Regina v Bennett

Factual Background 23The respondent and the principal victim, C, were associates and had known each other for a considerable time. They shared an interest in illicit drugs, and the respondent purchased cannabis from C from time to time. 24C resided in premises in Orange. He lived at those premises with his 14 year old son, O. His eight year old daughter, V, visited regularly and was staying with him on the night of the offence. 25On 18 November 2012, the respondent consumed a substantial quantity of alcohol. During the afternoon he made a number of attempts to contact C for the purpose of acquiring cannabis. He made a series of telephone calls that went unanswered. This would appear to have agitated the respondent. As the afternoon went on, his frustration escalated. By 8.28 pm, the respondent had made as many as 11 unanswered calls. It would appear that one of the calls was answered by the victim's son. However, the call quickly became disconnected. By this time, the respondent had become incensed and was pursuing the victim with a degree of urgency. 26Together with another man, TM, the respondent walked to C's premises to confront him. The respondent banged on the front door and demanded entry. In fear, C and his children hid in the rear bedroom. C's son O hid in the wardrobe, whilst his daughter hid beneath the covers on the bed. C himself hid under the bed. He instructed his son to call triple-0, which he did. Much of what followed was recorded by the triple-0 operator. 27The respondent opened a glass sliding door at the rear of premises and made his way to the bedroom. He dragged C out from underneath the bed by his legs and began punching him. C resisted. The respondent was screaming and threatening C, including threats to use a shotgun. I note, however, that there is no evidence that a firearm was actually present. The children were understandably terrified by the attack and their screams are heard on the triple-0 recording. 28The sentencing judge observed: "The Offender charged into the bedroom and dragged him out by the legs and started punching him. At the time he was screaming and threatening C. C understandably resisted. Much of this interaction is recorded by the triple-0 operator who had been called by C. The mobile phone was still on and connected. It was in that bedroom. Many of the words are indiscernible, some are very clear. The screams of fear and panic were chillingly clear. I am of the view that what could be heard gives considerable insight as to the ferocity of the attack and the terror that it instilled. I also accept that the Offender eventually stopped assaulting and screaming at C once he examined C's telephone and realised an effort had been made to call him back. The Offender stated he did not realise there were children present. I find that difficult to accept. The screaming was chilling and loud to the extent it was recorded by the triple-0 recipient who was on the end of the line connected to the phone which was under the bed. Those present must have heard it. The Offender says not so because of the shouting and screaming between he and C. I do not accept that his realisation was as latent as he says. He ignored the children. The prompt for him to leave was the message, discovering the message on the phone, the attempted return calls; that which was the focus of his tirade. He left shortly after that. I also accept there was reference to the use of a shotgun and threat that it would be used upon C. Indeed this was admitted by the Offender in cross-examination in the trial where he conceded that he did threaten C; in that at the time he said 'Tony pass me the gun'. He said these words because he wanted to scare him. He conceded the language but denied hitting or punching C. Whilst he says there was no firearm, he said that he said those words ... to instil fear. He certainly achieved that." 29The respondent was arrested in the early hours of 19 November 2012.

The Sentencing Hearing and Remarks on Sentence 30The respondent was 31 years' of age at the time of the offence, and 32 at the time he came to be sentenced. The respondent gave evidence at the sentencing hearing. 31His Honour made factual findings relevant to the objective seriousness of the offence. These included that the intimidation was ongoing and that it involved the use of violence upon C. Further, it was accepted that gun threats were made, and that the offence was committed in company. In relation to the aggravating factors set out in s 21A(2) Crimes Sentencing Procedure Act 1999, his Honour recorded a finding that the respondent must have known there to be children present at the time of the offence (s 21A(2)(ea)). However, the learned sentencing judge declined to make a finding that the offence was committed in the victim's home for the purposes s 21A(2)(eb), on the basis that this was an element of the offence. His Honour also declined to make a finding that the emotional harm or injury sustained by the victims was substantial for the purposes of s 21A(2)(g). Ultimately, his Honour assessed the offence as "falling within the lower range of objective seriousness" (ROS 11). 32In relation to the respondent's subjective case, the sentencing judge noted that he did not have a significant record of previous convictions, and that he had relatively good prospects of rehabilitation by reason of his young age. His Honour also accepted that the respondent had shown remorse for his behaviour. 33In assessing the harm occasioned by the offence, the learned sentencing judge referred to victim impact statements made by C, his son O and his daughter V respectively. His Honour noted that the statements "provide considerable insight as to the magnitude of the impact this offence has had upon each of those victims" (ROS 15). The sentencing judge also referred to findings made in the reports of two psychologists who had assessed V and O. These findings included the fact that both children had suffered symptoms consistent with post traumatic stress disorder and other complications following the offence. 34His Honour referred to a pre-sentence report dated 10 October 2013. It documented the respondent's substance abuse, notably his recent addiction to cannabis. The report noted, however, that the respondent had remained abstinent whilst on bail and had indicated a willingness to undergo counselling. The report also documented the respondent's depression, which remains stable when on his medication. The report assessed the respondent as being a medium risk of re-offending. 35A finding of special circumstances was made pursuant to s 44(2) Crimes Sentencing Procedure Act 1999 on the basis of the respondent's young age, his need for ongoing assistance to overcome alcohol and substance abuse, and the fact that it was his first time in custody. Moreover, his Honour backdated the commencement of the sentence to take account of time served after his arrest. 36His Honour sentenced the respondent to a term of imprisonment comprising a non-parole period of two years commencing on 27 April 2013 and expiring on 26 April 2015, with a balance of term of three years commencing 27 April 2015 and expiring on 26 April 2018. Thus, the overall sentence was five years.

Grounds of Appeal 37The Crown has advanced five grounds of appeal, namely: Ground 1: The sentencing judge erred in failing to find that the injury, emotional harm, loss or damage caused by the offence was substantial leading to the imposition of a sentence that was manifestly inadequate. Ground 2: The sentencing judge erred in failing to find as an aggravating factor that the offence was committed in the home of the victim, leading to the imposition of a sentence that was manifestly inadequate. Ground 3: His Honour erred in his classification of the objective seriousness of the offence which led to the imposition of a sentence that was manifestly inadequate. Ground 4: His Honour erred in his approach to a finding of special circumstances pursuant to s 44 Crimes (Sentencing Procedure) Act which led to the imposition of a sentence that was manifestly inadequate. Ground 5: The sentence is manifestly inadequate.

Ground 1: His Honour erred in failing to find that the emotional harm caused by the offence was substantial. 38The Crown submitted that the emotional harm sustained by V and O as a consequence of the offence was substantial and went beyond what an ordinary person would be expected to experience following an aggravated break and enter. In support of this submission, the Crown referred to the respective victim impact statements of each child and the evidence of the two psychologists. In particular, the Crown pointed to the diagnosis of post traumatic stress disorder made in relation to V for which she has received medication, and the suicidal thoughts she described in her victim impact statement. The Crown also pointed to the depression and anxiety experienced by O. 39It was submitted by counsel for the respondent that the sentencing judge considered all the material tendered by the Crown and applied the relevant test. It was submitted that the sentencing judge was well placed to make the finding he did, having heard the evidence at trial, listened to the triple-0 call and read the expert reports. Counsel submitted that it was open to his Honour to find that the emotional harm was within the range of responses to be expected in the circumstances. 40In R v Youkhana [2004] NSWCCA 412, Hidden J (McColl JA and Levine J agreeing) said (at [26]): " ... before a judge could find 'substantial emotional harm' within the meaning of s 21A(2)(g), one would expect evidence specifically directed to that issue. Normally, this would be in the form of a victim impact statement. Whether that evidence established the aggravating factor would be a matter to be determined in the circumstances of the particular case. However, it would need to disclose an emotional response significantly more deleterious than that which any ordinary person would have when subjected to an armed robbery." 41Further, in Regina v Solomon [2005] NSWCCA 158; (2005) 153 A Crim R 32, Howie J (Grove and Latham JJ agreeing) said (at 37-38 [20]): "Nothing in Youkhana should be taken to suggest that the normal or assumed effects of an armed robbery upon a victim are not substantial. The case is simply authority for the proposition that, in order to avoid double counting of aggravating factors, the court cannot take into account as an aggravating feature of a particular crime the effects upon a victim that would be expected to result from the commission of that type of offence. There may be cases at the margin where some judgment might have to be made about whether the severity of the effect of a particular offence on a particular victim is such that the offence should be considered to be aggravated." 42In relation to s 21A(2)(g), the learned sentencing judge said the following in the present case (ROS 12): "As to (g) I am not satisfied that there has been 'substantial injury' as required by the legislature. The psychological material and victim impact material provided is relevant and I take it into account. The injuries suffered in my view are not beyond those which could be expected to be suffered in the circumstances and as a result of an offence of this nature." 43In my view, the harm sustained by the two children in this case is properly characterised as substantial for the purposes of s 21A(2)(g). The young girl was diagnosed with post traumatic stress disorder as a consequence of the offence. She continues to receive medication for this condition. She also reported suicide ideation in her interview with the psychologist. The psychologist concluded that the symptoms of post traumatic stress disorder "impact on her ability to function adaptively in all areas of her life". Similarly, the young boy also displayed symptoms consistent with post-traumatic stress. He also exhibited symptoms of depression. These are not merely transient injuries. The harm occasioned as result of the respondent's actions is pervasive in its impact on these children's lives and may have continuing consequences for them. Therefore, I am satisfied that it is harm which is significantly more deleterious than the harm that may be expected to result from an offence of this kind. 44Accordingly, this ground of appeal is upheld.

Ground 2: His Honour erred in failing to find as an aggravating factor that the offence was committed in the home of the victim. 45As referred to above (at [31]), the learned sentencing judge declined to make a finding for the purposes of s 21A(2)(eb) that the offence was aggravated by reason of it having been committed in the home of the victim. His Honour's reasoning was that he was precluded from taking that into account as an aggravating feature because it was an element of the offence. 46The Crown submitted that it was an error to find that it was not capable of constituting an aggravating factor. In support of this submission, the Crown referred to the decision of Barr AJ in R v Palijan [2012] NSWCCA 142 at [21] (McClellan CJ at CL and Hislop J agreeing), which it asserted was authority for the proposition that a sentencing judge can regard the fact that the offence was committed in the home of the victim as an aggravating factor for an offence under s 112(2). 47In Palijan, the offender pleaded guilty to an offence of break and enter and commit a serious indictable offence (intimidation) in circumstances of aggravation, namely that he used corporal violence on the victim. In response to a submission that the sentencing judge in that case had erred in finding that the offence was aggravated on the basis that the offence was committed in the victim's home, Barr AJ stated (at [21]) that, "[t]he element of breaking and entering in s 112(2) Crimes Act does not require that the premises be the home of the victim". 48It was submitted on behalf of the respondent that his Honour was correct to distinguish Palijan. In Palijan, the circumstance of aggravation that was charged in the indictment was the use of corporal violence. Whereas in the present case, the circumstance of aggravation as charged in the indictment was that the respondent knew there to be persons in the house. Counsel for the respondent submitted that there was a real risk of double counting if the sentencing judge were to take into account the offence having been committed in the home of the victim as an aggravating factor for the purpose of s 21A(2) in the present case. Such a risk was not present in Palijan. 49The indictment in the present case was in the following terms: "On the 18th day of November 2012, at ORANGE, in the State of New South Wales, did break and enter the dwelling house of [C] situate at [address], Orange, and then in the said dwelling house did commit a serious indictable offence, namely, did intimidate C, in circumstances of aggravation, namely, he knew that there were persons present within the said dwelling house." [emphasis added] 50In his remarks on sentence, the learned sentencing judge said the following in respect of s 21A(2)(eb) (ROS 12): "As to (eb) I do not so find. In my view that is an element of the offence and to take that into account would result in double counting. The submission that the children are entitled to feel safe and secure in their home is accepted but not to the extent of promoting a finding of aggravation under this sub paragraph". 51Section 21A(5) provides that the fact that any aggravating (or mitigating) factor is relevant and known to the court does not require the court to increase (or decrease) the sentence for the offence. 52In circumstances in which the indictment pleaded the fact that the offence charged under s 112(2) of the Crimes Act 1900 involved the dwelling house of C that enabled the court to take into account, when determining the objective seriousness of the offence, the fact that the offence involved the dwelling house in which C and his two children were present at the time of the commission of the offence rather than considering it as a separate aggravating factor. No error as contended for in ground 2 has in my opinion been made out. This ground should be dismissed. 53Since formulating and expressing my conclusion in relation to ground 2 as set out above, I have had the benefit of reading in draft the judgment of Simpson J in which her Honour concludes that the sentencing judge erred in finding that the fact of the offence occurring in the home of the victim was an element of the offence and therefore not an aggravating factor within s 21A(eb) of the Sentencing Act. 54In the circumstances in which I have reached a contrary conclusion, I set out below in greater detail the analysis which has led me to the conclusion which I have expressed in relation to ground 2. I do so, in particular, by reason of the fact that offences under s 112(1) and (2) of the Crimes Act are, unfortunately, not uncommon.

Analysis 55In my analysis, the following matters are to be taken into account: (i) Section 112 of the Crimes Act finds its place in Division 4 of that Act which is subtitled "Sacrilege and housebreaking". Section 105A, also within Division 4, contains a non-exhaustive definition of the term "building" ("... includes any place of Divine worship"), as well as definitions of the expressions "circumstances of aggravation" and "circumstances of special aggravation". (ii) For a conviction of an offence under s 112(1)(a) it has been accepted that the same act can be relied upon to prove both an element of the offence charged and a matter of aggravation: R v O'Donoghue (2005) 151 A Crim R 597; [2005] NSWCCA 62. That was a case in which the accused was charged with breaking and entering a dwelling and committing a serious indictable offence namely, assault occasioning actual bodily harm in circumstances of aggravation, being the use of corporal violence. (iii) Section 112(1) and (2) is concerned with offences involving the breaking and entering of buildings, that is: "... any dwelling-house or other building ...". The section refers to "dwelling-house" as a particular species of building to which it is directed distinct from any other form of building. (iv) As noted by McClellan CJ at CL (with whom Hidden and Johnson JJ agreed) in Firbank v R [2011] NSWCCA 171 at [35]), and as Simpson J has stated in this case at [8], under s 112(1) the Crown has to prove two elements: (1) the accused broke and entered into a dwelling-house; and (2) the accused committed a serious indictable offence therein. The word "therein" refers, inter alia, to the commission of a serious indictable offence inside a dwelling-house or other building (in this case the offence of intimidation). It is to be noted that the first element set out above has two components to it - one being the breaking and entering and the other being, relevantly, to this case, a dwelling-house into which the respondent broke and entered. (v) The "circumstances of aggravation" under s 112(2) pleaded in the present case was that "the alleged offender knows that there is a person, or that there are persons, in the place where the offence is alleged to be committed: s 105A(f) Crimes Act. (vi) The use of the word "any" in the phrase "any dwelling-house" in subparagraphs (a) and (b) of s 112(1) is not without significance. The word "any" in a statutory context may, generally speaking, be said to be a word that connotes a capacious concept rather than a restricted one. In this respect, see by way of example, Republic of Turkey v Mackie Pty Ltd [2012] VSC 309 at [33] per Vickery J. (vii) The Oxford English Dictionary meaning of "dwelling-house" includes "a place of residence; a habitation; a house not for business purposes". The word "home" is defined as including "a fixed place of residence": Shorter Oxford Dictionary. Accordingly, the concept of a place of residence is common to both the expression "dwelling-house" and "home". (viii) The Macquarie Dictionary definition of "dwelling-house" is: "noun. a house occupied, or intended to be occupied, as a residence." The primary definition of "home" in the Macquarie Dictionary is: "noun. a house, or other shelter that is the fixed residence of a person, a family, or a household." (ix) There is, in my opinion, no delineation or refinement to be properly made between an offence that is committed in "any dwelling-house" as referred to in s 112(1)(a) of the Crimes Act, and an offence that is "... committed in the home of the victim or of any other person" as found in the provisions of s 21A(2)(eb) of the Sentencing Act. Both provisions in each Act equally embrace or include a place that is a place of residence. The inclusion of the word "any" reinforces the amplitude of the ordinary meaning of "dwelling-house".

Discussion 56The Crown in its written submissions submitted as follows: "His Honour erred in finding it was an element of the offence and not capable of constituting an aggravating factor. It is submitted that this was an important aspect of aggravation of the offence pursuant to s 21A(2)(e) [sic] Sentencing Act, the significance of which is highlighted when regard is had to the effect of the offence on the children who lived in the house the respondent invaded; both of whom suffer from severe anxiety and feelings of physical insecurity as a result of the violation of their home." 57The submission in this paragraph, however, fails to acknowledge the fact that the sentencing judge in the present proceedings in assessing the objective criminality of the offence expressly addressed the effect of the offence under s 112(2) on the children who were in the house which the respondent invaded - not as an aggravating factor under s 21A(2)(eb) - but, appropriately, as part of the objective facts concerning the aggravated offence itself. The effect of the offence on the children who were present in the residence at the time of the offence, in other words, was not a matter which the sentencing judge left out of account or about which he made no assessment. In this respect the only grounds for criticism in the sentencing judge's approach pertain to the matters which I have earlier addressed in respect of grounds 1 and 3, namely the finding by the sentencing judge as to the extent of the harm to the children (Ground 1) and his Honour's ultimate assessment of the objective seriousness of the offence (Ground 3). 58The provisions of s 21A(2) of the Sentencing Act specify the aggravating factors to be taken into account in determining the appropriate sentence for an offence in subparagraphs (a) to (p) of that section. However, importantly, as earlier stated, the section prohibits additional regard being given to any such aggravating factor in sentencing if it is an element of the offence. 59There is a need for caution in determining what is integral to the elements of an offence under s 112. This requires consideration as to whether there is a statutory basis for a conclusion that a dichotomy exists, or a differentiation is to be made, between a dwelling-house and a home of a victim. If there is, then as Simpson J's judgment indicates, the aggravating factor specified in s 21A(2)(eb) applies in this case. If there is not, then the s 21A(2)(eb) aggravating factor has no application and it would clearly be erroneous on the sentencing of the respondent for it to be taken into account at all. 60This accordingly involves an issue of statutory construction of some importance. The presence of the suffix in s 21A(2): "The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence" is a statutory injunction that reflects a fundamental principle in sentencing law, namely, that in sentencing an offender there is to be avoided any potential for the offender being punished twice; in this case, in respect of the second element of the s 112(2) offence. As to the issue of double punishment see Pearce v R [1998] HCA 57; (1998) 194 CLR 610 at [40] to [43] per McHugh, Hayne, Callinan JJ; Gummow J agreeing at [61], contra Kirby J at [132]; Portolesi v R [2012] NSWCCA 157 per Beech-Jones J at [40] to [52] (with whom Basten JA and Harrison J agreed). (I note that these cases concerned the application of the principle in cases involving multiple offences.) 61In the determination of the issue concerning the aggravating factor relied upon by the Crown under s 21A(2)(eb), it is necessary to determine and to examine the basis for the conclusion that "there is no element of [the s 112(2)) offence] that the "dwelling house or other building" broken and entered is the home of the victim of the offence" (Simpson J at [8]). 62That in turn requires consideration, in particular, of the definition of "dwelling-house" in s 4 and the terms of s 112(1)(a) of the Crimes Act. 63I return to the question as to the elements of offences under s 112(1) and (2). The definition of "dwelling-house" in s 4 of the Crimes Act is clearly not an exhaustive definition and that expression plainly carries, inter alia, its ordinary meaning, that is, a place of residence or habitation. There are three reasons why this is so. First, the definition in s 4 employs the word "includes". Second, the structures or objects referred to in the definition in subparagraphs (a), (b) and (c) of s 4 are structures that probably do not fall within the ordinary notion of a "dwelling-house". Third, the definition of "dwelling-house" in s 4 of the Crimes Act cannot, in my opinion, operate as a control so as to diminish the substantive provisions in s 112(1) and (2). 64In Kelly v R (2004) 218 CLR 216 at 253; 205 ALR 274 at 302 McHugh J said: "... the function of a definition is not to enact substantive law. It is to provide aid in construing the statute. Nothing is more likely to defeat the intention of the legislature than to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of a substantive enactment. There is, of course, always a question whether the definition is expressly or impliedly excluded. But once it is clear that the definition applies, the better - I think the only proper - course is to read the words of the definition into the substantive enactment and then construe the substantive enactment - in its extended or confined sense - in its context and bearing in mind its purpose and the mischief that it was designed to overcome. To construe the definition before its text has been inserted into the fabric of the substantive enactment invites error as to the meaning of the substantive enactment." 65In Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628 at 635 Barwick CJ, McTiernan and Taylor JJ said: "The function of a definition clause in a statute is merely to indicate that when particular words or expressions the subject of definition, are found in the substantive part of the statute under consideration, they are to be understood in the defined sense - or are to be taken to include certain things which, but for the definition, they would not include. Such clauses are, therefore, no more than an aid to the construction of the statute and do not operate in any other way ... Consequently the effect of the Act and its operation in relation to dividends as defined by the Act must, we think, be found in the substantive provisions of the Act which deal with 'dividends'." 66The principles of construction associated with inclusive definitions are well-known and have been discussed by DC Pearce & RS Geddes in Statutory Interpretation in Australia, (7th ed, 2011). On the use of the expressions "means" and "includes", the learned authors there stated: "It is usual to find one or other of these expressions where a word or phrase is being defined in legislation. The orthodox and, it is submitted, the correct approach to the understanding of the effect of these expression is that 'means' is used if the definition is intended to be exhaustive while 'includes' is used if it is intended to enlarge the ordinary meaning of the word: Sherritt Gordon Mines Ltd v FCT [1977] VR 342 at 353; (1976) 10 ALR 441 at 455; Douglas v Tickner (1994) 49 FCR 509 at 519; 34 ALD 192 at 203; Gardner v R [2003] NSWCCA 199; (2003) 39 MVR 308. So, for example, if it were provided in an Act that 'bicycle' means a bicycle propelled by a 'motor', pedal bicycles would be excluded from the scope of the expression 'bicycle' for the purposes of that Act. On the other hand, the Concise Oxford Dictionary defines 'aeroplane' as a 'mechanically driven heavier-than-air flying machine'. If it were wanted to bring gliders within the scope of controls to be exercised over aeroplanes it would be necessary to adopt the form of definition 'aeroplane' includes a 'glider'. Here the reference to 'aeroplane' would encompass machines that normally fell within the word and would extend also to gliders which would not otherwise be covered." ([6.61]) 67Turning to the provisions of s 112(1) and (2), the fact that they apply to buildings in addition to dwelling-houses does not, in my opinion, determine, shape, diminish or alter the fact that in this case the dwelling-house in which the victim resided was integral to the second element of the offence under s 112(1)(a) identified in paragraph 55 above. 68Section 112(1), as earlier noted, expressly separates "dwelling-house" from any other form of "building" for obvious reasons. A place of residence has conventionally been regarded as tied to notions of individual privacy and the sanctuary of a person's home. The expression "house breaking" as earlier noted, forms part of the sub-title to Division 4 of Part 4 of the Crimes Act. There being no separate definition of "dwelling-house" in Division 4, the discussion above in relation to the definition of that term in s 4 of the Crimes Act applies to s 112(1) and (2). 69The fact that that section also applies to buildings other than dwelling-houses is not, in my opinion, of relevance when it comes to determining what is an aspect of the element of the offence under s 112(1) in a case of an offence of breaking and entering a dwelling-house. 70The provisions of s 21A(2)(eb), forming part of a separate Act, (the Sentencing Act), and which employ the phrase "in the home of the victim or any other person" cannot, of course, bear upon the interpretation of the expression in s 112(1), ("any dwelling-house"). Even if "dwelling-house" could be capable of carrying a broader meaning than the "home of the victim or any other person" in s 21A(2)(eb), the ordinary meaning of the former, in my opinion, clearly includes the latter. The fact that s 21A(2)(eb) is expressed so broadly (ie, home of the victim "or any other person") in my opinion renders it synonymous with the expression "any dwelling" in s 112(1). 71Finally, I note in R v Price [2005] NSWCCA 285 consideration was given to a charge under s 112(2) of aggravated breaking and entering and committing a serious indictable offence therein: the serious indictable offence was an offence of assault occasioning actual bodily harm. The circumstance of aggravation was that at the time he entered the dwelling the applicant knew that a person was present therein. The sentencing judge expressly included the use of violence in the offence as an aggravating factor, to be taken into account pursuant to s 21A(2). 72Although the facts of that case differed from the present, it is an illustration of the restriction arising under that provision. There, the Crown had contended that a second circumstance of aggravation was the use of corporal violence. Simpson J, with whom Johnson and Rothman JJ agreed, stated: "31 ... The offence with which the applicant was charged was, as I have indicated, of breaking, entering and committing an indictable offence. The indictable offence - an integral element of the offence with which he was charged - was assault occasioning actual bodily harm. This necessarily involves the use of violence. The use of violence could not, therefore, further aggravate the offence. Nor could it be used, under s105A, as a circumstance of the aggravation. It was already an element of the offence charged. The reason that s21A(2) prohibits reliance upon an element of the offence as an aggravating factor is plain: The elements of any offence have already been taken into account in the calculation of the maximum penalty applicable to the offence, and therefore of the approach to sentencing in any such offence: see R v Johnson [2005] NSWCCA 186 at [22]. 32 In my opinion, his Honour did impermissibly take into account the use of actual violence as an aggravating factor. This was an error in the sentencing process."

Conclusion 73Even if there be a fine-spun distinction between the two expressions referred to in the preceding paragraph, in my opinion such a distinction is not one that is capable of sweeping away on the facts of this case the fundamental statutory injunction in s 21A(2) to which I have earlier referred which prohibits on sentencing additional regard being given to any aggravating factor if it is an element of the offence. 74A reading of the remarks on sentence leaves no room for doubt that the sentencing judge repeatedly referred and had regard to the evidence which laid emphasis upon the fact that the break and enter was to the victim's home or dwelling-house, that his children were present as family members in the home, that the victim and the children took refuge in the rear bedroom of the victim's home and that the assault and intimidation took place in the victim's home. The facts relating to all such matters formed part of the factual matrix which, properly, were considered and assessed in determining the objective criminality of the offence. 75In my opinion, for the reasons set out above, to treat such matters as an aggravating factor under s 21A(2)(eb) would be to have additional regard to matters that were integral to an element of the offence, contrary to the statutory injunction in s 21A(2) itself.

Ground 3: His Honour erred in his classification of the objective seriousness of the offence. 76This ground asserts that it was not open to his Honour on the evidence to characterise the offence as "falling within the lower range of objective seriousness". The Crown submitted that such a finding failed to give effect to the various circumstances of aggravation that were present in this case. It was submitted on behalf of the respondent that the learned sentencing judge had regard for all the facts and circumstances bearing on this case, and that it was well open to his Honour to characterise the offence as he did. 77The principles to be applied to the resolution of a ground of appeal that seeks to impugn a sentencing judge's finding in relation to objective gravity were summarised recently by Simpson J in R v Fahda [2013] NSWCCA 86 at [4]: "The starting point in considering this ground must be recognition of the principle stated in Mulato v R [2006] NSWCCA 282 at [37] and [46]. Assessment of objective seriousness of an offence is the role of the sentencing judge. While such an assessment is not immune to appellate review, any interference with the findings of the sentencing judge must be founded upon one of the errors specified in House v The King [1936] HCA 40; 55 CLR 499: acting on a wrong principle, allowing extraneous or irrelevant matters to guide or affect the decision, mistake of facts, failure to take into account some material consideration, or production of a result that is unreasonable or plainly unjust, indicative in itself of a failure properly to exercise the power conferred." 78After considering the range of facts and circumstances that bore on the objective gravity of this crime, the learned sentencing judge said (ROS 11): "The Crown submits these and other factors puts the case into the mid range of objective seriousness. The Offender submits low end. There was corporal violence and children present. That resonates with seriousness. I also note however that the attack stopped as quickly as it started. It occurred over a relatively short space of time. Upon finally hearing C exclaim he had tried to call back, and upon showing the Offender the phone, the Offender appeared to accept that efforts had been made to return the calls. He then stopped. The offence was blatant, violent and terrifying, all apparently stimulated by something as innocuous as not returning phone calls. The Offender's conduct in carrying out these actions is extraordinarily if not perversely disproportionate to the situation. That said in all the circumstances this is a matter which I am prepared to categorise as falling within the lower range of objective seriousness." 79In evaluating the objective seriousness of the offence the particular matters that determine its nature and extent in this case include: (1) The initial fear which the respondent instilled into C and his two children by him banging on the door demanding entry soon after 8.30pm, on 18 November 2012 causing the children to hide in the bedroom, and C under the bed, the respondent at that time being "uncontrollably agitated" ROS at p 5. (2) The actions of the respondent breaking into the house, knowing that young children were present, charging into the bedroom and pulling or dragging C out by the legs. (3) The respondent's further assault upon C by punching him and at the same time screaming at him and threatening him, all plainly within the hearing of the children. This led, understandably, to C resisting the respondent all of which no doubt contributed to the frightening commotion and disruption taking place. The triple-0 recording picked up the screaming. His Honour observed: "The screams of fear and panic were chillingly clear". ROS at p 6. (4) The fact, as found by his Honour, that during the respondent's tirade there was reference to the use of a shotgun and a threat that it would be used on C. The respondent conceded during cross-examination using the words "Tony pass me the gun". He said he said these words because he wanted to scare him: ROS at p 6. 80As to the harm inflicted on the children, I note that the report of Ms Brown, Psychologist in relation to V, and the Expert Certificate of Ms Bourne, Psychologist, indicate that both children have attended counselling sessions over a number of sessions. 81In relation to the child V, her account to Ms Brown confirms the level of terror she experienced. She told Ms Brown that she thought "her brother and father were going to die" and that she was "overwhelmed by fear and losing control of her bladder while experiencing a freeze response to the violence during the home invasion": at p 2. 82Assessment tests established "generalised anxiety, hyperarousal and worry, as well as specific fears": at p 3. 83Following referral to Dr Shah, Psychiatrist, V was diagnosed with Post Traumatic Stress Disorder. Such a condition was still operative as at the last consultation on 2 October 2013, the date of Ms Brown's report. 84The child O's history to Ms Bourne exhibits similarities to V's account. As at the date of the last consultation (19 September 2013), O was self-reporting symptoms that were "in the severe range for depression, anxiety and stress". 85Each of the factual matters referred to in 79-(4) are objectively serious. These, in combination with the psychological impacts upon the two children, in my assessment, put the objective gravity of the offence under s 112(2) at a higher level than lower range of objective seriousness as determined by the sentencing judge. 86I note that there is an overlap between grounds 1, 3 and 5 and that is a matter to be taken into account.

Ground 4: His Honour erred in his approach to special circumstances pursuant to s 44 Crimes (Sentencing Procedure) Act. 87The learned sentencing judge found special circumstances on the basis of the offender's relatively young age, the need for an extended period of supervision to address his drug and alcohol problems, and the fact that it was the respondent's first custodial sentence. After taking these matters into account and adjusting the statutory ratio, the non-parole period arrived at by his Honour constituted 40% of the head sentence. 88The error asserted by the Crown under this ground is that his Honour double counted matters that he had already considered for the purposes of determining the head sentence, namely the offender's age, prior good character and lack of previous custodial sentences. Counsel for the respondent submitted that several of the bases relied upon by the sentencing judge in support of an adjustment of the statutory ratio were, in fact, consistent with written submissions of the Crown at the sentencing hearing. 89In relation to special circumstances, his Honour made the following findings (ROS 24): "I accept this Offender is facing a goal sentence for the first time. The Crown submits I might also find relevant the Offender's ongoing need for supervision and his relatively young age. I am of the view that these factors and the overall need for a lengthy period of rehabilitation as to his drug and alcohol relapse need to be addressed with ongoing and focus [sic] vigilance and that he will thus benefit from a longer period on parole." 90His Honour considered the rehabilitative steps that had been taken by the respondent in relation to his drug and alcohol problems in relation to the assessment of his subjective case (ROS 13, 17 and 19). This did not preclude a finding of special circumstances to foster further rehabilitation upon his release. Additionally, his Honour considered the respondent's lack of previous convictions as a mitigating factor under s 21A(2)(e). Similarly, this did not preclude a finding of special circumstances on the basis that this was to be the respondent's first custodial sentence, thus making his sentence more onerous than might ordinarily be anticipated. Finally, in relation to the respondent's age, the Crown submitted at first instance that this was a matter that the sentencing judge might find relevant for the purposes of s 44(2). The Crown ought not be permitted to retreat from that submission in this Court. 91Therefore, I am not of the view that the learned sentencing judge erred in his assessment of special circumstances. When read as a whole, I am not satisfied that the sentencing remarks reveal any double counting of any of the matters his Honour considered in finding special circumstances. 92Once a finding of special circumstances has been made, the extent of any adjustment of the statutory ratio is a matter for the sentencing judge. In Clarke v R [2009] NSWCCA 49, McClellan CJ at CL (James and Adams JJ agreeing) said (at [13]): "This Court has explained on many occasions that the extent of any adjustment to the statutory requirement is essentially a matter within the sentencing judge's discretion. In R v Cramp [2004] NSWCCA 264 at [31] Spigelman CJ said that an adjustment for special circumstances 'raises so many matters of a discretionary character that this Court should be very slow to intervene.' Only if the non-parole period provided is manifestly inadequate or manifestly excessive should this Court intervene: Cramp at [36]; R v Fidow [2004] NSWCCA 172 per Spigelman CJ at [19]." 93The Crown submitted that the sentencing judge erred in reducing the non-parole period to 40% of the head sentence in this case, and that the non-parole period failed to reflect the criminality of the offence. In relation to the level of adjustment made by the sentencing judge, it is submitted on behalf of the respondent that his Honour had the benefit of hearing the respondent give evidence as to his remorse and his attempts to rehabilitate himself in relation to his drug and alcohol abuse, evidence which his Honour accepted. Thus, it was submitted that it was open to his Honour to make the adjustment he did.

Ground 5: The sentence is manifestly inadequate 94The Crown submitted that, having regard to the circumstances of this offence - that it was an unprovoked, violent home invasion on residential premises in which children were present - a head sentence of five years with a non-parole period of two years was manifestly inadequate and failed to reflect the criminality involved. Further, it was submitted that his Honour gave insufficient consideration to the five-year standard non-parole period. 95Counsel for the respondent submitted that the learned sentencing judge had regard for all relevant considerations and that the evaluative finding made by his Honour was open on the evidence. His Honour had the benefit of seeing key witnesses give evidence (both at trial and at the sentencing hearing). Further, counsel submitted that s 112(2) can encompass a broad range of offences with varying levels of criminality. It was submitted that a head sentence of five years is not insubstantial, and was within the range of sentences for comparable cases. 96This ground also overlaps with grounds 1 and 3. I have taken it into consideration in relation to those two grounds. As discussed below, I have concluded that the sentence imposed should be set aside and the respondent re-sentenced by this Court.

The residual discretion 97The principles applicable to Crown appeals are well established. In Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, French CJ, Crennan and Kiefel JJ stated (at 465-466 [1]): "The primary purpose of appeals against sentence by the Attorney-General or Director of Public Prosecutions (Crown appeals) under s 5D of the Criminal Appeal Act 1912 (NSW) is 'to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons'. That purpose distinguishes Crown appeals from appeals against severity of sentence by convicted persons, which are concerned with the correction of judicial error in particular cases. The Court of Criminal Appeal of New South Wales, in the exercise of its jurisdiction under s 5D, has a discretion to decline to interfere with a sentence even though the sentence is erroneously lenient. That discretion is sometimes called the 'residual discretion'." 98Their Honours continued (at 477 [35]): "In a Crown appeal against sentence in New South Wales, the Court of Criminal Appeal is invariably asked to exercise its powers under s 5D of the Criminal Appeal Act to impose upon a convicted person a heavier sentence than that imposed by the primary judge. Assuming the Court of Criminal Appeal considers the sentence under appeal to be inadequate on account of error by the primary judge, two questions arise. Their answers involve the exercise of the different discretions conferred by s 5D. They are: 1. Whether, notwithstanding the inadequacy of the sentence, the Court should decline, in the exercise of its "residual discretion" under s 5D, to allow the appeal and thereby interfere with the sentence appealed from. 2. To what extent, if the appeal is allowed, the sentence appealed from should be varied." 99Mr Johnston of counsel for the respondent submitted that, if error is found on the part of the sentencing judge, compelling reasons exist for exercising the residual discretion to decline to interfere with the sentence. An affidavit of the respondent was read at the hearing of the appeal. It details the steps that have been taken by the respondent towards his rehabilitation since entering custody. He has undertaken a number of courses and has also undertaken work. Counsel submitted that rehabilitative considerations carry some weight in this case. Disruption of an offender's rehabilitation is a relevant consideration in relation to the exercise of the residual discretion: Green v The Queen at 479 [43] per French CJ, Crennan and Kiefel JJ. 100The Crown submitted that there are no factors that would warrant the exercise of the Court's residual discretion to dismiss the appeal. 101I have taken into account the matters raised on the question of the discretion but in all the circumstances, and having regard to the matters raised in relation to grounds 1, 3 and 5, I consider, as discussed below, that this Court should not exercise the residual discretion in favour of the respondent.

Conclusions 102I do not consider that the head sentence imposed by the sentencing judge of 5 years to have been manifestly inadequate but that the non-parole period of 2 years representing 40% of the head sentence is manifestly inadequate to reflect the substantial objective seriousness of the offence and the need for specific and general deterrence. Accordingly, I would uphold ground 3. 103I consider that the finding of special circumstances made by the sentencing judge was appropriate but that the variation in the statutory ratio under s 44(2) Crimes (Sentencing Procedure) Act 1999 was not. 104I consider that the appropriate non-parole period should be a period of 2 years 9 months representing a ratio of the non-parole to the total term of the sentence of 50%. 105I propose the following orders: (1) The sentence imposed by the District Court on 11 October 2013 be set aside. (2) The respondent be re-sentenced to a non-parole period of 2 years 9 months commencing on 27 April 2013 and expiring on 26 January 2016 with a balance of term of 2 years and 3 months commencing on 27 January 2016 and expiring on 26 April 2018. The first date on which the respondent will be eligible for parole is 27 January 2016. 106HARRISON J: I agree with Simpson J and with the orders that she proposes.

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