28Ground 1 of the appeal contended that the sentencing judge failed to consider the principle of totality when fixing a start date for the s 95 offence. His Honour did not expressly refer to this principle in the sentencing judgment. However, his Honour must have had regard to it as that was the only basis upon which his Honour could have made the sentence for the s 95 offence partly concurrent with the sentence for the s 98 offence. Thus, as formulated, this ground could not be made out as the totality principle was applied. In argument this ground was refined to a contention that His Honour failed to properly apply the totality principle.
29Ground 2 of the appeal contended that the sentence imposed for the s 95 offence was manifestly excessive. I will address this ground first as a misapplication of the totality principle need only be addressed if I first concluded that no error was established with each of the sentences that were imposed (Pearce v R [1998] HCA 57; (1998) 194 CLR 610 at [45]).
30It was submitted on behalf of the applicant that given his age, his intellectual disability, the fact that he had no prior criminal convictions and the objective seriousness of the s 95 offence, the penalty imposed was manifestly excessive. The applicant relied on statistics maintained by the Judicial Commission of penalties imposed for s 95 offences. They demonstrate that from a sample of penalties imposed for 306 offences under s 95, 249 were full time custodial sentences. Out of that 249, a total or "head" sentence of over 6 years was imposed in 10% of cases and the highest sentence imposed was 9 years. The number of offences which had resulted in a fixed term or non-parole period was 187. The range of minimum custodial sentences imposed was from 6 months to 5 years with only one case reaching the latter figure. As I have stated, the applicant was sentenced to an overall term of 11 years with a non-parole period of 6 years.
31The applicant also provided a brief précis of a number of cases decided by this Court concerning s 95. The Crown pointed to the limited utility of those decisions in assessing whether a particular sentence was manifestly excessive given their differing circumstances. Both parties referred the Court to the discussion in Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [53] to [56] (per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) concerning the utility of, and limitations upon, relying on records of sentencing outcomes in other cases. Part of that discussion included a restatement of the following passage from Wong v R [2001] HCA 64; (2001) 207 CLR 584 at [59]:
"Similarly, recording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were." (emphasis in original)
32To resolve the appeal it is not possible, nor necessary, for me to interrogate the statistics and the table provided, beyond observing that the absence of any total sentence above 9 years suggests that, at the very least, the occurrence of any offence which can be categorised at the high end of seriousness for this offence is very rare.
33In considering the sentence for the s 95 offence it is necessary to place the s 98 offence in context. There is no challenge by either party to the sentence imposed for that offence. Neither the question of the appropriate sentence for the s 95 offence or the appropriate level of cumulation can be approached on the basis that the applicant deserved a greater sentence for the s 98 offence. Equally it is not appropriate to engage in a process of comparing and contrasting the injuries inflicted on the two victims with a view to drawing some conclusion that the s 95 offences was not particularly serious when compared with the circumstances of s 98 offence.
34The facts and circumstances of the s 98 offence had some significance to the s 95 offence. They confirm that the applicant was not a person of prior good character at the time he committed the s 95 offence. They undermine any claims that the applicant may have had to being remorseful. He was not affected by remorse from the appalling injuries he inflicted on the victim of the s 98 offence when he committed the s 95 offence. There is no credible evidence to the effect that he felt any different after he committed the s 95 offence. More significantly they confirm that the s 95 offence was not an isolated incident but instead was part of a particularly vicious and ruthless course of conduct. The close proximity in time of the two offences prompted his Honour to state:
"A matter of great concern to me in sentencing the offender is the fact that the s 95 offence, committed against victim two, was committed some nine days after the offender perpetrated the vicious attack on David Keohane. That being the case, in sentencing the offender for the s 95 offence I will have special regard to the sentencing principle of the protection of the public."
35This aspect of his Honour's reasoning invokes the following statement in Veen v The Queen [No 2] [No 2] [1998] HCA 14; (1988) 164 CLR 465 at 477 (per Mason CJ, Brennan, Dawson and Toohey JJ):
"The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties..."
36I agree with his Honour that the circumstances of the s 95 offence were such that this principle could be invoked. However, it has its limits. A sentence cannot be increased beyond what is proportionate to the crime in order "merely to extend the period of protection of society from the risk of recidivism on the part of the offender" (Veen [No 2] at 472; see also Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 at [60]).
37Even allowing for the need for the protection of the public, the extent to which the s 98 offence illuminated the applicant's moral culpability in relation to the s 95 offence and demonstrated the applicant's "dangerous propensity", I consider that the sentence imposed was manifestly excessive.
38The starting point for the sentencing for the s 95 offence was the maximum penalty of 20 years imprisonment. There was no standard non-parole period. Before allowance for the 25% discount that followed from his plea, the sentence imposed on the applicant was 14.67 years. Such a sentence does not sit comfortably with his Honour's characterisation of the offence as "above the mid-range of seriousness". It is a sentence commensurate with it being characterised at the high end.
39This disconformity only became stronger when one considers the applicant's subjective circumstances. While his subjective case was substantially damaged for the reasons I have outlined, it still had some force by virtue of his youth and employment history with some allowance for his reduced level of intellectual functioning. The result is that the commencing point for sentencing of nearly 15 years for an offence with a maximum penalty of 20 years was too high. His Honour's invocation of the need to protect the public could not justify a penalty at that level when one places that principle in the context provided by Veen [No. 2].
40I have reached the conclusion that the sentence was excessive without regard to the sentencing statistics. I had already referred to their limited utility. In a sense the statistics reflect and confirm the outcome of the above analysis. They reflect the rarity of offences being categorised at the hight end of seriousness for this offence. The applicant's sentence for the s 98 offence reflects that approach. Prior to any discount for his plea and assistance, his sentence for that offence was 21½ years out of a maximum of 25 years. The circumstances of that offence clearly warranted his Honour's finding that it was in the "category of high seriousness".
41The applicant contended that some guidance for the appropriate sentence in his case is to be found in the guideline judgment of R v Henry [1999] NSWCCA 111 (1999); 46 NSWLR 346. Henry concerned offences under s 97 of the Crimes Act. In Henry at [162] Spigelman CJ identified a category of case by reference to seven criteria. This category of case was found to be "sufficiently common" to warrant the determination of a sentencing guideline. In Henry at [165] his Honour found that "sentences for an offence of the character identified above should generally fall between four and five years for the full term". This range reflected a discount of 10% for a late plea. When adjusted for a 25% discount for a plea of guilty, the range became one of 3 years to 3 years and 9 months (R v Kelly [2010] NSWCCA 259 at [52] per Kirby J).
42Henry provides little guidance to this case. Criteria (vii) in Henry was that the offence involved "limited, if any, actual violence but a real threat thereof". The use of actual and serious violence was the applicant's modus operandi. It was put into effect with the s 95 offence.
43In my view, it is appropriate to re-sentence the applicant for the s 95 offence to an overall sentence of 8 years with a 4 year non-parole period. This involves a sentence of between 10 and 11 years, prior to any discount for his plea. It reflects his Honour's characterisation of the offence, the subjective case (albeit damaged) and the need to protect the public. An alteration of the standard proportion between the non-parole period and the balance of term is necessary as this sentence will be partly concurrent with and partly cumulative upon the sentence for the s 98 offence.
44In light of the conclusion concerning ground 2, it is not necessary to consider ground 1 of the appeal. Instead this Court must independently fix a starting date for the offence and it must reflect the Court's assessment as to the totality of his criminality. In my view a total period of imprisonment of 12 years is appropriate. The applicant's offences were very serious. However, his youth and the fact that he has not been incarcerated previously reflects a need for some amelioration of the combined effect of the two sentences. The sentence imposed still means that he will spend at least the 12 years from age 19 to age 31 in full time custody. They are a critical part of his adult life.
45The orders I propose are:
(1)Leave to appeal be granted.
(2)Appeal allowed in part.
(3)Set aside the sentence imposed by the District Court on 26 May 2010 for the offence under s 95 of the Crimes Act 1900 committed on 18 August 2008 and, in lieu thereof, for that offence sentence the applicant to a non-parole period of 4 years commencing 16 September 2016 and expiring on 15 September 2020 with a balance of term of 4 years commencing 16 September 2020 and expiring on 15 September 2024.
46These orders leave undisturbed the sentence imposed for the s 98 offence. The combined effect of these orders and his Honour's sentence for the s 98 offence is that the applicant will serve a non-parole period of 12 years from 16 September 2008 to 15 September 2020 with a balance of term of 4 years from 16 September 2020 to 15 September 2024.