He gave evidence that the effect of the birth of his son had been "really life changing" and that it is very emotional for him when his partner visits the gaol with his child.
13 The applicant's partner also gave evidence about the attitude of the applicant following the birth of his son and expressed the view that he needed rehabilitation from his drug and alcohol abuse.
14 The sentencing remarks are very brief. His Honour stressed that he was not increasing the sentence by reason of the matters on the Form 1. After stating the facts, the Judge noted that the offence was aggravated by reason of the applicant being on a bond. He indicated that the applicant's record, while suggesting the need for general and personal deterrence, was not an aggravating factor. His Honour noted the standard non-parole period as a "significant guideline" and found the offence being "on the more serious side of its type". He indicated that had it not been for the plea of guilty he would have imposed a sentence of 8 years that he reduced to 6 years.
15 His Honour found special circumstances "bearing in mind what is called the Fernando principle" and having regard to his background "in his childhood of drugs". He also took into account the "motivating factor" of his partner and child.
16 There is only one ground of appeal filed that contends that the sentence is manifestly excessive. Support for this contention was placed upon statistics maintained by the Judicial Commission. They reveal that, as against a maximum penalty of 20 years, the highest sentence imposed for a single offence is eight years. Despite a standard non-parole period of 5 years applying, the range of non-parole periods for all offenders is between six months and six years. It is also noted that the applicant's sentence is in the top 12 per cent for offenders with characteristics similar to the applicant and where there has been a plea of guilty. The non-parole period is in the top 8 per cent for offenders with similar characteristics. As is almost inevitably the case, resort to statistics indicates that sentences imposed do not reflect the maximum penalty prescribed.
17 It was submitted on behalf of the applicant that his Honour was erroneous in assessing the offence as being "on the more serious side". It must be stated that his Honour has failed to approach the matter in accordance with the decisions of this Court concerned with sentencing for offences where there is a standard non-parole period. He has failed to undertake the stepped approach of determining the objective seriousness of the offence, then taking into account s 21A matters and lastly considering whether there are special circumstances. There are no reasons given for his determination of the objective seriousness of the offence. Presumably his Honour's finding meant that the offence was above midrange, but to what degree and for what reasons are matters left unstated.
18 With respect the sentencing remarks are completely inadequate. In the absence of reasons for, and clarity as to, the assessment of the objective seriousness of the offence it is difficult to give the finding the support that it would normally deserve; cf Mulato v R [2006] NSWCCA 282.
19 The applicant contends that his Honour was in error in his assessment of the seriousness of the offence having regard to the matter of aggravation alleged being the reckless infliction of actual bodily harm. He refers to the nature of the injuries and the mental element of recklessness. It should be noted, however, that the injuries need only amount to actual bodily harm and the injuries suffered by the male victim, at least, were in the upper range of that category. In any event it is not so much the nature of the injuries that were inflicted, although that was the charged matter of aggravation, it was the manner in which they were inflicted that increased the seriousness of the offence. This is yet another case of a person who, having broken into a home and being confronted by an occupant, chooses to resort to violence. Significant sentences should be imposed for such conduct both to denounce it and in an attempt to deter such behaviour.
20 However, this was not the only matter of aggravation. There were two victims, the applicant is taken to have known that there were persons in the premises, and he used corporal violence. It was the applicant who first acted with physical violence. Further, having gained a position of superiority to Mr Crockett, he chose to place him in a headlock rather than seeking to escape. There was a substantial amount of property being stolen. The offence was planned because the applicant had objects over his hands to avoid leaving fingerprints.
21 The Court was taken to a number of cases by way of a schedule and particular decisions to support the argument that the sentence was outside the range. One of the decisions particularly relied upon was Maxwell v R [2007] NSWCCA 304; 177 A Crim R 498. In that case I said: