His Honour stated that there was a possibility of rehabilitation a factor that his Honour appears to have overlooked when imposing sentence.
26 Grounds 1 and 3 may be conveniently dealt with together. The applicant, who represented himself before this Court, contends that the total [effective] sentence is manifestly excessive and out of proportion to comparative sentences. He provided the Court with a list of comparative sentences for the offence of break enter and steal and submits that offenders with similar facts, lengthy criminal antecedents and drug addiction have received an average sentence of 3 - 4 years "mid range". The applicant argues that these comparative sentences were committed on dwelling houses whereas charge 11 involved the entering of an unlocked "disused railway" carriage which was used as a storage shed.
27 The Crown submits that the sentencing Judge dealt leniently with the applicant. The Crown points to the aggravating factors identified by his Honour under s 21A of the Crimes (Sentencing Procedure) Act (the Crimes (SP) Act) and the relatively minor sentences imposed when compared with the available statutory maximums. The Crown submits that the reason for the imposition of these relatively minor sentences and the significant degree of concurrency of sentences lies in his Honour's determination that the principle of totality would not operate to destroy the utilitarian discount for the pleas of guilty by the extent of the accumulation. The Crown further contends that the sentencing Judge could have structured the sentences differently and had he done so a more lengthy sentence could have been imposed.
28 His Honour was faced with a difficult sentencing task, which involved eight counts as well as four matters on a Form 1. As the sentencing Judge was sentencing the applicant for a number of offences, he was obliged to fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well as questions of totality: Pearce v The Queen (1998) 194 CLR 610. From his Honour's remarks and the structure of the sentences imposed, it is evident that the sentencing Judge carefully considered the principle of totality. His Honour remarked (ROS at 10):
"The way I have decided to structure the sentences means that the total non-parole period will be seven years and the parole period three years. I have considered the matter of accumulation which was dealt with at considerable length in the Crown's written submissions. There are eight substantive charges and one of them has four charges to be taken into account on a Form 1. If I were to totally accumulate sequential sentences then the principle of totality would require such a diminution of sentence on each charge as to make the individual sentences inappropriate."
And;
"…..As there will be partial accumulation it is inexpedient to impose non-parole and parole periods for charges 1, 2 and 7. I will fix a non-parole period on charge 11. I propose to impose fixed terms on charges 8, 9 and 10 to be concurrent with the sentence on charge 7 and a fixed term on charge 12 to be concurrent with the non-parole period on charge number 11. The reason for making those charges concurrent with others is that I cannot effectively incorporate accumulation that is compatible with the principle of totality and those charges are much less serious than the others."
29 The course adopted by the sentencing Judge was consistent with the principles stated in Pearce provided that an appropriate sentence had been fixed for each offence. The structure of the sentences and the collective discount allowed for the utilitarian value of the pleas of guilty suggest, however, that his Honour's primary focus was on the total effective sentence to be imposed.
30 The most lengthy sentence imposed by the sentencing Judge was for charge 11 which as a result of total accumulation commences on 17 November 2008. The applicant's criminality for that offence involved the breaking into of what was described as a "rusted train carriage" which was used as a storage container on a property at Cattai. Although one of the container doors was unlocked, as the applicant contends, a bolt cutter was used to cut through steel mesh and power tools valued at $4,500.00 were stolen. An aggravating factor to be taken into account on sentence for the offence was that it was committed whilst the applicant was on bail. The commission of an offence whilst on conditional liberty has long been recognised as a factor of aggravation requiring the passing of deterrent sentences for those who abuse their freedom on bail: see for example Regina v Fernando [2002] NSWCCA 28 at [40-42] and R v Ponfield (1999) 48 NSWLR 327 at [48]. After making allowance for a discount of 15 per cent for the utilitarian benefit of the plea of guilty, the applicant was sentenced to a term of imprisonment of six years for the offence. A non-parole period of 3 years was fixed. The undiscounted starting point of the sentence must have been 7 years and 22 days.
31 Notwithstanding the seriousness of the offence, the applicant's offending behaviour for which he was sentenced for count 1, it seems to me, was of a more serious kind. The applicant's criminality in the commission of the offence being count 1 involved his breaking into the Pollicina's house and stealing items of property including firearms and jewellery with a value of over $50,000.00.
32 The sentencing for the offence of receiving being count 2 included the taking into account of four matters on the Form 1. Each of these matters were acts of dishonesty. The motor vehicle [offence 4 Form 1] in which the applicant allowed himself to be conveyed was a Mercedes Benz convertible valued at over $150,000.00 which had been stolen from the Pollicina's garage. His Honour was entitled to take into account the offences on the Form 1 so as to impose a longer sentence for the receiving than would otherwise have been imposed had it been the only offence: see Des Rosiers v R [2006] NSWCCA 16, Regina v Stankovic [2006] NSWCCA 229.
33 The applicant was sentenced to fixed terms of 2 years imprisonment for counts 1 and 2 which were partially accumulated. The approach adopted by his Honour to the totality of the sentences imposed did not involve the lowering of the individual sentences for counts 1 and 2 before aggregation: see Johnson v The Queen (2004) 78 ALJR 616. His Honour determined that it was inexpedient to impose non-parole and parole periods for those counts.
34 When considering the applicant's pleas of guilty, his Honour remarked (ROS at 8):
"The mitigating factors are firstly, that he has pleaded guilty to all of the offences, these were not at the first opportunity but followed negotiations. I do not detect any significant remorse for his crimes but the pleas of guilty have utilitarian value. I allow a discount of fifteen per cent for the pleas of guilty."
35 It is true that the pleas of guilty to counts 1 and 2 were entered following negotiations after the applicant's arraignment in the District Court but this was not so in the case of charges 7 to 12. Pleas of guilty to those charges had been entered in the Local Court and the applicant was entitled to have the utilitarian value of the pleas assessed on that basis. Whilst it is established that no course taken by a person offering a plea of guilty creates an entitlement to any particular discount, or to a discount at the maximum of the range of 10-25 per cent (see R v Wilson [2005] NSWCCA 112 [at 27]), the mistake by the sentencing Judge denied the applicant the possibility of the assessment of the utilitarian value of the pleas entered in the Local Court being in the range of 20-25 per cent. These pleas of guilty had significant utilitarian value avoiding the need for a committal hearing and a trial. With respect, the sentencing Judge in my opinion erred in overlooking this consideration by applying the same utilitarian discount for all the offences. There is no criticism of his Honour's assessment of a discount of 15 per cent for counts 1 and 2.