Hunt v R

Court of Criminal Appeal (NSW)|2021-06-18|Before: McCallum JA, Rothman J, Wright J, Callum JA

Solicitors: Maksisi Lawyers (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2017/167600; 2017/174119 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 13 July 2020 Before: Shead SC DCJ File Number(s): 2017/167600 2017/174119

Background

On 9 June 2017 at 5:30pm, the applicant was arrested and taken to Newtown Police Station where he was charged with a number of domestic violence and sexual offences against his former partner and participated in an electronically recorded interview. On 10 June 2017, the applicant was initially refused bail, remaining in custody on remand until 22 March 2018. On that day, he was granted conditional bail by the Supreme Court.
Between 16 and 25 October 2019, the applicant was tried in the District Court at Sydney before Shead SC DCJ and a jury. On 31 October 2019, the applicant was found guilty of each of the six counts on the indictment.
On 2 April 2020, the sentence proceedings were heard before Judge Shead. On 13 July 2020, the sentencing judge imposed an aggregate sentence upon the applicant of 11 years' imprisonment commencing on 31 October 2019 and expiring on 30 October 2030 with a non-parole period of 6 years 8 months expiring on 30 June 2026.
In accordance with s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Procedure Act), the sentencing judge recorded the sentences that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence, noting where applicable the standard non-parole period (SNPP), as follows: Count Offence Maximum Penalty and SNPP Indicative Sentence and NPP 1 Common assault contrary to s 61 of the Crimes Act 1900 (NSW) (Crimes Act) 2 years 3 months 2 Aggravated sexual assault (deprive liberty) contrary to s 61J of the Crimes Act 20 years 8 years and 6 months SNPP: 10 years NPP: 5 years and 1 month Aggravated sexual assault (deprive liberty) contrary to s 61J of the Crimes Act 20 years 3 SNPP: 10 years 9 years and 6 months Form 1: NPP: 5 years and 8 months Assault occasioning actual bodily harm contrary to s 59 of the Crimes Act 5 years 4 Assault with act of indecency contrary to s 61L of the Crimes Act 5 years 3 years and 3 months NPP: 1 year 11 months 5 Assault with act of indecency contrary to s 61L of the Crimes Act 5 years 2 years NPP: 1 year 2 months 6 Intimidate with intent to cause fear of physical or mental harm contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) 5 years and/or 50 penalty units. 18 months NPP: 11 months S 166 Offence Knowingly contravene prohibition in ADVO contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2 years and/or 50 penalty units 3 months

The applicant did not file his notice of application for leave to appeal until 4 February 2021. Nonetheless, it appears that an extension of time was granted by the Registrar and no issue arises as to the application being out of time.

Grounds of appeal

The proposed grounds of appeal if leave is granted are as follows: "1. The learned sentencing judge erred in the approach to the first period of pre-sentence custody by not backdating the sentence to reflect this period. 2. The aggregate sentence imposed is manifestly excessive."
In order to consider the first ground of appeal and whether leave ought to be granted, it is not necessary to review the entirety of her Honour's comprehensive remarks on sentence. If the first ground is made out, it will not be necessary to consider ground 2.

Factual circumstances relevant to ground 1

The factual circumstances relevant to ground 1 were not in dispute. The applicant was arrested at 5.30 pm on 9 June 2017. He was refused bail on 10 June 2017 but on 22 March 2018 was granted conditional bail by the Supreme Court. Between 22 March 2018 and 31 October 2019 he was not in custody. When the applicant was found guilty on 31 October 2019, he was remanded in custody, where he remained until he was sentenced on 13 July 2020. Thus, there were two discrete periods of pre-sentence custody.
It was also not in dispute that the applicant was in custody during those two periods in relation to all the offences for which he was being sentenced.

Portion of the remarks on sentence relevant to ground 1

The learned sentencing judge dealt with the issue of backdating and commencement of sentence as follows: "Section 24(1)(a) of the Crimes (Sentencing Procedure) Act, requires the Court to take into account any time for which the offender has been held in custody in relation to the offence. The offender was first arrested on 9 June 2017. He was then refused bail between 10 June 2017 and 22 March 2018. The subsequent bail application to the Supreme Court was successful and the offender was at liberty until 31 October 2019. The offender was then in custody from 31 October 2019. I intend to backdate the sentence to 31 October 2019. In sentencing the offender for the sexual offences I have taken into account the offender's period of custody from 10 June 2017 to 22 March 2018 being some 286 days of detention."
This reasoning was given effect to in the aggregate sentence imposed upon the applicant of 11 years' imprisonment commencing on 31 October 2019 with a non-parole period of 6 years 8 months expiring on 30 June 2026.

Ground 1 - submissions

The applicant drew attention to the provisions of ss 24(1) and 47(2) and (3) of the Sentencing Procedure Act concerning the requirement to "take into account" pre-sentence custody when sentencing an offender and determining the commencement date of the sentence.
The principal issue raised under ground 1 was said to be, in effect, whether it was sufficient for the sentencing judge simply to say that she took into account the first period of pre-sentence custody in this case without backdating the sentence by reference to that period, especially in the absence of any further reasons as to: 1. why the sentence was not so backdated; and 2. how the first period of pre-sentence custody was actually taken into account.
In this context, the applicant also noted that during the sentence proceedings, her Honour did not put to either party that her approach was going to be simply to take the first period "into account" rather than backdating the sentence by the relevant number of days.
The applicant accepted that the authorities established that, while the preferable or desirable course is to take a period of pre-sentence custody into account by backdating the commencement of the sentence, this was not mandatory. Nonetheless, it was submitted that the authorities also established that if a sentence was not to be backdated to take account of pre-sentence custody, the reason or reasons for not doing so should be clearly stated.
It was submitted that the learned sentencing judge did not adopt the preferable course and gave no reasons for not adopting that approach, thus falling into error. It was also contended that the error was demonstrated in this case because one was left to speculate about how it was that the first period of pre-sentence custody had been taken into account and why this approach had been adopted. This was said to be impermissible and to fall short of the transparency required in a judgment.
The Crown submitted that failing to record reasons for not adopting the preferred approach of backdating did not reveal error in the House v The King sense requiring the intervention of this Court, relying on Salafia v R [2015] NSWCCA 141 (Salafia). It was noted that the sentencing judge expressly stated that she had taken the first period of pre-sentence custody into account specifically with respect to sentencing for the sexual offences. It was contended that the Court should be loath not to take a sentencing judge at his or her word when the judge specifically stated that pre-sentence custody had been taken into account. In particular, the Crown submitted: "The sentencing Judge's statement regarding how the 286 days of pre-sentence custody had been taken into account should be taken to mean that the indicative sentences for the sexual offences would have been greater but for the period of pre-sentence custody…".
On these bases, it was submitted that there was no appellable error.

A preliminary matter

At the outset, it is useful to identify the actual duration of the first period of pre-sentence custody as there appears to be some confusion. At one point in oral submissions the applicant's counsel submitted that it was 285 days. [1] In her Honour's remarks on sentence in the passage quoted above, she refers to the period being 286 days, calculated on the basis that the applicant was in custody from 10 June 2017 to 22 March 2018.
The applicant was, however, arrested on 9 June 2017 and bail was refused the next day.
The confusion may have arisen, in part, because the Crown Sentence Summary in evidence on the sentence hearing stated that the date of arrest was 10 June 2017 and that the first period in custody was from 10 June 2017 to 22 March 2018.
The expression "in custody" in ss 24(1) and 47(2) and (3) of the Sentencing Procedure Act is not defined and there is no reason to conclude that it is used as a term of art rather than its ordinary English meaning. Accordingly in the present case, the time spent in custody should for these purposes be taken to have commenced when the applicant was arrested not when bail was refused the next day: see generally Smith v The Queen (1957) 97 CLR 100 at 129 (Williams J); [1957] HCA 3.
Adopting this approach, the period between 9 June 2017 and 22 March 2018 comprised 287 days, when both the start date and the end date are included. Thus, the first period of pre-sentence custody was not 286 days as the sentencing judge stated, based on custody commencing on 10 June 2017.
Such a minor calculational error would not, in my view, amount to a legal error in the sentencing process which would vitiate the exercise of the sentencing discretion. It appears to be an error of the type described in Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 at [72] (Bathurst CJ, Beazley P, R A Hulme and Schmidt JJ agreeing). If the sentence had been backdated to take account of the first period of pre-sentence custody, it would have been an error which this Court could have remedied by a simple and non-contentious adjustment of the commencement date of the sentence without the need to exercise afresh the sentencing discretion. As it happened, the first period of pre-sentence custody was not taken into account by backdating and the minor calculational error cannot easily be addressed. If, however, ground 1 is made out, the two periods of pre-sentence custody must be taken into account when consideration is given to resentencing.

Ground 1 - consideration

Pre-sentence custody and the commencement of a sentence are governed by ss 24 and 47 of the Sentencing Procedure Act. Those sections relevantly provide: "24 Court to take other matters into account In sentencing an offender, the court must take into account - (a) any time for which the offender has been held in custody in relation to the offence, … … 47 Commencement of sentence (1) A sentence of imprisonment commences, subject … to any direction under subsection (2), on the day on which the sentence is imposed. (2) A court may direct that a sentence of imprisonment - (a) is taken to have commenced on a day occurring before the day on which the sentence is imposed, or … (3) In deciding whether or not to make a direction under subsection (2) (a) with respect to a sentence of imprisonment, and in deciding the day on which the sentence is taken to have commenced, the court must take into account any time for which the offender has been held in custody in relation to the offence or, in the case of an aggregate sentence of imprisonment, any of the offences to which the sentence relates. …".
The principles in relation to the application of ss 24(a) and 47(2) and (3) of the Sentencing Procedure Act were not generally in dispute. They relevantly include the following: 1. The preferable course to adopt in order to take into account an offender's pre-sentence custody is to backdate the sentence imposed by a period equivalent to the pre-sentence custody: R v Lulham [2016] NSWCCA 287; (2016) 263 A Crim R 287 (Lulham) at [68] (N Adams J, Beazley P agreeing); Salafia at [65] (Wilson J, Hoeben CJ at CL and Hall J agreeing); Wiggins v R [2010] NSWCCA 30 (Wiggins) at [3] (Howie J, McClellan CJ at CL and Harrison J agreeing) and the cases there cited. 2. While preferable and an important rule of practice, backdating the sentence to take account of pre-sentence custody is not mandatory: Salafia at [65] and [66]; Wiggins at [3]; R v English [2000] NSWCCA 245 (English) at [22] (Giles JA, Adams J agreeing). 3. Reasons why backdating is preferable include that: it is simple; it provides transparency so that an offender can readily see that the time has been taken into account; it promotes the accuracy and reliability of the record and statistical information derived from sentences imposed by other courts; and, it prevents there being hidden factors affecting the length of custody involved in the sentence: Lulham at [68]; Wiggins at [8]; R v Newman; R v Simpson [2004] NSWCCA 102 (Newman) at [27] to [30] (Howie J, McColl JA agreeing); (2004) 145 A Crim R 361; R v McHugh (1985) 1 NSWLR 588 (McHugh) at 590-1 (Street CJ). 4. Even where the pre-sentence custody has not been continuous, the preferable course remains to backdate the sentence notwithstanding that it creates something of a fiction whereby the sentence commences on a day when the offender was not in custody: Rodgers v R [2018] NSWCCA 47 at [76] (Johnson J, Hoeben CJ at CL and N Adams J agreeing); R v Johnson [2005] NSWCCA 186 at [41] (Hunt AJA, Hulme J and Johnson J agreeing); Newman [26] to [34]. 5. Where pre-sentence custody is not taken into account by backdating, a sentencing judge should clearly state the reasons for not doing so: English at [22]; McHugh at 591. 6. When a sentencing judge has not given reasons why a period of pre-sentence custody has not been taken into account by backdating but it can be determined that the relevant periods of pre-sentence custody have been taken into account as required, no relevant error has been made so as to attract the intervention of this Court: Salafia at [81] and generally at [79] - [85]. 7. Where, however, reasons have not been given for not backdating and the sentence and circumstances do not demonstrate that the pre-sentence custody has been taken into account, error justifying intervention may be established: R v Howard [2001] NSWCCA 309 (Howard) at [24] - [25] (Wood CJ at CL, Beazley JA and Sperling J agreeing); R v Argent [2004] NSWCCA 270 (Argent) at [21] - [25] (James J, Adams J and Bell J agreeing). In Howard, the situation was explained by Wood CJ at CL as follows at [24] to [25]: "24 In this regard [failure to take into account pre-sentence custody] it was the case that the applicant had spent ten days in custody between the time of his arrest, on 30 January 1997, and the date when he was granted bail on 10 February 1997, and a further period of one month and five days in custody between 10 May and 15 June 1998, totalling in all one month and fifteen days. His Honour made no mention of the first period of ten days, but expressly stated that he had taken into account the second period of one month and five days. It is, however, submitted that the sentence being expressed in round terms of seven years six months with a non parole period of five years six months, it did not demonstrate any such allowance, since one might reasonably have expected that it would either have been backdated, as is permissible: MacDonald NSWCCA 12 December 1995 and S47(2) Crimes (Sentencing Procedure) Act, or to have been reduced at the other end. 25 It is not clear why the two periods of pre sentence custody were not demonstrably reflected in the sentencing order. In my view, error did occur in this respect, having regard to the provisions of S 24 as well as S 47(2) and (3) of the Act, and to the principles and practice discussed in McHugh (1985) 1 NSWLR 588; Deeble NSWCCA 19 September 1991, and English (2000) NSWCCA 245. Although I otherwise consider the sentence appropriate, in the absence of any statement or reason for not backdating for the periods in question or for reducing the sentence from the other end, I am of the view that the Court should intervene to adjust them accordingly."
In the present case, the sentencing judge did not take into account the first period of pre-sentence custody by backdating the aggregate sentence. Her Honour simply said that "[i]n sentencing the offender for the sexual offences" she had taken into account the period of custody "from 10 June 2017 to 22 March 2018 being some 286 days of detention." The "sexual offences" are the offences in counts 2, 3, 4 and 5.
One difficulty is that the sentencing judge did not say that she had taken the first period of pre-sentence custody into account in relation to all of the offences in counts 1 and 6, notwithstanding that the offender had been in custody in relation to those offences during that period. If the sentencing judge's comment is taken at face value and the first period of pre-sentence custody was not taken into account in relation to the offences in counts 1 and 6, this would be contrary to the mandatory requirements of s 24(a) and 47(3) of the Sentencing Procedure Act and an error.
The situation is rendered more complex by the fact that the sentence imposed was an aggregate sentence for all six counts and the related offence on the s 166 certificate. Consequently, the same transparency regarding the degree of accumulation and concurrence that would be available when an offender is sentenced separately for a number of offences is not available: see, for example, the comments of N Adams J in Kliendienst v R [2020] NSWCCA 98 at [84].
In attempting to determine whether or not the first period of pre-sentence custody was taken into account in relation to the offences in counts 1 and 6, further difficulties arise out of the fact that there was no explicit explanation of how the first period was taken into account by the sentencing judge in relation to the sexual offences, counts 2, 3, 4 and 5. It might be posited that 286 days, or 9 months 13 days, were deducted from the indicative sentences for the sexual offences. However, the indicative sentences for those offences are 8 years and 6 months, 9 years and 6 months, 3 years and 3 months and 2 years. These figures do not suggest that they were the product of taking an appropriate sentence and deducting 9 months 13 days. An additional issue also remains, namely, there was no explanation of how the indicative sentences for the sexual offences and the non-sexual offences were intended to be reflected, by way of notional accumulation or concurrence, in the aggregate sentence. In these circumstances, there was no firm basis for accepting that the first period of pre-sentence custody had been taken into account in relation to the non-sexual offences as well as the sexual offences.
Alternatively, it might be posited that the sentencing judge determined the indicative sentences, and having regard to the principle of totality and the need for some degree of notional accumulation and concurrence, fixed upon an initial aggregate sentence from which she then deducted 9 months and 13 days. There are two problems with this. First, the aggregate sentence, being expressed as a round figure of 11 years, does not suggest that it was calculated in this particular way. Secondly, if this was the process of reasoning employed, it is difficult to reconcile with her Honour's statement that she had taken into account the first period of pre-sentence custody "[i]n sentencing the offender for the sexual offences" when this method of determining the aggregated sentence would involve taking the period of pre-sentence custody into account in fixing the aggregate sentence for all the offences.
The present case is an example of where the absence of reasons explaining how the first period of pre-sentence custody was taken into account in relation to all relevant offences deprives this Court of a proper basis for concluding that the first period of pre-sentence custody was so taken into account in accordance with the requirements of s 24 and 47 of the Sentencing Procedure Act.
Thus, I am not persuaded that it can be accepted that the sentencing judge took the first period of pre-sentence custody into account in relation to all of the relevant offences, as required. Consequently, this case can be distinguished from Salafia.
Further, since the first period of pre-sentence custody was not taken into account in relation to all the relevant offences by backdating or in any other discernible way, the sentencing judge fell into error. This case presents a situation relevantly similar to that in Howard and Argent referred to above.
For these reasons, ground 1 is made out. In these circumstances, leave to appeal should be granted, the appeal should be allowed and the Court should turn to consider resentencing. It is also unnecessary to consider ground 2 any further.

Resentencing

Having found that the first ground of appeal has been made out, the Court's task is then to exercise its independent sentencing discretion afresh, taking into account the purposes of sentencing and the factors that the Sentencing Procedure Act and any other Act or rule of law require or permit: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 (Kentwell) at [42].
If, after carrying out the process required by Kentwell, the Court is of opinion that some other sentence, generally less severe is warranted in law and should have been passed, it is required to quash the sentence imposed and sentence the applicant accordingly and, otherwise, the appeal is to be dismissed: s 6(3) of the Criminal Appeal Act.
This Court's sentencing discretion is to be exercised having regard to the material that was before the sentencing judge, the sentencing judge's unchallenged factual findings, and any relevant evidence of post-sentence conduct: DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 at [9].
The learned sentencing judge's factual findings and conclusions in her remarks on sentence were not challenged in this matter. They can be adequately summarised as set out in the paragraphs which follow.

The facts of the offending

The victim and the applicant met around March 2016, when the applicant was about 22 years old, and quickly developed an intimate relationship despite the age gap between them of approximately 15 years. They spent significant time together particularly when the victim did not have care of her son from a previous relationship. By the time the offences took place, the applicant and the victim were in an "on-again, off-again" intimate relationship, during which there had been significant breaks, one significant such break had occurred after the events relating to the offence on the Form 1.
On 28 May 2017, following a number of arguments between the applicant and the victim the previous day and that morning, the applicant telephoned the victim and persuaded her to go out to dinner with him, to which the victim agreed, and shortly after 8pm the pair went to a hotel in Bondi. Another argument developed during which the applicant accused the victim of being unfaithful. The argument escalated, with the applicant taking the victim's house keys and the victim asking hotel security staff to intervene.
A short time later, the victim attempted to leave the hotel. As she did, however, the applicant grabbed her arm and attempted to prevent her from leaving. The applicant said: "you fucking bitch, no one does this to me". After which, hotel security staff again moved to intervene, only for the applicant to desist and leave the hotel. The victim remained at the hotel for a short time before calling a taxi home. This was the offending relevant to count 1.
Count 2 related to what occurred shortly after the victim returned home. She heard the applicant at the back door screaming: "open this fucking door or I'll kick it in". The victim told the applicant to stop, after which he appeared to calm down and told the victim that he just wanted to get his clothes and leave. The victim unlocked the door and the applicant pushed the door open, slammed it shut and grabbed the victim by the shoulders. The applicant then said: "you shouldn't have fucking done that, it's all your fault, you deserve this". The applicant grabbed the victim by her left arm and dragged her toward the bedroom. The victim attempted to resist by grabbing hold of doorframes as she went and pleading with the applicant to stop. After entering the bedroom, the applicant pushed the victim onto the bed, intimated that her conduct at the hotel had embarrassed him, and got on top of the victim, pressing down his full bodyweight. The victim was then thrown to the floor and, thinking that the applicant might desist if he thought he had really hurt her, pretended to be unconscious. The applicant said: "you've done this to yourself, this is what you deserve". He then forced the victim back onto the bed, pulled her jacket up, unzipped her jeans, took off her boots and removed her jeans and underwear. The offender then spat on his finger and rubbed the victim's vagina for a short while, then performed cunnilingus on her.
Following this, the applicant inserted his penis inside the victim's vagina, and had penile vaginal intercourse with the victim for a short period of time while the victim pretended to be unconscious. After the applicant stopped, he lay next to the victim and said words to the effect of "look at you, you're dying", and "look what you made me do". The victim then sat up, only for the applicant to pin her down again. The victim then pleaded with the applicant saying that she needed to see her son. Eventually, the applicant relaxed his grip and lay on the bed next to the victim. When the victim stood up, wanting to leave, however, the applicant stood in the doorway and told her she was not going anywhere. These were the facts relevant to count 3.
Count 4 related to what occurred immediately after. The victim moved, still naked from the waist down, and sat down in a chair near the window. The applicant, who was still naked, jumped onto the victim's lap, straddled her and pulled her face towards his, forcing his tongue into her mouth. Eventually, the applicant's demeanour changed, and the victim got up and put her pants on. After the victim told the applicant that she was going to go, the offender replied that if she left, he would commit suicide in her bedroom. Ultimately, the incident concluded when the applicant allowed the victim to leave to go to the toilet.
Count 5 related to conduct after the victim returned to the bedroom. The applicant was lying in her bed underneath the sheets, so the victim went to her son's bedroom to sleep. At some point during the night, the applicant, still naked, came into the son's bedroom where the victim was sleeping and got into bed with her. He left the room but returned, and commenced to spoon the victim, placing his hand slightly inside the waistband of her pants. Shortly afterwards, the applicant stood up, ripped the covers off the victim, threw them aside and slammed the bedroom door as he left.
Count 6 involved events on the following morning while the victim was in the bathroom with the door closed. The applicant burst in, grabbed the victim's head with his hand and pushed it towards the mirror. The applicant continued to express his view that the victim should never have involved the security guards at the hotel and that it was her fault. The applicant used his foot to smash a bowl that was on the floor, which was followed by a further struggle and the victim calling 000. The applicant left before police arrived.
The offence on the Form 1 concerned events between 25 and 27 March 2017, when the applicant and the victim drove to Crescent Head to see the applicant's father, who had terminal cancer. During the journey, the couple, who at that point in time were still dating, argued about a sexual relationship the applicant believed the victim was having with her ex-husband. At various points in the journey, the applicant became verbally aggressive. One evening, during their time at Crescent Head, the applicant dragged the victim into the bedroom and demanded a hug from her and, when she declined, he grabbed her and threw her on the bed causing her to knock her head against the bedside table. As the victim tried to get up, the applicant grabbed her by the neck and forced her back onto the bed holding her arms down on either side, shouting: "don't be so fucking selfish, you have come all the way here, have a fucking good time". The victim struggled and told him to get off. He said: "shut the fuck up you bitch, what the fuck do you think you are doing to me? You're doing this … This is what you want." After the victim shouted "no", and told the applicant to let her go, the applicant held her down until she could not move any longer and then said: "you are going nowhere without me, so shut up and lie down". The victim eventually gave in and agreed to cuddle the applicant to sleep. On subsequent days, the victim took photographs of injuries she had sustained on various parts of her body. The victim did not report the incident to police, as she did not want him to get into trouble. When they returned to Sydney, the victim dropped him off at his grandmother's house and next day packed his belongings and dropped them at his grandmother's house. The relationship resumed sometime later.
The sentencing judge also dealt with the related offence on the s 166 certificate. That offence involved contravening a prohibition on an apprehended domestic violence order. On 29 May 2017, a provisional apprehended domestic violence order was taken out by police. The applicant was named as the defendant and the victim was named as the person in need of protection. On 5 June 2017, the order was served on the applicant. On 7 and 8 June 2017, the applicant attempted to contact and contacted the victim on 12 occasions, in breach of the apprehended domestic violence order. When the applicant spoke to the victim on the telephone, he said things like "stop it" and "you are my woman". On other occasions, he sent text messages and photographs. One of the text messages was a long expression of his positive feelings for the victim.
On 9 June 2017, the applicant was arrested.

Victim impact statement

The sentencing judge received a victim impact statement from the victim, the contents of which were set out in her Honour's remarks. I have read the statement. It is not necessary to repeat it here. It is sufficient to note here that the statement provided a powerful reminder of the devastating effects that the offending in question had upon the victim. She eloquently described the overwhelming fear that she felt and that she could not maintain her position on a promising new job because of the effects of trauma. She also described the humiliation that she felt. The statement indicated that the applicant's behaviour would have long-term consequences.

The applicant's subjective case

The facts relevant to the applicant's subjective case as found by the learned sentencing judge were also not challenged on this appeal. They are summarised in the paragraphs which follow.
The report of Dr Nielssen, forensic psychiatrist, set out some of the applicant's antecedents and history.
The applicant was born in 1994, and aged 23 at the time of the offending.
As indicated in the letter from his grandmother, the applicant is of Aboriginal heritage.
He is one of five siblings, with his parents having separated when he was aged four, whereupon he was placed into full-time care with his mother, who had both drug and alcohol dependence issues. The applicant was subject to difficult conditions whilst growing up. The applicant's sister found her mother "passed out in the gutter" with the applicant sitting next to her crying, which was not an isolated incident. The applicant told Dr Nielssen that he felt rejected by his mother. His sister recounted that their mother was "paralytic almost every night" between 2000 and 2001. Eventually the applicant and his siblings were removed from his mother's custody by the Department of Community Services.
By the time he had turned seven, the applicant had been placed into the full-time care of his father. He suffers from dyslexia and struggled throughout his schooling. The offender left school in year 10 having been bullied throughout his schooling, often as a result of his mother's notoriety in the local community.
In 2003, the applicant's 16-year-old brother died tragically as a result of falling from a cliff while fishing at Crescent Head. The applicant was aged 11 and reported to Dr Nielssen that the death affected him greatly. His sister told the psychiatrist that the applicant blamed himself for his brother's death.
The applicant excelled at surfing and his father took him out of school to focus on that activity. As a result, the applicant has very limited ability to read or write. The sentencing judge noted that the applicant failed at surfing at the age of 18 and that his sister said that he was left without a proper education and no viable options for a proper career. He told Dr Nielssen that his mother would show up at surfing competitions "completely wasted" and he would be horrified and embarrassed as "she was the town drunk in a small town which was tough".
The applicant's sister describes her brother as being a sweet person with a good heart, a young man trying to find his way out of a mess he did not make himself. She attributed the majority of his problems to his childhood being exposed to drug and alcohol addiction and the lack of the proper love and care of a mother. She indicated she would continue to support him.
The applicant told the psychiatrist that he always suffered from depression but would treat his condition by going surfing. When on bail, he was seeing a psychologist, Mr Anderson, and was taking the anti-depressant Lexapro but this had not continued in custody. He also reported to Dr Nielssen that he had twice attempted to commit suicide. The sentencing judge noted that the applicant does not drink alcohol but reported to the psychiatrist that he used cannabis as a form of self-medication and had on occasion used methylamphetamine. The applicant said that intoxication was not a factor in the offences.
The sentencing judge noted that Mr Anderson opined "there are some very unsatisfactory aspects of [the applicant's] childhood, in particular the absence of a mother figure" and that "this seems to have coloured his whole view of women and, at least in part, is probably responsible for the offending behaviour." Her Honour, however, expressed doubts as to whether the psychologist was qualified to diagnose the applicant with a number of psychiatric conditions.
Dr Nielssen diagnosed the applicant with depression, substance use disorder in remission, and possible epilepsy. The psychiatrist noted that the applicant's intelligence was in the normal range for his reported occupational attainment and his underlying mood seemed depressed on examination.
Dr Nielssen could not confirm a possible neuropsychiatric disorder resulting in episodes of behavioural disturbance.
The sentencing assessment report recorded that the applicant had said that he struggled to find work while on bail but was casually employed by his father doing carpentry. It also noted that the applicant had been in a supportive relationship with a new partner for two years, and intended to reside with his parents in Crescent Head upon his release.
The applicant's criminal history involved fines and the imposition of s 9 bonds for offending which included: three offences of possessing a prohibited drug; dishonestly obtaining property by deception; taking and driving a conveyance; and, failing to comply with directions of an officer and resisting an officer in the execution of his duty, between the years of 2013 to 2015. The sentencing assessment report noted, however, that the offending for which he was being sentenced was a clear escalation in the applicant's behaviour.
The sentencing judge found that the applicant had an issue with cannabis use at the relevant time.
As to objective seriousness, the sentencing judge found that the offending constituting count 1, namely the common assault, was below the mid-range but not towards the lower end of the range. In relation to counts 2 and 3, the two aggravated sexual assaults involving circumstances of aggravation by virtue of the deprivation of the victim's liberty, her Honour found that these were just below the mid-range. In relation to count 4, the first assault with act of indecency, the sentencing judge determined the applicant's conduct to be below the mid-range. In relation to count 5, the second assault with act of indecency, the seriousness of the offending was assessed as being below the mid-range but not at the low end of the range. In relation to count 6, the stalk and intimidate offence, the learned sentencing judge assessed the offending as at the mid-range.
The Form 1 offence of assault occasioning actual bodily harm, taken into account with count 3, was found to be a serious example of this type of offending.
The related offence on the s 166 certificate of contravening an apprehended domestic violence order was found to fall towards the lower end of the spectrum of offending.
These assessments were not challenged in this appeal. Although, for the purposes of considering resentencing, I am not bound by these assessments, in my view, the assessments were correct and I adopt them.
It was noted that the offences in counts 2 to 6 occurred in the home of the victim, which was an aggravating factor, especially when the offending was domestic violence in nature.
The sentencing judge noted that the applicant had limited prior convictions and none for violent or sexual offending and took this matter into account as a mitigating factor.
The sentencing judge found that the applicant was immature and that this was his first time in custody. She could not, however, find that the applicant was unlikely to re-offend and concluded that there was a risk of re-offending, given the circumstances. Her Honour did in effect find that, when the applicant received the necessary treatment, both in custody and in the community upon his release, his motivation to rehabilitate would be maintained and he would once again become a productive member of the community.
Her Honour also found that there was no evidence of remorse from the applicant.
The sentencing judge was not satisfied that the delay to his trial and sentencing hearing caused such significant stress to the applicant that it amounted to a mitigating factor. Nonetheless, it was found that the stress suffered was sufficient to justify it being taken into account in a general sense.
Once again, it appears to me that the learned sentencing judge's consideration of the aggravating and mitigating factors and her findings in those regards were correct and I adopt them.
The sentencing judge found that the principles in Bugmy v the Queen (2013) 249 CLR 571; [2013] HCA 37 applied in the present case as a result of the applicant being significantly deprived of parental guidance and support during his childhood and adolescent years. I agree that the applicant's upbringing in a family and community surrounded by alcohol abuse and the profound deprivation in both physical and emotional terms which this involved attract the operation of those principles. I also accept, as her Honour found, that these factors are particularly relevant where the applicant still appears to lack an appropriate level of maturity, especially in relation to his interactions with women, and where a background of this kind may leave a mark on a person throughout the life and compromise their capacity to mature, form functional relationships and make rational decisions. This is a case where the comment of French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ at [44] has particular relevance. The comment was: "… Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender." (footnote omitted)
While the applicant's moral culpability should be considered to be reduced in the present case, I am concerned that his inability to control himself may increase the importance of protecting the community, especially women. I take into account in this regard, however, that the sentencing assessment report indicated that the applicant had been in a supportive relationship with a new partner for two years, which suggested some increasing maturity and self-control, which should be taken into account in the applicant's favour.
I have taken into account the current effects of the COVID-19 pandemic and find that conditions of imprisonment are likely to be more onerous for the applicant given the present restrictions.
The sentencing judge found that there was no evidence that the offender could not obtain treatment for his physical health issues while in custody.
The sentencing judge found that the applicant's mental condition was not of such magnitude to reduce his moral culpability. Nonetheless, it was found to be something to be taken into account when sentencing the applicant overall. In addition, it was said to give rise to a strong need for the applicant's rehabilitation.
The sentencing judge then turned to the potential hardship to be experienced by the applicant in custody given his mental condition. Her Honour found that the applicant's experience in a custodial environment would not be much different to that of the typical prisoner to such an extent that the applicant's sentence should be reduced.
Her Honour concluded, in relation to the application of the totality principle, that a degree of notional accumulation was required in formulating the aggregate sentence in order to comprehend the total criminality of the entire episode. I propose to adopt the same course for substantially the same reasons.
In addition her Honour found special circumstances justifying a departure from the statutory ratio between the head sentence and the non-parole period on the basis that it was the applicant's first time in custody, his subjective case was strong, there was a need for significant guidance and supervision on his release and a longer period of supervision would assist his rehabilitation. This finding was reflected in a non-parole period of approximately 60% of the aggregate sentence. Once again, I accept that her Honour's finding of special circumstances was appropriate and should be adopted.

Further evidence on resentencing

The applicant's evidence, if the Court came to resentence, was contained in the affidavit of his solicitor, Youssef Maksisi, sworn 15 June 2021.
Most relevantly since he was sentenced, the applicant has continued to have significant dental and sinus issues as described in the radiological report dated 19 October 2020. In addition, in late 2020 he has undergone surgery to his lower lip and right ear. In his affidavit Mr Maksisi described the condition as melanoma or cancer. The medical records annexed to the affidavit described the conditions as Bowen's disease, AK (Actinic keratosis), keratoacanthoma or squamous cell carcinoma and, more generally, skin cancers. In addition, a biopsy has been taken from tissue in the applicant's chest/nipple area but the results of that biopsy were not available at the time of the hearing before this Court.
In addition, there was a report dated 10 June 2021 from Mr Milic, psychologist, which included evidence that the applicant would like, but has not received, further psychological treatment in custody. The applicant told the psychologist that he was employed making bed bases and was in contact with his family and girlfriend regularly. Mr Milic's history of the applicant's background and circumstances was consistent with the material referred to above. It was noted that his depressive illness had been replaced with generalised anxiety disorder and traumatic stress symptoms, being chronically worried about recurrences of skin cancer, jaw pain and abscesses in his mouth. It was concluded that it was unlikely that the applicant could overcome his mental health problems without psychological treatment which he was not receiving in custody.
The Crown relied, on resentence, on the affidavit of Emma Phillips which established that the applicant had on two occasions in 2021 failed to comply with a COVID-19 direction to maintain physical distancing from visitors. In my view, these do not weigh heavily against the applicant.
In light of the applicant's significant physical and mental health issues, his employment while in custody and the positive relationship with his family and girlfriend, I am prepared to conclude that his circumstances are somewhat more favourable now than when the applicant was first sentenced.

Pre-sentence custody

I propose to take into account the two periods of pre-sentence custody by backdating the commencement of the aggregate sentence to 17 January 2019, which is 287 days before 31 October 2019 (including both 17 January and 30 October 2019).

Sentence

Having undertaken the task required by Kentwell and bearing in mind the purposes of sentencing in s 3A and the other requirements of the Sentencing Procedure Act and the relevant principles concerning sentencing, I am of the view that an aggregate sentence should be imposed of imprisonment for 9 years and 6 months, commencing on 17 January 2019, with a non-parole period of 5 years and 8 months expiring on 16 September 2024. This non-parole period is approximately 60% of the aggregate sentence and gives effect to the finding of special circumstances referred to above.
For the purposes of s 53A(2)(b) of the Sentencing Procedure Act, the sentences that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence are as follows: 1. Count 1 - 3 months; 2. Count 2 - 6 years 9 months with a non-parole period of 4 years 3 months; 3. Count 3 (taking into account the offence on the Form 1) - 8 years with a non-parole period of 4 years 9 months; 4. Count 4 - 2 years 6 months; 5. Count 5 - 2 years; 6. Count 6 - 18 months; 7. The related offence on the s 166 certificate - 3 months.
I would recommend, similarly to the learned sentencing judge, that the applicant be referred to, assessed by and receive treatment from a psychologist and/or a psychiatrist, while in custody, in relation to his sexual offending, depressive illness, anxiety disorder and traumatic stress symptoms and that he be referred to, assessed by and, if required, receive treatment from a neurologist concerning his possible epilepsy. A copy of the reports of Dr Neilssen, psychiatrist, and Mr Anderson and Mr Milic, pscychologists, are to accompany the applicant and be provided to Corrective Services.

Orders

For these reasons, I propose that the orders of the Court should be: 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The sentence imposed by the District Court on 13 July 2020 is quashed. 4. In lieu, the applicant is sentenced to an aggregate sentence of 9 years and 6 months, commencing on 17 January 2019 and expiring on 16 July 2028, with a non-parole period of 5 years and 8 months expiring on 16 September 2024. 5. The applicant will first be eligible to be released on parole from 16 September 2024. 6. Pursuant to s 12(2) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), it is directed that the offences be recorded on the applicant's criminal record as domestic violence offences.

Amendments 18 August 2021 - Under 'Parties' the applicant's name corrected - changing from Stephen Dylan Hunt to Dylan Stephen Hunt. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 August 2021

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