R v BB

COMMENCEMENT DATE

1. The offender was arrested on 26 January 2017 and has been in custody since that date. The commencement date for sentence should be from 26 January 2017.

ANALYSIS OF THE OFFENCE

1. The offence can be divided into three parts:

• Firstly, the offender entered the home of the victim and at the time he entered it was his intention to steal (larceny).
• Secondly, that at the time he entered the home of the victim he did so in circumstances of aggravation, namely that he knew that there was a person in the place where the offence is to be committed: s 105A(1)(f) Crimes Act 1900.
• Thirdly, after entry into the victim's home he intentionally inflicted grievous bodily harm to Anita Christagna. This is a circumstance of special aggravation.

1. The commission of the offence in circumstances of special aggravation increases the maximum penalty from 10 years imprisonment to 20 years imprisonment.
2. When assessing aggravating factors pursuant to s 21A(2) of the Crimes (Sentence Procedure) Act one must be careful not to double count. For example, s 21A(2)(eb) - offence committed in the home of the victim - is a factor of the offence and not a separate aggravating factor.

VICTIM IMPACT STATEMENT

1. There is a need for the court to take account of the impact of the offence on victims and to play a formal role in sentencing proceedings. One of the purposes of sentencing is to recognise the harm done to the victim of the crime and community: s 3A(g) Crimes (Sentencing Procedure) Act.
2. The proceedings were commenced prior to 27 May 2019. S 28(4) of the Crimes (Sentencing Procedure) Act is relevant and provides: "A victim impact statement given by a family victim may, on the application of the prosecutor and if the court considers it appropriate to do so, be considered and taken into account by a court in connection with the determination of the punishment for the offence on the basis that the harmful impact of the primary victim's death on the members of the primary victim's immediate family is an aspect of harm done to the community." Mr Christagna, the son of Anita Christagna read a powerful impact statement to the court. S 26(f) of the Act permits a child of the victim where death has occurred, as it has in this case, to deliver a victim impact statement.
3. It is my usual practice to read the victim impact statement onto the record. I do not do so in this case because I could not do justice to the very powerful way it was delivered by Mr Christagna. I have however, annexed to these reasons for judgment, a copy of the victim impact statement for others to read.
4. In summary, the victim impact statement informed me that Mrs Christagna had resided at XXXXX, Toongabie since 1983. She was well known and respected. She was community minded and volunteered to help her community. She was an independent woman who loved her dancing and took great pride in her appearance. This was to change as a result of the actions of the offender. She sustained horrific facial injuries resulting in surgery and time in intensive care. There were concerns that she may not survive. Her recovery was slow. She lost her independence. She stayed with Mr Christagna's mother-in-law for some time before returning back to her home. She became reclusive and distant from her son (not of his making but of hers). She lost her sense of pride in her appearance. Her son found her on 15 May 2017 (mother's day). Her body was cold and drawing her last breaths of air. Mr Christagna says "she passed away never knowing why this happened to her and frankly I feel the same."
5. I appreciate the impact that his offence has had on Mr Christagna and his family and I have taken his words into account. I hope this proceeding does in some way bring some sense of resolution to you and your family. I hope the family understand that the sentence I impose cannot restore them to the times before. It is impossible to do so.

THE PLEA OF GUILTY

1. On 14 May 2018 the offender was committed for trial from the Penrith Local Court after a s 91 hearing. The matter was first listed for arraignment on 8 June 2018. It was a Crown application to adjourn to 27 July 2018 to consider ex officio charges and the need to obtain reports. The DPP were considering whether to charge the offender with murder and sought reports to consider causation.
2. On 27 July 2018 the proceedings were adjourned again at the request of the Crown for further consideration of ex officio charges and the need for reports. The matter was adjourned to 21 September 2018.
3. The offender was arraigned at the Penrith District Court on 21 September 2018. He entered pleas of not guilty to two charges, namely one count contrary to s 112(3) (specially aggravated break enter and commit serious indictable offence) and one alternative count contrary to s 33(1)(a) (cause grievous bodily harm with intent to cause grievous bodily harm). A trial date of 27 May 2019 was set.
4. A plea offer was made on behalf of the offender by letter dated 8 April 2019. No prior plea offer had been made on behalf of the offender. A plea of guilty was entered to a new indictment on 24 May 2019 at the Penrith District Court containing two counts, both sanctioned ex officio, count 1 being a charge contrary to s 111(3) of specially aggravated enter with intent to cause serious indictable offence and count 2 being a charge contrary to s 117 of larceny. Count 2 has been placed on a Form 1 and is to be taken into account on sentence.
5. The guilty plea and the timing of the plea are to be taken into account on sentence pursuant to s 21A(3)(k) and s 22 of the Crimes (Sentencing Procedure) Act.

Crown submissions

1. The Crown submitted that the plea was entered shortly before the trial was due to commence. It submitted the range for discount for plea of guilty entered after arraignment would be 10% (plea on first day of trial) - 15% (plea on arraignment) and that the discount for plea should fall at the lower end of that range. The Crown relied upon R v Borkowski (2009) 195 A Crim R 1 at [31]-[32] and Zhao v R [2016] NSWCCA 179 at [66].

The Offender's submissions

1. Mr Quilter, appearing for the offender, submitted that the trial would have had difficulty proceeding on 27 May 2019 because the Crown Prosecutor was appearing in another unfinished trial. He submitted that the plea had significant utilitarian value and that the plea was effectively entered at the first reasonable opportunity following its offer. In R v Thomson; R v Houlten (2000) 49 NSWLR 383 at [152]-[153], Spigelman CJ (Forster AJA, Grove and James JJ agreeing) said the utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 per cent discount on sentence and that the determination of where, within such a range, the discount should fall in a particular case is a matter for the discretion of the sentencing judge. It was submitted that the plea should result in a discount towards the higher end of the range identified.

Crown Further Submissions

1. I invited the parties to consider what I had written in R v Lambell [2019] NSWDC 78 at [4]-[8]. On 17 September 2019 I received extensive, thorough and helpful submissions from Ms Sloane, Crown Prosecutor in response to what I had said in Lambell. She submitted that "the Crown submits that the plea was not entered at the first reasonable opportunity. However, if the Court does find that the plea of guilty was entered at the first reasonable opportunity, there is still no entitlement to a 25% discount for early plea."

Consideration

1. In the course of oral submissions on 20 September 2019 Ms Sloan accepted the following propositions: 1. After a negotiated settlement the Court has discretion to find that the plea was entered at the first reasonable opportunity. 2. If the Court forms the view that the plea was entered at the first reasonable opportunity, the court has discretion up to 25% discount for the early plea. 3. The imposition of a 25% discount for plea that was entered at the first reasonable opportunity is available and a judge would not fall into error if such a discount was afforded.
2. The Crown, in the further submissions, relied up Zhao v R [2016] NSWCCA 179 where it was held at [66] that a discount of 10% was usual for a late plea on the first day of the trial. At [56] N Adams J said, "There is no entitlement to a specific discount for a plea of guilty, although the utilitarian value of a plea should generally be reflected by a 10-25% discount on sentence."
3. Her Honour was referring to discretion. She went on to say, "The primary consideration in determining the utilitarian value of the plea, and therefore the appropriate discount, is the timing of the plea."
4. The assessment of the timing of the plea is discretionary. This is consistent with what was said by Her Honour at the start of [66] where she said, "Any reduction in sentence made in recognition of the utilitarian value of the plea of guilty is a matter for the discretion of the sentencing judge."
5. Her Honour was highlighting the nature of the discretion. What Her Honour said, "usually a discount of 10% is allowed for a 'late plea' on the first day of the trial" was obiter and not the ratio of the case. The facts in Zhao were very different to the facts in this case. In that case there was no change to the indictment and the plea was entered two years after the charge date and at a time her trial was listed to commence. The Crown conceded in oral argument that the facts of this case are very different to Zhao: T8 line 3-6.
6. The Crown referred to and relied upon R v Stambolis [2006] NSWCCA 56, Howie J at [11], "Frankly I do not understand how on the established principles it could be determined that the pleas of guilty for the offences for which the respondent was sentenced were early pleas and that they justified a discount of 25 %. There is no utility in a plea of guilty that has not been forthcoming. If the offender is not prepared to plead guilty until the Crown takes some course, then so be it. But if by withholding the plea the offender achieved a result he wanted, I do not understand why he should receive further favourable treatment on the basis that the plea of guilty had utilitarian value when it did not. Rarely, if ever, will the reason why the offender has withheld the plea of guilty be a relevant matter in determining the utilitarian discount. Where it has been used as a bargaining tool in order to achieve a favourable outcome from the Crown in respect of some other charge, I do not understand that this circumstance can excuse the delay or provides a basis for asserting that the plea was made at the first reasonable opportunity."
7. Although His Honour used the expression on "established principles" he cited no authority. Giles JA agreed with Hoeben J (as he then was) and not Howie J.
8. It should be noted that this judgment was three years before what Howie J said in Borkowski. It would appear it was the genesis for part of His Honour's reasoning in Borkowski.
9. At [2] his Honour said, "I simply wish to comment on four other matters arising from the sentencing remarks of Judge Geraghty that were not the subject of grounds of appeal by the Crown and, therefore, were not considered in determining the Crown appeal. They do, however, reveal significant errors in the exercise of discretion otherwise than are relied upon by the Crown and upon which the appeal was determined. The comments may provide guidance for other judges."
10. The helpful comments of His Honour were obiter and not the ratio of the case. The Crown conceded so on this sentence: T 9 lines 12-15.
11. At [8] his Honour said, "The judge imposed the sentences on the basis that the plea of guilty was made at the first reasonable opportunity and gave the applicant the benefit of a discount of 25%, although his Honour found that they were 'a little late (understandably'). The Crown did not oppose this finding and on the hearing of the appeal the Crown conceded that it could not assert otherwise in this Court. However, on the available material it appears that the finding of the judge was erroneous as a matter of principle. I should point out that full argument was not heard on this issue because the Crown did not rely upon this matter as a ground of appeal and counsel for the respondent was obviously not given the opportunity to argue it. However, it is a good example of a common misconception about the discount of a plea of guilty although the principles are well established they are often overlooked."
12. What was said by Howie J was obiter, not subject to full argument in relation to what constitutes 'first reasonable opportunity' and counsel for the respondent was not given the opportunity to argue the point. Therefore, there must be some circumspection about relying upon this decision. However, at [13] after his Honour referred to R v Dib [2003] NSWCCA 117, he said, "…and numerous other cases holding that there is no entitlement to any particular discount, even if a plea of guilty is at the first reasonable opportunity."
13. What his Honour meant by using the words "there is no entitlement to any particular discount even if the plea is at the first reasonable opportunity" was that it was a discretionary matter for a sentencing judge.
14. In Dib Hodgson JA (with whom Barr J agreed) said at [3]-[6], "[3] In my opinion, the amount of any discount to be allowed by reason of the utilitarian benefit of a plea of guilty should not be reduced on the ground that the plea was offered in association with the abandonment by the Crown of a greater charge; and if in such a case the plea is offered as soon as the Crown indicates willingness to accept a plea to the lesser charge, it should be regarded as being made at the earliest opportunity. To hold otherwise would be inconsistent with the presumption of innocence of the greater charge, which in those circumstances must stand unaffected. [4] However, the utilitarian discount is a recognition of advantages to the administration of justice that actually flow from a plea of guilty. By reason of statutory provisions applying in New South Wales, in this State it is not given merely on the basis that the offender's culpability is mitigated by demonstration of willingness to facilitate the course of justice: R v. Sharma (2002) 54 NSWLR 300, distinguishing Cameron v. The Queen (2002) 76 ALJR 382. [5] If a plea is entered a long time after a person is first charged, but at a time when a lesser charge is substituted for a greater charge, the advantages to the administration of justice are less, even though the plea may have been made at the earliest opportunity. There is in any event no entitlement to a 25% discount; and the fact that in this situation there are less advantages to the administration of justice can justify a smaller discount. [6] This approach may mean that in some cases an offender may obtain a lower discount just because the prosecuting authorities initially brought a greater charge than that ultimately pursued, so that the delay in the plea of guilty was not the offender's fault. But this is consistent with the nature of the discount as being at least in part a recognition of practical advantages, and not merely a recognition of mitigation of culpability."
15. Using the word "may" at [6] speaks of discretion.
16. In Dib at [27] Dowd J said, "The applicant's submission was that the discretion of the learned sentencing judge miscarried in his approach to the timing of the plea on the basis that the original charge carried a maximum penalty of twenty five years and it was only on 11 September that the Crown charged the alternative to which the applicant immediately entered a plea and this was at the first opportunity. I agree with that submission."
17. At [29] Dowd J said, "I do not agree that the discount should be reduced by reason of is [sic] a benefit in the acceptance of a plea to a lesser charge. A person in the position of the applicant comes with a presumption of innocence and no assumptions can be made as to the basis for the acceptance of the plea. The plea should be treated as one made at the earliest opportunity (Cameron v R (2002) 76 ALJR 382, R v Atkinson [2001] NSWCCA 135)."
18. At [31]-[32] Dowd J said, "[31] It was submitted by the Crown, and I agree with this submission, that his Honour was not bound to grant a discount of 25% that being the maximum indicated discount (R v Thomson supra). It was submitted by the Crown that it was open to his Honour to take into account that the plea was to an alternative to a more serious charge. [32] As I have indicated, the reasoning of his Honour was, in my view, in error. The plea was clearly entered at the first opportunity. I consider, however, that the plea was entered on a very serious charge and without any indication of remorse, as the applicant did not adduce evidence which so indicated, and the discount which his Honour did grant was not only within range of what his Honour was entitled to provide but was appropriate in the circumstances."
19. The first sentence set out above is of significance where his Honour found that the plea was clearly entered at the first reasonable opportunity. His Honour then considered the concept of remorse which is different to utilitarian value.
20. In Borkowski at [32], point 9 Howie J said, "The utilitarian value of a delayed plea is less and consequently the discount is reduced even where there has been a plea bargain: Dib [2003] NSWCCA 117; Ahmad [2006] NSWCCA 177."
21. In using the words "is less" connotes a mandatory result and does not speak of discretion. This is the opposite of what Hodgson JA said in Dib where his Honour used the word "may".
22. What Howie J was postulating was that if there has been a plea bargain it is mandatory that the discount is reduced due to the utilitarian value of the delayed plea. Dib does not stand for this proposition.
23. What Dib stands for is that a plea as a result of a plea bargain may be a plea at the first reasonable opportunity and it is for the sentencing judge to determine the utilitarian value of the plea.
24. The accused was originally arraigned on a charge under s 112(3) which has a maximum penalty of 25 years and has a standard non-parole period of 7 years. It was a serious charge which the Crown did not proceed with but, in lieu thereof accepted a plea to s 111(3).
25. The Crown had sought a number of adjournments seeking reports to consider charging the offender with murder. It did not.
26. It is clear that an offer and then a Crown counter offer occurred before resolution of this matter. In my view and in accordance with R v Dib the plea bargain is a plea at the first reasonable opportunity.
27. The next question for consideration is what utilitarian value should be ascribed to the plea. It is discretionary, but not mandatory that a discount up to 25% is available to a sentencing judge.
28. There is utilitarian value in that a trial was not had. Clearly there was an assessment by the parties as to the strength and weaknesses of their cases. The Crown was absent a victim due to death and the defence had issues with DNA of the offender on a desktop fan in the victim's bedroom, fingerprint on the interior wall along the staircase and an admission, "I've bashed someone. Look at my shoes." The parties took a common sense approach to the resolution of this matter avoiding a trial that was listed for in excess of two weeks.
29. The utilitarian value of the plea is towards the higher end of the range identified in R v Thompson and Houlton (2000) 49 NSWLR 383. I assess the utilitarian value at 20%. The sentence will be discounted by 20%.

S21A(2)(d) record of previous convictions

1. The offender's criminal history relates to offences committed as a child in November 2014, February 2015 and June 2015 and an offence committed as an adult in September 2016 (for which he was placed on a s9 bond that was current at the time of the offence). The offender's criminal record does not include offences of violence.

S21A(2)(f) offence involved gratuitous cruelty

1. The offence occurred at night and at a time when the victim, a 78 year old woman, was alone. There is no evidence that she posed any threat to the offender who entered her home with intent to steal. By his plea the offender admits intentional infliction of grievous bodily harm. It was unnecessary to inflict injuries of such severity upon the victim. The Crown submits that the infliction of such severe injuries upon the victim, in circumstance where there is no evidence that she posed any threat to him amounts to gratuitous cruelty. I accept that submission.

S21A(2)(j) the offender was on conditional liberty at the time of the offence

1. The offender was sentenced at Blacktown Local Court on 21 September 2016 in relation to an offence of destroy damage property. He was placed on a s9 bond for 12 months with supervision. A condition of the bond was for him to be of good behaviour. The s9 bond was current at the time of the commission of the offence.

AGREED FACTS

1. An agreed Facts document was tendered on 24 May 2019. It reads: 1. The offender in this matter is BB, aged 18 years at the time of the offence. He lives with his grandmother at xx xxxxxx Way Toongabbie. 2. The victim is Anita CHRISTANGA, at the time of the offence aged 78 years. She lived at xx xxxxxx Way, Toongabbie, directly opposite the offender. 3. The offender has lived at three addresses in xxxxxx Way, including his current address, for most of his life. The victim had lived at her property for the past 35 years. They have knowledge of each other by virtue of them being 'neighbours'. 4. About 10:00pm Tuesday 24 January 2017, the victim Anita CHRISTANGA arrived home in her vehicle at xx xxxxxx Way, Toongabbie. She parked her car behind a set of gates at the rear of the property and entered her home which is a two storey terrace style house. 5. She prepared for bed using her typical routine. 6. Sometime during the night the victim was violently assaulted before losing consciousness. The victim regained consciousness around 10am that morning. The victim checked the contents of her handbag and determined her mobile phone and Commonwealth Bank (CBA) ATM card were missing (Form One offence). 7. She became concerned that someone may be fraudulently using her bank cards. The victim changed her clothes, composed herself, and left the house before driving to the Commonwealth Bank at the Centro Shopping Centre, Seven Hills, to report the card as stolen. Upon entering the bank, staff became immediately concerned due to her significant facial injuries. Emergency services were contacted and attended the bank to treat her. 8. After treatment she was taken by ambulance to Westmead Hospital. Blacktown Detectives commenced an investigation after attending the home of the victim at xx xxxxxx Way Toongabbie. 9. On entering the premises police observed blood spots on two bedroom walls/curtains. Heavy bloodstains were observed on the victim's pillows. Blood was also observed on other items in the bedroom, including the victim's bedding, a telephone receiver, pedestal fan, the lampshade of a broken lamp, and the body of a broken wooden horse ornament which was on the floor between the victim's bed and the wall. The head of the ornament was located under the victim's bed. 10. Blood spots or stains were also found in other parts of the house. For example, on the first floor landing near the bedroom, on the staircase leading to the first floor, the first floor bathroom, the kitchen, the laundry, and around the rear entry doors. 11. The scene was secured and later subjected to a forensic examination. A number of exhibits were seized for scientific examination. A fingerprint examination was also conducted. 12. The offender was spoken to by investigators during a canvass of the crime scene. When asked about his whereabouts at the time of the assault, he told police that he was at home from 9pm onwards, and never left the premises. The offender further stated he went to sleep no later than midnight and did not leave that residence until day light the following day. 13. This version of events was contradicted by two residents of xxxxxx Way who have known the offender since 2002. They both stated to Police they saw the offender running from the front street area of xx xxxxxx Way towards xx xxxxxx Way. He was described as wearing a white top and dark shorts. The witnesses were in a motor vehicle and the headlights were clearly directed upon him and the street was illuminated from a street light outside number xx xxxxxx Way. The witnesses immediately recognised him as B who lived at xx xxxxxx Way with his grandmother. 14. Another witness was made aware of a piece of jewellery hidden in an abandoned house. The victim confirmed it belonged to her (Form One offence). 15. Another witness told police that she saw the offender in the morning of 25 January 2017, the offender said to her, "I've bashed someone. Look at my shoes." 16. The fingerprint examination of the victim's house developed a number of fingerprints. The fingerprints were examined by fingerprint experts on 26 January 2017. A fingerprint was developed on the interior wall along the staircase. This fingerprint was examined by a fingerprint expert and identified the offender BB. 17. The victim's Commonwealth Bank ATM card was located by police on forensic examination of her handbag. 18. About 10.10am on Thursday 26 January 2017 Police went to an address at xx xxxxxx Way, Toongabbie and executed a search warrant at the premises. The occupiers notice was served upon JT. The offender was located asleep in upstairs bedroom with his fiancé and child. All persons were moved to the lounge room and the search warrant was explained. 19. The offender was arrested at 10.25am. He was cautioned and police complied with all Law Enforcement (Powers & Responsibilities) Act 2002 safeguards. He was taken to Blacktown Police Station where he took part in an electronically recorded interview. 20. During the interview the offender agreed he knew of the victim and had done so for many years. 21. He stated he was at home from about 9pm on the Tuesday evening and was there the whole night with his fiancé, grandmother and child. 22. He denied that it was him seen by the witnesses running in xxxxxx Way, despite earlier indicating that most if not all the neighbours knew or knew of him. 23. The fingerprint evidence was disclosed to the offender. He denied ever having been inside the house and was unable to explain the presence of his fingerprint. He continually maintained that at the time of the alleged assault of the victim and the witness sighting of him, he was in bed asleep. 24. After his initial interview with police the offender requested that he speak with investigators again. On this occasion he advised the police that he had attended the victim's residence on the morning of 25 January 2017. He stated that he walked into the premises through the open front door, walked up the staircase but stopped and called out "hello". He then said he was afraid and turned and ran out of the house. 25. In a subsequent interview, investigators advised the offender that his DNA was located on one of the desktop fans which was in the victim's bedroom. The offender denied being in the victim's bedroom and could not understand how his DNA was on a fan located in that room. 26. The forensic evidence showed the following:

• The offender's fingerprint on wall of the hallway staircase;
• The offender's DNA on a desktop fan located in the victim's bedroom; and
• The victim's DNA on both the sole of the offender's shoe 1. The victim sustained a series of injuries as a result of the assault. These are set out in detail later in this judgment. 2. On 25 January 2017 the victim underwent open reduction and internal fixation of the mandibular fracture, teeth extraction, and repair of lip, facial and ear lacerations. She was admitted to the Trauma High Dependency Unit postoperatively. 3. During a review on 26 January 2017, left sided facial weakness was noted. The victim received chest physiotherapy and mobilisation assistance. On 27 January 2017 the victim was stepped down to the ward. 4. A review on 28 January 2017 in the ward demonstrated no breathing issues, with a reasonable cough effort. The left sided facial droop was still present. A review on 29 January 2017 demonstrated the persistent left facial droop. 5. The victim was discharged from Westmead Hospital on 6 February 2017. After discharge she lived with the mother of her daughter-in-law until 25 March 2017 when she then moved out and returned to her home. 6. The offender was charged by police on 30 January 2017.

CROWN SUBMISSIONS

1. The Crown submits that the objective criminality was very high and the offence falls in the upper range of objective seriousness of offences of this type. The victim was 78 years old and the offender was 18 years at the time of the offence. The victim was a neighbour of the offender and had lived in the same street as him for most of his life. The offence occurred at night and in the victim's home, at a time when she was alone. The victim sustained injuries which the Crown submits were extremely serious for offences of this type. The victim was left alone and injured after the commission of the offence.

OFFENDER'S SUBMISSIONS

1. Counsel for the offender concedes that this was a serious example of offending. He submits that the following matter should be taken into account; 1. The victim was 78. 2. The offence occurred in her home. 3. The offender's intention at the time of entry was to steal which should be seen as less serious than if the intention at the time of entry was to assault. 4. The offence did not involve planning or sophistication. This evident from: the close proximity of the crime scene to the offender's home; the fact the offender left his fingerprints and DNA at the crime scene; the fact the offender was not disguised when seen in the street by the witnesses. 5. The victim sustained multiple injuries. While these injuries were serious, this should not be seen as an especially serious example of grievous bodily harm given the broad range of injuries encompassed by that phrase.
2. Mr Quilter submits that the Form 1 matter is not particularly serious and would not result in an increase in the sentence imposed for the matter on the indictment. I accept that submission.

CONSIDERATION

1. It must be born in mind that I am not sentencing the offender for the death of the victim. To do so would be in breach of the De Simoni principle: R v De Simoni (1981) 147 CLR 383.
2. The De Simoni principle provides that a court shall not take into account as an aggravating factor a circumstance that would warrant a conviction for a more serious offence.
3. An offender can only be sentenced for the offence of which he is convicted. A court must disregard any circumstances that would amount to a different offence for example manslaughter.
4. The offender snuck into the house as a would be thief. By his knowledge of the neighbourhood and the time of night, he would have been aware of the possibility that the victim was enjoying the quiet tranquillity and sanctity of her home.
5. Entry under such circumstances may lead to an escalation. It did so in this case. Although he entered as a thief, his conduct thereafter was brutal with callous indifference to his victim.
6. The victim sustained the following injuries; 1. Left frontotemporal scalp injury, right frontal scalp injury; 2. Small acute bi-frontal subdural haemorrhage. Acute right parietal cerebral contusion; 3. Acute fractures of the left zygomatic arch, left orbital floor and lateral wall; 4. Acute fractures of the anterior, medial and lateral walls of the left maxillary sinus involving multiple teeth; 5. Undisplaced left nasal bone fracture; 6. Acute oblique fracture left mandible; 7. Acute fractures of the left ribs 2 to 6; 8. Acute fracture of manubrium and sternum with retrosternal haemorrhage
7. The nature and extent of the injuries could only have occurred by striking the victim with great force and repeatedly so. The offender's actions warrant stern punishment. People should be safe in their homes and the court needs to send a message that brutal, callous behaviour that strikes at the sanctity of the home will not be tolerated.
8. The offending conduct is a very serious example of its kind. I assess the conduct as above the mid- range of objective seriousness.

YOUTH/MORAL CULPABILITY

1. The offender was 18 at the time of the offence. His youth and immaturity are relevant in making an assessment as to his moral culpability.

CROWN SUBMISSIONS

1. The Crown submits that young people may not reach emotional maturity or impulse control until early to mid-twenties, generally the younger an offender, the more weight will be given to youth; the closer the age to adulthood, the less weight will be given to factors such as immaturity and age. However, youth may be a material factor in sentencing even a 19 year old for a most serious crime: R v Thammavongsa [2015] NSWCCA 107 at [90] and [96].
2. The authorities concerning sentencing youthful offenders do not dictate that a sentence be reduced on account of that circumstance - it is a relevant sentencing consideration but the weight (if any) to be accorded to the offender's youth is a matter for the sentencing judge: El-Zeyat & others v R [2015] NSWCCA 196 at [68].
3. There are no automatic consequences arising from youth and deprivation- the greater the object gravity of an offence, the more likely it is that retribution and deterrence will have to be reflected in the sentence imposed, notwithstanding the regard which has to be paid to the interests of rehabilitation in such cases.
4. The principle that rehabilitation should be the primary concern and that deterrence/denunciation should usually play a subordinate role when sentencing young offenders must sometimes give way to other sentencing consideration. The principle cannot defeat the primary purpose of punishment nor, in circumstances where young offenders conduct themselves as an adult, can it stand in the way of the need to protect society: SHR v R [2014] NSWCCA 94 at [47]-[48].
5. The greater the objective gravity, the less likely that retribution and deterrence will cede to the interests of rehabilitation and the sentencing judge must balance the gravity of an offence against the progress towards rehabilitation: R v DH; R v AH [2014] NSWCCA 326 at [16]. There is a point which the seriousness of a crime by a young man is of such a nature that the principle must in the public interest give way and where the need for rehabilitation is diminished by the need to protect society: R v Elkassir [2013] NSWCCA 181 at [46].
6. Further, the Crown submits that moral culpability of the offender was high. There is no evidence that the offender had fewer emotional resources to guide his behavioural decisions.

OFFENDER' SUBMISSIONS

1. Mr Quilter referred to KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 at [22]-[26]. McClellan CJ at CL summarised the principles that relate to sentencing of young offenders. At [23] his Honour said: "The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for an offender's youth and not just their biological age. (R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37 at [25]). The weight to be given to the fact of the offender's youth does not vary depending upon the seriousness of the offence (Hearne at [24]). Where the immaturity of the offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult. (Hearne at [25]; MS2 v The Queen (2005) 158 A Crim R 93; [2005] NSWCCA 397 at [61))."
2. Counsel submitted that in BP v R [2010] NSWCCA 159; (2010) A Crim R 379 at [4]-[6] Hodgson JA referred to McClellan CJ at CL's summary of principles in KT with approval but added three points which have relevance to this case: "[4] First, statements that, in relation to young offenders, principles of retribution may be of less significance and considerations of rehabilitation may be of more significance, may tend to obscure the point that even in relation to retribution the youth of an offender may be a mitigating circumstance. In my understanding, considerations of retribution direct attention to what the offender deserves; and in my opinion, where emotional immaturity or a young person's less-than-fully-developed capacity to control impulsive behaviour contributes to the offending, this may be seen as mitigating culpability and thus as reducing what is suggested by considerations of retribution: see TM v R [2008] NSWCCA 158 at [33] - [36]. [5] Second, while I agree with the statements in KT at [26] that the weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity, and that a "child offender" of almost 18 years cannot expect to be treated substantially differently from an offender who is just over 18 years of age, it does not follow that the age of maturity is 18 (albeit that for certain purposes the law does draw a line there: Children (Criminal Proceedings) Act 1987). In my understanding, emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid twenties: see R v Slade [2005] 2 NZLR 526 at [43], quoted by Kirby J in R v Elliott [2006] NSWCCA 305; (2006) 68 NSWLR 1 at 27 [127]. As shown by R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451, youth may be a material factor in sentencing even a 19 year old for a most serious crime. [6] Third, I do not think courts should be over-ready to discount the relevance of an offender's youth on the basis that the offender has engaged in adult behaviour or acted as an adult. In the present case, the offence is a very serious one; but it did not involve significant planning or reflection, or any other indicia of mature decision-making. The applicant was 16 years old, and in my opinion the circumstances of the offence suggest rather that emotional immaturity and less-than-fully-developed capacity to control impulses were likely to be contributing factors."
3. Given BB was only aged 18 years and 5 months at the time of the offence, his youth and immaturity is a factor that mitigates his moral culpability and the extent to which he should be punished for this crime.
4. Counsel for the offender submitted that the offender had a difficult upbringing. His father spent periods of time in gaol; his parents' relationship was unstable; he attended numerous different schools; he was diagnosed with ADHD; he spent time with older peers and used drugs regularly from a young age, including cannabis from the age of 13 and methamphetamine from the age of 14.
5. A background such as this suggests BB has fewer emotional resources to guide his behavioural decisions. This also reduces his moral culpability.
6. Simpson J (as her Honour then was) made this point in Millwood v R [2012] NSWCCA 2 at [69] (Bathurst CJ and Adamson J agreeing): I am not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a "normal" or "advantaged" upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions.

CONSIDERATION

1. If the offender was less than 18 at the time of the offence the major sentencing consideration would be rehabilitation: R v GDP [2008] NSWCCA 51. He was not. At the time of the offending he was 18 years and 5 months. He is to be regarded as a youthful offender. Although rehabilitation plays a role in sentencing youthful offenders it does not play a dominant role as it would in sentencing a child.
2. I accept the Crown submission that young people, such as the offender, may not reach emotional maturity or impulse control until early to mid-twenties and youth may be a material factor in sentencing a young person for a most serious crime.
3. The offender acted as an adult. He entered with intent to steal and then assaulted the 78 year old occupant causing significant injuries. The offence was objectively serious. However, I should not be over-ready to discount the relevance of an offender's youth on the basis that the offender has engaged in adult behaviour or acted as an adult.
4. The offender's culpability by reason of his youth moderates the extent to which he should be punished, but it does not become a dominant sentencing consideration. It is a factor I take into account in arriving at an appropriate sentence. I do not lose sight of the need to promote his rehabilitation.

SUBJECTIVE CIRCUMSTANCES

1. The following documents were tendered on behalf of the offender; 1. Affidavit of NB, mother of the offender affirmed 24 July 2019. 2. Affidavit of the offender affirmed 24 July 2019. 3. Letter of Ms Stehouwer, social worker Westmead Hospital dated 24 July 2019.
2. The mother's affidavit informs of the following:

• The offender did not have much contact with his father when he was young because his father was in and out of gaol. When out of gaol it was not a happy home environment. The offender's mother had to take out an AVO against her husband. She separated from her husband when the offender was 8 years of age. There was a reunification which ended in separation. Her son witnessed her verbally and emotionally abused by her husband.
• The offender attended several schools. His latter schooling was at behavioural schools. He left school in year 10 but did not complete the year. At 12 years of age he was diagnosed with ADHD and prescribed Ritalin, but did not continue its use as it made him feel funny.

1. The offender's affidavit informs me of the following:

• He did not have much contact with his father when he was young as his father was in gaol. His father used cannabis. He remembered being in a stolen car with his father which was chased by the police.
• His father is sick at the moment. The letter from Ms Stehouwer informs me that the offender's father has a terminal illness and no other treatment options are available to him.
• He confirms his mother's evidence of schooling and the diagnosis of ADHD.
• He commenced using cannabis at 13. He smoked daily until going into custody. At 14 he started using ice and smoked it regularly. He was smoking it weekly. He has also used heroin.
• He had some sporadic employment at Red Rooster, the Salvation Army and a clothes factory in Blacktown before it closed down. He lost his job when he was 17. At the time he was arrested he was not working nor was he on Centrelink.
• It is his intention upon release to go to "rehab to sort out my problems with drugs." He wants to go to TAFE and would like to be a tiler or mechanic.

CROWN SUBMISSIONS

1. The Crown submits that the offender's criminal history and custodial punishment history are such that the Court would view the offender's prospects of rehabilitation with caution.
2. It points to the fact that the offender was on a s9 bond at the time of this offence. He has a prior offence for break enter and commit serious indictable offence in company to which he was placed on probation for 12 months with supervision and 20 hours community service.
3. In relation to his custodial history there are 16 separate offences listed under "punishment details". Ten of those offences are drug-related offences and the last of those offences was committed on 1/2/19. There are also offences of assault, fight or other physical combat, possess offensive weapon-the last of those offences was committed on 5 February 2019.

OFFENDER'S SUBMISSIONS

1. The offender's youth and lack of previous acts of violence are factors that suggest he has some prospects of rehabilitation. It is further submitted that his prospects will be further enhanced if he overcomes his problems with drugs.

CONSIDERATION

1. I am cautious about the offender's prospects of rehabilitation. However, "the protection of the community is also contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits. If a sentence has the effect of turning an offender towards a criminal way of life, the protection of the community is to that extent impaired. If the sentence induces or assists an offender to avoid offending in the future, the protection of the community is to that extent enhanced. To say that the criminal law exists for the protection of the community is not to say that severity is to be regarded as the sentencing norm. Times and conditions change, and the approach of judges to their task must be influenced by contemporary conditions and attitudes. But public concern about crime, however understandable and soundly based, must never be allowed to bring about departure by the courts from those fundamental concepts of justice and mercy which should animate the criminal tribunals of civilised nations.": Yardley v Betts (1979) 1 A Crim R 329 King CJ at 333.
2. The offender is not a first offender. In my view he is someone who has not developed settled criminal habits. The sentence I impose should induce or assist the offender to avoid offending in the future then the protection of the community is enhanced.

SPECIAL CIRCUMSTANCES

1. Sections 44(1)-(2) of the Crimes (Sentencing Procedure) Act 1999 provide that when sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence, that is, the minimum period for which the offender must be kept in detention in relation to the offence. The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more, and sets out its reasons for that decision.
2. The full range of subjective considerations is capable of warranting a finding of special circumstances. The non-parole period is to be determined by what the sentencing judge concludes that all of the circumstances of the case indicate ought be the minimum period of actual incarceration: R v Simpson (2001) 53 NSWLR 704 at [59]. However the non-parole period must itself appropriately reflect the criminality involved in the offence: Simpson at [63].

CROWN SUBMISSION

1. The Crown submits that although the offender's youth is a common ground for finding of special circumstances , it could be regarded as double counting to give any significant weight to youth when assessing the overall sentence, if youth has already been taken into account in the finding of special circumstances.
2. The fact that this is the offender's first custodial sentence by itself is not sufficient to form a basis for a finding of special circumstances.
3. There is no basis in the proposition that young offenders with serious drug problems should have balances on parole exceeding 2 years: Khawaja v R [2014] NSWCCA 80 at [28]-[29].

OFFENDER'S SUBMISSION

1. It is submitted that special circumstances should be found because; the offender's age, first time in custody and the need for assistance with drug rehabilitation and other issues to reintegrate himself into the community upon release.

CONSIDERATION

1. The finding of special circumstances is discretionary. I accept the offender's submissions that special circumstances should be found due to the offender's age, first time in custody and the need for assistance with drug rehabilitation and other issues to reintegrate him into the community upon release. There should be a departure from the statutory ratio to ensure that there is a lengthy period of supervision by the Parole Board and monitoring of the offender when he is released into the community. Supervision assist in protection (and safety) of the community. In taking into account the age of the offender I have not engaged in double counting.

EXTRA CURIAL PUNISHMENT

1. Extra-curial punishment is punishment that is inflicted upon the offender otherwise than by a court of law: R v Wilhelm [2010] NSWSC 378 per Howie J at [21].
2. On balance I find the following facts: 1. This matter was listed for sentence before the Penrith District Court on 24 July 2019. 2. There were a number of media representatives present in court that day and the Crown tendered its sentence bundle which included a statement of facts. 3. The sentence hearing did not proceed that day as the parties required time to resolve the victim impact statement. The matter was adjourned to 1 August, 2019 for sentence. 4. On or about that evening or the following day an electronic media outlet published the name and identified the offender with a brief description of the allegations. 5. On 27 July 2019, the offender was assaulted by several inmates at his gaol. After the assault he was told by one of the prisoners who assaulted him words to the effect of "you know why we did it don't you". 6. As a result of the assault the offender suffered a fractured mandible. He was admitted to the Prince of Wales Hospital on 28 July 2019 for 'oral and maxillofacial surgery' in relation to a 'fracture of the left angle of mandible'. Following surgery his jaw was 'kept in tight elastics'. He had elastic bands and plates in his mouth: Affidavit of Tamryn Beveridge, Solicitor, affirmed 20 September 2019. 7. On 1 August 2019 the Court was advised by Justice Health that the offender would be unfit to be transported to court due to the risk of aspiration if he vomited. The sentence hearing was vacated. 8. The offender was placed on a soft non-chew pureed diet for 6 weeks. On 13 August 2019, the offender's elastic bands were removed: Affidavit Tamryn Beveridge.
3. I am satisfied that the injury occasioned to the offender was punishment generated by the media story and was punishment inflicted upon the offender otherwise than by a court of law. Apart from a broken bone and the inconvenience of a non-solid diet, it is not anticipated that there will be any permanent physical disability. I have no evidence before me as to any psychological impact. The injury is a factor I have taken into account, but I give little weight to it.

STATISTICS

1. The Judicial Information System (JIRS) statistics for NSW Higher Courts for sentences imposed from January 2008 to 23 September 2018 for an offence contrary to s 111(3) of the Crimes Act indicate that the most occurring sentence is 3 years (18.6%). Of the 43 cases before the courts only one person received a sentence of 8 years. 41 sentences were less than 8 years. The most occurring non-parole period was 18 months (30.2%).
2. In relation to an individual between 18-20, with a plea of guilty, the head sentence range was between 2 years and 5 years. The most occurring non-parole period was 18 months (50%). There were only 6 cases recorded.
3. The statistics are of limited value. They provide a guide but are not determinative.

Crown submission

1. The Crown submits that, having regard to the maximum penalty for the offence, the objective seriousness of this offence, the need to give sufficient weight to the objective gravity of the offending notwithstanding the youth of the offender, considerations of deterrence, denunciation, retribution and protection of society, the Court should find that a significant sentence is warranted.

Offender's submission

1. It is accepted that the sentence must recognise the harm caused, as well as some emphasis to be given to denunciation, punishment and deterrence.
2. It is submitted that the offender's moral culpability is informed by his youth and this should moderate the extent to which he should be punished. It is further submitted that his young age means that it is in the community's interest to impose a sentence that would promote his rehabilitation.
3. For that reason the Court should avoid imposing a sentence that would "induce a feeling of hopelessness and destroy any expectation of a useful life after release": R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [17].
4. The severity of a sentence is not simply the product of a linear relationship. That is to say severity may increase at a great rate than an increase in the length of a sentence: R v Clinch (1994) 72 A Crim R 301, Malcom CJ at 306.

CONSIDERATION

1. The proper approach to sentencing involves the weighting of all relevant factors in order to reach a conclusion that a particular penalty should be imposed. The Court should avoid taking a mathematical approach as this would depart from principle because it does not take into account that there are many conflicting and contradictory elements which bear upon sentencing an offender: Markarian v The Queen [2005] HCA 25; 215 ALR 213.
2. The task of a sentencer therefore is to take into account all the relevant factors and to arrive at a single result which takes due account of them all.
3. I have taken into account the youth of the offender and his moral culpability moderates the extent to which he is to be punished.
4. I have taken into account the need to adequately punish the offender, the need to prevent crime by deterring the offender and other persons from committing similar offences, the protection of the community, and denunciation of the conduct of the offender, the recognition of harm done to the victim and the community and the promotion of the rehabilitation of the offender.
5. The sentence I impose will not destroy expectation of a useful life after release.

ORDERS

1. The offender is sentenced to a term of 8 years imprisonment (but for the 20% discount for his plea the penalty would have been 10 years.) The non-parole period is 5 years 6 months.
2. The commencement date of sentence is 26 January 2017.
3. The head sentence will expire on 25 January 2025.
4. The non-parole period will expire on 25 July 2022. The offender will be eligible for parole on that day.
5. I am obliged to tell you of the existence of the Crimes (High Risk Offenders) Act 2006, which applies to "serious offences" including the offence for which you have been sentenced.
6. In summary, this means that the State can apply to the Supreme Court for an order that you continue to receive supervision or be held in detention at the end of your sentence if the court considers you would be a "high risk offender" who poses an unacceptable risk of committing a serious offence.
7. It is, therefore, in your interests to engage in rehabilitation opportunities that may be offered to you in the course of your sentence.

Annexure A: Victim impact statement (109 KB, pdf)

Amendments 21 October 2019 - Amendments to identifying material 21 November 2019 - correction at [69], change 'close' to 'closer' DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 November 2019