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[2026] NSWCCA 147
Court of Criminal Appeal (NSW)
2026-09-18
Bell CJ at [1]; Mitchelmore JA at [3]; Muston J at [4].
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: Forbes v R [2026] NSWCCA 147
Hearing dates: 10 August 2026
Date of orders: 18 September 2026
Decision date: 18 September 2026
Before: Bell CJ at [1];
Mitchelmore JA at [3];
Muston J at [4].
Decision: (1) Grant leave to appeal.
(2) Allow the appeal.
(3) Quash the sentence of the District Court imposed on 5 July 2024.
(4) In lieu of the sentence imposed in the District Court, sentence the applicant to an aggregate term of imprisonment of 10 years to commence on 9 May 2022, with a non-parole period of 7 years which will expire on 8 May 2029.
Catchwords: SENTENCING — appeal against sentence — manifest excess — use of statistics — where the sentenced imposed is the highest recorded in statistics for offences under s 112(3) of the Crimes Act 1900 (NSW) — where the next highest sentence imposed was for significantly more serious offending than that for which the applicant was convicted — sentence imposed wholly disproportionate to offending — error found and applicant re-sentenced
Legislation Cited: Crimes Act 1900 (NSW) ss 86, 97, 112
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 5, 21A, 44, 54A
Criminal Appeal Act 1912 (NSW) s 5
Cases Cited: De Jong v R; Tuimaulauga v R; Zechel v R; Puru v R [2015] NSWCCA 32; (2015) 249 A Crim R 252
DG v R [2025] NSWCCA 137
He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Mansaray v R [2018] NSWCCA 16
Muldrock v R (2011) 244 CLR 120; [2011] HCA 39
O’Grady v R [2015] NSWCCA 168
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
R v Leach [2000] NSWCCA 247
R v Musa [2022] NSWCCA 221
R v Musa; R v Butros; R v Fangu Fangu (District Court (NSW), Culver DCJ, 1 April 2021, unrep)
Wooton v R [2014] NSWCCA 86; (2014) 241 A Crim R 256
Category: Principal judgment
Parties: Daniel Peter Forbes (Applicant)
Rex (Respondent)
Representation: Counsel:
D Carroll (Applicant)
F Gray (Respondent)
Solicitors:
First Choice Legal (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s): 2021/00130975
[This headnote is not to be read as part of the judgment]
The applicant, Daniel Forbes, sought leave to appeal against the sentence imposed upon him in the District Court following guilty verdicts to one count of specially aggravated break and enter and commit a serious indictable offence, being armed robbery in company, contrary to s 112(3) of the Crimes Act 1900 (NSW), and six counts of detain for advantage in company contrary to s 86(2)(a) of the Crimes Act (the s 112(3) offence and s 86(2)(a) offences, respectively). On 5 July 2024, the applicant was sentenced to an aggregate term of imprisonment of 17 years with a non-parole period of 10 years.
The applicant’s sole ground of appeal asserts that the sentence imposed was manifestly excessive.
The Court (Muston J, Bell CJ and Mitchelmore JA agreeing) held**,** allowing the appeal and resentencing the applicant:
As to the sole ground of appeal:
(1) In seeking to discharge the “very heavy practical burden” of proving manifest excess, the applicant pointed to Judicial Information Research System statistics, which suggest the sentence imposed on the applicant by the sentencing Judge was a significant outlier for offences under s 112(3) of the Crimes Act. In these circumstances, the sentence imposed on the applicant must be carefully scrutinised, by reference to its own facts and those which underpin the sentences imposed for other “comparable” offending. [41]-[44] (Muston J, Bell CJ at [1], Mitchelmore JA at [3] agreeing).
He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95; Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited.
(2) The sentence imposed on the applicant in this case was not merely “markedly different” to that which was imposed in the cases identified by the applicant and the Crown; it was wholly disproportionate to the offending: [50]-[51] (Muston J, Bell CJ at [1], Mitchelmore JA at [3] agreeing).
R v Leach [2000] NSWCCA 247; Wooton v R [2014] NSWCCA 86; (2014) 241 A Crim R; O’Grady v R [2015] NSWCCA 168; Mansaray v R [2018] NSWCCA 16; and R v Musa [2022] NSWCCA 221, considered.
As to resentence:
(3) The s 112(3) offence lies at the upper end of the mid-range of objective seriousness for offending of that type. Each of the s 86(2)(a) offences lie some way below the mid-range of objective seriousness. The hardship suffered by the applicant during his childhood reduces his moral culpability. He has good prospects of rehabilitation and has endured significant hardship during his time in custody. The interrelated nature of the offences is such that only a very small degree of accumulation is required: [54]-[67] (Muston J, Bell CJ at [2], Mitchelmore JA at [3] agreeing).
BELL CJ: I have had the benefit of reading the judgment of Muston J and agree with his Honour that, although the applicant’s crimes were of a very serious kind and have, no doubt, had a terrifying and ongoing impact on those innocent individuals caught up in the robbery, including their brief incarceration in the RSL safe, nonetheless the aggregate sentence imposed by the sentencing judge was manifestly excessive.
I have also had the benefit of reading what Muston J has said on the question of resentencing. Having considered the circumstances of the case, the gravity of the offending, the impact on the victims, the applicant’s subjective case and prospects of rehabilitation including in light of the evidence led for the purposes of resentencing, I also agree with Muston J’s proposed orders in relation to the resentencing of the applicant.
MITCHELMORE JA: I agree with the orders proposed by Muston J for the reasons his Honour has given.
MUSTON J: The applicant stood trial in the District Court in November 2023 on a seven-count indictment; one count of specially aggravated break and enter and commit a serious indictable offence, being armed robbery in company, contrary to s 112(3) of the Crimes Act 1900 (NSW), and six counts of detain for advantage in company contrary to s 86(2)(a) of the Crimes Act. For ease of reference, I will refer to the above as the s 112(3) offence and s 86(2)(a) offences, respectively. The jury returned verdicts of guilty on all counts, and the applicant was sentenced to an aggregate term of imprisonment of 17 years with a non-parole period of 10 years.
He seeks leave under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to bring an appeal from that sentence. The applicant’s sole ground of appeal asserts that the sentence imposed by Fitzsimmons SC DCJ (the sentencing Judge) was manifestly excessive.
At the time of the offending, the applicant was 41 years old and lived in a rental unit in Wollongong. The offences took place in Sussex Inlet, at the Sussex Inlet RSL, where the applicant’s brother was employed. The applicant had visited the RSL on six occasions prior to the offending despite residing in Wollongong.
The applicant had fallen into arrears in respect of his rental obligations. His landlord had applied to the New South Wales Civil and Administrative Tribunal (NCAT) for a termination order; NCAT made orders requiring the applicant to pay his landlord a sum of $7,600 by 23 July 2019.
The applicant failed to pay this sum by the specified date and was advised on 25 July 2019 (being the date of the robbery) by an email from the landlord’s real estate agent that the landlord would be seeking immediate termination of the tenancy, and a garnishee order over his wages. The email also detailed plans to place the applicant on a tenancy database that would prevent him from leasing another property in the subsequent three years.
On the day of the robbery, the bank account with which the applicant paid his rent showed a balance of $0.09. In the early afternoon, the applicant attended Bunnings, Wollongong, and purchased two sledgehammers.
That night, at 10:35pm, the RSL shut; six members of its staff remained at the premises.
At approximately 10:56pm, the applicant and a co-offender entered the outdoor area of the premises. The applicant was carrying a sledgehammer and a black gym bag; his co-offender carried a sledgehammer in one hand, and a sawn-off double-barrelled shotgun in the other (though it is unclear whether this was a real gun or an imitation). Both were wearing balaclavas, black sunglasses and black gloves.
The applicant and his co-offender smashed glass doors using the sledgehammers and entered the RSL. After a staff member alerted other staff members of the robbery, five of the six staff members sheltered in the manager’s office — the sixth, Mr Gorry, remained outside the office.
Mr Gorry was approached by the applicant and the co-offender. He denied knowledge of where the other staff members were, and was then physically forced to sit on a stool in the gaming area while the co-offender pointed the shotgun at him.
The applicant used the sledgehammer he was still holding to smash his way into the manager’s office. On entering the office, he bumped into a member of staff who was in the process of calling 000, while another staff member, Ms Griffin, was hiding under a desk holding a crate of cash extracted from the poker machines.
The applicant demanded all staff leave the manager’s office; in response, all did except for Ms Griffin. The applicant then demanded that a 3x2 metre safe located in the manager’s office be opened. One of the staff members subsequently retrieved a set of keys and opened the safe. The co-offender, still wielding the shotgun, then directed all staff to remain with Mr Gorry.
The applicant and co-offender proceeded to take $62,345 cash from the safe and placed it in a gym bag carried by the applicant. While the applicant and co-offender were taking the cash, Ms Griffin — at that stage still under the table — disclosed her presence. She was escorted out of the manager’s office by the applicant. He then directed all staff to enter the safe. The co-offender, still armed, followed the staff members into the manager’s office and locked them in the safe.
One of the staff members called 000, while another called their spouse, informed them of the robbery, and told them that the RSL’s staff were still locked in the safe. The spouse then drove to the residence of the RSL’s general manager, and the pair drove separately to the premises. The staff members were able to be quickly freed by the general manager as the keys to the safe remained in the keyhole. They had been locked in the safe from approximately 11:00pm to 11:20pm. Police arrived at the scene at approximately 11:26pm.
On 26 July 2019, at 4:45am, CCTV captured the applicant entering the lift of his unit complex holding a green Woolworths shopping bag. Later that day, the applicant purchased a television from a local store for $1,888; he paid entirely in cash. The applicant was captured on CCTV taking the television to the floor of the complex where his unit was located. On the same day, the applicant deposited $15,000 in cash directly into his landlord’s account.
In October 2019, the applicant denied involvement in the robbery in an intercepted phone call with his mother. In that call, he told his mother that his mobile phone records would indicate that he was not near Sussex Inlet on the relevant night and would exculpate him from any involvement.
Mobile phone records relating to the applicant’s phone show activity throughout the date of offending. No calls or messages were sent from the applicant’s phone from 4:02pm on 25 July 2019 to 2:15am on 26 July 2019. The applicant missed two phone calls at 4:10pm and 5:52pm during that period. Location data revealed that the phone remained connected to telephone towers in the Wollongong area.
In May 2021, the applicant was arrested in Queensland with an associate and taken to Tweed Heads Police Station. Listening devices installed in the cell in which the applicant was detained captured a discussion between the applicant and his co-arrestee in which he referred to the television purchase and denied that it was made using money from the robbery.
The sentencing Judge alluded to the violent manner in which the applicant and his co-offender entered the RSL and the fear that this would likely have caused the individuals who were working in the RSL at that time. To similar effect, his Honour noted the further violence involved in smashing open the door to the manager’s office.
In assessing the objective seriousness of the offence under s 112(3) of the Crimes Act, the sentencing Judge referred to the observations of Fullerton J in De Jong v R*;* Tuimaulauga v R; Zechel v R; Puru v R [2015] NSWCCA 32; (2015) 249 A Crim R 252 at [61] that:
“The objective seriousness of a breach of s 112(3) will necessarily vary depending first upon the particular serious indictable offence nominated in the charge as the offence committed after the premises were broken into and entered and the maximum penalty provided for that offence.”
His Honour noted that, in this case, the serious indictable offence was robbery armed with an offensive weapon contrary to s 97 of the Crimes Act, which carries a maximum term of 20 years imprisonment. His Honour further said that the circumstances of aggravation and special aggravation were relevant to the assessment of objective seriousness; recording that the circumstance of aggravation was the fact that the applicant was in company at the time of the offence.
The circumstance of special aggravation relied upon by the Crown was the fact that the applicant’s co-offender was armed with a sawn-off shot gun, although his Honour recognised that the Crown had failed to establish, beyond reasonable doubt, that the weapon was capable of being discharged.
The sentencing Judge held that the s 112(3) offence had been further aggravated by the fact that the applicant knew there would be people in the RSL at the time that he and his co-offender committed the offence. However, his Honour properly recognised that the offending had not involved the intentional or reckless infliction of actual bodily harm and that the circumstances of special aggravation did not include wounding or the infliction of grievous bodily harm.
The sentencing Judge found that the applicant’s offending was not opportunistic or spontaneous. Rather, his Honour found it to have involved a “significant degree of planning”; referring in this regard to the purchase of the sledgehammers and what he found to have been the deliberate decision on the part of the applicant to leave his mobile phone in the Wollongong area in an attempt to create exculpatory evidence. However, his Honour was not prepared to find that the offence was part of a “planned or organised criminal activity” in the sense contemplated by s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
Ultimately, the sentencing Judge concluded that the s 112(3) offence was “a particularly serious example of the range of offences contemplated by [that] section, although not the most serious.”
Turning to the s 86(2)(a) offences, the sentencing Judge noted that the circumstance of aggravation relied upon by the Crown was the fact that each offence was committed by the applicant in the company of his co-offender.
Whilst it was acknowledged by the sentencing Judge that the detention was relatively short lived and that no actual bodily harm had been caused to any of the people detained, his Honour noted that the detention would still have instilled significant fear in the victims. His Honour concluded that the objective seriousness of these offences fell well below the most serious, but did not lie at the lowest, end of the spectrum.
Turning to the applicant’s subjective case, the sentencing Judge did not consider the applicant’s criminal record to have been an aggravating factor but did find that it effectively precluded reliance on s 21A(3)(e) of the Crimes (Sentencing Procedure) Act.
His Honour did suggest that the fact that the offences had been “committed for financial gain” was an aggravating factor; presumably in a sense contemplated by s 21A(2)(o) of the Crimes (Sentencing Procedure) Act. While the applicant made no specific complaint about that finding, it is potentially problematic. When it is recalled that the circumstance of aggravation relied upon to bring the applicant’s offending within s 112(3) of the Crimes Act was the fact that he had committed a robbery armed with an offensive weapon, financial gain almost inevitably secured through the commission of the robbery would seem to be picked up by the elements of that offence. In making this observation, I do not intend to suggest that the amount of money — or the value of any property — stolen would not be an important consideration when assessing the objective seriousness of that offence.
The sentencing Judge accepted that, during his childhood, the applicant had experienced sexual abuse, suffered from parental neglect, and been exposed to violence in the home. His Honour further accepted that this experience predisposed the applicant to developing a substance use disorder in his early teenage years and had resulted in drug use and addiction issues. Finally, his Honour implicitly accepted that the applicant had been deeply affected by the death of his younger sister.
His Honour did not accept that there was any relevant causal connection between the applicant’s childhood experiences and the offending. For this reason, his Honour did not accept that the applicant’s moral culpability was reduced by those experiences. However, his Honour indicated that he would give “full weight … to these issues in the process of instinctive synthesis when determining the appropriate sentence”.
The sentencing Judge considered that both specific and general deterrence loomed large in sentencing the applicant. Insofar as general deterrence is concerned, his Honour noted the impact that violent offending has on the community generally and emphasised the need to denounce the applicant’s conduct “in the strongest terms”. As to specific deterrence, his Honour referred to the applicant’s criminal history and what he described as his previous failure to have taken steps to address his drug use and offending generally; expressing an ultimate view that the applicant’s prospects of rehabilitation were “guarded”.
Nevertheless, his Honour accepted that special circumstances had been established which justified an adjustment of the statutory ratio of the non-parole period. This finding was based on what his Honour identified as the benefits to be obtained by allowing the applicant “to address his drug use and other issues” in the community. In finding that special circumstances had been established, his Honour also appears to have taken into account what was described as “the consequences of the recent assault committed upon” the applicant. I will return to this issue below.
After finding that the threshold imposed by s 5 of the Crimes (Sentencing Procedure) Act was crossed, the sentencing Judge identified an indicative sentence of 12 years with a non-parole period of seven years for the s 112(3) offence. For each of the six s 86(2)(a) offences, his Honour proffered indicative sentences of four years imprisonment.
After setting out the relevant principles of totality and noting that some accumulation would be applied to reflect the fact that each of the six s 86(2)(a) offences involved a different victim, his Honour imposed an aggregate sentence of 17 years imprisonment the non-parole period of 10 years; 788 days of which was to be recognised as time served through the backdating of that sentence.
"When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].
• Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.
• Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.
• It is not to the point that this Court might have exercised the sentencing discretion differently.
• There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.
• It is for the applicant to establish that the sentence was unreasonable or plainly unjust."
It is well recognised that an applicant seeking to challenge a sentence on the ground of manifest excess has a “very heavy practical burden”: He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 at [42].
In seeking to discharge that burden in the present case, the applicant pointed to Judicial Information Research System statistics, which suggest the sentence imposed on the applicant by the sentencing Judge was a significant outlier for offences under s 112(3) of the Crimes Act. In fact, the sentence imposed on the applicant is the highest recorded in those statistics.
The use of statistics is a particularly blunt instrument when seeking to establish manifest excess and may be of limited utility in a particular case: Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [54]-[55]. When dealing with a protean offence like that created by s 112(3) of the Crimes Act, bare statistics, stripped of the facts referable to the offending to which they relate, often have particularly limited utility. However, such statistics can, and should, provide some guidance to sentencing judges and to appellate courts, and stand as at least a yardstick against which to examine a sentence: Hili v The Queen at [54].
In the present case, it is notable that the statistics point to the sentence imposed on the applicant sitting at the top of the range that they represent; even then, it is something of an outlier. In these circumstances, the sentence imposed on the applicant must be carefully scrutinised, by reference to its own facts and those which underpin the sentences imposed for other “comparable” offending. I use the word “comparable” cautiously as s112(3) of the Crimes Act captures a very diverse range of offending.
Both the applicant and the Crown identified a number of cases in which this Court has considered sentences imposed for broadly similar offences committed under s 112(3) of the Crimes Act*:* R v Leach [2000] NSWCCA 247; Wooton v R [2014] NSWCCA 86; (2014) 241 A Crim R; O’Grady v R [2015] NSWCCA 168; Mansaray v R [2018] NSWCCA 16; and R v Musa [2022] NSWCCA 221. Each provided a summary of the circumstances underpinning the sentences imposed in those cases.
While each of those cases turns on its own unique facts, the summaries of them provided by the parties do provide some indication of the inappropriateness of the sentence from which the applicant seeks leave to appeal.
Nothing in the summaries provided by the parties leads me to think that the offences to which those other cases related were materially less serious than that which was committed by the applicant. In fact, the next highest sentence reflected in the statistics is that which was upheld by this Court in R v Musa. It too is something of a statistical outlier. While this Court’s reasons in that case disclose little detail of the underlying offending, the reasons of the sentencing Judge from which the appeal had been brought make clear that Mr Musa’s offending was significantly more serious than that for which applicant in this case was sentenced: R v Musa*; R v Butros; R v Fangu* Fangu (District Court (NSW), Culver DCJ, 1 April 2021, unrep).
Mr Musa had pleaded guilty to an offence under s 112(3) of the Crimes Act. In his case, the serious indictable offence committed was armed robbery with wounding. The offence was committed in company. The circumstances of special aggravation arose out of the fact that he intentionally inflicted grievous bodily harm on two victims. The charges arose out of an extremely violent home invasion in which Mr Musa and two other men broke into an apartment occupied by four university students; all of whom were asleep at the time. In addition to stealing an array of property, Mr Musa stabbed one of the occupants 15 times in the upper body, arms, face and neck. The victim survived but the attack caused life-altering injuries to him. He stabbed another occupant of the apartment multiple times in the hands and face, indicating to one of his co-accused that he was “going to kill him”. That victim also survived but required lengthy hospitalisation. He too was left with life-altering injuries.
Even taking into account Mr Musa’s plea of guilty and subjective case, the aggregate sentence of 15 years (incorporating an indicative sentence of 11 years and 3 months for the s 112(3) offence) for what was — on any view — significantly more serious offending than that for which the applicant was convicted, is revealing. The balance of the cases identified by the parties involved sentences that were each substantially lower than that imposed in R v Musa.
In my view, the sentence imposed on the applicant in this case was not merely “markedly different” to that which was imposed in R v Musa and the other cases identified by the applicant and the Crown; it was wholly disproportionate to the offending. It is probably unnecessary to search for the reason for this, although there has at least been an excessive level of accumulation applied to each of the indicative sentences and a failure to have properly brought to account principles of totality when settling upon the aggregate sentence.
I am satisfied that the applicant has discharged the heavy practical burden of establishing that the sentence from which he seeks leave to appeal was plainly unjust. Leave should be granted and the applicant’s appeal should be upheld.
Error having been established, it is necessary for this Court to resentence the applicant afresh: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]. Much of what has been set out above is relevant to that task; I will endeavour not to repeat it.
In addition to what is set out above, the applicant relied on affidavits sworn by his solicitor and his mother respectively. Each gave evidence of matters bearing on the applicant’s conduct in custody and of certain hardships he has experienced while serving his sentence. I will return to these matters in a moment.
Dealing first with the objective seriousness of the applicant’s offending, I consider the s 112(3) offence to lie at the upper end of the mid-range of objective seriousness for offending of that type. Each of the s 86(2)(a) offences lie some way below the mid-range of objective seriousness.
It may be accepted that the offending involved some level of planning. It was aggravated by the circumstances of aggravation and special aggravation relied on by the Crown; although, both are elements of the s 112(3) offence and are, therefore, only taken into account in the manner described by Fullerton J in De Jong v R at [61].
Whilst I have no doubt that each of the staff members — who were present at the RSL at the time of the robbery and were locked in the safe — would have found the entire experience to have been highly traumatic, none of them suffered any physical injury and the period of their detention was ultimately quite brief.
Turning to the applicant’s subjective considerations, for reasons analogous to those given by the sentencing Judge, I am satisfied that the significant hardship experienced by the applicant during his childhood must be taken into account. However, unlike the sentencing Judge, I am of the view that they do reduce the applicant’s moral culpability and consider this conclusion to be open in the absence of an established causative link between those experiences and his offending: DG v R [2025] NSWCCA 137 at [159].
I do not share the sentencing Judge’s view that the applicant’s prospects of rehabilitation are “guarded”. On the basis of the material available to this Court, it is my view that the applicant has good prospects of rehabilitation. Whilst in custody he has participated in and completed, with apparent enthusiasm, a range of educational activities. It was said by one education officer with whom he interacted that the applicant was “ahead in his studies compared to his peers… always polite and well mannered, … [and had taken] on feedback with a positive attitude.” To similar effect, his work and attitude have been commended by officers supervising his work as a clerk in the correctional centre’s rations workshop.
The applicant has endured significant hardship during his time in custody. He has lost multiple family members with whom he was close and was unable to attend their funerals due to his incarceration.
In December 2023, he was also the victim of a serious assault. The perpetrator of that assault was said by the applicant to have been the friend of a staff member present at the RSL and detained during the applicant’s offending. During the assault, the applicant received a significant blow to the head and one of his teeth was broken. Since that time, he has experienced serious headaches, blurred vision, and the increasing appearance of black spots in his central field of vision.
The material relied upon by the applicant for the purposes of resentencing suggests that he sought treatment for these problems on multiple occasions without success. When, after around six months, he finally was referred for assessment by an ophthalmologist, repeat appointments for the purposes of that assessment were missed “due to [Department of Corrective Services] issues”. He has now received treatment for those injuries and must wear glasses to correct the vision in his right eye. I accept that the extensive delay in receiving that treatment has resulted in the applicant experiencing additional (and unnecessary) hardship while in custody.
The s 112(3) offence carries a standard non-parole period of seven years: s 54A of the Crimes (Sentencing Procedure Act). There is no standard non-parole period applicable to the s 86(2)(a) offences.
The Crown did not take issue with the sentencing Judge’s finding that special circumstances existed which warranted a departure from the statutory ratio contemplated by s 44 of the Crimes (Sentencing Procedure) Act. However, in exercising the sentencing discretion afresh, I must also have regard to the standard non-parole period applicable to the s 112(3) offence. That standard non-parole period is only a legislative guidepost which I must consider, together with the maximum penalty for the s 112(3) offence, when determining the appropriate sentence to be imposed: Muldrock v R (2011) 244 CLR 120; [2011] HCA 39 at [27]. Nevertheless, I consider it to be an appropriate period to impose given the objective seriousness of that offence.
I recognise that, in taking this approach, the non-parole period I impose will represent a slightly larger proportion of the applicant’s reduced sentence than would have been produced had I applied the same ratio as the sentencing Judge. However, in all the circumstances I consider this to be appropriate.
Balancing all these considerations, and in all the circumstances, I propose the following:
For the s 122(3) offence, the indicative sentence is 9 years imprisonment with an indicative non-parole period of 7 years.
For each of the s 86(2)(a) offences, the indicative sentences are 12 months imprisonment.
The interrelated nature of the offences is such that I consider only a very small degree of accumulation is required. I am further mindful of the principles of totality and the need to ensure that the aggregate sentence imposed is an appropriate reflection of the totality of the applicant’s criminality.
I impose an aggregate sentence of 10 years to date from 9 May 2022 with a non-parole period of 7 years. The non-parole period will expire on 8 May 2029.
Accordingly, the orders I propose are as follows:
Grant leave to appeal.
Allow the appeal.
Quash the sentence of the District Court imposed on 5 July 2024.
In lieu of the sentence imposed in the District Court, sentence the applicant to an aggregate term of imprisonment of 10 years to commence on 9 May 2022, with a non-parole period of 7 years which will expire on 8 May 2029.
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Amendment made to counsel's name in coversheet.
Forbes
R
[1936] HCA 40
(2021) 104 NSWLR 518
(2010) 242 CLR 520
(2014) 252 CLR 601
(2011) 244 CLR 120
(2017) 96 NSWLR 155
(1936) 55 CLR 499
(1999) 195 CLR 665
(2000) 202 CLR 321
(2001) 207 CLR 584
(2005) 228 CLR 357