Apps v R

LEGISLATION CITED: Crimes Act 1900 s19A, s112, s113, s117, s105A Crimes (Sentencing Procedure) Act 1999 Part 3, Divisions 1 - 3, Part 4, Divisions 1 and 1A, s21A, s33, s34, s44, s54A, s54B

Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146 Markarian v The Queen [2005] HCA 25; 79 ALJR 1048 R v Engert (1995) 84 A Crim R 67 R v Fahda [1999] NSWCCA 267 R v Israil [2002] NSWCCA 255 CASES CITED: R v Letteri [1992] NSWCCA 18 March 1992 R v Previtera (1997) 94 A Crim R 76 R v SLD [2003] NSWCCA 310; 58 NSWLR 589 R v Scognamiglio (1991) 56 A Crim R 81 R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 R v Way [2004] NSWCCA 131; 60 NSWLR 168

PARTIES: Anthony Charles Apps - Applicant Crown - Respondent

COUNSEL: A Haesler SC - Applicant W Dawe QC/ J Girdham - Respondent

SOLICITORS: M Pillay - Applicant S Kavanagh - Respondent

IN THE COURT OF CRIMINAL APPEAL 2006/1164

HUNT AJA SIMPSON J WHEALY J

Monday 11 September 2006 Anthony Charles APPS v REGINA Judgment 1 HUNT AJA: I agree with the orders proposed by Simpson J and, generally, with the reasons she has expressed for making those orders. There is, however, one matter raised during the application for leave to appeal in this case which remains of some concern to me.

2 Complaint was made concerning the decision of the sentencing judge that his finding that the applicant had intended to kill the deceased placed his crime above the mid-range of seriousness for the crime of murder - albeit in the context where, because the applicant had pleaded guilty, the judge correctly had regard to the standard non-parole period for murder specified in the Table to Division 1A of the Crimes (Sentencing Procedure) Act 1999 only as a guidepost or benchmark against which the seriousness of the applicant's crime was to be assessed.

3 As I understood the complaint, it was that, as an intention to kill is part of the crime charged, it was not appropriate to take that state of mind into account in determining whether the degree of objective seriousness in the particular case was above the mid-range to which the standard non-parole period applied. That complaint highlights one of the many difficulties facing sentencing judges when considering the standard non-parole period specified in that Table.

4 The crime of murder has a wide variation in the states of mind which must accompany the act which caused the death of the deceased. That particular state of mind is directly relevant to the determination of the objective seriousness of the crime charged, in that it is related to the commission of the crime itself: Regina v Way (2004) 60 NSWLR 168 at [85]-[86]; Regina v AJP (2004) 150 A Crim R 575 at [13]-[14]. Significantly, none of the various standard non-parole periods specified in the Table for the various forms of aggravated crimes relate to the state of mind with which the offender commits the crime. That fact leads me to the conclusion that, for murder, the standard non-parole period relates to a crime in the middle of seriousness relating to all the various states of mind which may constitute that crime. The Legislature could not have intended that a sentencing judge impose the same standard non-parole period for a murder involving an intent to kill as one without any such intent but during the commission by an accomplice of the accused of a crime punishable by imprisonment for life or for twenty-five years (Crimes Act 1900, s 18).

5 The intention to kill must therefore be directly relevant to the sentencing judge's assessment of the objective seriousness of the crime, and whether, in the particular case, that crime falls above or below the mid-range of seriousness. Two things should, however, be made clear. First, the judge is required in that exercise to take into account a finding that the murder was committed with an intention to kill not by itself, but only in association with any other states of mind of the accused which were causally related to the commission of the crime, including those which mitigate the seriousness of the crime (such as mental illness). That is where the sentencing judge erred in the present case. Only in this way can the issue be determined by way of the instinctive synthesis which is required in determining the appropriate sentence: Wong v The Queen (2001) 207 CLR 584 at [75]; Markarian v The Queen (2005) 215 ALR 213 at [37]. Secondly, the intention to kill, because it is an element of the offence, is not a matter in aggravation in determining the appropriate sentence pursuant to s 21A of the statute. 6 SIMPSON J: On 5 September 2005 in the Supreme Court of NSW the applicant entered a plea of guilty to an indictment that charged him with the murder of Christopher Andrew Lamb at Shark Creek, NSW, on 2 November 2003. He asked that a further offence, of break, enter and steal ("the Form 1 offence"), committed in October or early November of 2003, be taken into account pursuant to the provisions of Part 3, Division 3 of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act"). Sentencing of the applicant was governed by the provisions of Part 3, Divisions 1 - 3, and Part 4, Divisions 1 and 1A of the Sentencing Procedure Act. 7 By s19A of the Crimes Act 1900 a maximum penalty of life imprisonment is applicable to the offence of murder. By Part 4, Division 1A of the Sentencing Procedure Act a standard non-parole period of 20 years is prescribed as applicable to offences of murder that fall within the middle of the range of objective seriousness of offences of that kind. By s112(1) of the Crimes Act the maximum sentence applicable to the offence of break, enter and steal (if charged separately) is imprisonment for 14 years or, if the offence is of the aggravated variety, 20 years (s112(2)). 8 On 30 September 2005 Newman AJ sentenced the applicant to a term of imprisonment for 27 years, made up of a non-parole period of 20 years and nine months, and a balance of term of 6 years and 3 months. Of the non-parole period, he stated that two years was specifically referable to the break, enter and steal offence.

the facts 9 A statement of agreed facts was before the sentencing judge, as were statements of number of individuals who would have been witnesses had a trial taken place. From this material the following facts emerged. 10 With two other men Mr Lamb occupied a house near Maclean in northern NSW. The applicant was a regular visitor and occasionally stayed overnight. 11 In October or early November 2003 the applicant broke into a prawn farm near Maclean and stole four guns. This was the Form 1 offence. (Given that one of the guns was used for the shooting of Mr Lamb that offence must have been committed prior to 2 November. The date is otherwise of no moment.) 12 On Saturday 1 November 2003 an altercation between the applicant and Mr Lamb occurred. Later that evening Mr Lamb was observed to be bleeding on the side of his head. The following morning, in circumstances that do not emerge from the materials with any clarity, the applicant used one of the stolen guns to shoot Mr Lamb in the head. (A more comprehensive account of the events of 1 and 2 November is to be found in the history taken from the applicant by a psychiatrist, Dr Delaforce.) There were no eye witnesses to the shooting, although one of the men who shared the house, Jaeden Duggan, was present in another room of the house and had a conversation with the applicant immediately afterwards. The applicant admitted having shot Mr Lamb. The applicant ordered Mr Duggan to leave the house with him (the applicant), threatening that if he did not do so, Mr Duggan would suffer the same fate as Mr Lamb. The applicant fired a second shot from the gun. He then drove off, with Mr Duggan as passenger, in Mr Lamb's car. The two men remained together for about 30 hours. The applicant released Mr Duggan on Monday 3 November 2003. Mr Duggan immediately contacted police and directed them to a location where he had spent some time in the company of the applicant. Mr Lamb's car was there recovered. 13 The applicant was arrested on 14 November 2003. When interviewed, he admitted having broken into the prawn farm and stolen the guns, but declined to answer questions about the shooting. 14 Although the facts were largely uncontroversial, there was one area of dispute arising from the account of events given by Mr Duggan. In a statement Mr Duggan claimed that the applicant had explained shooting Mr Lamb in the following words: "I'm glad the prick's dead … everybody hates Chris and he pushes everybody too far. He pushed me too far and I went off. … I am happy with what I did. You don't have to worry about him any more." 15 Mr Duggan gave evidence in the sentencing proceedings. Newman AJ was unable to be satisfied that his evidence represented a reliable account of what the applicant had said, and disregarded this part of his evidence. It is, therefore, necessary to say no more about that.

subjective circumstances 16 The applicant was born on 19 February 1975. He was 28 years of age at the time of the offences. He was in receipt of a disability pension, for reasons which shall shortly become apparent. 17 He had a number of entries on his criminal record, predominantly for offences of dishonesty, two of possession of knives in public places, and three of assault. 18 His development was disrupted by hyperactivity, he was uncontrollable as a child, and a slow learner. He had continuing behavioural problems throughout his adolescence and, at 17, suffered from depression. He has at least twice been admitted to a psychiatric unit of a public hospital. During periods of incarceration he has spent a good deal of time in the prison psychiatric ward. He has been diagnosed as suffering from schizophrenia, opioid dependence and personality disorder. At the time of the murder he held prescriptions for antipsychotic medications, but was not taking the drugs. 19 Although schizophrenia has been a recurring diagnosis for about fifteen years, Dr Delaforce, a psychiatrist who examined the applicant at the request of the Crown, thought that there had been considerable improvement since late 2004. In a report dated 7 September 2005 Dr Delaforce expressed the view that the schizophrenia was coincidental and not directly causally related to the applicant's conduct in shooting Mr Lamb. However, he noted that paranoid thinking had been prominent prior to the onset of schizophrenia, and considered that it was also a feature of the applicant's personality. It was Dr Delaforce's view that the shooting came about by reason of the applicant's personality disorder. 20 Dr Delaforce gave oral evidence in the sentencing proceedings. He reinforced what he had said in his report that the applicant's paranoia was not only part of his schizophrenic condition, but also part of his personality disorder. He said: "… one key aspect of his personality disorder was that he was paranoid, very paranoid, always has been since his adult years, and people who are paranoid can take offence at people who are perhaps even just joking. … They take it more seriously, they're more suspicious, they take offence at others … and are more likely to get more angry at other people, and inappropriately, that is their nature …"

This is evidence of some significance. 21 Dr Delaforce was questioned about the extent to which the applicant's condition rendered him a future risk to society. In short, his evidence was that, while the schizophrenia would remain with the applicant all his life and require treatment, the anti-social behaviours generated by the personality disorder would, over time, diminish. He volunteered a time frame of: "… maybe five years, but certainly from about ten years …" 22 The applicant's mother also gave brief oral evidence. She said that, although it had initially been difficult to engage the applicant in conversation about the murder, more recently he had come to express his regret. 23 The applicant told Dr Delaforce that he was "very sad" about the death and did not want to be released into the community until he was completely well.

the remarks on sentence 24 Newman AJ set out the agreed facts of the offence, which he characterised as: "… a brutal and cowardly assassination."

As I have indicated, he disposed of the only area of factual contest in favour of the applicant.

He had no doubt that the applicant's intention when he shot Mr Lamb was to kill him. That finding of fact is not challenged. 25 His Honour then held that the intention to kill placed the applicant's crime above the mid-range for the crime of murder in terms of seriousness. (In making this remark his Honour was referring to the provisions of Part 4, Division 1A of the Sentencing Procedure Act, to which I will return.) 26 His Honour then mentioned two aggravating features of the offence. These he identified as, firstly, that the applicant used a shotgun to carry out the crime, and, secondly, that the crime occurred in the victim's own home. He added those aggravating features to the applicant's intention, and held that for those reasons the offence, while not constituting the worst type of case, fell "well above" the mid-range of seriousness. 27 These observations give rise to the first of four complaints made on behalf of the applicant. 28 His Honour then turned to the subjective features and noted the applicant's age, then 30. He made reference to the applicant's "considerable criminal history" which, he said, principally involved crimes of theft. He accepted that that history was of no assistance to the applicant in the determination of the sentence for murder, but held that it was "particularly relevant" in the consideration of the Form 1 offence. 29 His Honour noted the applicant's long history of psychiatric disturbance, the longstanding diagnosis of schizophrenia and the other diagnosed psychiatric conditions, of opioid dependence and personality disorder. He made extensive reference to the evidence of Dr Delaforce and Dr Delaforce's opinion that it was the personality disorder (and not the schizophrenia) which was causally related to the commission of the offence. The manner in which the applicant's mental disorder was treated is the basis of the second of the complaints made on behalf of the applicant. 30 His Honour made particular reference to the evidence concerning the extent to which the applicant is, or is likely to be, a future danger to the community. 31 He then extracted some passages from the decision of this court in R v SLD [2003] NSWCCA 310; 58 NSWLR 589. These were passages in which the court held that the assessment of future risk to the community represented by an offender is not required to be made on the criminal standard. He declared that he would adopt the same approach. The treatment of risk or danger to the community to be created by the applicant if he were to be at liberty is the basis for the third of the complaints. 32 His Honour found it difficult to assess the evidence of contrition, given both through Dr Delaforce and through the applicant's mother. 33 He concluded that the applicant's prospects of rehabilitation were "very bleak indeed". This was because he had no history of employment since the age of 22, he has very limited educational qualification, and his psychiatric conditions militated against any real prospect of rehabilitation. 34 His Honour then returned to the provisions of Part 4, Division 1A of the Sentencing Procedure Act. He accepted that the plea of guilty was one circumstance warranting departure from the standard non-parole period fixed by those provisions. His Honour then considered the value of the plea of guilty, particularly in relation to its timing, which was relatively belated. However, there was an adequate explanation for this. The delay came about because consideration was being given, and advice sought, as to whether the applicant's psychiatric conditions were such as to provide a defence (for example, mental illness) or partial defence (for example, the defence of substantial impairment by reason of abnormality of mind provided by s23A of the Crimes Act). It was accepted that no such defence was available. Once that was made clear, the applicant promptly entered a plea of guilty. Accordingly, Newman AJ allowed a reduction of 25% in the sentence he otherwise would have imposed: see R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383. 35 His Honour noted that the applicant was being held in protective custody, but, as the evidence established, this was not protective custody of the kind which creates additional hardship relevant to the determination of sentence. He determined that by reason of the length of the sentence, special circumstances pursuant to s44(2) of the Sentencing Procedure Act did not exist, and declined, for that reason, to extend the period during which the applicant will be eligible for release on parole at the expense of the non-parole period. 36 Finally, Newman AJ concluded that, absent the plea of guilty, he would have imposed a non-parole period in excess of the standard non-parole period, of 25 years. This he reduced by 25% referable to the plea of guilty, yielding a non-parole period of 18 years and nine months. 37 However, his Honour then proceeded to increase that sentence with specific reference to the Form 1 offence. For this offence, had the applicant been charged separately, he stated that he would have imposed a non-parole period of four years. However, taking into account the principle of totality, he reduced this to a non-parole period of two years and added that to the non-parole period imposed for the crime of murder. This gives rise to the fourth complaint made on behalf of the applicant. 38 In reaching the view he did as to the extent by which the sentence was to be extended by reason of the Form 1 offence, his Honour referred to s113(2) of the Crimes Act. (S113(1) is a section dealing with break and enter with intent to commit a serious indictable offence. The Form 1 offence was an offence of break, enter and commit a serious indictable offence (stealing). His Honour approached this matter on the basis that the Form 1 offence was the aggravated form of the s113 offence, carrying a maximum penalty of 14 years. It was against that yardstick that he reached his initial view that a proper sentence for the offence, standing alone, would have been a non-parole period of four years.) 39 His Honour referred to victim impact statements read by both parents of Mr Lamb but recognised that they could not be taken into account in the determination of an appropriate sentence: R v Previtera (1997) 94 A Crim R 76. 40 His Honour then imposed the sentence already mentioned, of a non-parole period of 20 years and nine months, with a balance of term of six years and three months, to commence 14 November 2003, the date the applicant was arrested. Simple mathematical calculation shows that the sentence does not precisely conform, as between the non-parole period and the balance of term, with the statutory proportions set out in s44(2) of the Sentencing Procedure Act. (A sentence in accordance with the statutory proportions, and taking as a starting point the non-parole period of 20 years and nine months, would yield a balance of term of six years and 11 months. Alternatively, a total term of 27 years would, on the statutory proportions, be divided into a non-parole period of 20 years and three months, and a balance of term of six years and nine months.) Although the variation is small, it has some significance in respect of the application.

the ground of the application 41 A single ground was advanced in support of the application for leave to appeal against the sentence. This was: "A less severe sentence was warranted in law and should have been passed." 42 This ground was particularised in four different ways. The particulars were:

(a) his Honour erred in his assessment of the objective seriousness of the offence; (b) his Honour failed to have sufficient regard of (sic) the offender's mental disability; (c) his Honour erred in his assessment of the future risk posed by the applicant; (d) his Honour made too great an allowance for the Form 1 matter." 43 I shall deal with each of the particulars as an individual ground.

(a) assessment of objective seriousness: 44 It is necessary to refer firstly, but briefly, to the relevant statutory regime. By amendments introduced in 2002, and operative in respect of offences committed on or after 1 February 2003, the Sentencing Procedure Act (Part 4, Division 1A) prescribes, in respect of the offence of murder, a standard non-parole period of 20 years. By s54A(2) the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences of its type. 45 By s54B(2) a court sentencing an offender is required to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons (which, by subs(4) it must record in detail) for departing, either upwards or downwards, from the standard non-parole period. By subs(3) the reasons available to a court for taking that course are those set out in s21A. The effect of Part 4, Division 1A, and the obligations it imposes on a sentencing court, were the subject of extensive consideration and explanation in R v Way [2004] NSWCCA 131; 60 NSWLR 168. 46 The submissions made on behalf of the applicant in support of this ground focussed upon that part of the remarks in which his Honour appeared to hold that the intention to kill of itself placed the crime above the mid-range of crimes of murder. What his Honour held, having stated the (clearly correct) conclusion that the applicant did shoot Mr Lamb with the intention of killing him, was expressed in the following way: "Such an intention on the part of the prisoner places this particular crime, in my view, above the mid-range for the crime of murder in terms of seriousness."

His Honour followed this by referring to the aggravating features, which I have set out above, and appearing to conclude that these, additionally, placed the applicant's offence well above - i.e. further above - the mid-range of objective seriousness. 47 The submission that was put on behalf of the applicant was that an intention to kill does not of itself take a murder above the mid-range of objective seriousness. That assessment must be made by reference to other factors, including the actus reus of the crime, the consequences of the conduct, such factors as impinge upon the mens rea of the offender, matters of motivation, mental state, mental illness or disability (where causally related to the commission of the offence). In my opinion this is a correct statement of the law as explained in Way. 48 In considering the construction of the words "objective seriousness" of an offence as they appear in Part 4, Division 1A, this Court (in Way) distinguished between "circumstances of the offence" and "circumstances of the offender that might go to the appropriate level of punishment". The considerations itemised in the applicant's written submissions are largely drawn from that judgment. 49 Certainly, in a case of murder, the state of mind in which the offence is committed is a relevant consideration going to objective seriousness. As is well known, murder may be established by proof of an act causing death committed when the act is accompanied by any one of three states of mind: in descending levels of seriousness they are: an intention to kill, an intention to cause grievous bodily harm, or reckless indifference. I have no doubt that an intention to kill as distinct from either of the two alternatives, is a consideration tending to greater objective seriousness rather than lesser. So much is obvious. Indeed, in Way, while the Court expressly alluded to mental states, followed this by the parenthetical observation that "intention is more serious than recklessness". However, of itself, an intention to kill alone cannot establish that a particular instance of the crime of murder is above the mid-range of seriousness. It is not the only circumstance relevant to that assessment. In this the submissions made on behalf of the applicant are correct. 50 It is useful to set out one paragraph from the judgment in Way, which is apposite to the present consideration: "86 Some of the relevant circumstances which can be said 'objectively' to affect the 'seriousness' of the offence will be personal to the offender at the time of the offence but become relevant because of their causal connection with its commission. This would extend to matters of motivation (for example duress, provocation, robbery to feed a drug addiction), mental state (for example, intention is more serious than recklessness ), and mental illness , or intellectual disability, where that is causally related to the commission of the offence , in so far as the offender's capacity to reason, or to appreciate fully the rightness or wrongness of a particular act, or to exercise appropriate powers of control has been affected …" (italics added) 51 In my opinion it is inescapable that the sentencing judge viewed two circumstances as independently fixing the applicant's offence at above (intention to kill) and "well above" (aggravating features added to intention to kill) the mid-range of seriousness. His Honour did not give consideration to the equally relevant circumstances of the applicant's mental state and mental illness. (It was, on the evidence, correct to disregard, for this purpose, the schizophrenia, which was said not to have had the necessary causal relationship; it was not correct to exclude or disregard the personality disorder with paranoid features, which was said to have the necessary causal connection.) 52 I am satisfied that the remarks on sentence demonstrate error in the approach taken to the evaluation of the objective seriousness of the offence.

(b) the applicant's "mental disabilities": 53 The existence of a mental illness or other psychiatric condition, where causally related to the offence committed, can be relevant to the assessment of the offender's moral culpability: see R v Scognamiglio (1991) 56 A Crim R 81; R v Letteri (1992) NSWCCA 18 March 1992; R v Engert (1995) 84 A Crim R 67; R v Fahda [1999] NSWCCA 267; R v Israil [2002] NSWCCA 255. It is also relevant to considerations of the extent to which general deterrence should influence the determination of sentence. Each of these circumstances would tend to favour a less severe sentence than might otherwise be imposed. Such a condition may also be relevant to considerations of community protection, and of specific deterrence. This would suggest a more severe sentence: see Engert. Here Newman AJ considered the evidence of the applicant's mental disorder solely in relation to his assessment of future risk or danger to the community posed by the applicant if he were at liberty. He did not consider it as relevant to the assessment of moral culpability, or the extent to which consideration of general deterrence ought to affect the sentence ultimately imposed. 54 I am of the view that this ground of appeal has also been made out.

(c) assessment of future risk: 55 As was pointed out on behalf of the applicant, although his Honour identified the question and referred to evidence, he made no clear finding about future risk. I have already mentioned that his Honour declared that he would adopt the SLD approach, and he also expressly took into account the view stated by Dr Delaforce that, so far as the personality disorder is concerned, the passage of time will diminish the risk. I take the former to mean that he did not think it necessary that any finding about future risk be established on the criminal standard, and such a view would be in conformity with SLD. But no clear finding about the actual level of risk posed by the applicant is to be found in the remarks. The observations were immediately followed by the finding that the applicant's prospects of rehabilitation were "very bleak indeed", which would suggest a view that the risk is relatively significant. 56 The written submissions made on behalf of the applicant are not much more illuminating. They appear to be directed to the proposition that risk is relevant to a finding of special circumstances under s44(2) of the Sentencing Procedure Act. But no ground of appeal challenges the refusal of the judge to make such a finding, and, having regard to the length of the sentence, and consequent length of the parole period, such a challenge would be difficult to sustain. I am unable to discern any error in the assessment of future risk, or the approach taken to it.

(d) the Form 1 offence: 57 Two matters arise in relation to the approach taken to the Form 1 offence. The Form 1 itself identifies the offence as: "Break, enter and steal, (three shotguns and one rifle)" 58 Break, enter and steal is an offence created by s112 of the Crimes Act. That section relevantly provides: "112(1) Whosoever:

breaks and enters any dwelling-house … or any shop, warehouse, … office, store, … pavilion, factory or workshop … and commits any serious indictable offence therein, …

shall be liable to imprisonment for fourteen years." 59 A "serious indictable offence" is, by s4, an offence that is punishable by imprisonment for life or for a term of five years or more. By s117 the offence of larceny (stealing) is punishable by imprisonment for five years. It is, therefore, a serious indictable offence. Accordingly, by s112(1), the offence committed by the applicant would, if charged on indictment, have exposed him to imprisonment for 14 years. Subs(2) provides for an aggravated form of the offence, for which the maximum prescribed penalty is 20 years, but that was not the offence identified on the Form 1. Circumstances of aggravation are defined in s105A, with six circumstances itemised. There was no evidence that any was applicable to the applicant's offence. 60 His Honour stated that the offence with which he was dealing was an offence under s113. S113 creates an offence of breaking into buildings of the same kind as those to which s112 relates, but with intent to commit a serious indictable offence. Such an offence carries a maximum penalty of imprisonment for 10 years. Subs(2) provides for an aggravated form of the offence, for which the maximum prescribed penalty is 14 years. His Honour twice stated that the offence committed by the applicant was of the aggravated variety. He identified the circumstance of aggravation as the applicant's past record of break, enter and steal offences. The circumstances of aggravation defined in s105A do not include a past record of offences of the same kind. 61 In my opinion a number of errors have been identified. Firstly, the relevant section was s112, not s113. (But this favoured the applicant since the maximum penalty provided for breaking and entering with intent to commit a serious indictable offence is less than the maximum penalty provided for breaking, entering and committing a serious indictable offence.) Secondly, no circumstance of aggravation, taking the offence into the aggravated category, was alleged or established. Thirdly, the applicant's past record of break, enter and steal offences was not available to be taken into account as a circumstance of aggravation. 62 However, the error as to the relevant section (and therefore maximum penalty), in effect, undid the other errors. In believing that the offence was one under s113 (a lesser offence than an offence under s112), and in its aggravated form, his Honour also believed that the maximum penalty was imprisonment for 14 years. As it happens, that is the maximum penalty applicable to an offence under s112(1), which is the appropriate sub-section. Accordingly, by a process of accumulation of error, his Honour correctly directed himself as to the maximum applicable penalty. 63 There remains the possibility that the sentence that he determined was appropriate may have been affected by his belief that the applicant's past record of break, enter and steal aggravated the offence to a point that warranted more severe punishment than would otherwise be the case. Although, in my opinion, it was wrong to treat the past record as an aggravating feature, nevertheless the applicant's history is relevant to the assessment of the proper sentence by reason of considerations of specific or personal deterrence. Thus, in my opinion, these errors did not affect the outcome. In the end there is no error in the determination that two years represented an appropriate punishment for the offence if that offence were independently charged; nor in the determination that, the offence being dealt with as it was, by the Form 1 procedure, two years represented an appropriate additional non-parole period in respect of the sentence for murder. It is to be borne in mind that this offence of break, enter and steal was considerably more serious than many of the offences of that category that ordinarily come before the court: the subject matter of the theft - four firearms - takes that offence into a class almost of its own. 64 The second aspect of the application under this ground, however, is more difficult. 65 It is necessary to say something about the provisions of Part 3, Division 3 of the Sentencing Procedure Act. That Division provides for an additional charge or charges, identified in a Form 1, to be taken into account by a court sentencing an offender in relation to an offence (the principal offence). Certain conditions are laid down. The effect of the Division is that, provided the offender admits guilt of the further offence(s), he or she may not further be punished in relation to that offence or those offences. Of present relevance, s33(3) provides: "(3) If the court takes a further offence into account, the penalty imposed on the offender for the principal offence must not exceed the maximum penalty that the court could have imposed for the principal offence had the further offence not been taken into account."

S34(1) provides: "(1) If a court takes a further offence into account under this Division, the court may make such ancillary orders as it could have made had it convicted the offender of the offence when it took the offence into account, but may not impose a separate penalty for the offence ." (italics added) 66 There is no doubt that his Honour specifically and intentionally inflated the murder sentence by a discrete period of two years. Not only that, he said: "I propose to impose a sentencing order which will mean that the prisoner will serve a non-parole period of two years for the crime of break, enter and steal . That period will be added to the non-parole period I have imposed for the crime of murder ." (italics added) 67 In Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146, Spigelman CJ (with whom the four other members of the bench agreed) dealt with a submission urged upon the court that, in sentencing where offences are taken into account under Part 3, Division 3 of the Sentencing Procedure Act, the court should: "set an appropriate set of sentences in respect of all matters before it"; "should recognise the Form 1 offence or offences as separate heads of criminality warranting punishment"; or "should set sentences by reference to all of the offences before it."

His Honour held that those proposals were inconsistent with the statutory scheme. He said: "39 The sentencing court is sentencing only for the 'principal offence'. It is no part of the task of the sentencing court to determine appropriate sentences for offences listed on a Form 1 or to determine the overall sentence that would be appropriate for all the offences and then apply a 'discount' for the use of the procedure. This is not sentencing for the principal offence." (italics in original) 68 However, that decision must be read in the light of the later decision of the High Court in Markarian v The Queen [2005] HCA 25; 79 ALJR 1048. There the court had before it an appeal from this court. The proceeding in this court was a Crown appeal in relation to a sentence imposed in respect of a single offence of knowingly taking part in the supply of a prohibited drug, and four additional offences, to be taken into account pursuant to Part 3, Division 3 of the Sentencing Procedure Act. In allowing the Crown appeal and re-sentencing that respondent, Hulme J (with whom Heydon JA and Carruthers AJ agreed) said: "On account of the matters on the Form 1, particularly the first and second of these, I would increase the sentence otherwise appropriate by between eighteen months and two years." 69 In the High Court the appellant argued that the court erred by, inter alia, impermissibly imposing a separate penalty for the additional offences. The High Court rejected that argument. In a joint judgment, Gleeson CJ, Gummow, Hayne and Callinan JJ said: "43 We are not satisfied that the Court of Criminal Appeal did err as contended. For the reasons which we have given the errors of the Court of Criminal Appeal were errors of principle made at the outset, and the effect of referring in terms to an increase in the sentence for the principal offence of between 18 months to 2 years, tended to compound the initial error rather than to constitute a separate error in the application of the Sentencing [Procedure] Act. Just as on occasions, albeit that they may be rare ones, it may not be inappropriate for a sentencing court to adopt an arithmetical approach, it may be useful and certainly not erroneous for a sentencing court to make clear the extent to which the penalty for the principal offence has been increased on account of further offences to which an offender has admitted guilt . Here Hulme J sought to, and in our opinion did make it clear, that the additional period of imprisonment was imposed not as a separate penalty for the further offences but by way of increase of penalty for the principal offence. " (italics added) 70 The question which now arises is whether the approach taken by Newman AJ was of the same kind as the approach taken by Hulme J in Markarian, or crossed the line into territory prohibited by s34(1), and constituted the imposition of a separate penalty for the offence. 71 I have come to the conclusion that the approach did cross the line from the permissible to the impermissible. There are three indicators that a separate sentence was imposed. Firstly, his Honour explicitly stated that the applicant was to serve a non-parole period of two years for the crime of break, enter and steal; secondly, he stated his intention of adding that term to the non-parole period which, he said, "I have imposed for the crime of murder"; thirdly, notwithstanding his refusal to find special circumstances, the sentence actually imposed did not precisely reflect that determination. That can only have come about by the addition of the separate term. 72 The result of the accumulation of errors, in my opinion, was a sentence that is, in the circumstances, manifestly excessive. It does not pay due regard to the diminution in the applicant's culpability by reason of his mental disorder, and it does not pay due regard to the diminished need for attention to be paid to questions of general deterrence for the same reason. The approach to the assessment of the objective gravity of the offence was flawed. Finally, by what was the imposition of a separate sentence in relation to the Form 1 offence, what would in any event have been a lengthy sentence for the murder became one which is unsustainable. 73 Accordingly, I propose that leave to appeal against sentence be granted, the appeal allowed, the sentence quashed and the applicant re-sentenced. 74 Against the possibility of that result, the Court admitted into evidence an affidavit of the applicant affirmed on 22 August 2006. The applicant said that he had been in the psychiatric ward of the Metropolitan Reception and Remand Centre for seven months because of his schizophrenia. He takes anti-psychotic medication as well as an anti-depressant medication. He sees a psychiatrist every fortnight for about fifteen minutes. He says he does not feel completely safe in the psychiatric ward because he is surrounded by inmates with mental illnesses and they can be unstable and dangerous. 75 He said he is a Special Management Area Placement inmate because of his fears of other prisoners and for his personal safety. This means that he is unable to undertake any work. 76 His access to courses is limited. Because his mother lives in Grafton and is impecunious she is unable to visit frequently. 77 This material does not in any significant way advance the case. The situation is much as might have been expected at the time of sentencing. 78 The consequence of my conclusion is that this court must, in my view, proceed to re-sentence. It must exercise its own sentencing discretion, and perform its own evaluation, particularly of where the applicant's offence sits on the scale of objective gravity. 79 The applicant's plea of guilty is sufficient reason to depart from the standard non-parole period. However, the standard non-parole period must be taken into account as a benchmark or yardstick. That calls firstly for an assessment of the objective gravity of the applicant's offence. 80 I agree with Newman AJ that the clear (and inevitable) finding that, in conducting himself as he did, the applicant intended to kill Mr Lamb, is an indicator of greater rather than lesser objective gravity. The fact that he fired a shotgun at, obviously, close quarters, also tends to establish greater rather than lesser objective gravity. But against that must be balanced his personality disorder, affected as it was by paranoia, and causally directly related to the commission of the offence. 81 In my opinion the factors indicating greater objective gravity are neatly balanced against those indicating lesser. I would conclude that the applicant's offence is at approximately the mid-range of objective gravity. 82 That, however, does not dictate or even permit the conclusion that a standard non-parole period ought to be imposed. 83 In my opinion, by reason of the applicant's significant mental disorder, and its causal connection to the offence, considerations of general deterrence can be given less emphasis than otherwise would be the case. As against that, questions of specific deterrence need to be given some weight. In many cases, where mental disorder is the cause of the commission of an offence, community protection will assume greater significance. However, because of the length of the term that the applicant will, in any event, serve, and because of the evidence that the impact of his personality disorder will diminish in time, that circumstance may, in this case, also be given less weight. 84 I would adopt Newman AJ's discount of 25% for the plea of guilty. 85 But for that reduction, I would have proposed the imposition of a sentence made up of a non-parole period of 18 years with a balance of term of six years. Applying a reduction of 25%, I propose that the applicant be sentenced to a non-parole period of 13½ years, commencing 14 November 2003 and expiring 13 May 2017, with a balance of term of four and a half years, commencing 14 May 2017 and expiring 13 November 2021. 86 The formal orders I propose are:

3. in lieu thereof, and taking into account the Form 1 offence, the applicant be sentenced to a non-parole period of 13½ years, commencing 14 November 2003 and expiring 13 May 2017, with a balance of term of four and a half years, commencing 14 May 2017 and expiring 13 November 2021. 87 WHEALY J: I agree with Simpson J.

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