MR v R

THE FACTS OF THE OFFENDING

1. A statement of agreed facts was tendered on sentence [1] from which I draw the following summary in respect of each count.

Count 1

1. On 14 August 2019, police travelling in an unmarked vehicle saw the applicant travelling in the opposite direction. As the applicant passed them, the police made a U-Turn and followed him. Police activated the lights and sirens on their vehicle for the purposes of stopping the applicant to administer a random breath test.
2. When the applicant failed to stop, police initiated a pursuit. When they did so, the applicant increased his speed, initially to between 80km/h and 90km/h, and then to between 90km/h and 100km/h, in an area with a sign posted speed limit of 50km/h. In doing so, he narrowly avoided a collision with another vehicle travelling in the opposite direction. The pursuit came to a stop when the applicant entered the driveway of residential premises, got out of his vehicle, and ran inside. Police chased him and arrested him in a bedroom.

Count 2

1. In the course of escorting the applicant from the bedroom, police observed a shoebox on the ground. The lid of the shoebox was open and police could see that it was filled with cannabis. Police then looked into the window of the applicant's vehicle and found 3.6g of cannabis. The applicant made admissions to the police as to his ownership of the total of 449g of cannabis which was seized.
2. When searching the premises, police located a number of items in the applicant's bedroom, including: 1. a set of scales; 2. a "bong"; 3. a quantity of empty resealable bags; 4. $540.00 in Australian current currency; and 5. two mobile telephones.

Count 3

1. Police administered a roadside breath test which proved negative, and a drug test which proved positive. Subsequent analysis established the presence of both cocaine and cannabis in the applicant's bloodstream.
2. Following his arrest for the offending in counts 1, 2 and 3 the applicant was released on bail.

Count 4

1. At the time of the offending in count 4, the applicant and LC (the victim) were in a relationship. The victim resided with her mother, and her ten year old son from a previous relationship.
2. On 13 September 2019, when the applicant was on bail for the offending in counts 1, 2 and 3, the victim's mother went to work and left the door to the premises unlocked. At about 9.30 am, the applicant went to the premises and gained entry through the unlocked door. The victim, who was lying down in her bedroom talking to a friend on the phone at the time, was not expecting the applicant. Her son, who was home from school, was in his bedroom.
3. Having entered the premises, the applicant went into the victim's bedroom and started screaming at her. He grabbed her mobile phone and began asking her questions about calls she had previously made, accusing her of infidelity.
4. The applicant proceeded to hit the victim on the side of her head. He then bit her on the face and ear. In the course of doing so, and in response to the victim expressing concern that her son might hear what was happening, the applicant said: Shut your fucking mouth and go see if your son's alright.
5. The victim and the applicant then walked into the lounge room and continued arguing before the victim returned to her bedroom and closed the bedroom door. The applicant repeatedly told the victim that she "needed to take her son to school", before grabbing her on either side of her face with his hands. He then pushed her into the floor while screaming at her, before smashing her head against a mirror which was hanging on the bedroom wall. When the victim asked the applicant to stop, the applicant then hit himself in the face with a closed fist before striking a wall with his head, causing damage to the wall.
6. The applicant then pushed the victim to the floor and kicked her in the head and knee. The victim again asked the applicant to stop. The applicant responded: Shut your fucking mouth, why do you have to carry on like this so that [your son] knows what's happening.
7. The victim was crying and was struggling to breathe. She called out her son's name and once again asked the applicant to stop. The victim's son then approached her bedroom and banged on the door while screaming. The victim tried to open the door but the applicant forced it closed. The victim asked her son not leave. The victim's son was saying: Mum, mum, don't hurt my mum.
8. The applicant then said to the victim: Go and tell [him] you are alright.
9. The victim walked out of her bedroom and past her son before running through the lounge room and out the door while screaming. The victim jumped over the front gate of the premises next door, where her neighbour was watering his garden. The applicant, who had chased the victim, tried to pick her up, saying: Get the fuck inside.
10. The victim tried to resist the applicant by grabbing the neighbour's hose, and then by holding on to a tree, screaming: Please please please don't let him take me… help help help.
11. The victim's neighbour called the police. The victim dropped to the ground and her son started hitting the applicant. The applicant then said: I'm going, I'm going, I know I fucked up, I'm going.
12. The applicant then drove away.
13. The victim sustained a number of injuries, namely: 1. inflammation of, and bruising to, the forehead; 2. red marks around her neck and cheeks; 3. scrapes of her legs and feet; and 4. pain in her jaw.
14. Those injuries were evident in photographs which formed part of the agreed facts. [2]

The applicant's release on parole

1. The applicant had been released on parole on 1 November 2018 following a sentence imposed in the Local Court for an offence of breaking and entering a dwelling house with intent to steal. Although his supervision was suspended on account of what was regarded as his medium to low risk of reoffending, he remained on parole until 13 September 2019 (the date of the offending in count 4) at which time his parole was revoked. [3]
2. There was no issue between the parties that the offending in each of counts 1 to 4 was committed whilst the applicant was on parole. There was also no issue that the offending in count 4 was committed whilst the applicant was also on bail in respect of counts 1 to 3.

Ground 1 - The sentencing judge erred by taking into account the fact that the applicant was on parole when assessing the objective seriousness of the offences

The findings of the sentencing judge

1. When assessing the objective seriousness of the offending in count 1, his Honour said: [4] The Crown submits that the offence is below the midrange but not at the bottom of the range of objective seriousness having regard to the number of people likely to have been on the roads at the time, the offender travelling between 30 and 50 kilometres over the legal limit, the residential nature of the road, the proximity of a school during term times and the length of the pursuit. An aggravating factor which would go to the objective seriousness is the fact that the offender was subject to parole for an unrelated offence at the time. There is no dispute about this being an aggravating feature of the offending.
2. I should note that although it was not raised before this Court, his Honour's references to the number of people likely to have been in the vicinity, the residential nature of the road, the close proximity of a school and the length of the pursuit, were all matters referred to in the Crown's written submissions on sentence, [5] but do not appear to have been part of the agreed facts.
3. When assessing the objective seriousness of the offending in count 4, his Honour said: [6] In this particular case there are some aggravating factors that need to be taken into account when I look at objective seriousness. The offending was committed in front of a child under 18, that is the victim's son, and the offence was commited in the home of the victim. That is a place in which a person is entitled to be safe. Further, as with the other offences, the offending took place while the [applicant] was on conditional liberty in relation to an offence or alleged offence.

Submissions of the Applicant

1. Counsel for the applicant submitted that it was apparent from these passages that when assessing the objective seriousness of the offending in counts 1 and 4, his Honour had taken into account the fact that the applicant was subject to conditional liberty. It was submitted that any assessment of objective seriousness of offending must be made solely by reference to the nature of the offending. Counsel submitted that by taking into account the fact of the applicant's conditional liberty when carrying out such assessment, his Honour had erred.

Submissions of the Crown

1. The Crown conceded that it would be open to this Court to find error on the basis of the submissions advanced on behalf of the applicant.

Consideration

1. It was not an issue that the entirety of the applicant's offending was aggravated by the fact that it was committed whilst he was on parole, nor was it an issue that the offending in count 4 was further aggravated by the fact that the applicant was on bail for the offending in counts 1 to 3. [7] However, those aggravating factors were not relevant to an assessment of the objective seriousness of the applicant's offending. In Muldrock v The Queen [8] the High Court said the following: The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending.
2. It is evident from those passages of his Honour's reasons set out above, that in determining the objective seriousness of the offending in counts 1 and 4, his Honour had regard to the aggravating fact that the applicant was on conditional liberty at the time. In approaching the matter in that way, his Honour erred and accordingly, this ground is made out.
3. In these circumstances, it is necessary to re-sentence the applicant in the fresh exercise of the sentencing discretion. It is not necessary to consider Ground 2 which asserted that the sentence imposed was manifestly excessive. However, I have had regard to the submissions made by the parties in support of that ground on the question of re-sentence.

Additional evidence on re-sentence

1. Two affidavits were read on re-sentence, namely those of: 1. Pip Hill affirmed on 16 August 2021 (read by the applicant); and 2. Jennifer Ramsay sworn on 9 August 2021 (read by the Crown).

The objective seriousness of the offending

1. This Court has previously observed that there is no obligation to assess the objective seriousness of an offence by reference to a scale. [9] What is essential is that a sentencing court identify the facts, matters and circumstances bearing upon that assessment, so as to make clear that they have been considered. [10] With those principles in mind, I turn to assess the objective seriousness of each count.

Count 1

1. The agreed facts which were tendered before the sentencing judge give no indication as to the period of time over which the pursuit took place, or its length.
2. I infer from the fact that the applicable speed limit was 50km/h that the pursuit took place in a residential area. Whilst I am not able to determine the extent to which any members of the public were put at risk, it is clear that at one point the applicant narrowly avoided a collision with an unknown vehicle which had been travelling in the opposite direction. It is also significant that whatever the duration of the pursuit may have been, the applicant drove at a speed which was significantly above the designated speed limit for the area.

Count 2

1. The applicant was found in possession of a total of 449g of cannabis. That is a significant amount, being almost half the commercial quantity of 1 kg. However, I acknowledge that the quantity of a prohibited drug, whilst relevant, does not determine objective seriousness.
2. In light of the provisions of s 29 of the DMT Act, the applicant was deemed to have had that drug in his possession for supply, given that it was not less than the trafficable quantity of 300g. He did not seek to rely upon s 29(a) of the DMT Act and assert that the drug was in his possession other than for the purposes of supply.
3. The various items found by police at the time of their search of the applicant's premises were indicia of drug supply. However, it is not possible to determine the applicant's role in any such supply.

Count 3

1. Traces of both cocaine and cannabis were detected in the applicant's bloodstream following analysis of the sample which he had provided. The fact that there were two separate prohibited drugs found in the applicant's bloodstream is significant, although the agreed facts are silent as to the concentration of each, and/or the extent to which the applicant's ability to drive a motor vehicle may have been impaired as a result of the presence of such drugs in his bloodstream.

Count 4

1. The offending in count 4 amounted to an unprovoked, sustained and violent attack by the applicant on the victim, in circumstances where the victim had not expected the applicant to attend her home, and was taken completely by surprise by his attendance.
2. The seriousness of the offending is reflected, at least in part, by the fact that it involved the applicant: 1. hitting the victim on the side of her head; 2. biting her on the face and ear; 3. grabbing both sides of her face with his hands; 4. pushing her on to the floor; 5. smashing her head against a mirror; and 6. pushing her onto the floor and kicking her in the head and knee.
3. Having commenced to attack the victim, the applicant continued to do so in the face of repeated pleas by the victim to stop, and in circumstances where, at one point, the victim was having difficulty breathing. The perilous position in which the victim found herself is reflected in the fact that she was left to call upon her ten year old son for assistance, before fleeing into what she obviously hoped would be the relative safety of her next door neighbour's premises. At that point, the applicant must have realised the effect of his conduct, and the fear in which the victim found herself as a result. Rather than stop at that point, the applicant chased the victim when she attempted to flee. He then tried to physically remove the victim from her neighbour's premises whilst abusing her, the victim being forced to resist this by grabbing onto a tree. These events occurred when the victim was pleading with her neighbour not to let the applicant take her away.
4. I accept that the actual bodily harm sustained by the victim was towards the lower end of the scale. However, that does not detract in any significant way from the ferocity of the applicant's attack, in the course of which he ignored the victim's repeated pleas to stop.

Aggravating factors

1. The offending in all counts was aggravated by the fact that the applicant was on parole at the time.
2. The offending in count 4 was further aggravated by the fact that: 1. the applicant was on bail in respect of counts 1 to 3; [11] 2. the offending occurred in the victim's premises, where she was entitled to feel safe; [12] and 3. the offending was committed in the presence of the victim's ten year old son. [13]

Mitigating factors

1. I accept that the offending in count 1 involved limited planning.

Additional offences to be taken into account

1. As previously noted, [14] the applicant has asked that two additional offences be taken into account. The additional offence attached to count 2 related to tablets found at the applicant's premises following the police pursuit. The additional offence attached to count 4 related to the damage to the victim's property caused by the applicant smashing his head into a wall. [15]
2. Those additional offences must be taken into account with a view to increasing the penalty that would otherwise be appropriate for the offending in counts 1 to 4. In taking those additional offences into account, greater weight must be given to the need for personal deterrence, and the community's entitlement to extract retribution in respect of serious offences for which no punishment has been imposed. [16]

The applicant's subjective case

1. There is no issue that the applicant pleaded guilty to all offences in the Local Court. He is therefore entitled to a discount of 25% to reflect the utilitarian value of those pleas.
2. There is evidence that following his arrest, the applicant offered to assist police by introducing an undercover operative to a particular "target" who was said to be responsible for the supply of crystal methamphetamine. Because of the resources which would have had to be directed to such an operation, police sought information from the applicant in relation to other matters for the purposes of determining his reliability. Information provided by the applicant to the police led to the arrest of a person for offences of possessing and supplying a prohibited drug. That person was charged and sentenced to a term of imprisonment. Whilst the information provided by the applicant in that regard was obviously reliable, the evidence is silent on what (if anything) occurred in response to his initial offer of assistance.
3. Having regard to the evidence, and by reference to the mandatory factors in s 23(2) of the Sentencing Act, I make the following findings in relation to the applicant's assistance: 1. although the person who was arrested on the basis of the information provided by the applicant was known to police as user of prohibited drugs, he was not known as a supplier. Without the information provided by the applicant, the police would not have known that such person was committing any offence. Accordingly, that assistance was both significant and useful. The information provided by the applicant in relation to the target of the proposed controlled operation was already known to the police and there is no evidence that this offer of assistance was pursued any further; [17] 2. the information provided by the applicant which led to the person's arrest was evidently truthful, complete and reliable; [18] 3. the assistance was provided a short time after the applicant's arrest; [19] 4. the only identified benefit to the applicant as a result of his assistance is the discount to be applied in sentencing him for the offending in counts 1 to 4; [20] 5. there is no evidence that the applicant will suffer harsher custodial conditions as a consequence of his assistance, nor is there any evidence the he or any member of his family has suffered any injury, or is in danger or is at risk of any injury, as a consequence of his assistance; [21] and 6. the assistance relates to the offending for which the applicant is being sentenced. [22]
4. In all of the circumstances I would assess the discount for the applicant's assistance at 12.5%, all of which is referable to the applicant's past assistance.
5. A sentencing assessment report was tendered before the sentencing judge. The report noted that in terms of the offending, the applicant had said that: [23] 1. he did not know that the police were trying to stop him; 2. he purchased cannabis in bulk for his own personal use; and 3. he was angry with the victim because she had been "stirring" him, and that he recalled thinking "don't do it" in relation to his physical violence towards her.
6. The applicant told the author of the report that he was in the habit of smoking 2 to 3g of cannabis on most days leading up to his offending. He did not identify that use as problematic, but said that he had not used any illicit substances in custody, and that he intended to continue his abstinence when released into the community. [24]
7. Although the report made reference to the applicant stating that he wished to find a way to tell the victim that he was sorry for his offending, it was noted that he was only able to discuss the impact of his offending "superficially". The report also noted that the applicant had "verbalised a number of inconsistencies" when discussing the offending in counts 1 to 3, and had generally downplayed their seriousness. [25]
8. It was further noted that although the applicant had said that he was willing to undertake interventions, he had failed to identify his criminogenic needs and appeared indifferent to addressing his domestic violence offending. Previous records had indicated that the applicant did not consider a remedial program addressing domestic violence offending to be necessary, but that he had been willing to undertake it to "look good for court", an attitude which was regarded as being consistent with his presentation when interviewed. [26] The report assessed the applicant as being at a medium risk of re-offending. [27]
9. Testimonials from persons whom the applicant had met in the course of his employment were tendered in his case. [28] Mr Jehad El Sayah, who provided one of those testimonials, expressed the view that the applicant was capable of rehabilitating himself, and offered the applicant full time work in his carpentry business. Amy Mclean, who has known the applicant for a period of seven years and who has assisted him on various occasions in his efforts to secure employment, described him as polite and courteous, and expressed the view that full time employment would assist the applicant's rehabilitation. I must say that a description of the applicant as "polite and courteous" is entirely at odds with the offending in count 4, and with the applicant's history of not dissimilar offending. The applicant's brother James also provided a testimonial in which he said that the applicant had expressed "regret for his actions" and had "shown … that he feels guilt and shame". [29] He also expressed the view that the applicant appeared to be motivated to return to work and lead a blemish free life.
10. The applicant has a lengthy criminal history which includes convictions for robbery, armed assault with intent to rob, and breaking and entering, in respect of all of which he has served terms of imprisonment. He also has two previous convictions for assault occasioning actual bodily harm. In addressing the applicant's criminal history in the course of the sentence proceedings, counsel who then appeared for him (who was not counsel before this Court) made reference to the fact that the offending in count 4 was "the first complaint of domestic violence, within this relationship". [30] Consistent with the tenor of that submission, counsel then expressly conceded that the applicant had been "charged with assaults before … in relation to a different female." [31]
11. The applicant also has a history of drug related offending, for one instance of which he has served a term of imprisonment. He also has entries for assaulting and resisting police, and having custody of a knife in a public place. His traffic history includes entries for (inter alia) reckless driving and negligent driving.
12. The affidavit of Ms Hill confirms that the applicant successfully completed the "Getting Equip'd" program between 29 July and 6 August this year. As against that, the affidavit of Ms Ramsay establishes that since being sentenced, the applicant has committed the following custodial infringements: [32] 1. failing a prescribed blood test on 15 March 2021; 2. possessing a drug on 17 March 2021; 3. unlawfully using a telephone on 19 March 2021; and 4. failing a drug sample on 1 April 2021.
13. The drug which was the subject of the offences in (i), (ii) and (iv) was Buprenorphine.

Assessment of the applicant's subjective case

1. Leaving aside the applicant's pleas and assistance, there is little in his subjective case which assists him.
2. To begin with, statements attributed to the applicant in the sentence assessment report demonstrate a marked lack of insight into his offending.
3. As to count 1, the proposition that the applicant did not know that the police were following him is entirely contrary to the agreed fact that the police had activated the lights and sirens on their vehicle, to which the applicant responded by significantly exceeding the applicable speed limit.
4. As to count 2, the applicant pleaded guilty to an offence of supplying a prohibited drug, not possessing it. Significantly, he did not seek to invoke the provisions of s 29(a) of the DMT Act and attempt to prove that he had the cannabis in his possession otherwise than for the purposes of supply.
5. As to count 4, there is nothing in the agreed facts which suggests in any way that the victim had been "stirring" the applicant. Even if there had been such evidence, the applicant's actions were entirely without justification. Moreover, the applicant's assertion that he recalled thinking "don't do it" is of little moment, given that the violence he perpetrated on the victim was ongoing, and was inflicted in circumstances where the victim repeatedly pleaded for him to stop.
6. The applicant's lack of insight is also reflected in his specific indifference to the need to address his domestic violence offending. His previous "willingness" to undertake a remedial program because it might depict him in a favourable light is entirely at odds with a commitment to rehabilitation. Whilst there is some evidence of the applicant completing a rehabilitative course since being sentenced, that has been overshadowed by his four recent custodial infringements. The fact that three of those infringements relate to drug use does not sit comfortably with the applicant's expressed intention to abstain from such use.
7. In all of these circumstances, the applicant's prospects of rehabilitation are guarded at best. Further, in view of his obvious lack of insight and his ongoing use of drugs, I am unable to conclude that he is unlikely to re-offend.
8. Whilst there are references in the testimonial provided by the applicant's brother to the applicant having shown "guilt and shame", in light of the statements made by the applicant regarding his offending, [33] and in circumstances where the applicant did not give evidence on sentence, the applicant's remorse is limited to that which can be inferred from his pleas of guilty.
9. Whilst the applicant's criminal and traffic histories are not aggravating factors, they do not entitle him to leniency. The applicant is, however, entitled to a finding of special circumstances, on the basis that a longer period on parole is likely to assist his reintegration into the community.

Conclusion

1. Any aggregate sentence imposed must properly reflect the totality of the applicant's offending. For the reasons I have set out, the offending in count 4 was particularly serious. In the fresh exercise of the sentencing discretion, I would have given a higher indicative sentence in respect of that offending than that given by the sentencing judge, and would therefore have arrived at a higher aggregate sentence. I am therefore not of the opinion that any lesser sentence is warranted in law and should have been passed. [34]
2. I therefore propose the following orders: 1. Leave to appeal against sentence granted. 2. Appeal dismissed.

Endnotes

1. AB 66 - 71.
2. AB 68 - 69.
3. AB 101.
4. AB 23.
5. At [4]; AB 115.
6. AB 25.
7. The Sentencing Act s 21A(2)(j).
8. (2011) 244 CLR 120; [2011] HCA 39 at [27].
9. Sharma v R [2017] NSWCCA 85 at [63] per R A Hulme J (Beazley P and Walton J agreeing), cited in McDowall v R [2019] NSWCCA 29 at [35] per Adamson J (Hoeben CJ at CL and Schmidt J agreeing).
10. FL v R [2020] NSWCCA 114 at [59]-[60] per Wilson J (R A Hulme and Hamill JJ agreeing).
11. Sentencing Act s 21A(2)(j).
12. Sentencing Act s 21A(2)(eb).
13. Sentencing Act s 21A(2)(ea).
14. At [6] above.
15. A photograph of the damage is in the Agreed Facts at [22]; AB 69.
16. Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No.1) of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [42].
17. S 23(2)(b); s 23(2)(d).
18. S 23(2)(c).
19. S 23(2)(e).
20. S 23(2)(f).
21. S 23(2)(g) and (h).
22. S 23(2)(i).
23. AB 105.
24. AB 105.
25. AB 106.
26. AB 106.
27. AB 107.
28. AB 112 - 114.
29. AB 114.
30. AB 148.36 - AB 148.37.
31. AB 150.7.
32. At [2].
33. At [62] above.
34. Criminal Appeal Act 1912 (NSW) s 6(3).

Amendments 09 September 2021 - Correction made to spelling of Ramrakha on coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 September 2021