I accept that [the applicant] received some lacerations and I accept that he received some 20 stitches in relation to that. I do not accept that this was a serious injury or could constitute a serious loss or detriment. I note that his evidence in relation to causing him current headaches and requiring the prescription of an anti-inflammatory I have found to be most unconvincing. In those circumstances, I do not propose to accept that I should take into account in sentencing him that concept of extra curial punishment. [The applicant] received injury from the victim the offence that he brought on himself by committing the offence in violating the victim's home and, as I said, I do not accept that it is a serious or significant nature.
34 It was submitted that the applicant "was entitled to have regard paid to [extra-curial punishment] (given that he clearly suffered significant injuries which required surgery and bled very heavily from the wounds at the scene)". I do not accept that submission. The applicant had no such entitlement and it was a matter for the judge to determine the weight to be given, if any, to the injuries the applicant suffered. On the material before the Judge they were relatively minor and the actions taken by the victim could not in any way be said to be disproportionate to the threat posed by the applicant to the victim's property or his person. In any event, I would have come to the same conclusion as his Honour. Material placed before this Court does not indicate that his Honour misunderstood the nature of the injury.
35 It is submitted that if this Court found error, some other lesser sentence was warranted. Referring to statistical information held by the Judicial Commission the applicant notes that the sentence "fell within the top 21 per cent of all sentences imposed". As I have noted on other occasions, the statistics reveal that the maximum penalty seems to have little or no influence on the sentences being imposed. As against a maximum penalty of 14 years no sentence of more than 6 years has been imposed and of 60 cases only 5 exceed 4 years. Almost 75 per cent of the cases received sentences of 3 years or less.
36 But in any event the applicant was being sentenced for two offences with the matters on the Form 1 being taken into account. The Judge imposed concurrent sentences for the offence of aggravated entering with intent to steal and the demand property with menaces. He stated that he was adopting this course because he had taken into account, as matters of aggravation for the entering offence, the facts of the demand property offence. With respect that was an erroneous approach.
37 The applicant was charged with two offences to comprehend the whole of the criminality arising from one criminal activity. The Judge could not take into account the demand at knifepoint on the enter offence because the latter offence only involved an intention to steal. It was an aggravating factor of the s 111(2) offence that the applicant was armed but the s 99(1) offence involved the use of the knife to threaten the victim while demanding property. That was not conduct encompassed by the s 111(2) offence. Had the s 99(1) offence not been charged, the Judge would not have been entitled to take into account the use of the knife to demand property because that would be taking into account a different offence than that charged and would have breached the De Simoni principle.
38 The criminality arising from the entering offence could not comprehend the criminality arising from the demand property offence. This Court has repeatedly and consistently stressed that concurrent sentences are not justified simply because two offences arise from the same act of criminality: Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 applied most recently in Mack v R [2009] NSWCCA 216.
39 The Judge's discretion miscarried principally by failing to impose cumulative sentences for the two offences. Further a sentence of two years for the s 99(1) offence was arguably inadequate having regard to the fact that a knife was used against a householder in his own home. In any event even for an offence under s 111(2) the sentence was very lenient having regard to the number of aggravating features that were present. They included the fact that the applicant armed himself, used corporal violence, and inflicted actual bodily harm as well as the charged aggravation of knowing a person to be in the house. Further, the applicant was on bail, with a criminal record that did not assist him and he had matters on a Form 1 to be considered. The starting sentence before discount was 6 years, a sentence less than half of the maximum penalty.
40 I doubt that the overall sentence imposed sufficiently reflected the applicant's criminality. The courts should impose salutary sentences upon persons who not only unlawfully enter into homes, knowing that persons are present, but also have the audacity to threaten or attack the householder who merely seeks to protect his or her property or person. I also doubt that the present sentence appropriately denounces that conduct or offers sufficient deterrence to protect members of the community. This applicant defied the householder by continuing to look for items to steal, first by making verbal threats and then by threatening him with a knife. Even after he was wounded, he lunged at the victim with the knife and then struggled with him biting the victim's fingers.
41 I propose the Court order that the application for leave is granted but the appeal dismissed.
42 HISLOP J: I agree with Howie J.
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