Hurst v R

Hurst v R - [2017] NSWCCA 114 - NSWCCA 2017 case summary — Zoe

Judgment

HOEBEN CJ at CL: Offences and sentence
The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal the sentence imposed upon him by Judge Sides QC (the sentencing judge) in the Parramatta District Court on 6 July 2015.
The applicant pleaded guilty on 5 November 2014 to nine offences on the indictment with a further 18 offences to be taken into account on Form 1 schedules. The offences all relate to physical violence and sexual violence against the applicant's then girlfriend, NB, (hereafter referred to as "the complainant"). The offences on Counts 1 - 7 occurred between 14 and 15 August 2006, Count 8 occurred on 20 February 2010 and Count 9 occurred sometime between 1 August 2012 and 30 November 2012.
The applicant was arrested on 24 March 2013, he was committed for trial on 15 November 2013. The trial was listed to commence on 3 November 2014 and the pleas of guilty were entered on 5 November 2014. The pleas of guilty were entered to the nine counts on the indictment. The three Form 1 schedules were referable to Counts 3, 8 and 9.
The applicant was charged with the following offences: Count 1 - Assault contrary to s 61 Crimes Act 1900 (NSW) for which the maximum penalty is imprisonment for 2 years. Count 2 - Assault contrary to s 61 Crimes Act for which the maximum penalty is imprisonment for 2 years. Count 3 - Aggravated detain for advantage, the form of aggravation being the occasioning of actual bodily harm, contrary to s 86(2)(b) Crimes Act for which the maximum penalty is imprisonment for 20 years. Attached to Count 3 were Form 1 offences comprising eight offences of assault, contrary to s 61 Crimes Act and one offence of intentionally destroy property contrary to s 195(1)(a) Crimes Act. Count 4 - Incite another to commit an act of indecency, contrary to s 61N(2) of the Crimes Act for which the maximum penalty is imprisonment for 18 months. Count 5 - Maliciously inflict grievous bodily harm with intent to do grievous bodily harm, contrary to s 33 of the Crimes Act, for which the maximum penalty is imprisonment for 25 years with a standard non-parole period of 7 years. Count 6 - Use offensive weapon with intent to commit the indictable offence of assault occasioning actual bodily harm, contrary to s 33B(1)(a) of the Crimes Act for which the maximum penalty is imprisonment for 12 years. Count 7 - Aggravated sexual intercourse without consent, the form of aggravation being the occasioning of actual bodily harm, contrary to s 61J(1) Crimes Act, for which the maximum penalty is imprisonment for 20 years with a standard non-parole period of 10 years. Count 8 - Assault occasioning actual bodily harm, contrary to s 59(1) Crimes Act, for which the maximum penalty is imprisonment for 5 years. Attached to Count 8 were Form 1 offences comprising three offences of assault, contrary to s 61 of the Crimes Act; two offences of intimidate with intention to cause fear, contrary to s 13(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW) and one offence of larceny, contrary to s 117 Crimes Act. Count 9 - Use offensive weapon with intent to commit the indictable offence of assault occasioning actual bodily harm, contrary to s 33B(1)(a) of the Crimes Act, for which the maximum penalty is imprisonment for 12 years. Attached to Count 9 were Form 1 offences comprising one offence of assault, contrary to s 61 of the Crimes Act and two offences of intentionally destroy property contrary to s 195(1)(a) of the Crimes Act.
The sentencing judge imposed individual sentences for each count on the indictment. Because the applicant pleaded guilty on the day of his trial, his sentences were reduced by 10% to reflect the utility of his guilty pleas. The following sentences are set out in the order in which the sentencing judge imposed them. Count 8 - Imprisonment for 4 years and 6 months with a non-parole period of 3 years, commencing 15 July 2012. Count 9 - Imprisonment for 3 years and 4 months with a non-parole period of 2 years, commencing 15 April 2013. Count 1 - Imprisonment for 18 months with a non-parole period of 12 months, commencing 15 July 2013. Count 2 - Imprisonment for 18 months with a non-parole period of 12 months, commencing 15 October 2013. Count 7 - Imprisonment for 12 years with a non-parole period of 8 years, commencing 15 January 2014. Count 4 - Imprisonment for a fixed term of 13 months, commencing 15 January 2017. Count 5 - Imprisonment for 9 years with a non-parole period of 5 years, commencing 15 January 2017. Count 6 - Imprisonment for 4 years and 6 months with a non-parole period of 3 years, commencing 15 January 2017. Count 3 - Imprisonment for 13 years and 6 months with a non-parole period of 7 years and 6 months, commencing 15 January 2017.
The total effective sentence imposed was imprisonment for 18 years, which was backdated to commence 15 July 2012. The effective non-parole period was 12 years. The earliest date on which the applicant will be eligible for parole is 14 July 2024.
The applicant relies upon the following grounds of appeal: Ground 1 - His Honour erred by failing to make an assessment of the objective seriousness of the offence of aggravated detention for advantage. Ground 2 - The sentence and non-parole period imposed for the offence of aggravated detain for advantage was manifestly excessive. Ground 3 - His Honour did not take into account the delay in prosecution and the prejudice occasioned to the applicant thereby on sentence. Ground 4 - The sentences imposed and the aggregate sentence imposed were manifestly excessive. Ground 5 - His Honour erred in sentencing the applicant on the basis that the maximum penalty for the offence contrary to s 61J Crimes Act was 25 years imprisonment. Factual background
The complainant and the applicant commenced an intimate domestic relationship in April 2005. Between that date and August 2006 the complainant and the applicant were staying at a caravan park at Greenwell Point in New South Wales. After an argument, the complainant fled in a vehicle to a friend's residence located nearby. Shortly afterwards, the applicant arrived and let the air out of all four tyres on the complainant's motor vehicle. He then summonsed her into the front yard. When she came out, the applicant struck her face with the back of his hand, causing her to fall to the ground. As a result of this assault, the complainant sustained bruising to her face. The incident was not reported to police at the time and is the basis for the first assault matter on the Form 1 schedule attached to Count 3.
On 26 April 2006 the applicant and the complainant attended a concert at the Sydney Superdome. After exiting the venue, they commenced to argue and the applicant struck her, causing her to fall to the ground. While the complainant lay in pain on the ground, the applicant entered a taxi and left the scene. This is the basis for the second assault matter on the Form 1 schedule attached to Count 3.
The following is the background to what occurred at McGraths Hill on 14/15 August 2006 and which forms the basis for Counts 1 - 7 and for the matters on the Form 1 schedule attached to Count 3.
Between 8pm and 9pm on 14 or 15 August 2006 the complainant accompanied the applicant, his cousin, his cousin's girlfriend to a residence at Windsor Road, McGraths Hill. They travelled in a car belonging to the cousin's girlfriend. The cousin and his girlfriend occupied the residence at the time. It was a two storey home with the upper and lower levels being utilised as separate dwellings. After entering the residence, the applicant locked the front door behind him.
Shortly after their arrival, the applicant commenced mocking the complainant, who got up and went to the bathroom. Upon her return to the dining room area, the applicant ordered her to lean over a dining room chair after which he used a belt to strike her buttocks numerous times. Although this caused the complainant pain, it did not cause her any injury. This is the basis for the third assault matter on the Form 1 schedule attached to Count 3.
The applicant then produced a rectangular object not dissimilar to a cigar cutter, which contained a blade. The applicant spun the object around his finger and told the complainant to put her finger in the hole so that he could cut it off. The complainant did not comply with this request. Sometime after that the applicant said to the complainant "you think you're just here for drinks and sex". He approached her and picked her up by the shoulder/neck area of her black jacket. He said "you thought wrong". At this time, the cousin's girlfriend started to walk from the lounge room into the kitchen and the applicant directed her to "stay in there". The complainant fell to the ground momentarily before being picked up by the applicant, who again took hold of her jacket and pushed and pulled her about the kitchen area, causing a tear in her jacket. This is the basis for the fourth assault matter on the Form 1 schedule attached to Count 3.
Becoming fearful of the applicant's actions, the complainant began backing away from him. When she moved towards the kitchen, the applicant took hold of her and turned on the front element of the stove in the kitchen. Once the element heated up and began to glow a bright red, he took hold of the complainant's head and forced it downwards, holding it just inches above the hot element. He threatened to burn her face on the element and said "why did you do it?" The complainant had no idea what the applicant was referring to and was frozen with fear. She was terrified and confused and unable to move her head away from the heat that she could feel on the left side of her face. When she pleaded with him saying "don't, don't", he held her tightly by the head to prevent her moving away from the heat. This is the basis for the assault in Count 1.
The applicant then forced the complainant to the floor, where he placed his foot on her throat. At the time he was wearing a pair of steel-capped boots. The complainant felt a heavy pressure to her throat where the applicant applied pressure. The applicant removed his foot from her throat and commenced kicking her with the steel-capped boots. The kicks came in contact with her arms, back, legs, stomach, chest and bottom causing her significant pain. This is the basis for the assault in Count 2.
The applicant picked up a pool ball and threw it at the complainant's head as she was lying on the floor. The ball hit her on the right side of her head above her temple region and caused significant pain to that area of the head. This is the basis for the fifth assault matter on the Form 1 schedule attached to Count 3.
The applicant told the cousin's girlfriend to stand at the front door and guard it. At his request, the complainant retrieved her mobile phone from her handbag and gave it to him. She did so because she feared for her safety. The applicant used an ornamental style knife to smash the phone. This is the basis for the offence of damage property which is the sixth matter on the Form 1 schedule attached to Count 3.
The applicant then said to the complainant "What did you f*** up for, why did you disrespect me? You were the driver, what you've copped is for Jade and you. You know better than that."
The applicant commenced walking up the hall towards the bathroom. The complainant attempted to escape from the house by exiting the front door, but was unable to do so because the key had been removed from the door. The cousin's girlfriend, who was still standing at the front door, said sorry to the complainant.
The applicant re-entered the lounge room and saw the complainant attempting to escape. He took hold of her and pulled her away from the door by her hair. He forced her along the hallway and into the bathroom. The complainant began to fear for her life as a result of the actions of the applicant. This is the basis for the seventh assault matter on the Form 1 schedule attached to Count 3.
Upon entering the bathroom the complainant sat on a brown coloured low wooden bench seat. The applicant stood in front of her and asked "Why'd you do it?" The complainant responded "Tell me what you're talking about. What do you mean?" At this point, the applicant used his fist to strike the complainant to the top of her head. When she put her head down the applicant asked her the same question again. The complainant was unable to answer the question and, as a result, the applicant struck her to the top of the head with his fist again.
He continued to ask the same question and, each time the complainant did not give an answer that satisfied him, he struck her to the head with his fist. These strikes were inflicted with a degree of force and caused the complainant great pain. She began to see stars. She pleaded with the applicant saying "It's me, Colin, look, it's me, [NB], stop this. Why, Colin, why? It's me, [NB], stop this, Colin." The applicant said "Why did you do it? F****'n tell me." The complainant questioned him saying "What are you talking about?" This series of assaults, which comprised the blows to the head continued for 20 - 25 minutes before the applicant left the bathroom, telling the complainant "don't move." These assaults were the basis for the eighth assault matter on the Form 1 schedule attached to count 3.
The complainant was in a panicked state and too scared to move. She remained seated. A short time later, the applicant returned to the bathroom. He produced a mobile phone and commanded the complainant to make a phone call and convince a certain person to attend the premises for a meeting. The person refused to attend the meeting and as a result, the applicant used his hand to strike the complainant again giving rise to the ninth assault matter on the Form 1 schedule attached to Count 3.
Following this the applicant removed the door handle from the inside of the bathroom door and left the bathroom with it. The complainant tried to find a way to escape the bathroom, however, she could not get out due to the handle being removed from the door. There was only a small frosted glass window in the bathroom and the complainant knew that she could not get out of it due to its size and she was on the second level of the building. The complainant felt scared and lost hope at this point. She was extremely fearful and was sure she was not going to make it out of the house alive.
The applicant returned to the bathroom and asked "Why'd you do it?" The complainant replied "I'm sorry, I'm sorry. I don't know what you're going on about." The applicant then delivered a large number of punches to the complainant's head and face. He said "I'm gunna keep going till you tell me. Tell me the truth." The complainant was experiencing immense and agonising pain to her head and facial area as a result of this attack. The applicant ceased hitting her and left the bathroom, attaching the handle in order to open the door but taking it off again and leaving with it.
The complainant got herself into a corner and pulled her knees into her chest. She could see herself in the mirror and she had blood pouring out of her mouth and nose. She was beside herself with fear and absolutely petrified. For the complainant it seemed that she had been confined in the bathroom for hours.
Sometime later, the applicant returned to the bathroom followed by his cousin who said "Oh, what the f*** are you doin' Col?" The applicant said to the complainant "Give my cousin a kiss on his dick." The complainant was so fearful that she felt she had no choice but to comply with the demands of the applicant. She approached the cousin, got down on her knees and kissed the end of his exposed penis. She felt humiliated and degraded. This is the basis for Count 4.
The applicant said "now that's a good girl." The cousin left the bathroom and the complainant returned to the bench seat. The applicant rummaged through the drawers and retrieved a hair straightener. He plugged it in and left it to heat up in front of the complainant whilst he again exited the bathroom. The complainant remained in a panic state and again tried to think of a way out of the confines of the bathroom. She could find no way to escape.
The applicant quickly returned to the bathroom. He took a hold of the hair straightener, which was shaped like a pair of tongs, and squeezed it on the toes of the complainant's right foot. It was hot and it burnt the skin on her toes, causing her excruciating pain. The complainant was screaming and crying saying "Stop, no more, stop." The applicant replied "You wanna to be disrespectful; I'll show you what disrespect is."
When the complainant puts her hands out to push the applicant away, he used the hair straightener to burn the skin on the fingers of her right hand. This caused the complainant so much pain that she was screaming and crying. The applicant demanded that she hold out her right arm. Through sheer fear the complainant held out her arm and the applicant placed the straightener onto the skin of that arm just below the elbow. He clamped it shut causing severe burns to the skin in this area of her arm. He then placed it onto her left arm just above the wrist causing the skin in that area to be severely burnt. The complainant was experiencing indescribable pain and was screaming out. She was hysterical and had never been so scared in her life. Her thoughts turned to her family and she began to think that she would never see them again.
The applicant placed the straightener on the bench and commenced ripping the burnt skin off the complainant's arm. As he did so he placed the skin in his mouth and ate it. He indicated to the complainant that he was enjoying eating it saying "Mmmmmm". The complainant could no longer feel the affected areas of her arms and was horrified at the applicant's actions. The infliction of the burns is Count 5.
The applicant left the bathroom and, sometime later, the complainant walked from the bathroom disorientated and in shock. She was experiencing agonising pain. Eventually the applicant returned her to the bathroom and turned on the taps over the bath. He directed her to place her arms under the running water, which she did. This caused her excruciating pain and she withdrew her arms. The applicant ordered her to return her arms to the water. She complied, leaving them there for about 10 minutes before making her way to the main bedroom of the premises where she sat on the bed.
After a short period of time, the applicant entered the bedroom and closed the door behind him. The complainant's clothing was removed and she lay in the centre of the bed on her back. The applicant got onto the bed and straddled her by sitting on her upper legs. He produced a knife with a 15cms blade and ran the tip of it along the complainant's nipples. He said "I should just cut your nipples out." The complainant was fearful and believed that the applicant was going to do it. The applicant held the knife vertically with the tip facing down about 60cms above the complainant's clitoral area. Fearing he would drop the knife and cause injury to her genitals the complainant said "Please Col, don't do it, don't do it". The applicant let the knife drop, catching it shortly before it impacted with the complainant's genital area. He repeated this once more. This is the basis for Count 8.
The applicant got off the complainant and ordered her to roll onto her stomach. She complied and he sat on her lower buttocks area with one leg on either side of her body. He placed his weight onto her so that she was unable to move. He pressed the knife into her skin on her back and caused a number of lacerations to her skin. He used the knife to draw a game of noughts and crosses on her back. This is depicted in photograph 5 of exhibit A. This and other photographs were taken six days after the offence. The drawing of noughts and crosses caused the complainant pain and she felt vulnerable and helpless. She was frantic, crying and thought that the applicant would cut her open or kill her with the knife.
After repositioning himself behind her, the applicant penetrated her anus with his erect penis. This caused the complainant a great deal of pain in her anus and she screamed out. The applicant continued to thrust his erect penis in and out of her anus and pulled her hips up off the bed so that her buttocks were up in the air. Due to the injuries to her arms, the complainant was unable to support her body weight. The applicant told her to "stay f***ing still", but her arms were causing her such great pain that she continued to fall forward.
The applicant took hold of her waist area and held her so tightly that his fingers drew blood from her skin. The bruising to the complainant's left side is depicted in photograph numbered 6 of sentence Exhibit A. Each time the complainant fell forward, the applicant would strike her to the rear of her head with great force, primarily behind the left ear. The bruising behind the complainant's left ear is shown in photograph 3 of sentence Exhibit A. Each time the applicant thrust his penis into her anus it caused the complainant unbearable pain and discomfort. These actions of the applicant continued for an unknown period. They provide the basis for Count 7.
The complainant remained at the house for the following two days, but had no recollection of this time. She received no medical attention during those two days. At no time did the complainant ever give the applicant permission to assault her physically, sexually or by any other means.
The cousin and his girlfriend drove the complainant to the Jolly Frog Hotel at Windsor at 6pm on Thursday 17 August 2006. Her brother collected her shortly afterwards and immediately took her to Mount Druitt Hospital where she received treatment for the multitude of injuries which she had sustained. She later attended the burns unit at Concord Hospital for treatment to her toes, head and arms. She continued to receive treatment at the Burns Unit for several months.
As a result of the attacks on her by the applicant on this occasion, the complainant suffered serious injuries, including but not limited to: two black eyes; a bruise behind the left eye; bruising along both sides of her torso; multiple bruises to her left arm; burns to her toes on her right foot; burns to the right hand; burns to her left and right forearms; bruising to the entire face and the top of the back of her head; several cuts to her back; and pain to her anus. Some of the injuries, particularly some of the burns, are depicted in the photographs which make up sentence Exhibit A. The complainant's entire body was in agony.
The applicant struck the complainant so many times to the head that it was too painful for her to even put her hair up. She could not walk properly and could not sleep due to her level of pain and discomfort. She was unable to drink out of a cup and had to use a straw. Her mother had to bathe her as she was not allowed to get her arms wet and was unable to drive a motor vehicle. The complainant now has permanent scarring to both arms, her toes and fingers as a result of the burns.
As a result of the offences committed against her, the complainant now suffers from post-traumatic stress disorder. There was no issue in the sentence proceedings that the offences in Counts 1 - 7 were a substantial contributor to that condition.
On Saturday 20 February 2010, the applicant and complainant attended an AC/DC concert at Homebush. They spent some time at the Novotel Bar after the concert. They then travelled to an address in McLean Street, Blacktown. After retiring to bed together, the complainant attempted to get out of bed at which time the applicant said "Where do you think you're going?" When the complainant said "to the other bed", the applicant took hold of her and forced her back into the bed. He then commenced to hit the complainant repeatedly with his fists around her head causing her face to bleed. The complainant was in pain and pleaded with the applicant saying "I'm sorry." The applicant forced three or four of his fingers down her throat, causing her further pain and making her gag. The complainant was crying and began to scream when the applicant removed his fingers from her throat. The applicant delivered another forceful punch to the left side of the complainant's face, inflicting a cut to the inside of her mouth and producing immediate swelling to her left cheek. This is the basis for the assault occasioning actual bodily harm in Count 8.
After a period of one or two minutes, the occupier of the premises, Daniel, entered the bedroom and said "Col, what are you doing mate." The complainant remained pinned to the bed unable to move. Daniel assisted her from the room, gave her her clothing and told her to get out. She ran naked into the street. After putting on her clothes, she went to the Blacktown Police Station where she presented covered in blood and with swelling and bruising to the face. The complainant did not tell the police who caused her injuries, as she was fearful that the applicant would retaliate. She later received medical treatment for the injury to her cheek and suffered ongoing pain to her cheek, face and neck as a result of the assault.
The sentencing judge found that it was likely that this offence also contributed to her post-traumatic stress disorder.
Towards the end of 2011, the complainant was at the home of a friend in Moren Street, Blacktown. At the time she was on bad terms with the applicant. The applicant did, however, phone her and when she told him where she was he replied "Alright, I'll be there in two minutes."
The applicant arrived at the location shortly after the phone call and approached the complainant who was seated on a bar stool in the rear yard. As soon as he was within reach, he punched her in the face as hard as he could. The impact sent her flying backwards off the stool and onto the concrete. This is the basis for the first assault matter on the Form 1 schedule attached to Count 8.
As soon as he hit her, the applicant took a seat and pretended that nothing happened. The punch caused the complainant a lot of pain to her face and she felt embarrassed that the applicant had assaulted her in front of their mutual friends. The complainant telephoned a friend, and told her what had happened.
On 24 April 2012 the Windsor Local Court granted an apprehended violence order naming the applicant as the defendant and the complainant as the person in need of protection. The order expired on 4 July 2014. It contained conditions that prevented the applicant from assaulting, molesting, harassing, threatening or otherwise interfering or intimidating the complainant or stalking her.
During the second half of 2012, the complainant was driving the applicant to his home in Sackville between 11pm and 2am when he said "I should just take you up to Wheelbarrow Ridge now". The complainant was familiar with Wheelbarrow Ridge which is a secluded dirt road in the Wollomai National Park. The applicant told her to drive past his home and go up to Wheelbarrow Ridge. The complainant was panicking and fearful, as she was scared of what the applicant might do to her in such a secluded location. She replied "no I'm tired, let's just go home".
The applicant ordered her to drive into a paddock across from his house in West Portland Road. The complainant did so feeling relieved because she did not have to drive to Wheelbarrow Ridge. After she stopped in the paddock, they commenced to engage in consensual sex. However, when the complainant did not wish to continue having sex they began to argue. The complainant got out of the vehicle and walked away from it through the paddock towards the gate that led to the roadway.
As she walked away, the applicant moved into the driver's seat and started the car. He revved the engine and drove up behind her. The complainant commenced jogging away from the vehicle whilst the applicant drove closely behind her. The complainant attempted to move away from the car but the applicant continued driving it towards her. The complainant was forced to leave the track and walk through the grass to avoid being hit by the vehicle. The complainant felt as though she was in a horror movie being terrorised by the applicant and fearful that she would be run over by his vehicle. She walked through the grass until she got to West Portland Road.
The applicant then stopped the vehicle beside her and told her to get in. Due to the time of day, having no mobile phone reception and no way to get home, the complainant felt she had no choice so she returned to the vehicle. The applicant locked the doors and drove towards Lower Portland Ferry. He retrieved his silver coloured flick knife from the centre console and said to the complainant words similar to "you shouldn't have gotten back in the car." This frightened the complainant a lot. She was scared of the applicant and what he might do to her. This is the basis for the intimidation offence that is the second matter on the Form 1 schedule attached to Count 8.
The applicant pulled the car over and said to the complainant "I could kill you right now and no one would ever know". He flicked open the 10 centimetre long blade of the flick knife and pressed it into the right side of the complainant's neck. She could feel the sharpness of the blade on her skin as he continued to push the blade harder and harder into her neck. He was shouting at her and continually made reference to her jugular. In her scared state she unlocked the door and attempted to escape from the vehicle. As she did so the applicant said to her "if you jump out you'd better start running quick."
She got back into the vehicle because she was so frightened of him. As he drove towards his home, the applicant said "I love you so much; this is why I'm so tough on you. You should know me better by now." The complainant was crying and was scared as a result of the unpredictable and violent actions of the applicant. The complainant held genuine fears for her life, believing that the applicant was going to stab her or kill her. These events are the basis for the third and fourth assault and intimidation matters on the Form 1 schedule attached to Count 8.
At some time between mid or late 2012, the complainant and the applicant were in the applicant's bedroom at his home when they began to argue. When the applicant became extremely angry, the complainant stood at the end of his bed and slowly attempted to make her way out of the room. As she did so, the applicant approached her and used a closed fist to punch her directly to the face. The fist impacted with her nose which commenced bleeding immediately. It hurt the complainant so much that she called out to the applicant's mother. The applicant's parents came into the bedroom. When the applicant's mother saw the blood pouring from the complainant's nose she said "oh shit." She took the complainant from the room and cleaned the blood from her face with a cloth. The complainant's nose continued to bleed for a number of hours after this assault. This is the basis for the fifth matter on the Form 1 schedule attached to Count 8 .
As at November 2012, the complainant and the applicant were running the Diesel Industrial Café in Wilberforce. One evening during that month they went to the café at a time when it was closed to the public. While at the café, the applicant took $70 from the complainant's bag. This money belonged to the complainant and when she questioned the applicant about taking her money, an argument ensued. His taking the money is the basis for the larceny offence which is the sixth matter on the Form 1 schedule attached to Count 8.
During this argument, the applicant picked up a book belonging to the complainant and as he did so, a pamphlet regarding domestic violence fell out. The applicant became enraged and began to chase the complainant around the front counter of the café. The complainant walked at a quick pace away from the applicant who was intermittently changing directions in order to catch her. He picked up a stainless steel steak knife and drew his hand up back over his shoulder. The complainant was very scared as the applicant threw the knife at her with full force. She moved out of the way as quickly as she could and the knife became imbedded in the door behind her. This is the basis for Count 9.
Out of desperation the complainant made a run for the front door, but the applicant grabbed her and she fell to the floor and curled up in a foetal position. This is what she had learned to do to protect herself during beatings by the applicant. The applicant repeatedly kicked her to her body. Eventually, she was able to get up and leave the café. This is the basis for the first assault matter on the Form 1 schedule attached to Count 9.
The complainant made her way to the applicant's ute which was parked outside and attempted to retrieve her handbag and backpack from behind the front seat. The applicant tried to prevent her from getting the bags, but she managed to struggle with him and get the bags out of the car. However, the applicant took the backpack from her and threw it on the ground. He knew her laptop computer was in the backpack and commenced stomping on and kicking the backpack, completely destroying the screen of the computer. This is the basis for the damage to property, the second matter on the Form 1 schedule attached to Count 9.
The complainant crawled through a hole in the fence and hid under a tree. She phoned her usual taxi driver who collected her and also phoned a friend and told her what happened. The complainant was sore and tender all over her body from the repetitive kicks inflicted on her by the applicant. The sentencing judge was satisfied that these events also contributed to her post-traumatic stress disorder.
In the days before 21 February 2013, the applicant and the complainant attended Hanna Oval, located in Beaumont Road, North Richmond. While seated in the car, the applicant ordered the complainant to phone a female friend, Sari. The complainant did as she was told and when Sari answered the phone, the complainant said "Hey Sars, it's NB, I'm just here with Col". When she said that, the applicant grabbed the phone and stopped the call. He said "Why would you do that? Why would you say you were with me?" The applicant exited the vehicle and walked towards the back of the utility with the complainant's Samsung Galaxy mini phone in his hand. He smashed the phone against the aluminium tray several times destroying it. This is the basis for the damage to property, the third matter on the Form 1 schedule attached to Count 9. Sentence proceedings
In relation to the applicant's subjective case, the sentencing judge noted the following. I have indicated where specific findings were made.
The applicant was aged 33 when he committed the offences in 2006 and was aged 42 when he came before the court for sentence in July 2015. There was no evidence of a dysfunctional upbringing but between the ages of 5 and 10 an uncle had regularly sexually abused him. His sister had also been the victim of sexual abuse at the hands of the same person.
The applicant described himself as a "generally happy go lucky sort of bloke" until 2004 when he was involved in a serious motorcycle accident. He was not sure whether he lost consciousness in that accident but had suffered intermittent headaches since. He was not hospitalised at the time and did not undergo any brain scans or have a neurological assessment. He had lost consciousness on four or five other occasions during fights but had never been hospitalised or undergone brain scans. The report of Dr Pulman, a neuropsychologist, made it clear that there was no evidence of any brain damage having been suffered.
The applicant had been in a relationship for 16 years. There were two daughters of that union who were aged 20 and 25 at the time when he was sentenced.
The applicant completed his schooling to year 10. Because he had been bullied in high school, he began standing up for himself and had difficulty controlling his anger. He had difficulty accepting instructions from authority figures and engaged in oppositional behaviour. He did not truant or engage in anti-social behaviour such as damaging property, cruelty to animals or arson. He had no specific learning problems.
After leaving school, the applicant commenced an apprenticeship in carpentry but was sacked after 12 months when he was caught smoking cannabis. He had a reasonably sound work history until the motorcycle accident in 2004. The applicant said that he stopped working in 2005 because his mental health was deteriorating and his substance abuse was increasing.
The applicant's substance abuse started when he was aged about nine. Since then he had abused liquor and illicit drugs including anabolic steroids as part of a bodybuilding program between 2005 and 2009. He told one of the doctors that taking anabolic steroids increased his aggressive behaviour and general short-temperedness. He said that when he took drugs to excess, he became more paranoid than normal but denied experiencing features in keeping with persecutory delusions.
The applicant saw his general practitioner on 2 May 2006 complaining of feeling depressed, lacking motivation, having no energy and feeling "snappy at times when consuming alcohol". His general practitioner prescribed an anti-depressant.
The sentencing judge found that the applicant did not have the benefit of a prior good character. He had a history of convictions extending from 1990 when he was dealt with for resisting arrest and assault occasioning actual bodily harm. In March 1995 he was fined for two counts of assaulting police, carrying a cutting weapon and malicious damage.
In January 1997 the applicant was imprisoned for 4 months for drive while disqualified and driving an unregistered and uninsured motor vehicle. In August 1998 he was fined for possession of a prohibited drug and an implement to administer a drug. In November 2000 he was placed on a bond for 10 months for assault. On 27 October 2005 he was placed on a supervised bond for 2 years for assault.
The sentencing judge found that the applicant was subject to that bond when he committed the offences in Counts 1 - 7, as well as some of the matters on the Form 1 schedule attached to Count 3. The bond was revoked on 21 May 2007 when the applicant received a sentence of imprisonment for 12 months. On 21 May 2007 the applicant received a concurrent 12 month sentence for: Assaulting his previous partner on or about 6 May 2006. Four counts of contravening an apprehended violence order protecting his previous partner. Two counts of using a carriage service to menace or harass his previous partner. Contravening an apprehended violence order protecting his previous partner. Intimidation of his previous partner.
The applicant received a concurrent sentence of 12 months imprisonment for assault occasioning actual bodily harm committed on a male victim on 1 July 2006 and a concurrent sentence of imprisonment for 16 months for another assault occasioning actual bodily harm on another male victim also on 1 July 2006. He was fined for resisting police on 23 July 2006 and for failing to appear on 19 September 2006.
The sentencing judge found that it was an aggravating feature that the applicant was on bail for some of the offences when he committed the offences in Counts 1 - 7.
The applicant committed more offences against his previous partner on 10 December 2007 and 17 January 2008. He received the following sentences for those offences: 6 months imprisonment commencing 18 January 2008 for two counts of intimidation. 12 months imprisonment commencing 18 April 2008 for contravention of an apprehended violence order. Imprisonment for 9 months commencing 18 January 2009 for assault. Imprisonment for 15 months with a non-parole period of 3 months commencing 18 September 2009. The total of those sentences was imprisonment for 2 years and 11 months with a total non-parole period of 1 year and 11 months expiring 11 December 2009.
The sentencing judge noted that the offence in Count 8 was committed two months later in breach of that parole. For clarification, the sentencing judge noted that references to the applicant's previous partner were to a person other than the complainant in these proceedings. In relation to the applicant's offences against his previous partner, the sentencing judge found: "The Court has read the facts relating to the offences involving his wife. They demonstrate a high degree of controlling behaviour on his part. Included in those offences were threats to get a gun and also to commit a drive-by shooting upon his wife, her parents and sister. He threatened to kill her on 31 August 2006. The offences of assault occasioning actual bodily harm on the two men on 1 July 2006 involve kicking them including kicking one to the face."
On 31 August 2012 the applicant was placed on an Intensive Corrections Order (ICO) for 12 months for assault occasioning actual bodily harm committed against the complainant on 13 April 2012. The sentencing judge found that it was an aggravating feature that he was subject to the ICO when he committed the offence in Count 9 in November 2012. The ICO was revoked and the applicant served the balance of that sentence, being 5 months and 14 days, from 17 March 2013 to 30 August 2013. This offence occurred in a hotel and involved the applicant pulling the complainant by the hair and throwing her into a corner after which he kicked her in the torso and face.
On 15 August 2013 the applicant received the following sentences in connection with other offences against the complainant: 9 months with a 6 month non-parole period commencing 15 August 2013 for assault and contravening an AVO. 9 months with a 6 month non-parole period commencing 15 September 2013 for assault and contravening an AVO. 14 months with a 10 month non-parole period commencing 15 October 2013 for assault occasioning actual bodily harm and contravening an AVO. The assault involved pulling the complainant by the hair and pushing her head into his lap while he was driving. The applicant struck her while she was in that position. He also twisted her arm very hard.
The total sentence was imprisonment for 16 months commencing 15 August 2013 with a 12 month non-parole period which expired on 14 August 2014. The sentencing judge noted that the applicant had been continuously in custody since 17 March 2013 serving those sentences and the balance of the sentences imposed upon the revocation of the ICO.
The sentencing judge assessed the objective seriousness of the offences presently under consideration. He noted that each of the offences in Counts 1 - 7 had to be looked at in the context of the other six offences.
He found that each of the offences involved an element of premeditation. He found that Count 1 was a serious example of an assault, given the fear of permanent disfigurement which the applicant engendered in the complainant by holding her face close to the hot stove element. He assessed Count 2 as objectively serious because of the use of a steel shod boot to kick the complainant in vulnerable parts of her body.
The sentencing judge found that the aggravated kidnap offence commenced when the applicant pulled the complainant away from the front door and pushed her into the bathroom. His Honour was not able to determine how long the complainant was detained but accepted that the offence came to an end when she was allowed to leave the bathroom. The sentencing judge noted that it was while the complainant was so detained that the offences in Counts 4 and 5 and the ninth matter on the Form 1 schedule attached to Count 3, occurred. They comprised the succession of punches directed to the complainant's head, the humiliation which she had to endure by being forced to kiss the cousin's penis and the infliction of multiple burns to her toes, fingers and arms.
The sentencing judge concluded: "The Court is satisfied beyond a reasonable doubt that the kidnapping was perpetrated because the Offender derived pleasure from inflicting pain and humiliating and terrorising the victim, as well as exercising power over her. The fact that two other adults in the house did not come to the victim's assistance must have added to her terror." (Sentence judgment, 31.4)
The sentencing judge assessed the offending in Count 6 as a serious example of an offence of that kind (i.e. the threat to cut off the complainant's nipples and using a knife to cut noughts and crosses on her back).
In relation to the aggravated sexual assault in Count 7, the sentencing judge found: "The Court is satisfied beyond a reasonable doubt that, in addition to sexually gratifying himself, he committed this offence to further humiliate and denigrate the victim and to emphasise her powerlessness. This offence had a significant element of brutality and was committed with brutal disregard for the pain and suffering he had inflicted upon her before it." (Sentence judgment, 32.8)
In relation to the offences in Counts 5 and 7, the conclusion as to objective serious reached by the sentencing judge was: "Taking into account only the objective factors affecting the relative seriousness of counts 5 and 7, the Court is of the view that each falls into the middle range of seriousness as connoted by the respective standard non-parole periods of seven and ten years prescribed for offences within the respective provisions." (Sentence judgment, 33.4)
The sentencing judge substantially rejected the applicant's evidence to the effect that his consumption of ice, steroids and Stilnox tablets caused him to be particularly aggressive on the occasion of the offences in Counts 1 - 7. The sentencing judge found that the applicant was well aware at the time that the consumption of these substances made him more aggressive. His Honour noted that the applicant was at pains to attribute his aggressive behaviour to something other than his abuse of amphetamines, alcohol and illicit drugs. The sentencing judge noted that the applicant had not discussed this self-diagnosis with his general practitioner and did not mention it to all of the medical experts who had prepared reports for the proceedings. In particular, he had made no such mention to Dr Elliott. Alternatively, his Honour found that even if Stilnox had played a part in making the applicant more aggressive on the occasion of those offences, this was a connection of which the applicant was well aware. Despite that awareness he continued to take Stilnox.
The sentencing judge found that although the applicant had been prescribed anti-depressant medication, he had ceased taking that medication and chose to treat his depression by consuming alcohol to excess and consuming illicit drugs, including methylamphetamine and steroids. His Honour noted that not only was the applicant aware that he could seek treatment from his general practitioner for depression but that he had done so on occasions before these offences.
Having reviewed all of the evidence, in particular the medical evidence, the sentencing judge concluded that the applicant was not suffering from depression at the time of the offences in Counts 1 - 7 but that his low mood was a consequence of substance abuse. It followed that his offending was not causally connected to his depression.
In relation to Count 8, the sentencing judge concluded: "In the Court's view, this offence of assault occasioning actual bodily harm is towards the upper end of the range for violence that is gratuitous, the victim having done nothing to provoke it. It is another example of the Offender seeking to exercise power over the victim and control her for his own purposes." (Sentence judgment, 40.2)
The sentencing judge had regard to the considerable delay in the prosecution of these matters, in particular, the offences in Counts 1 - 7. His Honour noted that the delay was largely due to a decision on the part of the complainant not to proceed against the applicant at the time when the offences occurred. That, of course, is not unusual in cases of domestic abuse.
The sentencing judge noted that this was not a case where the applicant had suffered any anxiety because of concern that he would be prosecuted in connection with any of the matters. On the contrary, he had continued to commit offences, both against the complainant and his former previous partner, throughout the period. His Honour noted that between 4 October 2006 and 17 December 2009 the applicant was only in the community for four and a half months. He had been in custody from 17 March 2013 up to and including the date when he was sentenced for these offences. His Honour noted that from 14 August 2014 the applicant had been serving sentences imposed upon him as a result of the revocation of the ICO. The sentencing judge noted that this was not a case where the applicant had engaged in any rehabilitation in the period between the offending and sentencing.
The sentencing judge took into account that personal deterrence was an important matter and should be given considerable weight. He also took into account totality and was mindful of the substantial period which the applicant had spent in custody for other offences before the sentencing proceedings. His Honour took that into account by making some of the sentences concurrent and by backdating the commencement date for these sentences to 15 July 2012.
His Honour found special circumstances because of the partial accumulation of the sentences, the need for an extended period of supervised parole and the risk of institutionalisation. THE APPEAL Ground 1 - His Honour erred by failing to make an assessment of the objective seriousness of the offence of aggravated detention for advantage. Ground 2 - The sentence and non-parole period imposed for the offence of aggravated detain for advantage was manifestly excessive.
These grounds of appeal can be dealt with together.
The applicant submitted that for a sentence with a total term of imprisonment of 13 years and a non-parole period of 7½ years, the starting point must have been a sentence of 15 years after taking into account the matters on the Form 1 schedule. The applicant submitted that both the head sentence and the non-parole period were manifestly excessive in that they were not proportional to the objective seriousness of the offence. The applicant submitted that the sentence did not reflect his strong subjective case, which included the real risk of institutionalisation and delay in the prosecution of the offence.
The applicant submitted that error had also occurred because the sentencing judge had failed to make an assessment of the objective seriousness of this offence. The applicant relied upon the observations of Simpson J (with whom Hall J agreed) in R v Campbell [2014] NSWCCA 102 at [27]: "It is in respect of the treatment of objective seriousness that I differ most significantly from the views expressed by Harrison J. In my opinion, the assessment of objective seriousness is, and has always been, a critical component of the sentencing process: R v Geddes (1936) 36 SR (NSW) 554; R v Dodd (1991) 57 A Crim R 349; Markarian v The Queen [2005] HCA 25; 228 CLR 357; Khoury v R [2011] NSWCCA 118; 209 A Crim R 509 at [71]-[72]. These cases were all decided before judgment was given in Muldrock v The Queen [2011] HCA 39; 240 CLR 120. There is nothing in that judgment that cuts across the principle stated. Muldrock exposed error in this Court in over emphasising the assessment of objective gravity in offences to which Pt 4 Div 1A of the Sentencing Procedure Act applies, of notional offences in the mid-range of objective seriousness. It does not preclude proper attention being paid to the objective seriousness of the particular offence under consideration: see, for example, R v Koloamatangi [2011] NSWCCA 288 per Basten JA. In respect of offences to which Pt 4 Div 1A of the Sentencing Procedure Act applies, two "legislative guide posts" are to be observed - the maximum sentence prescribed, and the standard non-parole period."
The applicant submitted that although his Honour had set out the objective facts with respect to all matters, including the aggravated detention for advantage, he had not discharged his obligation to make an assessment of the objective seriousness of the offence itself. The applicant relied upon the observations of R A Hulme J (with whom Leeming JA and Johnson J agreed) in R v Van Ryn [2016] NSWCCA 1 at [133]: "From the summary of the sentencing judgment set out above it is clear that apart from reciting the facts of the offences the judge made no assessment of their objective seriousness or, if he did, he said nothing about it. Latham J observed in R v Cage [2006] NSWCCA 304 at [17] that: "A bare recitation of the facts constituting the offences and a reference to the 'objective features of the offences' does not satisfy the requirements of sentencing.""
In relation to the length of the sentence, the applicant relied upon R v Newell [2004] NSWCCA 183 where Howie J (with whom Bell and Hislop JJ agreed) said: "32 The gravamen of the offence for the purpose of sentencing is the unlawful detaining of a person. As his Honour noted, there are a number of factors that can be relevant in making an assessment of the seriousness of an offence under s 86 including the period of the detention, the circumstances of the detention, the person being detained and the purpose of the detention. The last factor, the nature of the advantage that the offender sought to obtain, is not, in my view, conclusive as to the seriousness of the offence. In particular, simply because the section makes reference to one specific type of advantage, that is ransom, it does not follow that the presence or absence of that particular type of advantage is decisive in a determination of the seriousness of the particular offence before the court."
The applicant submitted that in this case the detention was not lengthy and to the extent that there was premeditation, it was not of a fully considered kind but was almost contemporaneous with the offence. The applicant relied upon his evidence that at the time he was adversely affected by the ingestion of Stilnox, a substance now known to cause aberrant behaviour. The applicant submitted that given the magnitude of the sentence, it was likely that his Honour had incorrectly taken into account the offences which occurred during the course of the detention as aggravating the seriousness of the offence. The applicant submitted that while it was open to his Honour to have regard to the context in which the detain offence occurred and note that other offences also took place during the period of the detention, it would amount to double punishment for his Honour to find that the objective seriousness of the detain offence was increased thereby.
In relation to the nine matters on the Form 1 schedule, which were to be taken into account in relation to Count 3, the applicant submitted that although they justified some increase in sentence, they were not of such objective seriousness that they justified the length of sentence ultimately imposed. This was particularly so when there was considerable accumulation in this sentence.
The applicant submitted that the statistics maintained by the Judicial Commission for detain offences showed that of 54 cases, all but one received terms of imprisonment. Of those terms of imprisonment, however, the longest sentence was one of 11 to 12 years. The applicant noted that 84% of all sentences imposed for that offence were between 24 months and 6 years in length. The applicant submitted that the non-parole period of 7½ years imposed upon him was in the top 8% of non-parole periods imposed for this offence. The applicant provided a chart which set out the basic facts of some of the sentences on which the statistics were based.
The applicant submitted that there was a real risk of institutionalisation, given the length of the sentence imposed upon him, particularly when the period of time which he had already spent in custody before the imposition of these sentences, was taken into account. Consideration
There is no doubt that an assessment of the objective seriousness of an offence forms an important part of the reasoning process leading up to the imposition of a sentence. That having been said, where a sentencing judge has made it clear from his or her findings that the judge regards the offence as serious, little more is required.
In Delaney v R; R v Delaney [2013] NSWCCA 150; 230 A Crim R 581 at [56], with the concurrence of Harrison and Beech-Jones JJ, I said: "While it is true that his Honour did not in terms assess the objective gravity of the offending, he did specifically refer to the factors which bore upon its objective seriousness. His Honour took account of the amount involved, the role of the appellant, the nature of the conduct and the period over which it took place. While it may have been preferable for his Honour to have made a specific assessment of the objective seriousness of the offending, he did implicitly do so. I am satisfied that the factors to which his Honour referred were relevant and important and were given proper weight in the sentencing process. While his Honour may not have expressly determined the objective criminality of the offences, he clearly took that into account."
The approach of the sentencing judge in this case was similar to what occurred in Delaney v R; R v Delaney. In the course of setting out the facts of the detention offence, his Honour noted that while the offence in Count 5 was being committed against the complainant, she was "… screaming in pain and scared for her life". His Honour observed in relation to the applicant: "His behaviour conveyed to her that he was enjoying what he was doing and it horrified her. Any reasonable human being would be disgusted and revolted by his conduct. It is nothing other than barbaric and the court is satisfied beyond reasonable doubt that he derived pleasure from the pain inflicted by burning the victim and removing and consuming her skin." (Sentence judgment, 30.7)
When identifying the "advantage" obtained by the applicant, his Honour said: "The Court is satisfied beyond a reasonable doubt that the kidnapping was perpetrated because the Offender derived pleasure from inflicting pain and humiliating and terrorising the victim, as well as exercising power over her. The fact that two other adults in the house did not come to the victim's assistance must have added to her terror." (Sentence judgment, 31.4)
Against that background, it cannot be said that the sentencing judge did not assess the objective seriousness of the offending. His Honour gave due consideration to the nature of the conduct and the circumstances in which it occurred in determining the appropriate sentence. While his Honour did not expressly determine the objective criminality of the offence of aggravated detain for advantage, he clearly gave careful consideration to the nature of the offending conduct and the circumstances in which it occurred. Moreover, the evidence of the conduct of the applicant which attended this offence made a conclusion of significant seriousness self evident.
It follows that I am not satisfied that Ground of Appeal 1 has been made out.
In relation to the second ground of appeal, an important guidepost is the maximum sentence, i.e. imprisonment for 20 years. While it is clear that double-counting should be avoided and that the applicant should not be punished twice because other serious offences occurred during the period of detention, the fact of those offences having occurred and their circumstances are important. They inform the quality of the detention and provide an insight into the effect of the detention on the complainant. Here the context and the circumstances surrounding the offences committed during the detention are important.
While it is not known for how long the detention took place, it was an agreed fact that the complainant was in genuine fear of her life and that she believed the detention had taken place over a number of hours. Importantly, during that time brutal and sadistic conduct was directed towards her in circumstances where she had no idea when that conduct would end and whether it would end with her release or death.
The motivation for the detention identified by his Honour places it in the very serious category, i.e. that the applicant derived pleasure from inflicting pain, humiliation and fear on the complainant, as well as exercising control over her. This occurred against a background of domestic violence.
Accordingly, although the duration of the detention may not have been particularly long by an objective measurement, regard has to be had to the perspective of the complainant, her position in relation to the applicant and the purpose of the detention. In particular the perverse gratification which the applicant appeared to obtain from the opportunity which the detention gave to him of assaulting and intimidating the complainant needed to be taken into account.
Looked at from the perspective of the complainant, the detention had the following features:

The complainant believed that she had been confined to the bathroom for hours and hours.
She had lost all hope.
She felt sure she was not going to make it out of the house alive.
She thought of her family and her children in the context of never seeing them again.

Finally, the eight assault matters on the Form 1 schedule attached to Count 3 were individually serious. It was necessary for his Honour to take them into account with a view to increasing the penalty which would otherwise be appropriate for the offence having regard to the need for personal deterrence and the community's entitlement to extract retribution for serious offences when there were other offences for which no punishment was to be imposed (Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146 at [42] (Spigelman CJ with whom Wood CJ at CL, Grove, Sully and James JJ agreed).
The applicant is not assisted by his subjective case. There were inconsistencies in the histories which he gave to medical practitioners called on his behalf. His abuse of alcohol and drugs, including Stilnox, does not ameliorate the offending. As his Honour found, his consumption of these substances took place in circumstances where he knew that they would make him more aggressive, yet he persisted in abusing them. There is the added complication in his subjective case that a number of these offences were committed while he was at conditional liberty. Finally, his criminal record is truly appalling and was replete with offences of violence.
The applicant relied upon statistics to found a submission that the sentence imposed upon him was high by comparison with other sentences imposed for this kind of offence. A schedule of cases was provided which appeared on its face to support such a submission. The applicant relied upon 54 cases where sentences ranged from 12 months to 14 years. The 47 reported non-parole periods ranged from 6 months to 8 years.
As has been pointed out by the High Court and this Court on many occasions, great care must be taken when utilising statistics for the purpose sought to be achieved by the applicant: Wong v R; Leung v R [2001] HCA 64; 207 CLR 584 at [59]; Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520.
There is a particular difficulty when seeking to rely upon statistics based on sentences imposed in other detain for advantage cases. Such cases are very fact specific. This point was made by Howie J (with whom Bell and Hislop JJ agreed) in R v Newell [2004] NSWCCA 183 where his Honour said: "43 The Court has been referred to statistical information, notwithstanding that the applicant's solicitor appreciates its limited value. Statistical information may have value in an appropriate case to indicate a range of sentences for offences where there is a predictable similarity in the conduct amounting to the offence. I doubt that offences under s 86 will be sufficiently homogenous that a reference to statistics alone will be of much assistance. But even if a range could be established, it does not follow that a sentence for a particular offence or offender has to fall within that range. It is merely a sounding board upon which a particular sentence may be judged. In this case there is nothing in the material that makes this particular sentence ring untrue."

Because the uncertainty occasioned to the offender constitutes a detriment suffered.
Because it is relevant to the issue of rehabilitation.
Because a "stale crime" calls for a measure of understanding and flexibility of approach, it being in the public interest that those suspected of serious crime be brought to justice quickly.

In Coles v R [2016] NSWCCA 32 at [19] Fullerton J (with whom Adams J and I agreed) said: "19 An analysis of the authorities to which Bellew J referred in Sabra, authorities which this Court has considered on numerous occasions, make it clear that preliminary to the question whether the applicant in fact suffered a significant detriment, or adverse consequences of any relevant kind, by the passage of three years from January 2009 to January 2012 which might have attracted mitigatory weight in the sentencing exercise (an evidential burden he was obliged to discharge on the balance of probabilities), is whether the passage of three years was a delay of the kind which might attract the considerations of fairness referred to in Todd v R [1982] 2 NSWLR 517 (at 519). That case was referred to in Mill v R [1988] HCA 70; 166 CLR 59, where the plurality of the High Court said (at [14]): … The long deferment of the trial or punishment of an offender, with the consequent uncertainty as to what will happen to him, raise considerations of fairness to an offender which must be taken into consideration when the second court is determining an appropriate head sentence. …"
In McKittrick v R [2014] NSWCCA 128 Simpson J (with whom Davies and Adamson JJ agreed) observed (at [17]) that it is not in every case where delay has occurred in the prosecution of an offender that warrants a reduced sentence since each case depends on its own particular circumstances.
In Luong v R [2014] NSWCCA 129 at [42] Price J (with whom Fullerton J and I agreed) observed: "… The applicant did not give evidence of any uncertain suspense or strain suffered as a result of the delay. This was not a stale offence but one that had been discovered by the victim after the applicant had defrauded him for over two and a half years. If the applicant had any concerns about delay in the prosecution of the fraud offence, it was always open to him to bring his offending to the attention of the police. The Judge was entitled to express her reservations about the applicant's remorse and prospects of rehabilitation. I am not persuaded that the applicant suffered detriment by the delay that entitled him to an element of leniency."
None of the above statements of principle assist the applicant. There is a significant difference between delay that can be attributed to a police failure to charge and what occurred with the complainant. She was a victim of ongoing domestic violence involving extreme controlling behaviour who elected not to proceed with those charges at the time. It appears to have taken years before she felt able to deal with those matters.
Moreover, the applicant did not demonstrate any attempt at rehabilitation in the period between August 2006 and 24 March 2013 when he was arrested for these offences. In early October 2006 he was arrested for offences which occurred between May and September 2006 against his former previous partner. He was sentenced to a period of imprisonment commencing 4 October 2006 and was released to parole on 3 August 2007. He then committed further offences against his previous partner in December 2007 and January 2008. He commenced another term of imprisonment on 18 January 2008. He was released to parole on this occasion on 17 December 2009. Those offences also involved "domestic violence". The offences in Count 8 and the Form 1 schedule attached to it occurred very shortly after the applicant was released to parole on that occasion.

23 December 2016 - possess prohibited drug - reprimanded.
6 January 2017 - refuse/fail drug sample - reprimanded and sentenced to 84 days off buy-ups, amenities and contact visits.

The applicant has maintained contact with his daughters and his elderly mother while in prison.
On resentence the applicant submitted that the sentences imposed were not proportional to the objective seriousness of the offences and did not properly reflect his subjective case, including the fact that there was a real risk of institutionalisation. The applicant submitted that on resentence that issue should be taken into account, as should the issue of delay, which he submitted was essentially ignored by the sentencing judge.
The applicant submitted that not only were the individual sentences excessive but the final sentence imposed did not have adequate regard for the substantial periods of imprisonment for other offences which he had served before being sentenced for these offences.
The applicant submitted that on resentence this Court should have due regard to his background and in particular, his history of childhood sexual abuse, which reduced his moral culpability for the offences. The applicant submitted that he had a strong subjective case which had been largely ignored by the sentencing judge.
The applicant submitted that when sentencing for Count 3, care had to be taken to not take into account Counts 4 and 5 as aggravating that count, since to do so would be to double count those offences. In that regard, the applicant repeated the submissions earlier made that there had in fact been double counting of those matters because it was clear his Honour had taken them into account when imposing the sentence for the offences in Count 3.
The Crown submitted that on resentence the Court would take a more serious view of the offending than did his Honour, particularly in relation to the objective seriousness of the offending. The Crown submitted that the offence in Count 3, with its attached Form 1 matters, should have been assessed as above the midrange of seriousness and that it would be open to the Court to make a similar assessment of objective seriousness of the offences in Counts 5 and 7.
The Crown submitted that on resentence the following considerations were relevant: 1. The objective seriousness of Count 3 was well past the midrange and towards the upper end, as was the entirety of the applicant's offending reflected in the various counts in the indictment. 2. The offences occurred in the context of domestic violence which elevated their seriousness and emphasised the need for general and specific deterrence. 3. The totality principle and the proportionality principle, as well as ensuring that considerations of accumulation and concurrency were fairly balanced, required the criminality of the applicant to be adequately reflected in the overall sentence and non-parole periods imposed. This was because the applicant's moral culpability was of a very high order. 4. The applicant's previous history of domestic violence offences against his previous partner and the fact that he committed the offence in Count 9 while on conditional liberty for an assault occasioning actual bodily harm perpetrated upon the present complainant, weighed very strongly in favour of the need for a sentence that gave full weight to specific deterrence. 5. Any lesser sentence than that imposed at the first instance would not adequately reflect current community expectations that sentences for crimes of domestic violence should adequately demonstrate the need for general and specific deterrence, nor would it reflect the community's abhorrence of the sadistic brutality that accompanied the commission of many of the offences in the present case. Consideration

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