Murphy v The King [2025] ACTCA 10

1. On 10 February 2023, the appellant, Mr Shay Kahu Murphy, was convicted by a jury of the following offences against two victims, identified as ‘Ms A’ and ‘Ms B’: (a) Count 3 (CC2022/1150): negligently causing grievous bodily harm, contrary to s 25 of the Crimes Act 1900 (ACT), (Ms A); (b) Count 6 (SCCAN2022/61): recklessly inflicting actual bodily harm, contrary to s 23 of the Crimes Act, (Ms A); (c) Count 9 (CC2022/1153): sexual intercourse without consent, contrary to s 54 of the Crimes Act, (Ms A); (d) Count 10 (SCCAN2022/63): assault occasioning actual bodily harm, contrary to s 24 of the Crimes Act, (Ms B); (e) Count 12 (CC2021/11054): assault occasioning actual bodily harm, contrary to s 24 of the Crimes Act, (Ms B); (f) Count 15 (CC2021/11057): sexual intercourse without consent, contrary to s 54 of the Crimes Act, (Ms B); (g) Count 17 (SCAN2022/65): sexual intercourse without consent, contrary to s 54 of the Crimes Act, (Ms B); (h) Count 18 (SCAN2023/22): common assault, contrary to s 26 of the Crimes Act, (Ms B); and (i) Count 19 (SCAN2023/23): common assault, contrary to s 26 of the Crimes Act, (Ms B).

2. At the commencement of that trial, the appellant entered a plea of guilty to the following transfer charge: (a) CC2021/11052: damage property, contrary to s 116(3) of the Crimes Act, (Ms B).

3. On 12 April 2023, the appellant entered a plea of guilty to three offences perpetrated against two other victims, ‘Ms C’ and ‘Ms D’: (a) Count 1 (SCCAN2022/66): choke, strangle or suffocate, contrary to s 28(2)(a) of the Crimes Act, (Ms C); (b) CC2021/11195: common assault, contrary to s 26 of the Crimes Act, (Ms C); and (c) Count 2 (CC2023/310): assault occasioning actual bodily harm, contrary to s 24 of the Crimes Act, (Ms D).

4. On 15 August 2023, the appellant entered a plea of guilty to the following ‘rolled up’ charge: (a) CC2021/11194: damage property, contrary to s 116(3) of the Crimes Act, (Ms C).

5. The primary judge found the following three transfer charges proved on 17 August 2023: (a) CC2021/11049: common assault, contrary to s 26 of the Crimes Act, (Ms B); (b) CC2021/11050: common assault, contrary to s 26 of the Crimes Act, (Ms B); and (c) CC2021/11058: common assault, contrary to s 26 of the Crimes Act, (Ms B).

Sentence under appeal

6. On 17 August 2023, the appellant was sentenced to a total period of imprisonment of 14 years and 2 months, with a non-parole period of 8 years and 6 months: DPP v Murphy (No 2) [2023] ACTSC 227 at [110]. The sentence imposed for each individual offence was as follows:

No Offence Maximum Sentence Cumulation penalty (months) (months) 1 Negligently causing grievous bodily 5 years 12 12 harm (Count 3: CC2022/1150) 2 Recklessly inflicting actual bodily 5 years 12 3 harm (Count 6: SCAN2022/61) 3 Engage in sexual intercourse 12 years 27 18 without consent (Count 9: CC2022/1153) 4 Common assault (CC2021/11049) 2 years 4 4 5 Common assault (CC2021/11050) 2 years 5 2 6 Property damage (CC2021/11052) 2 years 2 1 7 Assault occasioning actual bodily 5 years 30 29 harm (Count 10: SCCAN 2022/63) 8 Assault occasioning actual bodily 5 years 6 2 harm (Count 12: CC2021/11054) 9 Common assault (Count 18: 2 years 18 6 SCAN2023/22) 10 Common assault (Count 19: 2 years 18 9 SCAN2023/23) 11 Engage in sexual intercourse 12 years 36 24 without consent (Count 15: CC2021/11057) 12 Common assault (CC2021/11058) 2 years 9 3 13 Engage in sexual intercourse 12 years 36 24 without consent (Count 17: SCAN 2022/65) 14 Choke, strangle or suffocate (Count 5 years 21 (starting 21 1: SCCAN 2022/66) point 24) 15 Damage property (CC2021/11194) 2 years 8 (starting 2 point 9) 16 Common assault (CC2021/11195) 2 years 8 (starting 2 point 9) 17 Assault occasioning actual bodily 5 years 8 (starting 8 harm (Count 2: CC2022/310) point 9)

Grounds of Appeal

7. A notice of appeal was filed on 13 September 2023, with an amended notice of appeal filed on 31 October 2023. At the hearing the appellant sought leave to add an additional ground of appeal which was not opposed by the respondent and the appeal was argued on that basis. The grounds of the appeal can be summarised as follows: (a) the sentences imposed on Count 3 and Count 6 were manifestly excessive; (b) the primary judge erred in his assessment of the objective seriousness of Count 3 and Count 6; (c) the primary judge erred in assessing the objective seriousness of Count 18 and Count 19 by finding these offences as being in “the worst case”; (d) the primary judge erred in treating prior family violence by the appellant against the victim (Ms B) as an aggravating factor for Count 18 and Count 19; (e) the primary judge erred in having regard to an irrelevant consideration for Count 19, namely the possibility that the victim (Ms B) had suffered an unproven injury; and (f) the primary judge erred in failing to have regard to an additional 19 days served by the appellant in pre-sentence custody.

Facts on sentence

8. The primary judge sentenced the appellant on the following facts, comprised of agreed facts and findings he made after the return of a guilty verdict by the jury in relation to Counts 3, 6, 9, 10, 12, 15, 17, 18 and 19 as well as transfer charges CC2021/11049, CC2021/11050 and CC2021/11058. The appellant made no challenge to any of the factual findings made by the primary judge.

Offending against Ms A

9. The appellant and Ms A met at their place of employment. Ms A was 16 years old; the appellant was 20 years old. The appellant had a girlfriend for the duration of his relationship with Ms A. Ms A would attend the appellant’s house when his girlfriend was not present. He instructed Ms A to lie about her whereabouts to her family.

10. Controlling and aggressive behaviour became a feature of their relationship. On one occasion at work, the appellant took her phone and interrogated her about an old message, believing it was from a male friend when it was in fact from a female friend.

11. The appellant fabricated a story that Ms A had made a complaint to him of being sexually abused by her brother. She would do what he told her to do because she was scared of the consequences if she did not.

Count 3: CC2022/1150 – Negligently causing grievous bodily harm

12. At the end of 2011, the appellant asked Ms A to give him access to her email account, resulting in an argument between them. Subsequently, Ms A observed the appellant had cut his chest. He told her that he needed her to do something for him. The appellant told Ms A that he needed her to take the knife and cut herself where no one could see.

13. Ms A felt this was the only way she could make the situation better. She used the same knife the appellant had used to cut his chest to cut her thigh, close to her underwear. The cut began to bleed. The cut left a scar that has since faded but remains visible.

Count 6: SCAN2022/61 – Recklessly inflicting actual bodily harm

14. The offender demonstrated controlling behaviour in relation to Ms A’s attendance at her Year 10 formal in December 2011. In the days following the formal, the appellant informed Ms A that she had really hurt him and he consequently required that she cut herself using a house key. Ms A initially refused and the appellant became aggressive when she was unable to cut herself using the key. Eventually, the appellant pressed the key into her skin and quickly dragged it across the top of her arm. This made a cut which began to bleed. Ms A still has a scar from the incident.

Count 9: CC2022/1153 – Engage in sexual intercourse without consent

15. On an occasion between 1 September 2011 and 1 March 2012, Ms A was in the appellant’s bedroom. The appellant told Ms A to take off her pants, and she did. Ms A told the appellant, “I haven’t done anything before”, and he responded, “I know”. The appellant removed his pants, leaving his underwear on. Ms A got onto the bed.

16. The appellant then went to the bathroom. When he returned, his penis was erect and he had a condom on. Ms A felt overwhelmed and out of her depth. The appellant moved towards her and told her to relax and stay calm. The appellant penetrated Ms A’s vagina with his penis. The appellant was gentle at first.

17. The appellant told Ms A to stay calm. She began crying and told him that it hurt too much and she did not want to continue. She tried to get up but the appellant pushed her down and moved over the top of her. He pushed his penis deep inside her vagina and Ms A felt a sharp pain at the very bottom of her stomach. The appellant continued to push his penis inside her. It was painful and Ms A zoned out.

18. Eventually, the appellant stopped and walked out of the bedroom. Ms A’s vagina stung and when she felt it, she saw bright red blood on her hand.

Offending against Ms B

19. The appellant and Ms B met while they were both working at the Canberra Hospital. They commenced dating in July 2012 when Ms B was about 18 years old. They married in 2016 and had a daughter in 2018. The appellant’s relationship with Ms B ended in November 2018.

20. The evidence disclosed a pattern of behaviour on the part of the appellant reflecting violence, abuse and manipulation of Ms B. During the course of the relationship, the appellant was suspicious of Ms B’s involvement with other men and would accuse her of having a sexual relationship with her brother. He would search through Ms B’s phone. He would go through her underwear and question her about any discharge on her underwear. He would call her a whore and a slut. On occasion, the appellant would cut himself after arguments and tell Ms B it was her fault.

CC2021/11049 – Common assault

21. On a date in August 2012, Ms B and the appellant were at their residence. Ms B was lying on her back on their queen-sized bed.

22. The appellant hovered over Ms B in such a way that prevented her from running away. Ms B felt scared as the appellant was much bigger than she was. The appellant punched her upper thigh or thighs four times. Ms B was crying and screaming.

CC2021/11050 – Common assault

23. Later in August 2012, Ms B was planning a trip to Adelaide with friends. The appellant was unhappy about the trip. In the week leading up to Ms B’s departure for Adelaide, the two began to argue in the study at their home.

24. The appellant punched Ms B in the middle of her chest, between her breasts with a balled-up fist. She immediately felt immense pain. Ms B was gasping for air and slid down the wall so that she was sitting down.

25. Ms B was crying. She said it felt as though something was broken. The appellant told her, “Oh, you’re just winded”. The argument deescalated after this.

26. Ms B continued to experience pain for quite a while after the incident. On 2 September 2012, Ms B attended The Queen Elizabeth Hospital in Adelaide. There, she told medical staff, “My boyfriend punched me in the chest”. She reported pain in the central chest area, pain on taking a deep breath, on coughing and on palpitation, as well as feeling tender on her sternal area. A chest x-ray showed no fracture. The medical officer’s impression was that Ms B had a sternal bruise. She was discharged with a plan to take pain medication.

Count 10: SCCAN2022/63 – Assault occasioning actual bodily harm

27. On an occasion between 1 August 2012 and 18 December 2012, Ms B and the appellant were fighting in the lounge room of their residence.

28. The appellant became aggressive. Ms B ran down the hallway towards the front door. The appellant caught up to her and pushed her to the ground so that she was on her back.

29. The appellant balled-up his fists and repeatedly punched Ms B in her upper legs, her thighs, her abdomen just above her crotch and her vagina. Both Ms B and the appellant were crying. The appellant was yelling loudly at Ms B that he hoped that she would never have children. Ms B was unable to get away from the appellant. The appellant punched her at least 20 times. Ms B experienced deep bruises on the lips of her vagina. She also experienced bruising on her upper thighs, lower buttocks and the outside of her thighs.

30. The following week, when Ms B and the appellant were planning to travel to the coast, Ms B dressed herself in shorts. The appellant told her that she could not wear them, saying, “You can’t wear those. Look at your legs”. Ms B got changed.

CC2021/11052 – Property damage

31. On 16 October 2012, the appellant took a screwdriver from the kitchen. He placed Ms B’s mobile phone on the floor and used the screwdriver to break it.

Count 12: CC2021/11054 – Assault occasioning actual bodily harm

32. Around November 2012, the appellant and Ms B moved to a house in Rivett. On one occasion, they were arguing by the doorway.

33. The appellant pushed Ms B to the ground. The appellant then lifted Ms B’s upper body by her upper arms and, with force, slammed her back down against the slate floor. Ms B hit her head hard on the slate tiles. Later, when Ms B touched her head, she saw blood on her hand.

Count 18: SCAN2023/22 – Common assault

34. On a date between December 2012 and August 2014, the appellant and Ms B were at their residence in Rivett. Ms B was on the carpeted floor, lying on her back. The appellant was sitting on the lower half of Ms B’s body so that she could not stand up. The appellant then covered Ms B’s face with a bath towel. He poured water from a mixing bowl onto Ms B’s face, causing the towel to cling to her face and preventing her from being able to breathe. She was unable to move her head or stand up. Ms B feared she may die. At one point, the appellant paused, allowing her to catch her breath before he started again. Ms B swallowed water at some points. The appellant continued to pour water onto Ms B’s face until the bowl was empty.

Count 19: SCAN2023/23– Common assault

35. On a date between December 2012 and August 2014, the appellant and Ms B were in the bedroom of the Rivett premises. Ms B was lying on her back on the bed wearing only her underwear. The appellant straddled her, pressing his forearms into her neck with force, so that Ms B was unable to breathe or talk. Ms B felt like she could not get any air in. She feared for her life.

36. At some point, Ms B became incontinent and defecated. She was able to say, “something happened”. The words came out strangely and did not sound like her normal voice. The appellant released her. Count 15: CC2021/11057 – Engage in sexual intercourse without consent

37. On a date between December 2012 and August 2014, Ms B and the appellant were arguing. The appellant made Ms B stand in the shower and he turned only the cold water on. Ms B stood in the shower, shaking, for a few minutes, but felt she could not leave.

38. The appellant turned the shower off but would not let Ms B dry off. He made her go to the lounge room and sit in front of a fan. He was angry and continued to argue with her.

39. The appellant told Ms B to lie down on the floor. He sat high up on her chest, and her arms were stuck underneath his body. He grabbed his penis and forcibly inserted it into Ms B’s mouth, telling her, “I’m going to piss in your mouth”. Ms B tried but was unable to move her head away. The appellant was unable to urinate so removed his penis from Ms B’s mouth after 5 or 10 seconds and released her.

CC2021/11058 – Common assault

40. On a date in December 2013, the appellant and Ms B were having an argument in their home. Ms B told the appellant she wanted to break up with him and leave. He cornered her between the window and the chest of drawers in the room and punched her five or six times in her stomach using a fist in an uppercut motion. Ms B was crying.

Count 17: SCAN2022/65 – Engage in sexual intercourse without consent

41. In August 2014, the appellant and Ms B engaged in penile-anal intercourse. She was crying because she was in so much pain. After he had finished the appellant told her that it was a real turnoff that she was crying during anal sex.

42. The appellant was reckless as to Ms B’s consent and continued to engage in anal intercourse despite him being aware of the pain it was causing her.

Offending against Ms C

43. The appellant and Ms C met while they were both working at the Canberra Hospital. They were in a relationship between February 2019 and July 2020. Ms C moved in with the appellant within seven weeks of dating him.

44. The appellant began to exhibit controlling behaviours within the first few months of the relationship. He would often accuse Ms C of sleeping around and cheating on him. The appellant would yell at Ms C, threaten to assault her or other people and call her derogatory names. Ms C became increasingly upset and frightened by his acts of aggression.

45. On several occasions, after the appellant had gone into a rage, Ms C observed him to cry or engage in self-harm by inflicting superficial knife wounds to his chest. Count 1: SCCAN2022/66 – Choke, strangle or suffocate

46. On 1 September 2019, Ms C picked up the appellant’s daughter from Ms B’s house. Ms C spent the day with the appellant’s daughter before taking her back to Ms B’s parents’ house. There, she met Ms B’s parents and stayed speaking with them for about an hour. Ms C left her mobile phone in her car during this time. The appellant called and texted her multiple times while she was inside.

47. The appellant was in the garage feeding the dogs when Ms C returned to their residence. Ms C parked on the street and walked in through the open garage door. The appellant accused Ms C of “being out fucking someone” and of being “an escort or a prostitute and being paid for sex”.

48. At some point, the appellant closed the garage roller door.

49. The appellant approached Ms C and stood very close to her so their noses were almost touching. The appellant loudly screamed in Ms C’s face that she was a cunt. Ms C observed the appellant to be aggressive and agitated; his eyes appeared completely black.

50. Ms C began to walk towards the door that led into the house. The appellant put both arms over her shoulders and around her neck, wrapping his arms tightly around her neck and pressing hard against the front of her neck and throat. The appellant stood directly behind Ms C, his chest pushed firmly against her back. Ms C tried to scream but was unable to because the appellant’s forearms were so tight against her throat. She made a gurgling sound instead. Ms C did not lose consciousness. The appellant threw her backwards onto the concrete floor before walking inside.

51. Ms C eventually went inside and told the appellant she would not stay with someone who physically hurt her. The appellant was apologetic at first but then blamed Ms C for leaving her mobile phone in her car and for not having made him her priority.

52. The following day, Ms C disclosed the incident from the night before to one of her close friends and to one of the appellant’s friends. Ms C also disclosed the incident to her supervisor and a human resources advisor. When she got home from work, the appellant was crying hysterically in his daughter’s bedroom. The appellant kept saying that he was going to lose his daughter. At some point he told Ms C that he knew his conduct was domestic violence.

CC2021/11194 – Rolled up charge of property damage

53. On 24 or 25 February 2020, the appellant wanted Ms C to perform oral sex on him while he watched pornography on his phone. When Ms C refused, the appellant got up and punched a hole in the wardrobe door. He then slammed the door with such force it broke the latch.

54. On 29 or 30 April 2020, the appellant threw a remote control at the wall in the lounge room causing a hole.

55. On 8 May 2020, the appellant and Ms C were at home when he demanded that she tell him her work colleague’s number of sexual partners. When Ms C refused, the appellant slammed the bedroom door into the wall, causing two big holes.

CC2021/11195 – Rolled up charge of common assault

56. At about 10am on 16 March 2020, Ms C and the appellant were arguing in their home. The appellant shoved Ms C four times. Ms C tried to leave the room and so on the fourth time he shoved her it was with such force that she fell backwards onto the bed.

57. After this, Ms C tried to get dressed for work. As she was getting dressed the appellant snatched her bra out of her hand, however, he grabbed her breast instead. Though this did not cause a mark or injure Ms C, it really hurt her.

58. That night the offender and Ms C were arguing at home. The offender coughed up some phlegm and spat it straight into Ms C’s eyes. He had a cold at the time and Ms C noticed the phlegm was smelly. She was disgusted.

59. Ms C cried after this occurred and tried to leave the appellant that night. He talked her into believing it was her fault and that she should not leave him.

Offending against Ms D

60. The appellant and Ms D commenced a relationship in July 2021. They both worked at the Canberra Hospital. The appellant and Ms D were in an ‘on-again-off-again’ relationship until 1 January 2022.

61. At the start of the relationship, small arguments occurred between them. Over time, the offender became more jealous and distrustful and would ask to read Ms D’s phone. Verbal abuse also became prevalent in the relationship.

Count 2: CC2023/310 – Assault occasioning actual bodily harm

62. On the morning of 7 November 2021, Ms D and the appellant were at the appellant’s house. Ms D made a comment about a male, causing the appellant to verbally abuse Ms D for half an hour, calling her a whore and a cunt. The appellant later apologised.

63. That evening, the appellant and Ms D went out for dinner. They drank two beers and a glass of wine with dinner before returning to Ms D’s residence. There, they shared a bottle of champagne. Ms D felt tipsy. They listened to music on the balcony together.

64. Ms D received a message on her phone from a male friend in Colombia. The appellant asked to see the message. On a prior occasion, the appellant and Ms D had argued about her leaving kiss emojis on a Facebook comment made by her ex-husband about her dog. As a result of this prior incident and the verbal abuse she had experienced earlier that day, Ms D panicked and went to grab her phone. She knew the last message she had sent said something about her friend being gorgeous and that she had used a love heart or kiss emoji. The appellant said, “Give me your fucking phone you cunt”.

65. Once the appellant had Ms D’s phone, he began to read the message from her friend, as well as messages in her phone from other men. The appellant began yelling, “You’re a stupid cunt whore, low value”. He was angry and yelling loudly, frightening Ms D.

66. Ms D tried to persuade the appellant to read the messages again so she could show him that they were not what he thought. At some point, Ms D touched the appellant and he said, “Get the fuck off me”.

67. The appellant left Ms D’s apartment. She followed him because she wanted to stop him from ending the relationship. The appellant continued to call her a cunt and a whore. As they got to the gate of Ms D’s apartment complex, the appellant pushed Ms D over. She was able to break her fall and got back up. Ms D was yelling, “Please stop”, and tried to persuade the appellant to read the messages with her.

68. Ms D and the appellant ended up on Torrens Street in Braddon. The appellant was walking; Ms D was trying to stop him. Ms D was standing in front of the appellant, walking backwards as he advanced. At some point, Ms D put both her hands on the appellant’s arms. The appellant pushed her backwards as he walked. The appellant grabbed Ms D’s shoulders. He threw Ms D off the footpath and onto the adjacent dirt verge. She fell onto her left hip and hit her head on something hard on the ground. Ms D did not get up as she did not feel well. She was dazed and dizzy, and her hip hurt. The appellant initially kept walking. He eventually came back, saying “Get up”. Ms D told the appellant she was not feeling well. The appellant said, “If you don’t fucking get up, I’ll call an ambulance”.

69. The appellant then called triple-zero. Ms D could hear him speaking to the operator, but she asked him to stop because they would know the paramedics that attended due to their employment at the Emergency Department at the Canberra Hospital. She did not want her workplace to know that her injuries were a result of the appellant assaulting her. Ms D said, “Cancel the call, they’re gonna be our paramedics”. The appellant then advised the operator he no longer required an ambulance and terminated the call.

70. Ms D told the appellant, “Just fucking go, get away from me”. The appellant left her. Ms D felt dizzy. After about 10 minutes, she could get up and was able to walk back to her apartment complex. She did not have her phone or keys therefore a neighbour assisted her to re-enter the building.

71. Ms D’s hip bruised immediately. The bruising got progressively worse and went black. On 8 November 2021, Ms D spoke to her friend because she was still feeling unwell. She described and sent photos of her injuries to her friend.

The Court’s power on appeal

72. The relevant legislative framework governing appeals against a decision of a single judge of the Supreme Court is found in pt 2A of the Supreme Court Act 1933 (ACT). Section 37E(2)(a) establishes jurisdiction and s 37O(7) sets out the powers of the Court of Appeal in sentence appeals which include increasing or decreasing the sentence or substituting a different sentence.

73. As a sentence subject to appeal is the product of the sentencing judge’s discretion, the Court may only intervene if error is identified in the original sentence. As the Court of Appeal explained in R v Duffy [2014] ACTCA 53; 297 FLR 359 at [53]: On such an appeal, the Court of Appeal will intervene only if it is satisfied that there has been an error of the type referred to in House v The King (1936) 55 CLR 499. There must be a specific error of fact or law, or an implicit error that is discernible because the sentence is so plainly wrong (so “manifestly excessive” or “manifestly inadequate” or “outside the range of available sentences” or “dramatically inappropriate”) as to compel the conclusion that there has been an error in the exercise of the sentencing discretion, although no specific error can be identified: Dinsdale v The Queen (2000) 202 CLR 321 per Gaudron and Gummow JJ at [22]; Wong v The Queen (2001) 207 CLR 584 at [58]; Hili v The Queen (2010) 242 CLR 520 (Hili) at 58-59.

74. The appellant contended that any one of the errors alleged in grounds (b)-(f) saw the sentencing discretion miscarry and accordingly warrant appellate intervention, resulting in a resentence by this Court: Kentwell v The Queen [2014] HCA 37; 252 CLR 601. There is a debate about whether Kentwell remains applicable in the context of Territory legislation, which contains different wording from the statute under consideration in that case: see M C-N (a pseudonym) v The Queen [2023] ACTCA 21 at [25]; Director of Public Prosecutions v Padreny [2024] ACTCA 4 at [59].

75. The issue does not arise here because, for the reasons that follow, the appellant has not established any ground of appeal affecting the primary judge’s sentencing discretion and apart from amending the start date of the sentence to correct a back-dating error, the appeal should be dismissed.

Ground (a): Manifest excess (Counts 3 and 6)

76. The appellant submitted that the individual sentences imposed in respect of Count 3 (CC2022/1150), negligently causing grievous bodily harm, and Count 6 (SCAN2022/61), recklessly inflicting actual bodily harm, were manifestly excessive. Both offences have a maximum penalty of a term of imprisonment for five years. The primary judge imposed a sentence of a term of imprisonment for 12 months in relation to each count.

Principles with respect to manifest excess

77. The principles in relation to an assessment of whether a sentence is manifestly excessive have been considered extensively and were summarised in Hawker v The Queen [2020] ACTCA 40 at [14]: The principles in relation to assessing whether a sentence is manifestly excessive are well established. Appellate intervention is not justified simply because an appellate court may have a different view as to the appropriate sentence than the sentencing judge: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15]; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [28], or where the result arrived at below is markedly different from other sentences that have been imposed in other cases: Wong v The Queen [2001] HCA 64; 207 CLR 584 (Wong) at [58]; Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 (Hili) at [58]. Rather, the appellant must demonstrate that the sentence is such that it may be inferred that there was some misapplication of principle in the sentencing of the appellant, even though when and how is not apparent from the statement of the sentencing judge’s reasons: Wong at [58]; Hili at [58]–[59], [75]–[76].

78. These principles and the approach to an assertion of manifest excess were reaffirmed by this Court in Tracey v The Queen [2020] ACTCA 51 at [37]-[38], where it was explained that consideration of whether a sentence is manifestly excessive occurs in the context of the maximum penalty, the standards of sentencing in respect of the offence, the relative objective seriousness of the offence and the personal circumstances of the offender. More recent restatements of those principles may be found in Porter v The Queen [2024] ACTCA 9; 21 ACTLR 122 at [133] and Robertson v DPP [2024] ACTCA 26 at [35].

Determination

79. The primary judge found that the first offence (Count 3) was at the low end of objective seriousness and that the second offence (Count 6) was in the low to mid-range of objective seriousness. The appellant acknowledged that the offences involved family violence which operated to aggravate their objective seriousness. Nonetheless, the appellant maintained that due to his age at the time of the offending, his mental ill-health, his disadvantaged upbringing and that these were his first offences, the just and appropriate sentence for each offence was a term of imprisonment of “no more than six months” of imprisonment.

80. While the appellant submitted globally in relation to both counts, it is necessary to record the features of the offending that informed the objective seriousness of the offending: R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [24]. The appellant was found guilty by a jury of the conduct establishing Count 3, negligently inflicting grievous bodily harm and Count 6, recklessly inflicting actual bodily harm.

81. The conduct making up Count 3 was as follows: (i) after an argument about the appellant demanding access to the victim’s email account, the appellant directed the victim to “do something for him” after cutting his own chest; (ii) the “something” was the victim cutting herself; (iii) the victim’s will was overborne by the appellant’s direction because of the dynamics of their relationship; (iv) as a result of the appellant’s direction, the victim cut into her own skin on her upper thigh, close to her underwear; and (v) the cut caused a scar which, while faded, remained visible.

82. The conduct making up Count 6 was as follows: (i) the appellant claimed the victim had “hurt” him and required that she cut herself with a key; (ii) the victim refused and the appellant became aggressive; (iii) the appellant pressed the key across the top of the victim’s arm “hard and quick” causing a cut; and (iv) the cut bled and caused a scar.

83. The primary judge observed with respect to Count 3 at [20]: The offending involved emotional manipulation of a teenage girl in circumstances where there was an age and power differential between the two. It did, however, involve grievous bodily harm at the very lowest end of what could come within the scope of that concept. It is at the low end of objective seriousness for this offence.

84. The primary judge observed with respect to Count 6 at [22]: This offence involved controlling, manipulative and violent behaviour on the part of the offender in circumstances where there was an (sic) significant power differential between him and Ms A. Although the harm involves a modest example of actual bodily harm, the circumstances of the offending lead it to be in the low to mid-range of objective seriousness for this offence.

85. The appellant’s subjective circumstances were comprehensively recorded by the primary judge at [80]-[87] and included his history of disadvantage, the effect upon him of childhood exposure to domestic violence and the risk of reoffending that he presented. The primary judge determined the appellant demonstrated “limited insight” into his offending and that “protection of the community must be a very significant factor in sentencing”. A report from Dr Bollinger to which the primary judge referred, recorded the appellant as struggling to “appreciate the wrongfulness of his conduct” and as continuing to “minimise a large proportion of his behaviour”. There was no challenge under this ground of appeal to any of the findings made by the primary judge with respect to the objective seriousness of the offending or the subjective circumstances of the appellant.

86. While not determinative, the appellant did not point to any comparative sentencing outcomes in support of this ground of appeal. The primary judge was provided with a “large table” of sentences said to be comparable, which prompted this observation at [103]: …[T]he current sentencing practice referred to in s 33(1)(za) of the CS Act is not significantly informed by sentences imposed in the range of different cases that were referred to. More practically useful is the understanding that current sentencing practice recognises the significance of family violence offending, usually perpetrated by men upon women, and the social significance of deterring that conduct and protecting the community from such conduct.

87. There can be no doubt, by reference to the applicable penalty, that these were objectively serious offences: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [31].

88. The offending caused pain and scarring to the victim in each case. The appellant facilitated the offences by asserting the power and control he wielded over the younger, less experienced victim. The capacity for the appellant to wield that level of power and control was as a direct result of the nature of the relationship between them, established by the appellant’s conduct prior to the offending.

89. The relationship between the appellant and the victim was characterised by the appellant employing aggressive and manipulative behaviour that caused the victim to fear him and ultimately led to her compliance with his demands. The role of the appellant in their relationship was instrumental to understanding the “nature and circumstances” of the offending as required by s 33(1)(a) of the Crimes (Sentencing) Act 2005 (ACT). The appellant’s use of aggression, control and emotional manipulation in the relationship explained how he was able to overbear the will of the victim to the extent that she was compelled to harm herself as occurred in Count 3 and prepared to allow the appellant to harm her as occurred in Court 6. The exploitation of power by the appellant was a factor that elevated the objective seriousness of the offending.

90. By its nature, grievous bodily harm is “really serious injury”: Haoui v Regina [2008] NSWCCA 209; 188 A Crim R 331 at [129]. The harm in Count 3 was occasioned to the victim because of the appellant’s conduct, which the jury found to be negligent, being a necessary element of the offence. The state of mind underpinning the offence explains the significant difference in maximum penalty as between Count 3 and the more serious offences of intentionally or recklessly causing grievous bodily harm which carry maximum penalties of imprisonment for 25 and 15 years, respectively. The nature of the injury saw it properly characterised as one at the lower end of the “really serious” scale of injury.

91. The actual bodily harm inflicted in Count 6 was done so recklessly and was the result of the direct application of force to the victim’s body by the appellant using a sharp implement. The bodily harm inflicted included bleeding and a scar.

92. The nature and extent of the injury caused is a factor considered to be significant in the assessment of objective seriousness, but it is not the only factor, as the primary judge recognised: see R v Campbell [2010] ACTCA 20 at [37] adopting Howie J (with whom Giles JA and Latham J agreed) in R v Thawer [2009] NSWCCA 158 at [43]. See also Waterfall v R [2019] NSWCCA 281 at [33].

93. The gravity of the offending was heightened by the breach of trust it represented and the power imbalance between the victim and the appellant cultivated by his conduct over the course of the relationship. The victim impact statement recounted the profound and ongoing effect of the offences upon the victim which included “overwhelming fear and anxiety, shame, guilt and a constant sense of vulnerability”. There was a need for the sentences imposed to recognise the harm occasioned to the victim.

94. The appellant’s lack of insight into the wrongfulness of his conduct was underscored by the attitude he demonstrated to Dr Bollinger when referencing his current relationship as one where he was “able to avoid being abusive” because his female partner had “promised” that she would be faithful to him. Unsurprisingly, the primary judge considered the appellant’s approach to his existing relationship as cause for concern as to his capacity for reform and as further evidence of the compelling need to protect the community.

95. The offender’s disadvantaged and dysfunctional childhood which the primary judge readily acknowledged, went some way toward explaining the pattern of behaviour revealed in the offending conduct. The appellant’s exposure to domestic violence from a very young age, both as a witness and a subject, undoubtedly shed light on why he was able to “exercise appropriate judgments in all areas of his life except his romantic relationships”. The appellant’s dysfunctional childhood did not just explain his past behaviour. It necessitated consideration of the risk he presented into the future. As the High Court acknowledged in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [44] affording an offender “full weight” for a background of childhood disadvantage will not have the same influence when considering each purpose of sentencing. While an offender’s childhood experience might explain their resort to offending behaviour, it may also operate to heighten the need to protect the community. The primary judge recognised this tension. In this instance, the appellant’s early exposure to violence perpetrated within his family environment inevitably influenced a consideration of his prospects for rehabilitation in light of his own entrenched use of violence in domestic relationships and the limited insight he revealed into his behaviour.

96. The appellant had engaged with one violence prevention course between December 2021 and January 2022. While he was assessed by Dr Bollinger to be a moderate risk of reoffending, Dr Bollinger also observed that the appellant displayed a “pattern of high levels of violence, verbal, physical and sexual, across his relationships over the past 15 years”. Added to the appellant’s limited insight into his offending conduct was his lack of remorse; a factor which properly influenced the assessment of his prospects for rehabilitation: R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at 169-170 [41].

97. The appellant’s childhood history, in combination with the nature and significant extent of the offending conduct, as well as his limited insight, was a proper foundation to question his capacity for reform without significant intervention. Accordingly, protection of the community, as the primary judge determined, was “a very significant factor”. The findings of the primary judge were well-founded when he stated at [105]: The combination of his denials, his admissions and his attempts to normalise his abnormal conduct were indicative of someone who clearly does not accept responsibility for what he did and reflects poorly on his prospects of sustainable change in the longer term.

98. The appellant did not come before the Court with a criminal history. Counts 3 and 6 were the offender’s first offences in the chronology of offending. The absence of a criminal history provided a basis for a consideration of leniency. The sentences imposed do not suggest otherwise. However, a consideration of the leniency in relation to Counts 3 and 6 could not occur in a vacuum. The primary judge was sentencing the appellant for a decade long pattern of offending against multiple women with whom he was in a relationship. Clearly Counts 3 and 6 were not aberrations. The appellant and his attitude toward his domestic partners were the common denominator in all of the offences. The absence of a criminal history, while a relevant consideration, did not diminish the significance of other considerations and fell to be assessed alongside the pattern of offending the appellant so clearly demonstrated.

99. A consideration of the objective seriousness of the offences in light of the maximum penalty, together with the appellant’s lack of remorse, the need to recognise the harm to the victim and to protect the community, as well as the limited prospects for rehabilitation and absence of remorse, do not reveal the sentences to be outside of the available range so as to be “plainly unjust”. The sentences imposed for each count do not speak of any misapplication of principle and were otherwise well open to the primary judge.

100. This ground of appeal has not been established.

Ground (b): Error in assessing objective seriousness (Counts 3 and 6)

101. In the event the Court rejected the claim of manifest excess in appeal ground (a), in the alternative the appellant contended that the primary judge erred by treating the appellant’s “controlling and aggressive behaviour” prior to the commission of the offences as an aggravating factor for Counts 3 and 6.

Ground (d): Double punishment (Counts 18 and 19)

102. Appeal ground (d) raises a similar complaint. The appellant contended that the primary judge erred in his assessment of Count 18 as occurring “within a long-standing context of manipulation violence and control by the [appellant]” and, further, that the primary judge was in error to treat s 34B of the Crimes (Sentencing) Act as operating to increase the objective seriousness of Counts 18 and 19.

103. It is convenient to deal with grounds (b) and (d) together.

104. As part of the formulation of these grounds of appeal the appellant necessarily moved away from the position put squarely on his behalf before the primary judge. At the sentencing hearing before the primary judge, counsel for the appellant conceded that the “family violence context” of the offending was a “significant aggravating feature of all of the offending”. Further it was accepted before the primary judge that the offending occurred in a context of the appellant cultivating “unhealthy relationships” where he “perpetrated a large amount of abuse outside the individual offences”. The appellant, through his counsel, accepted at the sentencing hearing that it was relevant that the offences occurred “in the context of otherwise very unhealthy, abusive relationships”. The appellant contended that the approach, encouraged upon the primary judge at the sentencing hearing, was an error.

105. As the Court of Appeal made plain in KQE v DPP [2024] ACTCA 7 at [45] citing Johnson J (with whom McClelland CJ at CL and Rothman J agree) in Zrieka v R [2012] NSWCCA 44; 2012 A Crim R 460 at [81], a sentence appeal is a review of the exercise of the sentencing discretion and is not a rehearing of a plea of mitigation. The Court of Appeal observing at [45] “[r]eformulation of the case below is not appropriate unless a miscarriage of justice is demonstrated”.

106. In this instance, no miscarriage of justice has been demonstrated. The primary judge was not wrong to approach the assessment of objective seriousness as he did.

107. We turn first to ground (b) dealing with Counts 3 and 6. As will become clear we do agree that the primary judge applied the appellant’s “controlling and aggressive” prior to the conduct to aggravate the objective seriousness of Counts 3 and 6. The primary judge’s reference to that prior conduct was necessary to explain how the offending came about. The primary judge assessed Counts 3 and 6 as extracted above at [84] and [85] by reference to the specific conduct that established the offences.

108. The appellant highlighted the following paragraphs of the sentencing remarks in support of the allegation of error: 12․ In identifying the objective seriousness of the offences I have taken care to consider the immediate context in which that offending has taken place. I have adopted the approach identified by Johnson J in R v Wilkinson (No 5) [2009] NSWSC 432 at [61]: Care must be taken in considering whether post-offence events may be taken into account in assessing the objective seriousness of the crime itself. However, the circumstances of an offence are not neatly marked out by two lines, one at the technical beginning and the other at the technical end of the crime: Director of Public Prosecutions v England [1999] 2 VR 258 at 263 [18]. Common sense and moral sense extend the circumstances of an offence which may be considered for an assessment of the objective seriousness of a crime, to events which precede and follow the technical limits of the crime. In imposing sentence for a crime, a judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime, and are properly to be regarded as circumstances of aggravation or mitigation: Director of Public Prosecutions v England at 263-264 [18]. … 17. Controlling and aggressive behaviour became a feature of the relationship. On one occasion at work, he took her phone and interrogated her about an old message on the phone, thinking it was from a male friend when it was from a female friend. After that, she felt obliged to message him constantly or he would get upset or aggressive.

109. The appellant submitted that the conduct which underpinned the primary judge’s characterisation of the appellant’s “controlling and aggressive behaviour” constituted “discreditable, but lawful conduct”. Such conduct, the appellant submitted, could not be treated as an aggravating factor purely because the label ‘family violence’ might affix to it. The appellant further submitted that the primary judge’s application of R v Wilkinson (No 5) [2009] NSWSC 432 was misconceived, as it “applies almost exclusively to cases of murder”.

110. Paragraph [17] of the primary judge’s reasons came under the heading “Offending against Ms A” in the portion of the sentencing remarks entitled “Facts and objective seriousness”. Those matters outlined at [14]-[18] were facts his Honour found having indicated earlier in his remarks that Ms A was a compelling witness whose evidence he accepted without hesitation. The observations at [14]-[18] set the scene for the specific detail of Counts 3 and 6 which the primary judge went on to identify in assessing the objective seriousness of the conduct.

111. The primary judge recorded that s 34B of the Crimes (Sentencing) Act did not apply to the offences against Ms A. Disapplying s 34B did not result in those matters referred to by his Honour at paragraphs [14]-[18] being irrelevant; they clearly fell within the ambit of s 33(1)(a).

112. The context of the offending was a relevant matter for the primary judge to take into account, pursuant to s 33(1)(a) of the Crimes (Sentencing) Act. Section 33(1)(a) requires the sentencing court to consider “the nature and circumstances of the offence”. In the case of Counts 3 and 6 that consideration necessarily included that the offending was facilitated by the appellant’s controlling and manipulative behaviour which was a feature of his relationship with Ms A.

113. The primary judge did not treat the controlling and aggressive behaviour engaged in by the appellant prior to the commission of Counts 3 and 6 as an aggravating feature of those offences when the remarks are read in their entirety.

114. As has already been observed, the reference to controlling and aggressive behaviour prior to the commission of the offences was necessary to understand the nature and circumstances of the offending. Both counts were specific examples of the appellant controlling and manipulating the victim. The conduct was facilitated by the appellant’s willingness to exploit the power he had over the victim by virtue of his preparedness to be controlling and aggressive. The effect of the control, manipulation and fear was the capacity for the appellant to engage in the conduct for Counts 3 and 6 and could only be explained by reference to the development of the relationship and the appellant’s role in it, recorded at paragraphs [14]-[18].

115. Undoubtedly the observations of Johnson J in Wilkinson (No 5) arose in the context of sentencing an offender for the offence of murder. While Wilkinson (No 5) has not been expressly considered in this jurisdiction, it has been well accepted in New South Wales that it has application to offences other than murder: see for example RH v R [2019] NSWCCA 64 at [36], Alarcon v R [2018] NSWCCA 298 at [89] and GG v R [2018] NSWCCA 280 at [61] and [67].

116. Justice Johnson’s observations in Wilkinson (No 5) at [61] drew upon the principles articulated in Director of Public Prosecutions v England [1999] VSCA 95; 2 VR 258. While England similarly considered the offence of murder and the offender’s subsequent conduct towards the deceased’s body, the Court relevantly and more generally, observed at [18]: Long before the Sentencing Act rose above the horizon judges drew on their common sense and their moral sense, as representing that of the community, in deciding what things about a crime could be said to make it more or less serious. They still do; nothing in the Act stops them doing this. Common sense and moral sense, which are and must ever be the essential foundation of sentencing principles and practices, unite in rejecting the notion that "the circumstances of the offence", for sentencing purposes, are neatly marked out by two lines, one at the technical beginning and the other at the technical end of the crime. What is premeditation, if not a circumstance of the offence? Yet by definition it precedes the crime. What is provocative conduct of the victim, viewed as palliating the crime, if not a circumstance of the offence? But again something cannot provoke unless it precedes. Similarly, it has long been recognised that the consequences of a crime (which by definition follow it) may form part of its circumstances for sentencing purposes: R. v. Boyd [1975] V.R. 168 at 172; R. v. McCormack [1981] V.R. 104 at 108. The courts treat the phrases “circumstances of the offence” and “surrounding circumstances of the offence” as interchangeable: R. v. Boyd at 172; R. v. Teremoana (1990) 54 S.A.S.R. 30 at 36- 37 and 50; R. v. De Simoni (1981) 147 C.L.R. 383 at 396 per Wilson, J.; R. v. Newman & Turnbull [1997] 1 V.R. 146 at 152 per Winneke, P. These and similar phrases do not look to some clearly defined period of time. In R. v. Austin (1985) 121 LSJS 181, King, C.J. (Zelling and Bollen, JJ. concurring) said (at 183): “It is true that in imposing sentence for a crime, a judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly to be regarded as circumstances of aggravation or circumstances of mitigation. Just what surrounding circumstances are properly to be taken into account in a particular case is a matter of degree.”

117. This is consistent with the approach endorsed in Suksa-Ngacharoen v Regina [2018] NSWCCA 142 at [105] per Wilson J (with whom Leeming JA and Bellew J agreed about this point) when it was observed: It should firstly be observed that the context in which an offence occurs is relevant to an assessment of its gravity. Crime is not committed in a vacuum, to be assessed as divorced from all that has gone before. Particularly when the offending conduct occurs in the context of a domestic relationship, where the victim and offender have interacted over a period of time prior to the commission of the offence, the history of the relationship may significantly inform consideration of the commission of the charged conduct. If the relationship has formerly been a happy one, the absence of violence may support a claim that the offending conduct is out of character, or that it occurred in the context of particular stressors such that it can be regarded as an isolated incident, unlikely to re-occur. Where there has been violence, a sentencing court is entitled to consider that history, not by penalising an offender for earlier criminal acts, but by assessing the charged offence in a proper context. Earlier violence may go to an assessment of an offender's insight into his or her crimes, or to consideration of prospects of rehabilitation, for example.

118. As the appellant acknowledged, this ground relied on an inference being drawn from the primary judge’s remarks at [12]-[18] which included acknowledgement of the appellant’s use of control and manipulation against the victim prior to Counts 3 and 6, as findings which applied to aggravate those offences.

119. We do not accept that this was the approach taken by the primary judge. By acknowledging the surrounding circumstances of the offending, in this case, that the appellant exerted control and manipulated influence over the victim from shortly after their relationship began, his Honour was doing that which s 33 of the Crimes (Sentencing) Act demands. A reading of the remarks in their entirety revealed that the primary judge at [14]-[18] established the necessary context of the relationship between the appellant and Ms A, before then moving on to assess the actual detail of the conduct for Counts 3 and 6 separately.

120. In considering each offence separately, the primary judge identified the features of the individual offences which informed his assessment as to their objective seriousness. Those features were explained and informed by the overall context of the offending. The specific features of the offences referred to by the primary judge at [19]-[22] of the reasons, did not include reference to conduct engaged in by the appellant prior to their commission.

121. The primary judge’s reference to the immediate history of the relationship between the appellant and the victim did not offend the underlying principle in The Queen v De Simoni [1981] HCA 31; 147 CLR 383 as expressed by Gibbs CJ at [8] that “no one should be punished for an offence of which he has not been convicted”. The primary judge properly referred to the context within which the conduct occurred before recording the features of the offending that he took into account when assessing the objective seriousness of each offence. The prior “controlling and aggressive” conduct was not applied to aggravate the objective seriousness of the offending. It was referred to in order that the conduct be assessed in the proper context in which it occurred.

122. That said, even if we had been satisfied that the primary judge considered the “controlling and aggressive” conduct of the appellant prior to committing Counts 3 and 6 as a circumstance which elevated the objective seriousness of the offences, he would not have been in error to do so.

123. As is explored further dealing with the next ground of appeal, that the conduct included the exploitation of power that the appellant had cultivated over the victim by his ongoing use of controlling and aggressive behaviour, was a factor relevant to an assessment of objective seriousness. The primary judge determined that s 34B of the Crimes (Sentencing) Act did not apply to Ms A. It was submitted that the primary judge may have excluded the offending against Ms A because the provision was not in force at the time that the offending against her occurred. No challenge was made to the approach of the primary judge in this respect and it is unnecessary to resolve.

124. While consideration of the next ground of appeal involves the application of s 34B of the Crimes (Sentencing) Act, the conduct engaged in by the appellant that established the power imbalance between him and the victims which facilitated the offending, was relevant to an assessment of objective seriousness of the offending, with or without the application of s 34B.

125. Ground (b) has not been established. We turn now to ground (d).

126. The appellant submitted that the primary judge erred when he assessed Count 18 as occurring “within a long-standing context of manipulation, violence and control by the [appellant]”. Further, the primary judge was said to have improperly applied s 34B of the Crimes (Sentencing) Act, to increase the objective seriousness of both Counts 18 and 19. The appellant did not submit that s 34B was not at all applicable to the sentencing task, rather contended that it should not have been applied to the task of assessing the objective seriousness of the offences. The submission may be considered to represent an artificial, compartmental approach to the sentencing task inconsistent with the instinctive synthesis. In any event, the factors taken into account by the primary judge, specific to the relationship between the appellant and the victim and relevant both by virtue of the requirement to consider s 34B and the requirement to consider the “nature and circumstances” of the offending, were factors which elevated the objective seriousness of the offences.

127. The primary judge stated at [13]: In relation to the offending against Ms B, Ms C and Ms D, I have also taken into account that this offending involved family violence offences and the matters required to be considered under s 34B of the Crimes (Sentencing) Act 2005 (ACT)(CS Act).

128. The primary judge turned to consider the objective seriousness of Count 18 and found the following at [42]: This offending is in the worst category of case for a common assault. It combines physical force used upon the victim, the use of a method with particularly awful overtones for the victim, and extreme fear caused to the victim by the perception that she might die. These features existed within a long-standing context of manipulation violence and control by the offender.

129. In respect to Count 19, the primary judge concluded at [44]: Once again, this offending is in the worst category of case for a common assault. The physical violence was directed to the neck of the victim, occurred in the context of the long-standing relationship involving family violence and resulted, either through fear or instinctive response, the victim defecating.

130. Section 34B of the Crimes (Sentencing) Act came into effect on 12 August 2021 by virtue of the Crimes Legislation Amendment Bill 2021 (ACT).

131. Section 34B of the Crimes (Sentencing) Act provides: 34B Sentencing—family violence offences (1) In deciding how an offender should be sentenced for a family violence offence, a court must consider the nature of family violence and the context of the offending, including the following: (a) the matters mentioned in the preamble to the Family Violence Act 2016; (b) whether the offending occurred at the home of the victim, offender or another person; (c) whether the offending occurred when a child was present; (d) if the offence is a serious family violence offence—whether the offender has 1 or more other convictions for serious family violence offences. (2) A court must not reduce the severity of a sentence it would otherwise have imposed because— (a) the offence is a family violence offence; or (b) a family violence order under the Family Violence Act 2016 or a protection order under the Domestic Violence and Protection Orders Act 2008 (repealed) is in force against the offender in relation to the family violence offence. (3) In this section: family violence—see the Family Violence Act 2016, dictionary. serious family violence offence means a family violence offence that is punishable by imprisonment for 5 years or more.

132. The appellant submitted that the primary judge erred by treating the family violence context of Counts 18 and 19 as increasing the objective seriousness of those offences. The appellant submitted that s 34B did not substantially alter the common law in relation to sentencing family violence offenders, nor displace the approach endorsed by the Court of Appeal as set out in R v UG [2020] ACTCA 8; 281 A Crim R 273 at [45]-[51].

133. The Court of Appeal in UG rejected a “separate sentencing regime” for family violence offenders, citing that which was confirmed in Bugmy that a sentencing court should apply the same sentencing principles to all offenders. UG stands for the proposition that an offence which meets the definition of “family violence” is not necessarily made more objectively serious being so defined. Features particular to an offence, which may commonly be found in offences committed in the context of family violence, are relevant to an assessment of the gravity of the offending. In UG, the Court of Appeal observed at [51]: When sentencing a particular offender for a “family violence offence”, the usual sentencing principles apply. This means that, when relevant to the particular case and subject to the De Simoni principle (R v De Simoni (1981) 147 CLR 383), the sentencing court will take into account matters that are frequently associated with “family violence offences”. These matters include: (a) whether the offence forms part of a course of conduct (Sentencing Act s 33(1)(c)); (b) whether and how a weapon was used; (c) whether the offence was associated with actual or threatened violence; (d) the impact on victims (Sentencing Act s 33(1)(f)); and (e) whether the offender was in a position of trust or authority vis-à-vis the victim (Sentencing Act s 33(1)(u)), which is usually—perhaps even “necessarily”—the case in relation to domestic violence offences: see R v Kilic [2016] HCA 48; 259 CLR 256 at [28]. However, such factors are not taken into account because the offence can be labelled a “family violence offence”, but because they attach to the particular offending conduct.

134. The approach revealed by the primary judge’s reasons to Counts 18 and 19 was not inconsistent with UG or Bugmy. The primary judge did not, as the appellant contended, merely label prior conduct engaged in by the appellant as “family violence” and automatically increase the objective seriousness of Counts 18 and 19. The primary judge carefully considered the factors particular to each offence which relevantly included the breach of trust the conduct represented and the exploitation of power that the conduct reflected. The exploitation of power arose by virtue of the past conduct engaged in by the appellant during their long-standing relationship. These are factors which operated to increase the objective seriousness of the offending.

135. As was required, the primary judge considered the circumstances disclosed by the evidence at trial and the agreed facts and applied those circumstances to the sentencing task, including to his assessment of the objective seriousness of each offence.

136. The intention of the Crimes Legislation Amendment Bill 2021 (ACT) as expressed in the Explanatory Statement was to ensure that a sentencing court had regard to factors of particular relevance for a family violence offence. There may be overlap between the factors included in s 33 and those which require consideration under s 34B. Section 34B draws the sentencing court’s attention to considerations which may extend beyond the specific conduct underpinning an offence but nonetheless informs the nature, circumstances and objective seriousness of it. This is consistent with the approach in Wilkinson (No 5), England, Suksa-Ngacharoen and UG.

137. Section 34B provides that the family violence context of an offence cannot see a reduction in the severity of a sentence. The section also mandates consideration of several factors but does not dictate how those factors should be taken into account. This reflects that the factors set out in s 34B may be relevant at difference stages and in different ways in any given sentencing exercise. Some of the factors in s 34B may be relevant to an assessment of the objective seriousness of an offence including the presence of a child, the occurrence of an offence in a victim’s home or the use of a weapon. Other s 34B factors may influence an assessment of an offender’s prospects of rehabilitation or the need to give effect to general deterrence. The significance of s 34B factors will turn on the individual circumstances of each case. It is trite to observe that a factor to which s 34B demands attention can only be considered if it is known and relevant; if a weapon is not used by an offender, then that factor need not be considered.

138. The primary judge concluded at [30] that the evidence at trial disclosed “a pattern of behaviour on the part of the offender reflecting violence, abuse and manipulation” of Ms B. This feature of the relationship between the appellant and the victim was relevant to an assessment of the objective seriousness of the offences perpetrated against her. It was a feature of the relationship that established the environment within which the appellant could offend in the way that he did. Not dissimilar to an offender who outside of a family violence context, deliberately isolates a victim in order to offend or persuades a victim of a particular state of affairs in order to offend.

139. A consideration of prior conduct engaged in by the appellant that was violent, abusive and manipulative was recognition that it established the psychological and physical power imbalance between the appellant and the victim that facilitated his offending against her.

140. The primary judge properly applied the relevant considerations in s 34B to the assessment of objective seriousness of Counts 18 and 19. The preamble to the Family Violence Act 2016 (ACT), a consideration of which s 34B mandates, recognises that “family violence extends beyond physical violence and may involve the exploitation of power imbalances and patterns of abuse over many years”. This was a particularly relevant consideration. Only through an understanding of the dynamics of the relationship between the appellant and the victim, enhanced by the requirement to consider those matters in the preamble, could the appellant’s use of power, and the victim’s susceptibility to it, be properly understood and assessed. Counts 18 and 19 were examples of the effect of the power imbalance between the appellant and the victim. The power imbalance was cultivated through prior acts of violence, abuse, control and manipulation, by the appellant against the victim. The prior conduct explained the context of the offending and properly influenced an assessment of the gravity of it.

141. In this way the primary judge was right to apply s 34B when assessing the objective seriousness of Counts 18 and 19 and right to refer to Count 18 as occurring “within a long-standing context of manipulation, violence and control by the [appellant]” when considering the objective seriousness of the conduct.

142. The approach of the primary judge did not offend the principle of proportionality that guards an offender against being subject to a sentence that is increased beyond what is commensurate to an offence as a protective measure for society: Veen v The Queen [1979] HCA 7; 143 CLR 458. Nor did the primary judge breach the principle in De Simoni to which we have already referred. The primary judge considered the features of the offending, which included the exploitation of the power imbalance between the appellant and the victim established by his ongoing use of controlling and violence behaviour, to assess the gravity of the offending as part of the instinctive synthesis. The specific detail of the “family violence” context of the offences recorded by the primary judge at [42] and [44] increased the seriousness of the appellant’s conduct for Counts 18 and 19. This is consistent with the approach endorsed in UG. There was no “double punishment” of the appellant. The primary judge was not in error in the way he approached the assessment of the objective seriousness of Counts 18 and 19.

143. Ground (d) has not been established.

Ground (c): Finding the common assault charges within the “worst category” (Counts 18 and 19)

144. The primary judge categorised Counts 18 and 19 as falling within “the worst case” of offences of common assault. Notwithstanding that assessment, the primary judge did not impose the maximum term of imprisonment for Counts 18 or 19, being two years of imprisonment. In each case a sentence of 18 months was imposed. The primary judge assessed the seriousness of the offences having engaged in the fact finding required after a finding of guilt by a jury.

145. It is useful to recall that which was observed in Mulato v Regina [2006] NSWCCA 282 at [37]: Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour. In my opinion it was open, although I have some hesitation in deciding so and find it to be at the lower end of the range which could reasonably be held to be so characterised.

146. The categorisation of an offence as being in the “worst category” has a particular significance at law: Ibbs v The Queen [1987] HCA 46; 163 CLR 447 at [4] and The Queen v Kilic [2016] HCA 48; 259 CLR 256. In Kilic the High Court cautioned against categorising an offence as being “within the worst category”, explaining at [18]-[19] (citations omitted): 18. What is meant by an offence falling within the “worst category” of the offence is that it is an instance of the offence which is so grave that it warrants the imposition of the maximum prescribed penalty for that offence. Both the nature of the crime and the circumstances of the criminal are considered in determining whether the case is of the worst type. Once it is recognised that an offence falls within the “worst category”, it is beside the point that it may be possible to conceive of an even worse instance of the offence. Thus, an offence may be assessed as so grave as to warrant the maximum prescribed penalty notwithstanding that it is possible to imagine an even worse instance of the offence. 19. Where, however, an offence, although a grave instance of the offence, is not so grave as to warrant the imposition of the maximum prescribed penalty – as the offending was agreed to be here – a sentencing judge is bound to consider where the facts of the particular offence and offender lie on the “spectrum” that extends from the least serious instances of the offence to the worst category, properly so called. It is potentially confusing therefore, and likely to lead to error to describe an offence which does not warrant the maximum prescribed penalty as being “within the worst category”. It is a practice which should be avoided.

147. More recently in Robertson, this Court considered a sentence imposed for an offence similarly characterised as being in the “worst category”. While the use of such a label was not a specific ground of appeal in Robertson, the Court identified that the primary judge had correctly had regard to both the “objective and subjective factors” as part of the analysis, including the matters contained in s 34B of the Crimes (Sentencing) Act, the previous repeated assaults on the victim and the offender’s lack of remorse; each factor contributed to the offence falling within the “worst category”. In Robertson the primary judge determined that but for the reduction in the sentence by virtue of the plea of guilty, the maximum penalty for the offence would have been imposed. Robertson, consistent with the analysis in Kilic, made plain that the determination that an offence is in the “worst category” involves consideration of factors beyond the specific conduct constituting the offence.

148. This is consistent with the approach taken in Vojneski v The Queen [2016] ACTCA 57; 262 A Crim R 370 at [121] when the Court considered that an absence of aggravating features and a reduction in moral culpability meant that the offence did not fall within the “worst category”.

149. With those principles in mind, we return to consider the approach taken by the primary judge to Counts 18 and 19. For the reasons that follow we have determined that the finding was open to the primary judge and indeed was accurate.

150. The findings made with respect to each count are extracted above at [128]-[129] and need not be repeated here.

151. Counsel for the offender at the sentencing hearing conceded that Count 18 was “a particularly serious, cruel and degrading assault”. Further, it was acknowledged at the sentencing hearing that the offending was aggravated by the breach of trust inherent to the relationship between the appellant and the victim, referencing UG.

152. There are two factors to observe about the approach of the primary judge.

153. First, the “worst category” assessment was confined to the portion of the remarks dealing specifically with the objective seriousness of the offence. The primary judge had yet to consider the subjective circumstances of the offender. Secondly, an analysis of the primary judge’s assessment of the conduct engaged in by the appellant, should recognise that the offence of common assault can be established by a wide range of conduct. It need not involve any physical contact at all by an offender with a victim. It can include momentary physical interference or a more protracted application of physical force by an offender.

154. The primary judge was assessing conduct engaged in by the appellant that saw the victim’s breathing deliberately interfered with, and not momentarily. The conduct was deliberate, calculated, dangerous and cruel. On the spectrum of conduct captured by the offence of common assault it was conduct in the most serious category of conduct capable of constituting common assault.

155. It is tolerably clear that the “worst category” finding made by the primary judge was not made to justify the imposition of the maximum penalty. It was a conclusion confined to the objective seriousness of the offending. It was not the kind of determination the High Court cautioned against in Kilic, extracted above at [146].

156. The conclusion that the conduct engaged in by the appellant objectively fell into the “worst category” of conduct on the spectrum of acts that establish the offence of common assault, was not only open to the primary judge, it was also accurate. In the context in which it was made, the conclusion was tantamount to a determination that the offending was at the “highest range” or at the “very upper end” of seriousness and not a conclusion with the particular significance at law warranting the imposition of the maximum penalty. While there have been observations from this Court that categorising offences by reference to “low, mid or high range” may be of little utility in this jurisdiction (Toumo’ua at [24]), a sentencing judge remains bound to consider where an offence sits on the spectrum of offending from the least serious examples to the most serious examples. Nothing in the approach of the primary judge suggests otherwise and the finding reflected that the conduct was the most serious kind of conduct.

157. The proposition advanced on the appellant’s behalf on appeal, that the offending could only have fallen into the “worst category” if the victim had been a person properly categorised as legally vulnerable, was not supported by any authority and we reject it. While the status of a victim may well influence such a determination, there is no criteria that must be satisfied before a sentencing judge could consider an offence to be in the “worst category” or in the “high range”. While we have determined that this was not the kind of conclusion contemplated in Kilic, the reasoning with respect to conjuring more serious examples of conduct is apposite: Kilic at [18]. The possibility that an offence could be made worse by added features such as a victim with greater vulnerability, is no bar to a determination that an offence is nonetheless in the worst category of conduct or at the highest end of the range of conduct that can establish the offence.

158. Having concluded as he did with respect to the objective seriousness of the offences, the primary judge was aware of the need to go on and consider the subjective circumstances of the appellant. The primary judge was careful to have regard to the appellant’s deprived background; a factor that required “full weight”: Bugmy at [44]. While the primary judge did not make an express finding as to any reduction in moral culpability, his consideration of the issue is demonstrative of the approach Bugmy demands.

159. When the primary judge’s remarks are read in their entirety and the sentence imposed considered, it is readily apparent that “full weight” in this instance was a sentence that synthesised the maximum penalty, the finding that the conduct was the most serious kind of conduct for the offence of common assault and the need to have regard to the consequence of the appellant’s background circumstances. As we have already observed, those circumstances, while explaining the appellant’s consistent resort to violence, necessarily heightened the need to protect the community from his conduct. That this was the approach taken by the primary judge can be seen in the following remarks at [104]: I accept that some of the entrenched characteristics of the offender’s behaviour are likely to have been influenced by his dysfunctional childhood. Something has led to this emotionally manipulative, controlling and violent approach to his intimate partners. It is certainly likely that his poor and dysfunctional upbringing and early exposure to domestic violence has contributed to this. The long-term consequences of such exposure to violence and the absence of appropriate role models are likely to have lifelong consequences for the offender. On the one hand, these matters are subjective circumstances for which the offender was not responsible and which assist with understanding his behaviour. However, on the other hand, recognising the connection between his formative experiences and his current behaviour is a factor which indicates that he is likely to be at risk of further such offending in future and weight must be given to this when regard is had to the need to protect the community.

160. The appellant’s submission that there was a “clear difference in objective seriousness” as between Counts 18 and 19, not reflected in the identical sentence imposed on each charge, is without merit.

161. In reality, the facts of each offence revealed little material difference between the conduct. Both offences saw the appellant assert physical dominance over the victim so that she could not escape him. Both offences saw the appellant then use that physical dominance to hold the victim in place and directly interfere with her capacity to draw breath; in Count 18 by pouring water on a towel on her face and in Count 19 by placing his forearms on her neck. In each case, as has already been observed, the conduct was deliberate, cruel and calculated. It had, what appeared to be the desired effect of frightening the victim and causing her to fear for her life. It was conduct that reinforced the appellant’s physical power over the victim and demonstrated his preparedness to engage in extreme acts of violence. It was conduct that contributed to the ongoing fear that the appellant cultivated in the victim and secured his psychological and physical power over her.

162. Whether by reference to “worst category” or “at the very high end” or “at the very upper end of seriousness”, the finding made by the primary judge as to the objective seriousness of the offending was entirely justified. Against the background of the “yardstick” of the maximum penalty, the sentence imposed in each case reflected the seriousness of the offence, the subjective circumstances of the offender and a consideration of the relevant purposes of sentencing.

163. This ground of appeal has not been established. Ground (e): Irrelevant consideration

164. The appellant submitted that the primary judge erred by having regard to an irrelevant consideration in assessing the objective seriousness of Count 19, namely that the victim, Ms B, suffered an unproven injury. The appellant submitted that his Honour was not entitled to have regard to any injury, or possibility of injury, the victim suffered when sentencing the appellant for common assault, citing De Simoni.

165. In that case, Gibbs CJ stated at [8]: [A] judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.

166. The Court of Appeal in Tracey stated at [9]: These grounds allege a breach of the principle in R v De Simoni (1981) 147 CLR 383 at 389 [[8]] (De Simoni), which requires that an offender be sentenced only for the offence(s) charged, and not for conduct that could have been separately charged: see also Pearce v The Queen [1998] HCA 57;194 CLR 610 at [31] (Pearce); Weininger v The Queen [2003] HCA 14; 212 CLR 629 at [32]. Although there has been some suggestion that the principle only applies to more serious crimes, the principle is not so confined: R v Olbrich [1999] HCA 54; 199 CLR 270 at [18].

167. This ground can be readily dismissed.

168. The primary judge described the offending as follows (at [43]-[44]): 43. While at the Rivett premises there was an occasion where Ms B was on her back on the bed wearing underwear and nothing else. The offender, who was angry, straddled her on the bed and pressed his forearm into her neck. Ms B could not breathe or talk. She was trying to suck in breath but could not get any air in. It felt like her windpipe was blocked. She feared for her life. She became incontinent and defecated. She was able to say “Something happened”. Although her words came out strangely, the offender stopped. She was allowed to get up and leave. This is count 19, an offence of common assault which the jury found to be proved. 44. Once again, this offending is in the worst category of case for a common assault. The physical violence was directed to the neck of the victim, occurred in the context of the long-standing relationship involving family violence and resulted, either through fear or instinctive response, the victim defecating.

169. The expert evidence adduced by the prosecution during the trial attributed this loss of control either to fear or anoxia to the brain (deprivation of oxygen). The primary judge was entitled to take into account the fact that the victim defecated as part of the assessment of the objective seriousness of the offence. It was relevant, as the primary judge identified, based on two possibilities. First, as a reflection of the fear the victim experienced while being assaulted. Secondly, as an indication of the extent of the assault in that it resulted in an interruption of the flow of oxygen to her brain. It is the second possibility with which the appellant takes issue. The possibilities were not mutually exclusive; both could have contributed to the response. That there were two possible explanations did not prohibit the primary judge from taking the consequences into account.

170. The appellant’s argument rests on the primary judge’s reference to an “instinctive response” being a reference to anoxia to the brain. The appellant contended that in relying on this possibility to whatever extent, the primary judge took into account an “injury” that was an element of a more serious charge, an element of which was the establishment of injury. We do not agree.

171. The fact of the victim defecating was not an “injury”. It was a physical response to the force used upon her by the appellant. The primary judge’s use of “instinctive response” is no more than an acknowledgement that the action was not within the victim’s capacity to control because of the nature and circumstances of the assault. The “instinctive response” to which the primary judge referred, was, like fear, a matter to which regard could properly be had in assessing the conduct engaged in by the appellant.

172. There was no error in the primary judge’s approach. The response by the victim to the assault upon her, brought about by a lack of oxygen to her brain or because of fear or a combination of the two, was not an irrelevant consideration in sentencing for common assault. The response to the assault was relevant not because it was an injury, but because it was an indication of the level and duration of the force used. That is not to say that an “injury” can never be taken into account in assessing the objective seriousness of a common assault. An injury occasioned by a common assault may not meet the threshold for actual bodily harm but nonetheless may be indicative of the force used by a perpetrator and/or the discomfort experienced by a victim. The level of force used in a common assault is an entirely relevant consideration.

173. In this instance the victim defecating was relevant not because it was an injury but because it was part of the response she had to the application of force to her neck by the appellant. Just as it was relevant that the victim’s response to the force included that she could not breath or talk while the force was being applied; so too was her involuntary defecation. It was a factor that informed the nature and extent of the common assault perpetrated against her and accordingly, was a matter that properly informed the objective seriousness of the offence.

174. This ground of appeal has not been established.

Ground (f): Pre-sentence time in custody

175. This ground concerns the primary judge’s reasons at [100]: The offender’s bail was revoked upon the finding of guilt on 10 February 2023. That means he has been in custody for 188 days (six months and seven days). It is appropriate to take this period into account by backdating the sentence until 10 February 2023.

176. It was accepted on appeal that, at the sentencing hearing, the primary judge was provided with the incorrect number of days that the appellant had served by way of pre-sentence custody referable to the offending. As at the date of sentence, the appellant had in fact been held in custody for 207 days (an additional 19 days).

177. Section 63(2) of the Crimes (Sentencing) Act obliges a sentencing judge to take into account “any period during which the offender has already been held in custody in relation to the offence”. Although his Honour was not expressly bound to account for the full extent of such period in the backdating of the sentence, it is clear from the primary judge’s reasons that when his Honour referred to taking “this period” into account, his Honour intended to give effect to the considerations in s 63 in a way that treated every day of the time spent in custody as time served on the sentence his Honour was imposing.

178. The misinformation led the primary judge to impose a period of imprisonment that did not account for the full period of pre-sentence custody. That factual mistake was conceded, which meant that there was no formal application to adduce further evidence proving the fact.

179. The Court has the power under s 37O of the Supreme Court Act to amend the order to reflect the additional time spent in custody, by backdating the sentence to commence 19 days earlier than the commencement date specified by the primary judge. The respondent submitted that this is what should occur here.

180. However, the appellant advanced an argument that a “full resentence” was required, because the error was of a kind that involved the exercise of a sentencing discretion. The argument that this Court was required to consider the sentence afresh relied on the following principle articulated in Kentwell at [42] (emphasis added, citations omitted): When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit. As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be "warranted in law". A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not "warranted in law" unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence.

181. Kentwell was dealing with differently worded appellate legislation. Importantly though, the plurality in Kentwell went on to say later in the same paragraph: This is not to say that all errors in the sentencing of offenders vitiate the exercise of the sentencer's discretion. By way of example, s 44(1) of the Sentencing Act requires the court when sentencing an offender to imprisonment to first set the non-parole period and then set the balance of the term. Prior to 1 February 2003, a court was required to first set the term of the sentence and then specify the non-parole period. A court which sentences an offender to imprisonment after 1 February 2003 by first setting the term of the sentence commits legal error. Without more, the error does not affect the exercise of the sentencer's discretion.

182. That distinction between an error that affects the exercise of the sentencing discretion and one that does not was similarly made in Lehn v R [2016] NSWCCA 255; 93 NSWLR 205, where Bathurst CJ (with whom Beazley P and Schmidt J agreed) rejected the proposition that a “discrete error” could result in an appellate Court adjusting the sentence to take account of it, concluding at [68] (emphasis added): It seems to me that if there is an error which affects the exercise of the sentencing discretion, the section requires the court to form its own view of the appropriate sentence, although, as pointed out in Kentwell at [43], not necessarily to resentence.

183. Bathurst CJ went on to maintain that some errors could be addressed by precise correction without the need for the sentencing discretion to be re-exercised at [72] (emphasis added): That is not to say that there will not be occasions when, notwithstanding error, it is not necessary to re-exercise the sentencing discretion. It will not be necessary where, for example, an arithmetical error occurred in the calculation of the commencement and end date of the sentence or the date of the expiration of a non-parole period arrived at in the proper exercise of discretion or, for example, an error in the calculation of the effect of a discount for a plea or assistance to authorities, where the extent of the discount to be allowed was reached in accordance with proper principles.

184. Subsequently in Almaoiue v R [2021] NSWCCA 274, there was a mistake by the sentencing judge as to when the offender in that case was taken into custody. That resulted in an error in the fixing of a commencement date for a sentence two weeks earlier. It was held at [25] that such a mistake did not engage a “full Kentwell resentencing”.

185. The same error is what occurred in the present case. Contrary to the submission of the appellant, an error (arithmetical or otherwise) which can be addressed by giving effect to the sentencing judge’s clear intention when imposing the sentence is not an error that affects the exercise of the sentencing discretion. It does not require any assessment by an appellate court of whether and to what degree the error influenced the outcome, or how the relevant error can be addressed. Here, the discretion had already been exercised in a particular manner, that being to backdate the sentence by the number of days the appellant had been held in custody referable to the offending. It was simply that the commencement date of the sentence was backdated by the wrong number of days.

186. Accordingly, whether the broad power provided by s 37O of the Supreme Court Act to amend in the order involves that application of the Kentwell principle or not is immaterial in this case, because the answer is the same, namely that the start date of the sentence may be adjusted to fix the error without re-exercising the discretion.

Conclusion

187. The appellant has failed to establish any ground of appeal. Accordingly, the appeal should be dismissed.

Orders

188. For these reasons, the Court makes the following orders: (1) Pursuant to r 5412(2) of the Court Procedure Rules 2006 (ACT), leave is granted to further amend the Amended Notice of Appeal to include ground (f). (2) The sentences imposed are amended as follows: (a) On the charge of negligently inflicting grievous bodily harm (CC2022/1150) the offender is sentenced to 12 months’ imprisonment, beginning on 22 January 2023 and ending on 21 January 2024. (b) On the charge of recklessly inflicting actual bodily harm (SCAN2022/61) the offender is sentenced to 12 months’ imprisonment, beginning on 21 April 2023 and ending on 20 April 2024. (c) On the charge of engaging in sexual intercourse without consent (CC2022/1153) the offender is sentenced to 27 months’ imprisonment, beginning on 22 July 2023 and ending on 21 October 2025. (d) On the charge of common assault (CC2021/11049) the offender is sentenced to 4 months’ imprisonment beginning on 22 October 2025 and ending on 21 February 2026. (e) On the charge of common assault (CC2021/11050) the offender is sentenced to 5 months’ imprisonment beginning on 22 October 2025 and ending on 21 March 2026. (f) On the charge of cause damage to property (CC2021/11052) the offender is sentenced to 2 months’ imprisonment beginning on 22 March 2026 and ending on 21 May 2026. (g) On the charge of assault occasioning actual bodily harm (SCCAN2022/63) the offender is sentenced to 30 months’ imprisonment beginning on 21 April 2026 and ending on 20 October 2028. (h) On the charge of assault occasioning actual bodily harm (CC2021/11054) the offender is sentenced to 6 months’ imprisonment beginning on 21 June 2028 and ending on 20 December 2028. (i) On the charge of common assault (SCAN2023/22) the offender is sentenced to 18 months’ imprisonment beginning on 22 December 2027 and ending on 21 June 2029. (j) On the charge of common assault (SCAN2023/23) the offender is sentenced to 18 months’ imprisonment beginning on 21 September 2028 and ending on 20 March 2030. (k) On the charge of engaging in sexual intercourse without consent (CC2021/11057) the offender is sentenced to 36 months’ imprisonment beginning on 22 March 2029 and ending on 21 March 2032. (l) On the charge of common assault (CC2021/11058) the offender is sentenced to 9 months’ imprisonment beginning on 21 September 2031 and ending on 20 June 2032. (m) On the charge of engaging in sexual intercourse without consent (SCAN2022/65) the offender is sentenced to 36 months’ imprisonment beginning on 21 June 2031 and ending on 20 June 2034. (n) On the charge of choke, strangle or suffocate (SCCAN2022/66) the offender is sentenced to 21 months’ imprisonment, beginning on 19 February 2034 and ending on 18 November 2035. (o) On the charge of causing damage to property (CC2021/11194) the offender is sentenced to 8 months’ imprisonment beginning on 21 September 2035 and ending on 20 May 2036. (p) On the charge of common assault (CC2021/11195) the offender is sentenced to 8 months’ imprisonment beginning on 21 November 2035 and ending on 20 July 2036. (q) On the charge of assault occasioning actual bodily harm (CC2022/310) the offender is sentenced to 8 months’ imprisonment beginning on 22 July 2036 and ending on 21 March 2037. (r) The non-parole period commenced on 22 January 2023 and ends on 21 July 2031. (3) The appeal is otherwise dismissed.

I certify that the preceding one hundred and eighty-eight [188] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: O Ferguson Date: 3 March 2025