BG v R

1. [1]

   SIMPSON AJA: I agree with Bellew J.

2. [2]

   BELLEW J: On 1 April 2016 BG (“the applicant”) pleaded guilty before the District Court at Lismore to a number of offences, the details of which are as follows:

3. [3]

   In addition, the applicant asked the sentencing Judge to take into account the following matters on a Form 1.

4. [4]

   On 4 April 2016 the sentencing Judge imposed an aggregate sentence of 9 years imprisonment with a non-parole period of 6 years and 4 months imprisonment.

5. [5]

   The applicant now seeks leave to appeal against that sentence on the grounds set out below.

THE FACTS

1. [6]

   The applicant was sentenced with two co-offenders, to whom I shall refer as DR and AW. There was also a fourth offender, PG. A statement of agreed facts was tendered on sentence the details of which were recorded by the sentencing Judge (commencing at ROS 3) in the following terms (noting that the names of the applicant, his co-offenders, and the victims have all been anonymised):

THE GROUNDS OF APPEAL

1. [7]

   The applicant filed handwritten grounds of appeal and submissions on 21 December 2017. On 7 May 2018 further written submissions, referred to as “the revised applicant’s submissions” were filed pursuant to an order made by the Registrar. Those submissions articulate nine grounds of appeal which are set out below in the terms in which they have been framed.

The reasons of the sentencing Judge

1. [8]

   Her Honour made the following findings as to the objective seriousness of the applicant’s offending in respect of count 1 (commencing at ROS 13):

2. [9]

   As to the remainder of the offending of 6 October 2013 (counts 2-4), her Honour said (commencing at ROS 14):

3. [10]

   Her Honour then turned to the offending on 16 November 2013 (commencing at ROS 16):

4. [11]

   Her Honour then said (commencing at ROS 17):

5. [12]

   Her Honour also said (at ROS 20):

Submissions of the applicant

1. [13]

   It was submitted on behalf of the applicant that the sentencing Judge had erred in “over-assessing (the applicant’s) objective seriousness criteria of culpability in the commission of the crimes that he had pleaded guilty to, which led to potential errors in sentencing”. Specifically, it was submitted that:

2. [14]

   The oral submissions advanced on behalf of the applicant focussed upon the role of PG in the offending, the essence of such submissions being that the applicant was under PG’s influence and that this factor had not been properly recognised by the sentencing Judge.

Submissions of the Crown

1. [15]

   The Crown emphasised that any assessment of the objective seriousness of an offence is necessarily a discretionary matter for a sentencing Judge, and that no error had been shown in the assessment which had been made in the present case. The Crown made specific reference to the particular role played by the applicant in each instance of offending, and also relied upon the fact that each of the victims had suffered serious injury, with JA having been injured on both of the occasions on which the applicant had offended.

Consideration

1. [16]

   In considering this ground, it is appropriate to make reference to two matters at the outset.

2. [17]

   Firstly, the characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge. This Court will be very slow to determine such matters for itself, or to set aside the judgment made by a sentencing judge exercising a broadly based discretion: Mulato v R [2006] NSWCCA 282 at [37] per Spigelman CJ. The question is whether or not the conclusions reached by the sentencing judge were open.

3. [18]

   Secondly, one of the submissions advanced in support of this ground (as well as in support of a number of the remaining grounds discussed below) was that the sentencing Judge had failed to give appropriate weight to particular subjective factors. Leaving aside the fact that the circumstances in which such a failure will amount to error are narrowly confined (see R v Baker [2000] NSWCCA 85 at [11]), such a submission suffers a very significant preliminary difficulty, because it accepts that some consideration was given to those particular factors: King v R [2015] NSWCCA 99 at [56].

4. [19]

   It follows that an applicant who asserts that a sentencing judge failed to give adequate weight to a subjective factor must, in order to succeed, persuade this Court that that the sentencing discretion has miscarried. Such a challenge can only be successfully mounted if error of the kind identified in House v R (1936) 55 CLR 449; [1936] HCA 40 is made out: King at [56].

5. [20]

   In the present case, her Honour found that the applicant’s role in the offending in count 1 on 6 October 2013 was premeditated and planned. That finding was amply supported by evidence that the applicant and PG had:

6. [21]

   In terms of the remainder of the offending on 6 October, her Honour concluded that (inter alia):

7. [22]

   In terms of the offending on 16 November 2013, her Honour found that:

8. [23]

   In my view, the findings made by the sentencing Judge were open on the evidence. The applicant’s offending was both serious and pre-meditated, and the evidence supported the conclusions of the sentencing Judge as to where the offending fell on a scale of objective seriousness. To the extent that it was submitted before this Court that her Honour had failed to properly recognise the fact that the applicant was under the influence of PG, her Honour specifically found (as set out at [12] above) that this was the case “to some extent”. In reaching that conclusion, her Honour noted that the applicant was aged 21 at the time of the offending whilst PG was aged 26. Clearly her Honour took all of these factors into account.

9. [24]

   It was also submitted before this Court that the sentencing Judge had failed to take into account the fact that the applicant was “very confused” at the time of the offending on 6 October 2013. A conclusion that the applicant was in that frame of mind at the time of the offending was not supported by the evidence. The applicant gave evidence on sentence. At no stage did he assert that he was confused. He did say (T20.27 – T20.32) that he had consumed ice, cannabis and alcohol prior to each instance of offending, but gave no evidence as to their effect. To the extent that it might be suggested that any state of confusion arose from his consumption of such substances, that was not a mitigating factor.

10. [25]

    For all of these reasons this ground is not made out.

The reasons of the sentencing Judge

1. [26]

   Her Honour said (at ROS 27):

Submissions of the applicant

1. [27]

   The primary submission made on behalf of the applicant in support of this ground was articulated in the revised written submissions in the following terms:

2. [28]

   In oral submissions, reference was made to her Honour’s consideration of the applicant’s subjective circumstances. It was submitted, in effect, that the sentence which was imposed did not reflect proper weight having been given to such circumstances. The issues discussed at [18]-[19] above therefore arise again.

Submissions of the Crown

1. [29]

   The Crown submitted that the terms in which this ground was advanced rasied essentially the same matters relied upon by the applicant in respect of ground 1. The Crown relied upon its submissions in support of that ground.

Consideration

1. [30]

   Plainly, the applicant received the full discount to reflect the utilitarian value of his pleas of guilty.

2. [31]

   Moreover, any complaint that the sentencing Judge failed to properly assess, and give weight to, the applicant’s subjective case, must be rejected. Commencing at ROS 20 her Honour reviewed the applicant’s subjective circumstances. In doing so, her Honour found that the applicant:

3. [32]

   It is apparent from the terms in which her Honour reviewed the applicant’s subjective case that she gave it full consideration.

4. [33]

   This ground is not made out.

The evidence in the sentence proceedings

1. [34]

   The statement of agreed facts which was before the sentencing Judge recorded (at p 9) that on 7 January 2015 the applicant participated in a electronically recorded interview with police, in the course of which he nominated his co-offenders as having been involved in the offending. Leaving aside some limited exceptions, the agreed facts recorded that in doing so the applicant effectively confirmed many of the matters which had previously been disclosed to police by PG.

The reasons of the sentencing Judge

1. [35]

   As noted at [26] above, the sentencing Judge allowed a discount of 25% to reflect the utilitarian value of the applicants plea of guilty.

Submissions of the applicant

1. [36]

   The applicant accepted that he was given the benefit of a discount of 25%. However, it was submitted that he was entitled to receive a further discount for his assistance in disclosing the involvement of the co-accused. The applicant’s written submissions made reference to a report of Patrick Sheehan tendered before the sentencing Judge which, it was submitted, contained an indication of the applicant’s “latent assistance” to the authorities. It was submitted that the sentencing Judge had failed to take this into account.

Submissions of the Crown

1. [37]

   The Crown pointed out that the applicant had not approached police until almost one year after PG had spoken to them and that in these circumstances the applicant was not entitled to any discount over and above that referable to the utilitarian value of his pleas of guilty. The Crown also pointed out that counsel for the applicant on sentence did not submit that the applicant was entitled to any discount for assistance.

Consideration

1. [38]

   There were two reports of Mr Sheehan before the sentencing Judge, dated 26 June 2015 and 23 March 2016 respectively. Contrary to the submissions advanced on behalf of the applicant, neither report makes any reference to the issue of assistance. In any event, the matters of which the police were informed by the applicant, and to which reference was made in the agreed facts, did not amount to the kind of assistance contemplated by s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

2. [39]

   It is also significant, as the Crown pointed out, that counsel appearing for the applicant on sentence made no submission to the sentencing Judge that the applicant should receive an additional discount for assistance. It follows that the submissions of the applicant before this Court sought to advance a submission which was not advanced at first instance. It is well established that this Court will not lightly entertain such submissions: Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 at [81].

3. [40]

   This ground is not made out.

The reasons of the sentencing Judge

1. [41]

   As set out at [12] above, the sentencing Judge found that the applicant was under the influence of PG to some extent.

Submissions of the applicant

1. [42]

   The revised written submissions of the applicant acknowledged her Honour’s references to the respective roles played by the applicant and PG. It was submitted that her Honour’s findings did not “transfer across into the sentencing matrix and the sentencing process”.

Submissions of the Crown

1. [43]

   The Crown relied on the submissions advanced in respect of ground 1.

Consideration

1. [44]

   Once again, this ground is essentially based upon the proposition that the sentencing Judge failed to give appropriate weight to a particular subjective consideration, namely the fact that the applicant was under the influence of PG. Her Honour clearly took that factor into account in determining the appropriate sentence. No error has been identified.

2. [45]

   This ground is not made out.

The evidence before the sentencing Judge

1. [46]

   In the first of his reports, Mr Sheehan stated (at para 22) that psychometric assessment of the applicant’s cognitive functioning established that his intellectual skills were in the average range.

2. [47]

   Further, there was no dispute that the applicant was 21 years at the time of the offending and that his criminal history (which was before the sentencing judge) consisted of:

The reasons of the sentencing Judge

1. [48]

   As set out at [31] above, the sentencing Judge exhaustively reviewed the applicant’s subjective case. In doing so her Honour specifically referred to the fact that the applicant had a limited criminal history, and was aged 21 at the time of the offending.

Submissions of the applicant

1. [49]

   It was submitted that the applicant was a young and impressionable person of “grossly limited intellectual capacity”, and that his youth and related issues had not properly been taken into account by the sentencing Judge. It was further submitted that the applicant’s criminal history was “marginal” and that the sentence imposed upon him demonstrated that insufficient weight had been given to the issue of his rehabilitation. In oral submissions, the applicant was variously referred to by his solicitor as being “a person of at best average intelligence”, and a “21 year old man of limited intelligence”.

Submissions of the Crown

1. [50]

   The Crown submitted that the sentencing Judge had clearly recognised both the applicant’s age and his criminal history and that no error was demonstrated.

Consideration

1. [51]

   The oral submissions made to this Court as to the level of the applicant’s intelligence overstated the position, and were not supported by the evidence. Mr Sheehan found, on the basis of a psychometric assessment, that the applicant’s intellectual skills were in the average range.

2. [52]

   Moreover, it is again apparent that her Honour took into account the applicant’s youth and his criminal history when determining sentence. As far as the latter is concerned, although such history was not extensive, it did include a matter for which the applicant had previously served a term of imprisonment.

3. [53]

   This ground is not made out.

The evidence before the sentencing Judge

1. [54]

   In the second of his reports, Mr Sheehan stated (inter alia) the following:

The reasons of the sentencing Judge

1. [55]

   The sentencing Judge said (at ROS 22):

Submissions of the applicant

1. [56]

   It was submitted that the applicant was a person with strong prospects of rehabilitation, and that he possessed the characteristics required to ensure that such rehabilitation was successful.

Submissions of the Crown

1. [57]

   The Crown submitted that it was evident that all subjective matters, including the applicant’s prospects for rehabilitation, had been addressed by the sentencing Judge.

Consideration

1. [58]

   The submission advanced in support of this ground again effectively asserts that her Honour gave insufficient weight to the issue of rehabilitation. There can be no doubt that her Honour took into account, and assessed, the applicant’s prospects of rehabilitation, and gave them appropriate weight. No error has been demonstrated arising from the manner in which her Honour dealt with this issue.

2. [59]

   This ground is not made out.

The evidence before the sentencing Judge

1. [60]

   In the first of his reports (commencing at para 5) Mr Sheehan summarised the applicant’s family background. He made reference to the circumstances in which the applicant’s father had died, and reported that because of those circumstances the applicant had carried “a heavy burden of guilt”, believing himself to be responsible for the death of his father. Mr Sheehan also reported that following the death of his father, the applicant did not enjoy a good relationship with his mother’s new partner and was “kicked out” of home at the age of 16 years. He had never returned to the family home and had experienced unstable accommodation since that time.

2. [61]

   Finally, Mr Sheehan reported that the applicant had a younger brother and a younger sister, but had enjoyed little contact with his family for a number of years. He reported that the applicant had “re-established” a family relationship in late 2012, and that he currently speaks to his mother once per week via phone.

The reasons of the sentencing Judge

1. [62]

   Commencing at ROS 20, the sentencing Judge made reference to a number of the aspects of the applicant’s family circumstances to which Mr Sheehan had referred.

Submissions of the applicant

1. [63]

   It was submitted that the applicant was the “sole source of support” for his family and that upon his release, he would continue to be the primary source of financial and emotional stability. The effect of the submission put on behalf of the applicant was that these circumstances were not properly taken into account, or were given insufficient weight, by the sentencing Judge.

2. [64]

   When asked in oral submissions to refer the Court to the evidence that the applicant was the sole source of support for his family, the applicant’s solicitor cited nothing more than the evidence that the applicant’s father was deceased.

Submissions of the Crown

1. [65]

   The Crown submitted that it was evident from the remarks of the sentencing Judge that her Honour had taken into account, as part of the applicant’s subjective case, his family circumstances.

Consideration

1. [66]

   This ground was argued on the basis that there was evidence before the sentencing Judge that the applicant was, in fact, the sole source of support for his family. The evidence did not reach that height. Further, whilst it is obviously the case that the applicant’s father died some time ago, it is also evident that for some period of time the applicant had no contact with his family at all and that such contact is presently limited to that to which Mr Sheehan referred. It is also evident that her Honour took into account the factors to which Mr Sheehan had referred regarding the applicant’s background.

2. [67]

   This ground is not made out.

Submissions of the applicant

1. [68]

   The submissions advanced on behalf of the applicant in support of this ground centred upon sentencing statistics for this type of offending. It was submitted that such statistics demonstrated that the sentence imposed was “somewhat harsher, given the circumstances, than (it) would necessarily have to be”.

Submissions of the Crown

1. [69]

   The Crown submitted that no error had been demonstrated on the basis of the sentencing statistics relied upon. The Crown also made reference to the circumstances of the offending, and the applicable maximum penalties.

Consideration

1. [70]

   In order for this ground to be established, it is necessary for the applicant to demonstrate that the sentence imposed was unreasonable or plainly unjust: Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54. Nothing in the statistical material indicates that this is so. As has been said on many occasions, consistency in sentencing is not demonstrated by, and does not require, numerical equivalence. What is sought is consistency in the application of relevant legal principles: Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45 at [48]-[49].

2. [71]

   Further, the applicant’s offending was, on any view, serious. As the sentencing Judge pointed out, there was a degree of planning, and there was repeat offending against the victim JA. Quite apart from JA, the injury and loss sustained by the remaining victims was significant.

3. [72]

   As set out in the table in [2] above, each of the offences carried significant maximum penalties. Several of them had prescribed standard non-parole periods. These penalties represented, in each case, the legislative guide posts to which the sentencing Judge was required to, and obviously did, have regard.

4. [73]

   In terms of the first group of offences, her Honour properly categorised such offending as amounting to “two serious, violent premeditated attacks” (at ROS 3.4). JA’s home was destroyed by fire. He was fortunate not to have been more seriously injured. The break enter and steal offence committed at that time was premeditated and planned and as her Honour found (at ROS 14.3) the applicant did nothing to assist JA, even though he was aware that the house was alight.

5. [74]

   In terms of the second group of offences, the sentencing Judge (at ROS 18) properly categorised the offending as amounting to a sustained and vicious attack upon three people who were entitled to feel safe and secure in their home. In the applicant’s case, this represented repeat offending which exhibited many of the factors which were common to the earlier offending. Moreover the planning in respect of the second offending was even greater than the first, and involved lengthy “reconnaissance” trips by the offenders and the use of disguises and camouflage.

6. [75]

   It is also important not to lose sight of the fact that the applicant asked her Honour to take into account a total of 7 matters which were contained in a Form 1.

7. [76]

   Her Honour imposed an aggregate sentence. It is apparent from her reference to the indicative sentences that she afforded the applicant the benefit of a significant degree of concurrency. That approach was, in the circumstances, particularly favourable to the applicant.

8. [77]

   For all of these reasons I am not persuaded that the sentence is manifestly excessive.

The reasons of the sentencing Judge

1. [78]

   When imposing sentence on the offenders DR and JW, her Honour made findings of special circumstances (at ROS 28 and ROS 29 respectively). When imposing sentence upon the applicant (at ROS 29-30) her Honour made no such reference. However, the aggregate sentence imposed upon the applicant reflected an adjustment of the ratio between the head sentence and the non-parole period from 75% to 70%.

Submissions of the applicant

1. [79]

   It was submitted that even allowing for the fact the finding of special circumstances is discretionary in nature, it had been open to the sentencing Judge to make such finding, and that her Honour had erred in failing to do so.

Submissions of the Crown

1. [80]

   The Crown pointed out that although her Honour had not made specific finding of special circumstances, the adjustment of the ratio was tantamount to such a finding and that no error had been established.

Consideration

1. [81]

   A finding of special circumstances is necessarily a discretionary one with which this Court will be slow to interfere: R v El-Hayek [2004] NSWCCA 25; 144 A Crim R 90; Caristo v R [2011] NSWCCA 7; R v Cramp [2004] NSWCCA 264. In the present case, the obvious adjustment of the ratio between the head sentence and the non-parole period was consistent with a finding of special circumstances having been made. It is open to infer that it was her Honour’s intention to make such a finding based upon what she found to be the applicant’s generally positive prospects of rehabilitation, even though such finding was not expressly stated.

2. [82]

   This ground is not made out.

CONCLUSION AND ORDERS

1. [83]

   I propose the following orders:

   1. (1)

      Leave to appeal is granted.

   2. (2)

      The appeal is dismissed.

2. [84]

   WILSON J: I agree with Bellew J.