NSWNSWCCA

R v Sabbah

[2025] NSWCCA 203

Court of Criminal Appeal (NSW)|2025-11-26|Before: Free JA at [1], N Adams J at [2], Sweeney J at [243].

View on NSW Caselaw

At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2025-11-26

Before

Free JA at [1], N Adams J at [2], Sweeney J at [243].

Catchwords

SENTENCING — Crown appeal against sentence — sexual and
physical domestic violence offences committed against wife —
assessment of
the objective seriousness of choking offences contrary to s 37(1A) of the Crimes

Source

Original judgment source is linked above.

Catchwords

SENTENCING — Crown appeal against sentence — sexual andphysical domestic violence offences committed against wife —assessment ofthe objective seriousness of choking offences contrary to s 37(1A) of the CrimesAct 1900 (NSW) — whether the sentencing judge erred in finding that theoffender had good prospects of rehabilitation —whetheraggregate sentenceand Community Corrections Orders are manifestly inadequate sentences —error established SENTENCING — Crown appeal against sentence— admissibility of new evidence relevant to the exercise of the residualdiscretionand re-sentence — inadequacy of sentence so marked as towarrant intervention — seriousness of domestic violence offending—offender re-sentenced

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: R v Sabbah [2025] NSWCCA 203

R v Sabbah [2025] NSWCCA 203 | Case summary | Zoe

FREE JA: I agree with N Adams J.
N ADAMS J: By notice of appeal filed on 26 May 2025, the Director of Public Prosecutions (NSW) (“the Crown”) appeals pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) against the sentences imposed on Nabeel Sabbah (“the respondent”) by David DCJ at the Sydney District Court on 28 April 2025.
On 20 November 2024, the respondent stood trial before a jury and David DCJ for ten sexual and physical domestic violence offences committed against his then wife. On 4 December 2024, the jury returned verdicts of guilty to each of the counts on the indictment. The offences for which the respondent was convicted were:
Four offences of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW) (counts 1, 2, 3 and 5). The maximum penalty for each offence was 14 years’ imprisonment and a standard non-parole (“SNPP”) period of 7 years’ imprisonment applied;
Four offences of intentionally choke without consent contrary to s 37(1A) of the Crimes Act (counts 4, 6, 8 and 10). The maximum penalty for each offence was 5 years’ imprisonment; and
Two counts of assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act (counts 7 and 9). The maximum penalty for each offence was 5 years’ imprisonment.
The offences were committed over a nine-month period from April 2022 to January 2023 and arose from nine separate incidents.
The sentencing judge additionally found the respondent guilty of two counts of common assault against the victim contrary to s 61 of the Crimes Act (sequences 7 and 9). These were related offences which were before her Honour pursuant to s 166 of the Criminal Procedure Act 1986 (NSW). The maximum penalty for each related offence was 2 years’ imprisonment.
On 28 April 2025, the sentencing judge imposed the following sentences:
In respect of counts 1, 2, 3, 5, 8, 9 and 10, the sentencing judge imposed an aggregate term of imprisonment of 5 years and 3 months with a non-parole period of 3 years and 3 months commencing on 29 November 2024. The non-parole period expires on 28 February 2028, and the aggregate term expires on 28 February 2030.
In respect of counts 4 and 6, the respondent was sentenced to a Community Corrections Order (“CCO”) for a period of 12 months, commencing on 28 April 2025 and expiring on 27 April 2026.
In respect of each of count 7 and sequences 7 and 9 on the s 166 Certificate, the respondent was sentenced to a CCO for a period of 9 months, commencing on 28 April 2025 and expiring on 27 January 2026.
In each case, the CCO will expire prior to the expiration of the non-parole period of the aggregate sentence.
In the notice of appeal filed on 26 May 2025, the Crown relied on the following grounds of appeal:

At approximately 1:00am on 23 January 2023, the respondent returned home after being out with his brother, Badeel. He got very close to the victim and told her, “My brother will die for you and I wish, I wish even if you want we can do it at, at my brother’s house”. The victim wanted to record the respondent asking her to sleep with his brother, so she had put her mobile phone next to her head and recorded the respondent. The respondent noticed that she was recording and began to argue with her, asking how she was recording. The respondent forcefully kicked the victim in the back and thigh with all his strength. These kicks caused the victim to fall off the bed (c****ount 9).
The respondent left the room and entered the victim’s son’s room. The respondent demanded the victim’s son to answer him, “What is this recording? What is this recording that she’s recording?” The respondent then returned to the bedroom he shared with the victim. The victim promised him that she just had the one recording. The respondent ran to the victim and used both hands to choke her. She hung halfway down the bed. The victim said that it felt like he used all his strength. The respondent was repeatedly saying, “I swear to god I’ll kill you” as he choked her. The respondent’s grip was strong on her neck, and the victim could not swallow her saliva. The victim felt like she was going to die. The respondent choked her for some seconds. The victim started coughing. Although she wanted to cry, she could not (c****ount 10). Following the assault, the victim felt “unbelievable pain”. When she moved, it caused pain in her back which reached her leg. The victim noticed that a day or two later, there was blueish bruising on her leg, which she photographed.
The victim gave evidence that her son and the respondent’s son came into the room after this incident and that her son asked, “What’s wrong with her?” (This evidence was set out in the Crown’s Annexure A, but it was not included in the sentencing judge’s summary of the facts.)

Given that ground 4 challenges the sentencing judge’s finding about prospects of rehabilitation, it is pertinent to set out the evidence addressing that issue.
The SAR contained material relevant to the respondent’s prospects of rehabilitation and risk of reoffending.
Under a heading “Attitudes” the following was noted:
Mr Sabbah unequivocally denied both sexually assaulting and committing acts of physical domestic violence against the victim.
He made attempts to apportion blame onto the victim by stating that he experienced erectile dysfunction and reported that the victim would compare him to her ex-partner when he was unable to perform sexually.
When asked what accountability he takes for the index offences, he stated “the only accountability is that I trusted her”.
Mr Sabbah suggested that his wife accused him of the offences due to his health status affecting his ability to financially support her “lavish lifestyle”.
Also in the SAR, under a heading “Domestic Violence” the following was noted:
Mr Sabbah denied committing acts of physical domestic violence against his wife.
He admitted to instances of “lashing out verbally” towards his wife but maintained that he was never physically violent. He appeared to lack an in-depth understanding of respectful relationships as he viewed verbal outbursts as “nothing out of the ordinary”.
He minimised his offending by claiming that the X-ray and medical reports did not show any bruising or broken bones and reiterated that he is not a violent person.
Also in the SAR, under a heading “Sex offending” the following was noted:
Mr Sabbah denied sexually assaulting his wife in addition to asking her to engage in sexual activity with his brother. He justified his denial by claiming the victim had coffee with his brother the day before he was arrested and asked “why would she do that” if the offences occurred.
He shifted blame to the victim, by claiming that she would often “joke” about having sex with his brother which made Mr Sabbah angry.
Also in the SAR, under a heading “Insight into impact of offending” the following was noted:
Given Mr Sabbah denied all aspects of his sexual and physical domestic violence offending, he was unable to demonstrate any insight into the impact on the victim.
Finally, under a heading “Risk assessment” it was noted that using the risk assessment tool Level of Service Inventory – Revised (LSI-R) the respondent was assessed as a Medum-Low risk of reoffending but that assessment was overridden by Community Corrections having regard to the STATIC 99 risk assessment. Accordingly, the respondent was assessed as having a T3/Medium risk of reoffending.
In the psychologist’s report prepared by Carlos Camacho dated 28 February 2025, the following was reported under a heading “Mental Status Examination”:

Unlike the other sub-sections of s 37, an offence under s 37(1A) does not “require proof of injury or any other outcome lasting after or arising as a result of the act of choking” (GS at [63]). In GS, this Court made a declaration that “intentionally chokes” within the meaning of s 37(1A) means “intentionally apply pressure to the neck so as to be capable of affecting the breath or the flow of blood to or from the head” (at [106]).
In support of its contention that it was not open to the sentencing judge to make the impugned findings of objective seriousness for the four choking, suffocation or strangulation offences (hereinafter the “choking” offence(s)), the Crown submitted that her Honour failed to have regard to material considerations and, in some instances, considered irrelevant considerations. Given that this ground of appeal challenges four separate findings and that some of the complaints made are common to all grounds, I propose to first address some general principles applicable to assessing objective seriousness for an offence contrary to s 37(1A) before turning to consider each of the four impugned findings in turn.
The offence created in s 37(1A) of the Crimes Act is a relatively new one. There has been little consideration in this Court of the relevant factors a sentencing judge should have regard to when assessing the objective seriousness of such an offence. I accept the following factors identified by the Crown to be a non-exhaustive list of relevant factors to be considered when assessing the objective seriousness of an offence contrary to s 37(1A):
The nature of the relationship between the respondent and the victim, including that the conduct is domestic violence perpetrated on an intimate partner;
The purpose or motivation for the conduct and whether the offence was committed in order to scare, coerce or control the victim;
The force of the choking, suffocation or strangulation including the degree to which the victim was deprived of the ability to breathe;
The duration of the offending;
Any circumstances of humiliation or degradation accompanying the act; and
Whether the offending caused any symptom or injury that persisted after the conduct ceased.
As for factor (4), the duration of the offending, it is pertinent to note that the offence created by s 37(1A) does not have as an element that the choking is so severe that it causes the victim to lose consciousness or be rendered insensible or incapable of resistance. That is an element of the more serious offence caught by s 37(1) of the Crimes Act. Thus, the offence created by s 37(1A) captures offending where the degree and duration of the force, even at its most severe, falls short of causing the victim to lose consciousness, be rendered insensible or become incapable of resistance.
It follows that if a victim describes being unable to breathe (as the victim did for count 8) or unable to swallow her own saliva (as the victim did for count 10), that is conduct which falls towards the more serious end of objective seriousness of the offence contrary to s 37(1A). Once the victim is rendered incapable of resisting, for example, then the offence falls into the more serious category of an offence under s 37(1). Similarly, given that a person can lose consciousness from choking in a relatively short period of time, the fact that the choking was only for a matter of seconds does not mean that it is not a serious example of this offence if, for example, the degree of force was severe.
It was submitted on behalf of the respondent that an offence under s 37(1A) could “in theory” include conduct that renders the victim unconscious, insensible or incapable of resistance (the consequences specified for an offence under s 37(1)) in cases where the mental element falls short of recklessness (an element of s 37(1)). It was ultimately conceded, appropriately, that this could only arise in very rare cases. Senior counsel for the respondent made the following submissions: [1]

As for the context in which the choking occurred, the fact that an offence contrary to s 37(1A) occurred in the context of a domestic relationship is a highly relevant factor. When an offender exerts pressure with both hands to a victim’s throat, that victim becomes powerless to the offender and is cognisant that the offender could end their life at any moment by restricting their breathing. For a person to commit such a potentially dangerous act as a means of control over their domestic partner is a serious abuse of trust and a betrayal. As the second reading speech clearly stated, the new offence was created specifically with domestic violence offending in mind.
Her Honour made no reference to the domestic nature of the relationship between the respondent and the victim when assessing the objective seriousness of any of the four choking offences. Senior counsel for the respondent disputed this by identifying the separate portion of the sentencing remarks in which her Honour noted at the outset that the choking offences were “domestic violence related” (at [10]). The respondent also relied on the fact that the sentencing judge observed that she would take into account “all the facts and circumstances of the case” when assessing objective seriousness (at [49]). I have extracted those passages above at [53].
It is to be accepted that her Honour noted the need for general deterrence when sentencing for domestic violence offending generally at the commencement of her reasons, but she made no reference to the nature of the relationship between the victim and the respondent when assessing the objective seriousness of each choking offence. Even when her Honour’s reasons are considered as a whole, I am not satisfied that her Honour appreciated the significance of the relationship between the respondent and the victim to the assessment of the objective seriousness of each of the choking offences.
I turn then to consider each of the four findings in turn.

Her Honour made no reference to the fact that the act of choking, which established count 4, was accompanied by the throwing of a hairbrush at the victim nor to the fact that the respondent covered her mouth and persisted in continuing to choke the victim despite her attempts to move away from him.
No reference was made to the motivation for the conduct. The respondent choked the victim because she did not want to go to a social event with his brother. His motivation was to scare, coerce or control the victim. Nor was any reference made to the fact that she said she could not breathe. Although the victim’s evidence was that her neck was red when the respondent removed his hands, the sentencing judge was not satisfied that the offending was such as to cause redness or soreness.
After this first act of choking the respondent said words to the effect of, “Sorry, I didn’t mean to choke you. You made me angry”. I accept the Crown submission that the sentencing judge erred by taking this “apology” into account to reduce the objective seriousness of the choking. There are a number of difficulties with this finding by her Honour. First, the fact that after an offence of domestic violence an offender apologises to the victim may be a mitigating factor on sentence in that it could establish remorse, but it does not reduce the objective seriousness of the offending. Secondly, apologising to a victim of domestic violence at the same time as telling her that it was her fault he choked her because she made him angry is not a genuine apology in any event; rather, it reflects the victim blaming catchphrase commonly associated with domestic violence offenders of, “look what you made me do”. Further, and related to the supposed apology, is the fact that the respondent showed no remorse at all, a matter I will consider further under ground 4.
I am satisfied it was not open to her Honour to find that the objective seriousness of count 4 was in the “low range” of objective seriousness.

Although it can be difficult to conclude that an offender has good prospects of rehabilitation when innocence is maintained, it seems to me that such a finding might be able to be made when an offender is remorseful for their conduct but denies liability for the offence. Another example would be where an offender has insight into how the victim might be affected by such conduct even though they maintain their innocence. A further example could be where the offender’s risk factors are clearly identified and able to be addressed. Each case will turn on its own facts but given the recognised difficulty in making such a finding in the face of a complete lack of remorse, there needs to be clear evidence upon which to base such a finding.
It is significant that at the respondent’s proceedings on sentence the Crown had submitted that the respondent’s lack of remorse and insight into his offending impacted adversely on his prospects of rehabilitation and risk of reoffending. The respondent did not submit to the contrary (as extracted above at [50]). That position is unsurprising given that the evidence before the sentencing judge relevant to such a finding was as follows:
The respondent showed no remorse;
The respondent attempted to blame the victim (in the SAR);
The respondent minimised the offending (in the SAR);
The author of the SAR observed that the respondent appeared to “lack an in-depth understanding of respectful relationships as he viewed verbal outbursts as ‘nothing out of the ordinary’”;
The author of the SAR observed that the respondent was unable to demonstrate any insight into the impact on the victim;
The respondent was assessed as having a T3/Medium risk of reoffending using the STATIC 99 risk assessment which overrode the LSI-R assessment of Medium-Low risk of reoffending;
The psychologist’s report did not address the questions of risk of reoffending or prospects of rehabilitation. It appears to have been prepared at a time prior to the verdict and simply noted that the respondent defended the charges;
The psychologist’s report focussed on how anxious the respondent was in custody, suggested that he undertake Cognitive Behaviour Therapy (CBT) to help with this and noted that the respondent was willing to undergo such treatment;
The psychologist described the respondent as having “normal” thought form and no “perceptual abnormalities”;
The respondent has no mental health issues, substance or alcohol dependence issues, or any deprivation in his background that could explain why he did what he did;
The respondent volunteered at his Mandaean Temple (including during the period of his offending);
The respondent was close to his family but, as the Crown submitted to the sentencing judge, he had their support during the time of the offending, and it did not act as a protective factor. In fact, after the victim complained to the respondent’s mother about his violence the conduct continued;
The respondent was unemployed at the time of the offending as he suffered from shingles, but he had been employed in the past; and
The respondent had no prior convictions and was of good character.
In finding that the respondent had “good” prospects of rehabilitation, her Honour found that the offending was "out of character" (at [104]). The adverse observations in the SAR were referred to but not addressed (at [106]). The assessment of medium risk of offending was noted but not addressed as was the respondent’s willingness to obtain treatment for his anxiety and depression in custody. Her Honour referred to the treatment for his custody induced anxiety as “rehabilitation programs” (at [110]).
At [101], her Honour observed that the psychologist “noted that Mr Sabbah has positive prospects for rehabilitation due to his willingness to improve his circumstances and manage his psychological challenges”. This was inaccurate; the psychologist had made no reference to the respondent’s prospects of rehabilitation either way, he had simply noted that the respondent was willing to obtain psychological help for his anxiety and depression caused by his (on the respondent’s view - wrongful) incarceration given that this anxiety had arisen for the first time after the incarceration.
In making the finding that the respondent’s prospects of rehabilitation were “good”, her Honour did not identify any risk factors or how they could be met. Although it is to be accepted that a finding of good prospects of rehabilitation could be made in the absence of any remorse, it is difficult to see how such a finding can be made when there is no identification of the relevant risk factors.
I am satisfied that it was not open to her Honour to make the finding she did, and I would uphold this ground as well.

I have already summarised the relevant principles above at [90]-[97].
In turning first to consider whether the indicative sentences for the four sexual assault offences are manifestly inadequate, it should be recalled that the maximum penalty for these offences is 14 years’ imprisonment and the SNPP is 7 years’ imprisonment. The respondent’s subjective case was not particularly strong and there was no evidence of remorse. I have already determined that the finding of good prospects of rehabilitation was not open. The respondent’s moral culpability was not reduced on either the principles derived from Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 (“De La Rosa”) or Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (“Bugmy”). Against that background, the respective indicative sentences were as follows.
As for count 1 (penile/anal intercourse knowing the victim was not consenting a few days after they were married), the offence involved the respondent thrusting his penis into the victim’s anus for approximately two or three minutes whilst she was crying so much that the respondent covered her mouth with his hand. The indicative sentence was 3 years’ imprisonment with an indicative non-parole period of 1 year and 10 months following a plea of not guilty. That is a significant departure from the statutory guideposts of the maximum penalty and SNPP. The finding of objective serious for this domestic violence offence was “below the mid-range”.
As for count 2 (penile/vaginal intercourse knowing the victim was not consenting a few days after they were married), this offence involved the respondent pushing himself onto the victim and having penile/vaginal intercourse for five to eight minutes. She was unable to push him off. The indicative sentence was 2 years and 8 months’ imprisonment with an indicative non-parole period of 1 year and 8 months following a plea of not guilty. That is a significant departure from the statutory guideposts of the maximum penalty and SNPP. The finding of objective serious for this domestic violence offence was “below the mid-range”.
As for count 3 (penile/anal intercourse knowing the victim was not consenting), the respondent had reassured the victim that he was not going to have sexual intercourse with her then inserted his penis into her anus causing her to cry and scream. The respondent gave her a bedcover to muffle her screams. The ordeal lasted eight or nine minutes. The indicative sentence was 3 years’ imprisonment with an indicative non-parole period of 1 year and 10 months following a plea of not guilty. That is a significant departure from the statutory guideposts of the maximum penalty and SNPP. The finding of objective seriousness for this domestic violence offence was “below the mid-range of objective seriousness” but more serious than count 1 because it lasted longer.
As for count 5 (penile/vaginal intercourse knowing the victim was not consenting), this offence involved the respondent putting his hands around the victim’s neck, pulling her by force, taking off her clothes and ripping her underwear off and forcing his penis into her vagina. It hurt and she was crying. The intercourse did not last long and he did not ejaculate. The indicative sentence was 3 years’ imprisonment with an indicative non-parole period of 2 years following a plea of not guilty. That is a significant departure from the statutory guideposts of the maximum penalty and SNPP. The finding of objective seriousness for this domestic violence offence was “below the mid-range”.
I note that the indicative sentences for counts 1 and 3 were identical notwithstanding the differences in the facts of offending and the sentencing judge’s finding that count 3 involved more serious offending than count 1.
Accepting that the appeal is against the aggregate sentence and not the indicative sentences, I am satisfied that these four indicative sentences were manifestly inadequate and may have contributed to a manifestly inadequate aggregate sentence.
The aggregate sentence was also imposed for count 8 (choking) and count 9 (AOABH), in which indicative sentences of 6 months’ imprisonment were fixed, and count 10 (choking), the indicative sentence for which was 8 months’ imprisonment. I have already found that the assessment of the objective seriousness for counts 8 and 10 was in error which may explain the fixing of these manifestly inadequate indicative sentences.
Not only am I satisfied that the indicative sentences are manifestly inadequate, I am also satisfied that the extent of notional concurrency in the aggregate sentence is excessive given the offending involved multiple episodes of serious sexual and violent offending. An aggregate non-parole period of 3 years and 3 months and a head sentence of 5 years and 3 months in no way reflects the serous criminality for which the respondent fell to be sentenced.
I would uphold ground 1.

The respondent deposed that he was born in Iraq in 1974, that he lived through the Gulf War in 1990-1991 which he described as harrowing experience which many of his friends did not survive, and that there was lack of food due to the sanctions imposed on Iraq which caused him to be hungry. People around him were starving. He fled to Syria in 2003 or 2004 where he worked in a supermarket while applying for a refugee status to various countries including Australia and Canada. Canada accepted him, and he and his first wife moved there as refugees in 2009.
The respondent’s solicitor, Elizabeth Logan, provided an affidavit dated 20 October 2025 with annexures including a report from clinical psychologist Diana Grujoska dated 7 October 2025. Ms Grujoska interviewed the respondent via AVL on 28 August 2025. He reported to her experiencing discrimination and persecution in his childhood and adolescence due to his Mandaean faith. He reported people throwing rocks at him, calling him a “dirty Mandaean” and refusing to touch food he handled. His father, who was a teacher, was unable to intervene for fear of repercussions.
The family left Iraq for Bulgaria in 1979 but returned to Iraq and relocated to Baghdad in 1981 in order to keep their property from being seized. He reported continued discrimination upon their return. He served in the army between 1996-2000 during which time he witnessed executions including women and children and reported that he continues to experience intrusive memories and nightmares as a result. He was also imprisoned for two months following a dispute with a high-ranking officer during which time he was assaulted, subjected to forced labour, provided inadequate food and made to dig holes under threats of being buried alive. The respondent reported his family emigrating to Australia in 2000 with him remaining in Iraq and working as a jeweller and then fleeing for Syria in 2003, where he ran a supermarket. He reported moving to Canada in 2009 where he worked as a barber before moving to Australia in 2022.
His medical history includes reported persistent ocular pain and sleep disturbance following contracting shingles while working as a barber in Canada. His mental health history includes reported longstanding psychological symptoms including persistent nightmares, flashbacks, intrusive thoughts, depressed mood and anxiety but denial of self-harm or suicidal ideation. His Justice Health records confirm that he has sought treatment for shingles-related issues and also note recommended monitoring for depression, mood swings, and possible suicidal ideation given his first-time custody status.
With respect to the psychometric assessment, Ms Grujoska administered PTSD Checklist for DSM-5 (PLC-5) and Depression Anxiety Stress Scales – 21 (DASS-21). Validated Arabic versions were used. It was noted that the PLC-5, a 20 item self-report measure assessing the presence and severity of post-traumatic stress, showed that his overall score supports a diagnosis of PTSD and that the DASS-21, a 21 item self-report instrument measuring the severity of symptoms across depression, anxiety and stress, showed that the respondent’s profile supports a diagnosis of Major Depressive Disorder current/severe, together with Generalised Anxiety Disorder.
In her summary, Ms Grujoska noted that the respondent’s conditions are highly disabling and significantly increase the hardship he experiences in custody compared to those without these disorders. In terms of treatment, Ms Grujoska opined that the respondent would require a structured multimodal approach for his PTSD and would benefit from trauma-focused cognitive behavioural therapy or eye movement Desensitisation and Reprocessing. For his depression and anxiety, he would benefit from cognitive behavioural therapy in combination with psychiatric input including a coordinated pain management plan for shingles related pain including ophthalmology access.

It was not suggested by the respondent that the evidence of his pre-existing psychiatric condition was “fresh” evidence. The respondent was aware of his experiences in Iraq and apparently did not tell any of his lawyers, the author of the SAR or Mr Camacho about them even though he was expansive on other topics. It is difficult to accept that neither his psychologist nor the author of the SAR asked him any questions about his life in Iraq. Mr Camacho’s report tendered to the sentencing judge was very detailed and spent some time describing the respondent’s symptoms including his feelings of anxiety and what was causing them. Nor did the character reference tendered on sentence from the close friend who knew the respondent in Iraq make any reference to the respondent suffering from any adverse events at that time.
A complicating factor is that Mr Camacho did not diagnose any symptoms of PTSD in his detailed report before the sentencing judge; only anxiety and depression. The new report from Ms Grujoska confirms Mr Camacho’s findings in relation to anxiety and depression caused by the custodial environment but goes further to state that the respondent also reported (for the first time) “a lifetime of trauma exposure” which has left him with “persistent nightmares, flashbacks, hyperarousal, avoidance of reminders, low mood, anxiety and poor concentration”. The respondent recounted his symptoms to Mr Camacho. Although he told Mr Camacho about the symptoms consistent with anxiety and depression, he made no mention to him of having “persistent nightmares, flashbacks, hyperarousal, [and] avoidance of reminders”.
Even allowing for “great latitude” in considering whether this evidence was available “by reasonable diligence”, I am unable to accept that this is fresh evidence. Despite the evidence being new, as Betts makes clear, there is flexibility to receive this evidence where it is necessary to do so in order to avoid unfairness to an offender.
Having considered the contents of the material closely, I am satisfied that the material is relevant to the question of the exercise of the residual discretion and would cause unfairness to the respondent if it was not admitted. I propose to admit it for that purpose at this stage.

Error having been established, it is necessary for the Crown to negate any reason why the residual discretion of this Court not to interfere should be exercised: CMB v Attorney General (NSW) (2015) 256 CLR 346; [2015] HCA 9 (“CMB”) at [34] (French CJ and Gageler J) and at [56] (Kiefel, Bell and Keane JJ).
Matters relevant to the exercise of the residual discretion include: any delay by the Crown in lodging the appeal (Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 (“Green and Quinn”) at [43]); whether the Crown has conducted the case on a different basis from that pursued at first instance (CMB at [65]); whether the respondent’s release on parole is imminent or has already expired (Green and Quinn at [43]); the effect of re-sentencing on the respondent’s progress towards rehabilitation (Green and Quinn at [43]); whether an increased sentence would constitute “tinkering” with the sentence (Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [62]); and/or whether re-sentencing would create a disparity with a sentence previously imposed upon a co-offender (Green and Quinn at [37]).
The respondent relied upon the following matters in urging the Court to exercise the residual discretion not to intervene in the event that error was established.
First, it was submitted that the fact that the Crown did not cause the errors complained of is a neutral factor.
Secondly, it was submitted that the Court would not interfere absent a finding of manifest inadequacy and that success on grounds 3 and/or 4 would be insufficient to warrant this Court’s intervention.
Thirdly, it was submitted that the Court would not intervene unless the inadequacy was assessed as being so marked as to warrant the Court’s intervention, particularly given the new evidence about his adverse mental state.
Finally, it was submitted that the evidence as to the respondent’s experiences in custody set out in his recent affidavit is relevant to the residual discretion citing R v Hudson [2024] NSWCCA 238 at [70]. The respondent emphasised the likely detrimental impact that an increased sentence would have upon his rehabilitation. At the hearing of the appeal, the Crown accepted that the respondent’s experiences in custody were relevant to the residual discretion.
The Crown submitted that the significant disparity between the sentence imposed, and the objective seriousness of the offences is such that the residual discretion should not be exercised. It was submitted that the intervention of this Court in re-sentencing was necessary to give effect to the purposes of sentencing in the context of domestic violence offending.
It was also submitted that guidance could be provided in this case as to sentencing for serious domestic violence offending and the factors relevant to the assessment of objective seriousness in respect of offences contrary to s 37(1A) of the Crimes Act. The Crown noted that the error of the sentencing judge was not caused or contributed to by the Crown at first instance, nor was there any delay in instituting the appeal.
I have considered these submissions, and I am satisfied that the Crown has established that the residual discretion should not be exercised in this matter.
There was no delay on the part of the Director in bringing on this appeal. The respondent’s current release date is not until 2028. No conduct of the Crown led to the manifestly inadequate sentence. I am satisfied that all four grounds of appeal have been established.
I accept that the respondent has had a difficult time in custody, and he continues to suffer from poor mental and physical health. Those are matters relevant to re-sentence but are not such as would lead the Court to decline to intervene to re-sentence the respondent. I am satisfied that the inadequacy of the sentence is so marked to amount to an affront to the administration of justice.

The difficulty with reducing the respondent’s moral culpability based on the new material is that other material already before the Court points to the fact that, prior to the commission of these offences, the respondent was a man of good character, always employed, respected in his local community, and a volunteer at his local temple. He was described by his friend Rabi Khaldoon, who knew him as a child in Iraq, as “empathetic”, demonstrating “compassion”, “peaceful”, “well respected”, a person who “avoids conflict” and having a “kind and respectful nature”. There is no evidence before the Court, to suggest that, prior to this offending, the respondent had no “moral compass”, that he could “not make behavioural decisions in accordance with prevailing social norms” or that he had “fewer emotional resources to guide his behavioural decisions”.
Further, although it is to be accepted that a person with a deprived background may not exhibit symptoms until late in life, the respondent’s continued denial of the offences means that the relevance of his experiences in Iraq to his offending behaviour remains unknown.
The significance of a finding of reduced moral culpability is that it may lead to a finding that the sentencing purpose of general deterrence carries less weight in this sentencing process. That reflects an understanding that a person who has reduced moral blameworthiness for an offence is not a good vehicle to be used as an example to deter others, for the reasons explained by Simpson J in Millwood. But even when the significance of general deterrence is reduced for a person who has had their moral culpability reduced, it may mean that other factors such as community protection and recognition of harm to the victim may have more significance.
A further difficulty with the submission that I would reduce the significance of general deterrence is that this is a domestic violence case. As the sentencing judge observed, general deterrence has particular significance in sentencing for domestic violence offences. Adamson J, as her Honour then was (with whom Garling J and I agreed), considered this issue in Kennedy v R [2022] NSWCCA 215 (“Kennedy”) at [43] as follows:

During the hearing of this appeal, it was suggested that the respondent’s recent diagnosis of PTSD might to some extent explain his violent outbursts to the victim, and be a potential risk factor for further offending. I do not propose to make such a finding on re-sentence for two reasons. The first is that it would be speculative on the basis already explained and secondly, because there is the risk that it might contravene the proviso in s 12(1) of the Criminal Appeal Act.
Otherwise, in re-sentencing the respondent, I would adopt the findings of the sentencing judge with the following exceptions.
First, I would re-assess the objective seriousness of the choking offences as being more serious than the findings made by the sentencing judge consistent with ground 3 being upheld. I have identified the factors relevant to my consideration of the objective seriousness of each of the choking offences under ground 3 above and do not repeat them here.
Although there is no requirement to assess the objective seriousness of an offence by reference to a notional range, (see for example the discussion in Dorsett v R [2024] NSWCCA 192 at [149]-[155]), I have adopted the sentencing judge’s assessment of objective seriousness for the other offences as they were not challenged by the Crown. They were all assessed by reference to a range, so I propose to adopt the same course in the interests of consistency. I would assess them as follows:
Counts 4 and 6: mid-range.
Counts 6 and 8: slightly above mid-range.
Secondly, I would not find that the respondent has “good” prospects of rehabilitation reflecting my finding under ground 4. Nothing in the new material tendered on re-sentence changes the import of the material I have summarised above at [32]-[47] in a manner favourable to the respondent. The recent diagnosis of PTSD does not assist the respondent on this discrete finding, but I have not had regard to it. I do have regard to the fact that the applicant will be older when he is released. Based on his absence of prior convictions, his risk appears to be confined to offences of domestic violence. The new evidence suggests that his shingles, which had caused him to be unemployed at the time of the offending, remains unresolved but on the other hand, he describes being employed in custody. I consider the respondent’s prospects of rehabilitation to be somewhat guarded.
Thirdly, I am prepared to accept that the respondent’s time in custody has been particularly onerous due to his mental state and his shingles diagnosis. The stress has been compounded by his immigration status and his disrupted connection to his family, particularly his elderly parents. I would mitigate the sentence on this basis.
Fourthly, although the sentencing judge imposed CCOs for five of the 12 offences (counts 4, 6 and 7 as well as sequences 7 and 9 on the s 166 Certificate), I propose to fix short indicative sentences for those offences and allow for considerable notional accumulation (in relation to sequences 7 and 9 in particular) for the reasons explained above at [170]-[172].
Finally, I consider it relevant to re-state some of the relevant principles when sentencing for serious domestic violence offences. The respondent’s motivation appears to have been a desire to control and dominate his wife. This Court has repeatedly noted the seriousness of such conduct, as discussed in Sharrouf at [180]-[186].
In R v Edigarov [2001] NSWCCA 436; 125 A Crim R 551, Wood CJ at CL said at 558 [41]:

R v Sabbah

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

HEADNOTE

JUDGMENT

Factual background

Incident 1 (counts 1 and 2 – sexual intercourse without consent)

Incident 2 (count 3 – sexual intercourse without consent)

Incident 3 (count 4 – intentionally choke without consent)

Incident 4 (count 5 – sexual intercourse without consent)

Incident 5 (counts 6 and 7 – intentionally choke without consent and assault occasioning actual bodily harm (“AOABH”))

Incident 6 (sequence 7 on the s 166 Certificate – common assault)

Incident 7 (count 8 - intentionally choke without consent)

Incident 8 (sequence 9 on the s 166 Certificate – common assault)

Incident 9 (counts 9 and 10 – AOABH and intentionally choke without consent)

Proceedings on sentence

Prospects of rehabilitation

Submissions before the sentencing judge on rehabilitation

Remarks on sentence

Findings on objective seriousness

Counts 1 and 2

Count 3

Count 4

Count 5

Count 6

Count 7

Sequences 7 and 9 on the s 166 Certificate

Count 8

Counts 9 and 10

Aggravating factors

Mitigating factors

Subjective circumstances

Mental and physical health

Prospects of rehabilitation and risk of reoffending

Totality

Standard non-parole period

Special circumstances

Sentences imposed

Crown appeals: Principles

Grounds 3 and 4: Patent error

Ground 3: The sentencing judge erred in the assessment of the objective seriousness of counts 4, 6, 8 and 10.

Count 4

Count 6

Count 8

Count 10

Conclusion: Ground 3

Ground 4

Crown submissions

Respondent’s submissions

Consideration: Ground 4

Ground 1

Crown submissions

Respondent’s submissions

Consideration: Ground 1

Ground 2: Counts 4, 6 and 7

Crown submissions

Respondent’s submissions

Consideration: Ground 2

Conclusion as to error

“New” evidence

The new evidence

Admissibility of new evidence

Respondent’s submissions

Crown submissions

Consideration: “New” material

Residual discretion

Re-sentence

Findings sought by the respondent

Orders

Endnote

Parties

Legislation Cited (4)

Cases Cited (17)

Cited By (2)