Rubino v R [2015] ACTCA 22

Court of Appeal (ACT)|2015-05-28|Before: Refshauge, Burns and Ross JJ

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Barbaro v The Queen [2014] HCA 2; (2014) 305 ALR 323

Fusimalohi v R [2012] ACTCA 49

Green v The Queen [2011] HCA 49

House v The King [1936] HCA 40; (1936) 55 CLR 499

Hili v The Queen [2010] HCA 45

Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606

Pavicevic v The Queen [2010] ACTCA 25

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

R v Campbell [2010] ACTCA 20

R v Hutchinson [2014] ACTCA 29

R v Hyunh [2005] NSWCCA 220

R v Swan [2006] NSWCCA 47

Simonds v R [2013] ACTCA 13

Tate v R [2012] ACTCA 50

Wong v R ((2001) [2001] HCA 64; 207 CLR 584

1. I have had the considerable advantage of reading in draft the reasons for Ross J. I agree with the order his Honour proposes and the reasons for it.

I certify that the preceding one [1] numbered paragraph is a true copy of the Reasons for Judgment of his Honour Justice Refshauge.

2. On 24 September 2013 the appellant pleaded guilty to three counts of aggravated burglary and one count of theft relating to four separate incidents which took place between 15 November 2010 and 26 February 2011. The circumstances of aggravation in each count of aggravated burglary was that the offence was committed in company. In each case the appellant was present with a co-offender, Mr Robertson, and an unknown third person, although it is not clear whether it was the same unknown person in each instance. On 16 December 2013 Murrell CJ sentenced the appellant to 7 years and 11 months imprisonment with a nonparole period of 4 years and 1 month. The appellant has appealed her Honour's sentence and this decision deals with that appeal.

3. The facts are set out in her Honour's sentencing remarks and are not in dispute. The first aggravated burglary offence occurred at approximately 1:40 am on 15 November 2010. The appellant, in the company of Mr Robertson and one other person entered the Weston Club by smashing a window, all three had their faces covered with clothing. The trio were carrying a sledge hammer, pry bars and a petrol powered demolition saw. They used these tools to gain access to poker machines and cash changing machines causing damage estimated at $220,597.00 and took a total of $14,646.00. The additional offences of theft and intentional damage are attached to this aggravated burglary offence.

4. The next offence (the theft count) occurred on 23 January 2011 at approximately 11:30 pm. The appellant, again in the company of Mr Robertson and one other person, entered the Myer carpark in Westfield, Belconnen, all three had their faces covered with clothing. They were armed with various tools including a long metal pole, pry bars and a hatchet. One CCTV camera was smashed but a second recorded the incident. The pry bars were used to break into ticket machines causing damage of approximately $20,000.00; about $7200.00 in cash was taken. During the commission of the offence, one of the offenders used a CB radio to communicate with an outside person, possibly the driver of a getaway car.

5. The second aggravated burglary offence occurred on 6 February 2011 at 3:50 am. The appellant and his co-offenders again gained entry to the Weston Club armed with a sledge hammer, pry bars and a petrol powered demolition saw. They again accessed cash changing machines using the tools causing more than $22,000.00 in damage and taking $22,760.00. A CB radio was also used during this offence.

6. The third aggravated burglary offence occurred on 26 February 2011 when the appellant and his associates again gained entry to the Weston Club carrying a removalist trolley, a sledgehammer and a hatchet. They were disturbed by the entry of a cleaner and left without taking anything but did cause $29,600.00 worth of damage.

7. After an extensive police investigation the appellant was arrested on 26 September 2011 and was remanded in custody. In February 2012 the appellant was committed for trial on all charges and the matter was listed for trial in December 2013. The appellant pleaded guilty to the charges on 24 September 2013 and was sentenced on 16 December 2013.

8. The following material was tendered in the sentence proceedings:

Statement of facts;
Updated criminal history
Pre sentence report dated 3 December 2013;
CADAS report dated 5 December 2013;
Material relating to the good behaviour order which the appellant had breached;
Letters tendered on behalf of the accused.

9. The pre sentence report notes that the appellant had previously had the opportunity to serve time in the community whilst on parole, but that he had 'displayed a lack of commitment to complying with the core conditions of community based orders having both his Good Behaviour Orders and Parole Orders revoked.' After recounting the appellant's subjective circumstances the author of the pre sentence report (Ms Columb) observed that the appellant 'offered little insight into his offending behaviour' and was assessed as a moderate risk of general reoffending. In relation to the risk of reoffending the pre sentence report observes that this is primarily due to the appellant's 'Alcohol and Other Drug (AOD) use coupled with mental health issues, lack of ongoing, permanent employment and a belief system which incorporates anti social values'. Ms Columb gave evidence in the sentence proceedings and was cross examined.

10. The CADAS report sets out the appellant's 'long history of poly-drug abuse and dependence, and notes that while the appellant reports that he was functioning well at that time 'he is vulnerable to relapse which he acknowledges'.

11. In her sentencing remarks, her Honour set out the facts and addressed the various considerations which had been taken into account in determining the sentences to be imposed, including:

(a) The maximum terms of imprisonment for the offences: 20 years' imprisonment for aggravated burglary and 10 years' imprisonment for theft; each also attracted in addition (or alternatively) a maximum fine of 2000 penalty units in the case of aggravated burglary and 1000 penalty units in the case of theft.

(b) Seven scheduled additional offences, each attaching to one of the principal offences.

(c) The objective seriousness of the offending. The theft offence was 'a moderate to serious matter involving as it did an apparently high level of planning in relation to the carrying of tools, the wearing of disguises, and the fact that a significant sum of money was stolen'. The aggravated burglary offences were regarded as being 'moderate to high objective seriousness'. In support of this characterisation her Honour said:

The premises the subject of the burglaries were commercial premises that were not occupied at the time, except in the case of the trial offence, a cleaner was present. His presence was not expected by the offenders. However, the incidents were each reasonably highly planned. They involved taking appropriate tools, they occurred in the dead of night, the offender and the co-offenders were in disguise, and for most of the offences the offenders were wearing gloves. Very substantial damage occasioned and the additional offences involving the occasioning of damage are to be taken into account when sentencing for the principal offences. Except for the last matter, where the offenders were surprised by the cleaner, substantial sums were stolen'

(d) The offences were committed while the appellant was subject to a good behaviour order. Her Honour cancelled the good behaviour order and imposed the suspended sentence.

(e) The offender's 'significant criminal history'. The offences for which the offender was being sentenced represented a 'continuing history of offending behaviour'.

(f) The offender's age (26 at sentencing and 23 and 24 years of age when the offences were committed) and subjective circumstances including: the offender was in a permanent relationship with a very strong bond with his two young daughters; identifies as an indigenous man; had a reasonable work history and a long history of polysubstance abuse. Her Honour noted that the offender said that he had been diagnosed with bipolar disorder and suffered from attention deficit hyperactivity disorder as a child and dealt with these issues at paragraphs [19] - [20] of her sentencing remarks:

[19] It is submitted that the offender's mental difficulties, particularly his bipolar disorder, is something that should be taken into account by way of mitigation of sentence, possibly because the custodial environment will cause him more hardship than would be the case if he did not suffer from a mental disorder. In relation to that submission, first there is no evidence that the offender does suffer in any significant way from bipolar disorder. He was assessed in custody in June 2003. At that time, there were no indications of mental illness. Second, even if I accept that he suffered from bipolar disorder in the absence of any expert report, there is no evidence that the custodial environment will have a greater adverse impact on him than on a typical inmate.

[20] It has been suggested, although perhaps not strongly, that his mental state should be taken into account in relation to moral culpability for the offences. In the absence of any expert report in support of that submission, I cannot see how it could be taken into account. The offences in question were clearly planned. They were committed for the purpose of benefiting the participants. In evidence, the offender said that he was paid mainly in drugs rather than money. That may be the case, but it seems the value of the drugs given to him was not insignificant. This is not a case where mental illness lessens the moral culpability. Similarly, it has not been explained how the mental illness (assuming that it continues to exist at a significant level and did at the time of the offences), makes the offender a less appropriate vehicle for conveying a message of general deterrence. The mere existence of mental illness per se, assuming it is established, and that is far from certain here, does not entitle an offender to leniency. The way in which it entitles them to leniency must be reasoned through.

(g) The offender had very limited insight into the reasons for his offending conduct and the steps that will need to be taken if he is to avoid future offending behaviour.

(h) The offender's role in the offending. The offender's evidence was that he had committed the offences under duress - he was threatened and he was just a follower and the others involved were the leaders. Her Honour found that the offender was not a credible witness, he was evasive and not forthright. Her Honour rejected the offenders' evidence and found that he and Mr Robertson both fulfilled a similar role in the commission of the offences.

(i) The offender's evidence regarding his co-offenders - offer of assistance. Her Honour regarded the offender's evidence in this regard as 'too little, too late'.

(j) Parity - her Honour considered the sentence imposed on Mr Robertson and the difference in the circumstances of the offender and Mr Robertson, particularly in relation to their respective prospects of rehabilitation.

(k) The guilty plea, concluding that a 15% reduction in sentence was appropriate.

12. The appellant's co-offender, Mr Robertson, has also been sentenced for the relevant offences. Mr Robertson was granted bail by Refshauge J to attend the live in drug rehabilitation centre, Karralika. Mr Robertson successfully completed the program and was sentenced to seven years imprisonment upon completion (Refshauge J had indicated a sentence of nine years would be imposed if there was a failure to complete the program). The sentence was backdated with the effect that Robertson was to spend approximately 14 months in full time custody, two years in periodic detention with the balance suspended: R v Robertson (Unreported, Australian Capital Territory Supreme Court, Refshauge ACJ, SCC No 53A of 2012, 25 October 2013). I return to Mr Robertson's sentence later in dealing with the appellant's parity argument.

(a) The Good Behaviour Order was cancelled and a sentence of 9 months imprisonment imposed;

(b) In relation to the offence of theft a sentence of 2 years and 6 months imprisonment;

(c) In relation to the offence of aggravated burglary a sentence of 3 years and 7 months imprisonment;

(d) In relation to the offence of aggravated burglary a sentence of 3 years and 9 months imprisonment;

(e) In relation to the offence of aggravated burglary a sentence of 4 years and 5 months imprisonment.

14. As mentioned earlier, the sentences imposed and orders as to accumulation resulted in a head sentence of 7 years and 11 months imprisonment. A nonparole period of 4 years and 1 month was imposed.

(i) That her Honour failed to sentence the appellant in accordance with the principle of parity.

(ii) Her Honour made findings in relation to assistance to the police that were in all the circumstances unreasonable.

(iii) Her Honour failed to apply a discount on the sentence in light of promised assistance to police.

(iv) The sentence was in all the circumstances manifestly excessive.

16. It is not clear whether grounds (i), (ii) and (iii) are advanced on the basis that they constitute errors such that the sentencing process miscarried or whether they are simply advanced as particulars of the general ground that the sentence was manifestly excessive. It is unnecessary to resolve this issue - in either case, for the reasons which follow, there is no substance in the grounds advanced.

17. It is convenient to deal first with the grounds relating to the assistance to the police (grounds (ii) and (iii)) before turning to parity and the general proposition that the sentences imposed were manifestly excessive.

18. The appellant gave evidence, and was cross examined, in the sentencing proceedings. Relevantly, for present purposes, the appellant gave evidence in relation to his co-offenders. The following exchange took place during the appellant's examination in chief:

Counsel: You've read the brief of evidence that was prepared in relation to this matter and in reading that brief of evidence, do you understand that the police were suspicious of Mr Walters' involvement in what went on?

The Appellant: Yes.

Counsel: Can you confirm that he was involved?

The Appellant: Yes.

Counsel: Was he present at each of the offences that is detailed on the statement of facts?

The Appellant: Yes, he was a getaway driver ...

Counsel: You've talked about Mr Walters' involvement?

The Appellant: Yes.

Counsel: There's mention each time of a third person that's involved. Was the third person the same for all of the offences that was involved?

The Appellant: No.

Counsel: Did it vary somewhat?

The Appellant: Yes. It varied a lot.'

19. The appellant was then cross examined as to the identity of the 'third person' involved in the aggravated robberies. In relation to the first offence the appellant said that he only knew the third person as 'Scotty', that he had not met him before the burglary and had not seen him since. In relation to the second aggravated burglary the 'third person' was 'a totally different person' that the appellant had not previously met. The appellant could not recall the third person's name and proffered a general description: 'He was about my height, aboriginal descent, yeah, brown skin and, yeah, well built kind of person'. As to the third aggravated burglary the appellant's evidence was as follows:

Counsel: What about the third burglary that you did at the Weston Club that was on 24 February? Who was the third person that was present then?

The Appellant: I'm not sure, I'm not sure. Yeah, yeah, I'm not sure, I forget.

Counsel: Did this person tell you their name?

The Appellant: Pardon?

Counsel: Did this person tell you their name?

The Appellant: I think it was Chris or - yeah. I think it was a - - -

Counsel: You're just pulling names out of the air aren't you, Mr Rubino?

The Appellant: No.

Counsel: You're lying I suggest to you?

The Appellant: No. No, I'm not.

Counsel: What did this person look like?

The Appellant: Yeah, he was about my height. Yeah, he was wearing jumpers.

Counsel: He was wearing jumpers?

The Appellant: A jumper and long pants.

Counsel: What did the jumper look like?

The Appellant: I think it was a black jumper with a hood, I think. A darkish plain jumper.

20. Her Honour deals with the appellant's evidence at paragraphs [23] - [24] of her sentence remarks:

[23] The offender gave evidence in connection with the offences. In effect, he said that people threatened him and that he committed the offences under threat. He also said that others were the leaders and he was just a follower, and that others benefited more by obtaining most of the proceeds of the crime.

[24] The offender was not a credible witness. He was evasive. I did not find him to be forthright. He nominated a Mr Luke Walters as a co-offender. His evidence in that regard was too little, too late. It is hard to know if that information is of any value whatsoever. Had he provided that information to the police at an earlier stage, it could have been investigated and it may have been something that turned out to be true. However, on my assessment of the offender, I would not assume that to be the case.

21. The nature of the 'promised assistance' referred to is not immediately apparent. Counsel who appeared on sentence for the appellant did not refer to the appellant's naming of Luke Walters as being of potential assistance to the authorities and nor did he make a specific submission for a reduction in sentence under s 36 of the Crimes (Sentencing) Act 2005 (the Sentencing Act).

22. Section 36 of the Sentencing Act deals with reduction of a sentence where the offender provides assistance to law enforcement authorities, in the following terms:

(1) This section applies if -

(a) an offender is convicted or found guilty of an offence; and

(b) the offender assisted, or undertook to assist, law enforcement authorities in -

(i) preventing, detecting or investigating the offence or any other offence; or

(ii) a proceeding in relation to the offence or any other offence.

(2) A court may impose a lesser penalty (including a shorter nonparole period) on the offender than it would otherwise have imposed having regard to the degree of assistance provided, or undertaken to be provided, to law enforcement authorities.

Note The DPP may appeal against the reduced sentence if the offender does not comply with the undertaking (see s 137).

(3) In deciding whether to impose a lesser penalty for the offence, and the nature and extent of the penalty to be imposed, the court must consider the following matters:

(a) the effect of the offence on the victims of the offence, the victims' families and anyone else who may make a victim impact statement;

Note For who may make a victim impact statement, see s 49.

(b) the significance and usefulness of the offender's assistance to law enforcement authorities, taking into account any evaluation by the authorities of the assistance provided or undertaken to be provided;

(c) the truthfulness, completeness and reliability of any information or evidence provided by the offender;

(d) the nature and extent of the offender's assistance or promised assistance;

(e) the timeliness of the assistance or undertaking to assist;

(f) any benefits that the offender has gained or may gain because of the assistance or undertaking to assist;

(g) whether the offender will suffer harsher custodial conditions because of the assistance or undertaking to assist;

(h) any injury suffered by the offender or the offender's family, or any danger or risk of injury to the offender or the offender's family, because of the assistance or undertaking to assist;

(i) whether the assistance or promised assistance is in relation to the offence for which the offender is being sentenced or an unrelated offence;

(j) if the offender is to serve a sentence of imprisonment - the likelihood that the offender will commit further offences after release from imprisonment.

(4) A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence.

23. In deciding on any reduction the sentencing court must consider the matters set out in section 36(3), to the extent that they are relevant and established by the evidence: see LMN v R [2012] NSWCCA 52 at [23] per McCallum J, with whom Beazley JA and Harrison J agreed.

24. It is apparent from the sentencing remarks that her Honour had concerns about the 'truthfulness, completeness and reliability' (s 36(3)(c)) of the appellant's evidence on this issue, and the 'timeliness of the limited assistance' proffered (s 36(3)(e)). The value of the information provided is an important consideration (see ss 36(3)(b) and (d)) and may inform the court's assessment of the degree of genuine cooperation being offered: LMN v R at [28]. Having regard to the appellant's evidence her Honour was entitled to make the findings she did in relation to the proffered 'assistance'. The information provided was vague in nature and only provided at sentencing, some 27 months after the appellant's arrest. It was indeed a case of 'too little, too late'. It is also relevant to note that during the course of oral argument the appellant acknowledged that the offer for assistance was only made at sentencing and that the information he provided was not of much assistance to the authorities.

25. The power to reduce penalties pursuant to s 36 is discretionary and this court should only intervene in accordance with the principles stated in House v The King [1936] HCA 40; (1936) 55 CLR 499. I am not persuaded that her Honour erred in the way in which she dealt with this issue.

26. Parity in sentencing is an incident of the principle of equal justice. It requires that offenders be treated in a like manner but allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances. As Gibbs J observed in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 609:

It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account.

27. The sense of grievance necessary to attract appellate intervention on the basis of disparity is to be assessed by objective criteria. An appeal court will not intervene in circumstances where the disparity imposed on co-offenders is justified by the differences between the co-offenders such as age, background, criminal history, general character, and the part each has played in the relevant criminal conduct: see Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 323, per Gummow J; 338 per Kirby J; Green v The Queen [2011] HCA 49 at [32] per French CJ and Crennan and Kiefel JJ; Pavicevic v The Queen [2010] ACTCA 25.

28. As mentioned previously, the co-offender Mr Robertson was sentenced by Refshauge J for the same four incidents for which the appellant was sentenced, with one additional aggravated burglary committed on 26 January 2011 in which the appellant was not involved. Additional offences were taken into account on the sentences, being similar to those matters taken into account in relation to the appellant, with an additional theft taken into account in relation to the aggravated burglary on 26 January 2011.

29. Mr Robertson was apprehended at the same time as the appellant in relation to all matters, however, Mr Robertson entered his pleas of guilty at a much earlier stage, that is on 28 August 2012 (as opposed to 24 September 2013). It is clear from his Honour's sentencing remarks that he was moved by the subjective material and in particular the motivation shown by Mr Robertson towards rehabilitation. His Honour referred to Mr Robertson's "appalling" criminal history and his habitual drug use, and noted that he had been assessed for admission to the Karalika rehabilitation program. His Honour then referred to the "crossroads principle" and observed having considered all the evidence in the case "I am satisfied that Mr Robertson has reached the point in his life where there is a real prospect of reform". His Honour then said that he was satisfied "that this is one of the exceptional cases where Mr Robertson has shown that he is genuinely at a crossroads and a turning point where I am satisfied he not only is committed to reform but has the capacity to put effort into achieving and wishes to do so". His Honour then put Mr Robertson on what was in effect a deferred sentence order for Robertson to be released on bail on 5 November 2012 to appear on 25 October 2013 on conditions directed to rehabilitation. When Mr Robertson next came before Refshauge J pursuant to the previous order, his Honour had material before him which confirmed that (in the words of the CADAS report) "Mr Robertson has indeed made a remarkable attempt at recovery".

30. The total head sentence imposed on Mr Robertson was 7 years imprisonment. His Honour backdated the sentence by 14 months to take account of the pre-sentence custody, and set a period of 2 years from the day of sentence for the term of imprisonment to be served by periodic detention, with the balance of the sentence to be suspended. In other words the effect of the sentence was 14 months full time imprisonment, followed by 2 years periodic detention, with the balance of the term suspended.

31. It may be observed at the outset that the disparity in the sentences imposed on the appellant and his co-offender Mr Robertson is not substantial. Robertson's sentence was 7 years, with 3 years 2 months imprisonment, (2 years of which were to be served by periodic detention) with the balance suspended. This compares to 7 years and 11 months, with a non-parole period of 4 years and 1 month for the appellant.

32. These matters were all before her Honour when she came to sentence the appellant. It is apparent from her Honour's sentencing remarks that careful consideration was given to the question of parity (see particularly paragraphs [25] - [28] of the remarks). It is apparent that her Honour properly took into account the following considerations:

a. Mr Robertson and the appellant both fulfilled a similar role in the commission of the offences;

b. Mr Robertson had a more extensive criminal history than the appellant, though the appellant was on conditional liberty at the time he committed the offences;

c. Mr Robertson had demonstrated remorse whereas her Honour found that the appellant had 'very limited insight into the reasons for his offending conduct and the steps that will need to be taken if he is to avoid future offending behaviour'.

d. Mr Robertson was sentenced for the same four incidents as the appellant and for one additional aggravated burglary committed on 26 January 2011, in which the appellant was not involved.

e. The prospects for rehabilitation of each offender.

33. The last matter was plainly a very significant point of distinction between the appellant and Mr Robertson. Her Honour observed that the sentence imposed on Mr Robertson by Refshauge J 'was overwhelmingly dictated by his Honour's strong and, apparently justified view that Mr Robertson's life had taken a dramatic turn, and he had rehabilitated'. Her Honour then contrasted that aspect of Mr Robertson's circumstances with those of the appellant and said: 'Regrettably, that feature is not present in this case'.

34. In the course of his oral argument on the appeal the appellant submitted that at the time of the sentence proceedings below he had taken steps to address his drug issues, particularly in relation to ice. It was submitted that the steps taken by the appellant to turn his life around should have resulted in the imposition of a lesser sentence, as was the case with his co offender, Robertson.

35. It is apparent from her sentencing remarks that her Honour had regard to the matters identified by the appellant,:

The fact that this offender, as he says, cut back his use of ice to very little is to his credit. The fact that he is trying to be a good father is also to his credit, but given his history of offending behaviour and polysubstance abuse, it will take a lot more for him to turn his life around. On his own admission, he continues to be a heavy user of cannabis.

36. The Court took the appellant to her Honour's sentencing remarks and he did not take issue with them. It was accepted that at the time he was sentenced he was a heavy user of cannabis.

37. I am not persuaded that there is any merit in the appellant's parity argument. The differences between the circumstances of the appellant and his co-offender particularly in relation to their prospects for rehabilitation are significant such that any apparent disparity is readily explicable.

38. The final ground of appeal is that the sentence imposed is 'manifestly excessive', that is, her Honour made an error of the last kind mentioned in House v The King ((1936) [1936] HCA 40; 55 CLR 499 at 505) in that it was to be inferred from the result that there was a 'failure to properly exercise the discretion which the law reposes in a court of first instance'.

39. This Court's power to substitute a sentence for that imposed at first instance can only be enlivened if it is satisfied that her Honour's discretion miscarried in the result, that is, if her Honour imposed a sentence that was above the range of sentences that could be justly imposed for these offences. Appellate intervention is not justified simply because the result arrived at in the sentence subject to appeal is materially different from other sentences that have been imposed in other cases. As the plurality observed in Wong v R [2001] HCA 64; (2001) 207 CLR 584 at 605 [58],:

[i]ntervention is warranted only where the difference is such that in all circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons

40. In seeking consistency sentencing judges have regard to what has been done in other cases, but the consistency sought relates to the application of relevant legal principles, not numerical equivalence: Barbaro v The Queen [2014] HCA 2; (2014) 305 ALR 323 at 331 [40]. What is important is the unifying principles which past sentences reveal and reflect: Wong v R [2001] HCA 64; (2001) 207 CLR 584 at 606 [59]; Hili v The Queen [2010] HCA 45 at 49 [54]; Barbaro[2014] HCA 2; , (2014) 305 ALR 323 at [41].

41. There is no single correct sentence for aggravated burglary. In R v Hutchinson [2014] ACTCA 29 this Court recently reviewed cases said to be relevant to the consideration of current sentencing practice in respect of the offence of aggravated burglary (in particular Simonds v R [2013] ACTCA 13; Fusimalohi v R [2012] ACTCA 49; and Tate v R [2012] ACTCA 50.) That review revealed a significant range of available sentences for this particular offence, depending on the objective seriousness of the offending and the subjective circumstances of the offender.

42. The relevant sentencing considerations in respect of the present matter are set out above (at [10]). The aggravated burglary offences were of 'moderate to high objective seriousness' and were committed while the appellant was subject to a good behaviour order. That the appellant's subjective personal circumstances were unfortunate and operated to mitigate the sentence that would otherwise be warranted. However, the appellant had a significant criminal history and these offences represented a continuing history of offending behaviour in circumstances where he has very limited insight into the reasons for his offending conduct and the steps that will need to be taken if he is to avoid future offending behaviour.

43. A number of additional offences were taken into account in the sentencing synthesis, including some serious offences and serious examples of those offences. The amount of damage caused in the offences of damaging property was very substantial - a relevant factor in determining the seriousness of such an offence: Halden v R (1983) 9 A Crim R 30 at 36. Similarly, the amount of property stolen in each of the additional offences of theft was substantial, also a relevant factor in assessing the seriousness of that offence: R v Hyunh [2005] NSWCCA 220 at [20]. By taking such offences into account, it was likely that the sentence imposed would be more severe than otherwise as the considerations of personal deterrence and punishment or retribution will be given more weight in determining the sentence for which the offender is to be sentenced. The relevant principles are set out in R v Campbell [2010] ACTCA 20 at [42]- [53].

44. Having regard to the relevant sentencing considerations I am not persuaded that the sentences imposed (either individually or the total effective sentence) can be properly characterised as manifestly excessive. Accordingly I would dismiss this ground of appeal.

I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Ross.

46. I have had the considerable advantage of reading in draft the reasons for Ross J. I agree with the order his Honour proposes and the reasons for it.

I certify that the preceding one [1] numbered paragraph is a true copy of the Reasons for Judgment of his Honour Justice Burns.

(Sentencing) Act 2005

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