Bazzi v R

Court of Criminal Appeal (NSW)|2023-12-01|Before: Button J, Weinstein J

The applicant's personal circumstances

As mentioned above, no complaint was made on behalf of the applicant concerning the treatment by the sentencing judge of the evidence of her personal circumstances. It is appropriate to adopt the findings and observations of her Honour.

Post sentence evidence

Against the possibility that this Court might come to re-sentence, additional evidence was admitted. The applicant provided an affidavit, alleging that, while in prison in 2011, she had been sexually assaulted by a male prison officer, who, the evidence established, is now incarcerated for similar offences, and under investigation for others. I would accept that evidence but am not persuaded that it weighs to any significant extent on the determination of the appropriate sentence for the present offences.
Evidence was also filed by the Crown that, while in custody, the applicant has been the subject of five misconduct reports between January 2023 and September 2023.
In all of the circumstances the applicant presents an extremely complex sentencing task. On the one hand, her long history of offending, her persistent drug use, and her apparent mental health issues, confirm the sentencing judge's assessment of her risk of re-offending as "extremely high". On the other hand, again as the sentencing judge found, the applicant's mental health issues make her an inappropriate vehicle for general deterrence.
The applicant is to be sentenced, on 9 counts, taking into account another 7, these last all being offences of dishonestly obtaining a financial advantage by deception by the use of the stolen credit card. Most of the offences involve relatively small amounts. Nevertheless, the persistence of the applicant in offending, together with her lengthy history of offending, leaves no conclusion other than that a sentence of imprisonment must be imposed: Sentencing Procedure Act, s 5.
Notwithstanding the errors in the approach taken by the sentencing judge to the assessment of objective seriousness of the offences other than the s 115 offence, I would also conclude that those offences are "towards the lower end of objective seriousness." That is because, as the sentencing judge observed, they generally involved little if any planning, and the amounts involved were generally not great.
Independently of the sentence arrived at by the sentencing judge, I have come to the view that the appropriate aggregate term of imprisonment is one of 3 years. That also happens to be the sentence arrived at by Button J in his independent assessment. I would specify a non-parole period of 2 years.
Putting out of my mind the sentences indicated by the sentencing judge pursuant to s 53A(2)(b), I have considered the sentences that I would, if sentencing separately for each offence, have imposed. With the exception of the s 115 offence, each is longer than that nominated by the sentencing judge. That being the case, it is appropriate simply to adopt those indicated by her Honour.
As will be clear from the analysis (see [33]-[39], [46]-[59]) above, I would indicate that, had I been sentencing the applicant for the s 115 offence, I would have imposed no term of imprisonment. I would indicate that, pursuant to s 10A of the Sentencing Procedure Act, I would have disposed of that matter without imposing any other penalty.
The orders I propose are:
leave to appeal granted;
appeal allowed;
the aggregate sentence of imprisonment imposed on 2 December 2022 set aside;
in lieu thereof, the appellant is sentenced to imprisonment for 3 years, commencing on 5 July 2022 and expiring on 4 July 2025, with a non-parole period of 2 years, to expire on 4 July 2024.
BUTTON J:

Resolution of two grounds On 2 December 2022, Judge Wass SC sentenced Ms Rania Bazzi (the applicant) to imprisonment for a large number of property offences committed over the course of about 18 months, whilst she was on various forms of conditional liberty. I shall provide the details of that offending later in this judgment. An aggregate head sentence of 3 years 1 month with a non-parole period of 2 years was imposed, to date from 5 July 2022, the head sentence to expire on 4 August 2025, and the non-parole period to expire on 4 July 2024.

During the remarks on sentence, the learned sentencing judge said the following: The objective seriousness of all of the offences are [sic] determined by reference to the following matters: All offences were committed whilst the offender was subjected to some kind of conditional liberty.
Her Honour then proceeded to provide details of that conditional liberty, all of which were adverse to the applicant.
A little later in the remarks it was said, regarding one of the many offences: The objective seriousness though of the s 115 offence is determined by the seriousness of the surrounding two relevant charges but also by reference to the long history of like offending, it sits in my view at about the mid-range for offending of its kind.
Those parts of the remarks have led to the following two proposed grounds of appeal: Ground one: the sentencing judge erred by taking into account, when determining objective seriousness in respect of all offences, that they were committed while the applicant was subject to conditional liberty; Ground three: The sentencing judge erred by taking into account "the long history of like offending" by the applicant when determining objective seriousness in respect of the s115 offence.
Contrary to the submission of the Crown in this Court, reading the remarks as a whole does not permit any reading other than that subjective features pertaining to the offender were taken into account in assessing the objective seriousness of the offending of the applicant. And although I think it quite possible that the way the sentencing judge expressed herself was simply a verbal slip, I also think that the safer course is to uphold both grounds and move to resentence.
I say that appreciating that sentencing is an exercise in instinctive synthesis, and also appreciating that the discussion by this Court in DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 shows that the lines between objective seriousness, subjective features, and the ultimate evaluation of the moral culpability of an offender are inevitably blurred: see the discussion in that case at [64 ff] of cases such as Tepania v The Queen (2018) 275 A Crim R 233; [2018] NSWCCA 247 and Paterson v R [2021] NSWCCA 273.
Even so, as DS v R; DM v R makes clear at [68], the objective seriousness of an offence "operates as a limitation on the appropriate sentence that can be imposed… [in that] a court cannot impose a sentence which exceeds that which is appropriate or proportionate to the gravity of [the] crime"; reference was made there to the decisions of the High Court in Veen v The Queen [No 2] (1988) 164 CLR 465; [1988] HCA 14 and Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33.
In other words, keeping separate objective features of the offending and subjective features - especially adverse ones - of the offender has an important role to play: it ensures that the sentence imposed is not any longer than it can be in reflecting the gravity of the offending under consideration.
As I have said, I would uphold these two grounds.
A further proposed ground was as follows: Ground two: the sentencing judge erred by failing to apply the principles established in Pearce v R (1998) 194 CLR 610 so as to avoid the double punishment of the applicant for the elements common to the s 114 offence and the s 115 offence;
Although it is not strictly necessary to deal with this ground, I think I should address it. That is because what has been found by this Court to be the nature of the offence in s 115 of the Crimes Act 1900 (NSW) is unusual to the point of anachronism and anomaly. The section is as follows: 115 Being convicted offender armed with intent to commit indictable offence Whosoever, having been convicted of any indictable offence, afterwards commits any offence mentioned in section 114, shall be liable to imprisonment for ten years.
The background to the ground is that the applicant had been charged with an offence of entering with intent to commit the indictable offence of larceny, pursuant to s 114(1)(d) of the Crimes Act 1900. That was founded upon an offence committed on 16 June 2022 at a business in Sydney called "Escape Hunt". In a nutshell, the applicant had entered the premises early one morning with the intention of stealing. She completed the offence of larceny by stealing over $1,100 in cash from a drawer in the staff room. She pleaded guilty to both offences, and was sentenced for them by her Honour. On indictment, the offence of entering a building with intent to commit an indictable offence therein carries a maximum penalty of imprisonment for 7 years. The sentencing judge provided an indicative sentence of 6 months for that offence.
Notably, the applicant was also charged with, and pleaded guilty to, an offence contrary to s 115 of the same Act, based very largely upon exactly the same criminality. The only additional aspect was that she had indeed been convicted of an indictable offence before the date of her offending at Escape Hunt, 16 June 2022. That was an offence of breaking entering and committing the serious indictable offence of larceny on 2 September 2018. On that occasion, she had used previously stolen house keys to enter a home, and there stole a gold coloured necklace and bracelet and about $60,000 in cash. On 11 June 2021, the applicant had been convicted of that offence in the District Court, and sentenced to a head sentence of imprisonment for 2 years 3 months, with a non-parole period of 1 year.
Returning to the offence against s 115 under discussion, the sentencing judge provided an indicative sentence of 9 months.
The submission for the applicant accepted that, in the remarks on sentence, the sentencing judge had explicitly and correctly referred to the recent jurisprudence about how to approach s 115 in Darcy v R [2022] NSWCCA 54. In accordance with that decision of this Court, the sentencing judge also referred to the patent overlap in elements of offences between ss 114 and 115; the necessity to avoid double punishment; the fact that concurrence in sentences is not a complete answer to that necessity; that the sentences should not be disproportionate to the criminality demonstrated; that one should not be punished twice for what is truly a single act; and that the imposition of indicative sentences did not relieve her Honour of the responsibility of avoiding double counting.
And yet it was said that the practical solution arrived at in Darcy by Bellew J at [75], with the agreement of Davies J and Beech-Jones CJ at CL (as his Honour then was), to the problem presented whenever an offender is convicted of offences contrary to both s 114 and s 115 arising almost completely from the exact same conduct was to indicate sentences of as little as 2 months for offences against the latter section, despite its maximum penalty on indictment of imprisonment for 10 years.
In the circumstances, the submission was that the indicative sentence provided here of 9 months must be erroneous, especially when seen in the context of an indicative sentence of 6 months provided for the s 114 offence arising very largely from precisely the same conduct.
I respectfully disagree. True it is that the solution proposed in Darcy was the imposition or indication of remarkably short sentences, sentences somewhat shorter than those indicated here. But in this case the indicative sentences themselves were short in any event; the longer exceeded the shorter by only 3 months; and even notional concurrence or cumulation is impossible to discern here, in the context of an aggregate head sentence founded upon a multiplicity of indicative sentences.
I am not persuaded that the approach adopted by her Honour was erroneous in its outcome, especially since no error of principle was identified.
I would not uphold ground two.
Having said that, I respectfully accept that the longstanding analysis of this Court in R v Tillott (1991) 53 A Crim R 46 is to the effect that s 115 does indeed create a separate offence made up of a combination of past and present criminality, founded upon a past conviction and a current offence contrary to s 114. I also accept that that analysis was recently confirmed as correct by this Court in Darcy, although the then Chief Judge spoke of the situation as being "[c]ounterintuitive as it all appears": at [7].
Even so, it seems to me that that kind of offence-creating provision is the voice of the late 19th century (the direct precursor of s 115 appeared in New South Wales in s 110 of the Criminal Law Amendment Act of 1883 (NSW) (46 Vic No 17)) speaking in a way that is discordant with modern sentencing in 2024. It is impossible to reconcile such an offence - based as it is on a previous conviction, for which one was appropriately punished, and a new offence against s 114, for which one will be appropriately punished - with what has been said about not sentencing twice for the same offence (as opposed to two or more offences arising from the same facts) in Pearce v R (1998) 194 CLR 610; [1998] HCA 57 at [49], and the modern approach to autrefois acquit and convict based on avoidance of injustice established in Island Maritime Ltd v Filipowski (2006) 226 CLR 328; [2006] HCA 30. The solution provided by this Court of imposing or indicating trifling sentences for an offence that has a significant maximum penalty suggests that the disjunction between the 19th century and the 21st is extreme.
In my respectful opinion, a more fundamental solution may be that, if a conviction is to be obtained for an offence against s 114, it is very difficult to envisage the circumstances in 2024 in which it could also be appropriate for the Crown to seek a conviction pursuant to s 115 of the Crimes Act.

Resentence

Being of the view that two of the three grounds of appeal against sentence should succeed, I turn to the question of resentence.

Objective features

In short, the applicant committed a series of offences against property, none of them of the utmost gravity, but notable by their number and repetitive modus operandi. The latter included a degree of skill and reflection, not least in disabling security cameras and taking the trouble to enter premises at times when the risk of detection was reduced. Some offences were dealt with substantively, some were taken into account on a Form 1 attached to sequence 16, and one was dealt with on a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW). The following table is based very largely on the helpful one in the written submissions for the applicant, its correctness not having been disputed by the Crown: No. Seq Offence Details Max. Sentence 1 #152/02 Reckless Damage 23/02/21 2y S 10A s 195(1)(a) Crimes Act Carpet urination 2 #152/12 Larceny 23/02/21 5y 4m s 117 Crimes Act Bankstown PS 3 #152/16 Obtain property by deception 23/02/21 10y 9m s 192E(1)(a) Crimes Act Myer 4 #152/10 Obtain financial advantage by deception Taxi ride 10y Form 1 s 192E(1)(b) Crimes Act 5 #152/13 Obtain property by deception Credit card 10y Form 1 6 #152/14 Obtain property by deception Credit card 10y Form 1 7 #152/15 Obtain property by deception Credit card 10y Form 1 8 #152/17 Obtain property by deception Credit card 10y Form 1 9 #152/18 Obtain property by deception Credit card 10y Form 1 10 #152/19 Obtain property by deception Credit card 10y Form 1 11 #152/20 Enter w/intent to commit indictable offence 23/02/21 10y 3m s 114(1)(d) Crimes Act Bankstown PS 12 #236/01 Break and enter w/intent to commit serious indictable offence (larceny) 20/01/21 10y 3m s 113(1) Crimes Act George St Sydney 13 #236/02 In building commit serious indictable offence (larceny) and break out 22/01/21 14y 5m s 112(1)(b) Crimes Act Saigon Pho 14 #236/03 Enter w/intent to commit indictable offence (larceny) 16/06/22 7y 6m s 114(1)(d) Crimes Act Escape Hunt 15 #236/04 Commit s 114 offence having previous conviction for any indictable offence 16/06/22 10y 9m s 115 Crimes Act Escape Hunt 16 #236/05 Larceny 16/06/22 5y 5m s 117 Crimes Act Escape Hunt

The following summary of objective features is derived from the agreed facts on sentence, and largely follows the above order, adjusted for ease of comprehension.
Sequences 2 and 11: In the afternoon of 23 February 2021, the applicant entered the grounds of a public school. She was seen in the office of the deputy principal. She had no legitimate reason to be there, and in truth was there intending to commit an indictable offence. She stole a wallet that belonged to a teacher, and which contained a small amount of cash and a number of credit and debit cards.
Sequence 1 (on certificate): About an hour later, the applicant, in possession of the wallet, entered a sports club. There she urinated on the carpet, for some unknown reason.
Sequences 3 to 10 inclusive: On the same day, the applicant used stolen cards from the wallet to make eight fraudulent charges, the greatest of which was a little over $113. As can be seen, it was to offence 3 that all of the Form 1 offences were "attached".
Sequence 12: On 20 January 2021, the applicant attended at commercial premises in George Street, Sydney. CCTV showed the applicant entering at about 7:45 PM, and trying unsuccessfully to open a number of doors on a particular floor. She returned at 8:20 PM, this time possessing a screwdriver or jemmy bar. She succeeded in forcing open a door, damaging it; confronted by a tenant, she departed.
Sequence 13: A couple of days later, on 22 January 2021, the applicant entered a shopping complex in Sussex Street, Sydney at about 9:40 PM. She walked up to an unoccupied takeaway food restaurant. She jumped the counter, and disabled a CCTV camera. She then forced open a locked drawer and stole $800 in cash. She was identified nevertheless by CCTV.
Sequences 14 and 15: On 11 June 2021, as detailed regarding ground two, the applicant had been convicted of an indictable offence in the District Court. Subsequently, early in the morning of 16 June 2022, as I have said, the applicant entered commercial premises in George Street Sydney known as "Escape Hunt". The business provided a challenge whereby paying customers sought clues in order to escape from a locked room. Having entered, the applicant used a mobile phone for illumination. She disabled a CCTV camera.
Sequence 16: The applicant stole $1136, which was the petty cash for the business. Again, despite her efforts to avoid detection, she was identified by CCTV footage.
As I have said, the offences were not of the utmost seriousness. On the other hand, most of them were not entirely spontaneous, and showed a degree of targeting; many of them would have been disruptive if not distressing to their victims.

Subjective features

Senior counsel for the applicant did not submit that, if this Court came to resentence, any factual findings or evaluative judgments of the sentencing judge, including negative ones, should be revisited (save for the basis of the two grounds I would uphold).
A 25% discount on sentence applied to all offences being dealt with substantively, in light of pleas in the Local Court. I would adopt the same approach on resentence.
All offences were committed whilst on various forms of conditional liberty, including bail and an intensive correction order (ICO). In fact, the applicant continued to reoffend even after having been granted conditional liberty at one stage by the sentencing judge herself. To expand on that a little, she was initially subject to an ICO, which was revoked on 23 March 2021. From 8 December 2021, up until her arrest for the current matters, the applicant was on conditional bail. Certainly, all of that was significantly adverse to the applicant on sentence.
The applicant was born in April 1976, and was therefore aged 46 when sentenced in December 2022, and is now aged 47. She commenced intersecting with the criminal justice system in July 1992, when she was charged with committing a robbery in company at the age of 16. Since that time, she has committed a very large number of offences against property, to my assessment substantially because of psychological problems and a problem with prohibited drugs. As for the latter, her first conviction for an offence of that nature related to August 1996; the last occurred in January 2021. The applicant herself said that "the lifelong association had been with heroin".
She was first imprisoned in June 1997, and since that time has spent many periods in custody, one of which extended from June 2005 until December 2009, and another of which extended from July 2011 until May 2016.
The sentencing judge found that the applicant had told countless lies, many of them readily disproven, and could not safely be believed without corroboration. Having said that, the assertion of the applicant that she was not, in fact, committing these offences in order to fund a drug habit, but rather to deal with various personal financial commitments, was accepted by her Honour.
Although the sentencing judge found that the applicant had lied about her employment, her Honour did accept that the applicant had been helping an older woman in the community, taking her to appointments or picking up essentials when needed. The applicant also spent much of her time aiding her mother with the care of her sister's children. It was noted that the applicant has a close bond with these persons, and a desire to do her best for them.
Although the applicant gave evidence of her strong desire to be both free of drugs and away from the criminal justice system, her Honour found that the evidence "rang hollow" in light of her offending even whilst subject to conditional liberty, and the fact that she had, on the applicant's own account, committed these offences even when she was no longer taking illicit drugs.
Her Honour did not accept that the pleas of guilty evidenced remorse.
The applicant's risk of reoffending was judged to be "extremely high". She had "low prospects of rehabilitation" at the time of sentencing.

Events since sentence

The Court received an affidavit from the applicant of events after imposition of sentence, to be relied upon if the stage of resentence was reached.
She speaks of having been the victim whilst in custody of a serious offence committed by a prison officer, an assertion that I accept on the balance of probabilities. She also speaks of that offending making access to therapeutic programs difficult logistically, and of her efforts to seek treatment for the trauma arising from that offending. Again, I accept those assertions on balance.
An affidavit from her solicitor on the same contingent basis showed that the applicant had made a formal complaint about the offences committed against her in custody. I accept that on balance as well.
An affidavit from a solicitor for the Crown received on the same basis provides an updated picture of the behaviour of the applicant in custody. Since the imposition of sentence in December 2022, the applicant has committed eight offences against prison discipline, resulting in various punishments. Notably, in July 2023 she was dealt with for stealing in prison.

Lesser sentence warranted in law?

In my opinion, the offending of the applicant is underpinned generally by a chronic dependence on prohibited drugs, itself underpinned by psychological problems that are exacerbated by that dependence. The finding of the sentencing judge that, at the time of the commission of the offences under consideration, the applicant was not using drugs may have been, in my respectful opinion, open to contest, not least because the denials of the applicant of drug use at the time possess, in my opinion, little or no probative value.
But even accepting the unimpugned proposition about absence of drug use at the times in question, I assess this repetitive, simplistic, compulsive offending against property as at least indirectly to do with chronic psychological problems and concomitant drug addiction.
Despite the many failures of the applicant in the past, if this Court had been empowered to do so, I would have proposed ascertaining whether the applicant is eligible to be referred to the Drug Court, and whether she would be willing for that to occur: see s 6(2) of the Drug Court Act 1998 (NSW), including the reference to resentence in s 6(3)(b). However, I accept the joint position of the parties that this Court does not have that power, because the regulations do not prescribe it as coming within that section: see s 6(1) of the Drug Court Act 1998, and cl 6 of the Drug Court Regulation 2020 (NSW).
Reflecting then on orthodox resentence: sentences of full-time imprisonment for almost all of these offences are unavoidable. I would not provide indicative sentences less than those provided by the sentencing judge, and would therefore replicate them. For the reasons given above with regard to ground two, that replication includes the indicative sentences for offences 14 and 15.
Reflecting on the aggregate head sentence and non-parole period: in light of the multiplicity of offences, the very adverse criminal record of the applicant, the conditional liberty to which she was subject at the time of the offending, and the prospects of rehabilitation that at best remain very guarded, I would not impose a non-parole period less than that imposed by the sentencing judge.
On the other hand, exercising the sentencing discretion afresh, I would impose an aggregate head sentence of imprisonment for 3 years, with the result that the release of the applicant to parole at the conclusion of the non-parole period will not be a matter requiring the consideration of the State Parole Authority.

Proposed orders

I therefore propose the following orders: 1. Leave to appeal granted. 2. Appeal against sentence granted, and sentence quashed. 3. In lieu, the applicant is sentenced to an aggregate head sentence of imprisonment for 3 years, to commence on 5 July 2022 and expire on 4 July 2025, with a non-parole period of 2 years, to expire on 4 July 2024. 4. The applicant is to be released to parole on 4 July 2024.
WEINSTEIN J: I have read and considered the judgments of Simpson AJA and Button J in draft form. My reading of their Honours' judgments is that they largely agree with respect to the disposition of grounds 1 and 3. I respectfully agree with both their Honours' reasoning and their conclusions.
As to ground 2, I adopt the reasoning and conclusions of Simpson AJA and would uphold that ground of appeal. In particular, I note her Honour's comments that in 1996, some five years after the decision of R v Tillott (1991) 53 A Crim R 46, the NSW Law Reform Commission (NSWLRC) recommended the repeal of s 115 of the Crimes Act 1900 (NSW). Both Simpson AJA and Button J have concluded that s 115 is inconsistent with contemporary sentencing standards, a proposition with which I wholeheartedly agree. The instant case is an example of why the legislature should be reminded of the NSWLRC's recommendation.
On resentence, like Simpson AJA, and for the reasons articulated by her Honour, I would adopt the sentences indicated by Wass SC DCJ save for the indicative sentence for the s 115 offence. Like Simpson AJA, I would have disposed of that matter pursuant to section 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW), i.e. I would have convicted the applicant without imposing any other penalty.
I agree with the orders proposed by Simpson AJA.

Amendments 13 March 2024 - Cover page and paragraph 74 - order 4 amended. 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: 13 March 2024

Crimes Act 1900(NSW)ss 113, 112, 114, 115, 117, 192, 195

Crimes (Sentencing Procedure) Act 1999(NSW)ss 5, 10A, 21A(2)(d), 53A

HEADNOTE [This headnote is not to be read as part of the judgment] On 30 August 2022, Ms Rania Bazzi (the applicant) was arrested and charged with a large number of property offences committed over the lengthy period between 20 January 2021 and 16 June 2022. Each was said to have been committed whilst the applicant was subject to various forms of conditional liberty. One of the offences charged was entering with intent to commit the indictable offence of larceny, an offence contrary to s 114(1)(d) of the Crimes Act 1900 (NSW). The applicant was also charged under s 115 of that Act, which imposed an additional penalty for the criminality contrary to s 114(1)(d) on the basis that the applicant had previously been convicted of an indictable offence. On 2 December 2022, the applicant having pleaded guilty, Judge Wass SC of the District Court imposed an aggregate sentence of 3 years 1 month, with a non-parole period of 2 years. The applicant sought leave to appeal against the sentence imposed by Wass DCJ on three proposed grounds. First, it was said that her Honour's determination of objective seriousness had been erroneous, as the fact that the offences had been committed while the applicant was subject to conditional liberty had been explicitly considered as part of that exercise (ground one). Second, it was submitted that her Honour's consideration of "the long history of like offending" by the applicant in determining the objective seriousness of the offence under s 115 of the Crimes Act 1900 was similarly erroneous (ground three). Third, it was proposed that her Honour erred by failing to avoid double punishment of the applicant for the elements common to the s 114 offence and the s 115 offence (ground two). The Court held, allowing the appeal, and resentencing the applicant to imprisonment for 3 years (with a non-parole period of 2 years): As to ground one, per Simpson AJA and Button J (Weinstein J agreeing): 1. The natural reading of the remarks on sentence indicates that the sentence judge did inadvertently allow the applicant's status of being subject to conditional liberty affect her Honour's determination of the objective seriousness of the offences. This was an error: [24], [81]. 2. Though the fact that an offence was committed whilst the applicant was on conditional liberty was undoubtably a mandatory consideration for the sentencing judge, such a fact does not bear upon the assessment of objective seriousness: see [23], [83]-[84], [132]. 3. As to ground three, per Simpson AJA and Button J (Weinstein J agreeing): 4. To consider prior offending in an assessment of the objective seriousness is to risk imposing additional punishment for offences for which an offender has already been punished: [28], [132]. 5. The applicant's criminal history does not bear upon the objective seriousness of her offending and should have been considered separately: [28], [84], [132]. As to ground two, per Simpson AJA (Weinstein J agreeing): 1. In effect, the offence created by s 115 Crimes Act 1900 is an offence of recidivism; an offence with no actus reas, or mens rea, and completely dependent on the criminality of the offending under s 114 and of the offence of which the offender has been convicted in the past: [38]. 2. Section 115 exposes the already punished offender to a further penalty of imprisonment for up to 10 years, in effect doubly punishing that offender. This is inconsistent with prevailing sentencing standards, and long-held and well-established concepts of justice, which reject double punishment: [39]-[40]. Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57; Darcy v R [2022] NSWCCA 54 at [7], [50]; R v Tillott (1991) 53 A Crim R 46 at 53, considered. 1. If the s 115 offence were to be charged as a separate offence, it would be inappropriate to impose any penalty. It would be equally inappropriate, in dealing with a s 115 offence as part of an aggregate sentence, to indicate any sentence as that which would have been imposed: [58], [133]-[134]. 2. Ground two upheld, and s 10A disposition indicated: [58], [135]. As to ground two, per Button J (providing reasons in dissent): 1. In accordance with the solution proposed in Darcy v R, the indicative sentence of 9 months provided for the s 115 offence was sufficiently short: [93]. 2. The solutions provided by the Court previously of imposing, or indicating, trifling sentences for charges under s 115, an offence that carries a significant maximum penalty, suggests that the disjunction between the offence-creating provision in the 19th century and sentencing principles of today is extreme: [98]. 3. A more fundamental solution was proposed: if a conviction is to be obtained for an offence against s 114, it is very difficult to envisage the circumstances in 2024 in which it could also be appropriate for the Crown to seek a conviction pursuant to s 115 of the Crimes Act 1900: [99].

Ground 1

It is well established that an assessment of the objective seriousness of an offence is an essential component of the sentencing exercise. That is, if for no other reason, because: "…a sentence should not exceed that which is appropriate to the gravity of the crime considered in the light of its objective circumstances. In other words, the punishment must fit the crime": Veen v The Queen [No 2] (1988) 164 CLR 465 at p 486, per Wilson J; cited in Hoare v The Queen (1989) 167 CLR 348 at 354 [1989] HCA 33; McNaughton v R (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [15]
That an offence is committed whilst the offender is on conditional liberty is a relevant, and, indeed, a mandatory, consideration for sentencing purposes: Sentencing Procedure Act, s 21A(2)(j). It is relevant, at least, to the assessment of moral culpability and prospects of rehabilitation. But it does not bear upon the assessment of the objective seriousness of the offence, and it is necessary that sentencing judges guard against its intrusion into that assessment, in order to ensure that the sentence is not inflated beyond what is "appropriate to the gravity of the crime considered in light of its objective circumstances".
The natural reading of the passage of the remarks on sentence extracted above at [16] persuasively demonstrates that, in this case, the sentencing judge did inadvertently allow the applicant's status as at conditional liberty to affect the assessment of objective seriousness of the offences other than the s 115 offence.
The Crown argued, however, that, when the remarks on sentence are read as a whole, the inclusion of the word "objective" in the passage cited above was no more than an unfortunate slip of the tongue, evidenced by the ultimate assessment that all of those offences were toward the lower end of objective seriousness. The Crown cited the decision of this Court in McGuiness v R [2021] NSWCCA 80 as an example of a case where, notwithstanding an observation by the sentencing judge that "each principal offence is additionally aggravated by the fact that [the offenders were] on parole", this Court held that "on a fair and not overly critical reading" of the relevant passages of the sentencing remarks, it did not appear that the circumstance that the applicant in that case was on conditional liberty affected the assessment of objective seriousness.
Obviously, in every case, this Court must interpret the remarks on sentence as a whole. In my opinion, in this case, the conclusion cannot be avoided that the sentencing judge took into account, in the assessment of objective seriousness of all offences other than the s 115 offence, that the applicant was on conditional liberty. That is so notwithstanding the ultimate assessment that all of those offences were "toward the lower end of objective seriousness". Such an assessment, while adequate, is too imprecise to throw any light on any effect that irrelevant consideration may have had.

Ground 3

Similarly, in the determination of the objective seriousness of the s 115 offence, the sentencing judge expressly took into account "the long history of like offending", and assessed the offence as "at about the mid-range of offending of its kind". Again, while a history of offending is a relevant, and, pursuant to s 21A(2)(d) of the Sentencing Procedure Act, a mandatory and aggravating sentencing consideration, it does not, for the same reasons given above in relation to ground 1, bear upon the objective seriousness of an offence, and must be kept separate from that assessment. To take prior offending into account in the assessment of objective seriousness is to risk imposing additional punishment for offences for which the offender has already been punished. Moreover, as a history of prior offending is to be taken into account as part of the personal circumstances of the offender, to include it in the assessment of objective seriousness is to double count an aggravating factor.
The Crown again argued that the remark could not be read in isolation from the remainder of the sentencing remarks, and pointed out that the sentencing judge gave a detailed account of the circumstances of the s 114(1)(d) offence, which was an integral part of the s 115 offence.
That may be so, but, as will be seen below in the consideration of the proposed ground 2, s 115 presents what may be unique issues for sentencing purposes. It was particularly important in relation to that offence that irrelevant considerations such as the applicant's "long history of like offending" be excluded from the assessment of objective seriousness.
I would, accordingly, also uphold ground 3.
The consequence of my conclusions that error in the sentencing process has been established is that the leave to appeal sought should be granted, the appeal allowed and that this Court must proceed to re-exercise the sentencing discretion: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. That makes it strictly unnecessary to determine ground 2. However, the ground raises issues of some importance concerning a rarely used but difficult provision. It will, in any event, be necessary, in the resentencing exercise, to consider the application of s 115.

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