De Jong v R; Tuimaualuga v R; Zechel v R; Puru v R

Court of Criminal Appeal (NSW)|2014-08-29|Before: Beazley P, Adams J, Fullerton J

(1st Applicant) T Gartelmann (2nd Applicant) A Cook (3rd Applicant) K Ginges (4th Applicant) P Ingram SC (Crown) Solicitors: O'Brien Winter Partners Pty Ltd (1st Applicant) Legal Aid NSW (2nd Applicant) Mandy Hull & Associates (3rd Applicant) John Hertz & Associates (4th Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2011/218064; 2011/218066; 2011/218069; 2011/219572; 2011/277328 Decision under appeal Court or tribunal: District Court Date of Decision: 29 January 2013 Before: Berman DCJ File Number(s): 2011/218064 2011/218066 2011/218069 2011/219572 2011/277328

Judgment

BEAZLEY P: I have had the advantage of reading in draft the reasons of Fullerton J. I agree with her Honour's reasons and the orders she proposes.
ADAMS J: I agree with Fullerton J.
FULLERTON J:

The application for leave to appeal against sentence On 29 January 2013, William John Zechel, Billy Pusa Tuimaualuga, Tahi Paul Puru and Daniel Warren De Jong were each sentenced on one count of specially aggravated break, enter and commit a serious indictable offence contrary to s 112(3) of the Crimes Act 1900 (NSW). The serious indictable offence was larceny and the circumstance of special aggravation as defined in s 105A(1) of the Crimes Act was the use of a shotgun/rifle.

Against a maximum penalty of imprisonment for 25 years and a standard non-parole period of 7 years, the following sentences were imposed: De Jong: Imprisonment for a non-parole period of 8 years and 6 months to commence on 4 October 2011 and to expire on 3 May 2020 with a balance of term of 4 years to expire on 3 May 2024. Tuimaualuga: Imprisonment for a non-parole period of 8 years and 6 months to commence on 21 November 2011 with a balance of term of 4 years. Zechel: Imprisonment for a non-parole period of 8 years to commence on 10 November 2012 and to expire on 9 November 2020 with a balance of term of 4 years to expire on 9 November 2024. Puru: Imprisonment for a non-parole period of 8 years to commence on 8 July 2012 with a balance of term of 4 years and 6 months. (Puru was sentenced in the same proceedings to a fixed term of 3 years for an unrelated break, enter and steal committed on 16 June 2011, which also took into account an offence on the Form 1. In the result, he was sentenced to a total effective sentence of imprisonment of 13 years and 6 months with a non-parole period of 9 years. The sentencing judge fixed the commencement date for the effective sentence at 7 November 2011. It seems that was an error and the sentence for the fixed term should have been ordered to commence on 7 July 2011. The custody records indicate that error has since been corrected. The sentence for the break, enter and steal offence has since expired. There is no challenge to that sentence.)
The sentences imposed on De Jong and Zechel reflected a 25 per cent discount for their early pleas on committal. Tuimaualuga's sentence was discounted by 10 per cent as his plea was entered somewhat later. Puru, who pleaded guilty on arraignment, had his sentence reduced by 25 per cent.

The grounds of appeal

Each of the applicants seek leave to appeal their sentences as manifestly excessive. In making good that challenge counsel for the applicants referred to a large number of authorities. For ease of reference they have been summarised and reproduced in a schedule which forms part of this judgment.
The applicants Zechel, Puru and De Jong also assert, as a separate ground of appeal, that the learned sentencing judge was in error in assessing their offending as approaching or "close to" a worst case of offending against s 112(3) of the Crimes Act.
Although not relied upon as a separate ground of appeal, as part of the challenge to the sentence imposed on Tuimaualuga as manifestly excessive, his counsel submitted that the range of conduct comprehended by s 112(3) was such that, even accepting that Tuimaualuga's offending was objectively serious, it was significantly less serious than close to a worst case, and the sentence was, for that additional reason, unreasonable and plainly unjust.
Of the three additional filed grounds of appeal relied upon by De Jong, only two were ultimately pressed, each dealing with the applicant's subjective circumstances in certain respects, including what was said to be a failure to consider the application of the Fernando principles (R v Fernando (1992) 76 A Crim R 58), given the applicant's age and Aboriginality. In his counsel's oral submissions, both grounds merged into the single complaint that the sentencing judge failed to give adequate weight to the extent of the dysfunction and social deprivation he was exposed to as a relatively young person, including the extent to which his use of drugs from an early age contributed to the criminality inherent in the offending for which he was to be sentenced.
Zechel's counsel also submitted that the date fixed by the sentencing judge for the commencement of his sentence on 10 November 2012 was in error and that, irrespective of the success of the ground of appeal alleging manifest excess, this error should be corrected. That error was finally identified in a supplementary ground of appeal and supplementary submissions. I am satisfied that the commencement date was fixed in error and the correct date, after taking into account Zechel's broken periods of pre-trial custody, should have been 20 September 2012 and not 10 November 2012.

The proceedings on sentence

The evidence tendered by the Crown in the joint sentence proceeding included a statement of facts, which appears to have been almost exclusively drawn from the statement of the principal victim, who was one of three adults in the house the applicants broke into and entered. The statement of facts was supplemented by a further statement prepared by a solicitor with the office of the Director of Public Prosecutions detailing the circumstances in which each of the applicants was arrested.
The criminal records of each of the applicants were also tendered by the Crown. Pre-sentence reports were tendered by the Crown in the sentence proceedings of Tuimaualuga and De Jong.
None of the applicants gave evidence on sentence. Tuimaualuga relied upon a psychological report from Ms Caroline Hare.

The reasons for sentence

Although the principal victim differentiated between the offenders according to their physical appearance and their conduct whilst in the house, including whether they were armed, what they were armed with and the nature of the threats that they delivered, the sentencing judge referred to the conduct of the offenders without differentiating between them. In effect, his Honour treated them for sentencing purposes as if they were part of a joint criminal enterprise. His Honour noted that there was no submission from the Crown or the offenders that he should do otherwise.

The facts

In the early hours of 4 July 2011 the male victim was at home with his girlfriend and her four children. The children ranged in age from two to ten. The adults and the infant were asleep in the lounge room while her brother and the other three children slept in another room. At about 3am they were woken by a loud banging at the front door. After gaining entry, one of the offenders armed with a single barrelled rifle pointed the rifle at the male's head and told him to "shut up". (Although the statement of facts describes one of the offenders carrying a "double barrelled firearm" the sentencing judge does not refer to it in the sentencing remarks.)
The offender with the rifle then pointed it at the woman a few inches from her face, and pulled the trigger. The trigger clicked but did not discharge a bullet. That offender repeatedly yelled, "Where's the fucking money, where are the phones, where are your wallets?".
All four offenders then went into the kitchen and started pulling out drawers and tipping them onto the ground. One offender grabbed meat from the freezer whilst another grabbed the contents of a coin tin.
One offender then left the kitchen and walked towards the bedrooms. As he walked past the male, he hit his left temple, either with his fist or with the butt of his rifle, causing pain and residual soreness but without inflicting any physical injury. The woman's brother and the three other children were in one of the bedrooms. He informed the other offenders, one of whom joined him in demanding money and phones from the adult male in the bedroom. The other two offenders remained in the kitchen searching through the cupboards before also entering the hallway leading to the bedrooms.
One of the offenders threatened to assault the male victim if he did not reveal the location of cash and drugs. Despite the male victim claiming he had neither, the offender repeated his demands. Two laptops were seized from one of the bedrooms.
At this time, one of the offenders was holding a knife roughly 30cm in length in his left hand and a taser in his right hand. He pointed the knife at the male victim and told him to put the laptops in a laptop bag. He then pointed the knife at the woman and said, "What's the fucking password for the laptop?". Although she told him there was no password, she was forced to turn the computer on to confirm that was the case.
The offenders then demanded the keys to the victim's car in order to search it. The male victim told the offenders that he did not know where the keys were. The offender who was armed with the taser activated it causing it to emit a spark and a loud electrical noise. He then threatened the victim with the taser saying, "Do you fucking want it?".
As the offenders left, one of them said, "If we find out you have got more money, we will be coming back".
Although the woman's brother and her three older children remained in the bedroom at all times, the eldest child (a ten year old girl) was said to have understood what was happening elsewhere in the house. The infant, although present in the lounge room throughout the incident, was unaware of what was occurring.
The applicants Zechel, Tuimaualuga and De Jong were arrested by police after the car in which they were travelling was stopped soon after for the purpose of a random breath test. The car was searched. Weapons and stolen items were located. Puru, who was not in the car, was arrested a short time later.

The remarks on sentence

The sentencing judge commenced his remarks on sentence with the following observation: Home invasions are all serious offences but some are worse than others. The offence I am about to describe is getting close to the worst kind of offence of that type. … the four offenders … carried on their terrifying and violent conduct in the presence of not only frightened adults but also in the presence of children. Common decency and humanity might have led two these offenders altering their behaviour once they became aware that they were going to commit their serious, violent and terrifying conduct in the presence of young children. One might have thought they would immediately turn and leave, but they did not. They persisted in what they had planned to do. They deserve to go to gaol, each of them, for a long time simply to reflect the objective gravity of the criminal conduct.
After observing later in the sentencing remarks that the maximum penalty for an offence is reserved for offending in the worst category, and the fact that it is possible to imagine criminal conduct of a worse kind than that under consideration is not the test to be applied in determining whether particular criminal activity comes within the worst category, the sentencing judge said: It has to be said that the behaviour of the four men that morning is approaching the worst category of offending of this type.
His Honour appeared to base that finding on what he (with respect, rightly) found must have been the intense fear engendered by the behaviour of the offenders in the house rather than the infliction of physical violence, which he accepted was relatively minor when compared with other instances of home invasion. He described the conduct of the offenders as "serious", "terrifying" and "violent" and, in particular, that pointing the rifle at the head of the female occupant and pulling the trigger only inches away from her face was designed to "create awful feelings and apprehension" to ensure that all occupants of the house would comply with the demands made of them.
In so far as the children were concerned, his Honour accepted that only the youngest was actually present in the lounge room where most of the activity took place and that the other children remained in the bedroom. His Honour went on to say: The invaders cannot suggest that they were not even aware that the two year old was there because at one stage they suggested that her face be covered. This was relied upon by the offenders, or at least some of them as suggesting that they retained a modicum of decency and feelings towards the young child. I find that difficult to accept. Even if such actions do show a small amount of compassion, it is swamped, it is overwhelmed by the inhumanity that they otherwise displayed early that morning.
His Honour did not refer to the fact that, according to the victim's statement, the infant did not seem to understand what was happening and that she did not seem to him to be upset.

The applicants' subjective circumstances

Although his Honour did not differentiate between the offenders in his assessment of the objective seriousness of their offending, he concluded that there were differences in their subjective cases, and that different sentences would be imposed to reflect that fact. The precise basis for the differentiation of six months in the total sentences of 12 years imposed on Tuimaualuga and Puru on the one hand, and 12 years and 6 months on De Jong and Zechel on the other, is not clear from the sentencing remarks. His Honour also made a finding of special circumstances with a corresponding adjustment to the statutory ratio between the non-parole period and additional term for each of the applicants although he gave no reasons for doing so. It is again unclear from the sentencing remarks what aspects of the applicants' subjective cases were relied upon to support a finding of special circumstances and what features of their subjective cases bore upon the appointment of an appropriate sentence for each of the offenders. The only reference to the fact that special circumstances were found was after sentences had been imposed where his Honour said, "It will be obvious I have made a finding of special circumstances in each case".
De Jong and Puru submitted that the sentencing judge failed to give appropriate weight to their respective subjective cases in particular respects and that their sentences were excessive for that reason. Although neither Zechel nor Tuimaualuga make a similar complaint (and although none of the applicants complain about any unjustified disparity between their sentence and that of any co-offender referable to differences in their subjective circumstances), the evidence bearing upon the subjective circumstances of each of the applicants should be set out at least in summary.

Mr Zechel

Zechel was aged 40 at the time of sentence. Although he had a criminal history, his Honour was satisfied that it revealed that the subject offending was out of character. Otherwise, he observed that he knew little of the applicant's subjective circumstances. No pre-sentence report had been prepared for the purposes of the sentence proceedings and the applicant did not give evidence. His Honour rejected the submission advanced on Zechel's behalf that he was remorseful, there being no evidence to justify that finding.

Mr Tuimaualuga

Tuimaualuga was aged 39 at the time of sentence. He is the eldest child to Samoan parents. He was born in New Zealand and later migrated to Australia. None of his siblings has a criminal history. Tuimaualuga's criminal history revealed no offences of break, enter and steal and only one offence of assault occasioning actual bodily harm, which was dealt with by way of a fine. His Honour also observed that Tuimaualuga had spent seven years as a youth worker and that his arrest and charge have been a source of great shame to him, after encountering some of his former clients as a remand prisoner. His Honour also noted that Tuimaualuga has a sound work history and was working in the mining industry earning a good income at the time that he committed the offence.
His Honour noted that Tuimaualuga told the psychologist that he was using excessive quantities of drugs and alcohol at the time of the offence and had no memory of being involved in the home invasion. His Honour accepted that this explained the lateness of his plea of guilty in that it was only after Tuimaualuga spoke with his co-offenders that he accepted that he was in fact present during the home invasion with them.
Despite the lateness of the plea and the fact that Tuimaualuga gave no evidence on his own behalf, the sentencing judge accepted that he was genuinely remorseful.

Mr De Jong

De Jong was aged 25 at the time of sentence. His criminal history, which commenced when he was a juvenile, included repeated appearances before the Children's Court. His criminal record as an adult included what his Honour described as "some relatively serious matters … such as break, enter and steal and aggravated robbery". He was the subject of two s 9 bonds at the time of the offending.
His Honour noted that De Jong was the second of four siblings and that he lived with his parents before his arrest. The applicant described a supportive relationship with all his family members, which was confirmed by his mother in an interview with the Probation and Parole Service, but blamed irregular contact with his biological father for his dysfunctional upbringing.
De Jong did not complete high school after being expelled during Year 8. He has problems with literacy and numeracy, which various orders for probation and community supervision have endeavoured to address. He has never been employed but has been in receipt of a disability pension following an injury to his foot at the age of 15.
He commenced using drugs at a relatively early age and was using alcohol to excess at the time of the offending. (Although his Honour made no reference to it, in the pre-sentence report this was said to have commenced at 13 with daily cannabis use, alcohol abuse at age 15 and the use of "ice" at age 18.) His Honour was satisfied that substance abuse was "likely to have been the major factor" in the applicant's offending.
In considering the impact of that finding on sentence his Honour said: Various courts have looked at the issue of whether drug use and drug addiction can be a mitigating factor. True it is that Mr De Jong's use of drugs began at an early age but many people would be concerned at any suggestion that a person who decides to continue to use drugs and to continue to commit offences to satisfy that drug addiction should receive a lower penalty simply because of that circumstance. Mr De Jong's drug addiction may explain what he did but a motivation consisting of a desire to continue to commit other offences (buying and using drugs) by committing this serious offence can not (sic) have a significant effect by way of reducing the sentence that I must impose upon him.
His Honour was satisfied that De Jong's expressions of remorse to the author of the pre-sentence report were genuine and that he showed some insight into his offending by acknowledging that his lack of pro-social activities and his choice of antisocial peers contributed to his offending behaviour, and that he needed assistance in the future in order to avoid any repetition of that conduct.

Mr Puru

His Honour noted that Puru, being 25 at the time of sentence, was significantly younger than Zechel or Tuimaualuga but that he had a more extensive criminal record, including offences of violence.
Puru also had a disrupted childhood, including a period of time where he was living on the streets. His parents intervened and arranged for him to live in New Zealand with his father's family. That intervention was not entirely successful as he committed a number of offences in New Zealand. On his return to Australia, Puru lived with his mother for a short time before leaving to live on the streets.
His Honour noted that Puru had some work qualifications but no significant employment since leaving school. He was working in a factory but had been unemployed for about four months at the time of the offences after his employment was terminated for non-attendance.
Puru commenced using drugs and alcohol at a very young age and was described by his Honour as a "heavy user of drugs" by his mid-teens. Puru was indebted to drug suppliers at the time of his offending, which his Honour was satisfied motivated him to commit the offence, along with the desire to "get more drugs". Puru acknowledged that his drug use was related to his offending behaviour.
In considering the impact of that finding on sentence, his Honour said: I have to say that using drugs is a very selfish activity. It also must be remembered that it is an illegal activity. It does not at all reflect well on Mr Puru that what motivated him to get involved in this most terrifying offence was simply so that he could pay off drug debts and get more drugs. … What I have learnt about Mr Puru, when dealing with this matter, is that he will, unless he changes his ways, continue to use drugs and that will result in a continuation of offending unless he is prepared to do something about the way he has lived his life until now…

Some general observations

Although, as noted earlier, the sentencing judge considered that there were differences in the subjective circumstances of each of the applicants, the basis upon which De Jong and Puru were sentenced to 12 years and 6 months and Tuimaualuga and Zechel 12 years was never made clear. In addition, although his Honour departed from the standard non-parole period by an increment of one year in the non-parole period as part of the sentences imposed on Puru and Tuimaualuga, and one year and eight months in the sentences imposed on Zechel and De Jong, he made no reference to the operation of s 54B(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which obliges a sentencing judge to give reasons for setting a non-parole period longer than the standard non-parole period.
As to the maximum penalty and the standard non-parole period his Honour said as follows: The maximum penalty for the offence of specially aggravated break, enter and steal is 25 years imprisonment. It carries a non-parole period of 7 years [sic]. I have taken into account both the maximum penalty and the standard non-parole period in formulating the appropriate sentences in this case. My reasons for not imposing the standard non-parole period are to be found in these remarks on sentence.
In Muldrock v The Queen [2011] HCA 39; 244 CLR 120, the High Court said at [29]: A central purpose of Div 1A is to require sentencing judges to state fully the reasons for arriving at the sentence imposed. The reference in s 54B(4) to "mak[ing] a record of its reasons for increasing or reducing the standard non-parole period" is not to be understood as suggesting either the need to attribute particular mathematical values to matters regarded as significant to the formation of a sentence that differs from the standard non-parole period, or the need to classify the objective seriousness of the offending. It does require the judge to identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed. The obligation applies in sentencing for all Div 1A offences regardless of whether the offender has been convicted after trial or whether the offence might be characterised as falling in the low, middle or high range of objective seriousness for such offences.
The Crown submitted that the Court would infer that the finding that the offending approached a worst case which led the sentencing judge to impose non-parole periods for each of the applicants which exceeded the standard non-parole period. Assuming that was the unstated reasoning of the sentencing judge, it follows that if the assessment of the offending as close to or approaching a worst case was in error, as contended for by the applicants on the appeal, it will be likely, perhaps inevitable, that, subject to the operation of s 6(3) of the Criminal Appeal Act 1912 (NSW), the appeals will be allowed and this Court will re-sentence the applicants.
In Kentwell v The Queen [2014] HCA 37, the approach to the interpretation of s 6(3) of the Criminal Appeal Act in Baxter v The Queen [2007] NSWCCA 237; 173 A Crim R 284 was held to be correct. At [42] the Court said: … 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.
Leaving to one side for the moment the applicants' challenge to their sentence as manifestly excessive (which in a practical sense involves consideration of the separate ground of appeal mounted by Puru, Zechel and De Jong that his Honour's assessment of the objective seriousness of the applicants' offending disclosed patent error), for the Crown to invoke s 6(3) of the Criminal Appeal Act in this case it must satisfy this Court that the applicants' offending was nonetheless above the mid-range of objective seriousness, even if not approaching a worst case, and that the sentences imposed, including, in particular, non-parole periods greater than the standard non-parole period by a year in the cases of Tuimaualuga and Puru and a year and six months in the cases of De Jong and Zechel, were otherwise appropriate. Subject only to De Jong succeeding in the separate challenge he mounts to the way in which the sentencing judge dealt with his subjective circumstances, if the objective seriousness of the offending is as grave as the Crown submitted on the appeal, it may follow that no lesser sentence is warranted in law such that each of the appeals would be dismissed.
The applicants' counsel relied upon a representative number of cases involving breaches of s 112(3) of the Crimes Act objectively much graver than the offence for which the applicants were sentenced but which attracted sentences less severe than that imposed upon the applicants, and in some cases markedly so. There are other cases to which the Court was referred where what appears to be offending of comparable seriousness has attracted sentences markedly less severe than those imposed in this case, including some cases where the offending was aggravated by being committed whilst on conditional liberty and where the offender or offenders had records for violence. The cases to which the Court was referred include sentences imposed both before and after the introduction of Part 4 Div 1A of the Crimes (Sentencing Procedure) Act.
The applicants' counsel accepted the limitations on the use that can be made of extrinsic material when challenging a sentence as manifestly excessive (see Hili v R; Jones v R [2010] HCA 45; 242 CLR 520 at [54]). They submitted, however, that in this case, when the whole of the circumstances that have informed sentences in the cases to which the Court was referred for both comparable and more serious offending are examined, the conclusion is inescapable that the sentences imposed on the applicants were manifestly excessive, that is, demonstrably "unreasonable or plainly unjust". The same authorities are relied upon in support of the ground of appeal that identifies patent error in the sentencing judge categorising the offending as approaching a worst case.

Was there error in the assessment that the offending was or approached a worst case?

The determination of whether a case is in the worst category of offending, or approaching the worst case category relative to the particular offence under consideration, is undertaken on the basis that there are no specific criteria applying to the assessment. Rather, it depends upon an evaluation of the particular features of the offence under consideration, as established by the evidence, including any aggravating features required to be taken into account as a matter of law.
In Little v R [2010] NSWCCA 210 at [31], where that principle was recently restated, Hall J (with whom Macfarlan JA and Simpson J agreed) endorsed the correctness of the approach to whether a case is in a worst case category as requiring the identification of particular features of the offending of very grave heinousness and the absence of factors mitigating the seriousness of the offending, as distinct from subjective features of the offender which might operate in mitigation of sentence. The Court went on to say: … In cases of violence, the effects of the offence upon the victim or victims in terms of physical injury and consequent impairment and disability and emotional and psychological consequences are to be considered.
Section 112(1) of the Crimes Act provides: 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.
Circumstances of aggravation capable of constituting a breach of s 112(2) are defined in s 105A(1) as follows: circumstances of aggravation means circumstances involving any one or more of the following: (a) the alleged offender is armed with an offensive weapon, or instrument, (b) the alleged offender is in the company of another person or persons, (c) the alleged offender uses corporal violence on any person, (d) the alleged offender intentionally or recklessly inflicts actual bodily harm on any person, (e) the alleged offender deprives any person of his or her liberty, (f) the alleged offender knows that there is a person, or that there are persons, in the place where the offence is alleged to be committed.
The offence for which each of the applicants were sentenced involved multiple offenders (ss (b)), some of whom were armed with weapons (ss (a)), who entered the victims home knowing persons were present (ss (f)), and where at least one offender inflicted corporal violence (ss (c)).
At the time the offence was committed by these applicants, the circumstances of special aggravation capable of constituting a s 112(3) offence were defined in s 105A(1) as follows: circumstances of special aggravation means circumstances involving either or both of the following: (a) the alleged offender wounds or intentionally or recklessly inflicts grievous bodily harm on any person, (b) the alleged offender is armed with a dangerous weapon. In considering the number of aggravating or specially aggravating factors present is necessary to consider the severity of those factors both individually and in combination. (The Crimes Amendment (Reckless Infliction of Harm) Act 2012 (NSW) amended the definition following Blackwell v R [2011] NSWCCA 93; 81 NSWLR 119.)
In this case, the assessment of the objective seriousness of the offending for which each of the applicants was sentenced, including whether it could properly be described as close to or approaching the worst case category (a matter the sentencing judge raised directly with counsel for each of the applicants), had to be considered in the context of an offence which covers a diverse range of offending. The objective seriousness of a breach of s 112(3) will necessarily vary depending first upon the particular serious indictable offence nominated in the charge as the offence committed after the premises were broken into and entered and the maximum penalty provided for that offence. For example, larceny (the serious indictable offence involved here) is punishable by a term of 5 years while sexual assault and other offences of violence, also serious indictable offences for the purpose of the section, provide greater maximum penalties. The circumstances of special aggravation, and in any particular case the interplay of other aggravating or mitigating factors, are also relevant considerations in an assessment of objective seriousness. Those same factors may, in a given case, also justify a finding of offending in a worst case category where the features of the offending are extremely grave with nothing to mitigate them.
Similar observations in the context of assessing the objective seriousness of offending against s 112(2) were made by Simpson J in R v Huynh [2005] NSWCCA 220 at [27] and by Howie J in Marshall v R [2007] NSWCCA 24 at [34]-[37], observations which apply equally in the context of offending against s 112(3) providing for a maximum sentence of 25 years imprisonment for the specially aggravated form of the s 112(1) offence.
In Gray v R [2007] NSWCCA 366 at [28], also in the context of the Court considering a severity appeal for an offence against s 112(2), Adams J emphasised the importance of differentiating between offences committed in breach of s 112(2) where force is used and those where actual injuries were inflicted. Again, those observations are of equal application when sentencing for a breach of s 112(3).
It is clear that a breach of s 112(3), which requires proof that the offence was committed in circumstances of special aggravation, may involve wounding or the intentional or reckless infliction of grievous bodily harm, in addition to the offender being armed with a dangerous weapon. In this case, the circumstance of special aggravation was limited to the fact that the offenders (or one or more of them) were armed with a dangerous weapon.
The offence also involved aggravating factors (not amounting to circumstances of aggravation or special aggravation), including that the offence was committed in the victims' home, in the presence of children and involved multiple victims in the sense that the adult occupants were threatened with physical violence: see ss 21A(2)(ea), (eb) and (m) of the Crimes (Sentencing Procedure) Act (although the sentencing judge did not refer to the statutory features of aggravation in s 21A in such terms).
The sentencing judge did not undertake any analysis of the applicants' offending, either referable to the constituent elements of the offence as particularised in the charge or as established by the evidence, preferring, it appears, to support the finding of offending approaching the worst case of a home invasion at a level of considerable generality, describing the offenders' behaviour as "serious, violent and terrifying conduct in the presence of young children". Although his Honour referred to the fact that there was what he described as "limited actual violence", he went on to say: … but, as I hope to have made clear, the intense fear that must have been occasioned in the residence of the home (sic) that morning is enormous.
Without minimising the seriousness of the offence for which each of the offenders were to be sentenced (and noting that counsel did not submit that the gravity of the offending was anything but serious), in characterising the offending as a "home invasion" it follows that it involved breaking and entering a private residence. Given the fact that the applicants, or some of them, were armed when they broke into the home in the early morning, and that his Honour found the offence was planned, it is unsurprising that the occupants, roused from sleep and confronted by the armed intruders, would be terrified and that the terror would mount as repeated demands were made to produce drugs or money that were not available to be surrendered, some threats being made at gunpoint. What distinguished this case from others to which the Court was referred on the appeal, some of which were found to be at or above mid-range offending, was that no violence was inflicted and no physical or psychological injury was inflicted. In my view, for his Honour to have described the offending in these circumstances as close to or approaching a worst case was an error. The evidence did not support that finding. It is an error which has infected the sentencing judge's fact finding exercise and his Honour's approach to the assessment of worst case offending. For that reason, the sentence is properly reviewable by this Court (see AB v R [2014] NSWCCA 339 at [40] and [55]).
Neither sentencing statistics nor past sentencing decisions fix a range within which a sentence might or should fall. Sentences imposed in other cases do not dictate whether a sentence under challenge is beyond the exercise of a permissible sentencing discretion, although they may inform that question (see Barbaro v R; Zirilli v R [2014] HCA 2; 305 ALR 323 at [28] and [41]). I am satisfied, however, that the primary ground of appeal advanced by each of the applicants (that their sentences were manifestly excessive) is amply demonstrated by a review of sentences imposed in other cases of home invasion reflected in the attached schedule. In particular, Shrikantharajah v R [2012] NSWCCA 209 and Sheen v R [2011] NSWCCA 259; 215 A Crim R 208 are both cases where offending of an objectively much graver kind has attracted sentences of markedly less severity.
Despite the seriousness of the offending, which I would assess as less than mid-range, principally because no actual violence, as distinct from threats of violence, was inflicted, no serious injury suffered and there is no evidence of trauma suffered by the children, the sentences imposed on each of the applicants, including the imposition of non-parole periods that exceeded the standard non-parole period, were so excessive as to be "unreasonable or plainly unjust".

Re-sentence

Before turning to the question of re-sentence, it is necessary to refer to the ground of appeal advanced by De Jong that the sentencing judge minimised the impact of his dysfunctional upbringing and his exposure and addiction to drugs from a very early age. While the weight to be attached to those matters would ordinarily need to be considered as part of the evidence on re-sentence, supplemented by any material capable of further informing his subjective circumstances at this time, the material upon which his counsel relied on re-sentence included a report from Dr Furst, a forensic psychiatrist, a report that was not before the sentencing judge.
Dr Furst reported that De Jong had an unstable and "unfortunate" childhood and noted alcohol and drug use by one or both of De Jong's parents during his childhood. He also noted De Jong's history of learning difficulties and that he had been diagnosed with ADHD at age 10 or 11. As to the applicant's drug and alcohol use, he noted that he commenced using cannabis around the age of 9, graduating to amphetamines and alcohol in his early twenties. Dr Furst also noted the trauma that De Jong suffered following the injury to his foot when he was aged 15. Dr Furst reported that De Jong did not present with any clinical indicators of a major mental illness or psychosis. However, he presented with a "simple manner" and was not very expansive under questioning, which, in Dr Furst's view, raised the possibility that he suffers from a mild intellectual disability.
Dr Furst also reported that the neglect De Jong suffered as a child predisposed him to developing a conduct disorder as he progressed through adolescence. Nonetheless, he was of the view that the primary clinical concerns that De Jong presented with on assessment relate to an unstable personality structure, drug dependence and adjustment issues in custody. Dr Furst recommended that De Jong remain under the supervision of mental health services administered by Justice Health, that he continue to take the anti-depressant medication prescribed to him and undertake treatment for substance abuse.
The Crown submitted that, were this Court to find error and move to re-sentence, De Jong's sentence should be remitted to the District Court in order that the issues relating to his mental functioning might be further explored and in order that the Crown might make, in that forum, an informed decision as to the ultimate position it should take in sentencing submissions. I regard that as the appropriate course.

Evidence led on re-sentence by Mr Zechel and Mr Tuimaualuga

Mr Zechel

An affidavit from the applicant, dated 9 April 2014, annexing a psychological report from Ms Rima Nasser, dated 14 March 2014, was read without objection. In the affidavit, the applicant deposed to having been continuously employed in positions of trust and responsibility during his time in custody and having completed a number of numeracy and literary courses. He had commenced a drug rehabilitation program but was unable to complete it as the convenor left that position. He is currently on a waiting list to resume that program and other programs directed to his adjustment on his release to parole.
The psychological report from Ms Nasser included a detailed history based on what the applicant told her during his assessment interview. In Ms Nasser's opinion, neither Zechel's history nor his presentation indicated an entrenched proclivity for violence or aggression, nor did he appear inherently anti-social. In her view, his substance abuse and gambling problems have resulted in poor impulse control (contributing to his offending behaviour). Ms Nasser reported that the applicant has average intellectual functioning and described his offending behaviour as best understood within the context of a hedonistic lifestyle. She also reported that he was motivated to participate in psychological and substance abuse intervention programs, and recommended that he be treated by a psychologist to assist him in managing stress with a view to his long-term rehabilitation.
I am satisfied that the applicant has demonstrated insight into his offending, having acknowledged the terror that must have been experienced by the victims and is ashamed of his participation in inflicting that terror. Ms Nasser reported that he expressed remorse and empathy for the victims, which I accept as genuine.

Mr Tuimaualuga

An affidavit from the applicant, dated 22 August 2014, was read without objection on re-sentence, in which he deposed to his willingness and desire to address his "core mental health issues" and, in particular, issues relating to his drug and alcohol dependency. The applicant stated that, on the recommendation of a psychologist from Justice Health, he had commenced a course of anti-depressant medication, which has assisted him in reducing his anxiety and in addressing his depression. He also raised concerns about the limited access he believes he would have to psychologists and intervention programs whilst in custody.

Mr Puru

No evidence was provided in the case of re-sentence in respect of Puru.

Decision on re-sentence

Counsel did not submit that this Court should attempt to differentiate between the criminal conduct of any of the three applicants for the purposes of re-sentence (or, for that matter, the criminal conduct of the applicant De Jong, whose matter is to be remitted to the District Court). Neither did any counsel seek to urge upon the Court that the subjective circumstances of their client (individually by the evidence led on re-sentence in the cases of Zechel and Tuimaualuga) should, relative to any co-offender, attract greater weight in the ultimate assessment of an appropriate sentence.
That does not relieve this Court of undertaking that exercise as part of the instinctive synthesis of all matters material to the appointment of an appropriate sentence. Some features of the subjective cases of each of the applicants, notably their favourable prospects of rehabilitation, which if not specifically accounted for in the finding of special circumstances by the sentencing judge well support a finding of special circumstances in the re-sentencing exercise. While there are other features of the applicants' subjective circumstances which differ, for example some differences in their ages and criminal antecedents, I do not consider they warrant being reflected in any difference in the undiscounted sentences.
I also note that the offence for which the applicants are to be re-sentenced carries a standard non-parole period of 7 years, which, together with the maximum penalty of 25 years operates as a statutory guidepost. In this case, I propose a departure from the standard non-parole period given my finding that the offending conduct falls below the mid-range of offending in conformity with the comparative cases in the attached schedule.
After allowing for a 25 per cent for the plea of guilty in the case of Puru and Zechel, and 10 per cent in the case of Tuimaualuga who pleaded guilty proximate to the date of trial, I propose the following orders: 1. The appeals of each of William John Zechel, Tahi Paul Puru, Billy Pusa Tuimaualuga and Daniel Warren De Jong be allowed. 2. The sentences imposed in the District Court in respect of the charge laid under s 112(3) of the Crimes Act be quashed and in respect of William John Zechel, Tahi Paul Puru and Billy Pusa Tuimaualuga, the following sentences be imposed: 1. William John Zechel: Imprisonment for a non-parole period of 4 years and 6 months to commence on 20 September 2012 and to expire on 19 March 2017, with a balance term of 3 years to expire on 19 March 2020. 2. Tahi Paul Puru: Imprisonment for a non-parole period of 4 years and 6 months to commence on 8 July 2012 and to expire on 7 January 2017, with a balance term of 3 years to expire on 7 January 2020. 3. Billy Pusa Tuimaualuga: Imprisonment for a non-parole period of 5 years and 4 months to commence on 21 November 2011 and to expire on 13 April 2017, with a balance term of 3 years and 7 months to expire on 20 November 2020. 1. Direct that the matter in respect of Daniel Warren De Jong be remitted to the District Court for re-sentencing in accordance with these reasons.
After the reasons of the Court were published, the Court's attention was drawn to an error with respect to the expiration date of the non-parole period and the total term for Billy Pusa Tuimaualuga in the orders of the Court made on 13 March 2015. This was the result of a calculation error. The non-parole period should expire on 20 March 2017, not 13 April 2017, and the balance of term should expire on 20 October 2020, not 20 November 2020. Accordingly, order 2(c) made on 13 March 2015 is vacated. Order 2(c) will now read: Billy Pusa Tuimaualuga: Imprisonment for a non-parole period of 5 years and 4 months to commence on 21 November 2011 and to expire on 20 March 2017, with a balance term of 3 years and 7 months to expire on 20 October 2020.

SCHEDULE OF SIMILAR CASES R v Chaaban [2006] NSWCCA 107 1x s 112(3) offence. Serious indictable offence: maliciously inflict GBH. Circumstance of aggravation: committed in company, multiple victims, series of criminal acts, infliction of GBH - 50% discount for plea of guilty, contrition and assistance to police - six offenders armed with knives and a gun, respondent armed with knife - 5 victims attacked in home at night, adult male victim's forearm bone severed with machete, two female victims sexually assaulted by co-offenders - respondent's role limited to detaining two young male victims and chasing adult male victim when he attempted to escape with two co-offenders - both parents killed during respondent's infancy, no stable family life, two separate guardians violent towards respondent as child, suffers depression, suicidal ideations and slight intellectual disadvantage - CCA described childhood as "horrendous" - finding of special circumstances - CCA find difficult to describe offence as low to mid level of the range, but did not re-categorise. Non-parole period of 2 years with an additional term of 1 year and 6 months. Appeal allowed. Re-sentenced to non-parole period of 2 years and 6 months with an additional term of 2 years and 6 months. Milane v R [2006] NSWCCA 281 1x s 112(3) offence. Serious indictable offence: assault occasioning ABH. Circumstance of special aggravation: armed with dangerous weapon - Two offenders - plea on first day of trial (discount unspecified) - armed with replica pistol pointed at victim's head - offenders impersonated police from Drug Squad - victim forced from room to room at gunpoint - actual violence inflicted (victim's face punched) and threats of violence (to shoot victim) - injuries included depressed skull fracture and psychological injuries - offence committed for the purpose of obtaining money and drugs - offender on conditional liberty at time of offending - other offences on a Form 1 - drug addicts - intoxicated at time of offence - special circumstances due to need for supervision in rehabilitation program. Non-parole period of 4 years and 4 months with an additional term of 2 years and 6 months. Appeal dismissed. R v Van Rysewyk [2008] NSWCCA 130 1x s 112(3) offence. Serious indictable offence: larceny. Circumstance of special aggravation: wounding - 10% discount for plea of guilty - two offenders - respondent armed with knife - attacked victims, aged 81 and 72, in their bed, male victim stabbed in thigh through muscle and fascia to bone, not clear which offender caused injury, female victim did not sustain injuries - previous conviction for robbery in company, on conditional liberty at time of offending for possess prohibited drug - history of substance abuse - offending above mid-range to "substantial degree". Non-parole period of 3 years and 6 months with an additional term of 3 years. Appeal allowed. Re-sentenced to non-parole period of 5 years with an additional term of 3 years and 7 months. Non-parole period of 4 years with an additional term of 4 years. R v Baghdadi [2008] NSWCCA 239 1x s 112(3) offence. Serious indictable offence: threaten and intimidate. Circumstances of special aggravation: armed with dangerous weapon - two offenders - 25% discount for guilty plea - victims threatened with firearm and held to head of child (aged 17) until access given to family safe while forcing him to his knees and discharging the firearm in close proximity to back of his head - other occupants present - co-offender urged respondent to shoot victim - rifle stolen together with $23,000 and jewellery - impact on victims was substantial- applicant on bail at time of offending - finding of special circumstances first time in custody, youth and need to deal with substance abuse - intellectual ability in bottom 3% of population - finding of offending within mid-range. Crown appeal successful - re-sentenced to a non-parole period of 5 years with an additional term of 4 years. Court found that the s 112(3) offence was "extremely serious" given the discharge of the firearm and the use of it to threaten the young male occupant, leaving victim severely traumatised. Even with the guilty plea, the sentence was manifestly inadequate given its objective seriousness. Non-parole period of 6 years with an additional term of 3 years. Micklesson v R [2009] NSWCCA 61 1x s 112(3) offence. Serious indictable offence: assault occasioning ABH. Circumstances of special aggravation: armed with shotgun - four offenders, applicant 18 - plea of guilty (discount unspecified)- offenders armed with shot gun, baseball bat and knife -actual violence inflicted, one victim struck with baseball bat and another victim wounded with machete - discharged firearm three times into walls and door- offence committed for the purpose of obtaining money- offending "well above mid-range" - on conditional liberty at the time of offending - no significant criminal record - finding of good prospects of rehabilitation and remorse, applicant's youth warranted departure from standard non-parole period despite offending being "well above mid-range". Appeal dismissed. No challenge to offending being "well above mid-range". R v Cheh [2009] NSWCCA 134 1x s 112(3) offence. Serious indictable offence: wounding with intent to cause GBH. Circumstances of special aggravation: wounding with intent to cause GBH - 25% discount for plea of guilty - victims were ex-partner of offender and her new partner -20 month old child of offender and victim present - actual violence involved dragging female victim to kitchen by hair and stabbing her in the chest and applying knife to her throat. She suffered defensive injuries to her hands - offender intoxicated - criminal history including offences of violence - on conditional liberty at time of offending - Form 1 offence of deemed supply - finding of remorse - mental illness, alcohol addiction and good prospects of rehabilitation, finding of special circumstances - finding of mid-range offending, "perhaps below". Non-parole period of 3 years and 9 months with an additional term of 1 year and 3 months. Crown appeal dismissed in exercise of Court's residual discretion. R v Dole; R v Nguyen [2010] NSWCCA 101 Each offender 1x s 112(3) offence. Serious indictable offence: reckless wounding. Circumstances of special aggravation: committed in company, respondents armed with iron bar, corporal violence - 15% discount for plea of guilty - victim attacked with iron bar - respondent Nguyen believed victim sexual assaulted his sister - victim sustained lacerations and haematomas to head requiring 17 stitches and abrasions to lower limbs, continuing mental trauma -one offender suffered from major depressive illness, the other had dysfunctional upbringing - no prior convictions, good prospects of rehabilitation, demonstrated remorse - finding of mid-range offending. Non-parole period of 5 months with an additional term of 15 months. Appeal allowed. Both offenders re-sentenced to non-parole period of 2 years with an additional term of 1 year and 4 months. Sheen v R [2011] NSWCCA 259 1x s 112(3) offence. Serious indictable offence: wounding with intent to cause GBH. Circumstance of special aggravation: intentional wounding- convicted after trial - offender armed with a knife - actual violence inflicted, vase smashed over head of victim and pieces of broken vase used to cut victim's throat and face, knife wounds to kidney - victim's wallet and mobile phone stolen - significant criminal history, including offences of violence - on conditional liberty at time of offending - drug abuse - guarded prospects of rehabilitation - "but for" respondent's psychiatric illness offending would be mid-range. Non-parole period of 7 years with an additional term of 3 years. Appeal allowed. Re-sentenced to non-parole period of 5 years and 3 months with an additional term of 1 year and 9 months after finding Muldrock error. For the first offence (against victim 1), non-parole period of 4 years with an additional term of 3 years. Shrikantharajah v R [2012] NSWCCA 209 2x s 112(3) offences. Serious indictable offence: intimidation. Circumstance of special aggravation: intentional infliction of GBH - offence committed in company - 25% discount for plea of guilty - offenders armed with cricket stumps, steel bars, a knife and bottle containing caustic soda -significant injuries inflicted - both victims attacked with caustic soda - stab wounds requiring surgery, fractured finger, a broken ankle and face scarring from caustic soda in respect of victim one - victim two temporarily blinded from caustic soda, burns to inside of throat, placed in a medically induced coma and scarring to face - both victims diagnosed with PTSD - physical and psychological harm "substantial" for both victims - offence motivated by revenge - Form 1 offence intentionally or recklessly destroying property - criminal history including armed with intent to commit indictable offence - applicant subject to community service order at time of offending. For the second offence (against victim 2), a non-parole period of 3 years and 6 months with an additional term of 3 years and 6 months. Order for partial accumulation. Total effective sentence: non-parole period of 6 years and 6 months with an additional term of 3 years and 6 months. Appeal dismissed. Aslett v R [2012] NSWCCA 235 1x s 112(3) offence. Serious indictable offence: to threaten/intimidate, circumstance of special aggravation: armed with dangerous weapons (taser and knife) - individual offender - 25% discount for early plea - two children aged 16 were present - offender held knife to throat of victim and discharged taser, no injuries - damaged property in the house - offender had record for violence - no subjective case advanced on sentence. Offending assessed as "just below mid-range". Non-parole period of 3 years and 4 months and 14 days with an additional term of 2 years and 3 months. The total term was 5 years 7 months and 13 days. Appeal dismissed.

Amendments 24 March 2015 - Coversheet - Order 2(c) amended Paragraph 83 added 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: 24 March 2015

Crimes Amendment (Reckless Infliction of Harm) Act 2012(NSW)

(The Crimes Amendment (Reckless Infliction of Harm) Act 2012(NSW)

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