New South Wales Court of Criminal Appeal CITATION: R v BARRETT [2006] NSWCCA 348 HEARING DATE(S): 20 July 2006 JUDGMENT DATE: 6 November 2006 JUDGMENT OF: McClellan CJ at CL at 1; Hulme J at 2; Hall J at 56 DECISION: (Orders made on 20 July 2006); Count 1: Appeal allowed, sentence imposed by Judge Phelan quashed; in lieu thereof the Respondent is sentenced to imprisonment for a non-parole period of 15 months commencing on 1 May 2005 with a balance of term of 3 years commencing on 1 August 2006.; Counts 2, 3 and 4: Appeal dismissed PARTIES: Regina Luke Nathan BARRETT FILE NUMBER(S): CCA 06/1150 COUNSEL: Crown: P Barrett Respondent: Ms B Rigg SOLICITORS: Crown: S Kavanagh Respondent: SE O'Connor LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/41/0027 LOWER COURT JUDICIAL OFFICER: Goldring DCJ - 18 - IN THE COURT OF CRIMINAL APPEAL 2006/1150 McCLELLAN CJ at CL HULME J HALL J Monday, 6 November 2006 R v Luke Nathan BARRETT Judgment 1 MCCLELLAN CJ AT CL: I agree with Hulme J. 2 HULME J: These proceedings are a Crown appeal against 4 sentences imposed on the Respondent by Judge Goldring on 7 April last. The offences with which the Respondent was charged and the sentences imposed were:- 1. Breaking and entering a dwelling house and committing a serious indictable offence therein, namely larceny and at the time of the larceny, maliciously inflicting actual bodily harm upon Benjamin Young - imprisonment for a term of 2½ years including a non-parole period of 1 year and 3 months both such periods commencing on 1 May 2005. 2. Assaulting Assunta Young, thereby occasioning actual bodily harm – imprisonment for 8 months including a non-parole period of 6 months, both such periods commencing on 1 January 2005. 3. Assaulting Mark Young thereby occasioning actual bodily harm - imprisonment for 8 months including a non-parole period of 6 months, both such periods commencing on 1 January 2005. 4. Assaulting Steen Barnes thereby occasioning actual bodily harm - imprisonment for 8 months including a non-parole period of 6 months, both such periods commencing on 1 January 2005. 3 The maximum period of imprisonment prescribed for the offence, the subject of count 1 is, by virtue of s112(2) of the Crimes Act 1900, 20 years. The maximum period of imprisonment prescribed in respect of each of the other offences is by Section 59 of the Crimes Act, 5 years. Pursuant to the table which follows s54D of the Crimes (Sentencing Procedure) Act there is a standard non-parole period of 5 years for the offence the subject of count 1. 4 The appeal came on for hearing on 20 July last when the Court ordered that:- (i) The sentence on count 1 be quashed; (ii) On that count the Respondent be re-sentenced to imprisonment for a non-parole period of 15 months commencing on 1 May 2005, with a balance of term of 3 years commencing on 1 August 2006; and (iii) The appeals in relation to the sentences imposed on counts 2, 3 and 4 be dismissed. 5 These are my reasons for joining in those orders. 6 The circumstances of the offences for which the Respondent was sentenced were as follows. Shortly after midnight on New Years Eve 2004-5 the Respondent smashed a French glass door of a dwelling house at Harbour Street Wollongong, entered, stole a metal money-box containing $853.40 and a watch valued at $1000.00. (Lest the significance of part of that statement be misunderstood, I should add that the watch and most of the money in fact were left in the premises.) 7 His entering the house triggered an alarm which was heard by the occupants who were nearby watching fireworks. They returned. On entering one of them, Benjamin Young, age 15, observed the Respondent and shouted out at him. The latter grabbed Benjamin and began punching him to the body and face. As a result Benjamin suffered a broken finger and bruising to a large area of his body. The events, the subject of this and the immediately preceding paragraph, were the subject of the first count on the indictment. 8 Benjamin's mother, Assunta Young then entered and, seeing the Respondent punching Benjamin, shouted at him to get off. When the Respondent continued punching Benjamin, Mrs Young tried to pull him away. The Respondent then punched Mrs Young to the face three times. She fell to the ground but he continued to punch her another 5 or 6 times. She suffered swelling and bruising to her face, jaw, nose and shoulder. These events are the subject of the second count. 9 Benjamin's father Mark Young then entered the room and the Respondent tried to run out of the house. He was grabbed by Mr Young with the assistance of Benjamin and Mrs Young. The Respondent was struggling wildly and in the course of doing so, assaulted Mr Young by inflicting blows to the latter's ribs and jaw. 10 Still struggling, the 3 men then fell out a door of the premises. Mr Young suffered another blow to his ribs. Neighbours, including a Steen Barnes arrived and helped restrain the Respondent. After some time the Respondent broke free and tried to scale the back fence of the premises. Mr Barnes and some or all of the others grabbed the Respondent who continued to struggle, violently. In the course to this the Respondent bit Mr Young on his left forearm and shoulder. In the back yard the Respondent also bit Mr Barnes on the left breast and the left forearm. Unsurprisingly, Mr Barnes also suffered bruising. The assault on Mr Young was the subject of the third count, those on Mr Barnes the subject of the fourth count. 11 Mr and Mrs Young and Benjamin made Victim Impact Statements. It is clear that all 3 found the event traumatic, and Mr and Mrs Young have continued to suffer substantial emotional reactions to it. Mr Young had the additional burden of having to endure for a time the uncertainty of not knowing whether he had been infected by the Respondent's bites. 12 During part of the events that I have described, Mrs Young made a 000 call. The police arrived, arrested the Respondent and took him to the Wollongong police station. There he displayed signs of being under the influence of a drug and shortly after appeared to be unconscious. Ambulance officers attended and administered Narcan. The Respondent appeared not to respond and was transported to hospital and there treated. There he became violent and was conveyed back to the police station. Due to his state he was not interviewed. He remained in custody until admitted to bail on 4 August 2005. 13 Subsequently the Respondent has maintained he has no recollection of the events of the night. A Pre-Sentence Report of 15 June 2005 records that he attributes this to his level of intoxication. In a psychiatric report by Professor Greenberg of 24 March 2006 it is recorded that whilst Mr Barrett claimed he had no memory of his behaviour, he was unsure whether he had drunk any alcohol at the time but denied he was using any illicit substances or medication and denied any organic reason for the memory loss. In a psychologist's report by Mr Flockton of 16 May 2005, the Respondent is recorded as giving an account of events immediately preceding the offence including travelling from Melbourne to Wollongong to find his brother on New Year's night and being with his fiancé and his brother in a hotel just drinking. In evidence during the sentencing proceedings the Respondent again asserted having no memory of the event or of being processed through the police station or at the hospital. and said that his first recollection thereafter was of waking up in Corrective Services' custody. He was not cross-examined. 14 It is clear that the Respondent had a very unfortunate upbringing. Most of the detail of this is contained in the reports to which I have referred and although within these reports there are substantial inconsistencies as to matters of detail, some parts of the overall picture are clear. Although the Respondent gave evidence during the proceedings on sentence, he was not challenged on these matters. 15 The Respondent was born on 25 February 1983. His parents separated when he was about 3 and he had no further contact with his father until about 2 years prior to the latter's death. His mother was a heroin addict, from time to time a prostitute, for a while associated with a bikie gang and had a variety of partners. The Respondent seems to have been subjected to violence by a number of these and some sexual abuse although the accounts of such abuse provided by the Applicant seem to vary to such a degree that it is not possible to conclude how significant that was. 16 He left home at age 12 or 13 because he was sick of being bashed. He said that before that there had been little food and he stole to support his brother and himself. He was made a ward of state at 14. He reported being disruptive at school and expelled on occasions. He was with Youth Off the Streets for 2½ years during which time he completed his School Certificate. To the psychologist, the Respondent referred to his experience with this organisation as "the best thing in my life". The Respondent has also spent a deal of time in Detention Centres. 17 To Professor Greenberg he said that he commenced to drink alcohol, often to excess, and to use cannabis, often stolen from his mother, at age 9. At age 15 he started to use amphetamines. The author of the Pre-Sentence Report records being told by the Respondent that it was at age 13 that he began to consume alcohol. 18 Professor Greenberg records that the Respondent admitted to using heroin between ages 13 and 14, restarting this use in November 2004, when he would have been 21. Mr Flockton records that the Respondent used it virtually every day from aged 17 to 19, supporting this by stealing. To Mr Flockton he said that he was drug free during the period he was with Youth Off the Streets. 19 Some of the material suggests that the death of the Respondent's family members may have had an effect on him although the variety of dates given make any assessment in this regard difficult. His mother died in 2001 or 2002 from a drug overdose. His father died in November 2004. According to Mr Flockton's report of 16 May 2005 – AB 127 - the Respondent thought his brother then lived in Wollongong although he didn't know where and had not seen him for 6 or 7 months. A Probation and Parole Report of 15 June 2003 - says that according to Service records the brother died in 2003. A Justice Health Report of 24 March 2006 records the Respondent saying that his brother died in 2005 although the Respondent had previously said it was 2004. 20 In the Pre-Sentence Report of 15 June 2005 the Respondent was assessed as appearing to exhibit limited insight into his offending behaviour. Professor Greenberg diagnosed the Respondent as suffering from a Severe Personality Disorder with antisocial and borderline features and from poly-substance abuse/dependence. The professor said that the prognosis was guarded. 21 Mr Flockton assessed the Respondent's intellectual functioning as at the 1st percentile and the Respondent as having minimal functional literacy. His condition was said to be consistent with multiple diagnoses including PTSD "arising from sustained childhood physical, emotional, and at least on one occasion sexual abuse … ". He was said to need intensive psychological treatment for 2 years. Mr Flockton also opined:- "By means of final comment, Mr Barrett's presentation, his attitude to the current matters for which he appears, his subjective report of his troubled past, and criminal history provided on assessment does not suggest entrenched criminal or anti-social values or behaviour. This would support the view that his offending from a young age has been aimed initially to ensure his own survival and that of his brother, and more recently to support a multiple drug habit." 22 In this connection it should perhaps be mentioned that Mr Flockton had earlier recorded the Respondent informing him that after release from prison in April 2004, he had relocated to Melbourne with his fiancé, that relationship was fine and he had been working as a bricklayer. 23 In respect of the subject charges, the Respondent was arraigned before Judge J B Phelan in the District Court on 23 May 2005 and then pleaded guilty. Remarks made by counsel for the Respondent on 24 March 2006, suggest that he had been committed for trial on the basis of a plea of not guilty. On 23 May a Pre-Sentence Report was ordered and the matter stood over until 15 June. On that date the matter was again stood over - to 29 July - so the Respondent's rehabilitation prospects could be explored. On that date the Court was informed that the Respondent could be admitted to Odyssey House and the matter stood over until 4 August. On that day he was granted bail to enter Odyssey House and the matter stood over to 22 September. 24 On 22 September a report from Odyssey House was before the Court. It recorded that the Respondent had been inducted on 5 August and was progressing. The report suggested a further adjournment of proceedings for 8 to 12 weeks. Proceedings were stood over to 2 December and bail was continued. 25 On 5 December, the Court was informed that the Respondent had left Odyssey House and his whereabouts were unknown. A Pre-Sentence Report of 2 December 2005 indicates that this departure occurred on 24 October 2005. On 5 December Judge Phelan observed that a Bench warrant had issued on 26 October although the transcript of 9 March 2006 suggests that this did not occur until 5 December. It does not matter. The Respondent was apprehended on 8 March 2006. On 9 March proceedings were stood over until 24 March when they came before Judge Goldring and the actual sentencing of the Respondent commenced. They were adjourned until 7 April when the Respondent gave evidence, counsel addressed and the Respondent was sentenced. 26 In his evidence the Respondent said that things had been going well at Odyssey House, everything was on track, he had his girlfriend back and then he received a phone call telling him that his brother had been killed in a car accident. That left him with no family apart from a sister he had not seen for 15 or 16 years and there was so much pain that he took off. He said he had not been on any medication at Odyssey House but was on methadone in prison. 27 The Respondent's record is of significance. It is not easy to compare the various documents recording this, some but not all, of the offences appearing on more than one, and the following account may understate the position. However, the account is sufficient for present purposes. 28 The Respondent's record commenced in the Moss Vale Children's Court when he was dealt with on 7 November 1997 on a charge of Break, Enter and Steal. He was then 14. He was next before a court in January 1999 when he was dealt with for 6 offences including 2 of driving a conveyance taken without consent. In the balance of 1999 he was dealt with for some 16 further offences of which 10 were offences of or involving dishonesty. In the years 2000 to 2003 he was dealt with by courts for about 33 offences. About 10 of these were of breaking and entering with intent or stealing. 29 Included in these offences were 6 counts of breaking, entering and stealing for which, on 25 September 2002 the Respondent was sentenced to imprisonment for 2 years, including a non-parole period of 9 months commencing on 17 May 2002, the parole including a condition that the Respondent undertake drug, alcohol and gambling counselling and drug testing. Prior to being sentenced by Judge Goldring, these sentences were the heaviest that have been imposed on the Respondent. His parole was revoked in April 2003 when he failed to maintain contact with the Probation and Parole Service, advise of his whereabouts and failed to attend counselling. On 20 August 2003, he was sentenced to imprisonment for 9 months from 6 July 2003 for another offence of breaking, entering and stealing. A 6 months sentence for being carried in a conveyance without the consent of the owner was made concurrent. In 2004 there were a number of driving offences, including a special range PCA. In May of that year another order for revocation of parole was made although not apparently executed until January 2005. In September 2004 he was charged with goods in custody and apparently sentenced on 29 July 2005 to 6 months imprisonment commencing on 29 January 2005. I should perhaps add that 29 July 2005 was one of the days when the Respondent appeared before Judge Phelan, also sitting in Wollongong. 30 Judge Goldring seems to have been influenced to impose the sentences he did by the circumstances of the Respondent's childhood, a view that the violence of most of the offences was out of character, that the Respondent's experience at Odyssey House was positive, an inference that the Respondent was so affected by drugs at the time of the offences that he was not in control of himself and that the Respondent had pleaded guilty at the earliest opportunity. His Honour observed that the Respondent's record meant that it was difficult for the Court to be lenient but that because all of the offences were committed at the same time, the sentences would be made concurrent. His Honour made no reference to the fact that the first offence was one of those for which the table following s54D of the Crimes (Sentencing Procedure) Act provides a standard non-parole period, one of 5 years. 31 His Honour found special circumstances in the Respondent's prospects of rehabilitation and the need for a long period of supervision on parole. His Honour postponed from 1 January to 1 May 2005 the commencement date of the sentence on the first count because the Respondent was not in custody from the end of October when he left Odyssey House, presumably until his arrest in early March. 32 In support of its claim that the sentences imposed were manifestly inadequate, the Crown relied on a number of specific matters. These may be summarised as:- (i) Judge Goldring failed to take into account the standard non-parole period for Count 1 (ii) His Honour erred in fully backdating the commencement of Counts 2 to 4 to the dates of the offences because; (a) the Respondent was at large at the time of the offence notwithstanding his parole for an offence of Take and Drive conveyance had been revoked on 27 May 2004 and the Parole Board had required that imprisonment for a further period be served. (b) The Respondent received credit for the time he was at Odyssey House and for the period after he absconded from there. (c) The Respondent had on 29 July 2005 been sentenced in the Wollongong Local Court to imprisonment for 6 months to commence on 29 January 2005 in respect of a charge of Goods in Custody preferred on 21 September 2004 (d) The further period of imprisonment that the Parole Board had required be served was of 3 months and 18 days. This occupied the period immediately following the Respondent's arrest on 1 January 2005. (iii) His Honour erred in failing to give sufficient weight to the objective seriousness of the offences and too much weight to the subjective features of the Respondent. Attention was drawn specifically to: (a) The offence(s) were akin to a home invasion; (b) There were multiple victims; (c) His Honour did not refer to the topics of general and specific deterrence; (d) His Honour treated the Respondent's record as either neutral or making leniency difficult rather than as something inspiring condign punishment; and (e) There was excessive reduction in the non-parole period. 33 I agree with all of these remarks and criticisms of Judge Goldring's sentencing of the Respondent, other than that contained in the second part of paragraph (ii)(b) and that contained in paragraph (iii)(a). I also agree with the Crown submission that the sentences imposed were manifestly inadequate. 34 The effective sentence imposed by his Honour was for a period from 1 January 2005 to 31 October 2007, 2 years and 10 months. The effective non-parole period was from 1 January 2005 to 31 July 2006, 1 year and 7 months. For about 7 months of this time – 1 January to 28 July 2005 - the Respondent was in custody serving a balance of parole and pursuant to the sentence imposed on 29 July 2005. For something under 3 months – from 4 August until 25 October 2005 - the Respondent was at Odyssey House. For something over 4 months – from 25 October 2005 until 8 March 2006 - the Respondent was at large. Thus the effective custodial portion of the sentence imposed for the 4 offences was about 7 days in late July to early August 2005 and from 8 March until 31 July 2006 – about 6 months in all. Judge Goldring could legitimately have given the Respondent some credit for the time spent at Odyssey House which has an element of the quasi-custody about it although not for the full period spent there. However, even making that allowance the effective sentence does not come close to one that was appropriate for the Respondent's offending. 35 That is so, even if one were to consider the first offence in isolation. Ignoring the circumstances of aggravation, he had committed some 10 such offences previously. He was a recidivist who had not been deterred from re-offending by the numerous sentences that had been imposed on him previously. It may fairly be said that none of them had been particularly heavy but the time had come where the demands of retribution, deterrence and protection of society warranted – I would say demanded - that that situation change – see Veen v R (No 2) (1987-1988) 164 CLR 465 at 477. A fortiori is this so when one recognises in addition the aggravating factor of the Respondent's attack on Benjamin Young. 36 The three further charges required additional punishment and in the circumstances there should have been a degree of accumulation for each of the offences. Although it is true to say that these three, and indeed all four, offences occurred during one short period, they were different offences with different victims, and the Respondent's criminality increased as he continued his violence and assaulted one victim after another. 37 Judge Goldring's explanation of the Respondent's offending as because he was so affected by drugs at the time that he was not in control of himself does not bear critical examination. The Respondent was sufficiently in control of himself to do what he was well practised in, going to someone else's property, breaking and entering a building thereon, in this case by picking up a pottery plant stand and smashing a glass door, going inside and there setting about appropriating other persons' possessions, presumably because of some appreciation of a need or desire for them. His attempt to avoid apprehension, by assaulting those in his way, is also at least consistent with someone very much in control of his actions. 38 In opposing the appeal, counsel for the Respondent drew attention to some of the authorities such as Everett v R (1994) 181 CLR 295 at 307; Kalache (2000) A Crim R 152 at [101], [213]; R v Elfar [2003] NSWCCA 358 which make it clear that relevant to the exercise of the discretion which exists in Crown appeals is the conduct of counsel appearing for the Crown at first instance and submitted that a number of the matters to which reference has been made were contributed to by the conduct of counsel appearing for the Crown before Judge Phelan. Thus a "Crown Sentence Summary" tendered on 24 March 2006 asserted that there was no applicable standard non-parole period and the Respondent had been in custody for these matters only from 1 January to 4 August 2005. Furthermore the Crown Prosecutor had not challenged to any significant extent the Respondent's evidence as to subjective matters and it was submitted that in that situation Judge Phelan was entitled to give those matters the weight he did. 39 So far as the standard non-parole period is concerned, it was submitted that, in the case of a guilty plea, that should not be used as a benchmark with the sentence simply reduced to the extent appropriate for the guilty plea and that, in any event, the offence the subject of the first count was not above the mid-range of objective seriousness, the items the subject of the larceny being all recovered and the violence that aggravated the offence being spontaneous. It was also submitted that the information available was not sufficient to draw any conclusion as to whether, had the Respondent not been bail refused after 1 January 2005, an application for fresh parole would have succeeded. 40 There is also some supervening circumstances upon which counsel for the Respondent relied. When the Respondent was apprehended in March of this year it was in connection with the commission of 2 further offences, break and enter with intent to steal, and possession of housebreaking implements. He pleaded guilty to these charges and came before the Drug Court. Evidence before this Court shows inter alia that there, or following that court's decisions, (i) The Respondent was deemed eligible for and accepted into the Drug Court program on 4 July 2006; (ii) He was due to be admitted into the Drug Court Detoxification Unit at the MRRC on 13 July 2006; (iii) On 17 July 2006 he was in the Detoxification Unit and had been assessed as suitable for admission into the Wayback House residential rehabilitation program; (iv) He was due to be sentenced by the Drug Court on 1 August 2006; and (v) It was anticipated that the Drug Court would place the Respondent on a suspended sentence, conditioned on him complying with the program, including, (vi) Undergoing urine analysis 3 times per week and appearing before the Drug Court once each week. 41 Given the magnitude of the Respondent's record, and the extent of the inadequacy in the sentence imposed in respect of the first count and in totality, this is not a case where the deficiencies in the Prosecutor's presentation of the case inclined me against allowing the Crown appeal. In this connection it is relevant to bear in mind that counsel who appeared for the Respondent before Judge Goldring also had an obligation to inform his Honour that there was a standard non-parole period that applied and that the statement in the Crown Sentence Summary in that regard was, as a matter of law, wrong. 42 I agree that it would not have been appropriate for Judge Goldring simply to have imposed a sentence including the standard non-parole period of 5 years reduced by the usual 25% discount for a plea regarded as entered at the earliest possible opportunity. I would also, for the reasons advanced on the Respondent's behalf, have assessed the offence the subject of count 1 as falling below the mid range of objective seriousness. However, the standard non parole period remained one of the benchmarks against which a decision as to the appropriate sentence should have been made – see R v Way (2004) 60 NSWLR 168 at [122]. 43 I reject the proposition that the information available was not sufficient to draw any conclusion as to whether, had the Respondent not been bail refused after 1 January 2005, an application for fresh parole would have succeeded. His history, including his responses to parole, was such that he could not reasonably have been regranted it. 44 However, what I have referred to above as the supervening circumstances are of much more weight. Whether or not I would have reached the same conclusion, it seemed to me that this Court, at least as a matter of discretion, should not deprive the Respondent of the opportunity that the Drug Court had decided to give him. Having regard to the extent of the error in the sentences under appeal it was not appropriate to simply dismiss the appeal and the competing considerations could be accommodated by the orders that were made. If the Respondent ceases his offending and otherwise complies with community standards, the orders of this Court will not prevent him from establishing some order in his life. If he does not, then the increase in the balance of sentence will bring the sentence closer to what should have been imposed by Judge Goldring. 45 I wish to make it clear however that, so far as I am concerned, were it not for the events to which I have just referred I would have favoured the imposition on the Respondent of sentences in respect of counts 2 to 4 which were each partly cumulative on the sentence imposed on count 1 and made both the full term and the non-parole period of the sentence on that count substantially longer than embodied in the orders made. 46 Implicit in what I have said is that I regard the circumstances as "special" so as to entitle the Court to depart from the relativity between the non-parole period and the balance of term contemplated by s44 of the Crimes (Sentencing Procedure) Act. 47 Although counsel did not refer to it in this connection, because of its peremptory terms it is necessary to address s54B of the Crimes (Sentencing Procedure) Act. The section provides:- "(1) This section applies when a court imposes a sentence of imprisonment for an offence set out in the Table to this Division. (2) When determining the sentence for the offence, the court is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period. (3) The reasons for which the court may set a non-parole period that is longer or shorter than the standard non-parole period are only those referred to in Section 21A. (4) The court must make a record of its reasons for increasing or reducing the standard non-parole period. The court must identify in the record of its reasons each factor that it took into account. (5) The failure of a court to comply with this section does not invalidate the sentence." 48 As I have said the offence the subject of the first count is one set out in the Table to the Division in which s54B belongs. It is apparent also that I am of the view that "there are reasons for setting a non-parole period … shorter than the standard non-parole period". I turn then to sub-sections (3) and (4). 49 Section 21A(1) provides:- "In determining the appropriate sentence for an offence, the court is to take into account the following matters:- (a) The aggravating factors referred to in sub-section (2) that are relevant and known to the court, (b) The mitigating factors referred to in sub-section (3) that are relevant and known to the court, (c) Any other objective or subjective factor that affects the relative seriousness of the offence. The matters referred to in this subjection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law." 50 The balance of the section sets out lists of aggravating and mitigating factors and contains some ancillary provisions, including limitations on the use of some of these factors. Not included in the lists are matters such as the need for general or personal deterrence, retribution, the protection of the community, the other purposes of sentencing set out in s3A of the Act, or the discretion which this Court has in the case of Crown appeals. I would not regard any of these matters as falling within paragraph (c) of sub-section 1 but they do fall within the concluding paragraph of the sub-section. 51 That conclusion does not sit happily with the terms of s54B(3) in its reference to those "referred to in s21A". So fundamental to sentencing are the matters mentioned in the two immediately preceding paragraphs that it is impossible to conclude that the words quoted do not refer to those matters but to only the specified aggravating or mitigating factors. On the other hand, if the words just quoted are construed as incorporating all of the matters falling within sub-section 21A(1) the words are effectively meaningless. Unable to think of any intermediate interpretation, that latter is the one I prefer. 52 Section 54B(4) has been the subject of consideration by this Court in R v Mills [2005] NSWCCA 175 where at [49] it was said:- "I do not consider that this was a sufficient compliance with the requirements of s 54B(4). A mere statement of the conclusion, accompanied by a confirmation that the submissions of counsel, and the circumstances of the case, have been taken into account, does not constitute an identification of the reasons which are expected in a case which falls within the umbrella of the Division. As is also the case in relation to s 21A of the Act, more is expected than mere lip service to the legislation. What is required is a clear identification of the relevant factors, the weight given to them, and their role in the structuring of the sentencing order: see R v Walker [2005] NSWCCA 109." 53 The passage was endorsed in R v Zegura [2006] NSWCCA 230 although in R v Sciberras [2006] NSWCCA 268I, with the concurrence of Beazley JA and Hislop J, said that I thought that passage went further than the sub-section required and that, Section 21A and S54B having already increased markedly the burden on sentencing judges, I saw no reason to add to this workload unnecessarily. That said, the question remains as to how much specification is required. 54 I doubt if the section requires reference to general sentencing principles or the factors mentioned in s3A. If, as I believe, all the section requires is reference to factors arising in the particular circumstances of the case, I have identified these. 55 Thus it was that at the time of the hearing of this appeal the Court concluded that it should dismiss the appeals in relation to the sentences imposed on counts 2, 3 and 4 and that in the case of count 1, while the appeal should be allowed, and the sentence imposed by Judge Phelan quashed, the sentence to be imposed in lieu should be one including the same non-parole period of 15 months commencing on 1 May 2005, with a balance of term of 3 years commencing on 1 August 2006. 56 HALL J: I agree with Hulme J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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