[33] In Swan a significant matter was the fact that the offender was intellectually disabled. He offended against the victim not only in order to achieve personal retribution for the sexual assaults committed against him but also from a misguided view that he was dissuading the victim from assaulting other intellectually impaired persons, as he believed the victim had been doing. In considering what he did and the reason he did it, his intellectual impairment was a relevant factor. It was for this reason that the Court was able to attenuate the need to deter persons from taking the law into their own hands: see per Spigelman CJ at [60]. There was no such attenuating factor in the present case."
33 Comments to like effect are to be found in the judgment of Hall J in Barlow v The Queen [2008] NSWCCA 96; (2008) 184 A Crim R 187 at [40] as follows:
"[40] The nature of the conduct by the applicant could be correctly identified in the remarks on sentence as having been in the nature of 'vigilante' conduct. The seriousness of the offence in question, despite the purpose or motivation having been revenge for the alleged sexual assault by the victim upon her some six years before, involved a deliberate course of conduct, in company with another, whereby the applicant decided to act outside the law in seeking retribution for what she alleged had been done to her by the victim. Such conduct, as the sentencing judge correctly identified, is the antithesis of what is required in a society based on the rule of law and is to be denounced in the strongest terms."
34 The appellant submitted that his Honour gave too much weight to the respondents' grievance as a circumstance warranting mitigation. Even if it went some way towards explaining what was done, the sentences failed to satisfy what was a compelling case for general deterrence. His Honour did make reference to issues of "punishment, general deterrence, [and] specific deterrence". However, in the appellant's submission, this reference was not reflected in the sentences that were imposed in which the head sentences and the non-parole periods evidence an undue emphasis on subjective factors and insufficient emphasis upon the objective seriousness of the offence.
35 Moreover, the standard non-parole period for the offence, pursuant to s 54D, item 13 of the Crimes (Sentencing Procedure) Act is 7 years. That standard non-parole period applies to an offence where an offender is convicted after trial where it can be regarded as being in "the middle of the range of objective seriousness": R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [68] - [71]. In circumstances such as the present, where the respondents pleaded guilty, the standard non-parole period remains relevant as a guide or reference point, rather than as a starting point.
36 His Honour found that the level of criminality of the respondents was "low to mid range". He held that there were a number of factors warranting or justifying departure from the standard non-parole period. He referred to factors such as the pleas of guilty, provocation by the victim, the absence of prior convictions, each respondent being of good character, the unlikelihood of reoffending, good prospects of rehabilitation and demonstrated remorse.
37 However, in the appellant's submission, non-parole periods of 5 months failed to give sufficient regard to the standard non-parole period of 7 years. The magnitude of the departure from that standard non-parole period could not be justified, even upon the basis that the offending fell at the low to mid range on the scale of objective seriousness. Despite giving reasons for doing so, his Honour's departure from the standard was said to be indicative of error.
38 Finally, the appellant submitted that there were two instances of "double counting". First, his Honour's reference to "provocation", as something justifying a departure from the standard non-parole period must relate to his Honour's finding with respect to the respondents' "motive" in the commission of the offence. In such a case, there is an element of double counting involved because the motive was clearly something that his Honour took into account in forming the view that the respondents were unlikely to reoffend. The uniqueness of the provocation was coextensive with the likelihood of repetition.
39 Secondly, having found "special circumstances", his Honour said the following:
"I acknowledge that five months represents one quarter of the total sentence of twenty months and that the statutory ratio would normally involve three quarters or a reversal or [sic] that percentage, that is fifteen months to serve and five months additional. I have made the variation because of the significance of the motive and although you were misguided I at least understand why this crime was committed and on top of that you are each basically good young men, you each do have a future, you each will learn from this and in my view there is every reason to believe that neither of you will reoffend again and it is for that reason I have made the variation together with some of the other factors that I have pointed out during the course of my remarks."
40 According to the appellant's submissions, his Honour thereby fell into error. A finding that the offence fell below the mid range, together with the respondents' subjective factors, were employed by his Honour to justify a departure from the standard non-parole period. However, the subjective factors were double-counted to justify a major reduction of the statutory ratio for which s 44(2) of the Crimes (Sentencing Procedure) Act provides. The appellant submitted that such an approach was plainly erroneous in the light of remarks such as those of the Chief Justice in Regina v Fidow [2004] NSWCCA 172 at [18] as follows:
"[18] In R v Simpson (2001) 53 NSWLR 704, this Court identified the wide range of factors capable of constituting special circumstances. Nevertheless, on each occasion in which s44(2) of the Act is invoked, it is necessary for the sentencing judge to make a decision, as noted in Simpson at [68] that the circumstances are sufficiently special for the statutory proportion to be reduced. Section 44(2) requires the 'decision' to be that the statutory proportion of one-third be 'less'. 'Double counting' for matters already taken into account in reducing the head sentence, and therefore already reflected in the non parole period, must be avoided. (See Simpson at [47]). Almost all matters capable of constituting special circumstances have usually been taken into account in determining the head sentence and sentencing judges should ensure that double counting does not occur."
41 In this Court the respondent Nguyen submitted that his Honour's assessment of the objective seriousness of the offence should not be disturbed. He referred to the remarks of Simpson J in Mulato v Regina [2006] NSWCCA 282 at [46] as follows:
"[46] The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v The King [1936] HCA 40; 55CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance."
42 He further relied upon what was said in Carroll v The Queen [2009] HCA 13; (2009) 254 ALR 379 at [7] as follows:
"[7] It has long been established that '[i]nadequacy of sentence, an expression not found in the Criminal Appeal Act ... is not satisfied by a mere disagreement by the Court of Appeal with the sentence actually imposed'. Rather, as pointed out in Dinsdale v The Queen , error must first be identified by the appellate court. And as was held in House v The King , an appeal against an exercise of discretion, in this case a sentencing discretion, is governed by established principles."
43 The respondent Nguyen submitted, in effect, that the so-called double counting for which the appellant contended could not be sustained as an error. He contended that provocation was but one of a number of other factors justifying a departure from a standard non-parole period. In this case it was submitted that his Honour's finding that the respondents were unlikely to reoffend was based on "… all of the material including the evidence of the two offenders". Moreover the respondent submitted that his Honour's remarks concerning the fact that the respondents had not previously been in custody, had no prior criminal convictions and each had excellent prospects of rehabilitation wholly justified his Honour's finding of special circumstances and, presumably, the way that he applied that finding to the variation of the statutory ratio.
44 With respect to the question of his Honour's assessment of the objective seriousness of the offence the respondent Dole drew attention to what was said by Simpson J in SKA v R; R v SKA [2009] NSWCCA 186 at [134] as follows:
"[134] Post Pt 4 Div 1A, however, it is necessary for sentencing judges to take a more clinical approach. It is necessary, in every case, to evaluate the objective seriousness of the offence in question alongside and against the yardstick of a notional offence of its kind that falls into the mid-range of objective seriousness ( Way [76]). Accordingly, in Way , analysis of the meaning of 'objective seriousness' was undertaken. Factors relevant to the assessment are: