Adequacy of sentence for Narwee offence
22At about 1pm on 29 May 2009, the respondent went with two other persons to the home of Ms W in Narwee, apparently in the belief that she had a supply of cocaine. Ms W had three daughters of whom two, aged 17 years and 3 years, were at home. (The third was at school.) One of the respondent's co-offenders, Jasmine Ahearn, tricked Ms W into unlocking the front door, at which the respondent pushed the door wide open with his shoulder, threatened her with a wrench which he was carrying and demanded to be given her "stash" of cocaine. The trial judge described what followed (Judgment, p 3):
"Mr Koloamatangi pushed [Ms W] into the laundry, grabbed her by the back of the neck and held the wrench to her face. She cried and pleaded with him not to hurt her or her daughters. Mr Koloamatangi forced her to sit on the laundry floor. He continued to hold her by the neck, waved the wrench near her face, use intimidating words and demand her 'stash'. There was no cocaine in the house, although a small amount of cannabis was later stolen.
Mr Koloamatangi searched through cupboards in the laundry. Ms Ahearn came in a few times and told him that the house did not look like a 'professional's', a reference I infer to a drug dealer. Mr Koloamatangi then searched the kitchen cupboards. He refused to let [Ms W] check on her younger child, who was crying.
Mr Raad joined Mr Koloamatangi in the kitchen. Mr Koloamatangi picked up [Ms W's] purse and demanded her cash. She gave him $150. He again demanded her stash. Mr Raad took [Ms W's] purse from her, took out her key card and asked for her PIN. Mr Koloamatangi waved the wrench close to her face, and fearing he was going to hit her with it, [Ms W] told them her PIN. Mr Raad took her photo identity card and said if she called police they would come back.
Mr Koloamatangi found some tiling grout in the laundry which he thought was cocaine, and when told it was not, yelled at [Ms W] to stay on the floor, not to move and not look at him.
Mr Koloamatangi and Mr Raad searched the rest of the house. During the search, Ms Ahearn sent [Ms W's] elder daughter to check on her mother and tell her to cooperate. The daughter ... saw her mother sitting on the laundry floor with her head down and Mr Koloamatangi standing above her holding a wrench. ...
The property stolen from the house included a computer monitor and hard drive, a gold watch, two working mobile phones and three old phones used as toys by the younger child, and four gold necklaces, as well as the $150 cash, key card and photo identity card taken from [Ms W]."
23The trial judge referred to a victim impact statement prepared by Ms W, in which she had said that the family had moved home because of her fear and that she had fitted her new home with a deal of security. Because of her fear of leaving home, she had lost her employment, had had counselling and was on medication for anxiety and depression. She said her youngest daughter had become clingy and her eldest daughter troubled. By that she explained that the daughter had become distant from her mother and had lost her enthusiasm and motivation.
24In assessing the objective seriousness of the offences at Narwee, the trial judge stated that the victim impact statement indicated that she and her children had "suffered the kind of trauma to be expected from these kinds of offences": Judgment, p 15. That statement could be read in any of three ways. First, it is possible to read the statement as dismissive of the harm identified. That approach is implausible, particularly given the legitimate purpose of such a statement, as next noted, in the context of sentencing. Secondly, it could be an affirmation that such consequences are to be taken into account as ones that could reasonably have been foreseen by the offender, in accordance with R v Wickham [2004] NSWCCA 193 at [25] (Howie J); Josefski v Regina [2010] NSWCCA 41 at [3]-[4] (James J). Thirdly, the statement could be so read, but implying not merely that it was relevant and was being taken into account, but also that it was not to be treated as an aggravating factor, under s 21A(2) of the Sentencing Procedure Act . Where the injury, emotional harm, loss or damage caused by an offence is substantial, it constitutes an "aggravating factor" to be taken into account in sentencing, pursuant to s 21A(2). However, as the last sentence of that provision requires, the Court is not to have "additional regard" to any such factor if it is "an element of the offence". It is the last sentence of the sub-section, in combination with the relevant factors, which was intended to be referred to by the Court in R v Way at [106]-[107].
25Consistently with this principle, the Court has noted that it would be a misapplication of s 21A(2) to take account of characteristics of the offending which, even if not elements of the offence, are inherently part of such offending. They are likely to be reflected in the maximum penalty (and the standard non-parole period), by which the legislature has indicated the proper view to be taken of the seriousness of the offence. Whilst such characteristics may properly be noted in their particular context, to treat them as statutory "aggravating factors" is to risk double counting: R v Youkhana [2004] NSWCCA 412 at [26] (Hidden J, McColl JA and Levine J agreeing); R v Solomon [2005] NSWCCA 158 at [15]-[20] (Howie J, Grove and Latham JJ agreeing); Regina v Ancuta [2005] NSWCCA 275 at [11]-[13] (Brownie AJA, Buddin and Latham JJ agreeing); Elyard v Regina [2006] NSWCCA 43; 45 MVR 402 at [11] and [14] (in my judgment) and [40] (Howie J).
26The scope and limits of this principle were most clearly stated by Howie J in Solomon . However, despite this established line of authority, the Director submitted that in Josefski , at [46]-[47] Howie J had in some way qualified his earlier statements of principle. However that is not so. His concern (by reference to otherwise unidentified authority), was that a misunderstanding of the principle that foreseeable harm did not necessarily constitute an aggravating factor meant that it should be ignored. His Honour described that as a "common misunderstanding of the decision of this Court in R v Youkhana ... and R v Solomon ": at [44]. Indeed, his Honour reaffirmed the principle explained with some care in Solomon .
27I would read the statement of Sweeney DCJ as acknowledging succinctly both that the harm was foreseeable and therefore relevant, but that it should not also be treated as an aggravating factor. That approach demonstrates no error.
28Next, her Honour noted that there was "an issue of parity" in sentencing the respondent, as his co-offender, Mr Raad, had already been sentenced on 30 April 2010 by Madgwick ADCJ. How that came about is obscure, as Mr Raad was also involved in the Lakes Hotel enterprise, which will be discussed further below. Judge Madgwick sentenced Mr Raad for offences of aggravated break, enter and steal whilst in company and robbery armed with an offensive weapon, to 4 years imprisonment on each count, each with a 2 year non-parole period, to date from 15 June 2009, being the day on which he surrendered to police.
29Ms Ahearn was sentenced by Sweeney DCJ on 15 July 2010. She was charged with one offence of break, enter and steal in circumstances of aggravation, namely being in company with the respondent and Mr Raad. Her role in the enterprise was less serious than that of the other offenders and her personal circumstances differed. She received a two year sentence with a non-parole period of 15 months to date from 9 June 2009.
30It was unfortunate, in the interests of equal treatment, that Mr Raad was not also sentenced by Sweeney DCJ: Dwayhi v R [2011] NSWCCA 67; 205 A Crim R 274 at [33]-[46], [146] (Johnson J, Whealy JA and Hidden J agreeing); Ng v R [2011] NSWCCA 227 at [77]-[83] (Bathurst CJ, James and Johnson JJ) . In sentencing him, Judge Madgwick ADCJ remarked that the evidence before him gave the impression that "there is much more to his personal history that is not being revealed": Judgment, 30 April 2010, p 3. In sentencing Mr Raad for his role in the Lakes Hotel offence, Judge Sweeney stated:
"He said he committed the Narwee offences because of a bad drug habit, having escalated from using cannabis to using 'ice'. He also had a gambling habit on poker machines."
31Both accepted that the leader of the enterprise was Mr Koloamatangi. Sweeney DCJ also noted Mr Raad's "limited" criminal history before May 2009 and that his drug problem "did not seem too entrenched" which, combined with family support, led her to a similar conclusion in relation to his potential for rehabilitation.
32In assessing the objective seriousness of the offences, her Honour took into account the following factors (Judgment, pp 15-16):
(a) the offences occurred in the presence of the two children;
(b) the offenders stayed in the home for some time, despite being told there was no cocaine there;
(c) the use of the wrench as a weapon to threaten and subdue Ms W (noting it was an element of the robbery charge);
(d) the robbery took place in company, which was not an element of the offence pleaded but was relevant to the coercion placed on Ms W;
(e) the trauma experienced by Ms W and the children;
(f) the respondent was the leader of the enterprise.
33The charging of two closely related offences, in circumstances which may involve aggravating factors in respect of one offence, which are elements of another, can cause difficulty in respect of sentencing. Such circumstances invite consideration of the power to impose an aggregate sentence, where available, pursuant to s 53A of the Sentencing Procedure Act . That power was not available in this case, pleas of guilty entered before 14 March 2011 (and not withdrawn) being involved: Sentencing Procedure Act , Sch 2, cl 62 and R v AB (No 2) [2011] NSWCCA 256 at [14]-[15] (Johnson J, Bathurst CJ and Hoeben J agreeing). The course adopted by her Honour was substantially to the same effect, identical sentences being imposed for each offence, to be served entirely concurrently. One consequence of that approach may have been to diminish the overall sentence by attributing some factors to one rather than the other, thus avoid double counting, but with the result that, given total concurrency, the sentences imposed did not reflect the seriousness of the offending. It is necessary to assess the approach taken to both offences.
34The trial judge assessed the objective seriousness of the aggravated break, enter and steal as "just in the mid range of seriousness for offences of this kind". The Director took issue with that assessment. He submitted that the sentencing judge failed to give proper weight to the following matters: first, that the respondent knew from the outset that the house was occupied; secondly, that corporal violence was used; thirdly, that the victim was deprived of her liberty and fourthly, that there were two children present. Further, her Honour said that the property taken "was not large in quantity" and that most of it was recovered. However, the property was that which might have been readily exchanged for cash, was not insignificant to its owner and included a key card for which the PIN was extracted from the owner under duress. The fact that the property was largely recovered did not diminish the objective seriousness of the offending. The offender's circumstances did not permit leniency, although they provided some explanation for his descent into criminal activity, through drug use.
35The primary judge assessed the robbery as "approximately equivalent to the characteristic robbery considered in the Henry guideline judgment, although there are differences, such as the weapon being a wrench, not a knife, Mr Koloamatangi not being a young offender with little criminal history and that the offence was committed in [Ms W's] home": Judgment, p 16.
36That assessment underestimated the seriousness of the robbery offence. In considering the range of sentencing appropriate for an offence under s 97(1) of the Crimes Act , the guideline judgment suggested a generally appropriate range of between four and five years: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [162]-[165] (Spigelman CJ). The sentence imposed fell within that range. Nevertheless, the factors relied upon by the Director warranted a sentence in excess of that range. However, no challenge is made to the sentence in respect of that offence. The complaint arises in respect of the offence of aggravated break, enter and steal, where the circumstance of aggravation relied upon in the charge was commission of the offence in company: Crimes Act , s 105A(1), circumstances of aggravation , (b). Although each offence bears the same maximum penalty and can attract the same circumstances of aggravation for the purposes of s 21A of the Sentencing Procedure Act , this offence carried a standard non-parole period of 5 years. Because "the standard non-parole period represents the non-parole for an offence in the middle of the range of objective seriousness" for such an offence, her Honour expressed an opinion according to that standard: Sentencing Procedure Act , s 54A(2). The appropriateness of that approach will be considered in the light of comments in Muldrock , discussed below. However, to assess the aggravated break, enter and steal as "just in the mid range of seriousness" for an offence of that kind was to fail to give appropriate weight to the various circumstances of aggravation, including not only those referred to by her Honour, but those noted by the Director. But for one factor, that would warrant intervention of this Court on the Director's appeal. The countervailing consideration is that, in written submissions handed up on sentence, the prosecution, under the heading "Accumulation and Totality" stated: "there is a parity issue on the home invasion offence of the 29 th such that Mr K should receive the same sentence": par 11 at p 7.
37The other person being sentenced was Mr Raad and it appeared that the stance taken by the prosecution was that the respondent should receive a non-parole period of two years in respect of "the home invasion charge", a submission which was imprecise as to which of the two charges in respect of Narwee was referred to (if it were not both). Counsel for the respondent referred to this concession in his submissions on sentence (Tcpt, 11/05/11, p 58(30)):
"Lastly your Honour I suppose the most difficult part in this exercise for your Honour may well be in terms of the issue of totality and issues of accumulation. ... [T]he Crown in his written submissions has submitted that effectively you could give my client a sentence in respect of the first matter I suppose akin to what Mr Raad received. Now I don't know whether your Honour necessarily agree[s] with that proposition but perhaps one way of addressing that would be if there was no concurrency between the 29 May offence and then the offences of 31 May that they were made cumulative if your Honour was contemplating perhaps a sentence of the order that Mr Raad received."
38The prosecutor also referred to this issue briefly in reply, stating (Tcpt, p 63(20)):
"... the reason that I argued parity was because his other offences are much more serious and I believe that the issue of totality would look at that so that is why I have suggested that there be a particular starting date. I agree that that's a matter for your Honour but that was the way I approached it."
39There is no doubt that the respondent's role in the Narwee offences was greater than that of each co-offender: so much was conceded by his counsel at Tcpt, p 50(5). That her Honour acted upon that basis is demonstrated by the fact that both his non-parole period and his overall sentence were longer by 12 months and 15 months respectively than those imposed on Mr Raad. So understood, there was an issue of proportionality, rather than parity. In this context, her Honour's reference to "parity" appears to have been reflected in the order with respect to accumulation, which required that the respondent serve 2 full years of the sentences for the Narwee offences, before the commencement of the sentences for the Lakes Hotel offences.
40A consideration of these submissions indicates that the "concession" was neither concise as to its import, nor was it treated by the parties, or by the trial judge, as in some way constraining the exercise of her discretion. In the circumstances it can be disregarded.
41The circumstances set out above demonstrate that the "home invasion" was an offence aptly described as being within the middle range of objective seriousness of aggravated break, enter and steal offences, depending on how broad a band is identified: see Carlton at [19] above. This was on any view an offence requiring a non-parole period in the order of 5 years, taking into account the respondent's personal circumstances. The trial judge approached the matter on the basis that a discount of 12.5% was appropriate for the plea of guilty. That approach was not challenged on appeal. The resultant non-parole period is, in round terms, 4 years and 4 months. Absent special circumstances, that would call for a further term of 17 months, giving a total sentence of 5 years and 9 months. For reasons which are explained below, the structure of the sentencing should not be varied to take account of the greater sentence for this offence. Accordingly, there is no basis for a finding of special circumstances and the sentence imposed should be that just identified.