Denniss v R

Catchwords: CRIME – Appeals – Appeal against sentence – Assistance to authorities – Whether sentencing judge failed to take into account the applicant’s disclosure to the police immediately after the subject offence as evidence of assistance to authorities and as evidence of remorse – Discount under s 23 Crimes Sentencing Procedure Act 1999 (NSW) – Appeal allowed – Applicant resentenced

Legislation Cited: Crimes Act 1900 (NSW), s 33(1)(b)
Crimes Sentencing Procedure Act 1999 (NSW), ss 21A, 23

Cases Cited: Ahmad v R [2021] NSWCCA 30
Anderson v R [2019] NSWCCA 256
CMB v Attorney General for the State of New South Wales [2015] HCA 9; (2015) 256 CLR 3
Hamdan v R [2023] NSWCCA 80
Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
McKinley v R [2022] NSWCCA 14
Noonan v R [2020] NSWCCA 346
R v Burke [2002] NSWCCA 353
R v Ellis (1986) 6 NSWLR 603
R v SS (2021) 104 NSWLR 454; [2021] NSWCCA 56
Soars v R [2024] NSWCCA 218
Thewlis v R [2008] NSWCCA 176; (2008) 186 A Crim R 279
Tohifolau v R [2018] NSWCCA 283
White v R [2016] NSWCCA 190; (2016) 261 A Crim R 302
Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460

Category: Principal judgment

Parties: Joshua Dennis (Applicant)
Rex (Respondent)

Representation: Counsel:
C O’Neill (Applicant)
F Sullivan (Respondent)
Solicitors:
Legal Aid (NSW) (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2022/00258096

Publication restriction: Nil

HEADNOTE

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

Joshua Denniss, the applicant, pleaded guilty in the Local Court to one offence of causing grievous bodily harm with intent to cause grievous bodily harm, contrary to s 33(1)(b) of the Crimes Act 1900 (NSW). On 15 March 2024, her Honour Judge Harris, after allowing the applicant a 25% discount for his plea of guilty, imposed a sentence of 10 years and 6 months imprisonment with a non-parole period of 7 years imprisonment, commencing on 30 August 2022.

The applicant sought leave to appeal against his sentence on the sole ground that her Honour failed to take into account the applicant’s disclosure to the police immediately after the offence, as evidence of assistance to authorities under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Act”) and as evidence of remorse under s 21A(3)(i) of the Act.

The Court (Sweeney J, Garling J agreeing and Adamson JA dissenting) held, granting leave to appeal**, allowing the appeal and** resentencing the applicant:

Per Sweeney J with Garling J agreeing:

1. The applicant’s telling the police officer, in a relatively timely manner, albeit not immediately, after the subject offence, that he had “murdered someone” and bashed someone, was evidence of remorse and was assistance to police which enabled the victim to receive more timely attention. The issue having not been raised by the applicant’s trial counsel for her Honour’s consideration caused a miscarriage of justice in the sentencing process: [83] (Sweeney J); [31] (Garling J).

Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 and R v Ellis (1986) 6 NSWLR 603 considered.

2. The appeal was allowed on this ground and the applicant resentenced to a non-parole period of 6 years imprisonment, with an additional term of 3 years imprisonment, making a total sentence of 9 years imprisonment, to date from 30 August 2022.

Kentwell v The Queen [2014] HCA; (2014) 252 CLR 601 applied.

Per Adamson JA (dissenting):

3. No adjustment ought be made to the sentence on the basis of “ameliorating conduct”: [16].
4. The applicant was under the impression that he had “murdered” the victim, waited 40 minutes between the assault and the report to police and asked the officer for a cigarette rather than immediately reporting what had occurred. The applicant did not display conduct of the kind described in Thewlis v R [2008] NSWCCA 176; (2008) 186 A Crim R 279 to result in a mitigation of sentence. There was no error shown in the sentencing judge’s consideration of the relevant factors: [23].

Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460; R v Burke [2002] NSWCCA 353; Ahmad v R [2021] NSWCCA 30 and Thewlis v R [2008] NSWCCA 176; (2008) 186 A Crim R 279 considered and applied.

5. The sentencing judge’s reasons, as they referred to a report stating that the applicant was “horrified” about his offence, were sufficient to indicate that her Honour took into account the applicant’s almost immediate acceptance of responsibility for his acts as demonstrating remorse: [26].
6. Even if s 23 of the Act were not engaged, and this Court were required to consider a discount under that section, intervention is not warranted. The sentence imposed already included an adjustment for special circumstances such that the ratio between the non-parole period and the total term is 66%. Further, the offence was objectively serious and involved a substantial degree of violence against a hapless victim. Therefore, any lesser sentence would be “unreasonably disproportionate to the nature and circumstances of the offence” within the meaning of s 23(3) of the Act: [27]-[28].

JUDGMENT

1. ADAMSON JA: I have had the benefit of reading the reasons of Sweeney J in draft and gratefully accept her Honour’s summary of the proceedings in the Court below, the reasons of the sentencing judge and the submissions made in this Court.

The relevant background

2. As her Honour has set out, the applicant assaulted the victim, who was the night manager at the hotel where the applicant was staying with his sister, and caused him grievous bodily harm. This resulted in substantial, permanent brain damage, cognitive dysfunction and permanent physical and mental disabilities. The victim’s life has been irreparably damaged by the ferocious and unprovoked attack: he can no longer work and requires significant care and medical treatment. Approximately 40 minutes after the attack, the applicant presented himself at a nearby police station where, after asking for a cigarette, he confessed to the crime (which, at that stage, he believed to be murder) and told the police where the victim could be found. This led to the police and an ambulance attending the hotel.

3. The agreed facts as to the circumstances of the offending and the report to police were as follows:

1 Amos Baker (born [XXX] 1974), the victim, is employed at the Adina Apartments [XXX] Wollongong.

2 During the early hours of 30 August 2022, the victim was working as the night manager of the apartments.

3 At this time, Joshua Denniss (born [XXX] 1983 also known as Michael Shaw), was temporarily staying in Room 209 of the apartments with his sister and a family friend. The offender had only been released from custody in Queensland a week prior and was being assisted by his family in relation to temporary accommodation.

4 About 3:05am, the victim was standing behind the reception counter. The offender approached the counter and had a conversation with the victim for several minutes.

5 The offender, without provocation, walked around the counter and punched the victim. The victim fell to the ground and landed on his back.

6 The offender climbed on top of the victim, straddling his chest, and with both hands repeatedly punched his head and face.

7 The victim, lay motionless on the ground and bled as the offender repeatedly punched his face over 30 times with closed fists. Due to the ferocity of the attack, the victim was unable to defend himself.

8 The offender then lay over the top of the victim, placing with his full body weight over the victim's face, head and upper chest. The offender lay motionless in this position for 50 seconds.

9 After this time the offender got up off the victim, stepped on the victim's stomach as he walked over him, and walked away. The victim was left prone on the floor.

10 After some time, the victim dragged himself on the floor to the office which has an auto close door and attempted to get help.

11 The offender walked up a flight of stairs and kicked his way out of a back door. The offender jumped over a railing and landed on top of the Anytime Fitness building, which was two metres below.

12 A fingerprint in blood was later located on the handrail where the offender jumped the railing. The fingerprint was matched to the offender.

Offender attends Wollongong Police Station

13 The offender jumped down and walked to Wollongong Police Station at around 3:45am and sat on a bench. At this time, police officers were standing in front of the station. At 3:46am the offender approached LSC Michael Brown and asked for a cigarette. LSC Brown asked, 'What are you doing out this time of night? What are you up to?' The offender said, 'I've murdered someone.' Police saw that the offender had blood on his shirt, arms, hands and face.

14 The offender was cautioned, and police activated Body Worn Video. When questioned further, the offender stated he went outside for a cigarette and spoke to the victim, who would not let him back inside. The offender said he 'lost the plot' and 'bashed him'.

15 Police immediately attended the apartments and forced entry to the office at 4am. The victim was found lying on the floor with obvious extensive injuries to his face and had difficulty breathing. An ambulance arrived short time later and treated the victim on scene before he was taken to Wollongong Hospital. The victim was intubated and placed into an induced coma.

…

(Italics in original.)

The ground of appeal

4. The single ground of appeal is:

Her Honour failed to take into account the applicant's disclosure to the police immediately after the offence, as evidence of assistance to authorities under s 23 of the [Crimes (Sentencing Procedure) Act 1999 (NSW)] and as evidence of remorse under s 21A(3)(i) of the [Crimes (Sentencing Procedure) Act].

5. It was common ground that the sentencing judge did not advert to s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act) and that no submissions relying on s 23 were made to her.

6. Ms O’Neill, who appeared on behalf of the applicant in this Court, submitted that the applicant’s presentation at the police station forty minutes after the offence had been committed had utilitarian value which warranted a discount to his sentence pursuant to s 23 of the Act because it:

7. avoided a more extensive police investigation;

8. saved the police from having to locate and arrest the offender; and

9. enabled the police to attend on the victim in a timely way.

10. Ms O’Neill also submitted that the sentencing judge failed to take his immediate post-offence conduct into account when assessing remorse.

The alleged error in not allowing a discount under s 23 of the Act

8. The evidence does not reveal why no submission regarding s 23 was made to the sentencing judge. Although it may have been due to oversight, it is entirely possible that the applicant’s counsel considered that it was not worth seeking a discount for assistance in a case such as the present when the identity of the offender could be readily ascertained by his having stayed at the hotel and the circumstances of the offending were filmed in their entirety.

9. The principles articulated in Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 (Zreika) (Johnson J, McClellan CJ at CL and Rothman J agreeing) are relevant and are as follows:

10. there is a practical expectation that counsel will make submissions about factors considered to be relevant (at [80]);

11. error cannot generally be established on appeal in respect of a point not raised at first instance (at [77]-[82]);

12. absent a miscarriage of justice or a serious injustice, such as when the Court is deprived of significant material or an overwhelmingly significant consideration is overlooked, the applicant is bound by the conduct of counsel at first instance (at [82]); and

13. this Court is able to correct a miscarriage of justice or serious injustice in clear and rare cases where the relevant matter was not raised at first instance (at [82]).

14. Ms O’Neill confirmed that she did not submit that “[the applicant’s] assistance ultimately assisted the victim’s prognosis”. Instead, she submitted that if the effect of the “assistance” was to help the victim by alerting the law enforcement authorities (even if it was not of assistance to law enforcement authorities as such), it could be taken into account under s 23 of the Act. I reject this submission as I regard it as being inconsistent with the text and purpose of the section.

15. Further, Ms O’Neill relied on McKinley v R [2022] NSWCCA 14 (McKinley) at [56] where this Court (Rothman J, Macfarlan JA and Dhanji J agreeing) said:

[U]ltimately the test that must be utilised depends upon the fulfilment of the purpose of the administration of justice. The reduction needs to be sufficiently significant that it will encourage those persons who have committed crimes to come forward and confess the crime, notwithstanding that the police are unaware of either the crime or the perpetrators of the crime.

(Emphasis added.)

12. Ms O’Neill submitted, on the basis of McKinley, that “it would be contrary to the public interest of encouraging offenders to come forward to deny this applicant any practical benefit for having done so”. I reject this submission, which does not take adequate account of the portion of the passage from McKinley which I have highlighted in the extract above.

13. The Court in R v Burke [2002] NSWCCA 353 (Burke) at [32] (Sperling J, Giles JA and Levine J agreeing) said of the s 23 discount:

A full confession and co-operation with the investigating authorities from the start does not entitle an offender to a discount over and above the discount for a plea of guilty. Such behaviour may be relevant in other ways, such as being evidence of contrition in conjunction with other evidence. As I have said, the sentencing judge declined to find contrition. The applicant’s co-operation and admissions were in the face of overwhelming evidence of his offending, and I do not think that he erred in failing to regard it as evidence of contrition.

(Emphasis added.)

14. A discount under s 23 of the Act is not a matter which should be assessed or addressed without any particularity or on the basis of surmise. As this Court (Leeming JA, Harrison J and myself) explained in Ahmad v R [2021] NSWCCA 30, citing Burke at [32] and cited with approval in R v SS (2021) 104 NSWLR 454; [2021] NSWCCA 56 at [63] (Hoeben CJ at CL, R A Hulme J and myself):

35 In a sense every guilty plea provides assistance to the Crown. If a guilty plea is accepted, the Crown will secure a guilty verdict, without the risks attendant upon a criminal trial. But that is not sufficient to engage s 23. As was said in R v Burke [2002] NSWCCA 353 at [32], “A full confession and co-operation with the investigating authorities from the start does not entitle an offender to a discount over and above the discount for a plea of guilty.”

36 If an offender seeks to obtain a discount for assistance over and above the utilitarian discount for a guilty plea, then s 23 will apply and it will be incumbent to establish precisely what information or assistance the offender has provided and its value, truthfulness, completeness, reliability, timeliness and the various other matters to which the Court must have regard in s 23(2). The difficulty in the present case is that there is very little by way of evidence to establish what the applicant actually provided, as opposed to what was already within the Crown case. There are substantial difficulties in making the findings required by s 23(2).

(Emphasis added.)

15. I am not persuaded that the applicant gave any real assistance to authorities within the meaning of s 23 of the Act. In order to prepare the statement of facts for sentencing, the police still had to watch the video and have the bloody handprint in the reception tested to ascertain that it was the applicant’s (since the victim also touched the walls in reception with bloodied hands in a series of futile attempts to get to his feet after the attack). I do not consider that the conduct of the applicant in the present case ought properly be classified as assistance to authorities under s 23 of the Act. There is insufficient basis (amounting to no more than speculation) on which this Court could conclude that the applicant’s presentation to the police station affected the investigation of the offence, which would have been discovered soon enough.

Ameliorating conduct

16. For completeness, I note that this Court has recognised that, in some cases, where an offender has acted immediately or shortly after the commission of a crime to ameliorate the consequences of a crime, that “ameliorating conduct” can be taken into account on sentence. For the following reasons, I do not consider that any adjustment ought be made to the sentence on that basis in the present case. I acknowledge that it was not expressly put on this basis by Ms O’Neill but I propose to address it because it might be thought to arise from her submissions.

17. Thewlis v R [2008] NSWCCA 176; (2008) 186 A Crim R 279 (Thewlis) provides an example of ameliorating conduct which was found to be mitigating in this Court to reduce a sentence, notwithstanding that it had not been raised before the sentencing judge. The applicant, Mr Thewlis, was engaged to be married to Ms Hodgson. When the engagement was broken off, she formed a relationship with Mr Hanks. Mr Thewlis visited Mr Hanks’ residence when Ms Hodgson was present. Mr Thewlis stabbed Ms Hodgson with a knife and, when Mr Hanks intervened to protect her, Mr Thewlis began to stab him. The knife broke and Mr Hanks returned to tend to Ms Hodgson. The applicant then went next door and asked the neighbours, Mr and Mrs Larkin to contact emergency services. He told Mr Larkin that he had stabbed Ms Hodgson in the chest. Once the applicant knew that the ambulance was on its way, he returned to Mr Hanks’ residence where he waited until the police arrived. He admitted to police that he had stabbed both victims. It was accepted that Ms Hodgson survived her injuries as a consequence of prompt and efficient medical treatment.

18. The applicant successfully appealed to this Court on the basis that Mr Thewlis’ ameliorating conduct ought to have been taken into account notwithstanding that it was not raised in those terms before the sentencing judge.

19. Spigelman CJ (Price J agreeing), after expressing agreement with Simpson J, said as follows:

4 … something special is required for ameliorative conduct to result in mitigation of sentence. Merely taking a step to redress the effect of a crime on victims is not of itself enough.

5 In the present case that special additional element is to be found in the fact that it does appear that the applicant’s immediate recognition of his wrongful act played a significant, and quite possibly decisive role, in saving the victim’s life.

20. Simpson J (Spigelman CJ and Price J agreeing) said, of present relevance:

38 This is not a circumstance that goes to the evaluation of the objective seriousness of the offences, which, by this time were complete. Nor is it an instance of conduct of the kind explained in R v Ellis (1986) 6 NSWLR 603, (voluntary disclosure of otherwise undetected guilt) warranting leniency in sentence for the reasons there set out. And it goes well beyond throwing light on remorse or contrition, which were also well established. It goes to amelioration of the effects of the applicant’s criminal conduct.

39 This was an unusual case, in that the applicant took immediate, almost instantaneous, steps to ameliorate the consequences of his crimes; and, further, that, in the case of Ms Hodgson, those steps may well have had substantial beneficial, and ameliorative, effects.

40 Although reference was made, both in the facts and submissions, to this circumstance, Morgan DCJ was not asked to take it into account in this way. It appears to me that she did not. But it is something which, I have concluded, the applicant was entitled to have taken into account not as a mitigating factor catalogued in s 21A(3), but as a particular, and unusual, circumstance which may be called ameliorative conduct, justifying a measure of leniency on that particular basis.

41 The notion is not unique. There have been cases, such as property crimes, where leniency is justified because reparation has been voluntarily made prior to any charges being brought or anticipated. That is an appropriate analogy.

21. In Thewlis, this Court granted leave to appeal, allowed the appeal and reduced the sentence by reason of the applicant’s ameliorating conduct on the basis that, by acting as he did, he had saved Ms Hodgson’s life.

22. In the present case, Ms O’Neill confirmed that there was no basis to submit that the applicant’s conduct lessened the victim’s injuries, much less saved his life. The highest she could put it was that assistance (in the form of the arrival of police and an ambulance) might have come earlier than it would otherwise have done and that the victim’s suffering might have been alleviated slightly earlier. Indeed, in the sentencing judge’s reasons, her Honour said, reflecting the case which was put on behalf of the applicant:

That the injuries were not more severe or indeed that Mr Baker survived, is not attributable to any mitigating act of the offender.

23. Thus, the unusual features which resulted in the sentence imposed on the applicant in Thewlis being reduced (immediate attempts by the offender to reverse the harm which he had caused which were regarded as having saved the victim’s life) are all absent in the present case. First, the applicant was under the impression that he had “murdered” Mr Baker who was, therefore, beyond help. Secondly, about forty minutes passed between the assault and the report to police. Thirdly, upon his arrival outside the police station, the applicant asked an officer for a cigarette rather than immediately reporting what had occurred. I am not persuaded that, in these circumstances, any error has been shown in the sentencing judge’s consideration of the relevant factors.

Alleged error in assessing remorse

24. It was further argued that the sentencing judge did not take the applicant’s immediate post-offence conduct into account when weighing up his remorse. The sentencing judge’s reasons are, relevantly:

Turning to evidence of remorse and related considerations of the risk of reoffending and prospects of rehabilitation. The comments made to Dr Kho suggest that the offender is remorseful for what he did. This morning the offender apologised by way of AVL to Mr Baker as Mr Baker sat in the public gallery. However, this was not evidence given on oath and he was not able to be challenged in cross-examination. Whilst I am satisfied that [he] has demonstrated some element of remorse, the extent of that remorse and its capacity to inform his prospects of rehabilitation I do not know.

(Emphasis added.)

25. I understand the reference to “the comments made to Dr Kho” to be a reference to the following paragraph in Dr Kho’s report:

On the morning of the offence, Mr Denniss was staying at the Adina Apartments with his sister. He recalled that he had been unable to sleep and had been going downstairs to smoke cigarettes frequently. He forgot to bring the access card to enter the building and approached the night manager, who was the victim, to be let in. However, the victim refused to do so, and an argument started leading to Mr Denniss perpetuating violence against the victim. Mr Denniss stated that he did not recall enacting the violence as he had "blacked out and woke up on top of' the victim. When he had realised what he had done, he voluntarily went to the police and reported his actions. Mr Denniss stated that he continues to feel "horrified" about his offence as the victim has had life changing injuries. He stated that it was the "worst thing [he] had ever done", and "nothing justifies" his actions against the victim.

(Emphasis added.)

26. I consider that the sentencing judge’s reasons are sufficient to indicate that her Honour took into account the applicant’s almost immediate acceptance of responsibility for his acts as demonstrating remorse. Her Honour’s reasons expressly incorporate (by reference) this passage from Dr Kho’s report.

Conclusion

27. In conclusion, I am not persuaded that the applicant has established any error on the part of the sentencing judge such as would warrant the sentence being set aside and require this Court to re-sentence. However, even if, contrary to my view, that s 23 of the Act was not engaged, and this Court were required to consider a discount under that section, I do not consider that intervention is warranted, having regard to s 23(3) of the Act which provides:

A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence.

28. The sentence imposed included an adjustment to the statutory ratio for special circumstances such that the ratio between the non-parole period and the total term is 66%. The offence was objectively very serious and involved a substantial degree of ferocious violence against a hapless victim whose life has been, effectively, ruined because the applicant felt aggrieved at momentarily being impeded from returning to the room where he was staying, having left his key while going to smoke outside the premises. I consider that any lesser sentence would be “unreasonably disproportionate to the nature and circumstances of the offence” within the meaning of s 23(3) of the Act. Further, even if error had otherwise been shown, I would have dismissed the appeal on the basis that no lesser sentence was warranted in law.

Leave

29. The present application gives rise to an important question of principle, which, in my view, warrants a grant of leave.

Proposed orders

30. I propose the following orders:

31. Grant leave to appeal.

32. Dismiss the appeal.

33. GARLING J: I agree with the orders proposed by Sweeney J, and with her Honour’s reasons.

34. SWEENEY J: On 15 March 2024 Joshua Denniss, the applicant, was sentenced at Wollongong District Court by her Honour Harris DCJ for one offence of causing grievous bodily harm with intent to cause grievous bodily harm, to which he had pleaded guilty in the Local Court. That offence, contrary to s 33(1)(b) of the Crimes Act 1900 (NSW), has a maximum penalty of 25 years imprisonment and a standard non-parole period of 7 years imprisonment prescribed.

35. The applicant was sentenced to 10 years and 6 months imprisonment with a non-parole period of 7 years imprisonment, commencing on 30 August 2022. He seeks leave to appeal against that sentence on the sole ground that:

“Her Honour failed to take into account the applicant’s disclosure to the police immediately after the offence, as evidence of assistance to authorities under s 23 of the CSPA and as evidence of remorse under s 21A(3)(i) of the CSPA.”

34. The applicant does not challenge any other of her Honour’s findings. Therefore, I summarise her Honour’s Remarks on Sentence as follows.

35. The facts were agreed, as follows. The victim, Mr Amos Baker, was employed at the Adina Apartments in Wollongong. He was 47 years old. In the early hours of 30 August 2022, he was working as the night manager. The applicant was temporarily staying in a room of the apartments with his sister and a friend. He had been released a week earlier from custody in Queensland. His family were assisting him with temporary accommodation.

36. At 3:05AM Mr Baker was standing behind the reception counter. The applicant approached the counter and had a conversation with Mr Baker for several minutes. Then, without provocation, the applicant walked around the counter and punched Mr Baker, who fell to the ground on his back. The applicant straddled Mr Baker and with both hands repeatedly punched his head and face. Mr Baker lay motionless on the ground bleeding, as the applicant repeatedly punched his face over 30 times with closed fists. Due to the ferocity of the attack, the victim was unable to defend himself. The applicant then lay with his body over the victim’s face, head and upper chest, for 50 seconds. He then stood up and stepped on the victim’s stomach as he walked over him and walked away. The victim was left on the floor.

37. The agreed facts and her Honour’s Remarks on Sentence stated that after some time, the victim dragged himself along the floor to an office and attempted to obtain help, but a viewing of the closed circuit television (CCTV) footage of the offence showed the victim attempting to stand up and move, for about 10 minutes, but being unable to do so.

38. Her Honour’s Remarks on Sentence continued that the applicant walked up some stairs and kicked his way out of a back door, jumped over a railing and landed on a building two metres below, leaving a bloody fingerprint on the handrail where he had jumped over the railing.

39. The applicant walked to Wollongong police station, arriving at around 3:45AM. There were police officers standing in front of the station. The applicant approached an officer and asked for a cigarette. The officer asked him what he was doing out at that time of night and the applicant said “I’ve murdered someone.” Police saw that the applicant had blood on his shirt, arms, hands and face. He was cautioned and questioned further, during which he said he had “lost the plot” and bashed the victim who would not let him back inside after he had gone outside for a cigarette.

40. Police immediately attended the Adina Apartments at 4AM. The victim was found lying on the floor, with obvious extensive injuries to his face and having difficulty breathing. An ambulance arrived and treated him before he was taken to Wollongong Hospital. He was intubated and placed in an induced coma.

41. As a result of the assault Mr Baker suffered multiple facial fractures and lacerations, including a complicated tongue laceration, bleeding on the brain and an acquired brain injury. He has no memory of the assault. He received treatment including to relieve pressure on his brain, and for his tongue laceration and facial fractures. Between 30 August and 27 September 2022 he had multiple operative procedures. He was transferred to a rehabilitation hospital in relation to his brain injury and was not discharged until January 2023. He continues to suffer continuing impairment to his cognitive and executive brain function.

42. In assessing the objective seriousness of the offence her Honour took into account that the offence was unplanned and unprovoked; Mr Baker was in a vulnerable position as a night manager in a hotel in the early hours of the morning; the assault was not fleeting, but involved sustained, ferocious violence. The CCTV footage showed multiple applications of force, with punching to the victim’s head more than 30 times as he lay unresponsive. It continued unabated and long after the victim was obviously bleeding and injured and unable to defend himself. The attack involved such force that the applicant apparently lay exhausted on top of the victim for a considerable time before getting up and moving away, in the course of which he stepped on and walked across the victim’s body. Her Honour took into account the vision of the victim attempting, over 10 minutes, to move and stand up but falling back to the floor.

43. Her Honour took into account the serious injuries sustained, that Mr Baker remained in hospital care for more than 4 months after the assault, he had post-traumatic amnesia for 42 days, indicative of a severe brain injury, and he requires ongoing treatment and care. He has significant difficulty in visual and auditory memory, requires speech pathology, and is not permitted to ride his motorcycle.

44. In March 2024 Mr Baker was 18 months post-injury and continued to have significant functional, cognitive and medical needs. Her Honour found that his injuries were significant and life altering, requiring treatment into the foreseeable future.

45. Her Honour took into account Mr Baker’s Victim Impact Statement, and the multitude of ways his high order injuries have affected his life. She found the harm to him substantial, but did not treat that as an aggravating factor pursuant to s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Act”). She assessed the injuries as above “the mid-range of injuries amounting to grievous bodily harm, albeit not at the upper end”.

46. Her Honour afforded the applicant a 25% discount for his plea of guilty to the offence in the Local Court.

47. In terms of his subjective factors, her Honour noted that the applicant was aged 40. His criminal record dated from just before his 18th birthday. His adult record consisted largely of domestic violence offences, including breaches of domestic violence orders and assaults occasioning actual bodily harm, the last in New South Wales in December 2018. He had a more recent history in Queensland of breaching Apprehended Domestic Violence Orders, for which he was imprisoned and then breached his parole order. He was subject to a 2 year suspended sentence for assaulting an officer and damaging property in Queensland at the time he committed the subject offence, which her Honour considered an aggravating feature on sentence.

48. Her Honour considered that the applicant’s history of offending was likely related to a long history of substance abuse and drinking, associated with his experiences growing up, but it disentitled him to leniency.

49. From reports by Dr Richard Furst, psychiatrist, and Dr Li Liane Kho, psychologist, her Honour noted the following of the applicant’s subjective circumstances. He was raised by both of his parents until their separation in his early adolescence. The family struggled financially and at times there was little food in the house. He witnessed domestic violence between his parents. He experienced learning difficulties at school and was targeted by other students. He was expelled from primary and high school. He completed year 9 and left school at the age of 16. He had had some employment, although in recent years it was interrupted by incarceration.

50. He was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) at around the age of 10 and prescribed medication, but stopped taking that when he was 16. He was prescribed medication for ADHD in custody recently but stopped taking that medication to qualify for an opioid treatment program. He had abused drugs and alcohol from his early teens, with his substance use increasing into his early 20s. Her Honour found that the applicant’s criminal history is tied to his substance abuse, which was relevant to the present offence, in that the applicant acknowledged that when abusing substances he can become aggressive and paranoid.

51. The applicant has engaged in substance abuse treatment in the past, although relapsed each time, including after his most recent release from custody in Queensland. He achieved a period of sustained abstinence between 2008 and 2012 after attending a rehabilitation centre. His criminal record was clear between April 2008 and July 2012. Her Honour noted that the applicant’s capacity for remaining drug free and offence free provided some optimism for his prospects of rehabilitation.

52. Her Honour noted that after the applicant’s release from 16 months in custody in Queensland on 23 August 2022 he adjusted poorly to life outside gaol and considered himself homeless. He struggled to obtain documents and access necessary services to function in the community. He drank heavily. His family noticed an increase in irritability and problems with general day-to-day functioning.

53. Her Honour found it was likely the applicant was heavily intoxicated at the time of the offence. He told Dr Furst he walked to the police station and “in effect” handed himself in. He told Dr Kho he was horrified about what he did. Dr Furst was of the opinion that the applicant met the criteria for Substance Use Disorder (methylamphetamine and opiates), Antisocial Personality Disorder and ADHD, and that his primary problems relate to drug addiction and unstable antisocial personality structure.

54. Her Honour noted Dr Kho’s opinion that the applicant’s exposure to parental conflict as a child was such that he did not learn adaptive emotional regulation and used aggressive and/or avoidant behaviour to cope, and in his teens he used substances to regulate his emotions, which led to his criminal offending and the development of an Antisocial Personality Disorder. Dr Kho said that after the applicant was released from custody in Queensland he wanted to stay abstinent from drugs but lacked coping and emotional regulation strategies and drank to cope with negative emotions.

55. Her Honour noted that the applicant’s diagnosis of ADHD since childhood was relevant to poor consequential thinking and impulsivity, impacted by heavy drinking, which also likely increased his aggression. Her Honour noted Dr Kho’s opinion that the applicant’s mental health issues directly contributed to his behaviour at the time of the offence.

56. Her Honour was satisfied that the applicant’s mental health and its relationship with his alcohol abuse played a relevant role in the offence. Her Honour stated that the applicant’s:

“… mental health and the genesis of it will allow for moderation of moral culpability and the need to address general and specific deterrence. A greater emphasis is to be placed on considerations involving the protection of the community”.

57. Her Honour stated, in respect of remorse, that:

“The comments made to Dr Kho suggest that the offender is remorseful for what he did. This morning the offender apologised … to Mr Baker as Mr Baker sat in the public gallery. However, this was not evidence given on oath and he was not able to be challenged in cross-examination. Whilst I am satisfied that he has demonstrated some element of remorse, the extent of that remorse and its capacity to inform his prospects of rehabilitation I do not know.”

58. Her Honour was guarded about the applicant’s prospects of rehabilitation and found his risk of reoffending was at least medium.

59. Over opposition from the Crown her Honour found special circumstances and reduced the non-parole period to 66% of the head sentence.

The applicant’s submissions

60. The applicant seeks to rely on the evidence that he voluntarily disclosed his guilt of the offence to police shortly after the offence, as evidence of his assistance to police, for the purposes of s 23 of the A**ct, and as evidence of his remorse.

61. Counsel for the applicant conceded that his counsel in the sentence proceedings did not raise the applicant’s conduct in the context of either issue and that he therefore has to address this Court’s decision in Zreika v R [2012] NSWCCA 44 (“Zreika”) wherein Johnson J, with whom McClellan CJ at CL and Rothman J agreed, said:

[81] “The Victorian Court of Appeal has emphasised recently, that in sentencing appeals, the Court is reviewing the exercise of a discretionary judgment and not rehearing a plea of mitigation. It is not the occasion for the revision and reformulation of the case presented below. The Court will not lightly entertain arguments that could have been put, but were not advanced on the plea, and will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of submissions previously made. The Court spoke of the need for exceptional circumstances before this can be done, where it can be shown that there was most compelling material available on the plea that was not used or understood, and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence: Romero v R [2011] VSCA 45 at [11]; Keane v R [2011] VSCA 156 at [13],[18]; Bayram v R [2012] VSCA 6 at [28]-[29].

[82] In rare circumstances, a factor which may operate in mitigation of penalty (and which appears clearly from the material before the sentencing Judge) may have been overlooked by defence counsel and the sentencing Judge. In such a case, this Court may be invited to have regard to it, often in circumstances where the Crown will accept that the relevant material raised a factor which should unequivocally operate in the offender’s favour on sentence. As Warren CJ said in Bayram v R at [29], it may “render a serious injustice” if an offender was not able to correct the error in such a case. This approach reflects the primacy of the rule that appeal grounds should relate to arguments put, and decisions made, at first instance. At the same time, criminal appellate courts should be able to correct a miscarriage of justice, or serious injustice, in the clear and rare cases where the relevant matter has not been relied upon at first instance.”

62. Counsel submitted that this was not a case of the applicant seeking to resile from concessions, contradict submissions made, or depart from the case run in the District Court.

63. In White v R [2016] NSWCCA 190; (2016) 261 A Crim R 302 Simpson JA, with whom Bathurst CJ agreed, referred to the statements of Johnson J in Zreika at [81] and [82] and said:

[127] “The judgment of Johnson J is carefully worded so as not to preclude the intervention of this Court where justice demands that it intervene.”

64. Counsel submitted that this Court should be persuaded that it is in the interests of justice to consider the applicant’s ground of appeal because the issue was material and there is no apparent reason why it was not raised, for the purpose of s 23 of the Act and in relation to the applicant’s remorse, before her Honour. Although the matter was apparently overlooked and not raised before her Honour, her Honour failed to take into account a material consideration.

65. Counsel relied on the principle stated by Street CJ in R v Ellis (1986) 6 NSWLR 603 and now reflected in s 23 of the Act: CMB v Attorney General for the State of New South Wales [2015] HCA 9; (2015) 256 CLR 3.

66. Section 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) relevantly provides:

23 Power to reduce penalties for assistance provided to law enforcement authorities

(1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence.

(2) In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters—

(a) (Repealed)

(b) the significance and usefulness of the offender’s assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered,

(c) the truthfulness, completeness and reliability of any information or evidence provided by the offender,

(d) the nature and extent of the offender’s assistance or promised assistance,

(e) the timeliness of the assistance or undertaking to assist,

(f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist,

(g) whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist,

(h) any injury suffered by the offender or the offender’s family, or any danger or risk of injury to the offender or the offender’s family, resulting from the assistance or undertaking to assist,

(i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence,

(j) (Repealed)

(3) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence.

(4) A court that imposes a lesser penalty under this section on an offender because the offender has assisted, or undertaken to assist, law enforcement authorities must—

(a) indicate to the offender, and make a record of the fact, that the lesser penalty is being imposed for either or both of those reasons, and

(b) state the penalty that it would otherwise have imposed, and

(c) where the lesser penalty is being imposed for both reasons—state the amount by which the penalty has been reduced for each reason.

67. Counsel submitted that there was undisputed evidence in the agreed facts that the applicant voluntarily disclosed his guilt of the offence to police about 40 minutes after the offence, at which time police had not been notified of the offence, and that police immediately attended the apartments and found the victim with extensive injuries and difficulty breathing, and an ambulance attended shortly after and took him to hospital.

68. Addressing the s 23 factors, counsel submitted that the applicant’s assistance was highly significant and useful because at the time of his disclosure police were not aware of the commission of the offence or his identity as the perpetrator, such that his disclosure hastened police attendance at the scene and assistance to the victim, and that while the applicant would have been detected for the offence in due course, given the CCTV footage, his sister staying in the hotel, and his fingerprint at the scene, the need for police resources to be expended on his detection and arrest was avoided. Counsel submitted that the information provided by the applicant, although limited in detail, was truthful, complete and reliable, that he reported his offence to the police in a timely manner, that he has not received any other benefit for his disclosure and the assistance concerns the offence for which he was sentenced.

69. Counsel acknowledged that s 23 of the Act provides a discretion to discount a sentence. She relied on the decision of this court in McKinley v R [2022] NSWCCA 14 about the public policy behind reducing sentences to encourage offenders to disclose their crimes.

70. Counsel submitted that the applicant’s attendance at the police station and disclosure of guilt was also evidence of remorse in the sense of his expressing responsibility for the victim’s injuries and acknowledging the seriousness of them, and should be treated as evidence of remorse and improving the applicant’s prospects of rehabilitation.

71. Counsel submitted that Judge Harris did not take into account in terms of remorse the applicant’s disclosure at the police station, contrary to the Crown’s submission below, but rather that her Honour took into account Dr Kho’s statement that the applicant was horrified about his offence, that it was the “worst thing he had done”.

72. Counsel submitted that a reduction of the applicant’s sentence for his assistance would not result in an unreasonably disproportionate sentence for the offence, relying on sentencing cases concerning similar offending with similar serious injuries: Soars v R [2024] NSWCCA 218; Noonan v R [2020] NSWCCA 346; Anderson v R [2019] NSWCCA 256; Tohifolau v R [2018] NSWCCA 283.

Crown submissions

73. The Crown relied on Zreika and submitted that error cannot be established by saying a judge erred in failing to deal with a point which had not been raised. The Crown submitted that this was not a clear and rare case where the Court should intervene to correct a miscarriage of justice or serious injustice because none occurred.

74. The Crown submitted that s 23 is not expressed in mandatory terms and does not require the sentencing court to discount a sentence to reflect assistance even if it is raised by counsel, relying on Hamdan v R [2023] NSWCCA 80 per Wilson J at [52]. The Crown submitted that had the issue of the applicant’s assistance been raised, her Honour would not have concluded it came within s 23 of the Act.

75. The Crown disputed that the applicant’s assistance was “highly significant and useful”, as he contended. The Crown submitted that it is likely the applicant would have been detected for the offence, given the high quality of the CCTV footage, that the applicant was staying in the hotel so that he would have been quickly identified, and his fingerprint left at the scene would have resulted in him being identified. Therefore any reduction in the police investigation was negligible.

76. The Crown submitted that the applicant did not attempt to obtain any assistance for the victim, did not call 000, callously disregarded the victim and left him for dead, that there was a delay in his attendance at the police station and he did not immediately approach police when he arrived at the police station. The Crown contended that had the applicant not made the limited disclosure to police that he did, the victim and the offence would still have been discovered and the evidence would have been sufficient to prove that the applicant committed the offence; therefore his acts do not warrant a s 23 discount.

77. The Crown submitted that had the issue been raised it would not have been appropriate for the sentencing judge to discount the sentence because in doing so the sentencing judge would have imposed a sentence which was unreasonably disproportionate to the nature and circumstances of the offence, in breach of s 23(3) of the Act.

78. The Crown submitted that Judge Harris appears to have considered the fact of the applicant’s attendance at the police station on the issue of his remorse, in that her Honour stated she took into account comments by the applicant to Dr Kho, contained in Dr Kho’s report. The Crown relied in this respect on the statement by her Honour in her Remarks on Sentence:

“The comments made to Dr Kho suggest that the offender is remorseful for what he did.”

and the statement by Dr Kho in her report that:

“… when he had realised what he had done, he voluntarily went to the police and reported his actions”.

79. The Crown submitted that if the applicant’s submission was accepted, that her Honour did not take this conduct of the applicant into account when she considered the issue of remorse, it has not been established that there has been any injustice to the applicant, because it is unclear whether his attendance at the police station was motivated by remorse, and he did not immediately approach police officers when he attended the police station and did not tell them “I’ve murdered someone” until a police officer asked him what he was doing.

Consideration

80. I am satisfied that the applicant’s telling the police officer, shortly after he arrived at the police station, that he had “murdered someone” and bashed someone, was evidence of remorse and was assistance to police, which enabled the victim to receive more timely attention, of which he was clearly in need, as shown in the CCTV footage, than if the applicant had not given that information to police.

81. Clearly there would have come a time later in the morning, when people in the hotel became active or other staff arrived, when the injuries of the victim would have been discovered, and the applicant would have been fairly quickly identified from the CCTV footage. However, the assault occurred shortly after 3AM, police attended the hotel at 4AM, and the victim’s injuries had not been discovered in the intervening period. His state was clearly serious, as demonstrated by his inability to stand up, shown in the CCTV footage.

82. Considering the matters in s 23(2) of the Act, the information was provided in a relatively timely manner, albeit not immediately. It was truthful and reliable, and it was useful in enabling assistance to be provided to the injured victim in a more timely fashion than had he waited for another guest to happen upon him, or for a day manager to arrive at the change of shift. The assistance was in relation to the offence for sentence. The applicant has received no other benefit for his assistance.

83. It is not apparent why experienced, competent counsel did not raise the applicant’s voluntary disclosure of his otherwise unknown offence as assistance and as evidence of his remorse. However, the matter material to mitigation of sentence not having been raised on behalf of the applicant for her Honour’s consideration in those two contexts caused a miscarriage of justice in the sentencing process, and therefore, this Court should intervene to correct the error.

84. Counsel for the applicant did not otherwise challenge the sentence imposed on the applicant, but this Court’s role in resentencing upon error having been found is not to simply adjust the sentence imposed on the applicant by the discount which the applicant’s counsel submitted should be afforded to him, but to exercise the sentencing discretion afresh: Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601.

85. Because there was no challenge to Harris DCJ’s factual findings, findings of objective seriousness, the discount afforded for the applicant’s plea of guilty to the offence or any other finding, I would not depart from any of them. I have considered the cases counsel proffered as being of assistance.

86. I have considered the applicant’s affidavit and two affidavits of Adrian Hizo relied on by the Crown. The Crown submitted that although there are some courses not available to the applicant, he is not taking advantage of what is available to him. The material does not support that. The material provided confirms that the applicant is not eligible for criminogenic programs. He is eligible for specified non-criminogenic programs but one of those has been suspended. He has indicated interest in attending AA/NA but they are not available to him. He is completing some program workbooks in his cell. He took Buvidal and found it helpful. He discontinued it, hoping to remain drug free without it, but says he is going to ask to resume it because he finds it difficult to cope without it. He wants to do drug and alcohol and violence prevention programs but has been told he is ineligible. He wants to work. He has had no custodial offences for violence. He has one offence of refusing a drug test in April 2024, when he was “acutely psychotic”. The applicant is making efforts towards his rehabilitation, to the extent he is able with the restrictions on the resources available to him.

87. For the applicant’s assisting police by informing them of his offence before they had become aware of it and thus permitting more timely assistance to be rendered to the injured victim than would have occurred if the applicant had not provided that assistance, and taking into account the factors in s 23(2) of the Act, I will apply a discount of 7.5%. I also take the applicant’s disclosure to the police into account as indicating remorse at that early stage, and would make a further allowance in the sentence for that remorse.

88. I would grant the applicant leave to appeal, allow his appeal, set aside the sentence imposed by Harris DCJ and sentence the applicant to imprisonment for 9 years. I would maintain the finding of special circumstances which her Honour made and the ratio of the non-parole period to the head sentence which her Honour chose. Therefore the non-parole period would be 6 years imprisonment.

Orders

89. Therefore, I propose the following orders:

90. Grant leave to appeal.

91. Allow the appeal.

92. Quash the sentence imposed by Judge Harris on 15 March 2024 and sentence the applicant to a non-parole period of 6 years imprisonment, with an additional term of 3 years imprisonment, making a total sentence of 9 years imprisonment, to date from 30 August 2022. The non-parole period will expire on 29 August 2028, and the head sentence on 29 August 2031.

**********