Footnote 52 is a reference to Boyd.
35 The Crown in its submissions referred to most of these decisions, but not to Arvanitidis. However, it drew the Court's attention to what was said by Angel J in Staats v The Queen (1998) 123 NTR 16; 101 A Crim R 461. Although his Honour was "inclined towards the view of Underwood J" in Inkson, Angel J resolved the issue by reference to a particular provision of the Sentencing Act (NT). In my opinion this decision does not assist this Court in resolving what is the common law of this State.
36 The Crown, however, relied upon s 3A of the Crimes (Sentencing Procedure) Act 1999 particularly having regard to what the Chief Justice said in R v Berg [2004] NSWCCA 300; (2004) 41 MVR 399 as to the implications of that section upon the continued application of the principle enunciated in R v Previtera (1997) 94 A Crim R 76. That decision held that a court could not take into account the effects of the death of the deceased upon family or others when sentencing for murder.
37 The particular part of s 3A relied upon is 3A(g) which in effect states that one of the purposes of punishment is "to recognise the harm done to the victim and the community". Reliance is also placed upon s 21A(2)(g) of the Act that in effect provides that it is an aggravating factor for the purpose of sentencing that "the injury, emotional harm, loss or damage caused by the offence was substantial". In Berg the Chief Justice questioned whether the existence of s 3A(g), s 21A(2)(g), and the introduction of victim impact statements into sentencing proceedings might result in a need to revisit Previtera. In R v Tzanis [2005] NSWCCA 274 a specially constituted Court of five judges was convened to reconsider Previtera but, after hearing argument in the matter, the Court determined that it was not a suitable vehicle for that purpose. This Court has continued to apply Previtera and the obiter of the Chief Justice in Berg has never again been considered in that regard.
38 In my opinion neither the existence of s 3A(g) or s 21A(2)(g) leads to a conclusion that the common law of this State has been altered by the introduction of those provisions. Neither was intended to alter the law that existed prior to their introduction. Section 3A generally has been regarded as a codification of the common law principles of sentencing: see R v MA [2004] NSWCCA 92; 145 A Crim R 434 at [23]. It has been held that the purposes of punishment stated in the section are constrained by other sentencing principles that exist under the common law such as the principles of proportionality and totality: R v MMK [2006] NSWCCA 272; 164 A Crim R 481 at [11]. Wickham is itself authority for the proposition that nothing in s 21A was intended to alter the common law principles of sentencing and see R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [56]-[57].
39 It seems, therefore, that the statement made in Wickham and quoted above does still represent the common law of this State. It is unnecessary to ultimately decide the issue but, in the absence of any clear legislative statement to the contrary, it seems that this Court should as a matter of comity apply the common law as pronounced in South Australia and Victoria.
40 In the present case the evidence is not that the applicant believed that there was no person in the house when he entered it. His co-offender told him that the man Cooke lived there but that did not mean that there was no-one else residing in the premises. The applicant did not know Cooke so he knew nothing about his marital status. Although Cooke had left the premises there was no evidence that the offenders knew this. The applicant had no reasonable grounds for believing that there was no person present in the premises and it would have been open for the prosecution to rely upon the fact that there were persons in the premises as an aggravating factor.
41 These were ordinary residential premises. It was night. The applicant ought to have foreseen that there might be persons in the premises. He ought to have foreseen that any person in the premises would be adversely affected by the conduct of his co-offender, to which he was a party, in smashing open the door of the premises with a sledgehammer. It would in my view bring the law into disrepute for the offender to avoid the harm inflicted upon a person in the house in that situation.
42 It should also be noted that the facts refer to two statements overheard by Ms Wickham, one made by what she described as an older voice and the other by a younger voice. It is open to conclude that one of those statements was made by the applicant. Both of the statements indicated that the intruders knew that there were persons in the premises at least at the time the statements were made.
43 In my opinion it was open to the sentencing judge to take into account any harm suffered by Ms Wickham even though the applicant may not have actually known of her presence at the time he broke into the premises. It was reasonably foreseeable that there would be a person or persons in the premises and that any person in the premises would suffer emotional harm caused by the breaking into the premises in the way that the applicant did.
44 It was also submitted that the Judge was in error in taking into account that the harm suffered by Ms Wickham was substantial because the harm suffered was no more than would be expected of a person in her situation. After some dialogue between the Bench and counsel for the applicant on the hearing of the appeal, the submission was withdrawn but something should be said about it because it seems to be a common misunderstanding of the decisions of this Court in R v Youkhana [2004] NSWCCA 412 and R v Solomon [2005] NSWCCA 158.
45 Those two decisions were dealing with offences of armed robbery. In Youkhana it was held that a judge erred in taking into account the effects upon the victim of the robbery where the effects were no more than might be expected. In Solomon it was explained that this was so because the guideline judgment on armed robbery offences took into account the usual effects upon a victim of an armed robbery. Therefore, if a sentencer were to both apply the guideline and take into account the effects upon the victim, it would give rise to double counting of that factor unless the effects were more serious than would generally be expected.
46 But there is no general principle that injuries to a victim should be ignored or discounted because they are no more than would be expected as the result of the crime committed upon that type of victim. In a sentencing decision considered by this Court on a Crown appeal, although the Crown did not raise the point, a Judge refused to take into account the injuries suffered by an 80 year old rape victim because they were what would be expected of such a victim who suffered such an attack. The absurdity of such an approach must be apparent. The Court has no knowledge of how a victim of rape of that age might react to the offence. It can be predicted that it is likely to be severe, but why for that reason should the effect on the victim be disregarded?
47 In this case the Judge was entitled to take into account the emotional injuries suffered by Ms Wickham, even though it could be predicted that any female in her situation, particularly having a young child under her protection, would be traumatised by the events of that evening. The first complaint should be dismissed.
48 The second complaint in respect of the sentencing for the break and enter offence is that the Judge took into account that the offence was committed in the presence of a child under the age of 18. It was argued that there was no evidence that the applicant knew a child was present. The answer to the specific complaint in my view is that the applicant ought to have foreseen the possibility that a child would be in the premises, they being an ordinary domestic dwelling in a street of Casino at night. Again in my opinion it would bring the law into disrepute, if an offender could break into such premises without having regard to the fact that a child might be in the premises and the Court then refuse to take into account that the offence was committed in the presence of a child who happened to be there.
49 The third complaint under this ground is that the Judge appears to have taken into account that the robbery offence was committed in the home of the victims where in fact it occurred in a restaurant. The relevant passage of the remarks is as follows: