Jibran v R

The Applicant's Grounds of Appeal

1. The Applicant relies upon the following grounds of appeal: 1. Ground 1 - His Honour erred in not providing reasons for his findings as to the objective seriousness of each offence. 2. Ground 2 - His Honour erred, by taking into account an irrelevant consideration, in finding the Applicant to not be genuinely remorseful. 3. Ground 3 - His Honour erred, by failing to take into account a relevant consideration, in deciding when to commence the Applicant's sentence. 4. Ground 4 - His Honour erred, by failing to take into account a relevant consideration, in deciding whether to find special circumstances. 5. Ground 5 - His Honour erred in failing to afford the Applicant procedural fairness in respect of his decision to not find special circumstances. 6. Ground 6 - Not pressed. 7. Ground 7 - The aggregate sentence of imprisonment imposed on the Applicant is manifestly excessive.
2. At the hearing before this Court on 26 February 2020, the Applicant was granted leave to rely upon a further ground of appeal: (h) Ground 8 - His Honour erred in finding that the driving which constituted the related offence of driving whilst disqualified occurred on the night of the Applicant's other offences.

Facts of Offences

1. A Statement of Agreed Facts, signed by the Applicant, was tendered in the District Court. The Applicant is Released on Bail
2. The Applicant (then aged 30 years) was released from the Surry Hills Police Station at about 6.00 pm on 4 May 2018. The Applicant's criminal history indicated that he was charged that day with offences of possess identity information and goods in custody. He had been granted conditional bail that day in the Local Court with the conditions including a requirement that he not be seated in the driver's seat of a vehicle at any time for any purpose and a curfew condition that he not be absent from his Bankstown home between the hours of 9.00 pm and 6.00 am.
3. The Applicant has never held a driver's licence and, at the time of the present offences, was disqualified from driving until 2024.
4. After being released at Surry Hills, the Applicant contacted a young female friend (the victim) to ask for a lift. He knew the victim as they had been in an intimate relationship in the preceding months. The Applicant Travels to See the Victim
5. The victim was not able to provide the Applicant with a lift so the Applicant travelled to meet the victim, who was at a friend's place in Merrylands. He arrived at about 10.00 pm.
6. The Applicant then drove with the victim in a Holden Commodore from Merrylands to Concord, the suburb where the victim resided. The victim did not want the Applicant to know the exact whereabouts of her home so she directed him to stop near her home and told him to wait in the car whilst she went to retrieve property belonging to him.
7. For reasons that are unexplained in the Agreed Statement of Facts, the victim returned to the car and the Applicant drove them both in the direction of the city so that he could meet a friend. The Applicant and the Victim Argue
8. At around midnight, while en route and driving through Rockdale, the victim told the Applicant that she was getting tired. The Applicant was trying at that time to arrange for a hotel through a friend. Whilst they waited for confirmation of that arrangement, the victim continued to tell the Applicant that she wanted to go home to sleep. The Applicant argued with her and said he wanted to spend the night with her.
9. At 12.34 am on 5 May 2018, the victim booked a taxi on her mobile phone. The taxi arrived, however, the victim did not get into it as the Applicant agreed to drive her home instead. The Applicant then drove the victim back to Concord, but was arguing with her about why she would not go home with him.
10. They arrived in Concord and the victim told the Applicant she needed to sleep and that they would talk the next day. The Applicant responded that he would sleep in his car. The victim got out of the car and began walking up the street. The Applicant called out her name and asked her to talk in the car. She told him she did not want to and kept walking.
11. The Applicant drove the car in the victim's direction and then got out of the car. The two continued to argue on the street. The Applicant asked if they could spend the night together. The victim told him she wanted to go home to sleep and threatened to call the police. The Victim Makes a "000" Call
12. The Applicant continued arguing with her so the victim called "000" on her mobile phone.
13. During the "000" call, the victim referred to the Applicant as her boyfriend and told the operator that he "is follow me - want to come back home sleeping. He won't let me go home". The Applicant's voice could be heard in the background of the "000" call. The Applicant Forcibly Detains the Victim
14. The victim was giving her address to the operator when the Applicant took her phone and put his hand over her mouth. He then pushed her along the street towards his car. The victim could be heard screaming on the "000" recording.
15. The Applicant pushed the victim inside the back of the car behind the driver's seat. He locked the door and then got in to start the car. The Applicant swung his arm at the victim but did not connect with her as she was behind the driver's seat.
16. The Applicant drove off and threw the victim's phone out the car window, thereby breaking it (the damage property offence). Pieces of the phone were later found by police.
17. Residents living in the area heard an argument taking place outside on the street and someone calling for help, before a car "screeched" off. Part of the incident was captured on CCTV.
18. In the car, the victim asked the Applicant to stop and said that she was hurt but the Applicant continued to drive. The Agreed Statement of Facts records that the Applicant was angry and "saying stuff". The victim thought about jumping out of the car as she did not know what the Applicant wanted to do to her. The Victim Leaps from the Moving Vehicle and Hides in a Nearby Property
19. When the victim saw there were no cars beside them, she jumped out of the car whilst it was still being driven by the Applicant. As a consequence of jumping out of the moving car, the victim sustained two large grazes to her left leg, a cut to her right foot, and grazes to her left elbow. These injuries constituted the actual bodily harm for the purpose of the offence of aggravated kidnapping.
20. The victim was too scared to try to outrun the Applicant so she climbed over the fence of a nearby house and hid in the backyard. The Applicant Goes Looking for the Victim and the Victim is Assisted by Residents
21. Soon after, the residents of that house were both awoken by the doorbell ringing. The male occupant answered the front door and saw the Applicant on the porch. The Applicant said "mate, mate my girlfriend is in the back of your house" and "She's a meth addict. She's in your backyard". The male occupant thought the Applicant sounded demanding. The Applicant said "Open the gate mate". The male occupant replied "No. Go away. I'm calling police" and closed the door.
22. The occupants went to the back of their house and saw the victim in the pool area. She had no shoes on and had an injury to her knee. The female occupant of the house, who was a nurse, assisted the victim. The female occupant did not observe the victim to be affected by drugs. Police Attend and the Victim is Taken to Hospital
23. The occupants of the house made a "000" call at around 1.32 am. Police and paramedics responded to the call. The victim was taken to Burwood Police Station and then to Concord Hospital for treatment for her injuries as she could not walk on her own.
24. At about 9.00 am that day, police spoke with the victim at the hospital and noticed that she was missing some pink false toenails (those, as well as her sandals, were later found where the Applicant had first grabbed her and forced her into the car). Police were informed that a man identifying himself as "Jim Beam" (clearly the Applicant) had called the hospital and had asked to speak to the victim, but was not allowed to do so. The Applicant is Pulled Over by Police
25. At about 10.50 am on 5 May 2018, police were notified that the Applicant had arrived at Concord Hospital looking for the victim. Shortly afterwards, police pulled over the Applicant's car on Concord Road and arrested him.
26. Although the Applicant had been driving whilst disqualified on the evening of 4-5 May 2018, it was the Applicant's driving after 10.00 am on 5 May 2018 which constituted the charge of driving whilst disqualified to which he pleaded guilty and was to be sentenced. Regrettably, this aspect was not made clear in the Agreed Statement of Facts. However, the Court Attendance Notice for this offence specified the time of this offence as between 10.00 am and 11.00 am on 5 May 2018.
27. When the Applicant's car was pulled over, he had a passenger in his car. CCTV was later obtained which showed this passenger in the Concord Hospital's Emergency Department waiting area. The passenger provided a statement confirming that he attended the hospital with the Applicant and that they were there to see the Applicant's "missus". The Applicant is Interviewed and Charged
28. Following the Applicant's arrest, he provided a version of events that he later adopted in an electronically recorded interview with police. He denied the victim's version of events, stating that she bit him on the finger and ran away and that she had fallen over someone's fence. He denied being at Concord Hospital on the morning in question.
29. The Applicant was charged with the present offences on 5 May 2018. He was refused bail and has remained in custody since that date.

The Applicant's Subjective Circumstances

1. The Applicant was born in December 1987 and was 30 years of age at the time of the offences.
2. As noted earlier, the Applicant has never held a driver's licence. His prior criminal history included convictions for driving whilst never having been licenced and fraudulently altering a driver's licence (2007 and 2009), driving whilst disqualified (2009, 2011, 2017 and 2018), stealing (2014), assault (2015) and possession of a prohibited drug (2017).
3. Prior to May 2018, the Applicant had not been sentenced to a term of full-time imprisonment. Sentencing orders had included a community service order (for driving whilst disqualified in 2009 and stealing in 2014) and an intensive correction order (for driving whilst disqualified in 2011). Other sentencing orders included fines and good behaviour bonds as well as periods of disqualification.
4. On 2 July 2018, the Applicant was sentenced in the Local Court to imprisonment for two months commencing on 3 May 2018 and concluding on 2 July 2018 for the offences of possession of identity information to commit an indictable offence and goods in custody, being the offences for which the Applicant had been released on bail on the evening of 4 May 2018.
5. A Sentencing Assessment Report dated 5 May 2019 was tendered at the District Court sentencing hearing. The author of that report noted the Applicant had been separated from his former wife for 18 months and that their six-year old son remained in her care. The Applicant informed the Community Corrections Officer that he had been unemployed for a period of two months prior to his arrest and that, before then, he had been subcontracting as a cabinet maker for various wardrobe companies in the Sydney metropolitan area.
6. The Applicant stated that upon release he would be returning to his previous employment. The Community Corrections Officer noted that the Applicant declined to provide "consent for Community Corrections to verify this information with his employer".
7. With respect to the offences, the Community Corrections Officer noted that the Applicant "appeared to accept responsibility for his actions" but that "despite this, he apportions some blame towards the victim". The Community Corrections Officer noted that the Applicant "has never thought about his consequences towards driving without a licence" and that he "recounted that transporting himself to work (or various other locations) is more important than community safety".

The Sentencing Hearing

1. The sentencing proceedings were heard at the Parramatta District Court on 6 February 2019. A number of documents and reports were tendered in the Crown and defence cases on sentence. In addition, the Applicant and his brother gave evidence.
2. Both the Crown and the solicitor for the Applicant relied upon written submissions with short oral submissions then being made. The sentencing Judge then proceeded to deliver ex tempore sentencing remarks on 6 February 2019.
3. Having regard to issues raised on the appeal, it is appropriate to refer to aspects of the sentencing hearing.
4. It was agreed between the parties that the Applicant had been in custody for a period of seven months and five days (2 July 2018 to 6 February 2019) solely referable to the present offences (T2, 6 February 2019). As noted earlier, the Applicant had served a sentence of two months' imprisonment from 3 May 2018 to 2 July 2018 for unrelated offences.
5. The Applicant gave evidence and, as noted earlier, he stated that what he had told Mr Fordyce was true and accurate with the Applicant acknowledging as well that the contents of the Sentencing Assessment Report were true and accurate (T4-5, 6 February 2019). The Applicant acknowledged that he had not acted appropriately towards the victim on the evening of 5 May 2018 and that he had acted in a similar way during his marriage when under the influence of drugs. The Applicant stated that he was prepared to undertake programs to assist his capacity to address domestic violence and drug abuse issues.
6. The Applicant confirmed that he would live with his mother at Busby when ultimately released from custody. It was noted that his mother was present in Court at that time.
7. The Applicant's solicitor then asked (T7-8, 6 February 2019): "Q. Will you work when you get out of custody? A. Yes. Q. How do you know that-- A. My previous employer, my brother has spoken to him and he's agreed to take me back. Q. Which brother spoke to him? A. Hunza. Q. Hunza, who is [in] Court today? A. Yes. Q. What's the name of the company that you would be working with? A. Kitchen Land. Q. That's a previous employer? A. Yes. BROCK: No further questions for this witness. HIS HONOUR: What weight can I give to those last two questions and answers when in the sentencing assessment report it is said that your client 'declined to provide consent to community correction verifying certain information with his employer'? Why would I give any weight to what he said? BROCK: Your Honour, I'll allow my client to-- HIS HONOUR: No, I'm asking you. Why would I give any weight to what he said, in that context, and also in relation to what he says is his relationship with his ex-wife when he refused community corrections to contact her? BROCK: The only submissions I can make is that he has, in terms of employment, relied on his brother to assist him with his ex-employer. HIS HONOUR: That's what he says. When the Crown and the Corrective Services have no opportunity to test it because he wouldn't let them approach him and he has a history of dishonesty."

Sentencing Remarks

1. Once again, having regard to the grounds of appeal, it is appropriate to refer to parts of his Honour's ex tempore sentencing remarks: R v Jibran [2019] NSWDC 317. After reciting the facts of the offences, his Honour said (at [28]-[32]): "28 It is the placing of that young woman in that motor vehicle, and driving it in the way that you did, that constitutes the offence of aggravated kidnapping. 29 It is the destruction of her mobile phone, by throwing it out of the window, that constitutes the offence of damage property. 30 It is the driving of the motor vehicle on that night which constitutes the offence of driving whilst disqualified. 31 In terms of objective seriousness of the offences for offences of their kind: the kidnapping is slightly below a mid-range offence; the damage to property is towards but not at the bottom … of the range; and the disqualified driving is at the top of the range. 32 Each of these offences is additionally aggravated by the fact that you were on bail."
2. His Honour then referred to the psychological report and Sentencing Assessment Report (at [35]-[37]): "35 Your subjective circumstances have been advanced through two documents: first, a psychologist's report dated 24 January 2019; and secondly, by a sentencing assessment report dated 5 February 2019. 36 To a large extent, the two documents have some degree of commonality. But there are two significant respects in which they are in conflict. In the psychologist's report, the impression given is that your relationship with your wife is one which you hope to be able to reconcile. However, when that issue was raised by the community corrections officer for the purpose of the sentencing assessment report, you refused consent to that officer contacting your ex‑wife - and therefore I discount what you told the psychologist. 37 In the psychologist's report some history is given of your work. It states that your previous employer (you worked as a cabinetmaker) would have work for you. You refused permission to the community corrections officers to check that asserted fact. I therefore discount what you told the psychologist."
3. The sentencing Judge then recited aspects of the Applicant's family history and his drug use and continued (at [41]-[45]): "41 At the time that you committed the offence on this young woman, you had taken methylamphetamine. The concept of a man as big as you, out of control on ice, is a terrifying prospect. 42 You have not sought treatment for your extensive and prolonged use of illicit drugs. You have not sought assistance in relation to your anger issues. Indeed, in the expert's report tendered on your behalf, the psychologist concludes that you constitute a high risk of intimate‑partner violence as a result of your emotional coping and drug abuse issues. 43 You purported to express remorse in the witness box today. But as the author of that expert report himself noted, you reflected minimisation of the severity of the violence on that woman. I am not satisfied on the balance of probabilities that you are genuinely remorseful. 44 By reference to your own psychologist's report, as well as the sentencing assessment report, your prospects of rehabilitation are guarded at best. 45 This is not your first criminal offence. You have numerous offences of driving without a licence or whilst disqualified. You have one prior offence of violence. You have offences of dishonesty. You are not entitled to the leniency which, in appropriate circumstances, is extended to a first offender."

Ground 1 - His Honour Erred in not Providing Reasons for his Findings as to the Objective Seriousness of Each Offence Applicant's Submissions

1. Mr Howell, counsel for the Applicant, noted that findings concerning the objective seriousness of the offences were confined to what was said by his Honour at ROS[31] (see [80] above). It was submitted that his Honour did not identify any of the factors which were taken into account in arriving at each of these conclusions concerning objective seriousness.
2. It was accepted that the characterisation of the degree of objective seriousness of an offence is a classic feature of the exercise of sentencing discretion which this Court will be slow to disturb: Mulato v R [2006] NSWCCA 282 at [37].
3. It was submitted, however, that this ground of appeal does not challenge the conclusions reached by the sentencing Judge, but the sufficiency of the reasons for those conclusions. Whilst acknowledging that a sentencing Judge is not expected to provide elaborate reasons for a conclusion about objective seriousness, it was submitted that the parties and this Court need to understand the basis for the conclusion reached: Simpson v R [2019] NSWCCA 137 at [32].
4. It was submitted that the findings were important to the sentencing process and that error had been demonstrated under this ground of appeal. Crown Submissions
5. The Crown submitted that the reasons of the sentencing Judge made sufficiently clear factors which bore upon the objective seriousness of the offences. It was submitted that the sentencing Judge's recital of the facts shed light upon the aspects of the offences which led to the particular findings of objective seriousness made and not challenged by the Applicant.
6. The Crown acknowledged that the sentencing Judge was technically mistaken in believing that the driving whilst disqualified offence occurred when the Applicant was driving during the course of the aggravated kidnapping offence, rather than on the next day. That issue is the subject of a separate ground of appeal (Ground 8).
7. The Crown submitted that the Court should keep in mind that the sentencing judgment was delivered ex tempore when considering a ground of appeal which did not challenge the particular findings, but asserted an insufficiency of reasons with respect to the findings. The Crown submitted this ground of appeal had not been made out. Decision

Ground 2 - His Honour Erred by Taking into Account an Irrelevant Consideration in Finding that the Applicant was not Genuinely Remorseful Applicant's Submissions

1. Counsel for the Applicant accepted that it was a matter for the sentencing Judge to determine whether a finding should be made that the Applicant was remorseful.
2. Counsel noted that the Crown had acknowledged the Applicant's remorse in its written submissions in the District Court and had not cross-examined the Applicant concerning remorse at the sentencing hearing.
3. It was submitted for the Applicant that the sentencing Judge's finding concerning remorse (at ROS[43] at [82] above) disclosed error in that his Honour appeared to have treated the statement in Mr Fordyce's report concerning minimisation of the severity of violence as relating to the victim in this case, rather than the Applicant's former wife. Counsel for the Applicant emphasised that at no point in Mr Fordyce's report had it been suggested that the Applicant had minimised the severity of the violence directed towards the victim.
4. Mr Howell acknowledged that it was possible to read his Honour's observation as referring to the Applicant's former wife and not the victim, but he submitted that that was not the appropriate construction to be reached in the case.
5. Counsel submitted that the sentencing Judge had taken into account an irrelevant consideration in making the finding concerning remorse, as the foundation for the finding was based upon an aspect of the evidence unrelated to the present victim. Crown Submissions
6. The Crown submitted that it was open to the sentencing Judge to make the relevant finding concerning the Applicant's remorse. In construing what his Honour meant at this part of the sentencing remarks, the Crown noted once again that these were ex tempore sentencing remarks so that some leeway should be allowed in that respect.
7. The Crown submitted that, when read in context, the challenged statement was no more than a passing observation that the Applicant's attitude to his past offending behaviour towards his former wife was consistent with his Honour's own finding concerning remorse in this case.
8. The Crown submitted that this ground of appeal should be rejected. Decision
9. The onus lay upon the Applicant to satisfy the sentencing Judge, on the balance of probabilities, that he was genuinely remorseful for the subject offences: s.21A(3)(i) Crimes (Sentencing Procedure) Act 1999.

Ground 3 - His Honour Erred by Failing to Take Into Account a Relevant Consideration in Deciding When to Commence the Applicant's Sentence Applicant's Submissions

1. The Applicant submitted that the sentencing Judge was wrong in stating (at ROS[52] at [85] above) that the Applicant had been in custody "for seven months and five days". As at 6 February 2019, he had been in custody since 5 May 2018 so that his period in custody was nine months.
2. It was submitted that the sentencing Judge did not have regard to the fact that the Applicant had been in custody on these matters since 5 May 2018 although he was serving sentences for other matters as well in the two-month period ending on 2 July 2018.
3. It was submitted, in the alternative, that if the sentencing Judge was aware of the entire period, he provided no reasons why the exercise of sentencing discretion resulted in commencement of the Applicant's aggregate sentence on 5 July 2018, being three days after his pre-existing sentences had expired. Crown Submissions
4. The Crown submitted that his Honour had a clear understanding of the Applicant's custodial position since 5 May 2018 as a result of information contained in the Crown sentencing summary and a discussion with the legal representatives for the parties early in the sentencing hearing (see [66] above) and the Crown written submissions.
5. It was submitted that his Honour's clear intention was to backdate the sentence in such a way that the Applicant would receive credit for time spent in custody that was referable to these offences only.
6. The Crown acknowledged that his Honour had made a mistake, in the nature of an oversight or miscalculation, by directing that the sentence commence on 5 July 2018, rather than 2 July 2018 which was the correct date for the Applicant's custody solely referable to these offences.
7. The Crown submitted that such an error was of the type recognised in Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255, where this Court may make a discrete adjustment to the commencement date of the sentence without embarking upon a resentencing exercise as would be required in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. Decision
8. The sentencing Judge was provided with clear information, both in writing and orally, concerning the Applicant's custodial position since 5 May 2018. It was stated that the sentences of imprisonment for unrelated matters expired on 2 July 2018.

Ground 4 - His Honour Erred by Failing to Take Into Account a Relevant Consideration in Deciding Whether to Find Special Circumstances Applicant's Submissions

1. Counsel for the Applicant submitted that, as noted earlier (at [78]), a finding of special circumstances was sought in the District Court upon two bases: 1. that if the commencement of the Applicant's sentence was accumulated upon his existing Local Court sentences, then there was a risk that the ratio as between the total period of custody and any non-parole period would exceed 75%; and 2. that the Applicant's prospects of rehabilitation may justify a departure from the statutory ratio.
2. It was noted that the Crown written submissions had said that a finding of special circumstances was open in this case (see [74] above).
3. It was submitted for the Applicant that, having received written submissions from the parties, the sentencing Judge did not raise with either side his inclination not to find special circumstances and the basis for such a view. It was submitted that the reasons for declining to find special circumstances (at ROS[53] at [85] above) did not refer to the Applicant's first submission based upon the accumulation of the present sentence on the earlier Local Court sentences.
4. The complaint in the present ground of appeal is that, in this respect, his Honour had failed to have regard to a relevant factor which had been relied upon in submissions in the District Court. It was submitted that there was nothing in the sentencing remarks which would support an inference that his Honour turned his mind to the impact of accumulation and totality on the statutory ratio and whether that provided a principled basis for a finding of special circumstances in the Applicant's case: GP v R [2017] NSWCCA 200 at [23]. Crown Submissions
5. The Crown submitted that the sentencing Judge was clearly aware that the Applicant had served a sentence of two months' imprisonment between May and July 2018 and that this was a factor which had been mentioned at the sentencing hearing.
6. The Crown submitted that accumulation upon an existing sentence will not always be a material consideration to be adverted to by a sentencing Judge. Whether or not it is a relevant consideration in a given case will depend upon the effect of the accumulation upon the ultimate ratio between the custodial component and the parole period of the sentence.

Ground 5 - His Honour Erred in Failing to Afford the Applicant Procedural Fairness in Respect of his Decision to Not Find Special Circumstances Applicant's Submissions

1. In support of this ground, counsel for the Applicant relies upon the decision of the High Court of Australia in DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 at [39] where the Court said (footnotes omitted): "Notwithstanding the adversarial nature of criminal proceedings, the public interest in the sentencing of offenders is such that the sentencing judge (or the appellate court in the case of re-sentencing) is not constrained by any agreement between the parties as to the appropriate range of sentence or by concessions made by the prosecutor. Where, however, the judge (or the appellate court in the case of re-sentencing) is minded not to act on a concession made by the prosecution, the failure to put the offender on notice of that inclination and give him or her an opportunity to deal with the matter by evidence or submissions will ordinarily be a miscarriage of justice. In the absence of such an indication, it will be reasonable for the offender to conduct his or her case upon the understanding that the concession will be accepted and acted upon by the court."
2. The complaint under this ground of appeal is that the sentencing Judge did not put the parties on notice of his disinclination to accept what was said to be a joint position of the parties on the issue of special circumstances.
3. In circumstances where the Crown had expressed a considered position on this aspect in its written submissions, it was submitted that the Court was required to raise this issue with the parties before proceeding in the manner in which his Honour did, and that the failure to do so constituted a denial of procedural fairness on this aspect. Crown Submissions
4. The Crown submitted that the Applicant had been given an opportunity to make submissions about special circumstances and had done so and that the requirements of procedural fairness did not require more than had occurred in this case.
5. It was submitted that the Crown position at first instance was a qualified one which invited consideration by the sentencing Court as to a finding of special circumstances and not the statement of an absolute position.
6. The Crown submitted that a sentencing Court is not required to warn an offender every time it departs from a position that is either not opposed or conceded by the Crown: Toole v R (2014) 247 A Crim R 272; [2014] NSWCCA 318 at [43]-[45]. It was submitted that this was not a case where the Applicant was entitled to believe, or was ever led to believe, that the Court would find special circumstances. It remained a matter for the District Court and the Crown's qualified submission did not give rise to a belief that such a finding would necessarily be made.

Ground 8 - His Honour Erred in Finding that the Driving Which Constituted the Related Offence of Driving Whilst Disqualified Occurred on the Night of the Applicant's Other Offences Applicant's Submissions

1. It is appropriate to consider next this ground of appeal which was added by leave at the hearing in this Court.
2. As noted earlier (at [38], [98]), the sentencing Judge was mistakenly of the view that the drive whilst disqualified offence occurred on the night of the aggravated kidnapping offence rather than the next day.
3. Counsel for the Applicant submitted that this was a clear error which was material to the sentencing process so that this ground of appeal should be upheld. Crown Submissions
4. The Crown acknowledged that this error had occurred, but submitted it was not material to the sentencing process.
5. The Crown submitted that this was a mistake concerning particulars only. Reliance was placed upon Yassine v R [2008] NSWCCA 139 at [30]-[31] and Newman (A Pseudonym) v R [2019] NSWCCA 157 at [11]-[15]. It was submitted that the Applicant had committed an offence of driving whilst disqualified during the day on 5 May 2018 and not the evening of 4 May 2018, but that the mistake by the sentencing Judge did not make any material difference on sentence. Decision
6. It is the case that the Applicant committed an offence of driving whilst disqualified for which he was to be sentenced on the s.166 Certificate in the District Court. For understandable reasons given the ambiguous nature of the Statement of Agreed Facts, his Honour mistook this offence as being committed in the course of the aggravated kidnapping offence.
7. In some circumstances, it may make no difference where a Judge mistakenly states that an offence was committed on one day as opposed to another. However, in the present case, the sentencing Judge approached the Applicant's course of conduct on the evening of 4 May 2018 and the early hours of 5 May 2018 as including the driving whilst disqualified offence (see ROS[30]-[31] at [80] above).
8. Viewed in this way, I am satisfied that the mistake as to the date on which the driving whilst disqualified offence occurred was material and bore upon the sentencing outcome in this case. It was not a matter of mere particulars. I do not think that anything said in Yassine v R or Newman (A Pseudonym) v R stands in the way of such a finding. Rather, it was a significant aspect of the Applicant's overall course of conduct.

Ground 7 - The Aggregate Sentence of Imprisonment Imposed on the Applicant is Manifestly Excessive

1. The Applicant has made good Grounds 3 and 8. Error has been demonstrated in accordance with the principles in House v The King and this Court should proceed to exercise its independent sentencing discretion under s.6(3) Criminal Appeal Act 1912 in accordance with the principles in Kentwell v The Queen at [43].
2. In these circumstances, it is not necessary to give separate consideration to this ground of appeal which asserts that the aggregate sentence was manifestly excessive. I will keep in mind submissions made in support of this ground of appeal for the purpose of determining whether a lesser sentence is warranted for the purpose of s.6(3) Criminal Appeal Act 1912.

Resentencing the Applicant

1. The Court undertakes the resentencing exercise under s.6(3) Criminal Appeal Act 1912 on the material before the sentencing court with the addition of any relevant evidence concerning the Applicant's progress towards rehabilitation in the period since the sentencing hearing: Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [2].
2. On resentencing, the Applicant relied upon the affidavit of Penelope Baker, solicitor, affirmed 25 February 2020. Ms Baker's affidavit demonstrates that the Applicant has completed a number of courses whilst in custody including the "Health Survival Program" (concerning first aid and resuscitation procedures), the "Save a Mate" program (concerning drug abuse and the consequences of drug addiction) and the "Red Cross Addiction Support" program (concerning drug addiction). The Applicant is now housed at the Broken Hill Correctional Centre where he has enrolled in a computer studies course and the EQUIPS Aggression and Addiction Program.
3. The affidavit reveals that the Applicant has been employed as head sweeper at the Broken Hill Correctional Centre in 2020. The affidavit recounts, as well, the impact on the Applicant's family of his ongoing incarceration.
4. The Crown relied upon the affidavit of Emma Pearl Phillips, solicitor, affirmed 20 February 2020 with respect to the Applicant's history of custodial offences. Ms Baker's affidavit also touched upon the Applicant's custodial disciplinary history.
5. Between March and September 2019, the Applicant had a number of disciplinary offences including stealing, assault, possession of a drug and failing to comply with Correctional Centre routine for which penalties were imposed, including confinement to cells or periods without access to buy-ups. The Applicant's correctional disciplinary history does not assist him on the issue of rehabilitation: Douar v R (2005) 159 A Crim R 154; [2005] NSWCCA 455 at [131].
6. However, the Applicant asserts (and it appears to be the case) that there have been no disciplinary offences since his transfer to the Broken Hill Correctional Centre.
7. Because of the actual bodily harm occasioned to the victim, the Applicant is to be sentenced for an offence of aggravated kidnapping under s.86(2)(b) Crimes Act 1900 for which the maximum penalty is imprisonment for 20 years.

Amendments 08 May 2020 - [189] - Reference to sections inserted. 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: 08 May 2020