Regina v Kirkland

Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2000 Criminal Appeal Act 1912

Ibbs v The Queen ((1987) 163 CLR 447 Knight v The Queen (1992) 175 CLR 495 Pearce v The Queen (19998) 194 CLR 610 Regina v Ohar (2004) 59 NSWLR 596 Regina v O'Neill [1979] 2 NSWLR 582 Regina v Story [1998] 1 VR 359 CASES CITED: Regina v Szeto [1999] NSWCCA 296 Regina v Walters (1992) 62 A Crim R 16 Regina v Way (2004) 60 NSWLR 168 Regina v Wilkinson [2004] NSWCCA 83 The Queen v Olbrich (1999) 199 CLR 270 Veen v The Queen (No 2) (1988) 164 CLR 465

Mr W Dawe QC Crown COUNSEL: Mr G Jauncey Appellant

Mr S Kavanagh Crown SOLICITORS: Peter Maurice Murphy Appellant

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL

2004/3297 HUNT AJA GROVE J HALL J

1 HUNT AJA: In the District Court, Paul Matthew Kirkland pleaded guilty, together with his co-accused Trevor Bobak, to two charges: (1) maliciously inflicting grievous bodily harm to Richard Boyd Law with intent to do so; and (2) an earlier aggravated break and enter of Mr Law's dwelling and the stealing of a stereo sound system and speakers from that dwelling, the aggravation being that the two men were in company. The plea to the first of these offences was accepted by the Crown in discharge of a further count in the indictment charging both men with feloniously causing grievous bodily harm to Mr Law with intent to murder him. 2 The maximum sentence for the first of these offences is imprisonment for twenty-five years (Crimes Act 1900, s 33), and for the second it is imprisonment for twenty years (s 112(2)). Judge Keleman imposed a sentence on the applicant of imprisonment for twelve years with a non-parole period of eight years for the first of these offences, and a concurrent sentence of imprisonment for two years without a non-parole period for the second offence. Bobak received concurrent sentences of imprisonment for, respectively, sixteen years with a non-parole period of twelve years and two years and eight months without a non-parole period.

3 The applicant seeks leave to appeal against the longer of the two sentences imposed.

4 All three men, the applicant, Bobak and the victim, knew each other. On 5 September 2002, Bobak informed the applicant he suspected that the victim was in possession of a gold bracelet which had been given to his (Bobak's) daughter. The two men set out to retrieve this bracelet from the victim's unit. The victim was not there when they arrived, so Bobak kicked the door in at the urging of the applicant, and they took possession of the stereo system and speakers which were there. It happens that the stolen goods did not belong to the victim, but that is irrelevant.

5 After taking the stolen goods back to Bobak's unit, the two men sat at the dining room table in that unit discussing a plan to return to threaten the victim with a small gun which Bobak had made. Bobak told the applicant that this gun worked. On the table, and in full view of the applicant, there was a hand tool known as a plasterer's hammer. It consisted of a handle to which a hammer head was fixed to the top at one side and a small axe blade or tomahawk at the other side. Bobak's partner asked him, in the presence of the applicant, what they intended to do with the tool, to which Bobak replied "Nothing".

6 Later in the evening, the two men left Bobak's unit together in order to threaten the victim with the gun. They came on the victim as he rode a bicycle down an alleyway, and they set upon him. It is conceded that this was within a short time after they had left the unit. The victim was knocked to the ground, where Bobak struck him on the head repeatedly with the hammer head on the plasterer's hammer, causing a cut to his right eyebrow (three centimetres long) and multiple scalp lacerations and a fracture to the skull. Bobak then struck the victim once with the axe blade on that tool. The blade penetrated the victim's skull from just above his right ear, entering into the middle of his brain. The applicant was present when Bobak did so, and was yelling at the victim. The applicant then slammed the victim's head into the ground with the plasterer's hammer still embedded in his head and, according to the agreed admissions he made shortly afterwards, he stomped on the victim, jumped on his head twice and kicked him after they had been unable to remove the tool from the victim's head The two men dragged the victim into the gutter and left. The gun, which the judge described as a "toy" gun but which had a live bullet in a metal cylinder, was found nearby. Another live bullet was found on the footpath.

7 The victim was taken to hospital with the plasterer's tool still embedded in his skull. Grey brain matter was visible at the wound site. The victim underwent emergency neurosurgery, and it was discovered that his frontal brain lobe was vertically cleaved and severely damaged. The axe blade appeared to be wedged under the skull bone, and multiple loose skull fragments were present underneath the skull.

8 The victim was in hospital for about seven months. He was discharged to live with his mother, who had to leave her employment in order to become his full-time carer. He had suffered an extremely severe traumatic brain injury. This injury has had, as the judge described it, devastating effects on his life that are profound, pervasive and permanent, affecting his physical capacities, his mental state and function, and his quality of life. These consequences are, the judge found, likely to have an enduring and adverse effect on the formation and maintenance of relationships, his ability to engage in employment and any activities requiring concentrated mental effort. He will need intensive and long-term rehabilitation to increase his capacity to become independent. He is unlikely to be able to live safely without assistance, or to participate in open employment. There are insufficient community services to support him, and he may need institutional care such as a nursing home if his mother cannot continue to support him. He has developed depression, and has at times been diagnosed as acutely psychotic. He remains at risk of depression for the rest of his life, and there is a risk of suicide.

9 For the purposes of the sentence to be imposed, the judge made a general finding that the attack on the victim was a determined, sustained and an alarmingly callous, vicious and savage one, which involved prior planning and premeditation on the part of both offenders. The finding of prior planning and premeditation was relevant to the degree of culpability involved.

10 In elaboration of that general finding, the judge made two sets of factual findings. The first set of findings were: (i) that the two men prepared a plan to set upon the victim and to threaten him with the gun; (ii) that, at the time they left Bobak's unit, one of the offenders had armed himself with the plasterer's hammer to the knowledge of the other offender; and (iii) that, at least by the time the attack on the victim commenced, each of them, using the plasterer's hammer, intended to inflict on the victim the type of very grave harm which was in fact inflicted on him, knowing that he would be unarmed and virtually unable to defend himself from such an attack. So far as the applicant is concerned, the second in this set of findings must be interpreted as one that Bobak had the plasterer's hammer in his possession when they left his unit to the knowledge of the applicant. 11 The judge immediately went on to make the second set of factual findings: (i) that, although the applicant did not himself inflict the injuries on the victim, he was a participant in a joint criminal enterprise with Bobak to maliciously inflict grievous bodily harm to the victim with intent to do so; (ii) that the applicant knew, by the time the attack commenced, that Bobak was going to use the plasterer's hammer to attack the victim in the manner he did and to inflict on him the type of very grave harm which was in fact inflicted; and (iii) that, having such knowledge, he was present and participated jointly with Bobak in the attack on the victim. 12 The differences between the two sets of findings, so far as they concern the extent of planning and premeditation involved, are significant in various ways to the submissions made by the applicant in his application for leave to appeal. (A) Finding (i) in the first set of findings imputes to both offenders at the time they left Bobak's unit an initial plan to "set upon" the victim and to threaten him with the gun, whereas finding (i) in the second set appears to impute to both offenders an initial plan to maliciously inflict grievous bodily harm to the victim with intent to do so. (B) The expression "set upon" appears to have been the judge's own inference. It is not defined, but it obviously means some form of violence (albeit not with the plasterer's hammer). No complaint has been made concerning the expression used, and counsel appearing for the applicant in his application for leave to appeal accepted that it was an appropriate inference from the agreed facts. (C) It is not entirely clear from the judge's remarks on sentence just when the alternative initial plan referred to in the second set of findings (to inflict grievous bodily harm to the victim) was formulated but, in order to be consistent with finding (ii) in the second set of findings, it is necessary to interpret this alternative initial plan as having been agreed to only at the time the attack commenced. Such an interpretation considerably reduces the severity of the violence to the victim which had been planned and premeditated when the two men left Bobak's unit. (D) The first set of findings imputes to the applicant knowledge that Bobak had the plasterer's hammer with him from the time they left Bobak's unit, but it is important to note that the judge did not make any finding of fact that the applicant knew from that time that Bobak was going to use that tool in the way he did. It was not argued otherwise by counsel for the applicant. Although the applicant's knowledge that Bobak was in possession of the tool from the beginning could in some circumstances have extended the original joint criminal enterprise (merely to set upon the victim and threaten him with the gun) to include violence with that tool - if he had participated in that enterprise with the contemplation that such use of the tool in the way Bobak did use it was a possible incident in the execution of that enterprise - that is not how the judge approached it. Again, this considerably reduces the extent of the planning and premeditation involved at the time the two men left Bobak's unit. 13 The first submission by the applicant is that it was not open to the judge to find that, at the time they left Bobak's unit, he knew that Bobak had armed himself with the plasterer's hammer. Such a finding was a matter in aggravation of the sentence to be imposed. It therefore had to be established to the satisfaction of the judge beyond reasonable doubt: Regina v O'Neill [1979] 2 NSWLR 582 at 588; Regina v Story [1998] 1 VR 359 at 369; The Queen v Olbrich (1999) 199 CLR 270 at [27].

14 The applicant has argued that the evidence is insufficient for that purpose. He says that there was no specific statement in the agreed facts to that effect, and that the only specific statement there is that Bobak told his partner (when asked by her) that he intended to do nothing with the plasterer's hammer. That is so, but the judge was entitled to draw inferences from the agreed facts, and he was not obliged to accept that Bobak's statement to his partner genuinely expressed Bobak's intentions at that time.

15 The Crown has argued that the inference that the applicant knew, at the time they left the unit, that Bobak had armed himself with that tool was reasonably or rationally open from the fact that attention had been drawn to the tool during the time they were planning to set upon the victim and to threaten him with a weapon, together with concessions made by the applicant's counsel during the sentencing proceedings that (a) there was premeditation, in the sense that there was an agreed plan to set upon and to threaten the victim, and they had gone out searching for him to do so, (b) the applicant had joined in the attack with the tool, and had not tried to stop that attack, and (c) "given his subsequent actions he ha[d] adopted the use of the weapon".

16 Where a specific fact has to be established beyond reasonable doubt by inference, it is not sufficient that it is a reasonable or rational inference from the evidence. It must be the only rational or reasonable inference available from the evidence: Knight v The Queen (1992) 175 CLR 495 at 502-503, 509-510. I do not accept that the only such rational or reasonable inference from the evidence in this case is that the applicant knew, at the time they left Bobak's unit, that Bobak had armed himself with the plasterer's hammer. Bobak's partner heard the two men talking about using the gun to threaten the victim. In my opinion, another inference which is rationally or reasonably open is that Bobak brought the tool with him without the knowledge of the applicant for reasons he had not made known to the applicant, merely to threaten the victim before inflicting some other form of violence on him. There is no requirement that the less serious inference must be rationally or reasonably open to an equal extent as the inference on which the Crown relies is rationally or reasonably open: Regina v Walters (1992) 62 A Crim R 16 at 20.

17 A plan to threaten the victim with "a weapon", as the Crown has described it in its submissions, overlooks the circumstance that the only weapon referred to in the agreed facts is the gun made by Bobak. The gun, even if it did work, could not have been used to inflict the very type of very grave harm which was in fact inflicted, as the judge held. The second of the concessions by the applicant's counsel during the sentencing proceedings on which the Crown relies, that the applicant had joined in the attack with the tool, takes the matter no further in relation to the applicant's knowledge of either the presence or the purpose of the tool before Bobak used it to attack the victim. The third of the concessions, the subsequent adoption of Bobak's use of the tool to attack the victim cannot be used to establish a knowledge of that intention before it was so used. Nor does the cumulative effect of all three concessions taken together assist the Crown in this argument.

18 There was thus an error by the judge in making the finding that the applicant knew that Bobak had armed himself with the plasterer's hammer when they left the unit. But what is the effect of that error on the sentence imposed? If the judge's first set of factual findings is being considered, instead of there being planning and premeditation at Bobak's unit to inflict some unspecified form of violence to the victim, either - · there was knowledge by the applicant that Bobak was intending to use the plasterer's hammer at least by the time the attack commenced (according to the judge's second set of factual findings) and, with that knowledge, he joined in that attack, or · without prior planning or premeditation, the applicant joined in the attack on the victim when Bobak did use the tool for that purpose, by yelling at the victim, slamming the victim's head into the ground with the tool still embedded in his skull and then, with knowledge that the tool was still embedded in the victim's skull, by stomping on the victim, jumping on his head twice and kicking him.

19 Because of the very short period of time which elapsed between the two men leaving Bobak's unit and coming on the victim on a bicycle in the alleyway, whichever way the judge's factual findings are viewed, I am satisfied that his finding that planning and premeditation was involved in the attack played very little part indeed in his assessment of the degree of the applicant's culpability for the crime. Counsel for the applicant on the application for leave to appeal very properly accepted that the error made by the judge as to the extent of planning and premeditation involved would have had minimal effect on the sentence imposed. I return later to the effect which this error should have in the appeal.

20 The second submission by the applicant is that the judge erred in finding that this crime was at the upper end of seriousness, if not a worst category case.

21 The judge made more than one statement as to the seriousness of the case during the course of his remarks on sentence. He started by saying: The objective seriousness of the offence of maliciously inflicting grievous bodily harm with intent to cause grievous bodily harm using an implement such as a plasterer's hammer is very high. He went on to refer to various aggravating features in addition to the planning and premeditation. There were many such matters: the determined, sustained and alarmingly callous, vicious and savage nature of the attack already referred to, the use of a very dangerous weapon, the facts that the attack was committed in company and at a time when, so far as the applicant is concerned, he was on a bond (albeit not for an offence of violence), the horrendous consequences for the victim from the traumatic brain injury inflicted, and the gratuitous cruelty involved. The gratuitous cruelty was not restricted to Bobak. So far as the applicant was concerned, there were his repeated attacks to the victim's head immediately following the savage attack by Bobak, when the axe blade could not be removed and was still embedded in the victim's head. 22 The judge also referred to a matter in mitigation, the intoxication of the two men at the time, to which he said he would not give much weight. He made specific findings that each of the two men committed the offences with full knowledge of what they were doing and with full knowledge of the gravity of their actions and the consequences of those actions, and that the applicant had failed to establish in mitigation that he was at that time suffering from altered states of consciousness or alcoholic blackout.

23 The judge then said: The offence involving the attack upon Mr Law falls right at the very upper end of the range of seriousness for offences of this type and, if not the worst of its type, [it] is not far from it. The use of the phrase "worst of its type" was unfortunate, if only because it may be misunderstood, as it has been misunderstood by the applicant in his submissions. That phrase, or its more usual formulation of a case falling within the worst category of cases, is usually adopted only where consideration is being given to the imposition of the maximum sentence. Thus, in Veen v The Queen (No 2) (1988) 164 CLR 465 at 478: [T]he maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed: Ibbs v The Queen (1987) 163 CLR 447 at 451-452. That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognizably outside the worst category. 24 It is clear that the judge did not intend to impose the maximum sentence on the applicant. The maximum sentence was, as I have said, imprisonment for twenty-five years. The judge had given a discount of 20% for the plea of guilty as soon as the Crown had indicated that it would accept a lesser plea to the more serious charge of inflicting grievous bodily harm with intent to murder. That means that the head sentence which would have been imposed had the applicant not pleaded guilty was imprisonment for fifteen years.

25 In my view, what the judge intended to say was that this offence deserved a sentence at the very upper end of the range of sentences imposed for offences of this type, rather than the maximum sentence which could be imposed. After some debate, counsel for the applicant accepted that this was so. The applicant's submission that the imposition of the maximum sentence was in error because of the presence of various mitigating factors enumerated in s 21A(3) the Crimes (Sentencing Procedure) Act 1999 took the case out of the worst category of case therefore does not arise. It should be noted that the standard non-parole provisions of the Act (to which s 21A is related) did not apply to this offence, which occurred before the commencement of the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 by which s 21A was enacted in its present form. I would in any event refute the submission made by the applicant that: Although the attack was itself life-threatening and the on-going effects traumatic and profound, the level of injury is not such that [the effects] are life threatening, or such as to deprive [the victim] of the total or even the most of the enjoyment and facility of living. That submission significantly misconceives the serious effects of the injuries inflicted on the victim as I have already stated them. 26 One subsidiary submission made in association with this second submission is that the judge erroneously intended to impose the maximum sentence on Bobak, and then used that erroneous sentence as the basis for sentencing the applicant. The sentence imposed on Bobak was imprisonment for sixteen years, after giving the same 20% discount for the plea of guilty. This represents a starting sentence for Bobak of imprisonment for twenty years if he had not pleaded guilty.

27 The submission that such a sentence demonstrates an intention to give Bobak the maximum sentence (which is imprisonment for twenty-five years) rests on the proposition that it has been held that a sentence of between 80 and 100% of the maximum sentence is indicative of a worst category case. The case in which it is said that this proposition was upheld is Regina v Lance William Szeto [1999] NSWCCA 296, an application for leave to appeal against sentence heard by two judges pursuant to s 6AA of the Criminal Appeal Act 1912 - a procedure which may be adopted only where the appeal is not likely to require the resolution of a disputed issue of general principle (s 6AA(2)). The decision in that case does not support such a proposition. Two submissions were made by the applicant in that case: first (at [11]) that, as the sentence imposed represented 80% of the maximum available, it must be assumed, in view of the favourable subjective circumstances including the plea of guilty, that the sentencing judge had placed the case in the worst category, and had commenced the sentence at or near the maximum; and secondly (at [12]) that, by comparison with a large number of sentences for comparable offences which had been reviewed by this Court over the preceding nine years, the sentence was manifestly excessive. Wood CJ at CL (with whom Simpson J agreed) held (at [13]) that, taking into account the comparison of the sentence imposed in that case with the sentences reviewed in those decisions, the submission had been made good. The submission made good was the first, not the second, of the two submissions made.

28 The worst category of cases, as I have said, relates to the imposition of the maximum sentence, not 80% of that maximum sentence. It may be - it is unnecessary to decide in this case - that 80% of the maximum sentence is at the upper end of the range of sentences imposed for some offences, but that is by no means a proposition of universal application. The submission that the judge erroneously intended to impose the maximum sentence on Bobak strictly does not arise in the present case, but the argument that the judge used his sentence on Bobak as representing the maximum sentence, and then used that maximum sentence as the basis for the sentence imposed on the applicant is rejected.

29 Another subsidiary submission is that the judge's differentiation between the sentences imposed on the two men was based on the subjective features relating to each of them. That submission is rejected. When the judge turned to deal with the applicant after dealing with Bobak, he said: As the role played by the offender Bobak in the offence involving the attack upon Mr Law involved a greater level of criminality than the role played by the offender Kirkland, because it was the offender Bobak who wielded the implement which sustained Mr Law's devastating injuries, the sentence to be imposed on each offender for that offence will have to reflect the differing roles and consequently greater level of criminality of the offender Bobak. The judge went on to draw a distinction between the two men - in each case in favour of the applicant - as to the degree of aggravation to be applied in relation to (i) the fact that the offence was committed whilst on a bond (one bond for a non-violent offence for the applicant; two bonds each for a violent offence for Bobak), and (ii) the degree of personal deterrence required (substantial for Bobak, who had a previous criminal history including violence and dishonesty; the applicant to be treated leniently as a first offender). 30 There was no error made by the judge in doing so. Nor do these factors taken into consideration by the judge give rise to any issue of parity between the two sentences imposed. The additional actions by the applicant of stomping on the victim, jumping on his head twice and kicking him in the knowledge that he had already been horrifically injured by the use of the axe blade on the plasterer's hammer - to the extent that the tool could not be removed from his head - had to be taken into account by the judge as balancing out to at least some extent the fact that the applicant did not use the tool to vertically cleave the frontal lobe of the victim's brain and to inflict the other damage to his brain.

31 The third submission by the applicant is that the sentence imposed on him was in any event manifestly excessive.

32 As has become the fashion in sentencing appeals, the Court has been supplied by many statistics prepared by the Judicial Commission. These statistics are valuable as an indication of the range of sentences imposed in relation to various offences by reference to offenders having particular characteristics. This Court has, however, repeatedly emphasised the limited use to which such statistics may be put in such appeals. In the present case, the statistics are said to demonstrate that - since the decision of the High Court in Pearce v The Queen (1998) 194 CLR 610, which (at 624, 629) requires in general terms the imposition of a separate sentence for each of a number of offences charged - a head sentence of imprisonment for twelve years imposed on the applicant for the present offence falls within the top 4% of the range of sentences imposed for this offence.

33 The applicant has referred to a number of cases in which lesser sentences have been imposed for the present offence where the consequences to the victim were similar or worse than those which the victim in the present case has suffered. In some, a higher sentence was imposed. I do not find much assistance in considering only the consequences to the victim. Those consequences are an important factor in determining the appropriate sentence to be imposed, but they are not the only relevant factor. The acts of the accused which led to those consequences are also an important factor in determining the appropriate sentence. The extent of the applicant's criminality in this case, although less than that of Bobak, was extraordinary. The fact that, notwithstanding the guilty plea, the sentence falls within the top 4% of the range of sentences for this offence does not surprise me.

34 The applicant has listed a number of what are said to be mitigating circumstances which should, it is said, have placed his offence somewhat further down the scale: 1. The lack of any "real" planning The absence of planning or premeditation has little relevance to mitigation in this case in the light of the horrific nature of the attack which occurred. Its extent is more relevant to the extent of aggravation present, a matter which has already been discussed. 2. The presence of alcohol This was given little weight by the judge, an approach which was open to him on the evidence. 3. A sense of grievance on the part of Bobak because of his suspicion that the victim had stolen something from his daughter This was not a matter in mitigation in favour of Bobak, and even less so in favour of the applicant. 4. The level of injury was not such as to deprive the victim of the total or even the most of the enjoyment and facility of living I have already rejected this submission. 5. The level of violence, although severe, was not such as could be considered prolonged or humiliating in nature As the victim already had the plasterer's hammer embedded in his skull when the applicant slammed the victim's head into the ground and then, with knowledge that the tool was still embedded in the victim's skull, stomped on the victim, jumping on his head twice and kicking him, the offence was sufficiently prolonged as to aggravate the crime. The absence of humiliation in those circumstances meant that the crime was not aggravated in that way; it was hardly a matter of any weight in mitigation. 6. The victim did not fall within any category of persons generally considered to be vulnerable Again, the absence of vulnerability in the circumstances of this case meant that the crime was not aggravated in that way; it was not a matter of any weight in mitigation. 35 None of these matters, even when taken together, required the judge to consider the circumstances of this case as amounting to other than one at the very upper end of the range of sentences imposed for offences of this type. The applicant nevertheless argues that, if that be so, then the sentence imposed on Bobak on which his sentence was largely based must be regarded as being higher than the current range. Even this be so - and I am by no means persuaded that that is so when considering the offender who actually cleaved the victim's brain with the axe blade - that does not mean that the sentence imposed on Bobak is affected by appealable error. There must always be room for a case which, although not meriting the maximum sentence, merits a sentence which is somewhere between the maximum reserved for the worst category of case and the highest sentence imposed since the sentencing statistics commenced in 1991. But this is not an appeal by Bobak, and no final conclusion need be expressed in this case.

36 The judge's finding that the culpability of the applicant deserved a sentence at the very upper range of the sentences imposed for offences of this type was well within the judge's sentencing discretion.

37 The fourth submission made by the applicant, which is related to the last submission, is based on: (a) an acceptance that this case should have been considered as one in the middle of the range of objective seriousness for inflicting grievous bodily harm with intent, and (b) a comparison between: (i) the non-parole period of eight years imposed - which would have been ten years before the discount for pleading guilty, and (ii) the standard non-parole period of seven years set by the Table to Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act - which, it was said, may act as a guide to sentencing judges. 38 That argument fails. First, for the reasons I have already expressed, the judge was justified in considering that the present offence deserved a sentence at the very upper end of the range of sentences imposed for offences of this type. The standard non-parole period in that Table is directed to offences in the middle of the range of objective seriousness (s 54A(2)). Secondly, the present offence was committed before 1 February 2003, which is the earliest date for offences to which Division 1A applies: Regina v Way (2004) 60 NSWLR 168 at [38]. Thirdly, because the standard non-parole periods set by the Table to that Division are intended as the starting point for mid-range offences after conviction and before adjustment for either aggravating or mitigating circumstances, they are generally different from the minimum terms or non-parole periods imposed before that Table became applicable in the sentencing process: Regina v Way at [140] - [141]. Finally, and no doubt for that reason, this Court has held that it is erroneous for a sentencing judge to sentence in accordance with that Table for an offence which occurred before that date: Regina v Wilkinson [2004] NSWCCA 83 at [83] - [85]; and, indeed, erroneous even to consider the standard non-parole periods in that Table as providing guidance in cases to which Division 1A does not apply: Regina v Ohar (2004) 59 NSWLR 596 at [83] - [85].

39 Only one error has been established, the finding by the judge that the applicant knew that Bobak had armed himself with the plasterer's hammer when they left Bobak's unit in search of the victim in order to set upon him by inflicting some form of violence. That error, it is accepted by counsel for the applicant, would have had minimal effect on the sentence imposed. If the appeal were to be granted, and this Court had to substitute its own sentence for that imposed by the judge, I would impose the same sentence, which I regard as being entirely appropriate to the circumstances of the case. In my view, therefore, the appeal should be dismissed.

40 I propose that the following orders be made by the Court:

1. Leave to appeal against sentence is granted.
2. The appeal is dismissed. 41 GROVE J: I agree with Hunt AJA.

43 HUNT AJA: The orders of the Court are as I have proposed.

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