Al Masri v R

The circumstance of the offending

1. The circumstances of the offending were set out in the Statement of Agreed Facts which were somewhat contradicted by the applicant in his oral evidence during the proceedings on sentence on 15 February 2019.
2. On the agreed facts, the applicant broke into premises at Tempe on Friday 1 September 2017 at about 7 a.m. These premises were the home of a married couple aged in their sixties. The husband had left for work at about 5:40 a.m. that day. Only the wife, the female victim, was at home. The front and back doors were locked. The female victim had prepared coffee and toast for her breakfast, which she was consuming while sitting on a couch in the lounge room.
3. The applicant gained entry through a closed, but unlocked side window. He was dress included clear lycra gloves and black pants, and he was carrying a roll of blue masking tape. Prior to entering the premises, the applicant was said to have removed an Ethernet cable from near his point of entry, which he carried with him into the premises.
4. He approached the female victim, who was unaware of his presence, from behind and placed his hand over her mouth. She was afraid. She attempted to free herself. The applicant wrestled her to the ground, punching her in the face, causing a nosebleed.
5. The applicant attempt to tie the victim's hands and feet using the masking tape. However, she struggled and was able to break free from the tape. During the struggle one of the applicant's gloves came off He placed his un-gloved hand on the hallway wall depositing a handprint, which investigating police later identified as his.
6. The victim continued to struggle and the applicant used the Ethernet cable to tie her hands together. To subdue her, he kicked her several times to the front and side of her abdomen, and she passed out.
7. The applicant ransacked the premises and kicked in a locked internal door. He stole $350 in cash from the female victim's wallet which he found in her bedroom.
8. The female victim came to at about 7:10 a.m. in time to see the applicant leave the premises by the front door. She was able to free herself from the Ethernet cable and remaining masking tape before running to a neighbour's house for assistance. The neighbour rang triple-0 at about 7:10 a.m.. Police arrived at the scene 7:25 a.m.. The female victim was taken to Royal Prince Alfred Hospital by ambulance where she remained for 3 days. She suffered actual bodily harm and, it was conceded, significant emotional upset due to the incident.
9. The applicant was arrested on 5 September 2017 when police attended his home to execute a search warrant.
10. Before referring to his evidence, it is perhaps relevant to say that the sentencing judge did not find the applicant an impressive witness. He said: "… The impression the offender created in the witness box was not convincing and there were a number of inconsistencies, not the least the most significant inconsistency between the agreed facts and circumstances were on the one hand, the drugs he claimed made his memory imprecise as a result he was inclined to accept the police version, but was disinclined to accept that the binds [used to bind the female victim] have been brought in in a manner which would suggest break and enter the house intending that, whoever was there, would be tied up."
11. The applicant denied that he had brought either the masking tape or the Ethernet with him into the house. This circumstance, of course, was relevant to the degree to which the offending had been planned. Although the sentencing judge was sceptical about the applicant's account, his Honour was not prepared to conclude beyond reasonable doubt that the applicant was aware that anyone was present in the home at the time of the break-in. Instead, the sentencing judge was satisfied that the applicant prepared for that contingency and was prepared to act "to subjugate the person" if it materialised.

Subjective case

1. The applicant was born in Jordan in 1986. He was 30 years of age when he offended and 32 when sentenced. He pleaded guilty to the offence at the first available opportunity and the sentencing judge indicated that he would allow a discount of 25% from the sentence which would otherwise be imposed for the utilitarian value of the plea.
2. The applicant had no prior convictions either in Australia or in his native Jordan.
3. He grew up in Jordan with his biological family, leaving school in Year 10, when he was about 15 years old, to take up employment to assist with the support of his family.
4. He migrated to Australia at the age of 27 on a spousal visa. His wife has four children from a previous marriage and a fifth child with the applicant. The applicant worked in the construction industry and was the breadwinner for the whole family.
5. He was sexually abused over a period of months at about the age of 9 by a male who was not a family member. He said he commenced to dwell on this abuse from about the age of 15 years and began to suffer symptoms of anxiety and depression.
6. He remained in custody, bail refused from the time of his arrest. His then 56 year old father came to Australia from Jordan to visit the applicant in gaol. His father managed to see him, but tragically died of a heart attack several days later and before returning to Jordan. The applicant feels his family blames him for his father's death. He fears retribution when he returns to Jordan and the death of his father has exacerbated his symptoms of depression.
7. His visa has been cancelled and he will be deported upon his release from custody. This causes him great anxiety, having regard to his responsibilities to his wife, child and stepchildren. Mr Tim Watson-Monroe, whose report of 13 September 2018 was in evidence, carried out a psychometric assessment and stated that the results confirmed his clinical impression that the applicant suffered from a Depressive Disorder (Severe and Recurring) according to DSM-5 Criteria.
8. The applicant had a history of substance abuse. He commenced using cannabis at age 25 and was introduced to ice at age 28. Once he commenced to use ice, his drug use escalated. By the time of the offending he was using both ice and Xanax, the latter to reduce the anxiety induced in him by the former.
9. The applicant attributed his offending to his substance abuse. Indeed, he claimed to have been so intoxicated by drugs that he had no recollection of the events constituting his offending. I interpolate that the learned sentencing judge did not accept this. In particular, his Honour did not accept that if the applicant was as drug-affected as he claimed, that he would have been able to engage in all of the conduct involved in breaking in to the premises, assaulting the female victim, ransacking the premises, including kicking down a door, and the apparent search for something of specific value. The sentencing judge did not accept that the offending behaviour was characteristic of "a typical drug user" or the manifestation of "typical drug user behaviour". He was not persuaded that the explanation for the offending behaviour was the applicant's drug abuse. The sentencing judge accepted the evidence that the applicant had undertaken a number of courses while in custody of a vocational and rehabilitative type. His Honour accepted that he had been drug free since his arrest.
10. The applicant's custodial history showed a number of breaches of prison discipline. The sentencing judge did not "think much turns on it save that unfortunately, it is not necessarily the unblemished record of conduct in custody which one would like to have seen preceding sentence".
11. Despite the poor impression that the applicant made on him while giving evidence, even allowing for the consideration that English was not his first language, his Honour accepted that there was evidence of an expression of remorse and some evidence of the acceptance of responsibility. But his Honour ultimately remained "somewhat sceptical about the extent to which he was capable of showing remorse or taking responsibility".
12. The author of a sentence assessment report expressed the opinion that the applicant showed only limited insight into his violent behaviour which he continued to blame on substance abuse.

The reasons for sentence

1. When he turned his mind to the question of the objective seriousness of the offending, his Honour said: "The physical attack, the subjugation, the deprivation of liberty which is an aggravating aspect of this break and enter with the independent aggravating factor of inflicting actual bodily harm whilst committing larceny is, in its terms, a very serious offence indeed. … I cannot find beyond a reasonable doubt, notwithstanding the statement in the agreed statement of facts, that the [masking tape and Ethernet] were not discovered by the offender at or about the premises. Accordingly, I am inclined to accept that it was a spontaneous event in the sense that planning was limited. Nonetheless having formed the intention to break into the house, the purpose seems to me to be, to steal whatever was there of value and that at or about that time, a decision was taken by the offender that if a person was present, they would be subdued. There is a clear element of ruthlessness about his conduct. I have no trouble in accepting that the offender has to be treated as a person of prior good character, with no relevant antecedents. I have some difficulty, however, when viewing all of the documents which contain some considerable contradictions and the evidence of the offender in accepting that he does accept responsibility, that he has genuine contrition and remorse and he does have insight. I am inclined to accept the statement in the sentencing assessment report, independently of that opinion, that the offender attempted to minimise his responsibility, that he had superficially accepted responsibility for his actions, but shifted the focus for his actions to his addiction to drugs."
2. As I have said, his Honour was not satisfied that drug addiction was an explanation for the offending. Rather, his Honour formed the view that "the motive seems to be simply a desire to steal. The conduct is ruthless and was embarked upon in order to facilitate larceny". His Honour referred to the judgment of Simpson J (as she then was) in R v Huynh [2005] NSWCCA 220 and, paraphrasing her Honour's judgment (at [30]), observed: … as a matter of common sense, that the use of corporal violence or deprivation of liberty (and I note both of those are present here), could ordinarily be regarded as more serious than, for example, committing an offence in company. Of course, it all depends on the particular circumstances of the case. Following on from that generally, the more circumstances of aggravation present, the more serious will be the offence. That assists me in quantifying it in terms of seriousness." His Honour recorded that Counsel for the applicant conceded that the offending "was well within the mid-range of objective seriousness". The Crown had submitted that the offence was above the mid-range. His Honour did not express any conclusion about this issue over and above his earlier conclusion that the offending was "a very serious offence indeed".
3. His Honour did not find that the consideration that the offending occurred in the victim's own home was a circumstance of aggravation, given that "was part and parcel of the objective seriousness detailed in the narrative of the agreed facts". It is an element of the offence that the offender breaks and enters a dwelling house. Of course the dwelling need not be the home of every injured occupant.
4. So far as mitigating factors were concerned, his Honour was unable to find that the injury, emotional harm, loss or damage to the female victim "[were] not substantial". He accepted that the emotional damage, in particular, may well have been substantial.
5. His Honour accepted that the offending was not part of a planned or organised criminal activity and that the applicant was a person of good character. However, the sentencing judge found: "I cannot say that he is unlikely to re-offend on the balance of probabilities because of the nature of his presentation in the witness box, and a lack of explanation or insight into the commission of his offence."
6. Nor could his Honour say that the applicant had good prospects of rehabilitation because no explanation for the offending was provided, "beyond the ruthlessness displayed". As I have said, his Honour remained sceptical about the extent to which the applicant was capable of showing remorse or taking responsibility. He bore in mind the early plea of guilty.
7. His Honour took into account that it was the applicant's first time in custody, that the rehabilitative steps already taken were to his credit and that he continued to enjoy the support of his family. He did not regard the conclusions of Mr Watson-Monroe as worthy of "any real weight", given that they were based on self-reported testing which confirmed a clinical "impression". He accepted "with a degree of more confidence" that the applicant was likely to remain drug free. He regarded the schedule of comparative cases provided as of some assistance, but also as "a blunt instrument".

The argument of the parties

1. As I have said, the sole ground of appeal proposed is that the sentence passed was manifestly excessive. There is no challenge to any of the findings of fact made by the learned sentencing judge. There is no challenge to the sentencing judge's evaluation of the objective seriousness of the offending. Rather, specific reliance was placed upon the sentencing pattern disclosed by the statistics published by the Judicial Commission and the outcomes disclosed in a schedule of comparable cases. Mr K Averre of Counsel, who appeared for the applicant at the hearing, acknowledged that a claim of manifest excess is not made out simply by reference to that material. He accepted that the applicant could only succeed if the Court concluded that there was some misapplication of principle in circumstances, even if it was not readily apparent where that error arose. He submitted that the sentence passed was a high sentence "and a high sentence with the particular circumstances of this case". It was submitted that insufficient regard was given to the applicant's "significant case in mitigation in the sense that this, quite unusually, … was an offender who was before the courts for the first time and who, it was accepted, would be entitled to be shown lenience in relation to the offending albeit it serious offending".
2. The Crown relied upon the well-known principle that while statistics show a range of sentences imposed in the past, they do not establish the correctness of that range nor its applicability to a given case. To the extent to which reference to statistics and comparable past decisions promote consistency in sentencing, the consistency the law requires is consistency in the application of sentencing principle, not numerical or mathematical equivalence.
3. The Crown submitted that having regard to all facts, matters and circumstances relevant to sentencing in this case, the sentence passed was not so unreasonable or plainly unjust as to warrant this Court's intervention.

Consideration - principles

1. The principles governing an appeal propounded on the ground of manifest excess are well known. For present purposes they may be stated as follows: 1. A finding by an appellate court of manifest excess means that "the result embodied in the sentencing judge's orders was 'unreasonable or plainly unjust'": Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at 538 [58]; House v the King (1936) 55 CLR 499; [1936] HCA 40 at 505; 2. Such a finding is a conclusion that "there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons": Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at 605 [58]; 3. By its nature, the conclusion that the sentence is vitiated by manifest excess "does not admit of lengthy exposition": Hili at 539 [59]. However, it does not follow from this that "manifest error is fundamentally intuitive", it is not: Hili at 539 [60]. "What reveals manifest excess … is consideration of all of the matters that are relevant to fixing the sentence" (Hili at 539 [60]). 4. Where an offender alleges manifest excess, the Court of Criminal Appeal assumes that no specific error is alleged: Hili at 539 [61]. Accordingly, it is futile, indeed erroneous to search for one; 5. The consideration expressed to in Hili at 539[60] is subject to what might be regarded as the basic rule stated in Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at 671 [15]: "… a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion." 1. Consistently with the requirement to consider all matters relevant to fixing a sentence, and subject to the adoption of the correct, cautious approach, a consideration of past sentences in closely comparable cases may, in a given case, highlight excess. But the consideration of sentences which have in fact been imposed in such cases does not establish the correct range. It may provide "a yardstick against which to examine a proposed sentence": Hili at 537 [54]; Director of Public Prosecutions (Commonwealth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at 70-71 [303]-[305] ("De La Rosa").
2. In De La Rosa, Simpson J (as her Honour then was) said (at [303]-[305]) of the sentencing pattern which may appear from a consideration of comparable cases: "[303] A history of sentencing can establish a range of sentences that have in fact been imposed. Such a history does not establish that that range is the correct range, nor that either the upper or the lower limit is the correct upper and lower limit. Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts. [304] But it would be a mistake to regard an established range as fixing the boundaries within which future judges must, or even ought, to sentence. To take that attitude would be, de facto, to substitute judicial selection of sentences in individual cases for the boundaries of sentencing for a particular offence laid down by Parliament. In this case, that range is from 0 to 25 years. Of course, it is well established that the maximum sentence is reserved for the most serious cases. It is equally well established that it would be an extraordinary proposition that a person convicted of an offence of importing prohibited drugs would escape any custodial penalty. The point I am making is that the ranges of sentences actually imposed, while illuminating, are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence. But it is only by examination of the whole of the circumstances that have given rise to the sentence that "unifying principles" may be discerned: Wong and Leung, at [59]. [305] In the end, the sentencing discretion is individual: it must be exercised by the individual judge, in respect of the individual offender. Significant sentencing considerations include the role played by the offender in the particular importation or enterprise, the quantity of the drug involved, and its estimated street or wholesale value (having regard, inter alia, where relevant, to its purity). Also of considerable significance are the character and antecedents of the offender …. This last consideration bears upon the offender's prospects of rehabilitation, and also to any claim for leniency made on his or her behalf by reason of prior good character." (My emphasis)

The use of sentencing statistics

1. Compared to comparable cases, the use that may be made of statistical information about sentences passed is perhaps a little more controversial. In the federal jurisdiction, a series of cases appears to establish that "the production of bare statistics about sentences that have been passed" is at best "unhelpful" where these statistics are produced "by means of numerical tables, bar charts and graphs": The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 at 561 [32] ("Pham"); Wong at 606 [59]; Hili at 535 [48]. The main reason why statistics are regarded as "unhelpful" is because the results in previous cases "tells the judge who is about to pass sentence on an offender very little that is useful if a sentencing judge is not also told why those sentences were fixed as they were": Wong at 606 [59] (original emphasis). In Wong it was also said that for this reason even marked differences in a sentence under review from sentences imposed in other cases, will not of themselves justify appellate intervention: Wong at 604 [58]. I should say however, as I indicate below, this has not been an entirely uniform approach.
2. It should be observed in this context that in Pham, Bell and Gaegeler JJ took a somewhat different view about the usefulness of statistics from the justices constituting the majority: see at pages 564 [46] - 566 [49]. Their Honours, while acknowledging the force of the reasoning in Hili, stated (at [47]): "This is not to deny that statistical material showing the pattern of past sentences for an offence may serve as a yardstick by which the sentencer assesses a proposed sentence and the appellate court assesses a challenge of manifest inadequacy or excess." By reference to Barbaro v the Queen (2014) 253 CLR 58; [2014] HCA 2 at 74 [40]-[41] ("Barbaro"), their Honours said that the use of sentencing statistics and material indicating sentences imposed in comparable cases were part of the material "which the sentencer must take into account" (My emphasis).
3. Bell and Gaegeler JJ approved of RA Hulme J's explanation of the care that needs to be taken in the use of statistics in Knight v R [2015] NSWCCA 222 at [3] - [13], while saying (at 565 [49]): "Statistics have a role to play in fostering consistency in sentencing, and in appellate review, provided care is taken to understand the basis upon which they have been compiled and provided the limitations explained in … Barbaro are observed. The value of sentencing statistics will vary between offences. It is not meaningful to speak of a pattern of past sentences in the cases of offences which are not frequently prosecuted and where a relatively small number of sentences make up the set." In Barbaro the Court explained that the pattern disclosed by a consideration of comparable cases and statistics does not establish "the outer bounds of the permissible discretion". It stands as a yardstick only. Barbaro, like Wong, Hili and Pham, involved a serious federal offence.
4. It might be said, so far as Pham is concerned, that Bell and Gageler JJ were expressing a minority view about the use of sentencing statistics for federal offences, Barbaro notwithstanding. However, New South Wales law may be different if one has regard to s 8 Judicial Officers Act 1986 (NSW). That provision authorises the Judicial Commission to "disseminate information and reports on sentences imposed by courts". That dissemination is for the purpose "of assisting courts to achieve consistency in imposing sentences". By dint of s 8(2) the dissemination does not limit "any discretion that a court has in determining a sentence". In this context, with respect, the judgment of Bell and Gageler JJ provides important guidance in the proper use in sentencing that may be made of statistics "disseminated" by the Judicial Commission under the statutory authority of s 8.
5. I would wish to emphasise, however, that the pattern which may appear from sentencing statistics can never be decisive. For the reasons explained by Simpson J in De La Rosa, sentencing involves the dispensation of individualised justice. The obligation of the sentencing court is to impose the appropriate sentence for the offence and the offender. As has frequently been stated, this involves a consideration of all facts, matters and circumstances relevant to sentencing the particular offender for the particular offence. The use of comparable cases and statistics ultimately must remain a subordinate, even if mandatory, consideration where they are supplied. They provide no more than a yardstick. As Simpson J observed, the only true range is the range prescribed when Parliament fixed the statutory maximum.

Application of principles

1. It must be borne steadily in mind, as the sentencing judge did, that the maximum penalty for this offending is imprisonment for 20 years with a standard non-parole of 5 years. These are important legislative guideposts to be taken into account on sentence: Muldrock v the Queen (2011) 244 CLR 120; [2011] HCA 39. Moreover, it is the maximum penalty for offending that fixes the outer limit of the range available to a sentencing judge, in accordance with the analysis of Simpson J in De La Rosa; always accepting that the maximum penalty may only be imposed in a case that falls into the category of worst case of the offending in question: The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [17]-[20].
2. I have already said that there is no challenge to the sentencing judge's fact finding and evaluation of objective seriousness for sentencing purposes. Although his Honour did not expressly resolve the contest between prosecutor and defence counsel about whether the gravity of the offending should be assessed as mid-range, as contended for by the defence, or above the mid-range as argued by the prosecution, his evaluation that this was "a very serious offence indeed" should be understood as an acceptance of the Crown submission. In this regard, his Honour properly directed himself in accordance with the judgment of Simpson J in R v Huynh at [26]-[31]. In particular, his Honour was cognisant of her Honour's dictum at [30] which I set out below: "… it is only common sense that, generally speaking, the more circumstances of aggravation are present, the more serious will be the offence." Her Honour had also said (at [29]) that although there is no gradation of the circumstances of aggravation set out in s 105A Crimes Act, "one would expect that being armed with an offensive weapon, for example, or the use of corporal violence, or the deprivation of liberty, would ordinarily be regarded as more serious than committing an offence in company". Here there were three circumstances of aggravation, each of the more serious kind: the use of corporal violence; the infliction of actual bodily harm (as well as significant emotional harm); and the deprivation of liberty.
3. Although his Honour, in the light of the applicant's evidence, felt unable to find planning or pre-meditation and actual knowledge of the female victim's presence in the home prior to his entry, his Honour found that he had equipped himself to guard against the real possibility that someone may be home when he, on the spur of the moment, decided to break in and was prepared to deal with that risk, as his Honour found, in a ruthless way should it materialise. The facts well and truly justified his Honour's finding. He surprised the female victim in what should have been the sanctity of her own home. When she offered resistance he brought significant force to bear first by punching her in the face with sufficient force to cause a nosebleed and secondly, when she continued to defend herself, in what I would regard as a despicable act, he kicked her about the body several times with sufficient force to cause her to pass out. He then bound her up (however ineffectively), ransacked the home looking for valuable property and inflicted physical damage on the premises by kicking in a locked internal door. He stole $350 in cash from the female victim's wallet before quitting the premises, leaving the female victim, without assistance, in her injured and prone state. For all the applicant might have known, she may have been unable to free herself for hours before being rescued by another. All this amply justifies his Honour's description of the offending as ruthless. Callous would be another apt description.
4. Notwithstanding the applicant's prior good record, good character and early plea of guilty, the subjective case was, as the Crown submitted in this Court, somewhat limited in significant aspects. The sentencing judge accepted the applicant had abstained from drugs in custody and had taken advantage of such courses as had been made available to him of a vocational and rehabilitative type. But his Honour had the benefit of seeing and hearing him give evidence. Having made the allowance for the consideration that English was not his first language, the sentencing judge still did not find the applicant to be an impressive witness. Although there was some evidence of remorse and acceptance of responsibility, his Honour had "some difficulty" and "remained sceptical" about the extent to which the applicant had accepted responsibility, was genuinely contrite, remorseful and had insight into his offending conduct. For these reasons his Honour felt unable to find that the applicant was unlikely to re-offend or that he had good prospects of rehabilitation, notwithstanding the efforts he had made in custody.
5. Bearing in mind the 25% discount for the early plea that his Honour properly allowed, his Honour's starting point must have been a sentence of around 7 years and 6 months. One may also accept that this may be seen as a long sentence. But that of course is not the test for manifest excess.

Comparable cases relied on below

1. His Honour was provided with a schedule of s 112(2) Crimes Act cases "from the Public Defender's website" to which he had regard. He referred to this material as "a blunt instrument" but "of some assistance". He was also provided with a copy of three decisions of this Court which he did not refer to expressly. They were R v Scott [2001] NSWCCA 377; R v Coupe [2001] NSWCCA 112; and R v BB [2005] NSWCCA 215.
2. The first thing to note about these matters is that three cases, each from more than 14 years ago, do not establish a pattern of current sentencing practices: The Queen v Kilic at [25]. Scott involved a sentence of 7 years with a non-parole period of 4 years and 6 months, being reduced on appeal to one of 5 and ½ years with a non-parole period of 3 and ½ years. The two circumstances of aggravation were the use of corporal violence against an occupant who was 80 years of age and being in company. The Court would have considered the original sentence an "appropriate one if standing alone", but it was reduced on parity grounds.
3. In R v Coupe, the offender was sentenced to a term of imprisonment of 4 and ½ years with a non-parole period of 3 years. The circumstance of aggravation was the infliction of corporal violence. The violence involved the infliction of some minor bruising and lacerations in a scuffle between the householder and the female offender. The appeal was allowed on the basis that the sentencing judge gave insufficient weight to compelling evidence on the prospects of rehabilitation. In the result the non-parole period was reduced to one of 2 and ½ years.
4. BB was a juvenile charged with the specially aggravated offence under s 112(3). On arraignment the Crown accepted a plea of guilty to the alternative charge on the indictment under s 112(2). An offence of malicious wounding was dealt with on a Form 1. He was sentenced to a term of imprisonment of 5 and ½ years with a non-parole period of 3 years. His appeal was dismissed.
5. It should also be recognised that in each of these cases, unlike the present, a finding of special circumstances was made. There is no complaint in the present case about the sentencing judge declining to make such a finding, nor could there be in the circumstances. For the reasons given in Kilic I would not regard these three cases taken together as providing a useful yardstick against which the sentence passed in the present case may be checked.
6. His Honour was also provided with a detailed schedule of other sentences in s 112(2) cases. The schedule was divided into two parts. The first part concerned single instances of s 112(2) cases and the second multiple instances of the same offending. Only the first part seems to offer any possibility of assistance. The first part of the schedule consists of some 67 cases decided between 1998 and 2018. It was provided in response to a request by the sentencing judge for assistance on the question of sentencing patterns in relation to like offending. That request was made during the proceedings on sentence and counsel obtained the information when the matter was stood down during the luncheon adjournment and because his Honour had to deal with another matter. Probably because of those circumstances, his Honour was not provided with any assistance as to what he should make of the material. Obviously as useful as such documents are undoubtedly to counsel as a basis for further research, they provide with respect, limited information to a sentencing judge, bearing in mind the purpose of the provision of comparable cases is to promote consistency of principle in sentencing as an aspect of the fundamental value of equality before the law.
7. Moreover, perhaps as is said of the offence of manslaughter (R v Wood [2014] NSWCCA 184; 244 A Crim R 501 at [50]-[59]), break, enter and steal offences are infinite in their variety as to the circumstances of offending including circumstances of aggravation, the gravity of offending, the moral culpability of the offender, and other relevant subjective circumstances. Viewed from this standpoint it may be difficult to find among the very many instances of sentences passed for s 112(2) offences many cases which are truly like a case at hand. For instance, none of the 67 cases on the first part of the schedule have each of the three aggravating features present here. There are a number of instances of infliction of actual bodily harm but the vast majority of aggravating circumstances consist of being in company. It is difficult to regard the first part of the document as providing any guidance as to a sentencing pattern relevant to the present case. Like the sentencing judge, I have not been able to derive any useful yardstick from this material.

Statistics provided to this Court

1. This Court has been provided with various sentencing statistics from the Judicial Information Research System website (JIRS). Counsel who prepared the written submissions (not Mr Averre) provided sentencing statistics relating to s 112(3) cases, apparently on the basis that as the offence of specially aggravated break, enter and steal is more serious, the statistics demonstrate that the sentence actually passed here was in the upper half of the range for that more serious offending. The statistics are derived from a total of 132 cases between January 2008 and 23 September 2018. For what it is worth, in more than 60 percent of these cases a head sentence of 6 years duration or more was imposed. Moreover, a non-parole period of more than 4 years was imposed in 40 percent of the cases. Given this is a different offence and as the statistics have been extracted at a high degree of generality, the information provided is not useful in the present case. I do note, however, that when one "drills down" to offenders who pleaded guilty (at some stage) and had no prior convictions, only 5 cases are shown for the "total term", and 4 (for some unexplained reason) for non-parole periods. Each of the 5 offenders in the first group received a different sentence. The lowest was one of 2 years and the highest, 9 years. This sample is too small to be of any assistance, even if s 112(#) offending could be regarded as in some way comparable.
2. We were also provided with sentencing statistics for the s 112(2) offence. These statistics mostly covered the same period from January 2008 to 23 September 2018. Separate statistics were provided covering the 6 month period from 24 September 2018 to March 2019. This latter group involved only cases where there had been a plea of guilty. It is not known at what stage in the proceedings the plea was entered. The sample involved 115 cases. In 71% of cases, the offender was sentenced to a term of imprisonment of 3 years or longer; 28% received a sentence of 3 years; and the highest sentence passed for that group was one of 7 years.
3. My own JIRS search indicates that over the period from January 2008 to 23 September 2018 163 cases were dealt with involving offenders sentenced for one offence only, with no prior criminal record, and having pleaded guilty. Of that number, 14.1%, or 23 offenders only, were sentenced to a term of imprisonment to be served in full time detention. The balance were dealt with variously by a s 9 or s 10 bonds, community services orders, suspended sentences, or intensive correction orders. Of the 23 imprisoned, the sentences varied between 12 months and 14 years. No information was provided about the number of aggravating circumstances or the nature of them in respect of each offender. Only one offender was sentenced to 14 years in prison, bearing in mind the rounding up adopted when the statistics are compiled. That was the notorious case of Peters v R [2013] NSWCCA 324. Mr Peters broke into a suburban home, placing a device around a teenaged schoolgirl's neck which he falsely claimed was a bomb. This conduct was accompanied by a demand for the payment of a large sum of money. The aggravating circumstances were detaining for advantage and actual knowledge that a person was present at the time of entry. His appeal from a sentence having a non-parole period of 10 years and an additional term of 3 years and 6 months, was dismissed. He was aged 50 when he offended.
4. There are only 3 cases in that same period involving an offender aged between 26 and 30 facing sentence for one s 112(2) offence only with no prior convictions and a plea of guilty. Sentences of 18 months, 3 years and 4 years and 5 months were imposed. This information, of course, is insufficient to provide any useful information about patterns of sentencing. Indeed, in my view, even 23 cases over a period of about 10 years is insufficient to provide a useful yardstick against which the sentences passed in the case at hand can be measured. I am satisfied that the statistics provided in these various compilations and formulations do not provide guidance in the present case.

Conclusion

1. On the findings that he made and for the reasons he gave, I am satisfied that the sentence passed upon the applicant by his Honour is not manifestly excessive or plainly unjust. That it may be, comparatively, a longer sentence than even many others is not to the point.
2. For these reasons, the orders I propose are: 1. Grant leave to appeal; 2. Appeal dismissed.

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