R v Robinson [2014] NSWCCA 12

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Robinson [2014] NSWCCA 12 Hearing dates: 4 February 2014 Decision date: 20 February 2014 Before: Basten JA at [1]; Hidden J at [68]; R S Hulme AJ at [72] Decision: (1) Allow the appeal and set aside the sentence imposed on the respondent in the District Court on 21 June 2013. (2) Sentence the respondent to a non-parole period of 3 years with an additional term of 2 years 3 months, to date from 5 July 2012. The respondent will be eligible for conditional release on 4 July 2015. His sentence will expire on 4 October 2017. Catchwords: CRIMINAL LAW - prosecution appeal against leniency of sentence - grounds for intervention - relevance of failure by sentencing judge to refer to prescribed penalties- relevance of failure to consider good behaviour bond - whether there was a failure to take criminal history into account - whether sentencing judge took into account Form 1 offence - failure to comply with Crimes (Sentencing Procedure) Act 1999 (NSW), s 23 when discounting for assistance to law enforcement authorities - whether sentence imposed was manifestly inadequate

CRIMINAL LAW - prosecution appeal - sentence - residual discretion to reject appeal where inadequacy established -failure by prosecutor to address at the time of sentencing that a minimum term of two years would be inadequate. Legislation Cited: Crimes Act 1900 (NSW), s 112 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 21A, 22, 23, 44, 54A, 54B, 54D Criminal Appeal Act 1912 (NSW), ss 5D, 5DA Cases Cited: Abbas v R [2013] NSWCCA 115 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Munda v Western Australia [2013] HCA 38; 87 ALJR 1035 R v Amohanga and Rai [2005] NSWCCA 249; 155 A Crim R 202 R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 R v Dole and Nguyen [2010] NSWCCA 101. R v DW [2012] NSWCCA 66; 221 A Crim R 63 R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 R v Moon [2000] NSWCCA 534; 117 A Crim R 497 R v Osenkowski (1983) 30 SASR 212 R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383 Western Australia v Munda [2012] WASCA 164; 43 WAR 137 Category: Principal judgment Parties: Regina (Appellant) Daniel James Robinson (Respondent) Representation: Counsel:

H Wilson SC (Appellant) D O'Neil (Respondent) Solicitors:

Solicitor for Public Prosecutions (Appellant) Legal Aid NSW (Respondent) File Number(s): 2012/210238 Decision under appeal Jurisdiction: 9101 Date of Decision: 2013-06-21 00:00:00 Before: Madgwick ADCJ File Number(s): DC 2012/210238

Judgment 1BASTEN JA: The respondent, Daniel James Robinson, was sentenced by Madgwick ADCJ at Campbelltown on 21 June 2013. He was before the Court on a charge of breaking and entering a dwelling house, committing larceny therein, in circumstances of "special aggravation", contrary to s 112(3) of the Crimes Act 1900 (NSW). The offence carried a maximum penalty of 25 years imprisonment. It was also subject to a standard non-parole period of seven years: Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Procedure Act"), s 54D, Table, item 13. The trial judge was also required to take into account a further offence of common assault, contained on a Form 1. 2There were two persons (siblings) of Vietnamese extraction in the house at the time of the offence; the female was 19 years of age and her brother 16 years of age. The assault involved the respondent kicking the 19 year old female occupant of the premises in the abdomen. The circumstances of the other offending, to which it will be necessary to make more detailed reference below, were aptly described by the sentencing judge as "really very serious ... this was a sustained rampage into violence": Tcpt, 21/06/13, p 14(40). The judge imposed a sentence which, prior to correction, involved a non-parole period of two years with an additional term of 18 months. Following the midday adjournment, he corrected his calculation of the sentence, increasing the additional term to two years and three months, giving a total sentence period of four years, three months. The calculation of the sentence included a discount of 40% on account of the utilitarian value of the plea of guilty and for assistance provided to law enforcement authorities. The judge did not apportion this global discount between the respective purposes, or between past and future assistance. 3The Director of Public Prosecutions has appealed against the leniency of the sentence, pursuant to s 5D of the Criminal Appeal Act 1912 (NSW). The appeal is brought as of right. 4Although the sentence was backdated to commence on 5 July 2012, so that the non-parole period would expire on 4 July 2014, the actual date of sentencing was 21 June 2013. Six weeks later, the Director filed a notice of appeal specifying manifest inadequacy as the relevant ground, but foreshadowing the possibility that further grounds would be filed later. On 18 December 2013, the Director, somewhat belatedly, filed a document entitled "Additional grounds of appeal" which may be conveniently paraphrased in the following terms: Grounds 1 and 2: failing to have regard to the maximum penalty and the standard non-parole period; Ground 3: failing to have regard to the fact that the offence was committed whilst the respondent was subject to a bond imposed for an earlier offence of personal violence; Ground 4: failing to have regard to the significant criminal history of the respondent, including prior offences of dishonesty and personal violence; Ground 5: failing to increase the sentence to reflect the assault on the sister, being the offence on the Form 1; Grounds 6, 7 and 8: with respect to the discount for assistance to law enforcement authorities: (a) imposing a lesser penalty (both as to the non-parole period and the additional term) which was "unreasonably disproportionate to the nature and circumstances of the offence", contrary to s 23(3) of the Sentencing Procedure Act; (b) failing to state the penalty that would otherwise have been imposed and, to the extent it involved future assistance, separately the amount by which the penalty had been reduced for past and future assistance. Grounds 9 and 10: reasserted the manifest inadequacy of the sentence and of the non-parole period. 5Although the Director does not require leave to appeal against sentence, s 5D provides that the Court "may in its discretion vary the sentence", language which has long been accepted as providing a residual discretion not to intervene even if satisfied that one or more grounds for intervention has been made good. On occasion the Court has declined to intervene because of delay on the part of the Director in giving notice to the offender of the proposed appeal. The conduct of the prosecutor may also militate against intervention, for example where the prosecutor's submissions led to or acquiesced in an outcome said on appeal to be erroneous. This issue arises with respect to ground 3, because a formal document entitled "Crown Sentence Summary" (Ex A in the sentencing proceedings), indicated that the offence was not committed whilst the offender was on conditional liberty, a statement which was not corrected by the prosecutor in the course of the hearing. 6For reasons set out below, the case is one where the manifest inadequacy of the sentence is established without the need to rely upon ground 3: the fact that the respondent was on conditional liberty at the time of the offending is a matter which this Court should take into account in resentencing the offender. Circumstances of offending 7The following account, except where expressly indicated otherwise, is taken from a statement of agreed facts, which was in evidence before the sentencing judge. 8The offending conduct took place at 3am on Thursday 26 April 2012. The respondent had stolen a car and had driven to the house of two associates, whom he believed to be interested in undertaking break and enters in order to obtain money for drugs. Five young males then travelled by car to the victims' home which, according to the respondent, was targeted because it was believed to be occupied by Vietnamese people and it was believed that such houses "tend to have gold and things like that". The respondent was at that stage almost 26 years of age and agreed he was the oldest of the group: Tcpt, 21/06/13, p 8(45). The judge was informed by the prosecutor that two of the others were to be dealt with in the Children's Court and a fourth was approximately 22 years of age. The judge asked the respondent if he had been "the ringleader" but the respondent said that the ringleader was "one of the younger offenders": Tcpt, p 9(9). One of the co-offenders was known by the respondent to have a knife and the respondent himself had a hammer. One male remained in the vehicle and everyone else entered the house; the four that entered had their hands covered with gloves or socks. 9The occupants had closed the front gate and locked and secured the front door before going to bed. They had also closed the doors of their bedrooms. When the respondent and his associates arrived, they opened the front gate, smashed a glass window at the side of the door and reached inside to unlock it. The respondent said that "the group started 'ransacking' the lounge room, ... he didn't care that they were making noise and would wake up people in the house". They searched the unoccupied bedroom of the owner and took a black wallet containing cash, some assorted foreign currency and personal items made with gold. The respondent then entered the bedroom of the female occupant who awoke to see the offender standing inside her bedroom with another man holding a knife standing outside the door in the hallway; she got up. The respondent yelled at her to "Give me all your money" and, when she stated she did not have any money, he kicked her in the stomach causing her to fall back onto the bed. The respondent then took a number of personal items including a laptop computer. She observed that the respondent was wearing gloves. 10The respondent and a co-offender then forced entry into the bedroom occupied by the brother, whereupon the respondent produced the hammer, walked up to the brother and hit him on the right side of the forehead, causing a laceration near the right eyebrow from which the young man started to bleed. The brother then got out of bed, ran behind the respondent, wrapped his arms around him and pushed him to the ground. The co-offender then came into the bedroom and said "Where's all the money?" while pointing a knife at the brother. The brother did not answer, but the co-offender grabbed a backpack, removed a small amount of cash and left. 11The respondent then got up and started to run out of the bedroom, but the brother grabbed him by the jacket. The respondent broke free but the brother chased him down the hallway, grabbed him and started hitting him with his fists. The two struggled from the hallway into the lounge room, at which point the sister came out of her bedroom and followed them into the lounge room. A fight then ensued with the brother smashing a wooden bar stool over the respondent's head. His associate with the knife was still in the room, and at some stage stabbed the brother in the right shoulder. The associate then ran out of the front door as did another co-offender. The brother and sister continued to belabour the respondent on the floor with furniture and fists. However the respondent managed to grab the brother again and struck him on the right cheek with the hammer before the brother took possession of the hammer and threw it on the ground. While this was occurring, the respondent lost one of his gloves. He then started to run out of the house, yelling for help, pursued by the occupants. He eventually made it to the car driven by a co-offender and escaped from the scene. Police and an ambulance were called, and the brother was taken to hospital for treatment of the stab wound in his shoulder. 12An ambulance was also called to the premises to which the offenders had driven after the robbery, to attend to the respondent's injuries. When questioned by ambulance officers, the respondent stated "repeatedly" that he had "slipped on wet grass". That implausible story was repeated to police. The respondent was later linked to the crime as a result of DNA swabs taken from the glove recovered from the lounge room floor, where it had been lost during the fight. 13The respondent was arrested on 5 July 2012. He gave an interview to police in which he admitted going to the house which was broken into. He named three of his associates, but said that the name of the fifth male was unknown to him. He denied getting out of the car at any stage during the commission of the offences. When asked to explain the presence of his DNA on the glove, he stated that "someone else might have used his gloves". 14By 15 April 2013, but at a time which is unclear from the materials before this Court, the respondent changed his story. On 30 January 2013 he entered a plea to the offence for which he has been sentenced. On 8 April 2013 he was interviewed by a psychologist instructed by his solicitor, to whom a copy of a statement of facts had been provided. On 15 April 2013 (more than two months after the plea) police conducted a second recorded interview with the respondent. The statement of agreed facts supplied to the Court was dated 20 June 2013. 15At the sentencing hearing on 21 June 2013 only the respondent gave evidence; he was not cross-examined. Grounds 1 and 2: failure to refer to penalties 16The Director submitted that "[t]he prescribed maximum penalty is such an important consideration in the determination of sentence that it must invariably be referred to and considered explicitly in the course of the reasons for sentence." 17While it is common practice in recent times to refer to the maximum penalty for an offence in a judgment on sentence, that has not always been so. Where there is no realistic suggestion that an offender should receive the maximum penalty, or anything like it, the mere failure to refer to the maximum penalty is unlikely to demonstrate error. In R v Moon [2000] NSWCCA 534; 117 A Crim R 497, at [72] Howie J (with whom Fitzgerald JA agreed) referred to a failure on the part of the sentencing judge to refer "to the maximum penalty current at the time of the offences or the nature of the conduct which came within the scope of the offence with which the applicant was charged". He said that those omissions "would not normally indicate error", but that a different view should be taken in a case where the offences had been committed some 30 years earlier at a time when both the scope of the offence and the maximum penalty were different. That is not this case: the mere failure to refer to the prescribed maximum penalty did not constitute error. 18A different view might be taken of the failure to refer to the standard non-parole period. The Sentencing Procedure Act requires that, for an offence to which a standard non-parole period is prescribed, the Court "is to set" the standard non-parole period, "unless the court determines that there are reasons for setting a non-parole period that is longer or shorter": s 54B(2). That section further provides that the Court "must make a record of its reasons for increasing or reducing the standard non-parole period" and "must identify in the record of its reasons each factor that it took into account": s 54B(4). There is no obligation to fix the standard non-parole period in any particular case: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [24]-[25]. Further, a failure to comply with the requirements as to reasons does not invalidate the sentence: s 54B(5). Nevertheless, such a failure may lead to an inference that the trial judge did not give proper consideration to the guidance provided by the standard non-parole period, or departed from it without adequate reason. 19Generally, reasons for judgment should be capable of being understood without reference to the transcript or submissions made to the Court. However, in the present case the judgment was delivered orally immediately after a discussion between the sentencing judge and counsel in which it is clear that the judge was working through ideas. Further, in his judgment (at p 7) he himself returned to the earlier discussion stating: "As I said in the course of argument, were he convicted after a trial, I should think that a total sentence of not less than seven years would be appropriate." 20The particular exchange referred to was in the following terms (Ms Kable appearing for the offender): "HIS HONOUR: Yes. It's a very savage affair, savage and desperate and completely uncaring. ... And planned and they were ready for violence and didn't [care] if they were interrupted and so on. Very nasty. I think if he'd been convicted after a trial, he'd be looking at a head sentence of seven years. KABLE: There is a standard non-parole period of seven years, of course - HIS HONOUR: I'm not worried about the non-parole period, I'm talking about a head sentence. KABLE: Right." 21Counsel for the respondent emphasised the need to avoid "two stage reasoning" in identifying an appropriate sentence. One must, of course, address the issues in an orderly fashion, but the risks of identifying a "starting point" from which to make deductions is illustrated by this case. Thus, it is by no means clear what factors the trial judge took into account in reaching a starting point of seven years as an appropriate penalty in the event of a conviction following a trial. Immediately prior to that statement, the following factors were identified: "He pleaded guilty at the earliest possible time and the extent of his assistance is very considerable and valuable. I believe that his expression of remorse in relation to the victims and his own entire criminal lifestyle is sincere. I think that he should be entitled to a discount of forty percent." 22The discount allowed for an early plea reflects its "utilitarian value"; it does not include the mitigating element of remorse: R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1, at [32](3) (Howie J, McClellan CJ at CL and Simpson J agreeing). It is likely that in reaching a figure of seven years as a starting point, the sentencing judge had taken into account what he described as "the seriousness of the intent and violence involved" and, elsewhere, as "the complete turnaround on the part of the prisoner": judgment, p 6. 23Immediately before the statement set out above, however, the sentencing judge had noted that by providing assistance to the police the offender was "putting himself at serious risk, both in gaol and when he gets out, and he will probably need to live a long way from Sydney when he is released": judgment, p 6. Whether this factor was taken into account in calculating the seven year starting point is unclear: if that occurred, there would appear to be a double counting in the reduction, as the discount for assistance is intended to reflect the hardship likely to be suffered by an offender in the circumstances of his custody: R v DW [2012] NSWCCA 66; 221 A Crim R 63 at [146] (RS Hulme J, Hall J agreeing). 24As discussed below, the imposition of a lesser penalty on account of a guilty plea need not, but frequently does, give rise to a statement as to the proportionate reduction. Such a practice not only promotes transparency, but demonstrates whether or not the Court has given effect to the principles established in the guideline judgment, R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383. With respect to a lesser penalty imposed on account of assistance provided to law enforcement authorities, the Sentencing Procedure Act now requires that the judge state the penalty which would otherwise have been imposed: s 23(4)(b). As a result, it is common practice to identify a starting point, which should be (unless otherwise indicated) the sentence which would have been imposed were it not for the matters which properly form elements of the proposed discounting. 25The mitigating factors in the present case, to which the sentencing judge gave significant weight, were: (a) the expression of remorse with respect to the consequences of the offending on the victims; (b) the expressed intention to abandon a previous life of drug taking, property offences and violence, and (c) the provision of assistance to law enforcement authorities. There can be no doubt, however, that these factors overlapped. Separating out their effects, for the purposes of determining a sentence and a discount is an exercise fraught with difficulty. Thus, for example, the starting point could properly be assessed at a lower level than otherwise where there is a finding of genuine remorse and a commitment to change one's lifestyle, thus reducing the need for personal deterrence and improving the prospects of rehabilitation. 26Uncertainty as to whether the sentencing judge approached the case in the required manner is compounded by the failure to identify the operation of the standard non-parole period and give reasons for departing from it. 27The standard non-parole period was said to represent the non-parole period for an offence "in the middle of the range of objective seriousness": s 54A(2). (This provision has been amended, but that was the language as at the time of sentencing.) The sentencing judge expressed on several occasions a view of the objective seriousness of the offence, in terms consistent with the offence falling within the middle of the range. If the standard non-parole period were to be imposed, and putting to one side a finding of "special circumstances", which allowed the sentencing judge to depart from the proportion as between the non-parole period and the total sentence, identified in s 44 of the Sentencing Procedure Act, the appropriate "head sentence" would be nine years, three months. 28The purpose of such calculations is not to suggest that the sentencing judge should necessarily have reasoned in this way, but merely to demonstrate that the sentencing judge may have departed from the standard non-parole period (which he was undoubtedly entitled to do) without having proper regard to it. As the High Court stated in Muldrock at [29], "[a] central purpose of Div 1A is to require sentencing judges to state fully the reasons for arriving at the sentence imposed." 29The Court continued at [30]: "The full statement of reasons for the specification of non-parole periods either higher or lower than the standard assists appellate review and in this way promotes consistency in sentencing for Div 1A offences. It may also increase public awareness of the sentencing process." 30The significance of the standard non-parole period in the present case also required consideration as a guidepost when assessing whether the discounts resulted in a penalty which was "unreasonably disproportionate to the nature and circumstances of the offence", for the purposes of ss 22 and 23 of the Sentencing Procedure Act. It will be necessary to return to these provisions below. Ground 3: failure to advert to bond 31It is an aggravating factor that an offence is committed whilst the offender is on conditional liberty in relation to another offence: s 21A(2)(j). It is not in doubt that the respondent was subject to a good behaviour bond under s 9 of the Sentencing Procedure Act, imposed on 20 December 2011, for an assault. The bond was for a period of 12 months, and was therefore current at the time of the further offending in April 2012. The "Crown Sentence Summary" prepared by the prosecution and placed before the sentencing court not only failed to refer to the bond, but expressly stated that the offence had not been committed whilst the offender was on bail, bond or parole. On the other hand, the fact that he was on a bond at the relevant time was expressly identified in the pre-sentence report and in the copy of the respondent's criminal record (p 23), both of which were before the sentencing judge. 32It may be accepted that the sentencing judge did not take this matter into account, as it was not drawn to his attention, nor was it referred to in the judgment. It is not a matter which the Director should be entitled to rely upon as demonstrating error, but it may be taken into account by this Court if error is otherwise established, warranting the Court's intervention: R v Amohanga and Rai [2005] NSWCCA 249; 155 A Crim R 202 at [119]-[120] (Simpson J). Ground 4: failure to take criminal history into account 33That the respondent had an extensive criminal record, including offences involving personal violence, robbery and breaking and entering homes, cannot be gainsaid. His first conviction was in the Bidura Childrens Court when he was 13 years of age. On 4 March 2003 he was sentenced in the District Court at Parramatta to three years imprisonment with a non-parole period of 18 months for robbery whilst armed with an offensive weapon and causing wounding (grievous bodily harm). The Director submitted that this record required that substantial additional weight be given to retribution, deterrence and the protection of society, referring to R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 at [26] (Spigelman CJ). 34The proposition that the sentencing judge did not take the prior criminal record into account at all cannot be sustained. He noted in the judgment that the respondent "was involved in drug taking and crime for many years": p 2. The judge continued: "He ceased formal education in Year 7 but he was sentenced to juvenile detention for three years with an eighteen months non-parole period when he was fifteen for a crime of violence and dishonesty committed when he was fourteen." 35The judge referred to the respondent being "a poly-drug addict on almost an heroic scale" (p 3), and, in a phrase already noted, referred to the respondent's "criminal lifestyle": p 7. 36The manner in which the sentencing judge addressed this material is clear from the passage in which he noted that the respondent "was remanded in custody from [the date of his arrest] and once he had, as it were, dried out from the drugs and the alcohol he seems to have undergone a complete sea change in his attitude to matters" (p 5) and, in his second interview in April 2013, "he appears to have told the police the truth, including admitting his own very disgraceful part in the appalling affair": p 6. 37In concluding that the respondent had undergone a "sea change" and a "complete turnaround", the judge considered that he was realistic about his future and "volunteered that he will need long term residential rehabilitation upon his release": pp 6-7. Without making any finding as to the prospects of rehabilitation, the judge noted that "his rehabilitation, despite his own genuine good intentions and realism, will nevertheless be difficult and he needs an extensive period of supervised liberty in the community while on parole": p 7. 38The Director was on firmer ground in submitting that inadequate weight was given to the prior offending. A prior criminal record is sometimes identified as a reason for not according any leniency on the basis that the criminal offending was an aberration from an otherwise lawful lifestyle, or as demonstrating a greater need for personal deterrence and protection of society. However, if the assessment made by the trial judge of the respondent's character were accepted, these considerations would carry less weight than they otherwise might. The assessment made by the sentencing judge was generous to the respondent: however, the judge had some (perhaps limited) advantage of seeing the respondent give evidence (briefly) and it is not appropriate for this Court to reconsider that assessment. The Court should not intervene on this ground. Ground 5: failure to take the Form 1 offence into account 39The difficulty for the Director in making good this ground is that the sentencing judge expressly stated that he took into account the matter on the Form 1, being "the assault constituted by the gratuitous kicking of the female victim": p 7. That offence, as was emphasised by counsel for the respondent, was a "common assault" (being an assault not occasioning actual bodily harm); nevertheless, it carries a maximum penalty of two years imprisonment. The circumstances of the assault required that it be reflected in a moderate increase in the assessment of the seriousness of the offending involved in the principal charge. How it was taken into account is by no means clear, although these are not matters which can be identified with precision. Taken on its own, this ground does not form a basis for intervention. Grounds 6, 7 and 8: discount for assistance 40Each of grounds 6 and 7 complained that the sentencing judge had failed to follow the steps required by s 23(3) of the Sentencing Procedure Act because the sentence imposed (constituted by the non-parole period and the additional term) was "unreasonably disproportionate to the nature and circumstances of the offence". This ground is no more than a complaint of manifest inadequacy. It does not require separate attention from grounds 9 and 10 discussed below. 41Ground 8 complained that the judge had failed to state the amount by which the penalty had been reduced, on the assumption that it covered both past and future assistance, to reflect that assistance: see s 23(4)(c). 42While a sentence imposed which fails to comply with the requirements of s 23(4) will not be invalid for that reason, compliance remains an important legal obligation of the sentencing court. The primary reason for the obligation is that, if the offender fails to fulfil an undertaking as to future assistance, the Director may appeal to the Court of Criminal Appeal to have the sentence reduced: Criminal Appeal Act, s 5DA. It is important that this Court be in a position to act with full information as to the extent of the discount given with respect to future assistance. On the other hand, failure by the trial judge to comply with the apportionment obligation will not usually indicate that the sentence was either too high or too low. If the Court is to resentence, it will comply with the obligation under s 23(4); it will not intervene merely because there has been a breach of s 23(4). Grounds 9 and 10: manifest inadequacy 43Taking into account the foregoing discussion, the Director has made good one specific basis for challenging the sentence imposed below, namely that the trial judge did not give adequate consideration to the guidepost provided by the standard non-parole period. However, even that aspect is best considered as an element of manifest inadequacy. 44Guideposts as to an appropriate penalty are provided by the maximum available penalty (imprisonment for 25 years) and the standard non-parole period (seven years). In relation to this offence, the standard non-parole period, representing the non-parole period for an offence in the middle of the range of objective seriousness, without taking into account circumstances relevant to the offender as opposed to the offence, is consistent with a sentence having a full term of a little under 50% of the maximum penalty. 45As explained in Muldrock at [25], it is not necessary for the Court to undertake an assessment of whether the offence is within "the midrange of objective seriousness". However, some assessment of objective seriousness is necessary and in the course of submissions the sentencing judge said that "if he'd been convicted after a trial I'd have thought the matter was a mid-range offence" Tcpt, p 16(35). (The trial judge referred in his judgment (p 7) to "the very great, indeed horrifying, seriousness of his crime", language which involves an element of hyperbole.) The elements demonstrating the seriousness of the offending included: (a) when (3am) and where (a private home) the offence as committed; (b) the fact that four males entered the house; (c) the respondent being armed with an offensive weapon (a hammer) and a co-offender being armed, to the respondent's knowledge, with a knife; (d) the infliction of actual bodily harm by hitting an occupant on the head on two occasions with the hammer; (e) the "ransacking" of rooms; (f) entering the bedrooms of sleeping occupants and assaulting the occupants, and (g) the larcenous removal (and attempted removal) of cash and valuables. 46The trial judge accepted that there would be "justifiable community outrage" if the respondent received "anything less than two years as a minimum term". That opinion should be accepted. However, to say that a minimum term of less than two years would be unequivocally disproportionate to the seriousness of the offending is not to say that a penalty of two years is proportionate to the criminality involved. 47So far as the circumstances of the offender are concerned, two were favourable, one neutral and one unfavourable. The first favourable circumstances were that the respondent had a sad and disrupted childhood. As the sentencing judge fairly remarked, "[h]e grew up, it would be wrong to say he was brought up, in awful circumstances". That he fell into drug taking and crime at an early age was, again as the sentencing judge remarked, unsurprising. The respondent's history undoubtedly evokes significant sympathy and compassion. 48How such matters are to be weighed against the circumstances of a particular crime was considered recently in Western Australia v Munda [2012] WASCA 164; 43 WAR 137 and, on appeal, by the High Court in Munda v Western Australia [2013] HCA 38; 87 ALJR 1035. Mr Munda was sentenced for the manslaughter of his de facto wife. In the Court of Appeal, McClure P had observed, in a passage quoted with approval in the joint reasons in the High Court at [43]: "Even if it is established that a person's addiction to alcohol and/or drugs is mitigatory because of events in their formative childhood years or otherwise, that does not inevitably reduce the weight to be given to personal deterrence. Indeed, addictions ordinarily increase the weight to be given to personal deterrence (and/or community protection) because of the associated increase in the risk of reoffending. ... Further, the courts must exercise caution in characterising or treating an offender as a 'victim' because it can lead adult perpetrators to wrongly believe that they are not truly responsible and accountable for their conduct, leading to a failure to properly protect the community. ... Moreover, it is wrong in principle to reduce the weight to be given to general deterrence in circumstances where alcohol-fuelled violence is endemic in the community generally, even if not sufficiently deterred in fact by the prospect of imprisonment." 49The comments of McClure P with respect to personal deterrence were approved by the High Court at [57]. With respect to general deterrence and protection of the community, the joint reasons noted at [54]: "First, the proper role of the criminal law is not limited to the utilitarian value of general deterrence. The criminal law is more than a mode of social engineering which operates by providing disincentives directed to reducing unacceptably deviant behaviour within the community. To view the criminal law exclusively, or even principally, as a mechanism for the regulation of the risks of deviant behaviour is to fail to recognise the long-standing obligation of the state to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence." 50These sentiments suggest that, in the present case, some, but limited weight, can be given to the deprived background of the respondent and its likely effect in contributing to his anti-social behaviour. 51The second finding of the trial judge, which weighs more heavily in favour of leniency, is the acceptance of his change in attitude. Remorse is always a potentially mitigating factor, if genuine, because it reflects an acceptance of moral culpability and improves the chances of rehabilitation. Nevertheless, it does not necessarily diminish the importance of continuing personal deterrence, nor the need to affirm the community's disapprobation of such conduct, in defence of the individual rights of the victims. 52The neutral factor is the likelihood of rehabilitation. The ability of (experienced) judges to assess whether severity or leniency will lead to reform, at a particular point in a particular individual's life, may be doubted, particularly in circumstances where the basis for such a judgment is quite limited. The sentencing judge understandably made no predictions beyond stating that the respondent's rehabilitation, despite his good intentions, would be difficult. 53The main negative factor in the background of the respondent was his criminal history. No doubt the weight that should be given to that factor is lessened by the circumstances of his disadvantageous upbringing, but it precludes leniency based on previous good character or classification of the offending as out of character. 54Some part of the penalty must also reflect the offence on the Form 1, not because a penalty is being imposed for that offence, but because, taking that offence into account, the sentence should be increased: Abbas v R [2013] NSWCCA 115 at [22] (Bathurst CJ). 55For completeness, it should be noted that the respondent, in resisting a complaint that the sentence was manifestly inadequate, placed reliance upon the observations of King CJ in R v Osenkowski (1983) 30 SASR 212 at 212-213; (1982) 5 A Crim R 394 at 394, which have been referred to with approval on more than one occasion in this Court and which are relevant to the residual discretion: "It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform. The proper role for prosecution appeals, in my view, is to enable to the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience." 56The importance of maintaining a degree of flexibility should be recognised. However, the combined effect of the objective features of the offending and the circumstances of the offender is that the sentence in this case was manifestly inadequate. The next question is what, if any, variation should be made by this Court. Residual discretion 57Delay on the part of a prosecuting authority in seeking a remedy for what is believed to be an inadequate sentence is always a relevant factor in determining whether the court should intervene to correct inadequacy once established. In the present case, the Director gave prompt notice of his intention, even though a period of six months was allowed to pass between the date of sentence and the date on which the appellant's submissions were filed, providing a detailed basis for the alleged errors. 58Given the early notification, the lapse of time is not undue. However, a further consideration in the present case is that the non-parole period of two years was backdated to commence almost a year before the sentencing hearing and is due to expire on 4 July 2014. That is a factor which would call for greater expedition than was achieved in the present case. Nevertheless, the respondent does not complain of delay and, given the early indication of intention, the Court should not decline to intervene on this basis. 59The primary consideration relied upon by the respondent as militating against intervention was the failure of the prosecutor to indicate to the sentencing judge that a minimum term of two years would be inadequate. 60It is true that the advocate appearing for the Director on the sentencing hearing adopted a somewhat passive stance. She did not cross-examine the respondent in relation to what the sentencing judge was to describe as a "sea change" in his attitude, although it is possible that she had simply not discerned in his evidence any suggestion of such a change. It was also true that she did not take issue with the suggestion that, after trial, he would be looking at a head sentence of seven years. On the other hand, that may have been because the advocate for the offender had immediately pointed out that seven years was the standard non-parole period, with the implicit suggestion that this might not indicate a seven year head sentence as appropriate. The prosecutor did seek to dissent from the judge's suggestion that a discount of 25% should be allowed for the early plea, although it appears that that occurred in the course of answering a question from the judge whilst the respondent's advocate was still addressing him. By the time she had finished, the judge had already expressed the view that there would have to be a total discount of 40% from the seven year sentence on which he appeared already to have fixed his mind. When asked to respond to the proposition that it would be "an outrage if he didn't serve two years as a non-parole period" the prosecutor did not wish to be heard. However, it is unclear whether that was because what she understood was being proposed was the appropriate non-parole period or, as seems more likely, the very bottom of the appropriate range. 61By the time he had reached that point, it appears that the sentencing judge treated the submissions as concluded. Having made his statement about what would be an outrage, he interrupted the respondent's advocate to ask "Do you want to be heard?" She replied that she did not want to be heard "on that" and the prosecutor merely said "No your Honour", which may have been intended as agreement that she did not wish to be heard on that particular point. No further submissions were made. 62It is undoubtedly unfortunate that the prosecutor was not more assertive. In effect, she was never invited to make submissions at all. Apart from answering two questions from the Court as to the circumstances of the plea, and the appropriate discount, together with some further questions concerning the nature of the assistance provided, she was not offered the opportunity and did not seek to address on any other issue. That said, the brief transcript indicates that the respondent's advocate also had little opportunity to develop coherent submissions. 63This is not a case in which it can be said that the sentencing judge was led into error by the conduct of the prosecution (except with respect to the currency of the bond at the time of the offending). Rather, it is a case where the prosecutor failed to insist upon her right to be heard. These circumstances do not require the Court, in the exercise of its residual discretion, to allow a manifestly inadequate sentence to stand. The public interest in the proper administration of criminal justice requires that the Court intervene. Variation of sentence 64In resentencing the respondent, consideration should be given to the matters discussed above, including the fact that the respondent was at large on conditional liberty at the time of the offending. There was no challenge to the discount of 40% for the combined effect of the plea and the assistance to law enforcement authorities, but the Director did submit that if the effect of applying the discount were to reduce the minimum term to two years and the additional term to two years, three months, the result was an inadequate sentence. Whether that conclusion is given effect by treating the starting point of seven years adopted by the trial judge as inadequate, or mitigating the effect of the discount is, so long as the discount is adequately identified, immaterial. 65In all the circumstances, an adequate sentence of imprisonment required a minimum term of three years and an additional term of two years three months, giving a sentence of five years three months imprisonment. That sentence (63 months) approximates the result (rounded down) of applying a 40% discount to a starting point of nine years. A significantly more severe sentence would have been warranted were it not for the finding of the trial judge that the respondent is sincere in his expression of remorse and genuine in his wish to lead a different lifestyle. The likely period of supervised liberty is that imposed by the sentencing judge. It is a significant period: however, supervision will not assist unless the respondent retains a steadfast determination to abide by his newly found principles. 66In the present case, the element of protection required by the respondent may well make it difficult for him to obtain access to the kinds of programs otherwise available to inmates to help with anger management and recourse to drugs, identified by the psychologist as requiring attention. That is reflected in the discount for assistance. It is quite likely that the respondent will not be required to give evidence in the future: nevertheless the possibility permits the discount for assistance (being 15%) being apportioned as to 10% for past assistance and 5% for the future. Orders 67The Court should make the following orders: (1) Allow the appeal and set aside the sentence imposed on the respondent in the District Court on 21 June 2013. (2) Sentence the respondent to a non-parole period of 3 years with an additional term of 2 years 3 months, to date from 5 July 2012. The respondent will be eligible for conditional release on 4 July 2015. His sentence will expire on 4 October 2017. 68HIDDEN J: I agree that this appeal should be allowed. I am content to do so on the basis that the sentence is manifestly inadequate, without considering the other grounds argued by the Crown. 69No doubt his Honour was entitled to afford considerable weight to the respondent's subjective case. However, making all due allowance for that material, I am satisfied that the sentence fails to recognise the gravity of the criminality embraced by the principal offence and the matter on the form 1. I agree that there is no basis on which this court should exercise its residual discretion. 70It should be recorded that counsel for the respondent relied upon the decision of this court in R v Dole and Nguyen [2010] NSWCCA 101. That was a successful Crown appeal against a sentence for an offence of breaking and entering in circumstances of special aggravation, also arising from a home invasion, in which this court substituted a sentence of imprisonment for 3 years and 4 months with a non-parole period of 2 months. However, that case turned on its own facts and the circumstances of the offence, as well as the respondents' subjective cases, were significantly different from the present case. It provides no guidance to the outcome here. 71I agree with the orders proposed by Basten JA. 72RS HULME AJ: I agree.

********** 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: 20 February 2014