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File Number: ACTCA 48 of 2019

Decision under appeal: Court: Supreme Court of the ACT Before: Elkaim J Date of Decision: 15 October 2019 Case Title: R v Forster-Jones (No 2) Citation: [2019] ACTSC 286

THE COURT:

Introduction

1. On 15 October 2019 the appellant in this matter, Peter Forster-Jones, appeared for sentence before Elkaim J, having earlier pleaded guilty to a significant number of serious offences: see R v Forster-Jones (No 2) [2019] ACTSC 286 (Forster-Jones (No 2)). Those serious offences included one of murder, the appellant having killed a man by the name of Eden Waugh. His Honour sentenced the appellant to imprisonment for a total of 40 years, five months and 23 days, with a non-parole period of 25 years.

2. The appellant now appeals against the sentence imposed. The Crown concedes that the sentencing judge erred in a particular respect. We accept the appropriateness of that concession and will explain why later in this judgment. It thus becomes the task of this court to resentence the appellant.

Facts

3. The offences committed by the appellant occurred on two separate days, being 22 September 2016 and 3 November 2016.

4. Mr Waugh and his partner, Ms Marion Barr, lived in a home unit on the third floor of a block of units in Watson, ACT. They were both involved in selling heroin and methylamphetamine from their flat. Drug users would regularly visit there in order to purchase or use illicit drugs. Also present in the unit on 22 September 2016 were three other people, Mr David Baxter, who had been staying in the flat for about 12 months, Ms Jamie-Lee Weaver, a friend of Mr Baxter, and a friend of Mr Waugh’s, Mr Jairo Cajina.

5. The appellant and the others involved in the offences that we will shortly describe, were users and purchasers of drugs. They decided to commit a home invasion involving considerable violence in order to get drugs and money.

6. On the morning of 22 September 2016, the appellant and two other men, Mr Trevor Green (a pseudonym) and Mr Phouthakone Sikounnabouth, went to the front door of the home unit. They were all armed with significantly dangerous weapons. Mr Green had a sawn-off double-barrelled shotgun, the appellant was armed with a machete and Mr Sikounnabouth had a metal pole or a bat. Mr Green knocked on the front door. Ms Barr opened it. She tried to close it, but Mr Green pushed her out of the way so that he and the other two men with him could enter the unit. Ms Barr escaped by running out the door. She contacted a friend, who in turn contacted police to inform them that a home invasion was taking place.

7. Inside the unit Mr Green told Mr Waugh to sit on the couch, which he did. Despite cooperating in that way, Mr Green struck him on the head with the butt of the shotgun he was carrying, leaving a laceration. That represents an offence of assault occasioning actual bodily harm (count 2). The three offenders then demanded drugs and money from Mr Waugh. The appellant raised the machete he was carrying so that he could hit Mr Waugh with it. In order to defend himself, Mr Waugh raised his arm up and was thus struck on the right wrist by the machete, leaving a laceration so deep that his dorsal tendons were exposed. That conduct led to a charge of wounding (count 3).

8. The three intruders then broke down Mr Waugh’s bedroom door, which had been locked, in order to look for drugs and money. Mr Waugh told them that he did not have anything and kept apologising and calling out for help.

9. Next, the appellant struck Mr Cajina to the head with his machete. So scared was Mr Cajina that he ran to a window and, despite the flat being on the third floor, jumped out in order to escape. Mr Cajina sustained lacerations to his scalp from being struck with the machete and fractures to his vertebrae as a result of the fall from the third floor window. He also sustained multiple lacerations to his left hand. The appellant caused those injuries, even though it was Mr Cajina’s fall as he escaped which was responsible for some of them: see Royall v The Queen (1991) CLR 378. What we have just described represented two more offences, one of assault occasioning actual bodily harm (count 4) and the other of inflicting actual bodily harm (count 5). The former was as a result of the appellant striking Mr Cajina to the head with the machete and the latter relating to the injuries suffered by Mr Cajina after he jumped out of the window.

10. Back inside the unit, the invaders’ attention turned to Mr Baxter and Ms Weaver who were in Mr Baxter’s bedroom. Mr Green barged into Mr Baxter’s bedroom demanding drugs and money. At this stage, Mr Green was the one in possession of the machete and he struck Mr Baxter in the head with it. As a result of this act of violence, Mr Baxter suffered a laceration above his left eye, another offence of assault occasioning actual bodily harm. There was no charge brought against the appellant relating to the blow struck by Mr Green. Mr Green ransacked the bedroom saying “where’s your cash”. The appellant then entered the room and handed Mr Green the shotgun, receiving the machete in return. Mr Green struck Mr Baxter to the forehead with the shotgun and threatened both him and Ms Weaver with it by pointing the gun at them. The striking of Mr Baxter by the appellant amounted to another offence of assault occasioning actual bodily harm (count 6).

11. The three offenders eventually left the home unit carrying their weapons. They got into a vehicle parked nearby and drove away. The home invasion we have described represented an offence of aggravated burglary (count 1).

12. That description of the events of 22 September 2016 is enough to demonstrate the callous attitude of the appellant towards the multiple victims of his offending. However, what happened when the appellant returned on 3 November 2016 was much, much worse.

13. In the early evening of that day, the same three men returned to the home unit. This time, Mr Sikounnabouth remained in a car, which had been borrowed for this purpose, while Mr Green and the appellant went upstairs. It was the appellant who had the shotgun on this occasion. He was also armed with a machete, while Mr Green had a crowbar.

14. There were two entry doors to the home unit, a screen door and a wooden door. Both were locked when the two men arrived. They banged and knocked and attempted to force entry. They shook and ripped the screen door, which caused it to bend, and then started kicking the locked wooden front door. Mr Waugh and Ms Barr were inside the unit and at least the former must have come to the front door in response to the commotion. To the knowledge of the appellant, Mr Waugh was standing on the other side of the front door when the appellant fired a single shot from his shotgun. The projectiles penetrated the front door and then entered the left side of Mr Waugh’s chest, causing fatal injuries to his heart and lung.

15. After firing the fatal shot, the appellant put his shotgun back in the bag he was carrying and removed the machete from his bag. Mr Green and the appellant were then able to force the wooden door open and entered inside. The appellant saw Mr Waugh’s body lying in the hallway. He did not apparently pause to reflect on what he had done, stepping over Mr Waugh’s body, which was lying in a narrow hallway, so that he could enter the unit and rob Ms Barr.

16. Mr Green demanded heroin from Ms Barr before grabbing her and throwing her to the ground. She was then dragged by the hair to the lounge room. Her handbag was taken away from her, ripping her shirt in the process. Mr Green took about $200 cash and a mobile phone. He demanded drugs from Ms Barr, so she went into her bedroom to look for some, with Mr Green following her.

17. Eventually, the appellant and Mr Green left the unit carrying their weapons and Ms Barr’s items with them. They got into the car where Mr Sikounnabouth was waiting and drove away.

18. The events we have just described form the basis of two charges, the murder of Mr Waugh (count 7), and the aggravated robbery of Ms Barr (count 9).

19. Some time passed before the appellant was arrested. In the meantime, police obtained a recording of the appellant speaking to another person, in which he gave details of his involvement in the offences. The sentencing judge did not regard the things said by the appellant which were recorded as being terribly reliable. Certainly, given the circumstances in which the recording was made, we could not be satisfied beyond reasonable doubt of any of the otherwise aggravating things said by the appellant on that recording.

20. On 23 February 2018 the appellant was arrested and charged. He has remained in custody ever since.

The sentencing proceedings

21. On 17 June 2019, the first day of the trial, the appellant pleaded guilty to all of the offences with which he had been charged, with the exception of murder. He pleaded not guilty to murder but guilty to manslaughter, having advised the Crown about 11 weeks earlier of his intention to enter those pleas. The Crown did not accept the plea to manslaughter in satisfaction of the charge of murder and so a trial on that charge commenced. The appellant had earlier advised the Crown that the only issue in dispute at that trial would be his intention when he fired the fatal shot.

22. On 19 June 2019, after the Crown and the appellant’s counsel had opened and there had been some argument about the admissibility of evidence, the appellant pleaded guilty to murder. The Crown advised the court that it was common ground that when the appellant fired the shot through the front door, he was acting with reckless indifference to human life. What that means is that the appellant realised that by pulling the trigger he would probably (as opposed to possibly) kill someone, but he fired the shot anyway: see The Queen v Crabbe (1985) 156 CLR 464.

23. The sentencing hearing took place on 15 October 2019. Mr Waugh’s parents read victim impact statements and a number of documents were tendered. No oral evidence was called. In particular, the appellant did not give evidence.

24. Elkaim J imposed the following sentences for the eight offences:

Count on Charge Sentence Commencement indictment

1 Aggravated burglary 7 years’ imprisonment 23 February 2018 (CC2018/3161)

2 Assault occasioning 2 years’ imprisonment 22 February 2024 actual bodily harm (XO2018/31386)

3 Wounding 2 years’ imprisonment 21 February 2025 (XO2018/31387)

4 Assault occasioning 1 year’ imprisonment 20 August 2026 actual bodily harm (XO2018/31388)

5 Inflict actual bodily harm 1 year’ imprisonment 19 February 2027 (XO2018/31389)

6 Assault occasioning 1 year’ imprisonment 18 August 2027 actual bodily harm (XO2018/31390)

7 Murder (CC2018/3162) 24 years’ imprisonment 16 August 2028

9 Aggravated robbery 8 years’ imprisonment 15 August 2050 (XO2018/31391)

25. Thus the total effective sentence was one of imprisonment for 40 years, 5 months and 23 days, with a non-parole period of 25 years.

The appeal

26. After the sentences were imposed, the appellant appealed to this court raising a number of grounds of appeal. As we have already mentioned, the Crown accepts that one of those grounds of appeal is made good. We will explain at this stage why we accept the Crown’s concession.

27. In the judgment of the sentencing judge, the final offence, count 9, the robbery of Ms Barr, is referred to at [14]. That paragraph is as follows: The front door was then forced open. The offenders gained entry into the unit in their search for drugs. They needed to step over the body of the deceased which they did with little regard for him. This is Count 9. This is the factor that affects concurrency of the sentence for the robbery with that for the murder.

28. The appellant argues, and the Crown accepts, that his Honour has fallen into error by failing to assess the objective seriousness of count 9.

29. Assessment of the objective gravity of any offence is a fundamental part of determining the appropriate sentence for that offence: see eg R v Cage [2006] NSWCCA 304 at [17], R v Campbell [2014] NSWCCA 102 at [27] and R v Van Ryn [2016] NSWCCA 1 (Van Ryn) at [135].

30. Not only must sentencing judges make such an assessment, but it must be apparent from their sentencing judgments that that is what they have done: see eg Van Ryn at [141]. A failure to do so will mean that the sentencing process has miscarried. It is not enough to simply recite the facts on which any particular count is based: Van Ryn at [137].

31. The sentencing judge’s reference to count 9 was limited to the paragraph extracted above. In the judgment, his Honour made no assessment of the objective gravity of that offence. It is for that reason we accept the appellant’s argument, and the respondent’s concession, that the sentencing judge has fallen into error.

32. It is thus necessary for this court to proceed to resentence the appellant: see Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at [42] and McLeod v The Queen [2018] ACTCA 59 at [17]. Given that consequence, it is unnecessary for us to determine any of the other grounds of appeal. That is not to say that they have been ignored. We will of course take note of them because they represent submissions as to how we should go about the task of resentencing the appellant.

Assessment of objective gravity

33. It is important not to double count when considering the objectively aggravating features of the many offences committed by the appellant. What may appear to be an aggravating feature of one offence, may be the subject of a specific further offence. Thus when considering the objective gravity of count 1, aggravated burglary, the fact that a number of people were injured in the course of the burglary cannot be taken into account, as the injuries to those people are the subject of specific offences, being counts 2 to 6.

34. We do not consider that it is necessary, in making findings as to the objective gravity of an offence, to have to descend to selecting a term such as “equidistant between the middle and the bottom of the range for an offence of its kind” or even “slightly below the mid-range:” Petkos v The Queen [2020] NSWCCA 55 at [22]. We will focus on substance rather than form. We do below all that we need to do.

Aggravated burglary (count 1)

35. Whilst most, if not all, aggravated burglaries are serious acts of criminality, there are features which point to this particular offence being especially serious. As the appellant was armed and in company, both circumstances of aggravation were present. The offence would have been committed if only one of the offenders was armed, but in this case, all three offenders were armed. The weapons which were carried were very dangerous and capable of inflicting significant harm. The appellant intended both to steal and to cause or threaten harm. There were multiple victims of this offence, because there were five people inside the unit when the offenders forced their way in. Once inside, the offenders broke down a locked door. As with all other offences committed that day, there was some degree of planning. This must have been an extremely terrifying attack, as evidenced by the fact that after the appellant struck him with the machete, Mr Cajina leapt from the third floor window in order to escape.

Assault occasioning actual bodily harm – laceration to Mr Waugh’s head (count 2)

36. A photograph of Mr Waugh taken soon after the events we have described on 22 September 2016 was tendered at the sentencing hearing. It showed a significantly lengthy and deep laceration above Mr Waugh’s right eye. He was struck despite doing what one of the offenders had just asked him to do. He was in his own home at the time.

Wounding of Mr Waugh (count 3)

37. By the time Mr Waugh was struck with the machete being wielded by the appellant, he was already injured. The wound was a significant one, much more severe than is required for the element of wounding to have been proved. The depth of the wound is apparent from the facts and another photograph of Mr Waugh tendered to his Honour, so we do not need to consider the appellant’s own description of the injury on a recording obtained by police in which he suggests that Mr Waugh “almost lost his arm”. On the other hand, it appears to have been a single blow.

Assault occasioning actual bodily harm – Mr Cajina’s head injury (count 4)

38. Mr Cajina was not in his own home. He was visiting Mr Baxter. The appellant used a quite dangerous weapon, the machete, to inflict an injury upon Mr Cajina’s head. The sentencing judge was not told any more about the effect of that violence on Mr Cajina.

Inflicting actual bodily harm – Mr Cajina’s injuries as a result of jumping out of the window (count 5)

39. Given the height, that Mr Cajina was injured as a result of jumping out of the window is not surprising. Although the Crown’s “Stateent of Fatcs” (sic) tendered to the sentencing judge informed him that Mr Cajina sustained fractures to the L4 and L5 vertebrae of his lumbar spine, the effect of those injuries upon Mr Cajina, and his prognosis, were not disclosed.

Assault occasioning actual bodily harm – Mr Baxter’s head injury (count 6)

40. Mr Baxter was a resident of the unit in which he was attacked. A photograph was tendered showing a reasonably deep wound above Mr Baxter’s left eye. That too was inflicted upon him by the appellant’s use of the quite dangerous weapon. The risk of harm to Mr Baxter’s eye is obvious.

Murder (count 7)

41. We will begin our assessment of the objective gravity of the appellant’s offence of murder by considering the significance of the circumstance that he is to be sentenced on the basis that he was recklessly indifferent to human life. As we have already noted, this means that when the appellant fired the shot gun through the closed door, he realised it was likely that he would kill someone. Indeed, in the circumstances of this case, the appellant must have realised that death was highly likely. We are satisfied beyond reasonable doubt that when he fired the fatal shot the appellant knew that Mr Waugh was on the other side of the door. There can be no other explanation for the appellant to have used his firearm as he did. The shotgun was not, for example, fired to assist in gaining entry to the flat, because the projectiles entered the door some distance away from the locking mechanism, and the two men, after the shot was fired, had to break down the door to gain entry.

42. While certainly not as objectively serious as if the appellant had intended Mr Waugh’s death, the difference between an intentional murder and one where the offender was recklessly indifferent to human life should not, in the circumstances of this case where he must have realised that death was highly likely, be given much weight.

43. Also relevant is the fact that this offence represented a repeated act of violence upon Mr Waugh by the appellant, again one committed against him in his own home.

44. The motivation of the appellant is important. At the sentencing hearing the appellant’s counsel noted that the Crown conceded that the appellant “attended the premises of Eden Waugh… for the purpose of robbing and scaring him and not for the purpose of silencing him”.

45. In GAS v The Queen; SJK v The Queen [2004] HCA 22; 217 CLR 198 (GAS), the High Court set out five fundamental principles concerning “plea agreements” made between an accused and the proposition. The third and fourth of them are apposite to this case at [30]-[31]:

46. Thirdly, it is for the sentencing judge, alone, to decide the sentence to be imposed. For that purpose, the judge must find the relevant facts. In the case of a plea of guilty, any facts beyond what is necessarily involved as an element of the offence must be proved by evidence, or admitted formally (as in an agreed statement of facts), or informally (as occurred in the present case by a statement of facts from the bar table which was not contradicted). There may be significant limitations as to a judge's capacity to find potentially relevant facts in a given case…

47. Fourthly, as a corollary to the third principle, there may be an understanding, between the prosecution and the defence, as to evidence that will be led, or admissions that will be made, but that does not bind the judge, except in the practical sense that the judge's capacity to find facts will be affected by the evidence and the admissions…

(Footnotes omitted and emphasis added).

46. Consistent with GAS, neither the sentencing judge nor this court are bound by the Crown’s concession that the appellant “attended the premises of Eden Waugh… for the purpose of robbing and scaring him and not for the purpose of silencing him”. It is for judicial officers to find facts based on the evidence before them.

47. That said, when we examined the evidence, we could not be satisfied that the appellant went back to Mr Waugh’s flat to silence him by shooting him. The High Court in GAS identified the possibility that a court’s capacity to find facts is affected by the evidence which the parties choose to put before it. That is the situation here. There was nothing before the sentencing judge, and thus nothing before us, to contradict the Crown’s concession.

48. That, however, raises the issue as to why the appellant wanted to scare Mr Waugh. We are satisfied beyond reasonable doubt that his motivation for going to the premises was to rob and scare Mr Waugh into not further cooperating with the police. He wanted to rob and scare Mr Waugh as a result of him having cooperated with the police regarding the earlier home invasion. That he was motivated by a desire to scare someone who had complained to police about his earlier serious criminal acts, only adds to the seriousness of this offence of murder.

49. As is also relevant when discussing the next offence committed that day, there was a reasonable level of planning involved. The three offenders had to assemble, weapons had to be collected, roles had to be allocated. This was not reasonably likely to have been a spur of the moment decision.

50. And finally, it must be borne in mind that the appellant went to the premises with a shotgun which was loaded. There is but one reason for loading a firearm before committing a criminal act, namely, a preparedness to discharge the firearm during the commission of that criminal act.

Aggravated robbery (count 9)

51. As with the earlier burglary offence, both circumstances of aggravation were present. Ms Barr was robbed in her own home after she had seen her partner shot and whilst he was either dead or dying just a short distance away from her. She was subject to actual violence. Both of the men were armed. This was a repeated criminal act against Ms Barr. As mentioned earlier, this offence was also planned.

Subjective circumstances

52. The appellant did not give evidence at his sentencing hearing. A pre-sentence report was tendered before his Honour, as were psychological and psychiatric reports. The authors of such reports have reached conclusions based, to a large extent, on things the appellant told them. They clearly have assumed the truth of what they were told. Whilst the history given to a psychiatrist and a psychologist is evidence of that history, the weight that we can give the conclusions of the two mental health professionals is affected by the circumstance that the appellant did not give evidence that what he told them was the truth. What follows is based in the history the appellant gave to the authors of those reports.

53. The appellant is the youngest of two children to his parents. He has an older brother as well as half-siblings. He retains the support of his parents who visit him in custody, his mother more often than his father. Domestic violence and parental alcoholism were present as he was growing up. His parents separated when he was very young, leading to a custody battle which was described as “bitter”.

54. His mother had two sons from a previous relationship who lived with the appellant and his family. When he was 11 one of his half-brothers committed suicide by hanging and when he was 17 a cousin, whom he regarded as a brother, died from a drug overdose.

55. The appellant told a psychologist that “everyone in the family has depression”. His father could be aggressive and violent to both him and his siblings.

56. His schooling was interrupted when he was asked to leave Year 10 after he had an argument with staff which “got aggressive”. He completed Year 10 nevertheless and worked briefly in demolition and construction.

57. He tried alcohol a few times in primary school but began drinking frequently in Year 7 as a means of escape. By the age of 17 he was drinking large amounts of alcohol on a daily basis. In recent times, he has begun to drink less.

58. He started using marijuana at age nine, again as a means of escape, and started smoking it daily when he turned 13. He, probably accurately, believes it exacerbated his depression and anxiety and has only occasionally used it since he was 18.

59. His use of harder drugs began at 13 and his use of ice started when he was 15. He has been able to achieve abstinence on occasions, but there were periods of particularly heavy use after his cousin died from a drug overdose and then in the context of a relationship breakdown, as well as in the commission of these offences.

Criminal History

60. Given the offences for which he was being sentenced, and his background, the sentencing judge was surprised at the limited criminal history of the appellant. It is certainly unusual for a young man’s first serious brush with the criminal law to involve offences as grave as the ones for which he is to be resentenced in this court.

Mental Health

61. There was no challenge to the sentencing judge’s summary of the two reports, each with an addendum, from the psychologist and the psychiatrist. His Honour said this at [18]- [20]:

62. The offender has suffered mental health problems since he was a child but he does not seem willing to take part in regular treatment. His physical health is good although there is a suggestion of renal failure and asthma.

63. I have been provided with a report from a psychologist, Dr Clout. She says that his “mental health has been significantly impacted by several factors in his background history. The factors considered most likely to have had an ongoing impact on his mental health include stints of exposure to emotional and physical abuse during his upbringing, the suicide death of his brother when he was 11, and the overdosing death of another brother when he was 17.” She says he needs extensive treatment to improve his mental health and functioning and to reduce the likelihood of reoffending after release.

64. There is also a report from a psychiatrist, Dr Singh. She sets out the mental health problems suffered by the offender including attention deficit hyperactive disorder, major depression, post-traumatic stress disorder and a substance induced psychotic disorder. She joins with Dr Clout in suggesting future treatment. She also says that “imprisonment is more onerous for patients with mental illnesses, especially when their symptoms are untreated, enduring and cause significant functional impairment” she thinks that “the imposition of full-time imprisonment will, therefore, be more onerous for Mr Forster- Jones because of his mental health disorders”.

65. At the appeal, counsel for the appellant disavowed any suggestion that the findings of the psychologist or psychiatrist were capable of reducing the appellant’s moral culpability. Counsel did suggest that the appellant might find his time in custody harder than would otherwise be the case. In fact, the evidence at the time of sentence would suggest that prison had been of benefit to the appellant’s mental state, because he was forced to give up his illegal use of drugs.

66. It is possible, but far from certain, that the appellant’s mental health may significantly decline over time in custody. We have taken into account the risk that that will happen. Youth

67. The appellant was only 21 years of age at the time of his offending. Although he committed crimes that a fully grown adult might commit, that is far from saying that the appellant had the maturity of a fully grown adult. He did not, and is not to be sentenced as though he had.

General deterrence

65. When sentencing him, even given the offender’s youth and mental health, general deterrence is of particular importance in the present case. Elkaim J said “The criminal underworld may think it acts according to its own rules, but it does not”: Forster-Jones (No 2) at [27]. These are sentiments we endorse. Those involved in the distribution of drugs, and those who are addicted to them, often enough resort to violence in pursuit of their objectives. Drug users commonly lose a sense of proportion in their desire, often driven by an addiction, to satisfy what they perceive as a need for drugs.

66. Offences of violence committed within the drug subculture are of great concern to the community, and where offences such as these are committed, there is a significant need to impose substantial, or even harsh, sentences of imprisonment, in order to deter others who may be tempted to act in a similar way.

Personal deterrence and prospects for rehabilitation

67. At this stage, the prospect of the appellant’s rehabilitation must be regarded as being rather bleak. Despite his limited criminal history, the psychologist reported that the appellant’s “overall score on a risk of general recidivism measure was in the very high-risk range”. However, it has to be recognised that the appellant will not become eligible for release from custody until many years in the future. Much may change between now and then, in particular, the length of the overall sentence which must necessarily be imposed upon the appellant may change his attitude towards offending. It may not of course, but at this stage we simply do not know what the appellant will be like when he eventually becomes eligible for release.

Remorse

68. As far as remorse concerning the offences of 22 September 2016 is concerned, the appellant told the psychologist that he “regrets it to an extent”, claiming that he used “the blunt side of the machete” and that he would not have committed such offences against “innocent people”. With regard to the more serious offences on 3 November 2016, he told the psychologist that he felt sorry for the impact on Mr Waugh’s partner and family and cannot believe that he did what he did. To the psychiatrist he said he was very sad about what had happened, sad for the victim, the victim’s family, his family and for himself. In addition, the appellant wrote a letter to Mr Waugh’s family in which he apologised for his actions which resulted in the death of their son.

69. Of course, those expressions of remorse may have been the product of the appellant’s belief that, to put matters frankly, he will get a lower sentence if he says he is sorry than if he does not. We note again that he did not give evidence at his sentence proceedings.

70. However, that is not all the appellant has said on this topic. In the recording obtained by police, which the appellant could not anticipate would ever become known to them, the appellant said things such as “no one really deserves... for that to happen to ‘em in their own house” and that he felt that Mr Waugh “wasn’t deserving of it completely”. He said that he was “conflicted” because “I just justify it by saving my brother, you know what I mean, because he was gonna put my brother in – like, he would be in jail for home invasion and shit like that”.

71. Thus, whilst we accept that the appellant is remorseful, that is qualified by the appellant’s self-justification for what he did.

Discounts for pleas and s 35A

72. In order to reflect the utilitarian value of the appellant’s pleas of guilty, the sentencing judge discounted the sentences he would otherwise have imposed by 10%, except for the murder charge where the discount was 5%. There has been no challenge to those discounts, and we will apply them in this resentencing exercise.

73. His Honour made no separate allowance under s 35A of the Crimes (Sentencing) Act 2005 (ACT). There was, but is no longer, a challenge to that latter decision. Nevertheless, we consider that the approach the appellant took to what was to be his trial for murder, whereby the issues were limited indeed, is a matter which deserves to be taken into account in the appellant’s favour.

74. We do not feel the need to specify a percentage discount, and indeed consider that we should not do so lest it appear that sentencing has become a mathematical exercise. We take into account that by making appropriate admissions well in advance of his trial for murder, the appellant assisted the administration of justice and his sentence for that offence will be reduced accordingly.

Accumulation

75. The appellant complained about the extent of accumulation regarding the sentencing judge’s sentences in respect of the events of 22 September 2016. In written submissions, it was said “count 1 formed the basis of the criminal liability in respect of counts 2 to 6”. That is simply not the case. Count 1, it will be remembered, was an offence of burglary, in effect a home invasion. Many such offences are committed without any actual act of violence being inflicted on any of the occupants inside. This was not such a case. In at least one case, count 2, the infliction of violence appears to have been gratuitous as Mr Waugh was doing what the offenders demanded of him immediately before he was struck by the shotgun.

76. Each of counts 2 to 6 related to a separate act of criminality, involving three separate victims. It is not enough to say that this was a single episode of criminality in order to justify a significant level of concurrence of sentence.

77. Complaint was also made about the degree of accumulation between counts 7 and 9. Those two offences covered completely separate acts of criminality. The focus of count 7 was on the death of Mr Waugh. The focus of count 9 was the robbery of Ms Barr, a woman who had just seen her partner shot, he being either dead or dying as she was threatened with violence, dragged by her hair, and her property stolen.

78. Finally on this issue, complaint was made concerning the complete accumulation between the counts referable to 22 September 2016 and those referable to 3 November 2016. As we have already mentioned, it was an aggravating circumstance that the appellant and his co-offenders committed repeated criminal acts against Mr Waugh and Ms Barr. That will be reflected in the sentences imposed. Repeated offences against the same victims are matters of aggravation (see eg Re Attorney General’s Application (No 1) under s 26 of the Criminal Procedure Act; R v Ponfield; R v Scott; R v Ryan; R v Johnson [1999] NSWCCA 435; NSWLR 327), not deserving of leniency by excessive concurrency of sentences.

79. Nevertheless, the principle of totality applies: see R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159 (MAK) at [15]-[18]. We must ensure that the overall sentence to be served by the appellant is a “just and appropriate measure of the total criminality involved”: Postiglione v The Queen (1997) 189 CLR 295 at 307-308 per McHugh J. On the other hand, we must be careful because “Public confidence in the administration of justice requires the Court to avoid any suggestion that what is in effect being offered is some kind of a discount for multiple offending: R v Knight (2005) 155 A Crim R 252 at [112]”; MAK at [18]. We have attempted to balance those somewhat competing principles in the sentences we will impose.

Orders

80. The orders of the Court are:

(1) We allow the appeal and quash the sentences imposed by Elkaim J.

(2) We sentence the appellant to imprisonment as follows:

(a) For count 1, the appellant is sentenced to six years’ imprisonment, starting on 23 February 2018 and ending on 22 February 2024.

(b) For count 2, the appellant is sentenced to two years’ imprisonment, starting on 23 February 2022 and ending on 22 February 2024.

(c) For count 3, the appellant is sentenced to two years’ imprisonment, starting on 23 February 2023 and ending on 22 February 2025.

(d) For count 4, the appellant is sentenced to one year’s imprisonment, starting on 23 February 2024 and ending on 22 February 2025.

(e) For count 5, the appellant is sentenced to one year’s imprisonment, starting on 23 August 2024 and ending on 22 August 2025.

(f) For count 6, the appellant is sentenced to one year’s imprisonment, starting on 23 February 2025 and ending on 22 February 2026.

(g) For count 7, the appellant is sentenced to 20 years’ imprisonment, starting on 23 August 2025 and ending on 22 August 2045.

(h) For count 9, the appellant is sentenced to eight years’ imprisonment, starting on 23 February 2040 and ending on 22 February 2048.

(i) The total sentence is 30 years’ imprisonment. (3) We set a non-parole period of 18 years, commencing on 23 February 2018 and ending on 22 February 2036.

I certify that the preceding eighty [80] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Chief Justice Murrell, Acting Justice Crowe and Acting Justice Berman.

Associate:

Date: 5 June 2020