(b) In relation to each of the other two offences, his Honour passed a sentence of penal servitude for a fixed term of 2 years, to be served concurrently with the minimum term referred to in (a) above.
15 Upon the hearing of the present application for leave to appeal, the applicant accepted by counsel, that the aggregate sentence of 5 years and 9 months was not erroneous; but submitted that the minimum term as fixed by his Honour was so excessive as to warrant the intervention of this Court.
16 The objective facts as they have been recounted herein speak, essentially, for themselves. The applicant stood for sentence as a repeat offender with a very bad record. Of the three individual matters for which he thus stood for sentence, two had been committed in what can only be described as flagrant breaches of bail conditions then current. As to each of the offences, the case against the applicant was overwhelming.
17 The learned sentencing Judge made, in his Honour's remarks on sentence, extensive observations concerning the objective gravity of offences of the kind committed by the applicant. I quote them at length for the reason that they are, as I respectfully think, both correct in principle, and appropriate to the individual circumstances of the present applicant. His Honour said:
"The incidence of break, enter and steal throughout the State, but in particular on the Central Coast of New South Wales, is such as to cause grave disquiet in the community.
In the course of the first trial, a fingerprint expert gave evidence to the effect that he attends some ten locations a day in the course of investigating burglaries. The burglar seems to act with impunity, such as the frequency of this crime, which is carried out with brazen contempt for the law and the rights of innocent householders.
Right thinking members of the community are understandably angry and frustrated at the seeming immunity enjoyed by the burglar. Their dwellings are ransacked. Their goods spirited away where they will be inevitably received by some Cash Converter, loan office or pawn broker. The operators of such businesses deal with vast volumes of stolen goods on a daily basis. The fact that successive governments neglect to pass efficacious laws which might tend to hinder the daily conversion of stolen goods into money is of great comfort to the burglar and of no assistance whatsoever to the victim.
It is a notorious fact that householders face huge premiums, as well as the vast expense of endeavouring to make their homes secure, against those who apparently consider it their right to break into households and take whatever goods suit their purposes.
Clearly the community has the rightful expectation that judicial officers will act responsibly and impose meaningful penalties on the rare occasion when the burglar is apprehended and convicted.
Other would-be burglars just might be deterred when it is learnt that the crime of break, enter and steal is regarded as being grossly serious and will attract serious punishment." [Remarks on Sentence at 6-7]
18 The learned sentencing Judge had before him, and seems to me to have adverted correctly to, various matters subjective to the applicant.
19 The applicant was aged about 24 years when he stood for sentence. He is now aged a little more than 26 years. He had at all relevant times, and appears to retain, the support of parents who were described by the sentencing Judge as "loving and caring". The applicant has very little in the way of educational or vocational skills. He has only ever had intermittent employment; although it is fair to say that he seems to have been a reasonably diligent employee whenever he had work; and that he has lost employment by reason of retrenchment rather than by reason of fault on his own part. The applicant had, when sentenced, and has, a partner and a dependent child.
20 The principal matter urged in support of the present application has to do with the applicant's prior history of drug abuse. The sentencing Judge noted that his Honour had not heard any particular evidence from the applicant as to the applicant's history of drug abuse. His Honour took note of the contents of a report which had been prepared by a Drug and Alcohol worker in connection with the applicant's Supreme Court bail application to which I have earlier referred. His Honour observed:
"Presumably the Supreme Court Judge who granted him bail was influenced by this report but as I have stated, he demonstrated his contempt for the leniency which was granted to him, the opportunity that he was given to address any drug problems." [Remarks on Sentence at 8]
21 It is, of course, clear from the terms of the sentences passed upon the applicant, that the learned sentencing Judge found "special circumstances" in the sense contemplated by s.5(2) of the Sentencing Act 1989 (NSW); and that his Honour adjusted accordingly the minimum term and additional term components of the aggregate sentence of 5 years and 9 months.
22 It was submitted for the applicant that the minimum term set by the learned sentencing Judge was manifestly excessive in the sense that it manifestly failed to give any, or any sufficient, attention to factors of mercy and rehabilitation.
23 As to mercy, the learned sentencing Judge appears to have taken the view that the applicant had been shown plenty of mercy in the course of his repeated appearances before Courts; and that the applicant had, in effect, chosen to throw away the chances that had been thus given to him. That such a view is austere does not mean that it is wrong in law. In my opinion, the learned sentencing Judge was entirely justified in taking a severe view of the applicant's conduct.
24 As to rehabilitation, the learned sentencing Judge does not seem to me to have disregarded such evidence as there was before his Honour upon that topic. Indeed, the finding of "special circumstances" entails, in the circumstances of the applicant's case, an acknowledgment of likely benefit to the applicant from a sensibly extended additional term, and a correspondingly reduced minimum term.
25 Were I to deal with the present application without reference to the guideline judgment published this morning, I would be wholly unpersuaded that the learned sentencing Judge has been shown to have fallen into error requiring correction by this Court. The newly published guidelines seem to me to strengthen, rather than to weaken, the appropriateness of the course taken by the learned sentencing Judge, and the process of reasoning by which his Honour reached the findings of fact made by his Honour and the sentences imposed by him.
26 In my opinion, the Court should order: