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Category: Principal judgment

Parties: Benjamin Luke Crook (Applicant)
Rex (Respondent)

Representation: Counsel:
A Chhabra / S Tasneem (Applicant)
B Page (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2023/260278 / 2023/260306 / 2023/306638

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, Benjamin Crook, sought leave to appeal against the sentence imposed upon him in the District Court following pleas of guilty to 14 offences arising out of 3 separate episodes of offending between July and August 2023, including 2 counts of use offensive weapon to prevent lawful apprehension contrary to s 33B(1)(a) of the Crimes Act 1900 (NSW). On 8 September 2025, the applicant was sentenced to an aggregate term of imprisonment of 6 years and 4 months with a non-parole period of 3 years and 2 months. For the second s 33B offence, the sentencing Judge specified an indicative sentence of 3 years, after applying a 25% discount.

The applicant’s sole ground of appeal asserts that the sentencing Judge erred in elevating the objective seriousness of the second s 33B offence because it had closely followed the first s 33B offence.

The Court (Muston J, N Adams CJ at CL and Dhanji J agreeing) held, granting leave to appeal but dismissing the appeal:

As to the sole ground of appeal:

(1) In holding that the objective seriousness of the second s 33B offence was increased by the fact of the first s 33B offence having been committed earlier on the same day, the sentencing Judge would appear to have engaged in a form of double punishment. For that reason, error is established: [47]-[49] (Muston J, N Adams CJ at CL at [1], Dhanji J at [2] agreeing).

R v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCCA 145; Courtney v R [2022] NSWCCA 223, cited.

(2) An error in the assessment of the objective seriousness of the second s 33B offence could have affected the reasoning which led to the ultimate sentence imposed. The applicant’s single ground of appeal is, therefore, made out: [52]-[53] (Muston J, N Adams CJ at CL at [1], Dhanji J at [2] agreeing).

Benn v R [2023] NSWCCA 24; (2023) 305 A Crim R 550, applied.

As to Resentencing

(3) Having put the sentencing Judge’s findings to one side and exercised the sentencing discretion afresh, the sentence arrived at was not lower than the 6 years and 4 months imprisonment which was imposed by the sentencing Judge. Accordingly, and although the applicant’s ground of appeal has been made out, the appeal is dismissed: [60]-[64] (Muston J, N Adams CJ at CL at [1], Dhanji J at [2] agreeing).

DS v R [2025] NSWCCA 53, cited.

JUDGMENT

1. N ADAMS CJ at CL: I agree with Muston J.

2. DHANJI J: I agree with Muston J.

3. MUSTON J: The applicant entered pleas of guilty to 14 offences arising out of 3 separate episodes of offending between July and August 2023.

4. On 8 September 2025, he was sentenced to an aggregate term of imprisonment of 6 years and 4 months with a non-parole period of 3 years and 2 months. He seeks leave under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to bring an appeal from that sentence.

5. The sentencing Judge specified the following indicative sentences for the offences to which the applicant had pleaded guilty, after applying a 25% discount to each:

| # | Offence | Maximum penalty (imprisonment, unless otherwise specified) | Indicative sentence (imprisonment, unless otherwise specified) | Form 1 offence(s) taken into account | | First Group of Offences — Domestic violence offences | | 1 | Recklessly destroy or damage property: s 195(1)(a) Crimes Act 1900 (NSW) | 5 years | 2 months | N/A | | 2 | Stalk or intimidate intending to cause fear of physical or mental harm: s 13(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW) | 5 years | 2 months | N/A | | Second Group of Offences — Police pursuit and apprehension | | 3 | Police pursuit – not stop – drive at speed: s 51B(1) Crimes Act | 3 years | 18 months | N/A | | 4 | Drive motor vehicle during disqualification period: s 54(1)(a) Road Transport Act 2013 (NSW)) | 12 months and/or $5,500 | 3 months | Use unregistered registrable Class A motor vehicle on road: s 68(1) Road Transport Act | | 5 | Use offensive weapon to prevent lawful apprehension (first s 33B offence): s 33B(1)(a) Crimes Act | 12 years | 3 years 1 month | Possess prohibited drug: s 10(1) Drug Misuse and Trafficking Act 1985 (NSW) | | 6 | Resist police officer in execution of duty: s 60(1AA) Crimes Act | 12 months and/or $2,200 | 4 months | N/A | | 7 | Possess shortened firearm (not pistol) without authority: s 62(1)(b) Firearms Act 1996 (NSW) | 14 years | 3 years | (i) Not keep firearm safely: s 39(1)(a) Firearms Act; (ii) Possess ammunition without holding licence or permit: s 65(3) Firearms Act | | 8 | Assault police officer in execution of duty: s 60(1) Crimes Act | 5 years | 5 months | N/A | | Third Group of Offences — Hospital escape and re-apprehension | | 9 | Escape police custody (common law) | At large | 12 months | N/A | | 10 | Use offensive weapon to prevent lawful apprehension – (second s 33B offence): s 33B(1)(a) Crimes Act | 12 years | 3 years | N/A | | 11 | Assault police officer in execution of duty: s 60(1) Crimes Act | 5 years | 3 months | N/A | | 12 | Assault police officer in execution of duty occasioning actual bodily harm: s 60(2) Crimes Act | 7 years (3-year standard non-parole period) | 12 months (9-month non-parole period) | N/A | | 13 | Assault frontline health worker not causing actual bodily harm: s 60AE(2) Crimes Act | 5 years | 4 months | N/A | | 14 | Attempt assault with intent to take a motor vehicle: s 154C(1)(a) Crimes Act | 10 years | 9 months | N/A |

6. The applicant’s sole ground of appeal asserts that the sentencing Judge erred in elevating the objective seriousness of the second s 33B offence by reference to earlier offending that was the subject of the same sentencing exercise.

The agreed facts

7. The applicant was sentenced based on agreed facts, which can be summarised briefly. For ease of reference, the offences were classed into the three groups reflected in the above table by the sentencing Judge; neither party objected to this course being taken. I will adopt the same approach.

8. The first group incorporated the domestic violence offences. The second occurred when the applicant was apprehended following a police pursuit. The third arose from his escaping lawful custody at Parkes Hospital.

First Group of Offences

9. The first group of offences were committed in July 2023. At the time of offending, the applicant was 42 years old. The victim was 33 years old and had known the offender since her childhood. The pair had been in an intimate relationship for approximately 3 months prior to the offending.

10. An argument between the applicant and the victim occurred at the victim’s residence. During that argument, the applicant tipped over a glass table and smashed a glass candle holder; he then yelled at the victim to clean it up. Several days later, this time at the applicant’s house, the applicant spoke to the victim in derogatory terms, yelling at her to “wait until we get home!”. The victim, fearful of what may happen to her, fled the premises.

Second Group of Offences (including the first s 33B offence)

11. The second group of offences were committed on 16 August 2023. At that time, the applicant was the subject of warrants for his arrest and had been disqualified from driving until 22 February 2025.

12. At approximately 1:10am, police observed the applicant driving a blue Holden Commodore at high speeds through Forbes. Police activated their sirens and lights and attempted to stop the applicant. The applicant accelerated away from police.

13. The applicant was pursued for approximately 27 kilometres and reached speeds exceeding 150 km/hr while driving through residential streets in Forbes and the surrounding areas. Owing to the dangerous nature of the pursuit, it was terminated by police.

14. A short time later, the applicant drove his car into a ditch. His car was surrounded by police cars. The applicant was the only person in his car. When police approached, the applicant’s car was still in drive and his foot was on the accelerator. The wheels of the car continued to spin until police removed the keys from the ignition.

15. The applicant resisted his removal from the car and police tasered him. The applicant continued to throw his arms and legs around and was placed in a headlock by police. He continued to resist, grabbing hold of an officer’s vest and radio handset. He wrapped the radio cord around the officer’s neck. The officer told the applicant to stop resisting, struck the applicant in the face with his fist, and deployed his capsicum spray.

16. When the officer moved away, the applicant grabbed a loaded, shortened .22 calibre rifle from the passenger footwell of his car. This is the conduct which constituted the first s 33B offence. Police again tasered the applicant, causing him to drop the firearm. The applicant later told the police that he picked up the gun because he wished to be shot by police.

17. The applicant was removed from the vehicle where he continued to struggle, was tasered for a third time, and then handcuffed. He kicked an officer in the stomach as he was placed in the police car.

18. Upon searching the vehicle, police found ammunition for the .22 calibre rifle, other bullets, and 4x 50mg Tapentadol pills. Tapentadol is a prohibited drug.

Third Group of Offences (including the second s 33B offence)

19. The third group of offences were committed later on the same day.

20. Following his arrest, the applicant was taken to Forbes Hospital after complaining about pain in his wrist and chest.

21. Two officers accompanied the applicant to the hospital. After arriving in the hospital, one of those officers went to retrieve the police vehicle, leaving the applicant in the custody of the other officer.

22. While receiving an injection from a nurse, the applicant pulled away and lunged at the officer accompanying him. He grabbed the officer’s firearm (still in its holster) and held it up in the air. He told the officer to “get the fuck back”. It was these actions which constituted the second s 33B offence.

23. The officer tackled the applicant, leaving both on the floor. While on the floor, the applicant bit the officer’s arm. The applicant only stopped biting the officer when the officer pushed his thumb into the back of the applicant’s mouth. The applicant kicked a nurse who had attempted to intervene in the scuffle, and struck the officer on the head and neck repeatedly with the handcuffs he was still wearing.

24. The officer suffered cuts, a swollen ear, a sore head and neck, a bruise and broken skin from the bite mark, and stiffness in his upper back and shoulders.

25. The applicant then ran out of the main door of the hospital. He attempted to pull a person out of the driver’s seat of a parked car; only running away when two unknown men ran towards the car and yelled at him to “leave the old lady alone”.

26. Police yelled at the applicant to stop running and get on the ground; the applicant turned around, put his fists up in a fighting stance, and yelled “I’m not going back to gaol, fuck off, I am getting out of here”. He was tackled and apprehended.

The sentencing Judge's reasons

27. After setting out the facts and background largely in accordance with the above summary, the sentencing Judge addressed each of the three groups of offences separately.

28. Her Honour held that the domestic violence offences which constituted the first group of offences fell at the lower end of objective seriousness for offences of that class.

29. The charges arising out of the police pursuit, which form part of the second group of charges, were found by her Honour to fall within the mid-range of objective seriousness. A similar view was reached by her Honour in relation to the resist arrest offences which formed part of the second group of offences.

30. In assessing the objective seriousness of the firearm offences that formed part of the second group of offences (including the first s 33B offence), the sentencing Judge did not treat the threat of violence as an aggravating factor but did observe that the fact that the shortened .22 calibre rifle had been brandished against a police officer was an aggravating factor. The fact that the weapon that was the subject of the first s 33B offence was a firearm was said by her Honour to make that offence more serious.

31. The characteristics of that firearm were said, for cogent reasons given by the sentencing Judge, to have informed the objective seriousness of both the first s 33B offence and the offence committed under s 62(1)(b) of the Firearms Act. However, her Honour did not take into account the fact that the firearm was shortened when determining the objective seriousness of the first s 33B offence on the basis that this factor was better captured by the s 62(1)(b) offence (being offence #7 in the table of offences).

32. Her Honour made clear that the overlapping nature of these firearm offences warranted a significant degree of concurrence. The drug possession offence was said by her Honour to require only a “limited increase in penalty”.

33. Turning to the third group of offences, the sentencing Judge noted the relationship they had to the second series of offences but expressed the view that they represented “additional criminality”. Her Honour pointed to the unplanned nature of the offences committed at Forbes Hospital but noted that the fact that the offences were committed in a hospital — in the presence of vulnerable people — made those offences more serious.

34. Her Honour recognised that some level of accumulation was required in the context of the various assault charges included amongst the third group of offences.

35. I extract at [41] below the approach taken by the sentencing Judge to the second s 33B offence and consider it in greater detail when addressing the applicant’s single ground of appeal.

36. Turning to the applicant’s subjective case, the sentencing Judge referred to the applicant’s extensive criminal history and noted that the fact of the current offences having been committed while he was on parole called for an increase in the sentence that might otherwise be imposed. The applicant did not suggest that her Honour gave excessive weight to this consideration nor that the weight given to it led to the imposition of a penalty which was disproportionate to the gravity of the offences.

37. The sentencing Judge recounted the applicant’s challenging childhood and history of illicit drug use and found, consistent with the principles discussed in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [44] – [45], that the applicant’s moral culpability was reduced by those circumstances.

38. Whilst the applicant had expressed remorse for the offences committed against his domestic partner and for the impact of his offending more generally on members of the community, he was not remorseful for his offending towards police. The sentencing Judge found that the applicant posed a high risk of reoffending.

39. The applicant’s level of institutionalisation — coupled with a view that his risk of reoffending might be reduced by appropriate psychological treatment of a type not readily available in custody — led her Honour to find that there were special circumstances warranting an adjustment of the usual non-parole period.

The single ground of appeal

40. The applicant does not challenge any factual finding made by the sentencing Judge. His complaint is confined to one discrete aspect of the approach taken by her Honour when arriving at the sentence that was imposed; namely, one element of the approach taken by the sentencing Judge when assessing the objective seriousness of the second s 33B offence.

41. The sentencing Judge's reasons record the following in relation to that offence:

“The first of these was his use of a weapon – this time the police officer’s, which he opportunistically seized on. That it was a gun again increases the objective seriousness but it is relevant that it was not removed from the holster and it was held above his head. It was not otherwise used in his struggle with the officer. It was also not taken with him but was left on the floor. It was then out of its holster but it is not known when this happened.

This ‘use’ offence rises to the level of objective seriousness of the earlier count of use weapon [i.e. the first s 33B offence] when the Court takes into consideration that this is his second use of a weapon in a matter of hours and after an intervening period when he has received treatment. It aggravates the offending that it was committed in the hospital with other innocent people present, many of whom by virtue of the location must have been vulnerable and entitled to a feeling of safety.” (Emphasis added)

42. The applicant pointed to the fact that the Crown had accepted before the sentencing Judge that the objective seriousness of the second s 33B offence:

“may fall at a lower level [than the first s 33B offence] but not by much”.

43. He said that, in light of that concession, the emphasised words of the above extract from the sentencing Judge’s reasons reveal that her Honour must have found that the facts comprising the first s 33B offence had increased the objective seriousness of the second s 33B offence. The applicant said it was impermissible for the sentencing Judge to have taken this approach and that it amounted to a form of double punishment.

44. As was noted by Simpson J in Mulato v R [2006] NSWCCA 282 at [46] – [47]:

“The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v The King [1936] HCA 40; (1936) 55 CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance.

One consequence of this (which might aptly be termed a separation of powers) is the need for first instance judges to make clear findings of fact, and clear evaluations of such matters as objective seriousness. Absence of clarity in such findings may result in the need for the appellate court to undertake the task itself.”

45. As to the level of clarity required of the sentencing Judge in this case, I am mindful of this Court’s repeated warnings against parsing, and finely analysing, sentencing reasons; particularly those delivered ex tempore: see for example R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [48]; Warner v R [2013] NSWCCA 10 at [33]; Gommesen v R [2012] NSWCCA 226 at [37] – [38]; Courtney v R [2022] NSWCCA 223 at [66].

46. In my view, little turns on the Crown’s acceptance before the sentencing Judge that the second s 33B offence was marginally less serious than then first s 33B offence. The indicative sentence identified for the second s 33B offence contemplated a term of imprisonment which was one month shorter than that which was identified in relation to the first s 33B offence. In this sense — and taking into account the relatively modest sentence identified for each of the s 33B offences — the position adopted by the Crown is not inconsistent with the approach ultimately taken by the sentencing Judge.

47. However, reading the sentencing Judge’s reasons generously and without an eye for error, it remains unclear what her Honour was seeking to convey through the words I have emphasised in the portion of those reasons extracted at [41] above. Read literally, those words suggest that her Honour did find the objective seriousness of the second s 33B offence was increased by the fact of the first s 33B offence. In this Court, the Crown did not advance any alternative interpretation that might reasonably be given to those words.

48. There are circumstances in which the facts of uncharged offences have been found to be relevant when assessing the objective criminality of a charged offence: see the useful summary of those circumstances provided in LN v R [2020] NSWCCA 131 at [152] – [158]. It is likely that, in the same circumstances as were discussed in LN v R, an equivalent approach could be taken to the facts of other charged offences. However, that issue need not be determined as such circumstances do not arise in this case.

49. In holding that the objective seriousness of the second s 33B offence was increased by the fact of the first s 33B offence having been committed earlier on the same day, the sentencing Judge would appear to have engaged in a form of double punishment. For that reason, I consider her Honour to have fallen into error: R v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCCA 145 at [28]; Courtney at [15] and [69].

50. In assessing the potential impact of the error on the sentencing process, the Court does not ask whether, but for the error, the sentence would have been different: Farrugia v The King [2026] HCA 28 at [35], citing Brawn v The King [2025] HCA 20 at [10]. Rather, the question is whether the error could realistically have affected the sentencing Judge’s reasoning process. Determining whether that threshold of materiality has been crossed is a matter of balance, degree and judgement.

51. As the authorities make clear, while an indicative sentence is not amenable to an individual appeal and may not have had an impact on the ultimate sentence imposed by the sentencing Judge once considerations of totality are brought to bear, the question is whether the error made by the sentencing Judge could realistically have affected the reasoning which led to the ultimate sentence.

52. Here, the second s 33B offence was amongst the most serious of the offences which contributed to the ultimate sentence. I am satisfied that an error in the assessment of the objective seriousness of that offence could have affected the reasoning which led to the ultimate sentence imposed: Benn v R [2023] NSWCCA 24; (2023) 305 A Crim R 550 at [81] – [88].

53. The applicant’s single ground of appeal is, therefore, made out.

54. As I am satisfied that the identified error “could realistically have affected” the reasoning of the sentencing Judge to the sentence that was imposed in the sense discussed in Farrugia v The King at [6], this Court must exercise the sentencing discretion afresh: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

Resentencing

55. For the purposes of resentencing the applicant, the Crown relied on a body of material which establishes that he has been the subject of disciplinary action arising out of eight incidents during his most recent period in custody.

56. The applicant read an affidavit of his solicitor, Stephen Eccleshall. In it, Mr Eccleshall referred to the administrative nature of the disciplinary action taken in response to infringements and misconduct in the custodial environment. He pointed to a range of reasons why disciplinary findings of this type should be approached with genuine caution. I accept that a cautious approach is warranted. The applicant also prepared an affidavit on which he relied. In that affidavit, the applicant addressed the relevant incidents and largely accepted the factual allegations underpinning the disciplinary action. However, he provided further information to better contextualise his actions.

57. Ultimately, I consider the fresh material relied on by the parties to have limited bearing on the appropriate sentence to be imposed. The applicant did not suggest that anything about his most recent time in custody points to a more optimistic view being reached in relation to his prospects of rehabilitation than that which was reached by the sentencing Judge. Had he done so, the fresh material would not have supported such a finding.

58. On the other hand, the material does provide additional support to the findings made by the sentencing Judge in relation to the applicant’s level of institutionalisation and, in that sense, reinforces the proposition that special circumstances warranting an adjustment of the non-parole period of the type have been established. Like the sentencing Judge, I have reached the view that special circumstances have been established, and for reasons analogous to those given by the sentencing Judge, would make the same adjustment to the non-parole period.

59. The error which I have identified in the sentencing Judge’s reasons relates only to the approach taken by her Honour to the second s 33B offence. The applicant made no complaint about the indicative sentences nominated by her Honour in relation to any of the other offences. Nonetheless, this Court is required to put her Honour’s findings to one side and exercise its sentencing discretion afresh: DS v R [2025] NSWCCA 53 at [86] – [87].

60. I have carefully considered the factual findings made by the sentencing Judge in relation to those offences and to the applicant’s subjective circumstances. Having done so, I am independently satisfied that a 25% discount should be applied for the applicant’s early guilty plea. The indicative sentences that I have independently identified for each of those offences broadly aligns with that identified by the primary Judge. In no case have I concluded that a lower indicative sentence is appropriate.

61. Turning to the second s 33B offence, the fact that the weapon involved was a firearm increases the objective seriousness of that offence. The fact that the offence was committed in a hospital and in the presence of vulnerable people who were themselves receiving treatment likewise increases its objective seriousness. While the objective seriousness of the offence is somewhat reduced by the fact that the firearm remained in its holster while being held by the applicant, I am nevertheless satisfied that the offence lay at the more serious end of the spectrum. I recognise that, before the sentencing Judge, the Crown suggested that this offence was less serious than the first s 33B offence. To the extent that this is so, I consider the difference between them to be very slight.

62. The significant challenges experienced by the applicant in his childhood lead to some reduction in his moral culpability. However, I have concluded that the indicative sentence for the second s 33B offence should be 3 years imprisonment.

63. The relationship between each of the offences is such that only a modest degree of accumulation is required to properly reflect the need for some period of separate custody for each of the three groups of offences, each of which had an impact on different victims. Taking this into account, and giving effect to principles of totality, the sentence which I have arrived at is not lower than the 6 years and 4 months imprisonment imposed by the sentencing Judge.

64. On the whole of the material relevant to penalty, and for the reasons briefly expressed above, I am not satisfied that any lesser sentence than that imposed by the sentencing Judge was warranted in law. Accordingly, and although the applicant’s ground of appeal has been made out, the appeal must be dismissed.

65. I propose the following orders:

66. Leave to appeal granted.

67. Appeal dismissed.

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