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[2026] NSWCCA 27
Court of Criminal Appeal (NSW)
2026-03-25
Kirk JA at [1], Fagan J at [178], Yehia J at [184]
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Fisher v R [2026] NSWCCA 27
Hearing dates: 10 November 2025
Date of orders: 25 March 2026
Decision date: 25 March 2026
Before: Kirk JA at [1];
Fagan J at [178];
Yehia J at [184]
Decision: (1) Grant leave to appeal.
(2) Appeal upheld.
(3) Quash the sentence imposed in the District Court on 12 August 2024 and in lieu thereof sentence the applicant to a term of imprisonment of 5 years 3 months commencing on 18 September 2023 and expiring on 17 December 2028, with a non-parole period of 3 years expiring on 17 September 2026.
Catchwords: APPEALS — Nature of appeal — necessity to show error for both appeals stricto sensu and by way of rehearing — correctness and House v The King standards of review — need to identify error does not determine standard of review — whether House v The King standard can apply differentially in different contexts
CRIME — Appeals — Appeal against sentence —standard of review for findings of fact in sentence appeals — discretionary judgments involved in fact-finding during sentencing — distinctive aspects of fact finding in sentencing — House v The King requires asking whether a finding of fact reasonably open in sentencing appeals under ss 5 and 6 of the Criminal Appeal Act 1912 (NSW) — variable significance of “reasonably open” test based on evaluative character of finding and advantages held by trial judge
CRIME — Appeals — Appeal against sentence — whether finding that applicant intended to kill deceased reasonably open — whether sentencing judge gave adequate reasons for finding — resentence of applicant
SENTENCING — Relevant factors on sentence — objective seriousness — excessive self-defence — whether anterior conduct relevant to objective seriousness
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2), 21A(3)
Crimes Act 1900 (NSW), s 421
Criminal Appeal Act 1912 (NSW), ss 5, 6
Criminal Procedure Act 2009 (NSW), s 278
Evidence Act 1995 (NSW), s 4
Cases Cited: AB v R [2014] NSWCCA 339
Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Anderson v R [2018] NSWCCA 49
BS v R [2021] NSWCCA 39
BTU v R [2023] NSWCCA 36
Cardaklija v R [2026] NSWCCA 9
Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
Clarke v R [2015] NSWCCA 232; (2015) 254 A Crim R 150
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47
Commissioner of Taxation (Cth) v St Helens Farm (ACT) Pty Ltd (1981) 146 CLR 336; [1981] HCA 4
Cranssen v The King (1936) 55 CLR 509; [1936] HCA 42
Dearman v Dearman (1908) 7 CLR 549; [1908] HCA 84
Dib v Rex [2023] NSWCCA 243
DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
Donnelly v R [2021] VSCA 109
DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29
Edmonds v R [2022] NSWCCA 103
Edwards v R [2009] NSWCCA 199
Farkas v R [2014] NSWCCA 141; (2014) 243 A Crim R 388
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Frigger v Trenfield (No 3) [2023] FCAFC 49
GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22
Ghobrial v R [2012] NSWCCA 221
Hancock v R [2025] NSWCCA 213
Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29; (2025) 99 ALJR 1185
Hordern v R [2019] NSWCCA 138; 278 A Crim R 353
House v The King (1936) 55 CLR 499; [1936] HCA 40
Hydro-Québec v Matta [2020] 3 SCR 595; 2020 SCC 37
Impiombato v BHP Group Ltd (2025) 308 FCR 250; [2025] FCAFC 9
Jones v Bradley [2003] NSWCA 81
Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392; [2013] HCA 25
Kazal v Thunder Studios Inc (California) [2023] FCAFC 174; (2023) 416 ALR 24
Keith v Gal [2013] NSWCA 339
KMD v CEO (Department of Health NT) (2025) 99 ALJR 474; [2025] HCA 4
Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
Lee v Yap [2026] VSCA 20
McGregor v R (2024) 116 NSWLR 81; [2024] NSWCCA 200
Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35
Ming v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Moore (a pseudonym) v The King [2024] HCA 30; (2024) 98 ALJR 1119
Mulato v R [2006] NSWCCA 282
Newburn v R [2022] NSWCCA 139
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Patel v R [2019] NSWCCA 170
Paterson v R [2021] NSWCCA 273
Perry v Raleys Solicitors [2020] AC 352; [2019] UKSC 5
Poole v Attorney-General (Cth) (1955) 92 CLR 1; [1955] HCA 14
R v Ahmed (1984) 80 Cr App R 295
R v Bourchas [2002] NSWCCA 373; (2002) 133 A Crim R 413
R v Bui [2025] NSWCCA 114
R v Carrall [2018] QCA 355
R v King (Dwayne) [2017] EWCA Crim 128; [2017] 4 WLR 95
R v Lacasse [2015] 3 SCR 1089; 2015 SCC 64
R v Lacey; Ex parte Attorney-General (Qld) [2009] QCA 274; (2009) 197 A Crim R 399
R v LM [2008] 2 SCR 163; 2008 SCC 31
R v MDU [2024] QCA 113
R v O’Donoghue (1988) 34 A Crim R 397
R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174
R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369
R v Storey [1998] 1 VR 359
R v Strbak [2019] QCA 42
R v White [2025] NSWCCA 111
Rahman v Rahman [2024] NSWCA 198
Riechelmann v McCabe [2024] NSWCA 37
Sasterawan v Morris [2008] NSWCA 70
Simic v The Queen (1980) 144 CLR 319; [1980] HCA 25
Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40
Smith v Blanch [2025] NSWCA 188
State of New South Wales v Culhana (2025) 117 NSWLR 448; [2025] NSWCA 157
The King v Fred [2026] NTCCA 3
The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Valuer-General v Fenton Nominees Pty Ltd (1982) 150 CLR 160; [1982] HCA 46
Volpi v Volpi [2022] EWCA Civ 464; [2022] 4 WLR 48
Warren v Combes (1979) 142 CLR 531; [1979] HCA 9
Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14
Whiteman v Deputy Commissioner of Taxation [2022] FCA 975
Williams v New York 337 US 241 (1949); [1949] USSC 100
Willis v The Queen [2016] VSCA 176; (2016) 261 A Crim R 151
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43
Texts Cited: T Prince, “Recurring Issues in Civil Appeals – Part 1” (2022) 96 Australian Law Journal 203
Category: Principal judgment
Parties: Dylan Fisher (Applicant)
Crown (Respondent)
Representation: Counsel:
T Quilter SC (Applicant)
CJ Tran (Respondent)
Solicitors:
Aboriginal Legal Service (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)
File Number(s): 2023/196179
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
The applicant stabbed and killed the deceased in Tamworth, NSW. He pleaded guilty to the offence of manslaughter, doing so on the basis of excessive self-defence. In August 2024 he was sentenced in the District Court to a term of imprisonment of 9 years, commencing on 18 September 2023, with a non-parole period of 5 years. The applicant sought leave to appeal on three grounds (ground 1A was added by leave in the course of the hearing):
Ground 1: The sentencing judge erred in finding that the applicant intended to kill the deceased in that:
(a) such a finding was not reasonably open; or, alternatively
(b) such a finding was not correct.
Ground 1A: The sentencing judge’s conclusion that the applicant intended to kill the deceased was not supported by adequate reasoning.
Ground 2: The sentencing judge had regard to extraneous matters when assessing the degree to which the applicant’s conduct departed from a reasonable response to the circumstances as he perceived them.
Ground 1 raises the issue of the standard of review to be applied to findings of fact in sentence appeals to this Court pursuant to ss 5 and 6 of the Criminal Appeal Act 1912 (NSW). Both sides provided submissions on the issue. The appeal was heard after argument on that issue before a bench of five judges of this Court in Hancock v R [2025] NSWCCA 213, but prior to that decision being handed down.
The Court (Kirk JA, Yehia J agreeing, Fagan J agreeing in part) held, granting leave to appeal against the sentence, upholding grounds 1 and 1A and resentencing the applicant:
As to review of findings of fact in sentence appeals (per Kirk JA and Yehia J, Fagan J not deciding)**:
(1) Where a discretionary decision is sought to be reviewed, one of the grounds upon which House v The King (1936) 55 CLR 499; [1936] HCA 40 permits such a decision to be challenged is that the primary judge has mistaken the facts. There is reason to think that at least in many contexts that may involve review on the correctness standard. But the intensity of review can turn on the nature of the issue in question. When findings of fact are challenged in a sentence appeal pursuant to ss 5 and 6 of the Criminal Appeal Act the issue is distinctive. The question to be asked is whether the challenged finding of fact was reasonably open: [22]-[68], [118].
House v The King (1936) 55 CLR 499; [1936] HCA 40*;* Cranssen v The King (1936) 55 CLR 509; [1936] HCA 42; Warren v Combes (1979) 142 CLR 531; [1979] HCA 9; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47; Fox v Percy (2003) 214 CLR 118; [2003] HCA 22; Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10; R v Bourchas [2002] NSWCCA 373; (2002) 133 A Crim R 413; Hancock v R [2025] NSWCCA 213, discussed.
Willis v The Queen [2016] VSCA 176; (2016) 261 A Crim R 151; R v Carrall [2018] QCA 355; Donnelly v R [2021] VSCA 109, distinguished.
Commissioner of Taxation (Cth) v St Helens Farm (ACT) Pty Ltd (1981) 146 CLR 336; [1981] HCA 4; Valuer-General v Fenton Nominees Pty Ltd (1982) 150 CLR 160; [1982] HCA 46; Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40; Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17; The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54; Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29; (2025) 99 ALJR 1185; Kazal v Thunder Studios Inc (California) [2023] FCAFC 174; (2023) 416 ALR 24; Impiombato v BHP Group Ltd (2025) 308 FCR 250; [2025] FCAFC 9; Whiteman v Deputy Commissioner of Taxation [2022] FCA 975, referred to.
(2) The way that test is applied in practice will vary depending, in particular, on how evaluative the finding of fact in question was and the degree to which the sentencing judge had some advantage over the appeal court: [77]-[80].
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28; Riechelmann v McCabe [2024] NSWCA 37; R v MDU [2024] QCA 113, referred to.
(3) The finding of a sentencing judge with respect to objective seriousness involves an issue of characterisation. That finding may be built upon findings of fact, to which the above principles apply, but is not itself a finding of fact. Nor is any conclusion involving legal characterisation or application of a legal criterion to some facts: [76].
Mulato v R [2006] NSWCCA 282, referred to.
(4) As discussed in Hancock at [79]-[83], an error of fact will not suffice to require the appellate court to re-exercise the discretion unless it is established to be material in the sense that there is a realistic possibility that the sentencing decision could have been different if the error had not occurred: [43], [45], [81].
Simic v The Queen (1980) 144 CLR 319; [1980] HCA 25; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18; Kazal v Thunder Studios Inc (California) [2023] FCAFC 174; (2023) 416 ALR 24, referred to.
(5) These conclusions do not affect other established principles with respect to sentencing matters, such as those relating to how sentencing judges may find facts, and making due allowance for review of reasons delivered ex tempore: [81].
Hancock v R [2025] NSWCCA 213, referred to.
As to ground 1 (per Kirk JA, Fagan and Yehia JJ agreeing):
(6) The issue of intention fell to be resolved on evidence found on paper. The sentencing judge thus held no natural advantage over the Court in addressing this factual issue: [121].
(7) The sentencing judge relied on three factors to reach the conclusion that the applicant acted with an intention to kill: (i) the deceased being unarmed; (ii) the offender stabbing the deceased; and (iii) the stab blow being directed to the left side of the deceased’s body. These factors did not establish a reasonable basis to infer, beyond reasonable doubt, that the applicant had an intention to kill the deceased:
(i) That the deceased was unarmed has limited relevance to whether the applicant intended to kill him in this case: [124].
(ii) The fact that the applicant stabbed the deceased is significant but not determinative in assessing whether he intended to kill the deceased when defending himself: [125].
(iii) There is no basis to infer that the applicant intended to stab the deceased in the heart. There is also at the least a significant possibility that if the applicant was going to stab the deceased in order to defend himself the easiest way to do so would be using his right hand to attack the deceased’s left side: [126]-[127].
(8) The sentencing judge also did not refer to facts which made clear that the deceased was the aggressor, acting in an agitated and intoxicated state. It was he who instigated the fight. The applicant did not seek it; he sought to escape the deceased. There is no evidence that the applicant intended, at any stage, to cause harm to the deceased beyond stabbing the deceased once in order to defend himself: [129]-[131].
*As to ground 1A (*per Kirk JA, Yehia J agreeing, Fagan J not deciding):
(9) The sentencing judge’s reasons consisted of indicating that she had accepted the Crown’s submission rather than the applicant’s, and stating that two factors were “of particular significance”. Her Honour did not address why all or any of the four points raised by the applicant were unpersuasive. Her Honour’s reasons do not explain the basis on which the Crown’s case was preferred to the applicant’s on a material matter in dispute. Even allowing for the ex tempore nature of the remarks, they cannot be said to provide adequate reasons for her Honour’s finding, and the sentencing exercise also miscarried for this reason: [135]-[143].
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43; Sasterawan v Morris [2008] NSWCA 70; Ming v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209; Rahman v Rahman [2024] NSWCA 198, referred to.
As to ground 2:
(10*) Per* Kirk JA, Fagan and Yehia JJ agreeing: It was not necessary to determine ground 2: [6], [182]. The matters raised pursuant to that ground were nevertheless relevant to resentence.
(11) Per Kirk JA, Yehia J agreeing, Fagan J not deciding: When s 421 of the Crimes Act 1900 (NSW) falls to be considered as a matter of criminal liability it is necessary to be careful in identifying what is encompassed by “the circumstances as he or she perceives them” in order to give effect to the provision. Those circumstances do not encompass anterior conduct. But that does not necessarily mean that in all cases the circumstances relevant to an assessment of objective seriousness are limited to those which are relevant to assessing the reasonableness of the response. It is nevertheless likely to be rare that anterior conduct will be relevant to an assessment of objective seriousness in a case of manslaughter by excessive self-defence: [144]-[154].
Anderson v R [2018] NSWCCA 49; Patel v R [2019] NSWCCA 170; Newburn v R [2022] NSWCCA 139, discussed.
Edwards v R [2009] NSWCCA 199, referred to.
(12) Per Kirk JA, Fagan and Yehia JJ agreeing: The evidence before the Court did not establish beyond reasonable doubt that the applicant’s action in stabbing the deceased departed significantly from a reasonable response. It is sufficient to state simply that it departed from a reasonable response: [156]-[161].
As to resentence (per Kirk JA, Fagan and Yehia JJ agreeing*):*
(13) Beyond the matters the subject of grounds 1 and 2, the applicant submitted that on resentence this Court should make three findings which differ from those of the sentencing judge:
(i) That the offence should be regarded as unplanned. The finding should be made but does not add much to the analysis of the offence: [164].
(ii) That the Court should not adopt the sentencing judge’s conclusion that the applicant “has certainly manifested in his commission of the instant offence a continuing attitude of disobedience of the law”. A finding in this form pays insufficient attention to the crime having been committed in excessive self-defence. However, the applicant also has a record of carrying or using weapons which is relevant in the sentencing exercise: [165].
(iii) That the Court should not regard general deterrence as a “significant feature of this sentencing exercise”. The sentencing judge was not correct implicitly to suggest that general deterrence was to be given greater weight than usual in this case. General deterrence is a relevant consideration in this case, but it is far from being the most significant consideration. The same can be said with respect to specific deterrence: [166].
R v White [2025] NSWCCA 111, referred to.
(14) Taking account of all of the relevant considerations and circumstances, the applicant should be sentenced to a term of imprisonment for 5 years 3 months, commencing on 18 September 2023, with a non-parole period of 3 years expiring on 17 September 2026: [168]-[176].
KIRK JA**:** On 18 June 2023 the applicant, Dylan Fisher, stabbed and killed Jacob Rook in Tamworth. He pleaded guilty to the offence of manslaughter, doing so on the basis of excessive self-defence. In August 2024 he was sentenced by Payne DCJ in the District Court to a term of imprisonment of 9 years, commencing on 18 September 2023, with a non-parole period of 5 years.
He seeks leave to appeal against that sentence on three grounds:
Ground 1: The sentencing judge erred in finding that the applicant intended to kill the deceased in that:
(a) such a finding was not reasonably open; or, alternatively
(b) such a finding was not correct.
Ground 1A**:** The sentencing judge’s conclusion that the applicant intended to kill the deceased was not supported by adequate reasoning.
Ground 2**:** The sentencing judge had regard to extraneous matters when assessing the degree to which the applicant’s conduct departed from a reasonable response to the circumstances as he perceived them.
Ground 1 raises the issue of the standard of review to be applied to findings of fact in sentence appeals to this Court pursuant to ss 5 and 6 of the Criminal Appeal Act 1912 (NSW). Counsel for both sides provided written submissions on the issue. This appeal was heard after argument on that issue before a bench of five judges of this Court in Hancock v R [2025] NSWCCA 213, but prior to that decision being handed down. The Court there held that “House v The King is the governing test” (at [72]), whilst accepting a submission that “an appropriate and correct test in a sentence appeal to ascertain the existence of a mistake of fact for the purposes of House v The King is to ask whether the finding was reasonably open” (at [73], emphasis added).
The Court in Hancock was not referred to recent cases from the Full Court of the Federal Court – nor, self-evidently, to a subsequent decision of the Victorian Court of Appeal – suggesting that the correctness standard applies to claims of mistakes of fact for House v The King purposes. However, for reasons which shall be explained, challenges to findings of fact in the context of criminal sentencing are distinctive, such that it is appropriate to apply a “reasonably open” test. That should be regarded as the appropriate test. That test may have variable significance, depending on the degree to which the challenged factual finding was evaluative along with the extent to which the sentencing judge held advantages over the appeal court.
Ground 1A – as it is convenient to label it – was added by leave in the course of the hearing of the appeal.
Both grounds 1 and 1A are made out. It is therefore necessary for this Court to consider resentencing. It is convenient to consider ground 2 to the extent that the issue informs resentencing. In the result leave to appeal should be granted, the appeal should be upheld, and the applicant resentenced to a term of imprisonment of 5 years 3 months commencing on 18 September 2023 and expiring on 17 December 2028, with a non-parole period of 3 years expiring on 17 September 2026.
In what follows I first analyse, discuss and summarise applicable principles relating to challenges to fact-finding in appeals on sentencing in this Court (at [8]-[81]), then set out the background to the matter (at [82]-[117]), before addressing in turn ground 1 (at [118]-[134]), ground 1A (at [135]-[143]), and ground 2 (at [144]-[161]) and then deal with resentencing (at [162]-[176]).
On an appeal under section 5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.
It is not enough that judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court at first instance.
What is said in House v The King has been taken to give content to when some other sentence is warranted in law: note eg Dib v Rex [2023] NSWCCA 243 at [133]-[135]. That is not to suggest that House v The King necessarily exhausts relevant principles about such sentence appeals: ibid at [137].
What has been the subject of some disagreement in this Court is how to approach a complaint on appeal about one aspect of House v The King, namely that a sentencing judge has mistaken the facts: note R v Bui [2025] NSWCCA 114 at [3]-[6]. That issue is raised, again, in this appeal.
[131] … The approach favoured in this court in relation to a challenge to factual findings of sentencing judges is whether the finding was open on the material before the court at first instance: see Azzopardi v R [2019] NSWCCA 306 at [36]–[39] and cases cited. It follows that, where there is a challenge to an inference drawn by a sentencing judge, the relevant question is whether there was some basis for the inference, that is the inference must have been reasonably open: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 (Mason CJ); [1990] HCA 33.
[34] In some circumstances, factual findings will themselves involve an evaluative judgment, of a kind similar to the exercise of a discretionary power [citing Singer v Berghouse (1994) 181 CLR 201 at 212; [1994] HCA 40]. No doubt the appellate court should exercise restraint in interfering with such findings. However, if the court is satisfied that the sentencing judge made a mistake with respect to a particular factual finding, which was material to the exercise of the discretionary power, the court should identify error and then enter upon its own consideration of the appropriate sentence.
[36] To take a more limited approach would, no doubt, discourage applications for leave to appeal against sentence on factual grounds which may have limited prospects of success. However, if there be an error which may have affected the sentence imposed, the public interest in fairness to the individual offender does not warrant a construction of s 6(3) which would have the application dismissed at the preliminary stage. Fact finding is often critical to the ultimate imposition of a sentence [citing The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [1]]. If the legislature had intended to limit applications for leave to appeal against sentence to circumstances where error of law can be identified, one would expect it to have said so. The authority of the High Court does not warrant the imposition of such a restriction; indeed it is unequivocally to the contrary. It may be that O’Donoghue was not intended to impose such a restriction: nevertheless, there are aspects of the language used which might be (and are) so understood. ...
[60] … To say that “error may be demonstrated if there is no evidence to support a particular finding, or if the evidence is all one way, or if the judge has misdirected himself” is to describe an error of law. It imposes a different and more stringent test than asking whether a sentencing judge “mistakes the facts”, which is an error warranting intervention according to the House v The King test.
It is implicit in this analysis that insofar as prior case law had applied an approach of asking merely whether or not a factual finding was “open”, simpliciter, that was erroneous. If a finding was not open on the evidence then that would bespeak error of law: note, analogously, Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [89] (Gageler J); see also R v MDU [2024] QCA 113 at [80].
The Court in Hancock explained its view as to the correct approach as follows:
[72] We have concluded that House v The King is the governing test for appellate review of sentencing decisions. We accept Mr Buchen SC’s submission that the O’Donoghue test does not use the language of “reasonably open”. As we have said, the O’Donoghue test is a distraction and should no longer be followed. Rather than seek to define the O’Donoghue test by using different language to make it consistent with House v The King it is preferable that this Court clearly state that the House v The King test is the test to be applied without any gloss by reference to O’Donoghue.
[73] We accept the Director’s submission that an appropriate and correct test in a sentence appeal to ascertain the existence of a mistake of fact for the purposes of House v The King is to ask whether the finding was reasonably open. If the finding was not “reasonably open”, a sentencing judge has mistaken the facts. Ordinarily, this will apply to a finding of primary fact or an inference drawn from a finding of primary fact. In either case, if the sentencing judge has mistaken the facts in the sense that the finding was not “reasonably open” and, if the error is material, House v The King error will have been established.
[74] So far as evaluative findings of fact made as part of the sentencing exercise are concerned, they may be shown to be in error only if not “reasonably open”. A principle of appellate restraint thus applies to evaluative findings. As the applicant in this case accepted, if a finding may be described as “reasonably open”, it is not an error. There will no doubt be cases on the borderline between findings of primary fact and inferences drawn from these facts not reasonably open and truly evaluative findings to which the “reasonably open” formulation may be applied. The present case is not the occasion to seek to resolve all such questions.
This passage draws a distinction between a finding of primary fact or an inference drawn from a finding of primary fact, on the one hand, and “evaluative findings of fact” on the other. The Court earlier said that “[a]s we will explain, whether an evaluative finding is ‘reasonably open’ is an appropriate description of the appellate task in a sentencing appeal” (at [46]). That statement suggests that particular restraint is apt in relation to evaluative findings. Consistently with that understanding, at [74] the Court said in terms that “a principle of appellate restraint thus applies to evaluative findings”. In context, coming after the discussion at [73], it suggests a degree of appellate restraint is shown to evaluative findings in a way that it is not shown to findings of primary fact or inferences from such. That such a distinction was intended is reinforced by the further statement at [74] that “[t]here will no doubt be cases on the borderline between findings of primary fact and inferences drawn from these facts not reasonably open and truly evaluative findings to which the ‘reasonably open’ formulation may be applied”.
The Court did not spell out in terms what the significance of the distinction is, given that the issue of a finding being not “reasonably open” is referred to with respect to both categories. Nor did it spell out what findings are to be regarded as falling within which of those categories. These are matters I consider further below.
Both parties in Hancock had ended up advocating for a “reasonably open” approach. It thus was not strictly necessary for the Court to determine whether some other approach should be adopted. That fact means that the decision is not, strictly, binding on this Court: see eg McGregor v R (2024) 116 NSWLR 81; [2024] NSWCCA 200 at [56]. In any event, in a context where it seems the point was not ultimately in dispute, it was perhaps significant that the Court said at [73] that “an appropriate and correct test” was that a finding was not reasonably open, as suggested by the Director (emphasis added). In contrast, at [74] the Court said that evaluative findings of fact may “only” be shown to be in error if not reasonably open. This difference in language could suggest that the “reasonably open” test is the only correct approach with respect to evaluative findings, but does not necessarily exhaust when a finding of primary fact, or an inference from such, may be shown to be in error. Whether or not that is so is a topic to which I return below.
The Court indicated that the key guide was to be the decision in House v The King itself. As was said in Hancock (at [22]), it is perhaps surprising that there remains any doubt about the correct test to be applied in that regard. The House v The King standard has been considered and applied in a range of contexts, extending well beyond criminal sentencing. No doubt reflecting the submissions made, the Court in did not engage in depth with how the notion of the primary judge “mistak[ing] the facts” has been understood in contexts beyond criminal sentencing in this Court. To that issue I now turn. In so doing, it is also necessary to address some basal issues of principle about the nature of various types of appeal.
In House v The King itself, when applying the principles articulated, the conclusions of the plurality included the statement that “there is no other ground for saying that [the sentence] arose from error of fact or of law” (at 507). That statement might be taken to suggest that no deferential limitation was to be applied with respect to errors of fact. The issue was not addressed in terms, however.
In Cranssen v The King (1936) 55 CLR 509; [1936] HCA 42, handed down two days after judgment was delivered in House v The King, the High Court decided a criminal sentencing appeal from the then Australian Territory of New Guinea. The same plurality as in House v The King noted that the appellate provision there was distinguishable from that at issue in House v The King, but said that the “jurisdiction to revise such a discretion must be exercised in accordance with recognized principles” (at 519). The plurality then, in effect, restated those principles (at 519-520, emphasis added):
It is not enough that the members of the court would themselves have imposed a less or different sentence, or that they think the sentence over-severe. There must be some reason for regarding the discretion confided to the court of first instance as improperly exercised. This may appear from the circumstances which that court has taken into account. They may include some considerations which ought not to have affected the discretion, or may exclude others which ought to have done so. The court may have mistaken or been misled as to the facts, or an error of law may have been made. Effect may have been given to views or opinions which are extreme or misguided. But it is not necessary that some definite or specific error should be assigned. The nature of the sentence itself, when considered in relation to the offence and the circumstances of the case, may be such as to afford convincing evidence that in some way the exercise of the discretion has been unsound.
The reference to the “court may have mistaken or been misled as to the facts” is, on its face, somewhat broader than the reference to “mistakes the facts”, at least insofar as it gives an example of how the sentencing court may have come to be mistaken. Nevertheless, the High Court subsequently equated the statement of principle in Cranssen with that in House v The King: see Poole v Attorney-General (Cth) (1955) 92 CLR 1 at 7; [1955] HCA 14; note also Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10 at [14].
Justices Mason and Deane explained the reasons for the restrained standard of review articulated in House v The King in Norbis v Norbis (1986) 161 CLR 513 at 518-519; [1986] HCA 17:
The principles enunciated in House v The King were fashioned with a close eye on the characteristics of a discretionary order in the sense which we have outlined. If the questions involved lend themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions, it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance. In conformity with the dictates of principled decision-making, it would be wrong to determine the parties’ rights by reference to a mere preference for a different result over that favoured by the judge at first instance, in the absence of error on his part. According to our conception of the appellate process, the existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal.
Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process.
[28] As already explained, the nature of the threat as to which a decision-maker must be satisfied under [the power in question] involves a measure of subjectivity or value judgment. A decision under that subsection would involve appealable error if, for example, regard was had to irrelevant material, relevant material was disregarded, or, although there was some factual material by reference to which the decision-maker might be satisfied, he or she mistook those facts. …
The emphasised portion of this quotation suggests that a mistake of fact would suffice to establish relevant error regardless of whether or not there was some material by which it was open to reach the conclusion. Similarly, the reference by Mason and Deane JJ in Norbis (quoted above) to “the existence of an error, whether of law or fact” suggests that no particular restraint is shown as to appellate review of whether the primary judge has made an error of fact.
That error must be established does not itself imply a restrained approach to appellate review: note The King v Fred [2026] NTCCA 3 at [33]; contra AB v R [2014] NSWCCA 339 at [52]-[63]. It is well-established that in appeals by way of rehearing it is (in general) necessary to establish some legal, factual or discretionary error: eg Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 at [23]; Coal and Allied at [14]; Lacey at [57]; see more recently State of New South Wales v Culhana (2025) 117 NSWLR 448; [2025] NSWCA 157.
This Court does not conduct an appeal by way of rehearing under ss 5 and 6 of the Criminal Appeal Act: Filippou at [48]; Hancock at [50].
In R v Carrall [2018] QCA 355, Sofronoff P said at [10] that a sentencing appeal was “in the nature of an appeal strictu sensu” (a characterisation later rejected by two members of that Court in MDU at [78] per Dalton JA and Davis J; and note the discussion leaving the issue open in R v Strbak [2019] QCA 42 at [21]-[29]). The President went on to say that there is therefore no rehearing, and the court “will not interfere with a judge’s findings of fact unless it concludes that the finding was not reasonably open or that it was the product of legal error” (at [10], see also [14]).
The Victorian Court of Appeal has similarly held that in sentencing appeals the court will not substitute for any such finding its own view of what the facts disclose unless it concludes that the finding made below was not reasonably open. That has been said to be so because of “the fundamental premise underlying appeals against sentence under s 278 of the Criminal Procedure Act 2009 (NSW) that an appeal is an appeal in the strict sense and this Court’s ‘authority to intervene is dependent on demonstration of error’”: Donnelly v R [2021] VSCA 109 at [46]; see further Willis v The Queen [2016] VSCA 176; (2016) 261 A Crim R 151 at [88].
Similarly, the Crown in this matter sought to emphasise, in various ways, that this Court’s role was restrained because it was not an appeal by way of rehearing. It said that because of that point, “the High Court’s jurisprudence in the line of authority does not apply”. As shall be seen, that submission is inconsistent with (1979) 142 CLR 531; [1979] HCA 9 itself.
[104] … An appeal meant and, in my view, still means “the right of entering a superior Court, and invoking its aid and interposition to redress the error of the Court below” (emphasis added). When the appeal is an appeal in the true sense, therefore, no appealable error exists if the trial court has correctly found the facts on the material before it and correctly applied the law to those facts in the course of deciding the issues raised before it for determination.
Thus the fact that an appeal stricto sensu requires the identification of error does not distinguish it from an appeal by way of rehearing.
Furthermore, the characteristic that an appeal is by way of rehearing or is stricto sensu does not determine the standard of review to be applied to claimed errors of fact. It is well-established that courts engaged in an appeal by way of rehearing must themselves determine disputed questions of fact where there is no occasion to apply a restrained, House v The King standard of review: eg Warren v Combes at 542-552; Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [22]-[25]; Culhana. That has come to be called the “correctness standard”.
Reaching a different conclusion on an issue of fact is of itself sufficient error for the purposes of an appeal by way of rehearing when applying that standard. That consequence is implicit in the statement by the majority in Warren v Coombes that “[t]he duty of the appellate court is to decide the case – the facts as well as the law – for itself” (at 552). It is implicit in the reiteration in Fox v Percy that the appellate court must “give the judgment which in its opinion ought to have been given in the first instance”: at [23], quoting Dearman v Dearman (1908) 7 CLR 549 at 561; [1908] HCA 84. That involves the appellate court “weighing conflicting evidence and drawing [its] own inferences and conclusions”: Fox v Percy at [25], quoting Dearman at 564. And this understanding is implicit in the recent statement by four members of the High Court that the appellate decision-maker “determines for itself the correct outcome on the relevant issue”: KMD v CEO (Department of Health NT) (2025) 99 ALJR 474; [2025] HCA 4 at [21]. That must be done even if there is no clear point at which the reasoning of the primary decisionmaker went awry, and even if the decision is one on which reasonable minds may differ: note Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [29]-[34], [46], [49], [153]; The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40 at [61]; Frigger v Trenfield (No 3) [2023] FCAFC 49 at [139]; T Prince, “Recurring Issues in Civil Appeals – Part 1” (2022) 96 Australian Law Journal 203 at 216. Thus that a factual conclusion was open, or reasonably open, does not of itself determine whether or not it might be regarded as erroneous, that is to say, not correct.
There are some differences between appeals by way of rehearing and appeals stricto sensu in that the latter involves considering the law and facts as they were at the time of the decision subject to appeal: note at [57]. Regardless, where the correctness standard applies to a decision of an intermediate appellate court undertaking an appeal by way of rehearing, it also applies in the High Court undertaking an appeal stricto sensu from such a decision. Thus it was said in that “[i]n the present case, the Court of Appeal was, and this Court is, obliged to reach its own conclusion as to the inferences to be drawn from the primary facts found by the learned trial judge” (at 553); see further, eg, (2019) 266 CLR 129; [2019] HCA 28 at [58]-[65].
[30] Like an appeal in the strict sense, … an appeal by way of rehearing is a procedure under which the appellate court is permitted and, unless the appellate court dismisses the appeal or remits the matter for rehearing, required to “give the judgment which in its opinion ought to have been given in the first instance”. And like an appeal in the strict sense, an appeal by way of rehearing is a procedure for the correction of error. “[T]he existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal.” …
[32] To the extent necessary to address the ground or grounds on which an appellant claims that a judgment under appeal is erroneous, an appellate court in an appeal (whether in the strict sense or by way of rehearing) from a final judgment of a judge sitting without a jury “is obliged to conduct a real review of the trial and ... of [the] judge's reasons”. The appellate court “cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions”.
[54] … The standards of appellate review are concerned, in essence, with the nature of an appeal — that is, the nature of the error of the primary decision-maker that the appellate court or tribunal is required to identify in order to uphold the appeal. Under the correctness standard, the appellable error is that the primary decision-maker made the wrong decision. Under House v The King, the appellable error is that the primary decision-maker made an error of the kind described in House v The King. Fundamentally, however, both standards of appellate review are concerned with identifying error. [citation omitted]
A discretionary decision refers, in general terms, “to a decision-making process in which ‘no one [consideration] and no combination of [considerations] is necessarily determinative of the result’”: Coal and Allied at [19]. Insofar as the restraint imposed by House v The King applies to discretionary decisions, it creates appellate restraint in relation to the discretionary decision itself, that is, the weighing up of the range of considerations. It applies where “some error has been made in exercising the discretion”: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [75]. The appellate court will investigate whether the discretion was “improperly exercised”: Cranssen at 519. The standard can be understood as requiring that the decision-maker exercising the discretion must have properly directed themselves as to those considerations which go into the exercise of the discretion. The decision-maker must have correctly directed themselves as to the law, so as to not act upon a wrong principle. The decision-maker must not have allowed extraneous or irrelevant matters to guide or affect them. The statements in Norbis and Coal and Allied to which attention has been drawn can be understood as indicating that the decision-maker must also have correctly directed themselves as to the relevant facts. The facts are themselves considerations which feed into the exercise of the discretion. And if the decision-maker erred in finding the facts, in a material way, then the exercise of the discretion can also be said to have gone awry. So understood, House v The King involves appellate restraint being shown to the decision-maker’s exercise of discretion after the facts have correctly been found.
There are some recent (brief) statements in the Full Court of the Federal Court consistent with that understanding. In Impiombato v BHP Group Ltd (2025) 308 FCR 250; [2025] FCAFC 9, at [193], Beach and O’Bryan JJ rejected an argument that when considering a challenge on this ground it was sufficient for the party defending the discretionary decision to show that it was “open on the evidence”. Their Honours said that “the appeal is by way of rehearing in which the Court is required to determine whether the primary judge’s findings of fact involved error” (see similarly Whiteman v Deputy Commissioner of Taxation [2022] FCA 975 at [62]-[63]). For the reasons explained above (at [29]-[41]), that an appeal in this Court is not by way of rehearing is not a relevant distinction in this context.
In Kazal v Thunder Studios Inc (California) [2023] FCAFC 174; (2023) 416 ALR 24, Wheelahan J (speaking for the Court) did not refer to the appeal in question being by way of rehearing when suggesting that the issue for the appellate court was simply to assess whether or not the primary judge’s finding on an issue of fact was “wrong” (and material):
[107] … In order to establish that a discretionary decision was in error because the primary judge was mistaken as to the facts, the burden on the appellants is to persuade this Court that one or more of the findings under challenge was wrong and that it was material to the exercise of the discretion such that the Court comes to the view that the discretion was wrongfully exercised.
Consistently with that understanding, the Victorian Court of Appeal has recently indicated in a civil context (albeit without discussion of authority) that claimed mistakes of fact said to have affected a discretionary decision are subject to the correctness standard of review on appeal: Lee v Yap [2026] VSCA 20 at [77].
The case law discussed tends to indicate that at least in general the House v The King notion of “mistakes the facts” involves the appellate court making its own assessment of the factual issue to assess whether there was error, that is to say, on the correctness standard. Of course, that principle is subject to the usual requirement for appellate restraint which applies with respect to the advantages of the primary judge. House v The King involves a restrained form of appellate review by providing that the exercise of discretion will only be reviewed on the grounds identified. Those grounds are not themselves applied, in general, in a deferential way. And, the case law seems to suggest, that extends to review of claimed mistakes of fact. Given the approach outlined below, however, it is not necessary finally to resolve the question of whether or not that is so.
On the assumption that the correctness standard can apply to considering whether the primary judge has mistaken the facts for the purposes of House v The King, the question then is whether the same approach applies with respect to sentencing appeals under ss 5 and 6 of the Criminal Appeal Act.
There is perhaps a natural tendency, given recent case law, to assume that there are two invariable appellate standards of review: the “correctness standard” and House v The King. Yet that is not necessarily so. The standard of review is, ultimately, a matter of statutory construction by reference to the nature of the appeal provided for by the Parliament: note Coal and Allied at [21]; SZVFW at [151] (Edelman J); Smith v Blanch [2025] NSWCA 188 at [72]. That point is a manifestation of the broader principle that “[a]n appeal is a creature of statute and, subject to constitutional limitations, the precise nature of appellate jurisdiction will be expressed in the statute creating the jurisdiction or inferred from the statutory context”: Lacey at [56]. In that context, how a mistake of fact is assessed in one context need not necessarily be how it is assessed in another. In other words, it is open to conclude that that aspect of House v The King review could be approached with a different intensity of review in different statutory contexts.
In my view there is good reason to conclude that the appropriate standard of appellate review pursuant to ss 5 and 6(3) of the Criminal Appeal Act, in relation to claimed errors of fact made by a sentencing judge, is to ask whether the finding was reasonably open. As I shall seek to explain, and consistently with what was said in Hancock, that test may have different practical application with respect to various kinds of facts and issues, including in relation to what can be labelled evaluative findings of fact.
To begin with, there is High Court authority holding that certain evaluative factual assessments are to be subject to a restrained form of appellate review:
It has held that a power to assess whether “inadequate” provision has been made for the “proper maintenance, education and advancement in life” of a family provision claimant should be subject to restrained, House v The King type review: Singer v Berghouse (1994) 181 CLR 201 at 212; [1994] HCA 40. That is so even though that assessment is one of fact: ibid at 210.
In Coal and Allied the plurality held that the decision of an administrative tribunal to determine whether industrial action threatened life, safety, health or the welfare of part of the population, or threatened to cause significant harm to the Australian economy, “was one that involved a degree of subjectivity” and should be regarded as discretionary in the relevant sense (at [20]). That was so even though those assessments can be regarded as factual.
For valuation assessments it has been held that “an appellate court should not substitute its opinion for that of the court below unless it is shown that the court below has acted on a wrong principle of law or that the valuation was erroneous”: (1982) 150 CLR 160 at 164-165; [1982] HCA 46 (citations omitted). That is so because “[a]s with the assessment of damages, especially in personal injury cases, the valuation of property by a court has many of the characteristics of a discretionary judgment”: (1981) 146 CLR 336 at 381 (Mason J); [1981] HCA 4.
[25] … References to onus of proof in the context of sentencing would mislead if they were understood as suggesting that some general issue is joined between prosecution and offender in sentencing proceedings; there is no such joinder of issue. Nonetheless, it may be accepted that if the prosecution seeks to have the sentencing judge take a matter into account in passing sentence it will be for the prosecution to bring that matter to the attention of the judge and, if necessary, call evidence about it. Similarly, it will be for the offender who seeks to bring a matter to the attention of the judge to do so and, again, if necessary, call evidence about it. (We say “if necessary” because the calling of evidence would be required only if the asserted fact was controverted or if the judge was not prepared to act on the assertion.) [Emphasis added]
Justice Kirby observed in that case that “[i]n Australia, upon a plea of guilty, a degree of informality has ordinarily marked sentencing procedures”: at [52], citations omitted; note also GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22 at [30].
The practice of being prepared to accept statements of fact made from the bar table is fundamental to the way that sentencing operates in magistrates’ courts, in particular, around the country. It is less likely to be a significant feature of sentencing for more serious offences such as are liable to arise on appeals to this Court. Nevertheless, it remains a potential feature of sentencing in such matters. In previous times, a similar issue could arise as to whether or not a sentencing judge should accept what had been said in an unsworn statement by the defendant at trial: note Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at [11].
As with a number of aspects of sentencing, it is for the sentencing judge to decide whether or not to accept some non-disputed statement of fact from the bar table, subject to complying with the requirements of procedural fairness (as to which, note eg Cardaklija v R [2026] NSWCCA 9 at [33]). It is difficult to see how the correctness standard could meaningfully apply to review of such decisions. They are ones which are unusually open yet some decision must be made on the issue. Although the issue involved is one of fact, there is a discretionary aspect to how the fact-finder approaches their task in this regard. Even if the correctness standard could be applied, it would appear to involve “a mere preference for a different result over that favoured by the judge at first instance” (quoting Norbis at 518). It seems unlikely that the Parliament would have intended such decisions to be open to being reconsidered without restraint on appeal. On the other hand, it would be meaningful and appropriate to ask whether the judge’s decision to accept or reject an undisputed statement of fact from the bar table was reasonable, which can be understood in terms of asking whether the finding of fact which resulted was reasonably open.
Second, the sentencing court is not required to accept the truth of statements made by the defendant to a psychologist, doctor or to the author of a pre-sentencing report or the like: R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 at [58]-[59]; R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174 at [40]. In every case it is for the sentencing judge to assess what weight should be given to such evidence: Hancock at [35]. Again, for much the same reasons, such decisions are not ones for which review on the correctness standard would be apposite. A similar point can be made about the decision of the sentencing judge to accept what is said in letters from family, friends or colleagues of the defendant.
[61] What I have said is not to deny that the sentencing judge should be fully informed, or that desirable practices as they have developed should not continue. In practice sentencing proceedings are conducted with a degree of informality. Unnecessary insistence on the strict rules of evidence is in no-one's interests in sentencing proceedings, and the customary co-operation between the Crown and the offender and making of admissions by the offender should so far as possible be insisted upon.
[21] … The use of the phrase “known to the court”, rather than “proved in evidence”, or some equivalent expression, suggests strongly that s 16A [of the Crimes Act 1900 (Cth)] was not intended to require the formal proof of matters before they could be taken into account in sentencing. Rather, having been enacted against a background of well-known and long-established procedures in sentencing hearings, in which much of the material placed before a sentencing judge is not proved by admissible evidence, the phrase “known to the court” should not be construed as imposing a universal requirement that matters urged in sentencing hearings be either formally proved or admitted.
As Davies J said in BS v R [2021] NSWCCA 39 at [56], “[w]hile the High Court was dealing specifically with the wording of s 16A … the reference to ‘long established procedures in sentencing hearings’ suggests that common law hearsay rules were never strictly applied in relation to the receipt of evidentiary material at sentencing hearings”. Justice Dhanji observed in Edmonds v R [2022] NSWCCA 103 at [25] that whilst “on current authority” the common law of evidence applies, “that does not entail the strict application of those rules”.
The examples discussed illustrate that it has long been the case that “a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law”: Cheung at [16], quoting Williams v New York 337 US 241 at 246 (1949); [1949] USSC 100. At least some judgements which themselves can reasonably be described as discretionary are wrapped up in some of the decisions made by sentencing judges as to what factual propositions they should accept. Such matters are not well-suited to being reviewed on the correctness standard on appeal. And that level of review is not likely to have been intended. The Parliament can be taken to have intended that ss 5 and 6 operate in a practical, reasonable and efficacious manner with respect to sentencing appeals.
It might be possible to apply different standards of review to different aspects of the fact-finding process in sentencing. To do so would complicate matters in a way unlikely to have been intended. It is preferable to state one test. That test can appropriately be expressed in terms of whether the challenged finding of fact was reasonably open to the sentencing judge. That approach is supported by the fact that it is consistent with the position that has evolved over long experience in this State, culminating recently in Hancock, along with that taken in at least some other Australian jurisdictions (including the recent decision of five members of the Northern Territory Court of Criminal Appeal in Fred at [48], [100] and [136]). That being said, as addressed further below, the notion of being reasonably open may have variable practical significance in different contexts, and in some instances it may be little different from the correctness standard.
For completeness, I note that a restrained approach is taken to review of facts in sentencing appeals in England and Wales, namely that “[i]f the judge has properly directed himself, this court will not interfere with a finding of fact made by him unless the court concludes that no properly directed jury could have reached that conclusion”: R v King (Dwayne) [2017] EWCA Crim 128; [2017] 4 WLR 95 at [19(3)], note also [37]; see earlier eg R v (1984) 80 Cr App R 295 at 297. That being said, I place little weight on that approach given that appeal courts of the United Kingdom take a restrained approach to review of factual matters generally, even where discretions are not at issue: see eg [2020] AC 352; [2019] UKSC 5 at [49]-[52]; [2022] EWCA Civ 464; [2022] 4 WLR 48 at [2].
As noted above, this Court in Hancock drew a distinction between “primary facts”, inferences drawn from primary facts, and “evaluative findings of fact”. The Court did not seek to delineate precisely what it meant by reference to each of these categories. They can be understood as existing on a spectrum.
“Primary facts” is not a term of art. The term was used in Lee v Lee at [55], where the plurality was explaining the appellate restraint shown to findings of fact “likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence”. Their Honours said that such restraint extends to “findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts”. They cited authority in support of the latter proposition, which related to certain equitable doctrines, in which it was said that “proof of the interplay of a dominant and subordinate position in a personal relationship depends, ‘in large part, on inferences drawn from other facts and on an assessment of the character of each of the parties’”: Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392; [2013] HCA 25 at [144]. The secondary facts being referred to thus included more evaluative, but still factual, overall conclusions such as the power balance within a human relationship.
Primary facts can be understood to encompass findings as to what did and did not occur, that is, matters of fact capable of observation, such as what the accused did or did not do. It would encompass other basic matters of fact such as (to give a few pertinent examples) whether the victim was a police officer, an emergency services worker or the like (see s 21A(2)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act)); whether the offence involved the actual or threatened use of violence (s 21A(2)(b)); whether the offence was committed in company (s 21A(2)(e)), or in the presence of a child (s 21A(2)(ea)) or in the home of a victim or another person (s 21A(2)(eb)), or whilst the offender was on conditional liberty (s 21A(2)(j)).
Other facts are not capable of being observed but must be inferred. States of mind commonly fall into that category, at least in the absence of reliable and credible testimony by the offender: for example, whether the offender intended to achieve a particular result; what their motive was (eg whether they were motivated by a particular type of hatred or prejudice – cf CSP Act, s 21A(2)(h)); and whether they feel remorse.
Merely because a factual finding involves some subjective assessment on which reasonable minds may disagree does not make it evaluative in the sense described in Hancock. As has been observed, “[a]lmost all legal and factual questions can be said to involve evaluation and many involve the making of difficult value judgments”: T Prince, “Recurring Issues in Civil Appeals – Part 1”: (2022) 96 Australian Law Journal 203 at 214.
There are two key variables in determining what restraint is shown on appeal to findings of fact made by a sentencing judge when applying the “reasonably open” test.
The first is how evaluative the finding is. As indicated in Hancock, and as just discussed, an evaluative finding of fact is likely to involve a greater degree of subjectivity in assessment, such that such a finding is less likely not to be reasonably open than one which involves an issue of primary fact. That notion can be taken to include the necessity in some cases of making a decision for which there is no clear right or wrong answer, such as whether to accept a statement made from the bar table. In relation to primary facts and inferences, an error as to non-evaluative matters will often be less liable to reasonable disagreement.
The second key variable is the extent to which the sentencing judge had some advantage over the appellate court. There is, of course, a high bar to disturbing findings likely to have been affected by impressions about the credibility and reliability of witnesses formed by the judge as a result of seeing and hearing them give their evidence: Lee v Lee at [56]; Hancock at [76]. Such findings will only be overturned if glaringly improbable or contrary to compelling inferences. Put simply, “a compelling basis is needed to overturn such a finding”: Riechelmann v McCabe [2024] NSWCA 37 at [53]. The restraint only applies to the finding of fact itself which was likely to have been affected by the natural advantage of the sentencing judge. It does not apply to any conclusions (including factual inferences) drawn from that finding: note Lee v Lee at [56].
If the sentencing judge heard no oral evidence and all the evidence took the form of documents, then the sentencing judge will have had no advantage over the appeal court: note analogously SZVFW at [34]. The room for judgment allowed by the “reasonably open” test will then be much reduced. As it was put by Dalton JA and Davis J in MDU:
[92] In practical terms, if this Court reads the same two documents that were before the sentencing judge and determines that the conclusion reached by the judge was wrong, then it could not be said that the conclusion drawn by the sentencing judge was “reasonably open”. It could only be concluded that there was error.
In the context outlined, and taking account of Hancock, relevant principles can be summarised as follows:
Where a discretionary decision is sought to be reviewed, one of the grounds upon which House v The King permits such a decision to be challenged is that the primary judge has mistaken the facts. There is reason to think that at least in many contexts that may involve review on the correctness standard. But the intensity of review can turn on the nature of the issue in question. When findings of fact are challenged in a sentence appeal pursuant to ss 5 and 6 of the Criminal Appeal Act the issue is distinctive. The question to be asked is whether the challenged finding of fact was reasonably open.
The way that test is applied in practice will vary depending, in particular, on how evaluative the finding of fact in question was and the degree to which the sentencing judge had some advantage over the appeal court.
The finding of a sentencing judge with respect to objective seriousness involves an issue of characterisation. That finding may be built upon findings of fact, to which the above principles apply, but is not itself a finding of fact. Nor is any conclusion involving legal characterisation or application of a legal criterion to some facts.
As discussed in Hancock at [79]-[83], an error of fact will not suffice to require the appellate court to re-exercise the discretion unless it is established to be material in the sense that there is a realistic possibility that the sentencing decision could have been different if the error had not occurred: note also, analogously, Simic v The Queen (1980) 144 CLR 319 at 332; [1980] HCA 25.
These conclusions do not affect other established principles with respect to sentencing matters, such as those relating to how sentencing judges may find facts, and making due allowance for review of reasons delivered ex tempore: Hancock at [77]-[78].
The deceased was 37 years of age. At the time of his death, on 18 June 2023, he had been living for about a month in a unit in a Department of Housing complex in Tamworth (Unit 2) which was occupied by Ms Taylor Summers, with whom he was in an intimate relationship. The applicant had known Ms Summers since high school. The applicant had been staying with Ms Summers for about a week before the offence because he had nowhere else to go.
In the week leading up to the offence the deceased had been behaving aggressively from time to time. Around seven days before the offence, the deceased kicked the doors of units upstairs.
The day before the offence (17 June 2023) the deceased was “stirred up” and accused Ms Summers of having slept with the applicant. Ms Summers denied that this was the case and the deceased left. Ms Summers later told the applicant about the deceased’s comment and he laughed. Ms Summers and the applicant in fact had not been intimate.
Later that day the deceased, Ms Summers and the applicant went to a local pub. The deceased left the pub first, followed by the other two. When Ms Summers and the applicant returned to Unit 2 the deceased was not there, but he returned about 20 minutes later and appeared a bit moody and was under the influence of either drugs or alcohol. He started moving furniture around in the unit. Ms Summers asked him why he was doing so – “You’re freaking me out” – and he responded: “So no one steals anything. So Dylan [the applicant] doesn’t steal anything”. Ms Summers told him to leave, and he did so. He returned later that night, when he “had attitude and was stirred up”. Ms Summers told him to leave and not come back until he had a better attitude. He left. The applicant and Ms Summers remained at the unit.
The next day (the day of the offence) the deceased returned to the unit at about midday but Ms Summers was not prepared to let him back in, saying “come back later” as she was still “cranky” with him. The applicant was in the unit. The deceased left and shortly went to a different unit nearby (Gleeson’s unit). When he arrived there he appeared sober. He sat outside and drank wine mixed with juice with several associates. They then moved to a different unit which was also close to Unit 2 and continued drinking. At one point the deceased yelled out towards “the unit on the ground floor”, saying “here’s the ring, get out here” (it was suggested by counsel for the applicant that this was a reference to a boxing ring, and no alternate explanation for the remark was proffered). Beyond the reference to the “ground floor”, where Unit 2 was located, it is not apparent from the agreed facts if the deceased was yelling towards Unit 2.
The deceased and some of his associates then left to attend a pub. The deceased damaged a car in the pub’s parking lot and banged a pole on the footpath. The latter action was observed by the pub’s licensee, who told the deceased that he had had enough to drink and that it was time to go. The deceased snapped a pool cue in half as he left. When asked by the licensee whether he was going to pay for the pool cue, the deceased ran towards the licensee and said “that’s the price for kicking me out”. The deceased was restrained by one of his associates who pulled him away.
[A witness] returned to The Flats, and he saw the deceased banging and kicking on the doors of some units including number 2. The deceased was yelling loudly saying, "You fucking cunts." The deceased was yelling at the offender who ran out of the front door of the Unit. The offender was running from the deceased and the deceased was punching into him, and trying to “belt” him, with the offender trying to get out of the deceased's grasp. The deceased was holding the offender with his left hand onto the right side of his body and was striking the offender with his right hand. The offender said, "Why are you doing this to me? What the fuck are you doing?"
During this altercation, the offender stabbed the deceased to his left chest area with a knife, causing his death. The offender continued running from the deceased, initially towards Coledale down Susanne Street. The deceased ran after him yelling abuse.
The deceased was unsteady on his feet and collapsed at the area of the front of Summers' unit on the grass. The deceased had a wound on the left side of his chest.
After running from the deceased, the applicant walked along the street. Further up the street he knocked on someone’s door and said to the occupant: “Could you call an ambulance quickly? Someone has just been stabbed in Woodward Avenue.” The occupant did so; the applicant left. The occupant did not see any injuries on the applicant. Further up the street the applicant was seen “slumped” in a chair outside a house.
Police were the first of the emergency services to arrive at the scene of the killing. Attempts by them, and then paramedics, to revive the deceased were unsuccessful. The deceased was located about 6 metres from the entry way to the unit complex, and within 1 metre from the footpath entry. Police opined that he had died in close proximity to where he was located.
At some stage the applicant disposed of the knife in a drain, where it was subsequently located by police. DNA testing indicated a blood stain on the handle matched the applicant, and a stain on the blade matched the deceased. The applicant was arrested later that night.
The agreed facts record that:
By his plea, the offender admits criminal responsibility for the death of Jacob Rooks on the basis that whilst he believed his conduct was necessary to defend himself, his conduct was not reasonable in the circumstances as the offender perceived them.
Mr Fisher said the following about Jacob:
"He what was a little bit out of the ordinary, but friendly. But covering up. Rambling. Mumbling. He was talking in the third person, and he was unusual. That was the first day I met him."
Things changed/progressed, to the point that Mr Fisher noticed hostility from Jacob and he stated:
"He went from verbal to non-communicating...he was distancing himself from the house. I'd stay there. Taylor felt better with me staying there. Then he [Jacob] was there again, and I thought he might attack me because he was mentally unwell...Then a day or two later he went from hostile to cooking food and was relaxed. Then he was shooting up Methadone and he was off his head. I was smoking cannabis."
Mr Fisher said that one or two days prior to the offence, Taylor told him that Jacob had been "acting strange" and was "coming into the house somehow."
On the day of the offence, Taylor apparently told Dylan "don't let him in" and "lock the door," but Jacob was kicking on the door and was trying to get in, at which point Dylan went outside the house to face Jacob. He said:
"He was looking straight at me. I showed him my hands, to show him I was unarmed. He stared at me and started attacking. He hit me, then he lunged at me. He was bigger than me. He had severe hostility. I tried to get away."
Mr Fisher said he was fearful for his safety at the time and had "a bit of fight or flight."
When I was explaining to Dr Furst what happened, I explained what I remembered and felt at the time of the incident.
I agree that I had a knife in my possession on the date of the offence and that I used the knife to commit the offence.
When I said that I was unarmed to Dr Furst, what I was trying to explain was that:
i. When the victim was kicking on the door, I had been preparing breakfast using a knife,
ii. I had to react to the situation in a split-second,
iii. I put the knife in the waistband of my pants and went outside,
iv. I put my hands up to the victim to show him that I didn't have any weapons in my hands and that I didn't want to fight him
The following summary of relevant aspects of the applicant’s background is derived from Dr Furst’s report. The applicant was raised by his mother and father. His father suffered debilitating neck pain as a result of an injury sustained in a motor vehicle accident and consequently became addicted to prescription opiates, and later to other drugs.
The applicant left school after completing Year 9 and was employed for a period of about a year after that. It seems implicit that he was thereafter largely unemployed. He used cannabis regularly from the age of 13-14. He began using amphetamines from the age of 17-18 and heroin from his mid-20s, although not in large amounts. He reported attending Tamworth Hospital on several occasions owing to what Dr Furst described as “transient paranoid thinking” owing to methylamphetamine use. After a period of incarceration, during which he was on buprenorphine, his drug use reduced considerably.
He has no significant physical health problems. Dr Furst opined that the applicant’s “drug use and subsequent drug addiction was substantively the product of his genetic vulnerability to drug addiction”; he was not suffering from a diagnosable mental health disorder at the time of the offending apart from a substance use disorder; and his experience in custody would not be more onerous than that of a typical offender.
The applicant expressed some remorse to Dr Furst, saying:
I feel guilty that he’s dead. I put other peoples’ emotions before me. I do feel remorse that he died and I have to live with that. I felt like I had no choice at the time. I had no choice but to try and stop him. I am trying to go clean and come to terms with what happened.
Dr Furst said that the applicant “appears to have reasonable prospects of being successfully rehabilitated”, largely depending on “his capacity to achieve abstinence from drugs abuse over the longer-term and his ability to enter the workforce in a more meaningful capacity”.
The applicant has a reasonably lengthy criminal history dating back to 2013, when he was 18 years old. His prior convictions relevantly include resist arrest, stalk/intimidate, assault police officers, being armed with intent to commit an indicatable offence, possess or use a prohibited weapon, possess an unauthorised pistol, possess ammunition, reckless wounding, drug possession, custody of a knife in a public place, contravene AVO, and common assault. He has served more than one sentence of imprisonment.
He was on parole at the time of the offence, which was then revoked. He served the balance of that parole (six months and 16 days) prior to the sentencing proceedings.
The sentencing judge delivered her judgment ex tempore after hearing submissions. No oral evidence was given. The sentencing proceeded based upon documents.
Her Honour summarised the agreed facts and relevant aspects of the applicant’s background obtained from Dr Furst’s report. Her Honour did not refer to the additional details of the events given by the applicant to Dr Furst and in his affidavit. She cannot, thus, be said to have rejected that account.
Her Honour noted that the applicant was entitled to a 25 percent reduction in his sentence, having pleaded guilty at the first opportunity. Her Honour found that the applicant was not a person of prior good character and that his record disentitled him to leniency, and that having been on parole at the time of the offence was a feature of aggravation.
Her Honour noted that the applicant’s legal representative had not argued that “his behaviour resulted from some mental illness or intellectual disability, or the Bugmy principles applied or there was some reduction of his moral culpability”. Nor had it been contended that there were circumstances reducing the importance of general deterrence, and her Honour held that it was appropriate that general deterrence be “a significant feature of this sentencing exercise”.
Her Honour noted what the applicant said to Dr Furst about remorse and it seems her Honour implicitly accepted that. She expressly accepted Dr Furst’s view in relation to the applicant’s prospects for rehabilitation.
Her Honour then stated that both parties said that it was for the Court to determine whether the applicant had intended to kill or commit grievous bodily harm or had acted with reckless indifference. She found that “he had an intention to kill”. That finding is challenged in ground 1. The manner in which her Honour dealt with this topic is considered below when addressing ground 1A as to adequacy of reasons.
Her Honour next turned to the question of the extent to which the applicant’s actions departed from what would have been a reasonable response in the circumstances as he perceived them. This was another issue going to the seriousness of the offence. Her Honour said:
I accept what the Crown said at para 23 of the Crown’s written submissions:
In the present case the Court would find, consistent with the Agreed Facts, that:
- The deceased was agitated overnight;
- The deceased was agitated at the Family Hotel, damaging a vehicle, banging a pole on the footpath and snapping a pool cue in half;
- Summers still did not want the deceased in her unit;
- The offender was permitted to remain in the unit;
- The deceased was intoxicated;
- The deceased was aggressive, shouting, banging and kicking doors including the door to Unit 2;
- The offender left the unit;
- The deceased chased the offender, grabbing him by his left hand and striking him with his right.
… I accept the Crown’s submission that he significantly departed from what would have been a responsible response had the circumstances been as he perceived them.
There were other options available to him other than the conduct he adopted, ranging from, (1) the offender could remain inside the premises; (2) the offender did not need to confront the deceased; (3) the offender could have called triple-0.
This apparent tacit acceptance of this submission is the basis of ground 2.
In terms of aggravating features, her Honour noted he had been on parole at the time and the offence involved the use of a weapon.
Her Honour took into account the fact that the applicant’s record involved knives, weapons and ammunition. She remarked that the applicant “has certainly manifested in his commission of the instant offence a continuing attitude of disobedience of the law”. She referred to the victim impact statements.
Her Honour found special circumstances in imposing a sentence of 9 years, with a non-parole period set at 5 years. Her Honour noted that the applicant’s revoked parole for his previous offending expired on 2 January 2024. She stated a portion of that had to be served independently, and set a commencement date for this term of imprisonment of 18 September 2023. The choice of that date has not been gainsaid by either side in this Court.
Ground 1 asserts that the sentencing judge erred in finding that the applicant intended to kill the deceased in that (a) such a finding was not reasonably open or, alternatively, (b) such a finding was not correct. The difference between those formulations reflected the dispute as to what standard of review should be applied in this Court to review of findings of fact on sentence appeals. For the reasons given above, the former standard is to be applied.
The importance of the factual dispute is that an offender’s intention can inform the extent to which their actions exceeded a reasonable response, and it may be significant in assessing issues of objective seriousness and moral culpability: note Newburn v R [2022] NSWCCA 139 at [47].
Whether or not the applicant had the intention to kill the deceased at the time of offending is a question of fact relating to the state of mind actually held by the applicant at the time he stabbed the deceased. As explained above (at [72]), reaching a conclusion on the issue is a matter of inference, noting that none of the evidence directly addresses the issue. The primary facts from which any such inference is to be drawn are the agreed facts, what the applicant told Dr Furst, and what he said in his affidavit. As I have noted, the sentencing judge did not refer to the latter two pieces of evidence.
The issue in question is not evaluative in the relevant sense. Of course, it is a matter on which different judges might draw different conclusions, but that is commonly true of fact-finding. Further, the only factual sources were documentary. It has not been suggested that any undisputed statements of fact were proffered from the bar table. The sentencing judge did not see or hear the applicant, or any other witness of fact, give evidence. The issue fell to be resolved on evidence found on paper. Her Honour thus held no natural advantage over this Court in addressing this factual issue. It is not necessary for the applicant to show that there is a compelling basis to overturn the finding. This is not a type of dispute for which a wide area of judgment must be allowed to the sentencing judge.
A finding adverse to the applicant had to be established beyond reasonable doubt.
The sentencing judge relied on three factors to reach the conclusion that the applicant acted with an intention to kill, being the factors put by the Crown below: (i) the deceased being unarmed; (ii) the offender stabbing the deceased; and (iii) the stab blow being directed to the left side of the deceased’s body. Her Honour described the first and third of these as of “particular significance” (her Honour’s reasoning on point is quoted below at [139]).
As for the first, that the deceased was unarmed has limited relevance to whether the applicant intended to kill him in this case. There is no evidence of any particular animus on the applicant’s part towards the deceased that would have led him to seize an opportunity to catch the deceased unarmed and kill him. The context of what occurred makes clear that the applicant was defending himself from the deceased. That was the premise on which the plea of guilty was accepted by the Crown. The applicant also accepted by his plea that he used excessive force in so doing. But excessive force may be used in response to a violent threat without intending to kill the person.
The applicant submitted that the sentencing judge failed to give adequate reasons explaining how the Crown had succeeded in excluding the reasonable possibility that the applicant had intended to cause grievous bodily harm to the deceased rather than kill him. The Crown acknowledged the brevity of her Honour’s reasons but said that they nevertheless were sufficient to demonstrate the basis on which she reached her decision. Although it is not necessary to address this ground in light of my conclusion on ground 1, I consider it appropriate to do so in order to reiterate the importance of providing adequate reasons.
The principles relating to the requirement for judges to give reasons were summarised in Ming v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209 (note also DL v The Queen (2018) 266 CLR 1; [2018] HCA 26 at [32]-[33]):
[43] What can be seen is that the judicial duty to give reasons does not extend to referring to every argument or piece of evidence. Relevantly for current purposes, what is required is that the judge expose the reasons for resolving a point critical to the contest between the parties, do justice to the issues posed by the parties’ cases, refer to evidence that is important or critical to the proper determination of the matter, and generally explain any conclusion on a significant factual or evidential dispute that is a necessary step to the final decision.
Failure to comply with a duty to give adequate reasons is an error of law: note Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [55]; Ming at [36]; BTU v R [2023] NSWCCA 36 at [16]. Some latitude is afforded when assessing the adequacy of ex tempore reasons: see eg Rahman v Rahman [2024] NSWCA 198 at [62]. That said, even where reasons are given ex tempore they must still demonstrate the reasoning process which led to a conclusion, rather than simply stating the conclusion reached: Sasterawan v Morris [2008] NSWCA 70 at [48].
In her remarks the sentencing judge set out the submissions made on behalf of the Crown as follows:
In the Crown’s submission, the court will determine the offender had intention to kill from the following factors:
1. The deceased was unarmed.
2. The offender stabbed the deceased.
3. The offender stabbed the deceased to the left side of the body.
I accept the Crown’s submission that he had an intention to kill and repeat the considerations:
1. The deceased was unarmed. This is a matter of particular significance.
2. The offender stabbed the deceased.
3. The offender stabbed the deceased to the left side of the body. The location of the stabbing is of particular significance.
In essence, then, her Honour’s reasons consisted of indicating that she had accepted the Crown’s submission rather than the applicant’s, and stating that two factors were “of particular significance”. Her Honour did not address why all or any of the four points raised by the applicant were unpersuasive.
The Crown submitted in this court that sufficient reasoning could nevertheless be gleaned from this passage of her Honour’s remarks. It said that the reasons revealed that her Honour gave paramount weight to certain aspects of the facts (those emphasised by the Crown) and implicitly gave less weight to those given emphasis by the applicant. The Crown also relied on the less exacting standard of review applied to reasons given ex tempore.
While the remarks on sentence were given ex tempore, they nevertheless fail to meet one of the important standards articulated in Ming and numerous other cases on reason-giving: to explain the basis on which one party’s case was preferred to the other’s on a material matter in dispute (see further eg Jones v Bradley [2003] NSWCA 81 at [127]-[131]; Keith v Gal [2013] NSWCA 339 at [125]-[131]). Her Honour’s statement that an aspect of the facts was “of particular significance” does not perform this function. It is a statement of conclusion. It does not give the reason for the conclusion. Nor does it indicate why the arguments made by the applicant were not accepted or outweighed by other considerations. Even allowing for the ex tempore nature of the remarks, they cannot be said to provide adequate reasons for her Honour’s finding.
The sentencing exercise miscarried by reason of the failure of the sentencing judge to provide adequate reasons. At the least that was a failure to consider relevant matters, in the form of the submissions of the applicant, such as to be House v The King error. Ground 1A is made out.
421 Self-defence—excessive force that inflicts death
(1) This section applies if—
(a) the person uses force that involves the infliction of death, and
(b) the conduct is not a reasonable response in the circumstances as he or she perceives them,
but the person believes the conduct is necessary—
(c) to defend himself or herself or another person, or
(d) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person.
(2) The person is not criminally responsible for murder but, on a trial for murder, the person is to be found guilty of manslaughter if the person is otherwise criminally responsible for manslaughter.
By ground 2 the applicant contends that the sentencing judge had regard to extraneous matters when assessing the degree to which the applicant’s conduct departed from a reasonable response to the circumstances as he perceived them. This ground is articulated in terms of the types of error articulated in House v The King. However, the Crown agreed that if the applicant succeeded on a different ground of appeal, ground 2 could be treated as a challenged fact for the purpose of resentencing without the need to apply the House v The King standard of review. As I have determined that the applicant is entitled to succeed on both grounds 1 and 1A, I will proceed on the basis that the degree of unreasonableness of the applicant’s response is a challenged fact for the purposes of resentencing.
It was not in dispute in the proceedings before the sentencing judge that the applicant believed that stabbing the deceased was necessary to defend himself. The question in issue was and is the degree to which the applicant’s conduct departed from a reasonable response to the circumstances as he perceived them. The applicant submitted below, as he did on appeal, that the applicant’s conduct departed “only incrementally” from what would have been a reasonable response in the circumstances as he perceived them. The Crown submitted below, and again on appeal, that the applicant’s conduct “significantly departed” from a reasonable response. The sentencing judge adopted the view put by the Crown for the reasons it put, as set out above at [112]-[113]. The reasoning of the sentencing judge on this issue was not the subject of a ground of appeal for inadequate reasoning, but it cannot be said to have grappled in any detail with the issue beyond accepting the submissions recorded as having been put on behalf of the Crown.
Relevant principles were summarised, based on certain prior authorities, in Newburn at [39]. That case also involved an appellant who was inside a house with an aggressive person outside, although the aggressor in that case was armed with a golf club handle. The appellant armed himself with a knife taped to a curtain pole before going outside, engaging in an altercation and killing the deceased with a knife blow to the left chest area. The Court said:
[39] It is clear from the authorities that:
(1) A conviction of manslaughter based on a finding of excessive self-defence carries with it the implication that the offender perceived that he or she was in a position in which it was necessary that they act in order to defend himself or herself: Smith v R [2015] NSWCCA 193 at [44]; Patel v R [2019] NSWCCA 170 at [14];
(2) Central to the sentencing exercise is the identification of:
(a) the circumstances as the offender (rightly or wrongly) perceived them to be; and
(b) what, precisely, the conduct was that the offender believed was necessary in order to defend himself or herself: Smith at [44]-[45]; Patel at [14];
(3) The offender’s perception of the circumstances is relevant to the determination of what he or she believed it was necessary to do in order to defend himself or herself: s 421(1)(c) Crimes Act 1900; Smith at [45];
(4) An offender’s perception is also integral to the issue of the reasonableness of his or her conduct in responding to those circumstances: s 421(1)(b) Crimes Act; Smith at [45], [56], [58];
(5) Both questions are to be assessed by reference to the offender’s subjective perception regardless of whether that was objectively reasonable, taking into account any intoxication: Smith at [45]; and
(6) The anterior conduct of the offender, including the reasons for their attendance at the scene of the crime and the reasons for their decision to enter into a confrontation with the deceased, forms no part of the actual offence and is not directly relevant to the assessment of the gravity of the offending: Patel at [14].
The Crown suggested that there was some tension between the last proposition and what was said in Anderson v R [2018] NSWCCA 49 at [50] (Hoeben CJ at CL, with Johnson and N Adams JJ agreeing): “An important consideration which impacts on the objective seriousness of the offending is that it was the applicant’s conduct which brought about the circumstances which led to the deceased’s death”. That decision was not referred to in Patel v R [2019] NSWCCA 170, which was decided the year after Anderson (in which the judgment was delivered by Harrison J, with the agreement of Simpson AJA and N Adams J). Nor was it referred to in Newburn.
The Crown suggested that the decisions might be reconciled on the basis that:
the objective seriousness of the offending is not entirely the same as the extent to which there was a departure from a reasonable response. The latter is an aspect of the former but they are not co-extensive considerations.
[14] …The point at which Ms Patel’s conduct relevantly became criminal was when she exceeded what a reasonable person would have done in her position in response to the perceived threat. Self-evidently, a finding of excessive self-defence assumes the jury’s acceptance of the fact that Ms Patel perceived a need to take steps to act in response. It proceeds upon the basis that Ms Patel perceived that [the victim] was the assailant and that the relevant threat was created by her. … Her criminality is to be measured by her actions performed in the course of committing the offence and the extent to which she exceeded what a reasonable person in her position would have done in the same circumstances. It is not in my view to be assessed by a “nuanced” examination of the reasons why Ms Patel and [the victim] came to be at the premises on the morning in question. … Ms Patel’s approach invites acceptance of the practically unrealistic and unworkable proposition that the seriousness of the offence of manslaughter by reason of excessive self-defence should incorporate a permissible consideration of anterior conduct that formed no actual part of the crime of manslaughter committed in that way. Certainly on the facts of this case, the reasons for Ms Patel being present at [the victim’s] home are not relevant to the assessment of the objective gravity of her offending. [Emphasis added]
The final sentence in the passage suggests that his Honour was not saying that anterior conduct can never be considered in assessing the objective seriousness of an offence of manslaughter in circumstances of excessive self-defence. And in Newburn the Court referred to anterior conduct not being “directly relevant to the assessment of the gravity of the offending” (at [39(6)], emphasis added).
When s 421 of the Crimes Act falls to be considered as a matter of criminal liability it is necessary to be careful in identifying what is encompassed by “the circumstances as he or she perceives them” in order to give effect to the provision. When it comes to sentencing, the degree to which the offender departed from what was a reasonable response may be a significant factor in assessing objective seriousness. That assessment will take account, again, of the relevant circumstances as the offender perceived them. As established in Patel, and reaffirmed in Newburn, those circumstances do not encompass anterior conduct. But that does not necessarily mean that in all cases the circumstances relevant to an assessment of objective seriousness are limited to those which are relevant to assessing the reasonableness of the response.
What was said in another context by Johnson J in Edwards v R [2009] NSWCCA 199, with the agreement of Allsop P and Kirby J, is apt:
[53] … the circumstances of an offence are not neatly marked out by two lines, one at the technical beginning and the other at the technical end of the crime: Director of Public Prosecutions v England [1999] 2 VR 258 at 263 [18]. Common sense and moral sense extend the circumstances of an offence which may be considered for an assessment of the objective seriousness of a crime, to events which precede and follow the technical limits of the crime. In imposing sentence for a crime, a judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime, and are properly to be regarded as circumstances of aggravation or mitigation: R v Wilkinson (No 5) [2009] NSWSC 432 at [61].
For the reasons given in Patel, however, it is likely to be rare that anterior conduct will be relevant to an assessment of objective seriousness in a case of manslaughter by excessive self-defence. In this case, nothing in the conduct of the applicant prior to the confrontation with the deceased could be said to increase the objective seriousness of the offence. It is sufficient to focus on the circumstances of the confrontation.
Both parties made submissions as to the degree of similarity this case bore to the facts in Newburn. So doing did little to resolve the issue of fact in this case.
Here, the applicant was confronted by a person whom he knew had been acting strangely the day before, such that Ms Summers had asked the deceased to leave. He knew the deceased suspected him of having been intimate with Ms Summers, the deceased’s partner. He knew Ms Summers had told him not to let the deceased in. The deceased was yelling, and was banging and kicking on doors, including that of Unit 2. The applicant thought the deceased was trying to get in, at which point he went outside to face him. This was a “split-second” reaction to the situation (to quote his affidavit). He put up his hands as a sign of non-aggression but the deceased was “punching into him, and trying to ‘belt’ him”. The deceased was holding him to his body. The applicant effectively pleaded for him to stop by saying: “Why are you doing this to me? What the fuck are you doing?” That plea itself indicates that the attack upon him was not momentary.
Further, Dr Furst’s report records the applicant saying that the deceased was bigger than him. The applicant’s police record describes the applicant as 170-180 cm tall but only weighing between 60-70 kg, which does suggest a stature on the slighter side.
That was the context of the applicant using the knife to defend himself and to escape the assault of the deceased. The assault by the deceased seems to have been relatively severe. So much is implied by the language of “punching into him” and trying to “belt” him. That conclusion is supported by the fact that the deceased ran after the applicant even after he had been stabbed and the applicant was running away – an action which suggests the deceased was in a rather crazed state.
It is true that the applicant used a knife, and stabbed the deceased in the chest, as the sentencing judge noted. Those facts led to the death of the accused, that being the necessary premise of the manslaughter conviction. The applicant has accepted that using the knife was not a reasonable response. However, it seems implicit in the facts – or at least is reasonably possible – that the applicant was otherwise not managing to defend himself against the deceased’s unprovoked attack.
It is also true that the applicant could have remained inside the house and, say, called the police. But his conviction is for killing the deceased in an action of excessive self-defence when he was attacked by the deceased after having opened the door. There is nothing in the facts suggesting that in opening the door he was seeking a confrontation with the deceased. He made a split-second poor decision to open the door when the deceased was trying to get in. That decision says little, if anything, about the reasonableness of his response when the applicant attacked him.
The Crown accepted that if either ground 1 or 2 was made out then a less severe sentence would be warranted having regard to the nature of the asserted errors. I have, in effect, found both of those grounds to be made out.
The facts of the offence are as set out above at [83]-[98]. Beyond that, and beyond the matters the subject of grounds 1 and 2, the applicant submitted that on resentence this Court should make three findings which differ from those of the sentencing judge.
First, it was said that the applicant’s offence should be regarded as unplanned (a mitigatory matter pursuant to s 21A(3)(b) of the CSP Act). That matter was not referred to directly by the sentencing judge, although it was raised below. The Crown accepted that such a finding could be made, but said that this description does not assist much in the present sentencing exercise, beyond being an absence of a factor that would have increased the objective seriousness of the offending. I agree that the finding should be made but it does not add much to the analysis of the offence at hand.
Second, the applicant submitted that this Court should not adopt the sentencing judge’s conclusion that the applicant “has certainly manifested in his commission of the instant offence a continuing attitude of disobedience of the law”. He did not dispute that he had a “bad criminal record” which disentitled him to leniency. The Crown accepted, in response, that “a finding expressed in this form may pay insufficient attention to the fact that this crime was committed in excessive self-defence”. I agree. The Crown further submitted, however, that the applicant has a record of carrying or using weapons which is relevant in the sentencing exercise. I also agree with that submission.
Third, the applicant submitted that unlike the sentencing judge, this Court should not regard general deterrence as a “significant feature of this sentencing exercise”. The applicant relied upon a statement in Patel at [38] that “general deterrence sits somewhat awkwardly with notions of excessive self-defence, given the similarities with spontaneous crimes of passion involving retribution or provocation or unexpected loss of control”. However, it was also stated there, with respect to the sentencing exercise at issue, that “[g]eneral deterrence remained an important consideration, along with retribution, denunciation and punishment”. In R v White [2025] NSWCCA 111, at [94], this Court said that “[g]eneral deterrence will typically have a lesser role to play in a case such as the present where no pre-meditation was involved”, as compared to cases of intentional wrongdoing. That understanding is apposite here. I thus disagree with the implicit suggestion of the sentencing judge that general deterrence was to be given greater weight than usual in this case. General deterrence is a relevant consideration in this case, but it is far from being the most significant consideration. The same can be said with respect to specific deterrence.
[33] There is no standard non-parole period for manslaughter. Given that, and the much repeated statements that, of all crimes, manslaughter is said to “thro[w] up the greatest variety of circumstances affecting culpability” (R v Blacklidge (Court of Criminal Appeal (NSW)), Gleeson CJ, 12 December 1995, unrep; see also R v Blake Davis [2021] NSWSC 235 at [138] per N Adams J) it follows that an assessment of where a particular crime of manslaughter is to be placed on some hypothetical range of manslaughters or types of manslaughters is not only not obligatory, it is unlikely to be of much utility. For my part I consider that it is an analysis that is best avoided.
Any killing of a human being is a serious matter. It is inherent in the offence that such a killing has occurred. The fact that the offence here involved the use of a weapon is an aggravating factor (CSP Act, s 21A(2)(c)). If the applicant had acted with an intention to kill that would have increased the objective seriousness of the offence, but he did not. So, too, if his response had significantly departed from a reasonable response, but it did not. I have outlined above the circumstances with which the applicant was faced. His poor, split-second decision to leave the unit does not make the offence more serious; it simply gave rise to the occasion for the deceased to attack the applicant in an unprovoked and somewhat crazed way, leading to the applicant’s response. The applicant’s plea of guilty manifests an acceptance that he should not have used a knife to counterattack. But in all the circumstances I would not characterise this offence as at the more serious end of the spectrum.
As regards moral culpability, the applicant did not argue that it was reduced by reason of any considerations of his prior disadvantage or any mental health condition.
The fact that the applicant was on parole at the time of the offence was a subjective aggravating factor (CSP Act, s 21A(2)(j)). Further subjective matters relevant to the applicant are summarised above at [99]-[101].
There is no dispute that the applicant’s criminal record disentitles him to leniency. As the Crown submitted, that history includes conduct involving possession and use of knives and possession of weapons and ammunition. That history, taken together with the current offence, gives rise to a particular concern about the need to protect the community.
I accept that the applicant has shown genuine remorse. Like the sentencing judge, I accept Dr Furst’s view that the applicant appears to have reasonable prospects of being successfully rehabilitated.
I find there are special circumstances, given the desirability of providing for an extended period of supervision of the applicant taking account of Dr Furst’s view that the applicant’s prospects of rehabilitation largely depend on his capacity to achieve abstinence from drug abuse over the longer-term and his ability to enter the workforce in a more meaningful capacity.
I take into account the need for denunciation of and accountability for the applicant’s serious offending. I have considered, too, the harm revealed by the victim impact statements. The deceased was a father of three children, a son, a brother, an uncle, and a friend.
The applicant does not dispute that no penalty other than imprisonment is appropriate. I adopt the same commencement date for the sentence as was adopted by the sentencing judge. I note that the applicant is entitled to a discount of 25% for his early plea of guilty.
The orders of the Court should be as follows:
Grant leave to appeal.
Appeal upheld.
Quash the sentence imposed in the District Court on 12 August 2024 and in lieu thereof sentence the applicant to a term of imprisonment of 5 years 3 months commencing on 18 September 2023 and expiring on 17 December 2028, with a non-parole period of 3 years expiring on 17 September 2026.
FAGAN J: I have had the benefit of reading Kirk JA’s judgment in draft. I agree with the orders that his Honour proposes.
In ground 1 it is claimed that the sentencing judge made an error of fact in concluding that the applicant inflicted the fatal knife wound with intent to cause death. When this leave application was heard in November last year there was uncertainty about the appropriate standard of appellate review for a challenge to a finding of fact in an appeal against sentence pursuant to s 5(1)(c) of the Criminal Appeal Act. The uncertainty has since been resolved by the decision of a five judge bench in Hancock v R, from which I consider it sufficient to quote the following:
[73] We accept the Director’s submission that an appropriate and correct test in a sentence appeal to ascertain the existence of a mistake of fact for the purposes of House v The King is to ask whether the finding was reasonably open. If the finding was not “reasonably open”, a sentencing judge has mistaken the facts. Ordinarily, this will apply to a finding of primary fact or an inference drawn from a finding of primary fact. In either case, if the sentencing judge has mistaken the facts in the sense that the finding was not “reasonably open” and, if the error is material, House v The King error will have been established.
[74] So far as evaluative findings of fact made as part of the sentencing exercise are concerned, they may be shown to be in error only if not “reasonably open”. A principle of appellate restraint thus applies to evaluative findings. As the applicant in this case accepted, if a finding may be described as “reasonably open”, it is not an error. […]
On the approach that I take to the present application I do not find it necessary to review any other authorities on the subject. Applying the now confirmed test, in my view it was not open to the sentencing judge to find that, in deliberately inflicting the single knife wound, the applicant intended to cause the death of the deceased. His intent is a matter of inference. If he intended to cause death, the objective seriousness of the offending would be increased. Accordingly, her Honour could only find the more serious level of intent if satisfied on the point beyond reasonable doubt, that is, if she could exclude the reasonable possibility that the applicant may have intended no more than to cause grievous bodily harm. Kirk JA’s reasons at [123]-[133] substantially reflect my own reasons for concluding that there was in the evidence and agreed facts no sufficient basis upon which her Honour could exclude the reasonable possibility of the lesser intent. I agree that leave should be granted with respect to ground 1 and that the ground should be upheld.
Correction of error with respect to intent is of such significance to the gravity of the offending that, inevitably, a lesser sentence is warranted. I therefore do not find it necessary to determine ground 1A, concerning the sufficiency of the reasons given by her Honour for her finding on intent.
Similarly, I do not find it necessary to determine ground 2, concerning extraneous matters taken into account in her Honour’s evaluation of the degree to which the applicant’s response to his perceived need to defend himself was excessive. I agree with Kirk JA that it is useful to consider the parties’ submissions addressed to that ground in the context of resentencing the applicant. I agree with his Honour that nothing in the conduct of the applicant prior to the deceased confronting him outside Ms Summers’ unit could be said to increase the objective seriousness of his offending. I agree with his Honour’s assessment of the applicant’s departure from a reasonable response, as set out at [156]-[161] of his reasons.
I agree with Kirk JA as to the sentence that should now be substituted upon quashing the sentence imposed in the District Court.
YEHIA J: I have had the considerable advantage of reading the judgment of Kirk JA in draft. I agree with his Honour’s proposed orders and with his Honour’s reasons.
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Typographical amendments: [95] - insertion of full stop [121] - insertion of "a" before "compelling" [130] - insertion of "to" after "prior"
Fisher
R [2026] NSWCCA 27
(2000) 203 CLR 172
(2001) 209 CLR 1
(2000) 203 CLR 194
(1981) 146 CLR 336
(1936) 55 CLR 509
(1908) 7 CLR 549
(2018) 266 CLR 1
(2022) 109 NSWLR 82
(2000) 203 CLR 1
(2015) 256 CLR 47
(2003) 214 CLR 118
(2004) 217 CLR 198
(2025) 99 ALJR 1185
(1936) 55 CLR 499
(2025) 308 FCR 250
(2013) 250 CLR 392
(2023) 416 ALR 24
(2025) 99 ALJR 474
(2011) 242 CLR 573
(2019) 266 CLR 129
(2024) 116 NSWLR 81
(1989) 167 CLR 259
(2022) 109 NSWLR 604
(2018) 264 CLR 541
(2013) 249 CLR 332
(2024) 98 ALJR 1119
(1986) 161 CLR 513
(1955) 92 CLR 1
(1980) 144 CLR 319
(1994) 181 CLR 201
(2025) 117 NSWLR 448
(2018) 266 CLR 56
(1999) 199 CLR 270
(1982) 150 CLR 160
(1979) 142 CLR 531
(2003) 212 CLR 629
(2013) 252 CLR 480
(1990) 170 CLR 321
As Dalton JA and Davis J concluded in MDU at [77]-[92], if Sofronoff P was indicating either or both that an appeal stricto sensu does not require error to be found, or that the appeal court necessarily has a limited ability to review claimed errors of fact, that would be incorrect.
In both an appeal by way of rehearing and an appeal stricto sensu – in contrast to an appeal de novo – it is necessary to identify error: Allesch at [23]; Lacey at [57]. As Mason J explained with respect to an appeal stricto sensu, “an appellate court, in hearing an appeal in the proper sense of the term, is called upon to redress error on the part of the court below”: Mickelberg v The Queen (1989) 167 CLR 259 at 267; [1989] HCA 35. To similar effect, McHugh J said in Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29 (citation omitted):
In Lacey the High Court held that a particular statutory provision providing for a Crown appeal on sentence “requires that error on the part of the sentencing judge be demonstrated before the Court’s ‘unfettered discretion’ to vary the sentence is enlivened” (at [62]). The very point of the appeal, overturning the Queensland Court of Appeal, was that because error needed to be demonstrated it was necessary for the Court of Appeal to find House v The King error rather than simply reaching a different view on the appropriate sentence: cf R v Lacey; Ex parte Attorney-General (Qld) [2009] QCA 274; (2009) 197 A Crim R 399 at [117], [146]-[147]. The decision in Lacey illustrates that the need to find error opens the door to apply House v The King; it says nothing about how those principles are to be applied.
Thus – contrary to the view of Sofronoff P, the Victorian Court of Appeal, and the Crown in this case – the standard of review does not depend upon whether the appeal is by way of rehearing or is an appeal stricto sensu: see also Hancock at [50]-[51] and [57]. Both types of appeal involve identification of error. Gageler J explained the position in SZVFW (citations omitted):
Such cases offer some potential support for the view that at least some of the more evaluative aspects of fact-finding involved in criminal sentencing should be subject to restrained review on appeal. It is also notable that the valuation cases employ language which is distinct from that used in House v The King, not least in not referring to mistakes of fact. Those cases illustrate that there are not just two immutable standards of review, being correctness and the standard articulated in House v The King.
There is good reason for saying that fact-finding on criminal sentencing in this State (as in many other jurisdictions) has distinctive features which militate in favour of taking such a restrained approach.
A sentencing judge may find facts from a wide range of sources. They may have presided over the trial prior to sentence, with or without a jury. Statements of fact might be made from the bar table. A statement of agreed facts might be tendered. So, too, might other documents, including business records, psychological or other reports, references, letters of apology or remorse from the defendant, letters or statements from family or friends or colleagues of the defendant (eg going to the defendant’s subjective circumstances), and victim impact statements. Affidavits might be read. Oral evidence might be led or adduced in cross-examination. Some aspects of fact finding on sentencing are entirely conventional; others are unusual.
First, in that regard, as was recognised in R v Storey [1998] 1 VR 359 at 371 (Winneke P, Brooking JA, Hayne JA and Southwell AJA): “Ordinarily, much of what is relied on in sentencing is not the subject of evidence given on the plea. Judges have always relied heavily on what is asserted from the bar table”. That practice is consistent with what the majority said in The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54:
Third, when sentencing after a jury trial a sentencing judge is required to sentence in accordance with the jury’s verdict and its implicit findings of fact. However, there may sometimes be some doubt about what findings of fact are implicit in the jury’s verdict. In such cases the sentencing judge “might take the view that he or she should assume that the jury has convicted the offender on the basis of the more favourable version of events, and thus sentence the offender on that basis”: Filippou at [67]. But they are not obliged to do so: ibid at [68]. A decision either way may be reasonable. Again, such decisions do not seem suitable for appellate review on the correctness standard.
An important part of the context of these examples is that the Evidence Act 1995 (NSW) does not apply to sentencing proceedings unless and to the extent that the court directs, pursuant to s 4 of that Act. In R v Bourchas [2002] NSWCCA 373; (2002) 133 A Crim R 413, Giles JA said (with the agreement of Levine and Sperling JJ) that “[i]n the absence of a direction pursuant to s 4 of the Evidence Act, the law of evidence unaffected by that Act applies”. That the absence of a direction under s 4 has the consequence that the common law of evidence applies is a “curious effect”, as Basten JA observed in Farkas v R [2014] NSWCCA 141; (2014) 243 A Crim R 388 at [14]. It is not clear that the point was the subject of argument in Bourchas. In any event, Giles JA also said the following in that case:
Similarly, in Canada an appeal court “may intervene only if the sentence the trial judge imposed is demonstrably unfit”: R v Lacasse [2015] 3 SCR 1089; 2015 SCC 64 at [51]. That standard encompasses where the sentence imposed “was clearly unreasonable by … improperly assessing the evidence”: ibid at [55], quoting R v LM [2008] 2 SCR 163; 2008 SCC 31 at [35]. Again, however, that view is taken in a context where Canadian appeal courts take a deferential approach generally to review of facts found by primary judges: see eg Hydro-Québec v Matta [2020] 3 SCR 595; 2020 SCC 37 at [33].
For the reasons above, the preferable view is that even though the House v The King standard may not generally involve taking a restrained approach to review of claimed mistakes of fact, in the context of sentencing appeals under ss 5 and 6 of the Criminal Appeal Act it is necessary for the applicant to establish that a challenged finding of fact was not reasonably open.
An example of an evaluative factual assessment is whether the offender has good prospects of rehabilitation (s 21A(3)(h)). That involves a forward-looking assessment of the prospects of a future factual eventuality. It is a factual assessment. But it involves a high degree of evaluation on which, inevitably, minds might reasonably differ. It cannot meaningfully be said that there is only one unique and correct answer; some latitude of choice should be allowed: cf Moore (a pseudonym) v The King [2024] HCA 30; (2024) 98 ALJR 1119 at [14]-[15].
As alluded to above, decisions made by sentencing judges as to what significance or weight (if any) to attribute to statements made from the bar table, or claims made to authors of reports, or conclusions as to how to understand the facts implicit in a jury verdict, can also be regarded as evaluative.
A conclusion as to the objective seriousness of an offence is not a pure issue of fact. It is a legal characterisation of facts that the sentencing judge has found: note Mulato v R [2006] NSWCCA 282 at [37]. The principles set out above will apply to those findings of fact which inform the conclusion but not to the characterisation conclusion itself. The deferential approach to be applied to such conclusions of objective seriousness is well-established, and does not turn on the debate as to appellate review of facts. The same is true where a conclusion on an issue involves application of a legal criterion, such as whether or not particular circumstances are characterised as “exceptional” so as to warrant a particular outcome (note Ghobrial v R [2012] NSWCCA 221 at [26]; Hancock at [58]).
The deceased and his associates left the pub at 2:18pm and returned to Gleeson’s unit.
At around 3pm Ms Summers left Unit 2. Before leaving she told the applicant that she was not ready for the deceased to return to the unit. The applicant asked what he should do if the deceased returned. She told him not to answer the door if the deceased came around and said that she would call the police. Ms Summers left, locking all the doors as she did. On her way out she said again “don’t let Jake in”. The applicant said “I won’t even open the door”.
At about the same time the deceased left Gleeson’s unit and spoke with a group in the outside common area for a short while. One member of the group described the deceased as intoxicated. The agreed facts then record the key events as follows:
As to the second, any knife of reasonable size has the potential to kill, depending on where the stabbing occurs and how many times. But stabbing a person once with a kitchen knife is not an action which would be expected invariably to occasion death. Thus the fact that the applicant stabbed the deceased is significant but not determinative in assessing whether he intended to kill the deceased when defending himself.
As for the third, the relevance of the location of the stab blow was not explained by her Honour. In this Court the Crown submitted that “[t]o aim with a knife at the ‘left chest area’ of a person is to aim at vital organs necessary to live”. Yet this was not a carefully planned ambush, nor was the applicant a practised killer or someone who might be thought to have particular expertise in where to stab a person in order to kill them. The picture of the incident which emerges from the statement of agreed facts is a tussle in which the applicant was trying to break free of the deceased’s grasp while he was being punched by the deceased. There is no basis to infer that the applicant intended to stab the deceased in the heart.
Moreover, it is relevant that the deceased was holding the applicant with his left hand on the right side of the deceased’s body. That would suggest the applicant’s right hand was facing the applicant’s left side. The facts do not disclose whether the applicant was right or left-handed but more people are right-handed than left. There is at the least a significant possibility that if the applicant was going to stab the deceased in order to defend himself the easiest way to do so would be using his right hand to attack the deceased’s left side.
Thus the three factors relied upon by her Honour do not establish a reasonable basis to infer, beyond reasonable doubt, that the applicant had an intention to kill the deceased.
Moreover, when considering the issue of reasonable response, her Honour expressly accepted the following facts: the deceased was agitated overnight, and then again at the pub on the afternoon of his death; the deceased was intoxicated; the deceased was aggressive, shouting, banging and kicking doors including the door to Unit 2; when the applicant left the unit, the deceased chased the applicant, grabbing him by his left hand and striking him with his right. Her Honour did not address that context when assessing the intention issue.
Nor did the sentencing judge refer to the following undisputed primary facts:
The applicant came out of Unit 2 because the deceased was kicking on the door and trying to get in. At the time the applicant was preparing breakfast using a knife. He said he had to react quickly. He placed the kitchen knife in his waistband.
The applicant showed the deceased his hands to communicate he was unarmed. He was then attacked by the deceased. The applicant tried to get away.
The applicant said immediately prior to the stabbing: "Why are you doing this to me? What the fuck are you doing?" Those questions indicate he was reacting to being assaulted by the deceased. They do not suggest any intention to kill, or indeed harm, him.
The applicant stabbed the deceased once only. After doing so, the applicant then ran away from the deceased (who chased after him). These facts militate against a conclusion that the applicant intended to kill the deceased.
The applicant took reasonably quick steps to have an ambulance called. Doing so militates against a finding of having had an intention to kill.
These facts make clear that the deceased was the aggressor, acting in an agitated and intoxicated state. It was he who instigated the fight. The applicant did not seek it; he sought to escape the deceased. There is no evidence that the applicant intended, at any stage, to cause harm to the deceased beyond stabbing the deceased once in order to defend himself. There is no positive evidence that he intended to kill the deceased in taking that step.
The Crown argued that such matters are not necessarily inconsistent with an intention to kill at the time of the stabbing. The submission was, in effect, that the applicant might not have intended to kill the deceased when he exited Unit 2 but his mental state could have “evolve[d] into an intention to kill at the moment of stabbing”. The requisite intention could similarly have dissipated immediately after the stabbing, it was suggested, with the applicant then taking “other evasive action” to avoid the danger he believed was posed by the deceased. That depiction of what occurred might be so, but it is at best a mere possibility. The more likely conclusion is that the applicant never had an intention to kill the deceased.
There is certainly no sufficient basis to find, beyond reasonable doubt, that the applicant intended to kill the deceased. The sentencing judge erred in reaching the contrary conclusion. That conclusion was not reasonably open to her Honour.
Ground 1 should be upheld. The sentencing decision miscarried because the primary judge was mistaken as to the facts. The Crown implicitly accepted that any such mistake was material. The applicant must be resentenced.
In this context I am not satisfied beyond reasonable doubt that the applicant’s action in stabbing the deceased departed significantly from a reasonable response. It is sufficient to state simply that it departed from a reasonable response.
Turning to objective seriousness of the manslaughter charge, this Court made the following observation about manslaughter in Paterson v R [2021] NSWCCA 273 (see also White at [70]):
Taking account of all of the relevant considerations and circumstances, the applicant should be sentenced to a term of imprisonment for 5 years 3 months, commencing on 18 September 2023, with a non-parole period of 3 years expiring on 17 September 2026.