Christou v R

Court of Criminal Appeal (NSW)|2020-06-05|Before: Meagher JA, Wilson J, Adams J

Judgment

MEAGHER JA: I agree with the orders proposed by Wilson J and her Honour's reasons for the making of those orders. Like her Honour, I am not persuaded that in the face of the objective seriousness of the two offences the sentencing judge's discretion miscarried.
WILSON J: On 13 February 2019, the applicant, Henry Christou, was sentenced by His Honour Acting Judge Delaney in the District Court at Parramatta for one offence of take and detain to obtain an advantage occasioning actual bodily harm ("take and detain"), and a further offence of recklessly causing grievous bodily harm ("reckless GBH", or "GBH"). His Honour imposed an aggregate sentence of 8 years and 3 months imprisonment, with a non-parole period ("NPP") of 6 years. The sentence commenced on 16 August 2017, and expires on 16 November 2025; the NPP expires on 15 August 2023.

The Proceedings before the District Court

The applicant pleaded guilty to the offence of reckless GBH on 23 May 2018, when the matter was in the Local Court. On the same day, he pleaded not guilty to the related charge of take and detain, and was committed for trial. The applicant entered a late plea of guilty to this charge at a much delayed arraignment before the Parramatta District Court, on 15 November 2018. The matter was adjourned for sentence.
Both offences came before Delaney ADCJ for hearing on 12 February 2019, with his Honour imposing sentence the following day.

The Crown Case on Sentence

Part of the material tendered by the Crown was an agreed statement of facts, which his Honour accepted as establishing the facts of the offence. They were as follows.
The applicant was 26 years old at the time of offending.
At about 5.30pm on 14 August 2017, the complainant, Ms Skelton-Urquhart, was playing at the poker machines at a hotel in Campsie. The applicant approached her, claiming to recognise her. The complainant thought that the applicant was vaguely familiar and they agreed that they had likely seen each other at another hotel, where the complainant was employed.
The complainant and applicant spoke together for some time, and left the premises together shortly after 6pm. The complainant walked to her nearby car; the applicant asked if she could drive him home, and she agreed. Ultimately, they decided to return to the complainant's nearby home to smoke cannabis.
The two smoked cannabis together, after which the complainant drove the applicant to his home. Having dropped the applicant to his home, the complainant decided to call in to another hotel to play on the poker machines. She arrived just after 11pm. By coincidence, the applicant and a friend of his arrived at the hotel in a separate vehicle at almost the same time. Seeing each other, the complainant and the applicant talked and gambled for a time, before leaving the hotel together at about 12.05am on 15 August 2017. At some point, they separated.
On the morning of 15 August 2017, the applicant was due to appear at Burwood Local Court for sentence for an offence of assault occasioning actual bodily harm ("AOABH"). He did not attend.
At about 10.30 that morning, the complainant left her home and went to her car, which was parked on the street outside. She saw the applicant sitting on the fence outside her home. He approached her, and asked her to do him a favour and drop him somewhere. The complainant said that she could not.
The applicant persisted in asking for a lift, saying that he had enjoyed talking to the complainant the previous night and wanted to continue "hanging out" with her. His manner was friendly. The complainant again refused, explaining that she had to get to work. When she went to unlock her car, the applicant grabbed at the handle of the passenger door trying to open it. The complainant again explained that she could not help the applicant.
The applicant continued to ask her for a lift, but his manner became angry and he appeared frustrated. The complainant thought that the only way of being left alone by the applicant was to drive him where he wanted to go, and so she agreed.
Although the applicant had told the complainant that his destination was "just down the street," he directed her into another suburb and into streets Ms Skelton-Urquhart did not know. He did not seem to know where he was going, directing the complainant in circles.
At about 10.50am a friend of Ms Skelton-Urquhart, Mr Hatzipourganis, received a phone call from her phone. On answering it he could hear the complainant in a faint voice, sounding upset and distressed, saying "Just let me go, you've got my money, you've got my car just let me go". The phone call ended.
At about 11.39am, Ms Skelton-Urquhart recalls looking at the clock in her car and telling the applicant that she had to drop him off as she would be late for work. The applicant eventually directed her to stop the car on Euston Road in Hurlstone Park. It was by then about 12pm. When the vehicle stopped, the applicant reached over and pulled the keys out the ignition. He got out of the car with the keys. Ms Skelton-Urquhart also got out of the car, hoping to retrieve her car keys.
The applicant returned to the car and took Ms Skelton-Urquhart's mobile phone, dropping the car keys as he did so. The complainant picked her keys up, and pleaded for the phone to be returned so that she could go to work. The applicant refused to return it, telling her to wait, and he would return it later. He walked off. She followed him, grabbing at his pockets and bag to try, unsuccessfully, to retrieve her property.
When Ms Skelton-Urquhart stood in front of the applicant to prevent him walking away with her phone, he grabbed her. A struggle ensued between the pair. The disturbance caught the attention of a nearby resident, who heard the complainant say, "Please, please, please, give me my phone". The witness telephoned the emergency operator for assistance. Footage from closed circuit surveillance in the area captured the complainant attempting to retrieve something from the applicant's pockets, and the assault upon her which followed, causing Ms Skelton-Urquhart grievous bodily harm.
The applicant punched the complainant in an uppercut motion to the head or upper chest, and then pushed her downwards by her head. He kept pushing on her head and back to prevent her standing upright. An object dropped to the ground. The applicant reached for it, whilst still holding Ms Skelton-Urquhart's back and head, and hit her to the face, with either his hand or the object he had picked up. He then hit and pushed the complainant in her back and head, knocking her to the ground. She clutched at the applicant's bag.
Whilst Ms Skelton-Urquhart was on her knees on the pavement, the applicant kicked her in the face. She managed to get to her feet and started away from the applicant towards her car, holding his bag. He grabbed her, jumping on her back and again knocking her to the ground. The applicant then kicked Ms Skelton-Urquhart to the torso, as she lay on the ground. When she got to her hands and knees in an attempt to get up from the ground, the applicant used his knee to strike her to the face with great force, knocking her back to the ground.
The injuries sustained to this point were reflected by the offence of recklessly causing GBH.
Ms Skelton-Urquhart got back to her feet, moving towards her car. The applicant ran after her. She tried to push him away but he forced his way into the passenger seat and told her, "Drive, get us away from here! Everyone would have heard that, fucking drive!"
Fearing further assault, the complainant asked where to drive and the applicant replied, "Just fucking drive! Get out of here!" Eventually the applicant instructed her to drive him home. The complainant, frightened of more violence, complied. During the drive, Ms Skelton-Urquhart tried to slow and stop the car on a number of occasions but, when she did so, the applicant pulled on the handbrake, sending the car into a skid. The complainant was frightened. She continually but futilely cried out for him to let her go. She was bleeding and suffering immense pain. Ms Skelton-Urquhart was afraid she would pass out. Her blood was later found throughout the driver's area of the car.
At some point during the drive the applicant returned her phone.
They reached his unit block, and parked in the garage. The applicant asked Ms Skelton-Urquhart to go upstairs, but she was terrified that if she did he would not let her go. He told her that she could go once she had cleaned herself up. She tried to walk away, but he cornered her, preventing her from leaving. She felt she had no choice but to go upstairs and went with the applicant. He took her blood covered jacket from her before they entered the unit.
The applicant told Ms Skelton-Urquhart to clean her face, and she went into the bathroom to wash herself. The applicant watched her from the doorway of the room. She asked again to leave but, referring to his bedroom, he replied, "you're not going anywhere, get in that fucking room now!"
Feeling trapped and frightened of being attacked again, Ms Skelton-Urquhart did as she was told. The applicant placed the complainant's grey jacket into a white plastic bag. He sat on his bed and held his head in his hands.
Taking the opportunity, Ms Skelton-Urquhart sent a text message to her friend, Mr Hatzipourganis asking for help. The message read "I'm in danger", and attached a GPS locator "pin" which gave her location. On sending the message, at 12.24pm, the complainant deleted the text to avoid the applicant seeing it.
Mr Hatzipourganis went to the location sent to him and found Ms Skelton-Urquhart's car. He sounded his horn for a short time and began yelling, hoping to attract attention. The applicant heard the noise and directed the complainant to go with him to move her car. They went to the garage area.
As they approached, Mr Hatzipourganis saw the applicant holding Ms Skelton-Urquhart's arm; he pushed her with some force towards her car. He shouted out at the applicant and, wielding a broomstick that he found in the garage, ran towards him, yelling at him to let Ms Skelton-Urquhart go. The applicant fled, with Mr Hatzipourganis in pursuit. Taking the opportunity, Ms Skelton-Urquhart went to her car and drove away. Her detention constituted the offence of take and detain for advantage occasioning actual bodily harm ("ABH"); the ABH relied upon was a broken tooth, the injury having been inflicted at some time during the detention.
The applicant stopped running and began to cry. Mr Hatzipourganis left him and drove away. He met up with Ms Skelton-Urquhart soon after and noticed that she was bleeding from the mouth, her teeth were dislodged, and her jaw was moving in an odd way when she spoke. Ms Skelton-Urquhart attended a local Police Station and reported the matter.
She sought medical attention for the very serious injuries she had sustained during the assault upon her. Those injuries included fractures to the left and right sides of her jaw, which required surgery to insert metal plates and arch bars. The broken tooth was surgically removed. Later, Ms Skelton-Urquhart underwent additional surgery to have the plate on the left side of her jaw removed, following complications. As at the date of sentencing she had undergone three surgical procedures for the repair of the fractures, had metal plates permanently in place fixing her jaw, and further surgery was anticipated. She was confined to a soft food diet for at least six months after the attack.
At 11.30pm that evening, 15 August 2017, police attended the applicant's home. When officers approached him, the applicant went into his unit, returning with a large knife. He confronted the officers with the knife, before retreating into his unit. Police set up a perimeter and negotiated with the applicant. The applicant surrendered himself after about 40 minutes, without further incident. He was taken to Campsie Police Station but was too drug affected to participate in an interview.
Other evidence in the Crown case was the applicant's criminal and custodial histories from New South Wales. The applicant has an extensive criminal history, commencing in 2004 when he was aged 12 years, and appeared before the Children's Court to be dealt with for an offence of assault with intent to rob whilst armed with an offensive weapon. He was placed on a supervised bond some months later for stealing a car.
In 2005, when the applicant was 13 years old, he was again dealt with by the Children's Court, being placed on a supervised bond for an offence of assault. Another entry for assault was recorded the following year, with a period of supervised probation imposed by the Children's Court. Two counts of assaulting a police officer were dealt with in 2006 by further orders for supervised probation, as was a further charge of assault. An offence of destruction of property attracted a good behaviour bond.
In September 2007, the applicant was charged with four counts of assault, penalised in the Children's Court in February 2008 by a further period of supervised probation, the period being extended later that year when the applicant breached probation and was called up.
Other entries for dishonesty and driving offences followed in 2009, dealt with by bonds and probation orders. Control orders were imposed by the Children's Court early in 2010 when the applicant was dealt with for AOABH, a domestic violence offence and, in the Youth Drug Court, domestic violence offences of destruction of property, and two counts of contravening an apprehended domestic violence order.
The applicant's regular criminality continued after he turned 18 years of age, with appearances before the Local Court for multiple counts of common assault, multiple counts of larceny, multiple counts of failing to appear, goods in custody, furnishing false information, multiple counts of contravening an apprehended domestic violence order, multiple counts of destruction of property, intimidation, possessing a prohibited drug, resisting police, having custody of a knife in a public place, entering enclosed lands, multiple counts of possessing equipment to administer drugs, disposing of stolen property, AOABH, and various traffic offences. Fines, bonds, and short sentences of imprisonment were imposed from time to time.
The applicant's custodial history established that his conduct was little better in a prison environment; he accrued 13 institutional offences against his record during periods of incarceration between 2012 and 2018.

The Applicant's Case

The applicant gave evidence before the sentencing judge on 12 February 2019. He confirmed that the history he had given to a psychologist for the purposes of the preparation of a report tendered on sentence had been truthful.
In evidence in chief the applicant deposed that, prior to going into custody, he had lived with his father.
He said that he had had a drug problem since he was "thirteen, twelve years old", which involved smoking cannabis from the age of 12 and "smoking ice" from the age of 15. He said that he had never had any assistance with his drug problem or undertaken any sort of rehabilitative programme.
The applicant said that the last time he had taken drugs was on the night of the offences.
He said that he was in protective custody, and found being in gaol a "bit hard, being away from my family". For the future, he stated an intention to "work and save my money and buy a nice car and just help my father with the bills and that".
When asked what he wished to say to the victim concerning the offences the applicant said: "I'm sorry. I feel bad, like what happened, I just - on drugs. Wasn't thinking".
In cross examination, the applicant said that he had smoked "ice and marijuana" for the whole of the night of 14 August 2017, and into the morning of 15 August 2017.
He gave as his reason for taking the complainant's car keys, and then her mobile phone, that: "I just wanted to make sure my friend was home, so I don't get dropped off in the middle of the street, 'cause I had drugs on me".
He conceded that he had been before the courts repeatedly for offences of violence, but said that: "I'm just going to keep away from drugs. Just work. Just get - I need help, like, with programmes to just keep off the drugs."
The applicant relied upon a psychological report prepared by Mr Chafic Awit on 11 February 2019.
Mr Awit took a history from the applicant, commencing with his "traumatic upbringing". The applicant said that he was born in Australia, to parents of Greek Cyprian background. Although he had half-siblings, they did not live with the family for any real time, and he effectively grew up as an only child. His parents often argued, as his mother was a heroin addict, and the applicant said that he never felt safe in his home. His parents divorced when he was around seven years old, and he lived with his father.
The applicant told Mr Awit that when he was about 12 years old his mother made a complaint to the Department of Community Services about the care provided by his father, and he was removed and placed in foster care for over two years. In that time he was moved from placement to placement, due to his aggressive and destructive behaviour.
His father worked "very hard to win custody rights" and eventually did. Thereafter, the applicant said that he grew up with "tough love", with his father caring for him, but often making him feel like he was not good enough. He frequently stole money or drugs to give to his mother, thinking that this "would make her love him more". The applicant described how he was always seeking approval and love.
He also stated that his mother's partners abused him physically, and he was subject to violence.
The applicant was diagnosed with Attention Deficit Hyperactivity Disorder ("ADHD") when he was five years old, and medicated until he was 13 years old. He was in a "behavioural school" for most of his primary school years. He did not attend high school due to being "bounced around in different foster homes". He advised Mr Awit that his behaviour "kept landing him in a juvenile justice centre".
As is noted above, the applicant used "ice", or methylamphetamine, from the age of 15 years. That drug addiction continued until his recent arrest.
The applicant gave a history of very limited employment - for a short period in scaffolding, and doing some furniture delivery and lawn mowing for a neighbour. His income was largely derived from Government benefits.
He has a 10 year old son from an encounter in his teenage years, and had some contact with the child before entering custody.
In relation to his criminal history the applicant said he was impulsive and became aggressive quickly. He "advised that he had poor emotional regulation". Other aspects of his criminal history were explained as a means of supporting his mother's drug habit, or his own.
Of the offences for sentence, the applicant professed to feel sorry for the victim. He said that he never intended the events to unfold as they did, but that he had panicked, and acted impulsively. He said he was ashamed and disgusted by what he had done, and there was no excuse for it.
He said he had hit "rock bottom", and wanted to be a better father, son, and person, and get a job, pay his taxes, and support his son.
Although Mr Awit's qualifications are in psychology, he purported to diagnose the applicant with ADHD, a Major Depressive Disorder with anxious distress, and a severe substance use disorder. He believed that the applicant's decision making ability was impaired at the time of the offences, linked to his underlying ADHD, and "exasperated" (perhaps meaning exacerbated) by his depression and drug abuse. Mr Awit also stated that it is likely that his development of mature coping skills had been inhibited. He recommended that the applicant receive regular Cognitive Behaviour therapy, be referred to a psychiatrist to assist with further reducing the risk of reoffending, receive drug counselling, and develop skills to help him cope with stress and problem solving.

Submissions

In brief oral submissions, counsel for the applicant conceded that the offences were "extremely violent to say the least". It was contended that the offences had occurred because of the applicant's drug addiction, and that his addiction in turn arose from his traumatic childhood.
Counsel agreed that the applicant's criminal history was of no assistance to him, noted that the present offending was the most serious in his background, and accepted that the objective seriousness of that offending "is at the midlevel or certainly approaching mid-level". The court was urged to impose concurrent sentences "or an aggregate sentence in terms of dealing with it".
In its submissions, the Crown argued that the circumstances that gave rise to the offences, involving an unprovoked and horrific assault perpetrated against the victim, and her subsequent detention, involved a "considerable degree of objective seriousness". The Crown pointed to the applicant's extensive criminal record and noted that there is a "strong need to ensure the protection of the community, in addition to the need to reflect both specific and general deterrence".

The Conclusions of the Sentencing Judge

Having set out the offences, maximum penalties and, with respect to the s 35(2) offence, the applicable standard NPP, the sentencing judge announced that a discount on sentence in the order of 25% would be allowed to recognise the utilitarian value of the early guilty plea to the GBH offence, whilst a discount of 15% was to be allowed for the late plea entered to the kidnapping offence.
Turning to the subjective case, his Honour gave an account of the applicant's personal circumstances and background, taken from the psychological report and from the applicant's evidence (and as set out above). He observed that the applicant was born in 1991, the only child of his parents, and his childhood was traumatic. His Honour referred to the applicant's disrupted life, in foster care, and with family, where he was subject to abuse. His medical, educational, and employment background was detailed.
His Honour was prepared to accept the applicant's evidence of his very early commencement of drug use, smoking cannabis from around the age of 12 and using ice from the age of 15.
His Honour noted the applicant's criminal history, stating that the applicant had "been the subject of significant attention from the criminal justice system for various offences, namely violence, driving, property and the like". Nothing in his history militated in favour of a finding of leniency.
The sentencing judge set out the nature and circumstances of the offence, drawn from the agreed facts, before turning to the extent of the criminality of the take and detain offence. His Honour had regard to the period of detention, the identity of the person detained, and the circumstances and purpose of the detention, the latter being referred to as "opaque". Having regard to the "ferocity of the attack" that preceded the take and detain, his Honour concluded that the fear engendered in Ms Skelton-Urquhart would have been such as to make it impossible for her to get away from either the car, or the applicant's unit. He noted the injury occasioned, being a broken tooth. His Honour regarded it as an offence falling "above the midrange of objective criminality". The GBH offence, involving fractures to both sides of the jaw, was assessed as being "close to midrange of objective criminality, perhaps just below it".
His Honour referred to the applicant's drug use around the time of the offending, his evidence having been that he was under the influence of both "ice" and marijuana.
Referring to the contents of Mr Awit's report, the sentencing judge noted that the applicant was held in protective custody. He recorded Mr Awit's observation that the applicant had expressed shame and remorse in relation to the offences, offences he had not intended to occur. His Honour accepted Mr Awit's opinion that the development by the applicant of mature coping skills had been inhibited, and that this made him more susceptible to act in the way he did.
His Honour was satisfied that the applicant was remorseful and contrite for his conduct. However, due to his criminal history, the court could not conclude that the applicant would be unlikely to reoffend without significant intervention.
His Honour accepted that the victim had suffered the most serious physical injuries, of a permanent nature; and inferred that she had also experienced a "most grievous psychological response to this event".
The court concluded that there had to be "accumulation to some degree", which would be encompassed within the aggregate sentence his Honour had decided to impose.
In relation to the issue of special circumstances, His Honour noted that the applicant had been awarded many opportunities to address his offending conduct in the past, but had been unable to "grasp those opportunities". Notwithstanding that history, a finding of special circumstances was made, based on the applicant's institutionalisation, and his need to address drug and anger management issues.
In formulating the appropriate sentences, with respect to the take and detain offence, his Honour considered the: "threats of violence, the fear of violence, the reality of having been prevented from going to where one was expected to go and feeling that there is no escape would have caused such fear and indeed potentially fear as to how she would come out of this particular incident".
He concluded that, had the matters been a sentence after trial, it would have required a sentence of no less than eight years imprisonment but, on the basis of the plea, a sentence of 6 years imprisonment was appropriate, (representing a 25% discount on sentence rather than the 15% his Honour had announced).
For the GBH offence and applying the discount of 25% to recognise the utilitarian value of the plea, a sentence of three years six months with a two year non-parole period was announced.
His Honour said that he intended to impose an aggregate sentence of eight years and three months imprisonment, with a non-parole period of six years. His Honour asked the parties for assistance with commencement and expiration dates, and with anything else he may have overlooked. Having received assistance with the relevant calculations from the parties, his Honour imposed the aggregate sentence.

The Application to this Court

If granted leave, the applicant seeks to advance three grounds of appeal: (1) The applicant was denied procedural fairness in that the sentencing judge failed to warn the applicant's legal representative that he considered the objective seriousness of Count 1 (the take and detain charge) to be above the mid-range of objective seriousness. (2) His Honour erred in his assessment of Count 1 (the take and detain charge) was about the mid-range of objective seriousness. (3) The aggregate sentence imposed (both in relation to head and non-parole period) was, in all the circumstances, manifestly excessive.
The parties dealt with grounds 1 and 2 together at the hearing of the application before this Court. It is convenient to adopt that approach, since the issues are related.

Ground 1: The applicant was denied procedural fairness in that the sentencing judge failed to warn the applicant's legal representative that he considered the objective seriousness of Count 1 (the take and detain charge) to be above the mid-range of objective seriousness

Ground 2: His Honour erred in his assessment of Count 1 (the take and detain charge) was about the mid-range of objective seriousness.

In advancing these proposed grounds the applicant places significant reliance upon an exchange between the bench and bar table during submissions on sentence.
As is usual for submissions on sentence, the applicant made his submissions first, followed by the Crown, there being an opportunity for the applicant to make any submissions in reply after the Crown had addressed.
On commencing his submissions, the following exchange took place between Mr Harrison for the applicant, and the sentencing judge: "HARRISON: In terms of submissions, your Honour, obviously the facts are extremely violent to say the least. It's obviously the case, your Honour, that this is an offence that is drug-related. He has a long history of drugs. He's 27 years of age. Prior to going - HIS HONOUR: It's pretty close to mid-range isn't it? HARRISON: Conceded. There's no issue with that at all […]".
After some further submissions concerning the applicant's background and circumstances, counsel continued: "HARRISON: I concede that the objective seriousness is at the midlevel or certainly approaching mid-level. In terms of your Honour approaching the sentence, obviously there is a difference or distinction in terms of what's relied upon by the Crown in terms of the two offences, in terms of the detention or detaining for advantage, which is where occasioning actual bodily harm, versus then the second offence, which is grievous bodily harm. So I understand that there is that distinction in terms of the injuries that the-- HIS HONOUR: There's an overlap there. HARRISON: Yes. And ultimately, I'd be urging your Honour to consider a concurrent sentence or an aggregate sentence in terms of dealing with it ultimately when your Honour comes to passing sentence upon him."
The applicant argues that, in the first exchange, the sentencing judge signalled his conclusion that the objective gravity of the take and detain offence, or of both offences, was that it was close to, but below, the mid-range of seriousness. Since his Honour did not at any stage thereafter warn the applicant that he may impose sentence on the basis that the take and detain fell above the mid-range, the applicant complains that he was denied procedural fairness, and denied an opportunity to make further submissions as to where in the range of gravity the offence fell.
The applicant contends that it was not open to the sentencing judge to in fact find that the offence fell above the mid-range. It is argued that, since the ABH particularised with respect to this offence was a broken tooth: "there must have been (implicitly at least) double dipping in relation to the violence the subject of the reckless GBH charge and the take and detain charge".
The applicant submits that, when regard is had to the length of the detention, the obscurity of the purpose of the detention, and its spontaneous commission, it was not open to his Honour to assess the gravity of it as above the mid-range.
On that basis, and having regard to the degree of accumulation and limited benefit of the finding of special circumstances, it is submitted that the sentence imposed upon the applicant was manifestly excessive.
What may constitute procedural unfairness will vary, depending upon the circumstances of the case. A summary of the principles relevant to determining a claim of procedural unfairness is found in Weir v R [2011] NSWCCA 123, per Garling J (Macfarlan JA and Johnson J agreeing), at [64]-[67]. Of particular relevance is what was stated at [66]-[67]: "[66] The key to determining whether there has been a breach of the requirement of procedural fairness is to ascertain the consequence of any departure from the dictates of proper procedure because what is ultimately in issue is whether unfairness has resulted from the process: See Lam at [34]. The concern of the law is to avoid practical, and not merely theoretical, injustice: Lam at [37]. [67] One common basis for demonstrating that practical injustice and unfairness has occurred is where an individual has lost the opportunity to make submissions to the decision maker in opposition to a proposed course and in support of a course which he urges: Lam at [36]; Button at [18]."
In determining whether practical injustice was occasioned to the applicant, it is important to read the transcript of the proceedings on sentence, and of the remarks of the sentencing judge, fairly and in full: Ng v R [2011] NSWCCA 227; (2011) 214 A Crim R 191 at [44].
Taking that approach, it is clear that there was no denial of procedural fairness, and the applicant's complaint in that regard should be rejected.
It is rarely safe for counsel to assume that a remark, or inquiry made during the course of the proceedings by the presiding judge or other decision maker, represents a concluded view that will be reflected in the decision under debate: R v Kain [2004] NSWCCA 143 at [56]; R v A [2004] NSWCCA 292 at [12]. Many judges find it useful during a sentencing hearing to raise matters with counsel about which assistance or further information may be desirable. What may be said by a judge during the course of such an exchange is unlikely to form part of the reasons, and will not always or even often represent a concluded and reasoned view. The very point in making the inquiry of or having the discussion with counsel is to assist in coming to such a view. This Court has frequently expressed its reluctance to determine that there has been error based upon exchanges of that nature: R v Pham [2005] NSWCCA 94 at [11].
What his Honour said in the exchange pointed to by the applicant could not reasonably have led to a legitimate expectation that his concluded view was that the take and detain offence fell below the mid-range of gravity for such a crime, and he would sentence the applicant on that basis.
Firstly, there was no specificity in his Honour's comment and it is not clear from the transcript and could not have been clear at the time that the reference was necessarily to the offence of take and detain. His Honour may have been considering either offence, or both of them.
Secondly, the comment did not refer to a finding or opinion that the offence or offences fell below the mid-range. What his Honour said was "it's pretty close to mid-range, isn't it?" That could have been a reference to the precise mid-point, or a little below it, or a little above it. For the applicant to conclude that those words necessarily signalled a finding that the offence or offences fell below the mid-range of gravity is to misapprehend their meaning.
Finally, it is not unimportant that the Crown had not at that stage addressed the court. For one party to assume that a decision maker has made up his or her mind about a particular issue before both parties have had an opportunity to address the court ignores the adversarial nature of the criminal justice system. Any view expressed or implied by a decision maker prior to having heard from both parties could only ever be regarded as tentative, or preliminary, and subject to hearing the submissions of the other party. In fact, here the Crown submitted that the offences reflected "a considerable degree of objective seriousness". That language does not permit of a conclusion that the Crown had conceded that the offences fell below the mid-range of gravity.
Procedural unfairness is not established because one party misunderstood or misinterpreted what the likely decision would be, and feels disappointed that his or her expectation has not come to pass: ES v R [2019] NSWCCA 262 at [49].
As Gleeson CJ said in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6, at [34]: "[I]t is clear that the content of the requirements of fairness may be affected by what is said or done during the process of decision-making, and by developments in the course of that process, including representations made as to the procedure to be followed. So, for example, if a decision-maker informs a person affected that he or she will hear further argument upon a certain point, and then delivers a decision without doing so, it may be easy to demonstrate that unfairness is involved. But what must be demonstrated is unfairness, not merely departure from a representation. Not every departure from a stated intention necessarily involves unfairness, even if it defeats an expectation. In some contexts, the existence of a legitimate expectation may enliven an obligation to extend procedural fairness. In a context such as the present, where there is already an obligation to extend procedural fairness, the creation of an expectation may bear upon the practical content of that obligation13. But it does not supplant the obligation. The ultimate question remains whether there has been unfairness; not whether an expectation has been disappointed". (Footnotes omitted.)
Whilst the applicant's counsel may have interpreted the sentencing judge's comment in the course of argument as favourable, it did not for the reasons outlined above give rise to any "legitimate expectation" of the kind referred to in Lam.
Nor can it legitimately be said that the applicant was denied an opportunity to be further heard on the issue of objective seriousness, beyond his early submission.
Having heard evidence and submissions on 12 February 2019 the sentencing judge adjourned the matter to the following day for sentence. Before his Honour commenced to give his remarks and impose sentence, the representative of the Crown rose to her feet to supplement some information provided the previous day about the AOABH offence for which the applicant had been on bail at the time of the commission of these offence. His Honour received the information with thanks. Clearly, the opportunity was available to the parties to correct or supplement submissions from the previous day.
His Honour commenced to give judgment, setting out the objective and subjective features, and indicating the sentences he considered appropriate. He then paused to invite further submissions from the parties: "Having said that I pause for a moment to ask, seeing that I have done of that much in summary rather than reading the whole thing out, if there is anything in terms of the facts or principle that I have not mentioned that either of you wish me to add to the comments that I have already made, because I am happy [to] add anything having heard it yesterday. Mr Harrison? HARRISON: Not from my part, thank you your Honour. NAMAT: Just one aspect, your Honour […]."
The Crown took the opportunity to address a matter of fact that may have been regarded as unclear from his Honour's remarks to that point. Subsequently, the sentencing judge incorporated the information into his further remarks, clarifying the issue. The opportunity provided by the court to correct matters of fact was not taken up by the applicant.
Before this court it was argued that it was not appropriate for counsel to correct any matter of fact or statement of principle dealt with by the sentencing judge up to that point. That is not correct as a general and unqualified proposition. In the course of the court's delivering reasons ex tempore it would be appropriate to respond to such an invitation of the court, unless for some reason to do so is judged not to be in the interests of the client and taking that course is consistent with counsel's overriding duty of candour to the court. The latter duty requires that counsel not deliberately mislead the court, as might be the case if the making of no affirmative response to such a request knowingly results in the court proceeding on a wrong premise in disposing of some material matter.
Having regard to all of those features, in my view there was no denial of procedural fairness.
Since ground 1 is founded upon the disappointment of an unreasonable expectation, I would not grant leave to advance it.
Ground 2 argues that the conclusion reached by the sentencing judge as to objective gravity was one which was not open to him and instead, his Honour should have found that the matter fell below the mid-range of gravity.
The assessment of the objective seriousness of an offence is a matter that falls within the wide discretion of sentencing judges, as was emphasised by Spigelman CJ in Mulato v R [2006] NSWCCA 282, at [37]: "Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour."
In this matter, I cannot conclude that the assessment made by the sentencing judge was not open. The take and detain offence commenced on a public street, and against a background of significant violence having been visited upon the complainant by the applicant. As the sentencing judge observed, the violent assault upon her, and the injuries inflicted to that point, would have left Ms Skelton-Urquhart feeling that escape was impossible. That is not to "double dip", as the applicant complains; it is to recognise the interplay between the two offences and the way in which the violence of the first contributed to the feelings of helplessness and fear experienced by the complainant when the second commenced, making her terror all the greater when she was forced into her own car, and then into the seclusion of the applicant's apartment.
In detaining the complainant, the applicant removed her from a public place where she could have sought assistance, and prevented her from getting immediate medical attention for the serious injuries he had already inflicted upon her. Further, he caused her additional injury, the ABH particularised, in breaking a tooth, a tooth that ultimately had to be removed surgically.
The detention may have been spontaneous, but it could not be said to have been brief. Ms Skelton-Urquhart was detained in her car and prevented from escaping or seeking aid by the applicant's dangerous stratagem of pulling on the hand-brake of the car when she sought to slow it, thus sending the car into a skid. That must have increased her fear; it certainly increased the dangerousness to her of the drive with the applicant. On arriving at his apartment, the applicant could have let Ms Skelton-Urquhart leave; instead he extended her detention, removing her to the unit where he lived, and where she was even more vulnerable than she had been.
The detention only came to an end when Ms Skelton-Urquhart's friend intervened. It did not end because the applicant desisted, or because he acceded to the complainant's pleas to be allowed to leave.
In my view, the conclusion of the sentencing judge was one which was open to him and, although I would grant leave to advance this ground, it should be dismissed.

Ground 3: The aggregate sentence imposed (both in relation to head and non-parole period) was, in all the circumstances, manifestly excessive.

The argument in support of this ground rested heavily on the success of ground 2 which, I have concluded, should be dismissed.
The remaining complaints relevant to this ground are that the level of accumulation is too great, and the allowance for special circumstances too small.
With respect to the former, the guiding principle is that expressed in Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41, at [27]: "In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both."
Whilst there was a degree of factual overlap between the two offences, in that they formed part of a continuing course of serious criminal conduct, the criminality of each was distinct from the other. The sentence imposed for one offence could not comprehend the criminality of the other, and it was open to the sentencing judge to impose an aggregate sentence which reflected a significant degree of accumulation. That he did not do so was an approach favourable to the applicant. I am unable to discern error.
As to the proportion of NPP to total sentence, the former was 72.7% of the latter. As the applicant submitted, this proportion is only slightly lower than the applicable minimum statutory ratio, in the absence of a finding of special circumstances, of 75%. In the circumstances of this case, and taking account of the sentencing judge's finding of special circumstances, I do not conclude that the ratio of 72.7% evidences error. It is clear that his Honour was conscious of the applicant's lengthy criminal history, and his repeated failure in the past to take advantage of opportunities offered to him by the courts, including through the Youth Drug Court. The breaches of the numerous supervised sentencing orders over time establish that. Although it was open to the sentencing court to conclude that the applicant would benefit from some additional time on parole, to allow him an extended period was to ignore his history of breaching community based sentencing orders. A finding of special circumstances should be based upon more than a "pious hope" that rehabilitation may be achieved: R v Carter [2003] NSWCCA 243, at [19].
The parole period allowed to the applicant by the sentencing judge, one of 2 years and 3 months, should be sufficient for him to take advantage of the supervision that will be offered to him, and to take up the access to rehabilitative programmes and other support networks that will be made available. If the applicant cannot achieve some positive steps in that period, it would be unlikely that he would do so with more time.
Taking into account the serious nature of these crimes, the maximum penalties, and standard NPP for the GBH offence, the applicant's extensive criminal history, and his limited subjective case, I am unable to conclude that the sentence imposed by his Honour for the totality of his offending was unfair or unjust: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, at [25].
I would grant leave to advance this ground, but I would dismiss it.

Conclusion

The orders I would make are: 1. Refuse leave to advance ground 1; 2. Otherwise, grant leave to appeal; 3. Dismiss the appeal.
N ADAMS J: I agree with the orders proposed by Wilson J for the reasons provided by her Honour. I wish to make some additional comments on Ground 3 which contended that the aggregate sentence imposed was manifestly excessive.
The applicant's offending behaviour in this matter was very serious. During her ordeal, the victim was pushed downwards by her head to prevent her standing upright, hit to the face, back and head, knocked to the ground more than once, kicked in the face and torso as she lay on the ground and "kneed" to her face, which knocked her back onto the ground.
As a result of the attack, the victim suffered fractures to the left and right sides of her jaw which required surgery. She underwent three surgical procedures to repair these fractures and had to have metal plates permanently fixed to her jaw. At the time of sentence, it was expected that she would need even further surgery. She was only permitted a "soft food" diet for "at least 6 months after the assault".
After being seriously assaulted by the applicant in this way the victim was bleeding and in pain. She was then detained by the applicant and forced to drive him to his home, enter it with him, wash off the evidence of any assault and then dragged to her car again. The ordeal only ended because of the bravery of her friend Mr Hatzipourganis.
The applicant stood to be sentenced as a 26 year old man with a significant criminal history and only a limited work history. His criminal history is set out in detail in the judgment of Wilson J. Significantly, it includes a past history of violence. There can be no doubt that the applicant has a long standing drug problem. He started smoking "ice" at 15 years of age. He gave evidence that he had smoked both "ice" and cannabis at the time of the offences.
The applicant had a deprived childhood. It is also set out in detail in the judgment of Wilson J. In short, his mother was a heroin addict and his parents divorced when he was 7 years old. After that, he lived with his father until his mother complained to the authorities about his father's parenting of him and he was placed in foster care for two years. This two year period was the time it took his father to retain custody of him. Tragically, the applicant describes stealing money and drugs as a teenager to give to his mother as a way of seeking her approval.
His Honour made findings of above mid-range objective seriousness for the detain offence (which carried a maximum penalty of 20 years imprisonment) and mid-range objective seriousness for the reckless infliction of grievous bodily harm offence (which carried a maximum penalty of 10 years imprisonment and a standard non-parole period of 4 years). His Honour allowed a 25% discount for both offences after stating that he would only allow 15% for the detention offence given the late plea. His Honour applied the discounts to the indicative sentences and arrived at indicative sentences of 6 years imprisonment for the detain offence and 3 years and 6 months imprisonment (with a non-parole period of 2 years imprisonment) for the reckless infliction of grievous bodily harm. This means the starting points (before the discounts) of the indicative sentences were 8 years imprisonment and 4 years and 8 months imprisonment respectively.
In sentencing the applicant, it was necessary for the sentencing judge to identify the factors relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Markarian v The Queen (2005) 228 CLR 377; [2005] HCA 25 at [51]. In this context the sentencing judge observed in his Remarks on Sentence that, "[o]ne could not say that this was an easy sentencing exercise". As Hayne J observed in Ryan v The Queen (2001) 206 CLR 267 at 306; [2001] HCA 21 at [133]: "Sentencing an offender is a very difficult task. It requires consideration and balancing of many different and often conflicting matters. The offender's conduct can excite strong emotional responses: anger, disgust, revulsion, horror. The offender's personal history, which all too often is a history of deprivation, can excite sympathy."
In order to succeed under Ground 3 it was necessary for the applicant to establish that the aggregate sentence imposed on him was the last kind of error identified in House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; that is, that the sentence was "unreasonable or plainly unjust": Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]. As the High Court observed in Lowndes v The Queen (1999) 195 CLR 665 at 671-672; [1999] HCA 29 at [15] (footnote omitted): "Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice."
The sentence imposed was a stern one. The applicant is not eligible for release on parole until 15 August 2023. But even allowing for the applicant's very unfortunate childhood, he has failed to establish that the sentence imposed on him was unreasonable or plainly unjust. That is the relevant test; not whether this court may have exercised its discretion in a manner different to that of the sentencing judge.

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