Nguyen v R

Court of Criminal Appeal (NSW)|2021-03-05|Before: Basten JA, Walton J, Button J

Solicitors: Ren Zhou Lawyers (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2019/309493; 2020/38540 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 24 July 2020 Before: Abadee DCJ File Number(s): 2019/309493; 2020/38540

Judgment

BASTEN JA: I agree with Walton J.
WALTON J: On 6 May 2020, Thanh Lam Nguyen ("the applicant") pleaded guilty in the Local Court of New South Wales with respect to three offences: 1. aggravated entry with intent to steal, contrary to s 111(2) of the Crimes Act 1900 (NSW) (sequence 6 to charge H7195505 ("H…505"), hereafter "sequence 6" or "sequence 6 offence"); 2. steal property in dwelling house contrary to s 148 of the Crimes Act (sequence 7 to charge H…505, hereafter "sequence 7" or "sequence 7 offence"); and 3. intimidate contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (sequence 3 to charge H…505).
Two other offences were incorporated in a Form 1 instrument with respect to the sequence 6 offence (see s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act")).
Three offences were also included on a s 166 Certificate (one concerning sequence 4 of charge H…505 and two with respect to charge H73750734 ("H…734") - sequences 1 and 2).
On 24 July 2020, the applicant was sentenced by his Honour Judge Abadee ("the sentencing judge") in the Sydney District Court to an aggregate sentence of 7 years' imprisonment with a non-parole period of 4 years 11 months for the offences. The sentence was backdated to commence on 4 November 2019. The head sentence expires on 3 November 2026 and the non-parole period expires on 3 October 2024.
The following table is based upon a summary helpfully provided by the Crown. It sets out the relevant offences, maximum penalties of imprisonment and indicative sentences as follows: Sequence No. Offence Maximum penalty Indicative sentence H…505/6 Aggravating entry with intent to steal, knowing person there 14 years 3 years 9 months s 111(2) of the Crimes Act H…505/7 Steal property in dwelling house 7 years 1 year 6 months s 148 of the Crimes Act H…505/3 Intimidation 5 years 1 year s 13(1) of the Crimes (Domestic and Personal Violence) Act Form 1 (attached to sequence 6) H…505/2 Damage property 5 years n/a Section 13(1) of the Crimes (Domestic and Personal Violence) Act H…505/4 Contravene Apprehended Violence Order ("AVO") 2 years n/a Crimes (Domestic and Personal Violence) Act Section 166 Certificate H…734/1 Dishonestly obtaining financial advantage by deception 2 years jurisdictional limit 1 year 6 months s 192E(1)(b) of the Crimes Act H…734/2 Dishonestly obtaining financial advantage by deception 2 years jurisdictional limit 1 year 6 months s 192E(1)(b) of the Crimes Act

THE GROUNDS OF APPEAL

The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the aggregate sentence.
The grounds for leave to appeal were as follows: 1. the learned sentencing judge erred by failing to give proper practical effect to the finding of special circumstances; 2. the learned sentencing judge erred by taking into account the incorrect offence when dealing with the second matter on Form 1; and 3. the aggregate sentence is manifestly excessive.

FACTUAL BACKGROUND

There was an agreed statement of facts in the proceedings before the sentencing judge which was instrumental in the sentencing judge's discussion of the factual background. This background is a reflection of the agreed statement of facts and the sentencing judge's findings.
The applicant and the complainant had been in an on and off again domestic relationship since 2014. The complainant became pregnant with the applicant's child in December 2018.
The relationship ended some time before the subject offences (namely, sequences 3, 6 and 7 of charge H…505), although there was continued contact between them.
On 22 August 2019 at about 4am, the complainant began experiencing contractions whilst she was at home in Blacktown. The complainant was taken to Bankstown Hospital in her friend's car. Two of the complainant's housemates remained at home asleep in their bedrooms.
Between 4am and 6.45am, the applicant entered the complainant's home through the garage (sequence 6). He intentionally damaged both mirrors of the complainant's car which was parked in the garage (Form 1 attached to sequence 6). The applicant then entered the house through an internal door from the garage. He went directly to the complainant's bedroom, which was on the second floor. The applicant searched and ransacked the room. He pulled drawers and shelves out and left the contents on the floor. He smashed a candle in a glass case on the floor of the en suite bathroom. The applicant stole a silver MacBook Air laptop computer which belonged to the complainant and which had been left in a cot in the bedroom. The laptop was valued at about $1,500 (sequence 7).
When the complainant returned from the hospital at about 6.45am the same day, she immediately saw signs that someone had been inside her home and called the police. At about 10pm, the complainant returned to Bankstown Hospital and gave birth to her son. She remained at the hospital for five days.
On 25 August 2019, while the complainant was still in hospital following the birth of her son, she received a number of text messages from the applicant, who was using his father's mobile phone (sequence 3). The applicant sent messages which included, but were not limited to, the following messages: Shut the fuck up bitch. I messaged you, I past your house parked. Decided whether I should go knock. … I knew u were home But u know what I parked I. Hunter St I get out I see a car drive out I waited till 7am.
The complainant sent a text message to the applicant that she had been at the hospital with contractions and the applicant replied that he did not believe her.
On 27 August 2019, the applicant sent the complainant more messages. Those messages included the following: So u better fucking answer me … I'll fuck u so hard that even if you do call the cops on me And lock me up I'll still smiin [sic] inside you mother fucker. You're gonna cop it when I see U How about I shove a needle in your arm and then see how u are You're Fucking dead Yeah I don't give a fuck about u Hanna I will fuck u up You're dead You think all those times I got angry and lost my shit Is bad I don't have to answer u bitch. … I'll go there myself and take him
On 2 September 2019, the applicant, while still in the possession of the complainant's laptop, accessed the complainant's Australian Taxation Office ("ATO") account. The applicant changed the bank account details registered with the ATO to a bank account controlled by the applicant.
On 3 September 2019, the applicant lodged an income tax return in the name of the complainant and without her consent. As a result, on 10 September 2019 the ATO transferred the sum of $990.63 into the applicant's account (dishonestly obtain financial advantage, Section 166 Certificate).
On 4 September 2019, the police served a provisional apprehended violence order on the applicant with conditions that he not contact the complainant or go near her. That day, the complainant received the following WhatsApp messages from the applicant's number, leading to the contravene AVO charge (Form 1 attached to sequence 6): YOU KNOW WHG [sic] FUCK IT. YOU GOT 1 MINUTE. SHUT THE FUCK UP. No. NO. NO. I'M NOT GOING. NO. This is your doing. I'M STAYING
On 5 September 2019, the complainant received the following WhatsApp messages from the applicant: Open the door. Open the ducking [sic] door. You fucking piece of shit. … Man I just want to see him. I don't want to here [sic] this shit man
On 10 September 2019, the applicant sent the further following message to the complainant: "I want to see my son [the complainant's name]. This is your doing. Not mine".
On 16 September 2019, the applicant lodged another income tax return in the name of the complainant and without her consent. As a result, the ATO transferred the sum of $2,435.70 into the applicant's account (dishonestly obtain financial advantage, Section 166 Certificate).
On 2 October 2019, the applicant sent the complainant an email stating he was going to commit suicide. The complainant relayed this information to the police, who then went to the applicant's residence at a street in Canley Vale. The police spoke with his parents, who advised them that the applicant was not there. The applicant's parents gave permission to the police to search the property and the complainant's laptop was located.
On 3 October 2019, the police arrested the applicant. He participated in an electronic record of interview where he made admissions to entering the complainant's home through the garage, and entering her bedroom, taking the complainant's laptop and being the owner of the relevant mobile phone number ending in "9995". On 4 October 2019, the police again went to the applicant's residence. The police entered the property where they located and seized the complainant's garage key.

THE REASONS FOR SENTENCE

After setting out the factual background, the sentencing judge considered the objective seriousness of the respective sequences.
As to sequence 6, the trial judge stated: Here, there were two persons who were asleep inside their bedrooms. Given the time of day, this was clearly foreseeable to the offender. By reason of the time of day, those persons were inherently in a more vulnerable position. I do not regard that the offending can be characterised as impulsive. As the victim later described it, and I tend to accept and agree with her characterisation, this was an offence that was directly targeted against a known victim's home. I consider that the offender's culpability is elevated by the selection of that home and the apprehension in the offender, given the time of the entry, that the victim was likely to be at home asleep and in a context where, so the offender thought, she was near to giving birth to his son. The Crown and the offender's advocate agreed that the offending is at the middle range of objective gravity for an offence of this kind. I agree with that assessment.
His Honour then turned to consider the second offence on the Form 1 with respect to sequence 6. He referred erroneously to that offence as "intimidation". His Honour stated: "The offence on the Form 1, of intimidation, plainly does elevate the need for a penalty that will serve a salutary lesson to the offender and accommodate the factor of retribution". That error features in ground 2 of the appeal.
As to sequence 7, the sentencing judge did not accept the joint position of the parties that the applicant fell within the middle range, finding that the offence fell "slightly below" the middle range. The sentencing judge described the factors that resulted in that consideration as follows: The value of the property stolen was relatively small: a MacBook Air laptop computer at $1,500. But the laptop could also be expected to contain personal information including, without limitation, identification information of the kind that was subsequently exploited. I do not find, and it is not necessary for me to find, that the offender actually knew what identification information was on the computer with a view to perpetrating the frauds which he later did. I make only the reference to say that the value of the items seized is not merely to be considered by its monetary value.
His Honour considered whether there were aggravating circumstances with respect to sequences 6 and 7. First, the sentencing judge found as an aggravating factor that the offences occurred in the complainant's home. Secondly, whilst his Honour did not take into account the prior criminal history of the applicant as an aggravating factor, he did take into account that consideration to "negate the impact of other factors which might point to a lesser sentence such as the prospects of rehabilitation".
The sentencing judge identified that sequence 3, being an offence of "specific intent", occurred three days after the offending which was the subject of sequences 6 and 7. He considered that the nature of the text messages forwarded by the applicant involved threats of sexual violence, damage to the complainant's home, violent assault and even death threats. The messages contained references which represented a complete disregard for the complainant's feelings at a time when, the applicant was well aware, she had just given birth.
The sentencing judge described the applicant as having engaged in "avowedly offending conduct which was intended to punish and cause distress to the victim" as well as, by its nature, being intended to "cause mental harm and anguish". It achieved that end.
His Honour also took into account that the conduct was not isolated, but pre-mediated. He assessed the offending conduct as at the middle-end of the range for objective seriousness.
After reviewing the victim impact statements, the sentencing judge then turned to what he described as the dishonesty offences in sequences 1 and 2. He indicated that a common feature of both offences was that they involved defrauding the ATO. In the result, general deterrence was appropriate in sentencing for offences for defrauding the revenue authority. That is because the system of tax collection relies upon honest and accurate self-reporting.
The sentencing judge approached the two offences as though they were indistinguishable, even though they occurred at different times. The offences largely coincided with the Form 1 offence of contravening an AVO.
His Honour found that the deception in each case involved use of the complainant's identity via the use of her computer to obtain financial advantage with a view to gratifying the applicant's need for money.
His Honour also found that, irrespective of the motive, the effect of the offending was indirectly to inflict further pain upon the complainant "being financial anxiety and distress to her at a time when the offender was aware of her recovering from giving birth and being attuned to the needs of the newly-born child". The fact that the fraud was relatively unsophisticated and would have inevitably been detected did not significantly reduce the weight which would be given to the offences because the objective seriousness of the offending overall involved multiple victims. The objective seriousness of the offending should be classified below the mid-range of offending for offences of that kind.
In reviewing the subjective case for the applicant, the sentencing judge took into account the following factors: 1. He was in his mid-twenties. The sentencing judge accepted that the applicant was immature which may, to a degree, moderate the need for specific deterrence although this factor is diminished "because the repeated amount of the offender's offending over a relatively short period signifies his prospects of rehabilitation are poor or guarded." Hence, that consideration was found to be neutral. 2. The applicant had a strict family upbringing and struggled to excel academically at school. 3. A psychologist diagnosed the applicant had suffered from undiagnosed Attention Deficit Hyper-Activity Disorder ("ADHD"). 4. The applicant has a history of substance abuse and difficulty at emotional regulation which, in a psychological report, was described as lying at the heart of his problems. However, it was not suggested that these factors "significantly diminished his culpability or substantially lessen the need for general and specific deterrence". 5. The sentencing judge also took into account that the applicant's extensive criminal history included personal violence offences such as assaults and intimidation from 2016. He had offences of larceny and property damage. There were also prior contraventions of AVOs. Those criminal antecedents disentitled the applicant to leniency and "diminished the force of any submission that he is unlikely to reoffend and has prospects of rehabilitation".
As to insight into his offending, the sentencing judge found that the existence of such insight had carried limited weight because the applicant had such insight (from his own perspective) at the time of his offending in sending messages to the complainant. He showed little or no insight as to the complainant's perspective.
The sentencing judge was not satisfied that the applicant was genuinely remorseful for his conduct. As to rehabilitation, his Honour found that: Such evidence is, in my view, only prospective as to how the offender's rehabilitation might be assisted in the future. It is certainly a relevant matter on the issue of special circumstances, but in my view, the offender has not demonstrated the likelihood that he would be capable of rehabilitating himself. Given his past record, for a man of his age, I agree with his advocate's submission that his prospects for rehabilitation are no more than guarded. [Original emphasis.]
The sentencing judge found that, although he accepted the applicant had "partial, albeit limited, insight into his wrongdoing", the absence of genuine remorse led his Honour to accept a Sentencing Assessment Report which assessed the applicant as being of medium risk of reoffending.
As to the "primary offences of the kind identified, or motivated by or sourced in domestic disputation" and, in the case of sequence 3, "an avowed domestic violence offence", the sentencing judge considered that general deterrence and protection of the community should feature in sentencing. He further considered that there should also be specific deterrence, notwithstanding the applicant's substance abuse disorder and ADHD.
As to the aggravated entry with intent to steal offence, his Honour considered that specific deterrence and retribution were elevated factors by reason of the Form 1 offence contravening an AVO.
His Honour factored the damage to property into his assessment of the objective gravity of the offence with respect to sequence 6.
With respect to the Section 166 Certificate, the sentencing judge stated that these offences had "their own statutory purposes and additional considerations applied to them".
The sentencing judge observed that the offender was arrested on 3 October 2019. He was then granted bail which was thereafter revoked. He had, therefore, been in custody since 12 October 2019. Part of that time was attributable to a fixed term of imprisonment for 3 months with respect to other offending conduct in relation to the same complainant (for which an Intensive Correction Order ("ICO") had also been imposed). In the final analysis, his Honour accepted the joint position of the parties that an aggregate sentence for the offences should be backdated to 4 November 2019.
His Honour then dealt with the question of special circumstances, which attracted ground 1 of this appeal. That finding was in the following terms: Given this [applicant's] extensive history, his lack of remorse and little evidence of rehabilitation, there is not much to be said in favour of the Court's variation of the statutory ratio. Nevertheless, there is force to his advocate's submission that his prospects of rehabilitation under supervision are likely to be aided by a longer period on parole, and the Court is mindful that part of the factor underlying community protection is the [applicant's] eventual reintegration back into the community. I am prepared to modify the statutory ratio, but not to a very large degree.
His Honour found that there was significant concurrency between the offences for sequences 6 and 7 given they were part of a single episode notwithstanding different elements. The sentencing judge also considered that those offences, which he described as the "principal offences", were "very distinct in nature" and differed from the related offences on the Section 166 Certificate even though the same complainant was involved.
His Honour considered that "the nature of the offence between theft and intimidation in sequence 3 is also quite different" and found that a level of accumulation was warranted. His Honour also found that the punishment in terms of the related offences on the Section 166 Certificate, should accumulate after sequences 6, 7 and 3. However, the notional sentences for the Section 166 Certificate offences should be largely concurrent.

Ground 1: The learned sentencing judge erred by failing to give proper practical effect to the finding of special circumstances

The first ground of appeal upon which the applicant relied is that the learned sentencing judge erred by failing to give proper practical effect to a finding of special circumstances.
The effect of s 44 of the Sentencing Act is that the non-parole period for either a single sentence or an aggregate sentence must not fall below three-quarters of the head sentence unless there is a finding of special circumstances. The applicant contended that circumstances must be "sufficiently special" before a finding ought to be made: R v Fidow [2004] NSWCCA 172 at [22]; Langbein v R [2013] NSWCCA 88 at [54]. Further, the applicant submitted there are two steps to making any such finding: 1. first, a finding of fact as to circumstances relied upon for the finding; and 2. secondly, a judgment as to whether the circumstances warranted the finding such that the circumstances were "sufficiently special" (see R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [73]).
The applicant accepted that a finding of special circumstances was a discretionary finding of fact: Caristo v R [2011] NSWCCA 7 at [28] (per R A Hulme J, with Giles JA and Adams J agreeing). The applicant also accepted that such a finding and the degree of adjustment to a non-parole period in respect of that finding are, quintessentially, matters for the sentencing judge: Clarke v R [2009] NSWCCA 49 at [13] (per McClellan CJ at CL, with James and Adams JJ agreeing) and R v Cramp [2004] NSWCCA 264 at [31] (per Spigelman CJ, with Hidden and Buddin JJ agreeing). However, the applicant contended that this Court was able to intervene in cases where the finding of special circumstances had not been properly reflected in the ultimate ratio between "minimum term" and "head sentence".
The applicant submitted that, in this case, the aggregate sentence imposed is 7 years' imprisonment, with a minimum term of 4 years 11 months. The ratio or proportion between the minimum term and head sentence was 70%. Had there been no finding of special circumstances, the statutory ratio of 75% would have resulted in a minimum term of 5 years 3 months. The result was, therefore, that the finding of special circumstances resulted in only 4 extra months on parole or a 5% allowance for special circumstances.
The applicant did not contend that the sentence imposed was the result of inadvertence or miscalculation by the sentencing judge. The applicant accepted that the sentencing judge specifically turned his mind to the sentencing ratio and the degree to which he was prepared to vary the ratio. The applicant also accepted that the sentencing judge in his reasons stated that he would not be modifying the statutory ratio "to a very large degree" and that overall the sentencing judge's finding of special circumstances was generous.
The applicant contended, however, that once a finding of special circumstances had been made, it was incumbent on the learned sentencing judge to give practical effect to that finding by making a meaningful adjustment to the ratio between minimum term and head sentence. The applicant submitted that the practical effect of the finding of special circumstances did not accord with one of the purposes of s 44 of the Sentencing Act, that is, that the applicant's prospects of rehabilitation and reintegration into the community would likely be aided by a longer period on parole. An extra 4 months on parole may be insufficient to achieve the end to which it was aimed.
The applicant submitted the grounds for appeal in Woods v R [2020] NSWCCA 219 ("Woods") (at [12]) were similar to the present case. The applicant in Woods was sentenced, it was contended, in relation to both Federal and State offences, which added to the complexity of the sentencing task of the sentencing judge, Buscombe DCJ, in R v Woods [2019] NSWDC 401. Buscombe DCJ had found special circumstances for the State offences; however, the total effective ratio between the minimum term and total effective sentence was 71.4% (an effective overall sentence of 7 years with an effective non-parole period of 5 years). This resulted in an extra period on parole of only 3 months. In concluding that the ground of appeal should be allowed Wright J (with whom Bathurst CJ and Garling J agreed), referred to R v Sutton [2004] NSWCCA 225 ("Sutton"), stating: [68] In Sutton v R [2004] NSWCCA 225 , Howie J at [30], after finding appealable error on other grounds and in the course of resentencing, described reducing the statutory ratio of 75 per cent to about 70 per cent, which meant a reduction in the non-parole period by about three months, as "rather mak[ing] a mockery of a finding of special circumstances".
The applicant contended that, as in Woods, a difference in ratio of only 5% was insufficient and, therefore, did not properly reflect the purpose of the finding of special circumstances. In oral submissions, the applicant acknowledged that the sentencing judge made a finding of special circumstances due to the applicant's history of substance abuse and protection of the community through rehabilitation of the applicant but nonetheless contended as follows: …the judge clearly had this evidence in mind and that his intention was to protect the community from the offender through rehabilitative treatment of the offender but the applicant's drug problem is that entrenched and problematic and demonstrably likely to result in further offending and harm in the community that as was the case in Woods and in Sutton the finding in the applicant's case has, in my submission, very little, if any, practical effect and is without utility and does not properly reflect the purpose of the finding.

Conclusion: Ground 1

Section 44(1) of the Sentencing Act, relevantly, provides that when sentencing an offender to imprisonment for an offence, the Court must first set the non-parole period, being that portion of the sentence which the offender is required to serve in custody. Section 44(2) then provides: (2) The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision).
In Casey v R [2015] NSWCCA 142, Hoeben CJ at CL (with whom Hidden and Adams JJ agreed) stated the principles governing special circumstances as follows (at [36]-[37]): [36] Whether the ratio of the non-parole period to head sentence should be adjusted to less than the 75% prescribed by s 44(2) Crimes (Sentencing Procedure) Act 1999 involves a "discretionary finding of fact" in respect of which this Court will be slow to intervene: Jiang v R [2010] NSWCCA 277 at [83]; Caristo v R [2011] NSWCCA 7 at [27]. The decision to find special circumstances is first one of fact to identify the circumstances and secondly, one of judgment to determine that those circumstances justify a lowering of the non-parole period below the statutory ratio: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [73]. [37] The presence of circumstances which are capable of constituting special circumstances does not compel the Court to make such a finding and reduce the non-parole period: R v Fidow [2004] NSWCCA 172 at [22]. The degree or extent of any adjustment of the "statutory ratio" is a matter for the discretion of the sentencing judge: R v Cramp [2004] NSWCCA 264 at [31]; Trad v R [2009] NSWCCA 56; 194 A Crim R 20 at [33]; MD v R [2015] NSWCCA 37 at [38]. It follows that no error has been identified in her Honour's finding or approach to special circumstances.
The relevant portion of the sentencing judge's reasons for sentence, with respect to his finding of special circumstances (following upon a heading directing attention to that issue), has been earlier set out in the summary of his Honour's reasons for sentence.
It is evident from that extract that the sentencing judge was cognisant of the fact that the finding of special circumstances would have less impact on the reduction of the non-parole period, in particular, his express statement that he would not be modifying the statutory ratio "to a very large degree". As the applicant acknowledged, that was his Honour's express intention. The factual basis for the finding of special circumstances; namely, that the applicant may be assisted by being on parole for longer, even in circumstances where his prospects of rehabilitation were found to be guarded was, again, as acknowledged by counsel for the applicant, generous. In my view, the subsequent variation of the statutory ratio, which followed that factual finding was within his Honour's discretion.
The judgment in Woods does not, in my view, assist the applicant. Woods was concerned with sentencing for Federal and State offences. In sentencing the offender, Buscombe DCJ found special circumstances and reduced the State aggregate non-parole period from 75% to 55.6% of the total term and the Federal effective non-parole period from 70% to 66.7% of the Federal effective sentence. Given the way the sentences were accumulated, the effective non-parole period was 71.5% of the overall sentence.
Wright J in Woods found that, either through miscalculation or inadvertence, Buscombe DCJ's intention, that the ratio of the effective non-parole period compared to the overall sentence should be well below 75%, was not given effect: Woods at [71]. The judgment is distinguishable on that basis.
As the Crown submitted, Wright J in Woods, in fact anticipated and distinguished the situation that arises in the present case as follows (at [67]): [67] This was not a case where the sentencing judge, when dealing with accumulation and totality, expressly considered his finding of special circumstances and the ratios of the various non-parole periods and head sentences and, notwithstanding those matters, determined that the criminality of the offending and the applicant's circumstances required the ratio of the effective non-parole period to the overall, effective sentence to be 71.4%.
I note that, in Sutton, Howie J (with whom Studdert and Dunford JJ agreed) on re-sentence (after finding error in the treatment of the plea of guilty), found that the sentencing judge's finding that the applicant required "extended supervision and counselling" was not reflected in the additional 3 months on parole after the applicant had served 4 years 6 months in custody. (Sutton at [30]). By distinction, the sentencing judge in the present case did not make a finding that the applicant required the type of extensive supervision said to be required in that matter.
In my view, the sentencing judge did give proper effect to his finding as to the basis for special circumstances by varying the statutory ratio downwards to 70%. No misapplication of principle has been demonstrated by the applicant.
I would dismiss ground 1 of the application.

Ground 2: The learned sentencing judge erred by taking into account the incorrect offence when dealing with the second matter on the Form 1.

The applicant contended that the sentencing judge fell into House v King error by referring to the incorrect offence when moving to his consideration of the second offence on the Form 1. It was submitted that the Form 1 document made plain that the second matter on the Form 1 was an offence of contravene AVO and not the offence of intimidation. The applicant submitted that the error of the sentencing judge had "a material bearing on the sentence that was imposed".
As to the House v King error, the applicant contended that the sentencing judge took an irrelevant matter into account, in that he erroneously took into account on the Form 1 the offence of intimidation (one of the three principal offences) instead of the actual Form 1 offence of contravene AVO. Thus, the sentencing judge sentenced upon the higher maximum penalty for intimidation as opposed to the contravene AVO offence, by taking into account an offence with a maximum penalty of 5 years in contrast to 2 years in the case of the Form 1 offence. It was submitted that, accordingly, a more serious offence was taken into account by the sentencing judge which increased the penalty for the principal offence beyond that which it otherwise would have been.
The Crown submitted that, when the totality of the reasons for sentence are considered, together with the exchanges between the sentencing judge and legal representatives during the proceedings on sentence, it is obvious that the error complained of was no more than "a slip of the tongue" at one point only during the reasons for sentence. Reliance was also placed upon his Honour's judgment being given virtually ex tempore following the sentence hearing (see Burr v R [2020] NSWCCA 282 at [57]-[58], citing R v Speechley (2012) 221 A Crim R 175; [2012] NSWCCA 130 at [34]-[35] and R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [48]).
It was also submitted that it was important to note that, at the conclusion of his reasons for sentence, the sentencing judge gave the parties an opportunity to make submissions on anything arising from his remarks and that neither party raised this slip as requiring correction. It was obviously not the view of the parties at the time that the sentencing judge had, in fact, made the error now alleged.

Conclusion: Ground 2

The impugned passage of the reasons for sentence in this context concerned sequence 6 and has earlier been extracted in this judgment. It is clear that the sentencing judge nominated the incorrect offence at this juncture of his reasons for sentence. However, I accept the submission of the Crown that his Honour's mistake should properly be categorised as a slip for two reasons. First, it was the only occasion during the entirety of his reasons for sentence where, for reasons I will discuss below, that mistake occurred. The sentencing judge was, in fact, fully cognisant of the offences for which the applicant was to be sentenced. The Form 1 offence the sentencing judge was plainly intending to refer to was also domestic violence related, namely, the breach of the AVO. Further, to the extent necessary, I do not consider that the slip, so described, affected the sentencing discretion.
Secondly, it is evident from the other parts of the reasons for sentence.
At the outset of his reasons for sentence, the sentencing judge correctly outlined the offences for which the applicant was to be sentenced, including the two Form 1 offences that the applicant asked the Court to take into account when sentencing for sequence 6. His Honour correctly nominated the Form 1 offences (damage property and contravene AVO) and their corresponding maximum penalties (5 years and 2 years, respectively).
When dealing with the first dishonesty offence contained on the Section 166 Certificate his Honour said: "It largely coincided with one of the Form 1 offences, that is to say, the contravention of the AVO, which occurred on 4 September 2019".
His Honour again, correctly, identified the Form 1 offence: In relation to the aggravated entry with intent to steal offence, considerations of specific deterrence and retribution are elevated by reason of a Form 1 offence contravening AVO. I have factored the damages to the property into my assessment of the objective gravity of the offence of sequence 6.
His Honour also identified that the intimidation offence was a principal offence requiring a level of accumulation: "The nature of the offence between theft and intimidation in sequence 3 is also quite different, and I consider that a level of accumulation is warranted".
Further, the sentencing judge proceeded to give an indicative sentence for sequence 3 (the intimidation offence) of imprisonment for 1 year.
The same conclusion may be reached by recourse to the course of the sentencing proceedings.
At the outset of the proceedings his Honour inquired of the applicant whether he wanted the Court to take into account the two offences on the Form 1. His Honour there correctly nominated on that occasion both of the Form 1 offences and the sequence 6 offence to which they attached.
During the course of oral submissions, the applicant's legal representative incorrectly submitted that the intimidation offence was contained on the Form 1. The sentencing judge was constantly cognisant of that difficulty as demonstrated in the following exchange: HIS HONOUR: Sorry, is this for the three primary offences or the first of the offences of the aggravated entry? What do you say about the stealing of the property and the intimidation? SPOHR: The aggravated entry and the steal property in dwelling house, in chronological order those are the first two in time. Sorry, I withdraw that. There's the damage in the middle but I'm dealing with the answer to your Honour's question in relation to the principal offences. My respectful submission is that they're about the middle of the range. I've submitted that the damage property, that is, the mirror, is not an unusually serious example of its type and for that reason it's my submission it shouldn't increase the sentence much. HIS HONOUR: To which offence does that relate? Is that one of the form 1s. SPOHR: Yes. The intimidation is on the form 1. HIS HONOUR: The intimidation is a principal offence, I think. SPOHR: Sorry, in that case I need to [with]draw what I've done. Heading 2.4 of my written submissions is wrong. I've indicated there that it's a form 1 offence. That's an error on my part, I'm sorry.
Further, senior counsel for the Crown was correct to submit that it was also evident from the following exchanges between the sentencing judge and the representative for the Crown, that the intimidation offence was not being treated by the sentencing judge as being on a Form 1: 41. At POS 23 the following exchange occurred: HIS HONOUR: What do you say about the aspect of the objective gravity in relation to the intimidation offence? CHARLES: In terms of the intimidation, your Honour, I say that the messages are, for want of a better word, vile. The content is incredibly distressing for anyone and would have been incredibly distressing for the victim. 42. At POS 23-24: CHARLES: ... The similar submissions continue in terms of the vileness and the lack of insight into anything to do with the victim for the form 1 offence the contravene AVO, which extends to further text messages, and then further down the WhatsApp messages on 4 and 5 September. 43. And at POS 27: HIS HONOUR: Yes, and as to the primary offences though, what do you say about issues of concurrency and accumulation? CHARLES: In terms of the enter dwelling and the steal from property, I can see the concurrency there. They were committed, it would seem, within minutes of each other, if that's the way it can be put. HIS HONOUR: That's the same episode, really, isn't it? CHARLES: It is, your Honour, yes. I guess that's a much more eloquent way of putting it. In terms of the intimidation there would be some concurrency but not a large amount. I think the intimidation is quite separate.
The most likely explanation for the slip was, as conceded by the applicant, was that the Agreed Statement of Facts incorrectly identified intimidation as a Form 1 offence.
Whilst attention was directed in the Crown submissions as to whether the error in the sentencing judgment in question may vitiate the exercise of the sentencing discretion, in my view, when proper regard is paid to the proceedings below and the reasons for sentence the true question to be posed in the resolution of this ground of appeal becomes, in the circumstances, whether the error should be regarded as an inadvertent misstatement which did not affect the sentence imposed (see Zaky v R (Cth) [2017] NSWCCA 141 (per Hoeben CJ at CL, with whom Garling and Bellew JJ agreed).
For those reasons, that question should be answered in the affirmative. The slip that occurred cannot properly be characterized as a material error capably of vitiating the sentence imposed.
Accordingly, I would dismiss this ground of appeal.

Ground 3: The aggregate sentence imposed is manifestly excessive

The third ground of appeal on which the applicant relied is that the aggregate sentence was manifestly excessive.
The applicant contended two points in relation to this ground of appeal: 1. First, the applicant contended that the aggregate sentence imposed, both as to the minimum term and head term was manifestly excessive. 2. Second, that JIRS statistics for offences involving a contravention of s 111(2) of the Crimes Act indicate that the indicative sentence for sequence 6 is manifestly excessive and thereby infects the ultimate aggregate.
Overall, the applicant did not advance a submission that the offending in this matter was not serious or take issue with the sentencing judge's assessment of objective gravity. Rather, the applicant acknowledged the offending arose in circumstances of the breakdown of a domestic relationship, and in circumstances where the applicant knew the complainant was in the process of giving birth and had given birth.
However, it was submitted by the applicant that, when consideration is given to all of the circumstances in the present case, including the gravity of the offending and the circumstances of the applicant, the result in the present case warranted intervention by this Court.
The applicant contended that, although indicative sentences are not themselves amenable to appeal, "they may be a guide to whether error is established in relation to the aggregate sentence": JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 at [40] (per R A Hulme J, with Hoeben CJ at CL and Adamson J agreeing). Attention was primarily directed, in that respect, to the sequence 6 offence, it being contended that a finding the indicative sentence in sequence 6 was excessive would tend to indicate the aggregate sentence was excessive.
In that respect the applicant contended the starting point in relation to the sequence 6 offence and the two Form 1 offences attached to sequence 6 were as follows, (removing the 25% discount for the plea of guilty): 1. Aggravated enter with intent to steal, knowing person there: 4 years 8 months. 2. Steal property in dwelling house: 1 year 10 months. 3. Intimidation: 1 year 3 months.
It is from this starting point that the applicant made the following submissions: 43. As to the first principal offence contrary to section 111 (2) of the Crimes Act 1900 (NSW), his Honour considered that the objective gravity fell at the middle of the range. The circumstance of aggravation relied upon was that the applicant knew there were persons present at the premises. There is no evidence, however, that the two persons present knew that the applicant was in the house at the relevant time. True it is that they were asleep and that they were vulnerable, but this circumstance was simply limited to the fact that the applicant knew there were persons present, rather than the vulnerable persons knowing or becoming awoken by the actions of the applicant, which would have made the offending more serious. True it is also the offence occurred in the early hours of the morning, however, that is certainly not unusual for offences of this kind. 44. This offence also occurred in a relatively short period of time. The offence was limited to the entry with intent to steal knowing persons were present, so the fact that property was damaged or that property was stolen was not relevant and could not be taken into account in assessing the gravity of this offence for two reasons first, to do so would have breached the principles in The Queen v De Simoni (1981) 147 CLR 383 and secondly, these factors were subsumed within the two matters on the Form 1 for that limited purpose. It appears that, although his Honour was alive to the caution required in relation to these matters, they may have subconsciously influenced his Honour having regard to the indicative sentence imposed in relation to this offence. 45. Given also the error in referring to the intimidation offence in relation to the second Form 1 matter, the effect of that reference is that his Honour took into account a more serious offence as compared to the correct Form 1 offence which was an offence of contravene AVO. The maximum penalty for the intimidation offence is 5 years whereas the maximum penalty for the contravene offence is 2 years. It is ultimately contended that the sentence imposed for this principal offence is manifestly excessive, and that, given this indicative sentence comprised a large proportion of the overall aggregate, it infected the overall aggregate sentence.
It was submitted that in relation to the two dishonesty matters on the Section 166 Certificate the starting point was 1 year 10 months.
As mentioned, the applicant also relied upon JIRS statistics, although accepting the material would be of limited assistance and was not of determinative significance. Attention was again focused, in that respect, upon the sequence 6 offence.
The applicant advanced contentions with respect to "post-reform" and "pre-reform" statistics (the relevant sentencing reform being the introduction of the Crimes (Sentencing Procedure) Amendment (Community-based Orders and Other Matters) Regulation 2018 (NSW) (together with the Crimes (Administration of Sentences) Amendment (Community-based Orders and Other Matters) Regulation 2018 (NSW)) in September 2018, which, inter alia, amended Sch 2 to the Sentencing Act in connection with community-based orders (including: intensive correction orders, community correction orders and conditional release orders)).
The "postreform statistics" (based upon cases decided after September 2018) for the sequence 6 offence where there is a plea of guilty demonstrated that: 1. Of the 94 cases on record where a plea of guilty was entered: 1. 49 resulted in prison; 2. 31 resulted in an ICO; 3. 12 resulted in a Community Corrections Order ("CCO"); 4. 1 resulted in a Conditional Release Order ("CRO") with conviction; and 5. 1 resulted in a CRO without conviction. 1. Of those sentenced to prison, the term of sentence for the sequence 6 offence involving a plea of guilty comprised: 1. 12 months (1 case); 2. 18 months (12 cases); 3. 24 months (1 cases); 4. 30 months (9 cases); 5. 36 months (11 cases); 6. 42 months (3 cases); 7. 48 months (3 cases); and 8. 54 months (3 cases).
The applicant submitted that, having regard to the post-reform statistics where a term of imprisonment was imposed for the principal offence, a term approaching that imposed in the present case fell at the highest end of the spectrum of sentences imposed. This is notwithstanding the finding of objective gravity (middle of the range) and the balance of factors relevant to the ultimate synthesis.
In relation to the "pre-reform statistics" (based upon cases decided before September 2018) for offences contrary to s 111(2) where there is a plea of guilty, the following was noted: 1. Of the 447 cases on record where a plea of guilty was entered: 266 resulted in prison; 6 resulted in periodic detention; 16 resulted in an ICO; 106 resulted in a suspended sentence; 7 resulted in a CSO; 44 resulted in a section 9 bond; 2 resulted in a section 10 bond. 2. Of those sentenced to prison, the term of sentence for the principal offence involving a plea of guilty comprised: 6 months (1 case); 12 months (13 cases); 18 months (34 cases); 24 months (75 cases); 30 months (53 cases); 36 months (49 cases); 42 months (13 cases); 48 months (13 cases); 54 months (9 cases); 5 years (2 cases); 6 years (3 cases); 7 years (1 case).
It was submitted by the applicant that these statistics provided some support for the contention that the starting point for the indicative sentence for the sequence 6 offence ought to have been lower than the indicative sentence imposed by the sentencing judge.
The applicant submitted that when regard was had to the result in the present case, taking into account all relevant facts and circumstances, including the manifestly excessive indicative sentence in relation to the sequence 6 offence and the error in consideration of the second Form 1 offence, the sentence imposed in the present case is manifestly excessive.

Conclusion: Ground 3

When proposing that the exercise of a sentencing direction resulted in a sentence which was manifestly excessive, the appellant must be taken as contending the sentencing process was attended by the last mentioned error in House v The King (1936) 55 CLR 499 at 505, such that a sentence is manifestly excessive where the applicant shows that the sentence is "unreasonable or plainly unjust": Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 ("Markarian") at [25]. This has to be established in a context where there is no single correct sentence and where judges, at first instance, are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle: Vuni v R [2006] NSWCCA 171 at [33] per Hoeben J (as his Honour then was, with Tobias JA and James J agreeing); Markarian at [27] and Vale v R (2016) 77 MVR 194; [2016] NSWCCA 154 at [37] (per Hoeben CJ at CL, with whom Rothman and R A Hulme JJ agreed).
Reference should also be made to the judgment of R A Hulme J (with whom Bathurst CJ, Leeming JA, Hamill and Adams JJ agreed) in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] as follows: [443] When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]: • Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. • Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. • It is not to the point that this court might have exercised the sentencing discretion differently. • There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. • It is for the applicant to establish that the sentence was unreasonable or plainly unjust. (See also Hughes v R [2018] NSWCCA 2 at [86]).
It must also be stated at the outset of the consideration of this ground that indicative sentences are not themselves amenable to appeal. It is the aggregate sentence to which a ground of appeal of manifest excess relates. However, indicative sentences can be taken into account when considering the whole of the reasons for sentence. As Bathurst CJ (with whom Hoeben CJ at CL and Price J agreed) said in Kerr v R [2016] NSWCCA 218 at [113]-[114]: [113] The circumstances in which a sentence will be found to be manifestly excessive are well established. The Court will only intervene if the sentence is unreasonable or plainly unjust, such that the Court may infer that in some way there has been a failure of the sentencing judge to properly exercise the sentencing discretion: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6], [22]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 (Hili) at [59]. In that context, it must be remembered that an appellate court may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised the sentencing discretion in a different way: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29. [114] As R A Hulme J pointed out in JM v The Queen [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40], the principal focus in the determination of a ground alleging manifest excess in the case of an aggregate sentence will be whether the sentence reflects the total criminality. Further, the indicative sentences recorded in accordance with s 53A(2) of the Sentencing Procedure Act are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence. However, the fact that the indicative sentences are excessive does not necessarily mean that the aggregate sentence is excessive.
Manifest excess cannot be established merely by pointing to a statistical range of sentence and arguing that the particular sentence falls at or near the top of that range: Ahmad v R [2019] NSWCCA 198 at [48]. Although the general pattern of sentence is a relevant consideration, statistics may be of limited assistance in determining whether a sentencing discretion has miscarried: SS v R [2016] NSWCCA 197 at [62]-[63] (per Bathurst CJ, with Schmidt and Wilson JJ agreeing); Windle v R [2011] NSWCCA 277 at [62]-[63] (per Hoeben J, as his Honour then was, with Meagher JA and Rothman J agreeing); Ahmad v R [2019] NSWCCA 198 at [50] (per Wilson J, with Basten JA and Wright J agreeing).
Further, the applicant's submissions proceed upon the basis of an acceptance of ground 2 which has not materialised.
The focus of the applicant's challenge under this ground was upon the indicative sentence for the sequence 6 offence. That challenge in my view, is misconceived for the following reasons: 1. The offences were committed in the context of a relationship marred by domestic violence. The applicant twice threatened to kill the applicant and had also threatened her with violent sexual assault and removal of her newborn baby. 2. The sentencing judge did not make a finding that the two persons present knew the applicant was in the house at the relevant time. Rather his Honour found that it was foreseeable to the applicant, that by virtue of the time of day, those persons would be asleep and, therefore, were inherently in a more vulnerable position. What is significant, in that respect, is that the applicant purposefully chose the complainant's home and attended at a time he thought she would be asleep and near to her giving birth. 3. I do not accept the applicant's submission that the offence was less serious because the duration of the entry was short. The period of time that the applicant was in the dwelling does not bear upon the objective seriousness of the offence: Marshall v R [2007] NSWCCA 24 at [34]-[40], citing the guideline judgment in R v Ponfield (1999) 48 NSWLR 327; [1999] NSWCCA 435 . 4. The sentencing judge correctly found the objective seriousness of the sequence 6 offence to be at the middle of the range, noting the persons present (the circumstance of aggravation averred) were inherently vulnerable and the offence was not impulsive. 5. The offences also involved an abuse of trust (The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48). 6. The applicant is a young man who had a prior record including offences of domestic violence perpetrated against the same complainant, which disentitled him to leniency, pointed to an increased need for specific deterrence and contributed to a finding that his prospects of rehabilitation were poor or guarded. 7. The sentencing judge's assessment of the need for general deterrence and the protection of the community are apposite with respect to this offence. 8. I will deal with the issue of statistics globally below but observe with respect to the sequence 6 offences that the statistics do not point, in my view, to the indicative sentence for sequence 6 being manifestly excessive (I note that there must, in any event, be real limitations in using a statistical analysis in this way, namely, to focus upon statistics bearing upon indicative sentences as shedding light on the appropriateness of an aggregate sentence).
Turning to the remaining offences some further comments bearing upon the soundness of the aggregate sentence may be made: 1. The stealing offence was assessed as "falling slightly below the middle range of objective seriousness but not by much", due to the non-monetary value of the laptop which could be expected to contain personal information. 2. The intimidation offence was assessed as at the middle end of the range of objective gravity noting the conduct was premeditated and designed to instil further mental harm on the complainant, when the applicant was aware that she had just given birth. 3. The sentencing judge found the dishonesty offences on the s 166 certificate fell slightly below the middle range of offending given the multiple victims (the ATO and the applicant's partner), and the applicant having exploited his possession of the complainant's laptop (subject of the stealing offence) to perpetrate the fraud. 4. No challenge was made with respect to accumulation in assessing the aggregate sentence. 5. The two offences on the Form 1, in particular the contravene AVO required an increase to the penalty for the principal offence (sequence 6), to ensure personal deterrence and extract retribution. 6. As the sentencing judge found, the applicant showed little or no insight as to the complainant's perspective and was not genuinely remorseful. 7. The applicant represented a medium risk of re-offending. 8. The challenge to the sentencing judge's finding of a limited adjustment to the sentencing ratio for special circumstances has been rejected. 9. The further contention by the applicant (see at [93]) regarding double counting and De Simoni (the latter referring to, incorrectly, sentencing for a more serious offence not charged) is misguided. The two matters on the Form 1 were damage property (the side mirrors of the complainant's car) and contravene AVO. Sequence 7, the stealing offence (the laptop computer), was a principal offence. I accept the submissions by the Crown that there is no basis for the assertion that "although his Honour was alive to the caution required in relation to these matters" (that is not to double count or sentence for an offence not charged), the sentencing judge may still have been subconsciously influenced in respect of the indicative sentence given for Sequence 6. The sentencing judge explicitly stated he was cognisant of the need to avoid double counting.
Ultimately, ground 3 constitutes an appeal from an aggregate sentence. The statistics relied upon do not sufficiently take into account that consideration given the aggregate sentence concerned sentencing for five offences and two offences on a Form 1. I accept the submission by the Crown that the criminality in this matter encompassed offences of a different nature and varying degrees of seriousness with multiple complainants.
When those factors are taken into account, and regard is had to the overall circumstances of the offender and the applicant in this case, in my view, the aggregate sentence is not manifestly excessive.
This ground of appeal should be dismissed.

CONCLUSION

I would grant leave to appeal particularly in the light of the issue raised with respect to ground 2, but would otherwise dismiss the appeal for the foregoing reasons.

ORDERS

I would propose the following orders: 1. Leave to appeal is granted; 2. The appeal is dismissed.
BUTTON J: I agree with Walton J.

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Crimes (Sentencing Procedure) Amendment (Community-based Orders and Other Matters) Regulation 2018(NSW)

Crimes (Administration of Sentences) Amendment (Community-based Orders and Other Matters) Regulation 2018(NSW)

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