John HUNTER v R

Judgment 1HODGSON J : I agree with the orders proposed by Adams J and, subject to what I say below, I agree substantially with his reasons. 2There is force in the consideration that, when the facts giving rise to the intimidation offences are left out of account, the aggravated break and enter offence falls below the middle of the range of objective seriousness. However, I would not consider the sentencing judge's view a sufficiently clear error as of itself to justify appellate intervention. Nevertheless, error was shown in the sentencing judge's treatment of the appellant's mental illness. 3I would also say that I do not think it is necessarily unwise to consider and specify ranges of objective seriousness in relation to offences to which standard non-parole periods do not apply. So long as this does not obscure the need for an instinctive synthesis, it may in some cases promote transparency of decision-making. 4ADAMS J: Introduction 5The applicant was sentenced in the District Court for the offences of aggravated break and enter and commit a serious indictable offence on 15 August 2008 (count 1) (maximum sentence 20 years, standard non-parole period 5 years), taking and driving a conveyance without the consent of the owner on 15 August 2008 (count 2) (maximum sentence 5 years imprisonment) and two counts of stalking or intimidating intending to cause fear of physical or mental harm on 15 August 2008 (counts 3 and 4) (maximum sentence imprisonment for 5 years and/or a fine of $5,500). The applicant was also sentenced on two s166 Certificates for the offence of driving whilst disqualified on 15 August 2008 and negligent driving. 6The applicant was arrested on 15 August 2008 and remained in continuous custody since that date. The imprisonment for these offences commenced on the expiry of an outstanding parole period. 7In respect of the stalking offences the applicant was sentenced to concurrent fixed terms of 1 year, 1 month and 15 days commencing on 11 September 2008 and expiring on 25 October 2009, for the theft of the motor vehicle, he was sentenced to a term of 1 year, 6 months and 27 days imprisonment commencing on 11 March 2009 and expiring on 7 October 2010, for the breaking and entering offence he was sentenced to an overall term of 4 years, 10 months and 15 days to commence on 11 September 2009 and expire on 25 July 2014 with a non-parole period of 3 years and, for the driving offences he was sentenced to a three months fixed term commencing on 11 March 2009 and disqualified from driving for 12 months. 8The effective overall sentence was five years, ten months and fifteen days and the effective non parole period was four years. Grounds of appeal (1) The ratio of the aggregate head sentence to the total non-parole period failed to achieve her Honour's stated aim of a "very lengthy strictly supervised rehabilitation to enhance his prospects upon his ultimate release from custody". (2) Her Honour erred in her assessment of the objective seriousness of the offences. (3) Her Honour erred by imposing double punishment for the offences of intimidation and aggravated break enter and steal contrary to s 112(2) Crimes Act 1900. (4) Her Honour erred in making the sentences partially cumulative. (5) Her Honour failed to properly consider the principle of totality in the sentence imposed. (6) The sentences imposed were manifestly excessive. (7) Her Honour erred in disregarding the applicant's mental illness in the sentencing of the applicant. (This ground was added by consent on the hearing of the appeal.) Facts 9The circumstances of the offences were not controversial and the following account is largely taken from the sentencing judge's reasons for sentence. 10In the early hours of the morning on 15 August 2008 the applicant went to a single storey detached home in Rooty Hill. He climbed onto a wheelie-bin which he placed near the front bedroom window, pushed the shut but unlocked window open and entered the room. It was usually occupied by a teenager who was not at home at the time. The applicant's rummaging in the room woke Ms Michael who was sleeping in the adjoining bedroom with her partner Mr Field. She thought it was the teenager returning and took no notice. 11Shortly after, the applicant entered the adjoining bedroom and Ms Michael remained still so that the applicant would not be alerted to the fact that she was awake. He started going through the bedside table and removed $12 from a glass bowl. He approached the couple who were still lying in bed and stood over them holding a screwdriver in each hand. He said to them, "This is a home invasion, don't say anything, I want your money and phone. I have two screwdrivers, don't scream or I'll stab you". Both victims immediately recognised the applicant as John Hunter. He had previously attended the house about three or four times and they had seen him elsewhere at parties. The victims directed the applicant to the bowl where their money had been placed and he responded, "I've already got that, where's your phone?" pointing one of the screwdrivers at Mr Field who replied that he did not have a phone. The applicant then asked, "Where are the keys to the cars, I want the keys to the cars, go and get them". Mr Field got out of bed and began to walk to the kitchen to get the keys, the applicant following, pressing the screwdrivers to his torso and neck. Mr Field handed the keys of the car to the applicant and then returned to the bedroom with the applicant close behind. The applicant said to Ms Michael, "I want more phones, I want you to go and get them". She said, "No". The applicant said, "I want more money". She responded, "There's no more money, that's all there is, if there's any more it will be in the car". The applicant then pressed the screwdrivers to the victims' necks, saying, "If you call the cops or tell anybody I will run through the house tomorrow night, I know where you live and I know how to get in, you live right next to the station, this is where I will stab you". Ms Michael said, "Just have a look at the cars, there's probably money in the cars". The applicant then pushed the screwdriver into Mr Field's torso and said, "Go and get your parents' wallet". Mr Field then walked to his parents' bedroom whilst the applicant followed pressing the screwdriver to the rear of his torso. Mr Field removed his mother's purse from her handbag and the two then returned to his bedroom. Ms Michael opened the wallet to show the applicant that she had no money. It contained one fifty-cent piece and four five-cent pieces. The applicant said, "I don't care how much, just give it all to me" and Ms Michael did so. The applicant then went through Mr Field's mother's wallet and started to yell, "Where is all the money, I want the fucking money". Ms Michael said, "There's no more money, that's all there is, if there is it's in the car". The applicant picked up the screwdrivers again and pushed them into the face area of both victims stating, "You are both coming with me to the car, don't make any noise or I will stab you". 12The three went out to the front yard where the vehicle was parked. The applicant came close to them and shoved the screwdrivers towards their necks saying, "I'll come back here if you tell anyone, I have guns at my house, I will kill you both". He then went to the car but triggered the alarm. The victims ran inside the house and locked the door. Mr Field woke his parents who had slept through the incident. A short time later the applicant drove off in the vehicle at speed towards Mt Druitt. Police were contacted and the victims attended at the police station. Ms Michael told police, "John was drunk at the time because he stumbled and couldn't stand straight at the time when he was speaking to us". Mr Field said, "I could smell alcohol on John, he was staggering a bit and moving the screwdrivers all over the place". 13As the applicant drove away from the scene, he failed to negotiate a round-about, mounted the pathway of the road, smashed into a brick fence and a road-side tree and then head-on into a telegraph pole. Although the vehicle was extensively damaged, the applicant was only slightly injured with a laceration to his forehead. About two hours later he was seen jogging along a road in Mt Druitt and was stopped by police who obtained his details. He was told that he was under arrest and, when cautioned, he said, "See ya" and fled. He was tackled to the ground a short distance away and taken to the police station where he was treated by ambulance officers for his minor head injury. 14Some hours later, when the applicant was sober enough to be interviewed, he admitted to entering the premises with the screwdrivers, though he could not recall how he gained entry. He denied placing the screwdrivers to the throats of the victims but recalled using them to threaten them. He admitted stealing a mobile phone and told police he had left it in the police vehicle in which he had been transported to the police station. He admitted to taking money from the victims but said he had lost it when he was hiding in bushes from the police. He admitted taking the motor vehicle and crashing it. He said that he was "blind drunk", having drunk alcohol and taken two ecstasy tablets that night. The applicant repeated a number of times that there were parts of the incident he could not recall. 15At the house a blue bag was found containing a few bottles of beer and wine, aftershave and perfume that did not belong to any of the occupants. When police examined the stolen vehicle they found two screwdrivers on the floor area on the front drivers side. When checking the police vehicle in which the offender had been transported to the police station they found Ms Michael's mobile phone. Prior criminal record 16The applicant was first convicted when he was almost 17 years of age in the Children's Court of two offences of breaking, entering and stealing, larceny, entering a vehicle without the consent of the owner and possessing implements to enter/drive a conveyance. He was placed on 12 months probation and given a bond. In April 2007 he was convicted of stealing a motor vehicle (2 counts), robbery whilst armed with an offensive weapon, larceny and breaking, entering and stealing. In respect of these offences various control orders were imposed covering an overall period of 15 months from 26 November 2006 with a non-parole period of 6 months. About 6 months later he was convicted of various driving offences and was fined and disqualified for 12 months from 8 October 2007. On 17 October 2007 he was convicted of breaking and entering with intent to steal and being found with intent to commit an indictable offence for which a control order for 12 months commencing 11 September 2007 with a non-parole period of 8 months was imposed. The current offences were therefore committed whilst he was on parole for these offences. In April 2008 he was sentenced to the rising of the Court for breaking, entering and stealing and, a month later, he was fined for destroying or damaging property. 17With respect, as a matter of general law it is not correct to say, as the learned sentencing judge did, that a prior criminal record will disentitle an offender to leniency. It may be, of course, that a prior record will prevent leniency being accorded on the ground that the crime is not the offender's first offence and thus (amongst other things) that it could be regarded as out of character and may justify less significance being given to the element of personal deterrence than would otherwise be the case. But it might be appropriate to extend leniency for other reasons and this is not automatically precluded by a prior criminal record. Subjective features 18The appellant was 19 years of age at the time of the offences. The learned sentencing judge described his subjective circumstances as follows - "He was adopted at the age of two months by an Aboriginal mother and a Scottish father. He describes himself as lucky to have been brought up in the environment in which he was, however when he was two years old his mother had a stroke and was severely disabled as a result. She was placed into a nursing home. He and his sister saw their mother on a regular basis until she was moved to a nursing home in Armidale to be close to her own family in recent years. He has not seen her for some time. On the last occasion he saw her he felt she did not recognise him. It was following her move that he fell in with negative peers. He clearly harbours enormous grief at the loss of his mother during his formative years although he acknowledges the sterling job his father did in raising him and his sister who apparently took on a mother role towards him. She is a few years older. His relationship with his father soured because of his anti-social behaviour. His father, not surprisingly, does not approve of his drug taking and criminal activity. His sister now resides in Canberra and he has made telephone contact with her". 19The judge noted the results of psychological testing, which demonstrated that his composite IQ score and measures of non-verbal intelligence were the same as or better than only 4% of his peers whilst he scored the same as or better than only 7% of people within his age range on measures of verbal intelligence. On the other hand, as her Honour noted, the applicant said that he has no difficulty reading or writing and was able to remain at school, obtaining his School Certificate (although obtaining this Certificate is no real indication of academic ability). The applicant has never held paid employment. The sentencing judge noted the following in respect of the applicant's mental condition - "He has been diagnosed as suffering from psychosis and from time to time has been medicated. He acknowledges he does have mental health problems but clearly does not understand that he needs to remain medicated for the rest of his life. Like many who suffer from mental illness, when they comply with treatment regimes and remain medicated they stay well and because they are stabilised they think they can cease taking medication. Sadly, they simply then relapse and re-offend. His mental health problems are of course aggravated or exacerbated by the use of alcohol and drugs... In the opinion of a psychologist his substance abuse and history of mental illness are likely to have had a limiting effect on his ability to control impulses and make appropriate decisions about his behaviour, hence his criminal antecedents". 20Her Honour concluded that the applicant "remains a very young man with significant mental health problems and limited insight into the need to maintain a life-time regime of medication". 21Dealing with other matters, the sentencing judge noted that the applicant had pleaded guilty at the earliest opportunity and found that he was truly remorseful and contrite although the prospects of rehabilitation were guarded. 22Her Honour concluded that the applicant's prospects for rehabilitation were guarded and it was clear that he needed "lengthy, strictly supervised rehabilitation aimed at ensuring he understands his mental health problems and the need to comply with treatment orders, to remain abstinent of alcohol and drugs and to obtain paid employment and to avoid mixing with negative peers". The significance of the applicant's mental state 23The judge accepted that - "The fact that he was intoxicated and adversely affected by illicit substances at a time when he was not taking his medication does not mitigate against the seriousness of what he has done. At best it may explain how he came to commit these offences. Sadly he knew the impact of alcohol and illicit substances on him yet he chose to imbibe in those substances and to take ecstasy for the first time to add to the potent mix of the alcohol and cannabis". I am not persuaded in his circumstances that he is an inappropriate medium for general deterrence because of the nature of the offences committed and the circumstances in which they were committed. This is not a situation wherein the offender's mental capacity contributed to the commission of the offences in any way and it is not a situation wherein his custodial time will be more onerous. His mental health is not such as he is unable or incapable of making reasons of judgment [sic]. His inability to make a reasoned judgment clearly comes from an inability to refrain from using alcohol and taking drugs, something about which he is well aware. He knows full well the impact of alcohol and drugs upon him yet he chose once again to take both prior to committing these offences". 24It will be seen that the judge accepted that he was not taking medication at the time of the offence. However, as appears from the other passages quoted above, she was of the opinion that this was a decision that he made when his medication had effectively dealt with his mental problem. This finding was contrary to the uncontested evidence given by the applicant on sentence. This was to the effect that, when he first came into juvenile custody, he was prescribed medication for "psychosis" which he understood to be a symptom of schizophrenia. He had not previously been on medication and it was at this time that he found out that he had a mental problem. He was asked if, when he was released, he continued to take his medication and he said no. He said that the probation officer asked if he was going to get back on the medication and he replied, "No, I don't think I really need it". He thought this because he was not hearing any voices or having any other symptoms by the time he came to be released. He said that, when he committed the offence, he was not hearing voices "or having any problems like that". 25The Probation and Parole Report states - "Service records indicate that Mr Hunter was medicated with anti-psychotic medication (Risperiodone) during his last period of juvenile detention in 2008. The inmate advised that he had been diagnosed with schizophenia, however did not feel as though he required this medication whilst in the community. Mr Hunter was again prescribed anti-psychotic medication (Seroquel) upon entering custody on this occasion and states that this medication assists with his experience of anxious and paranoid thoughts". 26The applicant's evidence was that he did not realise that he needed the medication when he was at liberty and agreed under cross-examination that he now understood that once one has a mental illness like schizophrenia "it doesn't go away when they let you out of goal". He testified that he did not realise that when he was released on the last occasion but understood it now. There was, in my view, no reason to disbelieve the applicant in this regard. Indeed, her Honour did not state that she did so. At all events, even though a mental condition may respond to appropriate medication, it does not necessarily follow that the condition will cease to have any relevant effect. Such a conclusion, in my respectful view, should not be drawn without medical evidence. 27There was no evidence that the applicant was told that he needed to continue the medication or, indeed, that he was prescribed medication after he left detention. 28As to the link between the applicant's mental illness and the offence, the psychologist says in her report tendered at the sentencing proceedings - "... At the commission of the current offences John was under the influence of both alcohol and other drugs and had not been taking his anti-psychotic medication for some time. He described experiencing some feelings of paranoia prior to the offence and more so following his incarceration. Both John's use of substances prior to the offences and his history of mental illness are likely to have had a limiting effect on his ability to control impulses and make appropriate decisions about his behaviour. Alcohol use is implicated in a large proportion of violent crime and deviant behaviour ... In addition, symptoms of schizophrenia and John's lack of psychoactive medication at the time may also have had an interacting and negative effect on his behaviour, decision making and thought processes. Research indicates that persons with a pre-existing history of schizophrenia who abuse alcohol and other substances are at an increasing risk of behaving violently .... The risk of violent behaviour has also been found to further increase when substance use is paired with noncompliance of medication in persons suffering from schizophrenia". 29The judge apparently accepted the psychologist's opinion that the applicant's substance abuse and history of mental illness were likely to limit his ability to control impulses and make appropriate decisions about his behaviour as an explanation for his criminal history and also, as appears from a passage quoted above, that the applicant had "significant mental health problems". However, her Honour did not accept that there was a link between the applicant's condition and the offences, for the reason, in her Honour's view, the applicant fully understood that, if he failed to take his medication, his mental problems would return. The evidence did not, in my respectful view, justify this conclusion. Nor did it follow, even accepting that the applicant was aware that he needed to take medication, that he expected that unless he did so he risked committing criminal offences of the kind under consideration here. The evidence did not support such an inference and, moreover, he was not cross-examined to suggest that such was his understanding. 30When leave was granted to add the seventh ground of appeal, the applicant was also given leave to tender further psychiatric evidence. A report of Dr Olav Nielssen dated 17 March 2011, to which the Crown has no objection, was tendered. 31Dr Nielssen thought that the applicant's attention and concentration appeared to be within normal limits and his intelligence "was estimated to be about average from his vocabulary, general knowledge and reported educational attainment". His vocabulary and general knowledge were, the doctor thought, "consistent with about average intelligence and his recent participation in education" (I assume at the correctional centre). Dr Nielssen noted that Justice Health medical records included entries in 2008 by a psychiatrist in which he elicited "symptoms of psychosis and persecutory beliefs which seemed to respond to treatment with a moderate dose of an anti-psychotic medication". Assessments by other doctors were made but there were no reports of objective signs of psychotic illness and his condition was described as "residual drug induced psychosis". Dr Nielssen diagnosed substance dependence and abuse disorder (in remission), substance induced psychotic illness (in remission) and possible underlying schizophrenia (also in remission). In considering the diagnosis of an underlying schizophrenic illness, Dr Nielssen thought that there were some features of his presentation and the cause of his condition that were not typical of schizophrenia, which diagnosis was based upon the applicant's account of typical auditory hallucinations and his bizarre explanation for those symptoms and because of the persistence of symptoms for long after the applicant last reported using drugs. The doctor noted, however, that there was little in the way of impairment in intellectual functioning or blunting of emotional responses, usually observed in people with underlying schizophrenic illness whilst the usual chronic and unremitting nature of the condition was also not evident. Dr Nielssen said that he would not advise the applicant to resume treatment by way of anti-psychotic medication but recommended that he should remain in contact with an early psychosis service to facilitate early treatment should symptoms re-emerge. Dr Nielssen's opinion was based upon somewhat different material to that relied on by the psychologist whose report was tendered on sentence and certainly suggests that the applicant's functioning has improved considerably whilst he has been in custody. I note that for some considerable time his condition was responding well to anti-psychotic treatment and this might explain his improvement. 32In my respectful opinion, the evidence does in fact demonstrate the probable link between the applicant's mental condition and the offences, because of the applicant's limited ability to make appropriate decisions, control his impulses and the extent of his violence. Accordingly, the conclusion that the applicant's mental capacity or mental health did not contribute "in any way" to the commission of the offences is not justified. The mere fact that mental impairment does not entirely remove the capacity for making a reasoned judgment does not mean that the question is immaterial, although of course the significance of this feature will vary in every case and is very much a matter of judgment. 33It follows that the judge erred in dismissing altogether the relevance of the applicant's mental condition both to the issue of objective seriousness and that of general deterrence. It was a significant feature reflecting on the applicant's criminality. Thus, the applicant must be resentenced by this Court. Ground of appeal 1 (Strictly speaking, it is not necessary to consider the other grounds of appeal. However, they were fully argued and it seems to me that it is expedient to deal with them.) 34The judge found that this was a case in which special circumstances required an adjustment of the statutory ratio stipulated in s44 of the Crimes (Sentencing Procedure) Act 1999, not only because of the partial accumulation of the sentences which her Honour intended to impose but also because of the applicant's youth and the rehabilitative supervision which he needed, as set out in the passage from her Honour's reasons quoted above. The overall effect of the partial accumulation of the sentences was an aggregate sentence of 5 years, 10 months and 15 days of which 4 years was the aggregate non-parole period. If her Honour had simply applied the statutory ratio, the non-parole period would only have been 5 months longer and, if he is granted parole at the first available date, the maximum supervised period will be 20 months and 15 days. It is submitted that this period of supervision does not meet the learned sentencing judge's requirement of "very lengthy strictly supervised rehabilitation" but at all events is manifestly inadequate. 35The applicant was about 16 years of age when he was evicted from the family home due to his behaviour and, since then, has resided intermittently in refuges, hostels, with friends or has been incarcerated with Juvenile Justice. He began smoking cannabis at 15 years of age and drinking alcohol at 16. He said that he used ecstasy for the first time on the evening of the offences. The applicant was 18 years old at the date of the commission of the offences. His entry into adult prison occurred at about the youngest permissible age and he will still be not quite 23 years of age when he becomes eligible for parole. 36I respectfully agree that, in light particularly of the applicant's relative youth and evident immaturity, a "very lengthy strictly supervised rehabilitation" was necessary, not only in the applicant's interest but also the public interest. It is clear that the sentencing judge considered that the period resulting from the sentence fulfilled this requirement. This is very much a matter of fact and degree. In my view, her Honour's measure of this period has not been shown to be in error. Ground of appeal 2 37The sentencing judge stated - "Only sentences of full time custody will satisfy the requirements of general and indeed specific deterrence. Indeed retribution, deterrence and protection of society are beginning to loom large in the sentencing of this offender despite his young age. His prior record is such that he is now disentitled to leniency. These are offences which do fall at the mid-range of objective seriousness. The aggravated break and enter offence is an offence attracting a standard non-parole period of five years for offences said to fall within that mid-range of objective seriousness following upon a guilty verdict after trial. Whilst there has been a plea of guilty, the standard non-parole period remains relevant as a benchmark or a guidepost and is not to be ignored. The plea entitles consideration to be given to imposing other than the standard non-parole period and the subjective circumstances are also to be taken into account". It will be seen that the judge applied the notion of the "mid-range of objective seriousness", to all the offences charged here, although only the housebreaking offence carried a standard non-parole period. As used in Part 4, Div 1A of the Crimes (Sentencing Procedure) Act 1999, the phrase is difficult to apply. Assuming that the "range" of seriousness commences with the trivial or least serious objective circumstances at the one end and moves through to the gravest and most serious objective circumstances at the other (cf R v Way [2004] NSWCCA 131; 60 NSWLR 168 at [77]), "the middle of the range", denotes no actual content except that, if the objective seriousness of the particular offence falls into it, s54B applies. 38The elements of an offence say little, if anything, about the extent of objective seriousness of the criminality involved in any particular instance. The surrounding circumstances provide this information, involving such matters as motive, planning or otherwise, extent of injury, effect on the victim and so on. It is only when these factors are taken together that any measure of objective seriousness can be made and it is obvious that each factor is essentially incommensurable. The extent to which the character of each factor might tend to increase or decrease seriousness can thus only be described in general terms. Since the phrase "middle of the range of objective seriousness" contains little useful information about the applicable sentence - it certainly does not mean the arithmetic midpoint between the maximum and no sentence or anything like it - there is no point in a conventional case in comparing the assessment of objective seriousness with a "middle of the range" case, even if one could describe one. Since the middle of the range of objective seriousness does not yield any result that can usefully be applied to a case that is not in that range, to interpose the issue has real potential to cause error by distorting the sentencing process. The appropriate question to ask is not whether the objective criminality is "middle of the range" but simply what is the level of criminality involved. 39By contrast, in respect of a standard non-parole period case, the specified period will, as it were, attach itself to the sentencing process with greater or lesser significance depending on the particular circumstances. Accordingly, the question is required to be asked and answered when dealing with a standard non-parole period case. In such a case, as the Court pointed out in Way - [76] Unless some understanding is reached as to what is a midrange offence, we are unable to see how any meaningful comparison can be made between the offence at hand, and the offence for which the standard non-parole period is prescribed. Difficult and imprecise it might be, but the reference point identified in s 54A has to be kept in mind if the sentencing exercise is to comply with the legislative intention expressed in the Division. 40The Court added - [77] We do not however consider that the exercise which is required will differ, to any material extent, from that which has always been necessary in evaluating the objective seriousness of a subject offence. Judges are well accustomed to considering and stating that a particular case falls into the worst category, or into the category of offences at a lower level of objective seriousness: see Ibbs v The Queen ; Baumer v The Queen (1988) 166 CLR 51 at 57, and R v Moon (2000) 117 A Crim R 497 at 510." With respect, the first sentence does not follow from the second; for the reasons I have endeavoured to explain above, the two exercises are very different. However, whatever the degree of difficulty, the process mandated by the legislation must be conscientiously undertaken. 41So far as the housebreaking offence is concerned, counsel for the appellant contends that the sentencing judge failed to follow Way ( ibid at [74]-[77]; and see R v AJP [2004] NSWCCA 434; 158 A Crim R 575) per Simpson J at [13] as to the need to hypothesise a middle of the range case. As I understand the argument, the judge was required to describe particular facts that would, in her Honour's view, place the criminality of an offence under s112(2) of the Crimes Act 1900 in the middle of the range of objective seriousness and then compare the instant case with such an offence. Logically, since her Honour considered that the circumstances were in the middle of the range of objective seriousness, those facts themselves could have constituted the pertinent hypothesis. Why should her Honour have described some different scenario and then compared it to that before her? Other similar arguments can be made but this is enough of itself to refute counsel's contention. 42The requirement to "hypothesise an abstract offence" was been explained recently by Grove J (with whom the other members of the Bench agreed) in Dunn v R [2010] NSWCCA 128 - [13] The essence of the applicant's contention was expressed in his written submissions "thus his Honour's failure to undertake fundamental aspects of the sentencing exercise required by R v Way (2004) 60 NSWLR 168 led the sentencing proceedings to miscarry." [14] The foundation of this submission was derived from the observation at par 75 in Way (Spigelman CJ, Wood CJ at CL and Simpson J) that it was incorrect to propose that there is no need for a judge to determine, in any given case, what is "an abstract offence" in the middle of the range of objective seriousness. [15] A thrust of the submission was that error is shown if the sentencing judge does not in some way articulate the constituents of "an abstract offence". This is to impose an obligation which is not established by the authorities. I understand the reference to "an abstract offence" to be a recognition that there lies within a range of offending, an offence which is unembroidered by the particular objective circumstances which are applicable to an offence then being assessed. [16] I do not regard a sentencing judge as obliged to put into descriptive words some purely hypothetical offence. I am conscious that it has been said, for example, in R v AJP (2004) 158 A Crim R 575 at 580 that a sentencing judge will be required to hypothesize "an abstract offence" in the middle of the range of objective seriousness in order to determine where a subject offence lies. I do not understand this to mean that a sentencing judge must incant some description of a hypothetical offence but rather that the judge must bear in mind that there lies within the mid range, an offence or offences, which are not affected by the particular facts pertinent to an offence under consideration. [17] I consider this view to be supported both by the absence of the offer of any exemplar of "an abstract offence" and the explanation that what has been said to be required "is, in reality, little different from a traditional sentencing exercise of evaluating objective seriousness of any offence, and should be approached intuitively and based upon the general experience of courts in sentencing for the particular offence": AJP at par 13. [18] That view is also supported by observations following the reference in Way abovementioned when there was added (at par 77): "We do not however consider that the exercise which is required will differ, to any material extent, from that which has always been necessary in evaluating the objective seriousness of a subject offence. Judges are well accustomed to considering and stating that a particular case falls into the worst category, or into the category of offences at a lower level of objective seriousness: see Ibbs v The Queen; Baumer v The Queen (1988) 166 CLR 51 at 57 and R v Moon (2000) 117 A Crim R 497 at 510." [19] It is true that in the current instance his Honour, apart from the expression "very serious" in the extract from his remarks on sentence already quoted, made no other reference to scale other than observing a submission by the prosecutor that the matter "falls somewhat below the mid range for offences of this kind". He did not state, or otherwise indicate beyond that, whether, for example, the offence fell substantially, significantly, or slightly below the notional mid-range offence. [20] As was recently observed in R v McEvoy [2010] NSWCCA 110 (per Simpson J at par 89) an omission of this kind is an error of process and it does not necessarily follow that there is some error in the imposition of the sentence which has been assessed. An error of process does not inevitably result in a sentence being either manifestly excessive or manifestly inadequate. Such an error notwithstanding, a sentence may well lie within the range of the sound exercise of sentencing discretion: cf Phan v R [2010] NSWCCA 8 at pars 11 and 16. 43With respect, I agree with Grove J's analysis of the task of examining whether the instant case falls into the "middle of the range", namely, it is not necessary to describe a hypothetical midway case but, rather, by assessing the significance of the facts found, determine whether or not the offence is in the middle of the range and explain why this is so. If the facts bring the case within the middle of the range of objective seriousness then the standard non-parole period will apply unless there are reasons for departure. 44Here, the sentencing judge described the objective circumstances of the housebreaking offence and found that they fell within the middle of the range of objective seriousness but, it is true, did not explicitly explain why this was so. This ostensive process is not, of itself, an error and the question left is, therefore, whether her Honour's conclusion was not open. I deal with this question below. 45Where, however, the offences (here, the car stealing and the intimidation offences) do not attract a standard non-parole period, the objective seriousness of the offence, though it must be assessed, is not compared with a middle of the range case for the reasons I have endeavoured to explain. Bearing in mind the maximum sentence and the application of the functions of sentencing in the particular case, the objective seriousness together with the subjective features are part of the instinctive synthesis giving rise to the ultimate sentence. To undertake a detour by asking whether the facts fall into the middle of the range of objective seriousness is both unnecessary and potentially misleading. It has been pointed out by this Court on a number of occasions, that it is unwise to apply the notion of the mid-range of objective seriousness to sentencing for offences other than those to which a standard non-parole period applies. 46Here, the sentencing judge appears to have applied the measure of middle of the range of objective seriousness to the car theft and intimidation offences although her Honour did not explain why they fell within this range nor what she intended to convey by the term. However, the sentences imposed for these offences are not, to my mind, outside the available range. With respect, I think that the sentencing judge set out with sufficient detail the relevant objective and subjective features and, judging by the sentences imposed for these offences, the use of the notion did not result in error. 47So far as the housebreaking offence is concerned, the complicating feature was the cross-over between the aggravating circumstance relied on by the Crown and the intimidation offences. This made it particularly important to identify the factors that placed the aggravated break and enter offence within the mid-range of objective seriousness having regard to the necessity of disregarding the facts which gave rise to the intimidation offences. This requirement is distinct from any need that there might have been to explain why the housebreaking offence fell into the middle of the range of objective seriousness. (As a practical matter, the facts underlying the intimidation offences were well able to be dealt with as aggravating features of the housebreaking offence, since the circumstance of alleged aggravation was that the applicant was armed with an offensive weapon and persons were in the premises at the time, whilst the essential characteristic of the intimidation offences was the use of the screwdrivers as an offensive weapon directed to the victims. The form of the indictment introduced unnecessary complexity that rendered the sentencing task significantly more difficult than it needed to be.) 48The sentencing judge dealt briefly with the elements of the offences which made them "particularly serious" as follows - "The victims were asleep in the sanctity of their own home. They awoke to find the offender in their room, armed with screwdrivers, making significant threats to harm them, multiple threats to harm them. Those threats are of course the subject of the separate charges, namely the intimidation charges. The factor of aggravation relied upon by the Crown is that the offender was armed when he broke and entered the property. Screwdrivers are weapons capable of inflicting serious injury. The Crown also relied upon the presence of the victims in their home as a factor of aggravation. Their property was stolen, the family vehicle was stolen and extensively damaged. He is of course to be dealt separately with the theft of the vehicles". 49Although these factors are mentioned in globo as explaining why the offences were particularly serious, it seems to me that they reflected an attempt to separate the facts related to the intimidation offence from those involved in the breaking, entering and stealing. In mentioning possession of the screwdrivers and the presence of the victims in their home at the time of the entry as factors of aggravation, I think that her Honour was simply referring to the matters that brought the offence within the provisions of s112(2). Inextricably common to both types of offence was that the victims were in their home: this made both the housebreaking and the intimidation offences more serious. Nevertheless, it is at least theoretically possible to separate the entering of the house with offensive weapons on the one hand and using those weapons to intimidate on the other. The overlap of the offences is also demonstrated by the need to give appropriate weight to the fact that the higher maximum sentence for the housebreaking offence reflects consideration that, given the presence of occupiers in the premises, significant fear will likely be engendered by the offender's entry. If that element is, in substance and reality, taken into account in respect of the intimidation offences, it must be disregarded when attempting to assess the seriousness of the offence for the purpose of sentencing for an offence under s112(2): Towers v R [2008] NSWCCA 283. 50Dealing with other objective factors, her Honour found that there was minimal planning and that "the victims have not suffered substantial ongoing emotional harm over and above that which would be expected of someone whose home was broken into and whose lives were threatened in this way". The difficulty with her Honour's reference to the victim's lives being threatened is that, given the way in which the charges were laid here, this feature could play no part in assessing the objective seriousness of the housebreaking offence, since that was the very gravamen of the intimidation charges. There is, I think, a difference between the fear engendered by the threatened use of the screwdrivers in their home on the one hand and the fear that might have been suffered by the victims had they simply been aware of the applicant's presence in their home on the other. Having regard to the nature of the intimidation charges, it seems to me that, strictly, this feature should have been dealt with in sentencing the applicant on the intimidation charges and left entirely out of consideration when sentencing him for the housebreaking. The same problem arises in respect of the car theft. However, this is to apply unnecessary technicality to her Honour's sentencing task. I would read the remarks about planning and the effect on the victims as measuring the totality of criminality rather than the features of particular offences, and thus as not indicating that her Honour was doubling up. So far as the entering with the screwdrivers and using them to intimidate is concerned, I am persuaded that the judge did not double up. 51Dealing with the housebreaking offence in light of R v Ponfield & Ors [1999] NSWCCA 435; (1999) 48 NSWLR 327, at [48]: the applicant was on parole; there was little or no planning; the offender has a prior record for like offences (but this is not an aggravating feature); the victims were not elderly, sick or disabled; there was no vandalism or other significant damage to property; the offence was not one of a series of repeat incursions into the premises; the value of the stolen property was minimal; the offender was aware that it was likely that the premises were occupied; it was night; no actual trauma was suffered by the victims and the force used or threatened was immaterial (but necessary to be taken into account in sentencing for the intimidation offences). 52In my view, an offence under s112(2) which falls in the middle of the range of objective seriousness would have been demonstrated if there were some significant degree of planning, property of a substantial significant value were stolen, persons were present in the premises and frightened by the incursion and some significant damage occasioned to the premises. Of these features, only the third was present here: there was no or little planning, the property stolen was of relatively trivial value and there was no damage. The expectation that persons would be present and carrying an object intending to use it to frighten or intimidate any such persons is an inherent element of the offence and is not a feature that makes it more serious. The maximum sentence is a broad indication of the seriousness of an offence with this element. The fact that persons actually were present and frightened is, however, a factor increasing the objective seriousness of the offence. (The use of the screwdrivers to threaten falls to be punished by the sentence for the intimidation offence.) It is important to bear in mind that the offence comprehends the commission of crimes following entry far more serious than the theft of property. Also reducing the objective seriousness of the offence (vide Way at [86]) is the applicant's mental condition. Overall, I would conclude that the objective serious demonstrated in this case is significantly below that of the mid-range and, with respect, that it was not open to conclude that it fell within the mid-range of objective seriousness. 53Accordingly, I am of the view that in determining that the housebreaking offence fell within the middle of the range of objective seriousness her Honour, in the result, gave the five year standard non-parole period inappropriate and excessive influence in the sentence imposed. Ground of appeal 6 54The commencement point for the sentence for the housebreaking offence was six years and six months, the 25% utilitarian discount reducing it to 4 years 10 months and 15 days. Although of course statistics must be used with a considerable degree of caution, with a substantial sample they can be informative at least as a sign suggesting that a sentence was either too lenient or too heavy. The statistics for offences under s 112(2) where consecutive and non-consecutive terms are imposed comprises a substantial sample of 629 cases. Of course, the sentences include matters where there has been a plea of guilty with concomitant utilitarian discounts, many of which would be substantial. Nevertheless sentences of six years or greater number only 77, or slightly over 12%. Taking the non-parole period or fixed term figures, a total sample of 449, the term of four years (the starting point here for the non-parole period) or more was imposed in only 36 or 8% of the cases. Taking the non-parole period or fixed terms imposed on 18 to 20 year olds, a sample of 117 cases, only four received a term of four years or more; indeed, four years was the longest period in this category. 55In Marshall v R [2007] NSWCCA 24 Howie J (with whom McClellan CJ at CL and Simpson J agreed) suggested that, when dealing with standard non-parole cases, statistical information was less significant than might otherwise be the case, pointing out that if "the offence is one of mid-range seriousness, then, subject to any reasons for departing from that sentence in the particular case before the Court, the appropriate sentence [I think his Honour meant non-parole period] to impose is the standard non-parole period regardless of what the statistical information discloses". His Honour noted that the statistics presented revealed that the highest non-parole period imposed for a s112(2) offence was four years and six months for all offenders, presumably including those who were convicted after trial and thought it "somewhat surprising that, in the more than 4 years during which the standard non-parole period has applied, no one has committed an offence under s 112(2) of such seriousness that a sentence [sic] equal to, or greater than, the standard non-parole period was warranted". The statistics provided to this Court go for a longer period (to June 2009) but they show a similar if not quite the same pattern in that, of 449 cases only four offenders were sentenced to non-parole periods of five years or more. I certainly would not be prepared to approach these statistics upon the basis that the judges of the District Court do not have a fairly clear view of the kind of offending which would comprise a middle of the range case of objective seriousness, for all that the term is somewhat obscure. There is the additional consideration that the serious indictable offence in the overwhelming number of s 112(2) cases is larceny which, although that does not preclude such a case from being considered as falling within the middle of the range ( R v Huynh [2005] NSWCCA 220) cannot be regarded in my view as an irrelevant or insignificant consideration. It may well be, also, that where a significantly more grave "serious indictable offence" is committed that offence is more likely to be separately charged and the subject of an additional sentence, as indeed occurred in the present case with the charges of intimidation. 56In respect of the housebreaking offence, my respectful view is that, having regard to the age of the applicant and the other subjective features, including the applicant's psychological condition, and weighing up the circumstances of the offence to which I have adverted, the starting point before application of the utilitarian discount was manifestly excessive. I would propose a head sentence of three years and six months, after applying the utilitarian discount of 25%. 57Although I am not persuaded that the sentences imposed by her Honour were manifestly excessive, the error in respect of the applicant's psychological condition requires the Court to consider whether, lesser sentences are warranted in law. In my view this condition for variation is satisfied. Applying the utilitarian discount of 25%, I would propose wholly concurrent fixed terms of twelve months for the intimidation offences (counts 3 and 4) and, in respect of the car theft (count 2), a fixed term of twelve months. Ground of appeal 3 58I have already discussed the problem presented to her Honour by the choice of charges to which the applicant pleaded guilty. I should mention, further, that in the prosecutor's written submissions before the sentencing judge the actions of the applicant in threatening the victims with the screwdrivers was adverted to as relevant to the objective seriousness of the s 112(2) offence. I am not persuaded that there was any doubling up. Grounds of appeal 4 and 5 59It is convenient to consider these grounds together. I would accept, as stated above, that her Honour did separate to a significant degree the criminality involved in the housebreaking offence from that involved in the intimidation offences. That being so, some measure of accumulation was obviously appropriate. The theft of the car also was a distinct offence and accumulating that sentence to a greater or lesser degree was also justified. The real question was not so much whether there should have been any accumulation but whether, having regard to the overall criminality of the four offences, the sentence was manifestly excessive. In my respectful opinion, the starting point for the overall sentence, before deducting the utilitarian discount of seven years and ten months, was, manifestly excessive. 60It is necessary to have regard to the matters disclosed in the applicant's affidavit which was received on the usual basis. He deposes that this is the first time he has been in adult prison. His aunt used to visit him but is now unable to do so since she is caring full-time for his mother and he has not seen her for about a year. His other aunt has suffered a stroke. He does not want his father or sister to visit as he is ashamed and embarrassed. He has been subjected to one minor disciplinary matter. On a positive note, he has been attending and enjoying school, expecting to complete year 10 in March 2011. He has not needed medication since the end of 2009. He details plans, which seem to be realistic, as to what he proposes to do upon release. This evidence supports a conclusion that significant rehabilitation has commenced and, to my mind, reinforces the desirability of providing for a substantial period of supervised parole. 61In my view the appropriate starting point having regard to the totality of criminality together, of course, with the subjective features is six years and eight months imprisonment which yields a sentence of five years after applying a 25% utilitarian discount. Applying the statutory ratio specified in s44 of the Crimes (Sentencing Procedure) Act 1999 would result in a non-parole period of three years and nine months. In my view, having regard to the applicant's youth and background, his drug abuse and associated questionable mental health, a lengthy period of supervision is essential to reinforce the rehabilitation which, accepting his contrition, appears to have commenced. The statutory calculus would not have enabled a sufficiently long period of supervision and, accordingly, I would impose a non-parole period of one year and four months in respect of the housebreaking offence. This is less than I would have proposed in the absence of the fixed terms upon which it is accumulated. Accordingly, I propose a total effective head sentence of 5 years imprisonment with a total effective custodial period under the fixed terms imposed in respect of Counts 2, 3 and 4 and the non-parole period in respect of Count 1 of two years and ten months. 62Under the proposed orders the applicant is now eligible for parole. Proposed orders (1) Leave to appeal is granted. (2) In respect of the offence in Count 2, the sentence is quashed. In lieu thereof the appellant is sentenced to a fixed term of 12 months commencing 11 September 2008 and concluding 10 September 2009. (3) In respect of the offences in Counts 3 and 4, the sentences are quashed. In lieu thereof the appellant is sentenced to fixed terms of 12 months, each commencing 11 June 2009 and concluding 10 June 2010. (4) In respect of the offence in Count 1, the sentence is quashed. In lieu thereof the appellant is sentenced to a non-parole period of one year and four months commencing on 11 March 2010 and ending on 10 July 2011 with a balance of term of two years and two months to expire on 10 September 2013. (5) The sentence for the offences under s166 are unchanged. 63HALL J : I agree with the reasons and orders proposed by Adams J.