Jackson v R

Court of Criminal Appeal (NSW)|2020-11-16|Before: Hoeben CJ, Price J, Fagan J

On 24 October 2019, the judge imposed an aggregate sentence of 7 years and 9 months' imprisonment commencing on 23 June 2017 and expiring on 22 March 2025, with a non-parole period of 5 years and 6 months expiring on 22 December 2022. After finding special circumstances the ratio of the head sentence to the non-parole period was varied to 71%.

Grounds of appeal

The Notice of Appeal identifies the following grounds of appeal: "1. The learned sentencing judge erred in her approach to the applicant's mental condition. 2. The total aggregate sentence and non-parole period imposed were manifestly excessive having particular regard to: i. The applicant's subjective case, including his mental condition; ii. The fact that the sentence was imposed after a guilty plea; iii. The fact that the applicant's evidence of remorse was accepted as genuine; iv. the delay prior to sentence; and v. The finding of special circumstances based upon the prospects of rehabilitation, the need for prolonged supervision, the fact that the applicant was at the crossroads and to address accumulation."

The offences

The facts of the offences were set out in a statement of agreed facts which were summarised in the judge's remarks on sentence.
The applicant and complainant were in a relationship for about four and a half years. During that time, they had separated and resumed the relationship a number of times.
At the time of the offences, an Apprehended Domestic Violence Order ("ADVO") was in place. However, prior to recommencing their relationship on the last occasion, the applicant had told the complainant that the ADVO had been removed by the police and was no longer in force. It was on that basis they reunited. Her Honour noted the applicant had given evidence he was unaware that an ADVO was in place and was under the view it had expired.
On 22 June 2017, the complainant went grocery shopping. On her return to the residence she shared with the applicant, he began questioning her absence and they became involved in an argument, pushing each other a number of times, which was witnessed by the complainant's youngest child.
The following morning the complainant and applicant were woken up when the applicant's phone rang. The applicant began to yell at the complainant, accusing her of being unfaithful, telling her, "get out of my house I can't believe you did that to me".

Count 2 - Intentional choking

The applicant threw the complainant onto the bed, climbing on top of her and straddling her with his legs. The applicant grabbed the complainant by the throat with one hand, pushing his thumb into the side of her throat, while covering her mouth and nose with the other hand. The complainant clawed at the applicant and tried to get him off her as she could not breathe and was in pain.

Count 3 - Assault occasioning actual bodily harm

The applicant continued to yell at the complainant, repeating "I can't believe you did that to me". He slapped the complainant a number of times to the right side of her head, near the temple and eye. She managed to get the applicant off her.
The applicant then grabbed her by the hair and threw her onto a wooden coffee table, landing on her back.
As a result of being slapped and thrown, the complainant suffered a lump to her temple and bruising to her back.
The complainant then went into the kitchen and the applicant followed her.

Form 1 - Common assault

The complainant was seated in the foetal position on the floor and the applicant picked up some oranges and threw them at her. Some of the oranges hit the complainant in the head and broke apart, covering the complainant and the splashback in orange juice.
The applicant calmed down and the complainant went to the bathroom to have a shower. The applicant then made the complainant a cup of tea and they laid down to sleep for a number of hours.

Form 1 - Common assault

Again, the applicant and the complainant were woken by a mobile phone ringing. The applicant became angry and said to the complainant "is that your boyfriend ringing?" The complainant got up and went to the bathroom and said "let me go, please let me go" before sitting on the floor between the bath and the toilet.
At some point, the applicant used his fingers to open the complainant's mouth. He then pushed the fingers of his other hand into her open mouth and throat. The complainant struggled and resisted but the applicant left his fingers in her mouth and throat for a short period before removing them.
After removing his fingers, the applicant pulled the complainant's hair and bit her right ear and cheek. There was no mark from the bite.

Count 5 - Assault occasioning actual bodily harm

A short time later the complainant was lying on the kitchen floor in a foetal position. The applicant kicked her body, chest and legs, causing pain and bruising to her legs.

Form 1 - Assault occasioning actual bodily harm

When the complainant attempted to leave, the applicant grabbed her by the hair and pulled her back and head-butted her nose. As a result, the complainant suffered bruising to her nose.
At some stage in the afternoon, the complainant contacted her adult daughter by phone. The applicant could be heard yelling in the background. The complainant's brother and her son attended the premises, finding the applicant standing over the complainant in the bathroom assaulting her. The complainant's son grabbed the applicant and dragged him away from her.

Subjective circumstances

The applicant was 36 years old at the time the offences were committed. He gave evidence during the sentencing proceedings before the judge. The written material tendered in his case included a psychologist's report by Ms Emma Hübner, a letter from the applicant's father, letters of attendance at Remand Domestic Abuse and Addictions sessions, a report from consultant psychiatrist Dr Gordon Elliott, an email from Balund-a Program, a Victim Services' Application for Counselling, and a Certificate III in Cleaning Operations.

Background

The applicant was born in 1981 in Kurri Kurri. The applicant identifies as an Aboriginal man and is proud of his heritage. Ms Hübner recorded in her report that the applicant's father is Caucasian and his mother, now deceased, was an Aboriginal woman from the Upper Hunter Valley. He has two older sisters and an older brother. He also has a younger Aboriginal foster sister.
Ms Hübner reported that whilst the applicant was growing up, his father used harsh physical punishment to enforce household rules. The applicant told Ms Hübner that at times his mother was physically aggressive towards his father when he returned home from the local pub. Ms Hübner said that "these early experiences are considered to have placed [the applicant] at risk of childhood aggression, antisocial behaviour, lower intellectual achievement, poorer quality of parent-child relationships, mental health problems and diminished moral internalisation."
Ms Hübner recorded that when the applicant was 2 years old, he moved with his family to Bendigo to be closer to his mother's family. The applicant told Ms Hübner that an older family friend molested him but declined to speak in any detail about these events.
When the applicant was 13, he and his family returned to Kurri Kurri and he said that he soon "ran amok" fighting with his peers, smoking cannabis and drinking alcohol.
Ms Hübner reported that the applicant experienced learning and behavioural problems at home and at school. He was reportedly placed into "special classes" for children with intellectual disabilities. The applicant told Ms Hübner that at age 9 he was diagnosed with Attention Deficit Hyperactivity Disorder ("ADHD") and was prescribed dexamphetamine, which he took until he was 13.
The applicant was expelled from Kurri Kurri High School for fighting before the completion of Year 8.
Between the ages of 16 and 22 the applicant was employed as an industrial cleaner. His next period of employment was between 31 and 34 years old when he worked at a horse farm in Cessnock. His last reported period of employment was between 2016 and 2017 when he worked as a labourer.
As to his relationship history the applicant told Ms Hübner his first intimate relationship began when he was 15 years old. They were engaged and had a daughter when he was 20 years old but the relationship ended the following year after his partner slept with his brother. Ms Hübner reported there was conflict in the relationship in its final stages.
After this relationship ended, the applicant said that he became an alcoholic and was frequently in jail. He spoke of being an angry young man and said he was "fighting with everyone, about everything".
It was around this time he became involved in a casual relationship with the mother of his second child. Ms Hübner reported that he spoke little about this relationship and his child.
At age 31 the applicant began a relationship with the complainant. He claimed she was an alcoholic with unmedicated paranoid schizophrenia and that there was frequent conflict between them. He admitted to Ms Hübner that while intoxicated during a heated argument he threw a mug which hit the complainant's face. He said it was "spur of the moment" and he "didn't mean to hit her". He was subsequently incarcerated and the relationship ended.
The following year the applicant and the complainant reunited. The applicant told Ms Hübner that by then she used methamphetamine and her three young children had been placed into foster care. He said between 2015 and 2017 their relationship was disrupted by her methamphetamine use.
The applicant advised Ms Hübner that he was diagnosed with gastrointestinal issues related to mould exposure in 2014. He has reportedly had multiple surgeries to treat his symptoms.
The applicant told Ms Hübner that he had experienced symptoms of depression since he was 21 years old. In 2014 he was formally diagnosed with depression during a period of incarceration at Cessnock Correctional Centre and was prescribed mirtazapine, an antidepressant medication, which he took for a year. He recommenced taking this medication during his current incarceration. Ms Hübner otherwise noted that there was no evidence of depressive symptoms, either on medical examination or on history.
Ms Hübner reported that the applicant began drinking alcohol and smoking cannabis at age 13 and that his use of these substances increased into adulthood.
Ms Hübner further stated that at 33 years of age, the applicant ceased his use of alcohol but continued to use cannabis until he committed the index offences. She also noted that the applicant had used methamphetamine, which was shared with the complainant.

Ms Hübner's psychological assessments and clinical opinions

Ms Hübner tested the applicant's current intellectual capacity. The applicant's performance on the verbal subtests "fell within the Below Average range" and "was equal to or better than 4% of an age-matched normative sample". [1] In order to assess for the presence of personality pathology that may have contributed to the applicant's offending Ms Hübner administered the Millon Clinical Multiaxial Inventory-III (MCMI-III), a psychometric personality test. The psychologist concluded that the applicant's MCMII-III profiles "[signified] an individual who has a tendency to be impulsive and reckless, and who fails to consider or disregards the consequences of their actions." Ms Hübner considered the applicant may also be aggressive and hostile and displayed a dysregulated temper. He could lash out violently with perceived provocation and frustration. The applicant was also found to be prone to substance abuse and addiction.
Whilst noting that the applicant's version of events was different from the documents provided, Ms Hübner was of the opinion that the applicant's non-verbal reasoning deficits and antisocial personality traits contributed to his prior violent offending and in his involvement in the index offences. Ms Hübner opined that his use of methamphetamines and cannabis around the time of the offences may have further impaired his reasoning skills and increased his tendency to be verbally and physically aggressive.
Ms Hübner found the applicant to be at low to moderate risk of reoffending with his risk being related to his conduct problems and criminal history. Ms Hübner stated that the applicant appeared motivated to make positive changes in his life and was willing to attend alcohol and drug rehabilitation and to participate in treatment tailored towards those who had been charged with violent offences towards their partners.

Dr Elliott's diagnosis and conclusions

The material provided to Dr Elliott included Ms Hübner's report. Dr Elliott reported that the applicant suffered achalasia; a disorder of the normal digestive waves of contraction and relaxation in the oesophagus which causes difficulties passing food into the stomach. The applicant told Dr Elliott that he largely attributed his current mental health problems to his eating difficulties. The applicant told Dr Elliott that he has trouble swallowing as food boluses become stuck in his oesophagus causing him to vomit. Dr Elliott said he described consequent social anxiety about eating in front of others and said he can no longer share a meal with his family.
Dr Elliott considered that the applicant presented with early development problems including learning disorders, likely ADHD and externalising problems such as aggression. Dr Elliott reported as an adult, the applicant has had significant problems with substance use disorders, specifically alcohol and cannabis use disorders. Dr Elliott opined that the applicant's substance use disorders appeared to be a key factor in his offending behaviours, as well as with his problems with relationship conflict and mood dysregulation. Dr Elliott did not consider that the applicant was pervasively depressed and there were no features of any other major mental illness. Dr Elliott stated that the applicant appeared motivated to address his substance use disorders.
Dr Elliott concluded that the applicant was not suffering from symptoms of mental illness and was not a mentally ill person. Dr Elliott expressed the opinion that although the applicant's overall intellectual functioning was not considered to fall within the formally intellectually disabled range, he was illiterate and likely had significant learning problems. However, the applicant's overall level of adaptive functioning did not suggest a significant intellectual disability. Dr Elliott opined that the applicant's substance use disorders and his learning disorders could be considered mental conditions, but he was not currently a mentally ill person and would not be considered for admission to a mental health facility.

The applicant's evidence

The applicant's oral evidence before the judge included that he could not read or write, he was constantly depressed and his depression went back to his childhood. He said that leading up to the offence he had been taking methylamphetamine and been awake for approximately two days. He did not have a good memory of the offence but agreed that his conduct was reprehensible.
The applicant said that he was deeply sorry for hurting the person he loved. He believed that being at the Balund-a program would be a big help to him.
In cross-examination, he said that he was a chronic alcoholic and cannabis smoker until 2014. He agreed it was his evidence that he had only started using 'ice' after he had become involved with the complainant. He agreed that he was not using 'ice' in 2014 when he assaulted the complainant but he said he was "a chronic alcoholic then". He agreed that every single offence of violence on his criminal history was in one way or another domestic violence related. He agreed his prior offence of maliciously inflicting grievous bodily harm was on his previous partner's daughter who was two.
The applicant agreed that he assaulted his next partner Ms M… and amongst other things bit her and punched her in the head.
The applicant was further cross-examined on his prior criminal history and agreed that he hit the complainant in the face with a coffee mug in 2014 and said that he may have grabbed her son around the throat when he tried to assist the complainant. He said that he put every single previous offence of violence down to alcohol and drugs. He said what he had done was very wrong and it was only his responsibility.

Criminal history

The applicant's prior criminal history discloses that he was sentenced in the District Court at Newcastle on 25 February 2004 to imprisonment for two counts of maliciously inflicting grievous bodily harm. On the first count, he was sentenced to imprisonment for 4 years and 10 months with a non-parole period of 3 years and 3 months. On the second count, his sentence of imprisonment was for 3 years and 3 months with a non-parole period of 1 year and 3 months. It appears that these sentences were partially accumulated.
On 16 February 2009, he was sentenced in the Raymond Terrace Local Court for common assault to imprisonment for 12 months with a non-parole period of 5 months.
On 13 April 2013, he was sentenced in the Maitland Local Court to 9 months' imprisonment with a non-parole period of 6 months for one count of stalk/intimidate intend fear. He was also sentenced to a fixed term of imprisonment of 6 months for one count of assault and to a fixed term of imprisonment of 3 months for one count of damaging property. The sentences were to be served concurrently.
On 2 October 2014, he was sentenced in the Maitland Local Court for one count of common assault to 9 months' imprisonment with a non-parole period of 6 months; for one count of assault occasioning actual bodily harm to 12 months' imprisonment with a non-parole period of 9 months and for contravening a prohibition/restriction in AVO (domestic) to 12 months' imprisonment with a non-parole period of 9 months. The sentences were to be served concurrently.

The remarks on sentence

After summarising the agreed facts, [2] the judge observed that each of the discrete offences of violence was "serious within the differing offence categories". [3] Each was to be assessed on the basis that it occurred within an ongoing and relatively sustained assault, separated by periods of inaction.
The judge found that the choking (count 2) was most serious "by virtue of the conduct and the offence provision". [4] Her Honour said that "not only was a hand placed around the complainant's throat but her mouth and nose were blocked" and "this would have been terrifying". [5] Her Honour took into account the degree of force and the actions used, and found the applicant accountable "for being reckless as to rendering her incapable of resistance". [6]
The judge observed that "the assault occasioning actual bodily harm for count 3 involved different assaults, with some directed at the complainant's head". [7] Her Honour said the second assault occasioning actual bodily harm "entailed the complainant being in a foetal position on the ground and being kicked to the chest and legs". [8] Her Honour took into account that both of these offences resulted in "limited harm being caused". [9]
When referring to the Form 1 offences, the judge said that none of these acts of violence were insignificant. Her Honour noted the assault occasioning actual bodily harm was supported by an invasive assault by placing fingers down the complainant's throat and then grabbing her hair and head-butting her.
The judge observed that while all of the offences occurred in the applicant's home, "it was a place that the complainant frequented by virtue of her relationship" with him. The judge stated that the complainant "had a legitimate expectation to feel safe, secure and to not be assaulted by her partner". [10] Partnerships, her Honour said, "should involve a component of trust and respect" and "despite the previous assaults, they had resumed a relationship". [11] However, her Honour found that whilst the offences occurred in the applicant's home and were part of the facts, it was not an aggravating factor.
Her Honour noted there was no suggestion that the complainant should be blamed for any of the applicant's conduct and said that he acted irrationally. He had accepted in evidence that he was solely responsible for his conduct and actions. Her Honour found that the offending was reprehensible and each offence was objectively serious.
The judge said that at the time of the offending, the applicant was subject to an ADVO which was in place to protect the complainant. The applicant resided with her contrary to the terms of the order and after he had informed her there was no order in place. Her Honour said the co-habitation or contact was in itself a breach and the assaults were more serious breaches as they operated "akin to a breach of conditional liberty" which was an aggravating factor. [12]
Her Honour noted that she was to sentence separately on the contravention of the ADVO and was mindful not to double count.
The judge referred to the applicant's prior criminal history which included offences of personal violence. Her Honour observed that the applicant had been imprisoned in 2004, 2009, 2013 and 2014 for "domestic violence type offences" and found that the applicant's criminal antecedents disentitled him to leniency.
The judge found that the applicant was genuinely sorry for his conduct and was now gaining insight into his offending.
Her Honour referred to the reports of Ms Hübner and Dr Elliott. In particular, the judge quoted what Ms Hübner had said in relation to current personality testing and referred to Ms Hübner stating that the applicant may be aggressive and hostile. The judge noted the psychologist had said "these behaviours are likely to have contributed to the applicant's prior and current involvement with the law." [13] Her Honour observed that despite these factors, Ms Hübner had assessed the applicant as falling in the "low to moderate risk of re-offending". [14]
The judge referred to Dr Elliott's opinion that the applicant's substance abuse disorders appeared to be the key factor in his offending, as well as with his problems with relationship conflict and mood dysregulation. The judge accepted that substance abuse played a role. Her Honour went on to say: "The offender receives no benefit for this. However, I accept the other features particular to the offender that resulted in him being more susceptible to aggression do slightly moderate the sentence. The offender submitted that his background and social circumstances demonstrated some adversity, but not as such to attract Bugmy considerations. The background however discloses difficulties in some respects with education, cognitive development, exposure to serious offending upon himself, and mitigates the sentence that would otherwise be appropriate." [15] (Emphasis added).
Her Honour observed that during the applicant's considerable period on remand, he had "been able to demonstrate some progress towards rehabilitation." [16] Her Honour said his "prospects of rehabilitation and not re-offending were difficult to gauge." [17] Her Honour found that "despite a preliminary positive start at this stage his prospects [were], at most, reasonable." [18]
The judge accepted the applicant was at the crossroads. Her Honour said he was at an age where if he did not have insight and did not address the underlying causes, "he should expect to spend longer in custody for any further offending". [19]
Her Honour stated that given the applicant's prior "history of similar domestic abuse offending over a long period entailing a number of victims, personal deterrence [played] a continuing and important role". [20] General deterrence and denunciation were of considerable significance as "each indictment offence is a domestic violence offence and each was committed whilst there was an order in place, ostensibly to protect the victim." [21]
After referring to the principle of totality, her Honour said some accumulation of sentence was necessary but was mindful that "the overall sentence [needed to] be proportionate to the offending and to not impose a crushing sentence". [22]
Her Honour found special circumstances being the applicant's prospects of rehabilitation, the need for prolonged supervision, the applicant being at the crossroads and to address accumulation.
The judge then indicated the sentences and imposed the aggregate sentence as detailed at [3]-[4] above. Her Honour said there was a variation of the statutory ratio to 71 percent and "no lesser sentence would reflect the objective seriousness". [23]

Ground 1: The learned sentencing judge erred in her approach to the applicant's mental condition

Argument

The applicant submitted that Dr Elliott's report indicated he suffered from two mental conditions; substance use disorder and learning disorder. The report noted that his learning disorder was "significant" and he was in fact illiterate, albeit not falling into the range considered as formally intellectually disabled. Dr Elliott however, made no comment on the impact the applicant's non-verbal reasoning deficits would have had on the offending behaviour, nor did Dr Elliott comment on their contribution (or otherwise) to the applicant's substance abuse disorder.
The applicant referred to Ms Hübner's report and his performance on the verbal subtests, the results of which were said to amount to a deficit in fluid reasoning impacting upon his ability to solve novel problems with adaptability and flexibility. The applicant pointed out that Ms Hübner considered the applicant's non-verbal reasoning deficits and antisocial personality traits contributed to the index offences, with drug use further impairing his reasoning skills and increasing his antisocial tendencies.
The result was, the applicant submitted, that the judge had one expert view as to the impact of the applicant's cognitive deficit on the index offending and another which was silent on the impact of that factor without indicating the reasoning behind the disregard for that factor. However, the judge's sentencing remarks made no direct mention of the applicant's non-verbal reasoning deficits, nor to Ms Hübner's finding that they contributed to the index offences. The applicant further contended no direct finding was made with regard to Dr Elliott's evidence of the presence of the learning disorder which he opined was a mental condition.
The applicant submitted that it was unclear whether the judge accepted the evidence of both facets of the expert evidence as to the index offending having been contributed to by the applicant's intellectual deficits and antisocial personality traits. The applicant contended that as there was no expert evidence to the contrary regarding the applicant's intellectual functioning and there was expert evidence supportive of the fact his learning disorder amounted to a mental condition, a clear finding that both contributed to the index offending was appropriate to be made on the balance of probabilities. The applicant argued a requisite reduction to the applicant's sentence in relation to both factors was required, unless the expert evidence of the intellectual deficits was rejected.
A further submission was that the judge's consideration of the applicant's mental condition did not seem to have encompassed whether the cognitive deficits diminished his moral culpability or whether less emphasis ought to have been placed on specific and/or general deterrence.
The applicant contended the judge fell into House v The King [24] error in that this Court could not be satisfied that her Honour took into account a material consideration being the applicant's cognitive deficits. Furthermore no reasons were given as to any reduction of moral culpability or the impact of general or specific deterrence in the light of the unchallenged expert evidence.
The Crown pointed out that during the proceedings on sentence it was not submitted on the applicant's behalf he had a mental condition which contributed to his offending in a material way or reduced his moral culpability. The Crown submitted that notwithstanding the absence of a submission linking the applicant's mental condition to the commission of the offences, her Honour clearly took the applicant's mental condition into account in a manner favourable to him.
The Crown argued that although the judge did not refer to "moral culpability" in terms, it was clear from the sentencing remarks that her Honour considered there were features of the applicant's profile which contributed to the commission of the offences and took them into account, including the evidence regarding his susceptibility to aggression and his cognitive deficit.
The Crown referred to the applicant's prior criminal history and his breach of an ADVO and submitted that appropriate weight was given by the judge to specific deterrence and general deterrence. There was no error, the Crown argued, in the manner her Honour took into account the evidence concerning the applicant's mental condition.

Consideration

The submissions made in this Court on the applicant's mental condition bear scant resemblance to the submissions made to the judge by the applicant's counsel. During oral submissions, his counsel said to the judge: "In regard to the issue of a mental condition, he has a mental condition in regard to he has a slight intellectual disability. I don't (sic) understand from both the psychologist and the psychiatrist - he was diagnosed with depression. He's being medicated for that depression and one of the things about being medicated for depression is you don't exhibit the signs of it anymore so in my respectful submission it doesn't mean it's not there because he's still medicated. So in my respectful submission I'm not saying that it contributed to the offences, but it is a matter your Honour can take into account in regard to sentencing him." [25] (Emphasis added).
When addressing general deterrence, the applicant's counsel put to the judge: "In regard to the issue of general deterrence, the authorities are that domestic violence is a matter where a message has to be sent to the community, so general deterrence is something your Honour needs to take into account." [26]
As to specific deterrence, counsel said: "…[T]he fact that he has these substance abuse disorders that he's now addressing properly and not just by himself, taking all those matters into account, your Honour, specific deterrence might take a lesser role in this particular case. The conditions that he suffers from, I'm not suggesting that they contribute and I can't suggest with substance abuse, your Honour, because your Honour can't take into account the fact of self-intoxication, but specific deterrence should be somewhat reduced in this matter." [27] (Emphasis added).
The judge then raised the relationship between the applicant's pattern of behaviour involving violence, his substance abuse and prospects of rehabilitation.
Included in the discussion was the following exchange between the judge and the applicant's counsel: "HER HONOUR: So for example in Dr Elliott's report, this provides you with some support in indicating on p 6 that his substance use disorders appear the key factor in his offending behaviours, which is what you're advancing, but it does go on to say "as well as… and mood dysregulation". So it certainly is one of the factors and, according to Dr Elliott, it appears to be the key factor and that's what he's addressing through his intention to abstain and he has started undertaking courses such as are available and in fact doing a course twice. COUNSEL: Twice, which is the very course, if your Honour notes, that Dr Elliott is talking about. It was that conduct. That is the course in regard to addressing that particular conduct. HER HONOUR: But that's indicating there is something operating beyond substances. Even if he were, as he's indicating he has, to entirely abstain from any type of substance, there is still other factors at play." [28]
No submission was made that the applicant's mental condition contributed to his offending or that it operated to reduce his moral culpability. On two occasions, the applicant's counsel said he was not contending that there was a causal connection between the offences and the applicant's mental condition.
This Court has stated on many occasions that it is a court of error and not a forum for the revision and reformulation of the case made before the sentencing judge. Arguments not advanced in the court below will only be entertained in "rare" circumstances such as to correct a "miscarriage of justice or serious injustice". [29]
In the present case, it is unfair for the applicant to submit that the judge fell into House error when his case has been re-cast in this Court. In any event, the Crown did not submit that this Court should not entertain the applicant's arguments notwithstanding the change in his case, but contended that House error has not been established.
It is evident from the sentencing proceedings and the remarks on sentence that the judge gave careful consideration to the reports of Ms Hübner and Dr Elliott, despite the paucity of the applicant's submissions.
Her Honour was well aware of the opinions expressed by Ms Hübner and quoted from the psychologist's report. In her sentencing remarks, her Honour referred to the applicant's aggressive and hostile behaviours, his susceptibility to aggression, his difficulties with education and cognitive development.
Although her Honour made no express finding as to the applicant's moral culpability, such a finding was plainly made in the passage quoted and emphasised at [67] above. As McCallum J (as her Honour then was) observed in Egan v R (Bathurst CJ and Bellew J agreeing): "[37] A failure to attach the label "moral culpability" to any specific finding or give it a precise value in reaching an appropriate sentence does not reveal error. Indeed, the decision in Muldrock disapproves that kind of approach." [30]
I do not detect any error in her Honour's approach to specific and general deterrence. Simpson J stated (Adams and McCallum JJ agreeing) in Aslan v R [2014] NSWCCA 114 at [34], there is no presumption because an offender suffers from some mental impairment or disability that he or she is an inappropriate vehicle for general deterrence; or that the significance of specific deterrence is reduced or eliminated. Each case depends on its own particular facts and circumstances. The assessment of the extent that a person's mental health impacts upon a sentence is a discretionary decision to be made by the sentencing judge
The relevant facts in the present case included that these offences involved serious domestic violence, the applicant had an unattractive prior history of domestic violence offences against a number of victims including the complainant and he was in breach of the ADVO.
This Court has often emphasised the importance of specific and general deterrence, together with the need for denunciation and protection of the community when sentencing for a domestic violence offence. [31] Violence continues to be a blight on domestic relationships. The frequent resort to violence by partners cannot be tolerated in any form.
The applicant is a repeat domestic violence offender. It was well open to the judge to reject the applicant's submission on specific deterrence and to conclude notwithstanding the applicant's mental condition that specific deterrence played a "continuing and important role" and general deterrence and denunciation were of considerable significance.
I am not persuaded that the judge fell into House error. I would reject Ground 1 of the appeal.

Ground 2: The total aggregate sentence and non-parole period imposed were manifestly excessive having particular regard to:

i. The applicant's subjective case, including his mental condition;

ii. The fact that the sentence was imposed after a guilty plea;

iii. The fact that the applicant's evidence of remorse was accepted as genuine;

v. The finding of special circumstances based upon the prospects of rehabilitation, the need for prolonged supervision, the fact that the applicant was at the crossroads and to address accumulation

Argument

The applicant referred to the starting point of the aggregate sentence, taking into account the 10% discount for the plea as being approximately 8 years and 6 months and submitted that this starting point must be considered in the context of one sustained, but confined period of offending involving one victim for which the maximum penalties for the three offences were 10 years for the s 37(1) offence (count 2) and 5 years for the two offences of assault occasioning actual bodily harm (counts 3 and 5) in circumstances where the harm inflicted was found to be limited.
The applicant pointed out that the undiscounted starting point of the aggregate sentence was only 18 months shy of the maximum penalty for the s 37(1) offence. The applicant contended that his mental condition, as well as his background, did not warrant the imposition of such an aggregate sentence.
A further submission was that the indicative sentence of 6 years 2 months for the s 37(1) offence reflected manifest excess. If the ratio of 71% was applied to this indicative sentence, the applicant calculated that a non-parole period for the s 37(1) offence was approximately 4 years and 4 months. The applicant referred to the Judicial Information Research System ("JIRS") statistics which were said to disclose that only one offender received a heavier total aggregate/effective sentence or non-parole period than the applicant.
The applicant argued that his aggregate sentence was more commensurate with the range of sentences imposed for the repealed s 37 offence whereby choking coincided with the intent to commit a separate indictable offence attracting a maximum penalty of 25 years' imprisonment. It was submitted that despite the difference in maximum penalties, 35.6% of offenders in that cohort received a lower total aggregate sentence than the applicant and 50% received a lower aggregate non-parole period. A number of cases were cited from the Public Defender's Sentencing Table for s 37(1) offences and repealed s 37 offences.
A further submission was that her Honour, despite finding special circumstances, reduced the statutory ratio by only 4% which resulted in a manifestly excessive non-parole period.
On the issue of delay, the applicant's contention was that he had been in a "state of uncertain suspense" for 2 years 4 months on remand and the inevitability of a sentence of imprisonment would not detract from the uncertainty as to the length of the penalty imposed. The applicant submitted that the judge did not indicate in her remarks on sentence whether the considerable delay was taken into account to reduce his sentence.
The Crown was critical of the applicant's contention that the undiscounted starting point of the aggregate sentence was of assistance in considering whether the sentence was manifestly excessive.
As to the indicative sentence for the s 37(1) offence, the Crown argued that the undiscounted starting point of approximately 6 years 10 months did not approach the maximum penalty of 10 years. Furthermore, three offences were taken into account on a Form 1. The Crown submitted that counts 3 and 5 were serious examples of s 59(1) offences.
As to the complaint of delay, the Crown contended that the delay was neither unexplained, nor could it be considered unreasonable or inordinate. The Crown recounted the history of the proceedings. Following his arrest on the day he committed the offences, the applicant remained in custody. He was committed for trial from the Local Court on 28 March 2018 and his trial was listed to commence in the District Court on 10 September 2018. He pleaded guilty on his trial date and the matter was adjourned for sentence to 22 March 2019. On that date, the sentencing hearing was vacated on the application of the applicant's lawyer for the purpose of obtaining a psychiatric report and the matter was stood over for sentence to 5 July 2019. On 6 June 2019, the Court was advised that Legal Aid would not fund a psychiatric report. The Court ordered a Justice Health Forensic Mental Health Network Psychiatric Assessment Report and vacated the hearing on 5 July 2019, listing the matter for sentence on 24 October 2019.
The Crown submitted that there was no evidence the applicant had suffered any detriment as a result of the uncertainty as to the length of the sentence of imprisonment, which was inevitable. The Crown argued that it was clear her Honour had considered delay, which as a mitigatory factor, was a discretionary matter for the judge. Her Honour's finding that the applicant had demonstrated some progress towards rehabilitation, was the Crown argued, not insignificant and operated to his advantage.
In responding to the applicant's complaint about the adjustment of 4% in the statutory ratio, the Crown pointed out that the judge expressly stated that no lesser sentence would reflect the objective seriousness of the offences.
The Crown argued that the cases cited by the applicant were not truly comparable to the applicant's case and did not support his complaint of manifest excess.

Consideration

This Court has often stated that to succeed on a ground where a complaint of manifest excess is made, the applicant must establish that the sentence was unreasonable or plainly unjust. [32] Consideration of whether a sentence is unreasonable or plainly unjust is undertaken in the context that there is no single correct sentence and that sentencing is not a mathematical exercise. Sentencing judges are required to reach a sentence for an offence by balancing many different and conflicting features. [33]
It follows that sentencing judges are to be allowed as much flexibility as is consonant with consistency of approach and applicable sentencing principles, and appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. [34]
In oral argument, Ms Rodger, the applicant's counsel accepted that the written submissions founded on the notional or undiscounted starting point of the aggregate sentence were misconceived and no longer relied upon. It is well settled that consideration of the undiscounted starting point of an aggregate sentence is of no assistance in determining manifest excess. The reasons for this were explained by Hoeben CJ at CL in Elsaj v R [2017] NSWCCA 124 at [56]: "The opening proposition of the applicant to the effect that "a starting point of 22 years imprisonment is manifestly excessive in this case" is wrong and unhelpful. Section 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) makes it clear that discounts for a guilty plea are to be applied to the indicative sentences, not the aggregate sentence. To the extent that there is any doubt on that issue, it has been resolved by such cases as R v Nykolyn [2012] NSWCCA 219, Subramaniam v R [2013] NSWCCA 159, JM v R [2014] NSWCCA 297 and R v Cahill [2015] NSWCCA 53. There is in fact no "starting point" in respect of the aggregate sentence imposed in this case, either notionally or otherwise. The aggregate sentence represents the result of the instinctive synthesis of sentencing principles by the sentencing judge having regard to the particular facts of this case and the indicative sentences. The indicative sentences are those which he would have imposed had the aggregate sentencing procedure not been available."
Ms Rodger maintained the submission that the undiscounted starting point of 6 years 10 months (round figures) for the s 37(1) offence indicated manifest excess. Ms Rodger asked rhetorically "what would be the appropriate starting point for an offender who was found guilty after trial, had no intellectual deficit, no background of disadvantage and no remorse expressed?" [35] Ms Rodger said that the undiscounted starting point did not leave much room for an "upper end offender".
Ms Jeffrey's, who appeared for the Crown, accepted that the applicant's indicative sentence for the s 37(1) offence was towards the upper end of a permissible range but reminded the Court of the offences on the Form 1 and the applicant's prior history of domestic violence offences.
An indicative sentence is not itself amenable to appeal, although it may be a guide as to whether there is error in the aggregate sentence. Should the indicative sentence be assessed as being manifestly excessive, it does not necessarily follow that the aggregate sentence is manifestly excessive. As was said by R A Hulme J in JM v R at [40]: "… A principal focus of determination of a ground alleging manifest… excess will be whether the aggregate sentence reflects the totality of the criminality involved…" [36]
The applicant did not submit that the indicative sentences for counts 3, 5 and the offence on the s 116 certificate were manifestly excessive.
The JIRS statistics relied upon by the applicant reveal that out of a table of 15 aggregate sentences which include a s 37(1) offence, the applicant's aggregate sentence was the highest imposed. The applicant's indicative sentence of 6 years 2 months for count 2 was the second highest where the principal offence was a s 37(1) offence. The applicant's indicative sentence was exceeded by an indicative sentence of 6 years 9 months in another case.
Without re-stating all of the limitations on the use of sentencing statistics, the sentences imposed in other cases do not mark the outer bounds of a permissible sentencing discretion, but they do serve as a yardstick by which the applicant's complaint of manifest excess may be assessed.
Ms Rodger further sought to bolster her argument of manifest excess by referring to four cases that had been extracted from the Public Defenders Sentencing Table in relation to the repealed s 37 which carried a maximum penalty of 25 years imprisonment. In oral argument, Ms Rodger informed this Court that there were a total of seven cases in the Public Defenders Sentencing Table from which the four cases had been extracted. This Court was informed that the remaining three had been excluded as they involved sexual assault. [37] I may have misunderstood the applicant's counsel but three of the remaining cases relied upon include offences of sexual assault. [38]
The difficulty for the applicant is that such a limited number of cases does not establish a sentencing range for the repealed s 37 offence. Furthermore, the different offences in the aggregate sentences and the wide range of objective and subjective circumstances in the four cases lead to the conclusion that these sentencing decisions are of little assistance in determining the issue of manifest excess.
It is apposite to note that the JIRS statistics on the repealed section disclose that out of a table of 10 cases in which the offender pleaded guilty, 6 offenders received a higher aggregate sentence than the applicant.
Ms Rodger also placed some reliance on the sentence imposed in R v Hollaway, [39] which was said to be the only case in the Public Defenders Sentencing Table for s 37 offences. A single case does not establish a sentencing range. The JIRS statistics reveal that Hollaway received the lowest effective sentence out of a table of 17 offenders for s 37(1) offences.
In any event, the limitations on the use of comparable decision in complaints of manifest excess were articulated by Beech-Jones J in Rahman v R: "[29] The applicant sought to establish a case of manifest excess by reference to an analysis of sentences that were either imposed, or at least considered, by this Court in other cases concerning offences under s 61I. There are very significant limitations on an attempt to use such decisions for the purpose of establishing a case of manifest excess. As was noted in Hili (at [54]), a review of earlier sentences only establishes a range of sentences that have in fact been imposed. It does not establish that range is the correct range or that the upper or lower limits of that range are the correct upper and lower limits. A review of sentences imposed in other cases is "useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal" (Wong at [59]). Otherwise, in reviewing sentences considered in this Court, it is necessary to consider the different contexts in which they are considered, namely whether they involve a review of a sentence imposed at first instance for manifest excess, the imposition of a fresh sentence by this Court following a successful appeal by an offender, a Crown appeal against a sentence imposed at first instance, and the exercise of the sentencing discretion by this Court on a Crown appeal. Each of those contexts has its own set of applicable principles." [40]
Count 2 is a serious offence of domestic violence. After throwing the complainant on the bed, the applicant climbed on her, straddling her with his legs. As her Honour pointed out, not only did the applicant place one of his hands around the complainant's throat, he used his other hand to cover her mouth and nose. She could not breathe and was in pain. The judge did not err in the assessment of the objective seriousness of the offence.
The applicant's violent behaviour towards the complainant in the three Form 1 offences included the use of his fingers to open her mouth, biting her right cheek and ear, and head-butting her to the nose. These Form 1 offences demonstrated the greater need for personal deterrence and retribution for the s 37(1) offence.
The judge gave careful consideration to the applicant's subjective case and did not give undue weight to specific and general deterrence. Whilst the indicative sentence for count 2 is a stern sentence, I am not persuaded it is manifestly excessive.
In my opinion, the aggregate head sentence appropriately reflects the totality of the applicant's offending and his subjective case. The judge took into account that the offences were "part of a series of offences, temporally linked, and all [involved] offences of violence upon the same victim". [41] There was modest accumulation for counts 3 and 5 and the judge was mindful not to impose "a crushing sentence".
Although limited harm was caused in the violent offending that occurred in counts 3 and 5, there is no challenge to the judge's characterisation of these offences as serious. The applicant's acts of violence included slapping the complainant's face a number of times, grabbing her by the hair, throwing her onto a wooden table and kicking her in the body, chest and legs.
The applicant complains that the judge did not indicate in the sentencing remarks whether the considerable delay in the finalisation of his case was taken into account to reduce his sentence.
As a relevant sentencing factor favourable to an offender, the concept of delay is based on the notion of fairness. In the often quoted passage in R v Todd, Street CJ said (Moffitt P and Nagle CJ at CL agreeing): "Moreover, where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner." [42]
The procedural history of the applicant's case does not reveal any undue or inordinate delay. His case had an unremarkable journey through the Local Court and his trial date was fixed within a period of six months from committal to the District Court. He did not enter his pleas of guilty until the first day of the trial.
No reason has been advanced by the applicant explaining the late entry of his guilty pleas. It would be unusual for an offender to receive some sentencing benefit for the delay in the finalisation of a case that is a consequence of not accepting responsibility for offences until the trial date. Indeed, this would be contrary to the utilitarian benefit of a plea which allows for a substantial sentencing discount for an early plea.
The subsequent postponement of the sentencing proceedings was made at the request of the applicant's lawyers in order to obtain a psychiatric report. No evidence was given by the applicant before the judge that he had suffered any detriment as a result of the delay. Considerations of fairness to the applicant did not require the judge to give any weight to his being in a "state of uncertain suspense". However, the judge made a positive finding that the applicant had been able to demonstrate some progress towards rehabilitation whilst on remand. There is no merit in the applicant's complaint concerning delay.
The applicant complains that the modest reduction of 4% after a finding of special circumstances has resulted in a manifestly excessive non-parole period. Her Honour's finding of special circumstances resulted in a deliberate reduction in the statutory ratio between the head sentence and non-parole period to 71%. Her Honour determined that no lesser sentence would reflect the objective seriousness of the applicant's offending.
The ultimate constraint on a finding of special circumstances is that the aggregate non-parole must appropriately reflect the criminality involved in the offences. [43] In my opinion, the non-parole period of 5 years and 6 months is not "unreasonable" or "plainly unjust".
I have concluded that the aggregate sentence is not manifestly excessive. I would dismiss this ground of appeal.

Orders

I propose the following orders: 1. Leave to appeal granted. 2. Appeal dismissed.
FAGAN J: I agree with Price J.

Endnotes

Hübner report at par 27, p 7.
See [6]-[23] above.
ROS 4.
ROS 5.
ROS 5.
ROS 5.
ROS 5.
ROS 5.
ROS 5.
ROS 5.
ROS 5.
ROS 6.
ROS 8.
ROS 8.
ROS 8.
ROS 9.
ROS 9.
ROS 10, AB p 54.
ROS 10.
ROS 10.
ROS 10.
ROS 11.
ROS 12
(1936) 55 CLR 499 at 505; [1936] HCA 40("House").
Tcpt, 24 October 2019, p 28(30-40).
Tcpt, 24 October 2019, p 32(17-20).
Tcpt, 24 October 2019, p 32(30-39).
Tcpt, 24 October 2019, p 33(19-33).
Zreika v R [2012] NSWCCA 44 per Johnson J at [81]-[82]; 223 A Crim R 460; see also Sumptom v R [2016] NSWCCA 162; Pym v R [2014] NSWCCA 182; Griffin v R [2018] NSWCCA 259.
[2017] NSWCCA 206.
R v Hamid [2006] NSWCCA 302 at [86]; 164 A Crim R 179; Cherry v R [2017] NSWCCA 150 at [78].
Markarian v R (2005) 228 CLR 357; [2005] HCA 25 ("Markarian") at [25]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45; 204 A Crim R 434 at [59].
Markarian at [27]; Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2; 236 A Crim R 116 at [34].
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443].
Tcpt, 16 November 2020, p 5 (L 25-30).
[2014] NSWCCA 297; 246 A Crim R 528; see also Kerr v R [2016] NSWCCA 218 at [114].
Tcpt, 16 November 2020, p 5(34-35).
R v O'Connor [2014] NSWCCA 53; 239 A Crim R 487; Bland v R [2014] NSWCCA 82; 241 A Crim R 51; R v Cutrale [2011] NSWCCA 214.
[2016] NSWCCA 116.
[2020] NSWCCA 13.
ROS 11.
(1982) 2 NSWLR 517 at 519 F.
R v Simpson (1992) 61 A Crim R 58 at [63]. 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: 17 February 2021

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