Flick v R - [2023] NSWCCA 197 - NSWCCA 2023 case summary — Zoe

NSWNSWCCA

Flick v R

[2023] NSWCCA 197

Court of Criminal Appeal (NSW)|2023-06-07|Before: Meagher JA, Wilson J, Sweeney J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2023-06-07

Before

Meagher JA, Wilson J, Sweeney J

Catchwords

[2013] HCA 37 DPP (NSW) v TH [2023] NSWCCA 81 Kentwell v The Queen (2014) 252 CLR 601

Source

Original judgment source is linked above.

Catchwords

[2013] HCA 37 DPP (NSW) v TH [2023] NSWCCA 81 Kentwell v The Queen (2014) 252 CLR 601

Judgment (23 paragraphs)

[1]

JUDGMENT

MEAGHER JA: I have had the advantage of reading Wilson J's judgment in draft. I agree with the orders her Honour proposes and her reasons for the making of those orders.
WILSON J: On 6 December 2021 the applicant, Daniel Flick, was sentenced in the District Court to an aggregate term of 9 years imprisonment, with a non-parole period ("NPP") of 5 years. By Notice filed out of time on 24 February 2023, the applicant seeks an extension of time and leave to appeal against the sentence imposed upon him.
The details of the individual offences, maximum penalties, any standard non-parole period ("SNPP") that applies, indicative terms, and the sentencing judge's findings of objective seriousness are set out below. The original sequence numbers for each charge have been abbreviated. Offence Offence Indicative Sentence Objective Seriousness Aggravated (persons present) break, enter & commit serious indictable offence (larceny) (Shepherd Street) H734/1 s 112(2) Crimes Act 1900 (NSW) 3 years imprisonment Within the middle of the range Maximum penalty: 20 years imprisonment NPP: 2 years and 3 months SNPP: 5 years imprisonment Steal motor vehicle (Mercedes AMG) H734/5 s 154F Crimes Act Taken into account on a Form 1 document to H734/1 Maximum penalty: 10 years imprisonment Aggravated (in company) break, enter & commit serious indictable offence (larceny) (Hay Street) H734/2 s 112(2) Crimes Act 2 years and 9 months imprisonment Towards the bottom of the range Maximum penalty: 20 years imprisonment NPP: 2 years SNPP: 5 years imprisonment Steal motor vehicle (Porsche) H734/6 s 154F Crimes Act Taken into account on a Form 1 document to H734/2 Maximum penalty: 10 years imprisonment Aggravated (persons present) break, enter & commit serious indictable offence (larceny) (Cheviot Street) H759/4 s 112(2) Crimes Act 2 years and 7 months imprisonment At the bottom of the range Maximum penalty: 20 years imprisonment NPP: 1 year and 9 months SNPP: 5 years imprisonment Aggravated (persons present) break, enter & commit serious indictable offence (larceny) (Vernon Road) H759/5 s 112(2) Crimes Act 3 years and 6 months imprisonment Within the middle of the range Maximum penalty: 20 years imprisonment NPP: 2 years and 6 months SNPP: 5 years imprisonment Steal motor vehicle (Mercedes AMG C63s) H759/6 s 154F Crimes Act Taken into account on a Form 1 document to H759/4 Maximum penalty: 10 years imprisonment Aggravated (persons present) break, enter & commit serious indictable offence (larceny) (Orient Street) H759/7 s 112(2) Crimes Act 3 years and 9 months imprisonment Towards the middle of the range Maximum penalty: 20 years imprisonment NPP: 2 years and 6 months SNPP: 5 years imprisonment Steal motor vehicle (Mercedes AMG C200) H759/8 s 154F Crimes Act Taken into account on a Form 1 document to H759/7 Maximum penalty: 10 years imprisonment Aggravated (persons present) break, enter & commit serious indictable offence (larceny) (Bimbil Place) H690/8 s 112(2) Crimes Act 4 years and 1 month imprisonment Towards the middle of the range Maximum penalty: 20 years imprisonment NPP: 3 years SNPP: 5 years imprisonment Steal motor vehicle (BMW) H690/6 s 154F Crimes Act Taken into account on a Form 1 document to H690/8 Maximum penalty: 10 years imprisonment Steal motor vehicle (Mercedes Benz) H690/7 s 154F Crimes Act Taken into account on a Form 1 document to H690/8 Maximum penalty: 10 years imprisonment Enter building with intent to commit indictable offence (steal motor vehicle and break & enter) (Cotswold Road) H886/2 s 114(1)(d) Crimes Act 11 months imprisonment Towards the bottom of the range Maximum penalty: 7 years imprisonment Assault law officer (whilst on remand at Parklea) H460/1 s 60A(1) Crimes Act 1 year and 3 months imprisonment Towards the lower end of the scale Maximum penalty: 5 years imprisonment Intentionally damage property by fire (whilst on remand at Parklea) H460/2 s 195(1)(b) Crimes Act 1 year and 6 months imprisonment Just below the middle of the range Maximum penalty: 10 years imprisonment

[13]

The Custodial Offences

As at 16 July 2021, the applicant was housed in the segregation wing at Parklea Correctional Centre. At about 12:44pm, a CCTV surveillance camera positioned in the applicant's cell recorded him wetting a quantity of toilet paper which he then used to obscure the CCTV camera. That camera ceased to record any activity in the applicant's cell. Another camera outside the cell was still able to record the applicant's cell, and captured footage of him bending over near a power point with toilet paper in his hands. The paper eventually caught alight. Later forensic examination determined that the fire had been started by inserting foil into the power point and then using something like a plastic spoon coated with shampoo or a similar viscous liquid to create a circuit that arced, and ignited sparks used to light the toilet paper. This conduct, which damaged the cell, is reflected by the offence of damaging property by fire, sequence H460/2.
Both the fire alarm and a "Code Red" alarm were activated, and a Correctional Officer approached the applicant's cell. The Correctional Officer observed a large amount of black smoke coming from inside the cell. The officer asked the applicant to put his wrists through the yard gate so he could be handcuffed and moved to safety. The applicant began to comply but stopped when his neighbouring cellmate yelled "Go on with it. I want to get gassed". The applicant then removed his hands and spat at the officer, his saliva hitting the officer on his left shoulder. This offence of assaulting a law officer is reflected by sequence H460/1. The applicant continued to refuse to allow himself to be handcuffed until, with the smoke thick in his cell, he said "I'll go out". He allowed officers to secure him and remove him from the cell. NSW Fire Brigade and Police attended shortly afterwards and extinguished the fire.
An amount of damage was caused to the cell and property in it by the fire the applicant had started. The mattress and bed base were fused together by the fire, and objects within the cell had melted. There was damage from smoke and water. A Fire Restoration Clean-Up undertaken on 22 July 2021 cost some $6,000, although the restoration related to damage caused by fires started in both the applicant's and another cell and the loss was not wholly attributable to the applicant.
On 16 August 2021, the applicant was cautioned and placed under arrest for these offences whilst in custody at the Metropolitan Remand and Reception Centre. He did not participate in an interview.

[14]

Other Material in the Crown Case

The applicant's criminal history was before the sentencing court. Particularly given the applicant's then age, he having only just turned 18 years at the time of the November 2019 offences, it was a document of some length.
The applicant's history showed that he was first placed on probation (later called up) for a period of 18 months by the Children's Court when he was about 15 years of age, for offences of larceny, robbery whilst armed with an offensive weapon, being armed with intent to commit an indictable offence, destroying or damaging property, aggravated break, enter and commit a serious indictable offence, and two counts of assault occasioning actual bodily harm in company. Several months later he entered into a good behaviour bond of 6 months for an offence of shoplifting. In 2018 he was placed on further periods of probation for offences of intentionally throwing an object at a vehicle, and destroying or damaging property. Control orders were imposed for offences of aggravated break and enter and commit a serious indictable offence and robbery in company.
Further control orders were imposed in April 2019 for offences of being carried in a conveyance taken without consent of the owner (2 counts), aggravated enter dwelling in company with intent to steal, enter building with intent to commit an indictable offence (2 counts), aggravated break and enter and commit a serious indictable offence (2 counts), dishonestly obtain property by deception (2 counts), and larceny. In 2020, control orders were again imposed for offences of aggravated break and enter and commit a serious indictable offence (2 counts), take and drive conveyance without consent of the owner, be carried in a conveyance without consent of the owner, and assault a law officer (not a police officer). The applicant's first conviction as an adult was recorded by the Local Court in late 2020 for an offence of entering a vehicle or boat without the consent of the owner/occupier.
A custodial history from Corrective Services NSW showed that the applicant had been subject to a control order for one of the aggravated break and enter offences referred to above, which became an adult order under s 9A of the Children (Detention Centres) Act 1987 (NSW) after he turned 18 years of age.
Since entering the adult custodial system, the applicant had attracted institutional penalties for failing to comply with routine, assault, intimidation, misbehaviour at a service programme, and disobeying a direction.
The Crown provided details of the proceedings relating to the applicant's co-accused to the sentencing court, but that material is not considered here, there being no parity ground.

[15]

The Applicant's Case

The applicant did not give evidence before the sentencing court. He relied upon a short report of 27 May 2021 that had been prepared for use on sentence by Ms Anne Lucas, a forensic psychologist, tendered without objection. Ms Lucas interviewed the applicant on 25 May 2021 via an audio-visual link to Junee Correctional Centre over a period of one and a half hours. She administered an alcohol use disorders identification test to him, and had access to both statements of agreed facts, the applicant's criminal history, and a Background Report from the Office of Juvenile Justice dated 11 August 2020.
The applicant told Ms Lucas that he was born in Gunnedah but raised in Glebe by both his parents as one of 10 children. He is an Aboriginal man but said that he did not have a strong connection with his people or culture. He told Ms Lucas that his parents had taken good care of him growing up, that he did not recall any adverse childhood experiences, and that he had not suffered any economic or emotional deprivation or disadvantage. He reported, however, that his father was often absent as he was frequently incarcerated, and that both his parents abused alcohol. He told Ms Lucas that his father was violent to his mother, and he recalled her being hospitalised as a result. "Criminal types" hung around his home when his father was there. The applicant reported intervention by child welfare services on a number of occasions, and at one stage he was removed from the family home and placed with his brother in the care of his grandmother. He said he did not recall feeling traumatised by this as he saw his parents regularly and was with family. He summarised his childhood years positively, and had close relationships with his mother and siblings. Two of his brothers were involved with him in the commission of these offences.
The applicant was expelled from multiple schools for fighting and truancy, and left school in year 10 without having completed his Higher School Certificate. He had been in and out of detention since the age of 14 of 15. He began using alcohol and cannabis regularly around this age, which quickly became a major problem for him.
The applicant had never held paid employment but told Ms Lucas that he was considering a career in the construction industry in the future. He was in a relationship throughout his teenage years but broke up with his girlfriend after he learnt she had terminated a pregnancy without his knowledge. He described this as a distressing and traumatising experience. He was in residential rehabilitation when he became aware of the termination which resulted in him absconding and resorting to excessive alcohol use, after almost a year of sobriety. Ms Lucas noted that substance abuse was a salient issue for the applicant, and that he was unable to identify any interests or pastimes that did not involve alcohol. She also observed that his early and regular use of alcohol appeared to have been normalised in his childhood home.
The applicant told Ms Lucas that he did not suffer from any medical condition, but that he had taken antidepressant medication for a short period several years ago. He had undergone counselling in the past, largely in relation to substance abuse. He told Ms Lucas that he drank over 10 alcoholic drinks nearly every day in the years leading up to the November 2019 offences, and that he was inebriated during most if not all of his offending. He told Ms Lucas that when intoxicated "I do dumb things. I don't care at the time when I'm drunk". He said that his offending arose impulsively without considering the consequences while under the influence of alcohol. Ms Lucas noted that alcohol use test results were sufficient to diagnose an Alcohol Use Disorder.
Ms Lucas noted that the applicant did not appear to suffer any cognitive deficits that affected his ability to manage daily life tasks. She concluded, however, that he had experienced multiple environmental risk factors towards criminal offending in his formative childhood years. Although the applicant viewed his childhood years in a positive way, Ms Lucas thought that the references he made to domestic violence, his parents' alcohol abuse, his father's regular incarceration, and intervention from child welfare services indicated a lack of adequate parental supervision, low quality parent-child involvement, and exposure to parental antisocial behaviour, all of which are predictors of offending.
She assessed the applicant as presenting a medium risk of reoffending and concluded that the applicant did not have any significant symptoms indicating a mental health condition other than Alcohol Use Disorder. She noted that the applicant's impulsive and irresponsible behaviour, unstable self-image, feelings of emptiness and heightened emotionality could be suggestive of a developing Personality Disorder.
The applicant also tendered a letter from Darlene O'Brien, a drug and alcohol worker at Maayu Mali. Written when the applicant was a resident at Maayu Mali in July 2020, Ms O'Brien noted that the applicant was engaging in all programme and group work within the community and developing his cultural identity. She considered the applicant to be a respectful and thoughtful young man who was working to identify "his triggers" and showed a readiness to change. The applicant was engaging in programmes focused on improving relationships, communication, anger and anxiety management, and the identification of high-risk situations. He had expressed to Ms O'Brien a desire to study and attend TAFE.

[16]

The Remarks on Sentence

In his ex tempore remarks on sentence the sentencing judge noted the applicant's entitlement to a 25% discount on sentence to reflect pleas of guilty entered at the earliest possible opportunity. Having set out the offences and relevant Forms 1, maximum penalties and any applicable SNPPs, his Honour observed: "He is currently in custody and has been in custody for a considerable period of time now. He is a young man. When he committed the offences back in November 2019 he was just into his adulthood… Colloquially put, what Mr Flick did was embark on a crime spree particularly having regard to the timing of the offences and what he did in relation to each of those matters."
His Honour summarised the agreed facts in respect of both the November 2019 and custodial offences. His Honour noted that, in the applicant's interview with police following his arrest for the November 2019 offences, "his denial of any knowledge of the offences was an absolute lie".
The applicant's criminal history was not regarded by the sentencing judge as an aggravating feature pursuant to s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999 (NSW), although his Honour noted that it did have some relevance as to any leniency that may be afforded to him. Parity was identified as being relevant to a limited extent (since there was some difference in the offences with which the co-offenders were charged).
The sentencing judge went on to set out the circumstances of the applicant's childhood, drawn from the psychological report before the court. His Honour was satisfied that the principles given in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 were enlivened, moderating the applicant's moral culpability, and taken into account when determining the sentence to be imposed. His Honour also had regard to the applicant's reported intention to engage in alcohol rehabilitation when determining his prospects of rehabilitation, an intention which the judge found to be real, and not feigned or expedient. His Honour concluded that the applicant was highly motivated to better himself, and gave him the benefit of time served in quasi-custody at Maayu Mali by backdating the commencement of his sentence.
Observing that a sentence of full time imprisonment was nonetheless inevitable, his Honour noted: "Although I accept all of these subjective matters when it comes to the offender, there is no evidence whatsoever of any remorse or contrition or empathy for the victims. People who own houses and cars are entitled to expect that their property, houses and cars, will not be interfered with by others such as this offender. This, as I said earlier, was a crime spree as it can be very easily categorised as a whole."
Whilst his Honour accepted that the offending was committed impulsively and when under the influence of alcohol, he observed that a degree of planning was necessarily involved, and the evidence from the telephone intercept established clearly that the applicant's intention was to steal expensive cars and sell them for profit. The only motivation for the offending was financial.
When imposing sentences for the November 2019 offences, his Honour moderated the application of the principle of general deterrence due to the existence of Bugmy factors and the applicant's young age.
Under the heading "aggravating features", his Honour found, in relation to the Cheviot Street and Vernon Road offences, that there had been a threat to use a weapon, being the knife the offender had in his possession. It was also noted that the November 2019 offences were committed in company, in the homes of the victims, and while the offender was at conditional liberty.
Having made a positive finding concerning the applicant's prospects of rehabilitation, his Honour found that there were special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act. He was mindful of the risk that the applicant may become institutionalised if a crushing sentence was imposed. Taking into account the offences before the court on the Form 1 documents, his Honour outlined the indicative sentences and imposed the aggregate sentence set out at [3] above.

[17]

Ground 1: The sentencing judge erroneously took into account statutory aggravating factors

The applicant contends that his Honour was in error in taking into account as an aggravating feature the threatened use of a weapon with respect to the Cheviot Street and Vernon Avenue offences, and that he was "in company" at the time of the commission of the Shepherd Street and Hay Street offences, as neither aggravating feature applied.
At Cheviot Street the applicant was recorded on surveillance footage with a knife strapped to his arm whilst a co-offender had a knife in his hand. Similarly, at the Vernon Avenue break in, the applicant was filmed with a knife in his hand. The sentencing judge said of this evidence: "The Crown has submitted, which I consider has been made out on the evidence when it comes to Cheviot Street Ashbury and the Eastlake offences, there was the threatened use of a weapon, it was not in fact any indication that went beyond that."
With respect to the Shepherd Street and Hay Street break ins, the sentencing judge said in a statement referable to all the offences of November 2019: "I also note that in respect of all those offences in November 2019, they were committed in company with others […]".
The Crown argues that it was open to the sentencing judge to find that the offences committed at Vernon Avenue and Cheviot Street were aggravated, since the applicant had a knife strapped to his arm or in hand and a co-offender was carrying a knife and, inferentially, the knives were used in the commission of the crime; or the possession of them was enough to make out the aggravating feature.
As to the aggravating feature of "in company", the Crown concedes that there was error in the conclusion of the sentencing judge. There was no evidence that the applicant was in company when committing the offence at Shepherd Street Ashfield and, although he was in company at Hay Street Ashbury, this was an element of the offence and could not also be considered as an aggravating feature.
The Crown is correct to concede error with respect to the feature of aggravation of "in company" found by his Honour and the applicant's complaint about this aspect of the matter must be upheld. Contrary to the Crown's submissions, error is also made out with respect to the feature of threatened use of a weapon. His Honour's treatment of that feature as a matter of aggravation was also in error since there was no evidence that the applicant used the knife or threatened to do so.
Section 21A(2) of the Crimes (Sentencing Procedure) Act provides, relevantly, as follows: "21A Aggravating, mitigating and other factors in sentencing […] (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows - […] (c) the offence involved the actual or threatened use of a weapon, […] (e) the offence was committed in company, […] The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence".
The offences at Cheviot Street and Vernon Avenue were each charged contrary to s 112(2) of the Crimes Act as aggravated offences. The phrase "circumstance of aggravation", which forms part of an offence pursuant to s 112(2), is defined by s 105A(1) of the Act: "105A Definitions (1) In sections 106-115A - […] 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."
With respect to the offences at Shepherd and Cheviot Streets and Vernon Avenue, the Crown particularised the circumstance of aggravation as the feature referred to in s 105A(1)(f), that the applicant knew persons were inside the premises. With respect to the Hay Street offence, the circumstance of aggravation particularised was that the applicant was in company. Particularising one circumstance of aggravation did not preclude the Crown from relying on evidence of any other circumstance of aggravation that existed. Section 105A(1) refers to circumstances of aggravation as "any one or more" of the features listed. For the Cheviot Street and Vernon Avenue offences the evidence established the particularised circumstance of aggravation, knowledge of persons present, but also two further features that met the definition of "circumstance of aggravation", being that the applicant was armed with an offensive weapon (s 105A(1)(a)), and that he was in the company of other persons (s 105A(1)(b)). The sentencing judge was entitled to have regard to all three circumstances established by the evidence as relevant to an assessment of the objective gravity of the facts of the particular crime. No breach of the principle in The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 could be involved, because considering the existence of other circumstances of aggravation listed in s 105A(1) of the Crimes Act did not involve taking into account features that established a more serious offence which attracted a greater maximum penalty. Considered as circumstances of aggravation for the purposes of ss 105A(1) and 112(2) of the Crimes Act, neither would there have been the error under s 21A(2) of the Crimes (Sentencing Procedure) Act, because the evidence would have been taken into account as evidence relevant to an element of the offence, rather than as a feature of statutory aggravation.
Being armed for the purposes of s 105A(1) of the Crimes Act, however, is a different thing to using or threatening to use a weapon for the purposes of s 21A(2) of the Crimes (Sentencing Procedure) Act. An offender will be armed if he or she has a weapon in possession which is available for use. A person uses or threatens to use a weapon only if some additional act is carried out.
Whilst the applicant was armed when committing the Cheviot Street and Vernon Avenue offences, as was a co-offender, there was no evidence that either offender used or threatened to use the knife as a weapon at the time. To use or threaten to use a weapon requires something more than the mere possession of it; it must be employed for some purpose. The evidence is that the applicant had the knife in his possession, and no doubt it was available for use. However, as he did not encounter the occupiers of the two relevant premises, or any other person who might have challenged him, there is no evidence that he ever removed the knife from the device attaching it to his arm, much less that he brandished it to threaten any person, told any person he would use the knife against him or her, or did use the knife as a weapon at any time. The applicant's mere possession of a knife without more does not establish that he used or threatened to use the weapon. To that extent, the sentencing judge was in error.
Whilst error has been established with respect to this aspect of his Honour's remarks, it must be observed that it was error of a somewhat technical kind, which did not serve wrongly to inflate the assessment made of the gravity of these offences, that assessment being consistent in any event with the submissions of the parties. It was entirely open to his Honour to have regard to the fact that, at the time of the commission of these offences, three circumstances of aggravation, as defined by s 105A of the Crimes Act, were made out, being that the applicant knew there were persons present at the premises, he was in company, and he was armed with an offensive weapon. It is clear from the remarks of the sentencing judge that, in concluding that a statutory feature of aggravation pursuant to s 21A(2)(c) was established on the evidence, the sentencing judge had regard only to the fact that the applicant was carrying the knife about his person. The error was in concluding that possession was sufficient to establish use or threatened use.
As the Crown conceded, there was also error in his Honour's reference to the offences committed at Shepherd Street and Hay Street as having been committed in company. There was no evidence before the sentencing court that established that the applicant was with any other person on those two occasions, and the statutory feature of aggravation provided for by s 21A(2)(e) was not made out. His Honour erred in making the finding he did.
Error having been established, it is not strictly necessary to consider the remaining grounds, since the Court is obliged to proceed to re-sentence, unless not of the opinion that some other sentence is warranted in law and should have been passed: Criminal Appeal Act 1912 (NSW) s 6(3); Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.
However, since grounds 2 and 3 and their resolution are relevant to the re-exercise of the sentencing discretion by this Court, they will be briefly considered.

[18]

Ground 2: The sentencing judge erred in taking into account the matters on the Forms 1 when assessing the objective seriousness of five of the principal offences

The applicant argues that his Honour wrongly had regard to the thefts of the particular motor vehicles, in each case placed on a Form 1 document to the related break and enter, when assessing the gravity of each of the principal offences. Relying in his written submissions on the decision of RO v R [2019] NSWCCA 183 at [56], he submitted that the sentencing judge was required to make an assessment of the principal offences in isolation, without reference to the existence of the offences on the associated Forms 1. In RO, Beech-Jones CJ at CL said, at [56] - [57]: "It is clear from this passage that in assessing the objective seriousness of the offending embraced by count 1, the sentencing judge took into consideration the conduct of the applicant in relation to the Form 1 offence described at [12] [removed hyperlink] which concerned another incident at a different time. The sentencing judge found that the Form 1 offence elevated the objective seriousness of the offending. This involved error at two levels. First, it is erroneous because the assessment of the objective seriousness of a criminal offence that carries a standard non‑parole period "is to be determined wholly by reference to the nature of the offending" for that offence and not other criminal conduct engaged in on a different occasion (Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27])."
That submission relied upon what was said at [57] of RO with respect to the circumstances that applied in that case and sought to use it as a broad statement of principle applicable in every case regardless of individual circumstances. It cannot be used in that way. In RO the offence on the Form 1 document to which the sentencing judge had regard in assessing the gravity of the principal offence was a different crime that had been committed on another occasion. The use of an unconnected crime as a feature relevant to the gravity of the offence under consideration is plainly erroneous. However, that was not the situation in the present case.
In each instance the offence concerning the theft of the motor vehicle that had been placed on the individual Form 1 document to the associated offence of aggravated break enter steal before his Honour for sentence was inextricably linked to the principal offence. The break and enter offences were, in each case, committed with a view to stealing the keys to a valuable car (by inference) observed to be associated with that premises. Whilst the Crown necessarily charged the theft of the cars separately to the s 112(2) offences, as in each instance the vehicles stolen were not taken from within a dwelling house or other building, the two crimes were directly and closely linked.
In a decision following RO, Beech-Jones CJ at CL discussed it and another similar case, Singh v R [2021] NSWCCA 96, and made it clear that it was open to sentencing courts to have regard to an offence on a Form 1 document when assessing the objective seriousness of the principal offence when the Form offence was important to the assessment of the criminality involved. In Ragg v R [2022] NSWCCA 150 his Honour said, at [38] - [39]: "Hence, RO is authority for the proposition that it is erroneous to use an offence committed on another and completely different occasion as part of the assessment of the objective seriousness of the subject offence. Both RO and Singh are authority for the proposition that it is erroneous to use a Form 1 offence per se in assessing the objective seriousness of the substantive offence. This case does not concern a Form 1 offence. However, neither RO or Singh are authority for a blanket proposition that the facts and circumstances of a related offence can never be relevant to the assessment of the objective seriousness of the subject offence. There is no such proposition. The real issue is not so much whether the facts and circumstances of a related offence might be capable of affecting the assessment of the objective seriousness of the subject offence, but how they can affect that assessment. Such facts and circumstances are sometimes considered as part of the context of the offending. Hence, in LN v R [2020] NSWCCA 131 ("LN") at [54] Basten JA observed: "So long as it is legitimate to view an offence in context, which may include other activities of the offender, it is apparent that context may either render the objective seriousness of the offending greater than would otherwise have appeared or, depending on the extent to which different criteria are involved, may increase the moral culpability of the offender. In either case, the result may be to increase the sentence beyond that which might have been imposed had the surrounding events not been examined. There is no reason in principle to conclude that conduct which may involve criminality should be excluded, whereas conduct not itself criminal could be examined. On any view, conduct adverse to the offender's interests must be established beyond reasonable doubt.""
In DPP (NSW) v TH [2023] NSWCCA 81 at [24] Beech-Jones CJ at CL confirmed what his Honour had said in Ragg on this point: "However, the inclusion of an offence on a Form 1 does not of itself increase the assessment of the objective seriousness of the substantive offence (Singh v R [2021] NSWCCA 96), although the facts and circumstances of the Form 1 offence (or uncharged acts) may be relevant to the assessment (see Ragg v R [2022] NSWCCA 150 at [38]−[47]; "Ragg"). For example, such circumstances might place the substantive offence in context (LN v R [2020] NSWCCA 131 at [54] per Basten JA; "LN") or, if they involve the infliction of harm on the victim immediately prior to the substantive offence, they might demonstrate the victim's vulnerability when the substantive offence was committed (LN at [159]; Ragg at [44])".
The theft of the motor vehicles constituted the achievement of the principal aim of the applicant in committing the s 112(2) offences: he was able to secure the keys to the relevant vehicles from the dwelling houses, thus enabling the cars to be easily stolen, with no damage occasioned to them by a forced entry or forcibly starting the vehicle. Assessing the gravity of the s 112(2) offences without reference to the subsequent theft of the cars would have been entirely artificial and led to an incorrect assessment of their gravity. The Form 1 offences informed the assessment of the gravity of the principal offending and placed it in a proper context. There was no error in his Honour's assessment and the regard he had to the offences on the Form 1 documents for that purpose.
That conclusion is further reinforced by the applicant's position before the sentencing judge. In submission to his Honour his legal representative indicated broad agreement with the submissions made by the Crown concerning the gravity of the offending, in circumstances where those submissions referred to the theft of the particular cars, the value of each, and whether the vehicles were recovered, as part of the assessment to be made. The conclusions of the sentencing judge in each instance accorded with the submissions of both the Crown and the applicant.
This ground has no merit. On re-sentence, it is appropriate for this Court when considering the gravity of the offences to consider the broader context of the commission of the s 112(2) offences by reference to the car theft offences taken into account on each Form 1 document.

[19]

Ground 3: The sentencing judge erred by failing to have regard to the impact of COVID-19 on the conditions of the applicant's imprisonment

With respect to this ground the applicant conceded that there was no evidence before the sentencing court concerning the effect of the COVID-19 virus on his conditions of custody. A written submission was made at first instance to the effect that the virus and its impact on prisoners was a relevant consideration for the sentencing court. His Honour did not refer to the pandemic and the custodial environment in delivering his ex tempore sentencing remarks.
Presumably, his Honour made no reference to the effect of the virus upon the applicant's conditions of custody because there was no evidence before him as to what, if any, the effect had been. There was no evidence concerning the infection control measures imposed in the prisons in which the applicant had been held, and the applicant had made no complaint concerning such measures when speaking to the psychologist who assessed him.
As I observed in Wass v R [2022] NSWCCA 143 at [71], with the agreement (and additional remarks) of Beech-Jones CJ at CL, if an offender contends that a sentence to be imposed should be ameliorated due to the adverse effect of the pandemic on the individual's time in custody: "[…] there must be current and reliable evidence of any adverse consequence contended for if a sentencing court is to take the feature into account when determining the sentence to be imposed; it is not enough to point to the existence of the virus generally, or to decisions of this or other courts handed down at the height of the pandemic, to seek amelioration of sentence. See generally Scott v R at [158] - [164]".
It is not enough to make a general claim of hardship, particularly given the fluid nature of the restrictions that applied from time to time during the pandemic. In those decisions the applicant points to as supporting the proposition that the impact of the virus on custodial conditions can or should mitigate the sentence imposed, Scott v R [2020] NSWCCA 81 and McKinnon v R [2020] NSWCCA 106, there was evidence of the impact of the virus on the respective applicants.
Without evidence his Honour could not consider the effects of the virus on the applicant's conditions in custody. There was no error in him failing to do so.

[21]

Re-Sentence

On the question of re-sentence the applicant read his affidavit affirmed on 18 May 2023. In it he said that in the early part of his incarceration his behaviour had been poor, but from early in 2022 he came to the decision that prison was not a good place to be and he did not wish to return to it. His behaviour improved and his last misconduct in prison was a drug offence in April of that year. Since then, the applicant has been employed with fencing and upholstery work, and he has undertaken some courses. He is presently enrolled in the Intensive Drug and Alcohol Treatment Programme. His improved behaviour saw him appointed sweeper when at Wellington Correctional Centre.
The applicant contracted the COVID-19 virus when held at Wellington, but received treatment and his health is otherwise good. An anti-craving drug administered to the applicant to assist with abstinence from drug use has had good effect.
The applicant has access to an iPad in his cell which he can use for phone calls, to watch movies or play games, and for other purposes. Having been held at regional prisons the applicant has not been visited by his family, although he has kept in regular contact with them. His older brother died in April 2023 and the applicant was taken from prison to attend the funeral and service, held in early May.
The applicant plans to work in construction upon his release. A number of certificates of attainment were provided to the Court, establishing that the applicant has undertaken training in hospitality, art, construction work, workplace health and safety processes and communications, and environmentally sustainable work practices.
Having considered the evidence that was before the sentencing court, and the additional evidence, and noting the discount on sentence to be applied in recognition of the early pleas of guilty, I would indicate lesser terms than those announced at first instance for the Shepherd Street and Hay Street offences. With respect to the Cheviot Street and Vernon Avenue offences contrary to s 112(2) of the Crimes Act, H759/4 and H759/5 respectively, whilst the statutory feature of aggravation of using or threatening to use a weapon is not present, three circumstances of aggravation for the purposes of s 105A and s 112(2) of the Crimes Act are present, making these particularly serious instances of such an offence. On re-sentence the sentences I would indicate are not lesser terms than those announced by the sentencing judge.
For the offences contrary to s 112(2) committed at Shepherd and Hay Streets, H734/1 and H734/2 respectively, and taking into account the offences on the Form 1 documents, the indicative sentences I would note, rounding down where necessary to avoid expressing a term containing a number of days, are: 1. H734/1: 2 years and 3 months imprisonment with NPP 1 year and 7 months; 2. H734/2: 2 years and 2 months imprisonment; NPP 1 year and 6 months.
Those lesser indicative sentences have some impact on the aggregate sentence to be served, although it is very modest. On that basis, I would set aside the aggregate sentence imposed in the District Court and proceed to re-sentence. The aggregate sentence that I would impose, preserving as closely as possible the (very generous) ratio of sentence allowed at first instance, is a term of 8 years and 9 months imprisonment, with a NPP of 4 years and 10 months.
Since the sentence I would impose is slightly lower than that imposed in the District Court, even though the delay in bringing this application is a lengthy one, I would extend the time in which it can be brought.

Flick v R

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