Stanton v R

Court of Criminal Appeal (NSW)|2024-09-25|Before: Davies J, Garling J, Chen J

Solicitors: B Morrison (Applicant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2022/33644; 2022/53685; & 2022/150273 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: Nil Date of Decision: 2 June 2023 Before: McGrath SC DCJ File Number(s): 2022/33644; 2022/53685; & 2022/150273

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant, Blake Stanton, pleaded guilty in the Local Court to the following offences: 1. One count of break, enter and steal contrary to s 112(1)(a) of the Crimes Act 1900 (NSW); 2. One count of robbery armed with an offensive weapon contrary to s 97(1) of the Crimes Act; 3. Two counts of aggravated break, enter and steal contrary to s 112(2) of the Crimes Act; 4. One count of knowingly drive stolen conveyance contrary to s 154A(1)(b) of the Crimes Act; 5. One count of damage property in company contrary to s 195(1A)(a) of the Crimes Act; 6. One count of damage property in company by fire contrary to s 195(1A)(b) of the Crimes Act; and 7. Three counts of use an offensive weapon in company with intent to commit an indictable offence contrary to s 33B(2) of the Crimes Act. The applicant was sentenced in the District Court to an aggregate sentence of imprisonment for 11 years with a non-parole period of 6 years. The applicant's offending occurred in two tranches, one in the community and the other in custody. In relation to the community offending, sometime between 9:30pm on 14 January 2022 and the following morning the applicant entered a residence in Maryland, Newcastle and took the wallet and the keys to a Mercedes CLA250 in front of the house. There were at least five people asleep in the house at the time. Three days later, on 18 January 2022, the applicant was in the stolen Mercedes alongside Aaron Creighton and Trae Reid. Over the course of the night of 18 January 2022, the applicant, Mr Creighton and Mr Reid committed offences at five different establishments. These offences included threatening staff members at the Anna Bay Hot Bread Shop and the Blackbutt Hotel. On 1 February 2022 the applicant was seen driving a motorcycle that was stolen. The offending in custody occurred on 20 February 2020 at Parklea Correctional Centre where the applicant and Mr Creighton were being held on remand and their wing was locked down. The applicant and Mr Creighton left their cell and threatened a prison officer with a weapon. They then threatened two other prison officers with their weapons. Following this the applicant and Mr Creighton began breaking and damaging property in the prison. The offenders then lit a series of four fires. The applicant and Mr Creighton were eventually restrained and arrested following the use of grenades and projectiles by the incident response team and riot squad officers. The applicant was found to have reduced moral culpability due to the profound deprivation, trauma and drug use of his upbringing. The sentencing judge also considered the applicant's youth during sentencing. However, protection of the community and general deterrence were still significant matters for the purposes of sentencing. The sentencing judge also accepted that the applicant felt genuine remorse for his offences and that he had reasonable prospect of rehabilitation. The sentencing judge noted that the applicant was on bail for other offences at the time. The sentencing judge found special circumstances and reduced the statutory ratio to 54.5%. The sentencing judge subsequently sentenced the co-offender Mr Creighton to an aggregate sentence of imprisonment for 12 years with a non-parole period of 7 years. Mr Creighton was charged with and sentenced for some of the same offences for which the applicant was sentenced but each also committed, and was sentenced for, other offences. One of the offences for which Mr Creighton was sentenced involved armed robbery causing wounding. Both the applicant and Mr Creighton had similarly deprived backgrounds, both were on conditional liberty at the time of the offending but Mr Creighton's prior criminal record was worse than the applicant's. The applicant sought leave to appeal against his sentence on two grounds: Ground One: The applicant has a justifiable sense of grievance at the lack of disparity between his sentence and that of his co-offender Aaron Creighton. Ground Two: His Honour erred by imposing a sentence that was manifestly excessive by: 1. Imposing excessively high indicative sentences; 2. Excessively accumulating the various indicative sentences; and 3. Having insufficient regards to the applicant's subjective case. Ground Two was dealt with first, because considerations of parity assume that the sentence is otherwise free from error. The Court (per Davies J, Garling and Chen JJ agreeing) held, dismissing the appeal: As to Ground 2: (1) The indicative sentences were well within the range available to the sentencing judge. In any event, the fact that some indicative sentences are manifestly excessive does not necessarily mean that the aggregate sentence is manifestly excessive: [63], [77] (Davies J), [100] (Garling J), [114] (Chen J). BJS v R [20213] NSWCCA 123; (2013) 231 A Crim R 537; PD v R [2012] NSWCCA 242, cited. (2) It will be difficult for an applicant to establish error from the failure of a sentencing judge to refer to a comparative case not drawn to the sentencing judge's attention: [69] (Davies J), [100] (Garling J), [114] (Chen J). El Masri v R [2022] NSWCCA 27; Rowland v R [2024] NSWCCA 187; Simpson v R [2019] NSWCCA 137, cited. (3) A large degree of accumulation for a remand prisoner who offends while in custody is consistent with the legislative policy of s 56 of the Crimes (Sentencing Procedure) Act 1999 (NSW): [76] (Davies J), [100] (Garling J), [114] (Chen J). Haines v R [2021] NSWCCA 149; R v Jeremiah [2016] NSWCCA 241, cited. (4) The nature of the offending involved multiple establishments, threatening members of the public and what amounted to a riot in custody. The sentencing judge reduced the applicant's moral culpability for his youth and deprived background and also found special circumstances which reduced the statutory ratio to 54.5%. Given these circumstances the aggregate sentence could not be said to be a manifestly excessive sentence: [77]-[80] (Davies J), [100] (Garling J), [114] (Chen J). (5) Manifest excess is a conclusion reached about any sentence the subject of the appeal. It does not arise from any specific error. It concerns a latent, not a patent, error. In that way, the ground of appeal was inappropriately framed: [99] (Davies J), [102]-[103], [109] (Garling J), [114] (Chen J). CMB v Attorney General for NSW (2015) 256 CLR 220; [2015] HCA 9; Hili v The Queen (2010) 242 CLR 530; [2010] HCA 45; House v The King (1936) 55 CLR 499; [1936] HCA 40; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited. As to Ground 1: (1) The applicant does not have a justifiable sense of grievance for the minor disparity in the aggregate sentences. The sentencing judge gave detailed consideration to parity and the indicative sentences were either identical or explicable by a Form 1. The sentencing judge took the offenders' similar backgrounds and youth into account in the same way. Mr Creighton ultimately received an increased sentence due to his worse criminal history and the more serious offence involving wounding. The disparity between sentences was entirely appropriate in the circumstances: [92]-[96] (Davies J), [100] (Garling J), [114] (Chen J). Dunn v R [2023] NSWCCA 1; Lam v R [2014] NSWCCA 50; Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 77; Wang v R [2023] NSWCCA 208, cited.

JUDGMENT

DAVIES J: The applicant pleaded guilty in the Local Court to the following offences:

H86249952 Sequence 1: Break, enter and steal contrary to s 112(1)(a) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is imprisonment for 14 years and there is no standard non-parole period. Sequence 12: Robbery armed with an offensive weapon contrary to s 97(1) of the Crimes Act. The maximum penalty for this offence is imprisonment for 20 years and there is no standard non-parole period. Sequence 20: Aggravated break, enter and steal contrary to s 112(2) of the Crimes Act. The maximum penalty for this offence is imprisonment for 20 years and there is a standard non-parole period of 5 years. Sequence 21: Aggravated break, enter and steal.

H159371701 Sequence 2: Knowingly drive stolen conveyance contrary to s 154A(1)(b) of the Crimes Act. The maximum penalty for this offence is imprisonment for 5 years and there is no standard non-parole period.

H336945396 Sequence 2: Damage property in company contrary to s 195(1A)(a) of the Crimes Act. The maximum penalty for this offence is imprisonment for 6 years and there is no standard non-parole period. Sequence 3: Damage property in company by fire contrary to s 195(1A)(b) of the Crimes Act. The maximum penalty for this offence is imprisonment for 11 years and there is no standard non-parole period. Sequences 5, 6 and 7: Use an offensive weapon in company with intent to commit an indictable offence contrary to s 33B(2) of the Crimes Act. The maximum penalty for this offence is imprisonment for 15 years and there is no standard non-parole period.

Attached to H86249952/12 there was a Form 1 document in respect of which the applicant asked the sentencing judge to take the following offences into account: Sequence 4: Be carried in a conveyance taken without the consent of the owner contrary to s 154A(1)(b) of the Crimes Act. Sequence 25: Aggravated break and enter dwelling in company with intent to steal contrary to s 113(2) of the Crimes Act. . Sequence 22: Aggravated break and enter dwelling in company with intent to steal. Sequence 14: Be carried in a conveyance taken without the consent of the owner. Sequence 23: Enter building/land with intent to commit indictable offence contrary to s 114(1)(d) of the Crimes Act.
Attached to H159371701/2 there was a second Form 1 document in respect of which the applicant asked the sentencing judge to take into account the following offence: Sequence 3: Unlicenced for class C, R, LR or MR contrary to s 53(1)(a) of the Road Transport Act 2013 (NSW).
The applicant was committed for sentence to the District Court. On 2 June 2023 Judge McGrath SC sentenced the applicant to an aggregate sentence of imprisonment for 11 years commencing 4 April 2022 and expiring 3 April 2033 with a non-parole period of 6 years expiring 3 April 2028.
It will be convenient to set out the indicative sentences when the facts are detailed. The applicant was accorded a discount of 25% for the early pleas for all of the offences.
Some, but not all, of the offences were committed by the applicant in company with Aaron Creighton and Trae Reid. One of the grounds of appeal relies on what is said to be a disparity between the applicant's sentence and that given to Mr Creighton, but not Mr Reid.
The applicant now seeks leave to appeal on the following grounds: Ground One: The applicant has a justifiable sense of grievance at the lack of disparity between his sentence and that of his co-offender Aaron Creighton. Ground Two: His Honour erred by imposing a sentence that was manifestly excessive by: 1. Imposing excessively high indicative sentences; 2. Excessively accumulating the various indicative sentences; and 3. Having insufficient regards to the applicant's subjective case.
The applicant requires an extension of time. A Notice of Intention to appeal was filed within time but expired about six weeks before the appeal was filed. The delay arose because the applicant was waiting for the transcripts of the sentence hearings of the applicant and the co-offender Mr Creighton. The Crown did not oppose an extension. An extension of time should be granted.

The offending

The applicant was sentenced on the basis of a statement of agreed facts which were summarised by the sentencing judge. The offending was principally committed in two tranches, with the offence of knowingly drive a stolen conveyance being separate from those two tranches of offending.

H86249952

The first offence took place on 15 January 2022 and was committed by the applicant alone. At some time between 9:30pm on 14 January 2022 and 9:45am the following morning, the applicant entered a residence at Maryland, a suburb of Newcastle, by ripping the flyscreen off the screen door and thereafter sliding the front door open. There were at least five people asleep in the house at the time.
The applicant took the wallet of the homeowner containing $400 in cash as well as cards, and he also took the keys to a Mercedes CLA250 parked on the street in the front of the house. The break-in was discovered on the morning of 15 January when the wallet, the car keys and the car were discovered missing. The vehicle was recovered a few days later and the applicant's DNA was found in the car. This offence constituted sequence 1.
The sentencing judge assessed sequence 1 as being below the midrange of objective seriousness and indicated a sentence of 2 years 6 months.
Three days later, on 18 January 2022, the applicant together with Mr Creighton and Mr Reid were in the stolen Mercedes. They parked at 3:00am in front of the Anna Bay shopping village. One of them was carrying a crowbar. They entered the Anna Bay Hot Bread shop by opening the screen door which had been closed. The lights were on because Mrs Hong Lu, the owner of the shop, was in the rear room. The working day had started and she was preparing bread for sale in the shop.
One of the offenders grabbed the till from the front counter and took it back outside. Mrs Lu had heard movement in the main room of the shop. When she entered the shop from the back she observed a male in dark clothing and wearing a black balaclava. She saw that the till was missing.
The applicant was holding the crowbar and raised it above his head towards her to discourage her from following him and the other offenders. The offenders got into the Mercedes and drove away. The till only contained $20.00, mostly in silver coins. This offence constituted sequence 20.
The sentencing judge found that the offence was in the lower end of the range of objective seriousness, certainly below midrange. His Honour indicated a sentence of imprisonment for 2 years 6 months with a non-parole period of 18 months.
Some minutes later CCTV captured the three offenders at the Ampol Service Station at Salt Ash. They got out of the Mercedes and attempted to open the front door of the service station using the crowbar, but they were unsuccessful. One of the offenders then used the crowbar to smash in the window of the afterhours service area. That offender reached through the broken window and opened the till but discovered it was empty. They then got back into the stolen Mercedes and left.
This offence constituted sequence 25 of aggravated break and enter with intent to steal, and the applicant asked for it to be taken into account on the Form 1 in relation to sequence 12. The applicant also asked for the offence of being carried in a conveyance, being the Mercedes, without consent (sequence 4) to be taken into account in relation to sequence 12.
A short time later the offenders drove the stolen Mercedes to the Pit Stop Service Station at Salt Ash. They pulled into the service station and used a crowbar to jemmy open the front door. They then forcibly opened the cigarette cupboard taking $7,000 worth of cigarettes as well as some packets of Red Bull soft drinks. This offence constituted sequence 21.
His Honour assessed the objective seriousness at below the midrange and indicated a sentence of imprisonment for 2 years with a non-parole period of 15 months.
About half an hour later, CCTV captured the offenders entering the Jesmond Post Office by jemmying open the front door with the crowbar. Once inside they attempted to force open the safe and a display cabinet but they were unsuccessful and they left the store empty handed. That offence constituted sequence 22 on the Form 1 in relation to sequence 12.
The offenders then drove to the vicinity of the Blackbutt Hotel at New Lambton. It was now about 4:00am. The cleaner of the hotel, Mr Aryawan, arrived outside the hotel to commence work. After eating his breakfast in the car he got out of the car and saw the three offenders standing close to the driver's side door of his car. One of them had a pen-sized knife in his hand and pointed it at Mr Aryawan. They demanded his wallet, phone and watch which he handed over to them. They directed him to open the door to the hotel and he did so.
The applicant who was holding a crowbar told him to turn off the alarm, to turn on the lights, and to show them where the money was. They demanded keys for the ATM but Mr Aryawan said that he was only the cleaner and he did not know where the keys were. They found a set of keys and tried to open the ATM but were unsuccessful. Whilst they were endeavouring to open the ATM Mr Aryawan took the opportunity to run away. He called the police from a second mobile phone which he had not given to the offenders. He managed to stop some passers-by and told them he had been robbed. The police arrived a short time later. By that stage the offenders had left the hotel without gaining any further property.
His Honour assessed the offence at falling below the midrange but not far below the midrange. His Honour indicated a sentence of imprisonment for 3 years, taking into account the five offences on the Form 1.
On 19 January 2022 a white Subaru Liberty motor vehicle was stolen from premises in Cameron Park. In the early hours of that morning it was also seen travelling in convoy with the stolen Mercedes in Maryland. That constituted sequence 14 on the Form 1 in relation to sequence 12.
Two days later the three offenders and a fourth person, Victor Russell, attempted to gain access to premises at Edgeworth owned by Mr Manginelli. Mr Manginelli became aware of this attempted entry, and when he approached the door, the offenders saw him and ran away. That constituted sequence 23 on the Form 1 in relation to sequence12.

H159371701

On 1 February 2022 the applicant was seen driving a motorcycle, followed by a silver-coloured Holden Astra motor vehicle being driven by the co-offender Mr Creighton. The motorcycle was found to be stolen and that constituted sequence 2 of H159371701. The applicant was unlicensed at the time and that led to the charge on the second Form 1 document of being an unlicensed driver. He asked for that offence to be taken into account when being sentenced for knowingly driving the stolen motorbike.
His Honour did not make an assessment of the objective seriousness of that offence but he indicated a sentence of 8 months' imprisonment.

H336945396

The offences in H336945396 were all committed whilst the applicant and Mr Creighton were being held on remand at Parklea Correctional Centre on 20 February 2022. They occurred in the circumstances of the wing they were being held in at the gaol being locked down.
The applicant and Mr Creighton were housed in cell 25. A correctional officer, Mr Zeidalkilani, approached the cell to remove rubbish at the request of the inmates who had said that the rubbish was too large to fit through the door flap. Mr Zeidalkilani opened the door, and the offenders left the cell carrying a rubbish bag. The officer asked them to return to the cell, but the applicant replied, "We're going to get out of here you cunt". Mr Creighton then produced what appeared a metal gaol-made weapon approximately 10 centimetres in length. One of the offenders said to Mr Zeidalkilani, "I'm going to kill you", and the applicant lunged towards the officer in an attempt to grab keys from him. As Mr Zedalkilani backed away, the applicant produced a weapon, and that constituted one of the counts of using an offensive weapon in company with intent to commit an indictable offence of intimidation (sequence 5).
Another officer, Emma Melville, noticed what was happening and she directed the offenders to get back and leave Mr Zeidalkilani alone. The applicant then advanced towards her saying, "So you want a go now too". He then pulled the small metal spike from his right side and side to Ms Melville, "Do you want to make it home to see your family?". She pleaded with him, and the applicant said to her, "You're not going to make it home today". That constituted the second offence of using an offensive weapon in company with intent to commit an indictable offence (sequence 6).
While this was occurring, a third correctional officer, Katie Ryan, approached the offenders. Both of the offenders had their hands by their sides and both of them were holding their weapons. One of them said to her, "You're going to die".
The applicant then picked up a small television and smashed it on the ground directly in front of Officer Ryan. She managed to run away, and Mr Creighton threw a toaster and a full kettle in her direction as she ran.
The applicant's behaviour constituted the third offence of using an offensive weapon in company with intent to commit an indictable offence (sequence 7). His Honour held that each of these offences was a serious example of such offences, and indicated a sentence of 2 years 6 months' imprisonment for each such offence.
Further correctional officers then entered the wing. Both of the offenders moved towards the wing door and began to throw rubbish around. The applicant picked up a wooden broom and smashed it against a wall. He picked up a small table and passed it to Mr Creighton who threw it against the door. Mr Creighton then picked the table up again and smashed it on the ground and armed himself with one of the steel legs of the table which had become dislodged. The applicant then further broke the wooden broom and created a spike to use as a weapon.
A few minutes later both of the offenders covered their faces with face shields and clothing and barricaded the door to the wing with furniture including a fridge that the applicant had pushed from the kitchen. The applicant then smashed a large television in the wing, and Mr Creighton smashed a commercial toaster with one of the table legs before throwing it against the wall.
The sentencing judge said that the offence of damaging property in company fell within the midrange of objective seriousness and indicated a sentence of 12 months' imprisonment.
After this, the offenders lit a series of fires. They got mattresses, bedding material and other rubbish and piled furniture, and set them all alight. In all, there were four fires.
By this time the incident response team and riot squad officers had become involved. They deployed grenades and projectiles to have the offenders comply, but both offenders remained noncompliant and resisted the attempts of the officers to restrain them. Ultimately, they were restrained and arrested.
That offence constituted sequence 3. His Honour found that it was an offence of high objective seriousness, at least at the midrange. His Honour indicated a sentence of 2 years imprisonment.

Subjective matters

The applicant did not give evidence at the sentence hearing. He relied on a report from the psychologist, Kris North. The report disclosed that the applicant was born in Tamworth, but was abandoned by his mother on a neighbour's doorstep when aged between 6 and 8 months. The applicant said that he had never met his mother and had been raised by his father and members of his father's family. He said he was exposed to abuse whilst in his stepmother's care. His father and stepmother separated when the applicant was aged 12 and he experienced a relatively stable period for three years prior to his father relapsing to drug use. Thereafter until he was 18 when he left home, he was exposed to physical abuse by his father.
He struggled in school from an early age with learning difficulties, and began truanting from late in his time at primary school onwards. Reports from the primary school included incidents relating to bullying other students, verbal and physical aggression, disruptive and defiant behaviours. He ultimately left high school after Year 10 to commence working in an abattoir.
He commenced using cannabis from the age of 13 years and began to use methamphetamines as a result of his former girlfriend terminating a pregnancy with his child without his knowledge.
The applicant, when aged 9 or 10, witnessed a student stab another student at school. He told Ms North he had seen people killed, and he found a friend's mother's body following an overdose when he was aged 16.
At the age of 14 years he was hit by a car. He sustained significant physical injuries, a broken leg and ankle and a fractured eye socket, in addition to head injuries. He could not recall whether he underwent any neurological or cognitive assessments but said he experienced reduced frustration tolerance, difficulties controlling his anger, and reduced impulse control from this time. Ms North considered that the behavioural changes were those which commonly occur after a traumatic brain injury. He described increased feelings of anger subsequent to his accident and a corresponding escalation in aggressive behaviours. He described the onset of anxiety and hypervigilance from this time. He experienced nightmares relating to past trauma. Ms North said that the symptoms described were consistent with post traumatic stress stemming from his complex history of trauma.
She said that the following diagnoses were indicated by her assessment:

Post traumatic stress disorder;
Cannabis use disorder, moderate, in sustained remission in a controlled environment; and
Stimulant use disorder, moderate, in sustained remission in a controlled environment.

Ms North said that, in summary, her assessment of the applicant revealed an impoverished family upbringing characterised by issues of abandonment, parental substance abuse and incarceration, and the applicant's exposure to physical and emotional abuse. In her opinion the applicant's early exposure to trauma led to the early onset of behavioural issues as a child, and the onset of substance use and antisocial behaviours during his adolescence. She considered that his use of drugs was directly associated with his past trauma. She thought he displayed insight into his need for treatment and recognised the link between his past trauma issues and subsequent drug use. She said that he accepted responsibility and expressed regret in relation to the offences.
The sentencing judge said that it was apparent that the upbringing and background endured by the applicant engaged the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. His Honour found that the circumstances of his upbringing and the trauma that he experienced explained his recourse to drug use and provided a link but not a causal link to the commission of the offences whilst under the influence of drugs. The sentencing judge said that his background explained his recourse to criminality which was normalised in his upbringing, his recourse to drugs, his lack of ability to make pro-social decisions and his antisocial behaviour. His Honour found that his moral culpability for the offences including those within the correctional institution was lessened as a result of the effects of his background. His Honour found that, nevertheless, protection of the community from further offending by him, particularly under the influence of drugs, was heightened.
His Honour noted that the psychologist said that the applicant was already at risk of institutionalisation. His Honour also took into account the applicant's youth at the time of the commission of the offences and noted that rehabilitation of youthful offenders would generally take precedence over deterrence and retribution.
The sentencing judge accepted that the applicant felt genuine remorse for his offences and his Honour found that the applicant's prospects of rehabilitation were reasonable.
The applicant had a criminal record for offences which commenced when he was aged 17. The offences were mostly offences involving riding in or driving stolen motor vehicles but included stealing in a dwelling house. He had been sentenced subsequently to the commission of the present offences to a period of imprisonment for offences committed prior to the present offences. He was on bail for those offences at the time of the commission of the present offences.
His Honour found special circumstances and reduced the statutory ratio to 54.5%.

Grounds of appeal

It is appropriate to deal with ground 2 first, because considerations of parity assumes that the sentence is otherwise free from error: Estephan v R [2015] NSWCCA 100 at [83].

Ground Two: His Honour erred by imposing a sentence that was manifestly excessive by:

Excessively accumulating the various indicative sentences; and

Having insufficient regards to the applicant's subjective case.
Since part of the challenge to the aggregate sentence is said to be the excessively high indicative sentences the following table will be of assistance: Offence Objective Seriousness Indicative Sentence Maximum Penalty H86249952 Seq 1: break, enter and steal (Mercedes) Below midrange 2 years 6 months 14 years Seq 12: robbery with offensive weapon (Blackbutt Hotel) Below midrange but not far below 3 years taking into account five offences on a Form 1 20 years Seq 20: aggravated break, enter and steal (Anna Bay Hot Bread) Below midrange, lower end 2 years 6 months, non-parole period 18 months 20 years, SNNP 5 years Seq 21: aggravated break, enter and steal (Pit Stop Service Station) Below midrange 2 years, non-parole period 15 months 20 years, SNNP 5 years H159371701 Seq 2: knowingly drive stolen conveyance 8 months taking into account one offence on a Form 1 5 years H336945396 Seq 2: damage property in company Midrange 12 months 6 years Seq 3: damage property in company by fire High objective seriousness at least midrange 2 years 11 years Seqs 5, 6 and 7: use offensive weapon in company with intent to commit indictable offences Serious 2 years 6 month for each offence 15 years

It is accepted that, because of the discount for the early pleas, the undiscounted indicative sentences are increased by one third.

Submissions

The applicant submitted that an indicative sentence of 2 years 6 months for the break, enter and steal in relation to the Mercedes was very high taking into account the 25% discount for the early plea. The applicant submitted that the sentencing judge's assessment of the objective seriousness of the offending was higher than it should have been.
The applicant pointed to a comparison with an offence of break, enter and steal in Simpson v R [2019] NSWCCA 137. In that case the offender had broken into the house during the afternoon while he was on parole and had an extensive criminal history. This Court found the objective seriousness of the offending should have been assessed as low range and indicated a sentence, after a 25% discount, of 1 year 9 months. The applicant submitted that the indicative sentence in the present case was very high when a comparison is made with Simpson.
The applicant submitted that the indicative sentence of 2 years 6 months for the aggravated break and enter of the Anna Bay Hot Bread shop was too high because the offence was unsophisticated, the victim was at a distance from the offender, the violence was low level (the raising of a weapon with nothing said) and so little was stolen.
The applicant submitted that the indicative sentences of 2 years 6 months for each of the offences in prison of using a weapon with intent to commit an indictable offence were also exceedingly high. The applicant submitted that the offending was very brief, they were the applicant's first offences of violence, he was withdrawing from drugs and he was agitated by the gaol's conditions at the time.
No submissions were made about the other indicative sentences.
The applicant submitted that a second indication of error can be found in the high degree of accumulation, not only between individual offences but by partially accumulating the prison offences on top of the community offending. In that regard, the applicant submitted that in the sentencing judge's remarks on sentence for the co-offender Mr Creighton, his Honour gave an indicative aggregate sentence of 9 years for the community offending and 5 years for the prison offending. The applicant submitted that something similar probably was applied to his sentence.
The applicant submitted that insufficient regard was given to the applicant's compelling subjective case, being his traumatic upbringing including being abandoned by his mother as a baby, raised by a father who was at times in gaol and abusive when at liberty, a stepmother who was abusive and exposure to other trauma such as discovering dead bodies as a youth. The applicant submitted that he had a modest criminal record with reasonable prospects of rehabilitation. Further, he was a young offender.

Consideration

In my opinion, an examination of the indicative sentences, particularly where regard is had to the findings of objective seriousness, the maximum penalties, and in two cases the standard non-parole period, demonstrates that the indicative sentences are well within the range available to a sentencing judge.
The complaint about the assessment of objective seriousness is difficult to understand. In written submissions to the sentencing judge, the applicant said: The first offence…involving the theft of the Mercedes Benz falls below the mid-range of objective seriousness. In his remarks on sentence, the sentencing judge said, in the scheme of things the particular offence is below midrange objective seriousness.
In the circumstances, there can be no challenge to that finding. The issue is only whether the indicative sentence is outside the range. In that regard, the applicant relies on the determination of this Court in Simpson where the indicative sentence was 1 year 9 months imprisonment.
In Simpson, the Crown had submitted that the offending was "toward the bottom end of the range". The sentencing judge said to counsel for the applicant, I'm guessing that you would accept the submission from the Crown that the objective criminality is towards the bottom end of the range, to which the applicant's counsel agreed. Notwithstanding, and without giving any other indication of his thinking, the sentencing judge found the offending, to fall within the mid-range or perhaps just below the mid-range of objective seriousness.
This Court considered that there had been procedural unfairness, and in the light of that history found the offence to be in the low range. That determination resulted in an indicative sentence, after a 25% deduction, of 1 year 9 months.
Two further matters should be noted about Simpson. First, the offence in Simpson was committed in the afternoon and there was no finding that anyone was home at the time, whereas the present offence was committed at night when it was much more likely, and was in fact the case, that people were present in the house. Although Mr Simpson was on parole at the time of his offence, the present applicant was on bail for a number of offences including stealing from a dwelling house.
Secondly, the decision in Simpson was not drawn to the sentencing judge's attention even if it had been possible to make it of relevance, in the light of what I have set out above. It is very difficult for a party who has failed to bring a case or cases to the attention of a sentencing judge to establish error by reason of that judge not referring to the case or cases: El Masri v R [2022] NSWCCA 27 at [79]; Rowland v R [2024] NSWCCA 187 at [2]-[3].
I do not consider that a notional starting sentence of 3 years 4 months was outside the range of available sentences in the circumstances of the offence, given that the applicant was on bail for a similar offence and others, in the light of his criminal record with regard to stolen motor vehicles and notwithstanding his strong subjective case.
Mrs Luu at the Hot Bread shop is likely to have been traumatised by being confronted in the early hours of the morning by a number of men in balaclavas wielding offensive weapons. The weapon was used to force the her to do the bidding of the offenders, that is, not to follow them. It amounted to a threat. The fact that there was only $20 to steal cannot mitigate the seriousness of the offending. The indicative sentence was not manifestly excessive.
In the same way, the prison officers were faced with two prisoners armed with offensive weapons making threats to them that they would be killed. It was an aggravating factor that the victims were correctional officers: s 21A(2)(a) Crimes (Sentencing Procedure) Act 1999 (NSW). The indicative sentences were not outside the appropriate range.
In respect of all the offences, as noted, the applicant was on bail for other offences.
Whilst the sentencing judge took into account the applicant's youth and the profound deprivation of his upbringing which reduced his moral culpability, the sentencing judge rightly found that protection of the community was a significant matter for the purposes of the sentencing exercise. In the same way, general deterrence was of importance as the sentencing judge made clear.
There is no basis for the submission that there has been excessive accumulation of the indicative sentences. Ultimately those sentences equate to 21 years and 4 months against an aggregate sentence of 11 years with a very substantial reduction of the statutory ratio to 54.5%.
Section 56 of the Sentencing Act provides that a sentence of imprisonment imposed on an offender in relation to an offence involving an assault committed by the offender while a convicted inmate of a correctional centre is to be served concurrently on any other sentence unless the Court makes a direction to the contrary. Whilst it is the case that the applicant was not a convicted inmate, this Court has held that a large degree of accumulation for a remand prisoner would be consistent with the legislative policy underlying s 56: R v Jeremiah [2016] NSWCCA 241 at [12]; Haines v R [2021] NSWCCA 149 at [46].
Ultimately, the only sentence that is relevant to a ground alleging manifest excess is an aggregate sentence where such is imposed for a series of offences. The fact that indicative sentences or some of them are manifestly excessive does not necessarily mean that the aggregate sentence will similarly be manifestly excessive: PD v R [2012] NSWCCA 242 at [44] and [82]; BJS v R [2013] NSWCCA 123; (2023) 231 A Crim R 537 at [252]-[254].
In the present case all of the community offending (with the exception of being knowingly driven in a stolen conveyance) involved offences where the maximum penalty was 14 or 20 years, with two of the offences involving standard non-parole periods of 5 years, and where five other offences including two offences of aggravated break, enter and steal were taken into account on a Form 1. The community offending involved what can only be described as a rampage of offending (five different establishments in one night) on 18 January 2022 with the applicant having obtained a motor vehicle to enable that offending a few days prior by the commission of another serious offence of break, enter and steal.
On top of that, the offending in custody amounted to what can fairly be described as a riot (albeit only involving two offenders) and included not only threatening three prison officers with a weapon but involved the setting of four fires within the prison. Starting fires in a custodial environment is extremely serious, given that inmates are held in confined spaces without the ability to escape the fire.
In all of those circumstances, the aggregate sentence of 11 years with a non-parole period of 6 years cannot be said to be a manifestly excessive sentence.
I would reject this ground.

Ground One: The applicant has a justifiable sense of grievance at the lack of disparity between his sentence and that of his co-offender Aaron Creighton.

The sentencing judge sentenced Mr Creighton on 14 July 2023 to an aggregate sentence of 12 years with a non-parole period of 7 years. The following is a table of the offences with which each of the applicant and Mr Creighton was charged together with the indicative sentences for each of those charges and how such offences were dealt with. Offences Applicant Co-offender Blake Stanton Aaron Creighton Break enter and steal (Maryland, Mercedes) 2 years 6 months 3 years 3 years Form 1: Form 1: -CIC (Mercedes) -AggBE (Anna Bay) Armed Robbery (Blackbutt Hotel) -CIC (Subaru) -AggBE (Pit Stop) -AggBE (Ampol) -AggBE (Jesmond PO) -AggBE (Jesmond PO) -AggBE (Ampol) -Enter W/I (Edgworth) 5 years 3 year NPP Armed Robbery causing wounding (SPAR Express Supermarket) Form 1: -Enter property (Edgeworth) -CIC (Subaru) Carried in conveyance (Toyota Rav 4) 3 months Carried in Conveyance (Mercedes CLA2500) [Form 1 taken into account on Blackbutt Hotel] [Form 1 taken into account on BP] Armed Robbery (BP Bennetts Green) 3 years Carried in conveyance (White Subaru Liberty) [Form 1 taken into account on Blackbutt Hotel] [Form 1 taken into account on SPAR] Enter Land with intent to commit (12 Crest Ave Edgeworth) [Form 1 taken into account on Blackbutt Hotel] [Form 1 taken into account on SPAR] Aggravated break enter and steal, in company (Anna Bay Hot Bread Shop) 2 years 6 months [Form 1 taken into account on Blackbutt Hotel] 18 month NPP Aggravated break enter and steal, in company (Pitstop Service Station) 2 years [Form 1 taken into account on Blackbutt Hotel] 15 month NPP Aggravated break enter and steal, in company (Ampol Service Station Saltash) [Form 1 taken into account on Blackbutt Hotel] [Form 1 taken into account on Blackbutt Hotel] Aggravated break enter and steal, in company (Jesmond Post Office) [Form 1 taken into account on Blackbutt Hotel] [Form 1 taken into account on Blackbutt Hotel] Drive stolen conveyance (Honda motorbike CRF230) 8 months Drive unlicenced (Honda motorbike CRF230) [Form 1 taken into account on drive stolen Honda] Carried in conveyance (Holden Astra) 3 months Damage property in company (Prison) 12 months [Form 1 taken into account on Damage property by fire] 2 years 3 months Damage property in company bay fire (Prison) 2 years Form 1 -DDP I/C Use weapon with intent to commit, in company (Prison, Zeidalkilani) 2 years 6 months 2 years 6 months Use weapon with intent to commit, in company (Prison, Ryan) 2 years 6 months 2 years 6 months Use weapon with intent to commit, in company (Prison, Melville) 2 years 6 months 2 years 6 months

It may be observed that the only offences for which both the applicant and Mr Creighton had sentences indicated were the armed robbery at the Blackbutt Hotel (sequence 12 of H952 for the applicant), damaged property in company by fire (sequence 3 of H701) and the three offences of using a weapon with intent to commit an indictable offence (sequence 5, 6 and 7 of H701). The other offences committed jointly by the applicant and Mr Creighton were dealt with on Form 1 documents for each of them, but not consistently. Both had offences which the other did not.
In relation to the armed robbery of the Blackbutt Hotel, the sentencing judge assessed the objective seriousness when sentencing Mr Creighton as below the midrange of objective seriousness. His assessment of that offence as far as the applicant was concerned was that it was below the midrange but not far below.
With regard to the armed robbery at the Blackbutt Hotel the sentencing judge indicated a sentence of 3 years' imprisonment for each of the offenders. In doing so his Honour took into account the two aggravated break and enter offences at the Ampol Service Station and the Jesmond Post Office, and in the applicant's case, three other offences and in Mr Creighton's case, two other offences.
In relation to the offence of damaging property by fire, the sentencing judge assessed the objective seriousness for Mr Creighton "not at but towards the midrange of objective seriousness", and for the applicant "at least at midrange of objective seriousness". Significantly, when making that assessment for Mr Creighton, the sentencing judge said: In terms of differentiating between the roles of Mr Creighton and Mr Stanton and the objective seriousness, there is little or nothing to distinguish between their conduct and, in all the circumstances, the offence falls not at but towards the midrange of objective seriousness for such an offence.
When sentencing each of the offenders for damaging property in company by fire the applicant had an indicative sentence of two years whereas Mr Creighton had an indicative sentence of 2 years 3 months because he had taken into account on a Form 1 the damage property in company for which the applicant had an indicative sentence of 12 months.
In relation to the three offences of using an offensive weapon in company with intent to commit an indictable offence, the sentencing judge assessed the objective seriousness of those offences as regards Mr Creighton as falling somewhat below the midrange of objective seriousness. When sentencing the applicant the sentencing judge said only that they were serious examples of such offences. Again, when sentencing Mr Creighton, the sentencing judge said of these offences: There is little to distinguish the acts of the two of them, one from the other. Both uttered threats. Both approached Correctional officers. Both were acting in company and pursuant to their joint plan at the time.
In relation to the three offences of using an offensive weapon with intent to commit an indictable offence in company, the sentencing judge indicated a sentence of 2 years 6 months for each offence for both offenders.
His Honour dealt with Mr Creighton's subjective matters at some length, as he did for the applicant. It is fair to say that Mr Creighton's background, like the applicant's, was one of considerable deprivation and that resulted in his Honour reducing Mr Creighton's moral culpability and reducing the significance of general deterrence for his offending. His Honour noted, however, that protection of the community was heightened and had to be balanced against the reduction for general deterrence. His Honour afforded greater weight to rehabilitation partly because of Mr Creighton's youth and partly because of his background. Mr Creighton was aged 21 at the time of the offending and the applicant was aged 19. Both had criminal records but Mr Creighton's criminal record was more serious. A significant difference between them was that Mr Creighton pleaded guilty to armed robbery causing wounding for which a sentence of 5 years with a non-parole period of 3 years was indicated.
The sentencing judge was very conscious of parity when sentencing Mr Creighton. He relevantly said this: One of the other factors in sentencing Mr Creighton is consideration of parity and, where applicable, appropriate disparity with the co-offenders. Mr Stanton committed the same offences, although being sentenced for one more offence arising out of the offences at Parklea Correctional Centre, and he was also sentenced for his role in the armed robbery of the cleaner at the Blackbutt Hotel. Mr Haines was sentenced for his involvement in the robbery in company at the Bennetts Green BP service station and Mr Griffiths was sentenced for his role in the robbery with wounding in company at Mr Bull's SPAR supermarket store at Morpeth. In each case, the court was required to make an assessment of the objective seriousness of the offence. Each offender was sentenced on the basis of facts presented in their individual sentencing hearing and each was sentenced for participation in the joint criminal enterprise that was ongoing in each case. … Mr Stanton too was 19 years old at the time he committed the offences. He was, in respect of offences committed in the community, sentenced for one offence in common with Mr Creighton and, when sentenced for that offence, five offences were taken into account on a Form 1. His role, as revealed by the facts, was taken into account and his relatively limited criminal history, although some for similar offending. The court received information about his upbringing, background and early life, which informed an assessment of his moral culpability for the offending. Apart from his role in the offending, I have referred to Mr Creighton's background and the seminal decision of the High Court in Bugmy, which spoke of an offender's background of profound deprivation leaving its mark on an offender for life with the possible consequential reduction of moral culpability. The courts have reminded us there is no magic in the word "profound", in terms of such deprivation. It is axiomatic to say that different offenders will all necessarily have different backgrounds, different histories, different life stories and characters and may have experienced different levels of different types of deprivation, all of which have interacted and combined to inform the circumstances which have contributed to their offending and brought them before the courts. It is notoriously difficult to obtain evidence to support this background. It invariably arises in carefully prepared reports by experienced and skilful professionals like Ms Edwige. Mr Creighton is one such young man. So were Mr Stanton, Mr Haines and Mr Griffiths, who have all been sentenced for different offending. All of them are young indigenous men whose childhoods were blighted in different ways and to different extents, all of which have led them on their journey through life to this Court and to being sentenced for their serious criminality. It is difficult and inappropriate to attempt to contrast and compare the different backgrounds and to come to a conclusion that "Well, co-offender X may have suffered more deprivation than co-offender Y. There are different types of deprivation; therefore that leads to a greater reduction in moral culpability." The calculation cannot be done mathematically. The sentencing of any offender before the courts is individual.
There are difficulties and obstacles for an applicant where the sentencing judge is fully aware of the sentences and the reasons for the sentence relating to co-offenders: Dunn v R [2023] NSWCCA 1 at [45] and Wang v R [2023] NSWCCA 208 at [71].
In Lam v R [2014] NSWCCA 50 I said at [42] (R A Hulme and Adamson JJ agreeing): It has been said in many cases that this Court will be cautious before determining that one co-offender has a justifiable sense of grievance because of different sentencing outcomes where the same judge has sentenced each and has had regard to the differing criminality and the different subjective circumstances of each: R v Swan [2006] NSWCCA 47 at [71] per Barr and Howie JJ. The various authorities are gathered in Loader v R; Dunn v R [2013] NSWCCA 215 at [91]-[96].
In Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 77 Hoeben CJ at CL (Johnson and Schmidt JJ agreeing) said at [174]: In this case, both offenders were sentenced by the same judge at the same time. In Usher v R [2016] NSWCCA 276 at [73] N Adams J (with whom Hoeben CJ at CL and Button J agreed) restated the importance of the fact that co-offenders were sentenced by the same judge on a ground of disparity: "73 It is of significance that the same sentencing judge sentenced both the applicant and the co-offender. This Court has stated that, where possible, that practice is desirable. When the same judge hears both matters simultaneously, "…[he or she] will be in a position to consider the interrelationship between the objective and subjective features of the two offenders in an overarching way:" Huckstadt v R [2016] NSWCCA 22 per Button J at [90] (with whom Johnson and Fagan JJ agreed). In Tuivaga v R [2015] NSWCCA 145, Hoeben CJ at CL (with whom RA Hulme and Wilson JJ agreed) observed at [55]-[56]: "55 It is of significance that the same judge sentenced both the applicant and Barnes. He was fully cognisant of their moral culpability and of their subjective cases. Specifically, his Honour was fully aware of the difference in their subjective cases and he reflected that difference by a reduction of 6 months in the non-parole period of imprisonment to be served by the applicant. 56 In such circumstances, where the primary judge has recognised the importance of the parity principle and has given effect to it, this Court has said that it will be cautious and not overly willing to intervene"."
In my opinion, the applicant does not have a justifiable sense of grievance for the minor disparity in the aggregate sentence imposed on Mr Creighton. The same Judge gave detailed consideration to parity; the indicative sentences for the same offences for which both offenders had an indicative sentence were either identical or explicable by a Form 1; both offenders had a similar background which was taken into account in the same way by the Judge; both offenders received consideration for their youth, and the difference in age between them was not significant; the only two matters of significance to justify a lower sentence for the applicant was the fact that Mr Creighton was convicted of an armed robbery causing wounding and his criminal history was worse than the applicant. That is ultimately reflected in the increased maximum sentence he was given, the increased non-parole period he was given and the lesser reduction in the statutory ratio he received.
The task of parity was not easy for the sentencing judge partly because not all offences were common to both offenders and particularly because they were ultimately dealt with (by arrangement between the respective parties) in a different manner, with different offences being placed on Form 1 documents for each of the offenders. The disparity between the sentences, so far from being "marked" or "unjustified", was entirely appropriate in the circumstances.
I would reject this ground.

Conclusion

I propose the following orders: 1. Extend time for the applicant to appeal to 26 July 2024. 2. Grant leave to appeal. 3. Dismiss the appeal.
I also wish to express my agreement with the additional remarks of Garling J.
GARLING J: I agree with the orders proposed by Davies J and with his reasons. I wish to add some remarks of my own with respect to the way in which Ground 2 was placed before the Court.
Ground 2, leaving aside its precise terms, is a claim that the aggregate sentence which was imposed was manifestly excessive.
Manifest excess (like manifest inadequacy) is a conclusion reached about any sentence which is the subject of any appeal - here, it is a simple aggregate sentence. Manifest excess as a ground of appeal does not raise any, nor does it arise from any, specific error. Rather, it is the description of the result which when examined by the Court, and it can be concluded that there must have been some misapplication of principle, even though where and how cannot be identified.
Put differently, there must be some "latent" error as opposed to a "patent" or obvious error: see House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25]; Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [59]-[60].
Where the sentence being considered on appeal is an aggregate sentence, whilst adherence to the statutory requirements of s 53A of the Crimes (Sentencing Procedure) Act 1999 is required, the benefit of an aggregate sentence would be substantially diminished if the sentencing Judge had to specify not only the indicative sentences which would have been imposed for each offence, but also the dates of commencement for each indicative sentence, and the identification of a "… cascading or 'stairway' structure …" of sentencing which can be both laborious and complex.
Put differently, when imposing a single aggregate sentence for multiple offences, the principal focus for the sentencing Judge will be to ensure that the sentence reflects the totality of the criminality involved.
In Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36, Button J (with whom McClellan CJ at CL and I agreed) said at [231]: "… it is clear that the process of aggregate sentencing, unlike traditional sentencing, does not permit mathematical analysis of the degrees to which partial and complete concurrent or accumulation have been adopted by a sentencing Judge. All one can really do is look at each of the individual offences …, consider the indicative sentences …, and then determine whether the aggregate head sentence and the aggregate non-parole period are erroneous …"
I note also that this Court has said on many occasions that indicative sentences are not amenable to appeal. This Court has also said that even if an indicative sentence may contain an error (e.g., specifying an indicate sentence which exceeds the maximum sentence for that offence) there is no necessary consequence that an aggregate sentence is thereby excessive.
All of these matters to which I have drawn attention are well-known and have been settled for at least a decade, if not more: see JM v R [2014] NSWCCA 297 at [34]-[40] per R A Hulme J (with the agreement of Hoeben CJ at CL and Adamson J).
It is most surprising, and in my view contrary to principle, for an appellant seeking to attack a sentence on the basis of manifest excess, to frame that ground as Ground 2 was framed in this appeal. There are a number of reasons for this. First, the ground of manifest excess as set out in this appeal, raises three matters apparently of patent error, which it is said to have caused the latent error embodied in a conclusion of manifest excess.
Secondly, the first "error" included in the ground of appeal is a complaint about indicative sentences being excessive in circumstances where indicative sentences are not amenable to a ground of appeal.
Thirdly, excessive accumulation of the indicative sentence is asserted as the second "error". This impermissibly seeks that this Court engage, when the sentencing Judge has not, in undertaking the "laborious and complex" task of creating a staircase structure of the various indicative sentences to determine that there has been "excessive accumulation". But engaging in such an exercise on an appeal risks setting at nought the benefits of aggregate sentencing, and is contrary to what was said in Truong.
The third nominated "error" is that the sentencing Judge has paid "insufficient regard" to the applicant's subjective case. But an allegation of a failure to attribute sufficient weight, which necessarily contains an implicit acknowledgement that the matter was taken into account and considered by the sentencing Judge, is not an appellable error of the kind identified in House v The King: see also CMB v Attorney General for NSW [2015] HCA 9; (2015) 256 CLR 220 at [54].
The purpose of these additional remarks is to remind applicants seeking leave to appeal to this Court that the fashioning of grounds of appeal need to pay careful attention to the principles outlined and should not confuse allegations of latent and patent error. Error is one or the other, but not both.
CHEN J: I agree with Davies J and the orders proposed by his Honour. I also agree with the additional remarks of Garling J.

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: 25 October 2024

Crimes Act 1900(NSW)ss 33, 97, 112, 113, 114, 154A, 195

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