(iv) these starting points are consistent with the assessment of objective gravity;
(v) the process involved three steps -
- assessment of where in the range of objective seriousness of offences of that kind each offence lay;
- determination of the appropriate starting point, in the light of that assessment and the statutory maximum;
- application of the discount of 25%;
(vi) error is identified in the assessment of the objective gravity, in that her Honour had regard to the objective features of the offences, but disregarded ameliorating subjective features. Accordingly, the assessment of objective gravity in each case is flawed and the process produced a result that is not warranted.
43 An alternative way of putting the argument is that the sentences imposed corresponded precisely with the evaluation of objective gravity, without any allowance for mitigating features. Complaint made was that, having made the assessment of objective gravity, her Honour did not take into account, in consideration of the appropriate sentences, mitigating factors. If her assessment of objective gravity was correct, and the sentencing starting points therefore correct on that basis, some adjustment was called for in recognition of the mitigating features. This would have resulted in imposition of lower sentences.
44 Two questions arise:
+ is it correct that her Honour assessed the objective gravity of each offence by reference only to the objective features, without regard to other relevant, mitigating features?;
+ if so, was that incorrect?
45 The contention that the assessment of objective gravity was made on the basis of objective features, without regard to subjective features, gains some support from where it is to be found in the sequence of the sentencing remarks. Each assessment appears after a recital of the facts and consideration of the aggravating features, but before reference to subjective features or mitigating factors such as the applicant's prospects of rehabilitation (which her Honour found, effectively, were not good) and, more importantly, the contents of the psychological report setting out the applicant's background and history.
46 I would therefore infer that her Honour did approach the matter in the manner suggested on behalf of the applicant. Was that erroneous?
47 Sentencing judges have long been acquainted and familiar with the notion of making an assessment of the objective gravity of offences for which they are passing sentence, although, until recently, this has more commonly been done intuitively: see Regina v Way [2004] NSWCCA 131; 60 NSWLR 168, at [79].
48 The notion of formally and expressly placing any given offence in a range of objective seriousness of offences of its kind has come about as a result of the introduction into the Sentencing Procedure Act of Part 4, Division 1A, enacted in 2002, with effect from 1 February 2003. That legislation was comprehensively explained by this Court in Way. The Court construed the concept of objective seriousness, as contained in the legislation. Although Part 4 Division 1A does not apply to any of the present offences, there is no reason why the approach there outlined to the assessment of objective gravity, and which is relevant to objective gravity as distinct from subjective features, should not - and every reason why it should - extend to the concept of objective seriousness of offences not directly the subject of the Division.
49 At [86] the Court considered the circumstances which affect the seriousness of an offence. Some of these, the Court said, will be "personal to the offender at the time of the offence" but relevant because of their causal connection with the commission of the offence. Such matters include motivation, mental state, mental illness or intellectual disability where causally related to the commission of the offence. The distinction was expressed as follows:
"Such matters [matters relevant to the assessment of objective seriousness] can be classified as circumstances of the offence and not merely circumstances of the offender that might go to the appropriate level of punishment."
The Court classified other matters, such as those which explain or influence the conduct of the offender or otherwise impinge upon moral culpability (e.g. youth or prior sexual abuse), as more accurately described as circumstances of the offender and not of the offence.
50 Her Honour recognised that two of the mitigating factors specified by s21A(3) of the Sentencing Procedure Act were applicable. They were:
"(b) the offence was not part of a planned or organised criminal activity,
…
(k) a plea of guilty …"
Plainly, the plea of guilty cannot in any way affect the assessment of the objective seriousness of the offences.
51 The sentencing judge recorded that the case presented on behalf of the applicant in mitigation rested effectively upon three facts, which her Honour identified as:
"His self-induced intoxication; the manifestation of uncontrolled anger; and the sheer irrationality of his actions in the period."
52 The argument demonstrates the high level of refinement that has been introduced into the sentencing process, not least by the introduction of Part 4, Division 1A. As I have observed, that Division is not directly relevant to the present sentencing exercise; however, it is clear from the approach taken to this sentencing exercise that the procedures required by that Division have crept into sentencing in other cases.
53 I have come to the view that counsel for the applicant is correct in submitting that the assessment of objective gravity was made without regard to subjective circumstances, such as matters of motivation or mental state. That, however, was not, in the circumstances of this case, erroneous. There was nothing in the subjective case that affected the assessment of objective gravity. But counsel is correct in further submitting that, after that assessment was made, the sentences were not tempered by reference to the personal circumstances of the applicant relevant to the appropriate level of punishment, such as his unfortunate childhood and adolescence, affecting, although to a moderate extent only, his moral culpability. It is one thing to assess objective gravity without regard to subjective circumstances; it is another (and may denote error) then to fix a sentence by reference to objective gravity, excluding any mitigating features.
54 The difficulty, however, for the applicant is that her Honour's findings of fact in respect of these matters do not suggest that, had the correct approach been taken, a different result would have ensued. Her Honour was sceptical about the applicant's prospects of rehabilitation; more than once she noted that he had done nothing to address his problems and had little insight into his behaviour. She was also sceptical about his expressed remorse. There was little in the way of positive findings that would give the applicant comfort. The s21A(3) features that were held to be applicable, that I have already outlined, were meagre, limited to the pleas of guilty (for which the applicant received full credit) and the absence of planning or organisation in the offences.
55 I have given a good deal of consideration to the question of whether his background circumstances, as disclosed in the psychological report, were such as to reduce, in any significant way, his moral culpability, such as to have required the imposition of lesser sentences. I have come to the conclusion that they do not.
56 Accordingly, error in the result has not been demonstrated. I would reject ground 1 of the application.