Bazzi v R

1. [1]

   SIMPSON AJA: The applicant seeks leave to appeal against an aggregate sentence of imprisonment imposed on her by Wass DCJ in the District Court on 2 December 2022 following her pleas of guilty to a series of charges of offences against various provisions of the Crimes Act 1900 (NSW) (Crimes Act) committed over a period between 20 January 2021 and 16 June 2022. I have read in draft the judgment of Button J. What follows are my reasons for reaching conclusions that vary in one respect from those of his Honour.

2. [2]

   The procedural history is long and complex. A brief history of the relevant offending is as follows.

3. [3]

   On 2 September 2018 the applicant stole a bag from an unlocked motor vehicle. The bag contained the address of the owner, and his house keys. The applicant used the keys to break into the house and steal $60,000. She was charged with breaking, entering and committing a serious indictable offence (stealing), an offence against s 112(1)(a) of the Crimes Act. She entered a plea of not guilty to the charges. A trial, during which the applicant was on bail, before Hoy DCJ and a jury took place between 18 and 22 January 2021 and resulted in the conviction of the applicant. I will refer to the offence as “the s 112(1)(a) offence”, and the conviction as “the 112(1)(a) conviction”. The distinction is not immaterial.

4. [4]

   Upon conviction the applicant’s bail was continued pending sentence. On 11 June 2021 the applicant was sentenced by Hoy DCJ to a term of imprisonment for 2 years and 3 months, notionally (to allow for periods of pre-sentence custody), commencing on 12 December 2020 with a non-parole period which expired on 11 December 2021. I assume that she was taken into custody on 11 June.

5. [5]

   While she was at liberty subject to bail conditions, the applicant committed a further series of offences. In the evening of 20 January 2021 (that is, while the trial before Hoy DCJ was in progress) the applicant entered commercial premises in George Street, Sydney and used an implement such as a screwdriver or jemmy bar to force open the door of a room in the premises. She was subsequently charged with an offence of breaking and entering with intent to commit an indictable offence, an offence against s 113(1) of the Crimes Act.

6. [6]

   In the evening of 22 January 2021 (which appears to have been the date the jury returned its verdict of guilty to the s 112(1)(a) offence) the applicant entered a Chinese restaurant in Sussex Street Sydney, disabled a CCTV camera in the kitchen, forced open a locked drawer and removed $800 in cash, the day’s takings. She then exited the store by opening a locked back door. She was subsequently charged with being in a building, committing a serious indictable offence and breaking out of the building, an offence against s 112(1)(b) of the Crimes Act.

7. [7]

   On 23 February 2021, while still on bail, the applicant entered a staff room at the Bankstown Public School. She stole, from a locked filing cabinet, a wallet belonging to a teacher at the school. Contained in the wallet was a credit card, which the applicant used on eight occasions on the same day to purchase goods and services. In the afternoon of this same day, the applicant attended the Bankstown Sports Club, where she urinated onto a carpet.

8. [8]

   The applicant was arrested on 25 February 2021. Bail was initially refused. On 8 December she was granted bail in the Local Court (although she was then still in custody with respect to the s 112(1)(a) conviction). The non-parole period imposed by Hoy DCJ expired on 11 December 2021 and the applicant was released on parole (subject to conditions) on 15 December 2021, subject also to the bail conditions imposed by the Local Court.

9. [9]

   On 13 May 2022 the applicant came before Wass DCJ charged with three counts arising out of the events of 23 February 2021, one of entering a building with intent to commit an indictable offence, one of larceny, and one of an offence against s 192E(1)(a) of the Crimes Act, of dishonestly obtaining property by deception. Seven counts of dishonestly obtaining property by deception of which the applicant admitted her guilt were identified on a Form 1 pursuant to Pt 3, Div 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”) (“the Form 1 Offence”). One count of an offence against s 195(1)(a) of the Crimes Act, of recklessly damaging property, was certified as a “related offence” pursuant to s 166 of the Criminal Procedure Act 1986 (NSW). The s 195(1)(a) count arose out of the urination on the carpet in the Bankstown Sports Club.

10. [10]

    The proceedings were not finalised on that day and the applicant was granted conditional bail. (The proceedings were successively stood over. In all, the matters were before Wass DCJ on 8 separate occasions between 3 March 2022 and 22 November 2022, before being finally disposed of on 2 December 2022.)

11. [11]

    To return to the factual narrative: on 16 June 2022 the applicant entered commercial premises of a business called “Escape Hunt” in George Street, Sydney, and stole $1136.00 in cash. She was charged with three offences. The first was of entering a building with intent to commit an indictable offence (larceny) (Crimes Act, s 114(1)(d)); the second was of larceny, under s 117 of the Crimes Act. The third count was brought under s 115 of the Crimes Act, which is best set out in full:

12. [12]

    There are two elements to an offence against s 115: (i) a previous conviction for an indictable offence and (ii) commission of an offence against s 114. Proof of the previous conviction is sufficient to satisfy the first element. The indictable offence of which the applicant had been convicted was the s 112(1)(a) offence, for which the applicant had been sentenced by Hoy DCJ on 11 June 2021. The s 114 offence which provided the foundation for the second element of the s 115 offence was the offence of breaking into the premises of Escape Hunt in respect of which the applicant was charged (and convicted) under s 114(1)(d).

13. [13]

    These charges, together with the charges arising from the 23 February 2021 offences, came before the sentencing judge on 14 October 2022. The applicant entered pleas of guilty to all counts.

14. [14]

    On 2 December 2022 the applicant was sentenced, pursuant to s 53A of the Sentencing Procedure Act, to an aggregate term of imprisonment for 3 years and 1 month commencing on 5 July 2022 and expiring on 4 August 2025, with a non-parole period of 2 years, which will expire on 4 July 2024. As required by s 53A(2)(b), the sentencing judge indicated the sentences she would, if sentencing separately for each of the offences, have imposed. Except for the s 115 offence, these ranged between imprisonment for 3 months and imprisonment for 9 months. In respect of the s 115 offence, the indicated sentence was imprisonment for 9 months.

The Remarks on Sentence

1. [15]

   In sentencing the applicant the sentencing judge took into account evidence of the applicant’s previous history of offending (which is significantly more extensive than has here been detailed), and evidence of her personal circumstances, which includes a long-standing drug addiction. As no proposed ground of appeal raises any issue about the manner in which the sentencing judge treated the evidence of the applicant’s personal circumstances, it is not necessary at this point to say more about them.

2. [16]

   In the course of her remarks on sentence, the sentencing judge turned her attention to the assessment of the objective seriousness of the offences. She assessed all offences (other than the s 115 offence) as “towards the lower end of objective seriousness”. One of the matters which she took into account in that assessment was that:

3. [17]

   Specifically in relation to the assessment of the objective seriousness of the s 115 offence (which she assessed as “at about the mid-range for offending of its kind”), the sentencing judge said:

4. [18]

   The indicated sentence of imprisonment for 9 months for the s 115 offence gave rise to the second ground of appeal.

The grounds of appeal

1. [19]

   The proposed grounds of appeal are pleaded as follows:

2. [20]

   A common element underlies grounds 1 and 3. In each case, the applicant contends that, in assessing objective seriousness, the sentencing judge took into account an impermissible consideration. In the case of ground 1, the impermissible consideration was that the applicant was, at the time of the relevant offending, subject to conditional liberty. In the case of ground 3, the impermissible consideration was that, in respect of the assessment of the objective seriousness of the s 115 offence, the sentencing judge took into account the applicant’s “long history of like offending”.

3. [21]

   It is well established that an assessment of the objective seriousness of an offence is an essential component of the sentencing exercise. That is, if for no other reason, because:

4. [22]

   That an offence is committed whilst the offender is on conditional liberty is a relevant, and, indeed, a mandatory, consideration for sentencing purposes: Sentencing Procedure Act, s 21A(2)(j). It is relevant, at least, to the assessment of moral culpability and prospects of rehabilitation. But it does not bear upon the assessment of the objective seriousness of the offence, and it is necessary that sentencing judges guard against its intrusion into that assessment, in order to ensure that the sentence is not inflated beyond what is “appropriate to the gravity of the crime considered in light of its objective circumstances”.

5. [23]

   The natural reading of the passage of the remarks on sentence extracted above at [16] persuasively demonstrates that, in this case, the sentencing judge did inadvertently allow the applicant’s status as at conditional liberty to affect the assessment of objective seriousness of the offences other than the s 115 offence.

6. [24]

   The Crown argued, however, that, when the remarks on sentence are read as a whole, the inclusion of the word “objective” in the passage cited above was no more than an unfortunate slip of the tongue, evidenced by the ultimate assessment that all of those offences were toward the lower end of objective seriousness. The Crown cited the decision of this Court in McGuiness v R [2021] NSWCCA 80 as an example of a case where, notwithstanding an observation by the sentencing judge that “each principal offence is additionally aggravated by the fact that [the offenders were] on parole”, this Court held that “on a fair and not overly critical reading” of the relevant passages of the sentencing remarks, it did not appear that the circumstance that the applicant in that case was on conditional liberty affected the assessment of objective seriousness.

7. [25]

   Obviously, in every case, this Court must interpret the remarks on sentence as a whole. In my opinion, in this case, the conclusion cannot be avoided that the sentencing judge took into account, in the assessment of objective seriousness of all offences other than the s 115 offence, that the applicant was on conditional liberty. That is so notwithstanding the ultimate assessment that all of those offences were “toward the lower end of objective seriousness”. Such an assessment, while adequate, is too imprecise to throw any light on any effect that irrelevant consideration may have had.

8. [26]

   In my opinion ground 1 should be upheld.

9. [27]

   Similarly, in the determination of the objective seriousness of the s 115 offence, the sentencing judge expressly took into account “the long history of like offending”, and assessed the offence as “at about the mid-range of offending of its kind”. Again, while a history of offending is a relevant, and, pursuant to s 21A(2)(d) of the Sentencing Procedure Act, a mandatory and aggravating sentencing consideration, it does not, for the same reasons given above in relation to ground 1, bear upon the objective seriousness of an offence, and must be kept separate from that assessment. To take prior offending into account in the assessment of objective seriousness is to risk imposing additional punishment for offences for which the offender has already been punished. Moreover, as a history of prior offending is to be taken into account as part of the personal circumstances of the offender, to include it in the assessment of objective seriousness is to double count an aggravating factor.

10. [28]

    The Crown again argued that the remark could not be read in isolation from the remainder of the sentencing remarks, and pointed out that the sentencing judge gave a detailed account of the circumstances of the s 114(1)(d) offence, which was an integral part of the s 115 offence.

11. [29]

    That may be so, but, as will be seen below in the consideration of the proposed ground 2, s 115 presents what may be unique issues for sentencing purposes. It was particularly important in relation to that offence that irrelevant considerations such as the applicant’s “long history of like offending” be excluded from the assessment of objective seriousness.

12. [30]

    I would, accordingly, also uphold ground 3.

13. [31]

    The consequence of my conclusions that error in the sentencing process has been established is that the leave to appeal sought should be granted, the appeal allowed and that this Court must proceed to re-exercise the sentencing discretion: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. That makes it strictly unnecessary to determine ground 2. However, the ground raises issues of some importance concerning a rarely used but difficult provision. It will, in any event, be necessary, in the resentencing exercise, to consider the application of s 115.

14. [32]

    Ground 2 concerns the indicated sentence for the s 115 offence. Section 115 is set out above. It is an unusual provision. According to the applicant’s submissions (which were not disputed by the Crown) s 115 offences are rarely charged, with just nine cases between September 2018 and December 2022 recorded in the statistics maintained in the Judicial Information Retrieval System.

15. [33]

    To make the position clear: the applicant was convicted in January 2021 of an indictable offence. That is the first element of the s 115 offence. She has served a term of imprisonment for that offence. On 16 June 2022 she committed an offence against s 114(1)(d) of the Crimes Act. (The offences upon which the Crown relied was the offence committed at Escape Hunt in George Street, Sydney on 16 June 2022). That is the second element of the s 115 offence. The aggregate sentence imposed on 2 December 2022 and the subject of the present application for leave to appeal incorporates punishment for that offence. The sentence indicated as the sentence that would have been imposed for that offence was imprisonment for 9 months. That was a component of the aggregate sentence.

16. [34]

    It was the combination of the applicant’s conviction of the s 112(1)(a) offence, and her commission of the Escape Hunt s 114(1)(d) offence, that gave rise to the further charge under s 115. That made the applicant liable for a further term of imprisonment of (a maximum of) 10 years. There was no additional act of criminality to constitute the s 115 offence; no additional act of criminality was necessary - that offence was complete on proof of the s 112(1)(a) conviction and the applicant’s commission of the s 114(1)(d) offence (proved by her plea of guilty).

17. [35]

    The applicant therefore contended that, in contravention of long-standing common law principles, she was doubly punished for the s 114(1)(d) offence: see, for example, Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 (“Pearce”), in the joint judgment of McHugh, Hayne, and Callinan JJ.

18. [36]

    Bereft of authority, and absent other provisions of the Crimes Act, I would have inclined to the view that s 115 should be interpreted as providing an increased penalty for any offence against s 114, where the offender had previously been convicted of any indictable offence. Established authority, together with other statutory provisions, contradicts that interpretation: R v Tillott (1991) 53 A Crim R 46 (“Tillott”); Darcy v R [2022] NSWCCA 54 (“Darcy”). The reasons are explained in Tillott at p 53 ff and Darcy at [7] ff and [50] ff.

19. [37]

    In effect, what is created by s 115 is an offence of recidivism, something otherwise (to the best of my knowledge) unknown in this jurisdiction (whether at common law or created by statute). Section 115 purports to create an offence that has neither an actus reus, nor a mens rea. It has been recognised as an anomaly in the criminal justice system of NSW. Proof of a s 115 offence requires no proof of any criminal conduct other than the commission of the two criminal offences that, together, are sufficient to constitute the elements of the offence, in respect of each of which the offender will already have suffered (or will be liable to) punishment.

20. [38]

    The effect of s 115 is therefore to expose the already punished offender to a further penalty of imprisonment for up to 10 years. In a 1996 report the NSW Law Reform Commission recommended the repeal of (inter alia) s 115: Sentencing, NSWLRC 79 at 10.19. No such action has been taken. This is an appropriate case by which to remind the legislature of the NSWLRC recommendation.

21. [39]

    Section 115 is inconsistent with prevailing sentencing standards, which abjure double punishment. It is inconsistent with notions of just punishment for offending. It is, nevertheless, the expression of the will of the legislature and cannot be overridden by judicial decree or intervention. One curious feature of s 115 is that it is only offences against s 114 of the Crimes Act that attract the additional sanction provided by s 115.

22. [40]

    The question raised by ground 2 is how an offender is properly to be sentenced for a s 115 offence, paying due regard to the facts of the offence, and without discarding long-held and well-established concepts of justice, most recently stated in Pearce. Are the principles stated in Pearce excluded in sentencing for a s 115 offence?

23. [41]

    First, it is necessary to understand the context in which the observations in Pearce, on which the applicant relies, were made.

24. [42]

    Mr Pearce broke into a house and assaulted the occupant, causing him grievously bodily harm. He was charged with a number of offences, one of which was an offence of maliciously inflicting grievous bodily harm with intent to do so (count 9, an offence against s 33 of the Crimes Act) and another of which was breaking and entering a dwelling house and inflicting on the occupant grievous bodily harm (count 10 an offence against s 110 of the Crimes Act).

25. [43]

    The offences were committed at a time before s 53A was inserted into the Sentencing Procedure Act, permitting the imposition of an aggregate sentence for multiple offences. Mr Pearce was accordingly sentenced separately in respect of all offences, including the s 33 and s 110 offences (in respect of which identical and concurrent sentences were imposed).

26. [44]

    Different elements comprised the two offences. The High Court therefore rejected a contention by Mr Pearce that he was exposed to “double jeopardy”, meaning, as I understand it, being charged twice for the same conduct.

27. [45]

    Common to both of offences was an element of the infliction of grievous bodily harm. Mr Pearce contended (successfully) that, because the infliction of grievous bodily harm was taken into account in the sentencing for each offence, he had been doubly punished for that element. McHugh, Hayne and Callinan JJ accepted that contention. Their Honours said:

28. [46]

    It makes no difference that, in contrast to Mr Pearce, the applicant was sentenced under s 53A to an aggregate term of imprisonment. Section 53A relevantly provides:

29. [47]

    Principles applicable to sentencing pre-s 53A are equally applicable to the determination of the sentence to be indicated under s 53A(2)(b) in relation to individual offences. There is nothing in s 53A that interferes with or impinges on the principles stated in Pearce.

30. [48]

    It is the first sentence at [40] of Pearce on which the applicant relies to support ground 2. One difficulty that she faces is that the principles stated are principles developed at common law. As their Honours in Pearce observed in the joint judgment, such general principles must yield to any contrary legislative intention. In [41] their Honours expressly noted that there was nothing in s 33 or s 110 of the Crimes Act more generally, that suggest that an offender such as Mr Pearce should be twice punished for the infliction of grievous bodily harm on the victim in that case.

31. [49]

    The same cannot be said of s 115. On its face, by creating a separate offence with a maximum penalty of imprisonment for 10 years, s 115 at least suggests a legislative intention that an offender who satisfies the criteria (that is, who has been convicted of an indictable offence and who subsequently commits an offence against s 114) is to be punished again, notwithstanding that that offender has been punished for the indictable offence and has been, or will be, punished for the s 114 offence.

32. [50]

    A not dissimilar question arose in Darcy. In that case Mr Darcy pleaded guilty, inter alia, to four counts of offences under s 114(1)(d). Having previously been convicted of an indictable offence (break, enter and steal), he was also charged with four counts under s 115. At first instance, in respect of three of the s 114(1)(d) offences, the indicated sentences were imprisonment for 3 years, and, for the fourth, imprisonment for 2 years 1 month and 14 days. In respect of each of the s 115 offences, the indicated sentences were imprisonment for 2 years 9 months and 23 days.

33. [51]

    In accordance with the decision in Tillott, this Court rejected Mr Darcy’s contention that an offence against s 115 was to be regarded as an aggravated form of the s 114 offence. It seems that this Court considered as material to the sentencing exercise the fact that no further offending was necessary (or committed) to constitute the s 115 offences.

34. [52]

    In Darcy, Beech-Jones CJ at CL considered that the Pearce principles are not excluded in sentencing for s 115 offences, and that, “Pearce still has much work to do in relation to the resentencing of [Mr Darcy]”. His Honour concluded:

35. [53]

    With the greatest of respect I have some difficulty with this approach. If Pearce principles are to be applied in the determination of the indicated sentence for the s 115 offence, I see no logic in nominating any period of imprisonment – any such period of notional imprisonment would reflect punishment for the s 114(1)(d) offence, or the indictable offence (in this case, the s 112(1)(a) offence), or both.

36. [54]

    Either, notwithstanding s 115, Pearce principles apply, or they do not. If they do apply, any additional penalty for the s 115 offence would be a contravention, because it would result in double punishment for one or other or both of the foundational offences. That difficulty is not ameliorated by reducing the indicated sentence to a nominal one.

37. [55]

    If Pearce principles do not apply, the objective gravity of the s 115 offence must be assessed. That depends in large part on the actus reus – but there is no actus reus.

38. [56]

    The only authority on the application of Pearce principles to s 115 offences of which I am aware is Darcy in which Beech-Jones CJ at CL, with the concurrence of Davies and Bellew JJ, held that those principles had “much work to do” in the resentencing of Mr Darcy. As I do not consider that conclusion to be “plainly wrong”, principles of comity require adherence to his Honour’s conclusion.

39. [57]

    As Beech-Jones CJ at CL noted in Darcy, s 53A(2)(b) obliges a sentencing judge to indicate the sentence that would have been imposed for each offence. That calls for determination of what sentence would have been imposed in relation to the s 115 offence. As discussed in relation to ground 1, an essential aspect of sentencing is the determination of objective gravity of the offence for which sentence is to be passed. As I have suggested above, there is no concrete act or omission for which sentence is to be passed (or indicated) in relation to a s 115 offence. The gist of a s 115 offence is the commission of an offence under s 114 by an offender who has already been convicted of an indictable offence. There is no additional act or omission of criminality. If the s 115 offence were to be charged separately, it would be inappropriate to impose any penalty. It follows that it would be equally inappropriate, in dealing with a s 115 offence as part of an aggregate sentence, to indicate any sentence as the sentence that would have been imposed. The consequence is that I would uphold ground 2.

Re-sentencing the applicant

1. [58]

   The objective circumstances of the offending have been set out above (see [5]-[7] and [11]).

2. [59]

   As mentioned above, no complaint was made on behalf of the applicant concerning the treatment by the sentencing judge of the evidence of her personal circumstances. It is appropriate to adopt the findings and observations of her Honour.

3. [60]

   The applicant was born in April 1976. She was 45 and 46 years of age when the relevant offending was committed. She entered pleas of guilty at an early stage and the sentencing judge allowed a 25% reduction in the sentence she otherwise would have imposed in recognition of that circumstance.

4. [61]

   Before her Honour was extensive psychological evidence. The applicant began using heroin at the age of 16.` She also appears to have had a gambling addiction. There is a suggestion that she suffered from obsessive compulsive disorder.

5. [62]

   The applicant’s criminal history commenced in 1992 (also when the applicant was aged 16 and committed a robbery in company). There have followed numerous and regular convictions for offences of dishonesty.

6. [63]

   The applicant gave evidence in the sentencing proceedings. The evidence is largely incoherent and does little to assist in the determination of the appropriate sentence. In any event, the sentencing judge identified, in the applicant’s evidence, and on other occasions, a number of lies told by the applicant. It is apparent that, with good reason, the sentencing judge placed no reliance on any explanation for her offending behaviour given by the applicant. Her Honour did, however, accept an expression of regret by the applicant for the theft of the wallet from the Bankstown Public School, but considered that that regret was “tempered” by the applicant’s unwillingness to take responsibility for her commission of that crime. Her Honour also accepted the applicant’s expression of regret for the stress her activities had caused to her mother.

7. [64]

   The sentencing judge considered the applicant’s risk of re-offending to be “extremely high”. She considered the extensive psychological evidence and was of the opinion that the applicant is in need of “very specialised mental health treatment”. She considered the applicant to be “an extremely intelligent woman” who, “with the right supports” might “turn her life around”.

8. [65]

   Having regard to the psychological evidence, the sentencing judge considered that this was not a case for general deterrence to have any significant effect.

9. [66]

   Against the possibility that this Court might come to re-sentence, additional evidence was admitted. The applicant provided an affidavit, alleging that, while in prison in 2011, she had been sexually assaulted by a male prison officer, who, the evidence established, is now incarcerated for similar offences, and under investigation for others. I would accept that evidence but am not persuaded that it weighs to any significant extent on the determination of the appropriate sentence for the present offences.

10. [67]

    Evidence was also filed by the Crown that, while in custody, the applicant has been the subject of five misconduct reports between January 2023 and September 2023.

11. [68]

    In all of the circumstances the applicant presents an extremely complex sentencing task. On the one hand, her long history of offending, her persistent drug use, and her apparent mental health issues, confirm the sentencing judge’s assessment of her risk of re-offending as “extremely high”. On the other hand, again as the sentencing judge found, the applicant’s mental health issues make her an inappropriate vehicle for general deterrence.

12. [69]

    The applicant is to be sentenced, on 9 counts, taking into account another 7, these last all being offences of dishonestly obtaining a financial advantage by deception by the use of the stolen credit card. Most of the offences involve relatively small amounts. Nevertheless, the persistence of the applicant in offending, together with her lengthy history of offending, leaves no conclusion other than that a sentence of imprisonment must be imposed: Sentencing Procedure Act, s 5.

13. [70]

    Notwithstanding the errors in the approach taken by the sentencing judge to the assessment of objective seriousness of the offences other than the s 115 offence, I would also conclude that those offences are “towards the lower end of objective seriousness.” That is because, as the sentencing judge observed, they generally involved little if any planning, and the amounts involved were generally not great.

14. [71]

    Independently of the sentence arrived at by the sentencing judge, I have come to the view that the appropriate aggregate term of imprisonment is one of 3 years. That also happens to be the sentence arrived at by Button J in his independent assessment. I would specify a non-parole period of 2 years.

15. [72]

    Putting out of my mind the sentences indicated by the sentencing judge pursuant to s 53A(2)(b), I have considered the sentences that I would, if sentencing separately for each offence, have imposed. With the exception of the s 115 offence, each is longer than that nominated by the sentencing judge. That being the case, it is appropriate simply to adopt those indicated by her Honour.

16. [73]

    As will be clear from the analysis (see [33]-[39], [46]-[59]) above, I would indicate that, had I been sentencing the applicant for the s 115 offence, I would have imposed no term of imprisonment. I would indicate that, pursuant to s 10A of the Sentencing Procedure Act, I would have disposed of that matter without imposing any other penalty.

17. [74]

    The orders I propose are:

18. [75]

    BUTTON J:

Resolution of two grounds

1. [76]

   During the remarks on sentence, the learned sentencing judge said the following:

2. [77]

   Her Honour then proceeded to provide details of that conditional liberty, all of which were adverse to the applicant.

3. [78]

   A little later in the remarks it was said, regarding one of the many offences:

4. [79]

   Those parts of the remarks have led to the following two proposed grounds of appeal:

5. [80]

   Contrary to the submission of the Crown in this Court, reading the remarks as a whole does not permit any reading other than that subjective features pertaining to the offender were taken into account in assessing the objective seriousness of the offending of the applicant. And although I think it quite possible that the way the sentencing judge expressed herself was simply a verbal slip, I also think that the safer course is to uphold both grounds and move to resentence.

6. [81]

   I say that appreciating that sentencing is an exercise in instinctive synthesis, and also appreciating that the discussion by this Court in DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 shows that the lines between objective seriousness, subjective features, and the ultimate evaluation of the moral culpability of an offender are inevitably blurred: see the discussion in that case at [64 ff] of cases such as Tepania v The Queen (2018) 275 A Crim R 233; [2018] NSWCCA 247 and Paterson v R [2021] NSWCCA 273.

7. [82]

   Even so, as DS v R; DM v R makes clear at [68], the objective seriousness of an offence “operates as a limitation on the appropriate sentence that can be imposed… [in that] a court cannot impose a sentence which exceeds that which is appropriate or proportionate to the gravity of [the] crime”; reference was made there to the decisions of the High Court in Veen v The Queen [No 2] (1988) 164 CLR 465; [1988] HCA 14 and Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33.

8. [83]

   In other words, keeping separate objective features of the offending and subjective features – especially adverse ones – of the offender has an important role to play: it ensures that the sentence imposed is not any longer than it can be in reflecting the gravity of the offending under consideration.

9. [84]

   As I have said, I would uphold these two grounds.

10. [85]

    A further proposed ground was as follows:

11. [86]

    Although it is not strictly necessary to deal with this ground, I think I should address it. That is because what has been found by this Court to be the nature of the offence in s 115 of the Crimes Act 1900 (NSW) is unusual to the point of anachronism and anomaly. The section is as follows:

12. [87]

    The background to the ground is that the applicant had been charged with an offence of entering with intent to commit the indictable offence of larceny, pursuant to s 114(1)(d) of the Crimes Act 1900. That was founded upon an offence committed on 16 June 2022 at a business in Sydney called “Escape Hunt”. In a nutshell, the applicant had entered the premises early one morning with the intention of stealing. She completed the offence of larceny by stealing over $1,100 in cash from a drawer in the staff room. She pleaded guilty to both offences, and was sentenced for them by her Honour. On indictment, the offence of entering a building with intent to commit an indictable offence therein carries a maximum penalty of imprisonment for 7 years. The sentencing judge provided an indicative sentence of 6 months for that offence.

13. [88]

    Notably, the applicant was also charged with, and pleaded guilty to, an offence contrary to s 115 of the same Act, based very largely upon exactly the same criminality. The only additional aspect was that she had indeed been convicted of an indictable offence before the date of her offending at Escape Hunt, 16 June 2022. That was an offence of breaking entering and committing the serious indictable offence of larceny on 2 September 2018. On that occasion, she had used previously stolen house keys to enter a home, and there stole a gold coloured necklace and bracelet and about $60,000 in cash. On 11 June 2021, the applicant had been convicted of that offence in the District Court, and sentenced to a head sentence of imprisonment for 2 years 3 months, with a non-parole period of 1 year.

14. [89]

    Returning to the offence against s 115 under discussion, the sentencing judge provided an indicative sentence of 9 months.

15. [90]

    The submission for the applicant accepted that, in the remarks on sentence, the sentencing judge had explicitly and correctly referred to the recent jurisprudence about how to approach s 115 in Darcy v R [2022] NSWCCA 54. In accordance with that decision of this Court, the sentencing judge also referred to the patent overlap in elements of offences between ss 114 and 115; the necessity to avoid double punishment; the fact that concurrence in sentences is not a complete answer to that necessity; that the sentences should not be disproportionate to the criminality demonstrated; that one should not be punished twice for what is truly a single act; and that the imposition of indicative sentences did not relieve her Honour of the responsibility of avoiding double counting.

16. [91]

    And yet it was said that the practical solution arrived at in Darcy by Bellew J at [75], with the agreement of Davies J and Beech-Jones CJ at CL (as his Honour then was), to the problem presented whenever an offender is convicted of offences contrary to both s 114 and s 115 arising almost completely from the exact same conduct was to indicate sentences of as little as 2 months for offences against the latter section, despite its maximum penalty on indictment of imprisonment for 10 years.

17. [92]

    In the circumstances, the submission was that the indicative sentence provided here of 9 months must be erroneous, especially when seen in the context of an indicative sentence of 6 months provided for the s 114 offence arising very largely from precisely the same conduct.

18. [93]

    I respectfully disagree. True it is that the solution proposed in Darcy was the imposition or indication of remarkably short sentences, sentences somewhat shorter than those indicated here. But in this case the indicative sentences themselves were short in any event; the longer exceeded the shorter by only 3 months; and even notional concurrence or cumulation is impossible to discern here, in the context of an aggregate head sentence founded upon a multiplicity of indicative sentences.

19. [94]

    I am not persuaded that the approach adopted by her Honour was erroneous in its outcome, especially since no error of principle was identified.

20. [95]

    I would not uphold ground two.

21. [96]

    Having said that, I respectfully accept that the longstanding analysis of this Court in R v Tillott (1991) 53 A Crim R 46 is to the effect that s 115 does indeed create a separate offence made up of a combination of past and present criminality, founded upon a past conviction and a current offence contrary to s 114. I also accept that that analysis was recently confirmed as correct by this Court in Darcy, although the then Chief Judge spoke of the situation as being “[c]ounterintuitive as it all appears”: at [7].

22. [97]

    Even so, it seems to me that that kind of offence-creating provision is the voice of the late 19th century (the direct precursor of s 115 appeared in New South Wales in s 110 of the Criminal Law Amendment Act of 1883 (NSW) (46 Vic No 17)) speaking in a way that is discordant with modern sentencing in 2024. It is impossible to reconcile such an offence – based as it is on a previous conviction, for which one was appropriately punished, and a new offence against s 114, for which one will be appropriately punished – with what has been said about not sentencing twice for the same offence (as opposed to two or more offences arising from the same facts) in Pearce v R (1998) 194 CLR 610; [1998] HCA 57 at [49], and the modern approach to autrefois acquit and convict based on avoidance of injustice established in Island Maritime Ltd v Filipowski (2006) 226 CLR 328; [2006] HCA 30. The solution provided by this Court of imposing or indicating trifling sentences for an offence that has a significant maximum penalty suggests that the disjunction between the 19th century and the 21st is extreme.

23. [98]

    In my respectful opinion, a more fundamental solution may be that, if a conviction is to be obtained for an offence against s 114, it is very difficult to envisage the circumstances in 2024 in which it could also be appropriate for the Crown to seek a conviction pursuant to s 115 of the Crimes Act.

Resentence

1. [99]

   Being of the view that two of the three grounds of appeal against sentence should succeed, I turn to the question of resentence.

2. [100]

   In short, the applicant committed a series of offences against property, none of them of the utmost gravity, but notable by their number and repetitive modus operandi. The latter included a degree of skill and reflection, not least in disabling security cameras and taking the trouble to enter premises at times when the risk of detection was reduced. Some offences were dealt with substantively, some were taken into account on a Form 1 attached to sequence 16, and one was dealt with on a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW). The following table is based very largely on the helpful one in the written submissions for the applicant, its correctness not having been disputed by the Crown:

3. [101]

   The following summary of objective features is derived from the agreed facts on sentence, and largely follows the above order, adjusted for ease of comprehension.

4. [102]

   Sequences 2 and 11: In the afternoon of 23 February 2021, the applicant entered the grounds of a public school. She was seen in the office of the deputy principal. She had no legitimate reason to be there, and in truth was there intending to commit an indictable offence. She stole a wallet that belonged to a teacher, and which contained a small amount of cash and a number of credit and debit cards.

5. [103]

   Sequence 1 (on certificate): About an hour later, the applicant, in possession of the wallet, entered a sports club. There she urinated on the carpet, for some unknown reason.

6. [104]

   Sequences 3 to 10 inclusive: On the same day, the applicant used stolen cards from the wallet to make eight fraudulent charges, the greatest of which was a little over $113. As can be seen, it was to offence 3 that all of the Form 1 offences were “attached”.

7. [105]

   Sequence 12: On 20 January 2021, the applicant attended at commercial premises in George Street, Sydney. CCTV showed the applicant entering at about 7:45 PM, and trying unsuccessfully to open a number of doors on a particular floor. She returned at 8:20 PM, this time possessing a screwdriver or jemmy bar. She succeeded in forcing open a door, damaging it; confronted by a tenant, she departed.

8. [106]

   Sequence 13: A couple of days later, on 22 January 2021, the applicant entered a shopping complex in Sussex Street, Sydney at about 9:40 PM. She walked up to an unoccupied takeaway food restaurant. She jumped the counter, and disabled a CCTV camera. She then forced open a locked drawer and stole $800 in cash. She was identified nevertheless by CCTV.

9. [107]

   Sequences 14 and 15: On 11 June 2021, as detailed regarding ground two, the applicant had been convicted of an indictable offence in the District Court. Subsequently, early in the morning of 16 June 2022, as I have said, the applicant entered commercial premises in George Street Sydney known as “Escape Hunt”. The business provided a challenge whereby paying customers sought clues in order to escape from a locked room. Having entered, the applicant used a mobile phone for illumination. She disabled a CCTV camera.

10. [108]

    Sequence 16: The applicant stole $1136, which was the petty cash for the business. Again, despite her efforts to avoid detection, she was identified by CCTV footage.

11. [109]

    As I have said, the offences were not of the utmost seriousness. On the other hand, most of them were not entirely spontaneous, and showed a degree of targeting; many of them would have been disruptive if not distressing to their victims.

12. [110]

    Senior counsel for the applicant did not submit that, if this Court came to resentence, any factual findings or evaluative judgments of the sentencing judge, including negative ones, should be revisited (save for the basis of the two grounds I would uphold).

13. [111]

    A 25% discount on sentence applied to all offences being dealt with substantively, in light of pleas in the Local Court. I would adopt the same approach on resentence.

14. [112]

    All offences were committed whilst on various forms of conditional liberty, including bail and an intensive correction order (ICO). In fact, the applicant continued to reoffend even after having been granted conditional liberty at one stage by the sentencing judge herself. To expand on that a little, she was initially subject to an ICO, which was revoked on 23 March 2021. From 8 December 2021, up until her arrest for the current matters, the applicant was on conditional bail. Certainly, all of that was significantly adverse to the applicant on sentence.

15. [113]

    The applicant was born in April 1976, and was therefore aged 46 when sentenced in December 2022, and is now aged 47. She commenced intersecting with the criminal justice system in July 1992, when she was charged with committing a robbery in company at the age of 16. Since that time, she has committed a very large number of offences against property, to my assessment substantially because of psychological problems and a problem with prohibited drugs. As for the latter, her first conviction for an offence of that nature related to August 1996; the last occurred in January 2021. The applicant herself said that “the lifelong association had been with heroin”.

16. [114]

    She was first imprisoned in June 1997, and since that time has spent many periods in custody, one of which extended from June 2005 until December 2009, and another of which extended from July 2011 until May 2016.

17. [115]

    The sentencing judge found that the applicant had told countless lies, many of them readily disproven, and could not safely be believed without corroboration. Having said that, the assertion of the applicant that she was not, in fact, committing these offences in order to fund a drug habit, but rather to deal with various personal financial commitments, was accepted by her Honour.

18. [116]

    Although the sentencing judge found that the applicant had lied about her employment, her Honour did accept that the applicant had been helping an older woman in the community, taking her to appointments or picking up essentials when needed. The applicant also spent much of her time aiding her mother with the care of her sister’s children. It was noted that the applicant has a close bond with these persons, and a desire to do her best for them.

19. [117]

    Although the applicant gave evidence of her strong desire to be both free of drugs and away from the criminal justice system, her Honour found that the evidence “rang hollow” in light of her offending even whilst subject to conditional liberty, and the fact that she had, on the applicant’s own account, committed these offences even when she was no longer taking illicit drugs.

20. [118]

    Her Honour did not accept that the pleas of guilty evidenced remorse.

21. [119]

    The applicant’s risk of reoffending was judged to be “extremely high”. She had “low prospects of rehabilitation” at the time of sentencing.

22. [120]

    The Court received an affidavit from the applicant of events after imposition of sentence, to be relied upon if the stage of resentence was reached.

23. [121]

    She speaks of having been the victim whilst in custody of a serious offence committed by a prison officer, an assertion that I accept on the balance of probabilities. She also speaks of that offending making access to therapeutic programs difficult logistically, and of her efforts to seek treatment for the trauma arising from that offending. Again, I accept those assertions on balance.

24. [122]

    An affidavit from her solicitor on the same contingent basis showed that the applicant had made a formal complaint about the offences committed against her in custody. I accept that on balance as well.

25. [123]

    An affidavit from a solicitor for the Crown received on the same basis provides an updated picture of the behaviour of the applicant in custody. Since the imposition of sentence in December 2022, the applicant has committed eight offences against prison discipline, resulting in various punishments. Notably, in July 2023 she was dealt with for stealing in prison.

26. [124]

    In my opinion, the offending of the applicant is underpinned generally by a chronic dependence on prohibited drugs, itself underpinned by psychological problems that are exacerbated by that dependence. The finding of the sentencing judge that, at the time of the commission of the offences under consideration, the applicant was not using drugs may have been, in my respectful opinion, open to contest, not least because the denials of the applicant of drug use at the time possess, in my opinion, little or no probative value.

27. [125]

    But even accepting the unimpugned proposition about absence of drug use at the times in question, I assess this repetitive, simplistic, compulsive offending against property as at least indirectly to do with chronic psychological problems and concomitant drug addiction.

28. [126]

    Despite the many failures of the applicant in the past, if this Court had been empowered to do so, I would have proposed ascertaining whether the applicant is eligible to be referred to the Drug Court, and whether she would be willing for that to occur: see s 6(2) of the Drug Court Act 1998 (NSW), including the reference to resentence in s 6(3)(b). However, I accept the joint position of the parties that this Court does not have that power, because the regulations do not prescribe it as coming within that section: see s 6(1) of the Drug Court Act 1998, and cl 6 of the Drug Court Regulation 2020 (NSW).

29. [127]

    Reflecting then on orthodox resentence: sentences of full-time imprisonment for almost all of these offences are unavoidable. I would not provide indicative sentences less than those provided by the sentencing judge, and would therefore replicate them. For the reasons given above with regard to ground two, that replication includes the indicative sentences for offences 14 and 15.

30. [128]

    Reflecting on the aggregate head sentence and non-parole period: in light of the multiplicity of offences, the very adverse criminal record of the applicant, the conditional liberty to which she was subject at the time of the offending, and the prospects of rehabilitation that at best remain very guarded, I would not impose a non-parole period less than that imposed by the sentencing judge.

31. [129]

    On the other hand, exercising the sentencing discretion afresh, I would impose an aggregate head sentence of imprisonment for 3 years, with the result that the release of the applicant to parole at the conclusion of the non-parole period will not be a matter requiring the consideration of the State Parole Authority.

Proposed orders

1. [130]

   I therefore propose the following orders:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Appeal against sentence granted, and sentence quashed.

   3. (3)

      In lieu, the applicant is sentenced to an aggregate head sentence of imprisonment for 3 years, to commence on 5 July 2022 and expire on 4 July 2025, with a non-parole period of 2 years, to expire on 4 July 2024.

   4. (4)

      The applicant is to be released to parole on 4 July 2024.

2. [131]

   WEINSTEIN J: I have read and considered the judgments of Simpson AJA and Button J in draft form. My reading of their Honours’ judgments is that they largely agree with respect to the disposition of grounds 1 and 3. I respectfully agree with both their Honours’ reasoning and their conclusions.

3. [132]

   As to ground 2, I adopt the reasoning and conclusions of Simpson AJA and would uphold that ground of appeal. In particular, I note her Honour’s comments that in 1996, some five years after the decision of R v Tillott (1991) 53 A Crim R 46, the NSW Law Reform Commission (NSWLRC) recommended the repeal of s 115 of the Crimes Act 1900 (NSW). Both Simpson AJA and Button J have concluded that s 115 is inconsistent with contemporary sentencing standards, a proposition with which I wholeheartedly agree. The instant case is an example of why the legislature should be reminded of the NSWLRC’s recommendation.

4. [133]

   On resentence, like Simpson AJA, and for the reasons articulated by her Honour, I would adopt the sentences indicated by Wass SC DCJ save for the indicative sentence for the s 115 offence. Like Simpson AJA, I would have disposed of that matter pursuant to section 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW), i.e. I would have convicted the applicant without imposing any other penalty.

5. [134]

   I agree with the orders proposed by Simpson AJA.