Lee v R

988. 164 CLR 465; [1988] HCA 14 Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 Category: Principal judgment Parties: Tristan James Lee (Applicant) Rex (Respondent) Representation: Counsel: P Coady with A Bhasin (Applicant) J Styles (Respondent)

Solicitors: Tankard's Law (Applicant) Solicitor for Public Prosecutions (NSW) (Respondent) File Number(s): 2020/323156; 2021/44380 Publication restriction: Nil Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Citation: R v Lee [2021] NSWDC 601 Date of Decision: 8 November 2021 Before: Lerve DCJ File Number(s): 2020/323156; 2021/44380

HEADNOTE The applicant pleaded guilty to one count of intimidation and one count of specially aggravated detain. A further offence of wounding was placed on a Form 1 in respect of the specially aggravated detain offence. The applicant was sentenced to an aggregate term of 6 years and 3 months imprisonment, with a non-parole period of 4 years and 3 months. The applicant sought leave to appeal his sentence on two grounds: the sentencing judge's findings of the objective seriousness of the principal offences were not open on the facts of the case; and the aggregate sentence imposed was manifestly excessive. The Court held (per Dhanji J, Price and Wilson JJ agreeing), granting leave to appeal but dismissing the appeal: As to the first issue: (1) The finding of objective seriousness is quintessentially a matter for the sentencing judge and is reviewable only on a limited basis. A challenge to a sentencing judge's finding of objective seriousness required the applicant to establish House v King error. In the absence of formal challenge and full argument it was not necessary to depart from this consistent line of authority: [30]-[31] Mulato v R [2006] NSWCCA 282 at [37], [45]-[46]; Greentree v R [2018] NSWCCA 227 at [34]; Magro v R [2020] NSWCCA 25 at [31]; Ahmad v R [2021] NSWCCA 30 at [18], applied. (2) In the present case, the sentencing judge engaged in the necessary process of addressing the objective gravity of the offence. Having regard to the range of conduct that might constitute an intimidation offence, the finding that the offence was "at the lower end of the mid-range" was one which was open: [38] (3) Having regard to the nature of the offending, the sentencing judge's assessment of the objective seriousness in respect of the specially aggravated detain offence, while perhaps not inevitable, was open: [46] (4) There is questionable utility in comparing a finding of objective seriousness in a case under appeal with a single decision: [47] R v Bonett [2009] NSWCCA 135 at [35]; Lami v R [2021] NSWCCA 295 at [40], applied. As to the second issue: (1) The aggregate sentence imposed on the applicant was not unreasonable or plainly unjust: [56]-[61] Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443], applied. (2) Relevance of indicative sentences in a claim an aggregate sentence is manifestly excessive considered.

JUDGMENT

1. PRICE J: I agree with the orders proposed by Dhanji J. Whilst I am grateful for his Honour's review of the authorities concerning the review of aggregate sentences on appeal, it is unnecessary to express any opinion on this issue. As his Honour notes, there was no argument or ground of appeal that raised it.
2. I also agree with the additional remarks of Wilson J.
3. WILSON J: I am grateful to Dhanji J for his outline of the facts and circumstances of this matter, and of the arguments of the parties. I agree with the orders his Honour has proposed.
4. As to ground 1 the applicant placed significant reliance upon the short judgment of Brereton JA in Fuller v R [2022] NSWCCA 203 in which his Honour, at [3], postulated an alternative basis upon which error in the assessment of objective gravity might be considered. That approach may have been urged upon the Court because any assessment of this proposed ground that applied more orthodox and well settled law would make the applicant's argument difficult to sustain. The approach to be taken in assessing a complaint of error of this type is that outlined at 505 in House v The King (1936) 55 CLR 499; [1936] HCA 40, and applied innumerable times in this Court since, such as in Mulato v R [2006] NSWCCA 282 at [37] and Magro v R [2020] NSWCCA 25 at [29] - [31]. Applying the law as it is set out in those decisions, the ground must be dismissed. The sentencing judge considered all of the features of the offending relevant to a determination of the gravity of the crimes, in their proper context, and reached a conclusion that was, in my opinion, entirely open to him. The fact that the applicant did not take advantage of the opportunity offered to him by the sentencing judge to argue against the preliminary view expressed by his Honour points to the correctness of that conclusion. No error has been demonstrated.
5. As to ground 2, in determining the aggregate sentence to be imposed upon the applicant the sentencing judge took into account the facts and circumstances of the offences and gave due weight to the subjective case and those matters of mitigation established on balance by evidence. It is the aggregate sentence that is amenable to challenge, in the way discussed in JM v R [2014] NSWCCA 297 at [40] per R A Hulme J, and that sentence is neither unfair nor unjust.
6. The appeal should be dismissed.

Factual background

1. The facts of the intimidation matter were summarised by Lerve DCJ in R v Lee [2021] NSWDC 601 (the sentencing judgment) at [6]-[9]: "6 The victim in the Intimidation matter is Brendan Withers who was 29 years of age at the time of the offence. At about 12.20 am on 31 July 2020 the victim attended the home of Jalissa Williams at an address in Hunter Street, Mount Austin, a suburb of Wagga Wagga. The victim was subject (i.e. the victim) of a robbery that involved Williams, Jackson Douglas and an unidentified male. Douglas robbed the victim at knife point of $10 and some car keys. After the robbery the victim was taken to the home of a Mr Joe Atallah in Phillip Street, Mt Austin. Douglas left the house and returned with this offender. 7 Upon arriving at the address the offender saw the victim look at him and yelled, "Don't look at me" whereupon the victim stopped looking at him and closed his eyes. Douglas and Lee left the house and returned a short time later. Douglas told the victim not to use Jalissa's name and not to tell the police. He then waved a gas bottle blow torch in the victim's face. The victim said that he wanted to go home. Douglas said, "Stop complaining and you will be able to see your family again". 8 This offender picked up the blowtorch and started walking towards the victim. He leaned towards the victim with the blow torch and leaned away and started laughing. Douglas and Lee soon thereafter left the premises in the victim's vehicle. 9 Atallah fell asleep and the victim escaped. He went to his home from where he contacted the police. The offender was arrested on 12 November 2020 and as was his right declined to be interviewed."
2. In relation to the offence of specially aggravated detain for advantage his Honour said at [10]-[25]: "10 …The victim in that matter is Shane Sweeney who was 46 years of age and with whom the offender shared a pod at the Junee Correctional Centre in the past. The victim lived alone at an address in George Street, Junee. The house has two entrances at the front and the victim's bedroom is at the rear of the premises. A Mr Hayden O'Rafferty was involved in the incident (as a victim) but has declined to give a statement to police. 11 In the early hours of the morning of 24 October 2020 the victim was asleep in his bedroom. This offender, Patrick Beauchamp and Zarah Hart and two other unidentified offenders (one male, one female) entered the premises. This offender, Beauchamp and the unidentified male went to the victim's bedroom. Beauchamp and the unidentified male were wearing balaclavas and this offender was armed with a piece of wood that was similar to a broom handle. 12 The victim woke as the offender struck him to the right side of his face with the piece of timber. The victim sat up but was blinded by a torchlight that was directed towards his face. The offender said to the victim, "Don't move cocksucker". The bedroom light was turned on and the victim saw the offender to the side of the bed holding the piece of timber in his left hand. The victim felt blood trickle down the side of his face. He put his hand to his head and there was blood on his hand and on the bedding. This offender and two others stood around the victim effectively trapping him. 13 This offender told the co-offender Beauchamp and the unidentified male what to do. Those two men searched through the victim's bedroom drawers. It is apparent from the report of Ms Dombrowski, psychologist (exhibit 1 on sentence) that they were looking for drugs. Beauchamp commented to the effect of, "There mustn't be anything here if he's not going to give it up after that whack". This offender, Beauchamp and the other male remained in the bedroom and did not allow the victim to move. The three of them stood over the victim and repeatedly said, "Stay there". Each time the victim attempted to move this offender would hold up the length of timber as if he was going to strike the victim with it again. The victim could hear the others present in the house rummaging through other rooms in the house. 14 About thirty minutes later this offender told the victim to get up; the victim did so and stepped into the hallway. This offender was in front of the victim and Beauchamp and the unidentified male were walking behind the victim. The victim punched this offender to the back of the head and then struck out behind him with his elbow hitting Beauchamp in the chest. 15 The unidentified male produced an extendable baton and struck the victim twice to the back of the left shoulder causing the victim to drop to his hands and knees in pain. The unidentified male told the victim to stop struggling. The victim was forced on to his hands on knees for the length of the hallway to the dining room. The unidentified male stood over the victim preventing him from getting up and therefore the victim remained on the dining room floor. 16 From where the victim was on the floor he could see O'Rafferty on the floor in the lounge room. O'Rafferty was bleeding and saying, "I don't want to die, I don't want to die". The victim could see that O'Rafferty had wet his pants. The victim also could see Zarah Hart and another woman rummaging through drawers in the lounge room. Those two women left the house through the front door and loaded items into a car. Beauchamp and this offender ran out of the double doors together three or four times returning after a minute or two on each occasion. 17 At about this time this offender and Beauchamp went to O'Rafferty's house and attempted to gain entry. The unidentified male stood over the victim effectively preventing him from moving. 18 When the offender and Beauchamp returned they tormented O'Rafferty by hitting him in the shins with a metal vacuum cleaner pipe. O'Rafferty was pleading with them and told them he could obtain drugs for them. 19 This offender then had the victim's mobile phone, held it to the victim's face and demanded that the victim transfer money and said, "Just give me some money, even if it's only a couple of hundred just give me some money". The offender, Beauchamp and the unidentified male continued to demand money and drugs from the victim and O'Rafferty. O'Rafferty continued to say he could get drugs. The offender said, "Well organise it", organise it". O'Rafferty got off the floor and said he would take them to see Trent Field and he said, "Trent won't come, I'll take you to his house". 20 With that this offender, Beauchamp and the unidentified male left the premises with O'Rafferty. They all walked out the front door of the house, entered a vehicle and drove away. By this stage dawn was approaching. The entire incident lasted for approximately one and one half hours. For the duration of the incident the victim felt that he was unable to move or leave his residence for fear of being further assaulted. 21 The victim locked the doors of his premises and remained in the house for about five minutes to ensure that the offender and the others had in fact left. He walked to the Junee Police Station where he reported the matter. Police observed dried blood on the victim's face and saw that he had a dishevelled appearance. The victim declined any medical treatment at that time. 22 Upon returning to his premises the victim located a small piece of broken timber, a Stanley knife and a broken pair of scissors that had been left behind by the assailants. The victim noted that his LG mobile phone, Samsung mobile phone, LG tablet, a money box containing about $30, cigarettes a small pouch containing a small quantity of tobacco, a small oxy cylinder and a hand painted aboriginal artwork had been stolen from the residence. 23 The victim went to the Junee Hospital on 24 October 2020. He had two wounds above his right eye that required a total of eight sutures; this injury having been occasioned when the offender struck the victim over the head with the piece of timber. This is the matter to which the charge of Reckless Wounding on the form 1 document relates. 24 The victim was also found to be suffering from a 10cm bruise over his left shoulder and a 10 cm bruise over his left triceps. The bruising lasted for about a month. The victim experienced pain for about three weeks. These are the injuries inflicted during the period of detention which ground the aggravating factor of occasioning actual bodily harm to ground the offence contrary to s 86(3) of the Crimes Act. 25 The offender was arrested on 16 February 2021 and as was his right declined to be interviewed in respect of the matter."

Proceedings on sentence

1. Proceedings on sentence were conducted on 24 September 2021 and 4 November 2021.
2. The Crown bundle contained a Crown sentence summary; notice of committal, charge certificate and statement of agreed facts for sequence 1; notice of committal, amended charge certificate, Form 1 and statement of agreed facts for sequence 2; the applicant's New South Wales criminal record and custodial history; sentence facts for a prior offence of being carried in a vehicle without the consent of the owner; a written sentence judgment for a prior offence of manslaughter: R v Tristan Lee [2019] NSWDC 59; a breach of parole report dated 23 October 2020 and an updated breach of parole report dated 3 November 2020 relating to parole for the applicant's previous manslaughter offence; and an Intensive Corrections Order (ICO) breach report dated 3 November 2020 relating to the applicant's previous offence of being carried in a vehicle without consent.
3. Tendered on behalf of the applicant were two psychological reports, one of Julie Dombrowski dated 1 November 2021 and another of Kathryn Wakely dated 28 November 2018. The report of Ms Wakely had previously been tendered in the applicant's proceedings for manslaughter in 2019. The applicant also provided brief written submissions to the Court.
4. The two psychological reports relied upon by the applicant disclosed significant differences in relation to the applicant's background. The earlier report of Ms Wakely, while noting the applicant's aboriginality, did not raise issues of disadvantage flowing from his upbringing. Conversely, the more recent report of Ms Dombrowski detailed a history of parental separation, alcoholism, parental abuse and sexual abuse perpetrated on the applicant.
5. The report of Ms Dombrowski set out other aspects of the applicant's personal background. Ms Dombrowski noted that the applicant completed year 10 at school and then worked casually as a removalist. She also noted that the applicant was diagnosed with Post Traumatic Stress Disorder resulting from the incident that led to his conviction for manslaughter, for which he was sentenced in 2019 to imprisonment for 4 years and 6 months with a non-parole period of 2 years and 9 months dating from 16 May 2017.
6. Ms Dombrowski also set out the applicant's history of substance abuse. She noted that the applicant began using cannabis during adolescence and methamphetamines in 2013, at 26 years of age. The applicant reported to Ms Dombrowski that when he left prison in 2020, he felt dependent on methamphetamines and opioids.

Remarks on sentence

1. In relation to the objective seriousness of the intimidation offence, the sentencing judge found the matter to be in the "lower end of the mid-range". In relation to the specially aggravated detain for advantage offence, his Honour found that the matter was "within the mid-range of seriousness". A more detailed discussion of his Honour's reasoning in respect of the objective seriousness for both offences appears below in the context of the grounds of appeal.
2. His Honour noted the age of the applicant and his prior convictions for affray in 2008; resist police officer and behave in an offensive manner in 2008; manslaughter in 2019; and being carried in a stolen vehicle and possession of a prohibited drug in 2020. His Honour found that although the applicant's criminal history was "not particularly extensive", it did "not entitle him to any particular leniency".
3. In relation to the applicant's subjective case, at the sentencing hearing, his Honour, having regard to the inconsistencies between the two psychological reports, found that the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 were "enlivened to an extent reducing the moral culpability of the offender". However, his Honour noted that "those factors do not achieve the same weight as they would if more information or evidence was available".
4. The sentencing judge also considered the applicant's history of substance use. His Honour found that the applicant's "unstable personality structures, trauma and substance abuse" justified a finding of special circumstances. His Honour noted that the applicant required "intensive and extensive supervision to ensure his proper reintegration into the community".
5. His Honour found that the applicant had not shown remorse for his offending conduct and was not satisfied that the applicant had good prospects of rehabilitation, on the basis that it was "too early to tell".
6. His Honour considered the issue of partial accumulation in respect of the two matters. His Honour found that there should be some degree of partial accumulation to recognise the different offending and different victims.
7. The sentencing judge applied a discount of 25% for the utilitarian value of the applicant's pleas. His Honour then imposed the sentence as set out above.

Ground 1 - the sentencing judge's findings of the objective seriousness of both principal offences were not open on the facts of this case

The test to be applied

1. As noted above, his Honour found the intimidation offence was in the "lower end of the mid-range" of objective seriousness, and the detention offence was "within the mid-range of seriousness". Neither offence was subject to a standard non-parole period, and it was therefore not necessary to use the language of standard non-parole period offences. A determination of the objective gravity of the offending remained an integral part of the sentencing exercise; a proportionate sentence could not be determined absent such a determination: The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [17]-[20]; Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at 472; Amiri v R [2017] NSWCCA 157 at [26].
2. In written submissions the applicant referred to the reasons of Brereton JA in Fuller v R [2022] NSWCCA 203 at [3] where his Honour expressed the view that a finding of objective seriousness is a conclusion of fact, "albeit one involving an evaluative judgement". His Honour continued that where an appeal challenges a finding of objective seriousness, the test is whether the finding is correct, and it is not subject to the limits of a review of a discretionary determination as set out in House v The King (1936) 55 CLR 499; [1936] HCA 40. The applicant noted that the other two members of the Court in Fuller v R did not accept his Honour's analysis. N Adams J, (with whom Adamson J, as her Honour then was, agreed) at [80]-[82], referring to various authorities, including Magro v R [2020] NSWCCA 25, maintained that a challenge to a sentencing judge's finding of objective seriousness required the applicant to establish House v King error.
3. Despite referring to Brereton JA's reasons in Fuller v R, the applicant did not make any submission as to their correctness. Rather, the applicant submitted that this case did not require the question to be settled. This submission was on the basis that his Honour's findings of objective seriousness were not open. This position assumes the success of the applicant's contention. If, contrary to the applicant's contention, it is found that the sentencing judge's finding of objective seriousness was open (in the House v The King sense) it is at least possible that, applying Brereton JA's view in Fuller v R, the applicant could still succeed. In other words, different outcomes are possible depending upon which test is applied. Brereton JA's view was a minority one in Fuller v R. It has otherwise been consistently held that the finding of objective seriousness is quintessentially a matter for the sentencing judge and is reviewable only on a limited basis: Mulato v R [2006] NSWCCA 282 at [37], [45]-[46]; Greentree v R [2018] NSWCCA 227 at [34]; Magro v R at [31]; Ahmad v R [2021] NSWCCA 30 at [18]. In the absence of formal challenge and full argument, it is not appropriate to depart from this consistent line of authority.

The intimidation offence

1. The applicant stressed that the offence was, at least with respect to him, unplanned, impulsive, limited in time, and did not result in any injury, with the result that the finding of objective seriousness was not open to the primary judge. To understand where the applicant's offence fits in the scale, it is necessary to first have regard to the elements of the offence. The charge was that the applicant intimidated the victim with the intention of causing him to "fear physical or mental harm". Intimidation is defined in s 7 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) as follows: 7 Meaning of "intimidation" (1) For the purposes of this Act, intimidation of a person means - (a) conduct (including cyberbullying) amounting to harassment or molestation of the person, or Note - An example of cyberbullying may be the bullying of a person by publication or transmission of offensive material over social media or via email. (b) an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, or (c) conduct that causes a reasonable apprehension of - (i) injury to the person or to another person with whom the person has a domestic relationship, or (ii) violence to any person, or (iii) damage to property, or (iv) harm to an animal that belongs or belonged to, or is or was in the possession of, the person or another person with whom the person has a domestic relationship, or (d) conduct amounting to the coercion or deception of, or a threat to, a child to enter into a forced marriage within the meaning of the Crimes Act 1900, section 93AC, or (e) conduct amounting to the coercion or deception of, or a threat to, a person to enter into a forced marriage within the meaning of the Commonwealth Criminal Code, section 270.7A (Definition of forced marriage). (2) For the purpose of determining whether a person's conduct amounts to intimidation, a court may have regard to any pattern of violence (especially violence constituting a domestic violence offence) in the person's behaviour.
2. As can be seen, there are a wide range of matters that might amount to intimidation. However, to make out the offence, it is necessary that the act be carried out with the intention of causing the complainant to fear physical or mental harm and it is likely that, other than in the unusual case, and in the absence of other evidence such as an admission, a trivial example of intimidation will not sustain an inference that the accused intended to cause physical or mental harm.

The detention offence

1. As noted above, his Honour found this offence to be in the mid-range of objective seriousness. Again, to determine the complaint with respect to the objective gravity of the particular offence, it is necessary to have regard to the nature of the offence created by the particular provision. Section 86(1) of the Crimes Act creates the basic offence, while s 86(2) and (3), provide for aggravated and specially aggravated forms of the offence. It is convenient to set out each of the three subsections: 86 Kidnapping (1) Basic offence A person who takes or detains a person, without the person's consent - (a) with the intention of holding the person to ransom, or (a1) with the intention of committing a serious indictable offence, or (b) with the intention of obtaining any other advantage, is liable to imprisonment for 14 years. (2) Aggravated offence A person is guilty of an offence under this subsection if - (a) the person commits an offence under subsection (1) in the company of another person or persons, or (b) the person commits an offence under subsection (1) and at the time of, or immediately before or after, the commission of the offence, actual bodily harm is occasioned to the alleged victim. A person convicted of an offence under this subsection is liable to imprisonment for 20 years. (3) Specially aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) - (a) in the company of another person or persons, and (b) at the time of, or immediately before or after, the commission of the offence, actual bodily harm is occasioned to the alleged victim. A person convicted of an offence under this subsection is liable to imprisonment for 25 years.
2. As can be seen, in the applicant's case, the specially aggravated offence in s 86(3) was made out based on both the offence having been committed in company, and the occasioning of actual bodily harm to the victim (either of which, without the other, would have constituted an offence against s 86(2) but not s 86(3)).
3. In addressing the objective gravity of the offence, the sentencing judge referred to the decision of R v Speechley (2012) 221 A Crim R 175; [2012] NSWCCA 130 and in particular to Johnson J's reasons (with which McClellan CJ at CL and Hammerschlag J, as his Honour then was, agreed). Johnson J (at [55]) identified the length of the detention, the extent to which fear or terror was occasioned, the manner in which the victim was treated, the extent of actual bodily harm, and the motive for the detention as factors relevant to an assessment of the objective seriousness of offences against s 86. I do not understand Johnson J to have identified these matters as the exclusive considerations to be used as a checklist. Indeed, Johnson J (at [53]) noted the breadth of conduct potentially falling within offences against s 86, referring to R v Newell [2004] NSWCCA 183. It will, of course, be necessary to consider the relative seriousness of a particular offence having regard to the elements of the offence charged, which of course differ between the basic, aggravated and specially aggravated forms of the offence.

Ground 2 - the aggregate sentence imposed was manifestly excessive

1. I have made observations above with respect to the objective seriousness of the offences, and his Honour's findings in that regard. While I have found his Honour's findings to be open, it remains necessary for me to determine whether the aggregate sentence imposed on the applicant was manifestly excessive based on the facts, the applicant's case, and on the application of proper principle.
2. A complaint of manifest excess is a complaint based on error. The error is, however, not an error capable of identification. That is, it is not an error which is sometimes as described as "specific" or "patent" error. Rather, it is a contention that the outcome is such that it can be inferred that some error must have occurred. This is sometimes described as "latent" error. A summary of the principles to be applied in a complaint of manifest excess was set out by R A Hulme J in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] as follows: "When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]. • Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. • Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. • It is not to the point that this Court might have exercised the sentencing discretion differently. • There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. • It is for the applicant to establish that the sentence was unreasonable or plainly unjust."

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: 27 March 2023