Burnett v R

Judgment 1MEAGHER JA: I agree with Hoeben J. 2HOEBEN J: Offences and sentences On 16 December 2009 the applicant pleaded guilty to an indictment containing the following counts: Count 1 - Break enter and steal on 19 September 2008 contrary to s112(1)(a) Crimes Act 1900 (maximum penalty imprisonment for 14 years). Count 2 - Break enter and steal on 11 October 2008 contrary to s112(1) Crimes Act 1900 (maximum penalty imprisonment for 14 years). Count 3 - Break enter and steal with intent to steal on 17 October 2008 contrary to s113(1) Crimes Act 1900 (maximum penalty imprisonment for 10 years). Count 4 - Steal motor vehicle on 17 October 2008 contrary to s154F Crimes Act 1900 (maximum penalty imprisonment for 10 years). Count 5 - Break enter and steal on 12 October 2008 contrary to s112(1)(a) Crimes Act 1900 (maximum penalty imprisonment for 14 years). 3Five offences were taken into account on a Form 1 in relation to count 5. One offence of larceny contrary to s117 Crimes Act 1900; one offence of destroy property contrary to s195(1)(a); one offence of take and drive a conveyance without the owner's permission contrary to s154A(1)(a); one offence of break enter and commit serious indictable offence (steal) contrary to s112(1); and one offence of possess house breaking implements contrary to s114(1)(b). 4The applicant was sentenced by English DCJ on 4 February 2010. Her Honour imposed the following sentences: Count 1 - A fixed term of 18 months commencing 17 April 2009 and expiring 16 October 2010. Count 2 - A fixed term of 2 years 9 months and 22 days commencing 17 October 2009 and expiring 8 August 2012. Count 3 - A fixed term of 15 months commencing 17 July 2009 and expiring 16 October 2010. Count 4 - A fixed term of 15 months commencing 17 July 2009 and expiring 16 October 2010. Count 5 - Imprisonment with a non-parole period of 3 years 2 months and 7 days commencing 17 October 2010 and expiring 23 March 2013 with a balance of term of 1 year 3 months and 23 days expiring 16 July 2014. 5The effective overall sentence was imprisonment with a non-parole period of 3 years 11 months and 7 days commencing 17 April 2009 and expiring 23 March 2013 with a head sentence of 5 years and 3 months expiring on 16 July 2014. 6The applicant seeks leave to appeal pursuant to s5(1)(c) of the Criminal Appeal Act 1912 against the severity of the sentence imposed by her Honour on the following grounds. 1.Her Honour failed to properly consider the applicant's mental illness. 2.Her Honour erred in failing to backdate the commencement of the sentences beyond 17 April 2009. 3.Her Honour erred in failing to find special circumstances so as to allow the applicant to be released on parole after serving 75 percent of the overall effective sentence. 4.The sentences in respect of counts 2 and 5 are manifestly excessive. Factual background 7The facts and circumstances giving rise to the offences were as follows: 8Count 1 - The premises at 4/485 George Street, South Windsor were a single room retail store, located within a two storey arcade. At about 4.30pm on Thursday, 18 September 2008 the store was left unattended by the victim. Before leaving, the victim had locked and secured the store. At 6.50 am on Friday, 19 September the victim returned to the store and saw that the glass entry door was partly open and that there was an 8 centimetre hole smashed in the glass. The victim found that one laptop computer, three computer monitors and various computer accessories were missing. The total value of the items taken was $2,500. 9The police established that the applicant smashed a small hole in the front glass door of the premises which he utilised to manipulate the lock and enter the store. Once inside the store, the applicant stole the items specified. When a forensic examination was carried out of the store, a red stain was located on a laminated sign inside the glass of the entry door. The sample of the stain was taken and analysed which revealed DNA matching that of the applicant. 10Count 2 - At about 10.30am on Saturday 11 October 2008 the victim left her home in Castlereagh Road, Agnes Banks and locked and secured the premises. When she returned at about 6pm, she observed the front door to be ajar and found that eight rooms of the house had been ransacked. A large amount of electrical items, jewellery and other household items were missing from the home. The total value of the missing items was $37,535. 11The police established that the applicant forced open the front door and entered the house and ransacked the eight rooms taking property belonging to the victim. The victim reported the matter to the police and a forensic examination of the house was conducted. During that examination, two fingerprints were located on an Ipod box inside the premises. Those fingerprints were collected and resulted in identification of the fingerprint profile of the applicant. 12Count 3 and Count 4 - At 9am on 19 October 2008 the victim left his premises at Cattai Ridge Road, Glenorie unattended prior to which he had locked and secured those premises. At about 3pm the victim returned and observed his front gates to be open and that his black quad bike was missing from underneath the front verandah. 13When the victim walked to the rear of the house, he saw that a rear window had been smashed. He observed that the house alarm had been activated. He could not identify any property missing from within the house. 14Police established that between 9am and 3pm on 19 October the applicant entered the property and stole the quad bike. They established that he smashed the rear window of the premises and entered the house. Once he entered the house, the burglar alarm was activated and he then exited the premises without taking any property. 15When the victim reported the matter to the police, an examination of the area took place. During the examination a fingerprint was located on a broken panel of glass at the rear of the house. Additionally a red stain was located on the dining room floor. Both the fingerprint and the DNA from the stain were identified as belonging to the applicant. The quad bike was not recovered and its value was assessed at $1,000. 16Count 5 - At about 11am on Saturday, 12 October 2008 the victim left her home at Ridgeline Drive, Stanhope Gardens and locked and secured the premises. When she returned at 5.30pm, she found the garage door fully opened. She also found that the main bedroom, two other bedrooms, the study and the rumpus room had been ransacked. Several pieces of jewellery were missing along with power tools. The total value of the items stolen was $30,000. 17The victim also found the rear side window open. It had been locked and secured when she left early that day. A jemmy bar was found on the lounge which did not belong to her. 18The police established that the applicant forced open the rear side window using the jemmy bar and entered the house and ransacked the rooms taking property belonging to the victim. He left the premises by opening the garage door. When the victim reported the matter to the police an examination of the premises took place. During that examination, a fingerprint was located on the internal lower windowsill of the rear window. The fingerprint was collected, examined and identified as belonging to the applicant. 19The only information provided to her Honour concerning the Form 1 offences was that set out on the Form 1 itself. The larceny offence involved the stealing of a Sony CD player and a camera valued at $1,057. The damage to property offence involved the breaking of the window of a motor vehicle. The take and drive conveyance offence involved the stealing of a Toyota LandCruiser. The break enter and steal offence involved breaking and entering a dwelling in Panorama Crescent, Freemans Reach. The possess housebreaking implements offence involved the possession of a jemmy bar without lawful excuse. The maximum penalty for each of the first three offences was imprisonment for 5 years. The maximum penalty for the break enter offence was imprisonment for 14 years and the maximum penalty for the possession of housebreaking implements was imprisonment for 10 years. Remarks on sentence 20Having reviewed the facts and circumstances of each offence, her Honour considered the applicant's subjective case. The applicant did not give evidence on sentence but his aunt did so. A pre-sentence report and a report from a psychiatrist retained by Justice Health were before her Honour. 21The applicant was aged 38 at the time of sentencing. He was raised by his father and grandparents, following the breakdown of his parents' marriage. At 14 his grandmother died and in the pre-sentence report he described himself as "going off the rails" at that point in time. He left school in year 10 and has been largely unemployed since that time. 22The applicant has extensive criminal antecedents. As a juvenile he was dealt with for offences of assault, stealing a motor vehicle, driving offences, goods in custody and break enter and steal. As an adult he had convictions for motor vehicle theft, possessing implements to enter a conveyance, driving offences, larceny of a motor vehicle, escaping lawful custody, break enter and steal, break and enter with intent, failing to appear, drink driving, supplying false information, accessory after the fact to stealing, breaching an apprehended violence order, custody of an offensive implement, receiving, stealing, making false or misleading statements with intent, common assault, assault with intent to prevent apprehension, assault occasioning actual bodily harm and drug offences. 23The applicant has been dealt with in a variety of ways including juvenile detention, bonds, suspended sentences and fulltime custody. He was at one stage referred to the Drug Court Program. Her Honour noted that he had breached most orders made in relation to him, including parole and had three convictions for escape from custody. 24In relation to the applicant's health, her Honour said: "He has a long history of drug abuse and schizophrenia, his drug of choice is amphetamines. At the time of his arrest he reports using an 8 ball of amphetamines injected intravenously a day. In the past he was addicted to heroin, his drug usage commenced at 14, his addiction to amphetamines commenced at 17 ... He is currently medicated with Risperidone, Zoloft and Seroquel, he is also on the methadone program. He informs Dr Samuels that six weeks prior to these offences, he ceased taking his medication and he was no longer taking methadone. ... Since he recommenced using amphetamines he reports continuing to experience some symptoms of schizophrenia. He says to those who interviewed him that his recall of these offences is at best sketchy, he had no recall of the circumstances surrounding the first offence, agreed with the police facts in respect of count 2, could recall the events surrounding counts 3 and 4, but could not recall committing count 5. ... His aunt says the offender has expressed a desire to change his ways and that he wants to better himself, she admits however that she has heard the offender say the same thing in the past. On this occasion it is her opinion that he is more motivated to try, she thinks he has developed insight into a need to maintain his medication to stabilise his mental health." (ROS 6.5 - 7.2) 25In relation to the objective seriousness of the offence, her Honour noted that break enter and steal offences have long been regarded as serious crimes. Her Honour took into account the factors identified in the guideline judgment in R v Ponfield [1999] NSWCCA 435, (1999) 48 NSWLR 327. Her Honour specifically noted that the applicant was on conditional liberty at the time of these offences, i.e. on parole. He had a record for like offences. He was facing sentence for a multiplicity of offences and in respect of counts 2 and 5, jewellery was taken. Her Honour took into account that jewellery is often said to have sentimental value. Her Honour noted that the value of the items taken from the victims in counts 2 and 5 were both in excess of $30,000. Her Honour said that the applicant's previous criminal record did not aggravate the offences for which he was being sentenced, but disentitled him to leniency. 26Her Honour accepted that the applicant had pleaded guilty at the earliest opportunity and was entitled to a 25 percent discount as a result. 27In relation to remorse, contrition and rehabilitation her Honour said: "As I did not hear from him on sentence it is difficult to make a finding that he is truly remorseful and contrite. His prospects for rehabilitation remain extremely guarded. It is essential he maintains his medication regime to stabilise his mental health and that he refrains from using illicit substances, either by remaining on the methadone program or abstaining totally. He has in the past been offered significant assistance and has failed to avail himself of the opportunities afforded to him. The fact that his father and aunt remain supportive is not a matter which enhances his prospects. He was residing with his aunt when he breached his parole on the last occasion and failed to adhere to his medication regime and of course resumed abusing illicit substances." (ROS 8.2) 28In relation to special circumstances, her Honour said: "I'm asked to find special circumstances but I've declined to do so. The offender has been afforded ample opportunity in the past, if he is truly committed to adhering to his medical regime put in place to assist him and to abstain from illicit substances, the standard period of parole will be sufficient to ensure his compliance and to provide him with assistance with post release." (ROS 8.9) 29In relation to the commencement of the sentences, her Honour said: "The offender went into custody on 25 October 2008 and served his balance of parole until 17 April 2009. It is appropriate that he serve his remainder of parole before he commences to serve the sentences to be imposed for these offences. He was in breach of his parole for failing to abide by conditions of his parole in addition to committing these offences." (ROS 9.2) 30After her Honour had imposed sentences in respect of the various counts, she was somewhat belatedly advised by the Crown of the existence of the Form 1 matters, which were attached to Count 5. When advised of that fact, her Honour re-sentenced the applicant in respect of count 5 and increased the sentence by adding 9 months to the head sentence and approximately 5 1/2 months to the non-parole period. APPEAL Ground 1 31The applicant submitted that although there was undisputed evidence that he had suffered from chronic schizophrenia for approximately 10 years, that factor was not properly taken into account by her Honour in the exercise of the sentencing discretion. In support of that submission, the applicant relied upon Sperling J's summary of relevant principles in R v Hemsley [2004] NSWCCA 228 where his Honour said: "33Mental illness may be relevant - and was relevant in the present case - in three ways. First, where mental illness contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced; there may not then be the same call for denunciation and the punishment warranted may accordingly be reduced. 34Secondly, mental illness may render the offender an inappropriate vehicle for general deterrence and moderate that consideration. 35Thirdly, a custodial sentence may weigh more heavily on a mentally ill person. 36A fourth, and countervailing, consideration may arise, namely, the level of danger which the offender presents to the community. That may sound in special deterrence." 32The applicant accepted that there was no evidence that the schizophrenia contributed towards the commission of the offences and accordingly the first consideration was not relevant. However, he submitted that the second and third considerations were relevant and had not been taken into account by her Honour. This was clear, it was submitted, when her Honour concluded that general deterrence "looms large" in the sentence proceedings. 33The applicant relied upon the observations of R A Hulme J in Withers v R [2009] NSWCCA 133 as limiting the application of the fourth consideration to those situations where the mental illness contributed to the commission of the offence. The observation by Hulme J was: "35... The countervailing consideration of the protection of the community generally becomes relevant in a case in which the offender's moral culpability for the offence is reduced because of a lesser capacity to reason, or appreciate the wrongfulness of the conduct, or to exercise appropriate powers of control. In such a case the emphasis upon denunciation and general deterrence might be reduced but the protection of the community may receive greater emphasis: see Engert at 71. But these are not considerations in the present case." 34I do not accept that last submission. The fourth consideration in Hemsley is not limited in the way submitted by the applicant. That is not the effect of what was said by Hulme J in Withers. His Honour was doing no more than pointing out how the fourth consideration could still operate despite the application of the first consideration. The relevance of the fourth consideration, albeit referring to special deterrence, in circumstances where the second and third considerations apply is obvious. Significantly, the operation of the fourth "and countervailing consideration" was not so qualified by Sperling J in Hemsley nor was it so qualified in the authorities to which Sperling J referred when setting out his conclusions in that case. 35As was properly conceded by the applicant, the evidence concerning the applicant's schizophrenia was limited. There was no evidence that it made any contribution to his offending, in contrast to his substance abuse which clearly did. There was no evidence that because of his schizophrenia a custodial sentence might weigh more heavily on him, nor was there any evidence that his schizophrenia might render him an inappropriate vehicle for general deterrence. On the contrary, to the extent that there was evidence, it was to the effect that the taking of the prescribed medication would moderate the condition and that his offending was directly related to his drug abuse. 36Moreover, there is ample authority that general deterrence is not completely irrelevant even where a mental disorder is established. This is particularly so where an offender acts with knowledge of what he is doing, which seems to be the case here. 37In R v Wright (1997) 93 A Crim R 48 at 51 the applicant's psychotic state was self-induced as a result of his failure to take his medication and his deliberate taking of drugs. Hunt CJ at CL said at 52: "By his recklessness in bringing on these psychotic episodes, [the applicant] is a continuing danger to the community, a matter which would in any event reduce - if not eradicate - the mitigation which would otherwise be given for the respondent's mental condition." Similar expressions of opinion are to be found in Benitez v R (2006) 160 A Crim R 166 at [41] - [42] and Cole v R [2010] NSWCCA 227 at [71] - [73]. 38R v Wright was applied in Taylor v R [2006] NSWCCA 7 where McClellan CJ at CL (Howie and Latham JJ agreeing) said that because the appellant was: "30... aware of the state he was in and the effect upon him of sleep deprivation, together with the effect of beer and marijuana, but nevertheless elected to drive, his impaired psychological state would not play a significant part in determining the ultimate sentence." 39The evidence on this issue is all one way. The applicant had been aware of his schizophrenia for many years and had been prescribed anti-psychotic medication. The pre-sentence report and the report from Dr Samuels make it clear that over the years the applicant repeatedly ceased taking his medication and consistently engaged in substance abuse. He did so with full knowledge of the likely consequences. In those circumstances, her Honour's finding concerning general deterrence was not only open to her, it was appropriate. 40It follows that this ground of appeal has not been made out. Ground 2 41The applicant submits that in circumstances where: (i)The revocation of the applicant's parole appears largely to have been attributable to the further offences taken into account on the Form 1; and (ii)The fact that the present offences were committed while on conditional liberty was taken into account as an aggravating factor, it was an error for the sentencing judge to fail to backdate the sentences beyond 17 April 2009 in that the applicant was being penalised for a second time in respect of the same matters. Reliance was place on R v Kaiva (NSWCCA, unreported 1998). 42It is clear from what was said on behalf of the applicant during the sentencing proceedings, and from the Parole Order and Parole Report, that the revocation of parole was due to breaches by the applicant of his parole conditions, i.e. failing to inform the Probation and Parole Service of his new address, failing to attend the Gateway Methadone Clinic to receive his methadone and failing to attend the Blacktown Mental Health Team to receive his anti-psychotic medication. The offences for which the applicant was sentenced by her Honour played no part in the revocation of his parole. Accordingly, it is incorrect to say that the applicant was being doubly penalised because the commission of these offences while the applicant was at conditional liberty was taken into account as an aggravating factor. 43It was open to her Honour to take account of the revocation of parole and to backdate the commencement of the sentence if she thought it was appropriate. She was not, however, bound to do so. Because parole was revoked for reasons other than the commission of the offences for which she was sentencing, her Honour determined not to take into account the time spent in custody by the applicant for breach of his parole conditions. This was a discretionary response open to her Honour: R v Kitchener [2003] NSWCCA 134. As that case makes clear at [51] - [52] the facts in R v Kaiva were most unusual and quite different to those in this case. 44In R v Callaghan [2006] NSWCCA 58; (2006) 160 A Crim R 145 Simpson J summarised the position as follows: "21That the matter is discretionary appears to be the prevailing view of members of this Court. Even in Andrews and Kelly, the court accepted that a judge might backdate a sentence where parole had been revoked by reason of the offence for which the offender is then to be sentenced. 22I maintain the view that a discretion exists. There is no clear rule which will govern all cases. The circumstances that bring an offender before a court for sentence after parole has been revoked are far too varied to permit a single absolute rule. 23It would, in my opinion, in some cases be unfair not to backdate to some point (not necessarily the date of revocation of parole) before the expiration of the earlier parole period. It is always open to an offender to seek and be granted parole even after a revocation; to sentence in such a way as to commence the subsequent sentence only on the date of expiration of the whole of the previously imposed head sentence is to assume that, absent the subsequent offences, the offender would not have been granted a second chance at parole." 45No error has been demonstrated in her Honour's approach to the commencement date of the sentences and this ground of appeal has not been made out. Ground 3 46The applicant submitted that her Honour had not complied with s44 of the Crimes (Sentencing Procedure) Act 1999 in relation to the sentence for count 5 because the balance of the term of sentence exceeded one-third of the non-parole period and her Honour had not found special circumstances. Alternatively, the applicant submitted that there had been a failure to comply with s44 if one took into account as part of the sentence for these offences the period of time which the applicant had spent in custody for breach of parole. 47While the applicant's submission is correct if one looks at the sentence for count 5 in isolation, it fails when one considers the total effect of the sentence. The ratio between the total parole period and the total non-parole period is 1:3 which is precisely the ratio required by s44 if special circumstances have not been found. 48For the reasons already articulated in relation to ground 2, there was no obligation for her Honour to take into account in fixing the non-parole period, the time spent by the applicant in custody as a result of his breach of parole for earlier and unrelated offences. 49The reasons given by her Honour for not finding special circumstances were appropriate. Her Honour took into account that on a number of prior occasions the applicant had been placed under supervision and had been given the opportunity for rehabilitation, but had not availed himself of those chances. As a result, her Honour saw no useful purpose being served by allowing for further supervision of the applicant upon his release to parole beyond that provided by s44. 50The wide discretion available to judges when deciding whether or not to make a finding of special circumstances was set out by RA Hulme J (with whom Giles JA and Adams J agreed) in R v Caristo [2011] NSWCCA 7: "27The non-parole period is the minimum period of actual incarceration that the offender must spend in custody having regard to all the elements of punishment, including rehabilitation, the objective seriousness of the offence and the offender's subjective circumstances: Power v The Queen [1974] HCA 26; 131 CLR 623 at 627-629; R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59]; R v Cramp [2004] NSWCCA 264 at [34]. 28A finding of special circumstances is a discretionary finding of fact in respect of which this Court will be slow to intervene: Jiang v R [2010] NSWCCA 277 at [83]. 29As a practical matter there are unlikely to be many cases in which this Court will interfere unless the non-parole period is found to be manifestly inadequate or manifestly excessive - R v Fidow [2004] NSWCCA 172 at [19]; R Cramp at [36]. 30Simply because there are circumstances which are capable of constituting special circumstances, the Court is not required to make such a finding and reduce the non-parole period R v Fidow at [22]. 31The degree or extent of any adjustment of the "statutory ratio" is a matter for the discretion of the sentencing judge: R v Cramp at [31]; Trad v R [2009] NSWCCA 56 at [33] ..." 51This ground of appeal has not been made out. Ground 4 52The applicant submitted that by reference to the statistics for offences against s112(1)(a) (i.e., break enter and steal after plea of guilty) the total sentence passed by her Honour was within the top 10 percent of sentences awarded for such offences and was therefore excessive. The applicant submitted that the large number of samples which went into making up the statistics gave added weight to the submission. 53By reference to four specific cases - R v Lay [2006] NSWCCA 45, Buddle v R [2006] NSWCCA 236, Arnold v R [2007] NSWCCA 188 and Chandler v R [2008] NSWCCA 240 - the applicant pointed out that significantly lower sentences had been imposed for much greater criminality than was involved here. By reference to those cases and the statistics generally, the applicant submitted that the total sentence imposed by her Honour was manifestly excessive. 54For the applicant to succeed on this ground, he must satisfy the Court that the sentences imposed by her Honour were unreasonable or plainly unjust (Makarian v The Queen [2005] HCA 25, (2005) 202 CLR 357 at 370-371, Carroll v The Queen [2009] HCA 13, (2009) 83 ALJR 579 at [8] - [9], R v Vuni [2006] NSWCCA 171 at [33], Stewart, Wade John v R [2009] NSWCCA 152 at [16] - [17], Simon Hayek v R [2010] NSWCCA 139 at [37]. It is not sufficient that this Court might be of the view that had it been sentencing the applicant, it might have exercised its discretion differently to that of the sentencing judge. Intervention is warranted only where error is demonstrated in accordance with the principles in House v The King [1936] HCA 40, (1936) 55 CLR 499 at 505. 55Each case has to be considered on its own merits and no case is entirely similar to any other. There is a wide discretion to impose a sentence that seems to the judge to be just and appropriate. As was recently stated in Muldrock v The Queen [2011] HCA 39, when imposing a sentence the court has to take into account not only the objective seriousness of the offence, but all of the associated circumstances. 56The particular difficulty in relying upon statistics and sentences passed in other cases was identified by Garling J in Fogg v R [2011] NSWCCA 1: "59... But for many offences, culpability varies over so wide a range that the statistics are of limited utility for a particular case: ... 60I accept that the statistics referred to demonstrate that the sentence in this case falls at the high end of the range of sentences imposed for the offence. But the question remains whether it falls within the range of the permissible exercise of the sentencing judge's discretion." 57The limitations in the use of sentencing statistics have been emphasised by decisions at the highest level. In Hili v The Queen; Jones v The Queen [2010] HCA 45, (2010) 85 ALJR 195 the plurality said: "54In Director of Public Prosecutions (Cth) v De La Rosa Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: "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." But the range of sentences that have been imposed in the past does not fix "the boundaries within which future judges must, or even ought, to sentence". Past sentences "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" (emphasis added). When considering past sentences, "it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned." ... 59As was said in Dinsdale v The Queen, "[m]anifest inadequacy of sentence, like manifest excess, is a conclusion". And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate "is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases". Rather, as the plurality went on to say[ in Wong, "[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons". But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that "the sentence imposed in these matters is so far outside the range of sentences available that there must have been error"." 58What is important when considering a particular sentence are the specific findings as to the objective seriousness of the offence and the culpability of the offender. These are the considerations which are determinative when assessing whether a particular sentence is manifestly excessive rather than the comparison of sentences with statistics: Holloway v Regina [2011] NSWCCA 23 at [85]. The critical question is whether the sentence imposed was appropriate to the particular case: El Masri, Ali v R [2010] NSWCCA 196 at [58]. 59These were serious offences of their kind. Counts 2 and 5 involved the ransacking of the victims' homes and the stealing of large amounts of valuable property, including property of personal and sentimental value. The offences were committed while the applicant was on conditional liberty and against the background of his very lengthy criminal history for similar offences. Considerations of the protection of the community and deterrence (both general and personal) were of importance in the sentencing exercise. In relation to count 5 a number of additional serious offences were taken into account on a Form 1. The effect of this was to increase the sentence for that offence: Attorney General's Application under section 37 Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146. 60Her Honour took those matters into account and error of the necessary kind has not been demonstrated in the sentence. This ground of appeal has not been made out. 61The orders which I propose are that leave to appeal should be granted but that the appeal should be dismissed. 62ROTHMAN J: I agree with Hoeben J.