Saraya v R

Factual background

1. The agreed facts upon which the applicant was sentenced can be summarised as follows.
2. At about 10pm on Friday 19 April 2019, the applicant and a co-offender drove a Toyota Hilux (registered to the applicant's mother) to the driveway of an address in Leichhardt. They got out of the vehicle, jumped over a perimeter fence and gained access to a domestic dwelling occupied by three persons, two of whom were female.
3. Both the applicant and his co-offender were in possession of knives. One was described as a large kitchen knife and the other as a large filleting knife. One of the offenders was wearing a backpack at the time.
4. Both offenders went through a second internal side gate and approached the two female residents of the home, who were seated in an outdoor entertainment area in the rear yard. The applicant grabbed one of the women by her hair from the back of her head and directed both women inside the premises (this was the basis of the common assault offence on the Form 1). He continued to hold onto the female's hair as they walked through a side door that led into the open kitchen dining area.
5. Once inside the premises the applicant was confronted by the male occupant of the premises who was near the kitchen doorway. The applicant released his grip on the female victim's hair and stated, "where is the money" and "give me the money". He then raised the silver bladed knife in his hand and chased the male occupant who attempted to run from the applicant. Whilst the applicant was chasing the male occupant into the kitchen and dining area, the second offender entered the building and assisted in cornering the male occupant in the nearby bathroom. At about the same time, the two females escaped through an external door. They ran to the front of the property where they flagged down a vehicle and made their escape.
6. The applicant and his co-offender then gained access to the bathroom where the male occupant was trying to shelter. One of the offenders held a large kitchen knife out towards the victim's face while the other offender assaulted the male victim by punching him to the head and torso. The victim suffered a cut to the forehead which bled for a short period of time. That injury was the subject of the assault occasioning actual bodily harm in company offence. The male victim continued to struggle with the offenders. They ultimately left the premises and drove away in the Toyota Hilux.
7. A black handbag belonging to one of the female occupants was stolen during the incident. It contained a Commonwealth Bank MasterCard, a Medibank card, a driver's licence, house keys and other items.
8. A short time later the applicant and his co-offender entered a fast food store on Liverpool Road, Ashfield. The applicant used the Commonwealth Bank MasterCard to purchase items in that store to the value of $49.50, (the basis of the obtain financial advantage by deception offence on the Form 1). The number plate of the vehicle and the applicant's image were captured on the CCTV cameras in the store.
9. The offenders left a backpack in the bathroom of the premises which contained three long black cable ties, two pairs of pliers, a roll of grey tape and a knife. A pair of pliers located in the backpack was forensically examined and a mixed DNA profile could not exclude the applicant as a contributor.
10. On 1 May 2019, the applicant attended Kings Cross Police Station in relation to another matter and was charged with breach of bail as a result of failing to report. He was then arrested and cautioned in relation to these matters.

Proceedings on sentence

1. Proceedings on sentence were conducted on 24 January 2020. A Crown bundle was tendered comprising the notice of committal, charge certificate, Form 1, s 166 certificate, statement of agreed facts, the applicant's criminal and custodial history and a Sentencing Assessment Report ("SAR") dated 21 January 2020.
2. The applicant did not give evidence nor were any references tendered on his behalf. Rather, the applicant relied upon material contained in a report of Ms Susan Hawil, psychologist, dated 22 January 2021, and 106 pages of medical records.
3. Ms Hawil's report was based on an interview with the applicant, psychometric testing, and materials relating to the index offences. She set out the applicant's history as provided to her by him, including that he exhibited behavioural issues and problems with literacy and numeracy in primary school. The applicant reported having been suspended from high school 20 to 30 times in Years 7 to 9 for disruptive behaviour and truancy. In Year 10 the applicant transferred to a school for children with behavioural issues but reported that he was expelled from this school.
4. In relation to the applicant's family background, Ms Hawil recorded that: "Mr. Saraya stated that he was exposed to domestic violence perpetrated by his father against his mother. He stated that he endured physical and emotional abuse by his father during his childhood and adolescent years. He disclosed that he was tied up to a tree and whipped by a garden hose and he was often beaten for misbehaviour. Mr. Saraya stated that on one occasion his father ran hot bath water as punishment for being suspended from school. Mr. Saraya reported that he experienced an epileptic seizure at the age of 15 and stated, 'my dad drove past and said isn't he dead yet.' Mr. Saraya stated, 'I think I'm the way I am because of him he f[ucked] my whole life'."
5. Ms Hawil also detailed the applicant's reported history of head trauma: "Mr Saraya stated that in 2008 [at the age of 24] he sustained a head injury while playing Rugby League and he was airlifted to Westmead Hospital. Mr Saraya stated that in 2019 he was placed in two medically induced comas within a period of two months. He reported that he was involved in a motor vehicle accident and shortly after his discharge he overdosed on drugs. Mr Saraya further noted that in 2019 he was involved in a Jet [Ski] accident and was unconscious for some time."
6. The report detailed the applicant's substance abuse history, including that he started using cannabis at the age of 14, cocaine at the age of 15, and crystal methamphetamine at the age of 17. The applicant stated that seven or eight months prior to the index offences he was using an "eight ball" of crystal methamphetamine per day. The applicant also reported using GHB daily since the age of 17. The applicant did not report receiving any treatment for his substance abuse, although he said he had overdosed over 100 times.
7. Ms Hawil concluded that the applicant had a history of impulsive aggression that likely developed against a background of untreated ADHD. She opined that the applicant met the DSM-5 criteria for adolescent onset conduct disorder, ADHD and stimulant use disorder (both for amphetamine use and sedative, hypnotic, or anxiolytic use). She highly recommended that the applicant engage in drug treatment.
8. Her Honour was also provided with the remarks on sentence of Charteris DCJ on 10 May 2013. The applicant was sentenced on that date for six counts of supplying a prohibited drug (cocaine). His Honour had been provided with a report from 2006 in which the applicant reported having been injured in a football game as a teenager and subsequently having seizures. No supporting evidence was provided in relation to the football injury. The applicant also told a doctor in 2006, at the age of 22, that he did not drink alcohol and had never taken any kind of illicit drug in his life. In 2009, the applicant told Dr Tim Watson-Munro that he had taken ecstasy in his late teenage years before progressing to cocaine. Judge Charteris found that the applicant was an "unreliable historian" and stated that he had the "gravest doubts" about the reliability of the applicant's self-reporting.
9. Submissions on sentence addressed objective seriousness, aggravating and mitigating factors and the applicant's subjective case. Regarding objective seriousness, counsel for the applicant submitted that both offences were "within the mid-range" of objective seriousness based on the fact that "there are worse weapons than knives, but … less worse weapons than knives" and that the injury caused by the assault was significant but not so significant that the offence would rise above mid-range.
10. In relation to the Form 1 offences, counsel for the applicant submitted that both offences were at the lower end of objective seriousness. The Crown submitted that the two primary offences fell above the mid-range of objective seriousness and that it was difficult to separate the objective seriousness of the two offences due to their close proximity. The sentencing judge observed that the offences were "in the nature of a home invasion" and the Crown agreed with this proposition.
11. Counsel for the applicant submitted that less weight should be given to general deterrence due to the applicant's mental illness, which was linked to his head injury and history of significant drug use. It was further submitted that her Honour would find special circumstances based on the applicant's need for supervision in relation to his drug use. Counsel for the applicant submitted that his eight-month period of abstinence from drugs while in custody demonstrated a willingness to submit to supervision. The Crown submitted that the sentencing judge would not find special circumstances because there was little chance of successful rehabilitation based on the applicant's record of offending and non-compliance with supervision.

Remarks on sentence

1. After setting out the agreed facts as summarised above at [8]-[16], the sentencing judge went on to make a finding of objective seriousness on count 1. The determination of this application for leave turns on whether error is disclosed in the following passage ("the impugned passage"): "A recitation of these facts immediately conveys the objective gravity of the principal offence. The effective invasion of a domestic dwelling at night, armed with knives, used to terrorise the occupants and accompanied by the infliction of physical harm, warrants a conclusion that this offence lies slightly above the mid-range of the scale, represented by the maximum penalty."
2. The sentencing judge went on to note that the sentence for count 1 also had to reflect the Form 1 offences, although her Honour found that those offences were "relatively minor". Her Honour further found that the count 2 offence fell within the mid-range of objective seriousness, largely because of the circumstances in which the harm was inflicted. The sentencing judge also observed that there was considerable overlap between the objective gravity of the two principal offences.
3. In relation to the applicant's subjective case, her Honour found that the applicant's circumstances were "not favourable" and that the only material before the Court as to the applicant's family circumstances was by way of "untested and largely unsupported" statements made by the applicant to the psychologist, Ms Hawil. Her Honour observed that the only account in Ms Hawil's report consistent with the information set out in the remarks of Charteris DCJ was that the applicant was born in Australia, was of Lebanese background, and was one of seven children.
4. In relation to the recent allegations of domestic violence, her Honour observed that there was no mention of these matters in the sentencing remarks of Charteris DCJ or the SAR dated 21 January 2020 and observed that it appeared to be a recent aspect of the applicant's history. Her Honour further noted that the applicant had given an inconsistent history in relation to his account of a head injury sustained while playing football. The applicant had previously suggested it occurred when he was a child but told Ms Hawil that it occurred in 2008 when he was 24 years of age. There were no hospital records to support the applicant's account of that injury.
5. Her Honour went on to observe that there was consistent evidence of the applicant's substance abuse, which resulted over the years in self-referral to hospital (for overdoses) and repeated refusals to engage with hospital psychiatrists or drug counselling services. The sentencing judge outlined the applicant's criminal history, which commenced when he was a juvenile and included armed robbery and drug supply offences and observed that the applicant's offending was almost entirely attributable to his substance abuse.
6. Her Honour noted Ms Hawil's finding that the applicant met the criteria for possible ADHD with impulsive aggression, conduct disorder, stimulant use disorder and sedative, hypnotic or anxiolytic use disorder. She was unable to conclude, based on the applicant's history of conflicting accounts, that his stated desire to undergo treatment as recommended by Ms Hawil was genuine. Her Honour further noted that the applicant had expressed verbal remorse in his sentencing assessment but had limited insight into the impact of his offending and minimised his offending behaviour.

Applicant's submissions

1. The complaint under ground 1 pertains to her Honour's comments in the impugned passage extracted above at [28].
2. The applicant submitted that two of the aggravating factors mentioned by the sentencing judge (that the offence was committed in a domestic dwelling and that the applicant was armed) were elements of the offence or aggravating features already taken into account in the maximum penalty.
3. It was noted that all offences under s 111 of the Crimes Act involve a dwelling-house whereas an offence under s 111(2) of the Crimes Act can involve any of the prescribed circumstances of aggravation. It was the circumstance that the applicant was armed which increased the maximum penalty from 10 years imprisonment to 14 years imprisonment.
4. It was submitted that the observations in the impugned passage were contrary to s 21A(2) of the Sentencing Act. This alleged error was said to give rise to the possibility of double counting an aggravating feature.
5. It was further submitted that the sentencing judge erred in not taking into account that the serious indictable offence forming the basis of the s 111(2) offence was larceny, which carries a maximum penalty of 5 years imprisonment, that being at the bottom end of the range of serious indictable offences.

Crown submissions

1. The Crown submitted that the sentencing judge's remarks must be read in context in order to determine whether the features of the offending were actually double counted. It was submitted that, in the absence of an explicit finding that the factors mentioned were aggravating features under s 21A, the asserted double counting could not be made out.
2. In relation to her Honour's observation that the offence was "an effective invasion of a domestic dwelling at night", it was submitted that the definition of "dwelling-house" in s 4 of the Crimes Act means that the offence need not be committed in a home in which people are living, let alone a home occupied by people at the time of the illegal entry. It was similarly submitted that the circumstance of aggravation that the applicant was armed did not prohibit the sentencing judge from considering the fact that the weapons were knives, rather than any other weapon.
3. The Crown submitted that the sentencing judge was required to assess how the entry was carried out and what the applicant was armed with. In observing that the manner of entry was an "invasion" committed "at night" and that the offenders were armed with knives, her Honour was only discharging the fundamental obligation to assess the nature of the offending.
4. It was accepted that the intended offence, larceny, was at the lowest end of the range but it was submitted that this factor did not preclude a finding that the offence was slightly above the mid-range of objective seriousness because of the other factors relevant to the offence.

Consideration: Ground 1

1. The finding made by the sentencing judge was that the offence was "slightly above the mid-range of objective seriousness". It is well established that the assessment of the objective seriousness of an offence is one quintessentially for the sentencing judge: Mulato v R [2006] NSWCCA 282 at [46]. The applicant must establish House v The King error (House v The King (1936) 55 CLR 499; [1936] HCA 40) in order to succeed under this ground. The applicant relied upon specific error in that it is contended that the sentencing judge "double counted" two aggravating factors on sentence which led to error in the assessment of objective seriousness. These two factors are that the applicant was armed and that the offence was committed in a "domestic dwelling".
2. Section 21A(2) of the Sentencing Act lists a number of aggravating factors that may be relevant in any particular sentencing exercise. After that list, the following words appear: "[t]he court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence".
3. The applicant was sentenced in relation to an offence of aggravated enter dwelling-house with intent to commit a serious indictable offence contrary to s 111(2) of the Crimes Act. The elements of that offence are as follows: 111 Entering dwelling-house (1) Whosoever enters any dwelling-house, with intent to commit a serious indictable offence therein, shall be liable to imprisonment for ten years. (2) Aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 14 years. …
4. A "dwelling-house" is defined in s 4 of the Crimes Act as follows: Dwelling-house includes-- (a) any building or other structure intended for occupation as a dwelling and capable of being so occupied, although it has never been so occupied, (b) a boat or vehicle in or on which any person resides, and (c) any building or other structure within the same curtilage as a dwelling-house, and occupied therewith or whose use is ancillary to the occupation of the dwelling-house.
5. Section 112 of the Crimes Act provides for the offence of breaking and entering a dwelling-house and committing a serious indictable offence therein and is in these terms: 112 Breaking etc into any house etc and committing serious indictable offence (1) A person who-- (a) breaks and enters any dwelling-house or other building and commits any serious indictable offence therein, or (b) being in any dwelling-house or other building commits any serious indictable offence therein and breaks out of the dwelling-house or other building, is guilty of an offence and liable to imprisonment for 14 years. (2) Aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 20 years. …
6. "Circumstances of aggravation" for the purposes of both ss 111(2) and 112(2) is defined in s 105A(1) as follows: circumstances of aggravation means circumstances involving any one or more of the following-- (a) the alleged offender is armed with an offensive weapon, or instrument, (b) the alleged offender is in the company of another person or persons, (c) the alleged offender uses corporal violence on any person, (d) the alleged offender intentionally or recklessly inflicts actual bodily harm on any person, (e) the alleged offender deprives any person of his or her liberty, (f) 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.
7. The difference in elements as between the offences in ss 111 and 112 of the Crimes Act is that the latter offence includes the element of "breaking" into the premises. That is why it has a higher maximum penalty. In the present matter, the applicant and his co-offender assaulted the female occupants of the house whilst they were still outside and then entered the premises and assaulted the male occupant of the house.
8. In assessing the objective seriousness of the offence it was open to the sentencing judge to have regard to the fact that an offence contrary to s 111(2) of the Crimes Act commonly involves an offender entering premises (without breaking into them), stealing property and then leaving. It is not an element of the offence that anybody is at home during the commission of the offence.
9. Given the broad range of conduct captured by this provision, the sentencing judge was required to have regard to all of the matters relevant to the assessment of objective seriousness. Those matters included that the offence was committed in company, that it was committed at night, that the residents were home, that they were confronted by their assailants, that it was accompanied by violence, that both offenders were wielding long knives, that the occupants were terrorised in their own home, that property was stolen and that violence was inflicted on one of the occupants of the home. The definition of dwelling-house is broad. It can include someone's home, but it does not have to. This was far from a typical offence under that provision. These factors all militate in favour of a finding that this was a particularly serious example of an offence under s 111(2).
10. I do not accept, as was submitted on behalf of the applicant, that the reference to the word "invasion" in this passage suggests that her Honour was, in effect, assessing the objective seriousness of this offence as if it were an offence contrary to s 112. There were two circumstances of aggravation in this matter: the applicant was in the company of another person and he was armed with an offensive weapon. Of these, her Honour only expressly referred to one of them in the impugned passage, being the reference to knives. She did not expressly mention the fact that the offence was committed in company. This was, no doubt, because the reference to the word "invasion" in that paragraph was a reference to the fact that the offence was committed in company. No double counting is reflected in doing so.
11. Nor am I satisfied that the reference to the offenders being armed with knives was "double counting". Her Honour was required to provide a description of the actual weapon used in order to make an assessment as to the objective seriousness of the offence. As was pointed out during the hearing, the offence would have been more serious if a firearm was used and less serious if a smaller knife was used. The type of weapon used is relevant to the assessment of objective seriousness.
12. It is to be accepted that larceny is the least serious of the "serious indictable offences" captured by the offence (as it carries a maximum penalty of 5 years imprisonment), and that the same maximum penalty applies for an offence under s 111 where the offender intends to commit a more serious offence, for example, to commit a sexual assault or inflict grievous bodily harm: Pleace v R [2017] NSWCCA 112 at [18]. But an examination of other cases discloses that the most common "serious indictable offence" intended by offenders under s 111 is either stealing, intimidation or assault occasioning actual bodily harm which all carry a maximum penalty of 5 years imprisonment.
13. A similar complaint as that made under this ground was made in Z v R [2015] NSWCCA 274. In that case it was contended that the sentencing judge erred in finding that the offence committed contrary to s 33 Crimes Act (intentionally causing grievous bodily harm by shooting the victim twice) was aggravated by the fact that the conduct resulted in a "grave risk of death to the victim". It was submitted on behalf of the applicant in that matter that the reference to the grave risk of death was an aggravating feature in s 21A(2)(ib) of the Sentencing Act which was also an element of the offence. In that context, Wilson J (Basten JA agreeing) observed the following at [74]: "That her Honour was doing no more than considering those features of the offence which were relevant to its gravity is clear from what was said, and the context in which it was said. The reference to the fact that there was a grave risk of death is simply a statement of fact that could likely be said of many such offences where a firearm was used and more than one shot was fired directly into a victim's body. It did not amount to a conclusion that a statutory feature of aggravation was made out beyond reasonable doubt."
14. I am satisfied that it was open to her Honour to make the finding of objective seriousness that she did.
15. I would grant leave to appeal on this ground but would not uphold it.

Applicant's submissions

1. The applicant's written submissions contended that, even if the findings of objective seriousness and the applicant's lack of a favourable subjective case were accepted, the aggregate sentence was so high as to indicate error.
2. The applicant relied upon JIRS statistics which disclose that only 2% of the 49 offenders sentenced since 23 September 2018 and 3.3% of the 279 offenders sentenced prior to 23 September 2018 received sentences greater than or equal to that imposed on the applicant.
3. The applicant also relied upon sentences imposed in other cases. Specifically, reliance was placed upon the decisions in Dyer v R [2011] NSWCCA 185; Kennedy v R [2013] NSWCCA 19 and R v Kollas and Mitchell [2002] NSWCCA 491, which I will consider below.
4. During the hearing of this appeal, it was conceded by senior counsel for the applicant that no reliance was placed on the applicant's subjective case under this second ground. It was accepted that the applicant's past response to supervision had been unsatisfactory and that he had never sought out rehabilitation. It was submitted that to expect him to voluntarily take himself to rehabilitation imposed a "Herculean" task on an applicant who is caught in a cycle of drug dependence and offending.
5. It was also accepted that it was open to her Honour to decline to make any finding regarding the applicant's recent contention that he had a "Bugmy childhood" (Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37) given the different versions that have been provided by him over the years. Despite this, it was submitted that a person such as the applicant would be reluctant to disclose a history of abuse to a psychologist which might explain the belated disclosure of those matters.
6. During the hearing of this application, the following exchange occurred with senior counsel for the applicant: "[N] ADAMS J: So, to be fair, your basis for contending manifest excess turns solely on the assessment of objective seriousness? OZEN: It must do. [N] ADAMS J: So, if it was open to her Honour to find that it was just above mid-range which is your ground 1 then would ground 2 fall away? OZEN: It must do."

Crown submissions

1. The Crown noted the maximum penalties for each offence and her Honour's findings of objective seriousness. It was further noted that the applicant's subjective case was "not favourable", and all of the purposes of punishment fell to be considered. The Crown submitted that her Honour clearly had regard to the principle of totality as the indicative sentence on count 2 was notionally only accumulated in the order of one year onto count 1, in accordance with her Honour's finding that there was considerable overlap between the objective gravity of the two offences.
2. It was submitted that the "comparable" cases relied upon by the applicant were not truly comparable and would not assist the Court in determining the available range because they are substantially different. It was submitted that it was open to her Honour to impose the aggregate sentence imposed in this case and no ground of manifest excess could be made out.

Consideration: Ground 2

1. This Court will only uphold a ground asserting manifest excess if the sentence imposed is unreasonable or plainly unjust: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]; Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]. Consideration of whether a sentence is unreasonable or plainly unjust is undertaken in the context that there is no single correct sentence and that sentencing is not a mathematical exercise. In arriving at the sentence to be imposed, sentencing judges are required to balance a number of different and conflicting factors: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443].
2. It was conceded during the hearing of this application that the success of this ground turns on the success of ground 1. I have already held that I would not uphold ground 1. Accordingly, ground 2 falls away. Despite this, I propose to briefly consider the three decisions relied upon by the applicant under this ground. Even putting the concession to one side, I am not persuaded that any of them support a finding of manifest excess.
3. The first decision relied upon by the applicant is Kennedy v R. In that matter a ground alleging disparity was upheld, and the offender was re-sentenced to imprisonment for 2 years and 9 months with a non-parole period of 1 year 6 months for an offence under s 111(2). The applicant was also sentenced for an offence of robbery in company and a s 166 certificate offence of stalk/intimidate with intent to cause fear of physical or mental harm. The offending in that case involved entering a residential unit in company at night while the victims were home, threatening them with a knife and a pair of scissors, and demanding money. The sentencing judge made no finding with respect to objective seriousness.
4. As senior counsel for the applicant conceded, the applicant in Kennedy v R had a much more favourable subjective case than the applicant. His criminal record was more limited, it was his first term of imprisonment, he had a disadvantaged background including exposure to domestic violence, his IQ was in the "lower extreme" range, and he had severe mental health issues. He was also found to be remorseful. As for the facts, the motive for entry was less serious, the offenders were only armed with a small knife and a pair of scissors that they found inside the apartment, no actual violence was inflicted on the victim and the offenders returned some of the money they stole before leaving.
5. The second decision the applicant relied upon was the decision in R v Kollas and Mitchell. That decision was a Crown appeal against manifest leniency determined before the enactment of s 68A of the Crimes (Appeal and Review) Act 2001 (NSW). This Court adopted the approach taken before that time that any sentence imposed following a successful Crown appeal should be towards the lower end of the range (at [31]). In applying that sentencing principle, Mr Kollas was sentenced to imprisonment for 5 years and 6 months with a non-parole period of 3 years and 3 months for an offence under s 111(2) in which the intended offence was affray (maximum penalty of 10 years imprisonment). The facts were that Mr Kollas and three other men went to a house that was occupied by four adults and six children. The house was known to be used for drug supply and the offenders went with the intention of obtaining drugs. Mr Kollas struck multiple victims with a steel pole. The other offenders had pieces of wood and a wooden bat. One victim escaped via the balcony and called police. This Court was satisfied that the objective seriousness was at the "upper end": at [24].
6. Mr Kollas was on bail for a violent offence at the time of the home invasion. His subjective case included that he had a troubled childhood, entered a late plea of guilty, was on protection while in custody, had responded favourably to a violent offenders' program in gaol and had cooperated with police following his arrest. He had a substantially more favourable subjective case than the applicant and was only being sentenced for one offence.
7. Finally, in Dyer v R, the offender was sentenced to imprisonment for 4 years and 6 months with a non-parole period of 3 years and 4 months. The offence involved entering the victim's house with two other offenders at night with the intention of assaulting the victim. The offender delivered multiple blows to the victim's head with a golf club while the victim slept and punched and kicked him to his ribs and head. The victim lost consciousness and suffered other injuries. The offender had assaulted the same victim one year earlier and was on parole at the time of the offence. The offender had a lengthy criminal history and was found to have poor prospects of rehabilitation. He was not found to be remorseful and despite his mental illness the sentencing judge did not find that there was a reduced need for general or specific deterrence. He was on conditional liberty, used the weapon in the assault and only received a 10% discount for his plea of guilty. An appeal to this Court was dismissed.
8. There are differences between Dyer v R and the present matter. Significantly, the applicant in Dyer v R was only 24 years old at the time of the offending whereas the applicant was 34 years old. Although the finding of objective seriousness in that matter was at "upper end", in the present matter one of the victims was pursued through his home whilst chased by two offenders brandishing knives. He was then assaulted while a knife was held to his head.
9. In a ground of appeal alleging manifest excess the Court is often assisted by cases said to be comparable, although similarities may be identified, there will invariably be differences between the offenders' subjective cases and the facts upon which each offender was sentenced. I have found these decisions to be of assistance, but I am not satisfied that they support a conclusion that the aggregate sentence imposed upon the applicant was unreasonable or plainly unjust.
10. An aggregate sentence was imposed upon the applicant. The application for leave to appeal is against the aggregate sentence imposed and not the indicative sentences: JM v R [2014] NSWCCA 297. The indicative sentences, prior to the 25% discount for the applicant's plea of guilty, were 8 years imprisonment for count 1 (as against a maximum penalty of 14 years imprisonment) and 3 years imprisonment for count 2 (as against a maximum penalty of 7 years imprisonment). There was (notionally) significant concurrence reflected in the aggregate sentence imposed.
11. It is to be accepted that the JIRS figures suggest that this is one of the highest sentences imposed for an offence contrary to s 111(2) of the Crimes Act but I am satisfied that is because it reflects, not only the finding of slightly above mid-range of objective seriousness, but also significantly a subjective case that did not assist the applicant in any way beyond his plea of guilty.
12. The applicant was not a young man at the time of commission of this offence. He was 35 years of age. He had a lengthy criminal history. He had never sought any assistance for his drug addiction and seems to have little insight into it. He was on bail for possession of prohibited drugs at the time of the offence, which was an aggravating factor. Both the sentencing judge and Charteris DCJ (who sentenced him for an earlier matter) found him to be an unreliable historian. This presented significant difficulties for his case in mitigation and meant that the sentencing judge was unable to make nearly any favourable findings, including as to his prospects of rehabilitation.
13. Overall, I am satisfied that the sentence imposed, although stern, reflects the objective and subjective factors the sentencing judge was required to have regard to as part of the process of instinctive synthesis.
14. I would grant leave to rely upon this ground but dismiss it.

ORDERS

1. I would propose the following orders: 1. Leave to appeal granted. 2. Appeal dismissed.

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