Ayoub v R

JUDGMENT

1. HARRISON CJ at CL: I agree with Dhanji J.
2. N ADAMS J: I agree with the orders proposed by Dhanji J for the reasons provided by his Honour.
3. DHANJI J:

Introduction

1. The applicant, Nathan Ayoub, seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), against the sentence imposed on him on 2 February 2024 in the District Court of New South Wales at Gosford. The applicant was sentenced with respect to three offences of assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act 1900 (NSW) committed against his then partner between July and October 2022. One offence of stalk and intimidate contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) was taken into account on a Form 1 document.
2. The matter was heard by his Honour Judge Abadee. His Honour sentenced the applicant to an aggregate sentence of 4 years and 9 months imprisonment with a non-parole period of 2 years and 10 months, commencing on 1 October 2023. The non-parole period will end on 31 July 2026 and the full-term is due to expire on 30 June 2028. Each of the indicative sentences was arrived at after the application of a 25 percent discount for the utilitarian value of the applicant's pleas of guilty which were entered in the Local Court.
3. The following table outlines the offences and the corresponding indicative sentences nominated by the sentencing judge: Sequence Charge Maximum penalty Indicative sentence Form 1 Intimidate with intent to cause fear of harm, s 13(1) Crimes (Domestic and Personal Violence) Act 2007 5 years imprisonment Taken into account on a Form 1 document (attached to seq 3) 3 Assault occasioning actual bodily harm, s 59(1) Crimes Act 1900 (NSW) 5 years imprisonment 2 years imprisonment 5 Assault occasioning actual bodily harm, s 59(1) Crimes Act 1900 (NSW) 5 years imprisonment 2 years 3 months imprisonment 8 Assault occasioning actual bodily harm, s 59(1) Crimes Act 1900 (NSW) 5 years imprisonment 2 years 6 months imprisonment

Ground of Appeal

1. The applicant seeks leave to appeal against his sentence on a single ground, as follows: "The sentencing judge erred in the application of the principles of totality."
2. The applicant contends that the sentencing judge ought to have considered totality between the sentence he imposed, and a sentence imposed on the applicant for domestic violence offences against a separate victim, some eight years earlier ("the earlier offences"), in respect of which the applicant was on parole at the time of the current offences.

Factual Background

1. To understand the applicant's argument on the appeal it is helpful to have some understanding of both the current offending and the earlier offending as well as the applicant's case on sentence more generally. Having regard to the limited basis on which the appeal was argued, the discussion can be relatively brief.

The current offences

1. In June 2021, the applicant and the victim commenced a romantic relationship, which soon became volatile. From July 2022, the applicant often resided at the victim's house at Gosford. The victim would sometimes ask the applicant to leave, whereupon he would leave for a brief period before convincing her to allow him to return to the house.

Form 1 - Attached to Sequence 3: Intimidation

1. Between 4 July 2022 and 6 July 2022, the applicant called the victim 113 times. The victim answered only some of the applicant's calls.
2. In July 2022, the victim discovered the applicant had sent pornographic photographs to members of his family, claiming they depicted the victim.
3. In August 2022, the applicant was staying with the victim and her two children. The applicant located text messages between the victim and another man on the victim's phone and told the victim's children "your mum's a whore, your mum's a drunk" before running from the house with the victim's phone. The applicant then downloaded the data from the victim's phone onto his own.

Sequence 3: Assault occasioning actual bodily harm

1. In August 2022, at a time when the victim was sitting on a toilet, the applicant took hold of her mouth and struck her to the nose, causing it to bleed.

Sequence 5: Assault occasioning actual bodily harm

1. On an occasion in September 2022, the applicant and victim were at home together when an argument ensued between them. The applicant took hold of the victim by her hair and dragged her down a hallway towards a bedroom. The applicant threw the victim onto the bed and punched her to the head, causing a split in her skin near her right eyebrow.
2. The applicant then forcibly removed the victim's pants, despite her resistance. Once her pants had been removed, the victim curled into a foetal position, at which point the applicant grabbed her underwear and pulled at it with great force. This caused the victim intense pain and bleeding to her pubic region. The applicant then kicked the victim to the back, insulted her, pushed her head down and told her to go to sleep.

Sequence 8: Assault occasioning actual bodily harm

1. In late October 2022, the applicant started an argument with the victim. He took hold of her hair and shook her around. He punched the victim to the back of the head. He took hold of the side of her head and headbutted her. The applicant again punched the victim to the head and then the ear, which caused her vision to flash white and her head to feel heavy. The applicant then struck the victim on the chin. He dragged her to the bedroom by her hair and put her on the bed. The applicant pushed the victim's head into the bed and told her to go to sleep. The victim sustained bruising to her head, face, arms, shoulders and legs as well as a bleeding lip.
2. The applicant was arrested by police on 29 November 2022 and remained in custody from that date.

The earlier offences

1. The applicant was sentenced in May 2016 in respect of an offence of assault occasioning actual bodily harm, two offences of sexual intercourse without consent, and one offence of detain for advantage. An offence of intimidation was taken into account on a Form 1 document. The offences were committed by the applicant against a previous intimate partner (that is, not the victim of the current offences) in November 2014.
2. The applicant and the victim had been in a domestic relationship and shared a child but were separated at the time of the offences. The victim attended the applicant's premises for the purposes of a pre-arranged contact visit with their child. She told the applicant she was going to remove her belongings from his residence. Around the same time, the victim received a text message to her phone. The applicant grabbed the phone, then grabbed the victim. He moved the victim into his bedroom and detained her. Her pushed the victim onto his bed, punched her to the jaw, and administered other blows. He threatened to kill her if she made a noise. The applicant kneeled on the victim's neck, punched her, inserted his fingers into her mouth and screamed various obscenities at her. Later that evening, the applicant committed multiple acts of sexual assault. He perpetrated a further sexual assault the following evening.
3. The applicant was sentenced to a total of 9 years imprisonment with a non-parole period of 6 years. As noted above, the current offences were committed during the parole period of the sentence for the earlier offences. The interaction between the sentences is discussed further, below, in the context of the ground of appeal.

The applicant's subjective case

1. The applicant was 41 years old at the time of sentence. Tendered on his behalf were a psychiatric report of Dr Gerard Chew dated 25 November 2023, a letter from Slater and Gordon dated 16 May 2023 confirming the applicant's civil claim, two character references and two certificates of training. The applicant's mother, Ms Sharon Pollitt gave evidence at sentence. The sentencing judge referred to the following features of the applicant's subjective case.
2. The applicant experienced sexual abuse at his Catholic primary school when he was in year 3. He has since suffered from flashbacks and nightmares. The applicant has, in recent times, brought a civil claim for compensation for institutional child sexual abuse. At the time of the current offences, the offender was experiencing financial stress, as well as ongoing symptoms of Post-Traumatic Stress Disorder ("PTSD"), arising from his history of abuse. The sentencing judge accepted "on the balance of probability that the offender's PTSD did have a contributing role [in the offending] in the sense of draining the offender's powers of resilience and emotional regulation".
3. The applicant's parents separated when he was around 15 or 16 years old. Ms Pollitt, in her evidence, referred to the applicant as having experienced paternal abuse, both physical and verbal, however this was not identified by Dr Chew in his report.
4. The applicant struggled with dyslexia at school and left in year 10. He has worked on and off as a concreter and landscaper since that time.
5. The applicant has a history of significant substance abuse, which commenced when he was a teenager. He was diagnosed by Dr Chew with substance use disorder.
6. The sentencing judge found that, on balance, the applicant demonstrated remorse "of a generic kind" and that his prospects of rehabilitation were "guarded". His Honour accepted that the principles in both Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 and Director of Public Prosecution (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 were properly invoked and that, accordingly, there was to be a diminution in the applicant's moral culpability and moderation of the weight to be afforded to general and specific deterrence, as well as considerations of retribution and denunciation.

Ground one: the sentencing judge erred in the application of the principles of totality

1. The applicant's sole ground of appeal complains that the sentencing judge erred in the application of the principles of totality. The terms of the ground, in asserting an error in the application of relevant principles, suggests an error based on result rather than any error in the statement of any relevant principle by which that result was reached.
2. The principle of totality is well established. In Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17, Bell and Keane JJ said (at [37]): "Just as a sentencing judge is accorded as much flexibility as is consonant with the statutory sentencing regime in determining the appropriate sentence, so, too, the judge is to be accorded the same flexibility in determining the structure of two or more sentences. The [Crimes (Sentencing Procedure) Act 1999 (NSW)] does not confine the approach to be taken to the structure of two or more sentences. It assumes concurrency in the absence of a direction to the contrary. The sentencing judge was required to impose an appropriate sentence for each offence and to structure the sentences such that the overall sentence was just and appropriate to the totality of the appellant's offending behaviour. As the Court of Criminal Appeal correctly said, the question of concurrency or partial accumulation required consideration of whether the sentence for the manslaughter offence could encompass the criminality of both offences." (footnotes omitted)
3. The question of whether the sentence for one offence can "encompass the criminality" of other offences, has also been expressed in terms of whether the total sentence is sufficient to comprehend the total criminality: Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 at [27]; R v XX (2009) 195 A Crim R 38; [2009] NSWCCA 115 at [52]. In answering that question, it is necessary to bear in mind that, particularly in the context of long sentences, the severity of a sentence increases at a rate greater than the increase in its length. That is, a sentence of 10 years is more than twice as severe as a sentence of 5 years: R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [16].
4. The principle of totality is not dependent on the offences being connected. Thus, in Harris v R [2023] NSWCCA 44, Beech-Jones CJ at CL (as his Honour then was) said, at [15]: "… there was nothing to suggest any connection between the two sets of offences, save that it appears that they were committed around the same time. Even so, as the applicant was still serving his existing sentence, the necessity to consider imposing wholly or partially concurrent sentences on account of totality still pertains. This is so because it is necessary to avoid the 'risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two [sets of] offences … regardless of whether the two [sets of] offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality' (Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 at [27] per Howie J)."
5. In the present matter the sentencing judge was sentencing for multiple offences. This raised the issue of totality as between the sentences (or indicative sentences) to be imposed for those offences ("the current offences"). As previously noted, the time of his arrest in relation to the current offences the applicant was also serving a parole period in relation to earlier offending. The applicant's parole was revoked with the result that between 29 November 2022 and 2 December 2023 (a period of one year and four days) the applicant was serving his balance of parole, while he was, at the same time, in custody, bail refused with respect to the current offences. This raised the issue of totality as between the aggregate sentence imposed for the current offences and the earlier sentence.
6. The earlier sentence of 9 years with a non-parole period of 6 years and a balance of term of 3 years commenced on 20 November 2014. The applicant was released to parole on 24 December 2020 (shortly after the expiry of the non-parole period) and had therefore spent the period from that release until his arrest for the current offences on 29 November 2022 on conditional liberty. That was a period of 23 months and 6 days. Annexed to these reasons is a graph setting out the sentences for the earlier offences, the current offences, and their combined effect.
7. Having arrived at indicative sentences for each of the offences for which the applicant stood for sentence, the sentencing judge turned to the question of totality. His Honour said: "I must apply the totality principle. There is, as the Crown's written submissions, MFI 1, recognise scope for some concurrency in view of the same conduct perpetrated against the same victim over a period that is not overtly long in similar circumstances. But it would do less than justice and certainly be inimical to recognising the harm done to the victim and the need to comprehend the offender's overall criminality if there was not some accumulation in view of the discrete episodes of offending. The offender has spent 62 days or two months in custody (since 2 December 2023) that are solely referrable to the current offending. His solicitor has invited me, however, to backdate the sentence to an earlier date to account for the period from when he was arrested, 29 November 2022, until the expiry of the balance of his parole. The Crown submitted that the sentence should be backdated to 3 December 2023 to reflect the time in custody solely referrable to the index offending, which would still give effect to the revocation of parole. Having considered the parties' respective submissions, I generally support the Crown's submission on the issue, although I think some modification and credit should be given to the offender for his good behaviour for a substantial part of the period that he has been on parole. As to the question of special circumstances, there was a live issue of risk of institutionalisation. There is some force to both parties' arguments, noting that the offender is still a relatively young man with a substantial period of life expected, but in any event, the offender has demonstrated some prospects of rehabilitation and his treatment is more likely to be enhanced through a longer period than usual on parole. The Crown does not resist a finding of special circumstances and I make that finding."
8. As noted above, his Honour ordered that the sentence commence on 1 October 2023, with the result that approximately two months of the sentence was served concurrently with the balance of parole on the sentence for the earlier offences.
9. It is apparent from the first paragraph of the extract of his Honour's reasons set out above, that his Honour had regard to questions of concurrence and cumulation as between the indicative sentences, for the purposes of arriving at an appropriate total sentence. This is also, of course, apparent in the result. No complaint is made by the applicant in this regard.
10. The applicant's complaint is limited to an asserted failure to apply principles of totality having regard to the earlier sentence. As I have observed, and is more readily apparent from the annexed graph, the commencement date for the sentence was set such that the sentence was made to run partially concurrent with, and partially cumulative on, the applicant's balance of parole.
11. When faced with an offender serving a balance of parole relating to an earlier sentence, the determination of the extent of any concurrency to be allowed with that balance of parole period may be difficult. This is particularly so given the prospect that an offender, but for the new offences, may have remained in the community. Additionally, even if parole was revoked for other reasons, the offender, but for the new offences, may have been allowed to return to the community. Ultimately, the determination involves the exercise of a discretion, exercised in the context of all the circumstance of the case: see Callaghan v R (2006) 160 A Crim R 145; [2006] NSWCCA 58. The discretion is, I note, limited by the operation of s 47(5) of the Crimes (Sentencing Procedure) Act 1999 (NSW), such that in the absence of some other extant non-parole period, the latest date upon which the new sentence may commence is the date upon which it is imposed. Here, the backdating of the sentence for the current offences such that it was to be served at least partially concurrently with the balance of parole was necessarily based on, and therefore took into account totality between the sentence for the earlier offences and that for the current offences.
12. It follows from the above, that in providing for a degree of notional concurrence between the indicative sentences for the current offences, and in backdating the aggregate sentence to achieve a degree of concurrency with the applicant's balance of parole, the sentencing judge applied principles of totality both as between the individual offences being sentenced, and with respect to the earlier sentence. What then is the applicant's complaint under this ground? It is, as I understand it, an asserted failure to have regard to the total period of time the applicant had been subject to the earlier sentence.
13. The applicant points out that he had been continuously subject to a sentence of imprisonment from the commencement of the earlier 9 year sentence. The applicant notes that by the time the current sentence expires he will have been subject to a sentence for a total period of 13 years, 7 months and 11 days. This was described as the "total effective sentence". Viewed in this way the parole period set in relation to the current sentence represents only 14 percent of that total. Correspondingly the period predating the applicant's eligibility for parole on the current sentence represents 86 percent of the total. This percentage, and its departure from the statutory norm, is said to be reflective of error.
14. A difficulty in the applicant's argument is that the ratio of 86 percent to 14 percent does not represent the ratio of a non-parole period to a parole period. Indeed, as set out above, the applicant spent in excess of 23 months at liberty prior to his arrest in relation to the current matters. If that figure is removed from the non-parole period and added to the parole period of the "total effective sentence" described above, the ratio of time in custody to the sum of the time actually spent on parole and the time in the future when the applicant will be eligible for parole, the "effective" non-parole period is approximately 71 percent of the total. In providing this calculation, I do not mean to suggest that doing so is necessary when sentencing in circumstances such as this. It simply serves, in the present circumstances, to illustrate a flaw in the applicant's argument.
15. Another way of looking at the matter is to understand that central to the applicant's argument is his reliance on the fact that he was continuously the subject of a sentence of imprisonment from 20 November 2014, with the result that principles of totality applied as between the earlier 9 year sentence and the sentence for the current offences. Accepting that premise, it must also be accepted that had the applicant's earlier sentence been a fixed term of 6 years with the result that he was released at about the same time, without parole, the same argument would not be available. In other words, on the applicant's argument, there was an entitlement to the application of principles of totality, invoked to require added leniency, on the basis that the applicant was on parole, rather than having been on liberty generally for the period between his release and his rearrest. It is not clear why that should be the case. Of course, in this hypothetical situation the applicant would not have been subject to any balance of parole and could thus have expected a backdate to the date of his arrest. But the point remains that casting the total period from the commencement of the earlier sentence as a total effective sentence, obscures the significance of the intervening period the applicant spent on parole.
16. To be clear, I do not mean to suggest the earlier sentence was not relevant to the sentencing exercise. Questions of totality are, however, affected by questions of fact and degree. Here, the two sets of offences were quite remote from each other, given that they were committed eight years apart and against different victims. The sentencing judge was required to take into account all relevant facts and circumstances. Part of the relevant circumstances was the fact that the current offences were committed while the applicant was on parole, which operated as an aggravating factor, particularly given the similarity in offending. Also relevant and potentially requiring consideration in the applicant's favour was his prior custodial history and the consequent impact of any further sentence on him. The sentencing judge was clearly aware of that history. His Honour took it into account in the passage set out above both with respect to the commencement date of the sentence and the appropriate ratio between the non-parole period and the head sentence. In my view, there is in these circumstances, no foundation to the applicant's complaint.
17. I am of the view that the applicant's sole ground must fail. I propose the following orders: 1. Grant leave to appeal. 2. Dismiss the appeal.

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CCA Ayoub v R - Annexure graph (660129, pdf) 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: 06 September 2024