Firth v Regina

Court of Criminal Appeal (NSW)|2018-06-06|Before: Bellew J, Wilson J

Judgment

SIMPSON AJA: I agree with Wilson J.
BELLEW J: I agree with Wilson J.
WILSON J: This is an application for leave to appeal brought by Matthew Paul Firth pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against sentence imposed upon him in the District Court.
The applicant pleaded guilty on the first day of trial to three offences which were committed over the period 23 - 24 November 2015. Count 1 was an offence of break, enter and steal from a dwelling house and commit serious indictable offence in circumstances of aggravation, contrary to s 112(2) of the Crimes Act 1900 (NSW). Count 3 was an offence of larceny contrary to s 117 of the same Act, and count 11 was an offence of break, enter and commit serious indictable offence, contrary to s 112(1)(a).

Also before her Honour during the sentence proceedings, was an appeal against the severity of sentences imposed upon the applicant in the Local Court at Newcastle on 14 March 2017. The applicant had been sentenced in that jurisdiction with respect to the following offences: 1. An offence of using an offensive weapon to prevent lawful apprehension, contrary to s 33B(1)(a) of the Crimes Act, for which he received a sentence of 18 months imprisonment with a NPP of 12 months. 2. An offence of being armed with intent to commit an indictable offence, being a previously convicted person, contrary to s 115 of the Crimes Act, an offence for which the applicant was sentenced to a term of 12 months imprisonment; and 3. A charge of goods in custody contrary to s 527C(1)(a) of the Crimes Act, for which the applicant received a sentence of 4 months imprisonment.
These sentences were to be served concurrently, from 17 October 2016.
Her Honour upheld the appeals with respect to each of these matters, set aside the sentences imposed in the Local Court, and sentenced the applicant by including each offence in the overall aggregate sentence imposed with respect to the matters before the court on indictment. The sentences indicated for the summary offences were: 15 months imprisonment with an indicative NPP of 10 months for the s 33B(1)(a) offence; 12 months imprisonment with an indicative NPP of 9 months for the s 115 offence; and a sentence of 4 months for the s 527C(1)(a) offence (which was the same term as that imposed in the Local Court).
Although these indicative sentences have in effect been served, there is an issue as to the lawfulness of that approach, not raised by the parties before the sentencing judge, or in this Court, to which it will be necessary to return.

The Crown Case on Sentence

The Crown tendered a statement of facts giving the details of the offences. The facts were not disputed by the applicant, and her Honour found the facts in accordance with the Crown's statement of them.
The offence constituting count 1 occurred at around 8.00am on Tuesday 24 November 2015 when the victim, Mr Gray, was inside his home at Mayfield West. The front screen door of his house was closed and locked, but the front wooden door was open. The applicant entered the house by cutting through the mesh of the screen door and unlocking it. Inside, he took possession of a laptop computer, a hearing aid kit, assorted jewellery, personal cards, a nail file set, a wrist watch, wallet, and Visa card.
Mr Gray saw the applicant in the hallway carrying the laptop computer, and attempted to take hold of him by grabbing his arm. The applicant was carrying a large serrated knife which he raised toward Mr Gray in a threatening manner, causing Mr Gray to release the applicant and raise his arms in a submissive fashion. The applicant fled the property.
The property stolen from Mr Gray's home was still in the applicant's possession when he was arrested nearby, approximately 40 minutes later.
Count 3 was committed shortly after the applicant fled Mr Gray's property on 24 November 2015. The applicant approached a vehicle parked in a carport in Mayfield West. The applicant entered the vehicle and stole a jacket, a coffee card and $14 in change. He was seen whilst inside the vehicle by a witness, who challenged him. The applicant fled, leaving the knife behind. When the knife was later forensically examined, a positive DNA match for the applicant was located on the handle. The witness was also able to positively identify him.
Five similar offences were on the Form 1 document referable to this offence. Around 2.30am on the morning of 24 November 2015, the applicant approached a parked vehicle and attempted to force open the passenger door lock. Security surveillance footage shows the applicant wielding an implement similar to a large screwdriver. Damage was caused to the lock. This is the attempt larceny that was taken into account.
Sometime late on 23 November or early 24 November 2015, the applicant entered another parked motor vehicle and stole an employee card, a torch, an auxiliary cable and loose change totalling $4. The stolen property was still in the possession of the applicant on arrest. At around this time, the applicant entered another three motor vehicles and stole a number of items and some small amounts of money from each car, some of the property being recovered on the applicant's arrest.
With regards to count 11, some time prior to 8.00am on the morning of Tuesday 24 November 2015, the applicant entered a garage and stole a Ryobi cordless drill and charger, some drill bits, assorted hand tools and a sander belonging to the occupant. This property was not recovered. A large screwdriver was left behind inside a car parked in the garage.
The Form 1 offence taken into account when sentence was imposed for count 11 referred to this screwdriver. It was seized and later tested for DNA, the results linking the implement to the applicant. The screwdriver was consistent in appearance with the object used in the attempted larceny.

The Applicant's Case

The applicant, who was aged 36 at the time of sentence, did not give evidence before the sentencing court.
The applicant relied on an undated letter he had written to the court, which expressed his regret for his conduct, and attributed his actions to "black outs" caused by the violence experienced in his life. He also tendered a letter from Dr John Paul Kennedy of Healthsure Medical Centre at Jesmond, dated 14 February 2017, stating that, as the applicant's mother suffers from end-stage emphysema, a transfer of the applicant from Sydney to a prison closer to Newcastle would be of benefit to her.
Much of the information concerning the applicant's history and circumstances was provided to the sentencing court in a psychological assessment report dated 29 June 2017, from Ms Barbara Panagiotopoulos, a forensic psychologist. The report was prepared for the purposes of sentence proceedings. In compiling her report, Ms Panagiotopoulos conducted an interview via audio-visual link with the applicant on 22 June 2017, which lasted a little over two hours, and also had regard to other documentary material supplied to her.
Ms Panagiotopoulos obtained a history from the applicant setting out his family circumstances and details of his childhood and upbringing in Newcastle. The applicant has never had contact with his biological father, who is of Aboriginal heritage. His mother and biological father separated when the applicant was conceived, and his mother formed a new relationship during her pregnancy with the applicant's step-father. The applicant has two younger half-siblings from this relationship.
The applicant's mother and step-father separated when the applicant was aged 9, and he and his sisters remained in the care of their mother. While he described his childhood prior to the separation as "great", the applicant acknowledged that his mother and step-father drank heavily and that there may have been some domestic violence between them, although he was never witness to this.
Following this separation, the applicant reported that his mother had a series of relationships with abusive men, who exposed the family to drug and alcohol abuse, neglect and domestic violence directed at his mother, his two sisters and himself. The family had transient accommodation, and his mother's drug addiction resulted in periods of abandonment where he would be left to steal food and other necessities to provide for himself and his sisters.
The applicant reported that between the ages of nine and twelve, while the family were residing in South Australia, he was sexually abused on a number of occasions by a male family friend. When he first reported this abuse to his mother, she did not believe him. When he later disclosed the abuse to his step-father, his step-father assaulted the perpetrator. On a subsequent occasion when the perpetrator again attempted to sexually assault the applicant, the applicant said that he assaulted the man with a baseball bat. Whilst he had not engaged in any counselling relevant to this experience, the applicant expressed a desire to do so in the future.
Since his mother's admittance to a female only hostel when he was aged 14, the applicant lived an itinerant lifestyle with periods on the streets, financially supported by crime.
The applicant reported a close relationship with his step-father until his death approximately five years ago - an event which had a significant impact upon the applicant. However, despite an assertion that he loves "his mother to death", he acknowledged that she was unable to be emotionally available to him and often encouraged his criminality and drug use to support her own addiction.
The applicant had a disrupted education across numerous schools, punctuated by aggressive and explosive behavioural tendencies, learning and literacy difficulties, and frequent truancy. He left school at the end of Year 8 and commenced an apprenticeship as a cabinet-maker through the Salvation Army, but failed to complete the TAFE component.
The applicant reported a limited vocational history and stated that he has not worked for over 10 years. Aside from the apprenticeship in his teenage years and the occasional cash-in-hand carpentry job, the applicant has been financially supported by a Disability Support Pension and criminal activity.
The applicant has had two serious intimate relationships in his life, the second of which lasted approximately 12 to 14 years, although he appears to have spent much of this time in custody. He has one six-year old daughter from this relationship, and three step-daughters with whom he reports having "strong bonds". He acknowledged that drug use and intermittent violence were features of this relationship and that following separation approximately 5 years ago, his daughter was removed by the Department of Family and Community Services and placed with her maternal grandmother.
Ms Panagiotopoulos obtained a medical history from the applicant, although observed that it was inconsistent with medical records to which she had access. The applicant stated that he was born deaf in his left ear, and underwent surgery to remove his ear drum at age 2. At age 16, he suffered extensive and serious injuries as a result of being hit by a car whilst riding his bicycle. He said that he still experiences migraines and soreness in his lower back and neck as a consequence.
He reported having been involved in numerous fights in custody, the latest of which allegedly involved being "stomped" on. The applicant reported that as a result, he sustained significant head and facial injuries, although Ms Panagiotopoulos could see no facial scarring. The applicant maintained that he was "pronounced dead" at the scene before being resuscitated, and still experiences ongoing neurological symptoms associated with traumatic brain injury including forgetfulness, difficulties finding words and in concentration, dizziness, and unclear thinking. He reported that he sustained a knee injury in custody and wrist fractures, for which he has been prescribed Tramadol for pain management. He said he was scheduled for knee surgery.
The applicant reported other health issues, including Hepatitis C, although not always in terms consistent with medical records.
Ms Panagiotopoulos canvassed the applicant's long and problematic polysubstance abuse history, reporting that his alcohol abuse commenced at age 7, becoming a daily habit around the age of 16. The applicant readily admitted that this habit involved frequent "blackouts" and aggressive behaviour. He stated that since stabbing his best friend in an alcohol fuelled rage, he has not used alcohol and claimed to have no intention of drinking in the future.
The applicant first consumed cannabis and amphetamines ("speed") as a child and by his mid-teenage years, had developed a daily habit for use of both substances. By age 18, he had commenced intravenous drug use and was using "speed" and heroin on a daily basis. At age 25, the applicant replaced "speed" with use of crystal methylamphetamine ("ice") and acknowledged a significant dependence on these substances. The applicant has attempted to cease drug use by participation in a methadone programme, and abstinence, but has been unsuccessful. Indeed, the applicant admitted continuing illicit drug use in custody. He continues to inject illicitly obtained buprenorphine.
The applicant stated that he had attended two residential drug rehabilitation facilities in compliance with court orders: the William Booth Institute in 2003 for three months and Bennelong's Haven in 2016 for five days. He was evicted from both facilities after failing urinalysis testing.
As to the present offences, the applicant expressed "both regret and remorse for his behaviour in these offences and for all of his past crimes" to Mrs Panagiotopoulos. He said that he has "never robbed individual people before" and that he considers this conduct "terrible…this is karma coming back on me". The applicant said that he accepted responsibility for his actions.
As to his mental health, the applicant reported that he was diagnosed with schizophrenia, "mild" bipolar affective disorder, and intermittent explosive disorder by a custodial psychiatrist, with Ms Panagiotopoulos confirming that these diagnoses were recorded in medical progress notes.
The applicant endorsed a history of violence and aggression since childhood and stated that he is easily angered, and experiences episodes of intense and uncontrolled rage where he often "blacks out", retaining only vague memories of his behaviour afterwards.
Ms Panagiotopoulos considered that it was "clear that [the applicant] has and likely continues to experience significant mental health issues", with "mood instability". She thought his history "is also suggestive of an underlying personality vulnerability towards an antisocial personality traits".
Ms Panagiotopoulos concluded that the applicant's: "learning, social and emotional vulnerabilities has seemingly coloured much of his life including having negatively impacted his general world-view and mental health, and directly contributed to his early involvement in substance abuse, criminal behaviours and persistent antisociality thereafter".
She considered that long term, intensive treatment was required to address his addictions and mental health issues.

The Conclusions of the Sentencing Judge

In imposing sentence on 14 July 2017, the sentencing judge concluded that the offences were objectively serious in nature and could be characterised as "spontaneous and opportunistic acts". She noted that, whilst the property stolen was not of a particularly high monetary value, it demonstrated a "kind of spree undertaken by the offender" or "rampage" to replenish his funds to support his substance abuse habit.
The sentencing judge accepted the Crown's submission that whilst count 1 involved larceny rather than some more serious indictable offence, it fell within the mid-range of objective seriousness, having regard to the additional aggravating factors including "the threatened violence, the use of a weapon … and the fact that it took place whilst the victim was in a position of vulnerability within his own home".
The judge accepted the submission made on behalf of the applicant that the offences constituting count 11, taking into account the Form 1 matter, fell at "the very bottom of the range of objective seriousness".
With regards to count 3 and the various similar matters on the Form 1, the sentencing judge concluded that such conduct fell within the "low to mid-range for matters of this kind", given the small amount and value of property stolen in each case, the fact that all the property was recovered, the absence of damage to vehicles, and the fact that the offender had possession of a knife.
In light of her characterisation of the offences as "serious", her Honour expressed a need for general deterrence, stating that: "the whole community suffers under the shadow of this kind of offending and meaningful consideration needs to be given in deterring any members of the community minded to act in this way".
Her Honour also expressed the need for specific deterrence, particularly given the offender's long record, and accepted that consideration of the principles in Veen (No 2) [1998] HCA 14; (1998) 164 CLR 465 was warranted. In this vein, her Honour observed that past attempts at rehabilitation, ever-increasing custodial sentences, supervised bonds, and suspended sentences had all proved futile in abating the applicant's cycle of offending. She observed, "The risk to the community where the offender is prepared to carry a weapon and to brandish it if needs be in the home of an elderly victim is obvious. It shows a continual disobedience of the law such that retribution, deterrence and the protection of the community are of increased importance indicating that a more severe penalty is warranted than would otherwise be the case".
Her Honour accepted the matters raised in the psychological report, and had regard to features of the applicant's subjective case including his dysfunctional family upbringing, his childhood exposure to domestic violence and neglect, his long-standing polysubstance abuse, his experience of sexual assault as a child, his itinerant lifestyle and accommodation, his disrupted schooling and aggressive behavioural tendencies, his limited employment history, his fractured relationship with his daughter, his gambling addiction and lack of impulse control, his psychiatric issues and the ill health of his mother.
Her Honour accepted the account provided in the report of Ms Panagiotopoulos of the applicant's past mental health, concluding that "the psychological report makes it clear that the offender comes from a background of significant deprivation such that the principles enunciated in Bugmy are relevant."
Her Honour regarded the applicant's prospects of rehabilitation as "extremely guarded", due to problematic drug use, but accepted the submission made on his behalf that there is reason for "cautious optimism" in light of the applicant's expressed desire to undertake rehabilitation and seek counselling. She concluded that the applicant is "at least thinking about breaking this cycle of offending".
It was accepted that the applicant is regretful for his conduct, in particular in respect of robbing individuals.
Her Honour made a finding of special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act, "to assist the offender in his re-integration into the community and in particular for him to undertaking drug counselling…his need for mental health assessment and ongoing treatment and counselling".
A discount on the sentence that would otherwise have been imposed of 10% was allowed to reflect the utilitarian value of the plea entered on the first day of trial.

Application for leave to appeal against sentence

The applicant advances three grounds of appeal. The third ground, a complaint of manifest excess, was added by leave at the hearing of the proceedings before the Court. The proposed grounds are: 1. Her Honour failed to provide any or adequate reasons as to how she applied the evidence and her findings in relation to the applicant's mental health conditions; 2. Her Honour failed to provide any or adequate reasons as to how she applied her finding that the applicant suffered a background of significant deprivation; 3. The aggregate sentence is manifestly excessive.

Ground 1: Her Honour failed to provide any or adequate reasons as to how she applied the evidence and her findings in relation to the applicant's mental health conditions

Ground 2: Her Honour failed to provide any or adequate reasons as to how she applied her finding that the applicant suffered a background of significant deprivation

These grounds raise the same issues and may be conveniently dealt with together.
Referring to R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 183, at [42 - 43], wherein Spigelman CJ set out the nature of the obligation on sentencing judges to give reasons for their decisions, the applicant complains that the sentencing judge failed in her judgment to adequately reveal the reasons for the sentence imposed, or to explain how she applied the sentencing principles to which she referred. He submits that, It was incumbent upon her Honour to do more than state general sentencing principles or to merely recite that she was taking matters into account but rather, her Honour had a duty to explain how the principles were being applied to the facts and circumstances before her.
A failure to give adequate reasons to enable a proper understanding of the basis upon which a decision has been reached is an error of law which is amenable to correction on appeal: Pettitt v Dunkley [1971] 1 NSWLR 376 at 382 (Asprey JA); 384 - 385 (Manning JA); 387 - 388 (Moffitt JA). Reasons need not be detailed however; they need only sufficiently expose why the decision was made, and be such as to allow the parties and any appellate court to ascertain whether the relevant rules of law and principle have been correctly applied: R v Keyte (2000) 78 SASR 68 at 76; approved in Douglass v The Queen [2012] HCA 34; 86 ALJR 1086 at [14].
The thrust of the applicant's argument is that, whilst her Honour referred to relevant principles, she did not set out how those principles were applied with respect to the applicant's mental impairment, and his deprived background. It is contended that it is not possible to know whether the principles were applied correctly or otherwise. To some extent, the applicant also relies upon the complaint of manifest excess to assert that the sentencing judge must have misapplied principle, because the sentence imposed is outside the proper range in all of the circumstances of the case.
In assessing that contention, it is important to bear in mind that a judge is not required in his or her reasons to refer to every piece of evidence tendered or every argument made by the parties, or to state that which is tolerably clear by inference: AMZ v R [2013] NSWCCA 6, at [25].
In addressing the applicant's subjective case, the sentencing judge referred extensively to the report of Ms Panagiotopoulos, noting that, despite the fact that the applicant did not give evidence, she was prepared to accept those matters referred to in the psychological assessment. She said, Whilst the offender's subjective features must not overshadow the objective seriousness of the offences the offender has a number of significant matters that must be taken into account.
Her Honour went on to detail at considerable length both the circumstances of the applicant's deprived and abusive background, and his mental impairment (accepting diagnoses of serious mental illness such as schizophrenia even though the information provided by the applicant about that and other conditions was assessed as unreliable by the psychologist). She referred specifically to the relevance of the "principles enunciated in Bugmy", a reference to Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, at [43] - [45], noting at a later point that the applicant's history "no doubt contributed to the path which the offender finds himself on".
When discussing the matters that must be considered by a sentencing court, including the objective seriousness of the offences, issues of deterrence, remorse and the like, being matters that, as the sentencing judge observed, "do not necessarily pull in the same direction", her Honour again referred to the applicant's deprived background and his impaired mental health, features she grouped with other matters that ordinarily go to mitigate sentence, such as remorse and the pleas of guilty.
At another point in her judgment her Honour referred again to the applicant's deprived background and his mental health, in concluding that it was appropriate to make a finding of special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) favourable to the applicant, because of those features, together with the fact of his drug addiction.
It is clear from the sentence quoted at [62] above that, subject to the requirement that the subjective case not be permitted to wrongly outweigh the need for the sentence to adequately reflect the objective gravity of the crimes, the sentencing judge took these matters into account in the applicant's favour, such that these features operated to ameliorate the sentence ultimately imposed.
Taking the sentencing judgment as a whole, it is clear that her Honour accepted that the applicant's impaired mental health and his deprived and abusive background were features that should ameliorate to a degree the sentences that would otherwise have been imposed, whilst balancing the requirement for the sentence to fit the crime, and having regard to issues of deterrence and the protection of the community.
Her Honour did not approach the sentencing exercise as a "tick-a-box" activity where sentencing principles and associated features of the case were listed and ticked off as either increasing or decreasing the sentence to be imposed, an approach which could not be other than undesirable. She did make plain the evidence accepted by her, the principles she applied to the evidence, and the basis for the conclusion she reached as to the aggregate sentence ultimately imposed.
Although I would grant leave to advance grounds 1 and 2, I would dismiss them.

Ground 3: The aggregate sentence is manifestly excessive

In support of this ground, the applicant argued that the aggregate sentence imposed upon him, of itself, demonstrates that there was error in the exercise of the sentencing discretion. Referring in particular to the conclusions of the sentencing judge that the applicant had a number of significant mental illnesses, it is argued that the aggregate term of 8 years with a NPP of 5 years is excessive in all of the circumstances.
There is no doubt that, in the particular context of this case, the sentence is a stern one.
With the exception of the offence contrary to s 112(2) of the Crimes Act, all of the offences that were before her Honour fell at the lower end of the range of objective gravity. The larceny offences all related to thefts from unattended cars, with the property taken being of very limited value. The s 112(1) offence occurred in a garage, rather than a residential house, and the property stolen was limited to a quantity of tools. All of these offences could have been dealt with summarily.
Her Honour concluded that the more serious offence was, for an offence of its kind, at about the mid-range of gravity. The feature of the offence that elevated it in terms of its seriousness was that the applicant was armed with a knife, which he displayed in a menacing way to the elderly occupant of the home, when the occupant endeavoured to detain him.
These are prevalent offences which the courts must seek to deter by the application of the principle of general deterrence in appropriate cases.
The question in my view is whether this was an appropriate case.
The sentencing judge accepted that the applicant suffers from a number of mental disorders, being schizophrenia, bi-polar disorder, mood instability, and a degree of cognitive impairment consequent upon a brain injury. She accepted that the sentence imposed upon him must be mitigated as a consequence of both his health, and his unfortunate background, in recognition of the diminution in moral culpability both features contributed to. It is difficult, however, to be confident that the sentence was in fact moderated to reflect that conclusion.
Where, as here, an offender's background has been so dysfunctional and deprived such that his or her capacity to exercise sound judgments is impaired, and the level of impairment is worsened by a mental illness or illnesses, it will often be the case that general deterrence will have a lesser role to play in arriving at the sentence to be imposed. There may, of course, be a need to give greater weight to the protection of the community in determining sentence. It is a question of balancing the competing features of the individual case to arrive at a fair sentence.
The aggregate sentence imposed upon the applicant suggests that her Honour may have overlooked the need to temper the application of the general deterrence principle, having regard to the conclusions she reached as to the disabilities and disadvantages under which the applicant has long laboured. That is particularly so when one considers that the sentence has been reduced by 10% to acknowledge the value of the pleas of guilty.
In my view the aggregate sentence is manifestly excessive, and this Court should move to re-sentence.

The Appeal from the Local Court

Although this issue was not raised by the applicant or the Crown, there is a problem with the approach taken by the sentencing judge in dealing with the appeals from the Local Court. Having upheld the applicant's severity appeal, the sentencing judge set aside the sentencing orders of the Local Court and, rather than move to re-sentence, she noted indicative sentences with respect to each of the three offences, and included those sentences as part of the aggregate sentence of 8 years ultimately imposed on the applicant.
That approach is contrary to the powers available to her Honour to deal with an appeal from the Local Court.
A person who has been sentenced in the Local Court may appeal to the District Court as of right, pursuant to s 11(1) of the Crimes (Appeal and Review) Act 2001 (NSW), within certain time limits. Such appeals are determined pursuant to s 20(2) of that Act, by setting aside the sentence, varying it, or dismissing the appeal. Pursuant to s 28(2) the District Court may exercise any power that the Local Court could have exercised when determining the appeal. Whilst the Local Court may impose an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act, it cannot impose an aggregate sentence that exceeds 5 years imprisonment (s 53B).
In purporting to re-sentence the applicant for the Local Court appeal matters, by an aggregate sentence that exceeded 5 years, her Honour acted without power.
The applicant's severity appeal against the sentences imposed upon him in the Local Court will have to be remitted to the District Court to be dealt with according to law.

Considerations on Resentencing

Each of the applicant's crimes, with the exception of the aggravated break, ever and steal at the home of Mr Gray, fell very much at the lower end of the range. Even the s 112(1) break, enter and steal is at the lowest end of the range of objective gravity for such offences, by reference to the nature of the premises entered, and the limited property stolen.
The offence at Mr Gray's home is, as the sentencing judge concluded, more serious because more than one feature of aggravation was present. The fact that the applicant went armed to the property, and displayed the knife to the occupant, elevates the gravity of the matter. It must have been very frightening indeed for Mr Gray to be confronted by an armed intruder.
There is a need for a degree of accumulation of sentence, since the criminality of the charged offences is distinct but, having regard to the requirements of the totality principle, it should be modest.
The applicant's prior record, and the prevalence of offences such as these in the community is such that, ordinarily, there would be a requirement for both specific and general deterrence to be reflected in the sentence.
However, a significant feature of this case is the evidence before the Court as to the applicant's antecedents and ill-health. The report from Ms Panagiotopoulos sets out many of those issues. In addition, an affidavit from the applicant, read without objection before this Court, makes clear that the applicant's poor health continues to be a concern for him. He is presently awaiting knee surgery and in chronic pain. He has had two falls in custody as a consequence of his knee injury, and has sustained fractures to the wrist. Clearly, his time in custody is more onerous for him than it would be for a prisoner not so afflicted.
It is also important to have regard to the terrible circumstances of the applicant's childhood, which was significantly deprived, materially and emotionally, and to his mental illness. Because of those aspects of the matter, I consider that the applicant's moral culpability is lessened. Further, he cannot be regarded as a suitable vehicle for the application of the principle of general deterrence: Director of Public Prosecutions (Cth) v De La Rosa (2010) 205 A Crim R 1; (2010) 79 NSWLR 1; [2010] NSWCCA 194, at [177]. That conclusion must moderate the sentence to be imposed, and by no small degree.
In common with the sentencing judge, I regard a discount on sentence in the order of 10% as appropriate to reflect the (limited) utilitarian value of the pleas of guilty, and I would make a finding of special circumstances, based upon the applicant's need for an extended period of supervision to assist him with the drug rehabilitation which, according to his affidavit, he has commenced since entering custody.
An aggregate sentence is appropriate which, allowing for the 10% discount and rounding down in the applicant's favour, should be for a term of 5 years and 4 months imprisonment, with a NPP of 3 years. It is noted that the aggregate sentence imposed in the District Court incorporated indicated terms of imprisonment with respect to the call-up matters. I would not interfere with that portion of the sentence.

ORDERS

I propose the following orders: 1. Leave to appeal granted. 2. Appeal allowed. 3. Quash the sentence imposed in the District Court on 14 July 2017 with respect to counts 1, 3, and 11. 4. In lieu, sentence the applicant to an aggregate term of imprisonment pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) of 5 years and 4 months, to date from 17 October 2016, expiring on 16 February 2022, with a non-parole period of 3 years, expiring on 16 October 2019. 5. The indicative sentences for counts 1, 3 and 11 are: 1. Count 1: 3 years 6 months imprisonment; 2. Count 3: taking into account the offences on the Form 1 document: 12 months imprisonment; 3. Count 11: taking into account the offence on the Form 1 document: 2 years imprisonment. 1. The sentences imposed in the Local Court the subject of the appeal against severity are to be remitted to the District Court of NSW, to be dealt with according to law.

Amendments 19 September 2018 - 19.09.2018 Typographical error in order 5. 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: 19 September 2018

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