue of institutionalisation even though his Honour did not specifically refer to it.

49. The applicant summarised the basis for the appeal in his written submissions as follows:

“18   It is submitted that the aggregate sentence of 14 years imprisonment backdated to 12 March 2014 was manifestly excessive. The argument is that notwithstanding the seriousness of the offences, considering the applicant's youth, the factors referred to in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 and the principles of totality of sentencing, the sentence was manifestly excessive.”

50. The applicant submitted that although his Honour acknowledged his youth, he did not give it adequate weight. The applicant submitted that the law recognised the potential for the cognitive, emotional and/or psychological immaturity of young persons to contribute to their breach of the law. It was for that reason that allowance was made for an offender’s youth, not just their biological age. The applicant submitted that the weight to be given to the fact of an offender’s youth did not vary depending upon the seriousness of the offence. The applicant submitted that where the immaturity of an offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence were committed by an adult. The applicant relied upon the statement of those principles in R v Hearne [2001] NSWCCA 37; 124 A Crim R 451 at [24]-[25].

51. The applicant relied upon the observations of McClellan CJ at CL in KT v R [2008] NSWCCA 51; 182 A Crim R 571 at [22]:

“22    The principles relevant to the sentencing of children have been discussed on many occasions. Both considerations of general deterrence and principles of retribution are, in most cases, of less significance than they would be when sentencing an adult for the same offence. In recognition of the capacity for young people to reform and mold their character to conform to society’s norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation. These principles were considered in R v GDP (1991) 53 A Crim R 112 at 115-116 (NSWCCA), R v E (a child) (1993) 66 A Crim R 14 at 28 (WACCA) and R v Adamson (2002) 132 A Crim R 511; [2002] NSWCCA 349 at [30].”

52. Having made those submissions, the applicant acknowledged that the emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders may be moderated when the young person has conducted him or herself in a way an adult might conduct him or herself and has committed a crime of violence or considerable gravity. He also acknowledged that the weight to be given to considerations relevant to a person’s youth diminished the closer the offender approached the age of maturity. In that regard, the applicant accepted that:

“22   In relation to the circumstances of these offences, it is acknowledged that the applicant conducted himself in the way an adult might conduct himself and has committed a crime of violence of considerable gravity.”

53. Despite that concession, the applicant submitted that although the need for his rehabilitation might be diminished by the need to protect society, the general principles relating to the sentencing of young offenders should have some application.

54. In relation to the principles set out in Bugmy v The Queen [2013] HCA 37; 249 CLR 571, the applicant accepted that his Honour had referred in detail to his unstable and neglectful upbringing. Nevertheless, the applicant submitted that although his Honour took those factors into account when imposing sentence, his Honour had failed to give them adequate weight when assessing the moral culpability of his conduct.

55. The applicant submitted that his Honour had not adequately taken into account the principle of totality. He submitted that chronologically the offences occurred within a short timeframe, i.e. the Dundas offence occurred during the evening of 9 March 2013, the Sans Souci offences occurred on the morning of 11 March 2013 and the three other offences, which occurred at Breakfast Point, occurred within approximately one hour and 15 minutes on 12 March 2013. The applicant submitted that in those circumstances the offending should have been treated by his Honour as a continuing course of the same type of criminal behavior over the period. All the offences involved breaking into premises with limited planning, regardless of whether the premises were occupied and with the intention of stealing property to support his drug addiction. It was only in circumstances where the victim offered physical resistance that the applicant used violence.

56. The applicant referred to the common elements in the Sans Souci offences, in particular, the fact that an aggravating feature in both offences was that they were committed in company and that bodily harm was inflicted. The applicant submitted that although the specially aggravated detain for advantage offence was a separate stand alone offence, its common elements were included in the offence of aggravated break enter and steal. The applicant submitted that the four factors identified by his Honour as indicating the seriousness of the specially aggravated detain for advantage offence, i.e. the vulnerability of the victim being terrorised over a sustained period, the victim being tied up, gagged and treated roughly were factors which were common to the findings that were made by his Honour in relation to the seriousness of the aggravated break enter and steal offence. The applicant submitted that although the aggravated break enter and steal offence was a separate and distinct offence to the specially aggravated detain for advantage offence, there should have been a greater element of concurrency in relation to them.

57. Similarly, in relation to the Breakfast Point offences, the applicant noted that the aggravated enter with intent to steal and the offence of larceny involved the same set of circumstances. The intention in each offence was the same, i.e. to steal the car keys. The applicant submitted that as with the Sans Souci offending, there should have been a greater element of concurrency in relation to the sentences imposed for those offences.

58. The applicant submitted that leaving aside the issue of whether the indicative sentence of 10 years imprisonment was excessive for the Sans Souci aggravated break enter and steal offence, the indication of an additional 4 year 6 month sentence in relation to the other offences was excessive. The applicant submitted that overall, the aggregate sentence which was imposed exceeded what was appropriate for the course of criminal conduct engaged in over the period.

59. The applicant also submitted that his Honour did not give reasons in relation to the accumulation of sentences as to how the sentences were accumulated. Implicitly, although not expressly, the applicant asserted that this failure involved error.

60. As part of his submissions on totality, the applicant submitted that the aggregate sentence was a “crushing sentence”. On that issue, the applicant relied upon the observation by the Court in R v MAK, R v MSK [2006] NSWCCA 381; 167 A Crim R 159 at [15]-[17]:

“15   … Whenever the Court sentences an offender for multiple offences, including when there are different victims, or sentences an offender who is already serving a sentence after conviction for other offences, it is necessary for the judge to ensure that the aggregation of all of the sentences is a ‘just and appropriate measure of the total criminality involved’: Postiglione v The Queen (1997) 189 CLR 295 at 307-308 per McHugh J. The need to maintain an appropriate relationship between the totality of the criminality involved in a series of offences and the totality of the sentences to be imposed for those offences arises for at least two reasons.

16    The severity of a sentence is not simply the product of a linear relationship. That is to say severity may increase at a greater rate than an increase in the length of a sentence. As Malcolm CJ said in R v Clinch (1994) 72 A Crim R 301 at 306:

… the severity of a sentence increases at a greater rate than any increase in the length of the sentence. Thus, a sentence of five years is more than five times as severe as a sentence of one year. Similarly, while a sentence of seven years may be appropriate for one set of offences and a sentence of eight years may be appropriate for another set of offences, each looked at in isolation. Where both sets were committed by the one offender a sentence of 15 years may be out of proportion to the degree of criminality involved because of the compounding effect on the severity of the total sentence of simply aggregating the two sets of sentences.

17    The second matter that is considered under the totality principle is the proposition that an extremely long total sentence may be ‘crushing’ upon the offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release. This effect both increases the severity of the sentence to be served and also destroys such prospects as there may be of rehabilitation and reform. Of course, in many cases of multiple offending, the offender may not be entitled to the element of mercy entailed in adopting such a constraint.”

61. The applicant submitted that based on his custodial history, his age at the time of the offences and his expected age when he was likely to be released from custody, this aggregate sentence was likely to induce a feeling of hopelessness and destroy any expectation of a useful life after release.

62. The applicant submitted that, while acknowledging the limitations in the use of Judicial Commission statistics, the penalties imposed for the offence of aggravated break enter and commit a serious indictable offence between January 2008 and September 2017 show that of 2,181 cases, 1,430 involved fulltime imprisonment and the range of sentences was from 12 months imprisonment to 14 years. Less than 1 percent of offenders were sentenced to more than 7 years imprisonment. The applicant submitted that based on these statistics, an indicative sentence of 10 years imprisonment was well outside the general range of sentences for this type of offence.

63. The applicant also relied upon two cases to establish this proposition. These were R v Meatuai [2016] NSWCCA 42 and Fajloun and Fajloun v R [2011] NSWCCA 41.

64. In R v Meatuai there were two charges of break enter and commit a serious indictable offence (assault occasioning actual bodily harm) in circumstances of aggravation (corporal violence) contrary to s 112(2). Two offenders entered premises at 9pm through a closed but unlocked door. They proceeded to assault two of the occupants of the premises. The injuries inflicted were significant. The offenders were unknown to the victims. The sentencing judge described the offences as “well above the midrange”. Nevertheless, the overall sentence for the two offences was 5 years imprisonment with a non-parole period of 3 years and 6 months.

65. This Court found that the sentence was “manifestly inadequate”. When re-sentencing after accumulating the sentences for each of the offences, this Court imposed a sentence of imprisonment for 6 years and 6 months with a non-parole period of 4 years and 6 months. The applicant submitted that this supported the proposition that the indicative sentence for the Sans Souci aggravated break enter and steal offence was excessive and outside the proper range for offences of that kind.

66. In Fajloun and Fajloun v R the offences concerned the violent breaking into an apartment in which the estranged wife of one of the offenders lived. The door was broken down using a sledge-hammer. The victim was violently dragged from the premises by her hair down three flights of tiled stairs into a car where she was taken away to the offender's parents’ premises. She was then detained at those premises for eight hours before she escaped.

67. Both offenders were convicted of break, enter and commit serious indictable offence (kidnapping) in circumstances of aggravation (in company) contrary to s 112(2) and detain for advantage in circumstances of aggravation (in company) contrary to s 86(2) .

68. The sentence imposed by the sentencing judge on the principal offender was imprisonment for 12 years with a non-parole period of 6 years for the s 112(2) offence with imprisonment of 7 years with a non-parole period of 4 years in respect of the s 86(2) offence. He was also sentenced to imprisonment for 3 years and with a non-parole period of 2 years for assault occasioning actual bodily harm. That sentence was partially accumulated on the other sentences. The total sentence imposed after accumulation was 12 years with a non-parole period of 7 years. The sentencing judge found that the first count (s 112(2) offence) fell within the upper end of the middle range of objective seriousness.

69. This Court found that the disconformity between the non-parole period of 6 years and the head sentence of 12 years in respect of the s 112(2) offence raised the question of whether the head sentence was excessive. This Court concluded that the s 112(2) head sentence was excessive. The Court re-sentenced that offender to an overall sentence of 9 years with a non-parole period of 6 years. The individual sentences were 8 years with a non-parole period of 5 years for the s 112(2) offence, 7 years with a non-parole period of 4 years for the s 86(2) offence and 3 years with a non-parole period of 2 years for the s 59(1) offence.

70. The applicant submitted that those two cases demonstrated that the sentences indicated for the Sans Souci offences (counts 1 and 2) were outside the appropriate range and thus manifestly excessive.

71. In summary the applicant put the following submission:

“65   The argument is not based upon different sentences being imposed in other cases. It is not argued that this Court might have exercised the sentencing discretion differently. It is acknowledged that there is no single correct sentence and the sentencing Judge was allowed as much flexibility in sentencing as is consonant with consistency of approach in application of principle. However, it is submitted that there must have been some misapplication of principle even though where and how is not apparent from the reasons of the sentencing Judge, but the aggregate sentence which was imposed is so far outside the range of sentences available that there must have been error. It is submitted that for the reasons indicated above, the sentence was unreasonable or plainly unjust.”

Consideration

72. In Hughes v R [2018] NSWCCA 2; (2015) 93 NSWLR 474 at [86], the Court (Payne JA, RA Hulme and Garling JJ) summarised the principles relevant to a finding of manifest excess as follows:

“86   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]:

(1)   appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases;

(2)   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;

(3)   it is not to the point that this Court might have exercised the sentencing discretion differently;

(4)   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; and

(5)   it is for the applicant to establish that the sentence was unreasonable or plainly unjust.”

73. Significantly it is not contended by the applicant that his Honour did not have regard to, or take into account the applicant’s youth or his dysfunctional background. As is properly conceded by the applicant his Honour had specific regard to those factors. The difficulty for the applicant in such circumstances is that the challenge is not directed to a failure on the part of the sentencing judge to have regard to an important factor but to the weight accorded to those factors. The question of weight, of course, is part of the “instinctive synthesis” process of reasoning of the sentencing judge and ultimately involves an exercise of discretion. It is well established that matters of weight are very much the province of the sentencing judge and the circumstances in which matters of weight will justify appellate intervention are narrowly confined (Yang v R [2012] NSWCCA 49 at [25]; Clinton v R [2014] NSWCCA 320 at [40]).

74. In respect of the applicant’s youth there is no dispute that he conducted himself in a way an adult might conduct himself and has committed crimes of violence of considerable gravity. This was expressly conceded by the applicant. Moreover, the nature and circumstances of his offending and the existence of his extensive criminal history are factors that operate to diminish the importance for rehabilitation by the need to protect society (KT v Regina at [22]-[26]). His Honour made an express finding as to the applicant’s poor prospects of rehabilitation saying:

“The reason why I’ve made this finding is because of his criminal history and because he has not meaningfully engaged to date to address his drug and psychological issues. He has never completed a rehabilitation course although these attempts occurred when he was younger. He lasted two days in Odyssey House in 2013 and for a few weeks at another rehabilitation centre when he was aged 14 years old.” (Sentence judgment 20.7)

His Honour also found a strong likelihood of him re-offending. When those matters are taken into account, it was well open to his Honour to significantly discount the weight to be given to the applicant’s youth.

75. The same problem arises in relation to the application of the principle in Bugmy v The Queen. His Honour clearly took the applicant’s background into account and made a specific finding that because he was introduced to drugs at a young age and grew up in an environment of significant emotional deprivation, his moral culpability was reduced. As with the applicant’s youth, the weight to be given to that factor was in each case a matter for individual assessment (Bugmy v The Queen per Gageler J at [56]).

76. The reasons why an appellate court is reluctant to intervene in circumstances where the challenge is to the weight to be given to a factor rather than whether a particular factor has been taken into account was succinctly stated by Gleeson CJ in R v Engert [1995] 84 A Crim R 67 at 68:

“The principles to be applied in sentencing are in turn developed by reference to the purposes of criminal punishment. Those purposes were set by the High Court in Veen (No 2) (1988) 164 CLR 465 at 476; 33 A Crim R 230 at 237-238 as follows:

“ … protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform.”

A moment's consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. That was the particular problem being examined by the court in the case of Veen (No 2). Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender.

It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise.”

77. In the present case his Honour had to balance the applicant’s youth and his dysfunctional and deprived upbringing against the adult nature of the offending and the weight to be given to retribution, personal deterrence and the protection of the community. That exercise was a complex and difficult one on which minds might differ as to the outcome. The fact that minds might differ as to the outcome is not indicative of error.

78. In terms of applying the principles of totality his Honour was faced with another difficult exercise. The present offences were committed while the applicant was on parole for an offence of armed robbery with wounding. Neither in the sentence proceedings nor in this Court was any challenge made to the backdating of the commencement date of the sentence to have regard to the further offences committed by the applicant after his escape from custody. What is challenged are the indicative sentences and ultimately the aggregate sentence which was imposed.

79. As was appropriately conceded by the applicant while the indicative sentences themselves are not amenable to appeal, they may be a guide to whether error is established in relation to the aggregate sentence. Nevertheless, even if some or all of the indicative sentences are excessive, it does not necessarily follow that the aggregate sentence is excessive (JM v R [2014] NSWCCA 297 at [40]; Hughes v R [2015] NSWCCA 330; (2015) 93 NSWLR 474 at [323]).

80. The applicant submitted that there must have been some misapplication of principle even though where and how is not apparent from the reasons of the sentencing Judge. It is also submitted that the aggregate sentence imposed is so far outside the range of sentences available that there must have been error and that the sentence was therefore unreasonable or plainly unjust.

81. The applicant relied in part on the indicative sentence of 10 years with a non-parole period of 6 years and 3 months for the s 112(2) Sans Souci offence. When considering that indicative sentence it needs to be remembered that this matter proceeded to trial and there was no discount for a plea of guilty. The indicative sentence also reflects the finding of objective seriousness by his Honour at “above the middle of the range of objective seriousness for offences of this type”. This finding of objective seriousness is not challenged by the applicant.

82. The offence carries a maximum penalty of 20 years with a standard non-parole period of 5 years. Not only was the sentence indicated after trial but it was aggravated by the fact that the applicant was on parole at the time. The actual bodily harm inflicted was significant and involved a substantial degree of violence which resulted in a vulnerable 60 year old woman being hospitalised. Her quality of life thereafter has been significantly degraded. The victim was asleep in her home at night and was subjected to a terrifying ordeal over a period of hours. The offence was committed in company and involved the theft of property totalling almost half a million dollars. Most of that property was not recovered. The victim did nothing to bring about the violence which was perpetrated against her.

83. The indicative sentence of 4 years and 6 months imprisonment for the s 86(3) Sans Souci offence needs to be considered against the legislative guidepost constituted by the maximum penalty of 25 years imprisonment. This sentence was also indicated after trial. His Honour’s finding that the seriousness of the offence was “high” was not challenged by the applicant. While there were some overlapping features between that offence and the aggravated break enter and steal offence, there were elements (as accepted by the applicant) which made this a stand alone offence for which a separate penalty was required. It could not be suggested that the elements of the aggravated break enter and steal offence substantially comprehended and reflected the criminality in this offence (Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27]). The victim was detained for in excess of two hours, she was threatened with being killed, was tied up, gagged and treated roughly by both offenders. She suffered significant injuries. This offence required a degree of accumulation when taken with the s 112(2) Sans Souci offence.

84. An analysis of the remaining offences for which the applicant was sentenced brings about the same result. It is true that the offences occurred over a period of three days and in the case of the Breakfast Point offences, over a comparatively short period of time. Those offences also were subject to a 25 percent discount because of the plea of guilty. That having been said, his Honour was not obliged to treat the offending as a single episode of criminality, particularly given different and serious aggravating features which accompanied the individual offences. In any event, it is obvious from the indicative sentences for these offences that they were significantly discounted. The indicated sentences were in accordance with the assessment of objective seriousness which was not challenged.

85. The Dundas s 112(2) offence was committed on residential premises at night while the occupants (including a young child) were asleep. The extent and value of the property taken, which included motor vehicles, was significant. His Honour’s assessment of the objective seriousness of the offending at “slightly below the midrange” is reflected in the indicative sentence of 5 years with a non-parole period of 3 years and 3 months.

86. In respect of the offences committed at Breakfast Point, the s 112(2) offence involving Mr To occurred in residential premises while persons were at home. The indicative sentence of 3 years and 9 months with a non-parole period of 2 years 6 months reflects the finding of objective seriousness of falling at a midpoint between the lower end of the range and the middle of the range for offences of this type.

87. The s 112(2) offence involving Ms Haertsh also occurred in residential premises while the occupant was at home. In respect of this offence, the applicant confronted the occupant and took her keys (which was the subject of the charge of larceny). His Honour found the objective seriousness of this offence to be at a midpoint between the lower end of the range and the middle of the range. This is also reflected in the indicative sentences of 3 years and 2 months.

88. The s 109(2) offence involving Mr Scotman occurred in residential premises while the occupant was at home. In respect of this offence the applicant attacked the victim when confronted by him and punched him a number of times causing him to suffer deep bruising to his chest and further injuries to his back, forehead and eye. His Honour assessed the objective seriousness of this offence to be “slightly lower” than the middle range of seriousness for offences of this type. The indicative sentence was 4 years with a non-parole period of 2 years and 6 months.

89. The above analysis involving a comparison of the findings of objective seriousness of each of the offences with the indicative sentences nominated, demonstrates that none of the indicative sentences were excessive or disclose error and due allowance was made for the common features associated with the offences.

90. Once it is accepted that some degree of accumulation might be appropriate in structuring the sentences as between the three sets of offences (as it was by the applicant in his written submissions on sentence), the task confronting his Honour in relation to accumulation while not easy was relatively straightforward. His Honour was required to take into account the fact that the offences involved a similar course of conduct, occurred over a relatively limited number of days and especially in relation to the Breakfast Point offences were committed in the same general location. In respect of the Sans Souci offences, the aggravated detain offence occurred during the commission of the s 112(2) offence. On the other hand, each offence was serious and involved different locations and victims. His Honour had to have regard to the fact that the sentence for one of these offences could not comprehend and reflect the criminality of the others (Cahyadi v R at [27]).

91. It was implicit in the applicant’s submissions that his Honour erred in not giving reasons as to how the sentences were accumulated. His Honour was under no obligation to explain how questions of accumulation and concurrence were resolved or state the degree by which indicative sentences would be accumulated so as to arrive at an aggregate sentence (Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 77 at [164]). As R A Hulme J pointed out in Chamseddine v R [2017] NSWCCA 176 at [74] this is one of the ways that aggregate sentencing has simplified the task of sentencing for multiple offences. Accordingly, with an aggregate sentence, this Court is not in a position to analyse issues of concurrence and accumulation in the same way as it can analyse traditional sentencing structures. Such an approach is consistent with what was said in ZA v R [2017] NSWCCA 132 at [88] where Johnson and Fullerton JJ (Payne JA agreeing) observed that questions of accumulation are intuitive and by nature limit the level of transparency that can be provided by the sentencing judge: JT v R [2012] NSWCCA 133 at [73].

92. The totality principle and its underlying rationale were comprehensively reviewed in ZA v R at [68]-[84]. In the course of their analysis, their Honours said (at [74]):

“The significance of an aggregate sentence reflecting “the total criminality comprised in the totality of offences” has been emphasised recently by the High Court. As Gageler, Nettle and Gordon JJ observed in Nguyen v The Queen at 677 [64]:

“Ultimately the object of the sentencing exercise is to impose individual sentences that, so far as possible, accurately reflect the gravity of each offence while at the same time rendering a total effective sentence which, so far as possible, accurately reflects the totality of criminality comprised in the totality of offences. That is an exercise which involves a significant measure of discretionary moderation and accumulation of individual sentences according to the particular circumstances of each case. Up to a point, therefore, it is something about which sentencing judges might take different views of which neither could be said to be wrong. Generally speaking, however, the imposition of less severe individual sentences may call for a greater degree of accumulation in order to reflect total criminality whereas more severe individual sentences may necessitate a greater degree of concurrency.””

93. In R v MAK; R v MSK [2006] NSWCCA 381 the Court (Spigelman CJ, Whealy and Howie JJ) said:

“17   The second matter that is considered under the totality principle is the proposition that an extremely long total sentence may be ‘crushing’ upon the offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release. This effect both increases the severity of the sentence to be served and also destroys such prospects as there may be of rehabilitation and reform. Of course, in many cases of multiple offending, the offender may not be entitled to the element of mercy entailed in adopting such a constraint.

18    A sentencing court must, however, take care when applying the totality principle. Public confidence in the administration of justice requires the Court to avoid any suggestion that what is in effect being offered is some kind of a discount for multiple offending: R v Knight (2005) 155 A Crim R 252 at [112]. For similar reasons in a case such as the present where an offender who is already serving other sentences comes to be sentenced for additional offences, the impression must not be given that no, or little, penalty is imposed for the additional offences.”

94. Any assessment of whether or not a sentence is properly described as “crushing” must have regard to a number of circumstances which include the maximum penalties, any standard non-parole periods, the objective and subjective factors, as well as the application of principles of totality (Haines v R [2012] NSWCCA 238 at [57]).

95. In the present case his Honour had regard to all of these factors. The sentencing judge found that the applicant had demonstrated no contrition or remorse, that his prospects of rehabilitation were poor and the likelihood of him re-offending was high. Such findings were open to his Honour, are not challenged on this appeal, and clearly bring into play considerations of specific deterrence and the protection of the community.

96. In relation to the risk of “institutionalisation” I repeat what I said in RG v R [2017] NSWCCA 60 at [109] (Garling and Beech-Jones JJ agreeing):

“109 … Institutionalisation is a label which is frequently used but its meaning and application to sentencing principles are unclear. What the label seems to suggest is that a person’s time in prison will be so lengthy that the person is unable to be rehabilitated and that further time in prison will not achieve that purpose. What the consequences of a finding that institutionalisation might occur, or has occurred, in a sentencing context is also not clear. Does it mean that despite the seriousness of offending, further imprisonment should not take place? Surely not. In this case, because of his own conduct, the applicant had at the time of sentence already spent a considerable amount of time in prison with relatively short periods of living in the community. Her Honour was aware of that and acknowledged it in her reasons. Even so, there remained an obligation on her Honour to impose a sentence which was appropriate to the seriousness of the offending and which was otherwise consistent with proper sentencing principles.”

97. His Honour remained under an obligation to impose a sentence appropriate to the seriousness of the offending. Moreover, the issue was addressed by his Honour finding special circumstances and recognising the need for a sufficient period of conditional and supervised liberty to assist the protection of the community, as well as having regard to the accumulation of sentences.

98. The applicant has sought to establish a “general range of sentences” for the s 112(2) offences by reference to Judicial Commission statistics and to decided cases namely R v Meatuai and Fajloun and Fajloun v R.

99. The statistics relied on by the applicant set out a range of between 12 months and 14 years imprisonment. That, however, says nothing about the facts of the particular cases. It says nothing about factors which favoured the offender and those which were adverse. Most particularly in the context of this case, it says nothing about the number of offences and type of offences for which the offender was being sentenced and therefore the extent to which the principles of totality and accumulation were applied. It also says nothing about whether sentences were imposed after trial or as a result of a plea of guilty. In any event, the indicative sentence of 10 years for the Sans Souci s 112(2) offence falls within that range, as do all of the other indicative sentences imposed.

100. As this Court has said on many occasions, relying upon the Judicial Commission statistics in this way is misconceived. First the appeal under this ground lies in respect of the aggregate sentence and not the indicative sentence (Kresovic v R [2018] NSWCCA 37 at [42]). Secondly, there are the usual limitations associated with reliance upon bare statistics to establish that a sentence is manifestly excessive in the absence of adequate information concerning the objective and subjective features of those cases.

101. In Ma v R; Pham v R [2007] NSWCCA 240 at [91] Hulme J (with whom McClellan CJ at CL and Hoeben J agreed) stated:

“91   Subliminal in the reference to the statistics and the observation that the sentences here fall into the highest end of the range is the proposition that that is indicative of error. The proposition must be rejected. As this Court has said on many occasions, the range extends to the maximum penalty set by Parliament and it is against that that an offender’s conduct must primarily be judged. Certainly, the statistics may at times inspire further reflection on the sentence in a particular case and perhaps give some limited guidance but, of themselves, they do not demonstrate error. Particularly is this so because, within each category, they provide no details of the cases reflected in them.”

102. For similar reasons, the two cases relied on by the applicant cannot be equated with the available sentencing range. Notwithstanding the difference in objective and subjective circumstances, sentences imposed in other cases do no more than provide a yardstick against which to consider a proposed sentence and do not establish an upper or lower limit to the range of sentences imposed. The utility of referring to various sentencing judgments was considered by the High Court in Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [53]-[54] and Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 at [40]-[41] where French CJ, Hayne, Kiefel and Bell JJ said:

“40   The setting of bounds to the available range of sentences in a particular case must, however, be distinguished from the proper and ordinary use of sentencing statistics and other material indicating what sentences have been imposed in other (more or less) comparable cases. Consistency of sentencing is important. But the consistency that is sought is consistency in the application of relevant legal principles, not numerical equivalence.

41   As the plurality pointed out in Hili v The Queen, in seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence. What is important is the unifying principles which those sentences both reveal and reflect. …”

103. In Dang v R [2014] NSWCCA 47 at [55] Adamson J (with whom Simpson and Davies JJ agreed) said:

“55   Care must be taken in drawing direct comparisons between sentences passed, those to be passed and those which are, or have been, the subject of appeal: see generally, Hili v The Queen; Jones v The Queen [2005] HCA 45; (2010) 242 CLR 520 at [53]- [56] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. Sentencing requires the exercise of discretion. The factors that are germane to the exercise of the discretion include deterrence, both general and specific, rehabilitation and punishment. The exercise of the discretion requires consideration of objective circumstances (the seriousness of the offending conduct) as well as subjective circumstances pertinent to the offender. The number of factors to be taken into account as either mitigating or aggravating under s 21A of the Crimes (Sentencing Procedure) Act 1999 provides an indication of the complexity of the exercise and the concomitant difficulty of identifying “comparable cases”. Although it is orthodox for such cases to be identified for the benefit of the sentencing judge, they can be no more than a guide.”

104. In any event, the two cases identified by the applicant provide little assistance in establishing a sentencing range. A differentiating factor in R v Meatuai is that it involved a plea of guilty to the two offences whereas the indicative sentences proposed in respect of the Sans Souci offences followed a trial. The primary reason why this Court intervened was that the sentencing judge had assessed the objective seriousness of the offending as “well above the midrange for an offence of this kind” which was not reflected in the sentences imposed. That was not a problem which arose here.

105. In Fajloun and Fajloun v R the sentence under consideration was imposed after trial. However, there remains significant differences between that case and the present case. It is fair to say that Fajloun and Fajloun v R demonstrates a frightening and shocking use of violence to break into the home of Mrs Fajloun and thereafter commit acts of real brutality. Speaking for myself, I would regard the offending in that case as more serious than the aggravated break enter and steal Sans Souci offence. That, however, is largely irrelevant. It simply means that minds will differ as to what is an appropriate sentence in a particular case. It does not indicate in any way that the indicative sentence in the s 112(2) Sans Souci offence is outside the appropriate range for offending of that kind or is otherwise excessive.

106. As Adamson J said in Vandeventer v R [2013] NSWCCA 33 at [45] (McClellan CJ at CL and Rothman J agreeing):

“45   One cannot adjudge whether a sentence falls within an appropriate range by reasoning from particular instances. Applicants will always be able to find cases where offenders appear to have been dealt with more leniently. So, too, will the Crown be able to find cases where offenders have apparently been dealt with more severely than the applicant for leave to appeal on sentence. This is not, however, the way in which this Court determines whether a sentence is manifestly excessive.”

107. It follows from the above that I am not persuaded that his Honour erred in the way in which the applicant submits, nor am I persuaded that the aggregate sentence imposed is manifestly excessive.

108. The order which I propose is that leave to appeal be granted but that the appeal be dismissed.

109. R A HULME J: I agree with Hoeben CJ at CL that there should be a grant of leave but that the appeal should be dismissed.

110. It is no light matter to impose a sentence of 14 years imprisonment upon a young adult in respect of offences committed when 18 years of age. Nevertheless the offending was of a very serious nature and it was open to the primary judge to impose the sentence that he did.

111. I wish to say something further about the ground of appeal. It was clearly formulated to invoke the last of the types of errors in the exercise of a discretion that are reviewable on appeal as described in House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505. It is well known but for present purposes worth quoting in full:

"It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

112. The applicant's case was encapsulated in the following paragraphs from counsel's written submissions (at [18] and [65]):

"It is submitted that the aggregate sentence of 14 years imprisonment backdated to 12 March 2014 was manifestly excessive. The argument is that notwithstanding the seriousness of the offences, considering the applicant's youth, the factors referred to in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 and the principles of totality of sentencing, the sentence was manifestly excessive." (AWS [18])

…

"[I]t is submitted that there must have been some misapplication of principle even though where and how is not apparent from the reasons of the sentencing Judge, but the aggregate sentence which was imposed is so far outside the range of sentences available that there must have been error. It is submitted that [for] the reasons indicated above, the sentence was unreasonable or plainly unjust." (AWS [65])

113. At the hearing of the application, counsel further confirmed that the case he sought to advance on behalf of his client was not one in which some specific error in the assignment of "weight" to one or more particular factors was contended; the case was confined to a contention of latent error as described in the written submissions. For example, counsel said:

"My argument is not so much about that ten years and whether or not that was excessive. My argument is more about the overall sentence of 14 years and whether the principles of totality have been properly applied, taking into account the Bugmy factors and the youth of this applicant at the time he was sentenced.

…

That's really the gist of my argument, that 14 years is just too long … taking into account all the circumstances. His Honour has taken into account the relevant factors; but, in the calculations, in the determination, in the exercise of discretion, the figure that has been arrived at is too high and it is outside the range." (T3.30; 4.24)

114. In agreeing to the dismissal of the appeal I do not share in any criticism of the applicant's case on the basis that he was arguing about the "weight" that was or was not given to certain factors. The above quotations indicate that his case was confined to an assertion of latent error of the type described in the extract from House v The King above. Indeed, "weight" was not mentioned in the written submissions at all. "Weight" was first spoken of by counsel for the applicant when he was called upon at an early stage of the hearing to address a question from the bench, the question including reference to patent error as to weight as well as latent error. (T2.23 – 2.34)

115. The applicant's case was not presented as one contending, in part, that there were errors in not giving "adequate weight" to the applicant's youth (above at [50]-[52]; [73]-[74]) and to the circumstances of his upbringing (above at [54]; [75]).

116. R v Engert, does not, with respect, have relevance to the present case. In the extract from his judgment quoted above (at [76]), Gleeson CJ was simply discussing the challenge of sentencing in that there are competing considerations that call for the discretionary assessment of the sentencing judge. Moreover, there, and unlike the present case, the appellant contended that his sentence was the subject of patent error; that the primary judge should have given less weight to general deterrence on account of his mental illness.

117. A similar issue arises regarding the applicant's contention as to the application of the principle of totality. The applicant did not contend that the judge had not "adequately" taken the principle into account (above at [55]). The applicant's case in relation to this was that "there should have been a strong element of concurrency in relation to" the Sans Souci offences (Indictment 1) and also in respect of the s 111(2) and s 117 offences committed at Breakfast Point.

118. Further, it was introductory to this discussion about totality that the applicant's counsel made the observation in the written submissions that the primary judge did not give reasons in relation to the accumulation of sentences. I do not take counsel to have implied any criticism of the judge in that respect (Cf above at [59]-[60]; [91]. Counsel was simply making a statement of fact so as to explain why the submissions that followed were not put in terms of there being any patent error.

119. The written and oral submissions by counsel for the applicant were very carefully crafted and skilfully put. They had sufficient merit to warrant very close scrutiny. However, as indicated above, I agree with the orders proposed by the presiding judge.

120. BUTTON J: I agree with Hoeben CJ at CL that leave should be granted, but the appeal dismissed.

121. In my opinion, the aggregate head sentence is very stern, but not plainly unreasonable.

122. I say that chiefly because of the gravity of the “San Souci offences”, featuring as they did: premeditation and the targeting of particular premises; the brutalisation and detention of a defenceless 60-year-old woman in her own home; the making of a threat of death; her terror extending over two hours; and the significant and longstanding physical and psychological injuries inflicted.

123. I also agree with the analysis of R A Hulme J of the nature of the ground of appeal, and the way in which it was argued.

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Decision last updated: 10 August 2018