Ground 4. The sentence imposed on the second charge is manifestly excessive.
42 The maximum penalty for an offence under s 112(1) of the Crimes Act is 14 years. The sentencing judge took the view that the offence was towards the high range, if not at the end of the mid-range, of seriousness (ROS 27). But for a 25% discount for his early plea of guilty, his Honour stated (ROS 34) that he would have imposed a term of imprisonment of 8 years. I would regard that starting point as consistent with his Honour's description of the seriousness of the offence to which I have referred.
43 As I have already observed, the sentencing judge under the heading "The need for general and particular deterrence" said this (ROS 27):
"There needs to be a strong warning, particularly in this area [i.e. Taree], that offences of this kind, to either feed a habit or to make gain and then to spend it, needs to be the subject of a heavy sentence."
44 This sentiment of his Honour was consistent with those authorities to which the Crown referred which establish the seriousness with which the legislature regards offences of the kind in question and for the need of the courts when sentencing in respect of such offences to send a very clear message to others who may be minded to conduct themselves in a similar fashion that if they come before the courts they will be punished severely: R v Hayes (1984) 1 NSWLR 740, 742-743; 11 C Rim R 187, 190.
45 Complaint is made that in imposing the particular sentence on the applicant his Honour took into account that the applicant had chosen to serve his term of imprisonment in isolation in custody for his own protection, apparently because of earlier incidents whilst in custody. His Honour (ROS 31) recognised, therefore, that his time in prison would be harsher for him because of that choice. However, the Crown has submitted, and the applicant does not deny, that he has never been placed on any type of restriction and has been housed as a normal discipline inmate since the commencement of his sentence. Further, he has the same employment, educational and program access as all other normal inmates.
46 As the applicant acknowledged, the sentencing judge referred in some detail to his life history, which demonstrated his disturbed and deprived background. His Honour considered a pre-sentence report of Mr David Leary, senior counsellor and director at the Come In Youth Resource Centre. Mr Leary concluded that the applicant had had a "tragic life, imbued with significant abuse and violence, abandonment and neglect from his earliest years. These events echo through his life on a daily basis and overcoming their impact seems an almost impossible task for him".
47 His Honour, on the basis of Mr Leary's evidence, described the applicant (ROS 23) as:
"being a cunning and angry man. His tragic life has made him quite concerned with the way he is treated by society. There have been great losses in his life and he has made positive attempts from time to time to change his life past but the memories of what has been done to him remain…He needs assistance in relation to his anger, and indeed I still believe in relation to his drugs and other matters. He expresses a desire to be a family man and care for his children. He sees injustices perpetrated upon him but makes promises to do better. He recognises that punishment and custody are the inevitable outcome of these very serious offences."
48 Although Mr Leary expressed the view that, leaving the current offences aside, the applicant had made some attempts during the past few years to do better for his children and live better as a citizen which was indicative of a desire to change that has been growing ever so slowly within the applicant over a number years, it is apparent that his Honour was not convinced that he had, as it were, turned the corner or that otherwise there were good prospects for his rehabilitation. In my opinion, it was open to his Honour to so find given the applicant's criminal history.
49 Whilst the applicant accepted that the sentencing judge referred to some of the detail of his upbringing, it was submitted that the sentence he imposed did not indicate that he gave sufficient weight to the applicant's "entrenched pattern of disadvantage and the effects of his unsatisfactory upbringing": R v Powell (2000) NSW CCA 108 at [17] per Smart AJ. However, the remarks of Smart AJ relied upon by the applicant have, with respect, been taken out of context. His Honour was doing no more than applying to the facts of the case before him, which involved a person of Aboriginal descent, the following principle applied by Wood J in Fernando (1992) 76 A Crim R 58 at 63:
"(t)hat in sentencing persons of Aboriginal descent the court … must nevertheless assess realistically the objective seriousness of the crime within its local setting and by reference to the particular subjective circumstances of the offender"
50 In the present case, the sentencing judge was clearly conscious of the deprivations suffered by the applicant particularly in his early years. Nevertheless, he was required to weigh those subjective matters against the objective seriousness of the crime in question including the enhancement of its seriousness by the cumulative effect thereon of the factors in the guideline judgment in Ponfield, which he considered applied to the applicant's conduct.
51 Finally, the statistics supplied by the Judicial Commission of New South Wales with respect to sentences imposed from January 1996 to December 2002 in respect of the offence of Break Enter and Steal pursuant to s 112(1) were tendered before his Honour. He noted (ROS 30) that he had taken those statistics into account.
52 The applicant submits that the statistics reveal that the head sentence of 6 years imposed by his Honour was in the top 5% of all head sentences referred to in the statistics and that the non-parole period of 4 years and 6 months was in the top 1% of all non-parole periods imposed for the relevant period. It was submitted that an analysis of the statistics makes it clear that the sentence imposed upon the applicant in the specific circumstances relating to his case was manifestly excessive.
53 Although I have some hesitation about the matter, I have concluded that the sentence imposed by his Honour did not fall outside the limits of the exercise of a sound sentencing discretion. It is true that the sentences so imposed are at the top of the range as revealed by the statistics to which I have referred. On the other hand, the objective seriousness of the particular offence was, as the sentencing judge found, towards the high range if not at the end of the middle range of seriousness. His Honour acknowledged (ROS 28) that he had taken into account and, he hoped, given "due emphasis" to the unfortunate background of the applicant and his anger against the whole judicial system that that has engendered in him. He had found that, in a manner which in my opinion was open to him, the applicant had a substantial reason for, and influence in, the organisation and execution of the offence. The applicant had a criminal history was indicative of a persistent offender, notwithstanding the suggestion by Mr Leary that there was some evidence that he desired to change his ways.
54 In all the circumstances, although I consider the head sentence to be on the high side, I do not believe that a lesser sentence was warranted. Given his Honour's finding of no special circumstances, a non-parole period of 4½ years was appropriate. In my opinion the sentence was in proportion to those imposed upon the applicant's co-offenders. In all the circumstances, I do not consider that error has been demonstrated as a consequence whereof Ground 4 should be rejected.