Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Hillsley v R [2013] NSWCCA 78 Hearing dates: 13 March 2013 Decision date: 02 May 2013 Jurisdiction: Criminal Before: Hoeben CJ at CL - [1] Slattery J - [2-66] Bellew J - [67] Decision: Allow the application for leave to appeal. Appeal dismissed Catchwords: CRIMINAL LAW - sentence appeal - applicant found guilty after a trial of one count of aggravated break and enter under Crimes Act s 112(2) - applicant solicits and organises two others to break and enter and steal tyres at night from industrial premises - applicant and co-offenders make two journeys to remove and store the tyres but caught on the second journey - applicant pleads not guilty - co-offenders plead guilty and give evidence against applicant at his trial - co-offenders receive suspended sentences of imprisonment - applicant sentenced to a term of imprisonment - whether applicant has a justifiable sense of grievance due to disparity in the sentences imposed upon his co-offenders and upon him - whether sentence manifestly excessive. Legislation Cited: Crimes Act 1900 Criminal Appeal Act 1912 Crimes (Sentencing Procedure Act) 1995 Cases Cited: Carroll v The Queen [2009] HCA 13 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 House v R [1936] HCA 40; 55 CLR 499 Jimmy v R (2010) 77 NSWLR 540 Leeth v Commonwealth [1992] HCA 29 174 CLR 955 Lowe v R [1984] HCA 46; 154 CLR 606 Markarian v R [2005] HCA 25; 228 CLR 357 Muldrock v R [2011] HCA 39; 244 CLR 120 Postiglione v R [1997] HCA 29; 189 CLR 295 Rae v R [2011] NSWCCA 211 Shortland v R [2013] NSWCCA 4 Warner v Regina [2013] NSWCCA 10 Wong v R [2001] HCA 64; 207 CLR 584 Category: Principal judgment Parties: Cameron Hillsley (Applicant) Regina (Respondent Representation: Counsel: Applicant: James F. Viney Respondent: S. Dowling Solicitors: Applicant: Paul Wiggins Respondent: S. Kavanagh, Solicitor for Public Prosecutions File Number(s): 2010/2474551 Decision under appeal Jurisdiction: 9101 Date of Decision: 2011-10-07 00:00:00 Before: Acting District Court Judge Puckeridge File Number(s): 2010/247451 Judgment 1HOEBEN CJ AT CL: I agree with Slattery J. 2SLATTERY J: The applicant, Cameron Charles Hillsley seeks leave under Criminal Appeal Act 1912 s 5(1)(c) to appeal against a sentence that his Honour Acting Judge Puckeridge QC imposed upon him after a trial on indictment at the Wagga Wagga District Court on 7 October 2011. Offence and Sentence 3After a trial on 3, 4 and 5 August 2011 a jury found the applicant guilty of one count of "Aggravated Break Enter and Steal" in contravention of Crimes Act 1900 s 112(2). The offence occurred at Wagga Wagga during the evening of 24 and 25 July 2010. The aggravating circumstances were that the applicant committed the offence in company, with two other persons, Michael Dennis and Rachel Miller. 4Crimes Act s 112 (2) carries a maximum penalty of 20 years imprisonment, and a standard non-parole period of 5 years under Crimes (Sentencing Procedure Act) 1995 s 54A. The learned trial judge sentenced the applicant to imprisonment for 46 months (3 years and 10 months) to commence on 5 August 2011 and expire on 4 June 2015, with a non-parole period of 26 months (2 years and 2 months) to expire on 3 October 2013. 5After each pleading guilty to the same Crimes Act s 112 (2) charge, the applicant's co-accused Michael Dennis and Rachel Miller gave evidence for the Crown at the applicant's trial. But his Honour Acting Judge Puckeridge QC did not sentence Mr Dennis and Ms Miller. Her Honour Judge English had sentenced them on 10 June 2011. 6The applicant's Notice of Application for leave to Appeal filed on 2011 notified two grounds of appeal: Ground 1 - the applicant has a justified sense of grievance due to the disparity of the sentence imposed upon him and the sentences imposed upon the co-offenders, Mr Dennis and Ms Miller; and, Ground 2 - that the sentence imposed upon him was manifestly excessive. The Facts 7In his remarks on sentence his Honour Acting Judge Puckeridge QC set out his findings as to the relevant circumstances of the offence of the applicant and his co-offenders on 24 and 25 July 2010. As his Honour declared in his remarks on sentence ("ROS") these findings were closely based on her Honour Judge English's remarks on sentence for her Honour's sentencing of Mr Dennis and Ms Miller (ROS at 1). On this appeal neither the applicant nor the Crown challenge his Honour's findings as to these circumstances. So these findings are set out here in full. 8His Honour's findings describe a scene of the applicant: soliciting Mr Dennis and Ms Miller to participate in acts of break and enter at the Wagga Wagga commercial premises of the business Riverina Tyre Power; and, then organising and theft of tyres from these premises. The facts his Honour found include the applicant and his co-offenders: making two journeys to the premises; and, co-operating in the removal of the tyres to the applicant's property, before police intercepted them during the second journey. Here are his Honour's findings (ROS at 1-3): "Late in the evening on Saturday 24 July 2010 the prisoner attended 8 Cameron Street, Ashmont, which were the premises where Mr Dennis and Ms Miller were residing. At the premises he solicited the assistance of both Mr Dennis and Ms Miller in participating in a proposed break and enter at Tyre Power in Wagga Wagga. In the evening of 24 July 2010 all three left in a white Holden Commodore registered to Ms Miller. She, Ms Miller, was the driver of the vehicle. They drove to other premises in Ashmont Avenue where they obtained a cordless drill and hooked up a trailer to the vehicle driven by Ms Miller. After that she, Ms Miller, drove to the premises of the Riverina Tyre Power at Dobney Avenue, parking adjacent to the rear perimeter of certain fencing of those premises. With the use of some wire cutters the prisoner cut the top two strands of barbed wire above the fence enclosing the premises and all three scaled the fence. Mr Dennis, utilising the cordless drill, removed a number of screws securing the steel sheeting panelling on a roller door located at the rear of the premises and he and the prisoner entered the building whilst Ms Miller remained outside. Dennis and the prisoner then commenced to pass a number of tyres out to Ms Miller. Dennis and the prisoner exited the premises and all three rolled the tyres to the perimeter fence and assisted each other in passing the tyres over the fence and securing them in the trailer. Ms Miller then drove Dennis and the prisoner back to 152 Ashmont Avenue where the tyres were placed in the rear shed at those premises. All three returned to the Riverina Tyre premises and repeated the process. On route back to the Ashmont Avenue premises to place the then stolen goods back in the rear shed of the premises at 152 Ashmont Avenue police noted the manner of driving of the vehicle and followed the vehicle to the Ashmont Avenue address. When they approached the vehicle to speak to the driver the prisoner decamped from the scene. Miller and Dennis were questioned by police and subsequently arrested. The goods were located and recovered and all the goods were returned to the owner at the Riverina Tyre Power premises. The prisoner maintained his plea of not guilty and maintained that he was in fact not involved in the break and enter. He stated at certain stages that he could not be in two places at the same time and that he was in fact, as at the time of the break and entering, at a bucks party in Wagga Wagga. The bucks party was held actually by a person by the name of Di Bicccari. He gave evidence at the trial. He indicated that he had been and was affected by alcohol but that he understood that the then accused, now prisoner, was at the Victoria Hotel with him at the time. The verdict of the jury means that the Court, in sentencing the prisoner, must sentence him on the basis that the jury have accepted the evidence of Miller and Dennis that he was in fact with them. Not only that he was with them but he was the organiser and had solicited their assistance." 9As his Honour sentenced the applicant on the basis of the jury's acceptance of the evidence of the two co-offenders, he concluded in this passage "the jury have accepted the evidence of Miller and Dennis that he was in fact with them. Not only that he was with them but he was the organiser and had solicited their assistance." This finding was common to both his sentencing proceedings and the sentencing proceedings for Mr Dennis and Ms Miller. The Applicant's Subjective Circumstances 10His Honour gave extensive consideration to the applicant's subjective circumstances. He noted (ROS at 3) the applicant's youth: that the applicant was born on 10 November 1987 and was almost 24 years of age at the time of sentencing (7 October 2011). 11His Honour noted (ROS at 3) the applicant's prior criminal history. This history over the period 2003 to 2010 (see Particulars of Trial (Previous Convictions) was constituted by multiple driving offences, including driving whilst disqualified, and two similar offences: two counts of break and enter with intent to steal in 2004, and another count of break and enter with intent to steal in 2006. He received bonds from the Children's Court for both these offences, with a suspended sentence for the 2006 offence. 12His Honour noted (ROS at 3-4) the written evidence, which the applicant adduced from a psychologist, Ms Kathryn Wakeley. He considered a number of aspects of Ms Wakeley's report: that the applicant's "IQ falls within the significantly sub-average range"; that his IQ score fell within "the extremely low range" for verbal measures, and his performance score was within "the borderline range"; that the applicant's verbal skills are an area of "definite weakness"; and that the applicant would be helped by a "short period of psychotherapy" to assist with symptoms of "stress, depression and any ongoing difficulties with past trauma"; the "trauma" was due to the death of a close friend in a car accident in which the applicant was involved and for which death he felt a degree of responsibility. From this intelligence testing his Honour concluded that, "matters of general deterrence are not of the same significance" as they would be "when considering a case of a person with perhaps a higher intelligence." 13His Honour further noted (ROS at 4) the applicant's limited education: pointing out that he had left school in year 9 and "has considerable difficulty in reading and writing" and that any skills that he has will be "mainly as labourer." Ms Wakeley's report confirms that at high school in Wagga Wagga the applicant: had "difficulty with literacy"; was in a class for students with mild intellectual disability: but although he had not been able to complete any further education since leaving school; had managed to obtain a licence to drive a forklift, although the (non-practical) theory parts of this qualification he had found difficult to master. 14The applicant is married with two children, as his Honour found. The Applicant's family became the source of a number of positive observations that his Honour made about the applicant. After setting a non-parole period his Honour considered, under Crimes (Sentencing Procedure) Act s 44(2) that there were "special circumstances" allowing the balance of the term of the sentence to exceed one third of the non-parole period. His Honour found special circumstances in the evidence adduced on sentence and especially the applicant's evidence about the applicant's changed outlook: (1) "that he must now do his best to look after his wife and family"; and (2) "that to use the term that he used to his wife, [that he needs] to 'grow up'". 15In similar vein his Honour noted (ROS at 4) there was evidence of a good natured side of his character, in the following terms: The evidence before me however is that he is a person who is in many ways good hearted. There are references of employers and also from the evidence of his wife that he is always willing to help anyone in any difficulty. He certainly showed that in relation to his wife when she was having difficulty with her latest pregnancy. 16Ms Wakefield's report (at 10) throws light on some of the applicant's motivation for the offence, which seems to have stemmed from a short sighted seizing of an opportunity for monetary gain to assist his family. Ms Wakefield says that the offence took place "after a lengthy period of unemployment for [the applicant] in which he had struggled to find a job due to both physical and intellectual limitations". His Honour seems to have accepted the genuineness of the applicant's motivation to assist his family. But he used criminal means to achieve that end when he committed the offence. And this, together with the applicant's evidence on sentence seems to have been one of the reasons that his Honour found "special circumstances" and applied a substantial discount to the applicant's standard non-parole period. 17Finally Ms Wakefield's report (at 10) makes clear that the applicant was "aware of the illegality and wrongfulness of his behaviour" and that he "demonstrated unprompted empathy for the owners of the business and remorse for his actions". But despite this, his Honour noted that the applicant had pleaded not guilty. The Sentences imposed on the Co-offenders 18Her Honour Judge English sentenced Mr Dennis and Ms Miller on 10 June 2011. The general factual basis upon which his Honour Acting Judge Puckeridge QC sentenced the applicant was the same as that upon which her Honour Judge English sentenced Mr Dennis and Ms Miller. His Honour adopted the factual findings of her Honour's remarks on sentence, when sentencing the applicant after his trial. 19Mr Dennis made full admissions when apprehended by police, indicated a willingness to assist police, pleaded guilty before trial, and had the benefit of a finding on sentence that "he was truly remorseful and contrite". At the time of his sentence Mr Dennis was generally of good character. Although he had been convicted for some traffic offences, for which he had been placed on bonds to be of good behaviour and for which, at the time of his sentencing, the Probation and Parole Service was supervising him. Mr Dennis had been in a relationship with Ms Miller and had three children, two of them with her. He had trained as a fitter and turner but was unemployed at the time of his sentencing due to mental health issues. Indeed her Honour found in her remarks on sentence (English DCJ's ROS at 5) that he had "an undiagnosed mental condition which may have in some way contributed to the situation in which he found himself at the time he committed this offence." 20When sentencing Mr Dennis her Honour started with a sentence of 20 months and then applied two cumulative discounts totalling 40 per cent. Mr Dennis was allowed a 25 per cent discount for his plea of guilty and a further 15 per cent discount for the assistance given to the police and anticipated to be given, in relation to the then forthcoming trial of the applicant. In the result he was sentenced for his Crimes Act s 112(2) offence to a term of imprisonment for 12 months (English DCJ's ROS at 8). But under Crimes (Sentencing Procedure) Act s 12 her Honour ordered that execution of that sentence be suspended on condition that he enter into a good behaviour bond for a period of 12 months and to come before the Court if called upon to do so. No other supervision orders were placed upon Mr Dennis. The Probation and Parole Service were already supervising him for the traffic offences. 21Like Mr Dennis, Ms Miller made full admissions when apprehended by police, indicated a willingness to assist police, pleaded guilty before trial, and had the benefit of a finding on sentence that "she was truly remorseful and contrite". At the time of his sentence Ms Miller was generally of good character, having been convicted of a minor shoplifting offence when 18 years of age. But her Honour Judge English observed in her remarks on sentence (at 5-6) that Ms Miller: had suffered post-natal depression after the birth of her second child for which she was not taking medication at the time of he offences; was recently in employment and had struggled with the care of two young children and a partner with an undiagnosed mental condition. 22Again like Mr Dennis, Ms Miller was allowed a 25 per cent discount for her plea of guilty and a further 15 per cent discount for the assistance given to the police and anticipated to be given, in relation to the then forthcoming trial of the applicant. Ms Miller was sentenced for her Crimes Act s 112(2) offence to a term of imprisonment for 12 months (English DCJ's ROS at 9). But under Crimes (Sentencing Procedure) Act s 12 her Honour ordered that execution of that sentence be suspended on condition that she enter into a good behaviour bond for a period of 12 months and come before the Court if called upon to do so. 23Her Honour Judge English found (English DCJ's ROS at 6-7): that Mr Dennis and Ms Miller were both "struggling with ever increasing debt but with an inability to be able to seek assistance"; that "there was a degree of pressure brought to bear upon these two by [the applicant]; and, that but for their "precarious" financial circumstances they would not have responded to the applicant's pressure and committed the offences. 24At the time of the offences, Mr Dennis was 24, Ms Miller was 22, and the applicant was 22. Ground 1 - the Parity/Proportionality Ground 25The applicant claims a justified sense of grievance due to disparity between his sentence and the sentences of his co-offenders. The Crown submits that no sense of grievance is justified when all the circumstances are considered in conformity with applicable principle. 26Applicable principles. The High Court recently restated the sentencing parity principle in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462 ("Green"). "Equal justice" embodies the norm expressed in the term "equality before the law"; it requires that like cases be treated alike; but it also requires different outcomes in cases that are different is some relevant respect: Green at [28] per French CJ, Crennan and Kiefel JJ, and see Wong v R (2001) 207 CLR 584. Consistency in the punishment of offences against the criminal law "is a reflection of the notion of equal justice" and "is a fundamental element in any rational and fair system of criminal justice": Green at [28] and see Lowe v R (1984) 154 CLR 606, at 610 ("Lowe") per Mason J. Equal justice finds expression in "the parity principle" which requires that like offenders be treated in a like manner: Green at [28] and see Leeth v Commonwealth (1992) 174 CLR 455 at 470, per Mason CJ, Dawson and McHugh JJ. The parity principle allows different sentences to be imposed on like offenders "to reflect different degrees of culpability and/or different circumstances": Green at [28] and see Postiglione v R (1997) 189 CLR 295 at 301 ("Postiglione"), per Dawson and Gaudron JJ. 27The reason why a Court interferes to avoid a marked disparity with a sentence of a co-offender is that it considers that the disparity is such as to "give rise to a justifiable sense of grievance" or in other words that the disparity "gives the appearance that justice has not been done": Lowe at 610, per Gibbs CJ. But the parity principle does not involve any judgment about the feelings of the person complaining of disparity: Postiglione, at 323, per Gummow J and at 338, per Kirby J. Rather the sense of grievance is assessed by objective criteria: Green at [31]. The question is whether a reasonable mind looking overall at what has happened would see that the applicant's grievance is justified: Rae v R [2011] NSWCCA 211 at [61] and Shortland v R [2013] NSWCCA 4 at [113]. Whether the Court of Criminal Appeal intervenes or not "lies very much within [its] discretion, and such intervention may occur when the sentence is "not in itself manifestly excessive": Lowe at 610, per Gibbs CJ. 28The application of the parity principle requires the Court to compare the sentence imposed on each offender and an evaluation of their involvement in the commission of the offence and the subjective features of their case: the Court will "refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character, and the part that each has played in the relevant criminal conduct or enterprise": Green at [28] and Lowe at 609 per Mason J. 29In this case the application of the principle does not have the practical difficulties to which Campbell JA adverted in Jimmy v R (2010) 77 NSWLR 540, at 588-589 [201] - [203], where the co-offenders were charged with different crimes. Here each co-offender was charged with a single count under Crimes Act s 112(2). 30Finally, if the Court finds an unjustified disparity, in the exercise of its discretion it is not required to reduce a co-offender's sentence to one which is inadequate: Green at [28]. 31The Applicant's Submissions. The applicant's submissions on Ground 1 were in two parts (essentially two sub-grounds of appeal): the first part was that Acting Judge Puckeridge QC had proceeded to sentence the applicant without identifying the objective seriousness of the offence, an error which in substance it is inferred explains the disparity in sentences; and, the second part was that the disparity of sentences itself gave rise to a justifiable sense of grievance on the part of the applicant. 32For the following reasons I have found the Crown's contentions more persuasive on both parts of this ground of appeal. The applicant's submissions on this first ground are set out below, followed by my reasons for preferring the Crown's submissions made in response. 33Ground 1 - Part 1. In the first part of his submissions on Ground 1 the applicant pointed to "a significant difference in the way that that each sentencing judge assessed the objective seriousness of the offence when giving reasons under Crimes (Sentencing Procedure) Act s 54B(2) for setting a non parole period shorter than the standard non parole period prescribed under Crimes (Sentencing Procedure) Act s 55 for the middle of the range of objective seriousness. The applicant argued by contrasting Judge English's remarks on the subject of objective seriousness with those of Acting Judge Puckeridge. 34Judge English said (English DCJ's ROS at 7): "Keeping in mind the benchmark of the standard non-parole period and having regard to the objective circumstances of the offence and the subjective circumstances of the offender, the pleas of guilty, the offers of assistance, I find that this matter falls well below the mid-range envisaged by the legislature." 35Her Honour had earlier found that the matter fell below the middle of the range of objective seriousness for this offence because: (1) the aggravating factor of being in company (Crimes (Sentencing Procedure) Act s 21A(2)(e)) "is one of the less serious factors of aggravation"; (2) the offence was committed by young persons; (3) the break and enter was to commercial premises that were not expected to be occupied at the time; and (4) the goods were recovered and damages to the premises were minimal. 36But Acting Judge Puckeridge said (ROS at 3) on the question of objective seriousness: There is a standard non-parole period in relation to offences of this kind and that standard non-parole is a period of five years. I take that into account in relation to the sentence that I propose. I also take into account, other than on the evidence as found by the jury, that he was the person who planned the offence and organised other persons to be involved; that at the time of the commission of the offences he was on parole. Taking those matters into account I would consider that the appropriate sentence would be a period of imprisonment of four years. 37On the basis of this passage the applicant said in his written submissions that his Honour Acting Judge Puckeridge QC did not, in contrast to her Honour Judge English "comment ... as to where the crime fits in terms of the objective seriousness of it, nor is there any comment [in his Honours remarks on sentence] about the fact that all the tyres that were stolen were returned and the damage done to the commercial property was minimal". The applicant argued: that his Honour should, as Judge English did, have found that the offence "fell well below the mid range of objective seriousness envisaged by the legislature", and used that as the starting point for his Honour's reasoning; and, that his Honour's failure to do so led to the disparity in sentences that has occurred. 38The Crown submissions dealt separately with this and with the next part of the applicant's submissions. 39Ground 1 - Part 2. In the second part of his submissions on Ground 1 the applicant acknowledged the differences between the applicant and his co-offenders but emphasized the similarities among them. The applicant acknowledged several differences: the course of the applicant's trial, his criminal record, and the degree of his organisation of the offence. The Crown submitted that these differences were of more marked significance than the applicant acknowledged. Moreover the Crown submitted that the similarities between the applicant's situation and that of his co-offenders were weaker than the applicant sought to make out. 40The applicant acknowledged several differences from the situation of his co-offenders. The applicant accepted that his position was different in that he had pleaded not guilty and was sentenced after trial. And the applicant accepted in submissions that he had a "lengthier criminal record" than his co-offenders. Mr Dennis had convictions for traffic offences. Ms Miller had no convictions. Finally, the applicant acknowledges that he was the "architect of the joint criminal enterprise". 41But it was in the circumstances in which the offence was committed and the personal situation of the applicant that he submitted there were closer similarities among the three than had been recognised on sentence. 42The applicant submitted that the two co-offenders, Mr Dennis and Ms Miller had "participated willingly and given great assistance in carrying out the joint criminal enterprise". His submissions pointed out: that Ms Miller had "driven her white Holden Commodore to the scene of the crime after stopping ... to pick up a trailer and a cordless drill"; that although the applicant had "cut the two strands of barbed wire above the [perimeter] fence", all three offenders together "scaled the fence"; and that Mr Dennis "utilizing the cordless drill, removed a number of screws securing the steel sheet panelling on the roller door and [the applicant] and Mr Dennis entered the building while Ms Miller remained outside [the building but on the premises]"; that Mr Dennis joined the applicant in passing a number of tyres out of an opening in the wire that Ms Miller had created; and finally that the three had agreed to share any proceeds of the offence equally. 43The applicant further submitted, as follows, that his subjective circumstances were similar to those of his co-offenders. Their ages were similar; indeed Mr Dennis was a little older than the other two. Each of the offenders was "in some financial difficulty". And the applicant "ultimately did express remorse", explaining at his sentencing hearing that his reasons for pleading not guilty was his desire to avoid custody, to be with his partner Ms Miller and their two children. The applicant then referred in his submissions to the other matters identified earlier in these reasons under the heading "The Applicant's Subjective Circumstances". 44In summary the applicant submitted that "any real assessment of the levels of criminality of all three" was "very similar" and that the co-offenders' pleas of guilty and their different criminal records are not such as "would justify a significant difference of head sentences and non-parole periods imposed upon the applicant". 45But after consideration I prefer the Crown submissions in answer to the applicant's case on both parts of Ground 1 of this application for leave to appeal. 46Ground 1, Part 1 - the Crown's submissions are preferred. There are several problems with the applicant's submission that significant differences in the way that that each sentencing judge assessed the objective seriousness of the offence led to justifiable grievance as to the disparity in sentences. 47It is true that his Honour did not expressly describe the objective seriousness of the offence by reference to a place on the range above or below the midpoint. In doing so, his Honour avoided the error identified in Muldrock v R [2011] HCA 39; 244 CLR 120 of engaging in a "two-stage approach". What his Honour did was to recite the objective features of the offence, including all the matters considered by Judge English (see [7]-[9] above), although in different words and with a different emphasis. To the extent that it is necessary to compare the notional start points for the sentences imposed by their Honours, it is implicit from the head sentence that his Honour imposed that he concluded that the offence was well below the midrange of offences of this kind. The non parole period imposed was consistent with that assessment. Finally, those remarks on sentence were given ex tempore which should not be construed "minutely and finally with an eye keenly attuned to the perception of error": Warner v Regina [2013] NSWCCA 10 at [33]. 48Ground 1, Part 2 - the Crown's submissions are preferred. Full consideration of the matters to which the Crown adverts leads me to conclude that in this matter the Court should refuse to intervene because the disparity in sentences between the applicant and his co-offenders "is justified by differences between co-offenders such as age, background, criminal history, general character, and the part that each has played in the relevant criminal conduct or enterprise": Green at [28] and Lowe at 609 per Mason J. Here such differences well justify the disparity in sentences between the applicant and his co-offenders. The differences occur here in every one of the categories the High Court considered in Green at [28] other than perhaps age. 49The part each played in the relevant criminal conduct. There are clear distinctions in the relative culpability of the applicant and his co-offenders in the commission of the offence. The applicant designed this crime. And it was implemented according to the scheme he conceived. He is the one who went around to the house of the co-offenders, presented the scheme to them, and persuaded them to join him in an enterprise for which success required several participants. He then led the criminal enterprise in an active role throughout. At the end point of the enterprise he himself took control of the valuable proceeds of the crime, directing the storage of the tyres at his own premises, presumably for their later disposal. This, on the facts, is a truer picture of the offender's relative culpability, than the rough equality in responsibility for which the applicant's submissions contend. 50Age. The applicant's age is not itself a differentiating factor between the applicant and his co-offenders. Their age differences were not significant. But their age similarity rather highlights the applicant's heightened and very effective influence over his co-offenders. As her Honour Judge English found: "there was a degree of pressure brought to bear upon these two by [the applicant]", pressure that was especially effective because of the "precarious" financial circumstances of Mr Dennis and Ms Miller. 51Background. Two background matters differentiate the applicant from his co-offenders. He was on parole (for traffic matters) at the time of the offence; they were not on parole. All three had the burden of financial difficulties. But for Mr Dennis these difficulties were compounded by an undiagnosed mental condition, with which Ms Miller had to cope as his partner, as they both sought to care for their children. The applicant had a need for treatment for his stress and depressive symptoms but one that was not quite so pressing. 52Criminal History. The contrasting criminal histories of the applicant and his co-offenders are set out above, respectively at [11], [19] and [21]. A central difference between the minor offences committed by Mr Dennis and Ms Miller and the criminal history of the applicant was that he had two prior offences of a similar nature. On sentence for both those prior offences in 2004 and 2006 he had received bonds, the latter of which supported a suspended sentence. In substance the applicant was asking on this appeal for something similar to his 2006 sentence. But this time the circumstances called for something more severe to effect specific deterrence to the applicant. His Honour Acting Judge Puckeridge QC's sentence reflects that consideration. 53General character. The applicant's co-offenders had the benefit of findings of good character, despite having committed minor offences. And their pleas of guilty were consistent with their good character. The applicant could not claim, and did not have, a similar finding in his favour given his record. And his propounding a false alibi during his trial, of having been at a buck's party at the time of the offences, was very recent conduct that was hardly consistent with his then good character. 54But the findings on sentence show that the co-offenders were different from (and better than) the applicant in most relevant measures of character: they had good prospects of rehabilitation - his record showed that he had previously breached the bonds into which he had entered under Crimes (Sentencing Procedures) Act ss 9 and 12; they were found to be remorseful and contrite and consistent with that had pleaded guilty leading to a 40 per cent discount on their sentences - he had no such finding, although expressing a degree of regret after a failed plea of not guilty; and finally, they were found to be highly unlikely to reoffend - on the evidence such a finding was not and could not be made for the applicant. 55The applicant's sense of grievance at the disparity in sentences here is not justified on the objective grounds that the law requires before intervention on appeal. Moreover the Crown's submission is persuasive that any reduction in the applicant's sentence would result in a sentence that "is disproportionate to the objective and the subjective circumstances". This ground of appeal fails. Ground 2 - Claim that the Sentence is Manifestly Excessive 56The applicant submits that his sentence was manifestly excessive. The Crown submits there is no basis for the Court to intervene on that ground. 57As with other discretionary judgments, the inquiry on an appeal against sentence is determined on House v R (1936) 55 CLR 499, at 504-505 ("House") principles, by asking whether specific error is shown: an error of principle, a mistake of fact, the influence of irrelevant considerations or the failure to take material considerations into account in the decision. But to make good this ground, if specific error is not shown, the applicant must satisfy the Court that the sentence is manifestly excessive, in the well-recognised sense that it is "unreasonable" or "plainly unjust": Markarian v R [2005] HCA 25; 228 CLR 357, at 370-371 ("Markarian") and Carroll v The Queen [2009] HCA 13, 83 ALJR 579, at [8]-[9] ("Carroll"). 58Here the appellant argues that two specific errors are demonstrated in his Honour Acting Judge Puckeridge's sentencing decision. The first is that his Honour is said not to have made any findings as to the objective seriousness of the offence. And the second is that his Honour is said not to have put sufficient weight "on the applicant's young age and intellectual shortcomings as being involved in the offence". 59Neither of these arguments is persuasive. As the Crown has submitted, and I have reasoned above in relation to Ground 1, his Honour's reasons show that he did take into account the objective seriousness of the offence, despite his not making an express finding as to that matter. 60The applicant's argument based on lack of weight on the applicant's young age and intellectual shortcomings has several problems. On its face the submission does not make a case of specific error. The argument the applicant puts is only that the sentencing judge did not put "sufficient weight" on these matters. The applicant does not submit that his Honour gave no weight to these matters, which is what would be required to make out a case of specific error within House principles. 61Moreover the applicant cannot put such a submission based upon his Honour's sentencing remarks. As the Crown points out, his Honour specifically has regard to Ms Wakeley's psychological report about the applicant. He records the findings of Ms Wakeley's report in detail, findings that deal thoroughly with both the applicant's youth and intellectual limitations. Moreover his Honour also records his concern that the applicant may become institutionalised. His Honour's assessment of these matters leads to his consequential findings of special circumstances. The logic of his reasoning is clear. He has taken these two matters into account. 62Nor is this a case in which, if specific error is not shown, the applicant can satisfy the Court that the sentence is manifestly excessive, in the well-recognised sense that it is "unreasonable" or "plainly unjust" within Markarian at [25] and Carroll at [8] - [9]. Crimes Act s 112(2) carries a maximum penalty of 20 years imprisonment with a standard non-parole period of 5 years. The applicant's sentence was 3 years and 10 months with a non-parole period of 2 years and 2 months. 63This sentence is not manifestly excessive in the circumstances. The applicant solicited his co-offenders and organised the execution of the offence. The offence included, as the Crown submitted, "repeated incursions into commercial premises". The applicant has a criminal history, which includes similar offences. Aggravating features of the offence are that the applicant was on parole at the date of offending. So the factors of personal deterrence and protection of the community assume greater significance. All these features weigh against any substantial reduction in the applicant's sentence. 64Moreover, his Honour's findings as to the applicant's special circumstances under Crimes (Sentencing Procedure) Act s 44(2), allowed the substantial reduction of the non-parole period to only 57 percent of the head sentence, down from the legislative presumption of 75 percent in the absence of special circumstances. Conclusion 65In the result therefore neither ground of appeal would be made out. I would allow the application for leave to appeal but dismiss the appeal. 66So the orders that I propose are: (1) application for leave to appeal under Criminal Appeal Act 1912 s 5(1)(c) allowed; (2) appeal dismissed. 67BELLEW J: I agree with Slattery J. * * * I certify that this and the preceding pages are a true copy of the reasons for judgment herein delivered on 2 May 2013 Associate.................................. 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: 02 May 2013