Robinson v R

1. [1]

   BATHURST CJ: I agree with the orders proposed by R A Hulme J and with his Honour’s reasons.

2. [2]

   R A HULME J: This is an application for leave to appeal in respect of sentences imposed in the District Court at Lismore on 22 October 2015 by her Honour Judge Wells. (A pseudonym has been used for the applicant's name in the case title.)

3. [3]

   The applicant had pleaded guilty to an offence of specially aggravated enter dwelling with intent to commit a serious indictable offence, namely robbery in company. The circumstance of special aggravation was that the offence was committed whilst armed with a dangerous weapon. This is an offence contrary to s 111(3) of the Crimes Act 1900 (NSW) for which the maximum penalty is imprisonment for 20 years.

4. [4]

   The judge imposed a sentence of a “fixed term” of imprisonment for 2 years, specifying a commencement date of 22 October 2015.

5. [5]

   The applicant also pleaded guilty to a charge of specially aggravated break, enter and commit a serious indictable offence, namely robbery in company. Again, the circumstance of special aggravation was that the offence was committed whilst armed with a dangerous weapon. This offence is contrary to s 112(3) of the Crimes Act and the maximum penalty is imprisonment for 25 years. There is also prescribed under the Crimes (Sentencing Procedure) Act 1999 (NSW) a standard non-parole period of 7 years.

6. [6]

   The judge imposed a sentence of imprisonment for 4 years 6 months with a non-parole period of 2 years 6 months, specifying a commencement date of 22 July 2016.

7. [7]

   The overall sentence was one of 5 years 3 months imprisonment with an effective non-parole period of 3 years 3 months.

8. [8]

   The individual sentences were each reduced by 25 per cent on account of the applicant’s early pleas of guilty and by a further 20 per cent on account of his assistance to authorities, making an overall reduction of 45 per cent.

9. [9]

   The applicant seeks leave to appeal on the following grounds:

Facts

1. [10]

   There was an agreed statement of facts tendered in the sentence proceedings which disclosed the following.

2. [11]

   In early 2014 the applicant (then 18½ years of age) was living in a house at Banora Point near Tweed Heads with some of his co-offenders. Other co-offenders would visit from time to time. The group regularly hosted parties at which alcohol and illicit drugs were consumed. It was at this house where the group discussed and planned the commission of home invasion offences targeting suspected drug dealers with the use of a sawn off .22 calibre rifle owned by the co-offender Wood, machetes, knives and batons.

3. [12]

   At about 7.30pm on either the first or second Thursday in February 2014, the applicant together with co-offenders Wood, Huxstep and another male went to a house in Tweed Heads South. The house was occupied by a married couple; I will refer to the husband as "Victim 1" and the wife as "Victim 2".

4. [13]

   The offenders were wearing balaclavas and hand coverings. The co-offender Wood was armed with a sawn off .22 calibre rifle. The applicant and other two co-offenders were armed with bladed weapons or batons.

5. [14]

   They knocked on the door and it was opened by Victim 1 who was confronted by the group, with Wood holding the rifle towards his face. Victim 1 moved back into the house, followed by the applicant and two co-offenders (the fourth co-offender also entered at some point). Victim 1 grabbed the gun and Wood forced him to the floor. Victim 2 heard the commotion and came to the scene. She found her husband lying on the floor with Wood standing over him.

6. [15]

   Victim 2 stood in front of her husband and took hold of Wood, pushing him towards the front door. Victim 1 crawled to the kitchen and armed himself with two kitchen knives. The applicant and Huxstep remained near the front door ready to assist but hesitating due to the altercation Wood was involved in.

7. [16]

   Victim 1 showed the knives and verbally challenged all the offenders. Victim 2 continued to push Wood towards the front door, during which time the gun was pointed at both victims. The offenders then fled the house without any proceeds. Items within the house were knocked about and damaged.

8. [17]

   The victims did not report the matter to the police as they realised they had been targeted because of cannabis dealing.

9. [18]

   The applicant, Wood and two other offenders agreed to carry out a home invasion on an alleged drug dealer at Tweed Heads. Gloves and balaclavas were worn by three of the offenders, while the fourth offender was the driver. Wood opened the closed (but unlocked) front door and entered the house, followed by the applicant and the third male. The applicant and the third male were armed with steel bars. Wood had a sawn off .22 calibre rifle.

10. [19]

    Two occupants, aged in their 50's, were confronted by Wood pointing the rifle at them and ordering them to lay down. All three offenders made demands for steroids. The applicant guarded the first two victims while the third male searched the house. Wood forced entry to a bathroom where the 25 year-old alleged drug dealer was showering. Wood pointed the rifle at him and demanded steroids and money. The victim slammed the door and held it closed against Wood's force.

11. [20]

    Wood and the third male rummaged through rooms. Wood took a wallet and a mobile phone from the living room before the female victim wrestled it back from him. Wood pointed the rifle at her face and said, "I will shoot you".

12. [21]

    The male victim got up and fled the house screaming for help. The applicant alerted the other offenders to this and they all fled to the waiting vehicle driven by the fourth offender. The male victim saw this and approached to get the registration number. Wood stopped, pointed the rifle at him and discharged it. The male victim felt something hot brushing past the inside of his left elbow. The offenders then drove away.

13. [22]

    The younger male victim told police that an empty vial of steroids had been taken from his room. He admitted past involvement in helping friends and associates to obtain cannabis and steroids.

Assessment of the objective seriousness of the offences

1. [23]

   The judge devoted a portion of her judgment to a discussion of the objective seriousness of the offences. She noted the following matters:

2. [24]

   Later in the sentencing judgment her Honour discussed a submission that she should impose a non-custodial sentence. In rejecting that submission, she explained:

The applicant’s personal circumstances

1. [25]

   The judge described the applicant's personal circumstances as follows:

2. [26]

   The judge specifically noted that the applicant was a person of unblemished prior character but she added, “although the gloss is taken off that because these offences in which he was involved occurred over a couple of months”.

3. [27]

   Her Honour found that the applicant had very good prospects of rehabilitation because he was remorseful and intends to rehabilitate himself. Further, he had a very good upbringing and he had a support network which included his family, friends, his partner and a church with whom he had reconnected.

Other aspects of the judgment

1. [28]

   At the conclusion of her judgment the judge said she would give “considerable weight” to imposing a sentence that reflects the principle of general deterrence, punishment of the offender and protection of the community. She also referred to the future rehabilitation of a young offender and said she had taken that into account as well.

2. [29]

   Special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act were found so as to justify a reduction of the proportion of the sentences represented by the non-parole periods. These circumstances were said to be that it would be the applicant’s first time in custody and he would be in protection.

Ground 1 – insufficient discount for assistance to authorities

1. [30]

   The judge said the following on the subject of the applicant’s assistance to authorities:

2. [31]

   The applicant’s submission in support of this ground was crystallised at the hearing of the application and may be stated quite succinctly: it was unreasonable for the sentencing judge not to have found that the assistance to authorities provided by the applicant was “exceptional”. It was submitted that with a finding that the assistance was "exceptional", the assessment of the discount should have been at a higher level.

3. [32]

   It was submitted that for assistance alone, the discount should have been in the order of 30 to 40 per cent, although it was conceded that that would bring about a sentence that was contrary to s 23(3) of the Crimes (Sentencing Procedure) Act in that it would be unreasonably disproportionate to the nature and circumstances of the offence. Accordingly it was submitted that a combined discount of 55 to 60 per cent should have been allowed.

4. [33]

   There was discussion at the hearing about the appropriateness of a sentencing judge engaging in a multi-staged process of reasoning such as indicated by the above summary of the applicant’s submission. Counsel referred to the reasoning of the members of the Court in Panetta v R [2016] NSWCCA 85. In that case each of the judges assessed a starting point for the sentence and then what was considered to be an appropriate discount for the applicant’s plea of guilty and assistance to authorities. Then, upon calculating the resulting sentence and concluding that it would be unreasonably disproportionate, they reduced the levels of the discounts so as to arrive at an ultimate sentence.

5. [34]

   Nothing was said in that case to suggest that the exposure of such staged reasoning is a necessary part of the exercise of the sentencing discretion. Indeed, with respect, it would appear to be contrary to the instinctive synthesis approach spoken of in various High Court authorities: see, for example, Wong v The Queen; Leung v The Queen (2001) 207 CLR 584 at 611 [75]; [2001] HCA 64.

6. [35]

   Counsel for the applicant submitted that the assistance was “exceptional” because this was not simply a case of an offender nominating co-offenders and undertaking to give evidence against them. In this case there were the additional features of the applicant disclosing to police his own guilt, actively assisting police in the course of their investigation of the involvement of others, and the threat of danger the applicant faced as a result of his assistance. Counsel acknowledged that the assistance did not concern a recognised organised criminal gang or an outlaw motorcycle gang but submitted that “it is still a criminal gang and there was a finding of fact that there was a very real risk of danger to both the applicant and to his family” (T11.30).

7. [36]

   Section 23 of the Crimes (Sentencing Procedure) Act provides a power to reduce penalties for assistance provided to law enforcement authorities. It provides in sub-s (2) a list of matters that a court must consider in deciding whether to impose a lesser penalty for an offence. These matters were addressed in the passage of the judge’s remarks on sentence set out above (at [30]). Importantly, sub-s (3) provides:

8. [37]

   It is uncontroversial that a discount to be given for assistance to authorities is an aspect of the judicial sentencing discretion. For example, in Hutchinson v R [2014] NSWCCA 317 Fullerton J said (at [32]):

9. [38]

   As the Crown pointed out in its submissions, this Court has observed that the combined discount for both a plea of guilty and assistance to authorities should not normally exceed 50 per cent. In Z v R [2014] NSWCCA 323, McCallum J said (at [27]):

10. [39]

    The Court has also said on many occasions that combined discounts for pleas and assistance of more than 40 per cent should be granted very exceptionally, if at all, in a case where there is no evidence that the offender will spend time in custody in circumstances that are more onerous than for the general prison population. In this regard, the Crown referred to: R v Sukkar [2006] NSWCCA 92; 172 A Crim R 151 at [5]; R v Ehrlich [2012] NSWCCA 38; 219 A Crim R 415 at [67]; LB v R [2013] NSWCCA 70 at [62]; and Haouchar v R [2014] NSWCCA 227 at [37].

11. [40]

    In SL v R [2015] NSWCCA 30; 249 A Crim R 295, Basten JA observed (at [6]) that “the kinds of cases in which a discount in excess of 25% [for assistance alone] is allowed tend to be ones involving organised criminal activities, where the risk of harm to the offender or his or her family is quite significant”.

12. [41]

    Given that the assessment of a discount for assistance to authorities is a matter of discretion, it is unsurprising that there are references in the cases to there being “no fixed tariff”: see, for example, R v Lenati [2008] NSWCCA 67 at [5] (Bell JA). Gleeson CJ in R v Gallagher (1991) 23 NSWLR 220 at 230 expressed it thus:

13. [42]

    In the present case there is no suggestion that the sentencing judge overlooked any aspect of the applicant’s assistance to authorities that was said to be pertinent to the assessment of the appropriate discount to be allowed. The provision in s 23(3), like the corresponding provision in s 22(1A) relating to the reduction of a sentence on account of a plea of guilty, imposes a limit on the degree to which a discount can be allowed in order that the ultimate sentence is not unreasonably disproportionate to the nature and circumstances of the offences.

14. [43]

    The fact that the judge used the term “high degree of assistance” (twice) rather than “exceptional” is not significant in my view. She was clearly satisfied that the assistance fell towards the upper end of the range of assistance that is encountered. The word “exceptional” is not a term of art; it’s simply one way of expressing a conclusion and there are alternatives.

15. [44]

    Whilst another judge may have chosen to allow a different combined discount, in the circumstances I am not persuaded that the judge was required to do so. It was a matter for her discretionary evaluation and the assessment that she made was one that was reasonably open to her.

16. [45]

    For these reasons I would grant leave to appeal in relation to this ground but it must be rejected.

Ground 2 – manifest excess

1. [46]

   In Harper v R [2017] NSWCCA 159 I set out the principles to be applied when it is contended on appeal that a sentence is manifestly excessive (at [24]):

2. [47]

   Counsel for the applicant made clear at the hearing of the application (T8.39) that this ground relates solely to the sentence imposed for the second offence (the sentence for the first offence having expired).

3. [48]

   The contention that the sentence for the second offence was manifestly excessive was based exclusively upon a comparison with sentences imposed in other cases: De Jong v R; Tuimaualuga v R; Zechel v R; Puru v R [2015] NSWCCA 32; 249 A Crim R 252 (“De Jong v R”) and the cases referred to in a schedule to that judgment; R v Campbell [2014] NSWCCA 102; Burrows v R [2017] NSWCCA 45; and Harper v R.

4. [49]

   It was submitted that a “meaningful range of sentences” could be discerned from those cases which indicated that the starting point of 8 years 2 months for the second offence was too high and resulted in an overall sentence that was manifestly excessive.

5. [50]

   In written submissions counsel for the applicant submitted that a review of the cases in the schedule to the judgment of Fullerton J in De Jong v R supported the proposition that the sentence for the second offence was manifestly excessive. No analysis of the cases in that schedule was provided. Reference was made, however, to my judgment in Harper v R which dealt with a similar submission. I found (at [38]) that “a meaningful range of sentences pertinent to the present case cannot be discerned from De Jong v R and the 10 cases listed in the schedule" (emphasis added).

6. [51]

   It is important to bear in mind what has been said by the High Court about the care which is required when comparing sentences that have been imposed in earlier cases: see Hili v The Queen; Jones v The Queen (2010) 242 CLR 520 at 537 [54]; [2010] HCA 45.

7. [52]

   It must also be observed that identification of a case that has comparable objective seriousness and similarly compelling subjective features cannot be determinative of a contention that a sentence is manifestly excessive. As it has been noted on numerous occasions, there is no single correct sentence. For example, in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, Gleeson CJ, Gummow, Hayne and Callinan JJ explained (at 371 [27]):

8. [53]

   As the Crown submitted, the cases referred to in the applicant’s submissions are illustrative of the very diverse range of offending in offences against s 112(3) of the Crimes Act. They also demonstrate a diverse range of sentencing outcomes and it is difficult to see that a meaningful range of sentences pertinent to the present case can be discerned.

9. [54]

   The cases involving Crown appeals decided before 24 September 2009 have to be read with caution because they preceded the insertion of s 68A in the Crimes (Appeal and Review) Act 2001 (NSW) which had the effect of abolishing the consideration of double jeopardy in such appeals.

10. [55]

    Given there has been prescribed under the Crimes (Sentencing Procedure) Act a standard non-parole for offences against s 112(3) since the inception of standard non-parole periods on 1 February 2003, care is also required in relation to cases decided prior to the decision of the High Court on 5 October 2011 in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 120.

11. [56]

    A number of the cases relied upon are clearly more serious than the present case and attracted sentences with higher starting points: for example, De Jong v R; Srikantharajah v R [2012] NSWCCA 209; Micklesson v R [2009] NSWCCA 61; R v Baghdadi [2008] NSWCCA 239; R v Van Rysewyk [2008] NSWCCA 130; and R v Chaaban [2006] NSWCCA 107; Burrows v R [2017] NSWCCA 45.

12. [57]

    A few of the cases are of broadly similar seriousness to the present case and attracted assessments of sentence less than that in the present case: for example, R v Campbell (starting point 6 years 6 months) and Aslett v R [2012] NSWCCA 235 (starting point 7 years 6 months). R v Dole; R v Nguyen [2010] NSWCCA 101 could be regarded as being of similar seriousness and attracted a significantly lower sentence (starting point 4 years) but in that case one of the offenders was described (by the sentencing judge) as having suffered a dysfunctional upbringing and the other suffered a major depressive illness which was recurrent and severe with psychotic features.

13. [58]

    Sheen v R [2011] NSWCCA 259; 215 A Crim R 208 (a post-Muldrock case) could be regarded as of broadly similar seriousness but the offender had a less compelling subjective case. This Court re-sentenced the offender to an undiscounted term of 7 years.

14. [59]

    There was a starting point for the sentence in R v Cheh [2009] NSWCCA 134 that was similar to that in the present case (8 years) but in dismissing the Crown appeal it was noted that, but for the applicant’s mental illness, a longer sentence would have been appropriate (McClellan CJ at CL at [32]). It may be noted that this was one of the cases predating s 68A of the Crimes (Appeal and Review) Act.

15. [60]

    Harper v R (starting point of 6 years) might be regarded as a somewhat less serious case than the present in the sense that the dangerous weapon in the present case was a loaded sawn off rifle (which was discharged) as opposed to the stun gun that was used in Harper.

16. [61]

    It must be borne in mind that the s 112(3) offence in the present case was a particularly serious example of its type. It was planned and was committed with three other offenders. The applicant and the two co-offenders who entered the house with him were disguised with balaclavas and gloves. One of the offenders was armed with a loaded sawn off rifle while the applicant and the other offender were armed with steel bars. The male and female victims who were aged in their fifties were ordered at gunpoint to lie down and the rifle was also pointed at the third victim. At one point the gun was pointed at the face of the female victim who was told, “I will shoot you”. Finally, the firearm was in fact discharged in the direction of the older male victim as the offenders fled.

17. [62]

    This Court has regarded home invasion offences as being of considerable seriousness: see for example Palijan v R [2010] NSWCCA 142 at [22] (Barr AJ) and R v Elmir; R v Salami [2003] NSWCCA 192 at [19] (Adams J). Whilst the sentencing judge took into account the various subjective matters that were favourable to the applicant, she also took into account, as she was required to, the need to impose a sentence that gave considerable weight to general deterrence, punishment and protection of the community.

18. [63]

    Another pertinent matter is that the s 112(3) offence could not be regarded as an aberration in that the applicant also stood to be sentenced for the other home invasion offence committed two months earlier.

19. [64]

    Having regard to the authorities set out earlier (at [46]), I am not persuaded that the sentence imposed in the present case can be characterised as unreasonable or plainly unjust. The starting point assessed by the primary judge may be regarded as a stern one but it was not beyond the range of the legitimate exercise of her sentencing discretion. Accordingly, this ground must be rejected.

Orders

1. [65]

   I propose the following orders:

2. [66]

   WILSON J: I agree with R A Hulme J for the reasons his Honour has given.