Weiss v R - [2020] NSWCCA 188 - NSWCCA 2020 case summary — Zoe

NSWNSWCCA

Weiss v R

[2020] NSWCCA 188

Court of Criminal Appeal (NSW)|2020-06-10|Before: Macfarlan JA, Adams J, Lonergan J, MacFarlan JA

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2020-06-10

Before

Macfarlan JA, Adams J, Lonergan J, MacFarlan JA

Catchwords

Quinn v The Queen (2011) 244 CLR 462
[2011] HCA 49 House v The King (1936) 55 CLR 499
[1936] HCA 40 Ibbotson (a pseudonym) v R [2020] NSWCCA 92 Kentwell v The Queen (2014) 252 CLR 601
[2014] HCA 37 Khoury v R (2011) 209 A Crim R 509

Source

Original judgment source is linked above.

Catchwords

Quinn v The Queen (2011) 244 CLR 462[2011] HCA 49 House v The King (1936) 55 CLR 499[1936] HCA 40 Ibbotson (a pseudonym) v R [2020] NSWCCA 92 Kentwell v The Queen (2014) 252 CLR 601[2014] HCA 37 Khoury v R (2011) 209 A Crim R 509[2011] NSWCCA 118 Kliendienst v R [2020] NSWCCA 98 Lam v R [2015] NSWCCA 87 Lowe v The Queen (1984) 154 CLR 606[1984] HCA 46 Markarian v The Queen (2005) 228 CLR 357[2005] HCA 25 Miles v R [2017] NSWCCA 266 Mulato v Regina [2006] NSWCCA 282 Muldrock v The Queen (2011) 244 CLR 120

Judgment (15 paragraphs)

[1]

Solicitors: William O'Brien &Ross Hudson Solicitors (Applicant) NSW Solicitor for Public Prosecutions (Respondent) File Number(s): 2017/00203541 Decision under appeal Court or tribunal: District Court Date of Decision: 18 April 2019 Before: Hanley SC DCJ File Number(s): 2017/00203541

[2]

[4]

Factual background

As his Honour noted in his Remarks on Sentence, the facts leading to the applicant's offending arose from a set of "extraordinary circumstances". A Statement of Agreed Facts was tendered which disclosed the following.
A number of fires were deliberately lit targeting property connected with the two victims, Ms Eleanor Field and Mr Nathan Price. Ms Field and Mr Price were in a relationship. Ms Field had previously been in a relationship with Mr Peter Whiteland, one of the applicant's co-offenders. Mr Price had previously been in a relationship with Ms Courtenay Burnett, who later formed a relationship with the applicant.
The coupling of Mr Price and Ms Field was a source of considerable chagrin for their former partners, Mr Whiteland and Ms Burnett. Mr Whiteland subsequently arranged for their home to be burnt down. As his Honour noted, "[t]he series of fires that subsequently took place, instigated by Mr Whiteland complicit initially with Ms Burnett, were attempts by these two to flush out and locate their former lovers so as to exact revenge upon them."
There were ten offences committed in total but the applicant was only charged with two of them. The first of these two offences occurred on 18 February 2016, at a time when the applicant was in a relationship with Ms Burnett and Mr Whiteland was in custody. This offence occurred at the home of Mr Price's parents, Neville and Stacey Price. CCTV footage captured two males at the front of the property at around 1:10am. The rear tray and stock of an Isuzu truck parked outside the premises were damaged by fire but the cabin of the truck and two vehicles parked in the driveway were not damaged. The value of the stock was $1,807 and the damage to the vehicle was $9,655.
Corrective Services NSW calls recorded between Mr Whiteland, Ms Burnett and the applicant later that day included a statement by the applicant that they were "busted doing it" on cameras. In calls recorded two to four days before the offending, Mr Whiteland spoke to Ms Burnett about the property and she discussed two cars and a work truck being parked there. The applicant then stated that they could "do them all" at the one time. In a subsequent call, the applicant confirmed "it was all happening tonight" and that he had a "little dude" doing it.
The second offence for which the applicant was sentenced occurred five days later. At around 1:20am on Tuesday 23 February, Mr and Mrs Price awoke to find their 2009 Holden Commodore VE utility and 2014 Mazda 3 on fire. Both vehicles were "written off". Some minor damage was caused to the front of the house. The Mazda was worth $25,900 and the Holden was worth $23,790.
A recorded call between Mr Whiteland and Ms Burnett later that morning contained a statement by the applicant that, "[y]eah I took him and he reckons he done all three but yeah I went past later and there was nothing wrong … I'm waiting for him to ring back. I was driving". At a later point in the conversation, Mr Whiteland said, "[d]id he even go down and pour or anything?" The applicant replied ["y]eah there is a missing thing but the white one, the work one, so I don't know I'm waiting for him to call me back."
The Agreed Facts described the applicant's role as arranging for other persons to set the fires but also included that part of the recorded telephone call extracted above at [11] where, in response to questions from Mr Whiteland, the applicant stated that "he took" the co-offenders to the scene and had driven past the scene afterwards.

[5]

Proceedings on Sentence

The proceedings on sentence for both Mr Whiteland and the applicant were initially conducted together but they were sentenced separately many months apart. Ms Burnett is still awaiting trial on her matters.
The Agreed Facts were not confined to the two offences for which the applicant was to be sentenced; rather, the details of all ten offences were provided.
With respect to the applicant, the Crown tendered a criminal history, a Pre-Sentence Report dated 1 August 2018, a record of interview and a letter from the officer in charge of the Strikeforce investigation into the arson attacks outlining the applicant's assistance to the authorities. During proceedings on 5 April 2019, the following exchange occurred in relation to the precise role that the applicant had played in the arson attacks: "HIS HONOUR: Doesn't he get the arsonist? TRISCARI: Yes, and takes the arsonist to the scene and is there by his plea, ready willing able to assist. There has now been a diversion from that account in the subsequent interview…"
It was apparently because of this dispute as to the applicant's precise role that his ERISP was tendered in addition to the Agreed Facts. There was no objection taken to that course.
The Pre-Sentence Report set out the applicant's subjective features. It noted that the applicant recounted experiencing a "positive childhood" with no traumas; an account that was supported by his mother who asserted that she had a close relationship with the applicant including that he also had a regular contact with his father. It noted that the applicant, who left school when he was 15 and worked as an NBN installer, was in a stable relationship with his partner (Ms Burnett) of five years and supported five children, two of which were their own and three from his partner's previous relationship. The Report noted the applicant's limited insight into his offending behaviour given his attitude that he acted in order to defend the family.
The material tendered on behalf of the applicant included letters from Ms Jacqueline Weiss, the applicant's mother, a letter from Ms Irene Weiss, his sister, Karen Smith, a family friend, and Mr Roger John McIntyre, director of TigerShark Construction Pty Ltd. His mother also gave evidence in court.
Contrary to what she told the author of the Pre-Sentence Report, the applicant's mother gave details of the applicant's disruptive childhood. She separated from the applicant's father when he was 5 years old due to domestic violence. She stated that, "sadly to this day I don't think he has seen his father sober", however, he "holds no grudges against him". Ms Weiss also stated that due to Attention Deficit Hyperactivity Disorder ("ADHD") and dyslexia the applicant struggled at school and was sent to a school for children with special needs. She gave evidence about her relationship with the applicant and the assistance he provides to her and his relationship with Ms Burnett and the children. Mrs Weiss also gave evidence in relation to the threats the applicant and Ms Burnett received from Mr Whiteland.
The applicant's sister stated that the applicant had a tough upbringing and lacked adequate education but managed to completely turn his life around in the preceding 18 months.
Ms Smith, who had known the applicant's family for nine years, stated that she found the nature of the charges out of character for the applicant and saw him as a caring son for his mother and a caring father to his own children and the children of his partner.
Mr McIntyre was introduced to the applicant through his other employees five months prior and employed him on a casual basis as a labourer. He stated that he was prepared to offer the applicant full-time employment as a casual labourer and/or truck driver.
As for the submissions regarding the objective seriousness of the applicant's criminal conduct, counsel for the applicant accepted his Honour's observation that the offending was "serious" but submitted that "least (sic) serious although [the applicant]'s participated in recruiting people to carry out some of these offences". He submitted that it was "not anywhere near the top of the range" as there was no damage to the residential premises. The seriousness of the applicant's offending was considered to be lower than the other two offenders, who were submitted to have "more malevolent" motivations.
In response, counsel for the Crown submitted that: "Mr Weiss is involved in coordination of the arson. He has to be sentenced, in my submission, on the basis that he was going to the scene, being in close proximity, making sure everything was happening and according to plan but wasn't getting his hands dirty."
The objective seriousness of the offence was also heightened, according to the Crown, because of the recklessness to any potential damage involved.

[6]

Remarks on sentence

In his Sentencing Reasons dated 19 April 2019, Judge Hanley SC outlined the facts summarised above and then observed that the relationship between the co-offenders seemed to have deteriorated after the relevant offending. This was because on 26 November 2016 the property near where the applicant and Ms Burnett lived was subjected to fire. Police believed that the applicant and Ms Burnett had been the intended target by Mr Whiteland but he had mistakenly set fire to the wrong house.
His Honour listed a number of factors relevant to the assessment of objective seriousness, which he adopted from the Crown written submissions, as follows: 1. The applicant's role was to organise arsonists on behalf of Mr Whiteland and Ms Burnett; 2. The motive for Mr Whiteland and Ms Burnett's involvement was that they wished to "obtain the whereabouts of their previous respective partners who had fled as a result of previous arson attacks directed towards them". It was for this reason that they asked the applicant to assist; 3. The motive for the applicant's involvement was unclear. He was in a relationship with Ms Burnett at the time and may have wished to ingratiate himself with her. There was also some suggestion that he was under duress; 4. The damage caused was substantial and inflicted upon individuals who were innocent of any wrongdoing towards Mr Whiteland, Ms Burnett or the applicant; 5. The offences were intentional, premeditated and planned; 6. The damage was substantial; 7. The applicant distanced himself by recruiting an arsonist; 8. There was a risk of the fire spreading to the Prices' residential property and other properties in the area; 9. Each offence was extremely dangerous and there was a total disregard for the safety of the Prices' and their neighbours; 10. The danger must have been apparent to the perpetrators; 11. Arson offences are easy to commit and difficult to detect and if it were not for the intercepted phone calls the applicant would not have been identified.
I pause to note that, although the Crown's oral submission was that the applicant should be sentenced on the basis that he was at the scene ready, willing and able to assist, the Crown submissions identified his role as acting to distance himself from the criminal acts.
Having regard to all of these factors, his Honour concluded the following: "The only real distinguishing factor between the two offences is the value of property destroyed. In respect to the offence on 23 February 2016 this was substantially greater than the earlier fire and the property damaged. Irrespective of that distinction I am satisfied the objective seriousness of the offender's criminality in the commission of the offences is less than Whiteland and Burnett but still towards the upper end of the broad mid-range of objective seriousness for such offences." (Emphasis added.)
His Honour then addressed the relevant aggravating factors, noting that the applicant had previously been convicted of destroying property, for which he was fined, and larceny. At the time of the offending, he was subject to a bond under s 9 of the Sentencing Act, which was imposed for a larceny offence.
In terms of the applicant's subjective background, his Honour noted the somewhat conflicting evidence between, on the one hand, his mother's evidence that his alcoholic father had been violent to him as a child, and the Pre-Sentence Report which reported the applicant describing his childhood as "happy". It appeared to be common ground, however, that the applicant struggled at school due to ADHD and left school at 15. He had "sporadic employment", with positions with the NRMA and as an NBN installer.
His Honour observed that the applicant had a number of family connections and his sister and mother had provided references. The applicant was 24 years old at the time of sentence and was living with his co-offender Ms Burnett and their five children.
When addressing mitigating factors, his Honour noted that the applicant had pleaded guilty as soon as possible. Although the applicant relied upon duress as a mitigating factor, his Honour was not satisfied this had been established. It was referred to generally in the Pre-Sentence Report but with no detail. It was also referred to by the applicant's mother in her letter but in cross-examination it emerged that this was more relevant to a time after the commission of the offences by which time there had been a falling out. Further, the extracts of the recorded intercepted telephone calls did not suggest that the applicant was acting under duress. Mr Whiteland was in custody at the time and there was no evidence he had the capacity to influence others to direct attacks against Mr Weiss or Ms Burnett.
Nor was his Honour satisfied that the applicant was remorseful, as in the Pre-sentence Report it was noted that "[h]e demonstrated limited insight into his offending behaviour, maintaining he acted in order to defend his family."
In terms of the applicant's risk of re-offending, his Honour was satisfied that he appeared to have good prospects of rehabilitation due to his family support, capacity for regular employment and limited prior criminal record. His Honour acknowledged that there was a degree of hardship to Ms Burnett and the children from the applicant's incarceration.
His Honour then addressed the discount that he would impose for the applicant's assistance to police, having regard to the applicant's police interview and a letter from Sergeant David Kerwin dated 4 April 2019. While the applicant obliquely identified two other individuals involved in the arson attacks, he played down his role in the offending and entirely exonerated Ms Burnett. In light of this "very limited" assistance, his Honour permitted a 5% reduction in addition to the 25% reduction for the guilty plea resulting in a 30% combined discount.
When indicating the length of the sentence, his Honour observed: "Offences of arson, particularly those carried out in residential areas, are regarded as extremely serious by the community. The community and the Legislature require as reflected by the maximum penalties that general deterrence must have some significant emphasis in dissuading other likeminded offenders from committing similar offences."
His Honour observed that the only matter capable of amounting to "special circumstances" was the fact that it was the applicant's first time in custody. He varied the non-parole ratio of the aggregate non-parole period to head sentence to just over 70%. When dealing with the similarity between the two offences, his Honour noted that there was a degree of concurrency but also some accumulation. In terms of indicative sentences, his Honour held that: "In relation to the first offence on 18 February 2016 I indicate a sentence of three years imprisonment. In relation to the second offence on 23 February 2016 I indicate a term of imprisonment of three years and three months. In respect of his assistance and a plea of guilty I advise that the following deductions will have been made and that is in relation to the 25% reduction would be equivalent to 18 months imprisonment and the 5% reduction would be equivalent to three months imprisonment. They are approximations and represent an overall reduction of 21 months from the sentence that I would have imposed, which would have been a six years aggregate term of imprisonment."
As noted above, his Honour set an aggregate term of imprisonment of 4 years and 3 months to commence on 18 April 2019 and expire on 17 July 2023. The applicant's non-parole period was set at 3 years to commence from 18 April 2019 and expire on 17 April 2022.

[7]

Post Sentence events - the sentencing of Mr Whiteland

On 18 October 2019, Mr Whiteland was sentenced by Judge Hanley SC for his involvement as the principal offender in this enterprise. In addition to being sentenced on the same two offences as the applicant, he was also sentenced on another eight offences contrary to s 195(1)(b) of the Crimes Act. Of those ten, two were placed on a Form 1: 1. On 6 August 2014 at Schofields he did intentionally destroy by means of fire a motor vehicle, a 2009 Holden Statesman, the property of Benjamin Mangelsdorf causing loss of $46,000. 2. On 19 October 2015 at Glendenning he did intentionally destroy by means of fire certain property, namely, a motor vehicle, 1999 Nissan Pulsar, the property of Eleanor Field, causing loss of $1,000. 3. On or about 21 October 2015, at Glendenning he did intentionally damage by means of fire certain property, namely, the residential dwelling at 64 Woodley Crescent, the property of Ayomi Basnayaki, causing loss of $240,000. 4. On 18 February 2016 at Colyton did intentionally damage by means of fire certain property, namely, the trade stock on the rear of the Isuzu, a utility the property of Evolve Lifewares Pty Ltd, causing loss of $1,807 for the stock and $9,655 for the utility (common count with the applicant). 5. On 23 February 2016 at Colyton he did intentionally damage property by means of fire, namely, motor vehicles, a Holen Commodore and a Mazda 3, the property of Neville and Stacey Price, causing loss of $25,900 for the Mazda and $23,790 for the Holden (common count with the applicant). 6. On or about 23 June 2016 at Doonside did intentionally by means of fire damage certain property, namely, a motor vehicle, a Subaru Forester, the property of Stephen McClure, causing loss of $7,230. 7. On 31 July 2016 at Doonside did intentionally damage by means of fire certain property, namely, a 2003 Mazda Tribute, the property of Stephen McClure, causing loss of $5,995. 8. On 17 September 2016 at Colyton did intentionally damage by means of fire certain property, namely, plants, the property of Neville Price (Form 1 offence to be taken into account in relation to Count 3). 9. On 18 October 2016 at Colyton in the State of New South Wales did intentionally damage by means of a fire certain property, namely, roof tiles the property of Neville and Stacey Price (Form 1 to be taken into account in sentencing in respect of Count 3) causing loss of $2,000. 10. On 26 November 2016 at Colyton in the State of New South Wales he did intentionally damage by means of fire certain property, namely, the front balcony and structure of 69 Desborough Road, the property of Neville and Stacey Price, causing loss of $2,000.
Offences (4) and (5) above were the two common offences with the applicant. His Honour made a number of findings concerning the objective seriousness of Mr Whiteland's role. His Honour was satisfied that: "…despite the fact the offender was in custody at some of the relevant times, he was a principal offender in directing the offences occurred." (Emphasis added.)
When assessing the objective seriousness of each of the ten separate offences, his Honour stated the following: "In sentencing Mr Weiss, I was satisfied his role was less than Whiteland and Burnett's, but still towards the upper end of the broad range of objective seriousness for such offences. In respect of Mr Whiteland, I consider him the principal offender and his offending behaviour, by reference to an assessment of the objective seriousness, is to be evaluated in relation to each offence by reference to certain particulars. The distinguishing feature in respect of each offence is: (a) the property damage; (b) the value of the property; and (c) the degree of exposure of victims and neighbours to serious harm." (Emphasis added.)
His Honour made the same finding of objective seriousness in relation to the two offences common to the applicant and Mr Whiteland of "towards the upper end of the broad mid-range of objective seriousness for such offences". He made the same finding for the other eight offences with the exception of those listed at (2), (3) and (8) above. His Honour found those offences to be above the mid-range of objective seriousness.
His Honour also had regard to the fact that the offences, which were committed in a period from 2014 through until November 2016, were motivated by revenge and he was the principal offender in the "reign of terror".
As for remorse, his Honour noted that Mr Whiteland told the psychologist that the phone recordings were misinterpreted and that he had "taken the fall for the real perpetrators". The opinion of a psychologist was that he minimised his conduct in relation to domestic violence in his past conduct. His Honour was not satisfied he was remorseful or that he has taken any responsibility for these offences.
As for Mr Whiteland's subjective features, he was 55 years old at the time of sentencing. He grew up in Guilford as the youngest of four children. He reported that because of the impact his turbulent upbringing had on him, which included physical abuse of his mother by his father, he had never been violent to any of his partners. His Honour noted, however, that that was in "complete contradiction" with "the basis for the Apprehended Violence Order taken out by Ms Field against him." Since leaving school following the completion of Year 7, he held steady jobs in carpentry, as a truck driver, forklift operator and a handyman with relatively few periods of unemployment. He disclosed a former membership of the Rebels Outlaw Motor Cycle Gang and the impact it still had on him whilst in custody. Mr Whiteland denied any psychological problems associated with his occasional use of amphetamines, cocaine and alcohol, had no history of mental health interventions and did not meet the criteria for diagnosis of any mental health condition.
On the question of parity with Mr Weiss, his Honour observed the following: "I sentenced Mr Weiss a co-offender in respect of two offences on 18 February 2016, being the damage to the stock and truck of Neville and Mrs Price, for which I gave an indicative sentence of three years; an offence, again, against these victims in destroying their Mazda and Commodore on 23 February 2016, for which I gave an indicative sentence of three years and three months; with an aggregate overall sentence for both offences of four years and three months with a non-parole period of three years. I will take that into account but, as I have indicated, I regarded Weiss as the least complicit in respect of these offences. He was involved in only two offences and appeared to be doing so as a result of his relationship with Ms Burnett to ingratiate himself to her. In addition to the limited number of offences, Mr Weiss was much younger, played a subordinate role at the offender's direction. He had good prospects. His plea of guilty was early and he provided some assistance, which, together, amounted to a reduction from an otherwise appropriate sentence of approximately 30%. He had a limited criminal history and had taken substantial steps towards rehabilitation." (Emphasis added.)
Applying a discount of 25%, Mr Whiteland was sentenced to an aggregate term of imprisonment of 12 years to commence on 10 June 2017 and expiring on 9 June 2029. An aggregate non-parole period of 9 years was imposed. The indicative sentences for the two offences common to Mr Weiss, Counts 4 and 5, were 3 years and 3 months imprisonment and 3 years and 9 months imprisonment respectively.
The remaining six indicative sentences (following the numbering at [40] above) were: Count 1: 3 years imprisonment. Count 2: 3 years and 9 months imprisonment. Count 3: 7 years imprisonment (taking into account Form 1 offences). Count 6: 3 years and 9 months imprisonment. Count 7: 3 years and 9 months imprisonment. Count 8: Form 1 - Count 3. Count 9: Form 1 - Count 3. Count 10: 5 years imprisonment.

[8]

Applicant's submissions

It is not necessary to summarise the applicant's written submissions under Ground 1, as the Crown conceded error before the hearing of the appeal. The reasons for accepting this concession are set out below at [61]ff.
In relation to Ground 2, the applicant submitted that his Honour erred in finding that his offending was "towards the upper end of the broad mid-range of objective seriousness for such offences". Given that the applicant's role was to organise the arsonists on the instructions of Mr Whiteland and Ms Burnett, it was submitted that his criminality was less than theirs.
The applicant drew attention to his Honour's findings when sentencing Mr Whiteland that Mr Whiteland was the "principal offender", and that the applicant was "the least complicit" because he "played a subordinate role at [Mr Whiteland's] direction". Indeed, in sentencing the applicant, his Honour noted that applicant's offending was "less" than Mr Whiteland. However, despite this, his Honour ultimately made the "identical" finding of "upper-end of the mid-range of objective seriousness" for both offenders.
Furthermore, the applicant submitted that offences under s 195(1)(b) of the Crimes Act, which are considered the most serious, usually involve "high-planned destruction of residential or commercial properties valued in the millions of dollars which may also involve the potential risk of significant loss of life". The applicant submitted that this was not such a case.
When addressing Ground 2, counsel for the applicant drew attention to his Honour's comments that there was a distinction between the role played by the applicant and that played by Mr Whiteland. As such, in making identical findings of objective seriousness his Honour erred. He pointed out that the applicant was never referred to as "the principal offender", whereas Mr Whiteland was described in those terms. Counsel submitted that: "The Crown have sought to urge upon in the submissions effectively well Mr Whiteland isn't the principal offender he's simply one of many of whom the applicant is another. That's not what his Honour said, his Honour said that there is one and only principal offender and that's Mr Whiteland."
Counsel also pointed out that, in terms of seriousness, the items damaged were vehicles outside a residential property that remained largely unharmed. This was in comparison to some of the more destructive offences which could fall under s 195(1)(b). He then clarified that his point was not that he was invoking the parity principle but that his Honour's finding about objective seriousness was simply not open.
Under Ground 3, the applicant submitted that the sentence was manifestly excessive and identified a number of favourable factual findings made by his Honour in support of this contention. Those factors included that the applicant was "embroiled" in the offending because of his relationship with Ms Burnett, that he had pleaded guilty, that he had good prospects of rehabilitation, that there was hardship to his family caused by his incarceration, that he had made "substantial steps" towards rehabilitation and that there was no need for special emphasis on specific deterrence. In this context, the applicant submitted that the aggregate sentence was too high, especially given that the maximum sentence for an offence under s 195(1)(b) is 10 years imprisonment.
Additionally, the applicant submitted that a starting point of 6 years for the aggregate sentence represented "an almost complete accumulation of the indicative sentences upon each other (i.e. sentences of 3 years for one offence and 3 years and 3 months for the other)". This seemed to be contrary to his Honour's observation that "some" accumulation was required.
In terms of manifest excess, the applicant submitted that his Honour had found special circumstances, contrary to the Crown's written submissions. The applicant also submitted that he had mental health concerns and that he had been assaulted several times (although these had not been reported).
In relation to Ground 4, the applicant complained of a "marked disparity as between the indicative sentences for the offences in common as between himself and Whiteland". Although Mr Whiteland was sentenced for several more offences than the applicant, his indicative sentence for the offending corresponding to the applicant's Count 1 was 3 years and 3 months imprisonment (the applicant received 3 years). Mr Whiteland's indicative sentence for the offending corresponding to the applicant's Count 2 was 3 years and 9 months imprisonment, whereas the applicant received 3 years and 3 months. According to the applicant, this was clearly incongruous given the findings made about the applicant's "subordinate" status noted above.
Finally, when addressing Ground 4, counsel for the applicant re-iterated that his Honour found that Mr Whiteland was the principal offender and the applicant played a subordinate role. His Honour found that the applicant was younger, had good prospects, and was entitled to some leniency by virtue of his past but yet gave similar sentences to both offenders, as indicated above at [47].

[9]

Crown submissions

The Crown conceded the error relied upon under Ground 1 for reasons I will consider below.
In relation to Ground 2, the Crown relied on the statements of Spigelman CJ and Simpson J in Mulato v Regina [2006] NSWCCA 282 to the effect that the Court of Criminal Appeal will usually be reluctant to intervene in findings of objective seriousness. Furthermore, the Crown submitted that that there is a wide mid-range of objective seriousness for offences under s 195(1)(b) as it can be committed in a wide variety of circumstances, with varying levels of damage and risk to persons and property, drawing on the observations of Johnson J in Porter v R [2008] NSWCCA 145 at [80]-[81].
In response to the applicant's submissions that he was not "the principal offender", the Crown submitted that he was still a principal offender, who, on his own admission, organised two or more arsonists for repeat offences on the same victims. It was submitted that the applicant's criminality fell within the same "broad description" as Mr Whiteland's, in terms of seriousness, but was still less. The Crown did not accept that the findings of objective seriousness were "identical". Rather, both offenders were "somewhere within a broad descriptive range of objective seriousness". The Crown relied upon the applicant's organisational role and his admission (as contained in the Agreed Facts) that he drove the arsonists to the victims' house on at least one occasion.
In response to the submission that Mr Whiteland's criminality was higher because he was committing the offences from custody, the Crown submitted that the applicant's offending was similar in that it was committed in breach of conditional liberty. In relation to his Honour's references to "principal offender", counsel for the Crown stated: "…I do acknowledge that in the Whiteland sentencing judgment his Honour did use on one occasions said Whiteland was a principal offender and on another occasion said he was the principal offender. Like I said a short time ago the Crown submits that one should not be too focussed on terminology but one needs to focus on what the applicant and Mr Whiteland actually did when comparing their sentences and the applicant was a significant organiser of the offences in which he was involved."
In terms of the parity, the Crown pointed to excerpts in his Honour's Remarks about Mr Whiteland where he made specific references to the different levels of criminality involved in respect of Mr Whiteland and the applicant. Furthermore, the Crown submitted that his Honour's comments as to the applicant being "the least complicit" was simply a reference to the respective roles of Mr Whiteland, Ms Burnett and the applicant in the co-ordination of the two offences.
In relation to Ground 3, the Crown drew on authorities such as R v Darwich [2018] NSWCCA 46 to emphasise that, while indicative sentences may be a guide as to whether manifest excess is established, only an aggregate sentence can be the subject of this ground of appeal. The Crown also re-iterated the high threshold required for a finding of manifest excess.
The Crown submitted that the sentence was not manifestly excessive in light of the maximum penalty, the applicant's central role in organising the arsonists, the greater damage and repeat incursion involved in the second offence, the applicant's bond and the fact that his Honour reduced the non-parole period without finding special circumstances. As the applicant was charged with aiding and abetting in the commission of the offences, the Crown submitted that he was liable to the same penalty as a principal. Furthermore, the Crown submitted that the "aiding and abetting" here (recruiting, organising and paying arsonists) was objectively more serious than the offending of those who actually carried out the arson attacks.
In response to the applicant's submissions under Ground 4, the Crown submitted that his Honour clearly recognised the importance of the parity principle, and sentenced both offenders. In any event, there was a difference between the sentences imposed on the applicant and Mr Whiteland. The Crown also drew attention to the fact that Mr Whiteland's aggregate sentence was considerably longer than the applicant's, which was consistent with his more severe offending.

[10]

Ground 1: His Honour erred in applying the discount for the pleas of guilty (and the discount for assistance) to the aggregated sentence rather than to each indicative sentence

The imposition of an aggregate sentence is provided for in s 53A of the Sentencing Act. Section 53A(2)(a) provides that when an aggregate sentence is to be imposed the court must indicate to the offender that such a course is being taken and s 53A(2)(b) provides that the court must indicate to the offender "the sentence that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 or any other provision of this Act) had separate sentences been imposed instead of an aggregate sentence." These notional sentence indications are often referred to as "indicative sentences". Part 3 of the Act includes ss 22 and 23 which concern discounts for pleas of guilty and assistance to authorities respectively. Thus, the Sentencing Act provides that the application of discounts is to the indicative sentences, rather than the aggregate sentence.
A number of decisions of this Court have held that applying the discount to the aggregate sentence, rather than the indicative sentences, is an error requiring this court to intervene and re-sentence: Berryman v R [2017] NSWCCA 297 at [29]; PG v R [2017] NSWCCA 179 at [74]-[94]; Elsaj v R [2017] NSWCCA 124 at [56]; Vaughan v R [2020] NSWCCA 3 at [92] and Ibbotson (a pseudonym) v R [2020] NSWCCA 92.
In Ibbotson (a pseudonym) v R, the Crown took the position that despite these decisions, a failure of this type "does not necessarily mean that the sentencing discretion has miscarried". That submission was rejected by the Court (Leeming JA, Rothman and N Adams JJ). It was held that the application of the discount to the aggregate sentence, rather than the indicative sentence, has the capacity to influence the sentence. On that basis, error is established and the court is required to re-sentence the applicant: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [44]. There are no decisions of this Court since the decision in Kentwell v The Queen in which this Court has held that such an error does not require the intervention of this Court to re-sentence the applicant.
For these reasons, I am satisfied that the concession was properly made by the Crown.
I would uphold Ground 1.

[11]

Ground 2: His Honour erred in the assessment of the objective seriousness of both counts

It is well established that the assessment of the objective seriousness of an offence "is quintessentially for the sentencing judge": Mulato v Regina at [46]. Despite this, as with every discretionary decision, if error as set out in House v The King (1936) 55 CLR 499; [1936] HCA 40 can be established, such a finding can be successfully challenged.
There is no statutory requirement to assess the finding of objective seriousness by reference to any notional range if the offence is not one which attracts a standard non-parole period ("SNPP"): Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118 at [74] (Simpson JA with whom Davies J and Grove AJ agreed); Yeung v R [2018] NSWCCA 52 at [24] (McCallum J with whom Hoeben CJ at CL and Simpson JA agreed). Despite this, as Simpson JA observed in Khoury v R at [71]: "Assessment of the objective gravity of any offence has traditionally been an essential element of the sentencing process: R v Geddes (1936) 36 SR (NSW) 554; R v Dodd (1991) 57 A Crim R 349. It should not be doubted that any sentencing decision calls for attention to be paid to the objective gravity of the offence: Markarian v R [2005] HCA 25; 228 CLR 357."
There were two aspects to the complaint made under this ground. The primary submission was that it was not open to his Honour to find that the objective seriousness was "towards the upper end of the broad mid-range of objective seriousness for such offences". This was said to be too high in circumstances where the applicant was neither the instigator nor the perpetrator of the offences and was charged as an accessory.
I have had regard to all of the factors relevant to the assessment of objective seriousness in this matter. The applicant's involvement was in a plan to burn valuable property at residential properties where innocent victims resided in order to "flush-out" the whereabouts of Mr Whiteland's and Ms Burnett's former lovers. Although he was not the actual arsonist, the applicant was liaising with his partner and Mr Whiteland and it was he who arranged for the arsonists to go back again and complete the task a second time.
This was serious conduct of a reprehensible nature. In this context, his Honour did not find that the objective seriousness was above the mid-range. What his Honour did was highlight the fact that the description "mid range" can cover a broad range of criminality. I am satisfied that it was open to his Honour to make a finding of the objective seriousness being at mid-range, albeit at the higher end of that broad range. The finding of objective seriousness was an evaluative one "classically within the role of the sentencing judge". As has been repeatedly stated by this Court in relation to such a ground of appeal, the Court is usually reluctant to intervene in such a finding.
It was also submitted that his Honour erred in making the same finding of objective seriousness as he did for Mr Whiteland. I have had regard to his Honour's reasons and those of his co-offender Mr Whiteland. When sentencing Mr Weiss, his Honour stated that he considered the objective seriousness of his offences to be "less than Whiteland and Burnett but still towards the upper end of the broad mid-range of objective seriousness for such offences". When sentencing Mr Whiteland his Honour stated this somewhat differently. He stated that when sentencing the applicant he was "satisfied his role was less than Whiteland and Burnett's, but still towards the upper end of the broad range of objective seriousness for such offences". That is, he stated that the applicant's criminality was at the upper end of criminality, rather than the upper end of the mid-range. It would seem that this is a typographical error. His Honour then went on to confirm that he considered Mr Whiteland, to be the "principal offender".
I do not accept the applicant's submission that his Honour made the same finding for both. What his Honour found was that the criminality of both of them was at the higher end of the mid-range but that Mr Whiteland was further up the notional range. Although this was a somewhat uncommon way to describe the respective roles of co-offenders, it does not disclose error. To describe what his Honour did, in a way reflecting the respective roles, Mr Whiteland's criminality was at the top of the mid-range and the applicant's criminality was below that but above the middle of the mid-range.
Both the applicant and Mr Whiteland stood to be sentenced as accessories before the fact. Although the Crown position at sentence was that the applicant was to be sentenced on the basis he was at the scene ready to assist, one of the factors relevant to his Honour's assessment of objective seriousness was that the applicant had "distanced himself and the other two co-offenders from the commission of the offences" by recruiting an arsonist. His Honour did not expressly state that he was sentencing the applicant on the basis that he was at the scene, although it would have been open to his Honour to have done so.
I am unable to accept the Crown submission made at the hearing of this appeal that his Honour found that Mr Whiteland was one of the principal offenders and the applicant was another. It is to be accepted that at one stage, when he was not comparing the co-offenders to each other, he described Mr Whiteland as "a principal offender" (see above at [41]). But every time he was making comments as to their relative criminality he described Mr Whiteland as "the" principal offender.
On the basis that his Honour's finding was that the applicant's offending was above the mid-point of mid-range and Mr Whiteland's was at the top of mid-range, I am not satisfied that error is disclosed under this ground. Given that it is necessary to re-sentence the applicant in any event, I would re-sentence him on the basis that his offending was just above the middle of the mid-range of objective seriousness.
I would not uphold Ground 2.

[12]

Ground 4: The applicant has a justifiable sense of grievance by reason of a marked disparity between his indicative sentences (comprising his aggregate sentence) and the indicative sentences indicated for Peter Whiteland for the corresponding counts (being Counts 4 and 5)

In Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 French CJ, Crennan and Kiefel JJ described the parity principle in this way at [28]: "Consistency in the punishment of offences against the criminal law is 'a reflection of the notion of equal justice' and 'is a fundamental element in any rational and fair system of criminal justice' [Lowe v The Queen (1984) 154 CLR 606; [1992] HCA 29 at 610 per Mason J]. It finds expression in the 'parity principle' which requires that like offenders should be treated in a like manner [Leeth v The Commonwealth (1992) 174 CLR 455; [1992] HCA 29 at 470 per Mason CJ, Dawson and McHugh JJ]. As with the norm of 'equal justice', which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances [Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 at 301 per Dawson and Gaudron JJ]."
Their Honours went on to observe at [31] (footnotes omitted): "The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity (Postiglione v The Queen [1997] HCA 26); (1997) 189 CLR 295 at 323 per Gummow J, 338 per Kirby J. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise (Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 609 per Gibbs CJ)"
As Gibbs J earlier stated in Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, at [3]: "It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account."
As to the degree of disparity between co-offender's sentences which would lead to intervention by an appellate court, the High Court used the adjective "marked" to describe the difference in the cases referred to and cited above. For a period, decisions of this Court described the test to be whether the disparity was "gross, marked or glaring": see for example, Afu v R [2017] NSWCCA 246 at [15]; Tatana v R [2006] NSWCCA 398 at [28]; Lam v R [2015] NSWCCA 87 at [12] and Stuart v R [2016] NSWCCA 72 at [11].
The requirement for the disparity to be "gross, marked or glaring" was questioned by, inter alia, Hamill J in Cameron v R [2017] NSWCCA 229 at [86]-[90] and Leeming JA in Miles v R [2017] NSWCCA 266 at [9]. In Fenech v R [2018] NSWCCA 160, R A Hulme J (with whom Beazley P and Button J agreed) observed at [30]: "There has been some discussion in this Court in recent times about whether the epithets, "gross, marked or glaring" should be used in the application of the parity principle; see for example Cameron v R [2017] NSWCCA 229 at [86]- [90] (Hamill J); and Miles v R [2017] NSWCCA 266 at [9] (Leeming JA), [36]-[40] (Rothman J), and [67] (Hamill J). The better course in my respectful view is to confine discussion of the principle to the terms used in judgments of the High Court. There, the expressions, "marked disparity" or "marked and unjustified disparity" have been used in the majority judgment in Green v The Queen; Quinn v The Queen; see similarly Lowe v The Queen (1984) 154 CLR 606; [1992] HCA 29 per Gibbs CJ at 610, Mason J at 611, and Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 per Dawson and Gaudron JJ at 301."
Having regard to the High Court decisions referred to above, I propose to proceed on the basis that the question is whether there is a "marked" disparity between the sentence imposed on Mr Whiteland and the applicant for the two offences they had in common, that cannot be otherwise explained by matters such as the ages, backgrounds, previous criminal histories and general character of the co-offenders, and the part which they each played in the commission of the offence.
Although an appeal to this court under s 5(1) of the Criminal Appeal Act is against the aggregate sentence and not the "indicative" sentences, as McCallum J (as her Honour then was) observed in Clarke v The Queen [2013] NSWCCA 260 at [68]: "…I see no reason in principle why, in order to determine whether there has been equal justice, a sentence passed on a co-offender may not be compared with an aggregate sentence, taking due account of the other offences comprehended within the aggregation. A primary consideration in that exercise will of course be to consider the indicative sentence for the equivalent offence. That is one of the functions of the requirement under s 53A(2) for the judge to identify the sentence that would have been passed if not an aggregate sentence. It does complicate the task but that is no warrant for overlooking the norm of equal justice, in my view."
Thus, it is permissible for this Court to have regard to the indicative sentences for the common offences in order to assess the question of alleged disparity.
The applicant received an aggregate head sentence of 4 years and 3 months and a non-parole period 3 years. He was sentenced for the two offences outlined above and received a discount of 30%. The seriousness of the offences was found to be towards the upper end of the broad mid-range for both offences, although the second offence was more serious due to the greater amount of damage caused. The applicant's role was found to be less than that of Mr Whiteland and Ms Burnett. He had some previous convictions and was on a section 9 bond at time of these offences. He had a relationship with Ms Burnett, a total of five children and no drug, alcohol or gambling issues. He was found not to be remorseful. His prospects of rehabilitation were good and his Honour fixed the aggregate non-parole period at 70.6% of his total sentence.
By comparison, Mr Whiteland received an aggregate head sentence of 12 years with non-parole period of 9 years. He was sentenced for ten counts of intentionally destroy or damage property. Two of those offences were taken into account on a Form 1. He received a discount of approximately 25% for his guilty plea. He was the principal offender and was motivated by revenge. His involvement in the enterprise far exceeded the applicant's. Additionally, Mr Whiteland had a criminal record dating back to 1982 and was not entitled to leniency. He was also in custody at the time of several of the offences. He had had some illicit drug use. He was not found to be remorseful and the sentencing judge declined to find that he had prospects of rehabilitation. There was no finding of special circumstances.
I have regard to the similarities and differences between the applicant and Mr Whiteland. The applicant received a discount of 30%, whereas Mr Whiteland received a discount of 25%. Mr Whiteland's role was more serious and part of a continuous course of conduct over a two year period as the principal offender involved in ten offences. The applicant, on the other hand, was only involved in two offences a few days apart. Mr Whiteland's motive was revenge on an ex-girlfriend who had the temerity to leave him and form a new relationship. The applicant's motive, whilst unclear, appears to have been to support his new partner and the mother of his children. Mr Whiteland had a history of drug and alcohol abuse whereas the applicant did not. The applicant had good prospects of rehabilitation but his Honour was not able to make such a finding in relation to Mr Whiteland. Although the applicant did not show clear signs of remorse, Mr Whiteland saw himself as a victim and denied any violence against former partners despite the fact that his ex-partner had an AVO out against him for just that.
As against these significant differences, Mr Whiteland's indicative sentences for the two offences in common were only 6 and 9 months more than the applicant's respectively. Mr Whiteland was also the beneficiary of the application of the totality principle to a greater extent than the applicant, given that he was being dealt with for so many offences. The degree of accumulation for the applicant's sentence is apparent, given that he was only sentenced for two offences: Kliendienst v R [2020] NSWCCA 98 at [84].
Assessing the disparity involves an evaluative judgment. Having regard to the similarities and differences between the two cases, I am satisfied that there is, to a marked degree, insufficient disparity between the sentences. That is, the sentence imposed on the applicant should have been less than that imposed on Mr Whiteland to a significantly greater extent than it was.

[13]

Re-sentencing

Since error has been found in relation to Grounds 1 and 4, it is necessary for this Court to exercise its own independent sentencing discretion for the purpose of determining whether a lesser sentence should be imposed under s 6(3) Criminal Appeal Act 1912 (NSW): Kentwell v The Queen at [43]. In light of the need to re-sentence, it is not necessary to consider Ground 3, which alleged that the sentence is manifestly excessive. Despite this, I will consider the parties' submissions in relation to manifest excess as part of the re-sentencing.
In undertaking the sentencing discretion afresh, the Court is required to identify the factors relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51], confirmed by the Court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26]. The maximum penalties and SNPP are guideposts to which I must have regard.
I have set out the applicant's subjective circumstances. The applicant had a largely favourable subjective case, save for the fact that he committed these offences whilst on a bond for an offence of larceny. His criminal history was limited and he has always been employed. The applicant's motive for his involvement remains obscure.
There was material placed before the Court in the event that error was established and the Court proceeded to re-sentence the applicant. That evidence disclosed the following.
The applicant provided a report from forensic psychologist Margaret Johnson dated 23 November 2019. Ms Johnson assessed the applicant as fulfilling the diagnostic criteria for Post-traumatic Stress Disorder and ADHD, as partially fulfilling the criteria for Paranoid Personality Disorder and as experiencing "quite a significant depressive episode at present". Ms Johnson concluded that the applicant is barely coping with incarceration and is constantly in fear that he will be assaulted or intimidated by inmates associated with his co-accused and that his family will be hurt if he is not there to protect them. Ms Johnson opined that the applicant needs to have access to psychological treatment as well as a psychiatric review, as he may require psychotropic medication to increase his capacity to cope and to prevent him from further psychiatric distress.
Ms Johnson also outlined the difficult childhood the applicant had at the hands of his alcoholic and abusive father. She noted that, in contrast with what was noted in the Pre-Sentence Report, the applicant reported that his early childhood was "rough" with his parents' domestically violent relationship ending in separation when he was four years old. He reported that his mother's re-partnering two years after the separation brought some stability and that his step-father had a good influence on him.
In his affidavit dated 28 April 2020 the applicant deposed that he had been "assaulted on several occasions and threatened on numerous others" in custody and that he believed this was because of his offer to assist police in relation to Mr Whiteland. The applicant further deposed that in order to aid his rehabilitation and prepare for a life once he is released he has undertaken courses and programs including: the Young Offenders Program that addresses matters such as needs, self-responsibility, education and work readiness; the Motivator Camp, being the hardest of the three camps offered by Corrective Services; and is currently doing a horticulture course. In addition to that he has worked whenever he has been given the opportunity to do so and his current work involves manufacturing of timber products. The applicant also referred to the report of Ms Johnson and confirmed the contents of that report concerning his childhood experiences.
Steven Thomson, solicitor at the Office of the Director of Public Prosecutions, provided an affidavit dated 25 May 2020 with respect to enquiries made with the Corrective Services NSW in relation to any records of the applicant making a complaint of any assault or threat made to him. Attached to his affidavit is an email with annexures received from the Senior Assistant Superintendent Toni Cowel on 19 May 2020 stating that there is an entry of one active non-association in place at the request of Mr Weiss due to a perceived threat without any other information in support of the entry and that there were no reported incidents nor case notes in relation to any assaults or threats involving the applicant.
Much of the material in the psychologist's report, and the applicant's additional evidence about his childhood, was material that was available to be adduced at the initial proceedings but was not. Affidavits are routinely put before the Court in applications for leave to appeal against sentence to provide relevant information on events that have occurred since the original sentence was imposed. It is not the occasion to tender material that was available at the time of sentence. Despite this, the Crown had no objection to this material being taken into account on re-sentence. The submission made by the Crown at the hearing of this appeal on this issue was as follows: "...[T]he Crown notes the new material concerning the applicant's psycho legal, what's entitled the psycho legal assessment report and also notes that there's an affidavit from the applicant in relation to that. As the Crown has not objected to the affidavit of the applicant there is no Qutami issue in relation to the contents of that psycho legal assessment report. So on re‑sentence I've taken into account on the question of in particular the conditions to which the applicant will be subjected whilst in custody. So on re‑sentence that's a relevant factor the Crown agrees but objectively the Crown submits that his Honour got the assessment correct and the Crown points out the lack of remorse as found by his Honour."
In light of the position taken by the Crown, I would have regard to all of this additional material. I would sentence the offender on the basis that he does feel stress from possible reprisals in custody, whether or not any assaults have actually been committed on him. I would also find that his prospects for rehabilitation are good given his progress in custody. I am satisfied on the balance of probabilities that the applicant's childhood was an unfortunate one and that he now suffers psychologically in the manner set out in the psychologist's report.
I have also had regard to the findings of the sentencing judge. I adopt the same findings but would take a slightly different approach in two respects: I would allow for a greater degree of disparity between the indicative sentences for this applicant as opposed to those imposed on Mr Whiteland for the common offences and I would allow for a higher degree of notional accumulation.
Although I found no error in the sentencing judge's assessment of the applicant's objective criminality, I would sentence the applicant on the basis that his offending was just above the mid-point of the mid-range of objective seriousness for this offence.
I would impose an aggregate sentence in which the non-parole period is 70% of the head sentence, to reflect the finding of the sentencing judge on this issue. I would allow the same combined discount of 30% to reflect the early plea of guilty and the assistance to the authorities.
As for the application of the totality principle, I would arrive at indicative sentences and then have regard to the appropriate aggregate sentence. In the exercise of my sentencing discretion I have allowed for a greater degree of accumulation than did his Honour. I would start with indicative sentences of 3 years for the first offence and 3 years and 6 months for the second offence. Applying the 30% discount and rounding slightly, I would indicate sentences of 2 years and 2 months for Count 1 and 2 years and 6 months for Count 2.
Having regard to all of these matters, I would arrive at an aggregate sentence that is less than that imposed by the sentencing judge.

Weiss v R

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