Robert Anthony Mark Aslett v R [2012] NSWCCA 235 (15 November 2012)

Last Updated: 23 November 2012

Court of Criminal Appeal New South Wales

Case Title:	Robert Anthony Mark Aslett v R
Medium Neutral Citation:	[2012] NSWCCA 235
Hearing Date(s):	22 October 2012
Decision Date:	15 November 2012
Jurisdiction:
Before:	McClellan CJ and CL at [1] Bellew J at [2] Button J at [47]
Decision:	1. Leave to appeal granted. 2. Appeal dismissed
Catchwords:	CRIMINAL LAW - break and enter and commit serious indictable offence in circumstances of special aggravation - appeal against sentence - whether sentencing judge erred in consideration of the standard non-parole period applicable to such offence - whether sentencing judge gave insufficient weight to aspects of the circumstances of offending
Legislation Cited:	Crimes Act 1900 Criminal Appeal Act 1912 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Aldous v R [2012] NSWCCA 153 Beldon v R [2012] NSWCCA 194 Butler v R [2012] NSWCCA 23 Markarian v R [2005] HCA 25; 228 CLR 357 Muldrock v R [2011] HCA 39; 244 CLR 120 R v Way [2004] NSWCCA 131; 60 NSWLR 168 Williams v R [2012] NSWCCA 172 Zreika v R [2012] NSWCCA 44
Texts Cited:
Category:	Principal judgment
Parties:	Robert Aslett - Applicant Crown - Respondent
Representation
- Counsel:	Mr W Hunt - Applicant Mr F Veltro - Respondent
- Solicitors:	B. Sandilands, Legal Aid NSW - Applicant S. Kavanagh, Solicitor for Public Prosecutions - Respondent
File number(s):	2010 - 00245944
Decision Under Appeal
- Court / Tribunal:
- Before:	English DCJ
- Date of Decision:	07 February 2011
- Citation:
- Court File Number(s)
Publication Restriction:	NIL

JUDGMENT

1. McCLELLAN CJ at CL: I agree with Bellew J.
   
2. BELLEW J: On 7 February 2011 in the District Court of New South Wales at Penrith the applicant pleaded guilty to an indictment alleging the following offences:
   
   • (1) on 23 July 2010 at Penrith in the State of New South Wales, he did break and enter the dwelling house of Annette Martin at 33 Illawong Avenue and did commit a serious indictable offence therein, namely intentionally damaging property in circumstances of aggravation, namely he knew persons were in the dwelling, and in circumstances of special aggravation, namely that he was armed with a dangerous weapon, namely a taser ("count 1");
     
   • (2) on 23 July 2010 at Penrith in the State of New South Wales, he did assault Annette Martin ("count 2").
     
3. Count 1 was an offence pursuant to s 112(3) of the Crimes Act, for which there was a maximum penalty of 25 years imprisonment and a standard non-parole period of 7 years imprisonment. Count 2 was an offence pursuant to s 61 of the Crimes Act and carried a maximum penalty of 2 years imprisonment.
   
4. On 7 February 2011 the following sentences were imposed:
   
   • (i) in respect of Count 1, a non-parole period of 3 years, 4 months and 14 days commencing 23 July 2010 and expiring on 6 December 2013, and a total term of 5 years 7 months and 14 days imprisonment, expiring on 7 March 2016.
     
   • (ii) in respect of Count 2, a fixed term of imprisonment of 12 months commencing 23 July 2010 and expiring 22 July 2011.
     

THE FACTS

5. A statement of agreed facts was before her Honour, and established the following.
   
6. At about 6pm on 23 July 2010, Annette Martin was at her home in Penrith. Also present were Kayla Martin (Ms Martin's daughter) and her friend Toni Sloan, each of whom was 16 years of age. Also at the premises was Ricky McNamara, the boyfriend of Ms Martin's eldest daughter.
   
7. Ms Martin, Kayla and Ms Sloan were all in the lounge room of the premises when the applicant firstly opened the fly screen door, and then the front door, neither of which were locked. Upon entering the premises the applicant discharged a taser before withdrawing a knife from the front of his pants. He then proceeded into the lounge room of the premises and said (apparently in reference to Mr McNamara):
   

"I want Ricky now".

8. Ms Martin asked the applicant to leave. He responded by holding the taser towards Ms Martin's throat and discharging it. Ms Martin managed to push away the hand in which the applicant was holding the taser, but he moved it back towards her before lowering it and raising his right hand which was holding the knife. He then held the knife towards Ms Martin's throat, that being the conduct constituted count 2. As he did so the applicant continued to ask for "Ricky". At one point he walked towards Ms Sloan (whom he knew from a previous association with Ms Sloan's brother) and said:
   

"You know who I am Toni, tell them to back off my cousin".

9. Ms Sloan replied with words to the effect:
   

"Robbie what are you doing?"

10. The applicant then punched the wall in the lounge room of the premises with sufficient force to break a hole the size of his fist in the gyprock. He then walked through the lounge room, kicking the television before punching a second hole in the gyprock wall near the front door.
    
11. Shortly after that, the applicant left the premises. As he did so, a white Holden Commodore and a gold Mitsubishi were waiting outside. The applicant entered the front passenger seat of the Holden Commodore which then drove away.
    
12. Police were called to Ms Martin's premises. Whilst they were there, the Mitsubishi vehicle drove past and Ms Martin identified it to police as a vehicle which had been outside the premises at the time of the applicant's departure. Police recorded the registration number and traced it to a nearby address which they attended a short time later. Upon their arrival, the applicant approached police and was placed under arrest. He later told police that he was aware that he would be charged, and that this was why he had approached them upon their arrival at the premises. Whilst the applicant declined to be interviewed, he admitted to being in possession of a taser at Ms Martin's premises. Police observed that the applicant's left hand exhibited an injury to the skin accompanied by dried blood on his knuckles, accompanied by swollen joints. Small spots of blood were located on the gyprock near the front door of Ms Martin's premises.
    
13. The taser and the knife which had been identified as being in the possession of the applicant at the time of his commission of the offences were not recovered.
    

The sentencing proceedings

14. At the outset of the sentence proceedings, the applicant's representative indicated that although she had requested the provision of a pre-sentence report on a previous occasion, no such report had been prepared. She informed the court that having spoken to the applicant, he had confirmed that he had not been interviewed for the purposes of the preparation of such report, following which she said:
    

"I'm instructed to proceed to sentence in any event your Honour".

15. The matter was then stood down in the list for a short period, following which the applicant's solicitor said:
    

"Mr Aslett will not be called in relation to the proceedings. As your Honour heard earlier, a pre-sentence report was ordered but it has not been produced and Mr Aslett informs me he hasn't been met (sic) with a Probation and Parole Officer. My instructions are to proceed to sentence today. Mr Aslett is seeking to have himself classified so he can enter into the system and attend programs and things of that nature".

16. As a consequence of the position taken by the applicant, no subjective material was tendered to the sentencing judge.
    
17. Having heard submissions from the parties, the sentencing judge delivered sentence on the afternoon of the same day. Having recounted the facts, her Honour described the offence of count 1 as "one of the most serious in the criminal calendar" a fact which, she said, could be inferred from the maximum penalty of 25 years imprisonment. Her Honour also made reference, at that point, to the fact that the offence attracted a standard non-parole period of 7 years imprisonment "for offences said to fall within the mid-range of objective seriousness following upon a guilty verdict after trial".
    
18. Her Honour then considered the circumstances of the applicant's offending. In doing so, she made reference to the fact that:
    
    • (i) there was no forced entry, and thus no damage occasioned to the fly screen or the front door;
      
    • (ii) no person was injured;
      
    • (iii) there were three females present in the premises, two of whom were only 16 years of age;
      
    • (iv) the applicant had gone to the premises in circumstances where he was easily identifiable;
      
    • (v) the two motor vehicles were distinctive, and the owner of one of them was known to the victims;
      
    • (vi) the applicant's blood was present on a wall where he punched the hole through the gyprock;
      
    • (vii) the taser, unlike a firearm, was not a weapon which was capable of inflicting really serious bodily injury;
      
    • (viii) the knife, although capable of inflicting really serious bodily injury, related only to the charge of common assault; and
      
    • (ix) the incident took place in the early evening, as opposed to the early hours of the morning when it might have been expected the occupants would have been asleep.
      
19. Her Honour then considered the applicant's criminal history which contained previous entries for offences of violence. She concluded that although those previous offences were not aggravating factors, they disentitled the applicant to leniency.
    
20. Her Honour then made reference to the applicant's plea of guilty and allowed a reduction of 25 percent on that basis.
    
21. Her Honour concluded that in circumstances where the applicant had not given evidence, and in the absence of any pre-sentence report, she was unable to reach any conclusions about his remorse or contrition, beyond the fact that his immediate admissions to police and his pleas of guilty demonstrated "some contrition". She reached the conclusion that applicant's prospects of rehabilitation were guarded in light of his antecedents and that this rendered it necessary for specific deterrence to be given greater consideration than might otherwise have been the case. Her Honour also observed the necessity to pay heed to general deterrence.
    
22. Her Honour then, "with some reservation" found special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act. Although not precisely articulated, it would appear that this finding was based upon the possibility that a longer than usual period of parole would enhance the applicant's prosects of rehabilitation, and would assist in preventing him from re-offending.
    
23. Her Honour then proceeded to impose the sentences to which I have referred.
    

THE GROUNDS OF APPEAL

Ground 1 - The learned sentencing judge erred in the manner in which she had regard to the standard non-parole period provided for the offence.

24. At the commencement of her reasons, her Honour made reference to the fact that the offence in count 1 attracted a maximum penalty of 25 years imprisonment, and a standard non-parole period of seven years. At that time, the decision in R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 set out the approach to sentencing for offences for which a standard non-parole period was prescribed. That approach involved determining whether there were reasons for not imposing the standard non-parole period, a determination which required consideration, firstly of the objective seriousness of the offence, and secondly of the aggravating and mitigating circumstances.
    
25. The High Court, in Muldrock v R (2011) 244 CLR 120; [2011] HCA 39 concluded that it was erroneous, in sentencing an offender for an offence for which a standard non-parole period was prescribed, to give primary, much less determinative, significance to the standard non-parole period. The High Court also concluded that the relevant legislation (in particular ss 55B(2), 54B(3) and 21A of the Crimes (Sentencing Procedure) Act) did not permit a sentencing judge to engage in a two step process of sentencing, whereby an assessment was made as to where, within the range of objective seriousness, a matter fell, and was followed by a determination of whether such aggravating or mitigating factors found to exist might justify a longer or shorter period. It was concluded in Muldrock (at [26]) that the required approach to sentencing was one in which all of the relevant factors were identified, and a judgment reached as to the appropriate sentence having regard to such factors.
    
26. Her Honour's determination in the present matter was made prior to the decision in Muldrock. After setting out the facts, and making a number of observations regarding the circumstances of the applicant's offending, her Honour said:
    

"The fact that he has pleaded guilty to the s 112(3) offence is relevant on (sic) assessing where on the range it falls and whether it can be categorised as a mid-range offence in accordance with the dictates of the legislature. An offence said to fall within that mid-range of objective seriousness attracts a head sentence in the order of 9 to 10 years but just because a plea of guilty has been entered it does not mean, of course, that the standard non-parole period no longer remains applicable. It always remains relevant as a guide post or bench mark. This offence, as I have said, I find falls just below the mid-range."

27. The submissions of counsel for the applicant focussed, in particular, upon that passage. In summary, counsel submitted that:
    

(a) her Honour's language reflected the adoption of a fixed or rigid approach to the standard non-parole period, an approach which the High Court in Muldrock found to be erroneous;

(b) in referring to its use as a "guidepost", her Honour had ascribed too much weight to the standard non-parole period; and

(c) her Honour had engaged in an impermissible approach by considering the consequences, in terms of the calculation of a head sentence, of the application of the standard non-parole period.

28. Before considering these submissions, and in circumstances where her Honour's decision predated the decision in Muldrock, it is appropriate to make two preliminary observations.
    
29. Firstly, merely demonstrating that a sentencing judge followed the decision in Way, at a time before the decision in Muldrock will not, of itself, be sufficient to demonstrate error. In Butler v R [2012] NSWCCA 23 Davies J at [26] (with whom Whealy JA and Rothman J agreed) said:
    

"Merely showing that a sentencing judge sentenced pre Muldrock following the dictates of Way will not be sufficient to demonstrate error. What should be ascertained in each case is whether a reliance on Way has sufficiently infected a sentence with such error that this court must intervene. Ordinarily this might occur in cases where an applicant is found guilty by a jury, with the result that the sentencing judge will have considered that a two-stage process must be applied and that the standard non-parole period is mandatory unless factors can be found to justify a variation from it. It is far less likely that intervention will be required from this court where a sentence has been imposed following a plea of guilty and the sentencing judge has referred to the standard non-parole period as simply a guideline or yardstick".

30. I interpolate that the present case was indeed one where sentence was imposed following a plea of guilty. It was also one in which the sentencing judge made specific reference to the standard non-parole being "relevant as a guide post or bench mark".
    
31. Similar observations to those of Davies J in Butler were made by Allsop P in Williams v R [2012] NSWCCA 172 at [2]:
    

"The decision of the High Court in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 made clear that the decision in R v Way [2004] NSWCCA 131; 60 NSWLR 168 was wrongly decided. That does not mean that all sentences passed before Muldrock relying on Way are necessarily vitiated by operative error."

32. Secondly, in determining whether an error has been established, it is necessary to consider the reasons of a sentencing judge as a whole (see Aldous v R [2012] NSWCCA 153 at [2] per Allsop P; Zreika v R [2012] NSWCCA 44 at [43] per Johnson J.
    
33. Bearing in mind these observations, and having regard to her Honour's reasons, I do not accept the submissions made on behalf of the applicant in support of this ground. In my view, on a fair reading of the whole of those reasons, her Honour:
    
    • (i) set out the facts;
      
    • (ii) made observations as to the maximum penalty and standard non-parole period as they applied to the first count;
      
    • (iii) set out, in some detail, the circumstances of the applicant's offending;
      
    • (iv) cited the fact that in mitigation of penalty the applicant was entitled to a reduction on account of his plea of guilty;
      
    • (v) made reference to the standard non-parole period as a "guidepost" or "benchmark";
      
    • (vi) made an assessment of where the applicant's offending fell within the range of objective seriousness; and
      
    • (vii) made a number of other observations regarding rehabilitation, before proceeding to impose sentence.
      
34. Read as a whole, her Honour's reasons do not, in my view, support a conclusion that she used the standard non-parole period in some impermissible way, whether it be by using it as a starting point, giving it determinative significance, ascribing to it undue weight, or by otherwise engaging in a two step process of sentencing. On the contrary, the reasons, in my view, clearly indicate that her Honour took into account all relevant factors before determining the appropriate sentence.
    
35. The fact that there was no impermissible tethering of her Honour's sentencing discretion to the standard non-parole period is also evident from her observation that the standard non-parole period was "relevant" as a guide post or bench mark. In my view, her Honour's adoption of such terminology runs contrary to the proposition that she used the standard non-parole period in some fixed, rigid or otherwise impermissible way.
    
36. I am also not persuaded that her Honour erred in giving consideration to the head sentence which might be imposed following the adoption of the standard non-parole period. There was nothing to prevent her Honour from considering, as part of the sentencing process, the consequence (in terms of a head sentence) of the application of the standard non-parole period. The more important question is whether or not the approach which was taken to the standard non-parole period operated so as to mandate the outcome. t is evident, both from her Honour's reasons and the sentence she ultimately imposed, that it did not.
    
37. In Zreika (supra) Johnson J at [46] observed that the process of instinctive synthesis to be undertaken by a sentencing court involves the sentencing judge identifying all the factors that are relevant to the sentence and then making a value judgment as to the appropriate sentence in all of the circumstances of the case (see Markarian v The Queen [2005] HCA 25 at 377-378; [51]; Muldrock at [26]). In my view, and on a fair reading of the whole of her Honour's reasons, that describes the process that her Honour undertook.
    
38. Even had I reached the view that her Honour's reasons were reflective of one or more of the errors for which the applicant contends, I am not persuaded, for the reasons more fully discussed in respect of ground 2, that some lesser sentence was warranted in law and should have been passed in accordance with s 6(3) of the Criminal Appeal Act 1912.
    
39. It follows that in my view this ground is not made out.

Ground 2 - To the extent that the sentencing judge was obliged to assess, in a general way, the objective seriousness of the offending as part of the task of properly sentencing the applicant (as opposed to fixing that objective seriousness relative to a notional mid-range) her Honour erred in her approach assessing the objective seriousness of the Count 1 offence by failing to give sufficient weight to matters that ought to have given rise to a finding that the offence was at the lower end of the range.

40. In support of this ground counsel for the applicant cited a number of the circumstances which arose from the offending to which, it was submitted, her Honour failed to give sufficient weight. It was further submitted that when proper weight was ascribed to each of these matters, the appropriate finding was that the offence fell towards the lower end of the range. Such matters included the following:
    
    • (i) the serious indictable offence was at the lowest end of the range of the types of offences that could give rise to aggravation;
      
    • (ii) the dangerous weapon, being a taser, was less inherently dangerous than a shortened firearm;
      
    • (iii) the offence was committed in daylight and alone;
      
    • (iv) there was an absence of forced entry and no damage was occasioned;
      
    • (v) the offence was committed over a short period of time;
      
    • (vi) the applicant was undisguised, and was known to at least one of the occupants of the dwelling house; and
      
    • (vii) the offence was not committed in breach of conditional liberty.
      
41. At least some of the matters relied upon by counsel for the applicant in support of this submission do not appear to have been the subject of any submission to her Honour. It has been observed on a number of occasions that in an appeal such as this, the court does not engage in a process of rehearing a plea in mitigation. There is an expectation that whomever appears before a sentencing judge at first instance will make such submissions as might be open by reference to the particular factors which are sought to be taken into account in mitigation of sentence. As a consequence, this court will not lightly entertain arguments that could have been, but were not, advanced before a sentencing judge (see Zreika (supra) at [79] - [81] per Johnson J; Beldon v R [2012] NSWCCA 194 at [35] - [36] per Johnson J.
    
42. This court will have an even greater reluctance to entertain arguments that seek to resile from concessions made in the lower court, or are a contradiction of submissions previously made (see Zreika at [81]). In the present case, the applicant's representative on sentence submitted to her Honour that the objective seriousness of the offence in count 1 fell "probably at the mid-range of objective seriousness". The Crown took no issue with that submission. The position taken on behalf of the applicant on this appeal, namely that the offence fell at the lower end of the range of objective seriousness, was not consistent with what was put at first instance.
    
43. In any event, and balanced against the matters relied upon by the applicant in support of this ground, there were a number of other circumstances in relation to the offending in count 1. Those matters included the following:
    

(i) the applicant burst into the premises, unannounced;

(ii) although the occupants of the house might have been expected to be awake, it was dark at the time;

(iii) there were two 16 year old girls within the premises;

(iv) the applicant was in possession of a taser and a knife;

(v) whilst in the premises, the applicant acted in what might be described as a generally aggressive and violent way, as evidenced not only by what he said to the occupants, but by the fact that he punched the wall on two occasions with sufficient force to leave holes in the gyprock; and

(vi) the applicant escaped in a vehicle which was waiting outside, a circumstance which evidenced some degree of planning.

44. These circumstances reflect, on any view, a matter of some seriousness. It might also be noted that her Honour's finding that the applicant's offending in respect of count 1 was just below the mid range of objective seriousness was one which was more favourable to the applicant than that which was urged upon her Honour by the applicant's then representative.
    
45. Taking the entirety of these circumstances into account, it is my view that this ground is not made out.
    

CONCLUSION

46. I propose the following orders:
    
    • (1) grant leave to appeal;
      
    • (2) dismiss the appeal.
      
47. BUTTON J: I agree with Bellew J.
    

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