Tasker v R

1. [1]

   BELL CJ: I agree with the reasons of McNaughton J and the orders her Honour proposes.

2. [2]

   BUTTON J: I agree with McNaughton J.

3. [3]

   As for ground one, in my respectful opinion the procedure adopted by the learned sentencing judge was unorthodox and should be avoided. However, to be added to the reasons why it did not deny the applicant procedural fairness explained by her Honour is the fact that his counsel was clearly content with that procedure.

4. [4]

   As for ground two, I agree that, on close analysis, the better reading of the remarks on sentence is that the sentencing judge was saying that the re-entry aggravated the offence at Torrens University on the Form 1, not the substantive offence at the same institution.

5. [5]

   As for ground three, in light of the gravity of the offending and the adverse subjective matters, in my opinion this substantial sentence was open to the discretion of the sentencing judge.

6. [6]

   MCNAUGHTON J:

Introduction

1. [7]

   The applicant, Michael Tasker, has sought leave to appeal against the sentence imposed upon him on 15 June 2023, by Blackmore SC ADCJ (“the sentencing judge”) in the District Court at Sydney for two offences of break, enter and steal. Additional matters were taken into account on a Form 1 in relation to both offences. The applicant received an aggregate sentence of 7 years and 6 months’ imprisonment, with a non-parole period of 5 years and 6 months, commencing on 13 January 2022. The applicant will be eligible for parole on 12 July 2027.

2. [8]

   The applicant relies upon three grounds of appeal:

3. [9]

   The applicant had pleaded guilty to the two offences in the Downing Centre Local Court on 15 December 2022. The offences were committed about four weeks apart in December 2021 and involved commercial premises.

4. [10]

   In relation to the first offence, an additional break, enter and steal offence was taken into account on a Form 1 schedule pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW). In relation to the second offence, a further three matters were also taken into account on a Form 1, namely: enter with intent to commit a serious indictable offence, larceny, and dishonestly obtain a benefit by deception.

5. [11]

   The following table shows the offences, the Form 1 matters, relevant maximum penalties, and the indicative sentences. No standard non-parole periods applied.

6. [12]

   The applicant had an extensive record for similar offending and had previously been sentenced by the sentencing judge in 2018 for break and enter offences.

Brief facts of offending

1. [13]

   A Statement of Agreed Facts was tendered in the sentencing proceedings. The factual background set out below is based on that document.

2. [14]

   On Friday 3 December 2021, Torrens University, a multi-storey building located in the inner-city suburb of Ultimo, received a delivery of 100 new Lenovo ThinkPad laptop computers. In the early afternoon of Saturday 4 December 2021, the applicant entered Torrens University, reached over the reception desk and took a swipe card belonging to an employee. He then left the building.

3. [15]

   Later that afternoon at around 5:48pm, the applicant re-entered the building and at 6:12pm he accessed the IT storeroom using the stolen swipe card. Over the next two and a half hours, the applicant, using a trolley, made three trips to the IT room and the lift and stole 78 laptops, worth more than $60,000.00.

4. [16]

   On the evening of Sunday 5 December 2021, the applicant returned to Torrens University and the IT storeroom within. Using the same swipe card and an empty trolley, the applicant stole approximately 21 boxes of laptops and 20 Apple products.

5. [17]

   The Louis Vuitton store on George Street, Sydney was locked and alarmed at 6:00pm on 31 December 2021. Closed circuit television cameras were used for security. In the early hours of 1 January 2022, the applicant gained access to the building via the staff access door and used a swipe card to gain access to the lift. He used a second swipe card to open another door. The applicant then used two screwdrivers to force open a middle door secured by a pin code, and then gained access to the storeroom. He put on gloves and went through some of the merchandise before leaving the store. Around 50 minutes later, the applicant returned to the store with bins and went to the shop floor – stealing 98 items, equivalent to a monetary value of $464,935.00, including sunglasses, clothing and handbags. He was seen walking along the street wheeling two red bins.

6. [18]

   On 5 December 2021, the applicant entered a law firm on level 3 of a building in Martin Place. At 1:10pm, the two people working there left for lunch. At 1:52pm, the applicant entered the premises, went to level 3, and took three Microsoft Surface pro computers and an Apple iPhone (sequence 5). He also took three credit cards belonging to one of the two employees (sequence 6). On 24 December 2021, the applicant used the stolen credit cards to purchase items including cigarettes, totalling $292.53 (sequence 1).

7. [19]

   The applicant was arrested on 13 January 2022 in Burwood. In his possession were two Louis Vuitton bags stolen on 1 January 2022.

The sentencing proceedings

1. [20]

   Given the nature of the first ground of appeal, it is necessary to set out a number of aspects of the sentencing hearing in some detail.

2. [21]

   The sentencing proceedings were heard before the sentencing judge on 15 June 2023, and his Honour delivered an ex tempore judgment that day.

3. [22]

   When the matter was mentioned prior to the hearing proper commencing, the sentencing judge stated:

4. [23]

   The applicant’s counsel stated:

5. [24]

   When the matter was called for hearing, while the applicant was being brought up from the cells, the sentencing judge asked the applicant’s counsel if there was any objection to the Crown material or to him reviewing that material. The applicant’s counsel confirmed there was no objection to the material nor to the sentencing judge reviewing the material. Shortly after, the Crown bundle on sentence was tendered and marked Exhibit A.

6. [25]

   Exhibit A consisted of the various charge certificates, court attendance notices, and s 166 certificate underpinning the two charges and Form 1 matters, the signed Statement of Agreed Facts on sentence, the criminal history, custodial record and the two signed Form 1 documents.

7. [26]

   The applicant had an extensive criminal record for property crime, including being dealt with for many offences of larceny, enter dwelling/break and enter and dishonestly obtain benefit by deception. Included in the applicant’s extensive criminal history was:

8. [27]

   The applicant’s counsel tendered, without objection, a psychological report prepared by Forensic Psychology Registrar, Bonnie Harris of 5 May 2023, marked Exhibit 1, and Corrective Services Case Notes, marked Exhibit 2.

9. [28]

   Both counsel provided written submissions.

10. [29]

    The report prepared by Ms Harris was based, in part, on an interview with the applicant on 7 March 2023, via audio visual link, as well as on other sources of information including previous psychological reports prepared by Dr Robyn Goodwin dated 20 December 2017, and Debbie Case dated 2 December 2011.

11. [30]

    Ms Harris outlined that the applicant had been raised by his parents who had always been supportive towards him. He described his upbringing as positive, but that at a young age he began absconding and engaged in substance abuse. He said that since childhood he was the “black sheep” and was considered a “lost cause”. Ms Harris noted that the applicant felt he was intelligent and had done well academically at school, including being accelerated due to high performance but had difficulty paying attention, listening to others and concentrating. He told Ms Harris he was sexually abused at primary school when he was seven or eight years old and after this began spending time with an older group of people. He started using cannabis from the age of 10 and heroin from the age of 14. He completed Year 10 of high school but was expelled due to truancy.

12. [31]

    Ms Harris noted that the self-reported information provided to her by the applicant was generally consistent with the 2017 report of Dr Goodwin, with the difference being that the applicant did not report childhood sexual abuse at the time of the 2017 assessment.

13. [32]

    Ms Harris’ report referred to the applicant’s use of drugs, his addiction and its relationship to his criminal activity. The applicant had attempted a diversion program through the Drug Court in 2014 but was unsuccessful in completing the program due to substance use. The applicant reported that he had effectively participated in programs when under supervision but would relapse when no longer supervised and had difficulty in maintaining motivation to abstain from drugs.

14. [33]

    The applicant told Ms Harris of his desire to remain abstinent in the future. He had completed therapeutic programs in custody on multiple occasions. The applicant identified his mother and sister as positive supports. Ms Harris opined that he had developed insight into his offending and was able to identify that he needed more intensive drug treatment.

15. [34]

    After the material had been tendered, the following exchange occurred:

16. [35]

    The applicant’s counsel then made a submission about the period of parole imposed by the sentencing judge on the prior occasion. The applicant had managed to complete this period successfully, indicating a positive change in the applicant, to which the sentencing judge responded,

17. [36]

    The applicant’s counsel then referred to Ms Harris’ psychological report, which indicated the applicant was motivated to participate in a compulsory drug treatment program at Parklea.

18. [37]

    The sentencing judge then stated:

19. [38]

    There was further discussion about whether the applicant would be eligible for the drug treatment program at Parklea given the likely sentence the applicant would receive for the current matters.

20. [39]

    The applicant’s counsel then stated:

21. [40]

    These “distinguishing features” were:

    1. (1)

       For some of the period the applicant had been in custody, there were restrictions because of COVID-19 which were relevant, if for nothing else, to the question of special circumstances.

    2. (2)

       The applicant’s mother was present in court, and,

    3. (3)

       The applicant was older and, accordingly, able to make better decisions.

    4. (4)

       The applicant had completed his parole period successfully, which was positive given the number of failed attempts previously.

22. [41]

    The applicant’s counsel then conceded that personal deterrence continued to be relevant but that a different approach, for example, involving a compulsory drug treatment program, was required. Further, a finding of special circumstances was warranted because the parole period last time “seems to have achieved at least something”.

23. [42]

    The following exchange then occurred:

24. [43]

    After further submissions were made by the applicant’s counsel in relation to: (1) the quantity and value of the goods stolen, (2) that the offences fell slightly below mid-range of objective seriousness, (3) the correct day on which the applicant was taken into custody, and (4) submissions about concurrency, the sentencing judge then invited the applicant to address the court about the “child assault”. The applicant’s counsel addressed the court on this issue by reference to Ms Harris’ report and submitted that it moderated his moral culpability to some extent. An exchange about the amount realised from the stolen goods then took place.

25. [44]

    The sentencing judge then asked the applicant’s counsel about the issue of repeated incursions into one premises. The applicant’s counsel noted that there were three incursions involved in the Torrens University principal offence, in addition to an additional incursion in the Form 1 matter involving Torrens University. He also noted two incursions in the Louis Vuitton second principal offence. In relation to that matter, the applicant’s counsel submitted that it “cut both ways” as it also indicated a lack of planning or forethought; that is, the applicant left to get bins that would assist him in carrying out the offence. The applicant’s counsel then stated:

26. [45]

    The Crown prosecutor then addressed on the following matters:

    1. (1)

       The applicant’s first date of custody.

    2. (2)

       The objective seriousness of the offences – submitted to be above mid-range – followed by a discussion with the sentencing judge.

    3. (3)

       Aggravating factors, including that the offence was committed for financial gain.

    4. (4)

       The issue of the sexual assault on the applicant when he was a child. The Crown prosecutor addressed on this issue solely based on material within Ms Harris’ report.

    5. (5)

       Repeated incursions into the premises.

27. [46]

    The Crown prosecutor concluded his submissions with the following:

28. [47]

    After a short discussion about documents on the court file, the matter was adjourned for sentence to 2:00pm later the same day.

29. [48]

    The sentencing judge delivered short ex tempore Remarks on Sentence.

30. [49]

    First, the sentencing judge set out the two substantive offences, together with their maximum penalties. His Honour referred to the facts of the offences, Form 1 matters and maximum penalties. He correctly referred to the way in which he should deal with the Form 1 offences, stating:

31. [50]

    As explained further at [55] below, the sentencing judge found the two break and enter offences to be “no more than around the middle of the range of seriousness”.

32. [51]

    The sentencing judge noted the seriousness of the offending was demonstrated by the maximum penalty attaching to each offence. His Honour noted that the Torrens University offence was a very serious example of this type of offending. This was said to highlight a degree of sophistication in the planning of the offence; noting that a security swipe card had been taken from an unsuspecting employee to gain entry at night. Further, the offence involved the removal of a very large quantity of, apparently, new laptops still in their original packaging worth more than $60,000.00.

33. [52]

    The sentencing judge then stated:

34. [53]

    In relation to the Louis Vuitton charge, the sentencing judge also found that it was a very serious example of this type of offending, involving some “considerable sophistication” beyond merely breaking a door to gain entrance. The combined value of the property stolen in the two offences was more than half a million dollars and virtually none of the property was recovered. The sentencing judge stated that the combination of the two offences demonstrates an offender who is capable of planning and executing sophisticated large scale stealing offences, and the seriousness of the offences was well above the range of offences normally found in the District Court.

35. [54]

    The sentencing judge found that the applicant was motivated principally by financial gain, rather than a need to feed a drug habit.

36. [55]

    The sentencing judge also noted that the “indictable offence” in question in the offences was stealing. As an indictable offence, stealing falls towards the lowest end of seriousness for such offences as it carries a 5 years’ maximum penalty, as opposed to others which can carry up to 25 years’ maximum. As such, the sentencing judge noted that, even though the offences might be near the most serious of their type, they were still no more than around the middle of the range of seriousness for the general offence of break, enter and commit a serious indictable offence.

37. [56]

    His Honour found the Form 1 offences to have “significantly enhanced” the Louis Vuitton charge, for the reasons outlined in the well-known authority Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518.

38. [57]

    As to the applicant’s criminal history, it was noted that he had a very extensive criminal history for committing similar offences and was not entitled to any leniency on account of that record. The sentencing judge stated both general deterrence and specific deterrence needed to be reflected in the sentence. His Honour then stated:

39. [58]

    The sentencing judge then noted the submission made on behalf of the applicant that a sentence of six years, or less, in total would allow for the applicant to attend the compulsory drug court course whilst in custody (should he be admitted). His Honour concluded, however, that such a sentence would be unduly lenient given the need for the sentence to reflect general and specific deterrence.

40. [59]

    The sentencing judge then recorded the following:

41. [60]

    The sentencing judge then set out in full the passage he had read out, which is set out above at [42], only noting, in addition, that the applicant was now 39.

42. [61]

    The sentencing judge stated:

43. [62]

    The sentencing judge then recorded other factors he would take into account on sentence, namely:

    1. (1)

       Some of the current sentence had been served during a period of COVID-19 restrictions with the attendant additional difficulties for prisoners.

    2. (2)

       The applicant had expressed an understanding in relation to the present impact of his offending to his current psychologist and, thus, had shown some remorse.

    3. (3)

       The applicant had some positive support in the community and planned to live with his mother on release.

    4. (4)

       Rehabilitation was in the hands of the applicant, and it involved not only ceasing using illicit drugs but ceasing offending.

    5. (5)

       The offending on this occasion appeared to be a significant increase in the seriousness over previous occasions.

    6. (6)

       The applicant pleaded guilty at the first opportunity and was entitled to a 25% discount.

    7. (7)

       There was no need to extend the period on parole for rehabilitation due to the time the applicant would be on parole.

    8. (8)

       The factors set out in s 21A of the Crimes (Sentencing Procedure) Act had been taken into account.

The appeal before this Court

1. [63]

   The applicant contends that the sentencing judge denied the applicant procedural fairness because the evidence tendered before the Court,

2. [64]

   The 2018 Remarks on Sentence were not in the Crown tender bundle, nor was “any other evidence that [the sentencing judge] may have had reference to”. It is contended that procedural unfairness arose from the sentencing judge referring to the earlier sentence material, which was “not properly placed by the parties before the Court and about which they had no detailed knowledge”.

3. [65]

   The applicant noted that Ms Harris’ report which had been tendered by the applicant did, in turn, refer to a ‘Psychological Assessment Report’, dated in 2017, but the applicant submitted it was unclear whether that particular report was before the court in 2018.

4. [66]

   The applicant highlighted that part of the sentencing proceedings where the sentencing judge stated:

5. [67]

   It is contended that – although the applicant’s counsel engaged with the sentencing judge in relation to points of distinction between the 2018 position and the 2023 position – such matters were limited to superficial matters, such as the age of the applicant and the conditions of custody affected by COVID-19. Any specific detail relating to, for instance, whether or not the applicant had the support of his mother on the previous occasion was not able to be ascertained and was a matter of speculation.

6. [68]

   The applicant contends that counsel for the applicant should not have been put in a situation where he was asked to make concessions against his client’s interest “on the run”. Absent the availability of the prior sentencing material, it is submitted that counsel was essentially left to engage in speculation, albeit “well-educated” speculation, as to the applicant’s previous position.

7. [69]

   The applicant argued that, although no adjournment was sought, the fact there was no such application, nor any opposition to the course the matter took, does not and could not remedy the procedural unfairness to the applicant. The applicant submitted that the reading of the portion of the previous judgment was not sufficient, as such subjective findings, without the primary evidence underpinning them, could not have been properly assessed.

8. [70]

   The Crown emphasised that the concern of the law is to avoid practical injustice. Further, in pointing to the decision of Garling J in Weir v R [2011] NSWCCA 123 at [66] (McFarlan JA and Johnson J agreeing), the Crown submitted that the ultimate issue is whether any departure from the dictates of proper procedure has resulted in unfairness. His Honour further observed at [67] that a common basis for demonstrating practical injustice was whether the individual lost the opportunity to make submissions on the course to be adopted.

9. [71]

   The Crown submitted that the sentencing judge’s reference to the earlier 2018 sentencing remarks did not result in practical injustice for three reasons. First, the applicant was put on notice that the sentencing judge had previously sentenced the applicant before oral submissions were made. Second, the relevant portion relied upon by the sentencing judge was read aloud to the parties. And, third, no request was made by the applicant’s counsel for the remarks to be handed down, or for an adjournment so that copies could be obtained.

10. [72]

    Further, the Crown contended that there was nothing the sentencing judge referred to as a distinguishing factor that was not already known on the evidence tendered in the proceedings and on which counsel had an opportunity to address.

11. [73]

    In the Crown’s submission, the circumstances of this particular case did not raise the necessity for the previous sentencing remarks to be tendered. The sentencing judge read out the relevant portion. No practical injustice arose. Even accepting the degree of informality attending the way in which the previous sentencing remarks were referred to, no findings were made on the applicant’s prospects of rehabilitation that were not otherwise available on the evidence tendered in the proceedings. Again, no practical injustice arose.

12. [74]

    In HT v The Queen (2019) 269 CLR 403; [2019] HCA 40 at [17]-[18] the plurality stated:

13. [75]

    Another useful articulation of relevant principles can be found in Munday v R [2017] NSWCCA 95 in which Beech-Jones J (Johnson and Fagan JJ agreeing) stated at [24]-[25]:

14. [76]

    It is also worth noting that s 4 of the Evidence Act 1995 (NSW), especially sub-s 4(2), recognises that sentence proceedings usually proceed with less formality and less evidentiary precision than other proceedings, unless a court directs that the law of evidence applies to some or all of the sentence hearing. Section 4 reads:

15. [77]

    Clearly, this reduced level of evidentiary formality for sentencing proceedings (absent an order to the contrary) does not impinge upon the fundamental requirement that such proceedings must be fair. A judge must ensure that the parties are accorded procedural fairness and practical injustice is avoided.

16. [78]

    The question here is whether procedural fairness was afforded to the parties – was the material on which the sentencing judge proposed to rely in his 2023 Remarks on Sentence placed before the parties, and were they given an opportunity to respond?

17. [79]

    In my view, the answer to these questions is yes.

18. [80]

    Whilst it would no doubt have been preferable for the sentencing judge to hand down to the parties the 2018 sentencing remarks from which he appeared to be reading, a failure to do so does not mean that procedural fairness was denied. The portion the sentencing judge read out was the portion that was included in the 2023 sentencing remarks. The material before this Court does not support the proposition that some amorphous body of past information was used by the sentencing judge which was, unfairly, not put to the parties for comment. There was no practical injustice.

19. [81]

    Further, as outlined above at [59], the sentencing judge made it clear that the portion of the previous judgment his Honour read out to the parties was a summary of the history of his background taken from the applicant’s then psychologist. The following paragraphs demonstrate that the relevant previous psychologist’s report was available to the applicant at the time of 2023 sentence.

20. [82]

    It can be observed that Ms Harris’ report stated at [3], that it was based on material including “documents forwarded by [the applicant’s solicitors’] office.” In turn, the documents set out under the heading “Sources of information” included two Psychological Assessment Reports – one dated 20 December 2017 by Dr Robyn Goodwin (“the 2017 report”) and the other dated 2 December 2011 by Debbie Case.

21. [83]

    Although, in this Court, the applicant argued that one could not properly ascertain whether the 2017 report referred to in Ms Harris’ report was the report referred to by the sentencing judge in the passage his Honour read to the parties, in my view, one could be comfortably satisfied they were one and the same. That is because the applicant’s criminal history indicates that the date of the 2018 sentence (29 June 2018) and the date of the 2017 report (20 December 2017) align neatly with each other and there is no other such alignment with any other sentencing proceedings on the applicant’s record. If that is accepted, there is a strong inference that the applicant’s solicitor at the time of the sentencing hearing in 2023 had (or had access to) the 2017 report as referred to in the passage the sentencing judge read out to the parties in the 2018 Remarks on Sentence.

22. [84]

    This inference is further strengthened by the following. In her report, Ms Harris referred to the 2017 report, in part, as follows:

23. [85]

    This passage resonates with the sentencing judge’s observations.

24. [86]

    So far as it is suggested that the material underpinning the passage read out by the sentencing judge was not known to the applicant or ascertainable by him, it would appear that the report underpinning that passage was in his lawyer’s possession, either actually or constructively.

25. [87]

    It is worth repeating that it would have been preferable for the sentencing judge to make available to the parties the document from which his Honour read. That would have put to rest any issue around procedural fairness. In this case, however, given the sentencing judge read out the relevant material, and provided sufficient opportunity for the matters on which he proposed to rely to be dealt with by each of the parties, no practical injustice occurred. Further, it appears that the applicant had access to, if not possession of, the material underlying the relevant portion.

26. [88]

    Ground 1 is not made out.

27. [89]

    The applicant contends that the sentencing judge erred by taking the Form 1 offence attached to the Torrens University charge into account as a matter of aggravation when assessing the objective seriousness of the primary offence. Counsel for the applicant relied upon a decision of this Court in Geagea v R [2020] NSWCCA 350 at [25] as authority for the proposition that conduct which occurred on a later date could not form a part of the objective circumstances of the first charge.

28. [90]

    The Crown submits in response that, when the sentencing remarks are read fairly and in context, it is apparent that his Honour was indicating that the Form 1 offence was serious and, therefore, required an increase to the indicative sentence. In other words, the sentencing judge dealt with the Form 1 offence in an entirely orthodox manner. It was further noted that the Remarks on Sentence were delivered in an ex tempore judgment, and a degree of latitude should be permitted.

29. [91]

    The passage in the Remarks on Sentence which underpins Ground 2 reads as follows:

30. [92]

    When read carefully, his Honour’s words did not show error. His Honour’s reference to aggravation concerned his assessment of the seriousness of the break and enter offence on the Form 1, which itself involved a further entry to the same premises. When the Remarks on Sentence are read fairly and in their full context, it is clear that his Honour was indicating that the Form 1 offence was itself a serious offence (notably involving a re-entry of the same premises) and, therefore, required an increase to the indicative sentence to a significant degree, consistent with the authorities.

31. [93]

    This conclusion is reinforced by the clearly correct statement of law in relation to the treatment of Form 1 offences that is set out in the first paragraph of the Remarks on Sentence and reproduced in [49] of this judgment. His Honour also correctly referred to the relevant principles when taking into account the Form 1 offences in relation to the Louis Vuitton substantive count, set out above at [56]. The approach was also consistent with, and reflected the submissions of, the parties; that is, the manner in which the Form 1 offences could be used to increase the sentence. No error has been established.

32. [94]

    Ground 2 is not made out.

33. [95]

    The applicant contends that the aggregate sentence imposed was manifestly excessive. Whilst accepting that only the aggregate sentence is the subject of the appeal, the applicant makes plain that there is no issue with the lengths of the indicative sentences considered alone. Rather, the excessive degree of notional accumulation is highlighted as the underlying error: Lee v R [2020] NSWCCA 244 at [32]ff; Noonan v R [2021] NSWCCA 35 at [26]ff; GG v R [2023] NSWCCA 102 at [65]ff.

34. [96]

    The applicant notes that, if the two indicative sentences were added together with no concurrency, they would represent a period of 8 years and 3 months (or 99 months). The aggregate head sentence was one of 7 years 6 months (or 90 months), representing more than 91% of the indicative sentences. The applicant submits that this demonstrates there was negligible notional concurrency. This also had the effect that the applicant was ineligible for the Compulsory Drug Treatment Correctional Centre program because the aggregate sentence was more than 6 years.

35. [97]

    The Crown submits that the aggregate sentence is not unreasonable or plainly unjust when considering: (1) the nature of the two offences, (2) the matters on the Form 1 schedules, (3) the offences were committed for financial gain, (4) the offences were committed a month apart, (5) the applicant’s extensive criminal history disentitled him to leniency, and (6) he had limited prospects of rehabilitation, as well as very few matters in mitigation.

36. [98]

    The principles to be applied in determining a ground asserting manifest excess (or inadequacy) of sentences are well known. They were collected in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443]:

37. [99]

    As further noted by Bell P (as Bell CJ then was) in He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 at [42] to these principles can be added:

38. [100]

    Further, the well-known principles in relation to the question of accumulation or concurrency of sentences as set out in Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27] are also relevant:

39. [101]

    Finally, given the sentence in this matter is an aggregate sentence, it is also important to remember the following principles conveniently set out in XY (A Pseudonym) v R [2023] NSWCCA 50 at [66]-[67]:

40. [102]

    With these principles in mind, the following can be noted about the offences and Form 1 matters in relation to which the applicant was sentenced.

    1. (1)

       The two offences were serious, sophisticated examples of their type involving high value goods;

    2. (2)

       The two offences were committed about one month apart and could not be regarded as part of a single episode of criminality. Rather, they were discrete and independent criminal acts involving different business premises and different goods;

    3. (3)

       The Form 1 matters themselves involved some real seriousness, and significant increases in the indicative sentences were properly warranted to reflect the need for personal deterrence;

    4. (4)

       The offences were committed for financial gain. They were properly categorised as in the middle range of objective seriousness;

    5. (5)

       The applicant’s extensive criminal history for larceny, dishonesty and break and enters did not entitle him to leniency. Greater weight needed to be given to both general and specific deterrence;

    6. (6)

       The applicant’s prospects of rehabilitation were limited given he had relapsed into drug use and offended shortly after the expiry of his last sentence; and

    7. (7)

       Other than his plea of guilty and expression of remorse there were no significant mitigating factors.

41. [103]

    As indicated above, the gravamen of this ground of appeal is the limited degree of concurrency allowed between the two indicative sentences. In my view, given the circumstances of the two offences, together with the criminal history of the applicant and his limited prospects of rehabilitation, it was open to the sentencing judge to arrive at the notional accumulation as determined. The aggregate sentence was not unreasonable or plainly unjust. The applicant has failed to demonstrate that the sentence is manifestly excessive.

42. [104]

    Ground 3 is not made out.

Proposed orders

1. [105]

   The orders I propose are:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Appeal dismissed.