Whereat v Rex

1. [1]

   FREE JA: Blake Whereat (the applicant) seeks leave to appeal from the sentence imposed on him by the District Court at Nowra on 4 July 2025. The applicant pleaded guilty and was convicted of the following offences:

   1. (1)

      sequence 1: aggravated break, enter and commit serious indictable offence, contrary to s 112(2) of the Crimes Act 1900 (NSW) (Crimes Act). The relevant serious indictable offence was larceny and the circumstance of aggravation was knowledge that there were persons present; and

   2. (2)

      sequence 2: break, enter and steal, contrary to s 112(1) of the Crimes Act.

2. [2]

   Attached to sequence 2 was a Form 1 offence which the Court was asked to take into account, being an offence of larceny contrary to s 117 of the Crimes Act.

3. [3]

   On 4 July 2025 the applicant was sentenced to an aggregate term of imprisonment of 3 years, with a non-parole period of 1 year and 8 months, commencing on 4 November 2024. The sentencing judge, O’Brien AM DCJ, identified the following indicative sentences as informing the aggregate sentence:

   1. (1)

      sequence 1: an indicative term of 2 years and 3 months imprisonment (taking into account a 25% discount for the guilty plea), with an indicative non-parole period of 1 year and 3 months; and

   2. (2)

      sequence 2: an indicative term of 1 year and 6 months (taking into account a 25% discount for the guilty plea).

4. [4]

   The applicant relies on the following grounds of appeal:

   1. (1)

      Ground 1: His Honour erred by assessing the objective seriousness of the offending by reference to the guideline judgment of R v Ponfield (1999) 48 NSWLR 327; [1999] NSWCCA 435 (Ponfield);

   2. (2)

      Ground 2: His Honour erred by approaching consideration of the applicant’s background on the basis that a “causal link” was required to be established for the applicant’s moral culpability to be reduced; and

   3. (3)

      Ground 3: the sentence is manifestly excessive.

5. [5]

   For the reasons which follow, none of the appeal grounds has merit. Leave should be granted, but the appeal dismissed.

Factual background

1. [6]

   Sentencing proceeded on the basis of agreed facts. A sentence assessment report was tendered and the applicant also gave evidence. The applicant was born on 2 April 1999. He is of Aboriginal descent. Both of his parents were drug users and the applicant was raised by his paternal grandmother from a young age. The applicant’s grandmother drank frequently and the applicant gave evidence that this was the “only downside of being brought up by her”. She was drunk up to five or six times a week, at which time the applicant was left to fend for himself including by making his own meals. When she was drunk the applicant’s grandmother was verbally abusive, but not physically abusive. The applicant was found by the sentencing judge to have been generally cared for and provided for, including by being taken on holidays on cruise ships.

2. [7]

   The applicant commenced drinking alcohol and smoking cannabis around the age of 12 to 14. He later used ice and heroin. After the birth of his first child, when the applicant was aged 20, he stopped using drugs. He later relapsed in 2023 following a relationship breakdown.

3. [8]

   Each of the sequence 1 and sequence 2 offences, along with the Form 1 offence, occurred on 1 March 2024 at Bomaderry.

4. [9]

   The sequence 1 offence occurred at around 2.00am. Ms Judy Caldwell, a 69 year old woman, was in bed at her home together with her husband. Ms Caldwell heard banging from outside and saw flashes of light through the shutter windows of her bedroom. The applicant entered the house by opening the sliding back door on the ground level, which was closed. Once inside he opened drawers and cupboards and took items. At around 2.20am Ms Caldwell saw flashes of light coming from the loungeroom and the shadow of a person moving. She woke her husband and yelled at the applicant. The applicant rapidly left the premises. He took a torch valued at $10, an iPad valued at $400, a twelve-inch kitchen knife, a pair of old boots and $2,000 from a plastic bag that was located in a caravan.

5. [10]

   The sequence 2 offence occurred at another house in Bomaderry at some time between 9.30am and 5.30pm on 1 March 2024. The applicant smashed a bedroom window to obtain entry. There was no-one living at the house at the time. Once inside the house the applicant opened drawers and cupboards and put items, including a coffee machine, vacuum and Sonos sound system, into a black bag. After leaving the property he left the black bag in the garden of a neighbouring property. The stolen property, which was all recovered, had a value of $3,000 to $4,000. The owner of the property, who did not live there, attended at around 5.30pm, when he noticed the smashed window and missing items.

6. [11]

   The Form 1 offence occurred between 11.00am and 6.00pm. The applicant opened the door of a car parked in the carport of another property. From inside the car he took the wallet of the car’s owner, which contained eight British pounds in cash, along with a driver’s licence and Opal card.

7. [12]

   The sentencing judge observed that break and enter offences and aggravated break and enter offences are serious offences, and offences where both general and specific deterrence are important considerations. This much is reflected in the maximum penalties (being 20 years imprisonment in respect of the aggravated offence under s 112(2) of the Crimes Act and 14 years in respect of the break and enter offence under s 112(1)), as well as the standard non-parole period of 5 years for the aggravated offence. His Honour noted the need to assess the objective seriousness of the offending conduct and the need to have regard to the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act), which were set out. In terms of objective seriousness, his Honour found that both sequences were “modest” examples of offences of their type.

8. [13]

   The sentencing judge noted a number of significant subjective considerations, including that at the time of the offending the applicant was using ice on a daily basis and reported that he had gone almost a week without sleep. The applicant had acknowledged a direct link between his drug use and his offending. The sentencing judge accepted that the applicant had some insight into his offending and an appreciation of the impact it has had on the victims. His Honour found the applicant to be highly motivated to address his drug use and rehabilitation, both to avoid a return to custody and to re-establish a relationship with his children. The applicant’s prospects of rehabilitation were assessed as reasonable. The sentencing judge accepted that there were special circumstances warranting a proportionately reduced non-parole period, on the basis that an extended period of supervision, treatment and intervention upon release would assist the applicant in addressing his drug issues and mental health, and assist his rehabilitation into the community.

9. [14]

   I set out below a more detailed consideration of aspects of the sentencing remarks, and associated submissions, in dealing with grounds 1 and 2.

Ground 1 – Alleged error in assessing the objective seriousness of the offending by reference to Ponfield

1. [15]

   In submissions to the sentencing judge the Crown drew attention to the guideline judgment of Ponfield and listed the eleven factors set out in that judgment as being factors that, where present, enhance the seriousness of the offending under s 112(1) of the Crimes Act (break and enter a dwelling house). However, the Crown also emphasised that two of the factors on that list, being an offender’s criminal history and the circumstance of the offending occurring while the offender was on conditional liberty, are not relevant to an assessment of objective seriousness.

2. [16]

   The sentencing judge placed some reliance on Ponfield, as reflected in the following passage:

3. [17]

   The applicant argues that the sentencing judge fell into error in relying on Ponfield in this way. In doing so the applicant calls in aid a number of decisions of this Court which have urged caution in placing any reliance on Ponfield when determining a sentence under the CSP Act.

4. [18]

   It is undoubtedly correct that, following the introduction of the CSP Act, great caution is required if a sentencing court is to have regard to Ponfield in determining an appropriate sentence. In 2010 Simpson J warned that Ponfield was a decision of limited utility, which had been largely overtaken by statute: Mapp v R (2010) 206 A Crim R 497; [2010] NSWCCA 269 at [10].

5. [19]

   As explained by Garling J in MacBlane v R [2025] NSWCCA 52 at [5], Ponfield was decided before the introduction of the CSP Act. At least four significant changes have occurred since Ponfield was decided. First, the introduction of s 3A legislated the purposes of sentencing: [7]. Secondly, s 21A imposed an obligation to take into account the aggravating and mitigating factors which are specified in the section and relevant in the circumstances. Such factors include those which may go to a subjective case, or which may be required to be taken into account on the issue of objective seriousness: [8]. Thirdly, the introduction of standard non-parole periods for certain offences carried with it a particular focus upon the assessment of objective seriousness for such offences: [9]-[10]. Fourthly, pursuant to s 54B of the CSP Act, when determining the non-parole period for an offence with a specified standard non-parole period, the sentencing court is confined to considerations referred to in s 21A: [11]. Particularly in light of s 21A(1) of the CSP Act, it is doubtful that s 54B of the CSP Act has the effect of excluding from consideration factors of the kind identified in Ponfield: contra MacBlane at [12]. Nevertheless, the point remains that the statutory scheme governing sentencing has changed in significant ways since Ponfield was decided.

6. [20]

   As Garling J noted at [20], doubt has been cast on aspects of Ponfield by a number of other decisions of this Court: see R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [66]-[70]; Dickinson v R [2016] NSWCCA 301 at [13]-[18]; Abdulrahman v R [2016] NSWCCA 192 at [54]. These considerations led Garling J, at [21]-[22], to emphasise the need for great caution in relying on Ponfield:

7. [21]

   These strong admonitions are warranted. Notwithstanding that it is a guideline judgment, the ongoing utility of Ponfield itself is doubtful, particularly in circumstances where it has been the subject of consideration in later cases more appropriately directed to the current sentencing regime. On the other hand, the risks of a sentencing judge falling into error by relying on Ponfield are significant. The decision presents as a suitable candidate for variation or revocation pursuant to s 37B of the CSP Act. In the meantime, as a matter of good practice, any reference to Ponfield by parties in submissions, or by courts in sentencing remarks, ought to be accompanied by qualifications and acknowledgement of the points highlighted in the authorities referred to above. This at least serves to signal an appreciation of the need to pay attention to the requirements of the CSP Act and avoid unqualified application of Ponfield.

8. [22]

   However, it does not follow that the absence of such express qualifications reveals an error of principle in the sentencing process. It is not inherently an error for a sentencing judge merely to refer to Ponfield, or to place some reliance on that judgment in the context of considering objective seriousness. The difficulty emphasised in cases such as Mapp and MacBlane is that the proper exercise of sentencing discretion governed by the CSP Act involves concepts that were not considered in Ponfield and which are in significant respects not compatible with the approach adopted in Ponfield. Unqualified application of all aspects of Ponfield is apt to give rise to error unless this is appreciated. But the decisive point for present purposes is that an error may arise, not simply from the fact of applying Ponfield but because that may lead to a failure to comply with the requirements of the CSP Act.

9. [23]

   To take the most conspicuous examples, alluded to in the Crown’s submissions to the sentencing judge in this matter, Ponfield suggests that the seriousness of offending is enhanced where the offender has a prior record, particularly for like offences, or where the offence is committed whilst the offender is at conditional liberty on bail or on parole: [48]. Such subjective considerations are not relevant to an assessment of objective seriousness when determining a sentence pursuant to the CSP Act. Treating those factors as elevating the objective seriousness of the offence involves error: see, for example, Stuckey v R [2025] NSWCCA 216 at [47]-[52].

10. [24]

    The applicant in the present case has failed to demonstrate that the sentencing judge was led into any error as a result of relying on Ponfield. His Honour did not treat subjective considerations as bearing on the assessment of objective seriousness. In the passage set out above his Honour singled out five factors that fed into the assessment of the overall seriousness of the offending. The applicant cannot show that any of those factors was irrelevant to the assessment of objective seriousness, or outside the scope of permissible considerations under s 21A of the CSP Act. Nor has the applicant shown that the reliance on such factors otherwise reveals that the assessment of objective seriousness miscarried.

11. [25]

    The applicant did submit as a high level proposition that, as a result of being distracted by Ponfield, the sentencing judge failed to consider the relevant considerations arising from s 21A of the CSP Act. However, the applicant did not then proceed to make that proposition good by demonstrating that there were, within the meaning of s 21A, any particular aggravating or mitigating factors, or other objective or subjective factors affecting the relative seriousness of the offences, that were relevant and known to the Court, but not taken into account.

12. [26]

    The applicant also drew attention to the fact that Ponfield was a guideline judgment in relation to the non-aggravated break and enter offence under s 112(1) of the Crimes Act, but the sentencing judge treated it as having relevance to the assessment of the seriousness of both the sequence 1 and sequence 2 offences. The implication was that Ponfield was particularly irrelevant when assessing the seriousness of the sequence 1 offending. Again, the applicant did not demonstrate that this had the consequence of causing the trial judge to fall into error. In relation to both the sequence 1 and sequence 2 offences, it was permissible for the sentencing judge to take into account each of the five characteristics of the offending that his Honour listed after referring to Ponfield. The applicant did not seek to argue to the contrary. If there was an error merely in not distinguishing between the aggravated and non-aggravated versions of the break and enter offence when considering the status of Ponfield as a guideline judgment, it was inconsequential.

13. [27]

    One possible further point that emerged in the course of oral argument was that, by viewing matters through the lens of Ponfield, the sentencing judge may have erred by considering the absence of planning as only being relevant to showing that there was not planning of the kind that would aggravate the seriousness of the offending. Pursuant to s 21A(3)(b) of the CSP Act the fact that an offence was not part of a planned criminal activity is a mitigating factor. It would therefore be an error to treat that factor as going only to the absence of an aggravating factor, when it is itself a mitigating factor. However, reading the sentencing remarks fairly and as a whole, his Honour should not be taken to have fallen into this error. In terms of objective seriousness his Honour concluded that the offences were only “modest” examples of break and enter offences of this kind. That conclusion tends to confirm that his Honour appreciated and took into account the mitigating quality of the absence of planning.

14. [28]

    Ground 1 of the appeal should therefore be rejected.

Ground 2 – Alleged error in requiring that a “causal link” was required to be established between the applicant’s deprived background and the offending in order for the applicant’s moral culpability to be reduced

1. [29]

   In the context of dealing with the applicant’s subjective circumstances, the sentencing judge dealt with a submission from Ms Lambert, solicitor for the applicant, about the application of the principles considered in Bugmy v R (2013) 249 CLR 571; [2013] HCA 37 (Bugmy). His Honour set out the facts regarding the applicant’s upbringing, including that the applicant had reported that while his grandmother “generally cared for him and provided reasonably, including through holidays on cruise ships, she was a heavy drinker and this meant she was sometimes verbally abusive to him.” His Honour proceeded to deal with the submission concerning Bugmy as follows:

2. [30]

   The applicant contends that in adopting this approach the sentencing judge wrongly took the view that it was necessary to demonstrate a causal link between the disadvantaged background of the applicant and the offending that occurred, in the sense that a finding of this kind is a prerequisite to finding that the moral culpability of the applicant is reduced, in line with the principles considered in Bugmy.

3. [31]

   The applicant relies on recent authorities in this Court which have made clear that there is no requirement to demonstrate that such a causal link exists. Importantly, however, the same authorities recognise that it is relevant for a sentencing court to consider if such a causal link does exist.

4. [32]

   In YZ v R [2025] NSWCCA 165 Weinstein J (with whom Wright and Sweeney JJ agreed) provided the following summary of the process to be undertaken by a sentencing judge in applying Bugmy:

5. [33]

   For the purposes of determining ground 2 of the appeal, two important propositions emerge from this summary of the authorities. One is that establishing a causal link between the deprived background of the offender and the commission of the relevant offence is not essential. An offender’s deprived background may be relevant to the assessment of moral culpability and an appropriate sentence, notwithstanding the lack of an established causal connection of that kind. The second is that it is nevertheless relevant to consider whether there is such a causal link. That is because where there is found to be a causal connection between the deprived background of the offender and the commission of the relevant offence it will follow that the moral culpability of the offender is reduced. That will be a matter of significance to the sentencing exercise.

6. [34]

   The latter point is important when assessing the applicant’s contention that the sentencing judge in the present matter wrongly considered that it was necessary to find a causal link of this kind before effect could be given to Bugmy principles. Given that it is relevant to consider if a causal link exists, even though it is not essential, the fact that the sentencing judge considered whether or not a link was established does not give rise to an inference that the judge must have been labouring under such a misapprehension about Bugmy.

7. [35]

   It is plain from a fair reading of the sentencing remarks that his Honour did not fall into the error of reasoning that Bugmy principles were only engaged if a causal link was found to exist between the applicant’s deprived background and his offending. His Honour appropriately considered whether such a causal link had been established and found that it had not been. Immediately after expressing that conclusion his Honour said “nor am I satisfied that his background is such as to reduce his moral culpability.” As the Crown correctly submits, this is a separate and distinct finding from the earlier point that no causal link was established. This reasoning reflects that the sentencing judge quite properly appreciated that the finding about the lack of a causal connection was not the end of the inquiry. It remained necessary to determine whether the offender’s background was deprived or disadvantaged in such a way as to reduce his moral culpability.

8. [36]

   In oral submissions the applicant sought to rely on the facts regarding his deprived background as an indirect way of making good the ground of appeal. The applicant did not squarely allege that it was not open to his Honour to reach the conclusion that his moral culpability was not reduced by reason of his deprived background. But the applicant did argue that the evidence about his background was strong enough that the Court can infer that the only explanation for the sentencing judge’s conclusion is that his Honour must have erroneously thought that a causal link was essential.

9. [37]

   With respect, this exercise was misdirected. His Honour’s approach to these issues is made plain by the reasons. There is no proper basis on the facts of this case to infer that, despite the clear statement of the reasons for sentence, the sentencing judge must have reasoned in a different way because, on the applicant’s approach, the evidence pointed to a more favourable conclusion about the moral culpability of the applicant. To take that approach would be to ignore his Honour’s reasoning which is plainly expressed on the relevant point.

10. [38]

    Moreover, as the Crown correctly submitted, the evidence did not provide such a strong and coherent account of the applicant having suffered a deprived and disadvantaged background that one may infer the sentencing judge must have applied the wrong test. The evidence indicated that the applicant had difficulties in schooling and began abusing drugs and alcohol from a young age. He also had to endure some verbal abuse from his primary carer, his grandmother, who drank excessively. But the applicant otherwise enjoyed a caring and supportive relationship with his grandmother. While the applicant’s parents were themselves drug abusers, there was no clear evidence about the applicant’s exposure to such drug use, or to criminality, during his formative years. The sentencing judge was required to evaluate the evidence to determine what it demonstrated about the level of deprivation and disadvantage in the applicant’s background. His Honour may well have formed a view more favourable to the applicant. But the evidence was not of such a kind as to conclude that the only explanation for his Honour’s unfavourable finding is that the sentencing judge thought it was essential to find a causal link between the offending and the deprived background of the offender.

11. [39]

    Ground 2 therefore must be rejected.

Ground 3 – Allegation that the sentence is manifestly excessive

1. [40]

   The final ground of appeal is a contention that the sentence imposed on the applicant is manifestly excessive. The principles to be applied in determining such a contention are well settled. They were summarised by R A Hulme J (with whom Bathurst CJ, Leeming JA, and Hamill and N Adams JJ agreed) in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443]:

2. [41]

   An applicant seeking to establish that a sentence was manifestly excessive carries a “very heavy practical burden” and must show a kind of disproportion which is so “manifest on its face as to be indicative of, not a mere difference of idiosyncratic opinions, but, rather, of substantive error of law”: R v Elemes [2000] NSWCCA 235 at [22]-[23], quoted with approval in He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 at [42(4)].

3. [42]

   In the present case, an aggregate sentence was imposed, which requires application of the principles described by Beech-Jones J (with whom Payne JA and Fagan J agreed) in Lee v R [2020] NSWCCA 244 at [32]:

4. [43]

   While acknowledging that it was necessary to demonstrate that the aggregate sentence was manifestly excessive, the applicant nevertheless focused on the indicative sentences as found by the sentencing judge, as a step towards that ultimate submission.

5. [44]

   In relation to sequence 1, the applicant sought to draw comparisons between the indicative sentence in this case (being 2 years and 3 months imprisonment, taking into account a 25% discount for the guilty plea, with an indicative non-parole period of 1 year and 3 months) and the sentences imposed in respect of other contraventions of s 112(2) of the Crimes Act, as indicated by the statistics compiled by the Judicial Information Research System (JIRS), as at April 2026 (for sentences imposed from 24 September 2018 to 30 September 2025). In considering this submission it is important to recognise the limitations of the statistics, and the limitations of drawing comparisons as a means of demonstrating that a particular sentence was manifestly excessive.

6. [45]

   The applicant relied on two charts. One showed that 65.1% of sentences for offences under s 112(2) involved sentences of imprisonment. The JIRS statistics therefore indicate that a reasonably sizeable proportion of offences for aggravated break, enter and commit serious indictable offence do not result in imprisonment. But that says little, if anything, about the appropriateness of the sentence imposed on the applicant. It was common ground at his sentencing hearing that a sentence of imprisonment was warranted. The JIRS statistics about alternative forms of sentence merely confirm what would otherwise be reasonably inferred, which is that s 112(2) covers a broad spectrum of types of offending, such that even before subjective considerations are taken into account it is natural to expect a wide range of sentencing outcomes.

7. [46]

   The applicant accepts that in circumstances where it was agreed that a sentence of imprisonment was warranted, to the extent that any comparison can be made with other cases the appropriate comparison is with the 65.1% of offenders sentenced to imprisonment. The applicant asserts that such a comparison demonstrates that the indicative sentence of 2 years and 3 months imprisonment for sequence 1 was manifestly excessive.

8. [47]

   That submission is not borne out by the statistics. The statistics show sentences on a rounded up basis, divided into 6 month or yearly groups. Thus a sentence of 2 years and 3 months belongs in the 30 month grouping. The JIRS statistics show that 23.3% of sentences imposed for offences against s 112(2) attract such a sentence. Of offenders sentenced to imprisonment, only 20.9% were sentenced to shorter terms. Over half of the offenders convicted under this provision – 55.9% – received a longer term of imprisonment.

9. [48]

   It is notorious that statistics are a blunt instrument and statistical analysis of this kind is of limited utility in any given case: He v Sun at [42(8)-(9)]. The JIRS statistics do not provide any insight into the myriad subjective and objective characteristics that inform each individual sentence. It is conceivable that in some cases, a stark disproportionality could emerge from the comparison with other sentences as shown in the JIRS statistics (noting that even this would be no more than a step in the broader analysis). But this is emphatically not such a case. Nothing in the comparison invited by the applicant supports a conclusion that the indicative sentence found for sequence 1 is out of step with the prevailing pattern of sentences, let alone that the aggregate sentence can be seen as unreasonable or plainly unjust.

10. [49]

    In relation to the indicative sentence for sequence 2, being 1 year and 6 months (taking into account a 25% discount for the guilty plea), there is no statistical material relied on by the applicant. However, the Crown points to statistics showing that for s 112(1)(a) offences where the serious indictable offence is one of “stealing”, only 19.8% of offenders sentenced to imprisonment received a head sentence of 18 months or less.

11. [50]

    The applicant submits that in circumstances where the sentencing judge found the offending to be a “modest” example of offences under s 112(1), there was a lack of aggravating factors, the property in question was recovered, the applicant had a limited criminal history and the Form 1 offence provided “little upward pressure” on the sentence for sequence 2, an indicative sentence of 1 year and 6 months was manifestly excessive.

12. [51]

    Against this, the Crown emphasises that the maximum penalty for contravention of s 112(1) is 14 years. The offence here involved breaking a window to gain entry to a residence and taking property valued in the thousands of dollars. An associated Form 1 offence was also taken into account.

13. [52]

    Applying the principles set out above, I am not satisfied that there is any proper basis to find that the indicative sentence for sequence 2 was itself manifestly excessive. The applicant’s argument that a significantly shorter indicative sentence should have been imposed, which in turn would have driven a lower aggregate sentence, is no more than an invitation to this Court to repeat the exercise of intuitive synthesis performed by the sentencing judge. The outcome of that exercise, whether in relation to the indicative sentences or the aggregate sentence, has not been shown to be unreasonable or plainly unjust.

14. [53]

    Ground 3 therefore fails.

Conclusion and Orders

1. [54]

   The orders that I would make are:

   1. (1)

      Leave to appeal is granted.

   2. (2)

      Appeal dismissed.

2. [55]

   RIGG J: I agree with Free JA.

3. [56]

   SIRTES J: I agree with Free JA.