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Catchwords: SENTENCING — Appeal against sentence — Severity — Sentence manifestly excessive — Domestic violence offences with no physical violence — Principles of totality — Reduction for reduced moral culpability on Bugmy and De La Rosa factors — Appeal upheld
SENTENCING — Appeal against sentence — Fresh or new evidence — Whether failure to provide a report to sentencing judge constitutes a miscarriage of justice — Where the report gave a “more detailed and more graphic account” of sexual abuse suffered by the applicant already in material before the sentencing judge — Where the sentencing judge had accepted the sexual abuse occurred — No miscarriage of justice

Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 13(1), 14(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 53A(2)(b), 55(1), 59(1)
Crimes Act 1900 (NSW), ss 61, 323(a), 324
Criminal Appeal Act 1912 (NSW), s 5
Criminal Code Act 1995 (Cth), s 474.15
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5

Cases Cited: Aslett v R [2006] NSWCCA 360
Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
Barnes v R [2022] NSWCCA 140; (2022) 299 A Crim R 483
BJS v R [2013] NSWCCA 123
Browning v R [2015] NSWCCA 147
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
Cherry v R [2017] NSWCCA 150
Conte v R [2018] NSWCCA 209
Craft v R [2021] NSWCCA 131
Davidson v R [2022] NSWCCA 153; (2022) 300 A Crim R 214
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
Evans v R [2017] NSWCCA 281
Harris v R [2021] NSWCCA 322
He v Sun [2021] NSWCA 95
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
Hughes v R [2018] NSWCCA 2
Ibbotson (a pseudonym) v R [2020] NSWCCA 92
JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
Kennedy v The King [2022] NSWCCA 215
Lee v R [2020] NSWCCA 244
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
MJR v R [2025] NSWCCA 51
MT v R [2026] NSWCCA 25
Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17
PD v R [2012] NSWCCA 242
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
R v Burton [2008] NSWCCA 128
R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159
R v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCCA 145
R v Thompson [2025] NSWCCA 133
Suksa-Ngacharoen v Regina [2018] NSWCCA 142
TH v R [2025] NSWCCA 121
Turnbull v R [2019] NSWCCA 97
Zreika v R [2023] NSWCCA 317

Texts Cited: Judicial Commission of New South Wales, Sentencing Bench Book

Category: Principal judgment

Parties: Ben James Morris (Applicant)
The Crown (Respondent)

Representation: Counsel:
T Evers (Applicant)
M Millward (Respondent)
Solicitors:
JPM Legal (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2022/00206964
2022/00243014
2022/0036929
2023/00259787
2023/00283875

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 21 June 2024, Ben Morris (the applicant) was sentenced by Kumar DCJ for 19 domestic violence-related offences committed against his former partner, her family and her friend, following his pleas of guilty. The sentencing judge imposed three sentences: an aggregate sentence of 15 years’ imprisonment for 16 state offences; a sentence of 12 months’ imprisonment for contravening an apprehended domestic violence order (“ADVO”); and an aggregate sentence of 5 years’ imprisonment for two Commonwealth offences. The total effective term was 16 years’ imprisonment with an effective non-parole period of 11 years, to expire on 28 September 2034.

The applicant sought leave to appeal against the sentence pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) on two grounds. The first was that the sentence imposed by the sentencing judge was manifestly excessive. The second was that there was a miscarriage of justice by the failure to provide the sentencing judge with a report of Professor Walterfang dated 24 January 2025.

Held**:** The Court unanimously dismissed ground 2; ground 1 was upheld by majority (N Adams CJ at CL and Sirtes J, Roberts J dissenting), granting leave to appeal and re-sentencing the applicant:

As to ground 2:

1. No miscarriage of justice was occasioned by the failure to provide the sentencing judge with the Walterfang report, being new evidence. There was no material difference between what was before the sentencing judge and what would have been before her, had the applicant chosen to disclose or obtain additional evidence in the nature of the report. Though it was contended that the compelling nature of details within the report would have contributed to the process of instinctive synthesis in a way which was favourable to the applicant, the applicant was unable to identify any additional or different finding that would or could have been made in light of the new evidence: [137]-[143] (Roberts J, N Adams CJ at CL at [1] and Sirtes J at [64] agreeing).

Barnes v R [2022] NSWCCA 140; (2022) 299 A Crim R 483, applied.

As to ground 1:

2. Although the absence of physical violence did not diminish the seriousness of the offences, physical violence not being an element of those offences, many of the indicative sentences imposed were very stern in light of the relatively low maximum penalties: [22]-[24], [33]-[36] (N Adams CJ at CL, Sirtes J at [65] agreeing).
3. Although it is not possible to state what an undiscounted aggregate sentence would have been with any accuracy, that exercise can be undertaken as a “rough guide” for comparison purposes. An undiscounted aggregate sentence of 20 years’ imprisonment is unreasonable in the circumstances: [30]-[32] (N Adams CJ at CL, Sirtes J at [81] agreeing).

Davidson v R [2022] NSWCCA 153; (2022) 300 A Crim R 214; MT v R [2026] NSWCCA 25; MJR v R [2025] NSWCCA 51, cited.

4. As to the totality principle, significant notional concurrence was required as between the breach ADVO offences and the substantive offending to which they related, to guard against the risk of double counting. In circumstances where the total effective time in custody was 17 years due to sentences the applicant was already serving, the sentence was not adequately adjusted “down” to avoid a crushing sentence: [40]-[43] (N Adams CJ at CL, Sirtes J at [75] agreeing in part)

Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17; JM v R [2014] NSWCCA 297; (2024) 246 A Crim R 528, applied.

5. The fact that the aggregate sentence of 15 years’ imprisonment was imposed after a reduction in sentence on both Bugmy and De La Rosa factors further leads to the conclusion that the aggregate sentence was manifestly excessive: [45]-[50] (N Adams CJ at CL, Sirtes J at [76]-[79] agreeing, Roberts J at [160]-[162] dissenting).

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37; Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194; Harris v R [2021] NSWCCA 322; Kennedy v The King [2022] NSWCCA 215, cited.

6. Per Roberts J, contra*:*
7. The public justice offences represented discrete and significant criminality of a different character to, and not encompassed by, the criminality of the intimidation and ADVO breach offences. It was open to the sentencing judge to (notionally) accumulate, to a significant degree, the indicative sentences for the public justice offences upon the indicative sentences for the other offending in order for the aggregate sentence to properly reflect the total overall criminality: [151]-[157].

R v Burton [2008] NSWCCA 128; Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41, cited.

8. Per Sirtes J, adding*:*
9. It can be artificial to divide an offender’s disadvantaged background and their mental health diagnosis to separately tabulate their impact on the offender’s moral culpability, especially where there is a “close nexus” between an offender’s deprived background and their mental health issues: [78]-[79].

DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156; Craft v R [2021] NSWCCA 131, cited.

JUDGMENT

1. N ADAMS CJ at CL**:** I have had the considerable advantage of reading the judgment of Roberts J in draft. I agree with her Honour that ground 2 should be dismissed for the reasons provided. As for ground 1, I have arrived at a different conclusion to her Honour for the following reasons.

2. I have adopted Roberts J’s summaries of the relevant facts, submissions, transcript of the proceedings on sentence and reasons of the sentencing judge as well as her exposition of the relevant principles. I will endeavour not to repeat anything already addressed by her Honour and confine myself to the narrow issue as to why I am satisfied that the aggregate sentence imposed on the applicant was “unreasonable or plainly unjust”.

3. As Gleeson CJ and Hayne J observed in Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6], a finding of manifest excess is a “conclusion”. The determination of this appeal ultimately turns on whether the “conclusion” can be drawn that an aggregate sentence of 16 years’ imprisonment, following early pleas of guilty, imposed for domestic violence and public justice offences which involved verbal/written acts rather than physical acts is “unreasonable” or “plainly unjust”: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25].

4. To adopt the language of Payne JA and Button J in Conte v R [2018] NSWCCA 209 at [6], the question is whether the aggregate head sentence goes beyond being simply “a very stern sentence” (which was available to the discretion of the sentencing judge) to become a sentence that is manifestly excessive (which was not so available). Determining whether a sentence is on the one hand simply “stern” and on the other hand “unreasonable” is a matter upon which judicial minds may differ. As Payne JA and Button J observed in Conte v R at [9]:

… just as sentencing at first instance is ultimately an exercise in instinctive synthesis, so also does the determination by an intermediate appellate court that a sentence previously imposed is manifestly excessive or manifestly inadequate involve a degree of intuition and evaluative judgment that is not readily amenable to logical steps in an irresistible process of reasoning, or determinative lists of countervailing factors.

5. It is helpful to clearly state at the outset three relevant matters which are not in dispute as between the parties.

6. First, the offences committed by the applicant evidenced a persistent and nasty campaign of intimidatory behaviour towards the complainant, including death threats, whilst subject to conditional liberty or in custody. He showed complete disregard for any court orders whether they be the Apprehended Domestic Violence Order (“ADVO”) in place or the fact that he was on an Intensive Corrections Order (for an unrelated offence) when the 2 June 2020 offences were committed (sequences 326/1, 326/2 and 326/3).

7. Nor was the applicant deterred from his relentless offending by spending short periods of time in custody; on the contrary, some of the intimidation charges and all of the public justice offences were committed whilst he was in custody attempting to contact the victim. A lengthy period of full-time custody was the inevitable sentencing outcome.

8. Secondly, no patent error could be identified by the applicant. On the contrary, the sentencing judge carefully addressed all of the relevant objective and subjective features as well as the relevant sentencing principles. This was a complex sentencing exercise given the number of charges, the fact that there were both Commonwealth and State charges, and the applicant’s lengthy criminal and custodial history.

9. Thirdly, given the number and variety of charges upon which the applicant was sentenced, there are no “comparable cases”. This means that the question of manifest excess cannot be considered by comparing this aggregate sentence with “comparable” aggregate sentences. Rather, the question is one of instinctive synthesis.

10. Although the applicant received three separate sentences, it is only the aggregate sentence for the State offences of which complaint is made (“the aggregate sentence”). That aggregate sentence of 15 years’ imprisonment was imposed for eight counts of intimidation (maximum penalty 5 years’ imprisonment), two counts of influence a witness (maximum penalty 7 years’ imprisonment), one count of influence witness with intent to secure an acquittal (maximum penalty 14 years’ imprisonment) and five summary offences on a s 166 certificate (breaching an ADVO – maximum penalty 2 years’ imprisonment). A separate concurrent sentence was imposed for a breach ADVO offence committed in custody on 10 June 2022 due to the operation of s 55(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Act”).

11. I propose to briefly address aspects of the applicant’s case under a number of separate headings in order to explain why I consider the aggregate sentence imposed for the State offences tipped over from being “very stern” to “unreasonable or plainly unjust”.

Course of conduct

12. The applicant was sentenced for conduct which occurred over a three-year period during which he was largely in custody. He was separately sentenced in the Local Court for other similar offending (charges of intimidation and breaching an ADVO) during that time, as well as other unrelated offending.

13. It would appear from the NSW Corrective Services custodial history report tendered at the applicant’s proceedings on sentence that from the date when he was arrested on 15 July 2020 (for the first three offences committed on 2 June 2020) until he was sentenced on 21 June 2024, he was in custody either serving other sentences and/or serving his balance of parole and/or on remand except for a few weeks in 2021 and a few months in 2022.

14. On 2 June 2020, the first three offences were committed. They were three counts of intimidation; one each in relation to the victim, her sister and her sister’s partner. These were the only offences committed in the physical presence of the victim (and/or her family members). The facts are summarised at [92]-[93] below.

15. The applicant was returned to custody on 15 July 2020 and remained in custody until 11 October 2021 when he was granted parole.

16. The applicant was only in the community for a few weeks before he was arrested and returned to custody on 29 October 2021. The reason was that he contacted the victim by “text, signal and facebook messenger”. He was charged with two counts of intimidation and one count of breaching the ADVO and returned to custody. He was sentenced separately for those offences in the Local Court, and the facts sheet was Exhibit B before the sentencing judge.

17. The applicant remained in custody from 29 October 2021 until 2 July 2022.

18. On 10 June 2022, shortly before he was released from custody, the applicant committed further offences of intimidation (not of the victim, although in her presence) and breaching the ADVO. The facts are summarised at [94]-[95] below. The breach ADVO offence was the subject of the separate sentence imposed by the sentencing judge for the reasons explained above at [10]. I shall return to the need for the separate sentence below at [59].

19. After the applicant was released from custody on 2 July 2022, he was only in the community for a few months before he was arrested again on 29 September 2022. He has remained in custody since that date. He was charged at that time with eight further offences committed in July and September 2022 based on his relentless efforts to contact and threaten the victim (four counts of intimidation, the two Commonwealth offences and two further breach ADVO offences).

20. The remaining six offences were all committed after the applicant was returned to custody on 29 September 2022. They comprise three counts of breach ADVO (on the s 166 certificate) and three counts of acting to influence a witness (the public justice offences).

21. Given the other sentences being served by the applicant during this period, the question of totality loomed large, which I will address further below.

Nature of the domestic violence charges

22. To the extent that the applicant relied on the absence of physical violence in support of the claim of manifest excess (rather than verbal threats), it is to be accepted that this fact does not diminish the seriousness of the offences with which he was charged. That is because they were offences which did not include any acts of physical violence as an element in the first place. I shall deal with the public justice offences below, but with respect to the offence of intimidation, it is more commonly dealt with in the Local Court (25,665 offences were dealt with in the Local Court between January 2022 and December 2025 compared to 211 in the District Court between September 2019 and December 2025).

23. Similarly, breaching an ADVO is a summary offence which can only be dealt with in the District Court on a s 166 certificate. Again, the vast majority of these offences are dealt with in the Local Court (24,262 offences between January 2022 and December 2025 compared to 27 dealt with in the District Court between September 2019 and December 2025).

24. It does not diminish or downplay the seriousness of the domestic violence offences committed by the applicant to acknowledge that none of them included physical violence as an element. The nature of the actual charges is significant because the intimidation and breach ADVO charges carry the lowest maximum penalties of the offences commonly categorised as a “domestic violence offence” save as for common assault contrary to s 61 of the Crimes Act 1900 (NSW) (which also carries a maximum penalty of 2 years’ imprisonment). Even having regard to the high number of offences upon which the applicant stood for sentence, it is important to keep these relatively low maximum penalties in mind when considering the length of the aggregate sentence imposed.

Nature of the public justice offences

25. As Johnson J observed in R v Burton [2008] NSWCCA 128 at [101]:

The essence of a s.323(a) offence is that it strikes at the integrity of the system of justice and some form of custodial sentence is normally appropriate: Warby v R at 580 [25].

26. The three public justice offences committed by the applicant pertained to his efforts on 7/8 October 2022 and again on 30 March 2023 to contact the victim whilst he was in custody and persuade her not to give evidence against him. The facts are summarised below at [105]-[114]. The three offences were contrary to s 323(a) of the Crimes Act which provides for a maximum penalty of 7 years’ imprisonment for doing any act intending to cause a witness to, inter alia, not attend to give evidence. By the operation of s 324 of the Crimes Act if the offence is committed “intending to procure the conviction or acquittal of any person of any serious indictable offence”, the maximum penalty is 14 years’ imprisonment. The third in time of the s 323 offences (the sending of the letter) attracted the higher penalty.

27. Attempting to interfere with what a witness may say or do is serious conduct and, regrettably, common in domestic violence offences which often involve an element of coercive control. In Evans v R [2017] NSWCCA 281, the applicant had sent 16 text messages over a period of two weeks to the complainant asking her to withdraw her complaint to the police (in the context of domestic violence). Adamson J at [46] observed:

It can be seen from the terms of s 323(a) of the Crimes Act that it covers a very broad range of conduct, including procuring a witness to give false evidence, as well as persuading someone not to attend to give evidence and many variations in between. Where a single offence covers a broad range of conduct, it will often be necessary to have regard to the range of sentences which tend to be imposed for other offending of a like nature. It is within the common experience of courts that many charges of domestic violence cannot be prosecuted because the defendant manages to persuade the complainant, including by threatening violence, not to give evidence against him. Conduct of this nature against complainants is inimical to the interests of justice and the administration of justice. The perpetrators of domestic violence may, by committing offences under s 323(a) of the Crimes Act, effectively immunise themselves from prosecution.

28. The sentencing judge found the applicant’s offences to be “serious” and “very serious” offences. No challenge was made to those findings. It should be noted however, that the increased penalty provided for in s 324 of the Crimes Act applies to any offence which falls into the definition of “serious indictable offence”. Section 4(1) of the Crimes Act provides that a serious indictable offence means “an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more”. In assessing the objective seriousness of an offence of interference with a witness, one relevant factor is the nature of the relevant proceedings the witness was to give evidence in, ranging from offences carrying a maximum penalty of life imprisonment (such as murder) down to those carrying a maximum penalty of only 5 years’ imprisonment, such as in the applicant’s case.

29. These public justice offences were undoubtedly the most serious of those committed by the applicant.

Early pleas of guilty

30. The applicant pleaded guilty in the Local Court and was entitled to a 25% discount on each offence. When an aggregate sentence is imposed, s 53A(2)(b) of the Sentencing Act mandates that a factor such as the discount for the plea of guilty is to be applied to the indicative sentence not the aggregate sentence. This process was explained by Leeming JA in Ibbotson (a pseudonym) v R [2020] NSWCCA 92 at [11]-[13]. One practical consequence of this procedure is that it means that is not possible to add that discount back onto the aggregate sentence to see what the starting point would have been but for the discount; that arithmetic only works when an offender is being sentenced on one offence.

31. For the reasons I explained in Davidson v R [2022] NSWCCA 153; (2022) 300 A Crim R 214 at [243] and [245] and more recently in MT v R [2026] NSWCCA 25 at [144]-[146], although it is not possible to state what an undiscounted aggregate sentence would have been with any accuracy, I am prepared to accept that the exercise can be undertaken as a “rough guide” for comparison purposes: see also MJR v R [2025] NSWCCA 51 at [48]. In other words, I am prepared to accept that if the applicant received an aggregate sentence of 15 years’ imprisonment after early pleas of guilty, that roughly equates to an undiscounted sentence of 20 years’ imprisonment, give or take a year or so.

32. As relentless and terrifying as the applicant’s conduct was, as a matter of instinctive synthesis, I am satisfied that an undiscounted aggregate sentence of that length is unreasonable in the circumstances.

The indicative sentences

33. The applicant did not contend that any of the indicative sentences for the State offences were manifestly excessive. Accepting that concession I would simply observe that some of them were nonetheless very lengthy.

34. For example, the indicative sentence for sequence 326/13 (contravening ADVO contrary to s 14(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW) (“CDPV Act”)) was 18 months after a discount of 25% meaning that the undiscounted sentence was the maximum penalty of 2 years’ imprisonment. That is particularly high given that that the sentencing judge also aggravated the associated offence on the basis it was committed on conditional liberty which suggests some double counting.

35. Further, the indicative sentences for sequences 326/1 and 326/9 (intimidation contrary to s 13(1) of the CDPV Act) were 3 years’ imprisonment after a discount of 25% meaning that the undiscounted sentence was 4 years’ imprisonment as against a maximum penalty of 5 years.

36. I accept the applicant’s concession that the indicative sentences were not unreasonable, but many of them were very stern. That is a relevant factor when considering the application of the totality principle.

The totality principle

37. In Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 at [64] (“Nguyen”), Gageler, Nettle and Gordon JJ observed (footnotes omitted):

Ultimately the object of the sentencing exercise is to impose individual sentences that, so far as possible, accurately reflect the gravity of each offence while at the same time rendering a total effective sentence which, so far as possible, accurately reflects the totality of criminality comprised in the totality of offences. That is an exercise which involves a significant measure of discretionary moderation and accumulation of individual sentences according to the particular circumstances of each case. Up to a point, therefore, it is something about which sentencing judges might take different views of which neither could be said to be wrong. Generally speaking, however*, the imposition of less severe individual sentences may call for a greater degree of accumulation* in order to reflect total criminality whereas more severe individual sentences may necessitate a greater degree of concurrency. (Emphasis added.)

38. The above observations were made in the context of the imposition of individual sentences. As R A Hulme J observed in JM v R [2014] NSWCCA 297; (2024) 246 A Crim R 528 at [40](13) when considering the application of the totality principle to aggregate sentences (citations omitted):

A principle focus of determination of a ground alleging manifest inadequacy or excess will be whether the aggregate sentence reflects the totality of the criminality involved. This Court is not in a position to analyse issues of concurrence and accumulation in the same way that it can analyse traditional sentencing structures. (Emphasis added.)

39. A real question arises as to whether the proper application of the totality principle required significantly more notional concurrence given the length of most of the indicative sentences, consistent with what the High Court observed in Nguyen at [64].

40. As a discrete issue, there was certainly a need for significant notional concurrence as between the breach ADVO offences and the substantive offending to which they related. This is because, as I have already observed, the sentencing judge aggravated the offences which were committed whilst on an ADVO pursuant to s 21A(2)(j) of the Sentencing Act whilst also fixing indicative sentences at or near the maximum penalty prior to applying the 25% discount. Her Honour observed:

It is also a significant aggravating factor pursuant to s 21A(2)(j) of the Crimes Act 1914 (Cth) if an offender commits offences whilst on conditional liberty for offences arising from breaches of an ADVO. Offences committed in breach of an ADVO and the offence of breaching an ADVO involve separate and distinct criminality. There is no duplicity in imposing distinct sentences for each of the offences.

41. There is no doubt that a separate sentence can be imposed for breaching an ADVO (see Suksa-Ngacharoen v Regina [2018] NSWCCA 142 at [131]) but if an indicative sentence is increased due to the offence having been committed whilst on an ADVO and a separate indicative sentence is fixed which (when the 25% discount is applied back to it) equates to the maximum penalty for that offence, there is a risk of double counting if there is not significant notional concurrence.

42. Further, the applicant was already serving a sentence imposed in the Local Court at the time he was sentenced and his current sentence was imposed by the sentencing judge to commence part way through that sentence. The effect of that is that although the effective 16-year sentence of imprisonment imposed by the sentencing judge on the applicant commenced on 29 September 2023, he had already been in custody from 15 July 2020 until 11 October 2021 and again from 29 October 2021 until 2 July 2022. Significantly, he has been in continuous custody since 29 September 2022 in circumstances where his current effective head sentence does not expire until 28 September 2039 with his earliest possible date of release being 28 September 2034.

43. The sentencing judge made a very generous finding of special circumstances but the effective time in custody, including the sentence the applicant was already serving, was 17 years’ imprisonment. Although her Honour stated that she had adjusted the sentence “down” to avoid a crushing sentence (citing R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159), I am not satisfied that her Honour’s intention was reflected in the sentence ultimately imposed.

Reduced moral culpability

44. The primary focus of the applicant’s submission in this Court, besides the complaint about the application of the totality principle, was that the applicant presented with a particularly strong subjective case insofar as the findings of reduced moral culpability were concerned.

45. The sentencing judge was satisfied that the applicant’s moral culpability was reduced on two separate bases: the principles derived from both Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (“Bugmy”) and Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 (“De La Rosa”).

46. It is to be accepted that a finding of reduced culpability does not necessarily result in a reduced sentence for the reasons explained by Dhanji J in Harris v R [2021] NSWCCA 322 at [89]. But the sentencing judge expressly stated that she had reduced the applicant’s sentence on both of these bases. In relation to the Bugmy factors, her Honour observed:

I take into account the offender’s childhood, namely the fact that he had a disrupted upbringing and that he was sexually abused whilst in juvenile detention. I take those matters into account to reduce his moral culpability and, therefore, reduce the need for general deterrence.

I take those things into account to reduce the offender’s sentence, however, while a background of childhood deprivation or the experience of sexual abuse may reduce moral culpability, making an offender an unsuitable vehicle for general deterrence, the deprived background of an offender when dealing with victims of domestic violence is a situation where victims should not be treated as less worthy of protection, nor that crimes against them warrant less denunciation because of factors personal to the offender: Kennedy v The King [2022] NSWCCA 215 at [43]. (Emphasis added.)

47. In other words, her Honour reduced the applicant’s sentence because of the Bugmy factors but was mindful of what this Court observed in Kennedy v The King [2022] NSWCCA 215 (“Kennedy”).

48. There was no such limitation expressed by her Honour in relation to the reduction of the sentence on account of De La Rosa factors. Her Honour observed the following:

I find on the balance of probabilities that the offender suffers from both Post-Traumatic Stress Disorder and Depression. This is clear from Dr Pusey’s report.

The manner in which a mental illness can be treated includes: as an amelioration of the offender’s moral culpability and the consequent reduction of the need to denounce the crime; the offender may also be an inappropriate vehicle for general deterrence; the significantly greater burden associated with a custodial sentence, which may, as a consequence of the mental condition be far more onerous, can also be taken into account.

I take these matters into account, and I take into account that the offender has a mental condition, that is the Post-Traumatic Stress Disorder and Depression, to find that his moral culpability is less and that the condition of a custodial sentence would be more onerous. This has the effect of reducing his sentence: see the principles as stated in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177]. (Emphasis added.)

49. As stated above although a finding of reduced moral culpability (which the sentencing judge found in the applicant’s case on both Bugmy factors and De La Rosa factors) does not automatically translate to a reduced sentence, her Honour expressly stated that she had reduced the sentence on both of those bases.

50. The fact that the aggregate sentence of 15 years’ imprisonment was imposed not only after the application of a discount of 25% but also after a reduction in sentence on both Bugmy and De La Rosa factors, further leads me to conclude that the aggregate sentence imposed was manifestly excessive.

Conclusion

51. The applicant’s course of conduct warranted condign punishment. In considering the punishment meted out to him I have had particular regard to the facts, the findings of objective seriousness, the maximum penalties, the victim impact statement, the early pleas of guilty, the finding of remorse, the mitigation of the sentence on both Bugmy and De Le Rosa factors and the application of the totality principle. My conclusion is that the aggregate sentence imposed was unreasonable in the circumstances.

Re-sentence

52. The applicant did not rely on any additional evidence in the event of re-sentence, but the Crown did. The affidavit of Adrienne Ey, solicitor for the respondent, affirmed on 10 March 2026, sets out the applicant’s custodial infringements since the sentence proceedings. Regrettably, the applicant has continued to use intimidatory behaviour in custody as follows:

53. On 19 September 2024, the applicant became verbally abusive and spoke in a threatening manner towards a female correctives officer, calling her a “dumb fucking bitch”, “dog” and “fuckwit”.

54. On 21 December 2024, the applicant became very aggressive and argumentative. He called the staff “dogs” and said, “If you think they are so tough come open my door and find out”.

55. On 11 November 2025, the applicant repeatedly threatened to assault a correctional officer, calling him a “dog” and a “gronk”.

56. On 11 February 2026, the applicant stood in an officer’s face and said, “come up to the fucking unit and see how fucking tough you are”. This resulted in him being dismissed from his employment in the technology business unit.

57. The applicant also received two post-sentence infringements relating to unlawfully receiving articles and two infringements for possessing an offensive weapon (a metal bar sharpened to a point). He also refused to provide a urine sample for testing.

58. The applicant was charged and sentenced on 18 June 2025 for an offence of common assault committed on 27 December 2022, a date prior to the imposition of the sentence under appeal. He was sentenced to 2 months’ imprisonment to date from 2 June 2025 to 1 August 2025. This sentence was served wholly concurrently with the sentences under appeal and therefore it is not necessary to vary it in re-sentencing the applicant. It is relevant, however, to my finding of prospects of rehabilitation and risks of re-offending.

59. Significantly, the applicant was also sentenced on 19 December 2025 in the District Court for an offence of affray committed on 28 April 2024 while he was in custody. This offence was also committed prior to being sentenced by Judge Kumar. He was sentenced by Judge Musgrave to 22 months’ imprisonment with a non-parole period of 16 months to date from 28 August 2033, with the non-parole period expiring on 27 December 2034. This effectively added three months (or 90 days) to the effective non-parole period imposed by Judge Kumar on 21 June 2024. This means that the commencement date of that sentence will need to be varied pursuant to s 59(1) of the Sentencing Act as part of the re-sentencing process: see Zreika v R [2023] NSWCCA 317 at [12]-[16].

60. I would adopt all of the findings made by the sentencing judge; none of them were challenged in the event of re-sentence. In particular, I would adopt her Honour’s guarded findings concerning the applicant’s risk of re-offending and prospects of rehabilitation given his more recent conduct in custody. I would make a similar variation as between the effective non-parole period and head sentence as the sentencing judge did on the basis of special circumstances having been established: s 44(2B) of the Sentencing Act.

61. Given that the applicant did not make any complaint in relation to the discrete sentence for the offence committed on 10 June 2022 nor the Commonwealth aggregate sentence, I do not propose to depart from the sentencing judge’s approach in relation to those discrete sentences. Consistent with the manner in which the appeal was argued and the concession that the indicative sentences for the State aggregate offence were not manifestly excessive, I would fix the same indicative sentences but allow for significantly greater notional concurrence in the aggregate sentence for the State offences.

62. The indicative sentences for the State aggregate sentence are set out in the table prepared by the respondent extracted by Roberts J below at [89]. I do not consider it necessary to repeat them here.

63. Although I am not persuaded that it was necessary for the sentencing judge to impose a separate sentence for the breach ADVO offence committed on 10 June 2022, that issue was not the subject of submissions in this Court so I propose to adopt the same course as the sentencing judge and impose a separate wholly concurrent sentence for that offence.

64. Thus, instead of an effective head sentence of 16 years I would impose an effective head sentence of 12 years’ imprisonment on top of the sentence he was already serving. As stated above, it is also necessary to vary the commencement date for the affray sentence to reflect Judge Musgrave’s intention that 90 days be added onto the effective non-parole period for the offence of affray.

65. Accordingly, I would propose the following orders:

66. Grant an extension of time to bring the appeal pursuant to r 3.5 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).

67. Grant leave to appeal.

68. Allow the appeal.

69. Quash the sentences imposed on the applicant by Kumar DCJ on 21 June 2024 and in lieu thereof sentence the applicant as follows:

(a) For the Commonwealth offences an aggregate sentence of 5 years’ imprisonment to commence on 29 September 2023 and expire on 28 September 2028 with a non-parole period of 3 years and 4 months to expire on 28 January 2027. (b) For H503800392 sequence 1 a sentence of 12 months’ imprisonment to commence on 29 September 2024 and expire on 28 September 2025 with a non-parole period of 8 months to expire on 28 May 2025. (c) For the State offences an aggregate sentence of 11 years’ imprisonment to commence on 29 September 2024 and expire on 28 September 2035. The non-parole period is 7 years to expire on 28 September 2031.

5. Vary the date of commencement of the sentence imposed by Musgrave DCJ on 19 December 2025 to commence on 28 August 2030. The non-parole period will expire on 27 December 2031 and the head sentence will expire on 27 June 2032.

6. The effective head sentence is 12 years’ imprisonment to commence on 29 September 2023 and expire on 28 September 2035 with an effective non-parole period of 8 years from 29 September 2023 until 28 September 2031. Given the additional sentence imposed by Musgrave DCJ, the first date the applicant is eligible for parole will be 27 December 2031.

7. SIRTES J: I have had the advantage of reading in draft the reasons of Roberts J, as well as those of N Adams CJ at CL. I am indebted to Roberts J for her Honour’s careful summary of the proceedings on sentence and the principles enlivened by this application, which I gratefully adopt and will not repeat. These reasons assume familiarity with those expressed by their Honours.

8. I agree with Roberts J for the reasons her Honour provides that Ground 2 should be dismissed.

9. However, like the Chief Judge, I have concluded that Ground 1 has been made out. Subject to what follows, I agree with her Honour’s reasons for so concluding.

Aggravation of offences based on ADVO breaches

66. At [40]–[41] above, the Chief Judge explains her view that the sentencing judge applied s 21A(2)(j) of the Sentencing Act as an aggravating factor to those offences committed while the Applicant was subject to an ADVO, and why such an approach gave rise to a risk of double counting. That view also informs her Honour’s conclusion at [34] that, by way of example, the sentence indicated for sequence 326/13 was “particularly high”.

67. Section 21A(2)(j) prescribes as an aggravating factor the circumstance where “the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence”. While the words “conditional liberty” are undefined, there is support for the proposition that being subject to an ADVO is a form of conditional liberty contemplated by s 21A(2)(j): see, eg, Cherry v R [2017] NSWCCA 150 at [80] (Johnson J, Macfarlan JA and Harrison J agreeing); Turnbull v R [2019] NSWCCA 97 at [21] (Simpson AJA, Ierace J agreeing).

68. For my own part, I am not persuaded that the sentencing judge did apply s 21A(2)(j) as an aggravating factor. That is for three reasons.

69. First, the sentencing judge explicitly listed the aggravating factors which her Honour was applying under a heading of the revised remarks on sentence titled “Aggravating Factors”. Section 21A(2)(j) was not one of those factors. Moreover, her Honour remarked that she was applying aggravating factors which the Crown submitted, and her Honour accepted, ought to be applied. The Crown’s outline of submissions on sentence did not proffer s 21A(2)(j) as an aggravating factor for any offence. It also bears observing that the sentencing judge’s reasons were thorough and carefully constructed. As the Chief Judge notes at [8] above, the Applicant could not identify any patent error disclosed by those reasons, and they revealed that the sentencing judge “carefully addressed all of the relevant objective and subjective features as well as the relevant sentencing principles”. In these circumstances, I am disinclined to conclude that the sentencing judge applied s 21A(2)(j).

70. Secondly, reading the sentencing judge’s remarks in context gives me the impression that her Honour’s reference to s 21A(2)(j) formed part of an exposition of general legal principle, rather than an application of it to the offences before the Court. Her Honour’s observations in that portion of the remarks on sentence are an almost precise recitation of the relevant statement of principles in the Sentencing Bench Book: Judicial Commission of New South Wales, Sentencing Bench Book (the Bench Book) at [63-518]. This conclusion is fortified by her Honour’s reference to s 21A(2)(j) applying to offences committed “whilst on conditional liberty for offences arising from breaches of an ADVO” (emphasis added). That characterisation is not the same as “whilst on conditional liberty constituted by being subject to an ADVO” (cf. [34] and [40] above), but it is an essentially verbatim quotation of the Bench Book.

71. In my view, it can only have been a recitation of general principle because the Applicant was not in fact being sentenced for any offence committed while on conditional liberty for “offences arising from breaches of an ADVO”. The 2 June 2020 offences forming sequences 1, 2 and 3 of H91846326 were committed while the Applicant was subject to an ICO but, as the Chief Judge observes at [6] above, that was for an unrelated offence. It is true that the Applicant committed the October 2021 offences while on conditional liberty (namely, parole) for, among other offences, contravening an ADVO. But as Roberts J notes at [117(2)] below, he had been sentenced for that conduct in the Local Court at Bega.

72. I hasten to add that this observation should not be construed as a criticism of the sentencing judge’s approach. With respect, it was entirely appropriate for her Honour to refer to, and even to quote from, established sentencing principles set out in the Bench Book. It is designed to be used for that very purpose. It does, however, lead me to conclude that her Honour’s reference to s 21A(2)(j) did not constitute a finding that it applied as an aggravating factor to offences for which the Applicant was being sentenced.

73. Thirdly, had her Honour intended to apply s 21A(2)(j), it would be expected that, as a matter of fairness, the Court would have raised that possibility with the parties to invite submissions on that prospect: R v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCCA 145 at [19] (Howie J, Grove and Hall JJ agreeing). That the sentencing judge did not do so accords with my impression that her Honour did not in fact apply it as an aggravating factor.

74. For those reasons, I consider that although s 21A(2)(j) was referred to, the sentencing judge did not apply it as an aggravating factor to any offence for which the Applicant was sentenced. Even where a sentencing judge explicitly states that a particular statutory factor is being applied, it may not be possible to infer “how, if at all” it influenced the sentence: Aslett v R [2006] NSWCCA 360 at [36] (McClellan CJ at CL, James and Hoeben JJ agreeing). The present case is weaker still in circumstances where the sentencing judge did not purport to apply the factor, and the remarks read as a whole tell against such an inference being drawn.

75. Although I have come to a different view from the Chief Judge in respect of the statutory aggravating factor, there can be no doubt that the sentencing judge nevertheless considered that the fact offences were committed in breach of an ADVO increased the seriousness of that offending. The Applicant conceded as much at par 8(b) of his amended outline of written submissions on this application. By itself, this discloses no error, as the observations of Roberts J at [155] below indicate. However, in circumstances where separate sentences were indicated for the breaches of the ADVO in addition to the offences which constituted those breaches, I agree with the Chief Judge that the principle of totality assumes particular significance and that substantial notional concurrence may be required to guard against the risk of double counting.

The reduction of the Applicant’s moral culpability

76. I respectfully agree with the observations of the Chief Judge at [44]–[50] above concerning the reduction of the Applicant’s moral culpability. What follows is offered by way of addition rather than qualification.

77. As her Honour describes at [50], the sentencing judge purported to apply a reduction “on both Bugmy and De La Rosa factors”. The Crown addressed this point at par 61 of its written submissions on this application as follows:

“The applicant likewise received the benefit of findings by the sentencing judge that his moral culpability and the significance of general deterrence were reduced on account of the disadvantage in his upbringing, the most significant feature of which was the sexual abuse he was found to have been subjected to in juvenile detention. As noted above, her Honour also found that the applicant’s moral culpability was reduced on account of his mental health impairments. It is artificial to consider the latter as separate and additional to the former given that the applicant’s mental health diagnoses were related to the abuse he received as a 17-year-old.”

(Emphasis added.)

78. There is force in this submission. As this Court (Beech-Jones CJ at CL, N Adams and Cavanagh JJ) observed in DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 at [155]–[156], it can be artificial to attempt to divide the dysfunctional aspects of an offender’s condition, being a disadvantaged background on the one part and a mental health diagnosis on the other, and then somehow separately tabulate their impact on the offender’s moral culpability. This is especially so where there is a “close nexus” between an offender’s deprived background and their mental health issues: Craft v R [2021] NSWCCA 131 at [50] (N Adams J, Garling and Beech-Jones JJ agreeing). Here, the Applicant’s mental conditions were found to flow from the sexual abuse he suffered in detention, which is also the principal Bugmy factor upon which the sentencing judge relied.

79. In these circumstances, I consider that the sentencing judge purported to apply a holistic reduction to the Applicant’s moral culpability and the need for general deterrence synthesising both Bugmy and De La Rosa factors, rather than superadding a reduction for the Applicant’s mental health impairments on top of his disadvantaged upbringing. I do not take the learned Chief Judge to suggest otherwise.

Conclusion

80. There is no dispute that the Applicant’s course of offending was very serious. Regrettably, it is yet another example of domestic violence being a “scourge that afflicts modern Australia”: R v Thompson [2025] NSWCCA 133 at [1] (Bell CJ, Huggett and Rigg JJ agreeing). The Applicant exhibited a contumacious disregard for court orders imposed for the purpose of protecting his victim from him. A lengthy custodial sentence was and is called for, both to deter the Applicant from continuing to offend in this manner, and to mark the community’s opprobrium of serious domestic violence offending.

81. However, there is also no dispute that the sentence imposed on the Applicant was, at the least, stern. He received an aggregate sentence in respect of the State offences of 15 years’ imprisonment. In circumstances where a 25% discount was applied to each of the indicative sentences which comprise that sentence, it can be inferred, as a rough guide, that the notional head sentence prior to the application of the statutory discount was in the range of 20 years’ imprisonment. The aggregate sentence was also imposed after the sentencing judge purported to reduce the sentence on the basis of the Applicant’s diminished moral culpability, and after her Honour indicated that she had adjusted the sentence “downwards” to avoid a crushing sentence.

82. Taking all of those circumstances together, the aggregate sentence was not merely stern but, in my opinion, plainly unjust. That sentence can only have been the product of a misapplication of principle, even where that error is not apparent on the face of the sentencing judge’s reasons: Hughes v R [2018] NSWCCA 2 at [86(2)] (Payne JA, R A Hulme and Garling JJ). The sentence is manifestly excessive, and the appeal must be allowed.

83. It is therefore necessary for this Court to resentence the Applicant. In this regard, I respectfully agree with the reasons of the Chief Judge at [52]–[60] above.

84. I agree with the orders proposed by the Chief Judge at Common Law.

85. ROBERTS J: The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentences imposed upon him by her Honour Judge Kumar in the District Court of New South Wales at Bega on 21 June 2024. The applicant was sentenced following pleas of guilty in the Local Court for 17 state offences and 2 Commonwealth offences, each of which involved domestic violence-related offending against his former partner, her family members and a friend.

86. The sentencing judge imposed three sentences: an aggregate sentence for 16 (all but 1) of the state offences of 15 years’ imprisonment with a non-parole period of 10 years, commencing on 29 September 2024; a sentence for an individual state offence of contravening an apprehended domestic violence order (ADVO) (which was committed whilst the applicant was in custody) of 12 months’ imprisonment with a non-parole period of 8 months, also commencing on 29 September 2024; and an aggregate sentence for the 2 Commonwealth offences of 5 years’ imprisonment with a non-parole period of 3 years and 4 months, commencing 29 September 2023. The overall effective term is one of 16 years’ imprisonment with a non-parole period of 11 years. The non-parole period will expire on 28 September 2034.

87. The applicant seeks leave to appeal on two grounds expressed as follows:

“1. The sentence imposed by the sentencing judge was manifestly excessive.

2. There is a miscarriage of justice by the failure to provide the 24 January 2025 Dr Walterfang report to the sentencing judge.”

88. The Notice of Appeal was filed on 3 December 2025, which is out of time pursuant to r 3.5(2)(a) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW). The respondent does not oppose the short extension of time required.

The offences

89. The details of the offences, maximum penalties, and the indicative sentences specified by the sentencing judge were set out in chronological order in a table prepared by the respondent. It is helpful to include this below:

| Sequence | Offence | Conduct | Maximum penalty | Indicative sentence (after 25% discount) | | 2 June 2020 | | H91846326 Seq 1 | Intimidation s 13(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW) (CDPV Act) | Intimidation of the primary victim on 2 June 2020 | 5 years and/or fine 50 PU | 3 years | | H91846326 Seq 2 | Intimidation s 13(1) CDPV Act | Intimidation of Ebony Hayes (primary victim’s sister) | 5 years and/or fine 50 PU | 2 years | | H91846326 Seq 3 | Intimidation s 13(1) CDPV Act | Intimidation of Nathan Preo (partner of Ebony Hayes) | 5 years and/or fine 50 PU | 2 years | | 10 June 2022 | | H503800392 Seq 1 O**n s 166 certificate | Contravene apprehended domestic violence order (ADVO) s 14(1) CDPV Act | Phone call to victim (while friend Dion Lloyd was present) | 2 years and/or fine 50 PU | Separate sentence imposed: 12 months, NPP 8 months | | H503800392 Seq 3 | Intimidation s 13(1) CDPV Act | Intimidation of Dion Lloyd (victim’s friend) | 5 years and/or fine 50 PU | 1 year | | 20-21 July 2022 | | H90612542 Seq 1 O**n s 166 certificate | Contravene ADVO s 14(1) CDPV Act | Applicant sent 249 messages in a 24-hr period on 20-21 July 2022 | 2 years and/or fine 50 PU | 1 year | | H90612542 Seq 2 | Intimidation s 13(1) CDPV Act | Multiple threats in messages on 20 and 21 July 2022 | 5 years and/or fine 50 PU | 2 years, 8 months (32 months) | | H90612542 Seq 3 | Use carriage service to threaten to kill s 474.15(1) Criminal Code (Cth) | Threatened to kill the victim and her family (via text messages) on 20 and 21 July 2022 | 10 years and/or fine 600 PU | 4 years (Cth offence) | | September 2022 | | H91846326 Seq 4 O**n s 166 certificate | Contravene ADVO s 14(1) CDPV Act | Between 1-30 September 2022: 1,889 messages, phone calls and social media contacts | 2 years and/or fine 50 PU | 1 year | | H91846326 Seq 6 | Intimidation s 13(1) CDPV Act | 12-13 September 2022: Multiple messages berating and threatening the victim, telling the victim he was coming over, that he was going to get her; sent an image of a rifle; sent pin indicating he was at the victim’s house | 5 years and/or fine 50 PU | 2 years, 6 months (30 months) | | H91846326 Seq 8 | Use carriage service to threaten to kill s 474.15(1) Criminal Code (Cth) | Message saying “I’m going to kill you” on 13 September 2022 | 10 years and/or fine 600 PU | 2 years (Cth offence) | | H91846326 Seq 9 | Intimidation s 13(1) CDPV Act | 13 September 2022: further series of messages in which the applicant said he was coming over, he would burn down the victim’s house and her siblings’ houses | 5 years and/or fine 50 PU | 3 years | | H91846326 Seq 10 | Intimidation s 13(1) CDPV Act | 17 September 2022: Called the victim multiple times, sent video messages of cutting himself, and over 60 text messages. | 5 years and/or fine 50 PU | 2 years, 6 months (30 months) | | October 2022 | | H91846326 Seq 12 | Act with intent to influence witness s 323(a) Crimes Act 1900 (NSW) | 7 October 2022: told victim (in two three-way phone calls with Timothy Edwards) to go and see his lawyer and “say it was all you”; applicant also told Mr Edwards to go and see the victim and tell her to do what he said. | 7 years | 3 years, 6 months (42 months) | | H91846326 Seq 13 O**n s 166 certificate | Contravene ADVO s 14(1) CDPV Act | 7 October 2022: two three-way phone calls to victim while applicant in custody | 2 years and/or fine 50 PU | 1 year, 6 months (18 months) | | H91846326 Seq 19 | Act with intent to influence witness s 323(a) Crimes Act 1900 (NSW) | 8 October 2022: applicant told Mr Edwards to visit the victim and tell her to go and see his lawyer and to “give her a warning” | 7 years | 3 years, 6 months (42 months) | | 2023 offences | | H77979945 Seq 1 O**n s 166 certificate | Contravene ADVO s 14(1) CDPV Act | 16 March 2023: Phone call to the victim from custody (three-way call facilitated by third party) | 2 years and/or fine 50 PU | 1 year | | H77979945 Seq 4 | Act with intent to influence witness to procure acquittal for serious indictable offence s 323(a) Crimes Act 1900 (NSW) | 30 March 2023: Letter to the victim giving her three ‘options’ in relation to the applicant’s District Court matters | 14 years (by application of s 324 Crimes Act) | 3 years, 6 months (42 months) | | Form 1 | Form 1 attached to Seq 4 | | H77979945 Seq 2 Contravene ADVO s 14(1) CDPV Act | 30 March 2023: Letter sent to the victim | 2 years and*/or fine 50 PU* | | H78104535 Seq 1 O**n s 166 certificate | Contravene ADVO s 14(1) CDPV Act | 2 August 2023: spoke to the victim in two phone calls from custody | 2 years and/or fine 50 PU | 1 year |

90. The applicant was sentenced in accordance with two statements of agreed facts. The facts were set out in detail in the sentencing judgment (SJ). Given that ground 1 is a complaint of manifest excess, it is necessary to also set out the facts in some detail here.

91. The applicant (born in 1988) and Dakota Hayes (born in 1999) were in what was described as an “on and off again” intimate relationship for about 4 years as at 2022. At the time of the offences, there was an ADVO in place, which included conditions prohibiting the applicant from contacting or approaching Ms Hayes (the victim).

2 June 2020: Intimidation (Seq 1); Intimidation of Ebony Hayes (Seq 2); Intimidation of Nathan Preo (Seq 3)

92. On about 2 June 2020, the applicant attended the victim’s home and yelled at her to get into his car. She complied. He drove her to a nearby location, where he forced her to “smoke crack” with a pipe before driving them elsewhere. The victim became fearful of the applicant’s behaviour and left the vehicle. After contact from the victim’s mother, the victim’s sister Ebony Hayes drove to the area to collect the victim, who ran out of the bushes barefoot, jumped into the back of the car, and screamed “go, go, go”. As they drove towards Ms Ebony Hayes’ nearby home, the applicant pursued them in his car, overtook them and stopped near the driveway entrance, attempting to prevent them entering. He got out of his car and walked towards Ms Hayes’ car with a head torch on his head. Ebony Hayes’ partner, Nathan Preo, came out of the house to assist while the victim ran inside the house and hid under a child’s bed. The applicant yelled at Ms Hayes and Mr Preo:

“I want Dakota; I won’t leave without Dakota”

“I’m not going to hurt your sister, if I was going to I would have taken her out bush on the way here and chopped her head off*”*

“I’ve got a gun in the car, if you don’t fucking come out Dakota, I’ll kill everyone”

“I have a gun in my boot, and I will shoot you all if you don’t let Dakota go”

“I’ll shoot you all if Dakota doesn’t get in the car now*”*.

93. The victim was aware that the applicant had access to guns, as she had seen him with them before. Police were called. The applicant left before they arrived.

10 June 2022: Contravene ADVO (s 166 certificate); Intimidation of Dion Lloyd (Seq 3)

94. On 10 June 2022, the victim received a phone call from an unknown woman who facilitated a three-way phone call with the applicant, who was in custody at the time. The victim’s friend, Dion Lloyd, was with her, and she put the call on speaker. Upon hearing Mr Lloyd’s voice, the applicant said words including:

“who’s that?… he’s there isn’t he… Dion, of course… I get out in three weeks, I knew exactly [when] you carried on like that, that was why because he was home, you know it, can’t believe you would let him come back to ya and do that shit again.… I just want you to be happy and not be with that fucking grub… three weeks Dion, three weeks, I’ll be fucking home, I’m going to jump on your fucking head…

(The victim said “I could breach you for this you know…”)

“I’m not threatening you, I’m threatening that little fucking gronk…”

95. Approximately 2 July 2022, the applicant was released from custody and began persistently contacting the victim including via Facebook, Signal and by phone.

20-21 July 2022: Contravene ADVO (s 166 certificate); Intimidation (Seq 2); Use carriage service to make threat to kill (Cth offence)

96. Between 20-21 July 2022, the applicant sent the victim 249 messages in a 24-hour period. The messages included threats to kill the victim, and her family and friends and more general threats. The messages demonstrate that the applicant had been watching the victim’s house and who was coming and going. The threats included:

“[…] if I hear you are seeing anyone even speaking to another I will kill them 100% without a doubt or second thought and probably you to”

“I told you if you call the cops again ill fucking kill you and for this tonight and calling the you pushed me… I’m going to kill your whole family… […] you reckon they’ll hear me walk the drive way and burn the fucking house down…oh quick call them get them to get in the car like that cunt in Queensland and his own misses and kid…”

“…cya later you dumb dead dog… I just called to hear you beg me not to kill your whole family […] once the first house goes up in flames you’ll beg me to take you back…”

“[…] I’m going to come back to your place right now because your a fucking dog... fucking dog cop calling fucking slut I’m going to fuck you up really good I won’t kill you straight away ill let you know my pain first before I shoot you… you won’t even hear me in this rain… and don’t think I don’t know the blind spot on the cameras…”

“[…] after I take you hostage this time for real this time im going to rape you… until your arse bleeds like mine does everyday...”

(emphasis added).

97. Contact ceased for a short period from 21 July 2022 because police were looking for the applicant and he left the state. The applicant recommenced contacting the victim from mid-August 2022 using a variety of methods including four different phone numbers, Signal and Snapchat.

1-30 September 2022: Contravene ADVO (s 166 certificate)

98. Between 1 and 30 September 2022, the applicant contacted the victim in 1,889 messages, phone calls and social media contacts.

12-13 September 2022: Intimidation (Seq 6)

99. On the night of 12-13 September 2022, the applicant sent a message to the victim asking her to unblock him on Snapchat, then some further messages berating her, followed by a series of messages in which he said, “I’m coming”, “right now” and “you got one minute”. The victim told the applicant to stop. The applicant sent further similar messages including “I’m coming now”, “Get ready”, “I’m going to make you feel how I feel” and “Come outside”. At 12:19am, the applicant texted “I’m going to get you” and at 12:28am he sent an image of a rifle. He also tried to call the victim three times. After a phone call, the applicant sent a further 23 messages, which included, “Your going to get it” and “You just showed deon you still love him and I hope he comes back after I jump on your head and ruins your like some more”.

100. The applicant then sent a “pin drop” showing the victim that he was at her house. He sent her further text messages which included (inter alia):

“In your fucking house waiting for you dog”

“And I’m coming now I’ll see you when your looking me dead in the fucking eyes and watch how much you fucking beg then slut I bet your attitude and respect changes then”

“[…] I’m going to drag you through your house by the hair in front of you mum whiles she watches me stomp your fucking head until you stomp being a disrespectful dog and it looks like until you stop breathing”

“Its a promise not a threat”

“Be seeing you really fucking soon”.

13 September 2022: Use carriage service to threaten to kill (Cth offence)

101. At 8:36pm on 13 September 2022 (during the course of continued contact from the applicant), the victim sent a message to the applicant asking him “Please stop treating me like this”. The applicant tried to call the victim and sent her multiple messages. At 8:37pm the applicant sent a message which read: “I’m going to kill you”.

13 September 2022: Intimidation (Seq 9)

102. At 8:38pm, the applicant sent a message to the victim which read “I hope you fucking kill yourself… for what you’ve done to me”. The victim replied “You keep treating me like this! Stop then”. The applicant then sent the victim over 40 messages and called her 20 times. The messages included:

“I’m not going to stop treating you like this until you treat me with some respect or your dead either way or I’m dead makes no difference”

“Oh I’m coming now”

“And if your not home I’ll burn it down”

“Your home I can see your car lol”

“I’ll give you one more chance before i come up there and put this car in your lounge room or better yet you”

“I’ll give you until the end of the night from now to call me and unblock my snap or that’s it I’m getting you in the weekend of you run away I’ll go to your brothers house then to your sisters house with 20 litres of fuel for each”

“I’ll be there while your sleeping and you wont even know when i come over the back fence in through the back door even if its locked Ill smash the window and come in”

“I gave you the chance to change this now its over I’m getting in the car now and am on my way”

“I’ve already got 60 litres on the back”.

17 September 2022: Intimidation (Seq 10)

103. On 17 September 2022, the applicant called the victim multiple times, sent video messages of himself cutting his arm and chest and speaking to the victim, and sent over 60 text messages. The applicant told the victim that he was going to kill himself because of her. He also said:

“I should of killed you when I found out about Nixon that night”

“I should come kill you with myself and then we both die together”.

104. In one video, the applicant faked cutting himself, accompanied by a series of messages in which he told the victim that there was “so much blood” and the phone was getting slippery. The victim then received a message from the applicant’s number which read:

“Is this Bens ex we found him unconscious on the floor… the ambos are on the way… he doesn’t have a pulse and has lost a lot of blood… the notes blaming you Dakota…”.

7 October 2022: Act with intent to influence witness (Seq 12); Contravene ADVO (s 166 certificate)

105. On 7 October 2022, the applicant was in custody at Parklea Correctional Centre. He phoned Timothy Edwards and they arranged a three-way phone call with the victim. The applicant acknowledged that adding the victim to the call was risky as Mr Edwards would be “aiding in the breach”. Once the victim was added to the phone call, the applicant told her “[…] I’ve got court on Tuesday, you need to go and see my lawyer on Monday, yeah, or Tuesday […]”. He told her the name and location of his lawyer. He said “So you want to do what we spoke about like it can’t be taken back, you can just say you said it, alright… I’m still going to face the other charges”. The victim told the applicant “I’m not going to do anything further but I don’t really want to drop the first charges”. They had a further exchange and the applicant became angry. He told the victim “Nah, oi! I thought we’d spoken about this?… you can’t have it retracted… but you can say it was all you, and we spoke about that”. The victim denied they had spoken about anything. The applicant made further similar comments. He said that he would call the victim back and the call ended.

106. A few minutes later, the applicant contacted the victim again via a three-way call facilitated by Mr Edwards. Before the victim was added into the conversation, the applicant told Mr Edwards:

“Oi. Listen to me, oi, after, I want you to see the cunt in person, yeah, and you tell her… if it doesn’t do what it said it would… I will come and do everything that I’m going to go down for, will be done when I get out.”

107. Once the victim was added into the call, the applicant told her:

“Just go and see the lawyer on Tuesday go try and see him on Monday alright”

“Speak to him about what we spoke about aright”

“Just listen to me, go in an speak to the lawyer, right, we will be able to speak together in fucking person then, ok, once you approach the lawyer… It will all be in a fucking closed court room, ok, you won’t fucking look like an idiot”.

108. The victim said “No, I don’t have to do this, no…”. After some further conversation in which the applicant repeated his request, the victim left the call. The applicant then told Mr Edwards “Just sort it out, yeah” and “I’m serious, let her know what still has to be done, bro”.

8 October 2022: Act with intent to influence witness (Seq 19)

109. On 8 October 2022, the applicant contacted Mr Edwards again. When Mr Edwards told the applicant that the victim had blocked his number, the applicant made comments including:

“you need to go round there, cunt”

“fucken, cunt, bait the dog or something”

“I’m sure you could fucken, um, get some fucken practice in with the fucking bow and arrow cunt”

“Go and see her first and say… you know exactly what to say cunt; if she’s not there on Tuesday… go and see her before then”

“She doesn’t understand, cunt. What does she think is gonna happen, cunt, now when I get out”

“That’s what I am saying to you… I’m saying to her that she can’t drop it… I’ve spoken to the lawyer and she can say that she done it herself, yeah, that’s what you need to go and speak to her about and say look, I’ve already spoken to the lawyer and that… her going on about how she’s going to look like an idiot herself, nothing is going to come back on her”.

110. The applicant called Mr Edwards a second time about an hour later and said,

“I’m serious about that… Do it fucken this afternoon, do it cunt, chuck it over there cunt and let it fucken”

“Oi, make sure you fucking go, I’m serious, swear to me cunt, swear on our friendship. Fucken. Oi, I’m serious about fucken, about the dog and the fucken (indecipherable), do something about it… give her a warning cunt”.

111. After Mr Edwards agreed to do what the applicant had asked him, the applicant said

“… Court is on Tuesday, I need her to go see the lawyer tomorrow or Tuesday, Monday or Tuesday, she needs to be there. If she is there then we can speak to the lawyer together and I can sort it out. She needs to understand that. I’m serious about the other shit. I don’t give a shit if she does come now cunt, if she does what I want… Let this be a lesson.”

The applicant again gave Mr Edwards the name of his lawyer.

March 2023: Contravene ADVO (s 166 certificate); Act with intent to influence witness to procure acquittal for serious indictable offence (Seq 4); Contravene ADVO (Form 1 to Seq 4)

112. On 16 March 2023 the applicant was in custody, bail refused for other offences alleged to have been committed against the victim. The applicant contacted the victim via a three-way phone call facilitated by another man. During the phone call, the applicant said words to the effect “obviously I can’t say who it is. I’m sorry about the phone call.”

113. On 30 March 2023, the victim received a handwritten letter in her mailbox. The sender details were in the name of a Tory Gardner from a correctional centre. The details of the letter made clear it was from the applicant as it included reference to his upcoming court matter for previous breaches; a tattoo he had of the victim’s name; and the fact he had known the victim since she was 18 years old. He also discussed how the victim could contact him without prison authorities becoming aware.

114. In the same letter, the applicant outlined how many charges were before the District Court and the penalties they carry. He gave the victim three “options”:

“1. Speak to the lawyer together, get it all squashed and make it all go away without the courts bullshit.

2. You all don’t turn up for trial and it all gets dropped

3. You all turn up for trial and take the stand against me which is going to go on for weeks at a time over the next 2-3 years.”

2 August 2023: Contravene ADVO (s 166 certificate)

115. On 2 August 2023 the applicant called the victim twice from an unknown number. The victim missed both calls. The victim called the number back and the applicant answered. They had a conversation in which the applicant told her to watch out for a man named ‘Bill’ “because he has plans to hurt you to get at me”. He also told the victim “I don’t know what is going on, whether it’s you or not but every time I call you, I get another charge”. The victim told the applicant that he should not be contacting her. The applicant said that he was going to plead guilty but was just waiting for something. After the call ended, the applicant contacted the victim in another phone call in which a female voice spoke first, followed by the applicant; the applicant mentioned Bill again, and the victim again told the applicant not to contact her.

The applicant’s subjective case

116. The applicant was aged between approximately 32 to 35 years old at the time of the offending and was 36 years old when sentenced. The applicant’s adult criminal history commenced in 2008 at the age of 19. He had convictions for offences including contravening ADVOs, using a carriage service to menace/harass/offend, failing to appear, stalking/intimidation, assault occasioning actual bodily harm, affray, being armed with intent and destroy/damage property. The sentencing judge observed that the applicant had also incurred multiple infringements whilst in custody, including for fighting, assault and intimidation.

117. The applicant was subject to an Intensive Corrections Order at the time he committed the June 2020 offences. At and around the time he committed some of the subject offences, he was on remand or serving sentences for other offences, including offences against the present victim. The facts for the applicant’s prior offending against the victim were tendered before the sentencing judge, and relevantly established:

118. The applicant was convicted of one offence of contravening an ADVO for an incident on 15 July 2020 when police found him in the roof cavity of a house that he was prohibited from approaching. The applicant was sentenced for this offence as part of a 2-year aggregate sentence of imprisonment involving other matters.

119. The applicant was released from custody on 11 October 2021. From that date he constantly contacted the victim via multiple messaging apps and engaged in arguments with respect to new partners and their own relationship. On 14 October 2021 he called the victim twice and said he was coming for her, “you’re fucking dead” and he would “take pieces of your body back to gaol […] after I hack you up”. On 20 October 2021 he called the victim and told her that one day he would “get her” so she should leave him alone. Between 21 and 25 October 2021, the applicant sent the victim 102 messages and she replied about 20 times, including with requests to be left alone. The applicant was convicted of two charges of intimidation, and one of contravening an ADVO and was sentenced at Bega Local Court to 6 months imprisonment to date from 29 October 2021 to 28 April 2022;

120. The sentencing judge had before her a Sentencing Assessment Report (SAR) dated 11 December 2023 (apparently prepared with respect to the July 2022 offences). It recorded a history of post-traumatic stress disorder (PTSD), anxiety and depression and previous self-harm attempts. The applicant reported long term drug use commencing in his early teenage years and reported that he engaged in illicit drug use including “ice” to assist in managing the impacts of his own trauma history. Under the heading “Attitudes”, the report records that the applicant spoke in derogatory terms about the victims of his offences, and that “[w]hile he primarily accepted that he was responsible for the offences, [the applicant] appeared to minimise this responsibility by indicating the victims/survivors’ awareness of his capabilities as a justification for why the victim should not have wronged him.” The applicant also appeared to minimise his responsibility for past domestic violence offending as well as the significance of an ADVO. He was said to have disclosed “recurrent impulsive behaviour, and willingness to use violence as he feels justified, including the use of pre-emptive violence to manage perceived, actual or potential threats. He stated a preparedness to retaliate with violence to uphold his reputation”. The applicant was assessed at a high risk of reoffending.

121. The sentencing judge had before her a victim impact statement, in which the victim stated that she experiences nightmares and panic attacks resulting from the abuse; that her ability to work was “extremely impacted” due to fear and having to flee the area to ensure the safety of herself, her mum and her pets.

122. The applicant tendered the report of Dr Paul Pusey, clinical and forensic psychologist, dated 8 November 2023. Dr Pusey had interviewed the applicant and prepared a report for the purpose of “address[ing] the question as to the presence of any mental health related mitigating factors”. It is noted that the only detailed discussion of the facts of any specific offending with Dr Pusey appeared to relate to the “bashing” of a male friend (not a matter the subject of these proceedings) for which the applicant later “went on the run” for 3 months. The applicant did attribute his domestic violence offending to the use of ice, “either hers or mine”.

123. In terms of his background, the applicant said he had left school early and used drugs from the age of 13, and from there became involved in criminal conduct. He disclosed to Dr Pusey that he was sexually assaulted in juvenile custody, that it had happened when he was 17 years of age and it was perpetrated by 2 members of staff, multiple times. He indicated he was pursuing legal action with respect to this, and that it was difficult to seek mental health treatment in custody because it would “activate [his] negative response” to the prior abuse and “put [him] in a bad way”. He stated that he was “institutionalised” and that he always stayed “prepared to return to [gaol]”, that he had “bad PTSD, depression and anxiety, but I can’t show weakness so I fight instead”. He related a history of extensive drug use, which he attributed in part to self-medication. In custody this was managed by prescribed injections.

124. Dr Pusey opined that the applicant met the diagnosis for a substance use disorder, PTSD and persistent depressive disorder. He considered that the applicant’s substance use disorder “when potentially acting in combination with pathology relating to his diagnosis of a Post Traumatic Stress Disorder impaired his judgment and behaviour”. Dr Pusey assessed the applicant’s risk of reoffending as high.

125. The applicant tendered a letter from a solicitor from Slater and Gordon lawyers dated 7 June 2024. The letter stated that the solicitor acts for the applicant in relation to an institutional abuse claim relating to psychological injury suffered during his time in detention as a minor and referred to the applicant’s willingness to undergo a medico-legal examination related to the claim.

126. The applicant tendered a handwritten letter addressed to the sentencing court in which he made reference to his difficulties speaking about and seeking help for his experience of sexual abuse as a minor, that it had been the “underlying issue” for him having effects upon his mental health, his drug use and his attitudes to his own offending. In the letter the applicant said he should have sought help earlier and that he took “full responsibility for all my actions and charges”. He said that he was apologetic to the victims for what he had put them through and he did not agree with domestic violence but added that in his experience “99% [of the time] both sides are always involved in one way or another”.

Findings of the sentencing judge

Objective seriousness

125. The sentencing judge did not place individual offences along a notional range but identified factors relevant to the objective seriousness of the offences, finding that all of the offending was objectively very serious. The sentencing judge discussed the facts of each offence in detail. She found that the offending in 2020 and 2022 was “persistent and relentless” and “very serious”. With respect to the intimidation offences, the fear of harm was brought about by serious threats of violence by the applicant towards the victim, her family and friends.

126. Each of the Commonwealth offences of making threats to kill were serious offences assessed in the context of the surrounding circumstances, although the July offence was more serious than the September offending.

127. The offences of 7 October 2022 were also found to be “very serious”, noting the extent of the applicant’s arrangements involving a third party to facilitate his phone contact with the victim from custody. The offence the following day was also “extremely grave”, in which the applicant contacted a third party and told him to go and see the victim and convey threats.

128. The 2023 offence of acting with intention to influence a witness was also “grave” and involved sending a letter under the name of another inmate. The ADVO contraventions on 16 March 2023 and 2 August 2023 were “distinct and separate” acts of criminality from what had preceded them.

The applicant’s subjective case

129. The sentencing judge accepted that the applicant had been sexually abused whilst in juvenile detention and found that the sexual abuse and the applicant’s disrupted childhood reduced his moral culpability and the need for general deterrence. When dealing with Dr Pusey’s report, the sentencing judge said:

“[The applicant] detailed to Dr Pusey that he was sexually abused when he was 17 years old by two members of the staff whilst he was in juvenile incarceration. He reported that he made his initial disclosure about three to four years ago to a lawyer and that this incident contributed to his drug taking and other problems, and that he has Post-Traumatic Stress Disorder because of it. The offender detailed to Dr Pusey “a history of suicide attempts and his engaging in deliberated self-harming behaviour”.”

130. The sentencing judge had regard to the applicant’s letter to the Court and noted that in his letter, the applicant said that his sexual abuse as a minor had been an underlying issue for most of his adult life. When turning to the question of moral culpability, having set out the submissions on the applicant’s behalf and the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (“Bugmy”), the sentencing judge found:

“I take into account the offender’s childhood, namely, the fact that he had a disrupted upbringing and that he was sexually abused whilst in juvenile detention. I take those matters into account to reduce his moral culpability and, therefore, reduce the need for general deterrence.

I take those things into account to reduce the offender’s sentence, however, while a background of childhood deprivation or the experience of sexual abuse may reduce moral culpability, making an offender an unsuitable vehicle for general deterrence, the deprived background of an offender when dealing with victims of domestic violence is a situation where victims should not be treated as less worthy of protection, nor that crimes against them warrant less denunciation because of factors personal to the offender: Kennedy v The King [2022] NSWCCA 215 at [43].”

131. The sentencing judge found that the applicant suffers from PTSD and depression, and by reasons of these conditions, the applicant’s moral culpability was reduced, and a custodial sentence would be more onerous upon him.

132. The sentencing judge found that the applicant was entitled to a 25% discount for his pleas of guilty in respect of all offences. She observed that the SAR suggested that the offender tended to minimise his responsibility, however, having regard to the applicant’s letter, found that the applicant was remorseful and had “taken steps to accept responsibility for his offending”. She found that his prospects of rehabilitation were guarded, and his risk of reoffending high. The sentencing judge found that the applicant was at risk of institutionalisation and took that matter into account in determining the sentence and making a finding of special circumstances.

133. In considering the totality principle, the sentencing judge observed that the matters involved similar offending and that the offences were related in some way, concluding that the sentences should be “partially cumulative” but that the aggregation of all of the sentences must be a “just and appropriate measure of the total criminality involved”.

The appeal

Ground 2: There is a miscarriage of justice by the failure to provide the 24 January 2025 Dr Walterfang report to the sentencing judge

134. It is convenient to address ground 2 first. The applicant relies upon a report of Professor Mark Walterfang, a neuropsychiatrist and medicolegal consultant, dated 24 January 2025 (the Walterfang report) and provided to Slater and Gordon lawyers (acting for the applicant in respect of his civil claim as referred to above). From the date alone it is apparent that the Walterfang report did not come into existence until after the applicant had been sentenced. In substance, despite the framing of the ground, it is the applicant’s contention that the miscarriage arises because particular material in the Walterfang report was not before the sentencing judge. Counsel for the applicant, Ms Evers, identified in this respect both the “more detailed and more graphic account” given by the applicant of his abuse in juvenile custody; and the “much more thorough” discussion of the resulting psychological and other impacts upon him. Ms Evers submitted that had the Walterfang report been before the sentencing judge, it would have made a material difference to the sentencing exercise and outcome, as the sentencing judge would have had a “full appreciation” of what the applicant had experienced as a young person. In particular, Ms Evers emphasised the extent and nature of the sexual violence perpetrated upon the applicant, and the account the applicant gave Professor Walterfang of chronic anal bleeding which was said to have affected his ability to work long term along with the associated mental health complications.

135. The Walterfang report was received by this Court for the purpose of addressing the ground.

Principles

136. The principles applicable to a ground which asserts a miscarriage of justice by reason of material which was not before a sentencing judge are set out in Barnes v R [2022] NSWCCA 140; (2022) 299 A Crim R 483 by Hamill J (Gleeson JA and Ierace J agreeing) at [24]-[34]:

“24 The long standing practice of intermediate appellate courts around Australia is that sentence appeals are generally to be determined based on the material that was before the sentencing court. Once error has been demonstrated, evidence of an offender’s “progress toward rehabilitation in the period since the sentencing hearing”, may be admitted. The rationale for the general rule was explained in Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [2]:

“As a general rule, the appellate court's assessment of whether some other sentence is warranted in law is made on the material before the sentencing court and any relevant evidence of the offender's progress towards rehabilitation in the period since the sentence hearing. For the purposes of that assessment, an offender is not permitted to run a new and different case. This general rule does not deny that an appellate court has the flexibility to receive new evidence where it is necessary to do so in order to avoid a miscarriage of justice.”

25 The final sentence of that passage makes clear that the general rule is not absolute. A review of cases over decades discloses many examples where evidence has been admitted on appeal to prevent a miscarriage of justice. One example relates to evidence of medical conditions that were present at the time of sentence but whose true impact was not appreciated at the time. Another example is where the evidence was not adduced at first instance due to incompetent legal representation. On occasion, evidence of assistance to authorities has been admitted on appeal. This Court has recognised that the circumstances that may give rise to an exception to the general rule are not exhaustively defined. In Richardson v R [2021] NSWCCA 304, Dhanji J said at [158]:

“…the circumstances in which fresh or new evidence will be admitted other than on the usual basis are not necessarily closed.”

26 The power to receive the material is a discretionary one and the general rule against admissibility should not be exercised so rigidly as itself to “be the cause of injustice”. It has been held that a degree of flexibility is preferrable where the statute is silent and the Court’s jurisdiction is concerned with the prevention of a miscarriage of justice.

27 While the authorities throw up many cases where evidence has been admitted on appeal, the general rule prevails in most cases. Additional evidence is only received where proper grounds have been established. The Court has been “at pains” for decades to ensure that the rule against admission of this evidence will only yield in “rare and exceptional cases” or, put another way, for “substantial reasons [where there is] a grave risk of injustice.”

28 The case law draws a distinction between “fresh” and “new” evidence. Evidence will constitute “fresh evidence" if it was not available to a party, “could not have been discovered with the exercise of reasonable diligence” at the time of sentence, and its admission will depend on whether it had the “capacity to affect the outcome of proceedings at first instance.” “New” evidence is material that was available but not used, or was discoverable with reasonable diligence at the time of sentence. Fresh evidence is received more readily than new evidence.

29 However, the distinction was not emphasised in Betts v The Queen, and it is a dichotomy of greater significance in appeals against conviction. This Court’s prevailing approach to the reception of both kinds of evidence on sentence appeals is encapsulated in the following passage from Betts v The Queen at [10]:

“Notwithstanding its wide terms, it is well settled that the Court of Criminal Appeal's power to intervene is not enlivened unless error in any of the ways explained in House v The King is established. The identification of error will ordinarily be by reference to the sentencing judge's reasons on the material that was before the court. However, the Court of Criminal Appeal has recognised that there are bases upon which error at first instance may be disclosed by new or fresh evidence. Generally, the Court of Criminal Appeal insists upon proper grounds being established as a foundation for the exercise of its discretion to receive fresh evidence. Evidence qualifies as fresh evidence if it could not have been obtained at the time of the sentence hearing by the exercise of reasonable diligence. None of this is to deny that the Court of Criminal Appeal has the flexibility to receive new evidence where it is necessary to do so in order to avoid a miscarriage of justice.” (footnotes omitted)

30 One of the decisions cited by the High Court was the decision of R v Goodwin (1990) 51 A Crim R 328. In that case, Hunt J (as his Honour was at the time) set out the following relevant considerations:

“(1) that the additional material sought to be put before this Court is of such significance that the sentencing judge may have regarded it as having a real bearing upon his decision;

(2) that, although its existence may have been known to the applicant, its significance was not realised by him at the time; and

(3) that its existence was not made known to the applicant’s legal advisers at the time of those sentencing proceedings.”

31 Another case to which reference is frequently made is R v Smith (1987) 44 SASR 587 where King CJ, said at 588:

“While the evidence sought to be admitted on this appeal in a sense establishes the occurrence of events occurring after the passing of sentence, it does so for the purpose of explaining the full extent and implications of the appellant's condition of health which existed at the time of sentence. I think that the authorities show that it is permissible to have regard to events occurring after sentence for the purpose of showing the true significance of facts which were in existence at the time of sentence.”

32 The cases draw a distinction between evidence of facts that have arisen entirely after sentence, which “cannot be taken into account, no matter how compelling they may be” and are properly the province of the executive, and evidence of factual circumstances which existed at the time of sentence or post-sentence evidence which throws light on facts that existed but were not fully appreciated.

33 In Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509, Simpson J (as her Honour then was) referred to the “subset of evidentiary propositions” which have emerged. Her Honour articulated the criterion for admissibility slightly differently saying it was when “the interests of justice have so dictated.” Her Honour recognised, distinct from the identification of any error, the basis for the discretion is to correct a misunderstanding. Her Honour addressed the task of the Court in respect of this kind of evidence:

“That the evidence may cast light on circumstances known, but not fully appreciated, at sentencing, does not dictate that it will be admitted. The judgment remains a discretionary one. It is proper for the Court examine the circumstances of, and any explanation for, the non-production of the evidence - a deliberate decision on the part either of the applicant, or his or her legal representatives, ignorance in the applicant of the significance of the evidence, resulting in its not being communicated to the legal representatives, incompetent legal representation. At the outer limits, the cases also include those in which post sentencing circumstances are taken into account as relevant to known pre-sentencing circumstances (for example, Springer). Also relevant will be the potential significance of the evidence to have affected the outcome at first instance (for example, Ashton).”

34 The situation in the applicant’s case can be contrasted with the case of Wright v R [2016] NSWCCA 122; (2016) 259 A Crim R 133, where the sentencing Judge “said a number of times that the applicant’s incarceration would be more difficult than it otherwise might be.” The Court declined to admit fresh evidence of dementia because the difficulties of incarceration “already formed a major component of the assessment of sentence”. Similarly, in Cabezuela v R [2020] NSWCCA 107, fresh evidence was not admitted because the potential hardship in custody was recognised at sentence, albeit not with the benefit of the additional evidence. In Kaveh v R [2017] NSWCCA 52, Latham J said at [33]:

“However the additional evidence is characterised, the salient question that governs the exercise of the discretion to admit the material is whether it may have had a real bearing on the exercise of the sentencing discretion: R v Goodwin (1990) 51 A Crim R 328; R v Fordham (1997) 98 A Crim R 359. There is nothing in the report that supports the contention that the applicant is experiencing hardship beyond that anticipated by the sentencing judge. The significance of the applicant’s symptoms [was] fully appreciated at the time that sentence was imposed. Consistent with her Honour’s view, the report suggests that the applicant is being appropriately treated for the same afflictions that were identified during the sentencing proceedings. I can discern no basis for concluding that the contents of Mr Jolan’s report may have persuaded her Honour to exercise her sentencing discretion more favourably to the applicant.”” (Footnotes omitted).

Consideration

137. The Walterfang report is plainly “new” rather than “fresh” evidence. The applicant had already complained of sexual abuse in juvenile custody to Dr Pusey, to his solicitors at Slater and Gordon, and in a letter tendered in his sentence proceedings in which he emphasised its influence on his life trajectory. Dr Pusey’s report did not only record the applicant’s history of sexual abuse but provided an opinion with respect to it. Had the applicant’s legal representatives considered it necessary or desirable, an additional psychological report could have been obtained for the purposes of the sentencing proceedings. The applicant could have provided additional detail about his background sexual abuse had he chosen to do so. It was advanced (by way of oral submission) that the reason the applicant did not, was the difficulty of discussing such matters in custody. Dr Pusey interviewed the applicant by AVL from Bathurst Correctional Centre. Professor Walterfang interviewed the applicant “via telehealth” on 24 January 2025. As the Crown correctly pointed out, the applicant was also being interviewed from custody at that time, having been sentenced for the present offences.

138. The Walterfang report was prepared for the purpose of civil proceedings, rather than proceedings on sentence. This is reflected in the different focus and emphasis in the report, compared with the report of Dr Pusey.

139. The Walterfang report does contain a far more specific and detailed account of what the alleged abuse was said to involve, in terms of the physical acts and their circumstances. Of particular relevance to the applicant’s submission, it is alleged that it involved painful forced penile-anal intercourse which caused acute and subsequently chronic anal bleeding. The applicant told Professor Walterfang that this symptom affected his ability to maintain employment. (It may be noted, however, that Professor Walterfang also observed that other major contributors were the applicant’s difficulty with authority figures, emotional regulation, and significant daily substance use). Additionally, in the context of informing Professor Walterfang that he was serving a 10-year sentence for domestic violence offences, the applicant said that he would often say to the victim “horrible things such as, “[y]ou deserve to be pinned down and raped like I was”.” Again, it may be observed that this is similar to the threat to rape the victim recorded in the agreed facts before the sentencing judge for the offences on 20-21 July 2022 (at [97] above).

140. Similarly to the findings of Dr Pusey, Professor Walterfang opined that the applicant meets the criteria for PTSD, major depressive disorder and substance misuse disorders. Again, similarly to Dr Pusey (and as is in any event clear from the facts of the offending and the applicant’s criminal history), Professor Walterfang observed that the applicant has a “history of impulsive behaviour, irritability, aggression, disregarding the safety of self and others and a pattern of significant irresponsibility” and opined that the applicant’s prognosis for recovery is “very guarded to poor”. In response to a specific question about a causal or contributory relationship between the sexual abuse and the applicant’s criminal offending, Professor Walterfang opined that there was a “clear link between [the applicant’s] drive for substance abuse and offending to support his habit, but also the increased rates of assault as a result of his significant difficulties managing anger following the betrayal he suffered at the hands of trusted authority figures”. It may be observed that this latter opinion is very similar to but arguably somewhat less favourable to the applicant in a sentencing context than the opinion expressed by Dr Pusey concerning the applicant’s overall impaired judgment due to PTSD.

141. In submissions before this Court, counsel for the applicant placed considerable emphasis upon the more detailed history of the abuse and its effects, and the particular physical symptom to which reference has already been made. While it was contended that the compelling nature of these details would have contributed to the process of instinctive synthesis engaged in by the sentencing judge in a way which was favourable to the applicant, the applicant was unable to identify with specificity any additional or different finding that the sentencing judge would or could have made in light of the new evidence.

142. There was no material difference between what was already before the sentencing judge and what would have been before her, had the applicant or his legal representatives chosen to disclose or obtain additional evidence in the nature of the Walterfang report. The sentencing judge accepted without qualification that the applicant had suffered sexual abuse while he was in juvenile custody, that it was the “underlying” event in the applicant’s life, and had led to psychological problems including PTSD, depression and substance misuse. The sentencing judge took these matters into account to find that the applicant’s moral culpability for the offending was reduced. The significance of this aspect of the applicant’s case was recognised and addressed at the time of sentence. The relevant matters arising from the Walterfang report were already known to the sentencing judge and taken into account favourably to the applicant.

143. No miscarriage of justice was occasioned by the absence of the proposed new evidence in the applicant’s sentence proceedings. This ground of appeal should be dismissed.

Ground 1: The sentence imposed by the sentencing judge was manifestly excessive

144. Due to the partial accumulation of one year of the aggregate sentence for the state offences upon the aggregate sentence for the Commonwealth offences, the total effective sentence is one of 16 years’ imprisonment with a non-parole period of 11 years. Whilst the applicant’s Notice of Appeal identified that his appeal is brought against the 15-year state aggregate sentence, his contention of manifest excess was understood to incorporate the total effective sentence of 16 years (with the state aggregate sentence the principal focus of submissions). No complaint was made about the individual state sentence.

145. It is well established that to succeed on a ground alleging a sentence is manifestly excessive, the applicant must establish that the sentence was “unreasonable” or “plainly unjust”: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at 371 at [25] (“Markarian”); Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]. Consideration of whether a sentence is unreasonable or plainly unjust is undertaken in the context that there is no single correct sentence, and that sentencing is not a mathematical exercise but, rather, a sentence is reached by balancing many different and conflicting features: Markarian at [27]; Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [34]. Accordingly, sentencing judges are to be allowed as much flexibility as is consonant with consistency of approach and applicable sentencing principles, and an appellate court will not interfere in a sentence merely because it may have exercised its discretion differently: Markarian at [28].

146. In TH v R [2025] NSWCCA 121, Bell CJ (Garling J agreeing) observed the following at [4]-[5]:

“Mere disagreement by appellate judges with the sentence imposed is not enough to warrant a conclusion that a sentence is manifestly excessive (or manifestly inadequate). The significant degree of latitude afforded to sentencing judges when reviewing sentences for manifest excess or manifest inadequacy reflects the fact that sentencing is a discretionary exercise in which there is no one correct sentence and that, within a range of acceptability, the judgment of a sentencing judge as to an appropriate sentence should be respected: R v White [2025] NSWCCA 111 at [20]-[28].

As noted in He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 at [42(iv)], an applicant seeking to challenge a sentence on the ground of manifest excess has a “very heavy practical burden”, and must show a kind of disproportion which is so “manifest on its face as to be indicative of, not a mere difference of idiosyncratic opinions, but, rather, of substantive error of law”, citing R v Elemes [2000] NSWCCA 235 at [22]-[23].”

147. The principles applicable to a contention that an aggregate sentence is manifestly excessive were explained by Beech-Jones CJ at CL (Payne JA and Fagan J agreeing) in Lee v R [2020] NSWCCA 244 at [32]:

148. “[…] with an aggregate sentence, although the indicative sentences specified in accordance with s 53A(2) of the Sentencing Act are not themselves amenable to appeal, they can be a guide to whether error is established in relation to the aggregate sentence (JM v R [2014] NSWCCA 297 at [40] per RA Hulme J with whom Hoeben CJ at CJ and Adamson J agreed and cases cited thereat; “JM”). Even if the indicative sentences are considered excessive, that does not necessarily mean that the aggregate sentence is excessive (PD v R [2012] NSWCCA 242 at [44], [82]; BJS v R [2013] NSWCCA 123 at [252]-[254]). The corollary of that proposition is that, even if the indicative sentences are not excessive in their own right, then that does not preclude a conclusion that the aggregate sentence is excessive. In that regard, the principles concerning cumulation, concurrency and totality are still applicable to the sentencing exercise when an aggregate sentence is imposed (Beale v R [2015] NSWCCA 120 at [73]; “Beale”). The “potentials for accumulation” of the various notional sentences can be examined to determine whether the “aggregate sentence represents a sound exercise of sentencing discretion” (R v Brown [2012] NSWCCA 199 at [35] per Grove AJ; Beale at [73]), although the absence of any requirement to specify beginning and end dates for each notional sentence may make it more difficult to demonstrate a relevant error in applying those principles (Beale id; Martin v R [2014] NSWCCA 124 at [37]). The “principle”, or even ultimate, “focus of determination of a ground alleging manifest inadequacy or excess will be whether the aggregate sentence reflects the totality of the criminality involved (JM at [40]).”

Consideration

149. The applicant accepted that the offending was serious and did not submit that there was any patent error in the approach of the sentencing judge. The applicant did not contend that any indicative sentence was itself manifestly excessive or productive of error in the ultimate aggregate sentence. In addition, it was accepted on behalf of the applicant that the aggregate sentence for the Commonwealth offending was not of itself “unduly harsh”. The aggregate sentence for the state offences however, was submitted to be “extraordinarily high”. Whilst Ms Evers relied principally upon the applicant’s prior sexual abuse as the focus of his subjective case, she also relied upon the fact that the applicant had pleaded guilty and was remorseful; that the offending did not involve actual physical violence; and upon the applicant’s background, mental health conditions and associated reduced moral culpability. In all of the circumstances, it was submitted that an aggregate sentence of 15 years imprisonment with a non-parole period of 10 years is manifestly excessive. The applicant advanced the proposition that the finding of reduced moral culpability had not, in the end, been adequately reflected in the outcome.

150. The s 323(a) public justice offence carries a maximum penalty of 7 years simpliciter, and in its aggravated form (aggravated by reason of the fact that the charge about which the offender is attempting to influence a witness is a serious indictable offence) carried a maximum penalty of 14 years. Otherwise, none of the individual state offences carried a maximum penalty of more than 5 years (for intimidation) or 2 years (for breach of an ADVO). The Commonwealth offences had a maximum penalty of 10 years.

151. Upon initial consideration, it may appear that a total effective sentence of 16 years’ imprisonment with a non-parole period of 11 years for such offences is excessive. However, upon further analysis, it can be seen that the totality of the criminality involved called for a significant measure of (notional) accumulation between the individual sentences. Further, it was open to the sentencing judge not to reduce the total sentence by any significant degree on the basis of the applicant’s reduced moral culpability. Ultimately, I am not persuaded that the applicant has discharged the burden of demonstrating that the sentence imposed was not open to the sentencing judge in the proper exercise of her broad discretion.

152. Turning first to the objective criminality of the offending, it commenced with the June 2020 offences, which were serious examples of an intimidation offence. These offences did involve the direct physical presence of the applicant. After the victim fled the applicant’s vehicle and sought help from her sister, the applicant pursued the victim and her sister in his car. He remained undeterred by the presence of the sister and the sister’s male partner. He intimidated these victims, issuing quite specific threats to shoot them if they did not produce the victim who was inside their house hiding under a child’s bed. The intimidation of the complainant was in breach of an ADVO rendering it more serious. The applicant was undeterred by threats to call police and only desisted when police were apparently on their way. The indicative sentences (3 years for the intimidation of Dakota Hayes; and 2 years for each other victim) were well open to the sentencing judge, and the applicant did not submit otherwise.

153. There was no voluntary cessation of offending by the applicant. Between June 2020 and the next series of charges, the applicant committed the intimidation offences against the victim described above for which he was sentenced to 6 months’ imprisonment at Bega Local Court. This had no deterrent effect upon the applicant, who resumed his pursuit and abuse of the victim in very similar terms, commencing with the intimidation of Mr Lloyd during a phone call to the victim before he had even been released from custody.

154. Upon release, the applicant resumed his offending by way of repeated threatening messages and calls. In this appeal, the applicant relies upon the absence of any “actual violence” (by which it is assumed he means physical violence) as a matter reducing the objective seriousness of the offending. The absence of physical violence does not diminish the seriousness of offences which do not include physical violence as an element. Features which are important are the content of the threats, their repetition and frequency, and their capacity to cause fear of physical or mental harm.

155. The applicant used alarmingly aggressive and demeaning language toward the victim, but he did not confine himself to generalised abuse. The extreme character of the applicant’s threats was accompanied by obvious efforts to convince the victim that he was prepared to act upon them. In July 2022, in the context of a threat to burn down the house in which he believed the victim may have been staying, the applicant made a chilling reference to a murder by burning in a domestic violence context which had occurred in Queensland. [1] Conduct including sending a photograph of a rifle, or an electronic “pin” proving his location at the victim’s home, alongside messages containing specific threats, was conduct calculated to engender fear in the victim that she or family members would come to serious harm. The intimidation in September 2022 included the manipulative behaviour of claiming to have engaged in serious self-harm and placing the blame upon the victim. Each of the threats were individually serious, and they were persistent and repeated. Many of the offences included a series of criminal acts represented by one charge.

156. By his continued offending over years, the applicant has demonstrated a flagrant disregard for orders put in place by the Court for the protection of the victim. He ignored requests from the victim to desist. The victim met the applicant when she was approximately 18 years of age. He is 10 years older. For a significant period of her young adult life, she was relentlessly pursued, intimidated and threatened by the applicant, regardless of whether she sought and obtained the assistance of the authorities. Indeed, the applicant specifically told her he would enact violent revenge upon her for seeking the protection of the police. Her family and friends were also separate victims of the applicant’s offending. The applicant’s conduct rendered the ADVO meaningless and completely ineffective. That served to increase the gravity of many of the offences he committed (aside from the contravene ADVO offences themselves). The commission of offences in breach of an ADVO designed to protect the victim from precisely that offending attracts a particular need for specific deterrence, general deterrence, and denunciation: Browning v R [2015] NSWCCA 147 at [4]-[9]; Cherry v R [2017] NSWCCA 150 at [78]-[80].

157. The public justice offences represented discrete and significant criminality of a different character. The offences in October 2022, committed on consecutive days, were distinct episodes, each involving serious criminality. The applicant first sought to pressure the victim directly, with the involvement of Mr Edwards in facilitating his phone access to her. When the victim blocked Mr Edwards’ number in an effort to avoid the applicant, the applicant sought to engage Mr Edwards to attend upon and threaten the victim in person to have her abandon her allegations against him. The third offence, many months later when the court proceedings were further progressed, involved planning and effort. Whilst any offence of this nature strikes at the integrity of the criminal justice system, as Johnson J observed in R v Burton [2008] NSWCCA 128 at [97]-[98], an attempt to influence a victim of domestic violence not to give evidence against her abuser capitalises upon the relationship of fear and control which already exists and has a greater prospect of succeeding in influencing the witness as intended. Although there is a relationship between the offences in the sense that they all involve Ms Hayes, the criminality for the public justice offences is not encompassed by the criminality of the intimidation and ADVO breach offences. It was open for the sentencing judge to (notionally) accumulate the indicative sentences for the public justice offences upon the indicative sentences for the other offending to a considerable degree.

158. These features of the applicant’s offending called for a considerable measure of notional accumulation in order that the aggregate sentence properly reflect the overall criminality of the offending conduct: Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27]. The question is whether the aggregate sentence is a “just and appropriate measure of the total criminality involved”: Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26.

159. The applicant pleaded guilty and was entitled to a 25% discount for his pleas. The sentencing judge found that the applicant was remorseful. On one view, a finding of genuine remorse was generous to the applicant in light of the comments he made to the author of the SAR, and the caveat included even in his own letter written for the sentencing court directly expressing remorse. In the circumstances the sentencing judge was satisfied he was remorseful and that he was “taking steps” to accept responsibility.

160. The sentencing judge considered that the applicant’s moral culpability and the significance of general deterrence was reduced on account of his background, the most significant feature of which was the sexual abuse he was subject to in juvenile detention. That contributed to the applicant’s mental health conditions, his substance abuse and his cycle of offending. The sentencing judge also found that the applicant’s moral culpability was reduced by reason of his mental health impairments. As Dr Pusey recorded, the applicant has particular difficulties engaging in intervention and treatment for his mental health while he is in custody. The sentencing judge took into account that custody was more onerous for him as a result.

161. The applicant’s subjective case pulled in different directions. As Dhanji J explained in Harris v R [2021] NSWCCA 322 at [89] (Simpson AJA and Ierace J agreeing):

“That said, the factors leading to reduced moral culpability do not automatically translate to a reduced sentence. The purposes of sentencing as set out in s 3A of the Crimes (Sentencing Procedure) Act are varied and, as has been said many times, will commonly pull in different directions. As the High Court’s decision in Bugmy makes clear, while a finding of reduced moral culpability may lead to a reduction in the weight to be given to general deterrence, that reduction may be counter-balanced by a corresponding need for community protection: Bugmy at [44], set out above. Additionally the need to “recognise the long standing obligation of the State to vindicate the dignity of each victim of violence” and to “express the community’s disapproval” of the offending remained: Munda at [54] and see also Christopher Ross v R [2019] NSWCCA 314 at [44]; Dungay v R [2020] NSWCCA 209 at [142].”

162. In the applicant’s case, the same factors leading to his reduced moral culpability engaged the corresponding need for community protection spoken of in Bugmy at [44]-[45]. Whilst the relationship between an offender’s dysfunctional background reducing his moral culpability and the ways in which these same features also impact his ongoing risk of re-offending is far more nuanced than a single example, nevertheless a particularly stark and confronting example is provided by the applicant’s threats to harm the victim in the very same way in which he had himself been harmed. The significance or extent of the reduction in weight to be given to general deterrence also fell to be assessed against the particular need for general and specific deterrence in cases involving domestic violence: see Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [54]-[55]; and the observations of Bell CJ in R v Thompson [2025] NSWCCA 133 at [1]-[6].

163. The sentence imposed in this case was undoubtedly stern. However, it is not sufficient to succeed under this ground that the sentencing discretion might reasonably have been exercised differently, nor even that the appellate court might have imposed a lesser sentence. I am not satisfied that the applicant has discharged the “heavy practical burden” of demonstrating that the aggregate sentences imposed were unreasonable or plainly unjust.

164. I would dismiss this ground of appeal.

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Endnote

Given the timing, and the detail of what he said, it is probable that the applicant was referring to the highly publicised circumstances of the death of Hannah Clarke and her three children, who were killed by their father (Ms Clarke’s former husband) by setting fire to them in a car on 19 February 2020 in Queensland. The inquest was held in March 2022, with the findings delivered on 29 June 2022.