Gillette v R

1. [1]

   N ADAMS CJ at CL: On the night of 22 February 2023, two houses in Bolton Point on Lake Macquarie were broken into by two men armed with a rifle and a small axe. On 3 May 2024, following a judge-alone trial in the District Court, Judge McGrath SC found the applicant guilty of two offences of specially aggravated break, enter and commit serious indictable offence contrary to s 112(3) of the Crimes Act 1900 (NSW). The relevant serious indictable offences were intimidation and assault occasioning bodily harm, and the circumstances of special aggravation were the use of a dangerous weapon. These offences carry a maximum penalty of 25 years’ imprisonment and a standard non-parole period of 7 years.

2. [2]

   The applicant was also found guilty of a related offence of common assault contrary to s 61 of the Crimes Act which was before the Court on a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW).

3. [3]

   On 18 October 2024, the sentencing judge sentenced the applicant to an aggregate term of 10 years’ imprisonment with a non-parole period of 7 years. The sentence commenced on 23 February 2023. The non-parole period will expire on 22 February 2030 and the head sentence will expire on 22 February 2033.

4. [4]

   By notice of appeal dated 21 October 2025, the applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the aggregate sentence. The applicant relies on three grounds of appeal:

The facts

1. [5]

   At the proceedings on sentence, the Crown provided a suggested statement of facts which was drawn from the sentencing judge’s judgment on verdict. The applicant did not dispute the Crown’s suggested facts and the sentencing judge largely adopted them in his Honour’s remarks on sentence.

2. [6]

   The following summary is drawn from the sentencing judge’s findings of fact.

3. [7]

   The first offence was committed at the premises of David Anderson at Willai Street, Bolton Point, a small town on Lake Macquarie. Mr Anderson lived at the house with his 17-year-old son, his 20-year-old daughter and her boyfriend.

4. [8]

   On the night of Wednesday 22 February 2023 at around 10:00pm, David Anderson was in bed and other members of the household were in their different rooms.

5. [9]

   Mr Anderson heard a knock at the front door. He and his son got up. Mr Anderson turned on the porch light and looked through the peephole. He saw a young girl he did not recognise of about 17 or 18 years of age wearing a hoodie. The sentencing judge inferred that Mr Anderson thought that she may have been in some need of help, so he opened the door to her.

6. [10]

   Two men were standing on either side of the doorway. The girl moved back and these two men lunged towards the open door. Mr Anderson and his son resisted. One man put the butt of what Mr Anderson described as a “firearm” in the doorway to prevent Mr Anderson and his son from closing the door. The Anderson men were overpowered. The two men forced their way into the house.

7. [11]

   One offender, then carrying the firearm, struck Mr Anderson with it to his ribs, saying, “Get back, I’ve got a gun”. The other offender was carrying what the victims described as a hatchet. He punched Mr Anderson’s son to the body.

8. [12]

   Mr Anderson could not describe what the offenders were wearing. He said that they had face coverings and masks.

9. [13]

   The offender with the firearm remained in the loungeroom, pointing it at Mr Anderson. The other offender with the machete walked down the hallway of the house searching rooms. One of the offenders threatened Mr Anderson, saying, “If we come back again we’ll mean business next time”. He was also told, “Don’t get the police involved”. The sentencing judge could not be satisfied which of the two offenders made these threats. Both offenders then left through the front door and ran up the street.

10. [14]

    At trial, the sentencing judge was satisfied beyond reasonable doubt that the applicant was one of these two offenders.

11. [15]

    David Anderson said that “a short time later” he saw flashing police lights around the top end of his street. He did not contact the police himself. He said that he was scared about the offenders following through on their threats. The police cars had been called instead as a result of the second offence committed shortly after.

12. [16]

    Shortly after, the second offence was committed at the premises of Allen Taylor at Quigley Road, Bolton Point. Mr Taylor lived there with his son Jason, his ex-partner Melissa Richards, her son Anthony and Anthony’s then partner Natalia.

13. [17]

    On the night of 22 February, Mr Taylor was in the loungeroom area and heard two people come walking through the door. He believed that this occurred around 9:40pm, but the sentencing judge noted that this timing may have been inaccurate. One of the men had a gun and aimed it straight at Mr Taylor. The sentencing judge found that the facts established beyond reasonable doubt that this offender with the gun was the applicant. The other offender had an axe. The two offenders had opened the door themselves and entered the property. The front door and the screen door had been shut but not locked.

14. [18]

    The man holding the axe was about six feet tall and was wearing a white shirt or jumper with a red symbol. The men also had black face coverings, which Mr Taylor thought were COVID-19 face masks. He was “pretty sure” that the man holding the gun (the applicant) wore a brown jumper, a hoodie with his face covered and black tracksuit pants. Mr Taylor described the gun as looking like a .22 with a wooden butt that had a small barrel hole. The sentencing judge found that there was insufficient evidence at trial to be satisfied beyond reasonable doubt that the weapon was a firearm in working order, but that “certainly it looked like one and was used for that effect in both of the offences”.

15. [19]

    When the two men entered, the applicant pointed the gun at Mr Taylor. Mr Taylor responded by trying to grab the gun by the barrel using his left hand. This caused the co-offender to strike Mr Taylor in the left arm with the hatchet. The sentencing judge accepted that Mr Taylor was struck with the blunt side of the blade of the hatchet because it did not cut him, but it nonetheless caused a lot of pain. Mr Taylor believed his arm was broken. The offender with the axe then started swinging it towards Mr Taylor a number of times.

16. [20]

    Mr Taylor’s son Jason then walked into the room. He tried to grab the applicant who then struck Jason in the forehead with the butt of the gun. Jason described at trial being struck on the right arm with the handle of the gun, causing him to fall backwards. He also gave evidence that he raised his right arm to protect his head area which caused the gun to make contact with his elevated arm. This gave rise to the common assault offence on the s 166 certificate.

17. [21]

    There was a lot of yelling as these offences were taking place, but Mr Taylor was conscious about trying to minimise the noise, as he did not want his children coming out and being at risk of harm. He gave evidence that he was attempting to keep himself as calm as possible.

18. [22]

    The co-offender with the axe swung it at Mr Taylor and part of the axe struck him on the lower nose or the upper lip part of his face. Mr Taylor recalled feeling pain and a “mad jolt to the face” with a “fair bit” of blood splattering onto the coffee table and all over the floor. The injury to the face caused a laceration which ultimately was sutured, requiring six stitches. This constituted the assault occasioning actual bodily harm which was the serious indictable offence the subject of the second s 112(3) offence.

19. [23]

    The co-offender continued swinging the axe at Mr Taylor. Mr Taylor managed to disarm him of the axe, causing the axe to “essentially fly out of” the co-offender’s hand. It landed on the left side of the TV cabinet and it was found there when police arrived.

20. [24]

    After this, the two offenders ran out of the house and down the front stairs. By this stage, Jason had armed himself with a small axe and Mr Taylor’s stepson Anthony had also come out. They chased the offenders onto the drive and down the road. Mr Taylor threw a coffee cup at them.

21. [25]

    The co-offender ran down the hill and the applicant ran up the hill to the left. The occupants of the house observed the applicant running up towards a neighbour’s driveway. Just before getting to the driveway, a white car which was driving up the hill in that direction drifted toward the edge of the gutter and then collided with the applicant. This caused the applicant to be thrown about four to five metres into the air and then, on his descent, hit the neighbour’s bins. He fell onto the ground and lost one of his shoes. After colliding with the applicant, the car kept driving. Mr Taylor’s stepson and son were at this stage running down the stairs after the applicant yelling, “We’re going to kill you”. The applicant then got up and ran toward Threlkeld Drive which was across the road.

22. [26]

    The co-offender with the axe was not located. Mr Taylor thought that he had gotten into the white car which, having struck the applicant, did a U-turn and drove back down the hill. Mr Taylor said that he was pretty sure this is what happened but was a “bit hazy” from being struck in the face with the axe.

23. [27]

    Shortly less than 40 minutes after the triple-0 calls made by the Taylor household, a triple-0 call was made by Yvonne Lilly who lived at 26 Threlkeld Drive at 11:18pm. The applicant had spoken to Ms Lilly, whom he did not know, through the front door of the house, requesting that an ambulance be called.

24. [28]

    Police and ambulance officers attended and located the applicant in the front yard of 26 Threlkeld Drive lying outside the front door under a tarpaulin. He was wearing one shoe, dark tracksuit pants with a logo printed in white letters on the left leg and a high-vis polo shirt. He complained of pain in his left knee and appeared to be in pain.

25. [29]

    The shoe the applicant was wearing was photographed by police. It matched the shoe located outside 23 Quigley Road, Bolton Point. There was also some clothing found in a bin at the property where the applicant was arrested which was not inconsistent with the clothing that the offender with the gun was wearing at the premises on Quigley Road in CCTV footage.

26. [30]

    In response to police questions, the applicant said that he had been hit by a car as he was walking down the street. The applicant was formally cautioned by police. When asked where his shoe was, he responded, “I don’t know chief”.

27. [31]

    The applicant was taken by ambulance to hospital. The next day he was interviewed in his hospital bed by police.

28. [32]

    The applicant provided police with an exculpatory account. In summary, he said that the day before he had been drinking in Singleton with people he did not know very well. He was drunk. They asked if he wanted to go to a party at Toronto, a place he did not know, to meet some girls. He went with them in a car. He got separated from them in an area he did not know and was walking up a road and heard yelling. He started running and a car clipped him from behind and he hit a wheelie bin. He went up in the air and lost one of his shoes. He said he was spinning in the air and “hit the deck”. The car did a U-turn and he ran. He ran about 100 metres. As he ran, he heard people yelling.

29. [33]

    The applicant denied any involvement in the offence at Quigley Road.

30. [34]

    The sentencing judge found this exculpatory account to be unreliable and put it to one side.

Proceedings on sentence

1. [35]

   The proceedings on sentence took place on 18 October 2024. The Crown tendered the statement of facts taken from the sentencing judge’s judgment on verdict, the applicant’s criminal and custodial history, and a Sentencing Assessment Report (“SAR”).

2. [36]

   The applicant did not give evidence at his proceedings on sentence. Rather, he relied on the following documents to establish mitigating factors on sentence:

   1. (1)

      The psychological report of Dr Mamta Sidhu dated 11 October 2024;

   2. (2)

      Medical records relating to a knee injury the applicant sustained at the time of offending;

   3. (3)

      Medical records relating to an injury sustained by the applicant in custody; and

   4. (4)

      Evidence regarding a claim the applicant was pursuing in relation to abuse by a primary school teacher.

3. [37]

   Both the Crown and the applicant relied on written submissions on sentence.

4. [38]

   The Crown annexed to its submissions a table maintained by the Public Defenders showing sentences imposed in eight other cases involving offences contrary to s 112(3) of the Crimes Act. The Crown also annexed statistics maintained by the Judicial Commission’s Judicial Information Research System (“JIRS”). These statistics reflected a sample size of ten cases involving sentences imposed after trial for s 112(3) offences.

5. [39]

   In its submissions, the Crown noted that the material was provided as a guide and set out the appropriate caveats regarding the limited utility of this material, referring to Pham v R [2014] NSWCCA 115.

6. [40]

   The applicant did not refer to this material in his written submissions, nor did he refer to any other comparable cases.

7. [41]

   During the proceedings on sentence, the sentencing judge made the following reference to this material:

8. [42]

   Neither the Crown nor the applicant’s counsel referred to the relevant material nor any other comparable cases in oral submissions.

9. [43]

   In his written submissions, the applicant submitted that the sentencing judge would find special circumstances within the meaning of s 44(2B) of the Sentencing Act arising from the following factors:

   1. (1)

      The applicant’s “relatively” young age;

   2. (2)

      His history of disadvantage, trauma and mental health issues, which make his time in custody more onerous;

   3. (3)

      His limited education;

   4. (4)

      His historical association with negative peers;

   5. (5)

      His longstanding drug issues;

   6. (6)

      His assaults in custody;

   7. (7)

      His risk of institutionalisation; and

   8. (8)

      The benefit that would flow from supervision and assistance with rehabilitation upon release.

Remarks on sentence

1. [44]

   The sentencing judge delivered his remarks ex tempore after the sentencing hearing on 18 October 2024.

2. [45]

   The sentencing judge took into account the following features of the offending:

   1. (1)

      There was “some planning”, although not necessarily sophisticated, in that a young girl was used as a decoy or means of getting access to the Anderson residence;

   2. (2)

      In both instances the offenders were armed and disguised, although with readily available items such as face masks and hoodies;

   3. (3)

      The sentencing judge could not be satisfied that the firearm was any more than a “BB type airgun”;

   4. (4)

      Both offences were of short duration but involved considerable terror and distress for the victims. For count 1, there were a number of innocent people in the house, including young people;

   5. (5)

      The objective seriousness of the assault occasioning actual bodily harm in count 2 was elevated by the use of a weapon, being the butt of the applicant’s rifle, but the actual bodily harm (a laceration dealt with by six sutures) was “certainly not at the highest end of actual bodily harm”;

   6. (6)

      Both offences were committed in very short succession, targeting two separate houses in the Bolton Point area; and

   7. (7)

      Nothing was in fact stolen, although this deserved limited weight because if something had been stolen that would have constituted another offence.

3. [46]

   The sentencing judge took into account that the serious indictable offences which gave rise to the s 112(3) offences, namely intimidation and assault occasioning actual bodily harm, were offences which carry a maximum penalty of five years and were therefore towards the lower end of the range of serious indictable offences.

4. [47]

   His Honour found that the offences, while serious, were “perhaps just somewhat below the midrange of objective seriousness in each case”.

5. [48]

   The sentencing judge found that most of the relevant aggravating factors referred to in s 21A(2) of the Sentencing Act were necessarily part of the offending such that they were already taken into account in the assessment of objective seriousness and should not be double-counted, including the use of a weapon, the actual violence, the planning and that the offences were committed in company. The fact that both offences were committed in the homes of the victims was identified as a statutory aggravating factor, but the sentencing judge took into account that such an offence is invariably committed in the home.

6. [49]

   The applicant’s criminal history was described as “unenviable” and “regrettable”, extending for 27 pages. His Honour noted that the previous offences were less serious and included, inter alia, driving matters, drug possession and supply, larceny, possession of prohibited weapons and breaking and entering. However, having regard to the applicant’s subjective circumstances and consequent reduction in moral culpability, his Honour regarded the applicant’s criminal history as one that “disentitles him to leniency” rather than an aggravating factor.

7. [50]

   The sentencing judge noted that the applicant pleaded not guilty and as such was not entitled to any discount. However, his Honour found that the applicant did facilitate the administration of justice and the smooth running of the trial, including by seeking a judge-alone trial and limiting the trial to the real facts in issue. The sentencing judge found that this was a factor that mitigated the appropriate sentence.

8. [51]

   In relation to remorse, while the applicant pleaded not guilty, the sentencing judge pointed to the applicant’s accounts to Dr Sidhu and the author of the SAR in which he accepted involvement in the offending. The applicant explained that he was involved in the offending to obtain drugs and money to support his drug addiction. While the SAR assessed that the applicant had a poor attitude towards the targeted victims, the applicant felt guilt and regret for the innocent victims. The report stated that he had the capacity to reflect on his actions and the impact of the offending, including exhibiting self-awareness and a desire to gain insight into his behaviours.

9. [52]

   The applicant also stated that he was willing to undertake intervention including rehabilitation to address his drug addiction and antisocial behaviours. He was on the buprenorphine or Buvidal program in custody.

10. [53]

    While noting the applicant’s “troubling attitudes towards violence” and his criminal history, the sentencing judge concluded that:

11. [54]

    His Honour found some “small mitigation” by way of this recently demonstrated remorse.

12. [55]

    The applicant was 35 years old at the time of the offending.

13. [56]

    He was not in a relationship at the time. He has a daughter from a previous relationship but is not part of her life. He has three younger brothers and a younger half-sister.

14. [57]

    The applicant grew up in housing commission accommodation in the Liverpool area. The sentencing judge found that he had an “upbringing of financial struggle, violence, drugs and criminal activity”. His father worked but was a violent alcoholic. His mother had a severe alcohol problem and frequently disappeared from home, leaving the applicant and his younger siblings with their father. The applicant witnessed significant domestic violence committed by his father against his mother, and also bore the brunt of his father’s physical discipline as he was the eldest of the children. He was deprived of basic necessities and other material needs. At school, he referred to his clothing always being the oldest clothing and he was “picked on” to an extent. When his parents separated, he had to stay with his father.

15. [58]

    At primary school, the applicant has reported being the victim of sexual assaults by a teacher. He has commenced a civil claim against the State of New South Wales in respect of this abuse.

16. [59]

    The applicant began to gravitate towards negative peers who were involved in drug use and illegal activity. He found comfort in their support. They looked after him, including providing him with friendship and money for decent clothes. He was introduced to cannabis at the age of 12 and then amphetamines or speed from the age of 13. The applicant described taking amphetamines on his way to school which had been provided to him by his older friends.

17. [60]

    The applicant attended high school but had difficulties, including feeling isolated, bullied and disciplined. He completed year 10 and then worked as a gyprocker. However, he has only sporadically held employment because of the effects of drug use and his sentences of imprisonment served from 2015.

18. [61]

    The applicant had sufficient insight to acknowledge that his drug use was a form of self-medication to deal with personal troubles. He acknowledged a need to address his drug use which he recognised as a significant criminogenic factor in Dr Sidhu’s report.

19. [62]

    As the sentencing judge observed, the significance of the deprivation of the applicant’s upbringing was demonstrated by his statement to Dr Sidhu that his childhood was “far worse than being in gaol”.

20. [63]

    The applicant was diagnosed with post-traumatic stress disorder and substance use disorder.

21. [64]

    His Honour concluded as follows:

22. [65]

    After referring to the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (“Bugmy”), the sentencing judge also took into account the applicant’s mental health conditions in accordance with this Court’s decision in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 (“De La Rosa”). His Honour found that his experience of time in custody would be much harder as a result of his conditions, with his custodial history demonstrating his resort to the use of violence and evidence of a serious assault in custody. His Honour also found that the applicant was at risk of becoming institutionalised due to his history of imprisonment dating from 2015.

23. [66]

    The sentencing judge found that the role of general deterrence and the need for denunciation were lessened somewhat. In relation to specific deterrence, his Honour found that it must “play a part with his regular offending” but noted the current offending was dissimilar to his previous criminal history.

24. [67]

    The sentencing judge found that the applicant had taken “the first steps towards rehabilitation after so many years of drug related offending”, pointing to his maintenance on the Buvidal program since March 2024. While the applicant had engaged in custodial infractions, these were not drug-related and “lesser in nature”.

25. [68]

    The sentencing judge found that the civil proceedings in respect of the abuse the applicant suffered as a child may go to address his post-traumatic stress disorder, although noting that it will require further treatment both in custody and in the community.

26. [69]

    His Honour found the following as to the applicant’s prospects of rehabilitation:

27. [70]

    His Honour stated the following in relation to the comparative material tendered by the Crown:

28. [71]

    The determination of ground 1 turns on the adequacy of this portion of the reasons extracted at [70].

29. [72]

    On special circumstances within the meaning of s 44(2B) of the Sentencing Act, the sentencing judge made the following findings:

30. [73]

    The determination of ground 2 depends to some extent on what his Honour meant in the paragraph extracted at [72].

31. [74]

    The sentencing judge noted the following indicative sentences:

    1. (1)

       For count 1, 7 years and 6 months’ imprisonment with a non-parole period of 5 years;

    2. (2)

       For count 2, 8 years’ imprisonment with a non-parole period of 5 years and 6 months; and

    3. (3)

       For the common assault offence on the s 166 certificate, 2 months’ imprisonment.

32. [75]

    As outlined above, the aggregate sentence was 10 years’ imprisonment with a non-parole period of 7 years.

33. [76]

    At the conclusion of his remarks, the sentencing judge addressed the offender directly in these terms:

Ground 1

1. [77]

   The first ground of appeal asserts that the sentencing judge failed to properly consider or give adequate reasons concerning the consistency of the sentence imposed on the applicant as compared with sentences imposed in comparable cases.

2. [78]

   The applicant framed his submissions under this ground on two alternative bases: first, it was contended that his Honour failed to “properly” take into account a material consideration; and secondly, it was contended that his Honour erred in failing to provide “adequate reasons” as to the consistency of the sentence imposed with the comparable cases provided to his Honour.

3. [79]

   The nub of the applicant’s complaint is that while the sentencing judge made a general reference to the materials and described them as “of assistance”, the sentencing remarks do not record any substantive engagement with the facts or reasoning in any of the comparable cases or what was shown by the JIRS statistics.

4. [80]

   The applicant submitted that because the present sentence imposed was “not clearly in line” with the comparable cases and statistics, more was required in the sentencing judge’s reasons to disclose how his Honour had regard to consistency with comparable cases. By way of example, it was submitted that in this case the sentencing judge was required to disclose that he recognised that the sentence he was imposing fell within the upper part of the range identified in the comparative material.

5. [81]

   In response to the Crown’s contention that the complaint is merely one of “weight”, the applicant submitted that the sentencing judge did not meet the appropriate standard of “having regard to” the comparable cases. With reference to decisions in the administrative law context, the applicant submitted that an obligation to have regard to a matter required the decision-maker “to bring their mind to bear on the matter, understand it and evaluate it” and not to simply advert to it.

6. [82]

   As to the applicant’s first complaint that his Honour did not “properly” consider the material, the Crown submitted that it is well established that complaints about weight do not establish “House v The King” error: House v The King (1936) 55 CLR 499; [1936] HCA 40 (“House”). The Crown submitted that any contention that the sentencing judge failed to consider this matter at all should be rejected as his Honour expressly indicated that he had taken the material into account.

7. [83]

   As to the applicant’s alternative complaint that his Honour’s reasons were inadequate, the Crown relied on the absence of any submissions or material provided by the applicant’s counsel at sentence that identified comparable cases as an issue that required exploration. No issue was joined between the parties as to the relevance of the comparable cases. The Crown submitted that in these circumstances, “his Honour was not obliged to engage unilaterally in an exercise which neither the Crown nor the applicant’s counsel had sought to assist his Honour with, nor one that they had invited his Honour to undertake”.

8. [84]

   The Crown also pointed to the consistent authority in this Court that sentencing statistics and comparable cases should be treated with caution and can often be of limited utility.

Ground 1 – consideration

1. [85]

   The premise of the complaint under this ground is that there is some minimum “standard” a sentencing judge must meet when addressing any “comparable” cases or statistics put before the court. What that standard is said to be remains somewhat elusive.

2. [86]

   At the hearing of this appeal counsel for the applicant was invited to describe that standard so as to enable the Court to assess whether it had or had not been met in this case. Although the applicant’s counsel was unable to do so, he did submit that more needed to be done than what the sentencing judge did in the present case. It was submitted that the relevant standard would change depending on the particular circumstances of each case and that a sentencing judge would not have to “do very much to meet the standard of having regard to comparable cases and the issue of consistency”. When pressed further it was submitted that the sentencing judge is required to “engage” or make “reference” to the relevant material to describe what has been done and “intellectually engage” with it.

3. [87]

   Not only was the relevant “standard” not identified, but it was also accepted on behalf of the applicant that there is no authority for this proposition in the context of sentencing law. Instead, the applicant relied upon the decision of Anderson v Director General of the Department of Environmental and Climate Change & Anor [2008] NSWCA 337; 251 ALR 633 where Tobias JA (with whom Spigelman CJ and Macfarlan JA agreed) observed the following at [58] in the context of an appeal from the Land and Environment Court to the Court of Appeal challenging a refusal to declare that the granting of a permit under the National Parks and Wildlife Act 1974 (NSW) was invalid:

4. [88]

   There are a number of difficulties with how this ground was framed.

5. [89]

   First, the sentencing judge did expressly refer to the material and stated that, subject to the caveats on having regard to bare statistics, he had found the JIRS statistics “of assistance”. His Honour went on to state that he had “also been assisted by the Public Defender’s database of cases”. Thus, there is no basis to conclude that his Honour failed to have regard to the material.

6. [90]

   Secondly, in Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 (“Barbaro”) it was observed (at [39]) that the duty of the Crown is to, inter alia, assist the court as to the relevant principles and “what has been done in other (more or less) comparable cases”. That is what occurred in this case. The relevant material was provided to the sentencing judge by the Crown, and no submissions were made in relation to that material on behalf of the applicant. Thus, even if his Honour had failed to expressly mention the statistics and material in the Public Defenders’ table, it is difficult to see how that could ever establish House error. A sentencing judge may fall into error if he or she fails to address a submission made on behalf of an offender which was potentially mitigating: see for example, Taylor v R [2026] NSWCCA 32. But there is no sentencing principle that a sentencing judge falls into House error by failing to avert to the Public Defenders’ Table, or any other summary of “comparable” cases tendered by the Crown or otherwise.

7. [91]

   Thirdly, the fact that there is no such “standard” as contended for does not mean that an applicant would be precluded from making a similar argument in support of a ground of appeal asserting manifest excess (or inadequacy). The alleged failure to avert to comparable cases might go some way to explain why a sentence was manifestly too high or too low. Thus, this ground is, in effect, a particular of ground 3 (the complaint of manifest excess). But the applicant did not accept that proposition. He maintained that if a judge has not met the “standard” of having regard to comparative cases, that is a “stand-alone” error within House because the sentencing judge has failed to have regard to the mandatory consideration of “having regard to other cases”. This position was maintained despite the fact that the applicant also submitted under this ground that an example of when the sentencing judge would not need to say much about the comparable cases would be if the sentence was “clearly within a range that’s shown in the comparative material provided to him or her”.

8. [92]

   Fourthly, the applicant’s reliance on the need for consistency (as a material consideration) was misplaced. It is to be accepted that consistency in sentencing is an important consideration, but the consistency that is sought is consistency in the application of the relevant legal principles, not “numerical or mathematical equivalence”: Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [18] (“Hili”); Barbaro at [40]. This requires regard not just to what has been done in other cases, but why it was done: Hili at [18].

9. [93]

   These principles are well established. They were summarised by Bellew J, with whom Macfarlan JA and Fullerton J agreed, twelve years ago in Skocic v R [2014] NSWCCA 225 (“Skocic”) at [19] as follows:

10. [94]

    Fifthly, the applicant’s argument overlooked the fact that comparable cases are not provided in every sentencing proceeding which raises the question of what the “standard” is in those cases. During the hearing of this appeal it was submitted on behalf of the applicant that in those cases the sentencing judge would be required to refer in their reasons to their own knowledge of the putative range in the interests of transparency. That submission cannot be accepted.

11. [95]

    Finally, sentencing judges already have to address a significant number of sentencing factors when imposing sentence. As I recently observed in Taylor v R [2026] NSWCCA 32 at [136], the delivery of ex tempore judgments is to be encouraged as it avoids offenders and victims and their families the suspense of waiting to learn of the sentencing result. It would place an intolerable burden on sentencing judges, in addition to all of the factors they already have to address, to require them in every case to include in their sentencing reasons a comparison of the similarities and differences between the sentence to be imposed and those in other cases, especially in circumstances when the judge has already referred to the relevant principles derived from such cases.

12. [96]

    Not only am I not satisfied that the sentencing judge failed to meet some unspecified “standard” I am also not satisfied of any inadequacy in the sentencing reasons for the same reasons.

13. [97]

    I would not uphold ground 1.

Ground 2

1. [98]

   The applicant’s second ground of appeal concerned the sentencing judge’s finding of special circumstances and variation of the statutory ratio under s 44(2B) of the Sentencing Act from 75% to 70%. That finding is set out above at [72]. Section 44(2B) of the Sentencing Act is in these terms:

2. [99]

   Section 44(2B) was inserted into the Sentencing Act following the enactment of s 53A of the Sentencing Act in relation to aggregate sentencing. It mirrors s 44(2) of that Act.

3. [100]

   Again, the applicant put his submissions under this ground on two alternative bases: first, that his Honour acted on a wrong principle; and secondly, that his Honour failed to take into account relevant considerations in setting the length of the applicant’s non-parole period.

4. [101]

   The applicant pointed to the fact that the only special circumstance that the sentencing judge identified was “the need for rehabilitation”, despite the applicant advancing many different factors in his written submissions on sentence (set out above at [43]). The applicant submitted that the sentencing judge acted on incorrect principle by only having regard to the length of supervision on parole rather than the length of the minimum period of actual incarceration, which is the “primary” consideration. This approach was said to be inconsistent with this Court’s decision in Regina v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 (“Simpson”), which I will discuss further below.

5. [102]

   The applicant submitted that this incorrect approach caused the sentencing judge to disregard other factors that were relevant to the length of time the applicant should serve in custody, including the applicant’s mental illness, age, history of disadvantage, drug addiction and risk of institutionalisation. These were said to be factors relevant to whether the applicant’s time in custody would be more difficult than other offenders.

6. [103]

   The applicant submitted that taking these factors into account in finding special circumstances would not constitute “double counting” despite their relevance to his Honour’s reduction of the head sentence. It was submitted that a factor may bear on the question of special circumstances in a different way from how it bears on the instinctive synthesis. For example, a mental health condition may be relevant to the head sentence by reducing moral culpability or the need for general deterrence, while also making the offender’s time in custody more onerous and pointing to a greater need for support in the community which is relevant to a finding of special circumstances.

7. [104]

   The Crown submitted that the sentencing judge did not err by choosing to focus on the question of whether the length of the applicant’s period on parole should be increased, rather than whether the non-parole period should be reduced.

8. [105]

   Further, the Crown submitted that the matters the applicant contends the sentencing judge should have taken into account are matters his Honour already took into account in order to reduce the head sentence, including the applicant’s mental health issues and history of disadvantage and trauma. It was submitted that the sentencing judge may indeed have fallen into error if his Honour “double counted” those matters both in order to reduce the head sentence and to reduce the non-parole period.

9. [106]

   The Crown also relied on the decision in Simpson and the more recent decision in R v Pickard [2023] NSWCCA 7 (“Pickard”). I will refer to both of these decisions below.

Ground 2 – consideration

1. [107]

   It is well established that the decision of a sentencing judge whether or not to vary the statutory ratio under s 44(2) or, in the case of an aggregate sentence under s 44(2B), is a quintessentially discretionary one; see for example Pickard at [73]. An applicant seeking leave to appeal against a sentence on the basis of alleged error arising from such a decision must establish House error.

2. [108]

   The applicant relied on the decision in Simpson in support of this ground. That decision was decided over 20 years ago but remains one of the leading cases concerning “special circumstances”. A bench of five judges sat in Simpson: Spigelman CJ, Mason P, Grove and Sully JJ and Newman AJ. The primary question for determination was whether a finding of special circumstances must be based exclusively, or primarily, on the fact that it is desirable for an offender to be subjected to an extended period of supervision on parole. The Court unanimously found that it did not. Spigelman CJ observed the following at [57]-[58] in that regard:

3. [109]

   His Honour went on to observe the following at [65]:

4. [110]

   His Honour continued at [67]:

5. [111]

   As I observed in Pickard at [78], the proper exercise of judicial discretion when considering whether special circumstances apply is thus constrained by the need to ensure that the non-parole period reflects, inter alia, the objective gravity of the offence, and the need for general deterrence.

6. [112]

   The determination of this ground turns on his Honour’s finding regarding special circumstances. Although it is extracted above at [72] I will extract part of it again here for ease of reference. After noting that the applicant would have a three-year period on parole and that the reduction of the statutory ratio from 75% was only “slight” his Honour went on to say this:

7. [113]

   Contrary to the applicant’s contention I am satisfied that his Honour here is stating, consistent with the principles derived from Simpson, that the variation is relatively minor because the non-parole period is the minimum period of time in custody and must reflect the purposes of sentencing. I see no error in that approach.

8. [114]

   As for the second complaint made under this ground, although the sentencing judge found special circumstances on the basis of the need for rehabilitation, it was contended that his Honour erred in that he should have identified more bases to have done so. The difficulty with this contention is that even if his Honour had expressly identified further factors as constituting special circumstances, that did not mean that he was required to vary the statutory ratio further. As Spigelman CJ observed in R v Fidow [2004] NSWCCA 172 at [22] (“R v Fidow”):

9. [115]

   I would not uphold ground 2.

Ground 3

1. [116]

   Ground 3 asserts that the aggregate sentence imposed on the applicant was manifestly excessive. The relevant principles for manifest excess are well established. The applicant must establish that the aggregate sentence imposed is “unreasonable or plainly unjust”. The principles were summarised by R A Hulme J in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443]:

2. [117]

   More recently, in TH v R [2025] NSWCCA 121 at [4]-[5], Bell CJ (Garling J agreeing) observed the following:

3. [118]

   The principles applicable to a contention that an aggregate sentence is manifestly excessive were explained by Beech-Jones CJ at CL (Payne JA and Fagan J agreeing) in Lee v R [2020] NSWCCA 244 at [32] as follows:

4. [119]

   Both the applicant and the Crown identified relevant aspects of the applicant’s objective and subjective case in support of their respective positions as to the purported manifest excess of the aggregate sentence.

5. [120]

   The applicant relied on the following findings by the sentencing judge which, it was submitted, did not support a sentence within the upper part of “the range”:

   1. (1)

      The objective seriousness of the offending was just somewhat below the mid-range;

   2. (2)

      There were no aggravating factors that should be counted in addition to the matters already taken into account in assessing objective seriousness;

   3. (3)

      The applicant was entitled to mitigation for facilitating the administration of justice and some small mitigation for recently demonstrated remorse;

   4. (4)

      The applicant had a background of disadvantage sufficient to attract the application of Bugmy principles;

   5. (5)

      The applicant had mental health conditions which reduced his moral culpability and the need for general deterrence and denunciation;

   6. (6)

      The applicant had sufficient insight to recognise the contribution of his drug use on his offending and had a desire to address his drug use, which he had started to do through the Buvidal program;

   7. (7)

      The applicant’s experience of custody would be much harder because of his mental health conditions and a recent serious assault;

   8. (8)

      The need for specific deterrence was attenuated because the applicant’s previous offending was dissimilar;

   9. (9)

      The applicant had real prospects of rehabilitation; and

   10. (10)

       The applicant was at risk of institutionalisation.

6. [121]

   The Crown, on the other hand, pointed to the following adverse findings in support of its position that the aggregate sentence is not “unreasonable or plainly unjust”:

   1. (1)

      The applicant had a lengthy criminal history;

   2. (2)

      The applicant had poor attitudes to violence and lacked insight into the gravity of his offending and its impact on some of the victims;

   3. (3)

      His Honour found only “green shoots” of remorse;

   4. (4)

      The applicant’s prospects of rehabilitation were found to be “guarded”;

   5. (5)

      The applicant was being sentenced for two offences, requiring an appropriate degree of accumulation to reflect the separate offending;

   6. (6)

      His Honour found that the offending was serious;

   7. (7)

      His Honour found that the fact that the offences occurred in the homes of the victims was a statutory aggravating factor which did have some operation;

   8. (8)

      Although his Honour found that the significance of general deterrence and denunciation were reduced, this was only to a “slight” degree; and

   9. (9)

      The applicant was not entitled to any discount for a plea of guilty.

7. [122]

   In addition to identifying these respective factors both parties focussed on the results in other cases in support of their respective positions. In addition to the cases in the Public Defenders’ table and the JIRS statistics, the applicant also relied on some additional cases said to be comparable in support of this ground.

8. [123]

   I have already rejected the contention under ground one that the sentencing judge is required to analyse and compare any comparable cases put before the court. The same principle applies in relation to comparable cases relied upon in this Court to contend that a sentence is manifestly excessive. Subject to that qualification, I would say the following about that material.

9. [124]

   The JIRS statistics put before the sentencing judge and relied upon again under this ground reflected a sample size of ten cases for sentences imposed after a plea of not guilty for offences contrary to s 112(3) for the period of 24 September 2019 to 31 December 2023. Six offenders received a sentence of 7 years’ imprisonment or more and four offenders received a sentence of 5 years or less. It is noted that those statistics were for one offence, not two. The applicant’s two indicative sentences were 7 and a half years and 8 years.

10. [125]

    The Public Defenders’ table handed up by the Crown at sentence set out eight cases involving offences contrary to s 112(3) Crimes Act. Of these, only one case involved a plea of not guilty and that offender was sentenced to 10 years’ imprisonment with a non-parole period of 7 years for one offence (the same as the applicant for two offences). Further, only one involved sentencing for two offences contrary to s 112(3) and only one of them involved the circumstances of special aggravation of using a firearm.

11. [126]

    The applicant submitted that allowing for a discount for a plea of guilty, the “range” demonstrated by the table is from 3 years and 10 months’ imprisonment on the lower end and 11 years and 3 months’ imprisonment on the higher end.

12. [127]

    It is to be noted that the aggregate sentence imposed was within the “range” of sentences imposed in both the JIRS statistics and the comparable cases. As for what the “range” shown in other cases established, it is pertinent to note the following observations of Simpson J (as her Honour then was) in De La Rosa at [304]:

13. [128]

    In addition to the material put before the sentencing judge, the applicant also relied under this ground on the decisions in Hunter v R [2020] NSWCCA 285, Ford v R [2020] NSWCCA 99, Harper v R [2017] NSWCCA 159, Wootton v R [2014] NSWCCA 86, Srikantharajah v R [2012] NSWCCA 209 and Stuckey v R [2025] NSWCCA 216. I have considered the principles derived from those decisions. Consistent with my reasons for not upholding ground one, I do not consider it necessary to summarise those cases in order to establish that I have considered them. There were similarities and differences as between all of them and this case. I found it helpful to consider those cases. They did not establish that the aggregate sentence imposed was unreasonable or plainly unjust.

14. [129]

    The applicant’s primary submission was that there was a “significant disconnect” between the sentencing judge’s findings and the location of the imposed sentence in the upper part of the range demonstrated by the comparative cases and JIRS statistics. It is to be accepted that the applicant’s moral culpability was reduced given the circumstances of his childhood. Some amelioration of sentence was made for the applicant’s facilitation of the course of justice and his late remorse, but the fact remains that by denying his guilt and running the trial, he deprived himself of a 25% discount. There were some positive aspects of his subjective case but the offences for which the applicant was to be sentenced were serious, involved a firearm (albeit non-working) and carried maximum penalties of 25 years’ imprisonment.

15. [130]

    It is to be accepted that the aggregate sentence was a stern one, but the offences were both serious. Although they were committed in short succession and in close proximity, the fact remains that the two offences were unrelated and it was necessary for there to be appropriate notional accumulation. The two non-parole periods when added together amount to 10 years and 6 months’ imprisonment whereas the aggregate non-parole period imposed was 7 years. I am not satisfied that the aggregate sentence imposed was unreasonable or plainly unjust.

16. [131]

    I would not uphold this ground either.

Orders

1. [132]

   Accordingly, I would propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Dismiss the appeal.

2. [133]

   HAMILL J: I have had the advantage of reading the draft judgment of N Adams CJ at CL and the concurring reasons of Yehia J. I agree with the orders proposed by the Chief Judge and generally with her Honour’s reasons. Without meaning to limit that agreement, I would specifically and respectfully endorse the Chief Judge’s reasons for rejecting the first ground of appeal.

3. [134]

   I agree with the additional observations made by Yehia J in relation to the question of “special circumstances” which arises under ground 2. As Hunt CJ at CL said in R v Simpson (1992) 61 A Crim R 58, the courts have given “a wide meaning to the phrase ‘special circumstances’” as it was used in s 5(2) of the Sentencing Act 1989 (NSW) (repealed). The same applies to its legislative successor in s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW). In R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534, Spigelman CJ observed at [59]-[60]:

4. [135]

   The broad meaning given to the phrase “special circumstances” and the wide range of matters that may lead to such a finding explain the phenomenon described by Yehia J – and, as her Honour says, Button J in Brennan v R [2018] NSWCCA 22 – concerning the high proportion of cases in which sentencing judges (correctly) make the finding and adjust the 3:1 ratio prescribed by s 44.

5. [136]

   In the present case, the sentencing Judge made a relatively modest adjustment to what is sometimes referred to as the “statutory norm” or “statutory ratio” between the total sentence and the non-parole period. As N Adams CJ at CL emphasises, this was a discretionary judgment. Spigelman CJ said in Regina v Cramp [2004] NSWCCA 264 at [31] that “the size of such an adjustment raises so many matters of a discretionary character that this Court should be very slow to intervene.”

6. [137]

   Even so, this Court has intervened where the adjustment has seemed to be unduly parsimonious in the particular circumstances of the case: see, for example, R v Sutton [2004] NSWCCA 225 at [30] (Howie J) and the discussion in Fina’i v Regina [2006] NSWCCA 134 at [31]-[40] (McClellan CJ at CL). Common examples where the Court has interfered include where the finding was based on a combination of factors including the accumulation of sentences but the outcome remained in the vicinity of the statutory ratio, where the sentencing Judge appeared not to give effect to their true intention and, relatedly, where the failure to adjust the sentence, or the meagre adjustment made, appeared to be inadvertent: see the authorities collected in Sabongi v R [2015] NSWCCA 25; (2015) 249 A Crim R 167 at [80] and the short statement of some of the principles in Duncan v R [2026] NSWCCA 19 at [29].

7. [138]

   In sentencing Mr Gillette, Judge McGrath SC was required to strike a balance between the need to impose an adequate period of incarceration to reflect two very serious home invasion offences and the desirability to temper the length of the non-parole period to reflect the finding of special circumstances and provide an appropriate period of supervised parole. I agree with N Adams CJ at CL (at [112]-[113]) that there was no error in the exercise of the sentencing discretion in his Honour’s decision to make a “relatively minor” adjustment to the non-parole period or in his conclusion that 3 years supervision was “more than sufficient” to foster the applicant’s rehabilitation.

8. [139]

   The sentence was, as the sentencing Judge explained to Mr Gillette, “very hefty” but it was commensurate with the serious nature of the two offences, each of which was committed in company, involved the use of two weapons and the invasion of family homes, as well as actual or threatened violence. I agree with N Adams CJ at CL, for the reasons her Honour provides, that ground 3 is not established.

9. [140]

   YEHIA J: I agree with the orders proposed by N Adams CJ at CL and with her Honour’s reasons. I make the following additional observations about the phrase “sufficiently special”.

10. [141]

    The statement in R v Fidow (at [22]) that it is necessary that the circumstances be “sufficiently special” to justify variation of the statutory ratio, was a reference to what was said in Simpson (at [68]) in the context of explaining the “qualificatory clause” in s 44 of the Sentencing Act as requiring a “decision” by application of the composite requirement that the “circumstances” be sufficiently “special” for the statutory ratio to be varied.

11. [142]

    The reference to the circumstances being “sufficiently special” is not intended to elevate the requirement to a circumstance that is “rare”, “unusual” or “exceptional”. There are a wide range of factors capable of constituting special circumstances: R v Dashti [2016] NSWCCA 251 at [89]. The law does not justify a restrictive approach to the scope of considerations relevant to a finding of special circumstances. As was acknowledged in Simpson (at [73]):

12. [143]

    In Brennan v R [2018] NSWCCA 22, Button J reviewed research by the Judicial Commission of New South Wales about the number of cases in which a finding of special circumstances was made in the period between 1 January 2005 and 30 June 2012: at [72]-[80]. His Honour concluded that a finding of special circumstances is not rare. It occurs in the majority of cases in New South Wales, other than the Supreme Court: at [81]. The fact that special circumstances are found in the majority of cases does not detract from the capacity of certain factors, either alone or in combination, to constitute special circumstances in a particular case.