Jeffries v R

Q. Do you feel that expression represents how you presently feel about physical violence? A. All I know is you know - like enough's enough. I'm on the enough's enough program on my own. That's my own program, enough's enough. I've had enough of gaol. I have had enough of sitting up here explaining myself. You know I know - I don't think that's the right way to deal with it. I'm going to ring the police and the whole lot of them when I get out. They can all get fucked. That's how I feel about it all today in society. I'll ring the police on the lot of them. I'll be a big dog. That's the way I feel." 33 Dr Samuels observed that the Applicant became quite agitated during his interview on 19 May 2007 and was standing up continually in the interview room, apparently causing some apprehension on the part of the officer observing through a window. Dr Samuels could find no evidence of neurovegitative symptoms of depression or anxiety, nor evidence of psychotic symptoms or suicidal ideation. He could find no clear-cut evidence that the Applicant was suffering from a major affective, anxiety or psychotic disorder. 34 Dr Samuels considered the Applicant had a significant poly-substance problem, involving alcohol and "speed", and that he "certainly has significant antisocial personality features with marked problems of anger and violence, which seem to be particularly precipitated by use of drugs and alcohol". Dr Samuels observed that the Applicant's demeanour during interview was "slightly intimidating and my clinical impression was that it would not take a great deal to provoke Mr Jeffries" (page 3). Dr Samuels observed that it appeared "somewhat unrealistic" for the Applicant to state that he was not going to have any more relationships. With respect to risk issues, Dr Samuels concluded (page 4): "In my view Mr Jeffries will continue to present an ongoing risk of violence and aggression to others, particularly if he continues with this pattern of substance misuse. He is a large and intimidating man and his potential for inflicting harm on others is not insubstantial."

Some Findings of the Sentencing Judge 35 His Honour recounted the facts of the offences for which the Applicant was to be sentenced, his extensive criminal history for offences of violence and contravention of apprehended domestic violence orders, the Applicant's family and work history and referred to the "disturbing psychiatric report" from Dr Samuels (ROS6). 36 His Honour found that KW's age was an aggravating factor as was the fact that the assaults upon her mother were carried out in KW's presence. His Honour accepted that this was a terrifying experience for KW which could have an effect on her for years (ROS8). 37 With respect to mitigating factors, his Honour observed that no remorse was expressed at the trial, although the Applicant had expressed regret in his evidence at the sentencing hearing, although his Honour said "It is not clear what his expressions of remorse mean, whether they are genuine for the victims or are for his own actions in the situation he now finds himself in" (ROS8). 38 His Honour observed that the Applicant seemed "to be blaming everyone else for his inability to achieve any steps towards rehabilitation" (ROS8). 39 The sentencing judge stated that s.86 offences often happen in a domestic situation, and that the courts are required to treat such offences seriously. His Honour adverted to the traumatic effect of the offences including "the real fear of out of control violence". His Honour referred to principles concerning the sentencing of domestic violence offenders in R v Hamid (2006) 164 A Crim R 179 at 191-196, including AW's entitlement to the protection of the law, her vulnerability, and the frightening violence perpetrated by the Applicant in breach of trust (ROS9-10). 40 His Honour stated (ROS10): "I have to be careful to get the right balance of punishment according to the law, the protection of the community, deterrence and the prospects of rehabilitation and with the psychiatric report I must be careful that I do not take undue recognition of the potential threat he may be and therefore use that threat to take the level of seriousness to a higher degree than would be seen when looking at the objective seriousness of the offences." 41 His Honour referred to the injury to AW's mouth and the pulling of tufts of hair from her head and the presence of her 15-year old daughter, KW (ROS11). His Honour said that a sentence of 10 years' imprisonment with a non-parole period of seven years and six months for the s.86(2)(b) offence would constitute (ROS11-13): "… appropriate punishment for this offence, and this should give the appropriate message to the others and the community of the seriousness of such an offence especially in a domestic situation. There is nothing in the subjective factors relating to the offender for any special circumstances to consider any leniency from the sentence considered appropriate. With his history of assault offences and contravening of apprehended domestic violence orders he has had sufficient experience and understanding of the law for the protection of others and yet has failed to realise his responsibilities in such a domestic situation, and even when given the opportunity through bonds and periods on parole, including a s12 suspended sentence and bond in 2002, he has failed to address any anger and alcohol problems he may have. I note the fact of a breach of a apprehended domestic violence order in February 2005 and a common assault in August 2006. So I find that I cannot very [sic] the normal ratio of parole to non-parole periods and with the periods that I will impose there will still be an appropriate period on parole available for him to exhibit and take any positive steps towards rehabilitation." 42 With respect to the s.86(1)(b) offence against KW, his Honour said (ROS13):

"Count two while relating to another victim aged only fifteen years at the time was in fact of lesser severity and yet part of the overall incident so whilst it incurs its own separate penalty in view of the way I have approached the seriousness of count one and considering the totality I will subsume the penalty for count two into the penalty for count one and will not provide for an accumulation.

Whilst he was arrested following this incident before me now that period of custody has now become part of the sentence for an assault which occurred in 2006 before this incident. That term expired on 17 May 2007, so whilst noting the principle of totality I will date the sentences I will impose now from the date of the jury's verdict of guilty." 43 His Honour was asked to deal, under s.166 Criminal Procedure Act 1986, with a related offence of breach of apprehended domestic violence order on 14 September 2006. His Honour convicted the Applicant but, having regard to the sentences already passed, determined not to impose any additional term of imprisonment and sentenced the Applicant to imprisonment to the rising of the court. 44 His Honour made an order under s.562ZU Crimes Act 1900 for the protection of AW, such order to operate for five years until 11 June 2012.

The Grounds of Appeal 45 The Notice of Appeal dated 21 January 2008 contained the following grounds: · Ground 1 - his Honour erred in failing to consider special circumstances in relation to the question of accumulation. · Ground 2 - the overall sentence imposed, as accumulated and taking into account totality and special circumstances, is manifestly excessive.

Submissions of the Parties 46 Ms Loukas, counsel for the Applicant, submitted that his Honour had erred in failing to consider the question of accumulation in determining whether "special circumstances" existed under s.44 Crimes (Sentencing Procedure) Act 1999. Reliance was placed upon his Honour's use of the term "special circumstances" in the passage reproduced at [41] above. Counsel submitted that his Honour had erroneously confined factors to be considered as special circumstances to the subjective circumstances of the Applicant, and did not turn his mind to the accumulation of sentences as an available special circumstance. 47 The Crown submitted that the sentencing judge was not considering special circumstances, for the purposes of s.44, at the point in the remarks on sentence where the term was used. Rather, the Crown submitted that his Honour was there referring to the Applicant's subjective circumstances. The Crown also points to the fact that defence counsel in the sentencing proceedings did not submit that special circumstances should be found by reference to accumulation. Further, the Crown submitted that the s.86(1)(b) sentence was made entirely concurrent with the sentence for the s.86(2)(b) offence. There was partial accumulation upon the sentence of 10 months' imprisonment imposed in the Local Court for the assault offence committed against AW a month before the present offences. The Crown submitted that no error had been demonstrated in the manner alleged in the first ground.

Decision 48 It is necessary that his Honour's remarks on sentence be fairly read for the purpose of determining whether the first ground has been established. His Honour's use of the term "special circumstances", in the passage cited at [41] above, raises a question as to whether the term was being used at that point in a s.44(2) sense. I am not satisfied that the term was being used by his Honour in that way at that point in the remarks on sentence. Rather, his Honour was adverting to the paucity of subjective factors which could operate in the Applicant's favour on sentence. 49 It is necessary to have regard to the way in which the matter was argued in the District Court where, as counsel for the Applicant conceded in this Court, the argument advanced on appeal was not put. 50 Further, the present ground must be assessed in the context of a case where the sentences imposed by his Honour were entirely concurrent, and there was a modest and partial accumulation upon the comparatively short sentence imposed for the assault upon AW in August 2006. The accumulation of sentences involved in this case was so limited that, at best, it could have played a small part only in the determination of special circumstances. 51 The Applicant has not demonstrated that his Honour erroneously confined factors which were capable of being considered as special circumstances in the case. 52 In my opinion, the first ground has not been made good.

Submissions of the Parties 53 Ms Loukas advanced this as the principal ground in oral argument. Counsel submitted that the sentences imposed upon the Applicant exceeded those available, in the proper exercise of sentencing discretion, for the objective seriousness of the offences involved and thus were manifestly excessive. Counsel developed this argument in two ways:

(a) by reference to statistical material and sentences imposed in other cases for s.86 (or its predecessor, s.90A) offences, which were said to establish a sentencing range, so as to support a conclusion that the present sentences were outside the range and thus manifestly excessive;

(b) by reference to factors which bear upon the objective seriousness of s.86 offences as stated in earlier cases. 54 Without seeking to diminish the objective seriousness of the Applicant's s.86 offences, Ms Loukas contended that a series of cases established a range of sentence, and that this range had been exceeded in this case by a considerable degree. A schedule was provided to the Court and a comparison invited with the short facts and sentences imposed in those cases. Counsel made particular reference to R v Stott [2005] NSWCCA 346 and Salvaggio v R [2007] NSWCCA 136, in support of this submission. 55 In addition, counsel referred to Judicial Commission sentencing statistics for 21 cases between December 2001 and March 2007 in which sentence was passed for aggravated detain for advantage involving infliction of actual bodily harm contrary to s.86(2)(b) of the Act. Counsel submitted that the Court should utilise these sentencing statistics, in accordance with the principles in R v Bloomfield (1998) 44 NSWLR 734 at 739, to support a conclusion that the present sentences were demonstrably excessive. 56 It was submitted that the present sentences were inconsistent with the pattern or range of sentences for this type of offence, and by comparison with sentences imposed in other cases where, it was submitted, more objectively serious crimes had been committed. 57 Counsel submitted that application of a non-exhaustive list of factors identified by Roden J, for s.90A offences, in R v Collett (NSW Court of Criminal Appeal, 7 June 1979, unreported) also served to demonstrate the manifest excess of the sentences passed in this case. When considered in the context of the present case, it was submitted that the offences were not at a level of objective seriousness that warranted imposition of the sentences passed by the sentencing judge. 58 Ms Loukas submitted that the sentencing judge did not apply the principle of totality in that his Honour did not "take a last look at the total just to see whether it looks wrong": Johnson v The Queen (2004) 78 ALJR 616 at [18]. It was submitted that his Honour's passing reference to the principle of totality (see [42] above), in the context of accumulation of the present sentences upon that fixed in the Local Court, did not demonstrate this his Honour had taken "a last look" as required and that the sentences ultimately passed reflected such an error. 59 The Crown submitted that it was necessary for the sentences to reflect the objective criminality of the present offences. The principle of totality is applied to avoid a crushing sentence, but also to require assessment whether the overall effect of the sentences is sufficient: R v KM [2004] NSWCCA 65 at [55]. The Crown submitted that his Honour undertook this task in sentencing the Applicant and that no error is revealed. 60 With respect to the table of cases and statistics relied upon by the Applicant, the Crown submitted that cases within the table include a mixture of offences under s.86(1)(a) and (b), as well as offences under s.86(2)(b) of the Act. It was submitted that the present offences were in a different class from those contained in the table. The present offences were committed in a domestic setting by an Applicant with a serious criminal record, and whilst he was on bail and subject to an apprehended domestic violence order in respect of the same victim. The Crown submitted that Salvaggio v R was of limited assistance, given that Smart AJ at [36] observed that the sentence imposed for the s.86 offence lay at the bottom of the permissible range. It was submitted that R v Stott was far removed from the present case factually, and provided no assistance in attempting to assess a range of sentences. 61 The Crown submitted that limited assistance is to be gained by a search for, and comparison with, sentences passed in other cases: R v George (2004) 149 A Crim R 38 at 47 [48]-[49]; R v Zhang [2004] NSWCCA 358 at [26]. 62 With respect to the sentencing statistics relied upon by the Applicant, the Crown accepted that the overall sentence imposed on the Applicant fell at the upper end of sentences recorded in respect of offences against s.86(2) of the Act. It was submitted, however, that the range is not established by statistics and care must be taken to ensure that statistics do not dominate the sentencing exercise. In addition, the Crown submitted that care was required in considering sentences imposed for offences under repealed s.90A of the Act, given the different terms of those provisions. 63 The Crown submitted that offences under s.86(1) were committed in a wide range of circumstances which make sentencing statistics of less assistance than in other cases: Heine v R [2008] NSWCCA 61 at [34]. 64 The Crown submitted that sentencing is discretionary and there is no single correct sentence: Markarian v The Queen (2005) 228 CLR 357 at 371 [27]. It was submitted that care should be taken with respect to the concept of "range". Judicial Commission statistics do not indicate that range, but reflect what was regarded as appropriate in the wide variety of circumstances in the cases reported in those statistics: R v Lao [2003] NSWCCA 315 at [32]-[33]. 65 The Crown submitted that the sentencing judge rightly took as a starting point the maximum penalty and considered the objective seriousness of the particular offences before the Court. It was observed that defence counsel in the District Court accepted that the offences fell within the mid-range of objective seriousness (T10, 5 June 2007). The Crown submitted that the fact that the overall sentence appears to be at the upper end of the range (in a statistical sense) is not demonstrative of error. Rather, it results from the sentencing judge's finding that the particular offences were so serious as to demand salutary punishment. His Honour gave reasons for this conclusion which, the Crown submits, supported the finding. 66 The Crown submitted that although consistency in sentencing is an important goal, equally important for the administration of justice is the public perception that sentences imposed by criminal courts are appropriate to the nature and seriousness of the crime committed: R v Fong (2002) 132 A Crim R 308 at 309-310 [7], 315 [41]. 67 The Crown relied upon R v Newell [2004] NSWCCA 183 at [32] with respect to factors relevant to an assessment of the objective seriousness of s.86 offences. Applying those principles to this case, the Crown submitted that the sentences selected by his Honour were open in the proper exercise of sentencing discretion. 68 The Crown submitted that, although the period of detention of the victims was less than 24 hours, this was but one factor relevant to assessment of objective seriousness. A further factor was the injury inflicted upon AW by the Applicant. It should be borne in mind, the Crown submitted, that s.86(2)(b) of the Act does not provide for a further gradation of offence involving injuries that amount to grievous bodily harm. This was a case, the Crown submitted, which involved infliction of actual bodily harm of a most serious type. 69 Further, it was submitted that the aggravated offence against AW was further aggravated by its commission in the presence of her daughter and with the Applicant threatening both of them with death. 70 The Crown submitted that his Honour correctly applied statements in R v Hamid at 195-197 [86] concerning the importance, in sentencing a repeat domestic violence offender, of specific and general deterrence, the requirement of powerful denunciation by the community of such conduct, the need for protection of the community and recognition of the harm done to the victim and the community as a result of crimes of domestic violence. The sentencing judge had given effect to these principles in passing sentence. This assisted a conclusion that the sentences imposed by his Honour were not manifestly excessive. 71 The Crown submitted that the Applicant's criminal history also demonstrated a continual disregard and contempt for the law, further emphasising the importance of deterrence in sentencing the Applicant: Veen v The Queen (No. 2) (1988) 164 CLR 465 at 477. 72 The Crown observed that his Honour was careful not to allow the prospect of future criminal conduct to have an impact on the sentencing discretion in the sense of preventative detention of some type (see [40] above). 73 The Crown pointed to the fact that there were no significant matters in mitigation. The Applicant had gone to trial and the victims were required to give evidence. The sentencing judge questioned the value of his belated expressions of remorse and observed that the Applicant seemed to minimise his criminality. The Crown pointed to his Honour's observation that the Applicant blamed others for his inability to achieve steps towards rehabilitation. It was submitted that these findings added to the importance of specific deterrence in this case. 74 The Crown submitted that his Honour paid due regard to the principle of totality in passing sentence. There was a measure of accumulation with the Local Court sentence, but the two sentences imposed in the District Court were made entirely concurrent. The Crown submitted that none of this reveals error in his Honour's understanding and application of the principle of totality. 75 In conclusion, the Crown submitted that the function of this Court is to determine whether error is demonstrated. The Crown submitted that no patent error had been demonstrated and that the Applicant had not established that the sentences imposed, although substantial, were manifestly excessive.

Decision 76 The submission of the Applicant is, in reality, that the final sentences imposed upon the Applicant were manifestly excessive and that a breach of the proportionality and totality principles may be inferred from the final result. In essence, Ms Loukas submits that the sentences imposed upon the Applicant were crushing sentences so as to be unreasonable or plainly unjust. 77 In my view, no patent error has been demonstrated by the Applicant in the sentencing decision in the District Court. No error of principle has been demonstrated in his Honour's approach to totality. The real question is whether the sentences imposed were manifestly excessive in the sense of being unreasonable or plainly unjust: Markarian v The Queen at 370-371 [25]. 78 The offences now contained in s.86 Crimes Act 1900 were inserted by the Crimes Amendment (Gang and Vehicle Related Offences) Act 2001. The second reading speech in support of that Bill (Hansard, Legislative Assembly, 17 October 2001, page 17,518) reveals that the provisions previously contained in s.90A of the Act had proven to be "confusing and uncertain". 79 The movement away from s.90A, and the enactment of the offence now contained in s.86, reinforces the need to concentrate upon s.86 cases for assessment of factors bearing upon the objective seriousness of s.86 offences. In R v Newell, Howie J (Bell and Hislop JJ agreeing) said at [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 section 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." 80 An argument was rejected in R v Newell at [31] that the most serious category of s.86(1) offences was confined to offences where the detention was for the purpose of ransom. 81 In R v Falls [2004] NSWCCA 335, Howie J again placed emphasis on the fact of detention, rather than the purpose of detention. His Honour emphasised at [42] that there are many factors, other than the purpose of the detention, that can be relevant to an assessment of the seriousness of a particular instance of the offence. 82 In R v Newell, Howie J at [43] emphasised the limited use of statistical information with respect to sentencing for s.86 offences: "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." 83 In R v Hamid, a s.86(1)(b) offence was committed in a domestic violence context by an offender with a history of domestic violence offences against several victims. At 203 [131], I said: "With respect to the s.86 offence itself, the gravamen of the offence, for the purpose of sentencing, is the unlawful detaining of a person: R v Newell [2004] NSWCCA 183 at paragraph 32; R v Falls [2004] NSWCCA 335 at paragraph 42. The s.86 offence was committed in the context of the Respondent's controlling and violent relationship with Ms Vasconcelos. The fact that the advantage to the Respondent was confined to a form of self-protection does not reduce the seriousness of the crime. An assessment of the objective seriousness of the offence involves an examination of the immediate acts of the Respondent in the context of his violent control of the victim." 84 The seriousness of a s.86(1)(b) offence committed in the context of an offender's controlling and violent domestic relationship has received recent emphasis from this Court: R v Burton [2008] NSWCCA 128 at [95]. 85 I do not consider that the Applicant's reliance upon other sentencing decisions establishes a range of sentences which assists an argument that the present sentences are manifestly excessive. A variety of circumstances is demonstrated in the cases to which the Court has been taken. Few have a domestic violence context. In this regard, I do not consider that the sentences passed in Salvaggio v R or R v Hamid assist the Applicant to establish a range of sentences. 86 Further, the sentencing statistics do not demonstrate a range of sentences to support the contention that the present sentences were manifestly excessive. The function of the courts is to sentence an offender by the application of correct sentencing principles, commencing with the gravity of the offence, and not by reference to the statistical median range of sentences handed down over a period of time: R v AEM and Others [2002] NSWCCA 58 at [116]. 87 It is clear that, in mathematical terms, the s.86(2)(b) sentence was a lengthy one which exceeded many other sentences imposed on other offenders for their crimes. That, however, is not the test. 88 The practice of approaching sentencing appeals by a search for, and comparison with, sentences passed in other cases is neither helpful nor supported by authority: R v Morgan (1993) 70 A Crim R 368 at 371; R v George at 47 [48]-[49]. 89 With respect to the extent of injury in a s.86(2) offence, Howie J in R v Newell observed at [37]: "While it may be accepted that the victim did not receive any serious injury, it does not follow that the offence was not one falling within at least the middle range of seriousness having regard to all the objective circumstances of the offence. Had the injuries been more serious, the sentence would have approached nearer the maximum sentence for the offence. The offence carried a maximum sentence of imprisonment for 20 years and the whole of the applicant's conduct and the consequences for the victim had to be considered when determining how serious the offence was as against the maximum sentence prescribed." 90 The Applicant stood to be sentenced for two serious s.86 offences, with maximum penalties of imprisonment of 20 years and 14 years respectively. Both offences involved the protracted detention by the Applicant of AW and her daughter for the advantage of fending off police intervention with respect to the Applicant's violence perpetrated against both victims. As in R v Hamid and R v Burton, the offence against AW was committed in the context of the Applicant's controlling and violent relationship with that victim. As part of the offence, he inflicted actual bodily harm of a serious (and bizarre) type upon AW, in a manner which involved an element of gratuitous cruelty. Separate acts of violence were committed upon KW who, in turn, was subjected to detention and threats. Great fear was instilled in both AW and her daughter. The fact that there were two victims of offences which formed part of the one course of criminality made the total criminality of the Applicant greater than had there only been one victim: Vaovasa v R (2007) 174 A Crim R 116 at 121 [19]. 91 Significant aggravating factors existed, given that the offences were committed whilst the Applicant was on bail for an offence of violence committed against AW and was subject to an apprehended domestic violence order intended to control his conduct towards his domestic partner. The present offences were committed in flagrant breach of both forms of conditional liberty, which were intended to protect AW. 92 The Applicant's criminal history contained repeated offences of violence against domestic partners, including two partners before AW. The Applicant had been provided with repeated opportunities by the criminal courts in this respect, but his recidivist conduct demonstrated a propensity to act violently towards his partners, irrespective of the existence of legal orders intended to control his conduct and to protect his partners. 93 The Applicant's prior convictions were pertinent to an assessment as to where, within the boundary set by the objective circumstances, sentences should lie by reference to his attitude of disobedience towards the law and increased weight to be given to retribution, personal deterrence and the protection of society: R v McNaughton (2006) 66 NSWLR 566 at 574 [26]. 94 There were no real mitigating factors operating in the Applicant's favour on sentence. He had pleaded not guilty and had required the victims to give evidence at trial. There was a belated expression of regret in the sentencing proceedings but, as the sentencing judge found, the Applicant's statement was surrounded by efforts to blame the victims. It was both open to his Honour, and appropriate, to pay no regard to such a claim for remorse. 95 The evidence before the District Court, including the report of Dr Samuels, did not suggest that the Applicant's prospects of rehabilitation were good. To the contrary, the Applicant's long history of domestic violence and aggressive conduct, demonstrated even during his evidence in Court, provided a basis for real concern about the safety of any future domestic partner of the Applicant and the community generally. 96 Although the sentence of 10 years' imprisonment with a seven-and-a-half year non-parole period was a substantial one for the s.86(2)(b) offence, it was to be served entirely concurrently with the sentence of five years' imprisonment for the s.86(1)(b) offence. Given the violent conduct of the Applicant towards KW, and the detention of the young woman in terrifying circumstances for a protracted period, it would have been open to his Honour to consider some accumulation of the sentence for this offence: Vaovasa v R at 121 [19]. This must be kept in mind in assessing the Applicant's principal complaint that the sentences involved were manifestly excessive. 97 Each of the purposes of sentencing identified in s.3A Crimes (Sentencing Procedure) Act 1999 had application in this case, but none in a manner that favoured the Applicant. It was necessary for the court to impose sentences on the Applicant:

(a) to ensure that the Applicant was adequately punished for his offences: s.3A(a);

(b) to serve the purpose of preventing crime by deterring the Applicant specifically, and other persons generally, from committing similar offences: s.3A(b);

(c) to protect the community and in particular, women within the community, from the Applicant: s.3A(c);

(d) to make the Applicant accountable for his actions: s.3A(e);

(e) to denounce the conduct of the Applicant: s.3A(f); and

(f) to recognise the harm done to the victims of the Applicant's crimes and the community: s.3A(g). 98 The promotion of the rehabilitation of the Applicant (s.3A(d)) played a subsidiary role in this case, given the pessimistic state of the evidence concerning his prospects of rehabilitation. 99 Although the total effective period of imprisonment of the Applicant is substantial, that result is explicable by reference to the objective seriousness of his crimes and the absence of any subjective factors operating in his favour. 100 The sentences are not manifestly excessive. They are not unreasonable or plainly unjust. It has not been demonstrated that the sentences lie outside the range of sentences open in the proper exercise of sentencing discretion in all the circumstances of the case.

An Issue Emerging From Evidence Filed on the Application 101 Although it is not necessary to do so, I should not conclude these reasons without referring to an issue that arose at the hearing of the application.

102 In accordance with common practice on applications for leave to appeal against sentence in this Court, a number of affidavits were filed and read on the conditional basis that the Court might have regard to them in the event that error is found and the Court considers s.6(3) Criminal Appeal Act 1912: R v Simpson (2001) 53 NSWLR 704 at 720-721 [79]; Baxter v R (2007) 173 A Crim R 284 at 286-287, 295, 299. Those affidavits revealed that the Applicant had undertaken a number of courses whilst in custody. 103 In addition, an affidavit of the Applicant affirmed 28 April 2008 was filed in which, amongst other things, the Applicant expressed sorrow for his offences and stated that he had undergone religious conversion. In reply, the Crown filed and read an affidavit on the same conditional basis. This established that the Applicant had sent a letter from prison to AW shortly prior to 30 January 2008. In the letter, the Applicant said that he knew that he should not be writing to the victim because of the prohibition in the domestic violence order. The Applicant claimed ongoing feelings for the victim, but then turned to the possible consequences for any male partner with whom AW may form a relationship. The letter said: "If any man thinks he loves you more than I do well I got news for him. I am training every day for him the man who thinks he loves you more than I do. I have turn [sic] to God but just for one round with the man who thinks he loves you more than I do I will grow horns and a tale [sic] for one round! With the man who thinks he loves you!! And that is when he will find out who God is!! Amen tell him. Show him if there is a man? God help him!! I am cracking my bones just thinking about him if there is one? Your [sic] mine right! I take back the lines I told you! Rember [sic] a 1000 arms can have you but only my hands can hold you! Rember [sic] you have taught me all about that!! A green eyes [sic] sense I have been in here. …" 104 On 7 May 2008, the Applicant pleaded guilty in the Dubbo Local Court to an offence, arising from the letter, of contravening a prohibition in a domestic violence order, an offence under s.562ZG(1) Crimes Act 1900. He was sentenced to 12 months' imprisonment to commence on 7 May 2008 and to expire on 6 May 2009. 105 A further affidavit of the Applicant affirmed 14 May 2008 was filed and read at the hearing in this Court on 15 May 2008. In this affidavit, the Applicant revealed the fact that he had been charged with, and pleaded guilty to, the offence arising from the letter. Other affidavits filed on the application disclosed that the Applicant had mentioned this charge, at an earlier time, to his solicitor, who had not considered it necessary to include it in his first affidavit of 28 April 2008. 106 I should explain why reference is being made to this aspect of the application. Had the Court found error and moved to resentence the Applicant, it would have been necessary to make findings for the purpose of sentence.

107 The Applicant's post-sentence conduct, involving an offence of breaching the prohibition order by sending the letter to AW, would have been relevant and admissible, not to increase punishment for the principal offences, but to utilise as part of an assessment of the Applicant's prospects of rehabilitation: Douar v R (2005) 159 A Crim R 154 at 179 [131]. 108 As mentioned earlier, the sentencing judge had (correctly) assessed the Applicant's prospects of rehabilitation as being poor. The Applicant's affidavits claimed a level of remorse for his actions and a level of insight, together with a claim of religious conversion, which could bear upon his prospects of rehabilitation. Such a claim would be undermined by a letter such as that sent by the Applicant to AW in January 2008. The facts on sentence in the Local Court recited that AW had believed that she was safe from the Applicant due to his incarceration and the order of the Court, but felt fearful and threatened on reading the letter. Such feelings on the part of the victim were entirely understandable. On its face, the letter constituted an attempt by the Applicant to maintain control and domination of the victim, even when he was in prison serving lengthy sentences for his crimes. 109 If the Court had found error and considered whether some other sentence was warranted and should have been passed (s.6(3) Criminal Appeal Act 1912), regard would have been given to the evidence admitted before this Court. The January 2008 letter would not have assisted the Applicant. However, that point has not arisen as the Applicant did not establish error on the part of the sentencing judge. 110 These events emphasise the need for great care in the preparation of material which is to be placed before this Court in accordance with the practice referred to at [102] above.

Proposed Orders 111 I propose that leave to appeal be granted, but that the appeal be dismissed. 112 McCALLUM J: I agree with Johnson J.

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