NSWNSWCCA

Koosmen v R

[2025] NSWCCA 122

Court of Criminal Appeal (NSW)|2025-08-15|Before: McHugh JA at [1], Hamill J at [2], Yehia J at [3]

View on NSW Caselaw

At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2025-08-15

Before

McHugh JA at [1], Hamill J at [2], Yehia J at [3]

Catchwords

CRIME – appeals – appeal against sentence – Form 1
matters – where sentencing judge indicated a starting point
for Count 1
before taking into account the Form 1 offences – whether an error in this

Source

Original judgment source is linked above.

Catchwords

CRIME – appeals – appeal against sentence – Form 1matters – where sentencing judge indicated a starting pointfor Count 1before taking into account the Form 1 offences – whether an error in thisapproach CRIME – appeals – appeal against sentence– where the sentencing judge failed to make findings in respect of theapplicant’s remorse and prospects of rehabilitation – where evidenceadduced in support of remorse and rehabilitation– where competingsubmissions made about mitigating factors – where the differences required“clear and transparentresolution” – appeal allowed

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Koosmen v R [2025] NSWCCA 122

Hearing dates: 21 July 2025

Date of orders: 15 August 2025

Decision date: 15 August 2025

Before: McHugh JA at [1];
Hamill J at [2];
Yehia J at [3]

Decision: (1) Grant leave to appeal. (2) Allow the appeal. (3) Quash the sentence imposed on the applicant in the District Court on 26 April 2024, and in lieu thereof sentence the applicant to an aggregate term of 12 years’ imprisonment commencing on 1 December 2022 and expiring on 30 November 2034, with a non-parole period of 8 years’ imprisonment. The first date that the applicant will be eligible for release to parole is 30 November 2030.

With respect to Count 1, the sentencing judge took into account the fact that the applicant was disqualified from driving and had ingested alcohol and illicit drugs. The applicant drove contrary to attempts by his parents to stop him, ignored the lights and sirens of a police vehicle and accelerated away from pursuing police at speed and over double lines in a manner which was clearly dangerous. He crossed through a major intersection contrary to a red light not once, but twice, displaying “an extreme level of recklessness”.
The length of time the applicant was driving and the distance he had travelled was not insubstantial and reflected a real and continuing potential danger to other road users. The sentencing judge also found that the applicant’s failure to stay and render assistance, whilst separately charged, was reflective of an increased moral culpability with respect to the death of Mr Langham.
His Honour found that Count 1 was “very high in the range of objective seriousness”.
With respect to the fact that the applicant fled the scene, the sentencing judge rejected a submission that because the immediate death of the victim rendered it logically futile to provide assistance, the objective seriousness of the offence of failing to stop and assist on the Form 1 should be reduced. His Honour found that the objective seriousness of the offence of failing to stop and assist was “well within the mid-range”.
With respect to Count 2, the sentencing judge took into account that the victim was home, alone, late at night. The applicant forcibly entered the villa and physically assaulted the homeowner. The sentencing judge found that this offence, whilst not at the lowest end of the range of objective seriousness, fell below the mid-range.
The sentencing judge found that Count 3 similarly fell below the mid-range of objective seriousness.
With respect to Count 4, the sentencing judge found that the theft of the car keys was opportunistic and took place while one of the occupants was present. Whilst his Honour considered it an inevitably serious theft because the theft of car keys almost invariably leads to the commission of another substantive offence (stealing a motor vehicle), the sentencing judge assessed the objective seriousness of this offence as “falling somewhere below the mid-range”.

A report by Dr Richard Furst, Forensic Psychiatrist, dated 9 February 2024 was tendered by the applicant in the sentencing proceedings. Dr Furst interviewed the applicant and reviewed his medical records. As mentioned above, the applicant also gave oral evidence in the sentencing proceedings. The applicant also tendered three reference letters.
The applicant was aged 33 at the time of offending and 34 at the time of sentence. For a period of two and a half years, the applicant was in an on-and-off relationship with a woman from whom he ultimately separated in October 2022. He then moved in with his parents. The applicant has two daughters from a previous relationship of 10-11 years’ duration who both reside with their mother.
The applicant left school at about the age of 15 in year 9. He worked as a concreter until his early 30s.
The applicant used cannabis from the age of 13 to approximately the age of 15. He began using amphetamines on weekends on a regular basis around the age of 15. His drug addiction gradually escalated and from his early to mid-20s he was using ice, heroin and cocaine. The applicant’s escalating drug use had an adverse effect on his work from around 2018-2019, which was also a period during which he was arrested and incarcerated on multiple occasions.
The applicant also used anabolic steroids from the age of 16 to 17, with regular cycles over the following 14 years. Dr Furst opined that some of his emotional instability and anger issues dating back to his teenage years have likely been a product of anabolic steroid abuse.
The applicant reported being a moderate drinker of alcohol, generally having a beer after work with the odd occasion of excessive drinking on weekends. Dr Furst noted that in the Reception Screening Assessment when the applicant went into custody in December 2022, he reported drinking 5 to 10 drinks per day in the period leading up to his arrest.
The applicant described having had trust issues in his relationship with the mother of his children and experiencing symptoms of paranoia and anxiety. He took drugs to block out these feelings.
A Mental Health Report prepared by Ms Karen Flanagan, a clinical nurse consultant, on 11 March 2019 indicated that the applicant had been using ice since he was 24 years of age. He had been released from custody on 1 March 2019 and immediately relapsed into using ice on a daily basis. The applicant reported that his drug use was making him anxious and paranoid and that he wished to address his addiction through admission to a rehabilitation centre.
The applicant was referred to the Toronto Drug Court program in 2019 in relation to driving offences. He completed the Drug Court program, including a residential rehabilitation admission for 5 months at Dooralong Transformation Centre in Wyong and 18 months in total at Adele House in Coffs Harbour. In cross-examination, the applicant was challenged on the length of time he was in drug rehabilitation, and he acknowledged that his memory was not good on this point.
The applicant had very little contact with his daughters until late 2021 or early 2022. Over a period of approximately 8 months, the applicant and his former partner worked towards joint custody. However, the applicant had relapsed and engaged in further drug abuse.
Dr Furst had regard to an outpatient assessment by Dr Fieuw-Makaroff, General Practitioner at Booragul, on 30 January 2015. The symptoms which were reported dated back to 2014 and included emotional dysregulation and anger, irritability, insomnia and negative thinking. These dated from when the applicant was approximately 24 years of age. The applicant reported a history of previous suicidal thoughts, including thoughts of crashing his motor vehicle. He had called crisis helplines on a number of prior occasions.
On 5 August 2016, the applicant attended the same medical centre and consulted with Dr Peter McGeoch, General Practitioner. The applicant reported a history of feeling “down” and having poor sleep. He was prescribed two antidepressant medications. Dr Furst suggested that the applicant’s depression and anxiety were clinically significant at that time.
The applicant was admitted to the Mater Hospital in Newcastle in January 2021 after presenting with paranoid delusions against a background of drug use. At the time of admission, the applicant described feeling frustrated, agitated, paranoid and depressed. He believed that people were after him and wanted to get rid of him. He was prescribed anti-psychotic medication and his symptoms resolved fairly rapidly. His mood and affect returned to normal within about two days.
The applicant had mental health follow-up appointments between 19 January 2021 and 12 February 2021. Clinical notes in January 2021 indicate that he had significant anxiety and paranoia symptoms and beliefs that people wanted to kill him. The applicant described these symptoms having persisted since an initial episode of psychosis eight to nine months earlier (an episode of paranoia and delusional thoughts that had lasted three to four days in March or April 2020). At the time of the assessment in January 2021, the applicant said that he thought people from his past were “coming to kill him”. He said that he was not using drugs at the time of his presentation in early January 2021, although he had been using cocaine and ice when he had the previous psychotic episode around April 2020.
In October 2021, the applicant attempted to hang himself whilst intoxicated with alcohol and cocaine. He was found by his mother with an electrical cord tied around his neck. He was admitted to the Mater Hospital from 9 October 2021 until 11 October 2021. He had not been taking the anti-psychotic medication that had been prescribed during his previous admission in January 2021. Multiple prior episodes of suicidal ideation were noted.
The applicant reported that his moods had been “up-and-down” and that he had ongoing symptoms of paranoia during 2022 and leading up to the offending. However, Dr Furst noted that the various mental health assessments conducted when the applicant went into a custodial institution in December 2022 were indicative of psychotic symptoms not being present earlier in 2022. Dr Furst opined that the applicant’s ability to maintain a relationship in 2022 and the fact that he was still sufficiently functional to work, made the presence of a major mental illness, such as schizophrenic bipolar disorder, unlikely.
With respect to the events of 1 December 2022, the applicant reported to Dr Furst that he felt “paranoid” and “stressed” and that his anxiety had been “through the roof” that evening. He reported only having one schooner of beer and a single line of cocaine. Dr Furst’s impression was that the applicant was “appearing to minimise his alcohol and drug consumption”.
The applicant reported that he could remember “moments” of what happened including driving but that he had an incomplete recollection of the offending. He described thinking he had to “get away” and said that he was convinced of that belief at the time, suggesting he felt paranoid.
Following the offending, the applicant was admitted to John Hunter Hospital. The Discharge Summary did not raise any concerns about his mental health.
Dr Furst said that the applicant’s responses on the Reception Screening Assessment Questionnaire following his admission into custody, and the Kessler-10 in particular, do not support the presence of a pervasive or severe mood disturbance in the period prior to his arrest or the presence of a psychotic illness.
Dr Furst referred to the blood sample which had been analysed in relation to pharmacology/toxicology and expressed the opinion that his driving would have been impaired and also his cognitive state, making acute drug intoxication the most likely cause of his disorientation, confusion and paranoia. Dr Furst opined that the applicant was most likely suffering from a substance-induced mental disorder at the time of his offending, which was a complication of his underlying substance use disorder. Resolution from this drug-induced psychosis within a matter of days was consistent with this diagnosis.
Dr Furst opined that the most important factor in the applicant’s long term rehabilitation was ensuring abstinence from alcohol and drugs of abuse. The applicant would have good prospects of returning to the workforce and a lower risk of reoffending if he remained abstinent from those substances.
The applicant commenced treatment with buprenorphine in custody in around April 2023. The applicant also completed the Positive Lifestyle Program whilst in custody prior to sentencing. The applicant gave evidence in the sentencing proceedings that the internal charges against him whilst in custody related to possession of “a bit of bupe” or buprenorphine and possession of a plastic knife which had been melted into an L-shape for the purpose of effecting tattoos whilst in custody.
The applicant gave evidence that he was stabbed during a previous period in custody. He said that he had been put into protection after that happened, and that he was in protection at the time of sentencing. There were no records produced in relation to those circumstances.
In the course of cross-examination, the applicant agreed that he had been drug affected at the time of an earlier collision where he had taken his mother’s car without her consent and whilst disqualified from driving. He said that he had reflected on how bad drugs were for him whilst in custody for three months following that collision. The applicant agreed that he knew that taking illicit drugs made him do reckless things.
In further cross-examination, the applicant agreed that he had had another collision with a vehicle in which there was a mother and two children and that that matter had not been finalised when the present offending occurred.
The applicant expressed remorse about the offending to Dr Furst and said that it was “massive to him”. He recognised that he “caused a lot of harm” and that “someone lost their life” and said, “it should not have happened”. Dr Furst described the applicant as expressing “a lot of regret and remorse about his offending actions that resulted in the death of the victim on 1 December 2022”. Dr Furst concluded that the applicant “appears to be remorseful”.
The reference letter by the applicant’s mother described him as appearing to be in a paranoid state on the night of the offending. She said that when her son had telephoned her the following day in tears, he said the police had told him he killed somebody, but he could not recall the events. She described him having battled addiction and said that he had expressed remorse to her, saying how sorry he was for what had happened.
A reference letter by the applicant’s ex-partner described the applicant wanting to take full responsibility for his actions by his pleas of guilty. She said that he had expressed to her his sincere remorse for the tragedy and how much he deeply regrets the pain and loss experienced by the victim’s family. She expressed the belief that with the right support and resources, he had the potential to contribute positively to society and rebuild his life.
The sentencing judge also had regard to a third reference letter provided by the applicant’s friend.
In the ROS, the sentencing judge did not refer to the oral evidence of the applicant with respect to remorse. The applicant’s evidence included that he was “deeply regretful and sorry”. He acknowledged that he “took” the deceased from the deceased’s family and friends and said:

Grounds 1 and 2 are related and concern the way in which the sentencing judge approached the determination of the indicative sentences which informed the length of the aggregate sentence. It is therefore convenient to deal with these grounds together. Central to this complaint is asserted error in the process by which the Form 1 offences were taken into account on Counts 1, 2 and 4 and the application of the discount for the applicant’s guilty pleas in relation to the indicative sentences for those counts.
Under s 53A(2)(b) of the CSPA, the indicative sentences represent “the sentence that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 or any other provision of this Act) had separate sentences been imposed instead of an aggregate sentence.” The aggregate sentencing provision in s 53A “applies once the sentencing judge has determined appropriate sentences for each of multiple offences”: Park v The Queen (2021) 273 CLR 303; [2021] HCA 37 at [27] (Kiefel CJ, Gageler, Keane, Edelman and Gleeson JJ).
Part 3 Division 1A of the CSPA sets out the mandatory discounts to be applied for an offender’s guilty plea depending on the timing of the plea. The applicable provision in the applicant’s case is s 25D(2)(a) which required the sentencing judge to apply “a reduction of 25% in any sentence that would otherwise have been imposed”. The reference to the “sentence that would otherwise have been imposed” is a reference to a sentence reached through the process of instinctive synthesis weighing all of the relevant factors absent the applicable statutory discount for the guilty plea.
Section 33 of the CSPA empowers the court to take further offences on a Form 1 into account when the preconditions in ss 32 and 33 are met. The principles relevant to a consideration of offences on a Form 1 were enunciated in Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 (“the guideline judgment”). The Court (Spigelman CJ, Wood CJ at CL, Grove, Sully and James JJ agreeing) relevantly held:

The respondent’s attempt to distinguish Huang goes no further than a distinction as to form rather than substance. True it is that the sentencing judge in the present matter did not use the words “I add 18 months to represent the matters on the Form 1”, but it is implicit in the approach taken by his Honour, that he identified an additional period of 18 months that was added to the indicative sentence once a discount was applied. This is clear in respect of Count 1 where the starting point nominated was 14 years’ imprisonment. A 25% discount was applied resulting in a reduction of 3 years and 6 months to 10 years and 6 months’ imprisonment. The indicative sentence was then determined to be 12 years’ imprisonment which must mean that the applicant received an additional 18 months’ imprisonment for the Form 1 offences attaching to Count 1.
The respondent’s alternative hypothesis, namely that the sentencing judge, after taking into account the Form 1 offences, considered an appropriate starting point of 16 years’ imprisonment and then discounted it by 25% resulting in an indicative sentence of 12 years’ imprisonment, is unpersuasive. That hypothesis assumes correctness in his Honour’s approach. It is even more unconvincing in circumstances where the sentencing judge did not articulate the way in which the Form 1 offences operated to increase the otherwise appropriate penalty.
Less compelling is the submission that the way in which the sentencing judge approached the indicative sentences, was simply “with economy of language”. The ROS do not demonstrate economy of language or brevity. This was not an ex tempore judgment. The sentencing judge reserved from 9 April 2024 until 26 April 2024. The ROS contain 296 paragraphs. Eighty-two paragraphs are dedicated to the applicant’s criminal antecedents and traffic history and sixty-one paragraphs to summarising “comparable cases”. As to the latter, at [269] the sentencing Judge said of this Court’s decision in Moananu v R [2022] NSWCCA 85: “I am constrained to observe in passing, that there was no mention of THC being present in the blood of that driver in the entirety of the Court of Criminal Appeal judgment.” In fact, Hamill J referred to the presence of “cannabis” in the blood at [60] and, at [77] said “There was also a positive result for cannabis but no opinion was provided as to the impact this may have had on the applicant’s driving.” THC is the active intoxicant in cannabis. Price J explicitly adopted Hamill J’s summary of the offending at [32] and Leeming JA implicitly did so.
I am satisfied that the sentencing judge erred in his approach to the Form 1 matters and the application of the discount in respect of Count 1. It is less clear whether the sentencing judge engaged in the same erroneous approach in respect of Counts 2 and 4. The sentencing judge did not nominate a starting point for the indicative sentences on Counts 2 and 4. The sentencing judge pronounced the indicative sentences for those counts “after discount and taking into account the Form 1 matters”. That sequence may reflect error particularly having regard to the approach adopted in relation to the indicative sentence for Count 1.
Taken by itself, the language used in pronouncing the indicative sentences on Counts 2 and 4 would not necessarily demonstrate error but simply reflect an infelicitous way of expressing the fact that the sentencing judge had taken into account the Form 1 matters.
In any case, having found that error is established in relation to the approach taken in respect of Count 1, I would uphold Grounds 1 and 2.

The applicant contended that the sentencing judge erred by failing to make findings in relation to the applicant’s remorse and prospects of rehabilitation. In the alternative, it was contended that the sentencing judge erred in failing to give reasons for making no findings as to the applicant’s remorse and prospects of rehabilitation.
The respondent submitted that the absence of express mention of a relevant factor by a sentencing judge does not inevitably lead to the conclusion that the factor must have been overlooked. The respondent pointed out that the sentencing judge had set out the applicant’s subjective case at some length.
Ultimately, the respondent contended that the sentencing judge was not obliged to make a determination about prospects of rehabilitation and remorse using a particular formulation of words. Instead, it can be inferred that his Honour did have regard to the applicant’s remorse because the applicant’s evidence on that topic was not challenged in cross-examination. The respondent submitted that “there was in substance no issue between the parties regarding remorse by the conclusion of the sentencing proceedings”.
Furthermore, the respondent contended that the ROS, read as a whole, demonstrate that the sentencing judge was not persuaded that the applicant had established that his prospects of rehabilitation were good.
Sentencing judges are obliged to take into account mitigating factors that are “relevant and known to the court”: s 21A(1)(b) of the CSPA. The factors identified in s 21A may properly be described as material and possibly mandatory considerations: Alenezi v R [2023] NSWCCA 283 at [24] (Basten AJA, Adamson JA and Sweeney J agreeing). As I said in Li v R [2023] NSWCCA 112 at [46] (Davies and Fagan JJ agreeing), the sentencing discretion requires more than a “tick a box” or mechanistic approach to the factors set out in s 21A of the CSPA. For instance, in a given case, a sentencing judge might comprehensively refer to the evidence about an offender’s prospects of rehabilitation, such that it can be discerned that the sentencing judge took into account that mitigating factor, notwithstanding that there was no express finding made.
However, where mitigating factors are squarely raised and supported by evidence and submissions, and where competing submissions are made, what is required is “clear and transparent resolution” by the sentencing judge: Masters v R [2019] NSWCCA 233 at [31] (Hamill J, Bathurst CJ and Macfarlan JA agreeing). “The judicial burden is not only to pass judgment but to provide reasons for the judgment. The person who is the subject of the judgment, as well as the community at large, are both entitled to know why a judge has determined to imprison the person and how a particular period of imprisonment has been assessed”: per R A Hulme J, in Porter v R [2019] NSWCCA 117 at [67] (Hoeben CJ at CL and Davies J agreeing).
As Lonergan J (with whom Price and Dhanji JJ agreed) observed in STB v R [2024] NSWCCA 36 at [45]:

The respondent’s reliance on Baker v R (2022) 302 A Crim R 60; [2022] NSWCCA 195 (“Baker”), does not advance the respondent’s case. In Baker, the sentencing judge made considerable reference to the mitigating factors, the evidence and her Honour’s findings. Her Honour either addressed the mitigating factors by way of separate headings or otherwise addressed them in her reasons generally: see Baker at [66]-[68] (per Adamson J, N Adams J agreeing, Brereton JA dissenting).
In the present case, the sentencing judge was assisted by the written submissions of the parties, filed prior to the sentencing hearing. In respect of remorse, it was submitted on behalf of the applicant that he had “genuine regret and remorse for his actions”. The Crown submitted, in writing, that the applicant’s remorse was “developing”. It is important to bear in mind in this context that for remorse to be established as a mitigating factor, the applicant must establish two matters, namely an acceptance of responsibility for his or her actions, and an acknowledgement of the injury, loss or damage caused by his or her actions: s 21A(3)(i) of the CSPA.
On 9 April 2024, the applicant gave evidence before the sentencing judge including evidence of remorse. Following that evidence, it was submitted on his behalf that the sentencing judge would find that the applicant was “profoundly and deeply remorseful”. The Crown below made no oral submissions in relation to remorse, nor did she withdraw the submission that had been made in writing.
The cross-examination of the applicant suggested that the applicant was not completely honest and forthright particularly in relation to his drug abuse. Given the interrelatedness of the applicant’s drug misuse and the offence of manslaughter, the applicant’s minimisation of his alcohol and drug consumption and his failure to grapple with the realities of his substance abuse, suggested a failure to accept responsibility for his actions.
Far from being a settled matter, the question of the applicant’s remorse was still in play. On one end of the spectrum, it had been submitted that the applicant had demonstrated profound and deep remorse. On the other end of the spectrum, it was contended that his remorse was “developing”. Given the nature and seriousness of the offence of manslaughter, a finding in respect of the applicant’s remorse was critical in the process of instinctive synthesis. Here, not only did the sentencing judge fail to make a finding in respect of the applicant’s remorse, no reference at all was made to the applicant’s oral evidence about his remorse.
Similarly, competing submissions were made in relation to the applicant’s prospects of rehabilitation. In written submissions relied upon by the applicant in the sentencing proceedings, his prospects of rehabilitation were said to be “reasonable”. Following his evidence, it was submitted that he had “good prospects” of rehabilitation. The Crown below submitted in writing that the applicant’s prospects of rehabilitation should be assessed as “guarded to dim”.
The sentencing judge set out, at some length, the applicant’s criminal and traffic history. It might be inferred that given that history, and the applicant’s history of entrenched substance misuse, the applicant’s prospects of rehabilitation were dim. However, the applicant gave evidence, including evidence about having commenced (for the first time) the buprenorphine program, saying that it was “lifechanging”. He had also completed the Positive Lifestyle Program whilst in custody and expressed a willingness to engage in programs on parole. In those circumstances, it was incumbent on the sentencing judge to make a finding about the applicant’s prospects of rehabilitation. Alternatively, if the evidence was insufficient to make a finding, the sentencing judge should have said so.
The finding of special circumstances on the basis that the applicant required extended supervision, said nothing, one way or another, about what finding the sentencing judge made in respect of prospects of rehabilitation. On the one hand, the extended period of supervision may have been required because the applicant had reasonable or good prospects of rehabilitation justifying a variation of the statutory ratio. On the other hand, the finding of special circumstances may simply reflect the need for a longer period of supervision because the applicant’s prospects of rehabilitation were poor. The finding of special circumstances in this case sheds no light on the sentencing judge’s assessment of the applicant’s prospects of rehabilitation.
I am satisfied that the exercise of the sentencing discretion miscarried because the sentencing judge did not determine the issues that were squarely raised in relation to the applicant’s remorse and prospects of rehabilitation.
I would therefore uphold Ground 3. It is not necessary to further consider Ground 4, which was relied on in the alternative.

Having determined that error has been established in relation to Grounds 1, 2 and 3, it is not necessary to determine the manifest excess ground.
Where error is established, it is the duty of this Court to exercise the sentencing discretion afresh, taking into account the purposes of sentencing and the factors that the CSPA and any other Act, or rule of law, require or permit: see Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42] (French CJ, Hayne, Bell and Keane JJ).
An affidavit affirmed by the applicant on 3 July 2025 and an affidavit affirmed by the applicant’s solicitor, Mr Julian Stevens on 7 July 2025 were read on the usual basis without objection. The respondent read the affidavit of instructing solicitor Mr Steven Thomson sworn on 8 July 2025 on the usual basis without objection. I have had regard to the contents and annexures of these affidavits below.
Whilst in custody, the applicant has been engaged in work as a clinic sweeper and as a leading hand in the bakery. The case notes on the applicant’s work performance are very positive. The applicant has demonstrated compliant and respectful behaviour whilst in custody. The applicant has also completed the EQUIPS Foundation program and the CONNECTS program and has indicated a willingness to complete more programs as they become available to him.
Since sentence was imposed, the applicant has only had one custodial infringement on 29 December 2024, namely failing to comply with correctional centre routine.
The applicant is presently receiving the buprenorphine injection. The applicant deposed that he feels “really stable mood wise” and has no current thoughts of substance use, which is “massive”. The applicant is also taking an anti-depressant.
Since entering custody, the applicant has initiated a claim in relation to sexual abuse he suffered as a child at a Church. The applicant has also recently commenced attending upon a psychologist on a fortnightly basis. The focus of the sessions is grief counselling for victims of childhood abuse.
The applicant’s father passed away from cancer recently, while the applicant was in custody. The applicant was moved to a different correctional centre to be closer to his father before he passed but his father’s ill health rendered him unable to travel. The applicant was unable to say goodbye to his father in person.
The applicant deposed that upon release from custody, he wants to re-establish his concreting business, remain on the buprenorphine injection and focus on becoming a permanent figure in his children’s lives.
No challenge was made to the sentencing judge’s findings about the objective seriousness of each offence. I adopt those findings as they accord with my own assessment of the objective seriousness of the offences.
I have taken into account the Form 1 matters attaching to Counts 1, 2 and 4 by increasing the otherwise appropriate sentences for those offences to reflect the additional weight to be afforded to personal deterrence and retribution.
The applicant has a significant traffic record demonstrating repeated non-compliance with court orders. The applicant’s criminal record disentitles him to leniency. He was subject to conditional liberty at the time he committed the offences, an aggravating factor pursuant to s 21A(2)(j) of the CSPA. These matters are relevant to the applicant’s prospects of rehabilitation and his likelihood of reoffending.
I have had regard to the applicant’s subjective case and the progress he has made whilst in custody. The applicant’s participation in the buprenorphine program and his engagement in programs demonstrates a positive change. However, given the applicant’s entrenched substance abuse issues, the nature of the offences and his past criminal history, I am guarded about his prospects of rehabilitation. The applicant’s likelihood of reoffending will in large part depend upon his continued engagement in rehabilitative programs not just in a structured custodial environment but upon release to parole.
I have had regard to the evidence relating to the applicant’s remorse. In particular, I have taken into account his sworn evidence in that regard, which was not challenged in cross-examination. The applicant expressed his shame and acknowledged the impact of his conduct on the deceased’s family.
In addition, Dr Furst reported that the applicant “felt very bad about what had happened” and “it was massive to him”, that it had “affected a lot of people” and he “thinks about it daily”. The applicant also acknowledged he “caused a lot of harm”, that “someone lost their life”, and “it should not have happened”. To that extent, the applicant has demonstrated remorse and some acceptance of responsibility for his actions.
However, when asked about his drug use, the applicant gave evidence, “I*’m* not concerned about relapsing, to be honest with you. This time I’ve, yeah, I’ve never felt like this. I’ve never had an incident change my life like this. As*,* yeah, the thought of actually using drugs quite makes me sick, to be honest with you”. The applicant’s evidence in this regard demonstrates a degree of overconfidence that perhaps reflects an absence of full insight into the entrenched nature of his drug misuse and its impact on his actions.
It must be said, however, that it is not unusual for people with entrenched substance misuse issues to fail to grapple with their addictions and the consequences of those addictions. It is sometimes the case that while the stated desire to abstain is genuine and heartfelt, the reality in achieving that goal is more difficult. For someone with an addiction there is rarely a bright line between lack of insight and full insight. Rather, the process is more complicated and nuanced and involves a lengthy period of treatment and self-reflection.
The purposes of sentencing are set out in s 3A of the CSPA. General and specific deterrence and denunciation are weighty considerations given the seriousness of the offending, particularly in relation to the offence of manslaughter. The applicant must be punished and held accountable for his actions. A countervailing factor is the promotion of the applicant’s rehabilitation. It is only by affording the applicant an opportunity for meaningful rehabilitation that the protection of the community is achieved.
Each offence reflects discrete criminal conduct requiring a degree of notional accumulation. In determining the extent of notional accumulation, I have had regard to the principle of totality, noting that the offences essentially constitute one episode of offending.
I make a finding of special circumstances warranting a variation of the statutory ratio. I make that determination because the applicant will require a longer than usual time of supervision in the community to receive treatment for his substance abuse issues. I have also had regard to the fact that there will be some degree of notional accumulation reflected in the aggregate sentence.
The following indicative sentences reflect a discount of 25% to reflect the utilitarian value of the applicant’s guilty pleas:

Koosmen v R [2025] NSWCCA 122 | Case summary | Zoe

Koosmen v R

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

HEADNOTE

Judgment

Grounds of appeal

Circumstances of offending

Facts relevant to Count 1 – Manslaughter

Facts relevant to the offences on the Form 1 attaching to Count 1

Facts relevant to Count 2 – Aggravated break and enter and commit a serious indictable offence (intimidation)

Facts relevant to Count 3 – Break and enter and commit a serious indictable offence (intimidation)

Facts relevant to the offence on the Form 1 attaching to Count 2

Facts relevant to Count 4 – Steal property in a dwelling-house

Facts relevant to the offences on the Form 1 attaching to Count 4

Arrest

Findings of objective seriousness

Victim impact statements

Subjective case

Other findings by the sentencing judge

Grounds 1 and 2

Grounds 3 and 4

Re-sentence

Parties

Legislation Cited (6)

Cases Cited (4)

Cited By (1)