R v Stephens

Background

1. The respondent's offending spanned nearly two years: the first offence occurred on 3 November 2018 and the last on 17 October 2020. As earlier noted, the respondent pleaded guilty to 14 offences and, in relation to 7 offences, admitted his guilt and that offending was placed on a Form 1. In addition to these matters, the respondent admitted to 22 "uncharged acts".
2. The background matters, which cover the offending and the uncharged acts, are dealt with across four parts: first, a summary of the offending for which there were guilty pleas and offending placed on a Form 1; secondly, an outline of the events leading to the first charges in October 2020; thirdly, a description of the conduct underlying each count and Form 1 offence; and, fourthly, a summary of the interactions between the respondent and the victim that were described in the agreed facts as "uncharged acts".
3. The matters of background are drawn from the Statement of Agreed Facts upon which the respondent was sentenced (the 'agreed facts'), and the sentencing judgment. Given the sentencing judgment does not have a medium neutral citation and is in transcript form, the references to the page numbers in that judgment are expressed as J1 etc.

The offending: a summary

1. Guilty pleas were entered to the following counts: 1. assault occasioning actual bodily harm: counts 1, 6, 7, 12, 15, 18 and 22; 2. armed with intent to commit an indictable offence: counts 2 and 4; and 3. intentionally choke without consent: counts 8, 9, 13, 17 and 19.
2. The respondent also admitted his guilt to the following seven further offences, each of which was placed on a Form 1: 1. assault occasioning actual bodily harm: counts 3, 5, 14 and 20; 2. intentionally choke without consent: count 21; and 3. destroy or damage property: sequences 14 and 70.
3. The table below summarises the counts where guilty pleas were entered and where further offending was taken into account on a Form 1 when sentencing for the principal offence: Count Date of offending Offence Form 1 conduct 2 15 December 2018 Armed with intent to commit an indictable offence, contrary to s 114(1)(a) of the Crimes Act. Count 3: assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act. 4 27 December 2018 Armed with intent to commit an indictable offence, contrary to s 114(1)(a) of the Crimes Act. Count 5: assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act. 6 3 January 2019 Assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act. Sequence 14: destroy or damage property, contrary to s 195(1)(a) of the Crimes Act. 13 22 September 2019 Intentionally choke without consent, contrary to s 37(1A) of the Crimes Act. Count 14: assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act. 15 7 October 2019 Assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act. Sequence 70: destroy or damage property, contrary to s 195(1)(a) of the Crimes Act. 19 15 September 2020 Intentionally choke without consent, contrary to s 37(1A) of the Crimes Act. Count 20: assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act. 22 17 October 2020 Assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act. Count 21: intentionally choke without consent, contrary to s 37(1A) of the Crimes Act.

1. In addition, before the sentencing judge was a certificate dated 8 September 2022, pursuant to s 166 of the Criminal Procedure Act 1986 (NSW) ('the CPA'), which recorded that the respondent had been charged with three related offences - as follows: 1. Sequence 14: on 3 January 2019, the respondent did intentionally damage property, namely, the front windscreen of a motor vehicle the property of the victim, contrary to s 195(1)(a) of the Crimes Act. The conduct the subject of this charge occurred in the course of the events that gave rise to count 6. 2. Sequence 44: on 3 May 2019, the respondent did intentionally damage property, namely, the front dashboard of a motor vehicle the property of the victim, contrary to s 195(1)(a) of the Crimes Act. 3. Sequence 70: on 7 October 2019, the respondent did intentionally damage property, namely, the air-conditioning vent of a motor vehicle the property of the victim, contrary to s 195(1)(a) of the Crimes Act. The conduct the subject of this charge occurred in the course of the events that gave rise to count 15.
2. It is necessary to say something about these related offences, and the manner that they were dealt with in the Court below. First, although the certificate dated 8 September 2022 identified three related offences, it would appear that, by agreement between the Crown and the respondent, only two of the related offences (sequence 14 and sequence 70) were dealt with as part of the sentencing of the respondent. Secondly, again by (apparent) agreement between the Crown and the respondent, the sentencing judge was invited to deal with the two related offences not in accordance with the procedures contained within ss 167(2) and 168 of the CPA (the statutory provisions that provide for the manner in which related offences are dealt with following a person's committal for sentence), but as offences placed on a Form 1 and to be taken into account when dealing with the respondent for the principal offence: ss 32 and 33 of the CSP Act. Consistent with the approach taken by the parties, this is the way in which the sentencing judge dealt with the two related offences (for count 6 and sequence 14: J27; for count 15 and sequence 70: J27-28).

The circumstances leading to the first charge

1. The respondent and victim were previously in a domestic relationship for three years, commencing in 2017 and ending on 17 October 2020 when the respondent was arrested following the events giving rise to count 22 (J1). They share one child together, who was born in June 2020. The offending, and the uncharged acts, occurred between 3 November 2018 and 17 October 2020 when the victim lived with the respondent and his family, and when the victim and the respondent had their own home (J1).
2. At approximately 12:30pm on 17 October 2020, police attended the home of the respondent and the victim after receiving several calls to emergency services. Police spoke with the victim, who was crying and holding her four-month-old child. She told police that she had had a fight with the respondent, during which he had grabbed and pushed her. The victim showed police small lacerations to her chest area, as well as her left wrist/forearm area which was swollen. This gave rise to count 22 on the indictment of assault occasioning actual bodily harm. The respondent was subsequently arrested by police and charged with this offence.
3. On 17 October 2020, police applied for an Apprehended Domestic Violence Order ('ADVO') naming the respondent as the defendant, and the victim and their daughter as the Persons in Need of Protection. The ADVO was served on the respondent.
4. The offence that became count 22 on the indictment was listed for hearing in the Local Court.
5. On 13 August 2021, the victim attended Campsie Police Station and provided a written statement about further incidents. She also provided police with multiple photographs, videos and text messages. On 21 September 2021, the victim gave a further written statement to police outlining other offending. Police subsequently charged the respondent in relation to these matters.
6. The hearing of the charge in the Local Court was vacated after the Director of Public Prosecutions decided to elect on all matters.

Count 1: Assault occasioning actual bodily harm (Incident 1)

1. On 3 November 2018, the victim was living with the respondent and his family. On this occasion, the victim confronted the respondent about his drug use. The argument escalated to an argument with the respondent's parents. The victim told the respondent to stop talking the way he was and to calm down. The respondent pushed the victim forcefully and, as a result, the victim sustained a bruise.
2. After the victim left the house to go for a walk, a member of the respondent's family "told her not to come home because of his aggressive state" (J2). The victim received several calls and messages from the respondent. He "was yelling on the phone and engaged in verbal abuse of her" including calling her "cunt, fat bitch and slut".

Count 2: Armed with intent to commit an indictable offence and Count 3: Assault occasioning actual bodily harm (Form 1 offence) (Incident 2)

1. On 14 December 2018, the respondent and the victim had an argument over the victim attending a work colleague's farewell function. The respondent did not want the victim to attend as there would be males at the event. The following day, when the victim returned home from work and entered their bedroom, the respondent immediately called her a slut and pushed her around the room into the furniture and a clothing rack. The respondent yelled, "this is the real me, I cut people, I'll pop 4 Xanax and stab every guy I see if you don't tell me his name".
2. The respondent grabbed a knife which was located under his bedside table. The victim described the knife as a 'fishing knife' with ten 'indents' along the edge of the blade. The respondent pointed the knife at the victim and demanded she tell him the names of the males, or he will "slit [her] and him" (count 2).
3. The respondent dropped the knife on the ground and took hold of the victim's shirt, pulling her face towards his. He used his other hand to squeeze the victim's throat. He threatened to kill her and everyone important to her. The victim was terrified.
4. The victim sustained lacerations to her neck, body and face, as well as bruising to her arms and legs. She took a five second video of an injury to her elbow and knee. This conduct gave rise to count 3, being assault occasioning actual bodily harm (attached to count 2 on a Form 1).

Count 4: Armed with intent to commit an indictable offence and Count 5: Assault occasioning actual bodily harm (Form 1 offence) (Incident 3)

1. On 27 December 2018, the respondent and the victim were in their bedroom. The victim woke up to the respondent yelling "slut" and "whore" at her. The respondent made allegations that the victim had cheated on him as he had seen text messages on the victim's phone from a male friend.
2. The respondent took hold of the victim's shirt and pulled her towards his face, stating "explain yourself bitch, you're the one whose been slutting around". The victim began to cry and she tried to reason with the respondent, but he pushed her away and read out the messages. The respondent informed the victim that he would hurt her and make her feel as though she wished she was dead. The respondent said: "I've cut people before, that was my life, I'll cut him too and make you watch, you'll see". The respondent approached the victim and spat in her direction whilst she attempted to leave the bedroom.
3. The respondent took hold of a fishing knife, which he obtained from his bedside table, and threatened to hurt himself if she left the room by pointing the knife at his left arm. This conduct constituted count 4. The respondent followed the victim and threatened to kill her if anyone stood in his way. The victim then left the house.
4. The victim sustained bruising on her arms and body, giving rise to count 5 of assault occasioning actual bodily harm (attached to count 4 on a Form 1). On 2 January 2019, the victim took photographs of some of the injuries she had sustained, and there is a photograph of the bruising on the victim's body in the agreed facts (agreed facts, p 4).

Count 6: Assault occasioning actual bodily harm and Sequence 14: destroy or damage property (Form 1 offence) (Incident 4)

1. On 3 January 2019, the victim was driving the respondent home from dinner. He became angry and told her to "fuck off". She changed the radio and he yelled, "who the fuck does this cunt think she is". She pulled over and attempted to calm him. The respondent threatened the victim to "take them home or it wouldn't be pretty". She continued to drive, and he continued to argue angrily with her. She stopped the car at a train station. He punched the dashboard, kicked the inside of the door and tried to damage the handbrake while the victim tried to push him away. This conduct constitutes sequence 14 (destroy or damage property) to be taken into account on a Form 1.
2. The respondent grabbed the victim's arm and twisted it behind her. He said, "it's either you or the car who's copping it". He pulled her by the hair to the console and punched her in the back which pulled out some of her hair. He pushed her around before slapping her across the face, causing stinging, numbness and welting. She sustained bruising to her body. This conduct constitutes count 6 (assault occasioning actual bodily harm).
3. She told him to get out of the car before she called police. He punched the windscreen three times, causing it to crack in multiple places. There is a photograph of the damaged windscreen in the agreed facts (agreed facts, p 4). He blamed her for the injury to his hand, which had glass in it. She drove him home.

Count 7: Assault occasioning actual bodily harm (Incident 7)

1. On 9 February 2019, the victim and the respondent were at his aunt and grandmother's home. He was looking through the victim's phone and saw photographs a male colleague had taken. She saw them and explained to the respondent that this colleague did this on everyone's phone. The respondent tried to find the victim's colleague on social media.
2. The victim asked for her phone back. He told her to "shut the fuck up" and said, "tell me his name if you don't care about him. If you don't tell me, I'll go to your work myself and let the cunt know what I think while I slice his neck and tell him it was because of you". She refused to tell him. He pushed her against the wall while resting his hand on her neck and yelled, "tell me". He squeezed slightly and threatened to choke her, whilst he taunted her. He used his elbow to hit her arm which caused bruising. He looked away and she went to run. As she did, the respondent threw the phone at her which contacted her arm. This caused pain and bruising. This conduct constitutes count 7.
3. There are photographs in the agreed facts, taken on 9 February 2019, showing bruising on the victim's arm (agreed facts, p 6).

Count 8: Intentionally choke person without consent (Incident 10)

1. On 9 March 2019, the victim and respondent were being intimate, and they started to have intercourse. She told him she was at the end of her period and still had some discharge. He saw this and accused her of cheating on him and called her a "lying grubby slut". He demanded to know "who she was cheating with" and said he would make her watch him torture whoever it was. He flipped her onto her back, grabbed her shirt in a fist and pushed his hand up her neck, choking her. She struggled to talk as her airway was blocked. This conduct constitutes count 8.
2. The victim tried to defend herself and sustained multiple scratches as a result. The respondent held her down on the bed by the neck and slapped her across the face and squeezed and pinched her thighs. She told him he was hurting her and to stop touching her. He eventually got off her and stood at the end of the bed, then he grabbed her by the hair and pulled her towards him. He tried to force her to do sexual things and said, "oh you don't like to be caught out, well go on be a slut for me then, get on your knees bitch". He squeezed her arms hard and pulled her to the ground as she tried to pull away. He told her she was "scum" and that he was going to make her pay. She sustained scratches to the chest and face that stung, as well as redness and burning from him pulling her.
3. There are photographs in the agreed facts taken on 9 March 2019, or in the days following, showing scratches to the victim's face and neck and bruising to the victim's arm (agreed facts, p 8).

Count 9: Intentionally choke person without consent (Incident 11)

1. On 12 March 2019, the victim attended her doctor as she was stressed and anxious about her relationship with the respondent. She was prescribed antidepressants. She returned home and the respondent found the medication. He became angry. She told him she had not started the medication and they were just in case she needed them.
2. The victim tried to leave the room, but he took hold of her arm. She tried to shake him off. The respondent grabbed her by the shirt, causing it to rip, and then dragged her through the doorway. Her body hit the door handle. He put his hand around her neck and pressed his fingers and thumb into it, which caused her to feel like she could not breathe properly. This conduct constitutes count 9.
3. The respondent told the victim, "how dare she blame him for feeling down" and stated that, "she only wanted attention". He threw the medication in the bin and told her not to take anything from doctors as it would make her crazy. She had a sore throat and bruises to her neck, chest and hip. On 19 March 2019, the victim went back to her doctor and said the respondent got angry when he found the medication. The doctor made a note to this effect.
4. There are photographs in the agreed facts taken on 13 March 2019 showing bruising to the victim's neck and arm (agreed facts, p 9).

Count 12: Assault occasioning actual bodily harm (Incident 19)

1. On 21 June 2019, the respondent came home drunk at around 3:00am. He woke the victim up and demanded she get him a bucket so he could vomit. She told him to go to the bathroom, but he refused and vomited in the bedroom into his shoes. Later in the morning, the respondent was moving the shoes and said, "you're so lucky you're a female, you'd be dead if you were a guy". He demanded she clean his shoes, but she refused and remained in bed. He pulled her hair while yelling, "fucking bitch".
2. He grabbed her arm, squeezed it hard and forced his head up against hers as he said, "you ask for it you smart ass bitch". She tried to move away from him, but he held her tighter and punched her in the arms and stomach. He eventually let her go and said, "you ruin everyday and weekend on purpose you fat cunt". She went to have a shower then returned to bed. He was not there.
3. About 30 minutes later, the respondent came into the bedroom and got into bed. He asked her to move over and kicked her in the back and legs, causing her to fall out of bed. She tried to get back into bed but was kicked again. She then lay on the floor and tried to sleep. She had scratches over her body, face and arms, bruises over her arms, stomach and back and she was in pain. This conduct constitutes count 12 (assault occasioning actual bodily harm).
4. There are photographs in the agreed facts taken on 21 June 2019 showing bruising and scratches to the victim's arm and neck (agreed facts, p 13).

Count 13: Intentionally choke person without consent and Count 14: Assault occasioning actual bodily harm (Form 1 offence) (Incident 23)

1. On 22 September 2019, the victim and the respondent were in their bedroom. They had an argument about her social media as males had requested to be her friend. She was lying on the bed. He kicked both her legs and back. He pulled her shirt upwards so that it was around her neck and pulled it tightly, causing her to choke. She could not breathe and felt scared as she believed she could not get out of the room. This conduct constitutes count 13.
2. The respondent hit the victim across the face, which caused cuts to her tongue and mouth. There is a photograph, taken on 23 September 2019, contained within the agreed facts showing the cuts to the side of the victim's face and tongue (agreed facts, p 15). The respondent squeezed both her cheeks hard and yelled in her face "slut" and "worthless pig". He then stomped on her foot.
3. She tried to explain the social media. He said he would add random girls and message them to get back at her, that he did not love her and that he wanted revenge and would make her pay for the hurt she had caused him. She managed to run past him and out of the house. The victim got into her car and drove around the block.
4. The victim suffered lacerations over her chest, arm, face, hands and back. She had a bruise on her foot and bruising to her neck and throat, as well as swelling and bruising to her face and jaw. Within the agreed facts, there are photographs of the victim showing "marks to [her] chest and face", "bruising to [her] foot" and "markings" on her forearm (agreed facts, p 15). She was in extreme pain and her body was sore for at least two weeks. She could not talk or swallow without pain due to the cuts to her tongue and mouth. This conduct constitutes count 14 (assault occasioning actual bodily harm) to be taken into account on a Form 1.
5. A few days later, the respondent sent the victim a picture to remind her he was not accepting her explanation and was going to kill the male in the photo when he found out his name.

Count 15: Assault occasioning actual bodily harm and Sequence 70: destroy or damage property (Form 1 offence) (Incident 24)

1. On 7 October 2019, the victim and respondent were driving home from the beach. They began to argue. He started to call her names. The respondent's name calling escalated to the point that she stopped the car in a back street. She could not focus on driving as she was too anxious and stressed. She tried to calm him down, but he told her to "fuck up cunt".
2. The respondent pulled the victim's hair towards the centre console. Some of her hair was pulled out of her head. He maintained hold of her hair and punched her in the face, causing her nose to bleed and a split between her nose and upper lip. This conduct constitutes Count 15. There is a photograph, taken that day, contained within the agreed facts showing the victim's "bloody nose/upper lip" (agreed facts, p 16).
3. The victim tried to defend herself and screamed at him to stop and let her go. She curled up trying to protect her face and free her hair from his grip. He elbowed her in the back then let go. She was crying. She had blood all over her shirt and over the car.
4. The respondent then punched the dashboard and radio, causing damage to the console such that it caved in and the air conditioning vents were further broken. This conduct constitutes sequence 70 to be taken into account on a Form 1. There is a photograph, taken that day, contained within the agreed facts showing damage to the victim's vehicle (agreed facts, p 16).
5. On the way home, a car pulled in front of them and the respondent had "road rage". He threatened to kill the person and was yelling for him to pull over and fight him. When they got home, the respondent jumped out but the victim stayed in the car and drove around the corner where she stayed for about 40 minutes.

Count 17: Intentionally choke person without consent (Incident 27)

1. On 12 April 2020, the victim and respondent were at home and she was trying to watch videos about child birth. He got angry and said he was going to play PlayStation and told her "not to disturb him with pointless shit like that". She walked to the balcony, and he followed her and shoved the door into her. She begged him to leave her alone and go inside. He said, "you started this and want to ruin my day, so you don't get to decide". She sat down as he stood over her. He grabbed her arms and told her she was "disgusting" and spat on her.
2. The victim put a pillow over her stomach and he moved towards her. As he did, he knocked over his motorbike which fell onto her. She tried to move it off her and asked him too as well, but he refused. She tried to get up, but he pushed her back and laughed and told her she was not going anywhere. She managed to get up and push him to get through the door, but he grabbed her by the hair, dragged her to a wall and pushed her against it. He yelled in her face, "fat cunt, slut, fucking bitch and a waste of breath". She began to cry. He took hold of her neck with both hands and squeezed it, strangling her. She was trying to get his hands off with one arm while blocking her stomach with the other. She could not talk. This conduct constitutes count 17.
3. The victim tried to push him off her, but he grabbed her arms and squeezed them hard. He shoved her and yelled, "you think I want to do this. Why do you do it, why do you make me get to this point". He then backed away from her. She ran upstairs to the bathroom and locked herself in. She sustained bruising around the neck. Her head was tender from having her hair pulled which caused a headache for some hours and her body ached.

Count 18: Assault occasioning actual bodily harm (Incident 30)

1. On 19 July 2020, the respondent was lying on a lounge at home when the victim approached him, indicating that she wanted to talk to him about issues in their relationship. He tried to force her to lie down with him. She asked him to sit up and talk properly but he pulled her down and would not let her get back up. He grabbed the collar of her shirt and yelled at her, saying he hated her and spit came out of his mouth and onto her face. He pushed her onto the lounge and squeezed her hand. She escaped his grip and moved to the bedroom where their child was sleeping and shut the door. He entered and pushed her onto the bedside table. He said, "don't touch her, you're not her mother, you're nobody to us, you've changed, I'm disappointed in you…".
2. Their child began to cry, and the victim tried to comfort her but the respondent pushed her away and stood between her and their child. He told her to get out of the room. She refused. He pushed her into the wall and began to punch her in the stomach and arms as their child continued to cry. He grabbed her hair and pulled her to the ground, causing her neck to crack. He grabbed at her face and scratched at it as she tried to push him away. He hit her on the side of her head extremely hard. She feared she would lose consciousness. He told her she disgusted him. She was holding their child in her arms. He grabbed the victim, threw her to the ground and kicked her. This conduct constitutes count 18.
3. The victim sustained bruises to her eyelid and under the eye, and bruises on her arms and thighs. She had a laceration to her chin and a burst eardrum. There are photographs in the agreed facts taken on 19 and 20 July 2020, showing "bruising to [the victim's] forearm…and eye" (agreed facts, p 19).

Count 19: Intentionally choke person without consent and Count 20: Assault occasioning actual bodily harm (Form 1 offence) (Incident 33)

1. On 15 September 2020, the victim was in the bedroom with their child. She sent the respondent a message asking if he wanted to feed her. She was unwrapping their child from a blanket when he entered the room and pushed her away. She pushed him back and said, "don't you dare push me while I'm handling her". He picked up their daughter and began to yell at the victim, telling her to "fuck off", that she was a "no good fat cunt" and a "lazy cunt who stays home all day doing nothing".
2. The victim begged him to calm down and put the child down, but he kept hold of her. He pushed the victim to the ground and kicked her. She got up and again told him to put the child down. He cornered her in the ensuite and punched her in the face. She was crying. He grabbed her hair in a fist and forced her head into the wall several times. He still had their child in his arms. The child was being swung around as the assault took place and was slipping from his grip. The victim again begged him to put the child down. He walked out of the bedroom, put the child onto a change table in another room and returned. He then punched the victim multiple times in the stomach, pulled her hair and took her by the throat and squeezed it while pressing her against the bedroom door. This caused her to choke and struggle to breathe. This conduct constitutes count 19.
3. The victim screamed at him to let her go as she was worried their child would fall off the table. She pushed back at him as hard as she could, but he pushed her to the ground and kicked her. He then went to the child. The victim had bruises all over her body and a split lip. This conduct constitutes count 20 to be taken into account on a Form 1. There is a photograph of the victim's bloodied and split lip in the agreed facts (agreed facts, p 20).

Count 22: Assault occasioning actual bodily harm and Count 21: Intentionally choke person without consent (Form 1 offence) (Incident 35)

1. The facts giving rise to count 22 have earlier been set out: see [17], above.
2. On 11 October 2020, the victim and the respondent had an argument about him trying to do something sexual against her wishes. He said he would call up his ex-girlfriend, then he accused the victim of cheating on him. She told him she did not want him as her partner. They were in the hallway when the respondent attacked her from behind. He choked her with the inside of his arm. She could not breathe and tried to break free. He forcefully maintained a grip around her neck and pushed her down to the ground with his body. She tried to talk and scream but was unable to do so. This conduct constitutes count 21 to be taken into account on a Form 1. He let her go and pushed her. He took her phone to the bathroom, locked the door and went through it. She suffered bruising around her neck and a swollen throat which affected her tone of voice.

The uncharged acts

1. The agreed facts provide details of 22 "uncharged acts". The sentencing judge referred to them in the course of describing the offending but, having done so, did not refer further to them. They were as follows.

The 20 January 2019 uncharged act (Incident 5)

1. On 20 January 2019, the respondent and victim were at the beach. She told him she was unhappy with his aggressiveness, jealousy and controlling behaviour. He became angry and told her he would kill anyone who was with her if their relationship ended, punched her and grabbed her by her t-shirt collar, causing her necklace to break. He grabbed her thigh, pushing his nails in, and said, "I swear to god, you ever cheat on me, it will be the end of both of you". She suffered bruising to her thigh.
2. There is a photograph in the agreed facts, taken by the victim on 23 January 2019, of the bruising on her thigh (agreed facts, p 5).

The 24 January 2019 uncharged act (Incident 6)

1. On 24 January 2019, the respondent and victim were in their bedroom. He became angry at text messages between her and a friend. He pushed her onto the bed and held her down by her shirt. She felt it choking her. He spat on her face and slapped her across the cheek, demanding she explain herself. He yelled that she was not going anywhere and blocked her from leaving the bedroom. She locked herself in the bathroom. He threatened to hurt himself with a knife if she did not come out. After a while, he calmed down and began to cry. She had a swollen face from the respondent slapping her, and her eye and face were irritated with a burning sensation. She was in pain for several days. There is a photograph in the agreed facts, taken 24 January 2019, showing swelling on the victim's face (agreed facts, p 5).

The 10 February 2019 uncharged act (Incident 8)

1. On 10 February 2019, the respondent and victim were at home and had plans to go to the movies. The respondent refused to leave until he had smoked some cannabis, which upset the victim. After a short time, they left the house and were talking in the victim's car. He grabbed the keys from her and threw them into a puddle. She ran towards the front door, but it was locked. As a result, she sustained scratches, lacerations and red marks to her arms, chest and face. The respondent ran to the victim's car and kicked the tyres and driver's door, which caused a dent. He yelled, "fucking cunts, you always wanna ruin my day, you will all learn one day to keep your mouths shut". The victim did not attend work the following day because of the pain and stress from the incident.
2. The victim took photographs of her injuries, but the respondent deleted them that night. There is a photograph in the agreed facts showing a dent to the driver's side door of the victim's vehicle taken on 14 February 2019 (agreed facts, p 7).

The 4 March 2019 uncharged act (Incident 9)

1. On 4 March 2019, the victim was in her bedroom and found a piece of paper on the bedside table saying, "you're a fuckwit". There is a photograph of the note left on the bedside table contained within the agreed facts (agreed facts, p 7). She confronted the respondent about this. They had an argument about her going to Europe. He told her she was not going and if she did, he would break up with her. She asked him to come with her, but he yelled at her and called her a "selfish cunt". He then said if she wanted to be single, he would get an apartment and invite other females. He spat on her face and told her she was dead to him. He shoved her with both hands into the bedroom wall. She had a reddened chest and bruising the following day.

The 20 March 2019 uncharged act (Incident 12)

1. On 20 March 2019, the victim was lying in bed in a family member's room. The respondent entered and asked her to go to their bed, but she refused. He tried to move her. She pushed him away and tried to run but as she did, he punched her in the back and kicked her hips, causing her to fall to the ground. She tried to block the kicks while she was on the floor. He pulled her up by the hair and slapped her across the face where he had the day before. He left the bedroom and she locked herself in the bathroom and had a shower. She stayed in that bedroom that night. When she woke the following morning, she was suffering from severe pain to the cheek and could not turn or lift her head without soreness to her neck. She also had bruising to her arm.
2. There is a photograph in the agreed facts, taken on 20 March 2019, showing bruising to the victim's arm (agreed facts, p 9).

The 23 March 2019 uncharged act (Incident 13)

1. On 23 March 2019, the respondent and victim were discussing their relationship. She said she did not think they should be together, given the violence she was experiencing and his drug and alcohol abuse. They had an argument about social media, and he took her phone and tried to delete some of her apps. She took his phone and "unfollowed" inappropriate content. He became agitated and said, "how dare you touch my account". He called her a "fucking fat bitch" and took the phone back. She asked for hers back but he refused. She tried to take it back, but he hit her in the chest causing her instant pain. He continued to push her around the bedroom and into a makeup stand. He picked up an eyeshadow palette and threw it on the ground and punched her. She sustained a large bruise on her chest and had tender arms. She then travelled to Europe from 2 to 25 April 2019. He called and messaged constantly which caused them to have arguments.

The 18 May 2019 uncharged act (Incident 14)

1. On 18 May 2019, the respondent and victim planned to attend the respondent's aunt's birthday lunch. On the way, she told him not to worry about it. He told her to "shut the fuck up" and called her a "useless pig". He then punched the dashboard of her car, leaving scuff marks from an object he was holding. She told him he had caused enough damage and it was not acceptable. He then punched the air conditioning vent, causing it to break. She told him she did not want to go to the lunch anymore and that she would drop him off. The respondent squeezed her thighs with his hand and dug his nails in, saying, "you ungrateful fuck, you make everything about yourself. Oh poor me, I'm a victim".
2. She tried to remove his hand from her thighs. He moved his hand to her arm and began to squeeze there, causing her pain. He took hold of her left hand which was holding the steering wheel and squeezed that hard, causing pain and cuts. They arrived at the restaurant and got out. The respondent said he would "fucking lose it" if she did not go in with him. They approached the respondent's family, and the victim immediately went to the toilet and broke down crying. She had bruising and cuts to her thigh and marks and bruising to her hand. She experienced pain in these areas for several days afterwards.
3. There are photographs contained in the agreed facts, taken on 19 May 2019, showing damage to the victim's vehicle (agreed facts, p 10). There are also photographs of nail markings and bruising to the victim's arm taken on 18 and 19 May 2019 (agreed facts, p 11).

The 20 May 2019 uncharged act (Incident 15)

1. On 20 May 2019, the respondent and victim were at home discussing their relationship. She said she was not okay with being physically and verbally abused. He exploded and grabbed her by the arms and shoved her into their clothes rack. She tried to leave but he blocked her. He told her she was a child. He pushed her around the room until she fell to the ground. She called out for help as he kicked her body. She managed to get up and get past him as he threw objects around the room. She got out of the room and he followed but his father stepped in front of him. The victim ran out and got into her car. The respondent called her several times and left abusive voicemails and texts. She stayed in the car until about 1:30am as she was too anxious to go back inside. She suffered from bruises and marks over her arms, thighs and stomach.

The 29 May 2019 uncharged act (Incident 16)

1. On 29 May 2019, the victim was at work at a hotel when she received multiple calls and text messages from the respondent. She was too scared to go home so her manager arranged for her to stay at the hotel for a few days. She went to a work colleague's house for dinner. She received multiple phone calls from the respondent, demanding that she come home and threatening to kill her if she did not.

The 30 May 2019 uncharged act (Incident 17)

1. On 30 May 2019, the respondent continued to contact the victim and make threats over the phone. He said she would be dead if she did not come home. He told her he was damaging her property and was going to kill himself. She got a friend to drive her to the respondent. On the way, she called triple-0 to come and help the respondent. When she arrived, the police were there. The respondent's family had contacted them as he was abusing them. She saw her hair straightener had been broken in half and other personal items had been damaged. Police found on the respondent's phone videos of him damaging her hair straightener and other items. In the agreed facts, there is a screenshot of a text message from the respondent and a photograph of damage to the respondent's personal items sent on 30 May 2019 (agreed facts, p 12).

The 15 June 2019 uncharged act (Incident 18)

1. On 15 June 2019, the respondent was "in a mood" because his aunt was busy and unable to take him to pick up cannabis. He asked the victim to take him, but she refused. He pushed her in the chest and called her a "useless cunt". He took hold of her hand and squeezed it while glaring at her. He grabbed her car keys and said he was going with or without her. She felt scared and that she had no option but to drive him. She suffered a stress rash as well as bruising to her chest, arms and hand for several days.

The 4 August 2019 uncharged act (Incident 20)

1. On 4 August 2019, the respondent and victim went to a doughnut store near the airport. On the way, the respondent asked her to stop the car so he could smoke some cannabis. She became frustrated at this. He then called her names such as a "fucking cunt". The victim told the respondent to stop being ungrateful and that he was being unreasonable. He took hold of her thigh with his hand and squeezed it. She flicked his hand away, and he slapped her across the face. She was upset and told him their relationship was almost life threatening. He attempted to open his door, but it was locked. He tried to grab the steering wheel, but she pushed his hand away and told him to stop. The victim turned into an industrial area and he attempted to open the door again, saying he would jump out if she did not stop. She told him to calm down and that she would stop when it was safe to do so.
2. At this point, the victim was anxious, her legs were shaking and she was crying. The respondent shut the car door and began kicking and hitting things in the car. The victim pleaded with him to stop. The respondent caved in the screen on the console, damaging a Bluetooth connection between the steering wheel and radio. He got out of the car and walked away. The respondent called the victim multiple times, but she kept terminating the calls. He returned about 45 minutes later and they went to the doughnut store. The victim told him that she did not want to eat as she could not stomach anything. He told her he did not want to waste his time, so she ordered something to keep the peace. As a result of this conduct, the victim sustained swelling to her face and her thigh felt tender.

The 22 August 2019 uncharged act (Incident 21)

1. On 22 August 2019, the respondent and victim were lying in bed at home. The respondent suggested they be intimate, but she refused. He slapped her across the face as she tried to move away. The respondent said, "how dare you, you disgust me, you fucking fat bitch". He grabbed her shirt and pulled her towards him, then pushed her away and said, "go rot you fucking dog". The victim suffered bruising to the left side of her face, a photograph of which, taken on 23 August 2019, is contained in the agreed facts (agreed facts, p 14).

The 31 August 2019 uncharged act (Incident 22)

1. On 31 August 2019, the respondent and victim had a conversation about him fixing the damage he had caused to her car which led to an argument. He called her a "fucking cunt" and said to her, "victim victim victim is all you want to be, you always want to ruin my days and weekends". She tried to reason with him, but he called her a "miserable bitch". He grabbed her arms and squeezed tightly. He said, "try me cunt, test me and see what happens. I'm not fixing shit when you annoy the fuck out of me". She told him to stop and let her go.
2. She pushed him away and began moving out of the bedroom to go to the bathroom and hide. He tried to grab her legs and yelled, "run away you stupid bitch, just like you always do". She went into the bathroom where she hyperventilated and had a "breakdown". She had redness on her arms and small bruises on her chest and legs. There are photographs in the agreed facts of red marks to the chest and bruising to the legs of the victim taken on 31 August 2019 (agreed facts, p 14).

The 13 December 2019 uncharged act (Incident 25)

1. On 13 December 2019, the respondent and victim had an argument as she wanted to go home to Queensland for Christmas, but he did not want her to go. He pushed her around the bedroom. He grabbed her arms and squeezed them while yelling in her face and did not allow her to leave. The victim and the respondent's family members tried to calm him down. He threatened to harm them all and himself. The victim received multiple abusive and threatening text messages from the respondent throughout the night, such as, "get here before I fucking kill you", "I'm going to go ballistic", "everything you get you going to deserve you fucking bitch, watch your shit" and "I'm going to duck [sic] you up". The victim sustained bruises to her arms.

The 28 March 2020 uncharged act (Incident 26)

1. On 28 March 2020, the respondent and victim had an argument about fixing the damage he had caused to her car. She told him she needed it fixed as she was pregnant. He told her she was a "selfish cunt" who only thought about herself and that there were "other people in this world too". He grabbed her arms and squeezed them hard, causing her pain. He said to the victim, "who do you think you are?" and, "you're so full of shit, do you hear yourself talk?". He punched her in the arm and told her to "get the fuck out of my face".
2. There is a photograph in the agreed facts of bruising to the victim's upper arm taken on 30 March 2020 (agreed facts, p 17).

The 17 April 2020 uncharged act (Incident 28)

1. On 17 April 2020, the victim approached the respondent about his drug and alcohol use which resulted in an argument. During this argument, the respondent grabbed the victim's wrist. He glared at her and squeezed her arm, saying that he "wasn't in the mood". She told him to stop but he got angry, saying it was her fault.
2. As a result of this incident, the victim had bruising on her forearm. There is a photograph, taken on 19 April 2020, in the agreed facts showing bruising to the victim's forearm (agreed facts, p 18).

The 15 July 2020 uncharged act (Incident 29)

1. After the respondent and victim's child was born in June 2020, they moved out of the respondent's family home and into their own. On 15 July 2020, they had an argument as she refused to be intimate with him. Later he tried to tell her she could "help him out", but she refused and told him he was "gross". They had dinner in silence, and he told her it was "shit". She started to clear the table, and when she returned, he kicked her in the stomach. She was four weeks post-partum and still very sore. She yelled at him not to touch her again as she would leave. He told her to "shut the fuck up bitch". She went to their child's room for the night. As a result of the assault, the victim suffered a bruise to her stomach. There is a photograph in the agreed facts, taken on 19 July 2020, showing this bruising (agreed facts, p 18).

The 24 July 2020 uncharged act (Incident 31)

1. On 24 July 2020, the respondent and victim had an argument over the lack of physical and emotional support she received from him. She also reminded him he had not transferred money for a bill that was due. He told her she was a "piece of shit and a sook" and pushed her against the wall. He also told her she was a child and he may as well have stayed with his ex. She suffered bruising to her chest. There is a photograph in the agreed facts, taken on 24 July 2020, showing bruising to the victim's chest (agreed facts, p 19).

The 16 August 2020 uncharged act (Incident 32)

1. On 16 August 2020, the respondent and victim had an argument. She confronted him about hiding drugs from her by preparing them in their child's bedroom. He told her to "shut the fuck up you annoying bitch". He put his hand around her neck and squeezed for a few seconds with immense pressure before pushing her away and letting go. She left the house with their child and contacted a friend. She sustained scratches to her jaw and neck and slight bruising.

The 24 September 2020 uncharged act (Incident 34)

1. On 24 September 2020, the respondent and victim had an argument about his drug use, during which he shut the door on her. The victim tried to open it and pleaded with him to come inside and not use drugs. He then pushed her back multiple times into a wall with force, telling her to "get the fuck out of my face cunt, go do something useful". He went back into a bedroom and slammed the door shut. The victim had scratch marks on her skin and bruising to her chest from the assault. There is a photograph in the agreed facts, taken on 25 September 2020, of bruising to the victim's chest (agreed facts, p 20).

The 16 October 2020 uncharged act (Incident 36)

1. On 16 October 2020, the victim was taking their child to the doctor. The victim and respondent had an argument as his alarm was waking up the baby and he was refusing to help with her. He called the victim a "lazy fuck" and said it was not his job to settle her, and that she "sat at home on her ass all day". She attended the doctor with their child and cried because of the stress.
2. While she was there, the respondent kept calling and messaging her. When she arrived home, he asked if she was okay, but she teared up and walked past him. He then grabbed her forearm and squeezed it with his fingernails. He prevented her from walking past and told her not to be a "disrespectful bitch".
3. There is a photograph in the agreed facts, taken on 18 October 2020, showing bruising to the victim's forearm (agreed facts, p 21).

Uncharged acts: their relevance to sentencing an offender

1. It is necessary to say something about these uncharged acts, and the use to which they can be put when sentencing an offender. As I have already noted, although the sentencing judge referred to these uncharged acts in the course of reciting the agreed facts, he did not thereafter make mention of them.
2. Uncharged acts are, in the sentencing process, conceptually and legally distinct from Form 1 offences.
3. By s 33(2) of the CSP Act, offences placed on a Form 1 are taken into account "in dealing with the offender for the principal offence", albeit that the Court is only sentencing for the principal offence: Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [39] ('Attorney-General's Application'); Blackett v R [2021] NSWCCA 210 at [39]. The "focus throughout must be on sentencing for the primary offence": Attorney-General's Application at [43]. Nevertheless, although sentencing for the principal offence, the sentencing court takes into account the matters for which guilt has been admitted "with a view to increasing the penalty that would otherwise be appropriate for the particular offence" - which it does by giving greater weight to the need for personal deterrence and retribution: Attorney-General's Application at [42]; Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115; (2013) 231 A Crim R 413 at [22]-[23] and [35] ('Abbas'). Uncharged acts, however, that amount to an offence cannot be taken into account in this way: Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81 at [25] ('TH').
4. Uncharged acts, as with the facts and circumstances of Form 1 offences, can be used when sentencing an offender in certain circumstances. These circumstances (and how such acts cannot be used) were described by Hamill J in LN v R [2020] NSWCCA 131 at [159]-[160] ('LN'): 159. … 1. To establish that the murder was not an aberration in an otherwise blameless life or to deny leniency on the basis that LN was otherwise a person of good character. LN had no prior criminal history. The weight to be afforded to that fact was diminished by the fact that she had committed a number of earlier assaults on her 3 year old son. 2. To dispel any suggestion that the offence was an isolated incident. 3. To impact on findings as to the applicant's motive and state of mind at the time of the murder. The evidence was led as tendency evidence in the trial specifically to establish the applicant's state of mind at the time of the killing. She admitted that she sometimes felt like killing the child and the evidence established that she harboured great resentment towards the child who reminded her of his father, who the applicant despised. The use of the evidence in this way is permissible even though it impacts on an assessment of the seriousness of the offence. 4. To establish that the victim was vulnerable and that the offender knew that the victim was vulnerable because she and her co-offender caused that vulnerability by the commission of the earlier assaults. The evidence of this included not only the history of violence itself but also the attempts to cover up the injuries and the applicant's conduct when the child was taken to various doctors and medical practitioners in the weeks leading up to his death. 160. However, the evidence could not be used to aggravate the offence by making an assessment of the overall course of conduct including the earlier uncharged, albeit mostly admitted, offences. Nor could it be used to increase the seriousness of the offence because the applicant caused the victim's vulnerability by committing the earlier assaults or by being a party to a joint criminal enterprise to commit those earlier assaults.

The sentencing judgment

1. After making the findings of fact in relation to the offending conduct and uncharged acts, the sentencing judge referred to the victim impact statement provided by the victim. He noted that the effects of the abuse on the victim were "profound", having been forced to live in fear throughout the long duration of the offending and to endure violence whilst pregnant and then with a baby. He further noted that the victim "continue[s] to suffer with the psychological consequences of [the offending]", which has "compromised her ability to trust others, her self-esteem and confidence and impacted her relationships with others" (J19-20).
2. In assessing the objective seriousness of the offending, the sentencing judge considered that the individual offences varied in their seriousness, but some considerations applied to them all (J20). They were all committed in the context of a relationship and in all the offences, the respondent "abused his physical dominance" over the victim. The sentencing judge found that none of the offences was planned, but occurred seemingly impulsively "in the context of anger stemming from sexual jealousy and possessiveness". The offending was not isolated and should be seen as "part of a pattern of broader conduct". The sentencing judge also found that each offence caused harm to the victim, both in terms of physical harm (which constituted an element of some of the offences) and psychological harm (which results cumulatively from all of the offending and, although it cannot be attributed to individual offences, must be recognised). With the exception of counts 6 and 15, the offences all occurred in the victim's home, where she should have been able to feel safe and secure.
3. The sentencing judge then went on to consider the objective seriousness of each of the individual offences, which varied according to the acts committed and their consequences (J20-22). These findings are later summarised in the table at [122].
4. The sentencing judge then considered the respondent's subjective background. He noted that the respondent was 25 years old at the time of sentence, and 20 to 22 years old when he committed the offences. The sentencing judge further noted that the respondent had a record of previous convictions for various offences (but not for serious violence offences), and therefore found that his record did "not warrant leniency as with a first offender but neither does it warrant special weight for specific deterrence or community protection" (J23).

Sentence summary

1. The table below summarises the objective seriousness findings of the sentencing judge and the sentences indicated for each offence, following the application of the 5% discount for the guilty plea: Count Offence and objective seriousness finding Indicative sentence 1 Assault occasioning actual bodily harm: "relatively low" (J20) 5 months (J27) 2 Armed with intent to commit an indictable offence: "moderate" (J22) 1 year and 5 months (J28) 4 Armed with intent to commit an indictable offence: "moderate" (J22) 1 year and 5 months (J28) 6 Assault occasioning actual bodily harm: "relatively low" (J20) 8 months (J27) 7 Assault occasioning actual bodily harm: "relatively low" (J21) 5 months (J27) 8 Intentionally choke without consent: "moderately serious" (J22) 11 months (J28) 9 Intentionally choke without consent: "moderately serious" (J22) 11 months (J28) 12 Assault occasioning actual bodily harm: "moderately serious" (J21) 11 months (J27) 13 Intentionally choke without consent: "also moderate" (J22) 1 year and 2 months (J28) 15 Assault occasioning actual bodily harm: "moderately serious" (J21) 1 year and 2 months (J28) 17 Intentionally choke without consent: "moderate to high" (J22) 1 year and 5 months (J28) 18 Assault occasioning actual bodily harm: "high" (J21) 1 year and 7 months (J28) 19 Intentionally choke without consent: "high" (J22) 1 year and 10 months (J28) 22 Assault occasioning actual bodily harm: "relatively low" (J21) 8 months (J28)

1. As earlier noted, the aggregate sentence ultimately imposed was 4 years and 6 months, commencing on 29 November 2023 and expiring on 28 May 2028, with a non-parole period of 2 years and 3 months. The first date the respondent is eligible for release to parole is 28 February 2026 (J29).

Introduction

1. In cases involving a Crown appeal against a sentence pronounced, this Court "may in its discretion vary the sentence and impose such sentence as… may seem proper": s 5D(1) of the Criminal Appeal Act 1912 (NSW). The notice of appeal filed by the Crown did not allege any specific error: the sole ground of appeal was manifest inadequacy of the sentence imposed by Gartelmann SC DCJ.
2. Whether a sentence is manifestly inadequate, or manifestly excessive, is a conclusion that "does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification": Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] ('Dinsdale'). The ultimate question, determinative of whether a sentence is manifestly inadequate, is whether the sentence is "unreasonable or plainly unjust", this being the language of the second category of error formulated in House v The King (1936) 55 CLR 499, 505; [1936] HCA 40 ('House v The King'). In this category of appeal, the specific error is not shown in the reasons of the sentencing court, but it may be inferred from the result that there was "a failure properly to exercise the discretion which the law reposes in the court of first instance": House v The King at 505.
3. In an appeal involving a ground alleging that a manifestly inadequate sentence was imposed, a number of other principles remain relevant, three of which should be mentioned. The first is that there is a broad discretion vested in the sentencing court: "judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies": Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [27] ('Markarian'). The second is that as "sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be 'warranted in law'" (Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]), so that "there will be a range of possible sentences that could be imposed without error": AB v The Queen (1999) 198 CLR 111; [1999] HCA 46 at [128]. The third is that, relevantly here, it is for the Crown to demonstrate that there is a disproportion manifest on the face of the sentence so as to be indicative of substantive error: CMB v Attorney General (NSW) (2015) 256 CLR 346; [2015] HCA 9 at [33] ('CMB').

Discussion and consideration

1. The Crown advanced a number of contentions, singularly and cumulatively, as the basis for an inference that the sentencing discretion miscarried, producing a manifestly inadequate sentence - that is, as some explanation for why the sentence, on its face, was "unreasonable or plainly unjust". The matters raised by the Crown can, broadly, be grouped as follows: 1. First, the aggregate sentence and the non-parole period both manifestly failed to reflect the respondent's objective criminality and the totality of the offending (Crown submissions at [58], [75]-[78]). 2. Secondly, that the sentencing judge gave insufficient weight to specific and general deterrence as well as community protection (Crown submissions at [64]-[68]). 3. Thirdly, that the sentencing judge allowed subjective considerations to, in effect, overwhelm the sentencing exercise (Crown submissions at [61]-[64], [66]). 4. Fourthly, the sentencing judge gave undue prominence to the respondent's prospects of rehabilitation and impermissibly engaged in a form of "double counting", and thereby erroneously reduced the aggregate sentence imposed (Crown submissions at [65]).
2. The respondent submitted that the sentence reflected a proper exercise of the discretion reposed in the sentencing judge, particularly given the subjective considerations identified and the subject of findings, and was not manifestly inadequate (respondent's submissions at [4]-[6] and [17]).
3. I will deal with each of the matters raised by the Crown, albeit in a slightly different order. As I explain in what follows, I am satisfied that the sentence was manifestly inadequate having regard to the nature and gravity of the offending, the circumstances of the offending and the subjective circumstances of the respondent. The sentence imposed was, in my view, "so plainly short of the mark as to bespeak error of principle", mandating intervention: Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 at [66] ('Nguyen').

The objective seriousness of the offending and totality

1. The Crown submitted that the aggregate sentence, and the non-parole period, both manifestly failed to reflect the respondent's objective criminality, and the totality of the offending: the Crown argued that it appeared that "there was some misapplication of the totality principle" with the consequence that the "aggregate sentence does not reflect the total criminality involved" (Crown submissions at [58] and [75]). The respondent contested that any inference of undisclosed error could be drawn in connection with the principle of totality, arguing that there was proper application of that principle by the sentencing judge (respondent's submissions at [9] and [11]).
2. Before dealing with the substance of the Crown's submissions, and whether the unidentified error possibly arose in the way argued, the two principles that underpin this part of the argument should be identified and explained. The first is in relation to the assessment of the objective seriousness of the offending. That assessment is a critical requirement of the sentencing process designed to ensure that an adequate sentence is imposed in accordance with s 3A(a) of the CSP Act and that the sentence is proportionate to the gravity of the crime: R v Campbell [2014] NSWCCA 102 at [27]; R v Van Ryn [2016] NSWCCA 1 at [133]-[136] ('Van Ryn'); FL v R [2020] NSWCCA 114 at [58]. The assessment of, and the finding about, the objective gravity of the offending also enables use to be made of the legislative guideposts, being the maximum penalty and, where prescribed, any standard non-parole period: R v West [2014] NSWCCA 250 at [27]; Van Ryn at [135]. In this case, none of the offences had a standard non-parole period, so that consideration can be put to one side. The second is the principle of totality, a principle that requires a sentencing court, when sentencing for a series of offences and imposing an aggregate sentence, to assess whether the aggregate is just and appropriate having regard to the totality of the criminality: R v Holder [1983] 3 NSWLR 245, 260; Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at [18]; R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481 at [11]-[12]. The objective of that principle is to impose "a total effective sentence which, so far as possible, accurately reflects the totality of criminality comprised in the totality of offences": Nguyen at [64].

General and specific deterrence and community protection

1. The Crown argued that the sentence imposed suggests that inadequate regard was had to general deterrence, whereas that matter was deserving of substantial weight (Crown submissions at [64]). A related submission was that the sentencing judge downplayed the need for specific deterrence and community protection, particularly having regard to the nature of the offending against the victim and the somewhat disturbing conduct involved in the respondent breaching an ADVO (not involving the victim, but a subsequent domestic partner) on more than 600 occasions (Crown submissions at [67]). In relation to specific deterrence and community protection, the respondent argued that the finding made by the sentencing judge as to the weight to be afforded to these matters was well within his discretion, particularly given there was no previous offences of violence nor prior offending as an adult (respondent's submissions at [16]).
2. The findings of the sentencing judge on this issue were earlier set out: see [119], above. Relevantly here, the sentencing judge accepted that "[g]eneral deterrence warrants significant weight in sentencing for domestic violence offences", but that the respondent's "mental condition and dysfunctional upbringing" warranted "some but limited moderation of that weight in this case" (J27). And, in relation to specific deterrence and community protection, they were regarded as "not irrelevant", due to the prolonged period of offending, but they did not "warrant special weight" (J27).
3. This Court has emphasised that domestic violence offending is regarded with the utmost seriousness, and that sentencing for such offending must reflect proper recognition of the need to denounce the conduct, to vindicate the dignity of the victims and recognise the harm done to them, to protect the community and, where appropriate, by imposing punitive and strongly deterrent sentences: see, for example, R v Edigarov [2001] NSWCCA 436; (2001) 125 A Crim R 551 at [41] ('Edigarov'); R v Hamid [2006] NSWCCA 302 at [86]; Cherry v R [2017] NSWCCA 150 at [78]; Director of Public Prosecutions (NSW) v Darcy-Shillingsworth [2017] NSWCCA 224; (2017) 269 A Crim R 40 at [83]-[85] ('Darcy-Shillingsworth'); Samandi v R [2020] NSWCCA 217 at [155]-[156]; Yaman v R [2020] NSWCCA 239 at [132]-[135]; R v Sharrouf [2023] NSWCCA 137 at [181]-[186].

Undue prominence and/or double counting in relation to rehabilitation

1. The Crown argued that the finding by the sentencing judge that the "aggregate [sentence] must remain not such as to deter the [respondent] from rehabilitation" (J28) strongly suggested that the sentencing judge gave undue prominence to promoting the respondent's rehabilitation when fixing the aggregate sentence and also by using it as a basis to find that there were special circumstances justifying the variation to the statutory ratio between the aggregate sentence and the non-parole period (Crown submissions at [65]). The Crown's ultimate submission was that these matters support the inference that the sentencing discretion miscarried.
2. Notwithstanding the Crown's submissions overlap, I will deal first with the argument about the role of rehabilitation in the context of the aggregate sentence, and then deal with the argument about the role of rehabilitation in the context of the finding of special circumstances (and special circumstances more generally).
3. Three matters warrant emphasis in relation to the finding made by the sentencing judge that the aggregate sentence must not "deter the [respondent] from rehabilitation" (J28).
4. The first is that the finding of the sentencing judge undeniably gave prominence to rehabilitation and was a finding made in spite of the earlier unfavourable findings about the respondent's prospects of rehabilitation including: first, the "offences were prolonged over a period of about two years"; secondly, the respondent "repeatedly breached albeit without violence an apprehended violence order made for the protection of another person subsequently"; thirdly, during a period of parole under another sentence, the Sentencing Assessment Report noted that the respondent "remained resistant to intervention to address offending such as this"; and, fourthly, there was "no indication he has addressed his psychopathology underlying the present offences or proposes to do so" (J26). Having made these findings, the sentencing judge was unable to find that the respondent's prospects of rehabilitation were good, or that the likelihood of his reoffending was low (J26). However, that the sentencing judge gave prominence, in the way that he did, to rehabilitation does not, in and of itself, bespeak error.
5. The second matter warranting emphasis is that the sentencing judge did not make a favourable finding about remorse. The finding was that there was "no other evidence of acceptance of responsibility for the offences or acknowledgement of their consequences such as to warrant a finding of remorse" (J26). The absence of a favourable finding about remorse was plainly relevant to any consideration of rehabilitation, and the respondent's prospects of being rehabilitated. That is because (genuine) remorse "is to be seen as a mitigating factor because it is a concomitant of rehabilitation": Stojanovski v R [2013] NSWCCA 334 at [41]; Brzozowski v R [2023] NSWCCA 129 at [3]. Genuine remorse is thus a "very important element in the exercise of the sentencing discretion" because it "enhances prospects of rehabilitation and reduces the need for specific deterrence": Barbaro v The Queen [2012] VSCA 288; (2012) 226 A Crim R 354 at [39] ('Barbaro').

The respondent's subjective case

1. The Crown argued that the inadequacy of the sentence (and non-parole period) was underscored by the fact that the respondent's subjective case was "not strong", and to the extent that favourable findings were made by the sentencing judge, they were commonly qualified (Crown submissions at [61]-[63]). The Crown submitted that his Honour may have allowed subjective considerations to overwhelm the sentencing exercise (Crown submissions at [66]).
2. The Crown submitted that, in relation to the respondent's subjective case, many of the findings of the sentencing judge were "arguably generous" based as they were on untested self-reports to a psychologist who had been qualified by the respondent's solicitors to provide a report for the sentencing hearing. Thus, by way of example, the Crown argued that the finding that the respondent had a "dysfunctional upbringing" (J27) needed to be understood in the context of the respondent moving in and residing with his aunt and grandmother from the age of 14 (following domestic violence offending against his mother) and his statement to the psychologist that he felt loved and safe in their home. The respondent continued to live with those family members and had the victim move into that home with him. Further, the respondent completed schooling to year 10 and subsequently obtained certificates in carpentry and engineering, fabrication and boiler making and was employed for six years before being sentenced for these offences.
3. It may well be that this finding (and the others referred to) can be fairly characterised in the way the Crown submitted. But given there is no specific challenge to the finding, or any of the findings made in connection with the respondent's subjective case, whether it bears that characterisation is of no moment: the Crown's appeal did not involve an allegation that the sentencing judge had made an error within the first category of error formulated in House v The King. In any event, I am unable to accept that the sentencing judge's consideration of the subjective matters raised by the Crown - the "dysfunctional upbringing" and the respondent's "mental condition" - on their own bespeak error, or permit an inference of error, in the exercise of the sentencing discretion resulting in a sentence below the range that could be justly imposed.

Other sentencing decisions

1. The Crown, in its written submissions, drew attention to a number of sentencing decisions involving domestic violence, or domestic violence-related, offending although, quite properly, those submissions acknowledged that there were limited numbers of sentencing decisions that might be used as a basis to assess whether the sentence was manifestly inadequate. The Crown also acknowledged that, even then, there were limits on the usefulness of this comparative exercise, given the similarities and dissimilarities between sentences imposed in those cases and the sentence imposed in the present one (Crown submissions at [68]). To the extent the exercise had some utility, the Crown submitted that there were parallels between two decisions - namely, Ladas v R [2022] NSWCCA 160 ('Ladas') and Habambo v R [2023] NSWCCA 328 - and the present case and that whilst those few cases did not establish a "range", nevertheless a consideration of those decisions (notably the decision in Ladas was the only decision that was the subject of oral submissions) could at least inform whether the sentence was manifestly inadequate (Crown submissions at [69]-[73]; Tcpt, 24 May 2024, p 2(30)-(40)).
2. The respondent contested the suitability of comparison between each of these decisions, submitting that "the comparison does not bear scrutiny" and that any analysis of the sentences imposed in those cases would be "of little assistance in assessing the circumstances of the present case" (respondent's submissions at [13]).
3. Whilst it is uncontroversial that regard should be had to sentencing decisions in comparable cases that may serve to illustrate, albeit not define, the possible range of sentences available, I do not consider that the few cases ultimately relied upon can be regarded as providing a sentencing pattern or a range of sentences against which to examine the sentence in this case: Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [54] ('Hili'); R v Pham (2015) 256 CLR 550; [2015] HCA 39 at [26] and [29]. Neither of them was sufficiently similar, as I will briefly explain by reference to the decision that was the subject of oral submissions - Ladas.
4. The decision in Ladas involved an offender who committed domestic violence offences, over a period of approximately two and a half years, against his former domestic partner. The offender pleaded guilty to nine substantive offences, with ten offences taken into account on a Form 1. The offences for which guilty pleas were entered involved two counts of use an offensive weapon (one count involved a baton, another count involved a "kitchen knife") with intent to commit an indictable offence (intimidation), contrary to s 33B(1)(a) of the Crimes Act; four counts of assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act; and three counts of intimidate intending to cause fear of physical or mental harm, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

Conclusion: the sentence was manifestly inadequate

1. In my view, having considered "all of the matters that are relevant to fixing the sentence" (Hili at [60]) and the matters relied upon by the Crown to support the inference that the sentencing discretion miscarried dealt with above, appellate intervention must occur because the nature of the sentence indicates that some underlying error has taken place, even though it is not possible to identify it from the reasons, resulting in a manifestly inadequate sentence. In my view, the markedly inadequate sentence pronounced by the sentencing judge is such that it amounts to "'an affront to the administration of justice' which risks undermining public confidence in the criminal justice system": Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [42]. The aggregate sentence imposed is, for that reason, "unreasonable or plainly unjust".
2. Given that conclusion, it remains to consider whether the appeal should nevertheless be dismissed in the exercise of this Court's residual discretion.

The residual discretion

1. The discretion of this Court, under s 5D(1) of the Criminal Appeal Act to vary a sentence and impose such sentence as to it seems proper, has been described as "residual", because "its exercise does not fall to be considered" unless the sentence pronounced involved error of law or fact or was unreasonable or plainly unjust: CMB at [54]; Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [51].
2. Further, once appellable error is demonstrated, the Crown is required "to negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised": CMB at [34]-[35], [56] and [66], citing R v Hernando [2002] NSWCCA 489; (2002) 136 A Crim R 451 at [12]. The "Court retains a discretion to dismiss a Crown appeal to be exercised on the basis of 'unfairness or injustice'", a discretion that is not "to be exercised on the basis of a narrow range of considerations": R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49 at [85] ('JW'). Whether there has been unfairness or injustice involves a consideration of the conduct of the Crown, including whether they have contributed to the sentencing error or whether the appellate challenge involves the Crown attempting to "conduct an appeal on a different basis to that advanced below": JW at [93]. Any delay in instituting a Crown appeal is also relevant, particularly if the delay has caused prejudice to the offender: R v Hallocoglu (1992) 29 NSWLR 67, 80; JW at [93]-[94].
3. Having found error in the sentence imposed, it remains to consider the "residual discretion". Before doing so, it should be noted that the respondent did not read any evidence on the appeal directed to the manner of its exercise.
4. I have separately considered whether, despite concluding that the sentence imposed was erroneously lenient, the appeal should nevertheless be dismissed. That is the course that the respondent argued should occur (respondent's submissions at 21). I am, however, satisfied that the Crown has negated any reason to exercise the discretion not to interfere, for the following reasons.
5. First, there has been no delay on the part of the Crown in instituting, and prosecuting, this appeal. The respondent, it should be noted, did not submit to the contrary. Further, the appeal has been listed for hearing, with expedition.

Resentence

1. Having concluded that the sentencing discretion miscarried and that the Crown has negated any reason why the residual discretion not to interfere should be exercised, it falls upon this Court to exercise the sentencing discretion across all counts and "impose such sentence as to the said court may seem proper": s 5D(1) of the Criminal Appeal Act.
2. In relation to resentencing the respondent, neither the Crown nor the respondent challenged any of the primary factual findings made by the sentencing judge, albeit that the Crown contested the inferences and/or conclusions drawn from those findings, as part of the overall complaint directed to the manifestly inadequate sentence imposed: Tcpt, 24 May 2024, p 5(39)-(42). Further, the respondent did not read any evidence on the "usual basis" - that is, to show events that have occurred since the time of sentencing, and not to advance a new and different case in the event that this Court resentenced the respondent: Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [2]; Ragg at [56]. Given there is no evidence of the respondent's post-sentence conduct, the sentencing discretion therefore proceeds on the basis of the findings made by the sentencing judge (DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 at [9]), and without regard to the sentences imposed by the sentencing judge: Turnbull v R [2019] NSWCCA 97 at [44]-[46]; RO v R [2019] NSWCCA 183 at [81]-[89]; AM v R [2024] NSWCCA 26 at [44].
3. In exercising the sentencing discretion, I am required to be mindful of the legislative guidepost - being the maximum sentence for each offence (as earlier noted, there is no standard non-parole period or minimum penalty applicable for the offences) - and to identify all factors relevant to the sentencing task, consider their significance and then assess the appropriate sentence: Markarian at [51]; Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26]-[27]. As previously noted, the maximum penalties for the offences are: 5 years imprisonment for the offence of assault occasioning actual bodily harm (s 59(1) of the Crimes Act); 7 years imprisonment for the offence of armed with intent to commit an indictable offence (s 114(1)(a) of the Crimes Act); and 5 years imprisonment for the offence of intentionally choke without consent (s 37(1A) of the Crimes Act).
4. In connection with these offences, the serious nature with which the offending must be adjudged is reflected in the maximum penalties, albeit that the maximum penalty is reserved for the worst category of cases or worst possible case constituting the offence: Markarian at [31]; Hurt v The King [2024] HCA 8; (2024) 98 ALJR 485 at [27].

1. Given an aggregate sentence is to be imposed, it remains to consider the principle of totality. As earlier noted, that principle requires a sentencing court, when sentencing for a series of offences and imposing an aggregate sentence, to assess whether the aggregate is just and appropriate having regard to the totality of the criminality.
2. The offending spanned nearly two years - from 3 November 2018 to 17 October 2020. The offences are substantially, or very substantially, "discrete acts" (as the sentencing judge in fact noted: J28). The separate and distinct nature of the offending has the consequence that there should be a greater degree of accumulation so as to reflect the total criminality: Nguyen at [64].
3. Applying the principle of totality in relation to the discounted individual sentences, I propose an aggregate sentence of imprisonment of 6 years, with a non-parole period of 4 years. The non-parole period reflects a finding of special circumstances so as to vary, slightly, the statutory ratio provided by s 44 of the CSP Act. That finding is based upon a combination of two matters: first, the respondent's youth (a matter, it should be emphasised, that I have not used as some generally mitigating circumstance when determining the aggregate sentence) and, secondly, to assist the respondent in his reintegration back into the community and the avoidance of future offending.
4. The respondent, although sentenced on 1 December 2023, was "remanded in custody for these offences [for] two days" (J29). The sentence should therefore commence on 29 November 2023 to account for the time the respondent was held in custody for this offending: ss 47(2) and (3) of the CSP Act.
5. The counts for which guilty pleas were entered involved offending that constitutes "domestic violence offences" within s 11 of the Crimes (Domestic and Personal Violence) Act, being personal violence offences committed against a person with whom the respondent was in a domestic relationship. The sentencing judge did not make an order that, pursuant to s 12(2) of the Crimes (Domestic and Personal Violence) Act, the offences be recorded on the respondent's criminal record as domestic violence offences and it would appear that his attention was not drawn to these statutory provisions. That further sentencing order should also be made.

Orders

1. For the above reasons, I propose the following orders: 1. Allow the appeal. 2. Quash the sentence imposed on the respondent on 1 December 2023 and in lieu thereof impose an aggregate sentence of imprisonment of 6 years, with a non-parole period of 4 years, commencing 29 November 2023. The respondent will become eligible to be released on parole on 28 November 2027. The sentence will expire on 28 November 2029. 3. Order, pursuant to s 12(2) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), that the offences be recorded on the respondent's criminal record as domestic violence offences.

Endnotes

1. Crimes Act 1900 (NSW), s 59.
2. Crimes Act 1900 (NSW), s 37(1A). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 September 2024