Fritz v R

1. [1]

   FREE JA: I agree with Sirtes J.

2. [2]

   RIGG J: I agree with Sirtes J.

3. [3]

   SIRTES J: The Applicant, Mr Raymond Fritz, was sentenced in the District Court at Armidale by Payne DCJ (the Sentencing Judge) on 25 October 2024 for a series of offences carried out on 30 September and 9 and 10 October 2023. Following a 25% discount to reflect his plea of guilty, the Applicant received an aggregate sentence of imprisonment of 8 years with a non-parole period of 4 years 3 months, to date from 10 October 2023. His non-parole period expires on 9 January 2028. His sentence expires on 9 October 2031.

4. [4]

   Pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), the Applicant seeks leave to appeal against that sentence on two grounds, namely that:

   1. (1)

      the Sentencing Judge erred in failing to assess the objective seriousness of an offence carrying a standard non-parole period; and

   2. (2)

      the sentence is manifestly excessive.

Background

1. [5]

   The Applicant pleaded guilty in the Local Court to four principal offences contrary to the Crimes Act 1900 (NSW) (the Crimes Act). At sentencing, further offences were taken into account on a Form 1. The table below indicates the offences for which the Applicant was sentenced, the maximum penalty and any standard non-parole period associated with the offence, and the individual sentences indicated pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act), in each case following the application of a 25% discount.

2. [6]

   A Statement of Agreed Facts was presented to the Sentencing Judge, a summary of which is as follows.

3. [7]

   The Applicant and his co-offender, Mr Blair, left a house in Armidale around 12.30 am on 30 September 2023 armed, respectively, with a machete and a screwdriver. They followed the victim, an apprentice baker, to his workplace at the Goldfish Bowl Bakery. As the victim approached the front door both men ran at him, yelling and demanding his wallet and phone. The victim surrendered his wallet but refused to hand over his phone. The Applicant tapped the victim’s upper left back with the flat side of the machete. After the victim pushed Mr Blair away, Mr Blair ran at him with a screwdriver. Both offenders then charged at the victim and punched him in the right eye, causing a black eye. When one of the victim’s colleagues appeared at the front door of the bakery from inside, the Applicant and Mr Blair fled, taking the victim’s wallet containing cards and approximately $50 cash.

4. [8]

   Shortly after the Goldfish Bowl Bakery armed robbery, the Applicant and Mr Blair met at Central Park. The Applicant proposed robbing the Whitebull Hotel. The victim of this robbery, a cleaner, arrived at the hotel’s rear entrance at around 3.05 am and was approached by the Applicant running towards her wearing a balaclava and carrying the machete. He demanded the hotel key. The victim twice refused to provide the key. Mr Blair then approached the victim from the other side holding the screwdriver and blocking her exit. At this point she surrendered the hotel key. The Applicant then grabbed the victim’s handbag from her shoulder, walked to the driver side of her vehicle, tipped out the contents, located and took a car key.

5. [9]

   Having taken the car key from the victim, the Applicant got into the driver’s seat of her white Isuzu MU-X, with Mr Blair in the front passenger seat. They drove away. The vehicle was recovered by the police approximately 9.45 am in bushland near the Armidale Apex lookout. It was towed away for forensic examination.

6. [10]

   At around 5.30 am on 9 October 2023, the Applicant forced his way through the locked door of a unit in Armidale, where the victim and his family were asleep. The victim’s elderly father was in the kitchen and encountered Mr Fritz holding a large piece of wood. The father screamed. This woke the victim who then got up and found the front door open. The Applicant ran from the unit shortly after being seen by the victim’s father. He stole the victim’s wallet containing various cards as well as the house and car keys.

7. [11]

   The following four offences were dealt with on a Form 1 attached to the Aggravated BES offence committed on 9 October 2023.

8. [12]

   Approximately 30 minutes prior to the Aggravated BES offence, the Applicant approached another dwelling in Armidale, armed with a piece of wood 1 metre in length and 5 centimetres in thickness. The victim, an 85-year-old man, heard noise outside his residence and opened the front door to find the Applicant standing near the victim’s neighbour’s vehicle in the shared carport. The Applicant was wearing a hat, brown balaclava, brown coat and long brown pants. He told the victim he only wanted money. The victim said he had none. The Applicant then entered the house through the front door, took the victim’s iPhone from his bedroom and took the keys to the neighbour’s Mazda CX-5. This offence was taken into account on a Form 1 in relation to the Aggravated BES offence.

9. [13]

   The Applicant was arrested in the Armidale Coles carpark on 10 October 2023. He was carrying a headphone case containing 0.3 g of cocaine, a small tab of Suboxone brand buprenorphine, and three capsules of pregabalin. I note that while the Applicant was apparently found in possession of 0.3 g of cocaine he was instead charged with possession of that quantity of cannabis leaf. This discrepancy is unexplained but is not presently material.

Analysis of sentencing remarks

1. [14]

   Her Honour delivered her sentencing remarks ex tempore. This was recently considered by N Adams J (as her Honour then was) in Towers v R [2025] NSWCCA 142 at [12], where her Honour cited the observations of McCallum JA (as the learned Chief Justice then was, and with whom Hamill and Cavanagh JJ agreed) in Lloyd v R [2022] NSWCCA 18 at [11] as follows:

2. [15]

   The Sentencing Judge identified the offences and the maximum penalties that each attracted. Her Honour noted the standard non-parole period of 5 years for the Aggravated BES offence was a guidepost and that weight must also be given to the Form 1 matters. Reference was made to the Crown’s citation of this Court’s guideline judgment in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 (Henry) and the 10% discount built into the guideline range of 4 to 5 years’ imprisonment. Her Honour applied a 25% reduction for the utilitarian value of the Applicant’s guilty plea.

3. [16]

   As to the objective features of the offending, the Sentencing Judge made the following observations:

   1. (1)

      in the Goldfish Bowl Bakery robbery, Mr Blair hit the victim in the eye whilst the Applicant tapped the victim’s back with the flat side of a machete;

   2. (2)

      the victim of the Whitebull Hotel robbery was doing nothing more than attending to her cleaning duties in the early hours of the morning. She provided a victim impact statement which the Sentencing Judge described as a heartfelt document reflecting the adverse effect the offence had and her fear for her safety;

   3. (3)

      the other victims would have equally been traumatised;

   4. (4)

      the father of the Aggravated BES victim was elderly. The victim of the Aggravated BES was asleep in his home at the time; and

   5. (5)

      the offending was characterised, globally, as “very serious”.

4. [17]

   Although the Applicant had a previous criminal record, her Honour noted that most of that record involved juvenile antecedents. The Sentencing Judge concluded that his record did “not completely deny him leniency”.

5. [18]

   Her Honour also considered the Applicant’s subjective circumstances concerning his background and upbringing, drug use, his involvement in a buprenorphine program, his partner and their child, Bugmy principles, denunciation, remorse, rehabilitation and remand conditions. Her Honour accepted that his background and upbringing were dysfunctional and disadvantaged. He moved between locations when young and did not have a proper upbringing. The Sentencing Judge also accepted that the Applicant’s drug use developed to counteract the feelings arising from his traumatic background. Her Honour expressly found that principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 had importance in the sentencing exercise. Her Honour found that there must be some moderation of both general deterrence and moral culpability, but that these were not completely extinguished.

6. [19]

   The Sentencing Judge found the Applicant to be genuinely remorseful and found that he had some prospects of rehabilitation given his age and the fact that he had not spent long periods in custody.

7. [20]

   As already stated, the victim of the Whitebull Hotel robbery prepared a victim impact statement. The Sentencing Judge accepted harm to the other victims and acknowledged that recognising harm to victims and the community is a sentencing purpose under s 3A of the Sentencing Act.

8. [21]

   Her Honour made a finding of special circumstances, which were described as “significant”, to assist the Applicant’s reintegration into the community and not returning to illegal drug use. Overall, the Sentencing Judge described this as “a very difficult sentencing exercise” because of the strong subjective case on the one hand and, on the other, the very serious offending which affected multiple victims who were either asleep in their homes or attending work in the early hours of the morning.

9. [22]

   Ms Goodwin of Counsel, who appeared for the Applicant, also drew the Court’s attention to his subjective circumstances as established through the report of Kris North, forensic psychologist. The findings of the report were largely set forth in the judgment and concern the Applicant’s prior criminal record, severely dysfunctional upbringing, cannabis use from the age of 12, a diagnosis of major depressive disorder (or adjustment disorder and depressed mood), and multiple substance use disorders.

Ground 1

1. [23]

   The Applicant contends that the Sentencing Judge fell into error by failing to assess the objective seriousness of the Aggravated BES which carried a standard non-parole period.

2. [24]

   Division 1A of the Sentencing Act concerns standard non-parole periods prescribed for certain offences. Sections 54A and 54B provide as follows:

3. [25]

   In Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 (Muldrock) at 132 [29], the High Court considered the operation of Div 1A (as then in force) and observed:

4. [26]

   In this Court’s recent decision of Daher v R [2026] NSWCCA 26 (Daher) at [14], N Adams CJ at CL (with whom Boulten J agreed) summarised the effect of the High Court’s observations in Muldrock as follows:

5. [27]

   In the Applicant’s proposed ground of appeal, it seems to be suggested that the Sentencing Judge’s asserted failure to assess the objective seriousness of the Aggravated BES offence was in error because it carried a standard non-parole period, and such offences require that assessment.

6. [28]

   In his amended written submissions the Applicant acknowledged, including by reference to Daher, that there was no requirement for her Honour to determine where on a hypothetical scale of objective seriousness the offence fell. Nevertheless, whilst he accepted that the Sentencing Judge characterised the totality of the conduct as “very serious”, he submits that her Honour did not specifically assess the objective seriousness of the offence. The “only” three features identified by the Sentencing Judge in relation to that offence were that the victim’s father was elderly, the offence was committed in the home of the victim, and the victim was asleep in the home at the time.

7. [29]

   The Applicant submits that if the offence were placed on a notional scale, it would fall between the low- and mid-range for offences of this type. This is for six reasons:

   1. (1)

      the weapon, being a large wooden stick approximately 1m long and 5cm thick, was a less serious type of offensive weapon which was far less capable of inflicting serious injury than, for example, a blade;

   2. (2)

      the stick was not in any event used to assist the commission of the offence, noting, however, that by his plea the Applicant accepts at least an intention to use the wooden stick for offensive purposes: see R v Rose [2024] NSWCCA 193;

   3. (3)

      larceny, the underlying serious indictable offence, is at the lower end of “serious indictable offences” within the meaning of s 4 of the Crimes Act because it carried a maximum penalty of 5 years’ imprisonment;

   4. (4)

      the stolen items, being a wallet containing cards and house keys, were not of significant intrinsic value;

   5. (5)

      the Applicant’s presence was brief; he departed shortly after encountering the elderly man; and

   6. (6)

      there is no evidence that the Applicant knew of or intended to encounter the victim’s father. He did not interact with him and departed immediately.

8. [30]

   The crux of the Applicant’s submission is that the s 112 offence fell between the low and mid-range but the Sentencing Judge did not specifically assess the objective seriousness in these terms.

9. [31]

   The Crown argues, apparently in response to the inference I have drawn at [27] above, that the assessment of objective gravity is a critical component of the sentencing process for all offences, whether or not they carry a standard non-parole period: R v Campbell [2014] NSWCCA 102 at [27] (Simpson J, Hall J agreeing); Kochai v R [2023] NSWCCA 116 at [47] (N Adams J, Button and Wilson JJ agreeing). I agree.

10. [32]

    It adds, however, that even for standard non-parole period offences, there is no requirement to assess objective seriousness by reference to a notional range: Muldrock; DH v R [2022] NSWCCA 200 at [58]–[60] (Yehia J, Fagan J agreeing); Bektasovski v R [2022] NSWCCA 246; 407 ALR 125 (Bektasovski) at 129 [11] (Beech-Jones CJ at CL, Kirk JA and Yehia J agreeing). Rather, the Crown contends, a sentencing judge is required to identify the facts, matters and circumstances bearing upon the selection of the appropriate sentence, which must be assessed by reading the whole of the reasons with an emphasis on substance over form. No particular form must be used.

11. [33]

    In Bektasovski at 129 [10]–[11], Beech-Jones CJ at CL (as his Honour then was) stated as follows:

12. [34]

    The Sentencing Judge described the nature of the offences in some detail and identified those matters which justified her Honour’s characterisation of the offences as “very serious”. Such a global assessment was unsurprising as the modus operandi of each of these offences was similar. They involved stealing using some form of weapon, whether it be a machete or a large piece of wood. The Applicant has attempted to downplay the “large wooden stick” as being a less threatening or serious weapon when compared to a blade. Even if a machete is, as a general proposition, more threatening than a piece of wood, both can be used to inflict serious harm. The Sentencing Judge was entitled to conclude that the offence involving the use of the wood was very serious.

13. [35]

    The Sentencing Judge set out the features which informed her assessment as set forth in paragraph [16] above. In doing so, albeit not in any elaborate or extensive way, her Honour’s approach discloses no error. That approach described the “facts, matters and circumstances” of each offence for which the Applicant was to be sentenced. In that context, the gravity of those offences was characterised as “very serious”. I also bear in mind that the remarks were delivered ex tempore and ought not be picked over.

14. [36]

    For those reasons, I reject this ground.

Ground 2

1. [37]

   The Applicant also contends that the aggregate sentence of imprisonment is manifestly excessive.

2. [38]

   The principles which govern this question are well established. They have been set down in many judgments of this Court and the High Court. In Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at 241 [443], R A Hulme J (with whom Bathurst CJ, Leeming JA, and Hamill and N Adams JJ agreed) summarised those principles as follows:

3. [39]

   The principles which apply where an aggregate sentence of imprisonment is imposed were summarised by Beech-Jones J (with whom Payne JA and Fagan J agreed) in Lee v R [2020] NSWCCA 244 at [32] as follows:

4. [40]

   Each of the parties’ submissions dealt with the guideline judgment in Henry.

5. [41]

   In Foaiaulima v R [2020] NSWCCA 270; 285 A Crim R 222 (Foaiaulima) at 243 [127]ff, Rothman J recounted the development and history of guideline judgments in New South Wales. His Honour noted that Pt 3 of the Sentencing Act deals with the process of sentencing and, in s 36, grants this Court jurisdiction to issue guideline judgments. A guideline judgment may contain guidelines that apply generally or to particular matters, such as particular offences or classes of offences.

6. [42]

   The guideline judgment in Henry deals with penalties for offences in contravention of s 97 of the Crimes Act.

7. [43]

   In Foaiaulima at 244 [135] – 246 [143], Rothman J observed the following:

8. [44]

   In terms of objective seriousness, the observation of Spigelman CJ in Henry at 368 [99] is worth repeating:

9. [45]

   The Sentencing Judge referred to the guideline judgment in Henry which applied a 10% discount in arriving at the guideline range of 4 to 5 years. Here, her Honour applied a 25% discount. There is no suggestion that the Sentencing Judge misapplied the guideline. The Applicant notes that the corresponding range, after a 25% early plea discount, ranges from 3 years and 4 months to 4 years and 2 months, with a non-parole period ranging from approximately 2 years and 6 months to 3 years and 1 month.

10. [46]

    The Applicant submits that the Goldfish Bowl Bakery armed robbery ought be assessed as “around mid-range”, whereas the Whitebull Hotel robbery ought fall below that range in the absence of actual violence. I reject this submission. Although violence was inflicted upon the victim in the Goldfish Bowl Bakery robbery, there is no basis to conclude that the Whitebull Hotel robbery was materially less serious. The Applicant ran towards the victim in the middle of the night wearing a balaclava and wielding a machete. He demanded her property and then grabbed her handbag from her shoulder. The threat of violence which this conduct carries is both intended to and likely to terrify the victim into submission. That is consistent with the victim impact statement provided for this offence, which the Sentencing Judge described as “a heartfelt document as to the very adverse effect this extremely distressing event had on her and her fear for her safety”. That is an apt description of the statement. The victim described, in the aftermath of the robbery, suffering “significant psychological distress” and “significant disruption to my daily life”, which caused her to relocate from her previous residence to regain a sense of security.

11. [47]

    It is also necessary to address the Applicant’s submission as to whether there has been “double counting” in relation to the Isuzu MU-X forming an element of both the Whitebull Hotel armed robbery as well as the take and drive conveyance. The Crown submits that, having regard to the absence of any ground asserting error in the factual findings, the assessment of manifest excess must proceed on the basis of the unchallenged findings of the Sentencing Judge, namely, that the taking of the car was part of the armed robbery at the Whitebull Hotel. This is consistent with the charge certificate, the position taken by the Applicant in the sentencing proceedings, and the opening of the remarks on sentence. I see no merit in the argument that there has been double counting and reject this submission.

12. [48]

    The Sentencing Judge considered totality to be “a significant feature of this sentencing exercise”. The generality of this statement is criticised by the Applicant on the basis that the Sentencing Judge did not indicate how, if at all, it was applied to the vehicle issue. It appears that this submission is bound up with the ‘double counting issue’. Having rejected that argument, the attack on totality, at least on this basis, similarly falls away. The residual argument as to totality is that the proper application of that principle—making due allowance for the Applicant’s subjective case, particularly his background of dysfunction and disadvantage—leads to the conclusion that the aggregate sentence of 8 years, with a non-parole period of 4 years 3 months, is manifestly excessive.

13. [49]

    The indicative sentences nominated by the Sentencing Judge are set out in the table at [5] above. The aggregate sentence of 8 years’ imprisonment confirms both a measure of notional concurrency as well as accumulation. The issue of accumulation and concurrence was considered in detail by N Adams J (with whom Simpson AJA and Rothman J agreed) in Kliendienst v R [2020] NSWCCA 98 (Kliendienst) at [76] and following. In essaying the cases concerning this issue, consideration was given to the decision of Button J (with whom McClellan CJ at CL and Garling J agreed) in Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36, where his Honour said at [231]:

14. [50]

    N Adams J observed in Kliendienst at [85] that:

15. [51]

    These observations apply here. Reading the entirety of the Sentencing Judge’s reasons I am satisfied that there is no error in the application of the totality principle. Her Honour explicitly referred to the principle’s application to the sentencing exercise. No error can be gleaned by comparing the indicative sentences with the aggregate sentence, and nor was the Sentencing Judge required to state specifically the degree of accumulation and concurrence.

16. [52]

    The Applicant also refers to JIRS statistics. Statistics can be useful but the mere reference to statistics, without an “articulation of what are to be seen as the unifying principles which those disparate sentences may reveal”, is not: see Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at 606 [59] (Gaudron, Gummow and Hayne JJ); Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at 537 [54].

17. [53]

    This Court (Wilson J, Basten JA and Wright J agreeing) observed in Ahmad v R [2019] NSWCCA 198 (Ahmad) at [48] and [50]:

18. [54]

    The Applicant candidly acknowledges the limited usefulness of statistics and accepts that his indicative sentences are not ‘out of range’. At best, the Applicant submits that they are “arguably high” by reference to the Applicant’s total criminality and his subjective circumstances, particularly his background of dysfunction and disadvantage.

19. [55]

    I am unpersuaded by this submission. The Sentencing Judge considered the detailed submissions made on behalf of the Applicant in relation to his subjective circumstances. This is set out in the remarks on sentence. It is the very reason why her Honour described the proceedings as “a very difficult sentencing exercise”. Even if one were to accept that the indicative sentences were “arguably high” by reference to like cases, that is not enough to demonstrate that the aggregate sentence is manifestly excessive: Ahmad at [48].

20. [56]

    It follows that I do not agree that her Honour’s discretion miscarried. Neither the indicative sentences, their accumulation, nor the aggregate sentence itself is unreasonable or plainly unjust as would suggest that there has been some misapplication of principle.

21. [57]

    Ground 2 is not made out.

Conclusion

1. [58]

   Given the length of the Applicant’s sentence and the interest in finality, I would grant leave to appeal. However, the appeal must be dismissed.

2. [59]

   Therefore, I propose that the Court:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Dismiss the appeal.