New South Wales Court of Criminal Appeal CITATION : R v Maher [2004] NSWCCA 177 revised - 15/12/2004 HEARING DATE(S) : 16/4/04 JUDGMENT DATE : 10 June 2004 JUDGMENT OF : Tobias JA at 1; Hidden J at 56; Kirby J at 58 DECISION : (a) Leave to appeal granted; (b) The sentences imposed by Twigg DCJ on 5 June 2003 are varied in that each is to date from 26 May 2003 and to expire on 25 May 2009. In respect of Count 2, the non-parole period of 4 years and 6 months is to commence on 26 May 2003 and to expire on 24 November 2007; (c) Otherwise, the appeal against sentence is dismissed CATCHWORDS : CRIMINAL LAW - SENTENCE - Break, enter and steal - Factors enhancing seriousness - Effect upon quantum - Repeated incursions - Value of stolen property - Professional planning - Prior record - Elderly victim - Damage to property Justices Act 1902 LEGISLATION CITED : Crimes Act 1900 Criminal Procedure Act Re Attorney Generals Aplication (No. 1) R v Ponfield & Ors (1999) 48 NSWLR 327 Lowe v The Queen (1984) 154 CLR 606 Postiglione v The Queen (1969) 189 CLR 295 CASES CITED : R v Rutter [2003] NSWCCA 306 Veen v The Queen (No. 2) (1998) 164 LCR 465 R v Hayes (1984) 1 NSWLR 740; 11 A Crim R 187, 190 R v Powell (2000) NSWCCA 108 Fernando (1992) 76 A Crim R 58 PARTIES : Regina Raymond Austin Maher FILE NUMBER(S) : CCA 60505/03 COUNSEL : A: L Flannery R: D M L Woodburne SOLICITORS : A: S O'Conner R: C K Smith LOWER COURT District Court JURISDICTION : LOWER COURT DC 02/31/0286 FILE NUMBER(S) : LOWER COURT Twigg DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL CCA 60505/03 DC 02/31/0286 TOBIAS JA HIDDEN J KIRBY J Thursday 10 June 2004 R v Raymond Austin MAHER Judgment 1 TOBIAS JA: Raymond Austin Maher (the applicant) seeks leave to appeal against the sentence imposed upon him by Twigg DCJ at Taree District Court on 6 June 2003. 2 On 20 August 2002, the applicant appeared before the Taree Local Court in respect of four charges to which he pleaded guilty. Pursuant to s 51A of the Justices Act 1902, he was committed for sentence to the District Court in respect of those charges. On 5 June 2003, he appeared before the sentencing judge and adhered to his pleas of guilty. 3 The four charges were: Charge 1 : s 113(1) of the Crimes Act 1900 That Raymond Austin Maher between the 22nd day of February 2002, and the 1st day of March 2002, at Taree, in the State of New South Wales, did break and enter the dwelling house of Joan Donnelly situate at 6989 The Bucketts Way, with intent to commit a felony therein, to wit, to steal therefrom the property of the said Joan Donnelly. Charge 2 : s 112(1) of the Crimes Act 1900 That Raymond Austin Maher on the 1st day of March 2002, at Taree, in the State of New South Wales, did break and enter the dwelling house of John Donnelly situate at 6989 Bucketts Way, and then in the said dwelling house did steal certain property, to wit, one metal safe and $365,000.00 in Australian Currency, the property of the said Joan Donnelly in the said house then being. Charge 3 : s 189 of the Crimes Act 1900 That Raymond Austin Maher on the 4th day of February 2002, at Taree, in the State of New South Wales, did receive and have one Tech II diagnostic tool the property of Cullens Holden Service Centre Pty Ltd which had before then been stolen, and he the said Raymond Austin Maher at the time when received the said property knew the same to have been stolen. Charge 4 : s 189 of the Crimes Act 1900 That Raymond Austin Maher between the 23rd day of February 2002, and the 24th day of February 2002, at Taree, in the State of New South Wales, did receive and have two cartons of Long Beach cigarettes the property of Frank Death trading as Caltex Taree West which had before then been stolen, and he the said, Raymond Austin Maher at the time when he received the said property knew the same to have been stolen. 4 His Honour sentenced the applicant on Charge 2 to imprisonment for 6 years to date from 6 June 2003 and expire on 5 June 2009. The sentence consisted of a non-parole period of 4 years 6 months and a period of 1 year and 6 months on parole. His Honour sentenced the applicant on Charges 1, 3 and 4 to a fixed term of 1 year to date from 6 June 2003 and expire on 5 June 2004. The facts 5 During 2001 and the early part of 2002, the applicant lived with his de facto, Liz French, and their four children in a house in Taree. During the 12 months preceding the offences he became friends with the two co-offenders, Danny Martin (Martin) and Luke Schlenert (Schlenert). At the time of the offences, Schlenert had moved out of home and was living at the applicant's house while Martin was staying there periodically. Charges 1 and 2 (the Donnelly home) 6 In February and March 2002, Mrs John Donnelly (who was 82 years old) lived on a rural property in The Buckets Way, Taree. On this property there were two homes about 20 metres apart. Mrs Donnelly lived in one of the homes and her daughter and grandson, Jo-Anne Anderson and Benjamin Anderson, lived in the other. Another of Mrs Donnelly's daughters, Carol Dixon, lived on an adjoining property with her husband. The three homes shared a dirt driveway that led to and from The Buckets Way. 7 On 22 February 2002, Jo-Anne Anderson heard a car and Schlenert, a friend of her son Benjamin, knocked at the door. Another young man, Martin, was also present. Schlenert made some enquiries regarding the whereabouts of Benjamin and then they left. 8 It was later determined that between 22 February 2002 and 1 March 2002 the applicant and Schlenert broke into Mrs Donnelly's home while Martin kept a lookout. They attempted to remove a safe but discovered it was bolted to the floor. As people were present in the adjoining house, they left. 9 On 28 February 2002, the applicant, Martin, Schlenert, Liz French, Steve Lucas and Katie Ward were at the applicant's house. While they were in the lounge room the applicant, Martin and Schlenert were discussing the safe. The applicant then said, "come on youse" and the applicant, Martin and Schlenert left the house and drove away in Martin's car. At about 4am on the following morning the applicant, Martin and Schlenert returned to the applicant's house. Ward, Lucas and French were still awake and in the lounge room. The applicant then asked whether they knew anyone with bolt cutters. He said, "we've been out trying to get a safe, the fucking thing's bolted to the floor". 10 Mrs Donnelly routinely attended the Taree RSL club on a Friday night, a fact that was known to Schlenert. On Friday 1 March 2002, at about 5pm, Mrs Donnelly left to attend the club after first locking the windows and doors of her home. At about 6pm Mr Dixon was driving home down the dirt driveway. He noticed an old, small sedan near Mrs Donnelly's house and a young man standing around nearby. He thought this was suspicious but then realised that the young man (who was Martin) was a friend of Benjamin's and he waved. When he drove back out the driveway at about 6.30 pm he noticed the small sedan was gone. 11 At about 8.40pm that evening Mrs Donnelly came home and found that the safe was gone and the police were contacted. It was later agreed that $151,000 cash was in the safe in $50 and $100 notes. The police have recovered only $58,615.60. The stolen cash was divided between the offenders equally. 12 After removing the safe from the floor of Mrs Donnelly's home with a sledgehammer, the applicant and his co-offenders took it to some bushland nearby and broke it open by hitting it with a block splitter. Later that evening the applicant purchased a Magna motor vehicle from an acquaintance for $2,000 cash. He and his two co-offenders then left Taree to stay with a friend of the applicant, Jai Matthews, at Surfers Paradise. Once at Surfers Paradise, the applicant and his co-offenders went on a spending spree. The applicant's de facto, Liz French, also joined them on an air ticket purchased with cash that the applicant left for her before they departed. 13 On 8 March 2002, French, Schlenert and Martin returned to Taree. At about 6pm that day police arrested Martin at his parent's house and he was later interviewed and charged. Earlier that day a search warrant had been executed at the applicant's house where Schlenert was also found to be present. Schlenert was charged but he initially declined to be interviewed. On 11 March 2002, police were waiting at Matthews' address in Surfers Paradise and, when the applicant arrived, he was arrested and charged. Charge 3 (Cullens Holden) 14 On 4 February 2002, Cullens Holden Service Centre in Taree was broken into and a selection of Holden brand clothing and a Tech II diagnostic computer were stolen. Schlenert gave evidence in the proceedings that Martin and the applicant conducted the break-in while he stood lookout. The diagnostic computer, caps and shirts were taken and stored at the applicant's house. The applicant denied he was present at the break-in. He was charged with receiving in relation to this matter. Charge 4 (Caltex service station) 15 On 23 February 2002, the Caltex service station at Taree West was broken into and some boxes containing cartons of cigarettes were stolen. Martin gave evidence that the applicant kept watch while he and Schlenert broke in. Martin said that Schlenert broke the window and he ran inside and grabbed the boxes. Schlenert gave corroborative evidence that he smashed the window and Martin ran inside while the applicant was keeping a lookout across the road. They put the cigarettes in the car and took them back to the applicant's residence. The applicant denied being involved in or present at the time of the break-in. He was charged with receiving in relation to this matter and admitted knowing about the offence and selling the cigarettes knowing they were stolen. The sentences 16 At the same time as he sentenced the applicant, his Honour also sentenced Martin and Schlenert. I set out below a table setting out a number of material matters relating to the sentencing of the three offenders taken from the Crown's written submissions with which the applicant did not take issue: Maher Martin Schlenert Age: DOB: 11/1/70 DOB: 9/11/82 DOB: 9/4/83 DOO: 1/3/02 – 32 years old DOO: 1/3/02 – 19 years old DOO: 1/3/02 – 18 years old 1. 1/3/02 Break Enter & Steal value greater than $15,000 (Donnelly home). (Max penalty 14 years imprisonment). 1. 1/3/02 Break Enter & Steal value greater than $15,000 (Donnelly home). (Max penalty 14 years imprisonment) 1. 1/3/02 Break Enter & Steal value greater than $15,000 (Donnelly home). (Max penalty 14 years imprisonment) 2. Between 22/2-1/3/02 Enter land with Intent to Break Enter Steal (Donnelly home) 2. Between 22/2-1/3/02 Break and Enter with Intent to Steal (Donnelly home) 2. Between 22/2-1/3/02 Break and Enter with Intent to Steal (Donnelly home) Offences: (the offence numbers have been re-ordered for the sake of consistency): 3. 4/2/02 Break Enter & Steal value greater than $5,000 (Cullens Holden) 3. 4/2/02 Break Enter & Steal value greater than $5,000 (Cullens Holden). 3. Receiving stolen property value greater than $5,000 (Cullens Holden) 4. 23/2/-24/2/02 Break Enter & Steal value less than $5,000 (Caltex) 4. 23/2/-24/2/02 Break Enter & Steal value less than $5,000 (Caltex) 4. 4/2/02 Receiving stolen property value less than $5,000 (Caltex) 5. 22/2-1/3/02 Larceny of outboard motor Break Enter & Steal 1/3/02: Break Enter & Steal 1/3/02: Break Enter & Steal 1/3/02: 3 years with a NPP of 1 year from 6/6/03 Sentence: 6 years with a NPP of 4 years 6 months from 6/6/03 3 years with a NPP of 1 year from 6/6/03 2-4. 1 year from 6/6/03 2-4. Fixed term of 1 year from 6/6/03. 2-5. 1 year from 6/6/03 5. 6 months from 6/6/03 Plea: Guilty Guilty Guilty *25% for early plea of guilty *25% for early plea of guilty *25% for early plea of guilty Discount: * No finding of special circumstances *Finding of special circumstances *Finding of special circumstances Previous Convictions for matters of dishonesty (excluding Children's Court) Break Enter & Steal - 4 Stealing - 5 Criminal History: Robbery - 2 No prior convictions No prior convictions Intent to Rob - 1 Receiving - 4 Attempt to obtain benefit by deception - 5 Possess house breaking implements - 1 The Grounds of Appeal 17 Apart from Ground of Appeal 3 in respect of which there is no issue, Grounds 1, 2 and 4 relate to the sentence imposed by the sentencing judge in respect of Charge 2. So far as Charge 3 is concerned, it is common ground that his Honour, when sentencing the applicant in respect of all charges, inadvertently overlooked the fact that he had spent 11 days in pre-sentence custody. Accordingly, the sentences will need to be adjusted to take account of that fact. Ground 1. His Honour erred in finding that the applicant was more culpable in the commission of the offences than his co-accused by not having proper regard to the relevant evidence and by having regard to other evidence which was not open to him in the applicant's case on sentence. 18 The sentencing judge made specific reference to the guideline judgment of this Court in Re Attorney Generals Application (No. 1) under s 26 of the Criminal Procedure Act; R v Ponfield & Ors (1999) 48 NSWLR 327. In that case Grove J, with whom Spigelman CJ and Sully J agreed, set out (at 337 [48]), eleven factors which, if any one or more were present in a particular case, would enhance the seriousness of an offence contrary to s 112(1) of the Crimes Act. As stated by Grove J, if more than one such factor is present there is a cumulative effect on the seriousness of, and the need for appropriate reflection in, the quantum of sentence. 19 Of those eleven factors, the sentencing judge found that seven applied to the applicant in respect of Charge 2. They were: (ii) the offence is the result of professional planning, organisation and execution; (iii) the offender has a prior record particularly for like offences; (iv) the offence is committed at premises of the elderly, the sick or the disabled; (v) the offence is accompanied by vandalism or by any other significant damage to property; (vii) the offence is committed in a series of repeat incursions into the same premises; (viii) the value of the stolen property to the victim whether that value is measured in terms of money or in terms of sentimental value; (x) that actual trauma was suffered by the victim (other than as a result of corporal violence, infliction of actual bodily harm or deprivation of liberty – defined circumstances of aggravation). 20 His Honour considered that he should take a serious view of the subject offence and that his sentence should reflect its objective seriousness. In determining the level of seriousness he made findings in respect of the seven aggravating factors to which I have referred in the following terms (ROS 26-27): "…The first matter involved planning, professional planning in my view, organisation, and an adequate execution of the offence. I take the view that Maher did have a substantial reason for and influence in the organisation of that offence . He may even have used his co-offenders effectively by, as we call it, casing the joint with intent to steal on an earlier occasion, the subject of other offences. There was clearly vandalism, item 5 of his Honour's list. Damage was done as appears from the photographs that were tendered before me. Although the two co-offenders, Schlenert and Martin did not have prior records for offences of this kind, clearly Maher did. That is item 3. In respect to item 4 of his Honour's guidelines, Mrs Donnelly was a person who was elderly and they saw that that was an advantage, and they ensured by their careful planning, that the home would be easier to deal with when she and others might be absent. There [is] more than one offence in relation to that particular injury, and that is a factor that his Honour seeks me to take into account as item 4. The value of the stolen property is, even on the agreed amount a very large sum, and in terms of money it is of consequence for Mrs Donnelly. One can imagine the trauma suffered by her when she discovered the loss of such a sum of money. …" (emphasis added) 21 The applicant takes issue with the sentencing judge's finding that I have emphasised above. He takes further issue with a similar finding of his Honour in which, after stating that the sentences must recognise each of the offender's respective involvement, he said this (ROS 30-31): "Yet based on my finding that the person who was vitally concerned and more than the young two, was Raymond Maher. It was largely for his gain, and from his expertise and past ability that the offence at the Donnelly home was planned and executed." 22 The applicant submitted that there was no evidence to support a finding beyond reasonable doubt that it was as a consequence of his expertise and criminal past that the subject offence was planned and executed. Further, it was contended that his Honour's findings ignored or minimised the significance of admissions made by Schlenert that he was the one who knew about the safe, that he communicated his knowledge about its existence to Martin in the applicant's presence and that he knew the movements of Mrs Donnelly. It was further submitted that his Honour ignored the fact that the offenders divided the contents of the safe equally between them. 23 In my opinion there was admissible evidence before his Honour supporting the findings he made in respect of which the applicant complains. That evidence comprises the following: (a) When questioned about the subject offence at Mrs Donnelly's home on 5 June 2003, Martin gave evidence that it was Schlenert who mentioned to he and the applicant the existence of the safe and that it had a bit of money in it and that the three of them had " cased the place ". When asked what happened next, he responded (T.19) "[ a]nd during the next week it was getting pretty frantic. Ray was needing to find some money from somewhere ". When asked (T.24) as to why he got involved in these criminal activities, he responded (T.24): "Well one would be I felt sorry for Ray. I wanted to help him. Needed to feed the kids as well and then it was also I couldn't actually get away from him". The following exchange also took place (T.28) "Q. And you've given evidence that on various occasions you thought you were in a situation where you would like to help Mr Maher because of his problems, or what he was telling you about his problems, correct?" A. Yes. Q. About his financial problems and things like that? A. Yes." Martin was not cross-examined by trial counsel for the applicant. (b) The foregoing evidence was consistent with that of the applicant himself. At T.49 in answer to a question from his Honour as to what efforts he had made to get work, he said that the reason for him doing the job was so that he could move away because he was well known locally and could not get a job in Taree although he had tried. (c) Schlenert also gave evidence. He said he looked up to the applicant and that he was aware that the applicant had said to him that he was having difficulty with money (T.66-67). At T.70-71 the following exchange took place: "Q. And then at some stage there's this matter relating to a safe out at the Bucketts Way, do you recall that incident? A. Yes. Q. Well how did all that happen? Just take your time and tell the Court what happened. A. That all first come up, like it wasn't – I didn't say it was a job, I was in a conversation with Danny Martin and it was overheard and ever since then just got pressured to do it and ended up doing it. His Honour: Q. Who pressured you? Witness: A. Just Ray wanted to do it and we wanted to help him. Ikners: Q. When do you say he pressured you, what did he do? How did he do this pressure, or what happened? A. Just kept saying about it all the time. His Honour: Q. Beg your pardon sir? Witness: A. Just kept saying to go and do it." (d) Schlenert was cross-examined by trial counsel for the applicant. He admitted that he was aware of the existence of the safe and that there was money in it and that he provided that information to Martin. He said that he had been aware of the safe for some three years but denied that it was a matter of interest to him or Martin. He was then asked (T.81): "Q. Well you went and took the safe didn't you along with Mr Maher, didn't you? A. Yes. Q. Because you wanted money. A. It was to help Mr Maher out. Q. [I]t was also to help yourself out. A. I knew the safe was there for three years before it. Q. If you did it to help Mr Maher out, why did you split the money three ways? A. That's just what we did. Q. Because you wanted the money as well, didn't you? A. No. Q. Well, you didn't refuse the money did you? A. No but I didn't do it for the money. …. Q. And you wanted money because you didn't have any. That's right isn't it? A. Yes, but I didn't do the jobs for the money for myself. Q. Well then why did you take a third of the money? A. Just did, that's how we all organised it. … Q. [I]t wasn't out of some charity for Mr Maher was it? A. Most of the money went for it. We done it to help him, like for the money." 24 In his evidence, the applicant denied that he was the leader of the three or that he silently influenced Martin or otherwise led him on. When considering the applicant's subjective circumstances the sentencing judge, after referring to the fact that his criminal behaviour changed markedly between the ages of 28 and 32 and that this had led to the applicant becoming a cunning and angry man who was anxiety-ridden, observed (ROS 23-24) that "when the suggestion was made in cross-examination that he really was the ringleader in all of these offences, that he was the one for whose benefit they were done, he retorted angrily 'well they can choke on their own halos.' " 25 As part of the Crown brief a statement of Steven Lucas dated 8 March 2002 was before the sentencing judge. Paragraphs 3 and 4 of that statement were as follows: "3. Around Thursday the 28th February, 2002 at about 11pm I was around Raymond MAHER and Liz FRENCH's house at 20 Chatham Ave, TAREE. Katie WARD and I were there keeping Liz company. When Katie and I arrived there, Raymond, Danny MARTIN and Luke SCHLENERT were home as well. Ray said whilst we were all in the lounge room, "One of my mates told me where there was a safe with a lot of money in it. Ray gave Liz a kiss and said to Danny and Luke, "Come on youse". At the time I just laughed it off because I thought they wouldn't go through with it because of Luke and Danny, they just didn't seem like the type to steal. Ray, Danny and Luke left the house and drove off in Danny's Gemini. 4. About 4am later that morning Raymond, Luke SCHLENERT and Danny MARTIN came back to the house in Danny's car the Blue Gemini. Katie, Liz and I were in the lounge room when Ray said to me, "Do you know anyone with bolt cutters, we've been out trying to get a safe, the fucking thing's bolted to the floor. Do you know anyone with bolt cutters and I will pay you for them". I said "No, don't know anyone with bolt cutters". Luke said to Ray "We've left it too late, it's too late to fuckin' go back there now. We'll have to go back tonight". Luke, Ray and Danny kept talking about going back and getting the safe. Ray said, "He told me there was heaps of money in it but the safe was too small, to look like it had heaps of money in it." 26 His Honour recognised (ROS 9) that the applicant disputed the assertion in [3] of Lucas' statement where he said: "One of my mates told me whether it was a safe with a lot of money in it." His Honour considered that it was unnecessary for him to make a decision as to where the information came from as he accepted that it was a joint criminal enterprise in which all three offenders participated. Nevertheless, it wasn't suggested that Lucas was mistaken in relation to the statements attributed to the applicant in [4] of his statement. 27 Finally, there was the applicant's criminal history involving as it did a number of offences of break, enter and steal, stealing and robbery as well as intent to rob. There was no doubt that the applicant was experienced in committing offences of the type in question. 28 As I have said, his Honour was conscious of the fact that the applicant had denied that he was the leader of the three or otherwise influenced them. He referred to the cross-examination by trial counsel for the applicant of Schlenert with respect to the alleged dominance and influence that Schlenert, like Martin, had indicated the applicant had over him. His Honour considered that when it was suggested in the cross-examination that he had been telling lies, Schlenert did "have a steel about him" (ROS 19). He concluded with respect to Schlenert that: "There was confirmation that the offender has always been a quiet and withdrawn person, and easily manipulated by others". 29 In my opinion it was open to the sentencing judge to be satisfied beyond reasonable doubt that the applicant: "did have a substantial reason for and influence in the organisation of " the subject offence. His reason for organising and planning it was because, on the evidence, he needed money. His influence in the organisation of the offence was, no doubt, based at least in part upon his previous criminal experience. His Honour was aware that the proceeds of the offence were later split equally when the offenders reached Surfers Paradise. He found, and this is unchallenged, that the applicant had contacts in Queensland and he was the person who activated the flight of the other two to Queensland because he had a haven there where they could all hide (ROS 11). In all these circumstances, it was open to the sentencing judge to find that factor (ii) of the guidelines in Ponfield was made out. I would therefore reject Ground 1. Ground 2. There is a lack of due proportion in both head sentence and non-parole period. 30 Although the applicant recognised that he was, at the time of the offence, aged 32 and had a significant criminal history whereas Martin and Schlenert were at the time of the offence in their late teens and neither had a criminal record, nonetheless it was submitted that there was a disparity between the effective sentence imposed upon the applicant of 6 years imprisonment with a non-parole period of 4½ years and that imposed upon his co-offenders for the same offence of three years imprisonment with a non-parole period of 1 year. 31 The relevant principles to be applied by an appellate court where there is a challenge to a sentence imposed on an applicant on the basis of disparity with the sentence imposed upon a co-offender, were authoritatively discussed in Lowe v The Queen (1984) 154 CLR 606 and in Postiglione v The Queen (1996) 189 CLR 295. The effect of those decisions was recently summarised by Howie J (with whom I agreed) in R v Rutter [2003] NSW CCA 306 where, in [9], his Honour said: "A justifiable sense of grievance does not necessarily arise on the part of an appellant simply because his co-offender received, or appeared to receive, more favourable treatment when being sentenced for the offence in which they were both involved. The simple fact that there is disparity between the sentences imposed upon the appellant and the co-offender does not itself enliven the Court's discretion to interfere with a sentence passed upon the appellant which is otherwise appropriate. It is only where the disparity cannot be explained by reference to any difference in the criminality of the two offenders or the subjective circumstances or the proper application of sentencing principles that the grievance is a justifiable one calling for the intervention of this Court." 32 The sentencing judge was aware of the need for parity of sentence. At [7.4] of his Remarks on Sentence (ROS 28) he said this: "I have taken into account the need for parity of sentence. That as the prosecution points out, creates its own difficulties because on the one hand there is need to ensure that there is such parity but on the other hand there is need to ensure that the subjective factors in respect of each, and the criminal history of Maher, is adequately recognised in ensuring that my public duty is carried out." His Honour returned to this subject when he said (ROS 30): "I have also taken into account that I must look at the totality of the sentences in respect of each offender and in relation to each other. The penalties must recognise the respective involvement of each of them." 33 The applicant submitted that, taking into account all relevant findings of the sentencing judge against him, nonetheless the disparity between the sentence imposed upon him and those on his co-offenders was too great to be able to be explained by reference to the differences in criminality between the applicant and his co-offenders on the one hand and their respective subjective circumstances on the other. In particular, it was submitted that the applicant was only charged with four offences whereas Martin and Schlenert were charged with five. Further, the applicant was only charged with receiving in respect of the Cullen, Holden and Caltex offences whereas his co-offenders were charged with break enter and steal with respect thereto. 34 On the other hand, neither Martin nor Schlenert had any criminal history whereas that of the applicant was extensive dating back to mid-1981 when he was 11 years old. It is clear from that history that he was a persistent re-offender. The principles which govern the use that may properly be made of an offender's antecedent criminal history was authoritatively stated in the joint judgment of Mason CJ, Brennan, Dawson and Toohey JJ in Veen v The Queen (No. 2) (1998) 164 CLR 465 at 477 in the following terms: "…(T)he antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences[.] …The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience to the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind." 35 The sentencing judge was conscious of these principles when, under the heading "The need for general and particular deterrence" he said this (ROS 27): "There needs to be a strong warning, particularly in this area, that offences of this kind, to either feed a habit or to make gain and then to spend it, needs to be the subject of a heavy sentence… There needs therefore to be not only a general deterrence warning but particularly deterrence, particularly to an older man, particularly because he has such a record of similar matters." 36 I do not understand the applicant to contest the proposition that his commission of the subject offence manifested "a continuing attitude of disobedience to the law" and "a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind." 37 Furthermore, there are a number of other factors that favoured Martin and Schlenert when compared to the applicant. His Honour was mindful of the authorities that established that where youth was concerned, emphasis should be given to rehabilitation rather than particular deterrence (ROS 27-28). He expressly acknowledged the need to ensure rehabilitation of young people (ROS 28-29). In this respect, his Honour considered that the applicant's co-offenders had demonstrated good prospects of rehabilitation: he said that he looked forward "to fulfilment of their promise that they will not re-offend". 38 Again, in the case of the Martin, his Honour accepted (ROS 14) that he had written a profound, sincere apology to Mrs Donnelly and her family for any hurt caused. Martin has also given evidence in which he expressed his contrition in what his Honour referred to (ROS 14) as an emotional time in the witness box that demonstrated to him that Martin was sorry for what he had done and saw it as a serious error in his life. Finally, his Honour (ROS 17-18) noted that witnesses who gave evidence on behalf of Martin had all indicated that they saw the offence as out of character and emphasised his good character and work ethic. 39 As to Schlenert, he was, at the time of sentencing, in full-time employment as a farm hand on his parents' dairy farm. He presented as a shy, non-communicative type of person (ROS 19). Although, as already observed, when it was suggested in cross-examination that he was telling lies he exhibited what his Honour referred to (ROS 19) as "a steel about him". Nevertheless, Mr Murray Robertson, a psychologist, was of the view that Schlenert was an emotionally immature and naïve young man easily manipulated by others and that what he had done significantly disturbed him. 40 In my opinion, the differences in criminality of the applicant on the one hand and his co-offenders on the other as well as the differences in their respective subjective circumstances demonstrates that his Honour did not err in imposing the disparate sentences in question. That disparity was clearly explained by those differences. Furthermore, the disparity in non-parole periods was explained by the fact that the sentencing judge found special circumstances in the case of the two co-offenders but not in the case of the applicant. The non-parole periods imposed by his Honour accordingly reflected these differences. 41 In my opinion, no error on the part of the sentencing judge has been demonstrated. I would therefore reject the Ground 2. Ground 4. The sentence imposed on the second charge is manifestly excessive. 42 The maximum penalty for an offence under s 112(1) of the Crimes Act is 14 years. The sentencing judge took the view that the offence was towards the high range, if not at the end of the mid-range, of seriousness (ROS 27). But for a 25% discount for his early plea of guilty, his Honour stated (ROS 34) that he would have imposed a term of imprisonment of 8 years. I would regard that starting point as consistent with his Honour's description of the seriousness of the offence to which I have referred. 43 As I have already observed, the sentencing judge under the heading "The need for general and particular deterrence" said this (ROS 27): "There needs to be a strong warning, particularly in this area [i.e. Taree], that offences of this kind, to either feed a habit or to make gain and then to spend it, needs to be the subject of a heavy sentence." 44 This sentiment of his Honour was consistent with those authorities to which the Crown referred which establish the seriousness with which the legislature regards offences of the kind in question and for the need of the courts when sentencing in respect of such offences to send a very clear message to others who may be minded to conduct themselves in a similar fashion that if they come before the courts they will be punished severely: R v Hayes (1984) 1 NSWLR 740, 742-743; 11 C Rim R 187, 190. 45 Complaint is made that in imposing the particular sentence on the applicant his Honour took into account that the applicant had chosen to serve his term of imprisonment in isolation in custody for his own protection, apparently because of earlier incidents whilst in custody. His Honour (ROS 31) recognised, therefore, that his time in prison would be harsher for him because of that choice. However, the Crown has submitted, and the applicant does not deny, that he has never been placed on any type of restriction and has been housed as a normal discipline inmate since the commencement of his sentence. Further, he has the same employment, educational and program access as all other normal inmates. 46 As the applicant acknowledged, the sentencing judge referred in some detail to his life history, which demonstrated his disturbed and deprived background. His Honour considered a pre-sentence report of Mr David Leary, senior counsellor and director at the Come In Youth Resource Centre. Mr Leary concluded that the applicant had had a "tragic life, imbued with significant abuse and violence, abandonment and neglect from his earliest years. These events echo through his life on a daily basis and overcoming their impact seems an almost impossible task for him". 47 His Honour, on the basis of Mr Leary's evidence, described the applicant (ROS 23) as: "being a cunning and angry man. His tragic life has made him quite concerned with the way he is treated by society. There have been great losses in his life and he has made positive attempts from time to time to change his life past but the memories of what has been done to him remain…He needs assistance in relation to his anger, and indeed I still believe in relation to his drugs and other matters. He expresses a desire to be a family man and care for his children. He sees injustices perpetrated upon him but makes promises to do better. He recognises that punishment and custody are the inevitable outcome of these very serious offences." 48 Although Mr Leary expressed the view that, leaving the current offences aside, the applicant had made some attempts during the past few years to do better for his children and live better as a citizen which was indicative of a desire to change that has been growing ever so slowly within the applicant over a number years, it is apparent that his Honour was not convinced that he had, as it were, turned the corner or that otherwise there were good prospects for his rehabilitation. In my opinion, it was open to his Honour to so find given the applicant's criminal history. 49 Whilst the applicant accepted that the sentencing judge referred to some of the detail of his upbringing, it was submitted that the sentence he imposed did not indicate that he gave sufficient weight to the applicant's "entrenched pattern of disadvantage and the effects of his unsatisfactory upbringing": R v Powell (2000) NSW CCA 108 at [17] per Smart AJ. However, the remarks of Smart AJ relied upon by the applicant have, with respect, been taken out of context. His Honour was doing no more than applying to the facts of the case before him, which involved a person of Aboriginal descent, the following principle applied by Wood J in Fernando (1992) 76 A Crim R 58 at 63: "(t)hat in sentencing persons of Aboriginal descent the court … must nevertheless assess realistically the objective seriousness of the crime within its local setting and by reference to the particular subjective circumstances of the offender" 50 In the present case, the sentencing judge was clearly conscious of the deprivations suffered by the applicant particularly in his early years. Nevertheless, he was required to weigh those subjective matters against the objective seriousness of the crime in question including the enhancement of its seriousness by the cumulative effect thereon of the factors in the guideline judgment in Ponfield, which he considered applied to the applicant's conduct. 51 Finally, the statistics supplied by the Judicial Commission of New South Wales with respect to sentences imposed from January 1996 to December 2002 in respect of the offence of Break Enter and Steal pursuant to s 112(1) were tendered before his Honour. He noted (ROS 30) that he had taken those statistics into account. 52 The applicant submits that the statistics reveal that the head sentence of 6 years imposed by his Honour was in the top 5% of all head sentences referred to in the statistics and that the non-parole period of 4 years and 6 months was in the top 1% of all non-parole periods imposed for the relevant period. It was submitted that an analysis of the statistics makes it clear that the sentence imposed upon the applicant in the specific circumstances relating to his case was manifestly excessive. 53 Although I have some hesitation about the matter, I have concluded that the sentence imposed by his Honour did not fall outside the limits of the exercise of a sound sentencing discretion. It is true that the sentences so imposed are at the top of the range as revealed by the statistics to which I have referred. On the other hand, the objective seriousness of the particular offence was, as the sentencing judge found, towards the high range if not at the end of the middle range of seriousness. His Honour acknowledged (ROS 28) that he had taken into account and, he hoped, given "due emphasis" to the unfortunate background of the applicant and his anger against the whole judicial system that that has engendered in him. He had found that, in a manner which in my opinion was open to him, the applicant had a substantial reason for, and influence in, the organisation and execution of the offence. The applicant had a criminal history was indicative of a persistent offender, notwithstanding the suggestion by Mr Leary that there was some evidence that he desired to change his ways. 54 In all the circumstances, although I consider the head sentence to be on the high side, I do not believe that a lesser sentence was warranted. Given his Honour's finding of no special circumstances, a non-parole period of 4½ years was appropriate. In my opinion the sentence was in proportion to those imposed upon the applicant's co-offenders. In all the circumstances, I do not consider that error has been demonstrated as a consequence whereof Ground 4 should be rejected. Conclusion 55 I therefore propose the following orders: (a) Leave to appeal granted (b) The sentences imposed by Twigg DCJ on 5 June 2003 are varied in that each is to date from 26 May 2003 and to expire on 25 May 2009. In respect of Count 2, the non-parole period of 4 years and 6 months is to commence on 26 May 2003 and to expire on 25 November 2007. (c) Otherwise, the appeal against sentence is dismissed. 56 HIDDEN J: I agree with the orders proposed by Tobias JA and with his Honour's reasons. 57 As to the sentence on the second charge I would add only this. It is undoubtedly severe but it cannot be overlooked that each of the sentences on the other charges is entirely concurrent with it. This is not to suggest that it would have been permissible for his Honour to inflate the sentence on that charge so as to embrace the criminality of the other charges: Pearce v The Queen (1998) 194 CLR 610. However, the applicant could not have been heard to complain if his Honour had passed a lesser sentence on the second charge but had partly accumulated sentences on the others so as to arrive at an aggregate sentence of 6 years with a non-parole period of 4½ years. In my view, this is a relevant matter in determining that this Court should not interfere with the sentence on the second charge. 58 KIRBY J: I agree with Tobias JA. ********** Last Modified: 12/15/2004 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.