CONSIDERATION
18In order to make good the ground relied upon, the applicant must satisfy the Court that the sentence imposed is unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357; Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321. In my view the applicant has failed to do so.
19The principal submission made on behalf of the applicant was that a conclusion of manifest excess should be reached solely by reference to sentencing statistics. That submission misunderstands, and overstates, the use to which statistical material can be put on sentence. In MLP v R [2014] NSWCCA 183, with the concurrence of Macfarlan JA and Adamson J, I had occasion to make a number of observations (commencing at [41]) regarding this issue. Those observations included the following:
(i)consistency in sentencing is not demonstrated by, and does not require, numerical equivalence. What is sought is consistency in the application of the relevant legal principles: Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520 at [48]-[49].
(ii)sentences imposed in other cases do not mark the outer bounds of the permissible sentencing discretion but stand as a yardstick against which to examine a proposed sentence. What is important are the unifying principles which such sentences reveal and reflect: Barbaro v R; Zirilli v R [2014] HCA 2; (2014) 305 ALR 323 at [41];
(iii)the presentation of sentences passed in the form of numerical tables and graphs is of limited use: Hili (supra) at [48]. This is because reference to the lengths of sentences passed says nothing about why the sentences were fixed as they were;
(iv)this Court has emphasised the need to adopt a careful approach when asked to have regard to statistics: R v Nikolovska [2010] NSWCCA 153 at [117] per Kirby J, Beazley JA (as her Honour then was) and Johnson J agreeing. A similarly careful approach is required when the Court is asked to compare a sentence imposed in one case with a sentence imposed in another: RLS v R [2012] NSWCCA 236 at [132] per Bellew J, McClellan CJ at CL and Johnson J agreeing. The need to take care in each instance arises, in part, from the fundamental fact that there will inevitably be differences, both in terms of the objective circumstances of offending and the subjective circumstances of the offender, between one case and another;
(v)the fact that a particular sentence is, by reference to statistics, the highest imposed for a single instance of particular offending does not demonstrate that the sentence is unduly harsh. As a matter of common sense, there will always be one sentence which constitutes the longest sentence imposed for particular offending: Jolly v R [2013] NSWCCA 76; (2013) 229 A Crim R 198 at [75].
20It was submitted in the present case that the relevant statistics demonstrated that 75 per cent of persons charged with an offence contrary to s. 112(2) of the Crimes Act 1900 received a sentence which was less than that imposed on the applicant. Even accepting that to be so, the suggestion that such a fact, without more, leads to the conclusion that the sentence imposed on the applicant is manifestly excessive reflects the adoption of an approach which is contrary to principle. As noted in 19 above, consistency is not demonstrated by, and does not require, numerical equivalence. Bare statistics say nothing about the circumstances of the offending, or the circumstances of the offender.
21Further, the submission that the applicant's prior offending "did not justify such a harsh sentence", and the further submission that the value and subsequent recovery of the goods supported a finding of manifest excess, both ignore the obvious, namely that these were only two of a number of factors which were relevant on sentence. Those factors were required to be balanced against his Honour's (unchallenged) findings that the offending was planned, calculated and brazen, that it was aggravated by the applicant being on conditional liberty at the time, that the applicant had demonstrated no remorse and that his prospects of rehabilitation were guarded. Further, it is relevant to bear in mind that his Honour essentially rejected the entirety of Ms Hopkins's report, about which there is no challenge in this application. Moreover, the applicant was convicted following a trial. Whilst he was obviously not to be penalised for the fact that he chose to stand trial, that necessarily meant that he was not entitled to any discount to reflect the utilitarian value of a plea of guilty.
22In my view, the submissions advanced on behalf of the applicant are completely without merit. This was a case of serious and planned offending. There was little upon which the applicant could rely in mitigation. In all of the circumstances the sentence imposed by his Honour was well within the appropriate discretionary range, particularly bearing in mind (in respect of count 1) the statutory guideposts of the maximum penalty and standard non-parole period.