Chung v R

Ground 1: The conviction appeal

1. The applicant claimed that the verdict was unreasonable and could not be supported having regard to the evidence. The sole challenge made under this ground was as to the jury's satisfaction that it had been established that the applicant had broken and entered the complainant's home, 'break and enter' being an element of the offence charged.
2. The case was conducted on the basis that the outcome was dependent upon whether the jury accepted the evidence of the complainant or the evidence of the applicant. This was made clear in the trial judge's summing up to the jury which, on this point, was in the following terms: "What the prosecution must prove is that [the applicant] broke and entered the dwelling house of [the complainant] … there is not much controversy about what these words and expressions mean. Break and enter means what you would expect it to mean. If the door is closed and you have no reason to think that you are invited into someone's home and you push the door open and go in, in other words if what happened is the same as what [the complainant's] account is, then that is a break and enter. And so if you are satisfied beyond reasonable doubt that what [the applicant] did was to push open the door without an invitation, step into the house and go in, that is a break and enter."
3. The applicant's approach to the appeal against conviction was to isolate various parts of the complainant's evidence in chief and to contrast that evidence with suggested inconsistencies in his cross-examination and, in respect of one matter, whether the complainant had made a prior inconsistent statement. The applicant contended that an examination of these inconsistencies would demonstrate that the complainant was an unreliable witness, such that his evidence should not have been accepted.
4. There were six categories of evidence isolated in this way. Those categories were as follows: 1. whether the wooden front door was closed or was ajar; 2. whether the applicant rang the doorbell; 3. what happened upon the applicant's entry into the house; 4. when the complainant first saw the knife; 5. the use of the golf club; and 6. the use of a rock.
5. The applicant requires leave to appeal against conviction: Criminal Appeal Act 1912 (NSW), s 5(1)(b). The Court considers that leave to appeal should be refused. In coming to that determination, we have not considered it necessary to set out in these reasons each and every piece of evidence to which the applicant referred. The evidence was considered in detail during the course of the oral submissions.
6. In our opinion what the evidence demonstrates is that there were arguably some inconsistencies in portions of the complainant's evidence, none of which were of any particular moment, and it was a matter for the jury to decide the evidence they accepted and the evidence they rejected.
7. To demonstrate why we have determined to refuse leave, we have chosen what might be thought to be the strongest examples of the inconsistencies upon which the appellant relied as follows. Whether the complainant closed the wooden door Evidence in chief Evidence in cross-examination "Q. You told the police in your statement on 3 October, approximately a little over three weeks or so after the events, you said in your statement, 'I just came back and went inside. I had the keys to the house. I had to open the main door with a key, but the screen door was open. When I went inside, I left the main door open, as I was expecting my wife to come back home from work around that time'? A. INTERPRETER: That's right. … "The screen door: I completely closed the door in - I latched it. The inside wooden door: what I mean is, I latched it, which means I did not lock it, but I latched it." Q. Is your evidence that the screen door was closed, fully closed, but not locked? A. INTERPRETER: That's right. Q. But the wooden door was not fully closed, but open about two or three centimetres? A. INTERPRETER: That's right. Q. And not locked? A. INTERPRETER: That's right." Whether the complainant heard the doorbell ring Evidence in chief Evidence in cross-examination "Q. Why did you stop using the internet? "Q. Do you remember the solicitor asking the question, 'Did you hear the door bell first', and do you remember saying, 'No, never. He never pressed the door bell. He opened the door and entered, so I said, who are you, why are you entering?' Do you remember giving that answer in a conference with the prosecution's solicitor, in October last year? A. INTERPRETER: I heard the doorbell ringing and I saw a man walking in so I stopped" … A. INTERPRETER: I can't remember that very well." Whether the applicant took a knife out when inside the house Evidence in chief Evidence in cross-examination "Q. The question was, when was the very first time you noticed this person holding a knife - [the applicant]? A. INTERPRETER: As I was kicked on the stomach, I saw it. Q. Is the position, do you accept that you suggested to the police in your statement that you saw the man armed with a knife immediately you laid eyes on him? A. INTERPRETER: Yes, that is right. "Q. He got on top of you and what did he do? Q. In other words, when he came in the door? A. He continuously assaulted me. A. INTERPRETER: That is right. Q. When you say he assaulted you what did he actually do? Q. He walked in the door and you saw he had a knife straight away, is that right? A. INTERPRETER: He began to hit on my face with the fists. A. INTERPRETER: Yes I saw it. Q. How many times did he hit you in the face with his fist? … A. INTERPRETER: I remember it was many times. Q. Yesterday, did you tell us that the first time you realised the person had a knife was when you had been struggling with him? Q. Which hand did he use, which fist did he use to hit you in the face? A. INTERPRETER: What I meant was, it is not what I meant. What I meant was that the moment I saw him, that man kicked me so I called that as struggling against each other with bodies, from that moment onwards, and after that, I knew he had a knife. A. INTERPRETER: He used many fists and I saw him take - I saw him taking a - took a knife out … Q. In your statement to the police in October, did you say this in paragraph 7, 'I saw him pull out a knife from his clothes, I can't remember if he took it out of his pants or his shirt pocket', do you remember telling the police that? A. INTERPRETER: Yes. Q. Is it your evidence that you actually saw this man pull a knife out from his clothes? A. INTERPRETER: I did not see him taking the knife out but putting - but I saw he was having a knife."

1. A number of observations may be made about these examples of the evidence upon which the applicant relied. First, the complainant was giving his evidence through an interpreter. There was no evidence of who the interpreter was in the conference with the solicitor. At the time that the complainant made his statement to the police, the complainant's stepson acted as interpreter. There is no evidence of the questions asked nor is there evidence of the accuracy of the translation.
2. It is apparent that, when consideration is given to the sequence of questions and answers given in respect of the knife, set out above, the complainant was attempting to explain in a narrative way what happened: a person came into his house; he saw a knife and in that regard, he explained that it was when the man kicked him and they were struggling that he saw it.
3. The inconsistencies that the applicant relies upon do not involve any stark withdrawal, if any withdrawal at all, from his essential version of the incident. To the extent that there was any divergence in the evidence in chief and the cross-examination, it does not touch upon the essential issue that was put in contest on this ground of appeal, namely, whether the applicant entered into the complainant's home uninvited. The complainant said that he did not call out when the applicant rang the doorbell, "come in, come in". He did not resile from that evidence at any time.
4. The Court reiterates the well-established principle of the criminal law that the assessment of the credibility and reliability of the evidence of witnesses is quintessentially one for a jury to determine: Atai v R [2014] NSWCCA 210 at [134].
5. In this case, we are satisfied that the appeal against conviction is without merit and that it is an appropriate case to refuse leave to appeal against conviction.

The application for leave to appeal against sentence

Ground 2A: His Honour erred in finding that the offending was aggravated by being committed in the home of the victim under s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (NSW)

1. This ground was added by leave following the conclusion of the hearing and arose out of matters raised in the course of argument. As the resolution of this ground may have a bearing upon ground 2 (which asserts an error in respect of the findings of the sentencing judge as to the objective seriousness of the offending) it is appropriate to deal with it first.

The indictment

1. The principal count in the indictment of which the applicant was found guilty by the jury was in the following terms: "On 16 September 2012 at Granville in the State of New South Wales did break and enter the dwelling house of Hyn Tai Han … and then in the said dwelling house committed a serious indictable offence, namely intimidation of Hyun Tai in circumstances of aggravation namely that he knew a person was in the place where the offence was committed." (emphasis added)
2. That count alleged an offence contrary to s 112(2) of the Act. Section 112 is in the following terms: "112 Breaking etc into any house etc and committing serious indictable offence (1) A person who: (a) breaks and enters any dwelling-house or other building and commits any serious indictable offence therein, or (b) being in any dwelling-house or other building commits any serious indictable offence therein and breaks out of the dwelling-house or other building, is guilty of an offence and liable to imprisonment for 14 years. (2) Aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 20 years. (3) Specially aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (2) in circumstances of special aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 25 years."
3. The term "dwelling-house" is defined in s 4 of the Act in the following terms: "Dwelling-house" includes: (a) any building or other structure intended for occupation as a dwelling and capable of being so occupied, although it has never been so occupied, (b) a boat or vehicle in or on which any person resides, and (c) any building or other structure within the same curtilage as a dwelling-house and occupied therewith or whose use is ancillary to the occupation of the dwelling-house."

The findings of the sentencing judge

1. The sentencing judge said (inter alia) the following: "13. In this case Mr Chung broke into his victim's home armed with a knife and attacked the householder. That is a further aggravating factor that the offence was committed in the home of Mr Han." (emphasis added)
2. His Honour then said: "15. Mr Chung said that a friend of his had been defrauded of a lot of money by a man who used to live in Mr Han's household (the man was an in-law or brother). He went to the household - having apparently followed Mr Han's wife - to find the man and seek his own justice for his friend."

The relevant legislation

1. Section 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act) is in (inter alia) the following terms: "Aggravating, mitigating and other factors in sentencing … (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: … (eb) the offence was committed in the home of the victim or any other person, … The Court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence."
2. The provisions of s 21A(2)(eb) were considered in Jonson v R [2016] NSWCCA 286. Bathurst CJ (with whom the other members of the Court agreed) concluded, at [40], that the section does not impose, as a pre-condition for its operation, that the offender be an intruder into the victim's home (although on the facts of the present case that was obviously the position). His Honour rejected, at [50], the suggestion that there was a rule of law that the fact that the offence was committed in the victim's home could only be an aggravating factor on sentence if the offender was an intruder.
3. The present ground raises the question whether, in the emphasised passage of that part of the remarks on sentence set out at [29] above, the sentencing judge was in breach of the suffix to s 21A(2) of the Sentencing Act, or otherwise 'double counted' the fact that the offending was committed in the victim's home.

Submissions of the applicant

1. It was submitted that the applicant had gone to the premises because he wanted to 'deal' with a person whom he thought lived there. It was submitted that in these circumstances, having regard to the way in which the Crown put its case, it was an element of the offence that it was committed in the victim's home.
2. In advancing these submissions, counsel for the applicant made reference to decisions of this Court in Palijan v R [2010] NSWCCA 142 and R v Bennett (2014) 245 A Crim R 1; [2014] NSWCCA 197. Counsel submitted that to the extent that these authorities ran contrary to the position advanced on behalf of the applicant in support of this ground, they should not be followed.

Submissions of the Crown

1. The Crown submitted that there was no error on the part of the sentencing judge. It was submitted that in both Palijan and Bennett, as well as in Smith v R [2013] NSWCCA 209, this Court had rejected the very proposition upon which this ground depended.
2. To the extent that the position advanced on behalf of the applicant mounted a challenge to the correctness of these decisions, the Crown submitted that this Court was bound to follow them unless positively satisfied they were plainly wrong. It was submitted that each of the decisions was correct.

Consideration

1. In Palijan the applicant pleaded guilty to one count of aggravated breaking and entering and committing the serious indictable offence of intimidation in circumstances of aggravation, namely that he used corporal violence on the victim, contrary to s 112(2) of the Act. The facts were that prior to a period of incarceration, the applicant had been in an intimate relationship with the victim. Upon his release from custody, the applicant approached the victim, who indicated that she did not wish to have any contact with him. The applicant persisted in attempting to contact the victim by telephone, with the victim refusing to take his calls. The applicant then sent a text message to the victim, informing her that he was coming to her home and asking her to telephone him. She did not do so. The applicant forced entry into the victim's home in her absence. Upon her arrival, the applicant appeared and produced a knife which he had obtained from the kitchen of the premises, following which he threatened the victim.
2. One of the grounds of appeal relied upon by the applicant in that case was that the sentencing judge had erred in finding that the offending was aggravated by the fact that the premises which were the subject of the break in were those of the victim. Barr AJ (with whom McClellan CJ at CL and Hislop J agreed) said: "[20] It was submitted on appeal that, given that the offence was break and enter and that the aggravating feature was the use of corporal violence on the victim there was no increased criminality by virtue of the fact that the home broken into was the home of the victim. [21] The element of breaking and entering in s 112(2) Crimes Act does not require that the premises be the home of the victim. Section 21A(2)(eb) [of the] Crimes (Sentencing Procedure) Act 1999 provides that the aggravating factors to be taken into account in determining the appropriate sentence for an offence include - (eb) the offence was committed in the home of the victim or any other person. [22] It seems to me that a law-abiding member of the community is entitled to feel safe in his or her own home. There is to my mind something particularly repugnant about the forced entry of an offender into a house and violating the safety of that place by carrying out an attack like that of the applicant. In my opinion his Honour was entitled to take that matter into account as aggravating the applicant's criminality."
3. In Smith, the applicant pleaded guilty to one count of aggravated breaking and entering a dwelling house and committing a serious indictable offence, namely intimidation, contrary to s 112(2) of the Act. The circumstance of aggravation was that he knew that persons were present within the dwelling house. The applicant and the victim had been in a domestic relationship which had broken down. The applicant forced entry into the premises of the victim and her partner, before threatening and assaulting the victim. R A Hulme J (with whom Leeming JA and Button J agreed) said: "[44] Finally it was submitted that the judge erred by taking into account as an aggravating feature that the offence was committed in the victim's home, which was an element of the offence. The problem for the applicant in this respect is that in the written submissions provided by his then legal representative to the sentencing judge, it was conceded on the authority of this Court's judgment in Palijan v R [2010] NSWCCA 142 at [21]-[22] that this was an additional aggravating feature. [45] In Palijan the offender broke into the home of a woman with whom he had previously been in a relationship. He was sentenced for an offence of break, enter and commit serious indictable offence, namely intimidation, in circumstances of aggravation, namely the infliction of corporal violence. There was also an offence of assault occasioning actual bodily harm. The first ground of appeal was that the judge erred when finding that the fact that the home broken into was the victim's home was an aggravating feature. [46] Barr AJ, with whom McClellan CJ at CL and Hislop J agreed, held that the element of breaking and entering in s 112(2) of the Crimes Act does not require that the premises be the home of the victim. Regard was had to s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act. [47] The concession by the applicant's representative in the court below was appropriate and no error is disclosed in the judge taking this matter into account, along with all of the other matters he mentioned, in his assessment of the seriousness of the offence. [48] I am not persuaded that there was any double counting in any of the respects contended. I would not uphold Ground 1."
4. In Bennett the respondent to the Crown appeal had known the victim for some time. They shared an interest in illicit drugs, the victim having previously supplied cannabis to the respondent from time to time. On the day of the offending the respondent consumed a significant quantity of alcohol before making attempts to contact the victim, with a view to obtaining a quantity of cannabis from him. A series of telephone calls from the respondent to the victim went unanswered, a circumstance which appeared to frustrate the respondent. In the company of another person, the respondent went to the victim's premises. On arrival, the respondent banged on a door, before opening a glass sliding door to gain entry. He located the victim and began punching and threatening him. He pleaded guilty to an offence contrary to s 112(2) of the Act, the circumstances of aggravation being that he knew there were persons inside the dwelling-house. The sentencing judge declined to make a finding that the offence was committed in the victim's home for the purposes of s 21A(2)(eb) of the Sentencing Act, on the basis that this was an element of the offence. The Crown argued that in doing so, his Honour had erred.
5. Simpson J (as her Honour then was) concluded that this ground should be upheld. In doing so, her Honour said the following: "[4] By ground 2 the Crown asserts that the sentencing judge erred in failing to take into account, as an aggravating factor, that the offence was committed in the home of the victim. Hall J would reject that ground on the basis that that it was so committed is an element of the offence charged. I disagree, and would uphold the ground, for the following reasons. [5] Section 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) … sets out, in subs (2), aggravating factors that, when known, must be taken into account in sentencing. Paragraph (eb) prescribes as an aggravating factor that 'the offence was committed in the home of the victim or any other person'. However, the suffix to s 21A(2) provides that a court is not to have additional regard to any such aggravating factor in sentencing if that aggravating factor is an element of the offence. … [8] The elements of an offence against s 112(2) are: - that the accused person broke and entered into a dwelling house or other building; and - therein committed a serious indictable offence. There is no element of this offence that the "dwelling house or other building" broken and entered is the home of the victim of the offence. [9] Section 112(2), by reference to s 112(1), is concerned with offences committed in 'any dwelling-house or other building'. By s 4 of the Crimes Act, 'dwelling house' includes: (a) any building or other structure intended for occupation as a dwelling and capable of being so occupied, although it has never been so occupied, (b) a boat or vehicle in or on which a person resides, and (c) any building or other structure within the same curtilage as a dwelling-house, and occupied therewith or whose use is ancillary to the occupation of the dwellling-house. [10] That a 'dwelling house' includes unoccupied premises, and that s 112(2) envisages break and entry into buildings other than a dwelling house, both indicate that the offence created by the sub-section is not limited to buildings that constitute the home of the victim or any other person. That the building the subject of the break and entry was the home of the victim is therefore not an element of the offence charged. [11] The charge on the indictment was: On the 18th day of November 2012, at ORANGE, in the State of New South Wales, [the respondent] did break and enter the dwelling house of [the victim] situate at [address] and then in the said dwelling house did commit a serious indictable offence, namely, did intimidate [the victim], in circumstances of aggravation, namely, he knew that there were persons present within the said dwelling house. [12] That the indictment specified that the building that the respondent broke and entered was a dwelling house, and that it was the home of the victim, are not elements of the offence. They are no more than particulars of the offence against s 112(2). [13] It was, in my opinion, an error to find that the fact that the offence was committed in the home of the victim was an element of the offence and therefore not an aggravating factor within s 21A(2)(eb) of the Sentencing Procedure Act."
6. Harrison J agreed with Simpson J.
7. Hall J reached a contrary view: "[46] The Crown submitted that it was an error to find that it was not capable of constituting an aggravating factor. In support of this submission, the Crown referred to the decision of Barr AJ in Palijan v R [2012] NSWCCA 142 at [21] (McClellan CJ at CL and Hislop J agreeing), which it asserted was authority for the proposition that a sentencing judge can regard the fact that the offence was committed in the home of the victim as an aggravating factor for an offence under s 112(2). [47] In Palijan, the offender pleaded guilty to an offence of break and enter and commit a serious indictable offence (intimidation) in circumstances of aggravation, namely that he used corporal violence on the victim. In response to a submission that the sentencing judge in that case had erred in finding that the offence was aggravated on the basis that the offence was committed in the victim's home, Barr AJ stated (at [21]) that, '[t]he element of breaking and entering in s 112(2) Crimes Act does not require that the premises be the home of the victim'. [48] It was submitted on behalf of the respondent that his Honour was correct to distinguish Palijan. In Palijan, the circumstance of aggravation that was charged in the indictment was the use of corporal violence. Whereas in the present case, the circumstance of aggravation as charged in the indictment was that the respondent knew there to be persons in the house. Counsel for the respondent submitted that there was a real risk of double counting if the sentencing judge were to take into account the offence having been committed in the home of the victim as an aggravating factor for the purpose of s 21A(2) in the present case. Such a risk was not present in Palijan."
8. Having referred to the terms of the indictment, his Honour continued: "[50] In his remarks on sentence, the learned sentencing judge said the following in respect of s 21A(2)(eb) … As to (eb) I do not so find. In my view that is an element of the offence and to take that into account would result in double counting. The submission that the children are entitled to feel safe and secure in their home is accepted but not to the extent of promoting a finding of aggravation under this sub paragraph. [51] Section 21A(5) provides that the fact that any aggravating (or mitigating) factor is relevant and known to the court does not require the court to increase (or decrease) the sentence for the offence. [52] In circumstances in which the indictment pleaded the fact that the offence charged under s 112(2) of the Crimes Act 1900 involved the dwelling house of C that enabled the court to take into account, when determining the objective seriousness of the offence, the fact that the offence involved the dwelling house in which C and his two children were present at the time of the commission of the offence rather than considering it as a separate aggravating factor. No error as contended for in ground 2 has in my opinion been made out. This ground should be dismissed."
9. It is an error for a sentencing judge, when sentencing an offender, to take into account a circumstance of aggravation if that circumstance is an element of the offence: R v Johnson [2005] NSWCCA 186 at [20]-[26] per Hunt AJA (Hulme and Johnson JJ agreeing). That proposition is consistent with the terms of the suffix to s 21A(2) which is directed against having additional regard to an element of the offence as an aggravating factor: Elyard v R (2006) 45 MVR 402; [2006] NSWCCA 43 at [8] per Basten JA (Howie J agreeing).
10. The passage of the sentencing remarks set out at [29] above reflects two essential findings by the sentencing judge. The first was that the offending was aggravated by the fact that the applicant attacked the victim when he was armed. No complaint is made about that finding. The second, which is contained in the italicised portion of that passage, was that the offending was aggravated by the fact that it was committed in the home of the victim. That finding does not reflect error in the way suggested by counsel for the applicant. This is because the decisions in Palijan, Smith and Bennett discussed above stand as authority for the proposition that it is not an element of an offence contrary to s 112(2) that the premises which are the subject of the offending be those of the victim. Nothing put on behalf of the applicant supports a conclusion that those decisions are plainly wrong, and should not be followed.
11. Properly understood, what the sentencing judge did was to find that the factors in the passage set out in [29] above aggravated the offending, thus rendering it more serious than might otherwise have been the case. None of those factors were elements of the offence with which the applicant was charged. It follows that there was no double counting, and that the suffix to s 21A(2) was not infringed.
12. For all of those reasons, ground 2A is not made out.

Ground 2: His Honour erred in finding that the offending was in the middle of the range of objective seriousness

The reasons of the sentencing judge

1. His Honour recounted the facts of the offending (which are summarised at [4]-[12] above). He found that the applicant: (i) broke into the premises in possession of a knife, the blade of which was about 10 cm long and which thus had the potential to cause serious or fatal injury; (ii) kicked the victim in the stomach; (iii) produced the knife and assaulted the victim.
2. His Honour concluded that the applicant had gone to the premises to "find the man and seek his own revenge". In reaching that conclusion, his Honour rejected a submission that the applicant had been motivated by misplaced altruism. He concluded that to describe the offending in that way failed to emphasise the seriousness of what had occurred.
3. Further, and as previously discussed in considering ground 2A, his Honour found that the offending was aggravated by the fact that the applicant had broken into the premises armed with a knife, and attacked the victim in his own home. His Honour also found that the offending was aggravated by being committed in the presence of a child.
4. In all of these circumstances, his Honour concluded that the offending was in the middle of the range of objective seriousness.

Submissions of the applicant

1. Whilst acknowledging the various aggravating features identified by the sentencing judge, counsel for the applicant pointed to a number of factors which, it was submitted, established error in his Honour's assessment of the objective seriousness of the offending. Counsel relied, in particular, upon the fact that: (i) the relevant events occurred over a relatively short period of time; (ii) the conduct of the applicant was not motivated by a desire for financial gain for himself, but by a desire to assist another person; and (iii) the applicant did not produce the knife at the outset, which was said to support a conclusion that the offending was spontaneous rather than pre-meditated.

Submissions of the Crown

1. The Crown submitted that the assessment of the objective seriousness of offending is a matter which is classically within the discretion of a sentencing judge, and something with which this Court will be reluctant to interfere. The Crown pointed to the particular findings made by the sentencing judge and submitted that the verdict of the jury reflected a conclusion that the applicant had gone to the victim's premises with the express intention of intimidating one of the occupants. In these circumstances it was submitted that any suggestion that the offending was not premeditated should be rejected. The Crown further submitted that the offending was not mitigated by the fact that the applicant may have been motivated by a desire to assist a third party.
2. In all of these circumstances, the Crown submitted that the finding of the sentencing judge as to the objective seriousness of the offending was entirely open.

Consideration

1. This Court has observed on numerous occasions that it will be slow to set aside a finding in respect of the objective seriousness of particular offending which has been made by a sentencing judge in the exercise of his or her discretion: Mulato v R [2006] NSWCCA 282 at [37]; [46]-[47]; Ali v R [2010] NSWCCA 35 at [33]; Baines v R [2016] NSWCCA 132 at [15].
2. His Honour's principal findings as to the objective seriousness of the applicant's offending are set out at [50]-[52] above. Counsel for the applicant did not take issue with these (or any other) factual findings made by the sentencing judge. Viewed collectively, they support the conclusion reached by the sentencing judge as to the objective seriousness of the offending.
3. It follows that ground 2 is not made out.

Ground 3: His Honour erred in not quantifying the discount he gave to the applicant in relation to the delay in the proceedings and the applicant being on bail

The findings of the sentencing judge

1. The sentencing judge said: "Given the seriousness of this crime and the fact that it lies within the middle of the range of objective seriousness, but taking into account [the applicant's] factors favourable to him, which I have referred to - including, I might add, the fact that he was on bail with restrictive conditions, including reporting, for some time, because his case was not reached twice - I regard an appropriate sentence as being one of six years imprisonment. Normally for a sentence of six years imprisonment the non-parole envisaged by the sentencing legislation would be four and a half years imprisonment. However, I think there are special circumstances for reducing this and I will reduce the non-parole period to three and a half years imprisonment. I have in mind his age and his health serving the time in prison will be harder for him in those circumstances."

Submissions of the applicant

1. Counsel for the applicant submitted that his Honour had erred by failing to quantify any discount that he had given to the applicant on account of his period on bail, and the delay in the progress of his trial. It was submitted that in these circumstances the applicant "simply did not know … what sentence his Honour was considering before taking these factors into account".

Submissions of the Crown

1. The Crown submitted that although his Honour did not apply a discrete discount in respect of the two factors in question, it was evident from the passage of his Honour's remarks on sentence at [60] above that he had taken each of those matters into account in determining sentence. It was submitted that the sentencing judge was not required to quantify a discount in circumstances where it was clear that he had taken these matters into account in the process of instinctive synthesis which was adopted.

Consideration

1. The sentencing judge was not obliged to specify a discount for either of the matters referred to by counsel for the applicant. In R v Weismantel [2016] NSWCCA 204 R A Hulme J (with whom Beazley P and R S Hulme AJ agreed) observed: "[15] There is one further matter that should not be allowed to pass without comment. R S Hulme AJ has noted that the learned sentencing judge allowed a discount of 15% for the respondent's facilitation of the administration of justice pursuant to s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW) … [16] Why the respondent should receive a greater discount (15%) for running a trial in a co-operative fashion than he did for pleading guilty and avoiding the need for a trial altogether in the other matters (10%) was not explained. [17] But more importantly, quantification of the extent to which a mitigating factor has been taken into account is encouraged in relation to pleas of guilty (R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309) and statutorily required in relation to assistance to authorities (s 23 of the Act). It is otherwise regarded as an erroneous engagement in a two-staged approach to sentencing: see most recently Flaherty v R; R v Flaherty [2016] NSWCCA 188 at [76]-[77]. This is not an error upon which the Crown relied (indeed, it acquiesced in the judge's approach) so aside from making the observation it is otherwise of no moment in determining the outcome."
2. In the earlier decision of Flaherty v R; R v Flaherty (2016) 92 NSWLR 290; [2016] NSWCCA 188 to which his Honour referred, Simpson JA (with whom Hoeben CJ at CL and Price J agreed) observed: "[76] In Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64 Gaudron, Gummow and Hayne JJ said: '[74] … the reasons of the Court of Criminal Appeal suggest a mathematical approach to sentencing in which there are to be 'increment[s]' to, or decrements from, a predetermined range of sentences. That kind of approach, usually referred to as a 'two-stage approach' to sentencing, not only is apt to give rise to error, it is an approach that departs from principle. It should not be adopted. … [76] … So long as a sentencing judge must, or may, take account of all of the circumstances of the offence and the offender, to single out some of those considerations and attribute specific numerical or proportionate value to some features, distorts the already difficult balancing exercise which the judge must perform.' (footnote omitted) [77] This is a clear case of sentencing by the forbidden 'two-stage' approach, as revealed by [61] to [64] of the remarks (extracted above). Error is therefore demonstrated." (emphasis in original)
3. Had the sentencing judge approached the matter in the way for which counsel for the applicant contended, it may well have led to error of the kind to which Simpson J referred in Flaherty, and to which R A Hulme J referred in Weismantel.
4. Ground 3 is not made out.

The findings of the sentencing judge

1. We have set out the circumstances of the offending at [4]-[9] above. His Honour's findings as to those circumstances are set out at [50]-[53]. We have rejected the challenges made to those findings which were the subject of grounds 2 and 2A.
2. In terms of the applicant's subjective case, his Honour found that the applicant: (i) was a person who was otherwise a good man who had contributed to the community and to his family; (ii) had "some health issues" including high blood pressure, gout, cataracts and glaucoma; (iii) was contrite; (iv) had good prospects of rehabilitation; and (v) had been on bail with restrictive conditions for some time due to the fact that his trial had not been reached on two occasions.

Submissions of the applicant

1. In support of this ground, it was emphasised that the applicant: (i) was 59 years of age at the time of the offending; (ii) had no criminal history, save for a minor assault matter in 1991 which did not result in a conviction being recorded; (iii) was of "positively prior good character"; (iv) had not committed the offence for financial gain; (v) had been motivated by a "sense of injustice to his partner at the time"; (vi) was found to be contrite; and (vii) was found to have good prospects of rehabilitation.
2. Counsel took the Court to relevant sentencing statistics, and to a number of other judgments, an analysis of which was said to demonstrate the manifest excess of the sentence imposed. It was submitted, in particular, that the applicant's age and prior good character, and the objective characteristics of the offending, warranted a sentence of substantially less than 6 years imprisonment.

Submissions of the Crown

1. The Crown submitted that the applicant's offending was serious. The Crown emphasised the fact that the applicant had armed himself with a knife and attended the victim's home for the express purpose of intimidating another person. The Crown pointed to the fact that the assault committed by the applicant was severe.
2. The Crown further submitted that the applicant's motive, far from being a mitigating factor, was one which required denunciation, as well as both general and specific deterrence. It was submitted that neither the statistical analyses provided by the applicant, nor counsel's reliance upon sentences which were imposed in other cases, supported a conclusion that the sentence was manifestly excessive.
3. Finally, the Crown pointed to the maximum penalty of 20 years imprisonment, and the standard non-parole period of 5 years imprisonment, as important guideposts in determining an appropriate sentence. Taking all of these factors into account, the Crown submitted that this ground was not made out.

Consideration

1. In order to succeed on this ground, it is necessary for the applicant to establish that the sentence imposed was unreasonable or plainly unjust: Markarian v The Queen (2005) 228 CLR 257; [2005] HCA 25. We have already set out the circumstances surrounding the offending, and the findings made by the sentencing judge, both as to the objective seriousness of the offending, and the applicant's subjective circumstances.
2. As his Honour found, the applicant had a number of subjective factors operating in his favour. They included his age, along with the fact that he was properly regarded as a person of prior good character. A pre-sentence report noted that he had a partner and mature-age children, that he was gainfully employed at the time of the offending, and that he appeared to follow "pro-social pursuits". The report recorded the applicant's express acknowledgment that he should not have resorted to violence, and that he appeared to be regretful about his offending behaviour. There was also evidence of the applicant's remorse, and his generally positive prospects of rehabilitation. The author of the pre-sentence report expressed the view that the applicant would benefit from a period of supervision, with a focus upon addressing issues of anger management. It is apparent that the sentencing judge had regard to all of these factors.
3. Conversely, the applicant's offending was grave. Armed with a knife, he went to the victim's premises and engaged in an act of serious violence. Moreover, the offending was not spontaneous and was aggravated by the various factors to which the sentencing judge referred, and in particular by the fact that it occurred in the victim's home, a place where he was entitled to feel safe.
4. Counsel for the applicant emphasised that the applicant was motivated (at least in part) by a desire to assist someone else. In our view, that does not mitigate the offending. The more important consideration is that the applicant's form of 'assistance' involved the commission of an act of serious violence. The applicant's motivation is to be denounced, rather than regarded as a mitigating factor. Similarly, the fact that the offending was, in relative terms, of short duration is of little assistance to the applicant. For the time over which the incident did extend, it would have been frightening for the victim.
5. As we have noted, counsel for the applicant referred the Court to both sentencing statistics, and sentences imposed in cases which were said to involve 'comparable' offending. The principles governing the use of such material were summarised in MLP v R [2014] NSWCCA 183 at [41]-[44].
6. In the present case, neither the statistical materials, nor the cases to which the Court was referred, supports a conclusion that the sentence imposed is manifestly excessive. In particular, each and every one of the cases relied upon by the applicant are distinguishable on the fundamental basis that the offender in each of them pleaded guilty (in the majority of cases, at an early stage) and thus received the benefit of a substantial discount. In contrast in this case, the applicant chose to proceed to trial.
7. Moreover, it has been observed on numerous occasions that there is no single correct sentence. In Markarian Gleeson CJ, Gummow, Hayne and Callinan JJ explained, at [27], that: "Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach, and as accords with the statutory regime that applies."
8. Finally, we accept the Crown's submission that the maximum penalty and standard non-parole period set by the Parliament are important guideposts in determining this ground.
9. Taking all of those matters into account, we are not persuaded that the sentence is properly regarded as manifestly excessive, in the sense of being unreasonable or plainly unjust.
10. It follows that this ground is not made out.

Orders

1. The Court makes the following orders: (1) Refuse leave to appeal against conviction. (2) Grant leave to appeal against sentence. (3) Dismiss the appeal against sentence.

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: 13 November 2018