1 GILES JA: On 12 September 2005 the applicant and a co-offender, Mr Timothy Nicholls, each pleaded guilty to a count in a joint indictment of break, enter and steal in circumstances of special aggravation (Crimes Act s 112(3)). The pleas were entered on the morning of the scheduled trial. The offence carried a maximum penalty of 25 years imprisonment.
2 On 18 November 2005 Tupman DCJ sentenced the applicant to imprisonment for 6 years and 10 months commencing on 16 June 2004, with a non-parole period of 4 years and 4 months. Her Honour also called the applicant up on bonds from the Waverley Local Court entered into on 28 May 2004 in relation to a number of offences, revoked the bonds and imposed a sentence of imprisonment of 6 months commencing on 16 June 2004. Her Honour sentenced Mr Nicholls to imprisonment for 7 years and 9 months commencing on 16 June 2004 with a non-parole period of 5 years. In doing so she took into account two offences on a Form 1 concerning use of a police badge to impersonate a police officer on the day preceding the commission of the break, enter and steal offence.
3 The applicant has applied for leave to appeal against sentence. One of the grounds of appeal was not pressed, and the grounds of appeal for consideration were, in summary -
· firstly, that the applicant was substantially less culpable than his co-offender and the sentence did not reflect his lesser culpability;
· secondly, that insufficient weight was given by the sentencing judge to the subjective factor in the applicant's favour that at the time of the offence his judgment was clouded by long use of illegal drugs and the effect of illegal drugs used at the time; and
· thirdly, and related to the second matter, that the non-parole period should have been substantially less in aid of rehabilitation through lengthy supervision on parole.
4 The circumstances of the offence were as follows.
5 At about 6 pm on 16 June 2004 both offenders went to a home unit at Bondi. The occupants of the home unit, Mr Barrett and Mr Osei-Tutu, were at home, and the offenders expected that they would be at home. One of the offenders knocked on the door of the unit. Mr Osei-Tutu observed through a peephole Mr Nicholls produce a pistol, in fact a replica pistol, from his jacket. One or both of the offenders started kicking the door and yelling.
6 Mr Osei-Tutu left the unit over the balcony and ran to a nearby police station. Before Mr Barrett could do the same the offenders broke down the door, entered the unit and ran towards him. Mr Nicholls was holding the pistol. He pointed it at Mr Barrett's head and said, "Freeze, don't you fucking move". At the same time the applicant went from room to room in the unit, yelling out "Clear" as he finished in each room. The judge found this was intended to give, and did give, the impression that the applicant was searching for people in the rooms in the manner seen in police dramas on television.
7 Mr Nicholls punched Mr Barrett in the face and hit him over the head with the pistol, and demanded to know where the money and the drugs were. He yelled at Mr Barrett, telling him not to lie and saying they were from the Drug Squad and knew he had drugs; he said, "I've got a Glock to your head. I will fucking put a bullet to your head".
8 The applicant was in another room or rooms of the unit over this time, but when Mr Nicholls forced Mr Barrett into his bedroom at gunpoint the applicant followed them, and appropriated from Mr Barrett money which Mr Barrett took from a shirt pocket and demanded to see identification in Mr Barrett's wallet. The applicant pulled out a black pouch and flashed what appeared to be a police badge and said, "Do you know who we are? We are the fucking Drug Squad. We can do this the easy way or the hard way". Mr Barrett was told to lie on the floor of his bedroom, and when he did so the applicant kicked him in the head. The applicant yelled out, "Make it easy on yourself". It is plain this was an extremely traumatic experience for Mr Barrett.
9 The offenders ransacked the loungeroom and then returned to Mr Barrett in the bedroom, where Mr Nicholls pointed the gun at him and demanded to know who else lived in the unit. They forced Mr Barrett at gunpoint into Mr Osei-Tutu's bedroom, and demanded that he tell them where money or drugs were kept by Mr Osei-Tutu. The applicant went through Mr Osei-Tutu's clothes while Mr Nicholls kept a pistol trained at Mr Barrett's head.
10 The police had been alerted by Mr Osei-Tutu, and arrived at the unit. The offenders left, and were ultimately apprehended elsewhere in the unit building. The applicant was found to have in his possession a mobile phone and other items belonging to Mr Osei-Tutu. Mr Nicholls was found to have cash on him, presumably the cash which had been appropriated by the applicant, as well as Mr Barrett's credit card and driver's licence. The replica pistol was found hidden on the landing in the unit building.
11 Mr Barrett suffered a depressed skull fracture from being hit with the pistol, although fortunately with no long term effects. There were psychological consequences with anxiety, nightmares, sleeping difficulties and an effect on his ability to work.
12 For the grounds of appeal in relation to culpability to the effect summarised earlier the applicant relied in particular on the judge's observation that "he did not expect that the events would become violent in the way they did". He submitted this was a reference to Mr Barrett being struck on the head with the replica pistol.
13 Elaborating from this base, the applicant submitted that for a number of reasons it could be seen that Mr Nicholls had had the primary role in what was in effect a home invasion. It was pointed out it appeared Mr Nicholls had ended up in possession of the money taken by the applicant from Mr Barrett, and had ended up with Mr Barrett's credit card and driver's licence. From the offence of the preceding day involving possession of police identification, it was suggested that the apparent police badge flashed by the applicant had been provided to the applicant by Mr Nicholls. There was some reference to the evidence concerning the applicant's knowledge that Mr Nicholls was in possession of the pistol, but in the end I think it was accepted that the evidence showed that he was aware. Nonetheless it was submitted that Mr Nicholls was the prime mover in the commission of the offence, and that, in conjunction with the judge's observation that the applicant did not expect that the events would become violent in the way they did, there was a significant difference in the applicant's culpability in comparison with that of Mr Nicholls.
14 It is not entirely clear to me whether the submission appealed to disparity between the sentences imposed on the applicant and Mr Nicholls or was directed to over-assessment of the applicant's culpability in the abstract, but on either basis I do not think there is any substance in the grounds.
15 The judge's observation must be understood in context. The judge rejected the applicant's evidence that he had been drinking heavily, was adversely affected by alcohol and went along with Mr Nicholls without knowing what was planned but expecting to obtain drugs at the premises. This involved rejection of a case that the applicant had not beforehand planned with Mr Nicholls to carry out the offence, and her Honour clearly was of the view, and was entitled to be of the view, that the offence had been previously planned with Mr Nicholls.
16 Her Honour then said in her Remarks on Sentence (p10):
"Almost immediately after the two prisoners forced their way into the premises, each of them behaved in a way to give the impression to Mr Barrett that they were undercover police officers. Mr Milane went from room to room shouting out 'Clear' and behaved in a way, it seems to me, which is consistent with a prearranged plan between the two of them to impersonate police officers in order to turn over those who they thought were drug dealers.
I do accept, however, that Mr Milane did not expect that the events would become violent in the way they did. However, he himself acted in a violent manner towards Mr Barrett by kicking him and that was in circumstances where he must have known Mr Barrett had already been the subject of violence at the hands of Mr Nicholls because he had suffered a gash to his forehead in being pistol whipped.