Usher v R

[2016] NSWCCA 276

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Usher v R [2016] NSWCCA 276
Hearing dates:	02 August 2016
Decision date:	02 December 2016
Before:	Hoeben CJ at CL at [1] Button J at [2] N Adams J at [3]
Decision:	(1) Grant leave to appeal. (2) Dismiss the appeal.
Catchwords:	CRIMINAL LAW – application for leave to appeal against sentence – aggravated break, enter and commit serious indictable offence (larceny) – whether applicant has a justifiable sense of grievance by reason of disparity with sentence imposed on co-offender – whether sentence manifestly excessive
Legislation Cited:	Crimes Act 1900 (NSW), ss 112(2), 113(2), 193B(2) Crimes (Sentencing Procedure) Act 1999 (NSW), s 32
Cases Cited:	Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 Barbaro v The Queen; Zirill v The Queen (2014) 253 CLR 58; [2014] HCA 2 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45 Johnson v R (2004) 78 ALJR 616; [2004] HCA 15 Lowndes v The Queen (1999) 195 CLR 665; HCA 19 Ma and Pham v R [2007] NSWCCA 240 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Marshall v R [2007] NSWCCA 24 Mill v The Queen (1988) 166 CLR 59; [1998] HCA 70 MM v R [2016] NSWCCA 235 Mulato v R [2006] NSWCCA 282 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Ngati v R [2013] NSWCCA 203 Pearce v the Queen (1998) 194 CLR 610; [1998] HCA 57 R v Huynh [2005] NSWCCA 220 R v Ponfield (1999) 48 NSWLR 327; [1999] NSWCCA 435 Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14
Category:	Principal judgment
Parties:	Richard Usher (Applicant) Regina (Respondent)
Representation:	Counsel: Ms R Rodger (Applicant) Ms N Williams (Respondent)   Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2013/314650
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 27 February 2015 Before: Norrish QC DCJ File Number(s): 2013/314650

Judgment

1. HOEBEN CJ at CL: I agree with N Adams J and the order which she proposes.

2. BUTTON J: I agree with N Adams J.

3. N ADAMS J: On 27 February 2015, the applicant was sentenced by Norrish QC DCJ at the District Court in Goulburn in relation to the following offences:

1. Aggravated break, enter and commit serious indictable offence (larceny) contrary to s 112(2) of the Crimes Act 1900 (NSW). That offence has a maximum penalty of imprisonment for 20 years and a standard non-parole period (“SNPP”) of imprisonment for five years (Count 1).

2. Dealing with the proceeds of crime contrary to s 193B(2) of the Crimes Act. That offence has a maximum penalty of imprisonment for 15 years (Count 2).

4. The applicant also asked that a further offence of aggravated break and enter with intent to commit a serious indictable offence (larceny) contrary to s 113(2) of the Crimes Act be dealt with on a Form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the CSP Act”).

5. The circumstance of aggravation for Count 1 and for the Form 1 offence was that the applicant was in company.

6. In relation to both counts and taking into account the Form 1 offence, Norrish QC DCJ sentenced the applicant to an effective non-parole period of three years and three months to date from 18 April 2014 and to expire on 17 July 2017. The effective head sentence is imprisonment for five years and ten months to expire on 17 February 2020.

7. The applicant seeks leave to appeal against the sentences imposed on two grounds: first, that the sentences are manifestly excessive and, secondly, even if they are not, that the applicant has a justifiable sense of grievance as a consequence of the sentences imposed upon his co-offender Aarin Burns (“the co-offender”).

Circumstances of the applicant’s offending

8. A document headed “Crown Facts” was tendered on sentence. There was no dispute that those facts reflected the basis of the applicant’s plea of guilty. The applicant was sentenced at the same time as the co-offender. Although the sentencing judge was provided with different facts in relation to the sentencing of the co-offender, his Honour ultimately found that the differences between the applicant and the co-offender were not of significance insofar as the liability of each offender was concerned. It is to be noted that the applicant and his co-offender pleaded guilty at different stages of the proceedings and faced his Honour for sentence in relation to substantially the same facts but slightly different charges.

9. His Honour’s factual findings can be summarised as follows. The co-offender was employed as a duty manager at the Woolworths store in Mittagong. In that capacity he was aware that the store had a cash office with two safes that held the daily takings of the store. A key was required to enter the cash office. The key to enter the cash office was kept in a “key lock box.” The store normally closed between midnight and 1 am and was partially reopened at 2:40 am to enable bakery staff to commence work.

10. The co-offender had access to the key lock box and security code for the alarm system, as well as the combination for a safe in the cash office.

11. In October 2013, the co-offender failed to attend work for a number of weeks. It was presumed by his employer that he had abandoned his employment. He was asked to return the keys that were in his possession.

12. The applicant resided a few doors away from the co-offender. In the days prior to 10 October 2013, they discussed breaking into the Woolworths store and stealing money and possibly other items. The co-offender provided the applicant with the keys to the store, the codes for security alarms, the combination of the safe containing money and the location of the keys to open up the cash office.

13. Shortly after 2am on 10 October 2013, the applicant, the co-offender and an unidentified man arrived at the store. The co-offender remained in the car while the applicant and the unidentified man entered the store wearing balaclavas and dark clothing to disguise their appearance. The two intruders fled the scene when the alarm was activated. This incident is the subject of the Form 1 offence for the applicant and Count 1 for the co-offender.

14. The three men returned to the store in the early hours of 13 October 2013. The codes for the security alarms had not been changed. Again, the co-offender remained in the car outside while the applicant and the unidentified man used the co-offender’s key to enter the store. The applicant was wearing a black top and a balaclava and was carrying a bag. The applicant and the unidentified man used the co-offender’s key to open the key lock box and retrieve the key to the cash office. Having opened the door to the cash office, they opened one of the safes and filled two bags with notes and coins amounting to $90,815. They removed the bags from the store using a supermarket trolley. The applicant left the co-offender’s keys with his name on them in the key lock box and the key to the cash office in the cash office door. The whole incident was captured by CCTV cameras. This incident is the subject of Count 1 for the applicant and Count 2 for the co-offender.

15. The money was distributed among the three offenders. On 13 October 2013, the applicant went to a car yard in Cabramatta and purchased a motor vehicle for $13,890 using the cash stolen from the Woolworths store. This incident is the subject of Count 2 for the applicant, being the offence of dealing with the proceeds of crime. The co-offender was charged with the same offence based on slightly different facts (for him, that offence was Count 3).

16. On 16 October 2013, police executed a search warrant at the applicant’s home. They located a black balaclava, two black hooded jumpers and a bag similar to that used in the offence on 13 October 2013. The applicant was arrested on 18 October 2013 at Ulladulla. He made no admissions to being involved in either of the offences.

Subjective circumstances of the applicant

17. The applicant has remained in custody since his arrest on 18 October 2013. On 20 October 2013, he was charged with an offence of driving whilst disqualified on 14 October 2013. On 19 February 2014, he was sentenced in relation to that charge to imprisonment for 12 months with a non-parole period of six months backdated to commence on 18 October 2013. That non-parole period expired on 18 April 2014.

18. The proceedings on sentence were conducted on 26 February 2015, by which time the applicant was 33 years old. He did not plead guilty until the first day of trial and the matter was stood over for sentence until the next District Court sittings in Goulburn.

19. Although a pre-sentence report was ordered in relation to the applicant, no report was ever prepared. Nor were any psychological or psychiatric reports prepared for the applicant’s sentence proceedings. The applicant did not give evidence at his proceedings on sentence. He did, however, provide the Court with a three-page letter setting out details of his background. In the circumstances, the Crown did not object to the tender of the letter. The document disclosed that the applicant’s mother was a heroin addict and that his parents separated when he was two years old. He was cared for thereafter by his father. He was an only child. The applicant did not see his mother again until he was 17 years old and she died five years later when he was 23 years old. They had only limited contact during that time. The applicant enjoyed a good relationship with his father but he died of cancer in 2009. The applicant “took his death hard” and, although he was already a drug user, he started using “ice”. He has continued to do so since that time. He stated that, given his mother’s history, he now wants to live drug-free.

20. The applicant left school after completing Year 7 at the age of 15 and left home at 16. He has not had any formal education since leaving school and has some difficulty reading and writing. He believes that he suffers from dyslexia, although it does not appear that he has been formally diagnosed with that condition. He has been in a relationship for the previous 10 years and had two children aged six and eight.

21. In addition to his history of drug use, the applicant stated that he had been diagnosed with schizophrenia. Although he would take his medication in custody, he was “not so good about it” when he was at large. He stated that he had “dried out” when in custody but started using “ice” again each time that he was released. He had not seen a psychiatrist in the previous two years. He stated that, although there was approval from Legal Aid NSW for a report to be prepared for his proceedings on sentence, he did not want his case adjourned for that to occur.

22. The applicant further asserted in his written letter to the Court that since leaving school at the age of 15 he had been employed on occasion. He worked for six months cleaning cars when he was 15. He took up a trade of being a “powder coater” when he was 20 years old.

23. The applicant has a criminal history dating back to 1998. He was dealt with in the Children’s Court at that time by way of fines for offences including larceny, goods in custody, assault police and driving offences. In 1998, he was placed on a recognisance to be of good behaviour for 12 months for contravening an apprehended violence order. In 1999, he was fined in relation to further driving offences and in 2000 he was placed on a community service order for an offence of driving whilst disqualified. In 2001, he was placed on a section 9 bond for driving whilst disqualified and fined for a number of other driving offences. In 2001, he was sentenced to periodic detention for driving whilst disqualified and for breaching his community service order. He subsequently breached that order and was sentenced to home detention for seven months. In 2003, he was imprisoned for six months for driving whilst disqualified. That sentence was reduced to a suspended sentence on appeal to the District Court. The applicant was called up in relation to that sentence and was again imprisoned for six months.

24. In 2004, the applicant was sentenced to imprisonment for offences including larceny, possessing implements to enter and drive a conveyance, driving whilst disqualified, goods in custody and taking and driving a conveyance without consent. In 2005, he was imprisoned for 146 days for obtaining money by deception and larceny as a bailee. In 2006, he was again sentenced to imprisonment for 12 months with a non-parole period of nine months for offences of driving whilst disqualified, larceny, goods in custody, stealing a motor vehicle and driving with mid-range PCA. In 2008, he was fined for driving offences and then later that year he was given a suspended sentence for 12 months for driving whilst disqualified.

Subjective circumstances of the applicant’s co-offender

25. At the time of sentence the co-offender was 36 years of age, having been born three years before the applicant. As at the date of the commission of these offences he had not previously been in custody. His criminal history was relatively minor and most of his convictions pertained to criminal activity subsequent to the commission of the subject offences. While he was on bail for these offences, the co-offender was charged with having goods in custody and sentenced to three months’ imprisonment. He was also charged with bringing a small quantity of a drug into a detention centre.

26. A community service order report stated that the co-offender had difficulties with prohibited drugs in recent years following the breakdown of a long-standing relationship in 2013, which had caused him considerable stress. He has two young children from that relationship. He was assessed as requiring supervision to address his drug use.

27. A psychiatric report prepared by Dr Furst was before the court. Although the co-offender has no major mental illness, he has other medical issues. He told his psychiatrist that he was having blackouts, which is why he left his employment at Woolworths. He stated that he committed the offence because he was under stress from being sick and separated from his wife and that his motivation was to obtain money to fund his drug use. He described himself as an “idiot”. Dr Furst believed that his manner was consistent with “low intellectual functioning”. He was assessed as having a substance abuse disorder and likely borderline intellectual functioning given his history of learning difficulties. It was considered that his blackouts may well be associated with cardiac arrhythmia.

28. The psychiatrist said that the co-offender had been working constructively before going into custody and that he could again upon his release. The psychiatrist also opined that he had reasonable prospects of rehabilitation.

Reasons of the sentencing judge

29. The applicant and the co-offender were sentenced at the same time. The sentencing judge delivered detailed reasons. Before doing so, he informed both the applicant and his co-offender of the sentences that he proposed to impose and explained the differences between them. He first addressed the co-offender. He explained that he was imposing a fixed term of three years, backdated to 28 December 2014, for the offence contrary to s 113(2) of the Crimes Act (being the same offence the applicant asked to be placed on a Form 1). In relation to the aggravated break, enter and steal, the sentencing judge imposed a sentence of imprisonment for four years and six months, accumulated by six months onto the three-year fixed term. For that offence, his Honour fixed a non-parole period of two years and six months to date from 28 June 2015. His Honour then sentenced the co-offender to a fixed term of imprisonment for two years and six months for the offence of dealing with the proceeds of crime. That sentence was imposed to be served entirely concurrently. This resulted in a total effective sentence of imprisonment for five years, with a non-parole period of three years. His Honour noted that the sentence represented a 25% discount on what would otherwise be appropriate due to the co-offender’s early plea of guilty.

30. The sentencing judge then explained the sentence that he proposed to impose on the applicant. His Honour informed the applicant that he would be receiving a 10% discount because his plea was late, but noted that the commencement date of his sentence would be earlier. It commenced on 18 April 2014. His Honour noted that the starting point for the aggravated break, enter and steal was “a bit higher” than that of the co-offender to take into account the Form 1 matter. In relation to that matter, his Honour indicated that he proposed to sentence the applicant to imprisonment for five years and ten months, dating from 18 April 2014, with a non-parole period of three years and three months. His Honour imposed a fixed term of imprisonment for two years and six months for the deal with proceeds of crime offence, also to date from 18 April 2014. That sentence was to be served entirely concurrent with the other non-parole period.

31. His Honour then proceeded to recite the relevant facts and respective subjective cases. With respect to the applicant’s subjective case, his Honour noted that the applicant was anxious for the matter to be dealt with as soon as possible so did not wish an adjournment to have relevant reports prepared. His Honour noted that, although the material in the letter to the Court was untested, it was not objected to by the Crown.

32. His Honour found that there was little to distinguish the two offenders in terms of either their youth or maturity. His Honour went on to note that, “Of course parity principles loom large in this matter notwithstanding the different particulars in the charges, the different way in which the charges have come to court and of course the different criminal histories of the men.”

33. His Honour noted that a significant amount of money was stolen and that there was substantial loss to Woolworths. The amount of $90,000 is a substantial sum to be stolen in the course of a break and enter on commercial premises. The offence by the co-offender was found by his Honour to involve a breach of trust, given that he had been employed by Woolworths and entrusted with keys.

34. His Honour did not find that either the applicant or the co-offender was remorseful. His Honour then went on to state:

“With respect to Mr Usher, he has a lengthy criminal history which could be described as significant, having previously been gaoled and subject to various forms of supervision. Although I accept that he has no prior convictions for offences of this type, and I take that into account in his favour, I cannot find his criminal history offers a mitigating factor in this case. His criminal history in fact does not entitle him to any special leniency, although it is not an aggravating factor. Certainly, he could not be described as a professional burglar given his criminal history. It was to my mind his incompetence in leaving behind the prisoner Burns’ key that quickly led to the apprehension of them both. I could not conclude that the prisoner is unlikely to reoffend. In some respects although I accept he is unlikely to reoffend in this respect [sic]. Although he has been disqualified from driving many, many times before, the first thing he did when he got access to the money was to buy himself a car. He is not entitled to sit behind the wheel of a car for many years to come. This action reflects something of his attitude.”

35. His Honour did not accept that the sole reason for either offender’s being involved was drug usage. Rather, he found that “[p]ersonal profit and unjustified enrichment were motivations too”.

35. On the question of parity his Honour observed the following:

“In fixing appropriate sentences for each offender I followed from what [sic] the High Court in Lowe v R (from 1984), Postiglione (from 1999), particularly in the decision of Dawson and Gaudron JJ, where their Honours identified as the central principle or corollary of parity of sentencing, the concept of equal justice. ‘Aristotelian principles’ of equality essentially state that alike shall be treated alike, and the unalike shall be treated unalike to the extent of their unalikeness. Justice Rothman much more eloquently than I focused on this matter in his judgment in the 2010 Court of Criminal Appeal decision of Jimmy.”

37. As to the respective involvement of the two men, his Honour found that, “One cannot really differentiate about their roles in determining who ultimately concluded it was a good idea to knock over Woolworths. The facts of the matter are they are equally liable to that initial decision”.

38. His Honour went on to find:

“Ultimately, I have concluded that I should not substantially differentiate between the offenders apart from the matters pertinent to consideration of the matter on the Form 1, partial accumulation of sentences in relation to Mr Burns, and also the matter of the commencement date of the sentences. To substantially differentiate between the two offenders ultimately would be an act of sophistry or of subtle semantics, which the case does not deserve.”

39. As for the finding of objective seriousness his Honour observed the following:

“If I was to categorise the seriousness of the offending in this matter I would be inclined to think that the offending was either at the very low end of the middle range of objective seriousness, particularly having regard to the amount of money that was taken, or alternatively just below the mid-range of objective of seriousness. But again as I have said my understanding [sic] the authorities do not require an assessment offered beyond the analysis I have undertaken earlier.”

40. His Honour found special circumstances within the meaning of s 44 of the CSP Act in relation to both offenders “to provide extended periods of supervision to assist the prisoners and to recognise the effect of partial accumulation of sentences”.

Grounds of appeal

41. The applicant seeks leave to appeal the sentence imposed upon him on two grounds:

1. His Honour has made a patent material error with regard to the application of the parity principles resulting in a justifiable sense of grievance as a consequence of the sentences imposed on Aarin Burns in relation to both the offences of aggravated break, enter and steal in company and deal with the proceeds of crime (Ground 1).

2. The sentences are manifestly excessive and a less severe sentence is warranted (Ground 2).

42. It is convenient to deal with Ground 2 first.

Manifest excess (Ground 2)

Submissions of the parties

43. It was conceded on behalf of the applicant that it was open to Norrish QC DCJ to impose a substantial sentence of imprisonment. The error contended for was that the sentence was manifestly excessive having regard to the finding of objective seriousness as being at the lower end of the middle of the range of objective seriousness or just below the mid-range, the plea of guilty, the lack of like prior offences and the fact that the offence relied upon the lesser aggravating feature of being in company rather than being armed or using violence.

44. Counsel for the applicant noted the observation of Simpson J (as her Honour then was) in R v Huynh [2005] NSWCCA 220 at [29] that:

“…the assessment of objective gravity must be made by reference to the particular facts of the case. There is no gradation of the circumstances of aggravation set out in s 105A. In saying this, I would accept that, generally speaking, certain of the circumstances of aggravation specified would, as a matter of common sense, appear to be more serious than others. One would expect that being armed with an offensive weapon, for example, or the use of corporal violence, or deprivation of liberty, would ordinarily, be regarded as more serious than committing an offence in company. But all depends upon the particular circumstances of the individual case.”

45. Reliance was placed on both the Judicial Information Research System (“JIRS”) statistics and the sentencing schedule published by the Public Defenders Office (available online). The schedule published by the Public Defenders shows that, of the over 50 sentences listed, only three offenders charged with a single count of aggravated break, enter and steal (with the circumstance of aggravation being that the offender was in company) received a total sentence longer than the applicant. The JIRS statistics show that only seven offenders in the same category received a non-parole period the same or longer than the applicant. In the context of the limitation inherent in such bare statistics, the applicant relied upon the observation of the High Court (French CJ, Hayne, Kiefel and Bell JJ) in Barbaro v The Queen; Zirill v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [40] that “the proper and ordinary use of sentencing statistics” may play some role in achieving consistency in sentencing.

46. It was submitted that the sentencing judge appears to have placed disproportionate weight on the factor of the amount of cash taken when that is just one of the relevant matters in determining the objective seriousness of the offender: R v Ponfield (1999) 48 NSWLR 327; [1999] NSWCCA 435.

47. As for the sentence for Count 2 (dealing with the proceeds of crime), it was conceded on behalf of the applicant that the argument of manifest excess in relation to that count is academic unless the appeal is successful in relation to the principal sentence, given that that sentence was wholly subsumed within the sentence for the aggravated break, enter and steal.

48. The Crown’s response to the submission that the sentencing judge placed too much emphasis on the amount of money stolen was to point to the observations by this Court that a finding of objective seriousness is a matter within the discretion of the sentencing judge and thus this Court will be slow to set aside such a finding: Mulato v R [2006] NSWCCA 282 at [37]. It was submitted that there was no indication that his Honour allowed that aspect of the facts to overwhelm his sentencing discretion. When the applicant entered the premises he would have had an expectation that there would be a considerable sum of money available, given the co-offender’s knowledge the business.

49. The Crown relied upon the observations of the High Court in Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45 at [53]-[54] and in Barbaro v The Queen; Zirill v The Queen at [40]-[41] regarding the limited utility of relying upon statistics to establish that a sentence is manifestly excessive.

Consideration

50. The applicant was sentenced for an offence carrying a maximum penalty of twenty years’ imprisonment and a standard non-parole period (“SNPP”) of five years’ imprisonment. The maximum penalty and SNPP represent important yardsticks or guideposts created by the legislature for sentencing courts: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [30]- [31]; Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27], 133 [31].

51. As against his Honour’s finding of “lower end of middle range” or “just below mid-range” of objective seriousness, there was little in the applicant’s case to afford him any particular leniency. His plea of guilty was late and his Honour allowed a discount of only 10% as a result. Although the applicant stated that he suffered from schizophrenia, there was no medical evidence before the Court on sentence with respect to mental illness such as would cause his Honour to find that issues of general deterrence were of less significance. As his Honour observed:

“…there is no evidence either in the objective facts or even in his own statement of a relationship directly between any mental disorder and the offending, save for the fact that he may well have had some form of substance abuse disorder at the time of the offending.”

52. The sentencing judge could not find that the applicant was unlikely to offend again. Nor did he find any genuine remorse on the part of the applicant. The applicant could no longer rely upon youth as a mitigating factor.

53. Nor was the applicant’s criminal history such as to enable him to be afforded any leniency. As Gleeson CJ, McHugh, Gummow and Hayne JJ observed in Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at [32]:

“A person who has been convicted of, or admits to, the commission of other offences will, all other things being equal, ordinarily receive a heavier sentence than a person who has previously led a blameless life. Imposing a sentence heavier than otherwise would have been passed is not to sentence the first person again for offences of which he or she was earlier convicted or to sentence that offender for the offences admitted but not charged. It is to do no more than give effect to the well-established principle (in this case established by statute) that the character and antecedents of the offender are, to the extent that they are relevant and known to the sentencing court, to be taken into account in fixing the sentence to be passed. Taking all aspects, both positive and negative, of an offender's known character and antecedents into account in sentencing for an offence is not to punish the offender again for those earlier matters; it is to take proper account of matters which are relevant to fixing the sentence under consideration.”

54. The applicant was already serving a sentence at the time of the imposition of these sentences. The sentencing judge found special circumstances by reason of the accumulation on the applicant’s previous sentence and to assist him in his rehabilitation. Accordingly, the ratio of the non-parole period to the total sentence was varied from the statutory ratio of 75%. The ratio of the applicant’s total non-parole period of three years and nine months to the total term of imprisonment of six years and four months is approximately 58%.

55. This Court has observed that a very diverse range of offending may be accommodated within the terms of an aggravated offence under s 112(2) of the Crimes Act: see MM v R [2016] NSWCCA 235 per Johnson J at [114], citing Marshall v R[2007] NSWCCA 24 at [35]. I have had regard to the submission that the element of aggravation in this matter was less serious than the other circumstances of aggravation contemplated under s 112(2) as observed by Simpson J in R v Huynh at [29]. Despite her Honour’s observation that “one would expect’ some of those aggravating features to “ordinarily, be regarded as more serious than committing an offence in company”, her Honour went on to observe, it “all depends upon the particular circumstances of the individual case”.

56. The amount stolen was a significant aspect of the offence committed by the applicant. His Honour noted:

“it should be also pointed out, however, that this was a true burglary of commercial premises where each of the prisoners would have had an expectation, given Mr Burns’ knowledge of the business, that there would be a considerable amount of money taken. It is not a case of two young tearaways jumping into a store at Glenfield and discovering to their delight when they break open a small safe that the owner of the store has left his life savings in there.”

57. As Price J (with whom Allsop P and James J agreed) observed in R v Clifford [2008] NSWCCA 190 at [64]:

“…the victims of the respondent’s offending were small business proprietors, mainly on the Central Coast, many of whom had gone to considerable expense in an endeavour to make their properties secure against burglary. The proprietors of small businesses may be particularly vulnerable to the adverse impact of a break and enter. It is well known that such crimes may result, inter alia, in the loss of no-claim bonuses and substantial increases in insurance premiums that are to be paid. The ransacking of offices, the loss of cheques and cash can cause particular difficulty for small businesses. As Johnson J (with whom Mason P and Barr J agreed) in R v Knight (2005) 155 A Crim R 252 observed at [93] “the owners of small businesses are likewise entitled to the protection of the law” and a significant element of general deterrence should apply.”

58. Although Woolworths could hardly be described as a “small business proprietor” these comments are nonetheless applicable. The findings of the sentencing judge on this issue were as follows:

“There is no doubt that it is a significant sum of money, and it is no doubt in terms of aggravating features under s 21A(2) that in relation to both offenders there was substantial loss to Woolworths. The fact that Woolworths is a multi-billion dollar corporation, very profitable, largest supermarket chain in the country, is of no moment in the consideration of that matter. All citizens and all corporate personalities are entitled to the same protection of the law. Thus, that is a relevant aggravating factor in relation to both offenders.”

59. I accept that it is appropriate to have regard to the JIRS figures in the limited manner described by the High Court in Barbaro v R; Zirill v R; namely, to ensure consistency in sentencing. The applicant relies upon the fact that those figures show that the sentence for Count 1 (the aggravated break, enter and steal offence) is at the higher end of the sentences recorded by the Judicial Commission for that offence. There are three difficulties in relying upon that proposition to establish manifest excess.

60. First, the applicant asked that the s 113(2) offence of break and enter with intent to steal (for which the co-offender received an effective additional 6 months’ imprisonment) be taken into account on a Form 1 in relation to Count 1. That offence was not insignificant and it was appropriate that it impinge upon the sentence imposed for Count 1 to a degree that was not insignificant: Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [43]. The JIRS statistics relied upon do not reflect this.

61. Second, the applicant’s sentence for the offence of dealing with the proceeds of crime was imposed to be served wholly concurrently with Count 1. Consistent with the decision in Pearce v the Queen (1998) 194 CLR 610; [1998] HCA 57, the approach to be adopted when sentencing an offender in relation to more than one offence is first to fix the individual sentences and then look at questions of concurrence and accumulation. This is the approach that is to be preferred: Johnson v R (2004) 78 ALJR 616; [2004] HCA 15 at [26] per Gleeson CJ; Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 at 63.

62. However, it would have been equally open to his Honour to have imposed lesser sentences for both offences and then to have partially accumulated them: per Davies and Beech-Jones JJ in Humphries v R; Ponfield v R [2016] NSWCCA 86 at [51]-[52]. If his Honour had taken that approach, the sentence imposed in relation to Count 1 would be reflected differently in the JIRS statistics, even though the overall sentence would have been the same. His Honour’s finding in this regard was as follows:

“With regard to the dealing with the proceeds of crime offence, as is in the case of Mr Usher, these offences in my view are subsumed into the objective gravity of the breaking, entering and stealing matter in the sense that the dealing with the proceeds, and the use of the proceeds by Mr Usher particularly, are merely a corollary of the principal offence.”

63. Third, there are the usual limitations associated with reliance upon bare statistics to establish that a sentence is manifestly excessive in the absence of information concerning the objective and subjective features of those cases. As Hulme J stated in Ma and Pham v R [2007] NSWCCA 240 at [91] (McClellan CJ at CL and Hoeben J, as their Honours then were, agreeing):

“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.”

64. As for the schedule of comparable cases attached to the applicant’s submissions, it listed the names of a number of cases, the circumstance of aggravation in each, the plea and the sentence imposed. The authorities establish that such a summary cannot be equated with the available sentencing range: Hili v R; Jones v R and Barbaro v The Queen; Zirill v The Queen. Despite this, decisions of this Court may nonetheless inform the Court’s assessment of the sentence imposed in the applicant’s case. In Barbaro v The Queen; Zirill v The Queen, the plurality observed at [41] (footnotes omitted):

“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.”

65. Of the cases listed in the schedule, many were appeals against sentences imposed before the introduction of the SNPP for offences contrary to s 112(2). The contents of the table reinforce the proposition that the offence covers a wide range of offending conduct. The Court was not taken to any particular decisions that would suggest that there was any misapplication of principle by his Honour.

66. The applicant must establish that the sentence imposed upon him was manifestly excessive in the sense of being unreasonable or plainly unjust. As the High Court observed in Lowndes v The Queen (1999) 195 CLR 665; HCA 19 at [15]:

“…a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.”

67. The applicant has not discharged his onus in this regard. Ground 2 is not made out.

Application of the principle of parity (Ground 1)

68. The applicant contended that, although no error is disclosed in his Honour’s finding that the applicant and the co-offender were equally liable for the offending despite their different roles in the joint criminal enterprise, error is disclosed in the finding that the notional starting point of their sentences ought to be the same. The applicant’s submission was that there were points of difference as between the two offenders; namely, the greater moral culpability of the co-offender due to the breach of trust and the fact that the applicant had a less favourable record.

69. Reliance was placed upon the significance of the co-offender’s role when compared with that of the applicant. It was submitted on behalf of the applicant that, had it not been for the co-offender’s means of access to the premises, the offence could not have been carried out. This ought to have resulted in a higher commencement point for the sentence imposed on the co-offender.

68. As for the finding that the applicant’s greater criminal record justified the starting point being the same despite the differences regarding moral culpability, it was submitted that the applicant’s gap in serious offending since 2008 was relevant to the degree of leniency that ought to have been extended to him in this case.

69. In response, it was submitted on behalf of the Crown that the differentiation in the notional, undiscounted starting points for the sentences imposed upon the applicant and the co-offender is explicable by reference to the differing findings made regarding their respective subjective circumstances and demonstrates that the sentencing judge gave effect to those findings and the importance of parity. It was further submitted that the non-parole period imposed upon the applicant was only three months greater than that of the co-offender and the head sentence ten months greater. The difference is explicable by the extent of their respective discounts for pleas of guilty.

Consideration

72. I have already found that the sentence imposed is not manifestly excessive. Despite this, a court may reduce a sentence not in itself manifestly excessive “in order to avoid a marked disparity with a sentence imposed on a co-offender." Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [31]. As Schmidt J (with whom Hoeben CJ at CL and McCallum J agreed) observed in Ngati v R [2013] NSWCCA 203 at [69], “A complaint as to parity accepts that the sentence imposed was otherwise appropriate.”

73. It is of significance that the same sentencing judge sentenced both the applicant and the co-offender. This Court has stated that, where possible, that practice is desirable. When the same judge hears both matters simultaneously, “…[he or she] will be in a position to consider the interrelationship between the objective and subjective features of the two offenders in an overarching way:” Huckstadt v R [2016] NSWCCA 22 per Button J at [90] (with whom Johnson and Fagan JJ agreed). In Tuivaga v R [2015] NSWCCA 145, Hoeben CJ at CL (with whom RA Hulme and Wilson JJ agreed) observed at [55]-[56]:

“55. It is of significance that the same judge sentenced both the applicant and Barnes. He was fully cognisant of their moral culpability and of their subjective cases. Specifically, his Honour was fully aware of the difference in their subjective cases and he reflected that difference by a reduction of 6 months in the non-parole period of imprisonment to be served by the applicant.

56. In such circumstances, where the primary judge has recognised the importance of the parity principle and has given effect to it, this Court has said that it will be cautious and not overly willing to intervene. Disparity which leads to appellate intervention must be “gross, marked or glaring” (Tan v R [2014] NSWCCA 96 at [39]).”

74. The applicant’s complaint is not that the disparity between his sentence and that imposed on his co-offender is “gross, marked or glaring”. On the contrary, the complaint is that there should have been a more significant difference in the sentences imposed. One difficulty with this submission is that it is contrary to the position taken by counsel for the applicant (who was not counsel who appeared for the applicant in this Court) before the sentencing judge. The transcript of the proceedings on sentence on 26 February 2015 records that the following question was asked by his Honour of both counsel:

“HIS HONOUR: my fundamental question is, are the differences between them such that they - apart from discounts which will be different – are the differences so great as to warrant any distinction, subject to any discrete discounts?”

75. Counsel for the applicant responded, “…the question of parity it [sic] evens out as between Mr Usher and the co-accused.” Counsel went on to note that the applicant’s criminal history is lengthier and that the applicant had previously been imprisoned, whereas the co-offender had not. He concluded, “…in my submission weighing those matters, in my submission they should be treated equally, sentenced equally…”

76. Consistent with the submissions put to the sentencing judge by both counsel before him, an analysis of the sentences imposed on the applicant and the co-offender reveals very similar notional undiscounted starting points. For Count 1 (taking into account the Form 1 charge) and Count 2, the applicant received a sentence of imprisonment of five years and ten months (or 70 months, rounded down from 70.2 months). Taking into account a 10% discount for his late plea, the notional starting point for this sentence was imprisonment for six years and six months (or, expressed differently, 78 months). Six months of the applicant’s total effective sentence of imprisonment for six years and four months were referable to an unrelated offence of driving while disqualified, which his Honour made partially cumulative upon the sentence that he imposed for the present offences, and is not included in the notional starting point.

77. For all three counts, the co-offender received a total effective sentence of imprisonment for five years. Taking into account a 25% discount on the sentence as a whole, the notional starting point was imprisonment for six years and eight months (or 80 months).

78. When these notional starting points are considered, it is evident that the applicant received a slightly lower starting point of 78 months as opposed to the starting point of 80 months for the co-offender. Although, on one reading of the reasons, his Honour appears to have only expressed the discounts to apply to the aggravated break, enter and steal offence, there is no warrant for restricting the application of the discount in this way nor am I satisfied that is what his Honour in fact did.

79. The sentencing judge was keenly aware of the importance of the principles of equal justice when undertaking this sentencing exercise. He referred to the relevant principles and sentenced both offenders at the same time. His Honour was aware of the differences and similarities as between the offenders and had express regard to them. Despite the fact that the applicant’s counsel submitted that both offenders should be “sentenced equally”, his Honour in fact commenced with a starting point which was slightly lower for the applicant. It is difficult to discern how the applicant could have a justifiable sense of grievance by reason of the effective sentence imposed on the co-offender in these circumstances. I am not satisfied that any error has been established in this regard.

80. Ground 1 is not made out.

ORDER

81. I propose that leave be granted to appeal against the sentences imposed in this matter but that the appeal be dismissed.

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Decision last updated: 02 December 2016