Brown v R

Background

1. The applicant was arrested for the present offences on 24 May 2022. At the time these offences were committed, the applicant was on parole in respect of a sentence for an earlier offence of specially aggravated break, enter and commit a serious indictable offence, namely wounding. That sentence comprised a head sentence of imprisonment for 6 years 9 months commencing on 17 February 2018, with a non-parole period of 4 years expiring on 16 February 2022. The applicant was released to parole on that date.
2. On 8 June 2022, the State Parole Authority revoked the applicant's parole. Parole was treated as having been revoked from the earliest date of the new offending, 23 May 2022 (regrettably, a little over three months after release to parole). He returned to custody on 24 May 2022. The balance of parole was 2 years 5 months 3 weeks 4 days. If served in its entirety, it would have expired on 17 November 2024.
3. To express all of that a little more simply: the new aggregate sentence imposed by the sentencing judge, dated as it was from 1 February 2023, commenced 8 months 1 week after the commencement of service of the balance of parole on 24 May 2022.
4. Attached to this judgment is a diagram that sets out all of the above in readily comprehensible form.

Grounds of appeal

1. By the conclusion of the hearing in this Court, the applicant was permitted to rely on three grounds of appeal. The amended grounds are as follows: Ground 1: His Honour erred by imposing a sentence dated during a period of revoked parole that altered the effective sentence and the statutory ratio of the totality of the sentence. Ground 2: His Honour erred in finding as an aggravating circumstance that the offence was committed in a home when this was an element of the charge in relation to sequence 14. Ground 3: The sentence imposed was manifestly excessive and a different sentence is warranted at law.

Objective features

1. The following sketch is derived largely from the agreed facts as summarised in the remarks on sentence.
2. Each offence arose from a series of acts which occurred on 23 May 2022, over a period of about 45 minutes. I shall discuss them in chronological order.
3. On 23 May 2022, Mr Ferbigio Lasike had parked his Holden Captiva in the driveway of the family home at Percy Street, Ingleburn. The vehicle was unlocked but the doors were closed.
4. At about 12:30pm, the applicant entered the vehicle. Mr Lasike's 9-year-old son observed this, and called out to his parents.
5. Mr Lasike's partner approached the applicant, who had remained in the vehicle and was reaching around under the steering wheel. She challenged the applicant, who then got out and ran down the road. Mr Lasike chased the applicant, but ultimately lost sight of him.
6. This constituted the offence of attempt steal motor vehicle.
7. At about 12:45pm, Ms Deanne Sheehan returned to her home at Enid Place, Ingleburn, in her grey Ford Territory.
8. At about 1pm, Ms Sheehan's 14-year-old son took out the recycling and noticed that the applicant was seated in the vehicle. He alerted his mother.
9. Ms Sheehan moved to the veranda, by which time the applicant had exited the vehicle. The applicant demanded the keys to the vehicle. Ms Sheehan agreed to provide them, and returned to the house.
10. A short time later, Ms Sheehan noticed the applicant was standing in her hallway. Ms Sheehan's 14-year-old son was standing behind her. Her four-year-old son was asleep in the lounge room.
11. The applicant said to her: "[J]ust give me the fucking keys, they are after me, just give me the fucking keys." Ms Sheehan said that she was trying. The applicant said: "[H]urry up, give me the fucking keys."
12. After Ms Sheehan's 14-year-old son retrieved a knife from the kitchen, the applicant warned him to stay back and not "do anything dumb."
13. Ms Sheehan gave the keys to the applicant. The applicant drove away with the vehicle.
14. All of this constituted the offences of aggravated enter dwelling-house with intent to commit serious indictable offence, demand property with menaces with intent to steal, and steal motor vehicle.
15. That same day, Mr Mark Davis had parked his Ford Courier utility vehicle at the front of a property at Bensley Road, Ingleburn.
16. Mr Davis subsequently saw the applicant drive a grey Ford Territory (no doubt the one taken shortly beforehand) up the driveway of the property. The applicant got out and opened the driver's side door of the Ford Courier.
17. Mr Davis ran downstairs, told the applicant to stop and asked what he was doing. The applicant got back into the original Ford Territory, reversed out of the driveway, collided with a fence, and drove away.
18. The applicant had taken the following items from Mr Davis' Ford Courier: a Kathmandu vest; two mobile phones; a set of house keys, a garage remote control and the keys to the Ford Courier; a bum bag containing a wallet and $340 in cash; and a driver's licence, bank cards and various other cards. The total value of the property taken was $700.
19. This constituted the larceny.
20. Mr Davis re-entered the premises and used another mobile phone to call his stolen mobile phone. The applicant answered. Mr Davis told the applicant to bring back his possessions. The applicant asked if Mr Davis had called the police, which Mr Davis confirmed. The applicant replied: "Well go fuck yourself". The applicant ended the call.
21. The applicant parked the Ford Territory adjacent to his unit block. Shortly after 1:15pm, the applicant set fire to the vehicle. NSW Fire and Rescue attended, but the vehicle was destroyed.
22. This constituted the offence of destroying property by fire.
23. On 24 May 2024, the applicant was arrested. The police conducted a search and located inside a wallet a small resealable plastic bag containing 0.5g of methylamphetamine (this constituted the offence of possessing a prohibited drug). The applicant declined to be interviewed.
24. To provide my own summary of objective aspects: this was serious offending, committed by way of a chaotic series of events, that featured the unnecessary destruction by fire of a motor vehicle, and the no doubt traumatic intrusion into a home with the presence of a woman and two children, one of them a toddler.

Subjective features

1. Again, the following is derived from uncontroversial findings in the remarks on sentence.
2. The applicant was 32 years of age when sentence was imposed. He had a very lengthy criminal record which commenced as a juvenile. Those offences span many years and include driving offences, property-related offences, and break and enter offences. He had first been detained in a juvenile detention centre in 2005, and first incarcerated in 2008. Tragically, since 2012 he has never been at liberty for more than a year before being returned to custody.
3. As I have said, at the time of the offences under appeal, the applicant was subject to conditional liberty by way of parole.
4. The applicant's custodial record prior to the imposition of sentence revealed 14 breaches of prison discipline. It also showed the applicant was being housed in segregation, as a result of threatening to commit assault. Clearly enough, he has presented a serious management problem whilst incarcerated.
5. The applicant endured a very difficult childhood. His father was incarcerated when the applicant was 9 months old for a period of 9 years. When he was 13 years old, his two maternal half-sisters went into "DOCS care" and later became wards of the state.
6. At the age of 8, the applicant attended a residential rehabilitation centre with his mother so that she could receive treatment for drug and alcohol abuse. Unfortunately, whilst living in that inherently difficult environment for a child, the applicant was sexually abused.
7. The applicant's substance abuse began at the age of 11, which involved drinking alcohol and smoking cannabis. At 13 years of age, he was given his sister's ADHD medication by his parents, and also began "doing gas [inhalants, or methylamphetamine?] and continued smoking pot". At 18, he began injecting heroin and ice, and also abusing "speed, alcohol, pot and sometimes ecstasy".
8. The applicant left school in year 8. He committed offences to support his family and at the direction of his stepfather, who would threaten the applicant into committing crimes in his childhood and adolescence. He had to offend to survive. As an adult, he offended to support his drug habit, which was in turn an effort to cope with his untreated mental health problems.
9. The applicant was subjected to physical and sexual abuse by his stepfather, as were his mother and sisters. He also experienced abuse on multiple occasions between the ages of 15 and 17 whilst incarcerated in juvenile detention facilities. The applicant disclosed that abuse as part of a compensation claim, which "opened a can of worms and now weighs very heavily on me".
10. A report of Dr Paul Pusey, clinical and forensic psychologist, expressed the opinion that at the time of the offending, the applicant would have met the diagnosis for: drug-induced psychosis; major depressive disorder; post-traumatic stress disorder; and substance use disorder. As for the first of those conditions, I interpolate that I consider that the statement "They are after me" to Ms Sheehan recounted above certainly has that flavour.
11. The applicant suffers from fluctuations in mood, sleep disruption and lethargy. He admitted to suicidal ideations, but denied any intention to act on them.
12. The applicant reported to Dr Pusey that after his release to parole, he had contact with his mother, which was a significant trauma, and caused him to return to drugs. He was smoking and injecting ice and other drugs. At the time of the offending he was "delusional", following the consumption of "a lot of drugs", and after having not slept for days. He stole the car because he felt like someone was chasing him. He believed his poor mental health, substance abuse, and offending were related.
13. The applicant's primary support was his partner, her family and his sister. He has a young son with his partner and is close to his partner's other children. He claimed to take the role of stepfather "seriously".
14. The sentencing judge found that there were aspects of the history provided by the applicant to Dr Pusey that gave rise to issues of reliability. The sentencing judge found that the evidence was more consistent with the applicant failing to embrace opportunities and services offered to him on release, rather than actively engaging in follow-up in the community and a process of reform.
15. The applicant was assessed in his Sentencing Assessment Report as at a high risk of reoffending.
16. The sentencing judge considered the applicant's prospects of rehabilitation to be poor.
17. Finally, the sentencing judge made no findings as to remorse.
18. To provide my own overview of subjective features: a life damaged if not ruined by the deprivation in which it began, deprivation that led to psychological problems, criminogenic substance abuse, years of incarceration, and a necessarily pessimistic view of the future.

Ground 1: His Honour erred by imposing a sentence dated during a period of revoked parole that altered the effective sentence and the statutory ratio of the totality of the sentence

Submissions of parties

1. Leave was granted for the applicant to raise this ground for the first time at the hearing, and neither party sought an opportunity to file subsequent written submissions. The result is that brief oral submissions only were made, as follows.
2. For the applicant it was said that this aspect of the sentence structure had been originally thought of as a "particular" of the assertion of manifest excess. But on reflection counsel took the view that it was worthy of its own ground.
3. It was said that, although special circumstances were addressed upon and ultimately rejected, the sentencing judge had not been assisted by either lawyer at first instance inviting his attention to the following aspect of the sentence structure.
4. It was said that a common approach is to reduce the non-parole period of a new sentence (whether cumulative or partly cumulative on balance of parole, or some pre-existing sentence) in order to avoid the outcome here: a ratio between the total mandatory period of continuous incarceration and the possible period of continuous incarceration (in other words, total non-parole period and total head sentence) that is longer than the statutory ratio, without any reason for that outcome having been provided.
5. It was also said that that outcome needs to be reflected upon in the context of the lockdowns in custody arising from the pandemic, an outcome that could not have been foreseen at the time when the sentence was imposed for the wounding offence that ended up leading to the balance of parole under discussion.
6. The Crown submitted that: the margin between the statutory ratio and the total ratio actually imposed is quite small; there was no sign of unintended arithmetical error; the sentencing judge certainly reflected on questions of totality, and special circumstances generally; one can infer that this outcome was intended, although not mentioned; special circumstances in this particular case were hardly warranted in any event; in terms of months, the practical difference is neither here nor there; and finally, it was hardly incumbent upon the sentencing judge in late 2023 to reflect upon lockdowns that had long since abated.

Determination

1. In my opinion, the sentencing judge did not receive the assistance to which he was entitled. Bearing in mind the plethora of matters that require consideration on sentence, I think that it was incumbent upon the parties to draw his Honour's attention, however briefly, to the oft-encountered phenomenon whereby complete or partial cumulation calls for reflection on the ratio between the overall non-parole period and the overall head sentence.
2. It is certainly true that his Honour rejected the submission that special circumstances could be found for any substantive reason. But nothing was said about intentionally extending the overall ratio beyond that of the statute. Because a ratio beyond 75% is, as a matter of reality, extremely unusual - and often very unhelpful to rehabilitation - if such an outcome is indeed intended, sentencing judges should generally say so: see generally Brennan v R [2018] NSWCCA 22; Hardey v R [2019] NSWCCA 310.
3. It is also true that the outcome goes beyond a 75% ratio only by a matter of a couple of months or so. But my response to that is that that length of time is actually very substantial, if one is the prisoner who is serving it.
4. In my opinion, one can infer that this outcome was an oversight, not an intended one. That being so, I would uphold this ground. Whether that should lead to wholesale reconsideration of sentence, in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, or mere arithmetical correction of a discrete aspect, in accordance with Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255, will be discussed later.

Ground 2: His Honour erred in finding as an aggravating circumstance that the offence was committed in a home when this was an element of the charge in relation to sequence 14.

Submissions of parties

1. This ground was raised in the same way, with the same result: only brief oral submissions were received from both parties.
2. It focuses on that part of the remarks on sentence where his Honour said, "Sequences 14 and 15 were committed in the home of the victim, being a further aggravating factor." Sequence 14, to use the formal language of the Court Attendance Notice, was the offence of entering a dwelling-house with intent to commit a serious indictable offence therein; namely larceny, in circumstances of aggravation; namely, the applicant knew that there were persons present within the said dwelling place.
3. In other words, in light of the elements of the offence and the facts of this case, the question is whether regarding the fact that the premises were the home of the victim constitutes double counting.
4. For the applicant it was said that there was "potentially a flavour" of double counting - in the context of an element of the offence being a dwelling-house, it in fact being lived in, and the circumstance of aggravation being knowledge that persons were present inside it - to regard the fact that the house was in fact the home of a victim as an aggravating feature, in accordance with s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the CSPA).
5. Later it was said that there is "an element of double counting", although it was said to depend on whom one considers to be the victim of that offence.
6. The Crown submitted that the circumstances of aggravation in the Crimes Act 1900 of knowing persons to be present focused on the mind of the applicant, whereas the aggravating factor spoken of in the CSPA focuses on the harm to a victim, who is entitled to feel safe in their home.
7. As for any double counting arising from the fact that an element of the offence was entry into a dwelling-house, and the assessment of that structure being a home as constituting an aggravating feature, the position was maintained that they are, in truth, different things, and there are different reasons for them being spoken of in different legislation. The gravity of the offence was emphasised: the obvious danger; the presence of the 14-year-old who went to obtain a knife; and the readiness of the applicant to commit property offences when there is a distinct possibility that he will interact with his victims.

Determination

1. In my opinion, there is indeed a flavour of practical double-counting in what occurred here: the applicant being sentenced for two offences to do with a dwelling-house, which undoubtedly was an occupied suburban home, and within which persons who were his victims were present to his knowledge, and thereafter the fact the premises were a home being taken into account as an aggravating factor.
2. However, there is clear authority of this Court, in the context of both Crown appeals and appeals by offenders, that that course is legally available: see R v Bennett (2014) 254 A Crim R 1; [2014] NSWCCA 197 at [5]-[13]; Chung v R [2017] NSWCCA 48 at [25]-[49]; BB v R [2017] NSWCCA 189 at [38]. In a nutshell, those cases emphasise the difference between the obvious breadth of the inclusive definition of dwelling-house to be found in s 4 of the Crimes Act 1900, and the narrowness of the concept of a home; and the fact that, despite their superficial similarity, they are based on different underlying concepts.
3. I certainly am not of the view that those decisions are clearly wrong, or that there are compelling reasons to depart from them, especially in the absence of detailed submissions having been made to a bench of five. Nor should the contents of paragraph [71] be taken in any way as criticisms of those decisions, which are dispositive of the ground. That paragraph can be read, however, as a respectful criticism of the complexity and counterintuitive outcomes brought to the criminal justice system by the inclusion of s 21A in the CSPA by Parliament over two decades ago.
4. I would not uphold this ground.

Ground 3: The sentence imposed was manifestly excessive and a different sentence is warranted at law.

1. As against the possibility of the success of ground one leading only to arithmetical adjustment, I proceed to deal with this ground as well.

Submissions for the applicant

1. The applicant submitted that the ultimate sentence imposed fails to reflect a valid consideration of the applicant's background of profound deprivation and mental health struggles. Counsel for the applicant argued that the sentencing judge erroneously gave little - if any - weight to the applicant's disadvantaged background, mental illness, and history of sexual abuse in determining what aggregate sentence might be appropriate. Rather, the sentencing judge found that the applicant's offending was "primarily a result of the offender's drug-induced condition", which is expressly excluded as a mitigating factor: see s 21A(5AA) of the CSPA.
2. During the hearing of this application, it was emphasised that most of the applicant's adult life has been spent in custody. Counsel also asked this Court to reflect on how the deprived childhood of the still-young applicant could be appropriately reflected, in the light of his repeated and lengthening periods of incarceration. The sentencing judge, it was further said, made no reference to the impact of the COVID-19 pandemic on conditions in custody, a further error in the submission of the applicant.

Submissions for the Crown

1. Senior counsel for the Crown contended that, considering the objective criminality of the five offences (with significant maximum penalties and multiple victims), the applicant's breach of parole, significant criminal history for like offending, poor prospects of rehabilitation, related high risk of re-offending, and even accepting his reduced moral culpability and disadvantaged background, the sentence is not manifestly excessive. The sentencing judge accepted the applicant suffered from mental health conditions and that they were attributable, at least in part, to his dysfunctional upbringing. Even so, it was submitted that the applicant's intoxication was clearly a factor causally relevant to the offending, and the sentencing judge's finding that it was the primary cause of the offending was well open.

Determination

1. There is no doubt that the new sentence is a substantial one for offending over a period of 45 minutes, especially when one adds to it a further period of 8 months 1 week of preceding continuous custody by way of the balance of parole.
2. There is also no doubt that the atrocious upbringing of the applicant, and my comfortable satisfaction that it has played a central role in the negative (from every perspective) way in which his life has turned out, deserves full weight, including in reduction of his moral culpability.
3. Furthermore, it is not to be forgotten that he had admitted all he had done by way of his early pleas of guilty.
4. Finally, I think it is clear that this man is stuck in a vicious circle of release from prison every so often, unresolved psychological problems and drug addiction, prompt reoffending, just as prompt reincarceration, and ever-increasing institutionalisation.
5. To be weighed against those factors are the following: his extensive criminal record, his offending whilst on parole, his inability to behave even in prison, and the gravity of some of these offences, including the traumatic and dangerous entry into a suburban home, and the wanton destruction of a motor vehicle by fire.
6. In order for the ground to succeed, the new aggregate head sentence and non-parole period would need to be not just beyond the sentencing discretion, but patently so. Minds may legitimately differ about that sentence. But, having reflected, I cannot say that I am affirmatively satisfied that the aggregate sentence is manifestly excessive.
7. I would not uphold this ground.

Resentence, or mathematical adjustment?

1. I turn now to consider the consequences of my opinion that ground one should be upheld.
2. It is well known that most established errors in sentencing require this Court to consider re-sentence afresh, in accordance with s 6(3) of the Criminal Appeal Act 1912 (NSW), to determine whether a lesser sentence is warranted in law, and, if so, to impose it. A few, however, do not.
3. Subsequent to the hearing of the application, at the request of the Court the parties provided a list of authorities that may be of assistance in determining whether the error that I consider to be established in ground one is the former kind of error -"a Kentwell error" - or the latter - "a Lehn error". That was of assistance, but because none of those examples of different approaches two different errors taken by this Court was directly on point, I shall not discuss those authorities further.
4. In the event, I have had the benefit of reading the judgment of Dhanji J. I respectfully agree with what his Honour has written about the characterisation of this kind of error as a "Kentwell error", with the result that I move to consider resentence afresh.

Lesser sentence warranted in law?

1. I repeat in this context all of the countervailing factors that I discussed in rejecting the ground asserting manifest excess; that rejection, of course, does not close off a lesser sentence by way of this entirely separate process.
2. On resentence, I would replicate the indicative sentences provided by the sentencing judge, along with the starting date of the new aggregate sentence of 1 February 2023.
3. Reflecting on all of those factors, and putting from my mind the sentence imposed at first instance, I would impose an aggregate head sentence of imprisonment for 4 years, with a tentative non-parole period of 3 years, the latter reflecting my refusal to find special circumstances for any substantive reason.
4. However, because of the alteration to the overall ratio by way of the process of cumulation, I would reduce the non-parole period to 2 years 10 months, in order to ensure that the overall ratio is 75%.
5. Because the head sentence that I propose is 6 months shorter than that imposed at first instance, it follows that I am satisfied that a lesser sentence is warranted in law, and the appeal against should be upheld.

Proposed orders

1. I therefore propose the following orders: 1. Leave to appeal against sentence granted, appeal upheld, and sentence imposed at first instance quashed. 2. Instead, the applicant is sentenced to an aggregate head sentence of 4 years, to commence on 1 February 2023 and expire on 31 January 2027, with a non-parole period of 2 years 10 months, to expire on 30 November 2025. 3. The first date upon which it appears the applicant will be eligible for possible release to parole is 30 November 2025.
2. DHANJI J: I have had the considerable advantage of reading the reasons of Button J in draft. I agree with his Honour's orders and his reasons for them but make the following additional observations.

Ground 1 - can the error in relation to the effect of cumulation be addressed by an adjustment to the non-parole period or is this Court required to re-exercise the sentencing discretion?

1. As I have indicated I am of the view, for the reasons given by Button J, that ground 1 of the applicant's amended grounds has been established. The error is one of failing to allow for the effect of cumulation when setting the non-parole period of the sentence. This gives rise to a question as to whether this Court should simply adjust the non-parole period of the sentence imposed by the sentencing judge to "correct" for the effect of cumulation so as to achieve a proportion of 75 percent, or, whether this Court must independently exercise the sentencing discretion afresh, the result of which will determine whether some other sentence is warranted in law and should be passed for the purposes of s 6(3) of the Criminal Appeal Act 1912 (NSW). This gives rise to a question as to the ambit of the High Court's decision in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. That decision has been discussed in numerous judgments of this Court including by a five judge bench in Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 where Kentwell v The Queen was the subject of close analysis.
2. First, it is pertinent to observe that the present matter is not one in which the parties expressly agreed that the nature of the appeal could be limited: see Sausa v R [2023] NSWCCA 95 at [31]-[35]. See also the discussion of Sausa v R and other authorities in DB v R [2024] NSWCCA 18 per Hamill J at [3]-[18]. There is thus no issue that the Court is required to determine whether this is a full resentence case, or an adjustment case.
3. In Christian v R [2021] NSWCCA 300, Beech-Jones CJ at CL (as his Honour then was) said: [35] … For my part I consider that there is a difference between an error in the sentence imposed at first instance, be it arithmetical or otherwise, which can be addressed by giving effect to the sentencing judge's clear intention when imposing the sentence and an error that can only be addressed by the appellate court making its own assessment as to how the relevant error can be addressed and the sentencing exercise completed.
4. I consider the present case to be in the latter category. The approach I favour is, in my view, dictated by Kentwell v The Queen and Lehn v R. The High Court in Kentwell v The Queen rejected the proposition that a court could dismiss an appeal unless the applicant could demonstrate substantial injustice. The plurality made the following remarks at [42]: "42 … When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit. As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be 'warranted in law'. A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not 'warranted in law' unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence. This is not to say that all errors in the sentencing of offenders vitiate the exercise of the sentencer's discretion. By way of example, s 44(1) of the Sentencing Act requires the court when sentencing an offender to imprisonment to first set the non-parole period and then set the balance of the term. Prior to 1 February 2003, a court was required to first set the term of the sentence and then specify the non-parole period. A court which sentences an offender to imprisonment after 1 February 2003 by first setting the term of the sentence commits legal error. Without more, the error does not affect the exercise of the sentencer's discretion."
5. These remarks, in my opinion, are equally applicable to circumstances where the discretion miscarried in respect of a discrete component of the sentencing process, such as the determination of the non-parole period, as where the sentencing discretion miscarried generally. The question that remains is whether the failure to properly exercise the sentencing discretion can be compartmentalised so as to apply only to that particular component.
6. Here, despite categorising the error as one relating to a failure to have regard to the effect of cumulation on an earlier sentence, I would not regard the error as a mere arithmetical oversight. It is unlike, for example, Black v R (2022) 107 NSWLR 225; [2022] NSWCCA 17, where the error was with respect to the statutorily required discount for a plea of guilty. That was a discount unrelated to a sentencing purpose, to be applied after the determination of the sentence by proper application of the instinctive synthesis. It was, consequently, an error amenable to correction by arithmetical adjustment. By contrast, in Lehn v R, while the error was also with respect to the discount allowed for pleas of guilty, as explained in the judgment, the determination of the discount was, in the circumstances of that case, intertwined with the exercise of the sentencing discretion. That was because the sentencing judge expressly declined to adopt the joint position of the parties that a 25 percent discount was appropriate on the basis that it would result in a sentence which failed to reflect the objective gravity of the offending. Thus, the appropriate discount and the determination of the pre-discount sentence resulting from the exercise of the instinctive synthesis were inextricably linked.
7. In Lehn v R, Bathurst CJ said (at [64]): "In the present case, the approach the sentencing judge took meant that the discount for the plea was directly connected to a sentencing purpose in that he declined to grant a further utilitarian discount because the resulting sentence would not reflect the objective seriousness of the offence. It was not debated at the hearing whether the reason for the reduction of the discount conflicted with the provisions of s 22(1A) of the Sentencing Procedure Act, but whether it did or not, the question of the extent of the discount directly related to a sentencing purpose, namely, ensuring that the penalty reflected the objective gravity of the offence."
8. The Chief Justice continued (at [75]): "In a passage approved by the High Court in Kentwell, [Spigelman CJ in Baxter v R (2007) 173 A Crim R 284; [2007] NSWCCA 237] made the following remarks concerning [79] of his judgment in Simpson: [R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534]: "[19] The import of [79] of Simpson was to ensure that submissions in the Court of Criminal Appeal did not proceed as if the identification of error created an entitlement on the part of an Applicant to a new sentence, for example, by merely adjusting the sentence actually passed to allow for the error identified. That would be to proceed on the assumption that the sentencing judge was presumptively correct, when the Court has determined that the exercise of the discretion had miscarried. Section 6(3) is directed to ensuring that the Court of Criminal Appeal does not proceed in that manner, but re-exercises the sentencing discretion taking into account all relevant statutory requirements and sentencing principles with a view to formulating the positive opinion for which the subsection provides." (Emphasis added)"
9. The emphasised passage above seems to me to be directly contrary to the proposition that adjustment can be made to a discrete component of the sentence in respect of which an error of discretion occurred, at least in circumstances such as the present.
10. In adjusting for special circumstances on the basis of cumulation, there is, essentially a question of totality being considered. Had the sentencing judge properly considered the impact of cumulation, it may be that it would have resulted in an arithmetical adjustment, but that it is not inevitably the case. When considering totality, it is necessary to take a last look at the sentence to determine whether it reflects the total criminality. What is being engaged is an aspect of the sentencing discretion. It may have been that had the sentencing judge considered cumulation, he would nonetheless have taken the view that no lesser non-parole period could be properly imposed. He may have made a partial adjustment. Importantly, he may have taken the view that the head sentence, in the context of cumulation was too long. The result of proper consideration at first instance is unknowable. The case is not unlike Lehn v R in that regard.
11. Given my view that a finding of special circumstances to take into account cumulation is not independent of the sentence discretion, and that there was no suggestion of the appeal being confined in any way, I am of the view that the Court must re-exercise the sentencing discretion.

Ground 2 - some comments on "double counting"

1. With respect to ground 2, there may be some tension between the authorities referred to by Button J, and authorities that make clear that double counting, and hence error, can occur where an aggravating factor is taken into account and that factor, while not an element of the offence, is an inherent characteristic of offences of that type: see generally Elyard v R (2006) 45 MVR 402; [2006] NSWCCA 43 at [3]-[13].
2. By way of example, it has been held that it is an error to find as an aggravating factor when sentencing for a commercial supply of a prohibited drug that the offence was committed for financial gain, unless the gain was substantially more than would ordinarily be expected: see Huang v R [2017] NSWCCA 312. That is so despite the fact that commercial gain is not only not an element of the offence but that it is, additionally, not difficult to imagine cases of supply of a commercial quantity involving no financial gain, at least on the part of a particular offender. That type of case may be distinguishable from the present, having regard to the breadth of s 112 of the Crimes Act 1900 (NSW) and the definition of "dwelling house". Be that as it may, ultimately the real question must be whether the sentencing judge has misunderstood where the particular offending to be punished fits on the scale of objective seriousness. Error will be established where it is demonstrated that there has been "double counting" or otherwise an error in the assessment of a matter affecting the consideration of that seriousness. Having regard to the view I take with respect to the need to resentence the applicant as a result of his success on ground 1 of this appeal it is unnecessary to consider this matter further.
3. As I have indicated, above, I agree with the orders proposed by Button J.

Brown v R Sentence Diagram First Instance (2530, pdf) ***** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 July 2024