Muniandy v R

Background

1. The applicant pleaded not guilty to, and stood trial from 13 November to 7 December 2020 in relation to, two charges: 1. count 1 - kidnapping in company with actual bodily harm contrary to s 86(3) of the Crimes Act 1900 (NSW); and 2. count 2 (in the alternative to count 1) - assault in company occasioning actual bodily harm contrary to s 59(2) of the Crimes Act.
2. There was also a statutory alternative to count 1, kidnapping with actual bodily harm contrary to s 86(2)(b) of the Crimes Act.
3. The applicant was tried at the same time as his co-accused, Mr Subramaniam, who also pleaded not guilty to the same charges.
4. On 7 December 2020, the jury found the applicant not guilty in respect of count 1 but guilty of the statutory alternative of kidnapping with actual bodily harm. Mr Subramaniam was found not guilty in respect of all offences. The applicant's sentence proceedings were heard on 23 February 2021.
5. On 27 April 2021, J Smith SC DCJ imposed a sentence of imprisonment for 20 months commencing on 25 April 2021 and expiring on 24 December 2022, with a non-parole period of 10 months expiring on 24 February 2022.

Application for leave to appeal

1. In relation to his application for leave to appeal, the applicant relied on two grounds of appeal in the following terms: "GROUND 1 That the sentencing court erred by holding that the Applicant was disentitled to an ICO because such a sentencing option was lenient and no additional punishment by way of conditions could reasonably be imposed upon the applicant GROUND 2 That in all the circumstances the sentence imposed upon the Applicant as to both the head sentence and non-parole period, was manifestly excessive"
2. Consideration of these grounds required the sentencing judge's remarks on sentence to be reviewed in some detail.

The verdicts and the relevant offence

1. His Honour commenced his remarks by identifying the effect of the jury's verdicts. In particular, it was noted that the applicant had been found guilty of the offence pursuant to s 86(2)(b) of the Crimes Act, kidnapping with actual bodily harm, and the sentencing judge recorded correctly that this offence carried a maximum penalty of 20 years' imprisonment.
2. It was also observed that it was plain from the verdicts that the jury did not accept the entirety of the victim's evidence and, in particular, did not accept that there was a joint enterprise between the applicant and the co-accused with the intention of taking the victim for the purpose of assaulting him. This was said to be clear from the fact that the jury did not accept that any of the offences was conducted in company.
3. J Smith SC DCJ found that what was said by the applicant in his police interview was consistent with the jury's verdicts and his Honour preferred, on balance, that evidence to the evidence given by the victim. On that basis, the sentencing judge found the relevant facts to be as set out in the paragraphs which follow.

Factual circumstances of the offending

1. The applicant, the co-accused and the victim are Malaysian nationals of Tamil ethnicity. The applicant and the victim are cousins who came from the same village in Malaysia. The applicant arrived in Australia in 2017, and the victim arrived in May 2018 and moved to Sydney six months later where he lived for some time in the same house as the co-accused and his wife.
2. In 2019, the victim and the co-accused worked at the same workplace.
3. On 26 May 2019, the applicant hired a van in order to take some relatives around to show them places. Prior to 29 May 2019, the applicant had received telephone calls from the victim's relatives complaining that the victim had not been sending them any money. The applicant had been unable to contact the victim on many occasions when he had tried to do so.
4. On 29 May 2019, as a result of receiving the telephone calls, the applicant went to the victim's workplace. The applicant took the co-accused with him to drive the van because the co-accused also worked there and because the applicant was tired as a result of driving the van all the previous day and not sleeping very well. The pair arrived at the workplace shortly after 6:30 am and there were a number of people at that location.
5. The applicant got out of the van and went and spoke to the victim, asking him what had been happening to him and why he had not been calling his mother and father. The applicant then said to the victim that he should get into the van so that he could speak to him and the victim willingly did so. Before getting into the van, the victim said to the applicant that he would rather talk elsewhere and that was why he got into the van.
6. The co-accused drove the van and the applicant sat in the back with the victim. The applicant asked what was happening and whether the victim had started taking drugs like he used to do in Malaysia. He also asked why the victim did not call his mother. At this time, the applicant was talking to the victim "very nicely and in a respectful way". The victim, however, then started talking to the applicant "using bad words and saying bad things" about the applicant's mother. At this point, the applicant told the co-accused to stop the van, which had not travelled very far from the workplace. The applicant then pushed the victim out of the van and he assaulted him for two to three minutes with his arms and knees.
7. There was no planning involved in this offence and it was not the applicant's intention to assault the victim until the applicant lost control when the victim started saying bad things about the applicant's mother.
8. At that point, the victim received a call from his employer and the applicant spoke to the employer who asked the applicant to bring the victim back to work. There were text messages in evidence from the employer at 6:50 am threatening to call the police if the victim was not brought back to work within 10 minutes. The victim was then driven back to just outside the workplace and dropped off there shortly after 7:20 am.
9. The police photographs of the victim taken on the same day revealed bruising to the right cheekbone, a cut to the webbing on the left hand between the index finger and thumb, as well as bruising and swelling to the shins and some bruising to the left side between the shoulder blade and lower ribs.
10. The learned sentencing judge concluded that: 1. "the taking of the victim occurred only after the victim had abused the [applicant's] mother and the van was stopped in order for the [applicant] to assault the complainant" shortly before 6:50 am; 2. "the taking then ceased once the victim was put back into the van in order not to deprive him of his liberty, but to take him back to his workplace"; and 3. "the detention took around 20 minutes in total".

Subjective circumstances

1. His Honour then recorded that the applicant was at that time 36 years old. He arrived in Australia from Malaysia in 2017 and had no immediate family here. It was noted that he spoke some English but was far from fluent and that he had worked in Sydney as a casual labourer.
2. The sentencing judge observed that, when the applicant was interviewed for the purposes of a sentencing assessment report, he said that he felt he had not done anything wrong and explained that his actions were acceptable in his culture. In his evidence during the sentencing hearing, the applicant accepted that this had been said during the interview. It was found that, despite this evidence and in the context of the applicant's other evidence to the court, the applicant was in fact remorseful for his offending. In this regard, while it was accepted that the applicant was telling the truth to the author of the report because he was trying to get the victim back onto the right track, the sentencing judge also accepted the applicant's explanation that he knew that hitting the victim was neither justifiable nor acceptable and he would ask for forgiveness if he saw him.
3. It was noted that the applicant had no prior convictions and was otherwise of good character, which was supported by the references provided for the purposes of sentencing.
4. The sentencing judge noted that the author of the sentencing assessment report assessed the applicant as being of "medium low risk of reoffending". Given the applicant's prior good character, his expression of remorse and the special family circumstances that led to the offending, his Honour found that the applicant was unlikely to reoffend and had very good prospects of rehabilitation.

Objective seriousness

1. Having regard to the findings of fact and relevant principles, his Honour assessed that the offending in the present case fell "at the lower end of objective seriousness". More specifically in this regard, it was noted that: 1. the detention itself was not lengthy; 2. the detention was not obtained by more than the fact that the victim was already in the van and when it stopped he was pushed out and assaulted; 3. although being pushed out and assaulted caused him to fear for his wellbeing and enabled the detention, the applicant was a relative of, and well known to, the victim; 4. the fact that the victim had voluntarily entered the van and had talked somewhat discourteously to the applicant showed that there was no real power imbalance that was being abused; 5. the injuries sustained by the victim were not severe; 6. no weapons were involved; and 7. the cut to the victim's hand was caused by a fence rather than a direct blow from the applicant.

Determination of sentence

1. The sentencing judge then observed that the maximum penalty of 20 years' imprisonment for this offence reflected how seriously offences of this nature were viewed and stated that there was no question that offending involving deprivation of liberty required appropriate denunciation and punishment consistent with s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Procedure Act). It was also said that the principle of general deterrence was engaged, particularly to discourage any action that may be based on cultural norms that accept the private administration of "rough justice". Even though the applicant was unlikely to reoffend and had good prospects of rehabilitation, the other factors mentioned led the sentencing judge to conclude that no penalty other than imprisonment was appropriate.
2. In determining the length of the sentence, his Honour considered the sentencing statistics and comparable cases to which he was referred. Taking those matters into account and having regard to the relatively low objective seriousness of the offending and the applicant's subjective circumstances, while giving weight to the need for denunciation, punishment and general deterrence, it was concluded that a term of imprisonment of 20 months was appropriate.
3. The sentencing judge then turned to consider whether that term should be served by way of an intensive correction order (ICO) and referred to the requirements of s 66 of the Sentencing Procedure Act. In particular, his Honour noted the requirement that community safety be the paramount consideration and that in this regard the Court was to assess whether a sentence served by an ICO compared with a sentence served by full-time detention was more likely to address an offender's risk of reoffending. The sentencing judge said that he was not satisfied that full-time detention was more likely to address the applicant's risk of reoffending in light of the relatively low risk of reoffending and his previous good character. The remarks then continued: "However, the imposition of a sentence to be served by way of ICO reflects a significant degree of leniency, even though it may be revoked for breach. Added to that consideration there appears to be no additional conditions that may reasonably be imposed to serve as punishment for the offence. I note, in particular, that the author of the sentencing assessment report records that no community service is available to the offender in light of the violent nature of the offence. For those reasons, although the objective seriousness of this offending is relatively low, I am not satisfied that the need for punishment, denunciation, general deterrence and the recognition of harm to the victim are sufficiently recognised by service of the term of imprisonment by way of ICO. …"
4. A finding of special circumstances was then made on the basis of the applicant's previous good character, his relative youth and the isolation he would face as a result of his nationality and language ability.
5. The commencement of the sentence was backdated to take into account the two days the applicant had previously spent in custody.
6. The sentence noted above was then imposed.

Ground 1

1. The first ground of appeal related to the sentencing judge's consideration of the appropriateness of an ICO and, in particular, whether the sentencing judge erred by holding that the applicant was disentitled to an ICO because: 1. such a sentencing option was lenient; and 2. no additional punishment by way of conditions could reasonably be imposed upon the applicant.

Submissions

1. As to ground 1, the applicant submitted that the sentencing judge's statement that the service of a sentence by way of an ICO "reflects a significant degree of leniency" suggested that an ICO was a "pusillanimous order and therefore reason enough not to impose it". This was said to be an error of principle because the question whether or not to impose an ICO turns not on whether it is lenient punishment but whether such a prison sentencing option serves the interests of both the community and the rehabilitation of the offender.
2. In addition, it was contended that the sentencing judge "took into account the fact the [sentencing assessment report] dated 12 February 2021 only required supervision of the Applicant", and it was submitted that, for that reason, his Honour concluded that supervision "was not an additional punishment". It was contended that, on the contrary, supervision in the context of an ICO is a form of punishment as it involves interference in the daily freedom of an offender who is subject to an ICO, including by way of the restrictions inherent in the obligations imposed by cl 187(1) of the Crimes (Administration of Sentences) Regulation 2014 (NSW) (CAS Reg), such as: "to obey the directions of a community corrections officer in matters dealing with residence and access thereto, employment, association, alcohol ingestion, drug and alcohol testing, [and] mandating participation in treatment programs …"
3. It was then submitted on the applicant's behalf that the fact that the applicant's offending excluded him from community work was a "form of reverse punishment in that it disentitled him from an ICO".
4. The Crown submitted in relation to ground 1 that the sentencing judge correctly followed the three stage sentencing process in considering whether an ICO should be imposed and took into account all the relevant factors, and that his Honour's decision was not based solely on the two considerations identified by the applicant.
5. Further, the Crown contended that the sentencing judge's observation that "the imposition of a sentence to be served by way of ICO reflects a significant degree of leniency" was both uncontroversial and appropriate, and consistent with what was said by this Court in R v Cahill [2015] NSWCCA 53 at [114].
6. It was also submitted by the Crown in substance that his Honour's observation that "there appears to be no additional conditions that may reasonably be imposed to serve as punishment for the offence" did not involve error and related to the fact that the sentencing assessment report indicated that because of the applicant's assessed risk of reoffending, if an ICO were made, Community Corrections would suspend supervision in accordance with cl 189I of the CAS Reg and that no other conditions were required as well as the fact that no other conditions were appropriate in the circumstances.
7. It was observed, in effect, by the Crown that the applicant had not submitted that the sentencing judge had made any other errors in relation to his consideration of the likelihood of reoffending or his approach to the need for punishment, denunciation, general deterrence and the recognition of harm to the victim. It was submitted that the approach taken to s 66 by the sentencing judge was correct and consistent with authority, including Elphick v R [2021] NSWCCA 167.

Consideration

1. It appeared to me that the Crown's submissions in relation to ground 1 should generally be accepted.
2. An ICO is a form of custodial penalty and consideration of whether an ICO should be imposed required the sentencing judge to follow the three-stage process referred to in R v Fangaloka [2019] NSWCCA 173 at [44] (Basten JA, Johnson and Price JJ agreeing).
3. First, the sentencing judge was required to determine, in accordance with s 5 of the Sentencing Procedure Act, whether no penalty other than imprisonment was appropriate. This J Smith SC DCJ did and there was no challenge to the determination in this regard.
4. Secondly, it was necessary to determine the length of the sentence. The sentencing judge's determination was that the sentence should be 20 months. This aspect of the sentence was challenged in effect under ground 2 as being manifestly excessive, but it was not said otherwise to involve any specific error of principle.
5. Thirdly, the sentencing judge was required to determine whether that sentence should be served by way of an ICO.
6. The imposition of an ICO is governed by Pt 5 of the Sentencing Procedure Act, ss 64 to 73B. Most relevantly, s 66 provides: "66 Community safety and other considerations (1) Community safety must be the paramount consideration when the sentencing court is deciding whether to make an intensive correction order in relation to an offender. (2) When considering community safety, the sentencing court is to assess whether making the order or serving the sentence by way of full-time detention is more likely to address the offender's risk of reoffending. (3) When deciding whether to make an intensive correction order, the sentencing court must also consider the provisions of section 3A (Purposes of sentencing) and any relevant common law sentencing principles, and may consider any other matters that the court thinks relevant."
7. The purposes of sentencing set out in s 3A are as follows: "3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community."
8. Section 67 identifies offences for which an ICO is not available and did not exclude an ICO in the present case.
9. The effect of s 68 is to permit an ICO to be imposed in a case where the term of an individual sentence does not exceed 2 years, or in the case of an aggregate sentence, 3 years. In the present case, an ICO could have been imposed since the sentence of 20 months was less than 2 years.
10. Section 69 relevantly requires a sentencing court to have regard to, without being bound by, the contents of any sentencing assessment report obtained in relation to the offender. That was done in the present case by J Smith SC DCJ who had regard to the report dated 12 February 2021.
11. The conditions to which an ICO is subject are set out in s 72 of the Sentencing Procedure Act as follows: "(a) standard conditions imposed by the sentencing court under section 73, (b) any additional conditions imposed by the sentencing court under section 73A, (c) any further conditions imposed by the sentencing court under section 73B, (d) any conditions imposed by the Parole Authority under section 81A or 164 of the Crimes (Administration of Sentences) Act 1999."
12. The standard conditions that must be imposed under s 73(1) are as set out in s 73(2) as follows: "(a) a condition that the offender must not commit any offence, (b) a condition that the offender must submit to supervision by a community corrections officer."
13. The additional conditions at least one of which must be imposed under s 73A(1), absent exceptional circumstances, are as set out in s 73A(2) as follows: "(a) a home detention condition, (b) an electronic monitoring condition, (c) a curfew condition imposing a specified curfew, (d) a community service work condition requiring the performance of community service work for a specified number of hours (not exceeding 750 hours or the number of hours prescribed by the regulations in respect of the class of offences to which the relevant offence belongs, whichever is the lesser), (e) a rehabilitation or treatment condition requiring the offender to participate in a rehabilitation program or to receive treatment, (f) an abstention condition requiring abstention from alcohol or drugs or both, (g) a non-association condition prohibiting association with particular persons, (h) a place restriction condition prohibiting the frequenting of or visits to a particular place or area."
14. Under s 73A(3), however, the sentencing court must not impose a home detention condition or community service work condition on an ICO unless a sentencing assessment report states that the offender is suitable to be the subject of such a condition.
15. Under s 82A of the Crimes (Administration of Sentences) Act 1999 (NSW), a community corrections officer has power to suspend the application of a supervision condition, being a condition referred to in s 73(2)(b) of the Sentencing Procedure Act. In doing so, the community corrections officer must comply with cl 189I of the Crimes (Administration of Sentences) Regulation 2014 (NSW).
16. In the present case, the applicant's sentencing assessment report relevantly stated: "Supervision plan Due to [the applicant's] Tier 1 Medium Low risk of reoffending, if the court makes a supervised order, Community Corrections will suspend [the applicant's] supervision in accordance with clause 189I of the Crimes (Administration of Sentences) Regulation 2014. [The applicant] should report to Bankstown Community Corrections Office within 7 days to receive instructions about their obligations while supervision is suspended. Community Corrections may activate supervision if [the applicant] is rearrested, information is received that his risk of reoffending has increased, or he breaches the suspension obligations. Recommended order conditions Community Corrections considers that no conditions other than a supervision condition are required to implement the supervision plan above. Community service assessment [The applicant] is a suitable person to undertake community service work. However, at this time, Community Corrections cannot assess [the applicant] as suitable for a community service work condition because there is no work available for him. The reason there is no work available for [the applicant] is because: ● No community service work available for violent offenders".
17. In accordance with s 66(1) and (2), J Smith SC DCJ expressly considered community safety as the paramount consideration and assessed whether making the ICO or serving the sentence by full-time detention would be more likely to address the applicant's risk of reoffending. His Honour's conclusion was that he could not be satisfied that full-time detention was more likely to address the applicant's risk of reoffending in light of the relatively low risk of reoffending and his previous good character. As was recently observed in this Court in Elphick v R [2021] NSWCCA 167 at [26] (Adamson J, Basten JA and Walton J agreeing), where the sentencing judge assessed an offender's risk of reoffending as low (whether the sentence was served in custody or by way of ICO), the consideration in s 66(2) becomes neutral and the sentencing judge is accordingly left to assess the matter by reference to the purposes of sentencing in s 3A of the Sentencing Procedure Act, as required by s 66(3). This is essentially what J Smith SC DCJ did in this case.
18. His Honour's comment that "the imposition of a sentence to be served by way of ICO reflects a significant degree of leniency" is a statement of principle which has been adopted by this Court on a number of occasions including, for example, in R v Cahill [2015] NSWCCA 53 at [114] (Johnson J, Leeming JA and Schmidt J agreeing). It involved no error of principle.
19. As noted above, the sentencing judge then had regard to the sentencing assessment report dated 12 February 2021 as required by s 69 of the Sentencing Procedure Act. The observation that there appeared to be no additional conditions that might reasonably be imposed to serve as punishment for the offence was correct in the circumstances of the present case given the contents of that report, which have been quoted above, and the available additional conditions referred to in s 73A(2).
20. While it could be accepted that supervision in the context of an ICO was a form of punishment involving curtailment of the freedom of an offender, it did not follow that the sentencing judge erred in finding that an ICO should not be imposed in the circumstances of the present case where the supervision condition would be suspended by Community Corrections and no other available conditions appeared to be applicable.
21. In particular, the sentencing judge was entitled to take into account that the sentencing assessment report indicated that community service work was not available for the applicant because of the nature of the offending. Even if it be accepted for the sake of argument that it was proper to characterise this as a "form of reverse punishment in that it disentitled him from an ICO", it was a relevant consideration and no error of principle was involved in his Honour taking it into account.
22. The sentencing judge then applied s 66(3) of the Sentencing Procedure Act, concluding in effect that, although the objective seriousness of the offending was relatively low, the need for punishment, denunciation, general deterrence and the recognition of harm to the victim would not be sufficiently recognised by service of the term of imprisonment by way of an ICO.
23. In short, the applicant did not identify any error in the sentencing judge's reasoning or his conclusion that an ICO was not appropriate in the applicant's case.
24. For these reasons, I was of the view that ground 1 would not be made out. Since the ground was arguable, it was appropriate that leave to appeal should be granted in respect of this ground, but the appeal should not be upheld on this basis.

Ground 2

1. Ground 2 involved the contention that the sentence of 20 months and the non‑parole period of 10 months were manifestly excessive. There was no dispute between the parties as to the applicable principles to be applied in determining such a ground of appeal.

Submissions

1. The applicant submitted in substance that it was difficult to understand how the sentence of 20 months was arrived at, having regard to the findings concerning: 1. the objective seriousness of the offending; 2. the very limited nature and extent of the offending; and 3. the fact that the applicant was a person with no previous convictions, who demonstrated remorse and acted under "special family circumstances".
2. In those circumstances, it was submitted that the sentence was unreasonable and unjust.
3. The Crown drew attention to the fact that the applicant's counsel had submitted before the sentencing judge that the term of the sentence should be 2 years but served by way of an ICO. It was submitted in effect that the applicant had not demonstrated that the sentence was manifestly excessive in light of the following: 1. the maximum penalty for the offence of 20 years' imprisonment; 2. the applicant pushed the victim from the van and assaulted him for two to three minutes; 3. the victim was detained for about 20 minutes; 4. the injuries were not insignificant; and 5. notwithstanding the finding that the offending was at the lower end of objective seriousness and the applicant's favourable subjective case, the sentence imposed was open and within the range of available sentences.

Consideration

1. In the present case, the applicant was found guilty of an offence of kidnapping with actual bodily harm contrary to s 86(2)(b) of the Crimes Act. The maximum penalty for this offence is 20 years' imprisonment.
2. In considering whether the sentence imposed on the applicant of 20 months' imprisonment with a non‑parole period of 10 months was manifestly excessive, the findings as to the circumstances of the offending set out below were particularly relevant. 1. The applicant and the victim were cousins and had reason to talk to one another about the victim's parents' concerns. 2. The applicant had hired the van some days before so that he could show relatives around. 3. When the applicant went to the victim's workplace, the victim entered the van willingly and told the applicant that he would rather talk elsewhere than at his workplace, and that was why he got into the van. 4. In the van, the applicant spoke to the victim "very nicely and in a respectful way". 5. It was the victim who started to say "bad things" about the applicant's mother. Before that, the applicant had no intention of assaulting the victim, but he lost control when that occurred. 6. The applicant had the van stopped, pushed the victim out and assaulted him with his arms and knees for about two to three minutes. 7. The taking or detaining element of the offence only occurred after the victim had said "bad things" about the applicant's mother and the van had been stopped. "The detention … was not obtained by more than the fact that the victim was already in the van and when it was stopped he was pushed out and assaulted". 8. After a telephone call from the victim's work asking that he be brought back and text messages threatening to call the police if the victim was not brought back within 10 minutes, the victim was driven back in the van to his workplace. 9. The taking or detaining element ceased when the victim was put back in the van, which was done not for the purpose of depriving him of liberty but to take him back to his workplace. 10. The taking or detaining was not lengthy and lasted only around 20 minutes in total. 11. There was no planning involved in the offence. 12. There was no power imbalance that was being exploited by the applicant. 13. The injuries sustained by the victim were not severe. 14. No weapons were involved.
3. These findings established that there was no detention of the victim in the van. The detention was found to have been the result of the victim being caused to fear for his wellbeing by the assault outside the van. In the present case, the taking or detaining element which involved deprivation of liberty was, therefore, unusually minor. Moreover, the occasioning of actual bodily harm element of the offence was very far from the most serious. In these circumstances, the sentencing judge's finding that the offending fell "at the lower end of objective seriousness" was entirely appropriate and indicated that the gravity of the offence was at or towards the bottom of the range.
4. In addition to these considerations, the applicant's subjective case did not contain any significant factors which were unfavourable to the applicant. 1. He was about 36 years old at the time of sentencing. 2. He had lived in Australia since 2017 and been employed in Sydney. 3. He was remorseful. 4. He has no prior convictions and was otherwise of good character as established by the references provided on sentence. 5. He was unlikely to reoffend and had very good prospects of rehabilitation.
5. The Crown in written submissions drew attention to some of the facts and circumstances referred to above as well as the maximum penalty of 20 years' imprisonment as factors which would tell against a conclusion that the sentence was manifestly excessive.
6. Imposition of a sentence involves the exercise of a discretionary power, and in order to succeed on an appeal against sentence an error of the type identified in House v The King (1936) 55 CLR 499; [1936] HCA 40 must be established. Where the ground relied upon is that the sentence is manifestly excessive, no patent error is identified but the error is to be inferred. In House v The King at 505 (Dixon, Evatt and McTiernan JJ) said: "It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
7. As the High Court explained in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59], what reveals manifest excess of sentence is consideration of all the matters that are relevant to fixing the sentence.
8. In addition, appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases, and it is not to the point that this Court might have exercised the sentencing discretion differently: Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443].
9. In the present case, the objective gravity of the offending was at or towards the bottom of the range and the applicant's subjective case tended in all significant respects in favour of mitigation. Bearing in mind the applicable principles and even taking into account all the factors identified by the Crown's submissions as part of the consideration of all the matters that were relevant to fixing the sentence in this case, including the purposes of sentencing in s 3A of the Sentencing Procedure Act - in particular, the need for denunciation, punishment and general deterrence to discourage private administration of "rough justice" - it appeared to me that the particular and unusual circumstances of this case led to the conclusion that the sentence of 20 months' imprisonment with a non‑parole period of 10 months was unreasonable or plainly unjust. That sentence was not within the range of sentences reasonably available in those particular and unusual circumstances, even though it might be said to be within the range of sentences which have been imposed in respect of offending contrary to s 86(2)(b) of the Crimes Act generally. Accordingly, I was satisfied that some error had occurred, even though it could not be discerned from the sentencing judge's reasoning.
10. For these reasons, I concluded that leave to appeal on ground 2 should be granted and the appeal upheld on the basis that the sentence was manifestly excessive.

Re-sentencing

1. Since the second ground of appeal was made out, this Court was required to exercise the sentencing discretion independently and afresh. In doing so, Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 (Kentwell) established, at [42], that the Court is to take into account the purposes of sentencing as well as the factors that the Sentencing Procedure Act and any other Act or rule of law requires or permits.
2. Where this Court comes to re-sentence, the sentencing discretion is to be exercised having regard to the material that was before the sentencing judge, the sentencing judge's unchallenged factual findings and any relevant evidence of post-sentence conduct: DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 at [9] (Bell, Keane, Nettle, Gordon and Edelman JJ).
3. Section 6(3) of the Criminal Appeal Act requires in effect that, if having carried out the process required by Kentwell, the Court was of the opinion that some other sentence (generally less severe) was warranted in law and should have been passed, the sentence imposed should be quashed and the applicant should be sentenced accordingly. In any other case, the appeal should be dismissed.
4. The sentencing judge's findings as to the circumstances of the offending and his Honour's assessment of objective seriousness, none of which was challenged on this appeal, have been set out above and I took them into account together with all the material that was before his Honour.
5. I also adopted his Honour's findings and assessments as to the applicant's subjective case and the conclusions as to the appropriate nature, and commencement date of, the sentence.
6. There was no additional evidence before this Court of any changes in the applicant's circumstances since sentencing.
7. Like the sentencing judge, I also found that there were special circumstances, having regard to the applicant's relative youth, previous good character and the difficulty he faced because of his lack of family support in this country and potential language difficulties.

Sentence

1. Bearing in mind the purposes of sentencing in s 3A of the Sentencing Procedure Act, the other requirements in that Act, the relevant principles concerning sentencing, and all of the objective and subjective circumstances, I was of the view the applicant should be sentenced to a term of imprisonment of 12 months commencing on 25 April 2021 and expiring on 24 April 2022, with a non-parole period of 7 months expiring on 24 November 2021. This non‑parole period gave appropriate effect to the finding of special circumstances referred to above.

Orders

1. For these reasons, I joined in the orders made on 1 December 2021 which have been set out above.

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: 16 December 2021