Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Beale v R [2015] NSWCCA 120 Hearing dates: 20 May 2015 Date of orders: 29 May 2015 Decision date: 29 May 2015 Before: Hoeben CJ at CL at [1] R A Hulme J at [2] Beech-Jones J at [6] Decision: (1) Leave to appeal be granted; and (2) The appeal be dismissed. Catchwords: SENTENCE APPEAL – two serious home invasions – seven offences – aggregate sentence imposed – whether sentencing judge attributed "moral responsibility" for all acts of participants in joint criminal enterprise to the applicant – approach to sentencing where evidence does not enable differentiation between participants in joint criminal enterprise – risk of institutionalisation – special circumstances – whether sentencing judge erred in not finding special circumstances even though applicant institutionalised – totality – alleged error in failing to have adequate regard to totality – whether aggregate sentence manifestly excessive. HELD: no error shown – leave to appeal granted but appeal dismissed. Legislation Cited: - Crimes Act 1900 – s 86; s 97, s 105A, s 112, s 113, s 154F, s 195A - Crimes (Sentencing Procedure) Act 1999 – s 44, s 53A Cases Cited: - AB v R [2014] NSWCCA 31 - Behman v R [2014] NSWCCA 239 - Cullen v R, [[2014] NSWCCA 162 - House v R [1936] HCA 40; 55 CLR 499 - Jackson v R [2010] NSWCCA 162 - Jinnette v R [2012] NSWCCA 217 - JM v R [2014] NSWCCA 297 - KR v R [2012] NSWCCA 32 - Markarian v R [2005] HCA 25; 228 CLR 357 - Martin v R [2014] NSWCCA 124 - Mill v R [1988] HCA 70; 166 CLR 59 - Pearce v R [1998] HCA 57; 194 CLR 610 - PD v R [2012] NSWCCA 242 - R v Brown [2012] NSWCCA 199 - R v Carter [2003] NSWCCA 243 - R v JW [2010] NSWCCA 49 - R v Olbrich [1999] HCA 54; 199 CLR 270 - R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 - R v Sukkar [2011] NSWCCA 140 - R v Tuuta [2014] NSWCCA 40 - R v Wright [2009] NSWCCA 3 - RL v R [2015] NSWCCA 106 - SHR v R [2014] NSWCCA 94 Category: Principal judgment Parties: Dwayne Beale – Applicant Director of Public Prosecutions – Respondent Representation: Counsel: C.J. Bruce SC – Applicant Ms S. Dowling SC – Respondent Solicitors: Aboriginal Legal Service – Applicant Director of Public Prosecutions – Respondent File Number(s): 2012/215302; 2012/302208 Publication restriction: Nil Decision under appeal Court or tribunal: District Court Date of Decision: 27/02/2014 Before: Colefax DCJ File Number(s): 2012/215302 2012/302208 Judgment 1. HOEBEN CJ at CL: I agree with Beech-Jones J. 2. R A HULME J: I agree with the reasons of Beech-Jones J and with the orders he proposes. 3. In relation to Ground 3, the manner in which the learned sentencing judge approached the task of applying the principle of totality was sufficiently transparent to permit appellate review of the manner in which the sentencing discretion in this respect was exercised. I make this observation because in a recent decision of this Court, RL v R [2015] NSWCCA 106, the task was approached in the context of resentencing by precise specification of the extent of notional accumulation of indicative sentences: "[69] The appropriate course is to accumulate count 4 on count 3 by three months, count 5 on count 4 by 9 months and count 6 on count 5 by six months. The resultant sentence, after discounts are included, is an overall period of six years." 1. In the present case, the judge simply indicated which sentences would be concurrent and which would be partially accumulated. That, in my respectful view, is as precise as one needs to be and is an approach that takes full advantage of one of the benefits that aggregate sentencing was designed to achieve. Absolute precision in specifying the degree of accumulation is tantamount to expressing commencement dates for each of the indicative sentences; an approach that has been eschewed in previous decisions of this Court. In JM v R [2014] NSWCCA 297 at [39]-[40] I listed a number of propositions concerning aggregate sentencing, two of which (in [39]) were: "1. Section 53A was introduced in order to ameliorate the difficulties of applying the decision in Pearce v The Queen [1998] HCA 57; 194 CLR 610 in sentencing for multiple offences: R v Nykolyn [2012] NSWCCA 219 at [31]. It offers the benefit when sentencing for multiple offences of obviating the need to engage in the laborious and sometimes complicated task of creating a "cascading or 'stairway' sentencing structure' when the principle of totality requires some accumulation of sentences: R v Rae [2013] NSWCCA 9 at [43]; Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36 at [231]; Behman v R [2014] NSWCCA 239; R v MJB [2014] NSWCCA 195 at [55]-[57]. … 8. Specification of commencement dates for indicative sentences is unnecessary and is contrary to the benefits conferred by the aggregate sentencing provisions: AB v R [[2014] NSWCCA 31], at [10]. Doing so defeats the purpose of a court availing itself of the power to impose an aggregate sentence: Behman v R [2014] NSWCCA 239 at [26]. See also Cullen v R, [[2014] NSWCCA 162], at [25]-[26]." 1. The advantage of avoiding unnecessary mathematical computation in partially accumulating indicative sentencing is illustrated by the fact that through the process of partial accumulation precisely specified in RL v R the outcome was stated to be "an overall period of six years", but in fact was 5 years 6 months. (And the final indicative sentence was entirely subsumed within longer indicative sentences upon which it was partially accumulated.) 2. BEECH-JONES J: This is an application for leave to appeal from an aggregate sentence imposed by the District Court upon the applicant in respect of seven offences arising out of two separate "home invasions". 3. On 27 February 2014 the applicant was sentenced by the District Court to an aggregate sentence of imprisonment of fifteen years commencing 15 December 2012 and expiring 14 December 2027. The Court fixed a non-parole period of eleven years and three months and a balance of term of three years and nine months. The earliest date the applicant is eligible for release on parole is 15 March 2024. 4. Subsection 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (the "Sentencing Act") obliged the Court to record the fact that the aggregate sentence was being imposed and the sentences that "would have been imposed for each offence … had sentences been imposed instead of an aggregate sentence". The sentencing judge complied with this requirement. Thus the indicative sentences for the offences committed during the first home invasion which occurred on or about 11 March 2012, compared with the maximum penalties for those offences were as follows: Indicative sentence Offence Maximum Penalty 1 Aggravated break and enter with intention to steal (Crimes Act 1900; s113(2)) 14 years imprisonment 5 years 3 months 2 Robbery armed with an offensive weapon (Crimes Act; s 97(1)) 20 years imprisonment 10 years 6 months 3 Steal motor vehicle (Crimes Act 1900; s 154F) 10 years imprisonment 3 years 1. The aggravating factor for the first offence in this table was that the offender was armed with an offensive weapon, namely a gardening saw (Crimes Act, s 105A(1)(a). (It was also aggravated by its commission in the company of other offenders: s 105A(1)(b).) None of these offences carried a standard non-parole period for the purposes of Division 1A of Part 4 of the Sentencing Act. 2. The indicative sentences for the offences committed during the second home invasion, which occurred on 27 March 2012, compared with the maximum penalties for those offences were as follows: Maximum Penalty Indicative sentence Offence 1 Aggravated break and enter and commit a serious indictable offence namely larceny (Crimes Act 1900; s 112(2). 20 years imprisonment 9 years imprisonment with an indicative non-parole period of 6 years and 9 months 2 Steal motor vehicle (Crimes Act; s 154F) 10 years imprisonment 3 years and 7 months 3 Intentionally destroy property by means of fire (Crimes Act; s 195(1A)(b)) 11 years imprisonment 3 years 7 months 4 Detain person with the intention of obtaining an advantage in company (Crimes Act; s 86(2)) 20 years imprisonment 4 years 6 months 1. The aggravating factor for the first offence in this table was that it was committed in company. That offence carried a standard non-parole period of five years. None of the other offences carried a standard non-parole period. 2. In the sentencing judgment, his Honour indicated that he would notionally treat the sentences referable to each home invasion as fully concurrent and partially cumulate the two notional groups of sentences. I will return to address this in considering ground three of the appeal. 3. There was an agreed statement of facts concerning each home invasion placed before the sentencing judge. They described the conduct of three offenders but did not identify which one was the applicant. I will summarise the facts of each home invasion in turn. The First Home Invasion 1. The victim of the first home invasion was a 62 year old woman. She lived with her teenage grandson in a single storey dwelling in the semi-rural suburb of Berkshire Park. Between 10:30pm on the evening of 10 March 2012 and 1:00am on 11 March 2012, while the victim was asleep, the applicant and two other males broke into her home. They forced open a locked window to a home office and study. They entered and began ransacking the study. This conduct constituted the first offence in the table in [8]. 2. At around 1:00am the victim woke up and noticed a light coming from her study. One of the offenders turned on her bedroom light. He was wearing a black hooded jumper that partially covered his face. This offender was holding a rusty 18 inch blade machete in his right hand. He waved the machete around and said to the victim: "Get out of bed, get out of fucking bed. Put a blanket around you. Get up, get up." 1. The other two offenders entered the victim's bedroom. Each was wearing black hooded jumpers with hoods covering their faces. One of these offenders was carrying a small kitchen knife. 2. The victim got out of her bed and put on a dressing gown. The offender carrying the machete yelled at her: "Open the safe, open the safe, hurry up." 1. The victim walked to her wardrobe which contained a small safe. She knelt down to unlock the safe. She felt the machete being held to the back of her neck. One of the offenders yelled at her: "Hurry up, hurry up". 2. The victim opened the safe. The offender holding the machete told her to stay in an en suite bathroom. The offenders then emptied the safe which contained $4,000 in $100 notes, a number of collectable coins and a large amount of jewellery. The victim remained in the en suite while the offenders ransacked the house. 3. The offender with the machete returned to open the door to the en suite. He grabbed the victim by her dressing gown and dragged her to the study, saying "Come on, come on, down to the other safe". This offender then screamed at her: "Open the safe. Stop stalling. This is an inside job." 1. The victim told the offenders that to open the safe she needed a code that was stored in her diary. The three offenders searched the study for the diary. The offender holding the machete said to the victim: "You better not be stalling me you old hag. I will rape and cut your head off." 1. The offenders did not locate the diary. The victim told them she could not remember where it was. The offender holding the machete said to her: "That's it you're stalling. I'm gonna rape you, bend over." 1. Not surprisingly, the victim stated that she was "so scared she thought her knees were about to buckle and she was finding it hard to breathe". The victim told the offenders that she could not open the safe and there was nothing inside. The offender holding the machete repeated that they wanted money and it was an "inside job". He grabbed a box containing some antique pocket watches. He left the room, telling the offender holding the kitchen knife to "watch her". That offender holding the kitchen knife said to her "Just open the safe, just open the safe and you won't get hurt". 2. A short time later the offender holding the kitchen knife left the study. The victim closed the door to the study and attempted to lock it. The offenders forced the door back open. The male holding the machete waved it around. He screamed: "You've done it now. You've done it now. Get out [of] here, I'm gonna take your head off." 1. The victim was forced into the lounge room. She was made to sit on a stool with her back to the wall. The offender with the small kitchen knife stood beside her as the other two offenders carried a bag full of her belongings and a television from the house. 2. A short time later the offender with the machete re-entered the room holding the victim's Westpac debit card. He demanded her "PIN". She gave it to him. The three offenders left the house. They took the victim's car. It was discovered at 2.37am set alight in a reserve in a nearby suburb. Approximately an hour later two lots of five hundred dollars were withdrawn from the victim's bank account. 3. In total the offenders stole property of the victim valued at over $60,000, as well as $5,000 in currency, the victim's vehicle and personal papers including three wills and three bank cards. 4. The conduct of the applicant and his co-offenders in terrorising the victim and demanding property from her under threat of force comprised the second offence in the table in [8], i.e. armed robbery. The conduct of the applicant and his co-offenders in taking the victim's car comprised the third offence in the table in [8], ie steal motor vehicle. 5. In August 2012 the investigating police were notified that DNA recovered from the victim's house matched the applicant's DNA. This was confirmed in January 2013 following the taking of a DNA sample from the applicant. The Second Home Invasion 1. The victims of the second invasion were two brothers who lived in a two storey house in Kellyville in Sydney's north-western suburbs. In the early hours of 27 March 2012 the applicant and two other offenders forced entry into their house by manipulating a barrel lock on the rear glass sliding door on the ground floor of the premises. After they gained entry they took "large cooking knives" from the kitchen and began to ransack the bottom level of the home. 2. At around 3:00am one of the victims was woken when his bedroom door was opened (the "first victim"). He saw two flashlights and heard two male voices. One of the offenders approached him and said: "where's the keys to the Evo?" This was a reference to his Mitsubishi "Evolution" Lancer motor vehicle. The first victim did not respond. He saw a flashlight shining on a 20cm serrated knife. The offender holding this flashlight began to look through the room, opening drawers and doors. He said to the first victim: "Give me the keys to the Evo or I will cut you". The first victim told him they should be on the bedside table or in the kitchen. Another offender carrying a flashlight entered the bedroom. This offender asked the first victim if there was anyone else in the house. The first victim said "Just my brother". 3. One of the offenders turned the light on in the first victim's bedroom. The two offenders in this room then ransacked his drawers. They asked the first victim for his keys, cash, wallets, phones and gold. One of the offenders removed his iPod from its dock. The first victim saw the third offender walk past his bedroom door towards his brother's room. He heard him speak to his brother. 4. The first victim heard one of the offenders state "I've got it". A short time later he heard the sound of his car being driven away. However, two of the offenders remained in the house. 5. In the meantime the first victim's brother (the "second victim") was woken by a voice yelling at him: "Stay there, turn over". A torchlight was pointed in his face. Two of the offenders were in his room. His bedroom light was turned on. The second victim saw one of the offenders with cloth covering his face carrying a torch and a silver kitchen knife around 20cm long. This offender walked to his side of the bed and said: "Don't look at me, turn over". He demanded that the second victim provide the keys "to the Evo". The second victim replied: "It's not my car, look in the kitchen". The offender paced around the room demanding to know where he kept jewellery and money. This offender said to the second victim: "If you try to move, I will kill you". 6. As noted one of the offenders located the keys and drove the vehicle away. The two other offenders tied up the victims using belts and electrical cords and left them in their rooms. One of the offenders said to the second victim: "If you try to do anything, I will kill you. I know where you live". Both of those offenders then left. 7. The victims' home was completely ransacked. The motor vehicle was stolen, as were their mobile phones, a laptop computer and numerous items of electronic equipment, watches, wallets, identification, cash and some gold jewellery. 8. The conduct of the applicant and the other offenders in gaining entry to the house comprised the first offence noted in the table in [10] above, i.e. aggravated break and enter and commit larceny. The theft of the motor vehicle was the second of those offences and the detention and tying up of the victims was the fourth offence in that table. 9. At around 9:35pm on 27 March 2012 the Mitsubishi vehicle was found alight in an industrial area in Minchinbury. The rear of the vehicle was completely destroyed. The conduct of the applicant and his co-offenders in destroying the vehicle comprised the third offence in the table in [10] above. 10. The applicant's DNA was retrieved from knives seized from the lounge room floor and gym area of the victims' house. He was arrested on 11 July 2012 while he was already in custody. The Sentencing Judgment 1. In the sentencing judgment his Honour set out the offences to which the applicant pleaded guilty. His Honour addressed the remainder of the sentencing task as follows. 2. First, his Honour noted that on 5 December 2008 the applicant was sentenced to a term of imprisonment for a number of offences that arose out of two home invasions he perpetrated in September 2007. His Honour noted that the applicant was released on parole for those offences on 21 December 2011, which was only two and a half months prior to the commission of the offences the subject of this application. His Honour noted that those offences displayed a "very disturbing similarity" to the offences the subject of this application, in that residential premises were broken into at night while in company, the victims were vulnerable people, weapons were involved and property was stolen. 3. Second, his Honour summarised the facts involved in the first home invasion. 4. Third, his Honour noted that the offences committed during the first home invasion involved a number of aggravating factors within the meaning of s 21A(2) of the Sentencing Act, namely that, at the time of the offences, the applicant was on conditional liberty in the form of parole (s 21A(2)(j)), the applicant had a number of prior convictions, including those just noted (s 21A(2)(d)), the offence was planned (s 21A(2)(n)), the offences involved the threatened use of violence (s 21A(2)(b)), the offences involved the actual use of weapons (s 21A(2)(c)), the offences were committed in the home of the victim (s 21A(2)(eb)), the victim of the offences was vulnerable due to her age (s 21A(2)(l)), and the offences caused substantial emotional harm to the victim (s 21A(2)(g)). 5. Fourth, the sentencing judge addressed a contention that the assessment of the applicant's moral culpability for his participation in a joint criminal enterprise had to be undertaken "without attributing particular actions or words to him". His Honour concluded that the applicant should be sentenced on the basis of his being "criminally culpable for the full range of the criminal activities undertaken that night". This aspect of the sentencing judgment is the subject of ground 1 of the application. It is addressed below. 6. Fifth, his Honour determined that the first offence in the table in [8] was in the "nominal mid range of objective seriousness for an offence" of that type, the second offence was "well above the mid range", and the third offence was "slightly below the mid range of objective seriousness". It was not contended that any error was revealed by his Honour undertaking this analysis even though none of the offences carried a standard non-parole period. 7. Sixth, his Honour summarised the facts concerning the offences arising out of the second home invasion. His Honour found that those offences were aggravated in that the applicant was on parole when they were committed, he had a poor criminal record, the offences involved threats of violence and the actual use of weapons and they were committed in the victims' home. His Honour determined that the first offence in the table in [10] was "above the notional mid range for offences of that kind", the third offence was in the "notional mid range" for offences of that kind, and the second and fourth offences were "slightly below" the "notional mid-range of objective seriousness for offences of those types". 8. Seventh, his Honour summarised the subjective history of the applicant. At the time of sentencing he was twenty five years of age. His Honour noted that he had a "long history of criminal offences including violence against people and damaging property as a juvenile". 9. His Honour noted that the applicant's parents separated when he was young but that he appeared to have had a reasonably stable upbringing until he was fifteen when he left home to live with his then girlfriend and her parents. His Honour described his relationship with his girlfriend as "violent and volatile" and noted that the applicant was charged with a number of assaults and breaches of apprehended violence orders. There is a child from that relationship who is now six years of age. The applicant was at some point expelled from high school. He has never had legitimate employment. According to his Honour, he has "long term problems with alcohol and illicit drugs, especially cannabis, heroin and ice". 10. The sentencing judge rejected the submission that the applicant's moral culpability should "be seen against the background of what was submitted to be profound deprivation". His Honour did not consider that that background had been established. 11. Eighth, his Honour found that the applicant was "totally lacking in any genuine remorse". However, his Honour noted the utilitarian value of the applicant's plea. In relation to the offences arising out of the first home invasion, his Honour determined that the level of discount reflecting his plea of guilty was 25%. In relation to the offences arising out of the second home invasion, his Honour considered that, having regard to the time at which they were entered, the appropriate discount was 10%. No complaint was made in relation to these assessments. 12. Ninth, his Honour concluded that the applicant's prospects of rehabilitation were poor, notwithstanding his age. His Honour declined to make a finding of special circumstances. This aspect of his Honour's judgment is the subject of ground 2 of the appeal. 13. Tenth, his Honour noted that the applicant's parole for the offences committed in September 2007 was revoked on 15 March 2012 and that he had only been in custody that was solely referable to the offences the subject of this application since 9 May 2013. Having regard to "notions of totality" his Honour identified the appropriate start date for imprisonment on these offences as 15 December 2012. The manner in which his Honour had regard to the totality principle is the subject of complaint in ground 3 of the application. Ground 1: The Applicant's Culpability 1. Ground 1 of the application contends that his Honour "erred in sentencing the applicant on the basis that he was 'criminally culpable' or 'culpable' (meaning morally culpable) for the full range of criminal activities undertaken in relation to the subject offences". 2. This ground refers to the matter adverted to in [44] being the following part of the sentencing judgment that relates to the first home invasion: "… It was submitted that the offender was to be sentenced for his participation in a number of serious offences committed in company of at least two other unidentified offenders and that the Agreed Facts do not specify the precise role played by this offender. The submission was that, although he had pleaded guilty on the basis of a joint criminal enterprise, any assessment of his moral culpability must be undertaken without attributing particular actions or words to him. In this regard, reliance was placed upon the decision of [the] Court of Criminal Appeal in KR v The Queen [2012] NSWCCA judgment 38 and, in particular, to the part of the judgment of Latham J at paras 15–22 inclusive. The present situation, however, is different from that in the case cited by counsel for Mr Beale. True it is that the Agreed Facts do not attribute any act to any particular offender but this offender has given no evidence as to his role in the events of this night. I have noted within ex A (being the crown tender bundle) that there is a court attendance notice which alleged that this offender committed the armed robbery with an offensive weapon, namely a knife. However, it also contains another court attendance notice which alleged that this offender committed the break and enter armed with an offensive instrument, namely 'a garden saw' – which could reasonably be understood as being in the nature of a machete. This offender has chosen not to reveal the particular conduct in which he engaged. He will therefore be sentenced on the basis of being criminally culpable for the full range of the criminal activities undertaken that night." (emphasis added) 1. Later in the sentencing judgment, in addressing the second home invasion, his Honour stated: "As with the offences [arising out of the first home invasion], there is no material before me which enables me to identify with precision what role in these offences this offender had. For the reasons I earlier gave, he will be sentenced on the basis of being culpable for the full range of criminal activities undertaken." 1. The written submissions in support of this ground contended that his Honour effectively sentenced the offender on the basis that he was "morally culpable" for the entirety of the criminal conduct committed during the course of both home invasions, including the acts of the "machete wielding" offender. It was submitted that his Honour erred in doing so. It was further submitted that his Honour also erred in stating that it was for the applicant to satisfy the Court as to his role in the subject offences. It was contended that the onus of proving the commission by the applicant of any particular act, such as wielding the machete in the first home invasion, rested on the Crown and it had to prove that matter beyond reasonable doubt (citing R v Olbrich [1999] HCA 54; 199 CLR 270; "Olbrich"). 2. In KR v R [2012] NSWCCA 32 at [19] to [23] ("KR"), Latham J explained the distinction between an offender's criminal responsibility and moral culpability for a crime committed pursuant to a joint criminal enterprise as follows (at [19] to [23]): "… participants in a joint criminal enterprise are equally responsible or liable for all the acts in the course of carrying out the enterprise, by whomsoever they are committed, yet a particular participant's level of culpability stands to be assessed by reference to his/her particular conduct. Such an approach is consonant with the distinction in law between an offender's responsibility for criminal conduct and his/her culpability. They are relevant at different stages of the criminal process. Criminal responsibility, and therefore liability to punishment, attaches to a person who voluntarily and intentionally performs those acts constituting an offence. 'The concurrence of will and physical act and the concurrence of intent and physical act suffices to attract criminal liability.': R v O'Connor [1980] HCA 17 at [20] ; 146 CLR 64 at 72, per Barwick CJ. Culpability, on the other hand, is concerned with the assessment of an offender's moral responsibility for the offence. As such, it assumes liability for the offence and focuses upon aspects of the offender's conduct and his/her subjective circumstances in order to determine the appropriate degree of punishment: R v Merritt [2004] NSWCCA 19; R v Henry & Ors [1999] NSWCCA 111 at [254] ; 46 NSWLR 346 ; 106 A Crim R 149." 1. This statement was derived from her Honour's consideration of various authorities, including R v Wright [2009] NSWCCA 3 ("Wright"), R v JW [2010] NSWCCA 49 esp at [161] to [162] per Spigelman CJ; and R v Sukkar [2011] NSWCCA 140 esp at [36] per Davies J. This approach assumes that the evidence is such as to enable a distinction to be drawn between the conduct of the various participants in the joint criminal enterprise, and that distinction supports a conclusion that one participant in a joint criminal enterprise bears less moral culpability than other participants, notwithstanding they are all criminally responsible. Thus in Wright at [27] to [29] James J stated: "As I have already noted, the Crown placed considerable reliance on the conduct of [persons other than the Respondent] in carrying out the joint criminal enterprise, such as the actions of other persons in knocking the victim to the ground and stomping on and kicking the victim's head forcefully several times. If this conduct by other persons was done in the carrying out of a joint criminal enterprise to which the respondent was a party, then the respondent was to be sentenced for that conduct under the principle that a party to a joint criminal enterprise is to be sentenced for the full range of the criminal acts done by any of the parties to the joint criminal enterprise in the carrying out of the enterprise R v Cotter & Ors [2003] NSWCCA 273 especially per Carruthers AJ at 90. However, the respondent was not necessarily to receive the same punishment as would have been appropriate if he had himself personally performed all of those acts. In each case it depends on the circumstances whether a person who is criminally liable for an act as a principal in the second degree or as an accessory should be regarded as equally culpable, less culpable or even more culpable than the person who actually performed the criminal act …" (emphasis added) 1. Where the evidence does not permit a differentiation between the role of the participants in a joint criminal enterprise then an analysis of their "moral culpability" separate to their criminal responsibility cannot be undertaken. In such a case, the Court cannot sentence the offender on the basis that he did or did not perform some particular act of the participants in the joint criminal enterprise. In terms of the approach to fact finding enunciated in Olbrich at [25] to [27], the Crown has not discharged its onus of proving beyond reasonable doubt that the particular offender performed some heinous act and thereby had a greater level of moral culpability than the other participants. Equally the offender has not demonstrated, on the balance of probabilities, that he did not perform some particular act and that he thereby had any lesser level of moral culpability than the other participants. Instead the offender is sentenced on the basis of the principle stated in the emphasised passage from Wright set out above, namely that he bears criminal responsibility for "the full range of the criminal acts done by any of the parties to the joint criminal enterprise in the carrying out of the enterprise" even though it is not known whether he personally performed those acts. 2. It follows that the resolution of this ground of appeal largely turns on what his Honour meant by "criminally culpable" in the passage extracted in [54]. Senior Counsel for the applicant contended that his Honour attributed moral culpability for all of the acts of the participants in the joint criminal enterprise, including those of the machete wielding offender, to the applicant such that he was sentenced on the basis that he personally committed all of those acts. I do not accept that construction of his Honour's reasons. In my view, the approach of the sentencing judge reflected the approach stated in the above passage from Wright. In particular his Honour's reference to the applicant "being criminally culpable for the full range of the criminal activities undertaken that night" corresponds with the emphasised passage in [58]; i.e. it is a reference to criminal responsibility and not moral culpability. His Honour did not sentence the applicant on the basis that he was morally culpable for every act of the three assailants in each invasion in the sense discussed in the above authorities. Instead his Honour sentenced him on the only available basis, namely that he was criminally responsible for those acts. 3. In light of this conclusion it is unnecessary to consider the Crown's alternative submission to the effect that, as two of the three assailants to the first home invasion were armed and as all of them were largely present while the appalling threats to the victim were made by the machete wielding offender, it was irrelevant to any assessment of moral culpability to determine which of the offenders was the applicant. His Honour's reasoning turned on the absence of any evidence enabling the Court to be satisfied which offender was the applicant and that was an anterior stage of reasoning to a determination of whether it mattered which offender he was. That said, the Crown's alternative submission had considerable force. 4. I would reject ground 1 of the application. Ground 2: The Risk of Institutionalisation 1. Ground 2 of the appeal contends that the sentencing judge failed to consider the risk of the applicant becoming "institutionalised". 2. From September 2006 the applicant was detained in a juvenile facility. He turned eighteen years of age on 27 November 2006. He was released on parole on 29 March 2007. The applicant was arrested on 23 September 2007 for the offences arising out of the home invasion noted in [41]. As stated he was released again on 21 December 2011. He was arrested for breaching his parole on 29 March 2012. He has been in custody since that time. His earliest date for release in respect of the aggregate sentence the subject of this appeal is 14 March 2024. By that time he will be over 35 years of age and he will have spent approximately sixteen and a half years out of the previous seventeen and a half years in custody. 3. On behalf of the applicant it was submitted to the sentencing judge that the applicant was at "risk of institutionalisation" and this justified a finding of special circumstances for the purposes of s 44(2) of the Sentencing Act. In particular it was submitted that "the rehabilitation of young, long-term offenders is difficult where there is not lengthy, post-release supervision, and the offender when released will have spent the majority of his young adult life in gaol". 4. The applicant's written submissions in this Court contend that the sentencing judge made no reference to institutionalisation in the sentencing judgment and that this was "an issue that called for special consideration" bearing in mind the applicant's youth, the formative years he had spent in custody, and the period of time he was likely to spend in custody". 5. The sentencing judge addressed the issue of special circumstances as follows: "I am unable to form a positive view of this offender's prospects of rehabilitation. In fact, and with some considerable regret, I think those prospects are poor and notwithstanding his age I certainly do not think they would be enhanced by a longer period on parole, as was submitted by Counsel for the offender. Rather, considerations of general and specific deterrence and the protection of the community in my view mean that a finding of special circumstances should not be made." 1. There is no doubt that the risk of an offender becoming "institutionalised", that is becoming so conditioned to an institutional environment that their release into society leads to a heightened risk of their reoffending, is a matter that is capable of warranting a finding of "special circumstances" for the purposes of s 44(2) of the Sentencing Act (see Jackson v R [2010] NSWCCA 162 at [24]). If such a finding is made then it can justify a reduction in the non-parole period and an increase in the additional term to facilitate the offender's supervision on parole. However the mere identification of an offender as being institutionalised or at risk of institutionalisation does not compel a sentencing Court to find special circumstances and reduce the non-parole period. The overall purpose of the exercise is to facilitate the offender's rehabilitation. To that end "there must exist significant positive signs which show that if the offender is allowed a longer period on parole, rehabilitation is likely to be successful" (R v Tuuta [2014] NSWCCA 40 at [57]; see also R v Carter [2003] NSWCCA 243 at [20]). 2. It follows that, even if an offender is either institutionalised or at risk of institutionalisation, it is open to a sentencing judge to nevertheless decline to make a finding of special circumstances and vary the minimum ratio if they are not sufficiently satisfied that a longer period of parole is likely to result in their rehabilitation being successful, especially if the other factors relevant to sentencing do not warrant that course (see R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59] and [65]). This is exemplified by the following passage from the judgment of Johnson J in Jinnette v R [2012] NSWCCA 217 at [102] to [108] which is of equal application to this case: "[102] In the Applicant's case, it is probably misleading to speak in terms of extending his period of potential conditional liberty on parole to reduce the risk of institutionalisation. If he is not institutionalised already, it is the regrettable but almost inevitable fact that he will be institutionalised by the time he comes to be considered for release on parole, whenever that may be. [103] The more accurate way of characterising the Applicant's position with respect to institutionalisation and 'special circumstances' is to take into account the need for a sufficient period of conditional and supervised liberty to assist the protection of the community, by maximising the prospect that the Applicant will not reoffend. This approach does not involve a somewhat unrealistic suggestion that institutionalisation can be avoided. Rather, it acknowledges the fact of institutionalisation, and seeks to reduce the adverse consequences of that state of affairs. In my view, this better reflects the practical reality of the Applicant and his case. … [106] The protection of the community remains a most important consideration in a case such as this, involving incapacitation through incarceration of the Applicant, and also the protection of the community in taking reasonable steps to provide an opportunity for intensive supervision when the Applicant comes to be considered for release on parole. [107] In this respect, it is important to observe that there will be a practical limit of three years upon parole supervision which the Applicant may receive: Clause 228 Crimes (Administration of Sentences) Regulation 2008; AM v R [2012] NSWCCA 203 at [90]; Collier v R at [37]. [108] The whole question of the setting of a balance of term should, in my view, be premised upon the basis that the Applicant should be subject to supervision, with associated counselling and treatment, for the entirety of the period upon which he is to be on parole. As this period is confined by an upper limit of three years, then that is an important factor which indicates that no longer period ought be set. The prospect of the Applicant being at liberty on parole without supervision does not, to my mind, meet the interests of the community in the circumstances of this case." 1. The approach of the sentencing judge was entirely consistent with this approach. The period of supervision of the applicant on parole contemplated by his Honour's aggregate sentence is three years and nine months. It was open to his Honour to conclude that no further parole period was warranted having regard to the countervailing considerations identified by his Honour of general deterrence, specific deterrence "and the protection of the community". While his Honour did not specifically refer to "institutionalisation", that does not matter. His Honour clearly addressed the underlying rationale that the invocation of that phrase appeals to, namely the rehabilitation of offenders who have been or will be incarcerated for long periods. No error has been established in relation to his Honour's treatment of this issue. 2. I would reject ground 2 of the application. Ground 3: Totality 1. Ground 3 of the application contends that the sentencing judge "failed to have adequate regard to the principle of totality" (see Mill v R [1988] HCA 70; 166 CLR 59; Pearce v R [1998] HCA 57; 194 CLR 610). As formulated, this ground does not raise a basis for intervention of the kind referred to in House v R [1936] HCA 40; 55 CLR 499 at 504-505, in that it does not identify any wrong principle upon which his Honour acted. In any event, this ground has no substance. 2. Notwithstanding that ultimately only one sentence is imposed, it is clear that the principles concerning cumulation, concurrency and totality are still applicable to the sentencing exercise involved in the imposition of an aggregate sentence for more than one offence. In that regard the "potentials for accumulation" of the various notional sentences can be examined to determine whether the "aggregate sentence represents a sound exercise of sentencing discretion" (R v Brown [2012] NSWCCA 199 at [35] per Grove AJ), although the absence of any requirement to specify beginning and end dates for each notional sentence may make it more difficult to demonstrate a relevant error in applying the totality principle (Martin v R [2014] NSWCCA 124 at [37]). In this matter the sentencing judge specifically referred to the totality principle and outlined how the notional sentences for the individual offences related to the aggregate sentence so that its manner of application is clearly apparent. 3. The written submissions in support of this ground of the application note that submissions were made to the sentencing judge in relation to principles concerning, inter alia, concurrency and accumulation but complain that his Honour only addressed the issue by "directing that each of the individual sentences contained within the two series of offences be served concurrently with each other and by backdating the aggregate sentence" to 15 December 2012 so that it was partially concurrent with the balance of his parole period for the home invasion offences committed in 2007. It was submitted that these were "very minor adjustments". 4. These contentions accept that his Honour applied principles concerning concurrency, accumulation and totality but overlook the most significant aspect of their application, namely the overlap of four and a half years between the (fully concurrent) indicative sentences for the offences arising out the first home invasion and the (fully concurrent) indicative sentences for the offences arising out of the second home invasion. When that is considered with the backdating of the aggregate sentence to 15 December 2012 and the concurrent treatment of the notional sentences for the offences arising out of each home invasion then the contention that his Honour failed to have regard, or even failed to have adequate regard, to the totality principles falls away. 5. I would reject ground 3 of the application. Ground 4: Manifestly Excessive 1. At the hearing of this application the applicant was granted leave to rely on an additional ground, namely that the "aggregate sentence imposed was manifestly excessive". 2. As expressed this ground correctly recognises that it is the aggregate sentence that must answer the description of being manifestly excessive ("unreasonable or plainly unjust": Markarian v R [2005] HCA 25; 228 CLR 357 at [25]). Merely because an indicative sentence for one of the offences might answer that description would not necessarily warrant that conclusion in relation to the aggregate sentence as a whole; the materiality of any error in the indicative sentence to the overall aggregate sentence still needs to be demonstrated (PD v R [2012] NSWCCA 242 at [44]; SHR v R [2014] NSWCCA 94 at [40]). 3. The brief written submissions in support of this ground correctly focused on the indicative sentences for the first two offences in the table in [9] and the first offence in the table in [10] as those sentences are the major contributors to the total aggregate sentence. In oral submissions Senior Counsel for the applicant focused on the notional sentence of ten years and six months for the second offence in the table in [8], ie armed robbery. He submitted the sentencing judge determined that the appropriate sentence for that offence was fourteen years prior to taking into account the 25% discount for the applicant's early plea of guilty. He compared that with a maximum sentence for the offence of twenty years imprisonment and contended that was suggestive of the imposition of an excessive sentence. 4. If the armed robbery committed during the first home invasion did not fall into the worst category of offences of this type it did not fall far short. The victim was vulnerable. She was terrorised over a sustained period. She was threatened with rape and beheading by a machete in her own home while her belongings and savings were plundered. Irrespective of the precise role played by the applicant, the criminality involved was very high. The applicant was on parole when the offences were committed. Notwithstanding his youth, his subjective case was weak. He had an appalling criminal record, he lacked remorse and his prospects of rehabilitation are very poor. While the notional sentence for the armed robbery committed during the first home invasion was substantial, I am not persuaded that it was manifestly excessive. 5. Similarly the first offence listed in the table in [8], ie the offence of aggravated break and enter with intention to steal committed during the first home invasion, was an extremely serious offence. Having regard to their knowledge that the victim had two safes, it can be inferred that the applicant and his co-offenders planned the offence in some detail. They knew the victim was vulnerable and they planned to break into her home late at night. 6. In relation to the second home invasion, prior to taking into account the discount attributable to the applicant's plea of guilty, the indicative sentence for the offence of aggravated break and enter and commit larceny was ten years imprisonment. Again the offence was clearly planned and involved a late night intrusion into the victims' home in circumstances that the applicant knew would be likely to terrify the victims. Taking into account the aggravating factors noted in [46] and the applicant's subjective case which I have already noted, I am not persuaded that the indicative sentence for that offence was manifestly excessive. 7. In light of these conclusions and the approach taken by his Honour to the cumulation and concurrency of the indicative sentences, I am not persuaded that the aggregate sentence imposed on the applicant was manifestly excessive. 8. I would reject ground 4 of the application. 9. Accordingly, the orders I propose are: 1. Leave to appeal be granted; and 2. The appeal be dismissed. ********* 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: 29 May 2015