"…in the early hours of the morning of 13 November 2002 the (applicant) did break into the residence of Ms Jacqueline Cooper at 103 Arthur Street, Wellington, and did take certain property of Ms Cooper and did place it ready to remove from the house and he did this whilst Ms Cooper and her young son were asleep in the house. What happened was that Ms Cooper awoke to find the (applicant) asleep on the floor of the bedroom and she was able to contact police in time for them to attend at the residence and apprehend him before he got away from the house with the property that he had removed from the drawers and from her bag although she did have a traumatic twenty minutes on the phone calling 000 whilst he awoke and rummaged around the house."
8 His Honour observed as to the objective seriousness of the offence:
"This was a break and enter of a dwelling house whilst the occupier was asleep. This is regarded as one of the most serious of offences and there can be no excuse or reason for such an intrusion into a place where people expect to be safe from harm and expect to be able to sleep peacefully and the community expects a strong deterrent punishment for any person who so deliberately attacks their security and puts people in fear and trepidation."
9 The applicant relies, in his written submissions, upon three grounds of appeal, namely, (a) "The sentencing Judge had insufficient regard to the applicant's subjective case and the principles enunciated in R v Fernando (1992) 76 A Crim R 58; (b) the sentencing Judge erred in failing to have regard to the applicant's protective custody in determining the length of the sentence to be imposed and in determining whether there were special circumstances; and (c) in light of the applicant's subjective case the sentence imposed is manifestly excessive."
Ground One
10 The applicant is an aboriginal man, born on 15 November 1961. He was thus 40 years of age at the time of the offences. He had an extensive criminal record since 1979 (the Crown suggested it consisted of 106 convictions). The convictions were for a variety of offences, including crimes of violence, stealing, larceny, break and enter, malicious damage, breaches of recognisance and drug offences.
11 The applicant had served several terms of imprisonment and at various times had received bonds. Notwithstanding this, his criminal activity continued unabated. Indeed the subject offence was committed whilst the applicant was on parole, following a term of imprisonment of 12 months for break and enter.
12 The applicant did not give evidence at the sentencing hearing. A psychiatrist's report was tendered, as was a Probation and Parole pre-sentence report.
13 The pre-sentence report stated that the applicant's response to supervision and guidance by the Probation and Parole service had generally been superficial and to no avail. The applicant, despite being advised in past years to attend for counselling, had not complied and despite a history of stated good intentions regarding resolving his drug problems when in custody, he had failed to seriously address that issue when in the community. It was concluded, "there remains a likelihood of his continuing to maintain his current lifestyle should he not accept professional intervention".
14 The principal submissions for the applicant on the first ground were based upon the principles in R v Fernando, this notwithstanding there had been no reliance upon those principles by experienced counsel at the sentencing hearing.
15 In Fernando's case, it was held:
"The same sentencing principles are to be applied in every case irrespective of the identity of a particular offender or his membership of an ethnic or other group but that does not mean that the sentencing Court should ignore those facts which exist only be reason of the offender's membership of such a group."
16 It was submitted the applicant had had a disadvantaged childhood by reason of his aboriginality. However, the history contained in the psychiatrist's report was that the applicant had a fairly good childhood, was close to his mother, never had any learning or disciplinary problems at school and completed year ten. It was not suggested on behalf of the applicant that the history, as recorded by the psychiatrist, was inaccurate. In the absence of any evidence by the applicant, his Honour was entitled to prefer the history obtained by the psychiatrist to that contained in the pre-sentence report which had stated the applicant was raised in a dysfunctional family environment, though it confirmed he completed schooling to year ten and stated he then completed three years of a carpentry apprenticeship.
17 The psychiatrist's report contained a history obtained from the applicant that "he used to be a heavy drinker, many years ago. He described himself nowadays as an occasional drinker". Alcohol was not a factor in this case.
18 The applicant did have a drug problem. The psychiatrist recorded a long-standing history of active poly-substance abuse; that prior to being taken into custody the applicant had been smoking cannabis and injecting heroin and amphetamines every day, and as much as he could afford. There was no evidence that such a problem existed only because of the applicant's aboriginality. The self-administering of drugs is more likely to aggravate than mitigate - R v Coleman (1990) 47 A Crim R 307 at 327, particularly where the offender is aware of the effect of the drugs upon him, as was the case here.
19 The applicant suffered from a chronic ear infection with associated hearing deficit. It may be accepted hearing deficiencies caused by unattended ear infections is endemic among Australian aborigines (R v Russell (1995) 84 A Crim R 386 at 393). The psychiatrist recorded a history that the applicant had been abusing sleeping pills for many years in order to cope with his chronic ear infection, and that he was very upset finding himself back in gaol just because of the sleeping pills again. Every time he took the pills, he would not know what he was doing. The applicant was thus well aware of the effect of the sleeping pills. Although the taking of such pills may have contributed to the bizarre or extraordinary conduct of the applicant in sleeping on the victim's floor, it does not make the applicant's serious criminal conduct any the less liable to be punished for what it is - R v Newell [2004] NSWCCA 183 per Howie J at [41].