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[2025] NSWCCA 98
General information, not legal advice.
Court of Criminal Appeal (NSW)
2025-06-20
Kirk JA at [1], Davies J at [2], Wright J at [3]
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Abdallah v R [2025] NSWCCA 98
Hearing dates: 23 May 2025
Date of orders: 20 June 2025
Decision date: 20 June 2025
Before: Kirk JA at [1]; Davies J at [2]; Wright J at [3]
Decision: (1) The applicant has leave to appeal.
(2) The appeal is dismissed.
Catchwords: CRIME – Appeals – Appeal against sentence – whether sentencing judge failed to take into account mitigating factor of provocation on sentence – findings of fact open to sentencing judge – no error established
CRIME – Appeals – Appeals against sentence – whether offender was entitled to discount for the facilitation of justice pursuant to s 22A Crimes (Sentencing Procedure) Act 1999 (NSW) – factors said to facilitate justice not identified by defence counsel at hearing – no further discount beyond 25% for guilty plea warranted – no error established
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A, 22A
Criminal Appeal Act 1912 (NSW), s 5
Cases Cited: BAP v R [2024] NSWCCA 206
Bhatt v R [2024] NSWCCA 214
Doyle v R (2022) 108 NSWLR 1; [2022] NSWCCA 81
Finnigan v R [2022] NSWCCA 181
House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40
R v Baker [2000] NSWCCA 85
R v Mendez [2002] NSWCCA 415
Vaiusu v R [2017] NSWCCA 71
Yang v R [2012] NSWCCA 49
Category: Principal judgment
Parties: Adam Abdallah (Applicant)
Rex (Respondent)
Representation: Counsel:
T Woods (Applicant)
M Millward (Respondent)
Solicitors:
Cordoba Legal (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s): 2023/00137733
[This headnote is not to be read as part of the judgment]
The applicant pleaded guilty in the New South Wales District Court to the offence of recklessly causing grievous bodily harm and was sentenced to a term of imprisonment of 2 years and 3 months with a non-parole period of 1 year and 2 months. He was initially charged with causing grievous bodily harm with intent to cause grievous bodily harm and the offence for which he was ultimately convicted and sentenced was charged as an offence in the alternative. The applicant was committed to stand trial in the District Court for the more serious offence. He had offered to plead guilty to the lesser offence in the Local Court but his plea was not accepted then. At a “super callover” in the District Court, the applicant’s plea was accepted and as a result he was entitled to a 25% discount on his sentence.
The applicant sought leave to appeal the sentence imposed on him on two grounds:
1. The sentencing Judge erred by finding that the victim’s provocative conduct did not significantly mitigate the applicant’s conduct.
2. The sentencing Judge erred in failing to address a submission that the penalty should be reduced because the entry of the plea at super callover facilitated the course of justice.
The Court held (Wright J with Kirk JA and Davies J agreeing) granting leave to appeal on both grounds and dismissing the appeal on both grounds:
1. Based on the sentencing judge’s findings of fact and the evidence as a whole, the assessment that the victim’s provocative conduct did not significantly mitigate the applicant’s offending was well open and the sentencing judge did not err in this regard. [40]
2. No submissions identifying the specific ways in which the applicant’s plea facilitated the course of justice for the purposes of s 22A of the Crimes (Sentencing Procedure Act) 1999 (NSW) were put forward at the sentence hearing. In light of the way the issue was argued at sentence, her Honour did in substance address whether the applicant was entitled to any further lessening of his sentence beyond the 25% for his guilty plea. The effect of the sentencing judge’s reasoning was that the applicant’s plea of guilty reflected the strength of the evidence against him and did not warrant a discount for facilitation beyond the utilitarian value of the plea. [55], [57] – [59]
KIRK JA: I agree with Wright J. As regards the first ground I, too, watched the videos of the incident a number of times in the course of concluding that the impugned finding of the sentencing judge with respect to provocation was open to her Honour.
DAVIES J: I agree with Wright J for the reasons his Honour gives. In relation to ground 1, I have also viewed the videos a number of times. In my opinion based on the agreed facts and those videos, it was well open to the sentencing judge to conclude that the provocation by the linesman was not such as to operate to mitigate to any significant extent the objective seriousness of the applicant’s offending.
WRIGHT J: The applicant, Adam Abdallah, seeks leave to appeal, under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), against the sentence of imprisonment of 2 years and 3 months, with a non-parole period of 1 year and 2 months, imposed by Noman SC DCJ on 26 February 2025 in the District Court at Sydney for the offence of recklessly causing grievous bodily harm.
On 21 February 2024, the applicant was committed to the District Court for trial on one count of causing grievous bodily harm with intent to cause grievous bodily harm and an alternative count of recklessly causing grievous bodily harm. The applicant had offered to plead guilty to the less serious alternative offence in the Local Court.
On 19 September 2024 at a “super callover” in the District Court, the offer to plead guilty to the less serious offence was accepted in full satisfaction of the indictment. It was not in dispute that the applicant was therefore entitled to a discount of 25% on the otherwise appropriate sentence.
The sentence proceedings took place on 24 February 2025 before Noman SC DCJ.
The written submissions made on behalf of the applicant on that occasion included that the applicant was “entitled to the full 25% discount at sentence for the utilitarian value of the plea …” and the applicant “may be entitled to an additional discount for facilitating the efficient administration of justice”. In the applicant’s supplementary written submissions on sentence it was contended in effect that the offer of the early plea should be taken into account as evidence of remorse and facilitation of the course of justice, as well is attracting the 25% discount. In oral submissions, it was submitted that the fact that the applicant’s plea was accepted at a super callover entitled him to “something further for facilitation”.
The Crown’s eventual position on sentence was that the applicant was entitled to a 25% discount on account of the offer of the plea of guilty. In respect of any further lessening of the penalty because of the facilitation of the administration of justice, the Crown referred to this Court’s decision in BAP v R [2024] NSWCCA 206 which indicated at [62] that an offender should identify the factors that were said to demonstrate the facilitation of the administration of justice, as opposed to the utilitarian value of the plea of guilty and remorse, if a further reduction in sentence on that basis was submitted to be appropriate.
In addition, both the applicant and the Crown made submissions on the question of provocation of the applicant by the victim hitting him with his linesman's flag prior to the incident in which the grievous bodily harm was inflicted.
On 26 February 2025, her Honour sentenced the applicant to imprisonment for 2 years and 3 months commencing on 25 January 2025, with a non-parole period of 1 year and 2 months expiring on 24 March 2026: R v Abdallah [2025] NSWDC 33.
A notice of intention to appeal was filed on 27 February 2025 and a notice of appeal was filed within time on 8 April 2025.
On 2 May 2025, the applicant filed an application for leave to rely on an additional ground of appeal at hearing. The Crown did not oppose leave. Accordingly, leave was granted and the grounds of appeal which the applicant sought to rely on were:
“1. The sentencing Judge erred by finding that the victim’s provocative conduct did not significantly mitigate the applicant’s conduct.
2. The sentencing Judge erred in failing to address a submission that the penalty should be reduced because the entry of the plea at super callover facilitated the course of justice.”
The sentencing judge noted that the facts were detailed in an agreed facts document and that she had read, and would have regard to, the entire document. Her Honour then went on to summarise the facts but noted that “the salient aspects” would also be referred to in assessing objective seriousness.
The summary of the agreed facts in which the applicant is referred to as the offender was relevantly as follows:
“7. On 28 April 2023 the offender attended an evening local football game as a spectator. The victim was a registered referee and was performing the role of linesman at the game. He was wearing the uniform of a linesman. The age of the victim is not disclosed in the tendered evidence, but the victim appeared in the recordings to be older than the offender. At the end of the game the offender approached the main referee and verbally abused him over his performance. The victim and the other linesman told the offender to leave. The offender focussed his attention on directing verbal abuse towards the victim. The victim used the wrist brace end of his linesman flag to strike the offender on the head causing him to fall to the ground. This flag is about 40cm in length, with a light-weight pole to which the flag attaches and a padded foam end. Although light weight it would be capable of causing pain if used with force. After the offender was assisted to stand, team players separated the offender and the victim. The offender was attempting to approach the victim but was restrained by players. The victim and the offender continued to yell at each other. The offender was walked away by a friend for about 10 seconds. The offender walked towards the victim and both were still yelling at each other. The offender walked away.
8. The victim yelled at another male until he was stopped by the referee. The offender turned and approached the victim. The victim swung his hand at the offender. The offender hit the victim in the face causing him to fall to the ground. The offender forcefully hit the victim in the head at least three times. The victim was covering his head with one arm. He was punched multiple times and kicked once to the head. The victim was on the ground throughout.
9. Others intervened. The offender ran around this group and attempted to approach the victim. The offender picked up a plastic chair but was restrained by three males and escorted from the field.
10. After waiting for keys, the offender jogged towards his car. When police sirens were heard, he started to run in another direction. Other males called out for him not to run. He jogged back to his car and drove away.
11. Aspects of the interaction and events were captured on recordings.
12. The victim suffered a significant injury, consonant with the requirement that there was grievous bodily harm. He suffered two acute displaced fractures to his jaw. He required surgery to insert three separate plates. He lost four teeth. This is significant harm and above the minimum. …
13. At the request of the police the offender presented with a lawyer at the police station on 30 April 2023. He participated in an interview. The offender was not truthful in some respects that are inconsistent with the agreed facts, including: not driving to and from the game, whereas he was observed driving away; being unable to walk, whereas he was able to jog and drive; and not having boxed, whereas he has boxed. He also sought to advance a scenario of no memory of the assault upon the victim due to being concussed and having blacked out. The fact of concussion is not pressed.
14. The offender had photographs taken of the left side of his face on the night of the offending at about 10.46pm … . The defence tendered the medical notes. The offender delayed seeking medical attention on the day of the incident and specifically noted the notes could be released to police. The offender saw a GP on the evening of 29 April 2023 and injuries were recorded. The medical summary refers to superficial bruising to the left forehead area and bruising and redness to the left neck area. No swelling was observed to the forehead. Only the forehead injury would be attributable to the victim. Those injuries were not visible the following day when photographs were taken by police.”
Under the heading “Objective seriousness”, her Honour observed that portions of what relevantly occurred had to be derived from witness statements and the video recordings of the events. Noman SC DCJ then said that she had taken into account the “overall circumstances of verbal exchanges and physical acts and the injuries informing the offence”. The relevant findings under the “Objective seriousness” heading included, at [17] to [19]:
The applicant should not have been at the game as he had been suspended as even a spectator for previous conduct.
The applicant commenced the verbal exchange that precipitated the victim and another to become involved.
Through this conduct, the applicant directed offensive comments at the victim. In response to this insult, the victim used his linesman’s flag to hit the offender once to the head. There was sufficient force used to result in the applicant falling to the ground and receiving a superficial bruising to his temple with swelling. Thus it was the victim who instigated the use of violence.
After being assisted to stand, the applicant sought to continue the altercation with the victim and any incapacity he suffered as a result of being hit with the linesman’s flag was fleeting. Her Honour did not accept the applicant’s account of being incapacitated mentally or physically as a result of being hit.
Other persons then kept the applicant and the victim apart. None of the victim’s words were particularly offensive. Nonetheless, the applicant maintained an aggressive manner and continued to yell directly at the victim.
The applicant commenced to leave but then determined to return and continue the altercation.
When approached by the applicant, the victim swung his hand at the applicant who hit the victim with sufficient force to cause him to fall to the ground where, in that vulnerable position, the applicant forcefully punched the victim multiple times and kicked him once in the head when the victim was defenceless on the ground.
The applicant did not voluntarily desist and sought to return to the victim and armed himself with a plastic chair.
The sentencing judge described the applicant’s conduct as cowardly. It occurred in public at the end of a local sporting game and was witnessed by various members of the public.
The applicant accepted he acted out of anger and Noman SC DCJ was satisfied that the applicant conducted himself with a high degree of recklessness as to the infliction of grievous bodily harm.
As to the significance of the provocation which led to the offending conduct, her Honour held:
“20. The explanation in the facts as to what precipitated the offending does not in any significant way serve to ameliorate the offender’s conduct. The impact is modest. I do not regard the conduct of the victim to demonstrate ‘extreme provocation’ as submitted on behalf of the offender. Although the offender commenced the interaction through his unjustified and inappropriate contact with the referee, it was the victim who escalated the interaction by the unwarranted assault. As may have been anticipated, this did not diffuse the incident but served to antagonise the offender.”
The reasoning supporting the conclusion in [20] was set out in [21] and included what follows.
The victim was the first to introduce physical interaction but this was in response to the offender’s verbal conduct.
The victim used the linesman’s flag once, and then the victim and the applicant were separated but the applicant returned before being urged away by a friend.
For a period of some minutes, there was no ongoing violence and the applicant commenced to leave more than once but broke away from those directing him.
After the applicant returned to the vicinity of the victim and while both were still yelling, the victim approached the applicant and swung his hand towards the applicant without connecting. It was then that the applicant punched and kicked the victim in a sustained assault during which there was no retaliatory action.
Her Honour summarised the situation at [21] as follows:
“… The conduct of the offender occurred after the initial situation had diffused, he was not proximate to the victim and he chose to return and escalate the situation. I adopt the offender’s belated description of his conduct as contained in his ‘statement’ wherein he said his actions were ‘excessive and inexcusable’.”
The sentencing judge assessed that the offending fell “within the mid-range of objective seriousness”.
Her Honour also referred expressly at [52] to the applicant’s submission that his moral culpability was lessened based on, inter alia, provocation and noted that “[t]he conduct relied upon for provocation was addressed under objective seriousness”.
Under the heading “Remorse”, her Honour touched upon other potential consequences of the applicant’s guilty plea as follows:
“55. I appreciate the offender accepted responsibility by entering a plea of guilty. This outcome was not unexpected given that the incident was recorded but it still is of utilitarian value and may exhibit remorse. There is also direct and hearsay evidence suggestive of remorse. ...”.
After considering the other aspects of applicant’s subjective case and the purposes of sentencing, her Honour imposed the sentence referred to above.
Against that background, the two grounds of appeal are to be considered.
The applicant sought to impugn, in particular, the sentencing judge’s finding at [20] that “the explanation in the facts as to what precipitated the offending does not in any significant way serve to ameliorate the [applicant’s] conduct”. The victim’s relevant conduct was described as “extreme provocation” in the applicant’s submissions before the sentencing judge and was a reference to the fact that it was the victim who “instigated the use of violence” by hitting the applicant with his linesman’s flag before the applicant returned and attacked the victim.
The applicant submitted that the provocation did not need to be “extreme” for it to operate as a mitigating factor and that s 21A(3)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Procedure Act) applied in the present case. In this regard, the applicant contended that the victim’s use of his linesman’s flag to strike a troublesome spectator, knocking him to the ground, should properly be characterised as significant provocation, especially as the victim was acting in an official capacity. It was also said that the victim’s attack on the applicant was criminal conduct in response to verbal non-criminal conduct, which escalated the situation and served to antagonise the applicant. While it was accepted that the applicant had time to take stock of the situation, nonetheless it was said that the impact of the victim’s provocative assault and subsequent verbal abuse had not dissipated by the time of the applicant’s attack on the victim.
Thus, it was submitted that the victim’s provocative acts were a substantial cause for the applicant’s loss of control and his offending conduct. Since the two were significantly linked, it was submitted that it was not open to find that the provocation was not significant. Finally, the applicant submitted that had her Honour appropriately found that the victim’s provocative conduct was significant, the assessment of objective seriousness would have been identifiably less leading naturally to a lesser sentence.
The Crown submitted that this first ground of appeal did not seek to challenge any finding of fact by the sentencing judge but rather sought to impugn her Honour’s assessment of the weight to be given to the victim’s provocation in determining the appropriate sentence. Weight was submitted to be a matter quintessentially for the sentencing judge and the applicant was required to establish that it was not open to the sentencing judge to conclude that the objective seriousness of the offending fell within the mid-range having regard to the nature and extent of the provocation.
The Crown contended that her Honour properly took into account all relevant matters, including the temporal proximity of the victim’s provocation and the degree of violence of the applicant’s response, and that it was well open to conclude that the victim’s provocation did not significantly mitigate the applicant’s conduct and that the offending fell within the mid-range of objective seriousness.
Under s 21A(3)(c) of the Sentencing Procedure Act, one of the mitigating factors to be taken into account in determining the appropriate sentence is that “the offender was provoked by the victim”. The wording of the provision makes clear that provocation does not have to be “extreme” before it can be taken into account.
The provocation in the present case was the victim hitting the applicant with his linesman’s flag as a result of offensive comments made to the victim by the applicant.
The applicant put the first ground of appeal on the basis that the sentencing judge’s assessment that the provocation which precipitated the applicant’s offending did not “in any significant way serve to ameliorate the applicant’s conduct” was unreasonable and not open. This approach was appropriate since assessment of the weight to be given to a particular factor such as provocation, when assessing objective seriousness and determining the appropriate sentence, is very much in the province of the sentencing judge and the situations in which such matters of weight will justify appellate intervention are narrowly confined: R v Baker [2000] NSWCCA 85 at [11] ; Yang v R [2012] NSWCCA 49 at [25]; Vaiusu v R [2017] NSWCCA 71 at [29]. Generally, such an assessment can only be interfered with by this Court on the basis of the principles in House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40. In the present case, it was not submitted that the sentencing judge acted on a wrong principle, took into account irrelevant matters, mistook the facts or failed to take into account some material consideration. The only remaining potential basis of challenge was, therefore, that the result was unreasonable or plainly unjust.
In Bhatt v R [2024] NSWCCA 214 at [12] Fagan J observed that the weight to be given to provocation will depend on considerations such as the objective degree of seriousness of the victim’s provocative conduct, the temporal proximity of that conduct to the commission of the offence and the degree of violence in the applicant’s reaction.
Furthermore, the reaction of an offender to provocation may be so disproportionate to the behaviour of the victim that the provocation does not operate as a mitigating circumstance: Finnigan v R [2022] NSWCCA 181 at [41(7)] (Cavanagh J, with Brereton JA and Wilson J agreeing) citing Howie J in R v Mendez [2002] NSWCCA 415 at [16]:
"In any event, the conduct of the applicant was so far out of any reasonable proportion to the behaviour of the victim that it was well within his Honour's discretion to determine that there was no mitigation arising from that circumstance."
The applicant did not challenge any of the sentencing judge’s findings of fact and they were well supported by the evidence before her Honour, including not only the facts as agreed between the parties but also, inter alia, the video recordings which depicted part of the relevant events. Both parties invited the Court to view the videos for the purpose of considering this ground of appeal and I have done so.
A review of the remarks on sentence demonstrates that the sentencing judge considered in some detail and took into account the circumstances relevant to determining whether the conduct of the victim relied on by the applicant as provocation reduced the seriousness of his offending and mitigated the sentence to be imposed. The relevant aspects of the remarks have been summarised in [17] – [21] above. Although it was accepted that the victim was the first to introduce physical interaction by using his linesman’s flag to hit the applicant in response to the applicant’s verbal abuse, her Honour’s unchallenged findings most pertinently included that:
although the victim’s conduct involved an “unwarranted assault” it did not amount to “extreme provocation”, as the applicant had submitted, the victim’s conduct was itself in response to verbal abuse by the applicant and the impact of the linesman’s flag on the applicant was “modest”;
the applicant’s offending conduct occurred when the applicant chose to return and escalate the violence, some minutes after the initial situation had “diffused” and after the victim and the applicant had been quite physically distant from one another; and
the applicant’s actions in attacking the victim were “excessive and inexcusable”, adopting the applicant’s own descriptions of his conduct.
Thus, the sentencing judge’s findings were consistent with the conduct which constituted the provocation being towards the lower end of objective seriousness. Moreover, the situation created by the victim’s conduct had calmed and the applicant and the victim had been separated for some minutes before the applicant decided to return a considerable distance and attack the victim. In these circumstances, the applicant’s reaction to the victim’s conduct was less attributable to an instinctive or ill thought-out response in the heat of the moment than would have been the case if the reaction had occurred immediately after the provocation. Finally, the fact that the reaction was properly characterised as excessive and inexcusable provides significant support for the conclusion that the applicant’s offending was significantly disproportionate to the provocation in this case. Taking into account these considerations in light of all the sentencing judge’s relevant factual findings, in my view, it was well open to her Honour to conclude that the provocation by the victim was not such as to operate to mitigate to any significant extent either the sentence for, or the objective seriousness of, the applicant’s offending. It follows that the first ground of appeal is not made out.
Since the first ground of appeal was arguable, I would grant leave to appeal. Nonetheless, for the reasons given, I would reject this ground of appeal.
At the outset of the hearing, counsel for the applicant quite properly referred to the comments in BAP v R [2024] NSWCCA 206 at [62] by Yehia J (with Cavanagh J and me agreeing) which indicated in effect that, in order to succeed on a ground such as ground 2, it would usually be necessary for the issue of facilitation of the administration of justice to have been raised before the sentencing judge and for the factors that are said to demonstrate the applicant’s facilitation of the administration of justice, as opposed to the utilitarian value of the plea of guilty and his remorse, to have been identified.
It was noted that in this case, although the issue was raised before the sentencing judge, no feature of the case was specifically identified as justifying additional mitigation over and above the utilitarian value of the plea. In these circumstances, it was said that this ground was “only faintly pressed by the applicant”. [2]
The applicant’s submission was in summary that, given the submissions made at the sentence hearing, the sentencing judge was required to determine: (a) whether the entry of the plea at a super callover facilitated the course of justice; and, (b) whether there should be any consequential reduction in penalty. However, this was not done.
The Crown submitted that neither at first instance nor on appeal did the applicant identify any factor said to demonstrate facilitation of the administration of justice beyond entry of plea of guilty at a super callover. In addition, it was contended that, although the sentencing judge did not refer in terms to the facilitation of the administration of justice, the remarks read fairly as a whole demonstrated that her Honour had considered the matter and determined that there was no relevant facilitation such as to attract a further reduction in the sentence over and above the 25% reduction for the plea. Further and in any event, it was submitted that even if the sentencing judge had failed to address the submission as required, this was not an error which had the capacity to affect the exercise of the sentencing discretion in the present case.
“(1) A court may impose a lesser penalty than it would otherwise impose on an offender who was tried on indictment having regard to the degree to which the administration of justice has been facilitated by the defence (whether by disclosures made pre-trial or during the trial or otherwise).
(2) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence.”
As noted above, facilitation of the administration of justice was raised in a limited way in submissions before the sentencing judge. The submissions included that the applicant “may be entitled to an additional discount for facilitating the efficient administration of justice” (emphasis added) and that the fact that the applicant’s plea was accepted at a super callover entitled him to “something further for facilitation”. There was, however, no identification of any particular factor said to demonstrate facilitation of the administration of justice beyond the offer of a plea accepted by the Crown at a super callover.
A plea of guilty may have a number of distinct aspects or consequences in relation to sentencing. First, there is the utilitarian value of the plea which is dealt with by way of a discount in accordance with Pt 3 Div 1A of the Sentencing Procedure Act. Secondly, the plea may be evidence of remorse. Thirdly, the plea may establish acceptance of responsibility for the offending and a willingness to facilitate the administration of justice. In Doyle v R (2022) 108 NSWLR 1; [2022] NSWCCA 81 the Chief Justice (with Bellew and Ierace JJ agreeing) explained, at [19]:
“… an offender’s acceptance of responsibility and willingness to facilitate the course of justice are conceptually distinct from, and require separate treatment to, the utilitarian value of a guilty plea. … the utilitarian value of the applicant’s guilty plea alone entitled him to a sentencing discount of 25%, and his acceptance of responsibility and willingness to facilitate the course of justice ought to have formed part of the process of instinctive synthesis entailed in the sentencing process. Remorse was to be taken into account as a mitigating factor pursuant to s 21A(3)(i) of the Sentencing Act, and the degree to which the administration of justice had been facilitated by the defence authorised a ‘not… unreasonably disproportionate’ reduction of the penalty in accordance with s 22A.”
Noman SC DCJ dealt with the consequences of the plea at the super callover in two parts of her remarks, which are to be read as a whole and in light of the submissions made on sentence.
First, under the heading “Plea” at [4], her Honour considered the effect of the plea which was originally offered in the Local Court and was accepted at a super callover. She determined to apply a reduction of 25%, which was in accordance with Div 1A of Pt 3 of the Sentencing Procedure Act. This aspect of her remarks related to the utilitarian value of the plea. Her remarks then continued in the same paragraph:
“This was a compelling Crown case, supported as it was by witnesses and recordings of keys parts of the offending. There was an initial acceptance of some responsibility. There is a utilitarian benefit from the offering of the plea.”
In the first two sentences of this quotation, her Honour refers to a compelling Crown case and some acceptance of responsibility. In my view, her Honour is to be understood by these comments as indicating that the plea and any acceptance of responsibility were, in effect, a response to the fact that the Crown case was compelling or verging on the overwhelming. From this it would follow that the plea should not be understood as being significantly motivated by a willingness to facilitate the administration of justice rather than an acceptance of the strength of the Crown case. In other words, it is implicit that her Honour did not accept that, in the circumstances of the present case, the degree to which the administration of justice had been facilitated by the defence justified further lessening of the sentence.
The last sentence of the quotation indicates her Honour’s acceptance that, notwithstanding the strength of the Crown case and the lack of a significant degree of facilitation of the administration of justice, the plea had utilitarian value and the applicant was entitled to have that taken into account in accordance with Pt 3 Div 1A of the Sentencing Procedure Act.
The fact that this reasoning did not refer expressly to the facilitation of justice can be seen as reflecting the submissions made which did not identify any particular factor as demonstrating a significant degree of facilitation of the administration of justice as distinct from the utilitarian value of the plea or an indication of remorse.
Thus, in my view, when considered in light of the way the issue was argued, her Honour did in substance address whether the applicant was entitled to any further lessening of the sentence having regard to the degree to which the administration of justice has been facilitated by the defence.
Secondly, under the heading “Remorse”, her Honour said at [55]:
“I appreciate the offender accepted responsibility by entering a plea of guilty. This outcome was not unexpected given that the incident was recorded but it still is of utilitarian value and may exhibit remorse. …”.
In this comment the sentencing judge accepted that the plea in the present case had relevance in relation to its utilitarian value and as establishing remorse. The statement that the outcome, being a plea of guilty, “was not unexpected given the incident was recorded” confirms that her Honour’s view was that the plea was largely a response to the strength of the Crown case, since the infliction of grievous bodily harm on the victim was recorded on video, rather than being indicative of any significant degree of willingness on the part of the applicant to facilitate the administration of justice such as to justify a lesser penalty under s 22A of the Sentencing Procedure Act. Once again, although there was no express reference to facilitation of the administration of justice, such relevant submissions as were made on the applicant’s behalf at the sentence hearing were addressed in substance by her Honour.
At this point, it is appropriate to reiterate that a ground which asserts a failure to address a submission that a lesser sentence should be imposed under s 22A of the Sentencing Procedure Act will be likely to succeed only if the submission made at the sentence hearing identified the specific factors or circumstances which were said to constitute a sufficient degree of facilitation of the administration of justice by the defence so as to justify a lesser sentence, as opposed to the utilitarian value of the plea and remorse. The submissions before the sentencing judge in this case did not identify such circumstances or factors. As a consequence, the sentencing judge’s consideration of that issue was not required to be either extensive or detailed. In my view, her Honour dealt with the substance of the applicant’s submission adequately in the circumstances.
For these reasons, I do not accept that the sentencing judge erred by failing to address the submissions, such as they were, that the penalty should be reduced, pursuant to s 22A of the Sentencing Procedure Act, because the entry of the plea at a super callover facilitated the course of justice.
In my opinion, leave to appeal should also be granted in respect of ground 2, but the appeal on this ground should be dismissed.
Accordingly, I propose that the orders of the Court should be:
The applicant has leave to appeal.
The appeal is dismissed.
**********
Tcpt 23 May 2025, p 3 (4)-(9) and (18)-(19) and Applicant’s Amended Submissions dated 8 April 2025 par 35.
Tcpt 23 May 2025, p 2(9)-(10).
Abdallah
R [2025] NSWCCA 98
(2022) 108 NSWLR 1
(1936) 55 CLR 499