R v Lulham

THE FACTS

1. The sentencing judge found the facts of the offending to be as follows (commencing at ROS 1): This is a quite unusual case. It is necessary to begin with some of the offender's own history. He was 40 years of age when he committed the acts charged against him which gave rise to the offence of wounding a person with intent to cause grievous bodily harm and a few matters of maliciously destroying property which are to be taken into account on a Form 1 and which I will take it into account in that way. The prisoner was born and raised in Melbourne by an uncle and aunt who later brought him to live in Sydney. He has no memory of his mother and only once met his father in his entire life. The uncle and aunt also raised one of his sisters with him but she left to live with her father when this offender was about twelve. He was bereft at the departure of the sister but he coped, though not very well. Things must have been poorly at home because he left home at the age of fifteen years and lived with friends on the streets. He was in trouble at seventeen in the Children's Court for some matters of break, enter and steal and stealing all of which offences were dealt with by putting him on probation for twelve months. He has no other criminal record at all including nothing at all for violence. He renewed acquaintance with a former school friend, Allison, when he was about eighteen and the two have been literally inseparable since. He went to live with Allison and her mother Liz in 1992 when he was about eighteen and he lived there until the time of this offence. Allison's father died in 1994 and her mother met a new partner and remarried. Liz's husband then...(not transcribable).. was the victim in this matter and the four of them lived in a house together. The prisoner was immensely grateful to Liz and Allison for providing him with a home and he felt very protective towards the two women. Liz the mother became increasingly ill and at the time of the offence was wheelchair bound due to the effect of a serious cardiac problem and the onset of dementia. The offender is a non-drinker and over many years took a dim view of the drinking of the victim in this matter and of other aspects of the conduct of the victim whom he believed to be having sexual activity with somebody other than his wife, Liz. A couple of days before the assault that the offender committed, he learned from Allison that the victim had been assaulting Liz and had also been touching Allison, the victim's adult stepdaughter, in sexual ways and that that had been occurring for at least two years. According to the agreed facts the victim came home from work at about 4pm on Friday 6 February and found the offender arguing with his wife, Liz. The offender said to the victim, "If Lizzy keeps waking me up or annoying me I'm going to hurt you." The offender said he was going to throw the victim out of the house. The victim said, "If you do that I'll get my brothers to come here and kick you out." The victim and his wife Liz started to leave the house to go to the movies. As they were leaving the offender said to the victim, "When you come back I'll have a surprise for you." Whilst the victim was out of the house, the offender entered the victim's bedroom and used a claw hammer to smash some belongings of the victim including a CD player and other small personal items which gave rise to one of the matters in the Form 1. At 4.45pm the offender sent a text message saying "You are the cunt startin without all this shit..it's not just me...it's me and Allison u. go thru...good luck with that" At 5.15pm the offender called his partner's sister Catherine and told her that he "had enough of this shit" and made threat towards the victim. He said "I've had enough". The offender said "He's going to get his three brothers to come and kick me out". Catherine attempted to calm him down. The offender said "I feel bad for trashing his shit, (I interpolate: a reference to the destruction of the victim's property)...I've had enough of this shit. I can't hit him if he's drunk because it'd be worse". Catherine continued to try to calm the offender down. The offender sent further text messages to the victim over an hour from 6.43pm. The first said: "Bring the cops...I don't care. It won't stop me from smashing you are face in...even when I get kicked out...I'll still get yu until the end of time...bring you are brothers, I'll still kill u before they kill me. That will leave me and Allison kick u out u drunk no good scum bag...oh by the way Allison is an exutor of Lizys will so suck on that..I also told Katherine what's happening u, u dum shit": At 7.23pm another message said: "U threatened and [intimidated] Liz for years for money for the pokies and pushed her. I've seen this over the years...u made peace with me because I see thru your deception and lies u nu married Liz when I wasn't around...u can fool them but I know u...u slimey piece of shit". At 7.42pm he texted: "This is the last message I send...go back to caravan from waichu came from...you are not welcome here anymore and go to that bitch u been fuckin behind Lizes back...you are a cheating dog." At 9pm the victim and his wife returned home and parked the car at the top of the driveway. The offender was standing at the gate near the driveway. He smashed the passenger's side headlight on the victim's car with a claw hammer, the second malicious damage offence, and said "Try and tell the police now". The victim left the car, walked around to the other side of the car and helped his wife get out of it. The offender said "You can't come in here, fuck off". The victim said "Lizzy's the landlady and I'm her husband and we want to go inside". The prisoner reached over the top of the car door and hit the victim on the head with a hammer. He then hit him a second blow to the head. The victim stepped back, felt blood on his head and walked back down the driveway. He felt dizzy, sat on the fence and called the police. The police attended, arrested the offender and took him to the police station. He participated in a recorded interview where he stated amongst other things he picked the hammer up from inside the house and he was too angry to give a shit about the colour or type of handle of the hammer. He hit the victim twice in the head with the hammer. The victim had been touching his, the offender's "wife" this is a reference to Allison on the "ass and breast...says he can do what he wants". The victim was going to kick him out. He was pissed off about the last 17 years. I interpolate that this seems to be the period during which the four of them resided in the house. He smashed up the property in the victim's bedroom. He said "I just hope Ben's all right. It was out of rage. He pissed me off for 17 years. I snapped. That's the rap, I'm sorry for it." He did not want to make a handwritten statement. He said "Most of it's rage. I can't, it's fuzzy." The result of the attack on the victim was that he suffered a small bruise over the left temporal parietal area, a 2.5 centimetre laceration over the right parietal area and a non-displaced left occipital fracture, that is to the back of the skull extending into the mastoid air cells. He required stitches to the scalp laceration and conservative treatment for the occipital fracture. The solicitor for the Crown points out that the fact that the victim sustained injuries towards the lower end of seriousness for this type of matter and not more serious injuries was due to fortune, rather than design. Hitting a man twice in the head with a hammer is likely to do very serious harm indeed and could even threaten life. The maximum penalty is imprisonment for 25 years and to mark the intrinsic seriousness of the matter Parliament has prescribed a standard non-parole period of seven years.

EVIDENCE BEFORE THE SENTENCING JUDGE

1. The respondent's criminal history was before the sentencing judge. It recorded two matters before the Children's Court in 1991, neither of which involved an allegation of violence. The respondent has no history of criminal offending as an adult.
2. A pre-sentence report was also tendered before the sentencing judge. It recorded that the respondent accepted full responsibility for his offending, that he agreed with the facts, and that he stated that he had purchased a hammer with the intention of damaging a car belonging to the victim. The report continued: He demonstrated insight into his behaviour when he stated that the situation was "petty", however he said there had been a build up of resentment over several years and he became so angry that everything became a blur. He said that afterwards he was in shock and told the victim to get an ambulance. The offender said that he was ashamed of his bad behaviour and wished "he could take it back". He stated that he had been very worried about the victim. In retrospect, he said that should something similar in the future he knew to walk away.
3. A report of Gerry Wenzel, Clinical Psychologist, was also tendered in the respondent's case on sentence. Mr Wenzel noted that the respondent was not able to identify any pre-existing psychological or psychiatric disorders. He expressed the view that the fact that the respondent had acted aggressively on this occasion was seemingly a reflection of "a possible impulse control disorder which has at no time ever been diagnosed or treated".
4. In terms of the respondent's prospects of rehabilitation, Mr Wenzel said: Mr Lulham explained his feelings of remorse and contrition over his actions with him having a great deal of time to think about his actions whilst incarcerate (sic) for a two months period. He has already received a general practitioner mental health care plan and is currently on a waiting list for psychological treatment to focus on anger management. If this appropriate treatment is to be undertaken and completed, I am of the view that his long term prospects of rehabilitation are favourable.
5. Mr Wenzel concluded: In my clinical observation it appears that Mr Lulham may well have a mild form of learning disability which would explain why he was asked to leave school at the commencement of Year 10 rather than to complete his School Certificate. On the basis of his emotional functioning he appears to be someone who is relatively immature and who acted in a role of protector towards people whom he valued as close friends as they had always helped him and provided him with a home in which to live for many years. According to his descriptions, acting out violently is against his general nature and predisposition as he has never behave in this way before.

The seriousness of the respondent's offending

1. His Honour assessed the objective seriousness of the respondent's offending as "close to but just a little below a mid-range offence" (at ROS 7). In reaching that conclusion, his Honour said the following (commencing at ROS 5): What makes the case unusual is that despite a pretty hard background the prisoner has been for his entire adult life a completely law-abiding man and there was no suggestion he was ever given to violence or threats previously. The conclusions I draw are that he had long term animosity towards the victim for reasons that involved his perception that the victim was not the husband he should be to his wife, who had been a benefactor to the offender and was dearly loved by him. The domestic environment seems to be have been one of tension, involving the victim's drinking and in recent times the difficulty for all of them of living with a person with dementia. The prisoner had left school early, being encouraged to do so for poor performance, and he had struggled to find work although until recent years often succeeding in finding it. Unemployment would have added to the general pressures at home. Given his good character, something happened to set him off into a state where he fell into a quite unwonted rage and sustained it for several hours while it built up to the point where he armed himself for an attack on the victim and was prepared to hit him in the head with a hammer and to do it twice. I think that what set him off as an underlying factor was the recent discovery that the victim had been interfering with his beloved friend Allison to whom the victim stood in the relationship of her step-father. The immediate cause was the argument detailed in the facts and the prisoner's sense of fear and injustice that he should be expelled from the home where he had found love.
2. The sentencing judge also found that the offending was aggravated by a number of factors (commencing at ROS 6): The main aggravating features are that the victim's property was destroyed in his own home and that he was attacked in his own home, notwithstanding that that home was also the offender's home, and that there was a degree of premeditation. The rage which overcame him, while it may have left him "fuzzy" as to detail with the police, was not such as to put him into a blind and uncontrollable state. He did not control the rage which was very powerful. As I say, there was a degree of premeditation involved and sustained animosity. The prisoner had plenty of time to calm down and either rejected, or was unable to accept, the good offices of Allison's sister Catherine in that respect. A weapon was used which was particularly capable of causing grievous bodily harm. The offender's plea acknowledges that he intended to cause it to the victim. All offences of wounding with intent to cause grievous bodily harm are serious but, that said, there is a very wide range of circumstances in which the offence is committed. Frequently it arises from an immediate loss of control and resort to an ad hoc weapon like a beer glass. But it can involve premeditated, well planned use of a weapon designed to cause extremely grievous bodily harm.
3. It should be noted at this point that the sentencing judge's finding that the offending was aggravated by the fact that the victim was attacked in his own home raised the question of the proper interpretation of s. 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (NSW). In particular, it raised the question whether the fact that an offence occurred at a victim's home can be taken into account as an aggravating factor, in circumstances where the offender was not an intruder but was entitled to be at the victim's home at the time of the offence.
4. The same issue was raised in the matter of Jonson v R [2016] NSWCCA 286 which was heard on the same day as this matter. The Court heard submissions on this issue in the course of hearing both appeals. Those submissions are summarised in the judgment of Bathurst CJ in Jonson at [11]-[21]. The Chief Justice (with whom the other members of the Court agreed) concluded (at [40]) that the Parliament did not intend that the operation of s. 21A(2)(eb) be limited to circumstances where the offender was an intruder, either in the victim's home or in some other home. Accordingly, the offending in the present case was aggravated in the way in which the sentencing judge found.

The respondent's subjective circumstances

1. His Honour found (at ROS 5) that for his entire adult life the respondent had been a completely law-abiding person, and that there was no suggestion that he was ever given to violence and threats. His Honour expressly referred (at ROS 6) to the respondent's good character, and found that he had "repeatedly expressed his remorse for his conduct and had … expressed his concern for the victim's welfare". His Honour noted, in particular, the Crown's concession that the respondent's expressions of remorse were genuine.
2. His Honour also found that the respondent had pleaded guilty at the earliest possible opportunity and had acknowledged his conduct from the very outset, before going on to say (at ROS 6): He is entitled to 25% reduction for an early plea of guilty and in my opinion an additional reduction for the genuine remorse that he has must apply.
3. Finally, his Honour found that the respondent had "very good" prospects of rehabilitation, before observing that he had been on bail for approximately one year, reporting three times a week and having been "subject to some restrictions of his liberty".

The sentence imposed

1. His Honour concluded (commencing at ROS 7): He was in custody for a month and a half for the first time in his life at the age of 40 and, having regard to his genuine contrition I am quite satisfied that that period of incarceration would be entirely sufficient to deter him specifically from any repetition of a crime of serious or seriously intended violence on anyone else. The pains to which the prisoner was subjected in his young life have likely had the result that he is a person of limited capacity to deal with the concatenation of circumstances that put him into the rage that he so evidently felt. His efforts have been generally extremely creditable in overcoming those early tribulations but, it would appear, they have not been completely successful, and it is clear that he needs psychological treatment. With such treatment, in my opinion his prospects for rehabilitation are very good. He and Allison have moved out of her mother's home and are living elsewhere. He has been subject to some restrictions on his liberty by way of being on bail for about a year reporting three times a week. It is agreed on all hands that the matter is sufficiently serious to warrant punishment by pronouncement of a sentence of imprisonment. In my view it is sufficiently serious that actual imprisonment should be imposed. In my view it is a case where the requirements for general deterrence and denunciation on the part of the community are both insistent but properly to be greatly mitigated by this prisoner's own personal situation. The on-off (sic) nature of the offence, his previous good character and the general circumstances of the matter are such as to provide an overwhelming case for reduction of the non-parole period well below the prima facie 75% of the head sentence. The result of that would be on any view that a quite short non-parole period could be imposed. The Court should strain against actual imprisonment where the result of proper sentencing principle would be that the effective sentence must be very low. In my opinion we are dealing with an unusual matter and justice will be served by my making the orders I indicated at the outset.

THE GROUND OF APPEAL

1. The Crown appeal is brought upon a single ground, namely that the sentence is manifestly inadequate.

Submissions of the Crown

1. The Crown submitted that the sentence imposed upon the respondent was plainly unjust, so far below the range of sentences that could properly be imposed consistent with appropriate sentencing standards, and so manifestly inadequate as to be likely to undermine public confidence in the proper administration of criminal justice in the sentencing of offenders: Bugmy v R (2013) 249 CLR 571; [2013] HCA 37 at [24].
2. In advancing that submission, counsel for the Crown did not assert patent error. Rather, it was submitted that the sentence which was imposed was "an inadequate response" to the findings which had been made by the sentencing judge, having regard to the application of relevant sentencing principles. It was submitted, in particular, that the sentence: 1. failed to adequately reflect the objective criminality of the offending behaviour; 2. failed to adequately reflect the need for general and/or specific deterrence, and the need for denunciation of the offence; and 3. was indicative of the sentencing judge having given undue weight to the offender's subjective circumstances.
3. In developing these submissions, counsel for the Crown drew attention to the fact that the offence carried a maximum penalty of 25 years imprisonment, and a standard non-parole period of 7 years. It was submitted that these provisions provided an important yardstick in the determination of an appropriate penalty: Muldrock v R [2011] HCA 39; (2011) 244 CLR 120.
4. The Crown also pointed to the fact that the respondent's offending was characterised by: 1. the use of a claw hammer, a blow with which was clearly capable of causing grievous bodily harm; 2. the respondent striking the victim to the head with the claw hammer on two separate occasions; 3. the victim sustaining a non-displaced occipital fracture, and associated lacerations to the head; and 4. a level of premeditation.
5. The Crown also drew attention to each of the matters on the Form 1, pointing out they involved two separate attacks on the victim's property.
6. The Crown submitted that each of these matters had properly been taken into account by the sentencing judge, and that they supported his finding as to the objective seriousness of the offending. However, the Crown submitted that there was a significant disconnect between that finding, and the sentence which was imposed. The Crown also relied on the extent to which the sentencing judge had varied the statutory ratio between the head sentence and the non-parole period as a further indication of the manifest inadequacy of the sentence.
7. In the event that the ground of appeal was made out, the Crown submitted that the Court's residual discretion should not be exercised: CMB v Attorney-General for NSW (2015) 317 ALR 308; [2015] HCA 9 at [33]. In that regard, the Crown submitted that: 1. the imposition of the sentence was not caused or perpetuated by the representative for the Crown on sentence; 2. there had been no delay in the institution of the Crown appeal, or in the service of the notice of appeal; and 3. there was no other evidence bearing upon the exercise of the Court's discretion.
8. In advancing those submissions, the Crown acknowledged that the fact that the non-parole period had expired was a relevant factor in determining whether the relevant discretion should be exercised. However, it was submitted that the significant disparity between the sentence imposed, and that which was necessary to (inter alia) reflect the objective seriousness of the offending, was such that the residual discretion should not be exercised in the present case, and that the Court should intervene and re-sentence the respondent.

Submissions of the respondent

1. Senior counsel for the respondent submitted that the term of imprisonment which was imposed was clearly open to the sentencing judge, and that whilst the non-parole period was obviously favourable to the respondent, it was also one which recognised the entirety of the circumstances of the case.
2. Senior counsel submitted that the sentencing judge had in fact erred in his assessment of the objective seriousness of the offending. He submitted that the section under which the respondent was charged traversed a great diversity of offending behaviour and that properly assessed, the respondent's offending was within, or very close to, the low range.
3. Senior counsel further submitted that the finding of special circumstances made by the sentencing judge was clearly open, and that although the extent to which his Honour varied the statutory ratio was obviously favourable to the respondent, it was not so lenient as to disclose error. It was further submitted that the respondent's subjective case was significant because he: 1. was aged 40, and was a person of otherwise good character; 2. had experienced a number of difficulties as a child; 3. had expressed his remorse and concern for the victim's welfare; 4. had been subject to restrictions as a consequence of being on bail; and 5. had good prospects of rehabilitation.
4. In all of these circumstances, senior counsel submitted that the sentence imposed was not manifestly inadequate. He further submitted that if this Court came to a contrary conclusion, it should exercise its discretion not to intervene because: 1. the non-parole period had expired; 2. the respondent had already undergone lengthy rehabilitation.

Consideration

1. In my view, the finding of the sentencing judge as to the objective seriousness of the offending was open. The offending was characterised by the use of a weapon of a kind which was clearly likely to cause grievous bodily harm in the event that it was used to strike another person. Significantly, the respondent struck the victim not once, but twice, causing injuries which were significant.
2. Moreover, the offending was not spontaneous, and reflected some degree of planning. The initial confrontation between the respondent and the victim occurred at about 4:00pm, following which the victim left the premises. Between that time and the time of the victim's return, not only did the respondent damage the victim's property, he also sent a number of text messages to the victim. The terms of those text messages were set out in the reasons of the sentencing judge. The message sent at 6.43pm was particularly threatening towards the victim.
3. There is a significant disparity between his Honour's finding as to the objective seriousness of the offending, and the sentence which he ultimately imposed. In my view, even allowing for the respondent's subjective case, the sentence imposed was manifestly inadequate, and resulted from his Honour giving undue weight to the respondent's subjective case. I have reached this conclusion for a number of reasons.
4. Firstly, his Honour referred, on more than one occasion, to the fact that the case was "unusual" (see ROS 1, ROS 5 and ROS 9). It is apparent that his Honour reached that view because of the respondent's lack of criminal history, and his general subjective case. There was nothing of particular significance in the respondent's subjective case. Categorising the matter as "unusual" on that basis significantly overstated the position.
5. Secondly, his Honour found (at ROS 8) that the requirement to have regard to general deterrence was "greatly mitigated by this prisoner's own personal situation". There was nothing in the respondent's subjective case which mitigated the need to have regard to considerations of general deterrence. The inadequacy of the sentence imposed by his Honour is such that it would have little, if any, deterrent effect.
6. Thirdly, his Honour's finding (at ROS 8) that the Court "should strain against actual imprisonment where the result of proper sentencing principle would be that the effective sentence must be very low" tends to contradict his earlier finding (at ROS 8) that the matter was "sufficiently serious to warrant punishment by pronouncement of a sentence of imprisonment" such that "actual imprisonment should be imposed". Moreover, the proper application of sentencing principle should have resulted in a substantially greater sentence being imposed.
7. In all of these circumstances, I am driven to the conclusion that his Honour gave undue weight to the respondent's subjective case, leading to a result which failed to meet fundamental purposes of sentencing. Whilst his Honour was obviously bound to take the respondent's subjective matters into account, he was required to balance them against the objective seriousness of the offending. The sentence imposed reflects a failure to carry out that balancing exercise. In that regard, the observations of Howie J (with whom Simpson and Buddin JJ agreed) in SZ v Regina (2007) 168 A Crim R 249; [2007] NSWCCA 19 remain apposite: "4. There is a limited degree to which an otherwise appropriate sentence can be discounted for one reason or a combination reasons and yet result in a sentence that duly reflects the objective seriousness of the offence and the purposes of punishment. There was by applying common law principles, and there still is by the application of the provisions of the Crimes (Sentencing Procedure) Act 1991 (NSW), a bottom line beneath which a sentence cannot legitimately be set. If that bottom line is not respected, the sentence will fail to carry out the purposes of the punishment. …. 6. These observations are trite and so there is a risk that they will be overlooked in an attempt to achieve one of the purposes of punishment at the expense of another. I simply wish to emphasise that, because there is only limited room to discount a sentence without going below the bottom line, it must follow that the application of one discount for one purpose will inevitably impact upon the extent to which another discount can be applied to achieve a different purpose".
8. In my view, the sentence imposed by his Honour was well beneath the "bottom line" which was applicable to the circumstances of this case.
9. Further in my view, the error in imposing a sentence which was obviously manifestly inadequate was compounded by two further factors, namely: 1. his Honour's finding of special circumstances; and 2. the extent to which his Honour varied the statutory ratio between the non-parole period and the total sentence.
10. It would appear from his Honour's observations (at ROS 4) that he found special circumstances on the basis of: 1. the "one-off" nature of the offence (it is noted that the remarks on sentence refer to the offence being "on-off" which I have presumed is a transcription error); 2. the respondent's previous good character; and 3. the "general circumstances of the matter".
11. Whilst the offending was "one-off" in the sense that the respondent had no history of such behaviour, the fact remains that upon the victim's return to the premises, he was essentially set upon by the respondent and struck with the claw hammer. Even if the description of the offending which was adopted by his Honour was accurate, it is difficult to see how it had any bearing upon a finding of special circumstances. Moreover, the "general circumstances of the matter" upon which his Honour's finding of special circumstances was apparently partly based, were wholly unexplained.
12. There is no statutory definition of "special circumstances", but a finding that such circumstances are established is integrally linked with the determination of an appropriate non-parole period, that being the minimum period for which an offender must be kept in detention in relation to the offence: R v Dashti [2016] NSWCCA 251 at [84] per the Court (Beazley P, Garling and Fagan JJ). A wide range of factors are capable of constituting special circumstances: Dashti (supra) at [89]. However before a finding of special circumstances can be made, it is necessary for a sentencing judge to be satisfied that there exist significant positive signs which show that if the offender is allowed a longer period on parole, rehabilitation is likely to be successful as opposed to a mere possibility: R v Carter [2003] NSWCCA 243 at [20]; R v Tuuta [2014] NSWCCA 40; (2014) 239 A Crim R 399 at [57]). There was no evidence whatsoever which supported that conclusion in the present case. Indeed, his Honour does not appear to have addressed the issue at all. I am satisfied that, again relying upon the respondent's subjective case, his Honour elevated the respondent's circumstances to the category of "special", in circumstances where the evidence simply did not warrant it. The circumstances were not sufficiently special to warrant a departure from the statutory ratio: R v Fidow [2004] NSWCCA 172 at [20]-[22].
13. Moreover, even if special circumstances are made out, a sentencing court is not permitted to reduce a non-parole period to a level below that which is necessary to punish the offender, and act as a deterrent to the offender or others: R v Cramp [2004] NSWCCA 264 at [34]. The extent of the variation adopted by his Honour in the present case fell foul of that principle. A non-parole period is correctly to be seen as a mitigation of punishment in favour of rehabilitation through conditional freedom by parole. Ultimately, the non-parole period actually imposed must be the minimum period of custody appropriate to all of the circumstances of the offence: R v Zolfonoon [2016] NSWCCA 250 at [77] per the Court (Beazley P, Garling and Fagan JJ) citing Bugmy v R (1990) 169 CLR 525; [1990] HCA 18 and Power v R (1974) 131 CLR 623; [1974] HCA 26. Whilst personal deterrence was not an issue in the present case, the non-parole period imposed acts as no general deterrent at all. The minimum period of custody which was appropriate in the present case was substantially greater than that which his Honour imposed.
14. Finally, I have previously noted that the respondent asked the sentencing judge to take into account two additional matters on a Form 1, each of which related to separate acts of violence which caused damage to the victim's property. In Attorney-General's Application under s. 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518, Spigelman CJ (with whom the other members of the Court agreed) said at [18]-[19]: [18] A number of propositions with respect to the process of taking into account matters on a Form 1 are well established and are uncontroversial. First, the entire point of the process is to impose a longer sentence (or to alter the nature of the sentence) than would have been imposed if the primary offence had stood alone. Secondly, it is wrong to suggest that the additional penalty should be small. Sometimes it will be substantial. (See, eg, R v White (1981) 28 SASR9 at 13; Murrell v The Queen (1985) 4 FCR 168 at 179, per Blackburn J; R v Vougdis (1989) 41 A Crim R 125 at 128-129; R v Morgan (1993) 70 A Crim R 368 at 371-372.) [19] These authorities focus on the sentence that is appropriate for the charge on the indictment, with a view to increasing it by reason of the Form 1 offences for which guilt has been admitted. This can be characterised as a "bottom up" approach.
15. A sentencing court must impose a sentence for the totality of the criminality before it, reflected in both the principal offence for which the offender is to be sentenced, and any further offences which are to be taken into account. It is not the case that matters which are to be taken into account are to simply be noted in passing, or that little by way of additional penalty should be imposed by reason of their existence: R v Bavadra [2000] NSWCCA 292; (2000) 115 A Crim R 152 at [30] per Wood CJ at CL (with whom Beazley JA (as her Honour then was) and Greg James J agreed) citing R v Morgan (1993) 70 A Crim R 368 at 372 per Hunt CJ at CL.
16. In the present case, his Honour noted (at ROS 9) that he had taken the Form 1 matters into account. The sentence which was ultimately imposed on the respondent does not reflect any proper weight having been given to those matters.
17. For all of these reasons, the sentence imposed in the present case reflected: 1. undue weight having been given to the respondent's subjective case; 2. insufficient weight having been given to the seriousness of the offending and the need for general deterrence; 3. an erroneous finding of special circumstances; 4. a variation of the statutory ratio between the non-parole period and the total sentence which was both excessive and without justification; and 5. insufficient weight having been given to the matters on the Form 1.
18. The sentence imposed was manifestly inadequate. The ground of appeal has been made out.

THE RESIDUAL DISCRETION

1. It remains to consider whether this Court should exercise its discretion and decline to intervene. In determining this question I have had regard to the affidavit material filed on the respondent's behalf which establishes the following: 1. the respondent's non-parole period has obviously long expired; 2. the respondent's parole period expires in less than three months; 3. the respondent has complied with the condition of his parole which requires him to regularly report to Community Corrections; 4. as part of his rehabilitation, the respondent has been undergoing psychological treatment since July of this year. His treating psychologist has described adherence to the treatment plan as "mixed" but has nevertheless recommended continuing therapy. For his part the respondent has expressed the view that therapy has been of assistance to him, and that he wishes to continue it; 5. the respondent has the support of his long-time friend and housemate who has deposed to observing a change in the respondent's demeanour since he commenced psychological counselling.
2. I am satisfied that the respondent has made some progress in his rehabilitation since his release from custody. Whilst the offending warrants a substantial sentence of fulltime custody, including a substantial period of time to serve, returning the respondent to custody at this point would necessarily have a deleterious effect upon the steps he has taken towards his rehabilitation since the offence was committed.
3. In all of those circumstances I have concluded that this Court should exercise its discretion not to intervene and re-sentence the respondent.
4. I propose the following order: 1. The Crown appeal is dismissed.
5. N ADAMS J: I agree with Bellew J that although the sentence imposed in this matter was manifestly inadequate this Court should nonetheless exercise its discretion not to intervene and re-sentence the respondent. I agree with Bellew J's reasons save as for his Honour's observation at [54] concerning the need for "significant" positive signs that rehabilitation is likely to be successful before making a finding of special circumstances. That issue has already been the subject of additional comment by Bathurst CJ, Beazley P and Hall J and I do not propose to add anything further to what their Honours have said. I do wish, however, to make an additional comment regarding the commencement date of the sentence imposed by the sentencing judge in this matter.
6. The first two of the five factors enumerated by Bellew J at [61] as being relevant to the exercise of the residual discretion in this matter concern what at first blush would appear to be delay on the part of the Director in filing a Notice of Appeal. That is not the case. The respondent was sentenced on 11 March 2016 and the Notice of Appeal dated 31 March 2016 was filed on 1 April 2016. The fact that the respondent's non-parole period has long expired and his head sentence expires in less than three months is not due to any delay on the part of the Director. Rather, it is a result of the manner in which the sentencing judge backdated the sentence.
7. The respondent was arrested on 6 February 2015 and refused bail. He was released on conditional bail on 18 March 2015 and remained in the community on bail until he was sentenced on 11 March 2016. He had thus spent one month and 13 days in custody in relation to this matter at the time of sentence. The sentencing judge took this pre-sentence custody into account by imposing a non-parole period of one month and 13 days backdated to the date of arrest (6 February 2015) and an additional term of one year, 10 months and 17 days to commence on 19 March 2015 and to expire on 5 February 2017. This unconventional approach resulted in the period of time that the respondent spent on bail from 18 March 2015 until 11 March 2016 retrospectively becoming time that the respondent was deemed to have spent on parole.
8. That the sentencing judge was required to take into account the respondent's pre-sentence custody is uncontroversial: see ss 24(a) and 47(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW). This Court has observed that expressly backdating the commencement of a sentence to reflect the period of pre-sentence custody is the preferable approach to take to achieve this because an offender can readily see that the time has been taken into account: per Howie J in Wiggins v R [2010] NSWCCA 30 at [3], cited by Wilson J in Salafia v R [2015] NSWCCA 141 at [66]-[67].
9. The difficulty with the approach taken by the sentencing judge in this matter is that, instead of backdating the sentence imposed on 11 March 2016 by one month and 13 days to take into account the pre-sentence custody, his Honour backdated the sentence by more than a year. That approach, prior to varying the statutory ratio to reflect his Honour's finding of special circumstances, had the effect of taking into account time spent on bail as being pre-sentence custody. There was no suggestion before his Honour that the bail conditions to which the respondent was subject were analogous to "quasi-custody" in any way: R v Eastway (unreported, NSWCCA, 19 May 1992) per Hunt CJ at CL at 6-7; R v Delaney (2003) 59 NSWLR 1; [2003] NSWCCA 342 per James J at [23]. Nor would such a finding have been open on the evidence.
10. Putting to one side the length of the sentence and the finding of special circumstances, there was no error in and of itself in commencing the sentence from the earlier date; s 47(2)(a) Crimes (Sentencing Procedure) Act provides that a court may direct that a sentence commence "on a day occurring before the day on which the sentence is imposed." Despite this, as was conceded by counsel for the Director at the hearing of the appeal, the structure of the sentence rendered the Crown appeal a difficult one from the perspective of the residual discretion. For my part, the preferable approach would have been for the sentencing judge to have backdated the sentence one month and 13 days from the date of sentence.

Amendments 12 December 2016 - Amendments to citations in paras [9] and [10] and coversheet. 01 February 2017 - [7] -Typographical error corrected 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: 01 February 2017