R v Karim

R v Karim - [2024] NSWCCA 234 - NSWCCA 2024 case summary — Zoe

HEADNOTE [This headnote is not to be read as part of the judgment] On 3 June 2024, the respondent was sentenced after entering late pleas of guilty for two unrelated sets of offences, referred to respectively as the domestic violence offences and the drug offences. The domestic violence offences comprised one count of cause grievous bodily harm with intent (count 3), with one count of intentionally choke with intent taken into account on a Form 1; and one count of aggravated sexual intercourse without consent (count 5). The drug offences comprised one count of supply prohibited drug on an ongoing basis, with that same offence together with two further offences taken into account on a Form 1. The victim of the domestic violence offences was Leticia Chalmers, the respondent's wife. She was 20 weeks pregnant with the respondent's child at the time. The respondent wanted her to terminate the pregnancy and told her so. The offences occurred at the respondent's home, after he pressured her to attend to discuss a gender reveal party that Ms Chalmers had planned for that day. The respondent and Ms Chalmers argued. He took her phone and keys before engaging in a sustained violent attack upon her during which he stomped, kicked and kneeled on her stomach, with the objective of killing the foetus. He also choked her to the point of unconsciousness, poured water on her head to revive her, and then continued his assault. When Ms Chalmers screamed at the respondent to stop and that she thought was bleeding, the respondent inserted the top of his finger into her vagina three times, to ascertain whether he had achieved his objective. When Ms Chalmers attended the hospital following the assault, foetal demise in utero was confirmed. The drug offence charges arose following a police investigation into an organised criminal network supplying cocaine. The Crown case was that the respondent exercised oversight and control over a dedicated "drug-run" phone and acted pursuant to a joint criminal enterprise with street level dealers who used the phone to supply the drug. The sentencing judge placed the offending underlying the offence of cause grievous bodily harm with intent "at the highest end of objective seriousness" and considered that the Form 1 offence of intentionally choke with intent substantially increased the penalty for the principal offence. His Honour also assessed the aggravated sexual intercourse without consent offending on the higher side of objective seriousness. The offence having been committed in the respondent's home was an aggravating factor and the emotional and psychological damage that Ms Chalmers experienced was considered substantial. The respondent was disqualified from leniency, taking into account the fact that he was on conditional liberty at the time of the offences and his breaches of custodial regulations. The sentencing judge applied a 10% reduction to all sentences for the respondent's late guilty pleas and took into account the respondent's remorse as a mitigating factor. His Honour assessed the offending underlying the offence of supply prohibited drug on an ongoing basis to be at or slightly above the midpoint and that the criminality of the other Form 1 offences could be addressed in the penalty for the principal offence. The sentencing judge considered as an aggravating factor that the respondent was on conditional liberty at the time of the drug offences. His Honour also referred to the sentences imposed on other offenders who participated in the joint criminal enterprise. As to the respondent's subjective circumstances, the sentencing judge was not satisfied that the respondent's underlying mental health could reduce his moral culpability and his Honour made a guarded assessment of his prospects of rehabilitation. Although the respondent's youth and immaturity could partially explain his behaviour, these factors needed to be considered in the context of a long history of violence. His Honour considered that the COVID-19 lockdowns significantly increased the onerous nature of his incarceration and made a limited finding of special circumstances reducing the statutory ratio from 75% to approximately 66%, noting that the time the respondent spent in custody was made more onerous by the pandemic and his youth. For the domestic violence offences, his Honour imposed indicative sentences of 10 years and 6 months, with a non-parole period of 7 years for count 3 (and the Form 1 offence), and 2 years and 6 months imprisonment with a non-parole period of 20 months for count 5. For the drug offences, his Honour imposed an indicative sentence of 3 years imprisonment. The aggregate sentence was 12 years imprisonment, with a non-parole period of 8 years. The Crown appealed on the sole ground that the sentence was manifestly inadequate. The focus of the Crown appeal was the domestic violence offences, although the Crown took issue with the manner in which the sentencing judge accumulated the sentences for the two sets of offending. The Court (Mitchelmore JA; Davies and Campbell JJ agreeing), allowing the appeal, held: (1) Although there was no patent error in his Honour's reasons and sentencing judges are afforded a broad discretion, the indicative sentences did not reflect the objective gravity of the egregious facts of the domestic violence offences and fell short of recognising the community's disapprobation of the respondent's conduct. Together with the manner in which the sentences for the domestic violence offences were accumulated and the distinct offending associated with the drug offences, the aggregate sentence was manifestly inadequate: at [67]-[68], [95]. Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 considered. (2) Where the Crown did not allege specific error on whether the sentencing judge's reliance on the pandemic involved double-counting, the question was whether the non-parole period was manifestly inadequate. Consistently with the conclusion on aggregate sentence, the non-parole period was also manifestly inadequate: at [90]. R v Zolfonoon [2016] NSWCCA 250; 262 A Crim R 285; R v M A [2004] NSWCCA 92; 145 A Crim R 434 considered. (3) The Crown discharged its onus to demonstrate that the Court's discretion should be exercised. The extremely grave objective circumstances of the domestic violence offences compelled the Court to intervene and increase the aggregate sentence and non-parole period: at [96]-[100]. CMB v Attorney General for the State of New South Wales (2015) 256 CLR 346; [2015] HCA 9 applied. (4) The respondent was re-sentenced to an aggregate sentence of 15 years imprisonment commencing 5 November 2021 and expiring on 4 November 2036, with a non-parole period of 10 years commencing 5 November 2021 and expiring on 4 November 2031.

[6]

Domestic violence offences

The domestic violence offences took place on 17 September 2021. The respondent was 20 years old at the time, and Ms Chalmers was 19 years old. They had known each other since the respondent and Ms Chalmers were approximately 12 and 11 years of age respectively, and they had been in an intimate relationship for some five years before the domestic violence offences.
In April or May 2021, Ms Chalmers discovered she was pregnant. When Ms Chalmers told the respondent about her pregnancy around that time, he told her to "get fucking rid of it", referring to the foetus. The respondent continued to pressure Ms Chalmers to terminate her pregnancy. She told him on several occasions that she did not need him to be there for her and that she could raise the baby by herself.
The Agreed Facts extracted a number of text message exchanges between the respondent and Ms Chalmers. The first extracted exchange was dated 11 June 2021: "Offender: Leticia I don't know what to say to you Offender: An I really can't believe u are doing this Offender: Yous my own powers against me Offender: Using Offender.: Fucken answer bro Offender: I really never knew the person u really are Offender: EVIL Offender: To do this to some1 Offender: Is fucken evil Offender: No other words Offender: Evil Offender: I don't understand Offender: Leticia u will make my god curse me Victim: you telling me to hove an abortion is fucking evil, something that will affect the rest of my life, fuck you never contact me, and trust me i will never get over what you've just said to me (...)"
The second exchange was dated 25 June 2021: "Victim: (..) and do not take offense to if i don't reply. this is ME time and i'm taking it wether it suits you or not. Offender: yeah will that's the problem with u, you hove no one on top of you you think ur above all and its your word or nothing know that I'm your fucking husband an what ever I say goes Offender: no else Offender: An if you loved me the way I say u do l wouldn't need to be telling u this Offender: But I'm telling u now Offender: I don't care if it kills you Offender: What I fucking say goes Offender: Even if it's a fucking Abortion Offender: I'm the man Offender: With the cock an balls Offender: Not you Offender: So understand that Offender: I don't care what it takes"
The third exchange took place on 14 July 2021: "Offender: U haven't spoken to me in a hole day for what Offender: FOR WHAT Offender: Blocked me on everything for what Victim: because your asking me stuff that you know isn't going to result in the answer that you wont and with how much you've done to me since you've known, I already know what your getting at and it's just not worth it Offender: you obviously don't know shit what I'm getting at Offender: All l asked was how far are you into your pregnancy Victim: the same question you've asked me everytime you've told me to go and get an abortion. Victim: You know what, your right, was good talking. Good day. Offender: Your so fucked"
On 10 September 2021, the respondent and Ms Chalmers were married under Islamic law, when she was approximately 19 weeks pregnant. On 16 September 2021, the respondent texted Ms Chalmers' mother to say that he would make Ms Chalmers' life a "living misery" if she proceeded with a gender reveal party on 17 September 2021 without him and his family. He did not want the gender reveal to take place and texted Ms Chalmers: "make sure it doesn't happen tomorrow."
The offending occurred on 17 September 2021. Ms Chalmers was 20 weeks and 3 days pregnant. She knew the gender of her child and was expected to give birth on or around 22 January 2022.
The respondent texted Ms Chalmers numerous times that day, requesting to speak to her before the gender reveal party. She did not want to see the respondent but eventually relented, texting: "I'll leave my house in 10 one thing out of line and I'm gone". Ms Chalmers arrived at the respondent's house at 1:34pm. He was the only person home at this time. After greeting the respondent and sitting in the lounge room, Ms Chalmers told the respondent that she was going to proceed with the gender reveal party whether or not he agreed to it, and they began arguing. The respondent said repeatedly that Ms Chalmers was "sick", in the sense of being mentally unwell. After some time, they moved upstairs and then returned downstairs, where they began to argue again.
Ms Chalmers messaged her sister, requesting her sister to ring and give Ms Chalmers an excuse to leave the respondent's home. When her sister did as she asked, the respondent insisted that Ms Chalmers put down her phone. After sitting in silence for a time, the respondent asked Ms Chalmers to hug him. When she refused, the respondent kept insisting. Ms Chalmers told him that they were not on good terms and she did not want to be near him.
Ms Chalmers then said to the respondent that she needed to leave to go see her mother. He became angry, asking why the gender reveal party had to happen that day. The respondent and Ms Chalmers moved to the lounge room at the front of the house, and Ms Chalmers said that she was going to leave as she needed to see her mother. The respondent took Ms Chalmers' car keys and mobile phone and refused to return them. Around this time, Ms Chalmers could still feel the foetus moving.

[16]

Domestic violence offences

The sentencing judge collectively described the domestic violence offences as "a very serious domestic violent one that occurred in a domestic violent setting that [aggravates] the offending". His Honour was satisfied that in the lead up to the offence, the respondent "demonstrated misogynistic and controlling behaviour, and a refusal to respect the victim's wishes and desire to have the child". His Honour also emphasised the respondent having taken Ms Chalmers' phone and car keys before he committed the offences.
In relation to count 3, the sentencing judge was satisfied that the respondent's motive was to kill the unborn child, having embarked "on a course of conduct to terminate the pregnancy by consent or otherwise" from the time he found out that Ms Chalmers was pregnant. His Honour characterised the statements he made, in text messages and otherwise, as reflecting "a concern only for himself and a total disregard for the wishes of the victim to go to full term of the pregnancy and birth of the child". His Honour referred in this context to what the respondent said when committing the offences: that he wanted the baby to die.
The sentencing judge found that the respondent's acts involved a "serious form of extreme violent behaviour, including the kicking of the victim to the stomach while she was lying on the floor, kneeling on her stomach, and punching her to that area" when Ms Chalmers was unable to defend herself. In accepting the Crown's submission that the offending should be placed "at the highest end of objective seriousness", his Honour took into account: "a) The maximum penalties for 25 years imprisonment b) The degree of violence and ferocity of attack without any provocation c) The seriousness of the harm caused occasioned with reference to the high degree of violence upon the victim d) The intention to cause a high degree of harm to the victim and kill the unborn child e) There was a degree of planning involved in persuading the victim to come to his home when no other family members were present"
As to the last factor, his Honour accepted that although the respondent had hoped to persuade Ms Chalmers to terminate the foetus and cancel the gender reveal party, if unsuccessful it was "obvious his capacity to achieve that objective would be possible if the victim were physically present and could be assaulted".
In relation to the Form 1 offence of intentionally choke with intent, the sentencing judge stated that it was "inherently, a very serious offence of violence". His Honour referred to Ms Chalmers' loss of consciousness and being woken by the respondent only for him to continue to kick her, the latter of which his Honour noted "further [aggravated] the objective seriousness of the offending". His Honour was satisfied that Ms Chalmers would have feared she was going to die. In his Honour's opinion, whilst this offence occurred in the context of the principal offence, it "underlies the ferocity of the offender's attack on the victim and substantially increases the penalty for the principal offence".
In relation to the offence of aggravated sexual intercourse without consent, the Crown submitted that his Honour would assess this on the "higher side" of objective seriousness. In making his own assessment, the sentencing judge took into account: "a) The circumstance and relationship between the victim and the offender b) The act on its character and degree of physical contact c) The nature of the sexual intercourse, including penetration"
The sentencing judge found that the respondent's act of placing his finger into Ms Chalmers' vagina on three occasions was "an extension of the violent assaults on the victim and a further demonstration of his ability to exercise power and dominance over the victim by a humiliating act". The fact that the sexual offending was not accompanied by any desire for sexual gratification did not impact the assessment in any meaningful manner, "except it was with the other offences committed over a discreet, terrifying period and conducted to ascertain whether the offender had achieved his ultimate objective of destroying the foetus". His Honour found that the respondent did this "without any consideration of the victim's desire to keep the child as her physical and mental well-being". An overall factor informing his Honour's assessment of the objective seriousness was that Ms Chalmers was deprived of her liberty, with the respondent only ceasing his offending when her body began to seize. The last offence "underlines the inherent violence associated, overall, with his behaviour towards the victim on this day".
In relation to aggravating factors, his Honour took into account that the offence was committed in the home of another person (Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(eb)). His Honour found that Ms Chalmers, being in a domestic relationship with the respondent, was entitled to a degree of expectation of safety and security in his home, and "in circumstances where he pressured her to attend his house to speak before the gender reveal party and lulled her into a false sense of security by suggesting they were going to speak about the gender reveal party that was to be held later that day".
The sentencing judge was also satisfied that the injury, emotional harm and damage caused by the respondent was substantial (Crimes (Sentencing Procedure) Act, s 21A(2)(g)). Without double counting that grievous bodily harm was caused in the loss of the foetus, his Honour took into account the additional emotional and psychological damage that Ms Chalmers experienced and continued to experience, which went beyond any harm normally expected of a victim for these types of offences. His Honour stated: "In making this assessment, I also take into account the circumstances surrounding the offence. The victim was subjected to a vicious, frenzied attack in which she feared for her life. I am satisfied from her Victim Impact Statement, that these offences and their consequences will have a lifetime impact upon her emotional and psychological well-being."
The sentencing judge took into account that at the time of offending, the respondent was on conditional liberty, two months after he agreed to be bound over to be of good behaviour pursuant to a 12-month Community Correction Order. His Honour also noted that the respondent's criminal record involved mainly driving and drug related offending, with the domestic violence offences reflecting a substantial escalation in seriousness. Apart from his criminal record, his Honour also noted the respondent's significant number of breaches of custodial regulations, which "demonstrate, again, his inability to comply with directions from authorities and the law". Each of those factors disqualified the respondent from any leniency, although his Honour did not take them into account as aggravating his offending.
In relation to mitigating factors, his Honour applied a 10% reduction to all sentences for the respondent's late guilty plea (Crimes (Sentencing Procedure) Act, s 25D(2)(b)). The sentencing assessment report assessed the respondent as having minimal insight into the impact of the offending, beyond the consequences to himself. His Honour considered this feature was underlined by the respondent's letter of apology, in which he claimed he was remorseful but referenced the loss of a friend, who was shot and murdered in his presence, as some explanation for his behaviour. His claimed remorse was also undermined by his history of uncontrollable and violent behaviour, of which the commission of the offences was another example. Despite these observations, his Honour said that he would "take his remorse and acceptance of responsibility as not only inherent in his belated pleas of guilty, but more significantly, that therefore, the victim was not required to give evidence at a trial during which she would have relived the extremely distressing assaults upon her and the consequential destruction of the foetus".

[17]

Drug offences

The sentencing judge took into account that the respondent was involved in over 100 supplies over 30 days (well above the requisite three supplies), supplying small quantities but totalling almost 80 grams, for financial gain and as part of a broad and coordinated group with a considerable degree of planning and coordination. His Honour was satisfied that the respondent had an elevated role, having regard to his directing others, reimbursing dissatisfied customers, referring to a delivery person as "my man" and being in possession of the Snowy drug-run phone at the time of his arrest. The sentencing judge referred to the Crown's submission that this offending was at or slightly above the midpoint of any discernible range of such offences.
His Honour described the further ongoing supply on the Form 1 as a similarly serious offence, although there were only 12 transactions involving 12.5 grams of cocaine. The primary motivation was financial gain and showed repetition, with the quantity and total value well above the requisite number of supplies. His Honour accepted the Crown's submission that the offence was below the middle of the range of objective seriousness but not at the very bottom. As to the other Form 1 offences (participate in criminal group and deal with property suspected of being the proceeds of crime), his Honour was satisfied that the criminality could be addressed in the penalty and overall offending and criminality of the principal offence.
The sentencing judge noted as an aggravating factor that the respondent was on conditional liberty at the time of the drug offences, subject both to bail and the Community Correction Order. His Honour assessed the offending as demonstrating a significant elevation in seriousness, calling for specific deterrence. As to mitigating factors, his Honour noted the late plea and was not satisfied that the respondent was genuinely remorseful. According to the sentencing assessment report, the respondent failed to recognise the scope of the offending and his insight did not extend beyond consequences to himself.
His Honour also referred to the sentences imposed on other offenders who participated in the R4W joint criminal enterprise. An offender who had some considerable similarity to the respondent in relation to the offences and participated in the Snowy drug-run received an aggregate sentence of three years to be served by way of an Intensive Correction Order, although he pleaded guilty at an early stage and had no prior convictions.

[18]

The respondent's subjective circumstances

The sentencing judge summarised in some detail the report of Dr Nielssen dated 12 October 2023. Dr Nielssen reported that the respondent's parents divorced when he was about 2 years old, and he had limited contact with his father until recent years when they worked together. His mother took him to a family therapist when he was 10 or 11 years old because of his behavioural problems. The respondent also reported being affected by an incident with a maths teacher who caught him smoking and required him to perform fellatio, which contributed to him avoiding school and affected him psychologically. He was frequently suspended from school and left formal education after year 8.
The sentencing judge noted Dr Nielssen's opinion that the respondent was suffering from post-traumatic stress disorder (PTSD) in partial remission, and substance use disorder in remission. Although the respondent said that he was diagnosed with attention deficit hyperactivity disorder (ADHD) during school, Dr Nielssen did not believe it was a disabling disorder involving impulse control in the absence of substance use, which required further treatment of any kind of medication.
His Honour noted that Dr Nielssen's report was supplemented by extensive reports from the respondent's school counsellors. His Honour accepted that a summary of that history showed an extremely difficult child who was uncontrollable at home and school. His intellectual ability was reported to be in the borderline range, and concerns were expressed about his safety and that of others. His Honour recorded the submissions on the respondent's behalf that such underlying factors were relevant to his response to his partner's pregnancy and his belief that he was ill-equipped to take on that responsibility.
The sentencing judge took into account the respondent's underlying mental health at the time of the offending but was not satisfied that it could reduce his moral culpability. The offending was a further example of his resorting to violence towards those near him. His Honour found that the respondent was inherently violent, and was incapable of accepting or respecting the desire of Ms Chalmers to have the child. His behaviour towards her was "a demonstration of his disrespect of women generally and specifically to the victim". The respondent's recent claim of being sexually assaulted by a teacher was not suggested to have had any impact on his offending, nor did Dr Nielssen suggest a causal connection between his mental health conditions and his offending. His being affected by drugs at the time of the offending was not a mitigating factor as it was self-inflicted. His Honour did not accept the excuses the respondent advanced for his offending, that he was hanging out with the wrong people and was not a violent person.
The sentencing assessment report assessed the respondent as a high risk of re-offending. His Honour noted that despite that assessment, there were some protective factors such as his supportive family, no prior convictions for violence or drug supply, unskilled employment available, his avoidance of contact with drug users since entering prison and completion of self-improvement programs in custody. Nonetheless, his Honour accepted the Crown's submission that, while commendable, the respondent had continued to offend whilst on remand. Of particular concern were two violent assaults in custody whilst the respondent was undertaking an anger management course; and an assault occasioning actual bodily harm after he had completed the course. His Honour could only make a guarded assessment of the respondent's prospects of rehabilitation.
The sentencing judge took into account the respondent's youth at the time of the offending, referring to affidavits from his sisters that demonstrated he was a relatively immature young man, as well as material that was regularly before the courts to the effect that the male brain is not fully formed until the age of 25 years. His Honour stated: "His youth and immaturity, to some extent, may explain his behaviour, although that needs to be looked at in the context of a long history of violence. I take into account it has been the Courts' attitudes, in relation to young offenders, to try and dissuade them away from criminality by granting to them a degree of considerable leniency in determining their sentences. That can be tempered, however, in view of serious criminal offences, of which the offences against Ms Chalmers are ones. It is a factor I will take into account in considering the need to emphasise his encouraging his rehabilitation and a factor in considering whether special circumstances should be applied."
The sentencing judge considered that the COVID-19 lockdowns that occurred whilst the respondent was in custody had significantly increased the onerous nature of his incarceration. There was no evidence of hardship to others.
In relation to comparative sentences, of the judgments to which his Honour was referred, the decision in R v King [2004] NSWCCA 444; 150 A Crim R 409 ("King") had the greatest similarity with the present facts in terms of the age of the offender and the type of offending. His Honour accepted that King could be distinguished as the respondent King's expression of remorse was rejected, there were no mental health issues, the offence was premeditated in cold-blood and there were none of the stresses extant on the respondent that were at issue in King. That case had also involved a disputed fact hearing on sentence although the respondent in King agreed, when giving evidence, that he wanted to kill the foetus. The respondent in King was of prior good character.
His Honour noted that in relation to offences of the kind for which the respondent was being sentenced, general deterrence must have a significant impact. His Honour took into account the respondent's underlying mental health issues but was not satisfied that this disqualified him from being an appropriate candidate for general deterrence. In relation to specific deterrence, his Honour was satisfied that there was "a need to give adequate weight to the criminality of his offending, to discourage him from any similar offending in the future, either in relation to offences against women or partners and the drug offences". Although rehabilitation was important and should be emphasised at a young age, that had to be taken into account in the context of the seriousness of the offending so as not to undermine general and specific deterrence.
His Honour considered that the respondent's behaviour needed to be denounced as "completely abhorrent to the community, particularly in relation to the offences against Ms Chalmers, which are horrific to any member of the community viewing these facts and listening to the Victim Impact Statement". His Honour also considered the harm done to the community by the distribution of drugs.
In relation to totality, his Honour considered that the domestic violence offences were committed over a discreet and limited period but were serious forms of the offending. His Honour was satisfied that there would be "some considerable concurrency", with an accumulation in relation to each offence to recognise their distinct criminality. The Form 1 offence that was attached to the principal domestic violence offence was serious and required some significance in increasing the penalty for the principal offence. His Honour also considered that the drug offences were significantly connected to the same type of offending and associated offending. His Honour was satisfied that there would be some concurrency and accumulation between the domestic violence offences and the drug offences to recognise the time the respondent spent in custody in relation to both and accumulation to recognise the distinct criminality of each set of offences.
The sentencing judge made a limited finding of special circumstances considering that the time the respondent spent in custody was made more onerous by the pandemic, and his youth. His Honour reduced the statutory ratio from 75% to approximately 66%.
In indicating the sentences I have set out at [2] above, in respect of the offences against Ms Chalmers his Honour said of the onerous nature of the time the respondent spent in custody as a result of the pandemic: "But for that factor, the indicative penalties would have been more significant".

[19]

Ground of appeal: the aggregate sentence is manifestly inadequate

Consistently with what I have set out above, the Crown accepted that the judgment of the sentencing judge was detailed and considered, and that there was no patent error in his Honour's reasons. The Crown also accepted that the sentencing judge had a broad discretion and should be allowed as much flexibility as was consonant with consistency of approach and with the applicable statutory regime: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 ("Markarian") at [27]. The Crown submitted that the sentence was nonetheless not only manifestly inadequate, but inadequate to a considerable degree. The result gave rise to an inference that there was a failure properly to exercise the discretion which the law reposed in the Court at first instance.
In R v VR [2024] NSWCCA 91 ("VR"), Hamill J provided the following brief overview of a number of the authorities that have considered a ground of appeal based on latent error in the exercise of the sentencing discretion, including: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 ("Lowndes"); Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54; and Markarian. His Honour stated: "[64] In considering a ground based on a latent error in the exercise of the sentencing discretion (manifest excess or manifest inadequacy), the appellate court must take into account that there is no single correct sentence and that the law allows a wide discretion to a sentencing judge to determine the appropriate sentence by their own instinctive synthesis of a wide number of factors, many of which pull in different directions. In the absence of an identifiable error, an appellate court will not intervene unless the sentence imposed is manifestly unreasonable, plainly unjust or wrong. An appellate court must not intervene merely because its members might individually have imposed a more - or less - severe sentence. The foregoing is a brief overview of a number of High Court authorities on the subject. [65] In assessing whether a sentence is, or is not, unreasonable or plainly unjust the Court must undertake its own synthesis of the relevant facts and circumstances of the individual case to determine whether the sentence is so far below (or above) a legitimate discretionary range that it must intervene to correct the error. In doing so, it might have regard to statistics and the outcomes in similar cases, but the limitations on such comparisons and comparators are well established. Each sentencing decision will turn on its own facts and circumstances and only limited guidance can be taken from statistics and judgments relating to other cases." (Footnotes omitted.)
The Crown submitted that when considered against the legislative guideposts of the maximum penalties, the indicative sentences specified for the domestic violence offences were manifestly inadequate. When considered against the respondent's subjective case, which the Crown submitted was fairly unremarkable, the manifestly inadequate indicative sentences in combination with apparent double-counting of the onerous conditions of the respondent's custody because of the COVID-19 pandemic, and an inadequate degree of notional accumulation, resulted in a manifestly inadequate aggregate sentence. The Crown did not directly take issue with the indicative sentence for the drug offences but challenged the manner in which the sentencing judge accumulated the sentences for the two distinct sets of offending.
The respondent submitted that full weight needed to be given to the experience of the sentencing judge and the detailed and considered nature of his Honour's reasons: Markarian at [77]-[78], Lowndes at [15]. The respondent emphasised four aspects of the respondent's subjective case, namely, his youth, mental health issues, his remorse, and the onerous nature of his custody during the pandemic. The respondent submitted that those factors led to his Honour properly reducing the indicative sentences for the domestic violence offences that would otherwise have been imposed.
The Crown submitted that an examination of the indicative sentences for the domestic violence offences revealed the sentencing discretion miscarried. It accepted as well-established that the indicative sentences were not themselves amenable to appeal, although they may be a guide to whether there is an error in the aggregate sentence; and that it did not necessarily follow from an assessment of indicative sentences as inadequate that the aggregate sentence was manifestly inadequate: JM v R [2014] NSWCCA 297; 246 A Crim R 528 at [40], cited more recently in R v Hill [2020] NSWCCA 197 at [105]. Nonetheless, it submitted that in the present case there was a substantial disconnect between the objective seriousness of the domestic violence offences and the corresponding indicative sentences.

[20]

Consideration

From the moment the respondent found out about Ms Chalmers' pregnancy, his conduct was directed at achieving the objective of terminating it. The offending in which he engaged to achieve that objective was preceded by misogynistic and controlling behaviour, as was apparent from the text message exchanges extracted in the Agreed Facts. On the day of the offending, he lulled Ms Chalmers into a false sense of security in order to secure her attendance at his home, where she was entitled to expect some degree of safety and security. He pressured her to stay when she wished to leave, and then took her phone and her keys and positively precluded her from leaving before embarking upon the violent assault.
The sentencing judge assessed the assault occasioning grievous bodily harm as being at the "highest end" of objective seriousness. It involved a ferocious attack on Ms Chalmers with the intention of causing her a high degree of harm and killing the unborn child. After bringing Ms Chalmers to the floor, the respondent repeatedly kicked her to the stomach, kneeled on her stomach and punched her to that area, with Ms Chalmers unable to defend herself. The respondent then engaged in the conduct the subject of the Form 1, which his Honour recognised was itself a very serious offence of violence, choking Ms Chalmers until she lost consciousness, waking her by pouring cold water on her head, and then proceeding to administer further kicks to her stomach.
With Ms Chalmers still lying on the floor, screaming at him to stop and that she was bleeding, the respondent digitally penetrated her vagina three times in order to confirm his assault had achieved its objective of killing the foetus. This conduct was, as his Honour recognised, a further demonstration of the respondent's ability to exercise power and dominance over Ms Chalmers, occurring in the midst of an extremely violent assault. During the entire period, the respondent deprived Ms Chalmers of her liberty.
The sentencing judge found that the emotional and psychological harm to Ms Chalmers was substantial. Her articulate victim impact statement conveyed the impact of the domestic violence offences upon her. It included the following: "I am a qualified allied health worker and at the time of the offence, I was an enrolled nurse working a work placement at the sans private hospital. I prided myself in helping all in need. Now I struggle to even help myself. On that day, the accused not only stole the life of my unborn baby girl …, whom I was just over 5 months pregnant with, but he also robbed me of my human rights, my sense of security, and my will to live. … The physical and emotional trauma inflicted upon me was inhumane, as he assaulted me, sexually assaulted me, jumped on my stomach repeatedly, strangled me and traumatised me whilst holding me captive and against my will. I was already down and out whilst he continued to inflict his abuse more and more on my almost lifeless body, showing no remorse. He has left scars that time cannot heal. People may say that time heals all wounds, but in my reality, each passing moment only deepens the anguish I feel."
The Crown did not suggest that the sentencing judge's assessment of the degree of objective seriousness should bear a "discernible mathematical equivalence to the legislative guideposts": cf R v Kilic (2016) 259 CLR 256; [2016] HCA 48. Nonetheless, the Crown submitted that his Honour's findings regarding the objective seriousness of the domestic violence offences were not reflected in the indicative sentences. Having regard to the respondent's subjective case, I accept that submission.
The sentencing judge's findings on the respondent's subjective case did not counteract the seriousness of the domestic violence offences to any significant degree. As I have noted above, the respondent received a limited discount for his late guilty plea. He had a criminal record which was limited but which, together with his being on conditional liberty at the time of both sets of offences, did not entitle him to any leniency. When the domestic violence offences were committed, the respondent was on conditional liberty in the form of a community correction order; and at the time of the drug offences he was, in addition, on bail for the domestic violence offences.

[21]

The respondent's youth

Taking in turn the subjective factors to which the respondent gave emphasis, starting with his youth, it was the case that he was 20 years old at the time of the offending. The respondent emphasised his immaturity at that time, submitting that there was "abundant evidence" that this contributed to the commission of the domestic violence offences. The respondent referred in this context to text messages between himself and Ms Chalmers in which he said he cried when he found out that she was pregnant and that he was "just scared", that he was stressed, and that he was not ready to be a father. He also referred to the affidavit of his sister, who described him as incapable of raising a child at the time of the offences as he was "going through a rough phase", and had anger issues he was trying to work on. There was evidence in the latter respect that the respondent had responded well to group programs in custody.
His Honour found, and the Crown did not challenge, that the respondent was a relatively immature young man who was incapable of having a mature relationship with Ms Chalmers. However, whilst acknowledging that immaturity, his Honour accepted, consistently with sentencing principle, that the emphasis given to immaturity in young offenders and, concomitantly, to rehabilitation, needed to be tempered in light of the seriousness of the domestic violence offences. It has long been recognised that the weight accorded to rehabilitation over general deterrence and retribution "may be moderated when the young person has conducted him or herself in the way an adult might conduct him or herself and has committed a crime of violence or considerable gravity: KT v R [2008] NSWCCA 51 at [25]; cited with approval in Tamer v R [2020] NSWCCA 333 at [46]; see also R v M A [2004] NSWCCA 92; 145 A Crim R 434 ("M A"), cited in King at [164]. The pain, harm and indignity that the respondent inflicted on Ms Chalmers would have been readily apparent to him as a young adult: see R v Sharrouf [2023] NSWCCA 137 at [213].

[24]

Hardship in custody

The final factor that the respondent emphasised was custodial hardship, with his Honour finding that his time in custody was made more onerous due to the COVID-19 pandemic. As I noted above, the sentencing judge expressly observed that but for this factor the indicative penalties would have been "more significant". The lock-in days about which the respondent gave evidence pertained to a period between 4 January 2022 and 27 November 2022. As the Crown submitted, they did not happen every day, and the nature of the restrictions varied. Specifically in relation to lock-in days in late January 2022, the Crown noted that those days coincided with the respondent otherwise being confined to his cell as punishment for a custodial infringement. More pertinently, without challenging that the respondent had less freedom, the Crown emphasised that there was no evidence that his mental health suffered as a result. Rather, the respondent had participated in a group counselling program during this period which he described as "very helpful", and he told Dr Nielssen that over the course of his two years on remand his PTSD symptoms declined.
This Court recognised in McKinnon v R [2020] NSWCCA 106 ("McKinnon") that the absence of social and family visits due to the pandemic is a relevant consideration in the sentencing exercise: at [32]. The Court in McKinnon also cited Scott v R [2020] NSWCCA 81, on which the respondent relied, as authority for the proposition that the more onerous conditions of incarceration due to the pandemic should be taken into account in sentencing. True it is, as the respondent submitted, that for a 20 year old man, lockdowns for 24 hours per day or a half day, and restricting family visits, substantially increased the hardship of his custody during that period. It may also be the case that even if his mental health conditions were not exacerbated specifically, those aspects of his incarceration caused him to experience stress and anxiety in the enclosed prison environment.
However, making an allowance for the onerous conditions of the respondent's custody in 2022, the indicative sentences for the domestic violence offences are unduly lenient having regard to their objective seriousness. It must be remembered that his Honour found that the s 33 offence fell at the highest end of objective seriousness. Accepting the respondent's submission that an indicative sentence (adding back, notionally, the 10% discount) of 11 years and 8 months with a non-parole period of 7 years and 9 months is not particularly lenient, it is not consonant with the level of objective seriousness that his Honour found. That is highlighted by the facts of the Form 1 offence, accompanied as it was by the respondent's chilling statement to Ms Chalmers ("I want … the baby to die") and which his Honour accepted must significantly increase the sentence for the offence.
The indicative sentence for the sexual assault offence was also, in my view, unduly lenient. Having regard to the assault and choking to which Ms Chalmers had been subjected immediately prior to its occurrence, the undiscounted indicative sentence (again, notionally adding back the 10% discount) of 2 years and 9 months with a non-parole period of 22 months did not reflect the callously indifferent violence that the respondent inflicted on Ms Chalmers in digitally penetrating her vagina to confirm that he had succeeded in his aim of killing the foetus.

[25]

Totality, accumulation and parity

The respondent submitted, relevantly to totality, that the s 61J offence was intrinsic to the s 33 offence. That submission is not without force. Responsively, however, the Crown cited the joint judgment in Nguyen v R (2016) 256 CLR 656; [2016] HCA 17 at [64] (Gageler, Nettle and Gordon JJ), where their Honours observed that generally speaking, "the imposition of less severe individual sentences may call for a greater degree of accumulation in order to reflect total criminality whereas more severe individual sentences may necessitate a greater degree of concurrency". The essence of the point the Crown was making on accumulation was that the manifest inadequacy of the ultimate sentence was contributed to by the degree to which his Honour notionally accumulated inadequate indicative sentences for the domestic violence offences, and, then, the drug offences.
The respondents noted that there was no challenge to the sentencing judge's indicative sentences or the objective seriousness of the drug offences. While that is correct, as I noted above the Crown relied on the limited accumulation of the sentence for the drug supply offences and the domestic violence offences as supporting the conclusion of manifest inadequacy in circumstances where the drug offending involved distinct criminality.
The respondent also referred, in relation to the drug offences, to the sentencing judge's consideration of the sentences imposed on co-offenders, with several co-offenders not receiving any sentence of full-time imprisonment and six receiving non-parole periods between 12 and 20 months with only two of the eleven co-offenders receiving non-parole periods of 2 or more years. The respondent submitted that the notional accumulation for the drug offences showed significant leniency and it was within the sentencing judge's discretion to show such leniency to give effect to the parity principle: Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [33]. That leniency on the basis of parity was a matter within the discretion of the sentencing judge may be accepted. However, as the Crown submitted, parity was of limited application in the present case in relation to the drug offences, in circumstances where other offenders were not treated as true co-offenders. Senior Counsel for the respondent below acknowledged as much, submitting in relation to other offenders for the drug offences that they were "not co-accused in the usual sense, whether they're persons charged from the same task force or operation".

[26]

Special circumstances

Without alleging error in the finding of special circumstances, the Crown raised a particular difficulty with the sentencing judge's approach to that issue insofar as his Honour relied on the impact of the pandemic, submitting that his Honour had effectively double-counted that factor to reduce the indicative sentences and to find special circumstances. The Crown accepted that it may well be appropriate to take into account a particular factor to reduce the head sentence and further, in a finding of special circumstances in determining the non-parole period. That acceptance was consistent with the authorities to which Hamill J referred in R v Stephens [2024] NSWCCA 170 ("Stephens") at [22]-[24] and with R v Zolfonoon [2016] NSWCCA 250; 262 A Crim R 285 ("Zolfonoon") at [70], on which the respondent relied. The Crown submitted, however, that where a factor was being taken into account in both of those respects, it was necessary for the process of analysis to travel beyond what has been undertaken in determining the head sentence, relying on Stephens at [195]-[197] (Chen J).
It is unnecessary for present purposes to decide whether the sentencing judge's reliance on the pandemic in the context of special circumstances involved double-counting. In circumstances where the Crown did not allege specific error in that respect, the question ultimately is whether the non-parole period was manifestly inadequate: see Zolfonoon at [70]. This was the Crown's ultimate submission, contrasting his Honour's statement that his finding was "limited" and the reduction in the aggregate non-parole period from 9 years (representing 75 per cent of the aggregate head sentence) to 8 years. The Crown submitted that the reduction of a non-parole period by a finding of special circumstances should not result in an overall non-parole period that does not reflect the seriousness of the offence and both specific and general deterrence. I consider that the finding of special circumstances in the present case contributed to a non-parole period that did not reflect "the minimum period that the offender must spend in gaol having regard to all the elements of punishment, including the objective seriousness of the crime, deterrence and subjective circumstances": M A at [33].

[27]

The decision in R v King

The Crown submitted that the nature of the offending in this case made it impossible to put forward comparable cases, but submitted that this was not essential to a finding of manifest inadequacy or the intervention of the Court: see Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 ("Munda") at [39]. I accept that submission.
The closest decision to the domestic violence offences was that of King, which was decided 20 years ago, and it was the subject of detailed submissions before the sentencing judge and in this Court. King involved a single offence contrary to s 33 of the Crimes Act. The respondent, also a young offender, engaged in a deliberate and sustained assault of the complainant in a successful attempt to terminate the life of her unborn child, at a similar point in her pregnancy as Ms Chalmers. The s 33 offences for which the respondent in King was sentenced carried the same maximum penalty as count 3, but did not, at the time attract a standard non-parole period. The respondent in King was initially sentenced to 10 years imprisonment with a non-parole period of 6 years and 6 months. His appeal against that sentence was dismissed. This Court upheld the Crown appeal and re-sentenced the offender to 12 years with a non-parole period of 8 years (a sentence of some 14 years and 1 month with a non-parole period of 9 years and 5 months before the discount of approximately 15% was applied).
Ultimately, my conclusion as to manifest inadequacy does not rest on any comparison with the decision in King, with the circumstances of King and those in the present appeal highlighting the need for caution that is often expressed in relation to comparative cases. As the respondent submitted, the respondent in King was cross-examined at the sentence hearing on matters later found against him, and it was key that he was found to have no remorse and the offence was premeditated. The respondent also noted that the respondent in the present case was required to serve some of his custody during the COVID-19 pandemic. On the other hand, as the Crown submitted, although the premeditation in King was greater, the assault in the present case was committed in the context of a fractious relationship, and the respondent behaved in a misogynistic and controlling manner in the lead up and during the offences. The assault in King also did not include a very serious choking nor the repeated sexual assault. Further, the respondent in King was slightly younger, had no prior criminal history, and was found to be of good character with good prospects of rehabilitation. He was also found to be remorseful, although that was afforded little weight in the circumstances.
Two other differences of some significance between the present case and King should be mentioned. The first is the enactment, since King, of the standard non-parole period for offences under s 33 of the Crimes Act. The second is that when King was decided, the element of double jeopardy had to be taken into account, by imposing on resentence the minimum sentence which should have been imposed at first instance: at [181]. That constraint no longer applies.

[29]

Residual discretion

To succeed in an appeal against the asserted inadequacy of a sentence, the prosecution must also discharge an onus that the Court should intervene to increase the sentence. As French CJ explained in CMB v Attorney General for the State of New South Wales (2015) 256 CLR 346; [2015] HCA 9 at [33]: "Descriptions of the discretion expressly so conferred on the Court of Criminal Appeal as 'residual' ought not to be misunderstood. To enliven the discretion, it is incumbent on the appellant in an appeal under s 5D to demonstrate that the sentence pronounced by the court of trial turned on one or more specific errors of law or of fact, or, in the totality of the circumstances, was unreasonable or plainly unjust. The discretion is residual only in the sense that its exercise does not fall to be considered unless that threshold is met. Once the discretion is enlivened, it remains incumbent on the appellant in an appeal under s 5D to demonstrate that the discretion should be exercised." (Footnotes omitted.)
The Crown submitted that there was no delay in notifying the respondent or filing the appeal; the Crown did not contribute to the manifest inadequacy of the sentence; and the respondent is not eligible for release to parole until 4 November 2029.
The decision in King is now over 20 years old. Although Senior Counsel for the respondent acknowledged that there is now a standard non-parole period in relation to s 33 offences, which was a factor that had changed the legislative landscape, he submitted that it was not argued below or on appeal that the sentence in King was itself manifestly inadequate, such that the Court needed to intervene to correct a pattern of manifestly inadequate sentences. The respondent advanced that submission in response to the Crown's invitation to engage the discretion of this Court to provide further guidance to sentencing courts in relation to the offenders for serious domestic violence offences in conformity with current societal attitudes towards such offences as indicated by the High Court: see Munda.
The existence of King does not in reality create a pattern of cases. However, it does not follow from the absence of comparative cases that there is no scope for the exercise of the residual discretion: see R v AD [2020] NSWCCA 275 at [158], [160] (N Adams J).
I am satisfied that the prosecution has discharged its onus in respect of the residual discretion and that the Court must allow the appeal and increase the sentence. I have reached that conclusion not so much on the basis that general guidance is required, but more because of the extremely grave objective circumstances of the domestic violence offences, which in my view compel the Court to intervene and increase the aggregate sentence and non-parole period.
I note that the respondent also submitted that a powerful reason against exercising the residual discretion was that any intervention with respect to the drug offences would disturb the parity between the respondent's aggregate sentence and the sentence imposed on the co-offender for the drug offences: Green at [40]. As I have addressed above, parity was not a significant feature before the sentencing judge (see [88] above), presumably because the respondent's case was unique in terms of the distinct sets of offending for which he was being sentenced.

[30]

Resentence

The respondent did not rely on any additional evidence in the event that this Court moved to resentence, nor did the Crown. I have set out in detail above the facts surrounding the domestic violence offences and the drug offences, and I have considered the respondent's subjective case. Although the Crown submitted that the sentencing judge's finding regarding remorse and insight was unduly generous, it was limited in its terms and I will adopt it and the other favourable findings made by the sentencing judge, including his Honour's finding that the respondent endured onerous custodial conditions for a large part of 2022 due to the COVID-19 pandemic.
Having regard to the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act, in relation to the domestic violence offences significant weight should be given to recognising the harm done to Ms Chalmers, together with denunciation of the conduct and deterrence. Denunciation and deterrence also apply in relation to the drug offences.
Viewed against the objective seriousness of the domestic violence offences, the applicant's subjective case is not strong, and it is weaker in respect of the drug offences, with the respondent being on bail at that time and the sentencing judge finding no remorse and no insight. Nonetheless, having regard to his youth, I would find special circumstances. Taking into account the 10% discount for the respondent's late plea, I would propose the following indicative sentences and non-parole periods: 1. for count 3, cause grievous bodily harm with intent to cause grievous bodily harm, taking into account the Form 1 offence, 13 years imprisonment with an indicative non-parole period of 8 years and 8 months; 2. for count 5, sexual intercourse without consent in circumstances of aggravation (deprivation of liberty), 5 years imprisonment with an indicative non-parole period of 3 years and 4 months; and 3. for the drug supply offences in respect of count 2, supplying a prohibited drug on an ongoing basis and the Form 1 offences, 3 years imprisonment.
Having applied the totality principle, I have arrived at an aggregate sentence of 15 years imprisonment with an aggregate non-parole period of 10 years. I would make the following orders: 1. Appeal allowed. 2. The sentence imposed in the District Court is quashed and in lieu thereof: 1. The respondent is sentenced to an aggregate sentence of 15 years imprisonment commencing 5 November 2021 and expiring on 4 November 2036, with a non-parole period of 10 years commencing 5 November 2021 and expiring on 4 November 2031. 2. The respondent will be eligible for release to parole at the expiration of the non-parole period.
DAVIES J: I agree with Mitchelmore JA.
CAMPBELL J: I agree with Mitchelmore JA.

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