Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Abdulrahman v R [2016] NSWCCA 192 Hearing dates: 11 July 2016 Date of orders: 29 August 2016 Decision date: 29 August 2016 Before: Bathurst CJ at [1]; Hoeben CJ at CL at [6]; Price J at [7] Decision: (1) Leave to appeal granted. (2) Appeal dismissed. Catchwords: CRIMINAL LAW – sentence appeal – aggravated break, enter and steal – whether error in not granting adjournment – whether error in assessment of objective seriousness – whether error in finding Form 1 offence added to the criminality of the principal offence – whether prior record made principal offence worse – whether error in referring to retribution – applicant aged 20 years at time of offence – whether applicant's youth properly taken into account – re-sentence – whether lesser sentence should be passed – whether leave to appeal should be refused or granted – whether it is necessary to indicate the sentence which would have been imposed if held that no lesser sentence warranted in law Legislation Cited: Crimes Act 1900 (NSW), ss 112, 113 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 9, 12 Cases Cited: Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 Kentwell v R (2014) 252 CLR 601; [2014] HCA 37 Mapp v R [2010] NSWCCA 269; (2010) 206 A Crim R 497 MLP v R [2014] NSWCCA 183 Muldrock v R (2011) 244 CLR 120; [2011] HCA 39 Neal v R (1982) 149 CLR 305 Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 R v Dodd (1991) 57 A Crim R 349 R v Gordon (1994) 71 A Crim R 459 R v Maher [2004] NSWCCA 177 R v Mastronardi [2000] NSWCCA 12; (2000) 111 A Crim R 306 R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 R v Ponfield (1999) 48 NSWLR 327; [1999] NSWCCA 435 Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14 Category: Principal judgment Parties: Badar Abdulrahman (Applicant) Regina (Crown) Representation: Counsel: M C Ramage QC (Applicant) P Ingram SC (Crown) Solicitors: Jeffreys Lawyers (Applicant) C. Hyland – Solicitor for Public Prosecutions (Crown) File Number(s): 2014/156188 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 07 July 2015 Before: Hosking SC ADCJ File Number(s): 2014/156188; 2014/103393 Judgment 1. 1 BATHURST CJ: I have had the advantage of reading the judgment of Price J in draft. Subject to what I have written below, I agree with his Honour's reasons. However, I am of the opinion that the appropriate order of the Court is that leave to appeal be refused. 2. Although, like his Honour, I am of the view that in the circumstances of the present case no lesser sentence than that imposed by the sentencing judge is warranted in law, I do not believe it is necessary for me to indicate the sentence which I would have imposed. 3. It seems to me that what is required by Kentwell v The Queen [2014] HCA 37; 252 CLR 601 is that once error on the part of the sentencing judge has been established, it is necessary to re-exercise the sentencing discretion to determine whether a lesser sentence is warranted in law. The Court, however, made it clear it was not necessary to resentence the applicant if it determined that no lesser sentence was warranted, although if it determined to resentence in those circumstances, it should inform the applicant so that he or she had an opportunity to withdraw the appeal: see also Neal v The Queen [1982] HCA 55; 149 CLR 305 at 308; Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 at 290. 4. In these circumstances, if on such a re-exercise the Court is of the view that no lesser sentence is warranted but determines not to resentence, then in my view it is sufficient to simply state this rather than indicating the hypothetical sentence which would have been imposed as a result of the re-exercise of the sentencing discretion. 5. In those circumstances, leave to appeal should be refused. 6. HOEBEN CJ AT CL: I agree with Price J. 7. PRICE J: The applicant, Badar Abdulrahman, seeks leave to appeal against the sentence imposed upon him by Hosking SC ADCJ on 7 July 2015. He had pleaded guilty to a count of aggravated break and enter of a dwelling house at Moorebank on 2 April 2014 and then in the dwelling house, committed a serious indictable offence, namely larceny in circumstances of aggravation, being in company contrary to s112(2) Crimes Act 1900 (NSW). The maximum penalty in relation to this offence is 20 years imprisonment with a standard non-parole period of 5 years. 8. The applicant asked the judge to take into account on sentence a matter on a Form 1 being an offence of aggravated break and enter a dwelling house at Campsie on 6 April 2014 with intent to commit a serious indictable offence, namely larceny in company, contrary to s113(2) Crimes Act. The maximum penalty in relation to this offence is 14 years imprisonment. 9. Taking into account the offence on the Form 1, the judge sentenced the applicant to imprisonment for 3 years 6 months consisting of a non-parole period of 2 years commencing on 5 July 2015 and expiring on 4 July 2017, with a balance of term of 18 months commencing on 5 July 2017 and expiring on 4 January 2019. 10. The applicant pleaded guilty in the Local Court and adhered to his plea in the District Court. The judge reduced the sentence by 25% for the utilitarian value of the plea. 11. The Notice of Appeal identifies seven grounds, namely: 1. the sentencing process miscarried; 2. the sentencing judge erred in his finding as to the objective circumstances of the offence; 3. the sentencing judge erred in sentencing on the basis that the Form 1 offence added significantly to the inherent criminality; 4. the sentencing judge erred in sentencing on the basis that the offence was further aggravated; 5. the sentencing judge erred in sentencing on the basis of retribution; 6. the sentencing judge erred in failing to correctly apply principles appropriate for sentencing of youthful offenders; and 7. the sentence imposed was manifestly excessive. Facts 1. The facts of the principal offence and the Form 1 offence were not in dispute and the agreed facts were recounted by the judge in his remarks on sentence (ROS 1-3): "1. At approximately 4am on Wednesday 2 April 2014 the victim… left her home at an address in Moorebank to go on a four week holiday, having carefully locked and secured it before leaving. This property is a single-storey three bedroom brick veneer home. 2. At approximately 12.20pm on the same day, 2 April 2014, the offender, Badar Abdulrahman, and two unknown male offenders, forced open the side gate of the premises. They then forced open the locked rear-glass sliding door to gain entry to the premises. 3. The offender and two other unknown males then ransacked two of the bedrooms, leaving items from the drawers and cupboards thrown all over the floor. 4. The offender and the other two unknown males stole the following property from the premises; [sic] $200 in cash, two Apple iPhone 4 mobile phones (valued at approximately $400) and a jewellery box containing approximately $31,300 worth of the following jewellery, which had the [sic] significant sentimental value to the victim, [sic] a gold bracelet, a gold charm bracelet, a gold necklace, a gold chain with a gold religious pendant, a gold christening charm chain, four traditional Irish wedding rings belonging to the victim's parents, the victim's mother's engagement ring, [and] the victim's mother's eternity ring. 5. The offence was recorded by a motion-activated camera that was installed in the dining room of the premises. 6. The offender and two other unknown males saw the camera, unplugged it from the wall, and smashed it on the ground. They also unplugged the victim's Wi-Fi device and put it in the sink in the kitchen before leaving the property through the front door with the items listed above. 7. The victim's ex-partner attended the property later that day and the police were notified. An SD memory card was recovered from the smashed camera on which footage of the incident was recorded. 8. The offender attended Campsie Police Station on 23 May 2014 and was arrested, cautioned, and charged in relation to this offence. He declined to participate in an electronically recorded interview. Form 1 offence: 9. The victim… resides at an address in Campsie with his wife, two children, his nephew and a friend. The property is a single story [sic] brick home surrounded by a two-meter [sic] high colorbond fence. 10. At approximately 3pm on Sunday 6 April 2014, the victim left his house locking the front and back doors as well as the windows and securing the gate at the front of the house with a padlock. 11. At approximately 3.30pm on that same day, 6 April 2014, the offender Badar Abdulrahman and another unknown male offender jumped over the fence at the front of the victim's property. 12. They went to the front door of the property before walking to the rear of the premises where to gain access to the premises they damaged the rear wooden door by breaking off the top half of the door and damaging the timber doorframe. 13. A civilian witness, who had seen the offender and the other unknown male jumping the fence of the property, called police who attended and saw the offender and the other unknown male jumping the side fence of the property and fleeing down a canal that runs along the side of the property. 14. Having run from the location the offender entered the garden of the property at 8 Page Street, Canterbury, and concealed himself in a skip waste bin that was located on the property. The offender also removed his red t-shirt and concealed that amongst the material in the bin. 15. Police located the accused hiding in the skip bin at 8 Page Street, Canterbury, where he was arrested, cautioned, and conveyed to Campsie Police Station. He participated in an electronically recorded interview in which he denied the offence." Subjective circumstances 1. The applicant did not give evidence during the proceedings on sentence but two character testimonials were tendered as was a Community Corrections pre-sentence report. It is from this material that the applicant's background is derived. 2. He was born on 8 March 1994 and was 20 years old when the offence was committed. The applicant told the author of the pre-sentence report that he resided with his father and older brother in Sydney with whom he had a supportive and stable relationship. He claimed to be married; however, his wife resided separately from him and there were no dependent children. 3. The applicant was employed on a full-time basis. A character testimonial from the Managing Director of Professor Sparkz Electrics stated that the applicant had been employed by that company since October 2014. He had entered the company as an electrical trade assistant and was assigned to an advanced technology role with the Building automation team based, the Managing Director wrote, "on his high level of intelligence and I.T knowledge" (Ex 1). The applicant went on to manage the team and excelled within the company in a short time. He was described as a hard worker and always punctual, taking personal responsibility for his work and always getting the job done. 4. As to a history of abusing illicit drugs which the applicant disclosed to the author of the pre-sentence report, the applicant denied his use was problematic. Whilst the applicant stated he was using illicit drugs, namely cocaine two to three times per week around the time of the offences, he said this was not a contributing factor to his offending behaviour. He claimed to have been abstinent from all illicit drugs since his arrest for the present offences. 5. The applicant told the author of the report that he committed the offences as a means to obtain money and attributed the offending behaviour to poor decision-making influenced by negative associates. 6. In a character testimonial, a Youth worker employed by Youth Off The Streets stated that he had known the applicant for almost three years as they had worked together as part of the Outreach program. The applicant was described as being reliable, hard-working and honest. 7. In oral submissions, the applicant's legal representative told the judge that he had been instructed to say (Tcpt, p 6(35)): "… that [the applicant's] poor decision making influenced by his negative associates in order to obtain quick money being the motivational factor yet the money at the end of the day was also used to support the drug habit." Prior criminal history 1. The applicant's prior criminal history reveals that at the Parramatta Children's Court on 21 June 2011, he had been placed on probation for 15 months with supervision for an offence of robbery in company. For a second offence of robbery in company, he was ordered to perform 100 hours of community service work. He was called up for this offence and placed on 9 months' probation on 2 October 2012. 2. On 11 May 2010, at the Parramatta Children's Court, he was placed on 12 months' probation with supervision for an offence of aggravated break, enter and commit serious indictable offence in company. He was called up for this offence and on 6 July 2011 was placed on probation with supervision for 12 months. 3. On 26 October 2010, for an offence of affray, he was placed on a 6 month control order at the Parramatta Children's Court which was suspended on conditions. When called up for this offence on 6 July 2011, he was placed on a 6 month control order commencing 21 March 2011. 4. Another 3 month control order was imposed at the Parramatta Children's Court on 26 August 2011 for entering a building with intent to commit an indictable offence. 5. All of these offences were committed whilst the applicant was a juvenile. The only relevant offence that appears on his criminal history as an adult was that of goods in custody for which he was convicted and fined. Sentencing remarks 1. Following sentencing submissions from the applicant's legal representative and the Crown, the judge adjourned until 2:00pm. After the adjournment the applicant was sentenced. 2. During his remarks on sentence, the judge said that the matter on the back of the Form 1 was "another matter of aggravated break and enter with intent in company contrary to s 113(2) of the Crimes Act… which adds in view significantly to the inherent criminality of the s 112(2) charge." (ROS 1.) [Emphasis added.] 3. After reading the agreed facts, his Honour stated (ROS 3): "In my view the Form 1 matter, as I indicated, adds significantly to the criminality of the principal offence that I am to sentence the offender for." [Emphasis added.] 1. When referring to the applicant's prior criminal history, the judge remarked that at the time of the commission of the offence, the offender already had a significant criminal record, mainly as a juvenile. After detailing the applicant's prior offending, the judge said (ROS 4): "That record in my view, as the Crown has submitted, disentitles the offender to any leniency before this Court today. It also demonstrates that as a recidivist, as the Crown accurately describes the offender, that [sic] important component of his sentence here is the issue of personal deterrence." 1. The judge said that objectively viewed, this was a very serious offence and was inherently serious from the very fact that it carried a maximum penalty of 20 years imprisonment with a 5 year standard non-parole period. His Honour acknowledged that under s112(2) Crimes Act there were various circumstances of aggravation of which being in company was not the worst. His Honour accepted as correct the Crown's submissions on the objective gravity of the offence, which were: "The offence is objectively serious in that it involved considerable ransacking of the victim's premises. The items stolen have not been recovered and were of considerable sentimental value. The money value was also significant and is valued as being in excess of $30,000. The offenders have gone to some length to avoid being detected by disabling the security camera and also the Wi-Fi." 1. His Honour referred to the guideline judgment in R v Ponfield (1999) 48 NSWLR 327; [1999] NSWCCA 435 ("Ponfield"). He said (ROS 6): "In terms of factors identified in Ponfield as making a break, enter and steal type offence worse there are in the present case these three factors: Firstly, that this offender has a prior record, particularly for similar offences; Next, that this offence was accompanied by what I regard as gratuitous vandalism; and Thirdly, that the value of the stolen property to the victim was not only substantial in money terms but also in terms of sentimental items which have been lost to the victim for ever [sic] and I have little doubt their loss caused the victim significant distress." [Emphasis added.] 1. The judge considered that general deterrence was a very important factor as was specific deterrence because of the applicant's significant criminal record. His Honour remarked (ROS 6): "So too is the factor of retribution. The victim is at least entitled to feel, at the end of all this, that the Court has imposed an appropriate punishment on the offender for violating the integrity of her home and her property." [Emphasis added.] 1. Having regard to the applicant's extensive criminal history, the judge was very guarded about his prospects of rehabilitation and expressed the view that unless the applicant had a major change in attitude, his past behaviour showed that upon release he was likely to reoffend. The judge did not find that the applicant was remorseful because there was no real evidence of remorse. As to rehabilitation and the likelihood of reoffending, the judge said that he simply did not know what was likely to happen in the applicant's case. 2. His Honour said (ROS 8): "The offender is now 21. At the time of the offence he was just 20. In my view that is a major factor in his sentencing in the offender's favour." [Emphasis added.] 1. When dealing with the submission that the applicant be referred for an intensive corrections order assessment, the judge said that was "completely impossible" (ROS 8). His Honour accepted the Crown's submission that the only appropriate sentence was full-time custody. His Honour said (ROS 8-9): "The plain fact is that people cannot thumb their noses at the criminal law for years and then, when charged with a serious offence like this, come before the Court and expect to receive a lenient penalty such as an intensive corrections order." 1. The judge expressed the view that without a plea of guilty, the overall sentence, even in this case, with a man who was 20 years old at the time of the offence, would have been an overall sentence of 4 years 8 months which when discounted by 25% translated to an overall sentence of 3 years 6 months. 2. Special circumstances were found, being the applicant's need for the assistance of the Community Corrections Service upon release to reintegrate himself into the community and his first time in custody. The non-parole period was reduced to 2 years. 3. His Honour referred to the standard non-parole period of 5 years and said (ROS 9): "… I do not consider that a standard non-parole period should be imposed on a young man of 20 because experience in sentencing shows that a five year sentence is completely crushing and in my view it is not appropriate to impose such a crushing sentence even on an offender with the background of [the applicant]." Ground 1: The sentencing process miscarried 1. At the commencement of the proceedings on sentence, the applicant sought an adjournment for the purpose of obtaining a psychological report. The application was refused. Submissions 1. The applicant submitted that the judge should have adjourned the sentence hearing and, apart from the fact that the report had not yet been obtained, there was no evidence that the applicant was not seeing a psychologist nor did not genuinely wish to obtain such a report. It was submitted that although the matter had been listed once before, no prejudice would have been caused to the Crown by an adjournment. Such a report was likely to obtain information supplementing the pre-sentence report, particularly in relation to the applicant's drug use, remorse and likelihood of reoffending. 2. The Crown argued that the applicant had the opportunity to obtain a psychologist report during the adjournment and that the onus was on the applicant to persuade the judge that an adjournment was appropriate in the circumstances. The applicant did not give or call evidence on the application for the adjournment as to why he had been unable to obtain the relevant report and, in any event, any such report would have been of limited assistance given the applicant's admitted financial motivation for the offences. Consideration 1. This was the second time that the proceedings had been listed for sentence. On the first occasion (30 April 2015), the applicant sought an adjournment for the purpose of cross-examining the author of the pre-sentence report and to put further material before the court. The application was granted and the proceedings were re-listed for sentence on 7 July 2015. 2. On that day, the judge was informed that the author of the pre-sentence report was no longer required for cross-examination. The applicant's legal representative applied for a further adjournment so that a psychologist's report could be obtained. The Crown opposed the adjournment but accepted that a psychological report might assist the court in some way. However, the material that was placed before the judge in support of the application was confined to the applicant's legal representative informing the judge that the applicant had seen a psychologist about one and a half months ago. 3. The applicant was not called to give evidence nor was an affidavit tendered in support of the application. The applicant had done little, if anything at all, to obtain the report and his solicitors had not taken the preliminary step of writing to the psychologist. 4. It is hardly surprising that the judge was not satisfied that the applicant had made a genuine attempt to obtain a psychologist's report and refused the application. Courts are entitled to expect that matters for sentence will proceed on the date listed for hearing, particularly when an adjournment application has previously been granted. Parties cannot expect that applications to adjourn will be readily granted without evidence supporting a conclusion that it is in the interests of justice to do so. 5. In any event, I am not persuaded that a psychologist's report would have assisted the applicant on sentence. He committed the offences as a means to obtain money and attributed his offending behaviour to poor decision-making influenced by negative associates. Furthermore, it is difficult to accept the applicant's argument when there is no reliance upon a psychological report in the event of re-sentence by this Court. 6. The judge did not err in the exercise of his discretion to refuse the application for an adjournment. It follows that Ground 1 of the appeal has not been made out. Ground 2: The sentencing judge erred in his finding as to the objective circumstances of the offence Ground 3: The sentencing judge erred in sentencing on the basis that the Form 1 offence added significantly to the inherent criminality Ground 4: The sentencing judge erred in sentencing on the basis that the offence was further aggravated 1. It is convenient to deal with these Grounds together as they relate to the assessment of the objective seriousness of the offence. Submissions 1. The applicant submitted that the objective circumstances and criminality of the offence did not warrant the judge's finding that, "… this was a very serious offence indeed." (ROS 4.) The applicant contended that his offending was a standard break, enter and steal offence and that the judge had exaggerated its objective seriousness. The applicant argued that the judge erred in finding that the offence was aggravated by the offender having a prior criminal record as: 1. the judge's reliance on Ponfield was said to be of limited utility as that case has largely been overtaken by the Crimes (Sentencing Procedure) Act 1999 (NSW) ("Crimes (Sentencing Procedure) Act"), and Mapp v R [2010] NSWCCA 269; (2010) 206 A Crim R 497 was cited. 2. the principle of proportionality required that the upper boundary of a sentence be set by the objective circumstances of the offence, and that these circumstances do not include prior convictions: R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 ("McNaughton"). 3. the applicant's prior criminal record did not require or justify his being dealt with on the basis of Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14 ("Veen (No 2)"). 1. Another submission was that the judge was wrong to describe the applicant's conduct as "gratuitous vandalism" and to regard this as an aggravating factor. Although the applicant accepted that the offence on the Form 1 was a matter to be taken into account, he argued that it should not have been regarded as a matter which 'significantly' increased the criminality of the principal offence. 2. The Crown submitted that there was no error in the judge's finding as to the objective seriousness of the offence. The offence was inherently serious having regard to the maximum penalty and standard-non parole period and the judge was obliged to assess the objective seriousness of the offence by purely objective criteria. His Honour's assessment of the objective gravity was open, as was the finding of "gratuitous vandalism", given what he and the other two co-offenders did in the home and the stealing of property of considerable monetary and sentimental value. 3. The Crown argued that the judge did not treat the applicant's criminal record as elevating the objective seriousness of the offence. Rather, his Honour correctly reasoned that the applicant's record disentitled the offender to any leniency and that there was a need for personal deterrence. The Crown acknowledged that the offence on the Form 1 did not increase the criminality of the principal offence. Consideration 1. The judge did not err in considering that the objective seriousness of the offence of aggravated break and enter contrary to s112(2) Crimes Act was reflected by the maximum penalty of 20 years imprisonment and 5 year standard non-parole period. Offences contrary to s112 Crimes Act have long been regarded as very serious: Ponfield per Grove J at [45]. It was open to his Honour to find that the applicant's offending was objectively serious as he and two unknown males ransacked two bedrooms, leaving items from the drawers and cupboards over the floor, had smashed the motion-activated camera on the ground and disabled the Wi-Fi device. Items stolen from the property included two Apple iPhone 4 mobile devices and a jewellery box containing jewellery of significant sentimental value to the owner with an estimated worth of $31,300. None of the property has been recovered. This was more than a standard break, enter and steal offence and there is no merit in the applicant's complaint of the judge's description of his conduct being accompanied by "gratuitous vandalism." 2. In my respectful opinion, his Honour's statement in the passage quoted at [27] above, as to the significance that the Form 1 offence had, when taken into account on sentence for the principal offence, was wrong. It did not in any way add to the criminality of the principal offence, but greater weight could be given to the need for personal deterrence and retribution: Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 per Spigelman CJ at [42]. His Honour was not entitled to increase the objective seriousness of the applicant's offending on 2 April 2014 (the principal offence) because of the offence on 6 April 2014 (the Form 1 offence). The applicant's conduct in damaging the rear wooden door of the home at Campsie in order to gain access, two days after breaking into the home at Moorebank, indicated that greater weight should be given to personal deterrence. 3. Another matter that points to error in his Honour's assessment of the objective seriousness of the offence is his reference in the passage quoted at [30] above to the offender's prior criminal record, particularly for similar offences, being one of three factors identified in Ponfield that made a break, enter and steal type of offence worse. Guideline (iii) in Ponfield at [48] – "The offender has a prior record particularly for like offences" – was disapproved and not followed in McNaughton. Prior offending has no part to play when assessing the objective seriousness of the crime: McNaughton per Spigelman CJ at [23] – [24] and Grove J at [66] – [76]. His Honour was entitled to take into account the applicant's prior record as disentitling him from considerations of leniency and in giving more weight to personal deterrence, but not as enhancing the seriousness of the principal offence. 4. As error has been demonstrated, Grounds 2, 3 and 4 of the appeal have been established. Ground 5: The sentencing judge erred in sentencing on the basis of retribution 1. The applicant was critical of the judge's reference in the passage quoted at [31] above to retribution being an important factor in the sentence imposed upon him. It was submitted that retribution was not part of the purposes of sentencing as there was nothing in s3A Crimes (Sentencing Procedure) Act which would support sentencing on such a basis. 2. Another submission was that the judge was incorrect to rely on R v Dodd (1991) 57 A Crim R 349 as authority for the importance of retribution, as there is no mention in this case of retribution. However, as the Crown pointed out, this case was incorrectly cited during the sentence proceedings, and the correct citation of this case does in fact refer to the decision in Veen (No 2). 3. There is no merit in this Ground of Appeal. Although there is no mention in s3A Crimes (Sentencing Procedure) Act of retribution being a purpose for which a court may impose a sentence on an offender, retribution has long been held to be an important aspect of sentencing: R v Gordon (1994) 71 A Crim R 459 per Hunt CJ at CL at 468. In Veen (No 2), the High Court (Mason CJ, Brennan, Dawson and Toohey JJ) said at 476: "The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions." 1. In Muldrock v R (2011) 244 CLR 120; [2011] HCA 39, the High Court (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) observed at 129: "It should also be noted that the introduction of standard non-parole periods was accompanied by the incorporation of a statutory statement of the purposes of sentencing. The purposes there stated are the familiar, overlapping and, at times, conflicting, purposes of criminal punishment under the common law. There is no attempt to rank them in order of priority and nothing in the Sentencing Act to indicate that the court is to depart from the principles explained in Veen v The Queen [No 2] in applying them." [Emphasis added.] [Footnotes omitted.] 1. In the present case, the judge was entitled to consider that retribution was an important factor, particularly having regard to the offence on the Form 1. Ground 5 of the appeal has not been made out. Ground 6: The sentencing judge erred in failing to correctly apply principles appropriate for sentencing of youthful offenders 1. The applicant complained that the sentence should have been mitigated by the application of sentencing principles appropriate to young offenders, principally rehabilitation, as he was just less than one month past his 20th birthday at the time of the commission of the offences. It was contended that the judge placed unduly strong emphasis on both specific and general deterrence and in doing so failed to give emphasis to his ongoing rehabilitation or whether that could best be achieved by a sentence other than full-time custody. 2. Another complaint was that although some allowance was made for the applicant's youth in finding special circumstances, the judge made no such allowance in setting the overall sentence. 3. There is no merit in this Ground of Appeal. The judge gave careful consideration to the applicant's relative youth at the time of his offending. His Honour expressly stated that it was a major factor in the applicant's favour and a reason for not imposing the 5 year standard non-parole period because it would be "completely crushing". 4. In finding special circumstances, it is plain that the judge had regard to the applicant's age. As a result, the non-parole period was reduced to 57.1% of the head sentence. Ground 6 of the appeal has not been made out. 5. As specific error has been established, the applicant is to be sentenced afresh in the exercise of this Court's independent discretion: Kentwell v R (2014) 252 CLR 601; [2014] HCA 37 at [42]. Accordingly, it is unnecessary to consider Ground 7. Further evidence 1. Two affidavits have been tendered on re-sentence. The affidavit of the applicant's solicitor annexes certificates of completion received by the applicant on 10 June 2016 in relation to the Gurnang Life Challenge 'Equips Foundation Program', including courses relating to positive lifestyle, job preparation skills and money management. Also annexed is a letter from the applicant's wife who has regularly been visiting the applicant in custody. She recounts being impressed by the change in her husband, who has learnt the hard way and has successfully completed courses. She expresses her belief that the applicant will stay out of trouble and do everything it takes to rehabilitate himself. 2. Mrs Abdulrahman describes the applicant as being influenced a lot by people who would come to his house, especially as he was the youngest in the group. She states that there is no way she would let him near those people again, but she does not have to worry about that because it is the applicant's decision as well. She says that upon release, the applicant could live with her. A family friend, who owns a tiling business, has agreed to employ the applicant full-time when he gets out. Mrs Abdulrahman asks that the applicant be given another chance. 3. An affidavit tendered by the Crown annexes the applicant's updated custodial history which shows two custodial infringements, including having in his possession a television and fan belonging to another inmate. Re-sentence? 1. The maximum penalty for an offence contrary to s112(2) Crimes Act is 20 years imprisonment with a standard non-parole period of 5 years. These two legislative guideposts are to be borne in mind when I come to consider the appropriate penalty, having regard to the objective circumstances of the offence and the subjective features of the applicant. 2. Two factors that enhance the objective seriousness of the offence are the monetary and sentimental value of the stolen jewellery (none of which has been recovered) and the damage to the property that accompanied the offence: Ponfield at [48]. Objectively viewed, this is a serious offence committed to gain money. 3. Greater weight is to be given to personal deterrence and retribution because of the Form 1 offence which indicates that the applicant's criminal behaviour continued two days after the principal offence. 4. The applicant was 20 years old at the time of his offending. His criminal history reveals serious offences, including robbery in company and aggravated break and enter. His criminal antecedents do not entitle him to leniency but they are not such that they are a matter of aggravation. Although these offences were committed whilst he was a juvenile, they are of a like nature to the present offences and I give more weight to personal deterrence and protection of the community. 5. As the applicant's plea of guilty was entered in the Local Court, he is entitled to a 25% discount for the utilitarian value of the plea. 6. The judge did not find that the applicant was remorseful. This finding has not been disputed on appeal. On all of the material before this Court, I am unable to find evidence of remorse. I am not satisfied on the balance of probabilities that he is remorseful. His sentence is not to be increased for that; however, no allowance can be made for remorse. 7. I am unable to make a positive finding on the balance of probabilities that the applicant is unlikely to re-offend or has good prospects of rehabilitation. His prior criminal history, the call ups for offences that are detailed in that criminal history and the custodial infringement involving another inmate's property do not encourage the taking of an optimistic view. On the other hand, the courses completed, his wife's support, his employment with Professor Sparkz Electrics at the time of sentence and the prospect of employment upon release suggest that he has the potential to be rehabilitated. Much will depend on his ability to avoid relapsing to drug misuse upon release from custody. 8. The applicant was a young adult when he committed the offences and is now 22 years old. That does not mean that the principles relevant to sentencing a young offender are irrelevant, but I am unable to conclude that the applicant's behaviour had much to do with immaturity, as it was motivated by the desire to obtain money which was subsequently used to purchase illicit drugs. As has been said, youth is not a cloak of convenience behind which those who commit serious crimes can shelter from the consequences of their conduct: R v Mastronardi [2000] NSWCCA 12; (2000) 111 A Crim R 306 per Sully J at [20]. 9. I take into account that the applicant is a young adult in giving weight to his need for rehabilitation. 10. I am mindful that the need for general deterrence has been emphasised for break and enter offences, so as "to send a very clear message to others who may be minded to conduct themselves in a similar fashion that if they come before the courts they will be punished severely": R v Maher [2004] NSWCCA 177 at [44]. 11. A submission was made to the judge by the applicant's legal representative that he should not be sentenced to full-time imprisonment but an intensive correction order should be made. In this Court, it was submitted that the applicant should have been dealt with by way of a good behaviour bond under s9 Crimes (Sentencing Procedure) Act. Another alternative was said to be a suspended sentence under s12 Crimes (Sentencing Procedure) Act. 12. I agree with the applicant's submission that as he has been assessed as suitable for a community service order, it is likely he would be assessed as suitable for an intensive correction order. 13. In written submissions, the applicant referred to Judicial Commission sentencing statistics (JIRS) for a s112(2) Crimes Act offence that were said to show for 2,112 offenders dealt with in the higher courts from July 2008 until December 2015, some 149 offenders received s9 bonds. However, the JIRS statistics handed up to this Court revealed for 2,163 offenders dealt with in the higher courts from October 2008 to September 2015, 151 offenders received s9 bonds, whereas 1,384 offenders received full-time prison sentences. Another table disclosed that for the same period when 93 offenders pleaded guilty and a Form 1 offence was taken into account with priors of the same type, 5 offenders received s9 bonds whereas 57 were sentenced to full-time imprisonment. 30 offenders received either suspended sentences or intensive correction orders. 14. Sentencing statistics have a part to play in consistency in sentencing, but they do not disclose anything about why the sentences were passed, particularly the objective seriousness of the offending and the subjective features of the offender. Sentences imposed in other cases "do not mark the outer bounds of the permissible sentencing discretion. They stand as a yardstick against which to examine a proposed sentence": MLP v R [2014] NSWCCA 183 at [42]. 15. Making my own independent assessment, bearing in mind the legislative guideposts of the maximum sentence and the standard non-parole period, the objective circumstances of the offence and the subjective features of the applicant, there is no alternative to full-time imprisonment. 16. The undiscounted starting point of the sentence I would impose is 5 years, which is more than the undiscounted starting point of the sentence imposed by the judge of 4 years 8 months. Furthermore, a non-parole period of less than 2 years would not appropriately reflect the criminality involved in the offence. As a consequence, I conclude that no lesser sentence should have been passed. 17. The orders I propose are: 1. Leave to appeal granted. 2. Appeal 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: 04 April 2018