R v Sharrouf [2023] NSWCCA 137 | Case summary

R v Sharrouf [2023] NSWCCA 137 | Case summary | Zoe

[27]

First report of Dr Calvin dated 30 January 2020

For the purposes of the trial before Ingram SC DCJ, the respondent was assessed on 16 January 2020 by Dr Calvin, a forensic psychologist. At the date of this assessment, the respondent had not been charged with the present offences.
In recounting his personal history to Dr Calvin, the respondent said that he had a reasonable childhood but he struggled during high school where he was often bullied and was unable to cope. He left school and started using cannabis. Around the same time, there were issues at home and his parents separated when he was 14. The respondent said he worked in odd jobs in construction and as a taxi driver. He had a work related back injury in 2011.
His marriage to his second wife, who he met in Lebanon, was an arranged marriage. The first few years of married life were difficult as they had significant financial stress and his psychiatric illness took a toll on his family life.
Dr Calvin noted that the respondent reported being diagnosed with schizophrenia approximately 9 years earlier. He described his main symptoms to include command type auditory hallucinations and persecutory delusions. He said that the voices started when he was 13 years old. During his teenage years, he attributed his symptoms to drug use. The respondent told Dr Calvin that he had not understood his symptoms until he consulted a psychiatrist, Dr Ali, who made the diagnosis of schizophrenia and he had been on an antipsychotic ever since.
The respondent related that he first used cannabis at the age of 13, when he had auditory hallucinations and continued until the age of 17. At age 18, he started drinking alcohol, drinking up to a bottle of spirits daily for two to three years. He said that at the age of 24, he became religious and stopped all substances. He claimed to have remained abstinent from all drugs for 8 to 9 years prior to the assessment.
Dr Calvin was of the opinion that the respondent had an established diagnosis of schizophrenia. Dr Calvin stated "[i]t appears that the [respondent] had psychotic symptoms from the age of 13 and remained untreated until the age of 24 when he was prescribed an antipsychotic by a psychiatrist Dr Ishrat Ali." The respondent's main barrier to recovery had been his erratic compliance with antipsychotic medication and he had relapsed into psychosis and developed delusional ideas about his second wife.
Dr Calvin noted that since the respondent's incarceration, his mental state had improved, and his psychotic symptoms had reduced to a manageable extent. The respondent required ongoing specialist care with assertive follow-up in the community, and was often non-compliant with his antipsychotic medication.

[32]

Some findings by the judge

The judge's findings as to objective seriousness and the indicative sentence starting points are summarised in the table above at [6].
The judge found in respect of the offences which occurred within the residence of the victim and respondent, an aggravating feature was that the offences were committed in the home the victim shared with the respondent. His Honour observed that although some of the offences were grouped as part of a single incident, every individual offence was of short duration. His Honour said that none of them "represented planned conduct but were all rather spontaneous representations of the [respondent's] perverse perception of his marital entitlement". [7]
The judge said the offences were committed not by a stranger but within a "marriage; at least insofar as it was recognised as such by the victim and the [respondent]". This was neither a mitigating nor an aggravating factor, but rather a matter proper in assessing the gravity of the offending. His Honour said that the offences were "domestic violence offences". [8]
Another salient feature of all of the offending, the judge said was that the respondent and the victim were both very young. When they "married", the respondent was aged 20 and the victim was 18-19 years of age. They had never lived independently and there was a "degree of apparent immaturity in them both", which was particularly obvious in the respondent. Both came from a religious background, which his Honour observed "seems to have informed, rightly or wrongly, various assumptions each held about matrimonial obligations, roles and behaviour." [9]
The judge rejected the Crown's contention that the offences were aggravated by having been committed in breach of a position of authority. However, his Honour observed that the offences did reflect the respondent's disdain "at least in those moments, for the rights and feelings of his wife." [10] His Honour said that many of the offences, if not all, involved an affront to the victim's dignity which his Honour found was "more likely reflective of an immature and insecure (if not also disturbed) personality on the part of the [respondent]". [11] His Honour found that much of the offending was "calculated or intended to try and dominate and control the victim". [12] This was another factor to consider in assessing the gravity of the offending.
The judge observed that the victim's assumptions around the practice of her faith tended to enhance her vulnerability. His Honour said that her faith, isolation, age, and lack of maturity appeared to have kept her from escaping, or reporting at the time, the abuse she was experiencing. His Honour described the victim as being "alone, isolated and vulnerable". [13]
His Honour observed that domestic violence of any kind, particularly where it involved repeated episodes over a sustained period as was demonstrated by the respondent's offending, must be emphatically denounced. His Honour said that general deterrence has a corresponding role to play, "diminished to some extent in the present case perhaps by a combination of the psychiatric compromise of the [respondent], the substantial delay between the conduct and the resolution of the matter and the youth and immaturity of the [respondent] at the relevant time." [14]
The judge said that the sentencing exercise must also give substantial acknowledgement to the victim. His Honour then said: "Occurring as it did at a time when she was isolated and vulnerable, and just barely an adult, my impression is that it is an understatement to say that the consequences to the victim have been difficult, as one might expect, and enduring." [15]
The judge found that many of the offences involved conduct that was offensive, degrading and sometimes cruel towards the victim. His Honour said there was evidence which pointed strongly to the likelihood that it was "not conduct characteristic of the way the [respondent] conducted himself subsequently as a partner and as a father, and as a member of the community, at least when he has been medication compliant". [16]
The judge said that the respondent had a very limited criminal history which did not deny the respondent "the extension of some leniency". [17]
His Honour noted that at the time the respondent was charged with domestic violence offences committed on 1 and 2 July 2019 against his then wife, he was 33 years old. Before being charged, he was residing at his mother's home with his wife and their four children. He had been receiving a Disability Support Pension for 7 years, after being diagnosed with schizophrenia. His Honour recounted that the respondent's main symptoms included command type auditory hallucinations and persecutory delusions. On the respondent's own report, the voices started when he was 13 years old.
The judge said that the respondent had for much time since being diagnosed, been on medication. The respondent did not understand these symptoms until he was diagnosed.
After referring to the reports of Dr Calvin and Dr Reading, the judge determined that "in the absence of expert evidence, it is impossible to reach any definitive conclusion concerning a causal connection between any psychological or psychiatric compromise on the [respondent's] part and the offending." [18]
However, his Honour was satisfied that the whole of the evidence pointed to it being more likely than not that the respondent would have experienced some psychiatric symptoms during his relationship with the victim. His Honour noted: "Aspects of his offending behaviour seem to reasonably attract a conclusion that they are consistent with the presence at the time of the later diagnosed schizophrenia. Furthermore, whether on that account, or on account of his youth and immaturity, or the developmental normalisation of controlling, violent domestic behaviour, it seems reasonably open to conclude, as I do, that it is more likely than not that the [respondent] was less than fully aware of the consequences of his actions at the time of offending. This serves to diminish, to some extent, his moral culpability. Correspondingly, it reduces the significance that should be given to general deterrence and denunciation." [19]
The judge observed that the fact the respondent continues to deny the offences and maintains they have been fabricated represented "a continuing failure to appreciate the nature and consequences of his conduct". [20]
The judge said that: "Even a reasonable possibility, if not indeed the substantial likelihood as I find on the evidence, that the [respondent's] psychiatric compromise was operative to some extent at the time of the offending demands considerable caution in an approach to fix a penalty. This, taken together with the relative youth and demonstrated immaturity of the [respondent] at the relevant time, justifies substantial leniency that would not otherwise have been appropriate for offending of this kind." [21] (Emphasis added.)
The judge said that, whatever may have been the case during the period of offending, it was plain beyond doubt that the respondent now suffers from schizophrenia, which profoundly disturbs his capacity for self-regulation when left untreated. The judge found that even if his abnormality of mind was not causally connected to the commission of the present offences, it still remained relevant for sentencing purposes, stating "the [respondent's] well documented schizophrenia is relevant to and must have an ameliorating effect on his sentence." [22]
His Honour also found the substantial delay in the prosecution of the respondent to be another factor which attracted leniency in sentencing. [23]
His Honour further concluded that the respondent's election for trial by judge alone facilitated the administration of justice at "a time of immense difficulty occasioned by the COVID-19 pandemic", thereby affording a 5% discount on sentence as a utilitarian benefit. [24]
The judge referred to the respondent's "demonstrated psychiatric compromise" as suggesting the advisability of the respondent being subject to a period of extended supervision upon release. His Honour said that would ensure appropriate regimes of treatment and medication. His Honour "in addition" referred to the respondent's custody coinciding with the COVID-19 pandemic which had "notorious" custodial restrictions which more likely than not combined with the respondent's compromised mental health made the respondent's time in custody substantially more difficult than it otherwise might have been. His Honour then said: "These factors combine with the [respondent's] relative youth at the relevant times to compel a finding of special circumstances and support a substantial adjustment to the statutory ratio." [25]
The judge found that "the nature of the offending in the context of a marriage and reflecting the perverse dynamics of marriage, dictated by the aberrant behaviour within it of the [respondent], there is a sense in which all the offending can be characterised as part of a single continuous episode." [26] His Honour acknowledged the need to avoid a "crushing sentence", so as not to compromise any hope of resolution or management of the respondent's illness. His Honour further determined that it would be difficult to avoid substantial notional concurrence, as the accumulated total of individual sentences would likely far exceed the aggregate sentence that would be appropriate to impose. [27]
His Honour referred to the support of the respondent's treating team for comprehensive psychiatric rehabilitation, and that he was to be transferred to a mental health wing which would permit him to undertake courses and employment whilst awaiting a bed at the Forensic Hospital. His Honour found these to be "positive developments that augur well for his future prospects." [28]
The judge indicated the sentences in the table at [6] above and then imposed an aggregate sentence.

[33]

Crown Appeals

The principles relating to Crown appeals pursuant to s 5D of the Criminal Appeal Act were helpfully summarised by Hoeben CJ at CL in R v Barker [2016] NSWCCA 193 as follows: "[52] Crown appeals pursuant to s 5D of the Criminal Appeal Act 1912 must be brought for the primary purpose of this Court providing governance and guidance to sentencing courts. That requirement operates as a "limiting purpose" for such appeals and, by contrast with the Court's jurisdiction in sentence appeals brought by offenders, so circumscribes the jurisdiction of this Court on Crown appeal as to prevent intervention (other than on the ground that the sentence is 'plainly unjust' by reason of its manifest inadequacy) for the mere 'correction of error in the individual sentencing proceedings' Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462; R v Tuala [2015] NSWCCA 8. [53] Accordingly, in a s 5D Crown appeal which asserts some errors of sentencing principle (apart from the ground that the sentence is "plainly unjust") the Crown must: (i) Establish the existence of error(s) by the sentencing judge within one or more of the first four categories referred to in House v R [1936] HCA 40; 55 CLR 499 at 505 (R v Tuala at [99]); (ii) Identify the sentencing principle which is engaged by such errors: (R v Tuala at [99]); (ii) Establish that the sentence under appeal is manifestly inadequate: (Regina v Janceski per Hunt AJA at [25] with whom Spigelman CJ and Howie J agreed). … [55] Crown appeals pursuant to s 5D might also be brought for the purpose of this Court providing governance and guidance to sentencing courts where the sentence under appeal is so manifestly inadequate that it is 'plainly unjust' and is thereby likely to undermine public confidence in the proper administration of criminal justice in the sentencing of offenders: (Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [24]). Such appeals involve the fifth category of error referred to in House v R." [29]

[35]

Ground 1: His Honour erred in his assessment of the objective seriousness of counts 9, 16 and 26

In addition to the matters referred to by the judge which have been summarised at [123]-[127] above, when determining the objective seriousness of the offences, the judge said: "The ten to twelve more serious of the present offences, as measured by the applicable maximum penalties, were by and large all quite serious. That said, they were all offences committed spontaneously and, in many of the sexual offences, as emphasised in the [respondent's] written submissions on sentence, were committed recklessly rather than knowingly contrary to the will of the victim. All of the offences were committed by a young, immature individual. That said, it is difficult to escape the conclusion that, viewed only objectively, the sexual offences committed with knowledge are reasonably characterised as falling at least towards the middle of the range on the spectrum of conduct that might be caught by the relevant offence provisions. Some of them are accompanied by a degree of evident degradation of and disregard for the victim. The balance of the offences are reasonably characterised as falling below the mid-range, as the [respondent's] written submissions contended." [30] (Emphasis added.)
His Honour, after stating "[i]n addition to the features I have identified as having significance common to the assessment of gravity of most if not all of the offences…" went on to specifically consider counts 4, 12, 16, 27, 33 and 40 and to make an assessment of the objective seriousness of that particular offence. As to counts 16 and 26, the judge said: "Count 16 was one of the offences where I found actual knowledge, at least from the point where the victim verbalised her plea that the [respondent] stop. The offending was not associated with particular additional violence of the kind that characterised some of the offending, it was apparently of relatively short duration, but it did cause pain and distress to the victim. Again, I consider this offending to be below the mirdrange on the spectrum of conduct which might be caught by the relevant provision. Count 26 was another act of forced fellatio. There was a degree of degradation attaching to the conduct in that it proceeded in spite of the victims expressed revulsion in circumstances where there had just been penile/vaginal intercourse. Out of fear for the consequences otherwise, the victim complied reluctantly with what was effectively an order from the [respondent], and she felt "dirty, horrific and disgusting" whilst performing the act. The offending is below the mid-range." [31] (Emphasis added.)
His Honour did not make a specific reference to count 9.
The Director contended that the judge's observation that count 16 did not involve "particular additional violence of the kind that characterised some of the other offending" was of limited utility, as the infliction of actual bodily harm would have constituted a more serious offence. A further argument was that whilst a finding that the offence was of "short duration" was open, the respondent ceased the non-consensual sex not in response to the victim's distress, but because he had ejaculated. Further, while the duration of the offending was relevant, it is not ordinarily regarded as a factor that reduces the objective seriousness of the offence.
As to count 26, the Director pointed to this offence occurring about 6 months into the marriage and to the victim fellating the respondent, who the judge found knew that she was not consenting and she described feeling "dirty, horrific and disgusting".
The Director submitted that it was difficult to see how the general observation by his Honour that none of the offences were planned could mitigate an offence that was motivated by the respondent's desire to dominate and control the victim. The Director submitted that it was well recognised that domestic violence offences were typically not pre-meditated and the absence of planning had little, if any, significance.
The Director submitted that it was unclear how the judge's unreasonably lenient assessment of the objective seriousness of the offences was affected by the respondent's age but in the present offending, the absence of a significant age gap between the respondent and the victim was immaterial.
The Director submitted that counts 16 and 26 fell at least within the mid-range.
With respect to count 9, the Director contended that the judge appeared to have overlooked the gravity of the offence. The Director referred to the pursuit of the victim by the respondent and the injuries suffered as a result of the assault.
The Director did not challenge, as amounting to patent error, the judge's assessment of the objective seriousness of the remaining counts. However, in contending that the respondent's sentence is manifestly inadequate (Ground 3), the Director submitted that a number of indicative sentences are manifestly inadequate, falling far short of adequately addressing the objective seriousness of the offending.

[36]

Consideration

The Director accepted that the assessment of the objective seriousness of an offence is "quintessentially for the sentencing judge": Mulato v R [2006] NSWCCA 282 ('Mulato') per Simpson J at [46]. It has often been stated that it is an evaluative task undertaken by the sentencing judge having regard to a range of factors in the exercise of a broadly based discretion and this Court will be very slow to determine such matters for itself or set aside the sentencing judge's assessment: Mulato at [37]; Magro v R [2020] NSWCCA 25 ('Magro') at [29]; JG v R [2023] NSWCCA 33 at [93].
It must be remembered that in the present case, the respondent's trial has been by judge alone during which the victim and the respondent gave evidence. The difficulties inherent in this Court intervening with respect to the assessment of objective seriousness of offending are heightened where there has been a trial and the sentencing judge has been able to assess the evidence of a complainant and the offender in the witness box: Baines v R [2016] NSWCCA 132 per Basten JA at [15]; Magro per Gleeson JA at [29]. This must particularly be the case in a judge alone trial where the sentencing judge has delivered comprehensive reasons for his verdicts, which in this case his Honour provided in a sixty page judgment.
Furthermore, his Honour's sentencing remarks I have summarised and from which various passages have been quoted, are not to be looked at in isolation. At the commencement of his sentencing remarks, his Honour made it clear that the remarks which followed necessarily assumed familiarity with the content of his verdict judgment and an edited version of the Crown case statement which his Honour said were "an important foundation to my assessment of the objective gravity of the offending". [32]
The characterisation of the objective gravity of counts 9, 16 and 26 is reviewable in this Court solely on the principles stated in House v The King (1936) 55 CLR 499; [1936] HCA 40. As Gleeson JA explained in Magro at [31]: "The question is whether or not the particular characterisation which the sentencing judge gave to the circumstances of the offence was open to the judge: Mulato v R at [37], [46]-[47]. In order for this Court to interfere with the assessment made by the sentencing judge, error must be demonstrated in accordance with the principles in House v The King: House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40; see also Mulato v R at [46]; Attorney General for the State of New South Wales v DSF Constructions Pty Ltd [2019] NSWCCA 33 at [67]."
Counts 16 and 26 are offences contrary to s 61I of the Crimes Act. The judge was satisfied beyond reasonable doubt in finding the respondent guilty of count 16 that "from at least the point where the [victim] said 'no please, please, stop' that the [respondent] actually knew she was not consenting". [33]
In finding the respondent guilty of count 26, his Honour was satisfied beyond reasonable doubt that the victim was not consenting and the respondent actually knew that she was not consenting. [34] His Honour's assessment that the objective seriousness of these offences fell below the mid-range stands at odds with his earlier statements quoted at [150] above that "it is difficult to escape the conclusion that, viewed only objectively the sexual offences committed with knowledge are reasonably characterised as falling at least towards the middle of the range" and "[t]he balance of the offences are reasonably characterised as falling below the mid-range."
It is evident that his Honour placed some emphasis on all of the offences being committed spontaneously and being of short duration in his assessment of objective seriousness. All of the offences were domestic violence offences which the judge found "were all rather spontaneous representations of the [respondent's] perverse perceptions of his marital entitlement". [35]
How in these circumstances could the lack of planning reduce the objective gravity of the offending? As Adamson J (as her Honour then was) observed in Kennedy v R [2022] NSWCCA 215 at [51]: "… it is typical of offences of domestic violence committed by persons such as the applicant that they are not "premeditated". Thus, the lack of planning in this context is of negligible, if any significance."
This Court has observed that the short duration of a sexual assault would not ordinarily be considered as a factor which mitigates the objective seriousness of the offence: R v Daley [2010] NSWCCA 233 at [48]; Cowling v R [2015] NSWCCA 213 at [16]. In the present case, where the respondent's sexual offending was a repetitive feature in a violent domestic relationship, the short duration of an offence could not amount to a mitigating factor.
In the passage quoted at [151] above, the judge said that the offending in count 16 "was not associated with particular additional violence of the kind that characterised some of the offending." It is unclear to which offences his Honour was referring, however, the infliction of actual bodily harm at the time of, or immediately before or after the sexual assault would have amounted to an offence of aggravated sexual assault contrary to s 61J(1) of the Crimes Act.
Count 9 is an offence of assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act. Although in his sentencing remarks the judge did not specifically consider this offence, the judge referred to every individual offence being of short duration and being spontaneous. The respondent's offending in count 9 involved him chasing the victim and punching her to the face with a closed fist. She fell to the ground, losing consciousness. The injuries sustained included a broken nose with blood and chunks coming out of it. She experienced pain in her nose for 7 weeks. Neither the spontaneity of the offence nor its duration could reduce the objective seriousness of count 9. There is no standard non-parole period for a s 59(1) offence. The judge was not obliged to find where this offence lay in relation to a mid-range of objective seriousness: Sivell v R [2009] NSWCCA 286 at [32]; R v Field [2011] NSWCCA 13 at [49]. However, his Honour did.
Notwithstanding the advantage the judge had in characterising the objective seriousness of the offences, in my respectful opinion, the judge acted upon wrong principle and erred in finding that counts 9, 16 and 26 fell below the mid-range. The judge understated the objective seriousness of these offences.
This ground of appeal has been established.

[38]

Consideration

Counts 10 and 38 are offences of common assault contrary to s 61 of the Crimes Act; count 36 is an offence of assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act; and count 2 is an offence of indecent assault contrary to s 61L of the Crimes Act.
Shortly stated, count 10 involved the respondent repeatedly slamming the victim's head into the closed passenger side window of the car in an effort to extract an admission from her that she had put her name first on a lease application "on purpose". Count 36 involved the respondent striking the victim repeatedly on her legs with a rolling pin causing significant bruising. Count 38, which immediately followed the use of the rolling pin, involved the respondent sitting on the victim's hips and placing a pillow over her head, forcing it into a mattress a number of times. The victim felt like she was choking and feared that she would die if she did not answer the respondent's demands that she disclose what she was hiding from him. The indecent assault in count 2 involved the respondent kissing the victim so roughly that her lips bled. He then sucked her neck with such force that she was left with bruising.
All of this conduct was motivated by the respondent's desire to dominate his wife. He used violence in order to instil fear and to control her.
It is convenient to refer to some statements made by this Court, which emphasise the gravity of domestic violence.
In R v Edigarov [2001] NSWCCA 436; (2001) 125 A Crim R 551; Wood CJ at CL said at 558 [41]: "As this Court has confirmed in Glen NSWCCA 19 December 1994, Ross NSWCCA 20 November 1996, Rowe (1996) 89 A Crim R 467, Fahda (1999) NSWCCA 267 and Powell (2000) NSWCCA 108, violent attacks in domestic settings must be treated with real seriousness. Regrettably, that form of conduct involves aggression by men who are physically stronger than their victims and who are often in a position economically, or otherwise, to enforce their silence and their acceptance of such conduct. In truth such conduct is brutal, cowardly and inexcusable, and the Courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence." [36]
In R v Hamid [2006] NSWCCA 302, Johnson J said at [86]: "In sentencing a domestic violence offender, and in particular a repeat domestic violence offender, specific and general deterrence are important factors, together with the requirement of powerful denunciation by the community of such conduct and the need for protection of the community. Recognition of the harm done to the victim and the community as a result of crimes of domestic violence is important. These principles flow from statements of this Court and are fortified by the enactment of Division 1A of Part 15A of the Crimes Act 1900 including the statutory objects recited in s.562AC."
More recently, in Yaman v R [2020] NSWCCA 239, Wilson J emphasised the entitlement of women to lead a life of their own choosing. Her Honour said at [135]: "The right of all women to determine their own path in life must be protected and upheld by the courts. Where a woman's right is ignored or disregarded by an offender, that right must be vindicated, including by punitive and strongly deterrent sentences where necessary."
Her Honour had earlier referred to Cherry v R [2017] NSWCCA 150, where Johnson J said at [78]: "In R v Kilic (2016) 91 ALJR 131; [2016] HCA 48, the High Court observed at 137 [21] that current sentencing practices for "offences involving domestic violence [may] depart from past sentencing practices for this category of offence because of changes in societal attitudes to domestic relations". It is undoubtedly the case that the criminal law, in the area of domestic violence, requires rigorous and demanding consequences for perpetrators for the purpose of protecting partners, family members and the wider community."
It is also convenient to repeat the oft-quoted statements of the plurality (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ) in Munda v Western Australia (2013) 249 CLR 600 at [54]-[55]: "…the long‑standing obligation of the state to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence … …A just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol‑fuelled destruction of a woman by her partner. A failure on the part of the state to mete out a just punishment of violent offending may be seen as a failure by the state to vindicate the human dignity of the victim; and to impose a lesser punishment by reason of the identity of the victim is to create a group of second-class citizens, a state of affairs entirely at odds with the fundamental idea of equality before the law."
Section 10A of the CSP Act enables a court that convicts an offender to dispose of the proceedings without imposing any other penalty. The section was inserted by the Crimes and Courts Legislation Amendment Act 2006 (NSW), which commenced on 29 November 2006. According to the explanatory note to the Crimes and Courts Legislation Amendment Bill, s 10A had been added for circumstances where a court considers a s 10 bond is inappropriate because the offence is not trivial and it is inconvenient to impose any further penalty.
I recognise that the recording of a conviction may have serious consequences for an offender. However, general sentencing principles apply to the operation of the section. Where an offence is objectively serious and general deterrence, denunciation, and the protection of the community are of importance, the scope for the use of the section must necessarily be substantially diminished. I acknowledge that current sentencing legislation does not prohibit the application of s 10A to a domestic violence offence. Nevertheless, the appropriate use of s 10A in a domestic violence offence must be rare.
My opinion is enhanced by sections 4A and 4B of the CSP Act which are as follows: 4A Domestic violence offenders - requirement for full-time detention or supervision (1) If a court finds a person guilty of a domestic violence offence, the court must impose on the person either - (a) a sentence of full-time detention, or (b) a supervised order. (2) However, the court is not required to impose either of those sentencing options if the court is satisfied that a different sentencing option is more appropriate in the circumstances and gives reasons for reaching that view. (3) For the purposes of this section, a supervised order is an order (being an intensive correction order, community correction order or conditional release order) that is subject to a supervision condition. 4B Domestic violence offenders - protection and safety of victims (1) An intensive correction order must not be made in respect of - (a) a sentence of imprisonment for a domestic violence offence, or (b) an aggregate sentence of imprisonment for 2 or more offences, any 1 or more of which is a domestic violence offence, unless the sentencing court is satisfied that the victim of the domestic violence offence, and any person with whom the offender is likely to reside, will be adequately protected (whether by conditions of the intensive correction order or for some other reason). (2) If the sentencing court finds a person guilty of a domestic violence offence, the court must not impose a home detention condition if the court reasonably believes that the offender will reside with the victim of the domestic violence offence. (3) Before making a community correction order or conditional release order in respect of a person whom the sentencing court finds guilty of a domestic violence offence, the court must consider the safety of the victim of the offence.
Both sections emphasise the seriousness of domestic violence offences. For present purposes it is only necessary to refer to s 4A which was drawn to the judge's attention during the proceedings on sentence. Section 4A(2) requires reasons for departing from a sentence of full-time detention or a supervised order. Unfortunately, reasons were not provided by his Honour for the application of s 10A.
It may be that the judge had in mind the two approaches to achieving totality suggested by the High Court in Mill v The Queen (1988) 166 CLR 59 ('Mill') at 63: "Where the [totality] principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed." (Emphasis added.)
Neither approach to the totality principle permitted the judge to impose manifestly inadequate sentences which fail to recognise the harm to the victim.
The respondent's subjective case did not justify the application of s 10A.
In my respectful opinion, it was an error for his Honour to apply s 10A to counts 2, 10, 36 and 38. Ground 2 has been established.

[39]

Ground 3: The sentence pronounced is manifestly inadequate

The Director submitted that the specific errors identified in Grounds 1 and 2 contributed to the imposition of a manifestly inadequate sentence. The Director then identified a number of indicative sentences which the Director contended revealed that the sentencing discretion miscarried. The Director submitted there was a substantial disconnect between the characterisation of the objective seriousness of each offence and the corresponding indicative sentence.
The Director pointed to count 5 (aggravated sexual assault) which was assessed by the judge as "about the mid-range" but his Honour specified an indicative sentence of 3 years 9 months with a non-parole period of 1 year 9 months as against a maximum penalty of 20 years' imprisonment and a standard non-parole period of 10 years. The Director referred to his Honour's finding that count 4 (sexual intercourse without consent) approached the lower end of the mid-range but specified an indicative sentence of 1 year 6 months against a maximum penalty of 14 years' imprisonment and a standard non-parole period of 7 years. The same submissions were made in relation to counts 12, 14, 16, 26, 27, 33, 34 and 40.
The Director emphasised that the submission was not that the assessment of objective seriousness should bear a discernible mathematical equivalence to the sentencing guideposts, but rather it was necessary that the indicative sentences should properly reflect the assessments of objective seriousness that were made and address the criminality involved in the offences.
A further submission was that the manifestly inadequate indicative sentences were compounded by the extent of notional accumulation as between the offences. The Director contended that his Honour's observation that "many of the offences were committed simultaneously with [one] another or as part of the one incident or episode of offending" may have influenced the extent of notional accumulation. [37] The Director submitted that 24 offences occurred on 21 separate occasions and his Honour appears to have failed to appreciate the extent to which the offences represented discrete incidents.
The judge's observation that "there is a sense in which all the offending can be characterised as part of a single continuous episode", the Director submitted, did not assist the respondent and highlighted a sustained campaign of domestic and sexual violence against the victim during their marriage. [38]
When referring to the respondent's subjective case, the Director did not dispute that the judge's finding that the respondent's mental health issues moderated the weight to be given to general deterrence or diminished to some extent the respondent's moral culpability, but argued that it was important not to overstate them. The Director did not depart from the concession made by the Crown at first instance that the respondent had probably suffered to some degree from mental illness when he committed the offences.
The Director referred to the paucity of evidence of the respondent's mental health at the time of the offending and to the respondent's evidence that the offences did not happen. The Director pointed out that there was no evidence adduced at the trial by the respondent as to his mental health. The Director's submission was that the judge appeared to have given too much weight to the respondent's mental condition and general deterrence remained a relevant factor. The Director submitted that the judge did not find a causal connection between the respondent's schizophrenia and the commission of the offences.
The Director accepted that it was open to the judge to find special circumstances but submitted that the non-parole period of 5 years, which was 50% of the head sentence, failed to reflect the seriousness of the offences and both specific and general deterrence.
The respondent accepted that the aggregate sentence was manifestly inadequate, as was the non-parole period.

[40]

Consideration

In order to succeed on a ground of appeal asserting that an aggregate sentence is manifestly inadequate, the Director must establish that the sentence was below the range of sentences that could be justly imposed for the respondent's offending consistent with sentencing standards. "Sentencing is a discretionary judgment and there is no single correct sentence for an offender and an offence": Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. Appellate intervention is not justified simply because this Court may have exercised its sentencing discretion differently: Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221.
Where it is submitted that an aggregate sentence is manifestly excessive, there are a number of established principles which may be shortly stated. The indicative sentences are not themselves amenable to appeal, although they "may be a guide" to whether error can be established: JM v R (2014) 246 A Crim R 528 at [40]; [2014] NSWCCA 297. An examination of the indicative sentences can also be relevant to the question of whether the totality principle has been properly applied: Noonan v R [2021] NSWCCA 35; Kliendienst v R [2020] NSWCCA 98. However, the only operative sentence is the aggregate sentence: Vaughan v R [2022] NSWCCA 3 at [90]. An indicative sentence can be excessive without the aggregate sentence necessarily being so: JM v R at [39]. The fundamental question is whether the aggregate sentence is manifestly excessive when viewed against the totality of the criminality evident in the offences: McTague v R [2020] NSWCCA 83 at [47].
These principles apply to manifest inadequacy appeals.
Another important principle is that the ultimate constraint on a finding of special circumstances is that the non-parole period must appropriately reflect the criminality involved in the offences: R v Simpson (2001) 53 NSWLR 704; 126 A Crim R 525; [2001] NSWCCA 534 at [63].
This was undoubtedly a difficult sentencing task for the judge. His Honour was required to deal with a considerable amount of material relating to the respondent's mental health. The respondent did not give evidence in the trial that his offending was in any way related to his mental health but maintained that the offences did not happen. His Honour carefully considered the reports of Dr Calvin and Dr Reading and concluded that whilst it was not possible to reach any definitive conclusion concerning a causal connection between the respondent's "psychological or psychiatric compromise" and the offending, he was satisfied on the balance of probabilities that the respondent experienced some psychiatric symptoms during his relationship with the victim. His Honour further referred to aspects of the offending being consistent with the presence of schizophrenia.
It was open to his Honour to find that it was more likely than not that the respondent experienced some psychiatric symptoms during his relationship with the victim, that he was less than fully aware of the consequences of his actions at the time of the offending which served to diminish to some extent his moral culpability and reduced the significance of general deterrence and denunciation.
The Director's submission that general deterrence remained a relevant factor is to be accepted. However, I am not persuaded that his Honour overlooked the continuing relevance of general deterrence as his Honour expressly referred in his sentencing remarks to the role that general deterrence had to play which his Honour considered had been "diminished to some extent". [39] The weight to be given to general deterrence was a discretionary matter for the judge having regard to the findings made as to the respondent's mental health.
It was also open to the judge to find that the respondent's exposure to domestic violence as a child, which his Honour appears to refer to as "the developmental normalisation of controlling violent domestic behaviour" reduced the respondent's moral culpability. [40] His Honour's recognition of the disadvantage suffered by the respondent during his abusive childhood was consistent with the statement of sentencing principle in Bugmy.
His Honour further referred to the respondent's youth and immaturity as another factor diminishing his moral culpability. The respondent was 20-21 years old when he committed the offences. It is well understood that in some cases relative youth may be a material sentencing factor. As Hodgson JA observed in BP v R [2010] NSWCCA 159 at [5]: "…emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid twenties."
The present case did not involve a single act of violence. The respondent was sentenced in respect of 24 offences, nine of which concerned serious sexual offending against the victim. The offences were committed within a 518 day period after the marriage, taking place on a total of 21 distinct occasions. Although the respondent's psychiatric symptoms entitled the judge to find that he was less than fully aware of the consequences of his actions, the respondent's relative youth did not in any way mitigate his repetitive violent offending. Putting aside for one moment the respondent's mental health issues, the pain, harm and indignity that was being inflicted upon the victim would have been readily apparent to a young adult.
Another complaint by the Director is that his Honour failed to appreciate, in the passages quoted above at [198]-[199] above, the respondent's discrete offending. His Honour described many of the offences being committed "simultaneously" or "as part of the one incident or episode of the offending". There are two observations which I wish to make about this issue. It would be an error for the judge to have overlooked the gravity of the offences being committed on 21 distinct occasions when considering the totality principle and concurrency and accumulation. Furthermore, the fact that offences may follow simultaneously or be part of one episode of offending does not necessarily mean that the sentences for these offences should be wholly concurrent. [41]
For instance, Counts 26 and 27 are serious offences of sexual assault contrary to s 61I of the Crimes Act. Although these sexual assaults were committed one after the other, his Honour was obliged to consider the individual circumstances of each offence in imposing the aggregate sentence and whether a degree of partial accumulation was required.
As an aggregate sentence was imposed, I am unable to discern precisely what his Honour did as this Court is unable to analyse concurrency and accumulation in the same way as the traditional sentencing structure was able to be analysed: JM v R at [40]. Nevertheless, it appears from his Honour's remark that "this coincidence of offending requires some notional concurrence among some of the offences" that for the offences which followed simultaneously, notional concurrent terms may have been imposed. [42] Imposition of concurrent terms for counts 26 and 27 would in my opinion be an error of principle. Nevertheless, where an offender is being sentenced for a large number of offences, there will inevitably be a significant amount of notional concurrency in the sentence as the principle of totality requires that the aggregate sentence must be "just and appropriate" and the respondent must not be subject to a crushing sentence: Mill; Postiglione v The Queen (1997) 187 CLR 295; [1997] HCA 26.
The Director does not challenge other favourable findings made by the judge as to the respondent's subjective case which include the substantial delay in the prosecution of the offences; a 5% discount for facilitating the administration of justice by electing for a judge alone trial during the COVID-19 pandemic; the positive developments in the respondent's psychiatric rehabilitation which augured well for his future prospects; and the respondent's very limited criminal history which did not deny him some leniency.
The judge also found that the respondent continued to deny the offences and failed to appreciate the nature and consequences of his conduct.
I turn now to those counts about which the Director submits that the indicative sentences are manifestly lenient. Count 5 is a charge of aggravated sexual assault (inflict grievous bodily harm) contrary to s 61J(1) of the Crimes Act. The maximum penalty for the offence is 20 years' imprisonment and the standard non-parole period is 10 years' imprisonment. The judge observed the objective seriousness of the offence to be "about mid-range" and indicated a sentence of 3 years and 6 months with a non-parole period of 1 year and 9 months. The respondent's offending involved forceful anal intercourse which he continued despite the victim's pain and requests to stop. Notwithstanding the respondent's subjective case, the principle of totality and the 5% discount, the indicated sentence is manifestly inadequate.
Counts 12 and 40 are offences of sexual assault contrary to s 61I of the Crimes Act. The maximum penalty for the offence is 14 years' imprisonment with a standard non-parole period of 7 years. The judge assessed the objective seriousness of the offences to be "below the mid-range". Count 12 involved penile-vaginal intercourse and count 40 penile-vaginal and anal intercourse.
Count 27 is an offence of sexual intercourse without consent contrary to s 61I of the Crimes Act. The judge assessed the objective seriousness of this offence to be approaching the mid-range. The respondent's offending involved penile-anal intercourse, which continued despite the victim's hurt and request to stop, until he ejaculated.
Counts 33 and 34 are offences of sexual intercourse without consent contrary to s 61I of the Crimes Act. The judge assessed the objective seriousness of these offences to be "below but approaching the mid-range". The respondent's offending in count 33 involved rough and violent penile-anal intercourse which continued until he ejaculated notwithstanding the victim's pain and requests to stop. The respondent's offending in count 34 concerned penile-vaginal intercourse, despite the victim's protestations that Islamic teaching did not permit women to have sex during menstruation.
In my opinion, the indicative sentences for all of these counts (see [6] above) are manifestly inadequate, notwithstanding the respondent's subjective case, the principle of totality and the 5% discount.
Count 14 is an offence of attempting to choke with intent to commit an indictable offence (intimidation) contrary to s 37(2) of the Crimes Act. The maximum penalty for the offence is 25 years imprisonment. The respondent placed his foot on the throat and the neck of the victim applying pressure and reducing her air and blood flow. He did so in order to assert his superiority over his wife who described being humiliated and having her life "crushed out" of her. The seriousness of the offence is increased by the respondent stepping on her neck twice. The indicative sentence of 1 year 6 months is manifestly inadequate, notwithstanding the respondent's subjective case, the principle of totality and the 5% discount.
Counts 16 and 26 have been considered in Ground 1. The indicative sentences for these offences are manifestly inadequate.
The manifest inadequacy of these indicative sentences are a guide to the manifest inadequacy of the aggregate sentence as are the errors established by the Director in Grounds 1 and 2.
In my respectful opinion, the aggregate sentence of 10 years' imprisonment and the non-parole period of 5 years is plainly unjust as it is so manifestly inadequate that it does not reflect the totality of the criminality involved in the respondent's offending.
Ground 3 has been established.

[43]

Submissions

The Director submitted that the respondent's sentence was so far below the range of sentences that could be justly imposed that allowing such a manifestly inadequate sentence to stand would undermine public confidence in the justice system and the residual discretion should not be exercised.
The Director pointed to other matters that were said to be relevant to the exercise of the residual discretion: 1. There has been no delay in the institution of the appeal. The grounds of appeal were filed on 2 September 2022 and the amended grounds of appeal were filed on 30 January 2023; 2. The respondent's release to parole is not imminent. He is not eligible for release to parole until 30 January 2025; and 3. In circumstances where the respondent continues to deny the offences and otherwise remains in custody as a forensic patient for unrelated offending, this is not a case where re-sentencing is likely to have an effect on progress towards rehabilitation.
The Director further submitted that if the Court declined to intervene, the errors of principle identified in Ground 2 by the application of s 10A would remain. The Director argued that it was not correct to submit that this case was of little precedential value as lower courts are often required to deal with offenders with significant health issues. The Director submitted that this case provides important guidance as to the proper approach to sentencing offenders, firstly who have committed a large number of offences, and secondly in relation to the proper operation of s 10A, particularly in domestic violence offences.
The respondent submitted that it was not sufficient to establish manifest inadequacy for this Court to proceed to re-sentence, as the Director was obliged to persuade this Court to intervene.
The respondent contended that, having regard to his subjective case, the Director had not established that the aggregate sentence was an affront to the administration of justice.
The respondent submitted that central to the question of the exercise of the discretion was his powerful subjective case. The respondent pointed to his psychiatric condition, his youth and immaturity at the time of the offending, his exposure to domestic violence as a child and the substantial delay between the offending and sentence, all of which called for a significant diminution in the aggregate sentence.
The respondent did not submit that his subjective case was sufficient by itself for the Court not to intervene but contended that his mental health issues made him not an appropriate medium to make an example for others.
The respondent referred at length to Dr Calvin's reports and contended that the totality of the evidence established, on the balance of probabilities, that his schizophrenia was causally connected to the offending. The respondent pointed to certain features of the evidence that suggested a level of paranoia and disordered thinking that was consistent with the respondent's psychiatric thinking being operative at the time of the offending, which included his accusations of the victim hiding something; putting her name first on a lease so that she had somewhere to go if they split up; being in love with a friend; and calling her "shaitan" (devil).
The respondent further pointed to his absence of a violent predisposition when he was adequately medicated. All of the evidence of his psychiatric condition was significant enough, it was argued, to justify a diminution in the sentences to be imposed.
The respondent submitted that his offending against his second wife was indicative of the importance of his antipsychotic medication in managing his schizophrenia. The respondent referred to his positive progress made under Dr Reading and the Tribunal.
The respondent contended that the protection of the community was not only served by lengthening his term of imprisonment. The respondent pointed to his ongoing supervision by the Tribunal and the benefits that he will require from supervision upon release to ensure he continues to take his medication and addresses his psychiatric condition.
A further submission was that the prospect of a significantly higher sentence would be crushing, particularly given the evidence that he had a severely depressed mood during his first months in custody and these matters were stressors for him.
The respondent further submitted that the limited purpose of Crown appeals could be achieved by an acknowledgement of the Court that the sentences imposed were wrong and why they were wrong. It was submitted that; 1. The respondent's case had very limited precedential value given his unique subjective case, and it is not one in respect of which it can be said that by declining to intervene would perpetuate a manifest injustice; 2. The respondent was not an appropriate subject to achieve the limited purpose of Crown appeals by having his sentence increased for the same reasons the respondent is not an appropriate subject through which to achieve general deterrence; and 3. The respondent has made progress towards rehabilitation since he was sentenced.

[45]

Re-sentence

In these reasons, I have emphasised the gravity of the respondent's offending. Nine of the 24 offences involved serious sexual offending against the victim. Furthermore, he subjected the victim to repetitive acts of domestic violence.
In respect of counts 16 and 26, which were the subject of Ground 1, I assess the objective seriousness of each offence to be in the mid-range. It is sufficient to state that count 9 which has no standard non-parole period is a serious offence. The Director did not challenge the judge's assessment of objective seriousness for any other offence and I will not change any of those assessments.
I should add that this is not a case where the respondent's mental health affects the assessment of the objective seriousness of any of the offences: DS v R; DM v R (2022) 109 NSWLR 82 at [96]; [2022] NSWCCA 156.
Although the Director did not complain in Ground 2 about the application of s 10A to counts 1, 8 and 28, these are offences of domestic violence and in the exercise of my sentencing discretion, I consider that the application of s 10A in each count is inappropriate. I will not disturb other sentences indicated by the judge which the Director has not challenged.
The maximum penalty and standard non-parole period for an offence for which I will indicate a different sentence are legislative guideposts to be borne in mind when considering the appropriate penalty, having regard to the objective seriousness of the offence and the subjective circumstances of the respondent: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39. The standard non-parole period does not have determinative significance in sentencing the respondent: Muldrock at [31], nor is it a "starting point" for the sentence.
I stated at [209] above that it was open to the judge to find that it was more likely than not that the respondent experienced some psychiatric symptoms during his relationship with the victim and that he was less than fully aware of the consequences of his actions at the time of the offending which served to diminish to some extent his moral culpability and reduced the significance of general deterrence and denunciation. I will adopt these findings on re-sentence.
Nevertheless, I am not satisfied on the balance of probabilities that his schizophrenia had a significant role to play in his offending. The victim's evidence provided little support for the respondent's offending being initiated by command type auditory hallucinations, persecutory delusions, or paranoia. The respondent's evidence was confined to his denial that the offending occurred. In submissions, the respondent pointed to certain features of the evidence which were said to be consistent with his psychiatric condition being operative at the time of the offending. In my view, the matters referred to by the respondent are consistent with his jealousy and desire to control his wife. I give modest weight to the respondent's mental health at the time of the offences in reducing his moral culpability and the significance of denunciation.
I take into account the respondent's age and present mental health. He was born on 11 November 1986 and is now 36 years old. When he entered into custody on 4 July 2019, he was highly psychotic. Dr Reading reports that the respondent's schizophrenia and melancholic depression have responded well to treatment, but he continues to experience some ongoing negative symptoms from his schizophrenia.
The respondent's mental condition both presently and at the time of the offending reduces the weight that I give to general deterrence. Although the weight to be given to general deterrence has been reduced, the respondent's mental condition heightens the need for specific deterrence. The serious acts of violence committed against his second wife demonstrate the necessity of the respondent remaining compliant with antipsychotic medication and the directions of his treating psychiatrist.
An unusual feature of the evidence before the judge of the respondent's background is that Dr Calvin reported that the respondent said "that he had a reasonable childhood", which is to be contrasted with the letters of support from the respondent's mother and brother. I stated at [211] above that it was open to the judge to find that the respondent's exposure to domestic violence as a child reduced the respondent's moral culpability. As that finding was not challenged on appeal, I will adopt it on re-sentence.
As to the other matters in the respondent's subjective case to which I have not referred and that were not challenged on appeal, I intend to adopt them. [45]
Furthermore, the 5% discount for facilitating the administration of justice will be allowed on re-sentence.
The positive steps that he has taken to understand and control his psychiatric issues have been demonstrated by his compliance with his medication and co-operation with Dr Reading. As to his prospects of rehabilitation, much will depend on his continuing co-operation with Dr Reading and compliance with taking prescribed medication upon release.
I find that special circumstances exist that justify a variation in the statutory ratio between the non-parole period and the balance of the term of the sentence, being the time he has spent in custody during the COVID-19 pandemic and his need for ongoing specialist care and follow up in the community for his mental condition upon release.
In assessing the indicative sentences, I have fixed an appropriate sentence for each offence and considered questions of concurrence and totality. The following table discloses the sentences that would have been imposed but for the aggregate sentence after the 5% discount has been applied: s 53A(2)(b) of the CSP Act. Count Indicative sentence after 5% discount (round figures) Non-parole period 1 1 month - 2 4 months - 4 3 years 1 year 10 months 5 5 years 3 years 8 6 months - 9 1 year 6 months - 10 1 year 6 months - 12 3 years 1 year 10 months 13 3 months - 14 2 years 6 months - 16 3 years 6 months 2 years 1 month 19 1 month - 20 2 months - 21 9 months - 22 9 months - 23 9 months - 26 3 years 6 months 2 years 1 month 27 3 years 3 months 1 year 11 months 28 6 months - 33 3 years 1 year 10 months 34 3 years 1 year 10 months 36 1 year 6 months - 38 6 months - 40 3 years 1 year 10 months

[46]

Accordingly, I propose the following orders: 1. Director's appeal allowed. 2. The aggregate sentence imposed by Whitford SC DCJ in the District Court of New South Wales on 5 August 2022 is quashed. 3. In lieu thereof, the respondent is sentenced to an aggregate term of 14 years' imprisonment consisting of a non-parole period of 9 years commencing on 31 January 2020 and expiring on 30 January 2029 with a balance of term of 5 years commencing on 31 January 2029 and expiring on 30 January 2034. 4. The earliest date that the respondent will be eligible to be released on parole is 31 January 2029.
WILSON J: I have had the advantage of reading in draft the judgment of Price J, with which I agree. I have also had the benefit of reading the judgment of Dhanji J.
I share the conclusion of the Presiding Judge that the sentence imposed upon the respondent at first instance was manifestly inadequate. It comprehensively failed to reflect the gravity of a serious and sustained course of domestic violence against a young woman, violence that included 8 sexual assaults, an aggravated sexual assault, an offence of attempted choking with intent, and multiple assaults. The sentence also failed comprehensively to give effect to the very important principle given by the High Court in Munda v State of Western Australia, cited above at [186] by the Presiding Judge.
This is not a matter in which the residual discretion should be exercised. The courts must ensure that those who seek to brutally dominate a domestic partner, and violently impose a claimed gender superiority on another, are held to account. The aggregate sentence proposed by Price J is one that achieves that aim, whilst giving proper ameliorative weight to the respondent's subjective case.
There is some divergence between the respective judgments of Price J and Dhanji J as to the relevance of the respondent's youth at the time of this serious offending. My view on that issue echoes that of the Presiding Judge. The relevance of youth to sentence is a factor of diminishing relevance as distance from the years of childhood increases. The respondent was not a child; he was mature enough to marry in a religious ceremony and live an adult life, features pointing to a degree of maturity. The offences themselves, committed as they were over a protracted period, were the offences of an adult; a married man determined to enforce his will upon his wife through means of violence and intimidation. There is nothing about his crimes suggestive of the immaturity or irresponsibility of youth. Further, where offences committed by a younger person are gravely serious, as here, the requirement for retribution and denunciation to feature strongly in the sentence is less likely to be significantly diminished by the weight to be given to considerations of rehabilitation: IE v R (2008) 183 A Crim R 150 at [16]; MJ v R [2010] NSWCCA 52 at [37]-[39]; and JT v R [2011] NSWCCA 128 at [34]-[35]. That principle operates in the respondent's case. The sentence proposed by Price J is one considerably ameliorated by the respondent's mental health issues. It also allows for an extended period of supervised liberty to assist the respondent's rehabilitation and reintegration into the community. Any greater reduction in sentence to reflect the subjective case would fail to uphold the principle already referred to from Munda. It should not be necessary for this Court to state and restate that a woman's life, safety and right to self-determination are things of value which must be upheld and protected by the law. Absent that, our whole society is diminished.
I agree with the orders proposed by Price J, and I endorse the reasons his Honour has given.
DHANJI J: In this matter I have had the benefit of reading the reasons of Price J in draft form. Wilson J agrees with his Honour. In the light of their Honours forming a majority, my own reasons can be stated with brevity.
I agree with Price J for the reasons his Honour gives, that, in relation to the offences dealt with pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW), the imposition of a conviction with no further penalty was in error. I also agree that the aggregate sentence imposed at first instance in relation to the remaining counts was manifestly inadequate. Thus, I agree that the Director has established grounds 2 and 3 of the appeal.
In the above circumstances, I would prefer not to state a concluded view as to ground 1. In that regard, I would simply note my view that while the findings of objective gravity for counts 9, 16, and 26 were certainly lenient, having regard to the nature of the review and the inherent imprecision with respect to terms such as "below mid-range" and "at least towards the middle of the range", it is not immediately clear to me that the sentencing judge was in error: see Lee v R [2023] NSWCCA 70 at [37]; JG v R [2023] NSWCCA 33 at [94]-[103]; Yeung v R [2018] NSWCCA 52 at [24]. In this respect, again noting the imprecision in the nomenclature and corresponding bandwidth usually engaged around identification of objective gravity, I would not necessarily accept that a finding that an offence is "at least towards the middle of the range" is inconsistent with it being "below mid-range". I am additionally mindful of the sentencing judge's determination having been made in an adversarial context in which he recorded the respondent had submitted "in a global way" that the offending conduct fell below the mid-range of objective seriousness but that "neither party descended to assistance by way of submissions concerning the objective gravity of individual offences". Before leaving this ground I would also note, lest silence on the issue suggest otherwise, the sentencing judge was not obliged to assess the objective seriousness of the offences by reference to their relationship with a notional mid-point: see DH v R [2022] NSWCCA 200 at [58]-[60]; Kochai v R [2023] NSWCCA 116 at [47]-[51].
Having established grounds 2 and 3, I am, essentially for the reasons given by Price J, also of the view that, notwithstanding the existence of the discretion and the force of the argument on the respondent's behalf, the Director has established that this Court should intervene to resentence the respondent. It is at this point that I diverge from the view of the majority.
In passing sentence on the respondent, the sentencing judge recorded the prosecution's observation that "sentencing this offender represents a difficult and complex sentencing exercise", describing it as "a delightfully understated submission". His Honour's observation cannot be gainsaid. While the presence of factors pulling in different directions is a common enough, and perhaps inevitable, phenomena in determining sentence, in the present case competing factors tugged at the result with considerable and irreconcilable force. No doubt my departure from the view of the majority is at least in part a reflection of this.
I accept the objective gravity of the offences. However, unlike Price J, I would not find that "the respondent's relative youth did not in any way mitigate his repetitive violent offending" (per Price J at [213]). I would give greater weight to the respondent's youth.
The sentencing judge described the fact that the offender and the victim were both very young as a "salient feature of all the offending", noting the "marriage" took place when the offender was 20. The sentencing judge later observed that "[a]ll of the offences were committed by a young, immature individual". In acknowledging the substantial role for general deterrence with respect to offences of domestic violence, particularly where such violence is sustained over time, his Honour noted that the weight to be given to this consideration was "diminished to some extent" by the psychiatric compromise of the offender, the substantial delay between the offences and their resolution, and, significantly for present purposes, "the youth and immaturity of the offender at the relevant time". His Honour later made reference to aspects of the respondent's offending behaviour being consistent with the presence of his later diagnosed schizophrenia and observed that "whether on that account, or on account of his youth and immaturity, or the developmental normalisation of controlling, violent domestic behaviour, it seems to me reasonably open to conclude … that it is more likely than not that the offender was less than fully aware of the consequences of his actions at the time of the offending".
The sentencing judge's findings to which I have referred above, were not challenged on this appeal. I would, on this basis, adopt them. I would, in any event, independently come to the same view. I accept that the respondent's youth and immaturity was interwoven with his background including his exposure to domestic violence and these matters, in turn, need to be understood as part of the consideration of the instinctive synthesis of all relevant factors. Given my acceptance of the role of the respondent's immaturity, while I can accept that he would have been aware of the infliction of "pain, harm and indignity" (per Price J at [213]), I would not accept that he had the maturity to appreciate, in the way a person of greater maturity should, the full extent of the wrongfulness of his actions and the consequent harm to his victim. Having regard to his background and corresponding immaturity, his lack of appreciation of the gravity of his actions was unlikely to be remedied by the repetition of offending behaviour. As the High Court observed in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (at [43]), childhood deprivation or exposure to violence "may compromise the person's capacity to mature and to learn from experience".
I would also be circumspect in placing additional weight on specific deterrence. Had the respondent been sentenced closer to the time of the offences, his age would have required weight to be given to rehabilitation. By the time he came to be sentenced, the respondent was some years older. One way in which delay is commonly taken into account is to establish (if it be the case) demonstrated progress towards rehabilitation. Had the respondent's history subsequent to the offending been more straightforward, the combination of his youth at the time of the offending and his demonstrated progress since would have likely required that significant weight be given to rehabilitation. As it was, between the commission of the current offences and his sentencing, the respondent had committed further serious acts of violence, but with respect to which Ingram SC DCJ entered special verdicts of not guilty on the grounds of mental illness. The respondent otherwise had no meaningful record. That record consisted of driving matters, an offence of having custody of a knife in a public place (which was dismissed with a caution) when he was aged 16, and offences of resisting an officer in the execution of his duty and failing to appear when he was aged 20. While the fact of the matters before Ingram DCJ, despite the absence of conviction, might be informative of potential dangerousness, it is a dangerousness resulting not from any willingness or determination to commit criminal offences but from the respondent withdrawing from medication. Any concerns raised by the matters before Ingram DCJ are thus different to the concerns raised by the present offences.
It is, to my mind, also significant that at the time of the present offences, the respondent had no meaningful record. He similarly had no meaningful record at the time he withdrew from medication leading to the matters dealt with by Ingram DCJ. In those circumstances, where the respondent had suffered neither the disapprobation of conviction, at least for serious offences, and had not been exposed to the serious potential consequences of withdrawing from his psychiatric medication, I do not regard it as appropriate to give weight to specific deterrence beyond that achieved by any sentence that must necessarily be imposed.
Giving greater weight to rehabilitation and less weight to specific deterrence, I would impose a sentence somewhat less than that proposed by Price J. However, given that mine is a minority view, it is unnecessary to articulate that sentence.

Parties

Applicant/Plaintiff:

Respondent/Defendant:

Sharrouf

Legislation Cited (4)

Crimes and Courts Legislation Amendment Act 2006(NSW)

Crimes Act 1900(NSW)ss 33B, 37, 59, 61, 61I, 61J, 61L

Crimes (Sentencing Procedure) Act 1999(NSW)ss 4A,10A

Criminal Appeal Act 1912(NSW)s 5D

Cases Cited (58)

R v Barker [2016] NSWCCA 193 R v BWS [2007] NSWCCA 59 R v Daley [2010] NSWCCA 233 R v Edigarov [2001] NSWCCA 436; (2001) 125 A Crim R 551 R v Field [2011] NSWCCA 13 R v Hamid [2006] NSWCCA 302 R v Hill [2020] NSWCCA 197 R v Kilic (2016) 91 ALJR 131; [2016] HCA 48 R v McNaughten [1843] 8 E. R. 718 R v Smith [2006] NSWCCA 353 R v Tuala [2015] NSWCCA 8 Sivell v R [2009] NSWCCA 286 Yaman v R [2020] NSWCCA 239 Yeung v R [2018] NSWCCA 52 Category: Principal judgment Parties: Rex (Applicant) Arken Abdull Sharrouf (Respondent) Representation: Counsel: M Millward (Applicant) G Huxley (Respondent)

HEADNOTE [This headnote is not to be read as part of the judgment] On 5 August 2022, the respondent was sentenced in the District Court to an aggregate term of 10 years' imprisonment with a non-parole period of 5 years in respect of eight counts of sexual assault without consent contrary to s 61I of the Crimes Act 1900 (NSW); one count of aggravated sexual intercourse without consent contrary to s 61J(1) of the Crimes Act; one count of indecent assault contrary to s 61L of the Crimes Act; one count of attempted choke with intent to commit an indictable offence (intimidation) contrary to s 37(2) of the Crimes Act; two counts of use offensive weapon with intent to commit an indictable offence (intimidation) contrary to s 33B(1)(a) of the Crimes Act; five counts of assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act and six counts of common assault contrary to s 61 of the Crimes Act. All of the offences were committed against the respondent's then wife between 2007-2008. The respondent was arrested in 2020. He pleaded not guilty to 40 counts on an indictment and following a trial by judge alone in 2022, he was found guilty of 24 counts and not guilty of the remaining counts. The Director of Public Prosecutions, pursuant to s 5D of the Criminal Appeal Act 1912 (NSW), appealed against the sentence on the following grounds: 1. The sentencing judge erred in his assessment of the objective seriousness of counts 9, 16 and 26; 2. The sentencing judge erred in imposing convictions with no further penalty pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('CSP Act') in relation to counts 2, 10, 36 and 38; and 3. The aggregate sentence is manifestly inadequate The respondent accepted that the judge erred in imposing convictions with no further penalty pursuant to s 10A (Ground 2) and that the aggregate sentence was manifestly inadequate. The respondent submitted that the Court should exercise its residual discretion to decline to intervene. The Court of Criminal Appeal unanimously found that the aggregate sentence was manifestly inadequate and allowed the Director's appeal. The sentence imposed in the District Court of New South Wales on 5 August 2022 was quashed and the respondent was re-sentenced to an aggregate term of 14 years' imprisonment with a non-parole period of 9 years: [266] (Price J); [269] (Wilson J); [282] (Dhanji J) in disagreement as to length of the re-sentence. Held As to Ground (1): Notwithstanding the judge's advantage in characterising the objective seriousness of the offences, the finding that counts 9, 16 and 26 fell below the mid-range was erroneous. The spontaneity and duration of these counts did not diminish the objective gravity of these offences. The judge acted upon wrong principle and the objective seriousness of the offences was understated: [172] (Price J); [272] (Wilson J); [274] (Dhanji J not stating a concluded view). Mulato v R [2006] NSWCCA 282; Magro v R [2020] NSWCCA 25; Kennedy v R [2022] NSWCCA 215, referred to. As to Ground (2): Seriousness of domestic violence offences emphasised. The appropriate use of s 10A in a domestic violence offence must be rare. Neither the respondent's subjective case nor the principle of totality permitted the judge to impose manifestly inadequate sentences which failed to recognise the harm to the victim: [191]-[194] (Price J); [269] (Wilson J); [273] (Dhanji J). Munda v Western Australia (2013) 249 CLR 600; Mill v The Queen (1988) 166 CLR 59; R v Edigarov [2001] NSWCCA 436; (2001) 125 A Crim R 551; Cherry v R [2017] NSWCCA 150; Yaman v R [2020] NSWCCA 239; R v Hamid [2006] NSWCCA 302, referred to. As to Ground (3): The aggregate sentence and non-parole period was plainly unjust as it was so manifestly inadequate that it did not reflect the totality of the criminality involved in the offences: [213], [226]-[228] (Price J); [269] (Wilson J); [274] (Dhanji J). It was open to the judge to find that the respondent experienced some psychiatric symptoms during his relationship with the victim, that he was less than fully aware of the consequences of his actions which diminished to some extent his moral culpability and reduced the significance of general deterrence and denunciation. It was open to the judge to find that the respondent's abusive childhood reduced his moral culpability. The respondent's youth and immaturity did not mitigate his repetitive violent offending: [213] (Price J); [270] (Wilson J); [278]-[279] (Dhanji J disagreeing on this issue). Simultaneous offending did not necessarily lead to wholly concurrent sentences. Indicative sentences for counts 5, 12, 14, 27, 33, 34, and 40 were manifestly inadequate and a guide to the manifest inadequacy of the aggregate sentence. Postiglione v The Queen (1997) 187 CLR 295; [1997] HCA 26; Mill v The Queen (1988) 166 CLR 59; Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37; BP v R [2010] NSWCCA 159, referred to. As to the residual discretion: The Court found that the Director had demonstrated that the residual discretion to decline to intervene should not be exercised: [248]-[250] (Price J); [269] (Wilson J); [275] (Dhanji J). Re-sentence: In re-sentencing the respondent, modest weight given to the respondent's mental health at the time of offending in reducing his moral culpability; his present mental health and at time of offending reduced the weight to be given to general deterrence but heightened the need for specific deterrence: [257]-[264] (Price J); [269]-270] (Wilson J). Respondent's youth and immaturity were interwoven with his exposure to domestic violence as a child and needed to be understood as part of the consideration of all relevant matters; significant weight to be given to rehabilitation: [279]-[280] (Dhanji J).

(2013) 249 CLR 571

(2015) 256 CLR 346

(2011) 244 CLR 462

(1936) 55 CLR 499

(1988) 166 CLR 59

(2011) 244 CLR 120

(2013) 249 CLR 600

(2017) 96 NSWLR 155

(1997) 189 CLR 295

(2016) 91 ALJR 131

(1997) 187 CLR 295

(2001) 53 NSWLR 704