SWEENEY J: Justin Campbell, the applicant, seeks leave to appeal against the aggregate sentence imposed upon him by Judge Turnbull SC in the District Court at Orange on 18 February 2022.
He was sentenced for three offences. One was an offence of detaining with the intention of obtaining an advantage, in circumstances of aggravation, occasioning actual bodily harm to the victim during the detention, contrary to s 86(2)(b) Crimes Act 1900 (NSW) with a maximum penalty of 20 years imprisonment. The indicative term, with a 25% discount for an early guilty plea, was 4 years 2 months imprisonment.
There were two offences which had come to the District Court on a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW). They were destroying property, a mobile phone, contrary to s 195(1)(a) Crimes Act and knowingly contravening an Apprehended Domestic Violence Order (ADVO), contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), with maximum penalties of 5 years and 2 years imprisonment respectively, but a jurisdictional limit of 2 years applied. The indicative terms, with the 25% discount, were 6 months imprisonment for destroying the phone and 16 months imprisonment for breaching the ADVO.
The aggregate sentence imposed was 5 years and 4 months imprisonment, with a non-parole period of 3 years and 4 months, commencing on 4 February 2021.
The applicant relies on two grounds of appeal:
1. The sentencing judge erred in finding that the victim had sustained PTSD and other long-term consequences as a result of the offending.
2. The sentencing judge erred in finding that the offence of contravene a prohibition/restriction in the ADVO was "towards the upper end of the range of objective seriousness".
None of the other findings by the sentencing judge were challenged.
[2]
The Remarks on Sentence
I summarise the parts of the sentence relevant to the grounds of appeal from his Honour's Remarks on Sentence and from material before his Honour in the sentence proceedings. His Honour delivered his ex tempore sentencing judgment shortly after the sentencing hearing was completed.
The sentence proceeded on Agreed Facts, which his Honour recounted. The victim of the three offences for sentence was Kelly Hughes. As his Honour noted, the applicant and Ms Hughes had been in a relationship for about seven months. On 24 July 2020 they were out together. At about 10:50pm, they went to the applicant's home, where they had some drinks and played pool.
Shortly after 1:30am the applicant saw a message on Ms Hughes' phone from another man. He became angry and accused her of cheating on him (although he later told a psychiatrist he did not consider that he and Ms Hughes were in a committed relationship). He walked over to her and punched her to the right side of her head, which caused immediate swelling and an "egg" shaped formation on her head.
Ms Hughes asked the applicant to return her phone, which he had. He smashed the phone on the corner of the pool table and the screen of the phone shattered. That was the offence of destroying the phone.
The applicant punched Ms Hughes to the ribs, which winded her and caused her to keel over. As she tried to straighten up her body, the applicant punched her twice to her stomach and called her a "cheating dog". The applicant told Ms Hughes to sit on the lounge and that she was not to leave. She sat on the lounge. The applicant spat on her and threw a drink on her. He said to her "you are not going to leave this house alive". He said if he let her go, she would "dog" him to the police.
The applicant then questioned Ms Hughes about their relationship for about half an hour. At some point he went to the kitchen. Ms Hughes seized the opportunity to escape. She ran to the front door, unlocked it and ran outside, calling out for help.
The applicant chased her. He caught her at the top of the driveway and dragged her back down the driveway, causing one of her shoes to come off. As the applicant pulled Ms Hughes down the driveway she took hold of a Colorbond fence. She cut her hand on the fence. The applicant hit her and she fell onto the concrete, grazing her knees and feet.
The applicant pulled Ms Hughes from the ground. She felt she had no choice but to return inside. Her hand was bleeding. The applicant took hold of her hair and slapped her face three or four times.
Ms Hughes told the applicant she wanted to clean the blood from her hand and went to the bathroom. The applicant followed her in. He hit her another four times to the face. He said he was going to get a knife and kill her and walked out of the bathroom. Ms Hughes shut and locked the door. She opened the bathroom window, kicked the screen out and climbed out of the bathroom window. She heard the applicant calling out to her, calling her a "dog" and telling her she needed to come back. She jumped from the window and went to a neighbour, and police were called. It was now 6:30am.
Police attended and spoke with Ms Hughes. They saw bruising to her face and blood on her hands. She was crying and told police she had sore ribs.
She was treated at hospital, where her injuries were noted to be: tenderness to her right temple, forehead, and cheek, her left cheek and right upper arm and thigh, superficial abrasions to her feet and left knee, and lacerations to her index and ring fingers. She received four sutures to her index finger and two to her ring finger.
His Honour observed of Ms Hughes' injuries:
"… they are clearly actual bodily harm. The nature of the physical injuries are certainly not at the most profound end of the range; nonetheless, the cuts are significant, as will become evident when I touch upon her Victim Impact Statement, and have had ongoing consequences".
His Honour then recited the facts of the offence of contravening the ADVO. He noted that police obtained an ADVO to protect Ms Hughes, and served it on the applicant. It included a condition that he not contact Ms Hughes.
The applicant sent Ms Hughes a number of messages, beginning on 27 July 2020. The first said, "Don't put up with me then. Go snitch me out then. Be a dog. See what happens".
On 28 July Ms Hughes sent the applicant a message saying she had stood by him when he was in hospital but he had "put [her] in… bruised and bashed". He replied, "I'm sorry. I know you've been there for me. What do I have to do so you don't rat me out?" On 29 July the applicant sent Ms Hughes a message: "I cannot take back what happened, but I can promise I'll make it up to you".
On 30 July he sent further messages:
"I was fucked up on drugs; it wasn't me"
"Plzzz"
"Kelly don't do this plz"
Pictures of his daughter
"Plz don't do this, plz"
"One mistake isn't worth three years in gaol"
"I'll go to rehab"
"I'll do like 2 to 3 years of gaol"
Pictures of his daughter and her room.
The next day he sent further messages saying that he loved her, that he was going to gaol, that "Family does not rat family out" and asked her to delete the messages he was sending her. He offered her $20,000 to "keep her mouth shut".
In assessing the objective seriousness of the aggravated detaining offence his Honour noted the relevant factors were the period of detention, the person being detained, and the purpose and circumstances of the detention, in accordance with R v Newell [2004] NSWCCA 183.
His Honour took into account the detention period of about five hours in the early hours of the morning between 1:30am and 6:30am. He took into account the "dating" relationship of about seven months between the person detained and the applicant, noting that "the relationship was not so committed as to preclude other friendships and relationships… They were not cohabiting." His Honour noted that when the offence occurred Ms Hughes was isolated in the applicant's home. There were ongoing serious assaults during the detention. Ms Hughes was prevented from escaping, "dragged back in the dead of night to the [applicant's] house". He continued to pose a threat and act violently. The detention did not end because the applicant relented, but only when Ms Hughes escaped.
His Honour found the purpose of the detention was "unfounded jealousy, a quick temper and a desire to control and subjugate the victim". He interrogated her and then deployed violence. "He asserted physical control over her and engaged in humiliating and offensive physical and verbal conduct". He seemed "enraged by her defiance", and desired to punish her for her "attempts to escape" and her "apparent recalcitrance in accepting his… clearly… illegitimate concerns as… valid".
His Honour stated that a relevant consideration in assessing the objective seriousness was to consider the extent of the injuries inflicted. His Honour said:
"… whilst they are injuries that generally fall towards the lower end of the range of actual bodily harm, the injuries to the fingers and the scarring are going to last a lot longer than the grazes and bruising.
Of course, it is important to ensure that I recognise, notwithstanding the long-term effect of the injuries, that I am dealing with actual bodily harm. There are also significant emotional injuries… Those emotional injuries… are made clear by [the] Victim Impact Statement… It was received without objection".
I interpolate that not only was the Victim Impact Statement, his Honour's treatment of which is the subject of ground 1, received without objection by counsel for the applicant in the proceedings before his Honour, but then counsel for the applicant made no submissions, written or oral, to his Honour about the Victim Impact Statement, other than that counsel noted that during his evidence in the sentence proceedings the applicant had "acknowledged that the damage to the victim went further than the mere bruises or the injuries that she suffered". His Honour remarked "The psychological aspect" and counsel responded "That's correct, your Honour".
[3]
The breach of AVO offence
Of the breach of AVO offence, which is the subject of ground two, his Honour said the following:
"I can only say that, in my view, this ongoing conduct is apparently manipulative and would, no doubt, have been quite chilling in light of what had preceded it, and indeed, in the face of an Apprehended Violence Order, is a flagrant and blatant breach, and then the offering of an amount of money to keep her mouth shut is sinister indeed; no doubt frightening and again, a substantial and clear breach." (ROS 8).
"What followed thereafter in terms of a domestic violence offence is also very serious indeed. It is clear that an aspect of the conduct can be said to be an attempt to deflect responsibility and protect himself from the consequences of his own actions.
I do not go beyond that in terms of my assessment; however, the words utilised, and the threats made, to my mind, belie his indication that he provided the complainant with any kind of real apology.
It seems to me that the contact was in the face of his requirements under the AVO, and the kind that was barefaced, especially given that he had been subject to similar orders in the past, as is now evident from a perusal of his record. Indeed, his conduct towards his ex-partner had only been dealt with by way of a prison term shortly before this offending.
The complainant having endured what she did that night, and seemingly having been provided with the protection of the authorities in an order, must have been - I comfortably find this - absolutely terrified to then receive a text of this sort, and no doubt felt completely powerless.
It does not seem to me that the offender was then, or in the past has been, deterred at all by these orders... " (ROS 17-18).
"… I consider it to be a serious example of a breach of an AVO, and accordingly, it will be reflected by way of some substantial accumulation in the… aggregate sentence" (ROS 1).
"The maximum penalties are reserved for offences which fall into the worst category of offending of the type which has been criminalised, as I have indicated, in relation to the Apprehended Domestic Violence Order breach, I consider that to be one that falls towards the upper end of the range of objective seriousness... " (ROS 2).
"I just want to make it clear that, in my view, the breach of the AVO is significant, and I am just going to, being an ex tempore judgment, I am just going to deal with that. The penalty that is indicated is a high one, and I am also going to ensure a significant degree of accumulation, because, if anything is to be ensured here, it is that, specifically, this man, and generally the community, understands that breaches of AVO's are dealt with and seen by the courts to be serious; and this really is a flagrant breach, given the terror that he has inflicted, which is then compounded by his disregard for the protective order that was then put in place" (ROS 22).
[4]
Applicant's submissions on ground 1
Counsel for the applicant referred to the provisions of ss 26-30F of the Crimes (Sentencing Procedure) Act 1999 (NSW) in respect of the receipt of Victim Impact Statements in sentence proceedings, but repeated the remarks of Basten JA in R v Thomas [2007] NSWCCA 269 at [36]-[37] that the Act does not provide guidance as to how such statements are to be taken into account and used in determining sentences.
Counsel accepted that this Court has held that a Victim Impact Statement can be used to identify and establish that a victim suffered "substantial harm": Culbert v R [2021] NSWCCA 38 at [119]-[120]. To be "substantial", the harm must be shown to be greater than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26]; R v Tuala [2015] NSWCCA 8 at [64].
Counsel submitted the contents of a Victim Impact Statement may entitle a sentencing court to find that some psychological damage was caused, but in the absence of any medical evidence, it would not be open to make a qualitative or quantitative assessment of the extent of the harm, relying on RO v R [2013] NSWCCA 162 at [90]-[91]. Counsel submitted that although sentencing courts are entitled to proceed on the basis that certain offences can be expected to have adverse psychological consequences, care must be taken to avoid double counting the aggravating feature of substantial emotional harm: Stewart v R [2012] NSWCCA 183 at [61] and to avoid offending the principle in The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31.
Counsel submitted as follows. The sentencing judge purported to make a finding that the victim was suffering from PTSD and also made a finding that she had ongoing issues with her finger. As both facts were adverse to the applicant, they needed to be established beyond reasonable doubt. The sentencing judge was not an expert and was not entitled to diagnose the victim with a serious psychiatric condition. The sentencing judge went beyond making comments about the psychological consequences of the offending by making a finding of psychiatric harm, without evidence, which was in addition to the actual bodily harm consisting of physical injuries suffered during the detention. As to the issues relating to the victim's finger, there was no evidence as to the actual damage caused to the finger apart from the Agreed Facts. A finding that the victim had sustained long-term consequences to her finger and psychiatric injury elevated the seriousness of the offending. The sentencing judge exceeded the bounds of appropriate comment on the Victim Impact Statement by making actual findings of harm, including psychiatric harm, which went beyond "loose language" in an ex tempore judgment to a "looseness of fact-finding". The findings were made for the sentencing purpose of recognising the harm done to the victim of the crime and must have had an upward effect on the sentence imposed.
[5]
Crown submissions on ground 1
The Crown submitted that the Victim Impact Statement was admitted without objection and no submission was made to his Honour about the weight to be given to, or the use to be made of, the Victim Impact Statement in the sentence. The Crown submitted that his Honour observed that the sentence needed to recognise the harm done to the victim of the crime, in accordance with s 3A(g) Crimes (Sentencing Procedure) Act, and summarised the actual harm to the victim from her Victim Impact Statement; and that his Honour did not make a separate finding that informed the actual bodily harm suffered as a result of the offence or find that the offence was aggravated because the injury or emotional harm occasioned to the victim was substantial.
The Crown relied on the comments of Simpson J (as her Honour then was) in Tuala at [79] (Ward JA and Wilson J agreeing): "Where the [Victim Impact] Statement tends to be confirmatory of other evidence... or where it attests to harm of the kind that might be expected of the offence in question, there is little difficulty with acceptance of its contents", and of Button J (Bell CJ and Garling J agreeing) in O'Brien v R [2023] NSWCCA 41, that even if one excluded the Victim Impact Statement from consideration of psychological harm to a victim, significant psychological harm from a kidnapping could be "safely inferred after a moment's reflection" (on the facts in that case) and, the Crown submitted, on the facts of the detention in this case, so that it was open to the sentencing judge to accept the contents of the Victim Impact Statement.
The Crown sought to distinguish RO, not as authority that in the absence of any medical evidence it would not be open for a court to make a qualitative or quantitative assessment of harm, but because in that case there were other causes of the victim's mental state than the offence for sentence. The Crown submitted that in this case there was no suggestion of other causes for the victim's psychological issues, nor did the sentencing judge make a quantitative finding.
The Crown submitted that the sentencing judge did not find that the victim's ongoing issues with her finger "elevated the seriousness of the offending", but rather was careful to note that notwithstanding the long-term effects of the injuries he was dealing with actual bodily harm.
The Crown submitted that his Honour's statement that the victim "clearly suffers from PTSD" must be read in light of it being contained in ex tempore sentencing remarks, which should be read "fairly as a whole and not with minute scrutiny in a search for error", in accordance with Hawat v R [2020] NSWCCA 121 per RA Hulme J and the cases cited therein.
The Crown submitted that when the Remarks on Sentence are read fairly as a whole, it is plain that the sentencing judge was not diagnosing the victim with PTSD to elevate the extent of the harm suffered by the victim and thus the sentence imposed, but used it as a shorthand description of the symptoms described by the victim in her Victim Impact Statement, which his Honour then summarised. Therefore, the Crown submitted, the sentencing judge did not err in the manner in which he had regard to the harm suffered by the victim.
[6]
Consideration of ground 1
Both parties accepted the approach to be taken to ex tempore sentencing remarks, as stated by RA Hulme J in Hawat, that "Remarks on Sentence must be read fairly as a whole, and without engaging in an unduly critical textual analysis of a minute scrutiny in the search for error". More recently in Chan v R [2023] NSWCCA 206 Rothman J said: "Remarks on Sentence should not be construed minutely and finely with an eye keenly tuned to the perception of error: Minister for Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Nor should the Court be concerned with "looseness of language" nor "unhappy phrasing". Such an approach is even more warranted where the remarks are provided ex tempore": [16]. But his Honour also stated: "An accused is entitled to be satisfied that the sentence imposed... is imposed in accordance with law. To the extent that an ambiguity of such moment reasonably arises, it is necessary for the Court to deal with it": [18].
Judge Turnbull SC did not double count the emotional harm to the victim of the offence, nor did he treat it as substantial and therefore a statutory aggravating factor.
His Honour did not make additional findings of actual bodily harm, either in respect of the injuries to Ms Hughes' fingers or the psychological harm she suffered as a result of the offence of being detained and actual bodily harm being inflicted on her in the course of that detention. His Honour expressly stated he was aware he was dealing with actual bodily harm and he was dealing with the harm done to the victim from the offence of being detained and occasioned actual bodily harm, as was required of him.
As to the injury to Ms Hughes' finger, actual bodily harm has been defined to mean "any hurt or injury calculated to interfere with the health or comfort of the victim; it need not be permanent, but must be more than merely transient or trifling": R v Donovan [1934] 2 KB 498 at 509. It is less than grievous bodily harm, defined as really serious physical injury: DPP v Smith [1961] 1 AC 280. The differences between them are a matter of degree: R v Overall (1993) 71 A Crim R 170. However, I can find no authority to the effect that cuts to fingers, which constitute actual bodily harm, cannot have consequences which persist, in this case for about 16 months until the sentencing proceedings. That does not elevate actual bodily harm, and his Honour did not so find.
As for the emotional harm done to the victim of the crime, and the impugned finding by his Honour that "she clearly suffers from PTSD", his Honour recited the contents of the Victim Impact Statement, which were not objected to and which appeared to flow from the offences, particularly the detention offence, but for the one statement "She clearly suffers from PTSD". Was that loose language in an ex tempore judgment or an improper finding by labelling or diagnosing the symptoms described by the victim without expert evidence? I have concluded his Honour did overstep the boundary between loose language and a finding for which there was not a proper basis before him. It cannot be said that that labelling or finding did not affect the exercise of his Honour's sentencing discretion in relation to the indicative term for the detaining offence and the ultimate aggregate sentence. It is clear from a reading of the sentencing remarks that his Honour regarded the harm done to the victim as a significant factor in sentencing the applicant, even though ultimately his Honour assessed the objective seriousness of the detention offence as "high in the low range or low in the mid range of objective seriousness". Ground 1 is made out in respect of his Honour's finding that the victim suffered from PTSD.
I turn now to ground 2 in respect of the breach of ADVO offence.
[7]
Submissions of the applicant in respect of ground 2
I have referred above to his Honour's remarks about the breach of ADVO offence throughout his sentencing remarks.
Counsel for the applicant accepted that the assessment of the objective seriousness of an offence is classically or quintessentially within the role of the sentencing judge: Mulato v R [2006] NSWCCA 282 per Spigelman CJ and Simpson J. However, counsel submitted that the characterisation of the objective seriousness of the breach of AVO offence as towards the upper end of the range of objective seriousness was not open on the evidence.
Counsel submitted that the number of text messages constituting the offence was small, and that his Honour erred in describing the messages as chilling, sinister, frightening or terrifying when there was no evidence of the victim experiencing any of those emotions on receipt of the messages.
Counsel submitted that his Honour erred in that his assessment of the objective seriousness of the offence was informed and infected by consideration of the applicant's recent criminal history, including that he had been subject to similar orders in the past.
Counsel submitted that when the 25% discount was added to the indicated sentence of 16 months imprisonment, the starting point was around 20 months, against a maximum penalty of 2 years. Counsel submitted that the indicative sentence was manifestly excessive and affected the aggregate sentence.
[8]
Crown submissions on ground 2
The Crown submitted that the sentencing judge's assessment of the objective seriousness of the breach ADVO offence was open to him, having regard to the timing of the messages, soon after the detention and almost immediately after the order was made, the number of messages over a number of days and the content of the messages. The Crown accepted that to avoid breaching the principle in De Simoni, she could not rely on the content of the messages which would constitute offences of intimidation or suborning a witness.
The Crown submitted that his Honour did not impermissibly take into account the applicant's criminal history in assessing the objective seriousness of the offence, but used it to give a context to the applicant's knowledge, of which he gave evidence in the sentence proceedings, that the order did not permit him to contact Ms Hughes.
The Crown submitted that the sentence, with its starting point of about 21 months before discount, encompassed not only the assessment of objective seriousness, but the applicant's criminal history and the need for general and specific deterrence, given that this was the fourth time he had been sentenced for breaching an ADVO.
[9]
Consideration of ground 2
It cannot be said that his Honour's assessment of the objective seriousness of the offence was not open to him given that the text messages began soon after the detention conduct, soon after the order had been made for the protection of the victim of the detention, and they persisted over a number of days. The contents of the messages which threaten, intimidate or seek to influence Ms Hughes to not be a witness against him cannot be considered to the extent that to do so would breach the principle in De Simoni.
I am not persuaded that his Honour erred by taking into account the applicant's previous domestic violence offending in assessing the objective seriousness of the offence. A fair reading of that part of his Honour's Remarks on Sentence reveals that his Honour's comment that the applicant's contacting of Ms Hughes was "barefaced" in the face of the requirements of the ADVO, especially given he had been subject to similar orders in the past, was a matter which his Honour took into account as demonstrating the applicant's knowledge of what was required to comply with the ADVO and not breach it.
The objective seriousness of the offence was one factor in determining the sentence. Other relevant factors were that the offence was committed in breach of an ICO for an offence of breaching an ADVO made for the protection of a previous partner, and his record showed that over the previous 10 years he was a repeat domestic violence offender. His Honour found that the applicant had not been deterred by the ADVO on this occasion and in the past, which was relevant to a finding of the need for specific deterrence in sentencing him. His Honour also found that there was a need for the sentence to reflect general deterrence. In the light of the frequency of such offences, the community's attitude to such offences, and the duty of the sentencing judge, that cannot be gainsaid. I am not satisfied that specific error has been demonstrated, or that the indicative sentence, whilst high, was manifestly excessive. Ground 2 is not made out.
[10]
Resentencing
Error having been established in respect of ground 1, it is necessary for this Court to re-exercise the sentencing discretion. Section 6(3) of the Criminal Appeal Act 1912 (NSW) provides:
"(3) On an appeal under section 5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.
The High Court in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]-[43] described the task of this Court:
"[42] When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the [Sentencing Procedure Act], and any other Act or rule of law, require or permit…
[43] After having identified specific error of the kind described in House, the Court of Criminal Appeal may conclude, taking into account all relevant matters, including evidence of events that have occurred since the sentence hearing, that a lesser sentence is the appropriate sentence for the offender and the offence. This is a conclusion that that lesser sentence is warranted in law. The result of the Court of Criminal Appeal's independent exercise of discretion may be the conclusion that the same sentence or a greater sentence is the appropriate sentence. In neither case is the Court required to re-sentence. Nor is the Court required to re-sentence in a case in which it concludes that a lesser sentence is appropriate for one or more offences, but that a greater sentence is appropriate for another or other offences, with the result that the aggregate sentence that it considers warranted in law exceeds the aggregate sentence that is the subject of appeal…".
In Turnbull v R [2019] NSWCCA 97 and RO v R [2019] NSWCCA 183, this Court made clear, Beech-Jones J (as his Honour then was) in RO agreeing with the statement of Simpson AJA in Turnbull, that where error has been established, the duty of the Court to exercise an independent sentencing discretion is not discharged merely by adopting the sentence imposed at first instance and concluding that "no lesser sentence is warranted in law".
Therefore I put aside the sentences imposed by the sentencing judge. I note that for the purpose of resentencing, the applicant does not dispute the findings made by the sentencing judge other than those challenged by his grounds of appeal.
The Crown submitted that in resentencing the applicant, the Court should form its own view as to the objective seriousness of the aggravated detaining offence, submitting that his Honour's characterisation of the offence as being "high in the low range or low in the mid range" understates the objective seriousness of the offence. Counsel for the applicant did not address this point during the appeal. Therefore I do not propose to make a different assessment of the objective seriousness of the offence from his Honour.
In the resentencing exercise I take into account the contents of the affidavits of Pip Hill of 15 August 2023 and 17 August 2023 and of the applicant sworn 17 August 2023, which were read on the usual basis in the event of the Court having to resentence the applicant.
I take into account the maximum penalties for each offence, the agreed facts of each of the offences, the assessment of objective seriousness as assessed by his Honour, the contents of the Victim Impact Statement, that the offences were committed in breach of an ICO for offences of breaching an AVO and intimidation of a previous domestic partner, the applicant's prior history of domestic violence offending, and the applicant's subjective circumstances, including those matters from his Honour's Remarks on Sentence referred to earlier in this judgment, the other factors of the applicant's personal circumstances which his Honour took into account but which are not recited in this judgment and the material referred to in the affidavits about the applicant's behaviour in custody, work in custody, and the programs and treatment he has undertaken in custody. I apply the 25% discount for the applicant's early pleas of guilty, and take into account the totality of the applicant's conduct in the three offences.
Having undertaken that exercise, the indicative sentences and the aggregate sentence I have reached are not less than the sentences indicated and the aggregate sentence imposed by Judge Turnbull SC. In those circumstances it is unnecessary to state the indicative sentences I arrived at: RO v R [2019] NSWCCA 183. Therefore, I would grant leave to appeal and dismiss the appeal.
[11]
Orders
I propose the following orders:
1. Leave to appeal granted.
2. Appeal dismissed.
[12]
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: 11 October 2023
In his Remarks on Sentence his Honour said the following about the Victim Impact Statement:
"I note that, as I must under section 3A, in relation to imposing a penalty… I have to reflect the need to recognise the harm done to the victim of the crime.
It is clear that she has... ongoing issues with her finger. She cannot straighten it. It is sensitive where the stitches are. It impedes her ability to do daily chores and as well, has now led to the ending of her career as a barista.
She clearly suffers from PTSD; she is fearful that the offender will come after her again. That is certainly not surprising, given his defiance of the AVO. She is triggered by aggression and yelling, and, indeed, ambulance and police vehicles trigger her memory.
She has difficulty trusting people, especially men...
She has flashbacks. She has emotional outpourings; again, which are typical of the consequences of this kind of quite horrific experience and PTSD. Her confidence is shattered."
His Honour said:
"This is a domestic violence offence. General deterrence and denunciation must be given significant weight in the sentencing for matters of this sort"
and
"... domestic violence towards partners is to attract a sentence of sufficient severity to deter others who might offend in a similar way. General deterrence looms large."
His Honour said that there was no relevant psychiatric or psychological condition related to the offences and the applicant's moral culpability.
His Honour noted the applicant had a "substantial criminal record", which his Honour found disentitled him to leniency and also demonstrated that his behaviour in the offences for sentence was "not aberrant behaviour", and that his "established misbehaviour towards women, and in one instance his father in a domestic situation, [is] informative of his moral culpability here".
His Honour noted from the applicant's record that he was first fined for an offence of assault in 2010. In 2010 there was another assault, of his father, and a breach of an AVO, for which he received a suspended sentence, which he breached and so served time in prison. In 2011 he was imprisoned for an assault occasioning actual bodily harm, a domestic violence offence, with a related property damage offence. In 2014 there were two breaches of an AVO, and an assault. In 2019 there was a further offence of breaching an AVO. In 2020 there were offences of breaching an AVO and intimidation in relation to his previous partner, for which he was sentenced to an Intensive Correction Order (ICO). His Honour noted that the offences for sentence occurred when the applicant was about two months into serving that ICO for those offences against his ex-partner, an aggravating factor on sentence.
His Honour noted as a "countervailing aspect" that the applicant had grown up suffering violence from his father, which "social deprivation... in his formative years", his Honour gave weight to as a mitigating factor and bearing on his moral culpability, in accordance with Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. However, his Honour expressed the view that his conduct was serious and his level of culpability remained significant.