Kinchela v Regina

Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Criminal Appeal Act 1912 Criminal Code Act 1995 (Cth) Copyright Act 1968 (Cth)

Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 R v Pearce (Court of Criminal Appeal, 18.12.98, unreported) Schembri v Regina [2010] NSWCCA 149 Thom v Regina [2009] NSWCCA 294 Nahlous v R [2010] NSWCCA 58 Fahs v Regina [2007] NSWCCA 26 CASES CITED : R v Yildiz [2006] NSWCCA 97; (2006) 160 A Crim R 218 R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 R v Hemsley [2004] NSWCCA 228 R v Majid [2010] NSWCCA 121 R v Clarke [2009] NSWCCA 13 R v Mendez [2005] NSWCCA 246; (2005) 155 A Crim R 241 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168

PARTIES: Richard Shane Kinchela (App) Regina (Resp/Crown)

COUNSEL: D O'Neil (App) P A Leask (Resp/Crown)

SOLICITORS: S E O'Connor - LAC (App) S Kavanagh - DPP (Resp/Crown)

IN THE COURT OF CRIMINAL APPEAL CCA 2008/8606

HODGSON JA KIRBY J WHEALY J

Friday 6 August 2010 Richard Shane KINCHELA v REGINA Judgment 1 HODGSON JA: I agree with Kirby J. 2 KIRBY J: Richard Shane Kinchela (the applicant) seeks leave to appeal against sentences imposed on 16 September 2008 by Knight DCJ at the Penrith District Court. The applicant had pleaded guilty to a number of offences which may be summarised as follows: Count 1: On 1/2 July 2007, stealing a motor vehicle contrary to s 154F Crimes Act 1900 ("the Act"); maximum penalty: 10 years imprisonment. Count 2: On 4 July 2007, stealing a motor vehicle contrary to s 154F of the Act. Count 3: On 5 July 2007, breaking into a garage in company and stealing a motor vehicle (aggravated break, enter and steal), contrary to s 112(2) of the Act; maximum penalty: 20 years imprisonment with a standard non parole period of 5 years. Count 4: On 5 July 2007, stealing a motor vehicle contrary to s 154F of the Act. Count 5: On 30 June 2007, robbery in company contrary to s 97(1) of the Act; maximum penalty: 20 years imprisonment. 3 Having heard submissions, his Honour imposed the following sentences in respect of each count: Count 1: Fixed term of imprisonment of 12 months (17.1.08 to 16.1.09). Count 2: Fixed term of imprisonment of 12 months (17.4.08 to 16.4.09). Count 3: Fixed term of imprisonment of 2 years (17.7.08 to 16.7.10). Count 4: Fixed term of imprisonment of 12 months (17.7.08 to 16.7.09). Count 5: Total term of 4 years and 6 months imprisonment (17.7.09 to 16.1.14), with a non parole period of 2 years and 3 months (17.7.09 to 16.10.11). 4 It can be seen that there was a partial accumulation (3 mths) between Counts 1 and 2, and between Count 2 and Counts 3/4 (which were concurrent). There was likewise partial accumulation in respect of Count 5, where the overlap was 1 year. 5 The effective sentence was 6 years imprisonment, consisting of a non parole period of 3 years 9 months (17.1.08 to 16.10.11), with the sentence expiring on 16.1.14. 6 Before going to the Notice of Appeal, I should describe the circumstances in which each offence was committed and say something about Mr Kinchela's background.

The offences. 7 The offences occurred in the space of less than a week. It is instructive to examine them in the order in which they were committed. The final count (Count 5) (robbery in company) was the first in point of time and the most serious. It occurred on 30 June 2007. 8 Ms Beverley Brown, a woman aged 47 years, was working alone as a console operator at the Caltex Service Station at Vineyard, near Windsor. The service station was located on the outskirts of Vineyard and was remote from other businesses. At 11.06 p.m. Mr Kinchela and a female companion entered the service station. They remained within the store for about two minutes. Ultimately they purchased a small bottle of Coke and left at 11.08 p.m. 9 At 11.12 p.m. the applicant and his companion re-entered the store. They walked around until all the other customers had left. Mr Kinchela then approached Ms Brown and sought her assistance in the selection of a motor oil. The agreed facts described what then happened in these words: "The victim left the security of the console, exiting through a secured glass door, and walked out on the shop floor, towards the shelving where the oil was being displayed. She recommended a particular brand of motor oil to the offender. The victim turned her back on both the offender and the co-accused and walked towards the security door. As soon as the victim pressed the security code into the keypad and the glass door opened up, she felt a sudden punch to the back of her head. The victim turned around and saw the offender beating into her with his fist. The offender continued to punch the victim several more times to her face and head, causing her to become dizzy and unsteady on her feet." 10 There was an elaboration in Ms Brown's statement, which formed part of the material placed before the sentencing Judge. She said that she had been punched four times in the head and that it really hurt. She began to scream. The applicant then grabbed her by the back of the neck and dragged her into the service station console area. In doing so, he left his fingerprint upon the glass security door. Ms Brown was ultimately dragged to the manager's office and thrown on the floor. 11 Mr Kinchela then instructed his female companion to "tie her up, tie her up". She did so, taking a roll of tape from the manager's desk. She bound Ms Brown's legs and then applied several layers of tape to her mouth. His Honour described what then happened, in these words: (ROS 6) " ... She was verbally abused by you, calling her a 'slut' and a 'whore' and you demanded that she show you where her purse was. You took a knapsack and demanded the keys to the service station safe. Apparently, this was prior to Ms Brown's mouth being taped because she told you she could not get into the safe because of the time delay on it. You then began pulling tools out and removing cash from the drawers. You removed cigarettes from the shelves and you put them into Ms Brown's knapsack which was being held by your female co-accused." 12 At about 11.24 p.m. the applicant and his co-offender left with property belonging to the victim and the service station. They took Ms Brown's knapsack, which contained $75.00 in cash, personal documents including her driver's licence and her mobile phone valued at $300.00. They also took cash from the register of the service station ($496.30) and cigarettes valued at $167.92. They left Ms Brown bound and gagged on the floor of the manager's office. She was able to free herself after about ten minutes. The agreed facts described the impact upon her in these words: "The victim was taken immediately to Hawkesbury Hospital suffering from soreness to her head and deep shock. Her physical injuries required no further medical treatment. Following the robbery she discontinued working at the service station and commenced counselling and medication to address her stress-related response." 13 The next offence (Count 1), occurred a day or so later on 1/2 July 2007. Mr Kinchela and others stole a Ford Laser motor vehicle. The vehicle had been parked by its owner in front of a suburban home. It emerged from CCTV footage that the vehicle stopped late that afternoon at a service station at Glendenning. It was filled with petrol and then left without paying. 14 Later the same day, the vehicle stopped again at another service station at Griffith. Again it was filled with petrol and then left without paying. 15 The police found the vehicle at 2.00 p.m. the following day (3.7.07) in Griffith. It had damage to the steering column, with wires hanging down and fuses on the floor. The vehicle was undrivable. Within the vehicle there was an MP3 player and remote control. The player and control were identified as having been stolen from another vehicle in Griffith, where the owner of that vehicle had left it locked by the side of the road. 16 When later interviewed by police, Mr Kinchela acknowledged that he and his companions had stolen the vehicle. He had driven to Griffith because one of his friends wanted to see his girlfriend. The agreed facts included the following: " ... The offender made admissions to driving the vehicle in a dangerous and erratic manner to a point where the vehicle was undrivable." 17 The offence in Count 2, which was stealing a further motor vehicle, was committed a day or so later (4.7.07). Once the vehicle, the subject of the first count became undrivable, a further vehicle was stolen to enable Mr Kinchela and his companion to return to Sydney. A woman had parked her car within a car park at Griffith whilst she went to work. The car was locked. It was later seen by police parked at Faulconbridge. There were two occupants. As the vehicle began to travel in a westerly direction, the police activated their siren. The vehicle then accelerated and a pursuit began. The vehicle did a u-turn and thereafter reached speeds of up to 130 kilometres per hour. The agreed facts described the remainder of the pursuit in these words: " ... When near the intersection of Green Parade, Valley Heights, the vehicle crossed to the incorrect side of the roadway and continued travelling east on the portion of the carriageway set aside for west bound traffic. The pursuit was terminated at this point." 18 The vehicle was later found abandoned at Faulconbridge. When interviewed, Mr Kinchela acknowledged that he was the driver of the vehicle. 19 The abandonment of that vehicle led to the remaining offences of aggravated break, enter and steal (Count 3) and stealing a motor vehicle (Count 4). They occurred within a matter of hours. Some time between 7.00 p.m. on 4 July 2007 and the following morning, Mr Kinchela and his companion broke into a locked garage at Faulconbridge. They stole a Nissan Pintara vehicle. Late on 6 July 2007, the vehicle was located at Doonside, where it had been abandoned near the applicant's home. Inside the vehicle was a pair of cotton gloves, a pair of yellow gloves and a screwdriver. The vehicle was examined by a Crime Scene Officer. Mr Kinchela's fingerprints were located in three separate locations, including the rear vision mirror. When later interviewed he made what were described as "full admissions", including that he was in company.

Subjective case. 20 Let me pass from the offences to the offender. Mr Kinchela was born in March 1989. He had therefore turned 18 years several months before these offences were committed. He is aboriginal. He comes from a large family. There were seven children in that family. However, his brother died four years ago as a result of complications associated with haemophilia. The applicant also suffers from haemophilia (as well as hepatitis C). 21 When the applicant was seven years old, his family moved to Bundaberg. He was then sexually assaulted by the brother of his sister's boyfriend. In the history he provided to Dr Jacmon, psychologist (report 20.8.08), he said he was left bleeding after the assault. The matter was referred to the police, but the man was not charged. Dr Jacmon recorded the following in his report: (p 1) " ... He never recovered from the distress the incident caused him and in particular his assailant not having been charged. He often stated during the assessment that 'he (the assailant) took my life away' and expressed strong anger and thoughts of retribution over the assault." 22 Four or five years later, whilst in a Juvenile Correction Centre, the applicant saw a psychiatrist. At the age of 11 or 12 he was treated with anti-depressants (Probation and Parole report, p 3). 23 As a consequence of this turmoil, the applicant began taking drugs. The Probation and Parole report included the following: (p 2) "Mr Kinchela reported that he began using cannabis at age 10 to escape the memories of his rape three years earlier. He stated that, by the age of 15, his drug abuse had progressed to an alternating cocktail of ecstasy, cocaine, heroin and crystal methamphetamine, hereinafter referred to as ICE." 24 Mr Kinchela attended a school for children with behavioural problems and learning difficulties. According to the Probation and Parole report, he left school as a result of disciplinary issues at the age of 11. When he left he was illiterate. His illiteracy and use of drugs meant that he was unable to secure employment. He quickly accumulated a criminal record in the Children's Court, beginning in 2002 when he was aged 13. He was repeatedly charged with stealing motor vehicles and associated offences. Control orders were made. His Honour, in his sentencing remarks, made the following comment upon his criminal history: (ROS 8) "I turn to consider your criminal history. One can only say that for a person so young, it is very extensive. It started when you were thirteen years of age and were convicted of two counts of larceny at Campbelltown Children's Court on 3 June 2002. Since then, there has been regular offending and the offences have involved a wide range of different types. It includes larceny, breaking and entering and stealing, taking and driving conveyances, goods in custody reasonably suspected of being stolen, larceny, driving vehicles in a dangerous manner. It certainly entitles you to no leniency. It also includes an offence of damaging property by fire of which you were convicted on 11 June 2004." 25 His Honour added that Mr Kinchela has spent considerable time in juvenile custody and more recently, in adult custody (ROS 9). He said this: (ROS 8) "Your record is such that I have given thought to whether you come within the principles set forth in Veen No 2 . However, on reflection, I have come to the conclusion that you do not, primarily because of your age and I do not consider that there is no prospect of your being rehabilitated for reasons which I will mention later." 26 At the time of committing the offences, the subject of this appeal, Mr Kinchela was on conditional liberty. On 31 October 2006, he had been placed on 12 months probation by the Children's Court for the offence of destroying or damaging property, as well as stalking and intimidating. He was later charged with further offences and was on bail. The fact that he was on probation and on bail were, as his Honour recognised, both matters of aggravation (s 21A(2)(j) Crimes (Sentencing Procedure) Act 1999). 27 Dr Jacmon carried out a cognitive assessment of Mr Kinchela. He reported the result in these terms: (p 4) "The background and presentation indicated the possibility of brain damage created by taking large quantities of drugs. To gauge broadly the extent to which brain damage may have occurred Mr Kinchela completed the Symbolic Digit Modalities Test (SDMT). This is screening test of cerebral dysfunction. His results were within the lowest 1% of the population indicating a high probability of brain damage." 28 Dr Jacmon also administered an intelligence test, designed to measure verbal and performance intelligence. The result was as follows: (p 4) "Mr Kinchela scored in the extremely low category probably reflecting his very low level of schooling and brain damage." 29 Dr Jacmon also attempted to determine, based upon the applicant's description of his symptoms, whether he satisfied the criteria for various mental illnesses, as described by the psychiatric manual, DSM IV. His Honour summarised the outcome in these words: (ROS 10) " ... From the report of Doctor Jacmon, it becomes quite apparent that this assault had a very deleterious effect on you, particularly in relation to your psychological and mental health. I accept that you suffer from a post-traumatic stress disorder as a result of that assault and that you also suffer from depressive mood and anxiety and substance dependence. Doctor Jacmon also indicated that he considered that you suffered from paranoid schizophrenia. I am not prepared to accept that diagnosis, coming as it does from a psychologist rather than from a psychiatrist and I raised the matter with your counsel. I note that he did not press that opinion, in my view, correctly. Nevertheless, it is perfectly obvious that you do have significant mental problems. ... " 30 His Honour noted that, notwithstanding that history, Mr Kinchela still had the support of his parents. His mother, however, was in the last stages of throat cancer. He has participated in gaol programmes which will improve his literacy. He is also addressing his drug problem. The Probation and Parole report included the following: (at p 2) "Mr Kinchela is currently treated on the buprenorphine program and stated he is committed to refrain from illicit drugs permanently as he considered they had already partly damaged his brain. Regaining the respect of his mother, who has suffered with a terminal illness, also appeared to be a motivating factor to remain abstinent." Notice of Appeal. 31 The notice seeking leave to appeal identified the following grounds of appeal: Ground 1: His Honour wrongly double punished the Appellant for the single act of larceny contained within Counts 3 and 4 of the indictment. Ground 2: His Honour wrongly came to the view that the offences of break, enter and steal in company, and robbery, were aggravated because each offence was part of planned or organised criminal activity. Ground 3: His Honour failed to give sufficient weight to the Applicant's mental illness. Ground 4: His Honour failed to give sufficient weight to the Applicant's subjective background. Ground 5: Manifest excess. 32 Let me deal with each ground in turn.

Ground 1: His Honour wrongly double punished the Appellant for the single act of larceny contained within Counts 3 and 4 of the indictment. 33 Counsel for the applicant pointed to the agreed facts relating to Count 3 (the aggravated break, enter and steal) and Count 4 (steal motor vehicle). They were the same. The larceny, the subject of Count 3, was precisely the same as the vehicle stolen in Count 4. Yet separate sentences were imposed in respect of each count, although they were made concurrent. Attention was drawn to Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at 624. The separate charge for stealing a motor vehicle (Count 4) should have been dismissed. Counsel for the applicant, in written submissions, said this: (p 6) "48. The criminality involved in the steal motor vehicle was entirely subsumed in the criminality involved in the break, enter and steal in company charge. In these circumstances the Applicant was punished twice for the same conduct." 34 The Crown submitted that there had been no practical injustice. His Honour recognised that the two charges were essentially the same. The sentence imposed in respect of the stealing of the motor vehicle was entirely subsumed within the sentence for Count 3. There was, therefore, "no effective punishment" or no additional punishment in respect of Count 4. In the context of an offence where the maximum penalty was 20 years, with a standard non parole period of 5 years (s 112(2) Crimes Act 1900), the sentence of 2 years was certainly not excessive. 35 Dealing with these arguments, in Pearce v The Queen (supra) the appellant was charged with a number of offences. They included two counts (Counts 9 and 10) that arose out of a single episode. The appellant broke into the victim's home and beat him. The indictment charged, first, that the offender had maliciously inflicted grievous bodily harm with intent to do the victim grievous bodily harm and, secondly, with breaking and entering the same victim's home and, whilst therein, inflicting grievous bodily harm. Counsel for the appellant sought a stay on the basis that the charges were an abuse of process. The application was refused. The appellant then pleaded guilty to a number of offences, including Counts 9 and 10. He was sentenced, in respect of Counts 9 and 10, to 12 years imprisonment with a minimum term of 8 years (less time in custody since his arrest) (Pearce supra [4]). The sentences were concurrent. An appeal to the Court of Criminal Appeal was dismissed. On appeal to the High Court, McHugh, Hayne and Callinan JJ dealt with the issue of double jeopardy for a single act. They said this: (at 623) "42. It is clear in this case that a single act (the appellant's inflicting grievous bodily harm on his victim) was an element of each of the offences under ss 33 and 110. ... " 36 The Court considered whether, in these circumstances, the application for a stay should have succeeded. A plea in bar was not available since each offence contained elements not included in the other. Nor, for the same reasons, could either charge be dismissed as an abuse of process (Pearce supra [28]-[31]). 37 The Court, in these circumstances, turned its attention to the sentences that had been imposed. McHugh, Hayne and Callinan JJ said this: (at 623/4) "45. To an offender, the only relevant question may be 'how long', and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality." 38 The order made was to set aside the sentences and remit the matter to the Court of Criminal Appeal for reconsideration. In making that order, their Honours said this: (at 624) "49. Looked at overall, it may well be said that the effect of the sentences imposed on this appellant was not disproportionate to the criminality of his conduct. Nevertheless, we consider that the individual sentences imposed on counts 9 and 10 were flawed because they doubly punished the appellant for a single act, namely, the infliction of grievous bodily harm. Further, to make the sentences imposed on those two counts wholly concurrent may also be said to reveal error in that to do so failed to take account of the differences in the conduct which were the subject of punishment on each count. ... " 39 The Court of Criminal Appeal then confirmed the sentence on Count 9 as being well within the range of appropriate discretion. It quashed the sentence on Count 10 and resentenced the offender to a fixed term of 2 years imprisonment (R v Pearce (Court of Criminal Appeal, 18 December 1998, unreported)). 40 Here, there was no application to dismiss Count 4. Unlike the original sentence in Pearce, the sentencing Judge imposed separate sentences in respect of Count 3 (2 years) and Count 4 (1 year) of different lengths reflecting, no doubt, his assessment of the criminality in each offence. He recognised the difficulties created by two charges having the common element of stealing a motor vehicle. In the course of submissions and a discussion about whether the sentences on Counts 3 and 4 should be concurrent, his Honour said this: (T 16) "The fourth offence must be because it's part and parcel of the same episode of criminality with the break, enter and steal because what he stole was the motor vehicle." 41 His Honour repeated that statement in his remarks on sentence: (ROS 4/5) "It is apparent that the third offence which was the aggravated break and enter and commit serious indictable offence of larceny and the fourth offence are the same incident. The break, enter and steal in company consisted of your breaking into the garage and stealing the motor vehicle and the offence of stealing the motor vehicle was the vehicle that you took and drove from that garage so that the third and fourth offences are as I have said essentially the same incident." 42 The sentences were concurrent, in contrast with the sentences imposed in the remaining counts where, in each case, there was partial accumulation. No doubt his Honour was attempting to avoid punishing the applicant twice for the same conduct. 43 But was there error entitling the applicant, subject to s 6(3) of the Criminal Appeal Act 1912, to be resentenced, at least in respect of Counts 3 and 4? In Pearce there were differences between the two offences but some overlap. Here, Count 4 simply required proof that the applicant intentionally stole a motor vehicle (s 154F Crimes Act 1900), which was also an element of Count 3. There was no separate act of criminality warranting a separate charge and penalty. The applicant's conduct whilst driving the stolen vehicle could have been the subject of separate offences (had the police chosen). In my view the indictment should not have included a separate charge in respect of stealing the motor vehicle (Count 4). Had there been an application to dismiss the charge, it would likely have succeeded. However, as I have stated, no such application was made. His Honour was confronted with an indictment which included the two charges. He recognised the problem. He was clearly conscious of the requirements of Pearce, including the need for separate sentences in respect of each offence and accumulation in respect of any additional criminality. The sentences were concurrent precisely because the sentencing Judge recognised there was no additional criminality in Count 4. 44 Similar issues have recent arisen under the Criminal Code Act 1995 (Cth) ("Criminal Code"). In Schembri v Regina [2010] NSWCCA 149, the offender was charged with obtaining a financial advantage by deception (contrary to s 134.2(1) of the Criminal Code) and an additional charge of dealing with the proceeds of crime (contrary to s 400.4(1) of the Criminal Code). On appeal, it was asserted there was error on the part of the sentencing Judge in not imposing sentences on the money laundering counts (s 400.4(1)) which were wholly concurrent. The Crown conceded error. It acknowledged that there were a number of recent decisions in this Court criticising the practice of charging both deception in obtaining money and then dealing with the proceeds of crime, once the money had been secured. In Thorn v Regina [2009] NSWCCA 294, Howie J said this: "27. This was an unusual use of a money laundering offence. To the extent that there was an overlap with the fraud offences the charge represented the use of the funds that had been dishonestly obtained under those offences. The criminality was very much in the obtaining of the funds not in their use. It is somewhat analogous to a robber being sentenced for both the robbery and being in possession of the stolen goods. ... " 45 In Nahlous v R [2010] NSWCCA 58, the offender was charged with breaching the Copyright Act 1968 (Cth) (and thereby obtaining money). At the same time he was charged with dealing in the proceeds of crime (s 400.6(1) of the Criminal Code), the Court said this: "17. We appreciate that a person can by the one act commit two offences and, where the two offences address different aspects of the criminal conduct, there is nothing wrong with prosecuting the two offences or, subject to the principle of totality, with imposing separate sentences for the two offences. But in our view the receipt of the money as a result of the sale did not result in a separate act of criminality that warranted a separate charge and a separate penalty." 46 In Schembri (supra), the Court re-emphasised this Court's disapproval of such prosecutorial actions (at [16]). The error was corrected by making the sentence on the money laundering offence concurrent with the substantive offence, so that there was no additional punishment. 47 Here his Honour dealt with the indictment before him. He made the sentences on Counts 3 and 4 concurrent. There was no additional punishment in respect of Count 4. In circumstances where there had been no application to strike out, I would not find error.

Ground 2: His Honour wrongly came to the view that the offences of break, enter and steal in company, and robbery, were aggravated because each offence was part of planned or organised criminal activity. 48 Under the Crimes (Sentencing Procedure) Act 1999, it is a matter of aggravation where the following can be said to apply: (s 21A(2)) "(n) The offence was part of a planned or organised criminal activity." 49 Here, counsel for the applicant complained that his Honour wrongly viewed the offences of aggravated break, enter and steal (Count 3) and robbery in company (Count 5) as having been aggravated by reason of s 21A(2)(n). Attention was drawn to Fahs v Regina [2007] NSWCCA 26, where Howie J said this (Simpson and Buddin JJ agreeing): (at [21]) "21. The aggravating factor under s 21A(2)(n) is that 'the offence was part of a planned or organised criminal activity'. The wording of this provision seems to me to convey more than simply that the offence was planned. The fact that there was a 'level of planning in the offences' as found by the Judge does not necessarily give rise to the aggravating factor in s 21A(2)(n). In R v Wickham [2004] NSWCCA 193 the Court stressed the importance of making findings under s 21A in accordance with the words of the provision." 50 In R v Yildiz [2006] NSWCCA 97; (2006) 160 A Crim R 218, Simpson J also said this: (at 225) "37. ... By s 21A(2), the fact that an offence is part of a planned or organised criminal activity is a matter that a sentencing court is obliged to take into account as an aggravating feature. But, by the suffix to that subsection, the court is expressly enjoined against taking into account any aggravating feature if it is an element of the offence charged. That injunction has been extended to circumstances that are 'an inherent characteristic' of the offence charged (see, for example, Elyard v The Queen [2006] NSWCCA 43; per Howie J. An example is the disregard for public safety implicit in dangerous driving offences. But this principle does not mean that the degree to which the 'inherent characteristic' exists in relation to a particular offence may not, where it exceeds the norm, be taken into account as an aggravating factor. The problems that are created by s 21A were spelled out by Howie J in Elyard ." 51 Here, according to counsel for the applicant, the level of planning in respect of each offence did not rise above that which you would ordinarily expect in an offence of this kind. Accordingly, neither offence was aggravated. 52 The Crown responded that a careful reading of his Honour's remarks disclosed that he had not found that the offences were aggravated under s 21A(2)(n). 53 His Honour, in his remarks, dealt with the question of planning in a number of different contexts. When considering Count 5 (robbery in company), his Honour referred to the guideline judgment R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 and its application to the facts before him. Henry identified the features of a "typical robbery", for the purposes of a guideline, so that sentencing Judges could adjust the appropriate sentence, depending upon the facts before them. The guideline included, as one of the features, the following: (at 380) "(iii) limited degree of planning" 54 His Honour, in that context, said this in relation to the offence in Count 5: (ROS 14) "A limited degree of planning. I am satisfied that there was some degree of planning in the robbery in company. You, in effect, cased the joint by going in with your female companion and you lured Ms Brown, the victim, from the security of her area at the console into a situation where you could effect the robbery. So I am satisfied that you did indeed have a degree of planning but I am also satisfied that that degree of planning was pretty limited." 55 Towards the end of his remarks, his Honour turned to the circumstances of aggravation and mitigation, as defined by s 21A(2) and (3) of the Crimes (Sentencing Procedure) Act 1999. His Honour considered various paragraphs of those subsections, one by one. In respect of s 21A(2)(n), a circumstance of aggravation, his Honour said this: (ROS 16) "Subs 2(n) that the offence was part of a planned or organised criminal activity. I think there was, as I have already said, there was a limited degree of planning involved in relation to the robbery in company offence and perhaps in relation to the break, enter and steal offence but very little in relation to the other offences." 56 His Honour did not say, in terms, that he found the offence aggravated by planning. The better view, as the Crown contends, is that his Honour was rejecting aggravation, because the planning was so rudimentary. 57 I would therefore not find error. The issue will be revisited in the context of Ground 5 (which is concerned with whether the sentences were manifestly excessive). In that context, the actual sentences imposed by his Honour in each count will be examined.

Ground 3: His Honour failed to give sufficient weight to the Applicant's mental illness. 58 Counsel for the applicant acknowledged that his Honour dealt with the issue of mental illness. His Honour accepted the opinion of Dr Jacmon that the applicant was suffering from Post Traumatic Stress Disorder, Depressive Mood and Anxiety Disorder as well as substance dependence (ROS 10), as a consequence of the sexual assault. He therefore accepted that Mr Kinchela had "significant mental problems". He referred to the psychometric testing which placed the applicant in "the lowest 1% of the population". The test also indicated the degree of severe depression from which he suffered (ROS 10). 59 His Honour referred to the various ways in which mental illness was relevant to the sentences he was obliged to impose, as set out in R v Hemsley [2004] NSWCCA 228, where Sperling J said this: "33. Mental illness may be relevant - and was relevant in the present case - in three ways. First, where mental illness contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced; there may not then be the same call for denunciation and the punishment warranted may accordingly be reduced: Henry at [254]; Jiminez [1999] NSWCCA 7 at [23]; Tsiaras [1996] 1 VR 398 at 400; Lauritsen (2000) 114 A Crim R 333 at [51]; Israil [2002] NSWCCA 255 at [23], Pearson [2004] NSWCCA 129 at [43]. 34. Secondly, mental illness may render the offender an inappropriate vehicle for general deterrence and moderate that consideration: Pearce (NSW CCA, 1 November 1996, unreported); Engert (1995) 84 A Crim R 67 at 71 per Gleeson CJ; Letteri (NSW CCA, 18 March 1992, unreported); Israil at [22]; Pearson at [42]. 35. Thirdly, a custodial sentence may weigh more heavily on a mentally ill person: Tsiaras at 400; Jiminez at [25]; Israil at [26]." 60 His Honour found that the mental illness suffered by the applicant was relevant in each of the ways identified. It had contributed to his offending behaviour. His Honour said this: (ROS 11) "I am quite satisfied that you were grossly affected by substance abuse at the time and also the other mental problems that you had which contributed to your committing this offence. Dr Jacmon traces it in his report and I consider that he is correct and I adopt his reasoning. So it seems to me that your culpability is somewhat reduced." 61 His Honour acknowledged that Mr Kinchela was, by reason of mental illness, an inappropriate vehicle for general deterrence, such that that aspect of sentencing should be moderated (ROS 11). He accepted that a custodial sentence would weigh more heavily upon him and would certainly not assist his depression (ROS 11). 62 What, then, was the applicant's complaint? In written submissions the following was said: (App's Subs p 8) "59. Whilst his Honour identified these factors, close consideration of the report of Dr Jacmon suggests that the Applicant's mental health and capacity was worthy of further and closer consideration." 63 Counsel pointed to the symptoms associated with each diagnosis which were listed by Dr Jacmon in his report. By their nature, they were pervasive. They affected every aspect of the applicant's "entire functioning". The submissions concluded with the following criticism of his Honour's remarks: (App's Subs p 12) "69. When contrasted with the detail provided by Dr Jacmon his Honour's approach was inadequate. The Applicant's mental health issues were extremely extensive. The impact of these problems was worthy of some substantial identification so as to confirm his Honour was fully aware of the full import of these problems and [their] full impact upon the Applicant." 64 The Crown responded that the complaint that his Honour gave "insufficient weight" implicitly acknowledged that the matters had been given some weight. In R v Majid [2010] NSWCCA 121, Johnson J in that context said this: "40. ... Circumstances in which matters of weight will justify intervention by this Court are narrowly confined, whether the proceeding is a Crown appeal or an offender's application for leave to appeal with respect to sentence: R v Baker [2000] NSWCCA 85 at [11]; Ryan v R [2009] NSWCCA 183 at [33]; Cao v R [2010] NSWCCA 109 at [57]." 65 The Crown also drew attention to my own words (Grove and Blanch JJ agreeing) in R v Clarke [2009] NSWCCA 13, where the following was said in the context of a ground of appeal which asserted that the sentencing Judge had given "insufficient weight" to a particular matter: (at [22]) "22. Counsel for the applicant complained that his Honour failed to give the applicant's strong subjective case sufficient weight. However, as the Crown said in its written submissions, these were matters for his Honour to evaluate. His Honour was obliged to form a judgment. The submission that evidence was not given "sufficient weight" inevitably encounters the difficulties described by Latham CJ in Lovell v Lovell (1950) 81 CLR 513 (recently reaffirmed in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 330). Latham CJ in Lovell said this: (at 519) '... The references in the various authorities on this matter to a failure to give sufficient weight to relevant considerations should not be understood in such a sense as to entitle an appellate tribunal to deal with an appeal from an order made in the exercise of a discretion in the same way as in the case of an appeal from any other order. If completely irrelevant considerations have been taken into account and they have really affected the decision the case is clear, and the order, though made in the exercise of a discretion, should be set aside. Similarly, if relevant considerations are plainly ignored the same result follows. But when the appellate tribunal is considering questions of weight it should not regard itself as being in the same position as the learned trial judge. In the absence of exclusion of relevant considerations or the admission of irrelevant considerations an appellate tribunal should not set aside an order made in the exercise of a judicial discretion (as to which see Sharp v Wakefield [1891] AC 173 at 179) unless the failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court.' (emphasis in original)" 66 Here, his Honour had certainly not failed to exercise his sentencing discretion. On the contrary, his remarks demonstrate that he carefully weighed the relevant material. 67 I would therefore dismiss Ground 3. Ground 4: His Honour failed to give sufficient weight to the Applicant's subjective background. 68 The applicant's life, according to his counsel, had been marked by tragedy. He had also expressed remorse for his offences, which the sentencing Judge had overlooked. These expressions of remorse appeared in the presentence report and Dr Jacmon's report. His Honour made reference to remorse in the context of the plea of guilty (ROS 14) and when considering matters in mitigation, but did not refer to the expressions of remorse in these reports. His Honour said this, referring to s 21A(3) of the Crimes (Sentencing Procedure) Act 1999: (ROS 16/17) "Subs 3(j) is also relevant, that is there is remorse and I am satisfied that there is a degree of remorse here which is evidenced by your pleas of guilty. Subs 3(k) your plea of guilty. I have already indicated how I intend to take that into account as far as the utilitarian value of your plea is concerned but of course it is also evidence of remorse and contrition and I take it into account in that way as well but I emphasise that I am not double-counting in relation to remorse. You get one benefit for remorse, not two." 69 The Crown responded that the applicant's subjective case was considered in detail. The complaint as to the "weight" given by his Honour to that material, suffers from the same difficulty identified in respect to Ground 3. There was, accordingly, no substance in Ground 4. 70 In my view, the sentencing Judge carefully considered the subjective case of the applicant. There was no error.

Ground 5: The sentence was manifestly excessive. 71 The applicant's argument, in respect to Ground 5, relied upon a number of matters. The first were the suggested errors in Grounds 1 to 4 and their impact upon the sentence. The second relied upon sentencing statistics provided to his Honour, which suggested that the mid range non parole period in respect of both robbery in company and aggravated break, enter and steal was 24 months. Here, his Honour, in each case, found the offending behaviour was below the mid range. According to the applicant, you would therefore expect a non parole period of less than 24 months. On Count 3, however, there was a fixed term of 24 months, with no specification of a non parole period. On Count 5 the non parole period was 2 years 3 months. 72 Before going to the Crown submissions, it is instructive to set out what his Honour said in respect of each offence. In the context of the aggravated break, enter and steal, his Honour said this: (ROS 15) "The next matter to which I wish to refer in relation to the break, enter and steal offence is the guideline judgment in R v Ponfield and others (1999) 48 NSWLR 327. I have taken into account the matters referred to in that judgment. In her very helpful written submissions, counsel for the Crown has submitted that this matter fell within the lower end of the range of objective seriousness for this type of offence. I agree with her. The fact is that this was a breaking and entering into a detached garage; there was no-one likely to be in the actual garage itself; there was no vandalism done, the only damage was the damage that was necessary to effect entry and then steal the vehicle." 73 In respect of the offence in Count 5, robbery in company, his Honour mistakenly referred to a standard non parole period (confusing Count 5 with Count 3), whereas there is no standard non parole period for robbery in company. This was a slip but was later corrected (ROS 20). Importantly, his Honour characterised the offence, in terms of the criminality, in these terms: (ROS 17) "The next matter to which I need to refer is that in relation to the third offence, that is the robbery in company offence (sic aggravated break, enter and steal), there is a standard non-parole period of five years. In R v Shi and R v Way the Court of Criminal Appeal laid down that a sentencing judicial officer faced with the standard non-parole period, must ask him or herself the question, are there reasons for not imposing the standard non-parole period? In this case there are clearly two very sound reasons. The first is the plea of guilty entered at the earliest reasonable opportunity and the second is that I would put the criminality involved in this offence as somewhat below the mid-range for an offence of this nature. As I have said, I regard it as falling towards the lower end of the range of objective seriousness of offences of this type. So for those two reasons I am satisfied that the standard non-parole period is not applicable and I decline to impose it." 74 The Crown answered the applicant's submissions by asserting that the sentences were not excessive, either individually or in total. The offence of stealing a motor vehicle was serious. It carried a maximum penalty of 10 years imprisonment. The sentences actually imposed involved minimal accumulation (and no accumulation, appropriately, in respect of Count 4). The offence of aggravated break, enter and steal carried a maximum penalty of 20 years imprisonment, with a standard non parole period of 5 years. Notwithstanding the plea of guilty, the standard non parole period remained relevant as a guidepost. The sentence of 2 years (after the plea) could hardly be considered excessive for an offence at the lower end of the range. In respect of the offence of robbery in company, the maximum penalty was 20 years imprisonment. The sentence imposed of 2 years 3 months non parole, with a total term of 4 years 6 months, was in conformity with R v Henry (supra). The ratio between the head sentence overall and the non parole period was 62.5%, reflecting the finding of special circumstances. 75 The Crown also drew attention to the matters of aggravation. The applicant was both on probation and on bail when he committed each offence. 76 In terms of the statistics relied upon by the applicant, the Crown said this: (Crown Subs, [40]) "40. ... the statistics and table of cases tend to demonstrate that the general sentencing levels for robbery in company and armed robbery remain systematically lenient, as identified by Chief Justice Spigelman in R v Henry & Ors (1999) 46 NSWLR 346 at 368-371 in relation to armed robbery, see specifically the tables of sentencing statistics at 369-370 of his Honour's judgment. It can be seen that the statistics tendered in this case are not demonstrably different to the statistics cited in Henry which his Honour said 'strongly suggest both inconsistency in sentencing practice and systematic leniency in the level of sentence' and justified the Court in introducing a guideline judgment (at 371)." 77 Dealing with this ground, his Honour said, accurately, that "these offences carried with them very considerable criminality" (ROS 7). The sentences ultimately imposed, including the accumulation where made, were less than you might expect on these facts. It reflected the acceptance by his Honour of the strong subjective factors in the applicant's case, and especially his mental health. His Honour's use of R v Henry (supra) as the guide in respect of the sentence imposed for robbery in company was, I believe, entirely appropriate. The sentences were not, in my view, manifestly excessive. 78 I would dismiss Ground 5. 79 The Crown drew attention to one error. A fixed term was imposed on Count 3 (aggravated break, enter and steal), whereas being a standard non parole period offence, a parole period should have been specified (s 45(1) and s 54B(2) Crimes (Sentencing Procedure) Act 1999; R v Mendez [2005] NSWCCA 246; (2005) 155 A Crim R 241 at 248; R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [47]). In the orders I will propose, that error should be corrected. The correction does not affect the term which was imposed.

Order. 80 I therefore propose the following orders:

2. The appeal is dismissed, except in respect of Count 3 where the sentence imposed is quashed and, in lieu thereof, the applicant sentenced to a non parole period of 1 year 6 months, to date from 17 July 2008 and expire on 16 January 2010, with an additional term of 6 months expiring on 16 July 2010. 81 WHEALY J: I agree with the reasons of Kirby J and the orders that he proposes. **********

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