Lovell v R; Dominey v R

[2006] NSWCCA 222

Court of Criminal Appeal (NSW)|2006-06-09|Before: McClellan CJ, Johnson J, Latham J, Mr P, Clellan CJ

View original source

At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2006-06-09

Before

McClellan CJ, Johnson J, Latham J, Mr P, Clellan CJ

Source

Original judgment source is linked above.

Judgment (42 paragraphs)

[1]

CITATION: Lovell v R; Dominey v R [2006] NSWCCA 222

[2]

JUDGMENT OF: McClellan CJ at CL at 1; Johnson J at 2; Latham J at 83

[3]

DECISION: 1. With respect to the Applicant, Aaron John Dominey - (a) leave to appeal against sentence is granted and the appeal is allowed ; (b) sentences imposed at the Campbelltown District Court on 4 August 2005 are quashed; (c) with respect to the offence under s.112(2) Crimes Act 1900, the Applicant is sentenced to a non-parole period of two years and three months commencing on 26 July 2004 and expiring on 25 October 2006 with a balance of term of 18 months commencing on 26 October 2006 and expiring on 25 April 2008; (d) with respect to the offence under s.195(a) Crimes Act 1900, the Applicant is sentenced to a fixed term of imprisonment of 18 months commencing on 26 July 2004 2. With respect to the Applicant, Peter David Lovell - (a) leave to appeal against sentence is granted and the appeal is allowed; (b) sentences imposed at the Campbelltown District Court on 4 August 2005 are quashed; (c) with respect to the offence under s.112(2) Crimes Act 1900, the Applicant is sentenced to a non-parole period of one year and nine months commencing on 13 February 2005 and expiring on 12 November 2006 with a balance of term of one year commencing on 13 November 2006 and expiring on 12 November 2007; (d) with respect to the offence under s.195(a) Crimes Act 1900, the Applicant is sentenced to a fixed term of imprisonment of 15 months commencing on 13 February 2005.

[16]

Facts of the Offences 6 The facts of the offences to which each Applicant pleaded guilty were contained in a Statement of Facts admitted without objection in the District Court, amplified by evidence given by each Applicant in the sentencing proceedings. 7 At about 3.30 pm on 28 June 2004, Christopher Northcott went to the home of the Applicant Lovell at Elderslie where he rode his motor bike with both Mr Lovell (then aged 19 years) and the Applicant Dominey (then aged 20 years). They consumed quantities of beer and rum and colas. During the afternoon, an altercation took place between Mr Northcott and both Applicants. The Applicants are stepbrothers. Both Mr Dominey and Mr Lovell alleged that Mr Northcott had been making advances to their 15-year old sister whilst Mr Lovell also alleged that Mr Northcott had been making advances to a former girlfriend. Mr Northcott was asked to leave. He did not do so and an argument occurred during which Mr Lovell and Mr Dominey both assaulted Mr Northcott. Mr Northcott placed his motor cycle on the back of his utility but, before leaving, he caused damage to Mr Lovell's motor vehicle. Mr Dominey stated that his father telephoned and told him that Mr Northcott was damaging the vehicle. 8 Mr Lovell gave evidence in the sentencing proceedings that after the altercation he, Mr Dominey and Mr Northcott were told to leave the property. Mr Lovell said that whilst he was in the car with Mr Dominey and a friend, Jessica Smith, he received a telephone call from his younger brother, Anthony Lovell (then aged 10 or 11 years), telling him that Mr Northcott had smashed up his vehicle. Mr Lovell said that they drove back to the premises and found that Mr Northcott had left and that Mr Lovell's vehicle was smashed. 9 At about 7.30 pm on 28 June 2004, Mr Lovell and Mr Dominey went to the Rosemeadow home of Christine Curnow, who was Mr Northcott's mother. Mr Northcott lived at the same premises. The Applicants travelled to the address in a work vehicle driven by Ms Smith. Both Applicants explained in evidence that they travelled to Mr Northcott's home with a view to damaging property as a form of revenge for Mr Northcott's actions in damaging Mr Lovell's vehicle and making advances to their 15-year old sister earlier in the day. 10 The Applicants gained entry to the premises by forcing the front door which was closed, but not locked (the s.112(2) offence). Mrs Curnow confronted the Applicants and demanded that they leave. Mr Northcott was not present at the time. Mrs Curnow recognised both Applicants whom she knew through her son. Mr Lovell was carrying a red fire extinguisher that was 30 cm in length and 10 cm in width. He had carried the fire extinguisher from Ms Smith's vehicle. Both he and Mr Dominey started causing damage to the victim's property. The fire extinguisher was used to smash various items. Property damaged by the Applicants within the premises included the front door, the television, the stereo equipment and cabinet, a large mirror and the front window. The Applicants told Mrs Curnow that "this is all about your son" and "its got to do with your son". Towards the end of the incident, Mr Dominey raised his hand to the victim. She raised her fist and both Mr Dominey and Mr Lovell left through the front door. As they left, the Applicants smashed the windscreen and rear side windows of Mrs Curnow's vehicle (the s.195(a) offence). The total damage was estimated at $4,000.00. 11 The Applicants were seen by independent witnesses to run and enter Ms Smith's vehicle which was parked nearby. As the Applicants entered the truck, one of them told the independent witnesses not to "dob" them in. The witnesses walked to Mrs Curnow's premises and provided their personal details and a description of the vehicle. The police attended a short time later. 12 On 29 June 2004, Mr Lovell attended Campbelltown Police Station. He was arrested, interviewed and then released pending further enquiries. On 26 July 2004, both Applicants were arrested and Mr Dominey was interviewed on that day. 13 Mr Dominey was refused bail on 26 July 2004 and remained in custody from that day. Mr Lovell was granted bail on 4 August 2004 and spent periods on bail and in custody between that date and 31 May 2005 when he re-entered custody where he remained until sentence.

[17]

Mr Dominey's Subjective Circumstances 14 Mr Dominey was born on 13 September 1983 and was aged 20 years at the time of the offence and 21 years at the time of sentence. 15 His criminal history reveals offences of unlicensed driving in 2001 and driving whilst disqualified in 2002. On 15 April 2004, Mr Dominey was placed on a 12-month good behaviour bond at the Camden Local Court for an offence of malicious damage to property. He was subject to this bond at the time of the present offences. On 9 August 2004, Mr Dominey was sentenced to terms of imprisonment at the Liverpool Local Court for offences of break enter and steal, assault occasioning actual bodily harm, malicious damage to property and common assault. These offences were committed on 19 March 2004 and Mr Dominey was on bail in respect of them at the time of the subject offences. Appeals against these summary convictions were dismissed at the Campbelltown District Court on 28 October 2004. 16 According to a pre-sentence report tendered in the sentencing proceedings, Mr Dominey is the only child to his parents' union, but there are 15 step-siblings. Mr Dominey's mother left the family home when he was a baby and his paternal grandparents became his primary care givers and raised him until he moved out of home. It was observed that, when his grandmother passed away in late 2003, Mr Dominey found it difficult to cope with her death and this exacerbated his excessive consumption of alcohol and cannabis. 17 Mr Dominey was in a defacto relationship for some two years until the end of 2003. There is a daughter from this relationship, aged two years in May 2005. 18 He left school in Year 9 and undertook casual labouring and other work intermingled with periods of unemployment. 19 In a pre-sentence report dated 16 May 2005, Ms Jacinta Gaul reported: "Mr Dominey is a young man with a considerable alcohol and cannabis addiction. Additionally, he expressed concern in relation to his anger issues and his inability to 'control' his behaviour in volatile situations without becoming violent or aggressive. To the offender's credit, he appears to have the support of his family and should he pursue his stated intentions to enter into and complete a residential rehabilitation program, he may be able to initiate some change in his past patterns of behaviour. To initiate this change, the offender would need to genuinely participate in the program and make a serious effort to address his addictions."

[18]

Mr Lovell's Subjective Circumstances 20 Mr Lovell was born on 11 April 1985 and was 19 years old at the time of the offence and 20 years old at the time of sentence. 21 His criminal history reveals that he was fined in March 2004 at Campbelltown Local Court for offences of throwing an object to damage property and unlicensed driving. In July 2004, he was placed on a good behaviour bond for disqualified driving. 22 On 22 August 2005, Mr Lovell was sentenced at Campbelltown Local Court to imprisonment for six months for offences of furious driving and disqualified driving, these offences being committed after the offences which are presently under appeal. 23 According to a pre-sentence report, Mr Lovell is the second born of four children. He grew up in the Campbelltown area where he attended school to Year 10 when he attained his School Certificate. His parents separated in late 2003 and his mother entered a new relationship. The Applicant Dominey is the son of his mother's defacto husband. Following the separation of his parents, Mr Lovell moved to live with his mother and his new merged family. 24 Mr Lovell was in a defacto relationship and, at the time of sentence, his partner was pregnant with the child due in September 2005. His employment status has fluctuated between casual labouring work and periods in receipt of unemployment benefits. 25 Mr Lovell was assessed as suitable for period detention or a community service order. 26 Mr Lovell admitted himself to The Glen Centre, an alcohol and drug rehabilitation centre at Rothbury, on 11 March 2005. According to the pre-sentence report tendered in his sentencing proceedings, Mr Lovell commenced to use alcohol and illegal drugs whilst at school. His supervisors at The Glen Centre were pleased with his commitment to the program and his apparent progress in confronting substance abuse issues. In the pre-sentence report of 19 May 2005, Mr Roderick O'Neill stated: "Mr Lovell co-operated in the preparation of this report. He presents as an intelligent man who chose a lifestyle completely at odds with his parents' values. There may be a reasonable doubt as to the motivation for his current choice of a three month rehabilitation program. On the other hand, the efforts he is making may herald a return to family instilled values. He asserts the sincerity of his intention to eschew future drug use and its concomitant criminality. Given his quick intelligence, it may well be that he knows that there is no positive future for him if he regresses into alcohol or other drug abuse. He also exhibits an intolerance which, if used positively, may strengthen his resolve."

[19]

Some Findings on Sentence in the District Court 27 Before moving to consider the grounds of appeal, it is appropriate to refer to some of the findings made by the learned sentencing Judge. A number of these findings are said to be erroneous. 28 Each Applicant pleaded guilty in the Local Court and was committed for sentence in the District Court. His Honour Judge Maguire QC noted that Mr Dominey's "plea of guilty is taken into account on the sentence" (ROS 7.2) and a similar observation was made with respect to Mr Lovell (ROS 11.10). However, his Honour did not identify the extent of any discount provided to the Applicants for their pleas of guilty, in accordance with the principles in R v Thomson and Houlton (2000) 49 NSWLR 383 at 419 [160]. 29 With respect to the s.112(2) offence, his Honour noted the statutory prescription of a standard non-parole period of five years (ROS 7.4). His Honour did not make any clear finding as to where this offence lay on the range of objective seriousness (s.54A(2) Crimes (Sentencing Procedure) Act 1999). Whilst considering submissions made on Mr Dominey's behalf, his Honour said (ROS 8.2): "Mr Evers [the solicitor for Mr Dominey] has submitted that the degree of criminality involved in the major offence is well below mid range. I do not accept that submission, particularly as the submission involves the suggestion that no weapon was used. Clearly there was a weapon present in the hands of the co-offender. However the plea and the circumstances of its entry do serve to reduce the level somewhat below mid range." 30 His Honour did not make any further finding with respect to the objective seriousness of the offence when considering Mr Lovell's case, although it was noted that this offender had actual possession of the weapon (the fire extinguisher) (ROS 12.2). 31 His Honour noted Mr Dominey's evidence that Mr Northcott had been paying inappropriate attention to his 15-year old sister (ROS 6.5). Apart from this reference, his Honour did not indicate how this feature of the case was taken into account in the imposition of sentence. It appears that his Honour accepted the Applicants' accounts concerning the offences and their motives for attending Mrs Curnow's house and damaging property. Certainly, there was no finding that the evidence of the Applicants ought not be accepted. 32 With respect to Mr Dominey, his Honour noted the report of Ms Katie Seidler, Psychologist, and accepted that the death of the Applicant's grandmother in 2003 had a great effect upon him (ROS 4.8). 33 His Honour accepted Mr Dominey's evidence that he had been a victim of a sexual assault (when aged five years) by an adult male friend of his father (ROS 5.2). 34 The circumstances of aggravation alleged in the s.112(2) offence were that each Applicant was in the company of the other Applicant: s.105A(b) Crimes Act 1900. His Honour found that the s.112(2) offence was aggravated by the threat of violence and the presence of a weapon and, in Mr Dominey's case, that it was aggravated by "his previous record for break and enter and for violence" and by the fact that these offences were committed whilst subject to conditional liberty (ROS 7.5). 35 With respect to Mr Dominey, the sentencing Judge found special circumstances upon the basis that he would benefit from an extended period of supervision (ROS 7.8). With respect to the question of accumulation, his Honour concluded that the two offences were "part of the one chapter of criminality" and that accumulation was inappropriate (ROS 8.3). 36 His Honour accepted that Mr Lovell was "drug free" and regarded him as having "a moderate prospect of remaining so" (ROS 11.9). Special circumstances were found on the basis that Mr Lovell would benefit from an extended period of supervision (ROS 12.1). The sentencing Judge concluded with respect to Mr Lovell: "It is to be recognised that it was this offender who had actual possession of the weapon. On the other hand, his past record is not as adverse as is that of Dominey, nor was he on bail at the time of these offences. I consider that in all the circumstances the sentences that I propose to impose on this offender are consistent with the principle of parity."

[25]

(b) his Honour failed to give proper weight to the Applicant's subjective case. 41 Ms Francis submitted that although his Honour had not identified an express discount for Mr Dominey's pleas of guilty, a discount of at least 20% and, more probably, 25% ought to have been allowed for the utilitarian value of the early pleas. Upon this basis, it was submitted that a starting point of a period in excess of nine years' imprisonment could be identified for the s.112(2) offence and that such a period was manifestly excessive. Whilst the offence was clearly serious, it was readily detectible and had been committed in response to Mr Northcott's improper advances made to the Applicant's 15-year old sister and the damage caused by Mr Northcott himself to Mr Lovell's vehicle. It was submitted that Mr Dominey, somewhat immaturely and impulsively, went to the premises to seek a form of retribution against Mr Northcott. 42 Ms Francis submitted that the manifestly excessive nature of the sentences could be demonstrated by reference to the sentence imposed for the s.195(a) offence. The maximum penalty for that offence is imprisonment for five years. His Honour imposed a total sentence of four years' imprisonment for that offence. Assuming a discount of 25% for the Applicant's plea of guilty, this represents a starting point in excess of the maximum penalty for this offence. Assuming a discount of 20% for the plea of guilty, the starting point would be the maximum penalty of five years' imprisonment. Ms Francis submitted that it could not be contended that the s.195(a) offence was of the worst kind. It was submitted that this pointed to a failure to have regard at all to the Applicant's subjective case which possessed a number of strong features. 43 It was submitted that his Honour had misapplied R v Way (2004) 60 NSWLR 168 in passing sentence for the s.112(2) offence. Although the standard non-parole period remained a relevant factor and a guidepost to be taken into account in passing sentence, it did not have direct application to Mr Dominey's case as he pleaded guilty to the offence. Further, his Honour had regard to the plea of guilty and the circumstances of its entry to reduce the level of objective seriousness "somewhat below mid range" (ROS 8.3). Ms Francis submitted that this finding was clearly erroneous. A plea of guilty does not reduce the objective seriousness of the offence. Further, the strength of the subjective case impacts upon the applicability of the standard non-parole period: R v Way at 191. 44 It was submitted that, in effect, his Honour Judge Maguire QC had determined that the s.112(2) offence was objectively mid-range and that his starting point was a non-parole period of five years which was reduced on account of the plea of guilty, resulting in a non-parole period of four years. This approach did not comply with the principles in R v Way at 191. 45 It was submitted that a number of errors had been demonstrated with respect to Mr Dominey, that a less severe sentence was warranted in law and that this Court should proceed to resentence the Applicant. 46 The Crown acknowledged that the learned sentencing Judge was mistaken in saying that Mr Dominey had served previous terms of imprisonment. It was submitted that his Honour had intended to say that, by the time he stood for sentence in August 2005, he had served terms of imprisonment. 47 The Crown submitted that the sentences, although high, were not such as this Court would intervene. It was submitted that no lesser sentence was warranted in law: s.6(3) Criminal Appeal Act 1912. 48 The Crown submitted that the standard non-parole period was a factor to be taken into account on sentence and that, further, a number of features adverse to Mr Dominey could be identified by reference to the guideline judgement in R v Ponfield (1999) 48 NSWLR 327 and aggravating features under s.21A(2) Crimes (Sentencing Procedure) Act 1999. 49 The Crown submitted that Mr Dominey did not have a strong subjective case and that, in all the circumstances, the sentences imposed upon him were appropriate.

[26]

Submissions Concerning Mr Lovell's Application 50 Ms Francis, for Mr Lovell, repeated a number of submissions made in support of Mr Dominey's application. In particular, to the extent that it was contended that the sentencing Judge had erred in his use of the standard non-parole period, the same errors affected Mr Lovell's sentence for the s.112(2) offence. 51 It was submitted that Mr Lovell had no significant criminal record at the time of the commission of these offences, his prior convictions comprising fines in March 2004 for unlicensed driving and throwing an object to damage property. 52 It was submitted that there were a number of strong subjective factors operating in Mr Lovell's favour including his entry into a residential drug rehabilitation program for several months prior to sentence. 53 Ms Francis submitted that, in arriving at an overall term of five years' imprisonment for the s.112(2) offence after an early plea, the sentencing Judge had paid insufficient weight to the Applicant's case, including his youth, his prospects of rehabilitation, the fact that he had spent three months in full-time residential rehabilitation and the isolated nature of these offences. Whilst the offences were clearly serious, it was submitted that they were readily detectible and that there was considerable provocation particularly in respect of Mr Lovell having seen his motor vehicle damaged. It was submitted that a starting point in excess of six years full-time imprisonment for the s.112(2) offence was manifestly excessive and that a less severe sentence was warranted in law. Ms Francis repeated the submission made concerning the s.195(a) sentence which, like Mr Dominey, involved a total sentence of four years' imprisonment for an offence carrying a maximum penalty of five years. It was submitted that this sentence was manifestly excessive. 54 The Crown submitted that the sentences imposed upon Mr Lovell were not manifestly excessive. It was noted that his Honour Judge Maguire QC had regarded the overall criminality of Mr Lovell as being less than that of Mr Dominey and that this was evidenced by the difference between the sentences imposed upon each offender. In adopting this approach, the Crown submitted that his Honour paid due regard to Mr Lovell's subjective circumstances. 55 The Crown submitted that it had not been demonstrated that some lesser sentence was warranted in law and should have been passed: s.6(3) Criminal Appeal Act 1912.

[27]

Has Error Been Demonstrated by the Applicants? 56 I am satisfied that the Applicants have demonstrated error on the part of the sentencing Judge in his approach to the use of the standard non-parole period in imposition of sentence for the s.112(2) offences. 57 The standard non-parole period must be taken to be intended for an offence in the middle of the range of objective seriousness where the offender was convicted after trial: R v Way at 184 [68]. However, the standard non-parole period remains relevant as a reference point, benchmark, sounding board or guidepost where there is a guilty plea along with other extrinsic aids such as authorities, statistics, guideline judgments and the specified maximum penalty, as are applicable and relevant: R v Way at 192 [122]; R v Davies [2004] NSWCCA 319 at paragraphs 6, 29; R v AJP (2004) 150 A Crim R 575 at 579-580 (paragraph 13); R v Stambolis [2006] NSWCCA 56 at paragraphs 17, 59. 58 In the case of a plea of guilty, it is appropriate for a sentencing judge to consider where the particular offence lies on the range of objective seriousness: R v Porteous [2005] NSWCCA 115 at paragraph 22; R v Tory [2006] NSWCCA 18 at paragraph 14. 59 Assessment of the objective seriousness of the offence involves consideration of the facts which relate directly to its commission, including those which may explain why it was committed, so as to determine whether it answers the description of an offence that falls into the mid-range of seriousness for an offence of the relevant kind: R v Way at 191 [118(i)]. The task to be undertaken by a sentencing judge involves application of the approach summarised helpfully by Simpson J in R v AJP at 580 [13]: "(iii) a sentencing judge will be required, in relation to any given case, to hypothesise what is an abstract offence in the middle of the range of objective seriousness in order to determine where the subject offence lies in relation to such an offence; such an exercise is, in reality, little different from the 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 ( Way at paras [74] - [77]);

[30]

(vi) the numerical frequency with which an offence of a particular kind is committed is not an indicator of the objective seriousness of any individual instance of that offence: ( Way at paras [101] - [102])." 60 In this case, the learned sentencing Judge did not undertake in any meaningful way the task identified in R v Way and R v AJP with respect to standard non-parole period offences where a plea of guilty has been entered. 61 His Honour Judge Maguire QC did not accept a submission that the s.112(2) offence was "well below mid range". However, taking into account the pleas of guilty and the circumstances of the entry of those pleas, his Honour concluded that this reduced the level of objective seriousness "somewhat below mid range" (ROS 8.2). In taking this approach, his Honour fell into clear error. The fact that a plea of guilty was entered, and the timing of that plea, does not bear at all upon the determination of the place occupied by the offence on the range of objective seriousness: R v Rice (2004) 150 A Crim R 37 at 56. His Honour's reasoning suggests that, but for the pleas of guilty and their timing, this offence lay at the middle of the range of objective seriousness. If that was his Honour's conclusion (and I am satisfied that it was), then it is difficult to see how that view could be formed in the circumstances of this case. 62 There were a number of unusual features to this offence. The motivation for the crime arose from the reaction of the Applicants to Mr Northcott's inappropriate approaches to two females, including the Applicants' 15-year old sister. Further, it was reported to Mr Lovell that Mr Northcott had intentionally damaged his vehicle. Against this background, and motivated by a desire for retribution, the Applicants attended the home of Mr Northcott's mother and entered by the front door which was closed, but not locked. The Applicants were both known to Mrs Curnow and were not disguised in any way. She recognised both of them and knew their names. They told her that their presence related to her son. The fact that the Applicants entered the premises in company constituted the circumstance of aggravation for the purpose of s.112(2) Crimes Act 1900. It is true that a type of weapon was used in the form of a fire extinguisher which was wielded to damage property in the premises. The circumstances were clearly terrifying for Mrs Curnow who had done nothing herself to attract the attention of the Applicants. When Mr Dominey raised his hand to Mrs Curnow, she raised her fist towards the Applicants and they departed forthwith through the front door. There was a further act of gratuitous damage to Mrs Curnow's vehicle on the way out which gave rise to the s.195(a) charge. This act was inextricably linked to the s.112(2) offence which had just been committed. All of this suggests that the arrest and charging of the Applicants was virtually inevitable. They had obtained no personal benefit or advantage from these crimes apart from such misguided vindication as may flow from their acts of retribution flowing from Mr Northcott's earlier conduct. 63 The type of conduct which may constitute a s.112(2) offence encompasses a wide range of activities. Examples may be seen in a number of decisions of this Court. There have been cases where s.112(2) offences have involved the breaking and entry by an offender or offenders into premises and the commission of a serious indictable offence of violence against a victim following an incident which has provoked such a response. These s.112(2) offences have involved acts motivated by revenge or retribution or by a desire to teach the victim a lesson or to warn him off. An act of retaliation by an offender against a person who had assaulted the offender's father was characterised as being significantly below the mid-range of objective seriousness in R v Price [2005] NSWCCA 285 at paragraph 23. Where an offender broke and entered premises and then assaulted the victim whom the offender believed had earlier assaulted the offender's daughter, it was accepted that the offence lay at the lower end of the range of objective seriousness: R v Millar [2005] NSWCCA 202 at paragraph 43. Where two offenders broke and entered premises and assaulted persons in the belief that one of the victims had made an improper approach to their 14-year old sister, it was concluded that the conduct was significantly less than the middle of the range of objective seriousness: R v Tory at paragraph 37. 64 There are further examples of s.112(2) offences involving offences of dishonesty. In R v Huynh [2005] NSWCCA 220, this Court upheld a finding that an offence lay towards the middle of the range of gravity of offences of this kind in circumstances where the offender, in company, smashed the door of domestic premises and collected a large amount of personal property, including jewellery, watches and precious stones (paragraphs 26-27). The nature of the circumstances of aggravation defined in s.105A Crimes Act 1900 as applied to the individual case may be relevant to characterisation of the particular offence on the range of objective seriousness: R v Huynh at paragraphs 29-30. In R v Ceissman [2004] NSWCCA 466, a s.112(2) offence committed upon bank premises entered with the use of a sledgehammer and where $171,980.00 was stolen, was characterised as being above the mid-range of objective seriousness (paragraphs 5, 19). In circumstances where a stranger broke and entered residential premises occupied by older persons who were then tied up and with property being stolen from the premises, it was found that the offence lay above the mid-range of objective seriousness for an offence of this type: R v Porteous at paragraph 47. 65 These cases are referred to for illustrative purposes and not for the purpose of defining a range for s.112(2) offences. They do, however, throw light on factors which may bear upon an assessment of objective seriousness in the particular circumstances of s.112(2) offences.

[31]

66 The Applicants' pleas of guilty and their timing were clearly relevant to the determination of sentences to be imposed for the offences. However, those factors were entirely extraneous to the issue of the level of objective seriousness of the s.112(2) offence. 67 In my view, having regard to the factors which were relevant to the determination of the objective seriousness of the offence, the s.112(2) offences lay below the middle of the range of objective seriousness. The factors bearing upon this assessment are those referred to in paragraph 62 above. The offence was clearly a frightening experience for Mrs Curnow. Property was damaged in her presence. However, the Applicants made clear that the damaging of property was, in some way, referable to Mrs Curnow's son. Insofar as their conduct may have constituted a form of direct threat to Mrs Curnow, the Applicants withdrew immediately when Mrs Curnow stood up to them. 68 The motivation of the Applicants is relevant to the evaluation of the objective seriousness of the offence. They were not motivated by personal gain in the sense of acquiring property or benefit: R v Tory at paragraph 22. There was an element of provocation which serves to explain (but not excuse) the offence: R v Millar at paragraph 40. On the evidence before the District Court, which was apparently accepted by the sentencing Judge, the Applicants were motivated to commit the offence as a form of retribution for Mr Northcott's earlier conduct towards the Applicants' sister and his damaging of Mr Lovell's vehicle. On the evidence, the Applicants were affected by alcohol at the time of the offence. As mentioned earlier, there was no attempt at disguise and they were known to Mrs Curnow. 69 It is true that the use of the fire extinguisher as a type of offensive weapon is an aggravating feature of the case. That said, the item was used to damage property and there is no suggestion that it was used to threaten Mrs Curnow, although her observation of its destructive use was undoubtedly frightening. It was Mr Lovell who wielded the fire extinguisher as a destructive implement during the commission of the s.112(2) offence. This was a significant feature in assessing the objective seriousness of the offence. 70 The element of deterrence, both specific and general, is a significant factor on sentence for these offences. The resort to criminal conduct as a response to some provocative or upsetting incident is to be severely discouraged. As Adams J observed in R v Elmir [2003] NSWCCA 192 at paragraph 20, it is not correct to characterise such conduct as the offender taking "the law into his own hands" - such conduct is criminal. 71 Mr Dominey was subject to conditional liberty at the time of the offence and this constitutes an aggravating factor in his case: s.21A(2)(j) Crimes (Sentencing Procedure) Act 1999. However, there were significant subjective features operating in Mr Dominey's favour including (as the sentencing Judge accepted) the devastating effect upon him of the death of his grandmother in late 2003, an event which appears to have contributed significantly to his criminal conduct. 72 The Applicants have demonstrated specific error on the part of the sentencing Judge in his approach to the determination of the objective seriousness of the s.112(2) offence. Consideration of factors relevant to the assessment of objective seriousness of the s.112(2) offence leads to the conclusion that the offence lay below the middle of the range of objective seriousness for offences of that kind. When allowance is made for the discount for the utilitarian value of the pleas of guilty together with subjective factors which assisted the Applicants in different respects, it is apparent that the sentences imposed upon the Applicants for the s.112(2) offences were manifestly excessive. 73 Further, specific error has been established with respect to his Honour's finding that Mr Dominey had served prior terms of imprisonment. Insofar as the sentencing Judge concluded that Mr Dominey's offence was "aggravated by his previous record for break and enter and for violence by reason of the fact that this offence was committed while the offender was on bail" (ROS 7.6), his Honour appears to have elided ss.21A(2)(d) and (j) Crimes (Sentencing Procedure) Act 1999. It was correct that Mr Dominey had committed the subject offences whilst on bail and whilst subject to a good behaviour bond and thus s.21A(2)(j) applied. However, it is difficult to see that s.21A(2)(d) (which refers to a "record of previous convictions") can operate when Mr Dominey was not convicted of the relevant offences until August 2004, after the commission of the present offences. However, this matter was not the subject of argument before this Court and it is not necessary to consider it further given that I am satisfied that it is appropriate to resentence Mr Dominey in this Court. 74 I am also satisfied that the terms of imprisonment imposed for the s.195(a) offence were manifestly excessive. When some allowance is made for the Applicants' pleas of guilty and their subjective factors, it is apparent that the sentencing Judge took as a starting point a term at or exceeding the maximum penalty of imprisonment for five years for this offence. The statutory maximum penalty is reserved for the worst type of case falling within the provision: Ibbs v The Queen (1987) 163 CLR 447 at 452; Veen v The Queen (No. 2) (1987-1988) 164 CLR 465 at 478; R v Way at 182 [51]. The objective circumstances of the s.195A offence, although serious, are far removed from the worst type of case for this offence. 75 Although sentences of full-time imprisonment were appropriate for the offences, the terms imposed lay outside the range of appropriate sentence applicable to the offence and the offender.

[32]

Resentencing the Applicants 76 I am satisfied that, in each case, a less severe sentence is warranted in law and should have been passed: s.6(3) Criminal Appeal Act 1912. Affidavits of each Applicant affirmed on 5 June 2006 were received by the Court, in the event that the Court determined to resentence the Applicants. Documents annexed to Mr Dominey's affidavit confirm that he has participated in drug and alcohol programs whilst in custody and has received favourable work reports for prison employment. Documents annexed to Mr Lovell's affidavit point to educational opportunities which he has sought to undertake in custody. He states that his defacto partner and their infant son visit him regularly in custody and that he is motivated to lead a lawful family life upon his release. 77 I have set out earlier my conclusions with respect to the objective seriousness of the offences. I have also concluded that discounts in the order of 25% ought be allowed for the pleas of guilty applying the principles in R v Thomson and Houlton. His Honour Judge Maguire QC found special circumstances for the purpose of s.44(2) Crimes (Sentencing Procedure) Act 1999. Such a finding is appropriate in this case having regard to the age of the offenders and the desirability of an extended period of supervision in the community. Having regard to the fact that the two offences formed part of closely associated acts of criminality, his Honour's decision that the sentences be served concurrently ought not be disturbed: Pearce v The Queen (1998) 194 CLR 610 at 624. 78 The fact that Mr Dominey committed the offences whilst subject to a good behaviour bond and whilst on bail is a significant aggravating factor in his case. It is necessary, however, to view his criminality against the background of substantial disturbance arising from his grandmother's death as acknowledged in the reports before the District Court and as accepted by the learned sentencing Judge. Taking into account all relevant objective and subjective factors including factors applicable under s.21A Crimes (Sentencing Procedure) Act 1999, I propose that Mr Dominey be sentenced for the s.112(2) offence to a non-parole period of two years and three months commencing on 26 July 2004 and expiring on 25 October 2006 with a balance of term of 18 months commencing on 26 October 2006 and expiring on 26 April 2008. For the s.195(a) offence, I propose that Mr Dominey be sentenced to a fixed term of imprisonment for 18 months commencing on 26 July 2004. 79 I propose that Mr Lovell be sentenced, for the s.112(2) offence, to a non-parole period of one year and nine months commencing on 13 February 2005 and expiring on 12 November 2006 with a balance of term of one year commencing on 13 November 2006 and expiring on 12 November 2007. I propose a sentence for Mr Lovell for the s.195(a) offence of a fixed term of 15 months' imprisonment to date from 13 February 2005. 80 In determining appropriate sentences for Mr Lovell, I have had regard to his limited prior criminal history and other factors favouring his rehabilitation. I have had regard to the parity principle in fixing sentence. There are factors referable to the objective circumstances of the offences and the subjective circumstances of the offenders which serve to explain the differences in the sentences imposed. In fixing sentence for Mr Lovell, I have also taken into account the fact that he was sentenced on 22 August 2005 to terms of imprisonment for unrelated driving offences and that those sentences had been served by him concurrently with the sentences which are presently under appeal.