Singh v R

Court of Criminal Appeal (NSW)|2019-05-10|Before: Payne JA, Harrison J, Hulme J, Hulme JJ

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant pleaded guilty to aggravated break and enter and commit a serious indictable offence, namely, robbery in company, under s 112(2) of the Crimes Act 1900 (NSW). He was sentenced to a non-parole period of 3 years commencing on 31 August 2017 and an additional term of 1 year and 6 months, being a total period of imprisonment of 4 years and 6 months. The applicant appealed against his conviction and sentence. The issues on appeal were: (i) whether a miscarriage of justice was occasioned by the applicant's guilty plea where the agreed facts did not support the charge; (ii) whether the sentencing judge failed to take into account the applicant's gambling disorder and substance use disorder as mitigating factors; and (iii) whether the sentence imposed was manifestly excessive. In relation to issue (i), counsel for the applicant withdrew the ground in the course of argument. The Court (Payne JA, Harrison and R A Hulme JJ agreeing) held at [30]-[37]: There was no arguable miscarriage of justice in the applicant's plea of guilty to the charge because the agreed facts support the charge. Section 112 of the Crimes Act uses the term "break" in precisely the same sense as it was used at common law. At common law, to knock at a door of a house with intent to rob its occupants and, upon the door being opened, to rush into the house is a "constructive breaking". The agreed facts constitute a "constructive breaking" at common law and for the purposes of s 112 of the Crimes Act. R v Stanford (2007) 70 NSWLR 474; [2007] NSWCCA 370; Ghamrawi v R (2017) 95 NSWLR 405; [2017] NSWCCA 195; Ritchie v R [2017] NSWCCA 21 applied. In relation to issue (ii), the Court granted leave to appeal but dismissed the appeal. The Court (Payne JA, Harrison and R A Hulme JJ agreeing) held at [47]-[49]: The sentencing judge property took into account the applicant's gambling and substance use disorder. It was open to her Honour to find that the applicant's gambling addiction was an explanation for the offence but not a mitigating factor. There was no error in this case in the sentencing judge failing to find that the offence was not one which provided an appropriate vehicle for general deterrence or retribution, to the full extent that such an offence might otherwise call for such a response. Johnston v R [2017] NSWCCA 53; R v Jafari [2017] NSWCCA 152; Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194; Aslan v R [2014] NSWCCA 114 applied. In relation to issue (iii), the Court granted leave to appeal but dismissed the appeal. The Court (Payne JA, Harrison and R A Hulme JJ agreeing) held at [55]-[57]: The sentence imposed was not unreasonable or plainly unjust since the condition upon which that submission was advanced, that "the applicant's offence is more properly a robbery in company", has not been established. The applicant's trial counsel had not invited the sentencing judge to consider the guideline judgment in R v Henry. Even if R v Henry had been considered, a starting point of more than 5 years was open to the sentencing judge. R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111; Hughes v R [2018] NSWCCA 2 applied.

Judgment

PAYNE JA: On 31 January 2018, Mr Singh, the applicant, pleaded guilty to one count under s 112(2) of the Crimes Act 1900 (NSW) of aggravated break and enter and commit serious indictable offence, namely robbery in company. On 6 June 2018, the applicant was sentenced by Herbert DCJ to a non-parole period of 3 years commencing on 31 August 2017 and an additional term of 1 year and 6 months, being a total period of imprisonment of 4 years and 6 months.

Relevant facts

A statement of agreed facts was tendered before the sentencing judge.
On 19 July 2017, the applicant and two co-offenders, Mr Ali Raza and Mr Tegbir Singh, attended The Star casino at Pyrmont. The offenders gambled and lost heavily. The victim of the offence, a 95 year old man, was also gambling at The Star at the time. The victim kept a large sum of cash, described in the evidence as "all of his savings" in the inner flap pocket of his jacket. One of the offenders observed the victim accessing what was apparently a large amount of cash from his pocket.
After some time, the victim left the casino to go home to his residence, a granny flat in North Strathfield. The victim's family resided in the main house on the property. The offenders followed the victim on the light rail to Central Railway Station, on the train to Strathfield Station, on another train to Concord West Station, and then on foot to the victim's residence.
A moment after the victim arrived home and closed the door of the granny flat behind him, one of the offenders knocked on the door. The victim opened the door. The offenders entered the flat by pushing the victim out of the way and back inside the flat and onto a milk crate near the front door.
One of the offenders covered the victim's mouth with his hand. One of the offenders put his hand into the inner jacket pocket of the victim and took a sum of $6,250 in cash. One of the offenders gave a $100 note back to the victim before they fled. On 15 May 2019, after the judgment was reserved, the Court was informed that it was agreed by the parties that one paragraph of the agreed facts, stating that the victim was tied by the hands loosely with an electrical extension cord which was located on the floor, should be deleted.
The offenders returned to The Star and gambled (and lost) the $6,250 in cash that they had taken from the victim.
The movements of the victim and the offenders were captured on CCTV footage. Crime scene photographs of the victim's granny flat showed an electrical extension cord near the front door.
On 11 August 2017, Tegbir Singh and Ali Raza were arrested. Tegbir Singh named the applicant as the victim's third assailant and told the police that the applicant had lost all of the money that he had earlier that day and that the motivation behind the offence was to recover the money that the applicant had lost. Tegbir Singh said, "There was no particular one person who came up with this idea, it's just what we all happened to be losing and we lost money moving away and then we saw the money and then".
On 29 August 2017, the applicant was arrested in Victoria. On 31 August 2017, he was extradited to New South Wales. On the way to Sydney, the applicant said to the police, "I didn't mean to do it, it was a mistake". He was asked, "Why did you do it?" He replied, "I lost all of my money at the casino, it was my university fees". Police said, "You robbed an elderly man". He replied, "Yeah, that's why we gave him back one hundred dollars so he can eat". During a later police interview, he told police that, whilst he was in the smoking area with Tegbir Singh and Ali Raza, one of them had told him that they had seen an old man who had money.

Objective seriousness of offending

The sentencing judge found the objective criminality to be in the mid-range of objective seriousness. Her Honour stated that "being an offence against the person is clearly a relevant factor". The circumstance of aggravation was that the offence was committed in company. Her Honour stated that "the victim was confronted by the force of numbers and more than one offender was involved in touching the victim and removing his property", and noted "that being in company is also an element of the robbery so it must not be double counted".
Her Honour found that the "fact that the offence was committed in the home of the victim" was an aggravating factor under s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (NSW) or under s 105A of the Crimes Act because the offenders knew that there was a person within a place where the offence was to be committed. Her Honour stated that in this matter "where the offenders chose to follow the victim back to his home and commit the offence of robbery in his home this is a significant matter of aggravation".
Her Honour found that the victim, being in his mid-90s, was a vulnerable person. The amount taken from the victim was a not insubstantial sum of money and was described as all of the victim's savings. Her Honour accepted that the offence was of short duration and involved minimal violence but noted that there was physical contact with the victim when he was pushed into the premises onto a milk crate.

Subjective matters

A pre-sentence report dated 28 May 2018 and a report by a Dr Furst dated 16 May 2018 were before the sentencing judge. Her Honour made the following findings about the subjective factors in the applicant's case: 1. the applicant is an Indian national living in Australia. He was 26 years old at the time of the offence. He had a stable and supportive upbringing in India and obtained a Bachelor's degree in computer science and engineering. The applicant denied any history of childhood trauma and there were no indications of conduct disorder. He had no prior convictions; 2. in 2015, the applicant arrived in Australia on a student visa. He commenced a Master's degree in business at a private college in Victoria. At the time of the offence, he was employed as a taxi driver in Victoria; 3. shortly after his arrival in Australia, the applicant developed a gambling addiction. He gambled between $1,000 and $5,000 per day and went to the Crown casino in Melbourne even when he had no money. He gambled and lost the money sent to him by his parents for tuition fees, gambled and lost his parents' retirement fund of $45,000-$50,000, and borrowed money from friends which was lost. He was unable to pay his tuition fees and he deferred his studies in July 2017. The applicant was unable to pay his rent and he became homeless in the six months prior to the offence. The applicant saw a psychologist about his gambling on three or four occasions; 4. on the day of the offence, the applicant had travelled to Sydney with the intention to gamble $5,000 his father had sent him for his tuition fees. He told Dr Furst that he had "no luck" in Melbourne and thought he might have more luck in Sydney. Dr Furst stated that the applicant "maintained that Tegbir [Singh] told [him] about the victim and expressed an intention to rob him". The pre-sentence report stated that the applicant "somewhat minimised his role in the planning of the offence as he stated his friend had organised the plan after seeing the victim and he simply took part as he was 'desperate' for money at the time". The applicant told Dr Furst, "I wasn't thinking about robbery at the time. I was thinking about the money I had lost, why I lost and why I came to Sydney". He further stated, "I was thinking millions of times, 'don't rob'. I was thinking more than millions of time[s], 'rob'. I couldn't refuse, as I lost my fees again. It was the fifth time I [lost] my fees."
The applicant denied any history of "problematic" drug and alcohol abuse, but disclosed regular substance use. From the age of 19 in India, he consumed alcohol on a regular basis, up to 300-400ml of scotch whisky at a time. In Australia, he consumed 7-8 standard drinks per day, smoked 1-2g of cannabis and used 0.5g of methylamphetamine per day. He used opium on occasions.
Dr Furst diagnosed the applicant with substance use disorder (alcohol, cannabis, methylamphetamines) and severe gambling disorder. Dr Furst noted that pathological gambling was previously classified by the American Psychiatric Association as a compulsive disorder, and that it was reclassified in 2013 in the Diagnostic and Statistical Manual of Mental Disorders 5 ("DSM-5") as a "substance-related and addictive disorder" (gambling disorder), which nomenclature reflected the similarities between pathological gambling and the habitual use of drugs.
In relation to the applicant's substance use disorder and gambling disorder, her Honour said, relevantly: "In relation to a mental state examination there was no evidence of depression or elevated mood. The diagnosis was of a substance use disorder being alcohol, cannabis and methylamphetamine and a gambling disorder. It was said the offender has excessive drinking from age of 19, use of drugs being cannabis and methylamphetamine whilst studying and working in Melbourne between 2015 and his arrest being consistent with a substance use disorder. Pathological gambling was previously classified by the American Psychiatric Association as a compulsive disorder. It has now been re-classified in the DSM 5 as a substance-related and addictive disorder (gambling disorder) reflecting the similarities between pathological gambling and habitual use of drugs. The doctor referred to the fact that there was clear evidence of escalating substance use for the offender and that he was a man who is consumed with thoughts of gambling. … Relating to his prospects of rehabilitation it was said he has no criminal antecedents, he has insight into his addiction issues and gambling problems and is aware of the seriousness of his offending. He has no major mental illnesses and is probably above average intelligence, that the offender is open to future treatment counselling and rehabilitation. The psychiatrist said "addictive disorders and gambling disorders tend to be chronic and relapsing conditions that can have severely deleterious impact on the lives of individuals suffering from this disorder, including emotional, financial and legal problems impact on physical health and increased risk of suicide". It is said the offender will require ongoing assertive follow-up and counselling to prevent relapse of his drink, drug use and/or gambling."
Her Honour concluded that the applicant had reasonable prospects of rehabilitation and was unlikely to offend if he addressed his gambling addiction and illicit drug use.
Her Honour found special circumstances in relation to the applicant's gambling and substance use.

The appeal

By notice of appeal dated 27 November 2018, the applicant sought leave to appeal against his conviction and sentence on three grounds: 1. The applicant's conviction constitutes a miscarriage of justice. 2. The sentencing judge erred in not taking into account the applicant's gambling disorder and substance abuse disorder as mitigating factors. 3. The sentence imposed is manifestly excessive.

Ground 1

Mr Marr, who appeared for the applicant in this Court, withdrew ground 1 in the course of argument. It is nonetheless desirable to explain the submissions made in writing and why it was that the ground was withdrawn.

Applicant's submissions

Although the applicant pleaded guilty, ground 1 alleged that a miscarriage of justice had occurred as the agreed facts did not support the charge. This is because, so it was originally submitted, on the agreed facts the applicant did not "break" into the victim's house and thus he should be permitted to withdraw his plea of guilty. The relevant passage in the agreed facts relating to this ground of appeal is as follows: "A moment after the victim got into his granny flat, one of the offenders knocked on the door. The victim opened the door. The offenders pushed the victim inside the granny flat and onto a milk crate near the front door."
The applicant submitted that the agreed facts support the commission of the offence of robbery in company. It was submitted (at least in writing) that where the occupant or owner of the premises opens the door to the premises in response to a knock on the door, there is no "breaking", actually or constructively. The applicant and the co-offenders did not trick the victim by knocking on the door and causing him to open it. They did not interfere with the building's physical security in a recognised way.
The applicant submitted that if the Court accepts that the agreed facts do not support the offence to which the applicant has pleaded guilty, specifically, that he did "break" and enter the victim's dwelling-house, the appropriate course is to permit the applicant to withdraw his plea. Where the admitted facts do not support the offence charged, it has been accepted as giving rise to a miscarriage of justice.

Consideration of ground 1

It is possible, if the agreed facts had not supported the essential elements of the charge, that it would have been appropriate to allow the applicant to withdraw his plea of guilty. Whether that course was appropriate would have involved a close consideration of the precise circumstances in which the plea had come to be entered and the other evidence available to the sentencing judge: Ritchie v R [2017] NSWCCA 21 at [23]-[25] (Johnson J, with whom Simpson JA and Fagan J agreed).
Section 112 of the Crimes Act provides, relevantly: 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, … 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.
To be guilty of the offence under s 112(1)(a), the applicant must be shown to be a person who both "breaks" and "enters" a dwelling-house or other building. In R v Stanford (2007) 70 NSWLR 474; [2007] NSWCCA 370 at [25], Simpson J (Grove and Hulme JJ agreeing) stated: "The Crimes Act contains no definition of the word "break". Examination of the case law shows that fine distinctions have been drawn between what does, and what does not, constitute "breaking" for the purposes of the section. The list may be illustrated by reference to Mr Peter Gillies' text, Criminal Law (1985) Sydney, The Law Book Co Ltd. Mr Gillies states, at 403, the following proposition[s]: 'An actual breaking requires, broadly, that [the accused] interfere with the building's physical security, in a recognised way'."
It is common ground here that there was no actual breaking committed by the applicant. The question is whether this was a case where, as Simpson J explained in R v Stanford at [26], again by reference to Gillies' 1985 text, there has been a "constructive breaking". Her Honour said: "5. 'Where [an accused] obtains entry into premises by a trick on a person within, or intimidation of that person, [the accused] is deemed by the law to have committed a breaking, which concept may be referred to as constructive breaking.' 6. 'It has been held that where, for the purposes of entrapment, a person in possession of premises opens the door so as to permit [the accused] to enter, [the accused] does not break and enter within the meaning of the criminal law.'"
The question of "constructive breaking" has been revisited by this Court more recently. In Ghamrawi v R (2017) 95 NSWLR 405; [2017] NSWCCA 195 at [97], Leeming JA (Bellew and Lonergan JJ agreeing), after a magisterial survey of the history of "breaking" at common law and in the colonial predecessors to the Crimes Act offences which became s 112 of the Crimes Act, summarised the law in relation to "constructive breaking" as follows: "I conclude that the position is as follows: (1) If a person intends to commit an unlawful act at the time he or she is given permission to enter a dwelling-house, then he or she will be a trespasser and apt to be guilty of the offences created by more modern statutes, including those in England and Victoria, which have removed the element of "breaking". (2) If a person intends to commit an unlawful act at the time he or she is given permission to enter, and that permission is obtained by a trick or an artifice or a threat, then there will be a constructive breaking even if entry is effected without using any force, which is sufficient to satisfy the element of breaking at common law and under statutory offences derived from burglary. (3) However, if a person intends to commit an unlawful act on premises which he or she is permitted to enter, and that permission has been obtained without any trickery, artifice or threat, and entry is effected without using any force, then there is neither a constructive breaking nor an actual breaking. In that circumstance, the person will be committing the offence created by s 111, but not that created by s 112 (nor will he or she be committing burglary at common law)." (Emphasis added.)
As Leeming JA explained in Ghamrawi v R at [83], s 112 of the Crimes Act uses the term "break" in precisely the same sense as it was used at common law. Given the legislative context and history, it is clear that that term carries its meaning at common law. Simpson J made observations to the same effect in R v Stanford at [24]-[31]. It is thus necessary to determine whether the agreed facts described at [22] above constitute a "constructive breaking" at common law.
Consideration of some of the most venerable sources of the common law on this question demonstrate that, at common law, to knock at a door of a house with intent to rob its occupants and, upon the door being opened, to rush into the house is a "constructive breaking". That is because, although there was no actual breaking in the facts just described, the law will not suffer itself to be trifled with.
In Hawkins, Pleas of the Crown 1716-1721 (Professional Books, 1980) Bk 1, c 38 at 102, the principle is stated thus: "And it has also been resolved, That where divers Persons came to a House with an Intent to rob it, and knocked at the Door, pretending to have Business with the Owner, and being by that Means let in, rifled the House, they were guilty of Burglary." [1]
Blackstone, Commentaries on the Laws of England (Clarendon Press, 1769) Bk 4, c 16 at 226 states: "So also to knock at a door, and upon opening it to rush in, with a felonious intent; or, under pretence of taking lodgings, to fall upon the landlord and rob him; or to procure a constable to gain admittance, in order to search for traitors, and then to bind the constable and rob the house; all these entries have been adjudged burglarious, though there was no actual breaking: for the law will not suffer itself to be trifled with by such evasions, especially under the cloke of legal process." (Footnote omitted.)
By the mid-twentieth century these longstanding principles of the common law regarding "breaking" were understood to be well settled. Gillies' Criminal Law, a leading Australian text, which was referred to with approval on this subject by this Court in R v Stanford, is consistent with the principle as described by Hawkins and Blackstone. It is necessary to refer to texts in England and Wales before the commencement on 1 January 1969 of the Theft Act 1968 (UK) c 60 which did away with the notion of "breaking". In JW Cecil Turner (ed), Kenny's Outlines of Criminal Law 1902 (Cambridge University Press, 19th ed, 1966) at 257, the principle is explained thus: "By a false analogy the term 'constructive breaking' has been traditionally employed to indicate also an actual breaking, yet one effected not by the burglar himself but by some innocent person at his instigation. Such a case, of course, is one which properly falls within the maxim 'qui facit per alium facit per se'; so that it is inaccurate and may be misleading to call it a 'constructive breaking'. Thus if an intending burglar gains admittance to the house by threats of violence, which put the inmates into such fear that they open the door to him, there is a breaking for which he is legally responsible. Or, again, if, as is more common, he rings the bell like an ordinary visitor, and then, when the door is accordingly opened to him, he comes in on pretence of wanting to speak to some member of the household, or on pretence of being a representative of some authority or business firm whose duty it is to inspect or repair something inside the house, this is held to be as true as breaking by him as if he had himself opened the door. But if a pretence thus attempted should fail to deceive (so that, though the door be opened to the evil-doer, it is opened solely for the purpose of entrapping him), the law does not regard such an opening as being in any way his act, and therefore does not hold it to be, even 'constructively', a breaking." (Footnotes omitted) (Emphasis in original.)
In the 1966 edition of Archbold, TR Fitzwalter Butler and M Garsia (eds), Archbold: Pleading, Evidence and Practice in Criminal Cases 1822 (Sweet & Maxwell, 36th ed, 1966) c 10, s 4 at 658, being the last edition of that text before the Theft Act did away with "breaking", the principle is described thus: "As, for instance, if a man knocks at a door, and upon its being opened, rushes in with a felonious intent; or upon pretence of taking lodgings, falls upon the landlord and robs him; or procures a constable to gain admittance in order to search for traitors, and then binds the constable and robs the house; all these entries have been adjudged burglaries, although there was no actual breaking; for the law will not suffer itself to be trifled with by such evasions, especially under the cloak of legal process." (Citations omitted.)
On the facts here agreed, the offenders (including the applicant) came to the victim's house with intent to rob him. The offenders knocked on the door and, upon the door being opened, gained entry by rushing into the house, violently pushing the victim out of the way. That was "constructive breaking" at common law and for the purposes of s 112 of the Crimes Act.
In those circumstances there was no arguable miscarriage of justice in the applicant's plea of guilty to the charge. Mr Marr was correct to withdraw ground 1 of the notice of appeal.
It remains only to observe that over 11 years ago in R v Stanford, Simpson J explained the undesirability of fine distinctions about the meaning of "breaking" at common law continuing to govern criminal liability under s 112 of the Crimes Act. Her Honour said: "[47] I would add, however, that I see no useful purpose to be served by perpetuation of the fine distinctions which have been set out above. It hardly accords with the modern approach to criminal law to regard a breaking (as identified in the authorities) as criminal, while taking advantage of a partly ajar door or window does not constitute a breaking. Any entry to domestic or business premises for the purpose of committing criminal offences ought to be subject to the same criminal sanctions. Perhaps it is time s 112 attracted the attention of law reformers."
I respectfully agree with her Honour that any entry to domestic or business premises for the purpose of committing criminal offences ought to be subject to the same criminal sanctions and that s 112 of the Crimes Act does not affect that outcome.

Applicant's submissions

The applicant submitted in writing that her Honour did not consider that moral culpability, as assessed for the purposes of sentencing, may be reduced, in circumstances which fall short of demonstrating a lack of capacity to exercise judgment or demonstration that the act was not voluntary. It was submitted that, in the applicant's circumstances, it seemed obvious that the applicant's capacity to exercise judgment was impaired. Consequently, the need for general deterrence was reduced. It was submitted that the reclassification of pathological gambling as a "substance related and addictive disorder" (gambling disorder) in DSM-5 does not significantly change the nature or severity of the disorder.
It was submitted orally that there was a nexus between the applicant's gambling disorder and the offence because the applicant went to the casino, stole the money and then returned to the casino to gamble the money. It was submitted that, when her Honour said "the offender has reasonable prospects of rehabilitation. He needs to address his gambling addiction and his illicit drug usage if he is to resist committing further offences", her Honour in fact found that a nexus existed.
It was submitted that the sentencing judge erred in approaching the matter on the basis that Johnston v R [2017] NSWCCA 53 said that, unless it was other than a willed act or judgment was impaired, the applicant's gambling addiction could not be taken into account. It was submitted that the decision of Basten JA in R v Jafari [2017] NSWCCA 152 had held that this approach was incorrect.

Consideration of ground 2

The case law is clear as to the various ways in which an offender's adverse mental condition may be relevant to the assessment of sentence. In the well- known passage in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177], McClellan CJ at CL summarised the principles to be applied in sentencing an offender suffering from an adverse mental condition: "• Where the state of a person's mental health contributes to the commission of the offence in a material way; the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence. • It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed. • It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced. • It may reduce or eliminate the significance of specific deterrence. • Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence …" (Citations omitted.)
In Aslan v R [2014] NSWCCA 114, Simpson J (Adams and McCallum JJ agreeing) examined the principles derived from De La Rosa and explained: "[34] It will be observed that none of these principles is stated as absolute. What is recognised is the potential effect, in any given case, of a mental disability. It does not follow that, because an offender suffers from some mental impairment or disability, his or her moral culpability is reduced (principle 1); nor that he or she is an inappropriate vehicle for general deterrence (principle 2); nor that a custodial sentence will weigh more heavily upon him or her (principle 3); nor that the significance of specific deterrence is reduced or eliminated (principle 4). Nor, on the other hand, does it follow that a person with mental impairment is a danger to the community, indicating a need for community protection (principle 5). Too often, the mere fact of mental illness is advanced to this Court as necessarily calling for a more lenient sentence. What the principles spelled out by McClellan CJ at CL do is direct attention to considerations that experience has shown commonly arise in such cases. There is, however, no presumption. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for. [35] A central question (but not the only question) is whether the mental illness or other condition had a causative role to play in the commission of the offence or offences for which the offender is to be sentenced. Counsel who appeared for the applicant accepted that this was the principal issue in this case. If it is concluded that there was a causal connection, then the offender's moral culpability may be reduced (see principle 1). That connection may also warrant lesser attention being paid to the need for the sentence to reflect considerations of general deterrence (principle 2)." (Emphasis in original.)
In Johnston v R, Bathurst CJ (Johnson and Fagan JJ agreeing) stated: "[36] This Court has consistently held that the fact that offences were committed to feed a gambling addiction will not generally be a mitigating factor at sentence: R v Molesworth [1999] NSWCCA 43 at [24], [30]; R v Todorovic [2008] NSWCCA 49 at [62]; R v Huang, R v Siu (2007) 174 A Crim R 370; [2007] NSWCCA 259 at [42]; Marks v R [2009] NSWCCA 24 at [29]; Le v R [2006] NSWCCA 136 at [32]; Assi v R [2006] NSWCCA 257. In the latter case Howie J, with whom Tobias JA and Rothman J agreed, stated at [27] that although the gambling habit may explain the fall into serious criminal conduct, it is a rare case where the offender can seek mitigation of penalty based on an addiction to gambling even when it is pathological."
The passage in Basten JA's decision in R v Jafari (Johnson and Davies JJ agreeing) relied upon by the applicant does not involve any inconsistent statement of principle. R v Jafari was another case where the fact that the offence arose out of a gambling addiction was not a basis for leniency. By reference to Johnston v R, Basten JA said: "[93] It is nevertheless clear from the authorities relied upon in Johnston, that moral culpability, as assessed for the purposes of sentencing an offender, may be reduced, in circumstances which fall short of demonstrating a lack of capacity to exercise judgment or demonstration that the act was not voluntary. A better understanding as to the susceptibility of an individual to addictive behaviour and a better understanding of the changes to personality and indeed the physical symptoms which can accompany addictive behaviour may satisfy a court in a particular case that the offence is not one which provides an appropriate vehicle for general deterrence or retribution, to the full extent that such an offence might otherwise call for such a response. In any event, the circumstances set out above indicate that the sentencing judge was correct not to rely on the fact that the offence arose out of a gambling addiction as a basis for leniency."
In this case, the sentencing judge considered the question of whether there was a causal connection between the applicant's gambling disorder and his offending. The evidence established that the applicant was motivated by his gambling addiction to commit the offence. It was open to the sentencing judge to find that the gambling addiction was an explanation for the conduct but not a mitigating factor. A causal connection between the disorder and the offence had not been established on the balance of probabilities. There was no error in this case in her Honour failing to find that the offence was not one which provided an appropriate vehicle for general deterrence or retribution, to the full extent that such an offence might otherwise call for such a response.
I reject the apparently alternative submission that, by the finding that "the offender has reasonable prospects of rehabilitation. He needs to address his gambling addiction and his illicit drug usage if he is to resist committing further offences", her Honour in fact found that a causal nexus between the gambling disorder and the offending existed. That submission is inconsistent with her Honour's clear findings that the gambling addiction provided an explanation for the offence but that "it is not a mitigating factor".
The sentencing judge properly took the applicant's gambling disorder and substance use disorder into account, finding special circumstances in the case of each offender based on the need to address their gambling addictions and, in the case of the applicant, based on the need to minimise the risk of relapse into drug abuse. Her Honour said: "Each offender would benefit from an extended period of supervision to ensure that he has the opportunity to address his gambling addiction while in the community and for Ali Raza and Amandeep Singh there is a need to address drug relapse prevention."
I would grant leave to appeal against sentence but dismiss ground 2.

Applicant's submissions

The applicant submitted that, if it is accepted that the applicant's offence is more properly a robbery in company, aggravated by having been committed in the home of the victim, the sentence imposed was unreasonable or plainly unjust. The amount of money taken, while significant, was not a large amount. The victim was not injured and, while there was physical contact, there was no real violence.
The applicant submitted that her Honour should have considered the guideline judgment in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111, which said that a sentence of 4-5 years for the full term for armed robbery is a starting point where there has been a late plea. It was submitted that R v Henry was also applicable to robbery in company. If R v Henry had been considered, it was submitted that the starting sentence would have been less than 5 years, probably less than 4 years, and the non-parole period significantly less.
It was submitted that her Honour made only a modest finding of special circumstances and failed to take into account the applicant's serious mental disorders.

Consideration of ground 3

In Hughes v R [2018] NSWCCA 2, this Court summarised the principles relating to a claim that a sentence imposed is unreasonable or plainly unjust: "[86] Consideration of sentence appeal When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]: (1) appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases; (2) intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error; (3) it is not to the point that this Court might have exercised the sentencing discretion differently; (4) there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and (5) it is for the applicant to establish that the sentence was unreasonable or plainly unjust. See Obeid v R [2017] NSWCCA 221 (R A Hulme J, Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing) at [443]."
The sentence imposed was not unreasonable or plainly unjust. The condition upon which this submission was advanced, that "the applicant's offence is more properly a robbery in company", has not been established. Further, as Mr Marr accepted in oral submissions, the sentence imposed was within the permissible range: "MARR: Yes, well ground 3 is really an extension of ground 2 in that by failing to take into account something that was relevant material that should have been taken into account it resulted in a sentence that was unreasonable or unjust. HULME J: Does that mean if ground 2 fails ground 3 should fail too? MARR: I think four and a half years with a non-parole period of three years it can be said that it's harsh but it's within range and it would be manifestly excessive if on the application of House v The King principles there's an error. HULME J: So the entire appeal against sentence depends upon the establishment of the patent error relating to the gambling disorder. MARR: Yes, your Honour."
As to the alleged error in failing to apply R v Henry, the applicant's counsel did not invite the sentencing judge to consider that guideline judgment either in writing or orally. It would not be appropriate to apply R v Henry without consideration of the context in which the offence occurred.
Even if R v Henry was applied to the present case, there was more than a limited degree of planning, the applicant was not overly youthful, the 95 year old victim was highly vulnerable, $6,250 was not an insignificant amount of money to the victim, and it cannot be said that pushing a 95 year old man over in his home and onto a milk crate involves "no real violence". If R v Henry had been considered, a starting point of more than 5 years was open to her Honour. In any event, the guideline judgement in R v Henry is not designed to confine the sentencing discretion in the way here submitted.
Ground 3 should be dismissed.

Conclusion and orders

For the foregoing reasons I propose the following orders: 1. Application for leave to appeal granted. 2. Appeal dismissed.
HARRISON J: I agree with Payne JA.
R A HULME J: I agree with Payne JA.

Endnote

Until the commencement of the Theft Act 1968 (UK) c 60 on 1 January 1969, "breaking" was an element of the offence of burglary. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 June 2019

Crimes Act 1900(NSW)s 112

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