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[2026] NSWCCA 94
Court of Criminal Appeal (NSW)
2026-07-01
Kirk JA at [1] Yehia J at [2] McGuire J at [3]
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Narayan v R [2026] NSWCCA 94
Hearing dates: 24 April 2026
Date of orders: 01 July 2026
Decision date: 01 July 2026
Before: Kirk JA at [1]
Yehia J at [2]
McGuire J at [3]
Decision: (1) Grant leave to appeal; and
(2) Dismiss the appeal.
Catchwords: CRIME — appeals — appeal against sentence — determination of objective seriousness — sentencing judge ensured against risk of double counting arising from factual overlap — use of the knife to inflict the wound relevant to assessment of objective seriousness for reckless wounding offence — use of knife irrelevant to assessment of objective seriousness for custody of a knife offence — history of knife-related convictions is not an element of the custody of a knife offence — no error found
CRIME — appeals — manifest excess — whether aggregate sentence imposed was unreasonable or plainly unjust — JIRS statistics of limited utility — “comparative” cases involving factual dissimilarities — sentencing judge accepted applicant's subjective case — sentence imposed not unreasonable or plainly unjust — no error found
Original judgment source is linked above.
Legislation Cited: Crimes Act 1900 (NSW), ss 35(4), 93IB
Criminal Procedure Regulation 2017 (NSW), Sch 4
Cases Cited: Anderson v R (2022) 109 NSWLR 272; [2022] NSWCCA 187
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Craft v R [2021] NSWCCA 131
Delleci v R [2020] NSWCCA 4
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Downes v R [2020] NSWCCA 167
Elwood v R [2023] NSWCCA 200
He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95
Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45
House v The King [1936] HCA 40; (1936) 55 CLR 499
Kliendienst v R [2020] NSWCCA 98
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Maybury v R [2022] NSWCCA 233
McCullough v R [2009] NSWCCA 94; (2009) 194 A Crim R 439
Moiler v R [2021] NSWCCA 73
Mulato v R [2006] NSWCCA 282
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Perry v R [2021] NSWCCA 244
Prince v R [2020] NSWCCA 268
R v Mitchell; R v Gallagher [2007] NSWCCA 296; (2007) 177 A Crim R 94
RLS v R [2012] NSWCCA 236
Taitoko v R [2020] NSWCCA 43
TH v R [2025] NSWCCA 121
Tuite v R [2018] NSWCCA 175
Zheng v R [2023] NSWCCA 64
Category: Principal judgment
Parties: Bryce Narayan (Applicant)
Rex (Respondent)
Representation: Counsel:
Bryce Narayan (Applicant) (Self Represented)
B Page (Respondent)
Solicitors:
Director of Public Prosecutions (Respondent)
File Number(s): 2024/283513
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
The applicant, Bryce Narayan, sought leave to appeal against the sentence imposed on him in the District Court on 15 December 2025. The sentence followed his pleas of guilty to an offence of reckless wounding and an offence of custody of a knife in a public place, which carry maximum penalties of 7 years and 4 years imprisonment respectively.
On 31 July 2024, the applicant became agitated and held a knife to a stranger in the Liverpool Central Business District whom he falsely believed was conversing about him in another language. The victim made several unsuccessful attempts to de-escalate the situation. The applicant stabbed the knife into the victim’s forearm.
After indicating the indicative sentence for each offence, including 25% discounts for each early guilty plea, the applicant was sentenced to an aggregate term of imprisonment of 3 years with a single non-parole period of 2 years.
The applicant sought leave to appeal his sentence on the following grounds:
Ground 1: The sentencing judge double counted when assessing the objective seriousness; and
Ground 2: The sentence was manifestly excessive.
The Court (McGuire J, Kirk JA and Yehia J agreeing) held, granting leave to appeal and dismissing the appeal:
As to ground 1:
(a) When sentencing for the reckless wounding offence, the sentencing judge correctly considered that the use of the knife was relevant to objective seriousness. In assessing any offence of wounding, it is necessary to take into account the objective circumstances which led to the wounding, including the manner in which the wounding was caused, the circumstances surrounding the wounding, the reason for the infliction of the wound and the nature and seriousness of the wound caused. (b) When sentencing for the custody of a knife offence, the sentencing judge was careful to only take into account the fact that the knife was possessed in a public place, in an area of high foot traffic, during the day and in a busy area. He did not take into account that the knife had been used to inflict a wound.
As to ground 2:
KIRK JA: I agree with McGuire J.
YEHIA J: I agree with McGuire J.
McGUIRE J: The applicant, Bryce Narayan, seeks leave to appeal against the sentence imposed upon him by his Honour Judge Baker SC in the District Court of New South Wales on 15 December 2025.
The applicant pleaded guilty to an offence of reckless wounding contrary to s 35(4) of the Crimes Act 1900 (NSW) and an offence of custody of a knife in a public place contrary to s 93IB(1) of the Crimes Act, which had been transferred to the District Court on a s 166 certificate. The reckless wounding offence carries a maximum penalty of 7 years imprisonment with a standard non-parole period of 3 years. The custody of a knife offence carries a maximum penalty of 4 years imprisonment.
The sentence hearing took place on 15 December 2025. The sentencing judge delivered remarks on sentence on the same day.
The sentencing judge indicated an indicative sentence for the reckless wounding offence, after a 25% discount for the early guilty plea, of 2 years and 6 months imprisonment with a non-parole period of 1 year and 6 months. The indicative sentence for the custody of a knife offence, after a 25% discount for the plea, was 12 months imprisonment. An aggregate sentence of 3 years imprisonment was imposed, commencing on 2 August 2024 and expiring on 1 August 2027, with a 2-year non-parole period expiring on 1 August 2026. The ratio between the non-parole period and the head sentence was adjusted to account for a finding of special circumstances. The earliest date upon which the applicant becomes eligible for parole is 1 August 2026.
The applicant has sought leave to appeal his sentence on the following two grounds:
Ground 1: The sentencing judge double counted when assessing the objective seriousness; and
Ground 2: The sentence was manifestly excessive.
The sentencing judge found facts consistent with an agreed facts document signed by the applicant. The applicant raises no complaint in this appeal in relation to any of the findings of fact. The following summary of the factual background is derived from the remarks on sentence and the agreed facts.
In the early afternoon of 31 July 2024, the applicant attended the Liverpool Police Station and stated that he wished to report a fraud. The applicant was provided with a fraud report form and commenced filling it out. A short time later, he presented the police with the form which he had not completed correctly. He then became agitated when he was told that he would need to wait for police assistance. The applicant then told the police officer that he did not wish to speak with them any further and he left the police station.
CCTV footage from the Liverpool Police Station establishes that the applicant entered the station at 1:51 pm, interacted with the police at the counter at 2:20 pm and then left the station at 3:32 pm.
Mr Devandra Dahiya and Mr Pardeep Sharma were standing in a nearby alleyway at about the time the applicant left the Liverpool Police Station. They were smoking cigarettes and having a conversation in the Hindi language about their respective workdays.
At that time, the applicant is recorded on CCTV footage walking down the alleyway and past Mr Dahiya and Mr Sharma. Shortly after the applicant had walked past them, Mr Dahiya and Mr Sharma finished their cigarettes and began leaving the alleyway. The applicant then turned and approached Mr Dahiya and accused him of talking about the applicant in their language. Mr Dahiya denied this. The applicant then became angry and said words to the effect of “You wanna fuck around with me” and repeatedly stated “Fuck you, fuck you” in an angry manner.
The applicant, who was standing immediately in front of Mr Dahiya at the time, then pulled a knife out from his jacket and held it out in front of him. Mr Dahiya told the police that he could see the knife in the applicant’s hand and estimated that its blade was about 10 cm in length.
Mr Dahiya attempted to de-escalate the situation by assuring the applicant that they had not been talking about him and by telling the applicant that he had two children. The applicant responded with words to the effect of “Oh you fuck around with children?” Mr Dahiya repeatedly told the applicant that he was sorry that the applicant had misunderstood that they were talking about him and assured him that they were not.
Mr Dahiya and Mr Sharma then walked away from the applicant and the applicant followed. As the applicant walked towards them, he yelled “You don’t listen!” He continued holding the knife in his right hand as he walked towards Mr Dahiya.
The applicant approached within about one metre from Mr Dahiya and then moved the hand holding the knife toward him. Mr Dahiya reacted by grabbing the applicant’s hand in an attempt to prevent himself from being stabbed. The applicant then flicked his right wrist upwards, causing the tip of the knife to stab Mr Dahiya in his left forearm. The tip of the blade of the knife pierced the skin on the underside of Mr Dahiya’s left forearm.
Immediately after being stabbed, Mr Dahiya gestured towards the applicant, showed him the wound to his arm, which was bleeding, and said “You stabbed me, I’m going to the police now”. The applicant then walked away from Mr Dahiya and Mr Sharma and entered a convenience store.
Later that day, Mr Dahiya attended a doctor and received treatment. The injury, which was a laceration of 1.5 cm in length and 2 mm in width, required sutures and a tetanus injection.
The sentence hearing took place on 15 December 2025 in the District Court at Parramatta before Baker SC DCJ. The applicant was represented by counsel at the sentence hearing.
During the sentence proceedings, both parties provided written submissions and made oral submissions. The applicant did not give evidence.
During the hearing, the applicant tendered medical reports to establish his subjective case, in support of submissions that the principles referred to in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 and Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 were relevant to his sentence.
The Crown submitted that the unlawful wounding offence fell just below the mid-range of objective seriousness for offences of that type, relying on the circumstances and unprovoked nature of the assault. In relation to the custody of a knife offence, the Crown submitted that the Court should take into account that the facts do not indicate when the applicant armed himself or how long he had possessed the knife throughout the day. It submitted that it was relevant to objective seriousness that he carried the knife in a public place, in an area of high foot traffic, at a busy hour in the middle of the day. The Crown submitted that his conduct in relation to custody of a knife was serious given his prior record of knife-related offences, noting that he had been convicted of custody of a knife in a public place on several prior occasions.
Counsel appearing for the applicant in the sentence proceedings submitted that the objective seriousness of both offences was better characterised as low to moderate in light of the minor nature of the wound and that the conduct was submitted to be reactive and driven by fear, rather than aggressive or predatory.
During the sentence hearing his Honour made the observation that, although the two offences were discrete offences, there was an overlap because of the use of the knife in the reckless wounding offence and the custody of it in the other offence. His Honour noted that although custody of the knife was not an element of the wounding offence, its use in the wounding was relevant to the assessment of the objective seriousness of that offending. The Court stated that it needed to be careful about double counting the knife component which was relevant to both offences, recognising that while they are discrete, separate offences, the applicant’s history of repeated knife-related offending indicated that some additional punishment was required for the custody offence in determining the aggregate sentence.
His Honour found the objective seriousness of the reckless wounding offence as falling just below the mid-range of objective seriousness. That finding was based on the objective features of the offending, including the unprovoked nature of the assault, the aggressive use of a knife in a manner which created a substantial risk of more serious injury and the dimensions of the knife. In relation to the custody of a knife offence, his Honour found it was a serious offence of its type, having regard to the circumstances of the offending, the fact that it was a subsequent offence and the increased objective seriousness because of the applicant’s history of knife-related offending.
In relation to the applicant’s subjective case, the sentencing judge noted that the offender had a lengthy criminal record with entries establishing that he had repeated offending of a similar nature over many years. He noted that such offences involved possession of weapons or other implements and conduct which established that the applicant presented a clear risk of violence on those occasions. The sentencing judge also noted that the offender had previously been convicted of an offence of reckless wounding in 2003 in relation to which he received a custodial sentence. On the basis of that criminal history, the sentencing judge found that the applicant was disentitled to the leniency that otherwise would be afforded to a first-time offender or an offender with a limited criminal history.
His Honour made detailed reference to the medical reports tendered on behalf of the applicant. On the basis of those reports, the sentencing judge found that the applicant had a compelling subjective case and that the principles in Bugmy and De La Rosa applied. His Honour found that the applicant’s background was marked by significant disadvantage, including extensive child protection involvement, foster care placement, physical, emotional and sexual abuse, repeated institutionalisation as a juvenile, trauma arising from the violent murder of his mother and trauma arising from poverty and instability during his developmental years. On that basis, the sentencing Court found that there was a clear basis for finding the applicant’s moral culpability was reduced as a result. His Honour also held that the need for general deterrence would be moderated because the applicant was a less appropriate vehicle for general deterrence, and that denunciation would also be moderated.
In addition, his Honour took into account the applicant’s extremely low range intellectual ability as well as his diagnoses of schizophrenia, post-traumatic stress disorder, major depressive disorder and severe opioid use and stimulant use disorders and found that those mental health issues and his intellectual functioning materially contributed to the offending. He found the applicant’s moral culpability was reduced, the weight to be given to general and personal deterrence and denunciation was reduced and his time in custody would be more onerous as a result of his mental health issues.
The sentencing judge accepted that the applicant had shown some remorse and insight and noted that the medical reports indicated that his ability to show remorse was compromised by his mental illnesses. The sentencing judge took that into account in finding that the applicant was remorseful by way of his guilty plea and through his expressions of regret to the authors of the medical reports. His Honour also noted that the medical reports indicated that his insight was limited. On the topic of rehabilitation and risk of reoffending, the sentencing judge found that at the time of sentencing, despite his limitations the applicant was compliant with his psychiatric medication when supervised, had engaged with disability and corrective services, had completed various programs in custody and had articulated a desire to stabilise his health and to seek supported employment. The sentencing judge accepted that the risk of reoffending was directly linked to the scope and success of any supervision the applicant would receive in the community. The Court accepted that with very structured supervision the applicant had some prospects of rehabilitation, but found in all of the circumstances that his prospects of rehabilitation were poor and his risk of reoffending was high. The Court also found that there was a risk of the applicant reoffending in a manner similar to the index offences.
In addition to the subjective considerations, the sentencing judge also took into account that the protection of the community was a very relevant sentencing purpose in sentencing the applicant.
The sentencing judge then indicated the indicative sentences which are referred to above at [6] and imposed an aggregate sentence of 3 years imprisonment with a 2-year non-parole period. His Honour indicated that in imposing the aggregate sentence, he took into account that the two offences were committed during a single course of conduct, but allowed for a small degree of accumulation to recognise the separate offending and to ensure that the aggregation resulted in a sentence which was just and appropriate to reflect the total criminality involved. His Honour then stated:
“I have been particularly careful during the course of this sentencing exercise to recognise the fact that there is an overlap between the reckless wounding with the use of the knife and also the custody of a knife offence, and so I have been very careful not to double count those, in effect, but I also recognise that they are separate charges which require recognition, and, for that reason, there will be a small degree of accumulation.”
The applicant, who appeared in this Court without legal representation, relied on commendably concise written submissions and brief oral submissions.
As to ground 1, the applicant submits that the sentencing judge erred by taking into account the presence of the knife when considering the objective seriousness of each of the offences. He submits that the sentence imposed for the reckless wounding offence was “aggravated by the use of the knife” and that the sentencing judge said that the custody of a knife offence was more serious because of the applicant’s history of knife-related offences. He argues that the previous convictions for custody of a knife was “an element” of the custody of a knife offence.
In oral submissions, the applicant submitted that he was “baffled” about how the sentencing judge gave him custodial time for using the knife as well as for custody of the knife. That submission can be understood as relevant to his complaint in ground 1 alleging that the sentencing judge erred in double counting the knife when considering the objective seriousness of each of the offences.
The Crown submits that the use of the knife in carrying out the reckless wounding offence was a relevant consideration when determining the objective seriousness of that offence. The Crown notes that the sentencing judge acknowledged that he would be careful to avoid double counting, but at the same time recognised that custody of the knife was a discrete and separate offence deserving of some additional punishment in the aggregation process. Further, the Crown submits that the Court below did not take into account that the knife had been used to inflict a wound when assessing the objective seriousness of the custody offence.
The Crown submits that, contrary to the applicant’s submissions, his previous convictions for custody of a knife offences was not an element of the offence for which the applicant was sentenced. The Crown submits that there is no separate offence for custody of a knife in a public place on a subsequent occasion. Rather, Sch 4 of the Criminal Procedure Regulation 2017 (NSW) provides that a penalty notice may be issued for relevant knife-related offences if the offender had not previously received or acted upon an infringement notice for a knife-related offence or been convicted of such an offence. In the circumstances of the applicant’s prior criminal history, including knife-related offending, the Crown submits that the operation of the relevant provisions meant that a penalty notice could not be issued. Those provisions did not operate in a manner which made his prior custody of a knife offences an element of either of the index offences.
The starting point for ground 1 is the observation in Mulato v R [2006] NSWCCA 282 at [37] that the 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 relevant question must be whether or not the particular characterisation which the sentencing judge gave to the circumstances of the offence was open.
The assessment of objective seriousness is the exercise of an evaluative process. It is reviewable in this Court only on the principles stated in House v The King [1936] HCA 40; (1936) 55 CLR 499.
The sentencing judge, during the course of the sentence hearing and in the remarks on sentence, took care to ensure against double counting because of factual overlap concerning the knife. However, when sentencing for the reckless wounding offence, the sentencing judge correctly found that the use of the knife was relevant to objective seriousness whilst at the same time noting that the use of the knife was not an element of that offence. In respect of the custody of a knife offence, the sentencing judge was careful to not take into account the manner in which the knife had been used when assessing the factors relevant to objective seriousness for that offence.
The care with which the sentencing judge approached the task is also reflected in his approach to totality and accumulation. He correctly took into account that the two offences were committed during a single course of conduct and also allowed for a small degree of notional accumulation to recognise the separate offending involved and to ensure the aggregation resulted in a sentence that was just, appropriate and reflected the total criminality involved.
Contrary to the applicant’s submissions, the sentencing judge did not indicate that the presence of the knife was to be disregarded in assessing objective seriousness for the reckless wounding offence. Clearly, in assessing a wounding offence, it is necessary for sentencing courts to take into account the objective circumstances which led to the wounding. Relevant considerations include the manner in which the wounding was caused, the circumstances surrounding the wounding, the reason for the infliction of the wound and the nature and seriousness of the wound caused: Maybury v R [2022] NSWCCA 233; McCullough v R [2009] NSWCCA 94; (2009) 194 A Crim R 439; R v Mitchell*;* R v Gallagher [2007] NSWCCA 296; (2007) 177 A Crim R 94.
In addition, in determining the objective seriousness of the custody of a knife offence, the sentencing judge was careful to ensure that the factors taken into account did not include the applicant’s use of the knife to inflict the wound. Rather, the factors which the Court took into account were that the possession occurred in a public place, in an area of high foot traffic, during the day and in a busy part of the Liverpool Central Business District. The sentencing judge did not take into account that the applicant used the knife to inflict a wound as any part of the assessment of objective seriousness for the custody offence.
The applicant’s previous convictions for custody of a knife offences was not an element of either of the index offences.
The relevance of the prior knife-related convictions was that, by operation of Sch 4 of the Criminal Procedure Regulation, his previous convictions meant he was disentitled to receive a penalty notice for the index custody offence. Schedule 4 states that each offence specified therein is an offence for which a penalty notice may be issued. The offences specified include s 93IB(1) of the Crimes Act but only in circumstances where an accused has not previously been served with a penalty notice for a knife-related offence, been convicted of a knife-related offence or been the subject of an order pursuant to s 10 of the Crimes (Sentencing P**rocedure) Act 1999 (NSW) for a knife-related offence. The term “knife-related offence” is defined in the Schedule as including offences under s 93IB.
Because of his prior convictions for knife-related offending, including against s 93IB, the Criminal Procedure Regulation operated such that he was disentitled to have the present custody of a knife offence dealt with by way of a penalty notice.
Section 93IB makes it an offence for a person to have in their custody a knife in a public place or school. By operation of s 93IB(2), it is a defence to an offence under s 93IB(1) if the accused person proves that they had a reasonable excuse. Reasonable excuse is defined in s 93IB(3) as including if the knife was in the person’s custody because it was reasonably necessary in pursuit of some lawful occupation, education or training, for the preparation or consumption of food or drink, or for some other lawful activity. The offence provision makes no reference to an accused having committed a prior knife-related offence. Accordingly, it is not an element of an offence contrary to s 93IB for the accused to have been previously convicted of such an offence.
In all the circumstances, I am satisfied that the sentencing judge’s findings of objective seriousness were unaffected by error. I am also satisfied that the applicant has failed to demonstrate that the sentencing judge erroneously double counted the presence of the knife when considering objective seriousness.
The applicant has failed to establish error. Ground 1 has not been made out.
As to ground 2, the applicant submits that the sentence imposed was manifestly excessive. He argues that the sentencing judge failed to reduce the weight given to general deterrence, personal deterrence and denunciation in order to take into account the applicant’s mental illness, intellectual disability and substance use disorders.
The applicant made oral submissions that the sentence imposed does not show that special circumstances were taken into account, that a parole period of 1 year is insufficient to assist in his rehabilitation in light of his disabilities and impairments and that a longer period on parole should have been ordered.
He relies on Judicial Commission of New South Wales (JIRS) statistics for the custody of a knife offence and comparative cases for the reckless wounding offence to establish manifest excess.
In relation to the custody of a knife offence, he submits that JIRS statistics show one District Court sentence of 6 months imprisonment and that most of such offences are dealt with in the Local Court. He describes a sentence of 12 months imprisonment as being at the very top of the range. In relation to the reckless wounding offence, the applicant relies on ten cases which he submits are comparative.
The Crown submits that the sentence imposed was not unreasonable or plainly unjust. It made reference to the maximum penalties for reckless wounding, namely 7 years imprisonment with a standard non-parole period of 3 years, and for custody of a knife, namely 4 years imprisonment, as being important yardsticks.
It submits that the finding of objective seriousness for each offence was appropriate. In relation to the objective seriousness of the wounding offence, the Crown points to the unprovoked and public nature of the attack on a stranger who had attempted to remove himself from the applicant’s presence and had attempted to de-escalate the situation by reasoning with him. The Crown also relies on the injury having required treatment by sutures.
In respect of the custody of a knife offence, the Crown points to recent legislative reform which resulted in the maximum penalty for the offence being doubled from 2 years imprisonment to 4 years imprisonment. It submits that the increase in maximum penalty shows a clear legislative intention in relation to sentences imposed for that offence. Whilst acknowledging that the applicant’s subjective case was compelling, the Crown submits the sentencing judge appropriately took the subjective case into account by finding that the applicant’s moral culpability had been reduced as a result of his background of disadvantage and his history of mental illness. Further, the sentencing judge appropriately reduced the weight to be given to general deterrence, personal deterrence and denunciation. The Crown submits that, contrary to the applicant’s submissions, each of those matters were taken into account by the sentencing judge and were reflected in a reduction in the overall sentence as well as a finding of special circumstances and resulting adjustment to the ratio between the head sentence and the non-parole period.
The Crown further points to competing considerations in the sentencing exercise, including the findings of objective seriousness, the applicant’s lengthy criminal history including for similar offences, his poor prospects of rehabilitation and the presence of several risk factors resulting in a finding that his prospects of reoffending were high.
In relation to the applicant’s reliance on JIRS statistics for the custody of a knife offence, the Crown submits those statistics are of limited use because the statistics relate to the offence provision at a time when the maximum penalty was half the maximum penalty for the offence at the time the applicant was sentenced.
In response to the comparative cases relied on by the applicant, the Crown submits that those decisions do not assist the applicant in demonstrating that the sentence was manifestly excessive.
In order to succeed on this ground, the applicant must demonstrate that the sentence imposed was “unreasonable or plainly unjust”: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]; Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443].
The relevant principles are well established and were summarised in He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 at [41]-[42]. Those principles include that there is no single correct sentence and that sentencing is not a mathematical exercise but rather an evaluative and discretionary one. A sentence for each offence is required to be reached by balancing many different and often conflicting features: Markarian at [27].
Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. Mere disagreement by fellow judges with the sentence imposed is not enough to warrant a conclusion that a sentence is manifestly excessive: TH v R [2025] NSWCCA 121 at [4].
In the circumstances of the present offending, his Honour’s assessments of the objective seriousness of each offence, when taken into account with the maximum penalties, the other objective circumstances and the applicant’s subjective circumstances, justified the sentence imposed.
The statistics relied on by the applicant do not assist. Those statistics relate to the offence provision at a time when the maximum penalty was half the penalty applicable at the time the applicant was sentenced. The statistics refer to a prior sentence of 6 months imprisonment. However, that sentence was imposed at a time when the maximum penalty for the offence was only 2 years imprisonment. Here, the indicative sentence for the custody of a knife offence of 12 months imprisonment was indicated at a time after the maximum penalty had been double to 4 years imprisonment.
In circumstances where the applicant was sentenced to an aggregate sentence, the statistics referable to a single component of that aggregate have limited utility. As this Court has said on many occasions, the use of statistics to establish some form of range of appropriate sentences is misconceived. That is particularly so because this ground of appeal lies to be determined in respect of the aggregate sentence and not in respect of each individual sentence. Additionally, bare statistics are of limited utility to establish that a sentence may be manifestly excessive, because those statistics are largely devoid of adequate information concerning the objective and subjective features of those cases: Tuite v R [2018] NSWCCA 175 at [100]; Delleci v R [2020] NSWCCA 4 at [58]-[60].
In relation to the applicant’s reliance on cases said to be “comparative”, as this Court has said on numerous occasions, care must be taken when engaging in comparative exercises because of the need to bear in mind the importance of considering the entirety of the circumstances which resulted in a particular sentence being imposed in a particular case: RLS v R [2012] NSWCCA 236 at [132]. A range of sentences that have been imposed in the past does not fix the boundaries within which future judges must, or even ought, sentence. Although providing guidance, it is only upon examination of the whole of the circumstances of prior offending that gave rise to previous sentences, that any unifying principles might be discerned: Hili v R*; Jones* v R (2010) 242 CLR 520; [2010] HCA 45 at [54].
With such limitations in mind, the decisions relied on by the applicant do not assist him in demonstrating that the present sentence is manifestly excessive.
In addition, many of the decisions upon which the applicant relies involve the subject offenders being sentenced to aggregate sentences of which an offence of reckless wounding formed a part of the overall sentence. Additionally, in only three of the ten decisions relied upon, namely Zheng v R [2023] NSWCCA 64, Taitoko v R [2020] NSWCCA 43 and Downes v R [2020] NSWCCA 167, were the sentences imposed or the indicative sentence for reckless wounding less than 2 years and 6 months.
In Downes, where the offender had pleaded guilty and received a 25% discount, the sentencing judge had indicated an indicative sentence for reckless wounding of 2 years with a non-parole period of 1 year and 4 months and imposed an aggregate sentence of 3 years imprisonment with a 2-year non-parole period. The appeal against sentence in Downes was unsuccessful.
In Taitoko, the Court of Criminal Appeal (CCA) resentenced the applicant, who had received a 25% discount for an early guilty plea, to an aggregate term of 3 years and 3 months imprisonment with a non-parole period of 2 years and 2 months and indicated indicative terms for two reckless wounding offences of 2 years each with a non-parole period of 1 year and 4 months.
In Zheng, the CCA allowed the sentence appeal and resentenced the applicant to a term of imprisonment of 1 year and 10 months to be served by way of intensive correction order. In that case the applicant had pleaded not guilty to alternative counts of stabbing her husband. Count one alleged wounding with intent to cause grievous bodily harm. In the alternative, count two alleged wounding and being reckless as to causing actual bodily harm. There, the applicant admitted to the stabbing, but relied on self-defence. The chief considerations upon which the CCA determined that the sentence below was manifestly excessive were the evidence of a long history of domestic violence and verbal abuse directed at the applicant by her husband, the greatly diminished role of general deterrence in the case and the applicant’s compelling subjective circumstances.
Two of the decisions referred to by the applicant, namely Prince v R [2020] NSWCCA 268 and Anderson v R (2022) 109 NSWLR 272; [2022] NSWCCA 187, involved indicative sentences for a reckless wounding offence of 2 years and 6 months, being the same as that indicated by the sentencing judge in the present case. In each of Prince and Anderson, the applicant’s sentence had been reduced by 25% to account for early guilty pleas.
Each of the remaining five decisions relied on by the applicant, namely Elwood v R [2023] NSWCCA 200, Perry v R [2021] NSWCCA 244, Craft v R [2021] NSWCCA 131, Moiler v R [2021] NSWCCA 73 and Kliendienst v R [2020] NSWCCA 98, resulted in a sentence or indicative sentence for reckless wounding which was longer than the indicative sentence in the present case. Each of those cases also involved a 25% reduction to account for early guilty pleas. In Elwood, the indicative sentence for reckless wounding was 2 years and 7 months with a non-parole period of 1 year and 6 months. In Kliendienst, the indicative sentence for reckless wounding was 3 years imprisonment with a non-parole period of 2 years. In Perry, the applicant was resentenced on appeal to a head sentence of 3 years imprisonment with a non-parole period of 1 year and 6 months. In Craft, the indicative sentence for reckless wounding was 3 years imprisonment with a non-parole period of 1 year and 9 months. In Moil**er, the applicant was resentenced for an offence of reckless wounding to a head sentence of 3 years with a non-parole period of 1 year and 7 months.
Accordingly, the decisions relied upon by the applicant do not assist in establishing that the sentence imposed was unreasonable or plainly unjust.
The sentencing judge took appropriate account of the applicant’s strong subjective circumstances. Competing considerations concerning the objective seriousness of the offending, the applicant’s lengthy criminal history including his history of similar prior offending, his poor prospects of rehabilitation and his risk factors making his prospects of reoffending high were all also appropriately taken into account by the sentencing judge.
In instinctively synthesising these competing considerations, the sentencing judge determined an aggregate sentence which was not unreasonable or plainly unjust.
Accordingly, ground 2 has not been made out.
For the above reasons, I propose the following orders:
Grant leave to appeal; and
Dismiss the appeal.
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Narayan
R
[2013] HCA 37
[1936] HCA 40
(2022) 109 NSWLR 272
(2013) 249 CLR 571
(2000) 202 CLR 321
(2010) 79 NSWLR 1
(2021) 104 NSWLR 518
(2010) 242 CLR 520
(1936) 55 CLR 499
(2005) 228 CLR 357
(2017) 96 NSWLR 155