Rahman v R

Court of Criminal Appeal (NSW)|2023-03-24|Before: Adamson JA, Button J, McNaughton J

HEADNOTE [This headnote is not to be read as part of the judgment] On 3 December 2021, Mr Alex Rahman (the applicant) was sentenced in the District Court for two counts of kidnapping contrary to s 86(3) of the Crimes Act 1900 (NSW). Both offences were specially aggravated on the basis that they were each committed in company, and resulted in the victims suffering actual bodily harm. The applicant pleaded guilty to both charges, and accepted guilt of two further offences taken into account on a Form 1. After applications of discounts for the utilitarian value of pleas of guilty, indicative sentences were provided. An aggregate term of 10 years 6 months, with a non-parole period of 6 years 9 months was imposed. The facts central to the appeal were as follows. The applicant and a male co-offender, an employee at the applicant's concrete pumping business, entered into a joint criminal enterprise to abduct individuals for monetary gain. The applicant took on the role of organiser, while his co-offender carried out more acts of violence during the commission of the offence. The first victim was abducted and detained by two co-offenders in his own workplace. This offence constituted count one on the indictment. The co-offender struck the victim to the head with a pistol, causing grievous bodily harm. The victim was then further "bashed" by both co-offenders, driven to a semi-rural property, and placed, unconscious, into a shed. A demand was made for the payment of $4 million, and the beating continued. The victim was then left in the shed overnight, where he was subsequently found by passers-by. It was accepted by the sentencing judge that the applicant had no knowledge that any pistol had been brought by the co-offender prior to the offence. The applicant sought leave to appeal against his sentence on a single ground, based on remarks made by the sentencing judge: the sentencing judge erred in assessing the objective seriousness of the applicant's offence in count one by taking into account in that assessment the degree of violence inflicted by the co-offenders. The Court held, allowing leave to appeal but dismissing the appeal (per Button J, Adamson JA agreeing with separate reasons below; McNaughton J agreeing): 1. Applications for leave to appeal in this Court that are in direct contrast to concessions made at first instance are not to be encouraged, except in exceptional circumstances. Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460, applied. 1. It was conceded orally, and in writing, by defence counsel at first instance that the victim's injuries were relevant to the sentencing judge's assessment of objective seriousness. The Court did not accept that this concession could be withdrawn, or attacked, on the grounds that it had been made based on a misunderstanding of the law of sentencing. 2. The Court did not consider the approach to sentencing in New South Wales to be that the reality of what actually happened to a victim is disregarded where it is an unintended or unforeseen outcome by an offender. The injuries suffered by the first victim was part of the objective reality of the offending committed by the applicant. The sentencing judge decidedly took this into account as an objective feature of the offending, but did not consider it an aggravating feature against the applicant. Such a decision was not unorthodox, and was well open. 3. The proposed ground of appeal here concerned the sentencing judge's consideration of the degree of gravity of an element of the first count, that is, the degree of actual bodily harm inflicted on the victim. As such, the authority of Josefski v R [2010] NSWCCA 41; (2010) 217 A Crim R 183 offers no support for the applicant's argument. Josefski v R [2010] NSWCCA 41; (2010) 217 A Crim R 183, discussed. Per Adamson JA: 1. An application seeking leave to appeal in this Court is not an opportunity to resile from submissions or concessions made by counsel at first instance and accepted by the sentencing judge. Unless a serious injustice had been occasioned, and the Court could be satisfied that the concession ought not to have been made or accepted, no intervention by an appellate court would be appropriate in circumstances where subsequent counsel merely forms a view that he or she would not have made such a concession. Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460; Bell v R [2019] NSWCCA 251, applied. 1. It was open to the sentencing judge to accept the concession that violence inflicted on the victim by the applicant's co-offenders could be taken into account in her Honour's assessment of objective seriousness. Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, applied.

JUDGMENT

ADAMSON JA: I have been provided with the reasons of Button J in draft. I agree with the orders which his Honour proposes. As Button J has set out the background, the submissions and a summary of the sentencing judge's reasons for judgment, it is not necessary to restate them. My reasons for agreeing with Button J's proposed orders are as follows.
The sole ground of appeal is: "The sentencing judge erred in assessing the objective seriousness of the applicant's offence by taking into account in that assessment the degree of violence inflicted by the co-offenders."
The applicant relied on the following passages in the sentencing judge's reasons: "On behalf of the offender, it is submitted that the Crown can only have regard to the consequences of an offence that was intended, or could have been reasonably foreseen. In this case, the offender was not proximate to the initial abduction, and there is no evidence to warrant a finding that he was aware that the co-offenders would be armed with a firearm, or that the level of violence inflicted upon this victim would be as serious as constituting grievous bodily harm. As indicated above, I am not satisfied to the requisite standard that this offender was aware, or reasonably foresaw the possibility, that the co-offender, Mr Taufua, would be armed with a pistol. Nor am I satisfied to the requisite standard that this offender intended the degree of injury inflicted upon the victim. I am not satisfied that the skull fracture was an injury that this offender reasonably foresaw as a consequence of the abduction. I am not, therefore, persuaded that s 21A(2)(g) is enlivened and do not proceed upon the basis that substantial injury and emotional harm gives rise to an aggravating factor. That said, I have taken into account the degree of violence inflicted upon Mr Kassouf in determining the objective seriousness of the offence. I also acknowledge both the physical harm and emotional and psychological harm that has been inflicted upon Mr Kassouf, as set out in his victim impact statement." [Emphasis added.]
Before the sentencing judge, the applicant submitted that the violence inflicted on the victim by his co-offenders was not an aggravating factor but accepted that it could be taken into account when assessing objective seriousness. On appeal, Mr Woods, who appeared for the applicant, submitted that her Honour was in error in taking the violence inflicted on the victim into account when assessing objective seriousness.
The appropriate approach to be taken by this Court when a party seeks to resile from a concession made at first instance was considered in Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [81] where Johnson J (McClellan CJ at CL agreeing) said: "… in sentencing appeals, the Court is reviewing the exercise of a discretionary judgment and not rehearing a plea of mitigation. It is not the occasion for the revision and reformulation of the case presented below. The Court will not lightly entertain arguments that could have been put, but were not advanced on the plea, and will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of submissions previously made. [There is a] need for exceptional circumstances before this can be done, where it can be shown that there was most compelling material available on the plea that was not used or understood, and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence." [Citations omitted and emphasis added.]
An application for leave to appeal is not an opportunity to resile from submissions or concessions made at first instance which were accepted by the sentencing judge in circumstances where different counsel forms a view that he or she would not have made such a submission or concession: see, for example, Bell v R [2019] NSWCCA 251 at [44] (R A Hulme J, Bell P and Simpson AJA agreeing). If there has been a serious injustice and this Court is satisfied that the concession ought plainly not to have been made or accepted, this Court may intervene. However, this is not such a case.
This is not the occasion to articulate all the matters which may inform an assessment of objective seriousness. It is sufficient, for present purposes, to refer to what the High Court (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) said in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]: "The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending."
It was open to the sentencing judge to accept the applicant's concession that the violence inflicted on the victim by his co-offenders was relevant to the assessment of objective seriousness. For the reasons given by Johnson J in Zreika v R, this Court ought not permit the applicant to depart from the way in which the sentence hearing was conducted on his behalf. For these reasons, the sole ground of appeal has not been made out, although, for the reasons given by Button J, leave ought be granted.
BUTTON J:

Introduction On 3 December 2021, Judge Yehia SC (as her Honour then was) ('the sentencing judge') imposed an aggregate sentence upon Mr Alex Rahman (the applicant). He had pleaded guilty to two serious offences, and also accepted his guilt of two further offences, as follows.

The first count alleged that between 25 November and 26 November 2019, the applicant, in company with two other men, had taken and detained the first victim without his consent, with the intention of obtaining an advantage in the form of money, and at the time, actual bodily harm was caused to the victim. That offence is contrary to s 86(3) of the Crimes Act 1900 (NSW), and carries a maximum penalty of imprisonment for 25 years, and no standard non-parole period.
The second count alleged that on 6 March 2020, the applicant committed the identical offence against a second victim.
Two offences were taken into account on a Form 1 in sentencing for the second count. The first was knowingly directing a criminal group, contrary to s 93T(1A) of the Crimes Act, an offence which, when dealt with on indictment, carries a maximum penalty of imprisonment for 10 years. The second was an offence of knowingly fitting a vehicle with a tracking device in order to locate that vehicle. That offence is contrary to s 9(1)(b) of the Surveillance Devices Act 2007 (NSW), and when dealt with on indictment carries a maximum penalty of imprisonment for 5 years.
The learned sentencing judge provided an indicative sentence for the first count of imprisonment for 8 years 6 months, after a 10% discount for the utilitarian value of the plea of guilty. For the second count, taking into account the other two offences, and after having applied a 25% discount for the value of the plea, an indicative sentence of imprisonment for 5 years was provided.
Ultimately, an aggregate sentence of imprisonment of 10 years 6 months, with a non-parole period of 6 years 9 months, was imposed, to commence on 11 July 2020.
The applicant has sought leave to argue the following ground: The sentencing judge erred in assessing the objective seriousness of the applicant's offence by taking into account in that assessment the degree of violence inflicted by the co-offenders.
Because of the tight focus of that ground, and the fact that it was confirmed at the hearing that it pertained only to the first count (as indirectly calling into question the aggregate sentence), the further background of the matter can be sketched quite briefly. The following is derived from the remarks on sentence, the vast majority of which were not impugned in this Court.

Objective features

As for the first count, the applicant operated a concrete pumping business, in which a male co-offender was employed. The two of them entered into a joint criminal enterprise to abduct the first victim in order to try to obtain money. A further co-offender was to implement the plan with the first.
The applicant was the organiser. He took a number of steps to ensure the success of the offence.
The two co-offenders abducted and detained the first victim. One of them was in possession of a pistol, and struck the first victim to the head with it, with the result that he was rendered unconscious. He also suffered grievous bodily harm by way of very serious injuries to his head and skull.
To expand on the above a little, the first victim was violently assaulted in his workplace; he was struck to the head with the pistol there; an alerted neighbour saw the two co-offenders "bashing" the first victim while he was pinned on the ground; the neighbour retreated when he caught sight of the pistol.
The first victim, unconscious and bleeding, was carried by the co-offenders to a motor vehicle. His head was covered, and he was hit to that part of his body again. At one stage, he recovered consciousness.
He was driven to a semi-rural property, and placed, unconscious, into a shed, tied up and beaten yet again. At one stage, a hessian bag was placed over his head. A demand was made for the payment of $4 million; the beating continued by way of punches and kicks.
The first victim was kept in the shed overnight. In the meantime, police, no doubt alerted by the neighbour, were able to advance their investigations due to the incompetence of the co-offenders in executing the plan, in that an incriminating item had been left behind at the workplace.
In the meantime, other persons caught sight of the first victim: in the shed, lying on the floor, not moving, his wrists bound with ropes, and his face covered in blood. Eventually, police and ambulance attended, and the first victim was taken to hospital. There he was found to have: [A] shattered skull, laceration of the scalp and a brain hernia. He underwent surgery and experienced reduced mobility to his left side. The victim subsequently underwent cranioplasty surgery to have a mesh plate inserted into his skull. He has some ongoing numbness in his left foot and reduced accuracy of movement.
The second count was very similar to the above, except that it was even less competently executed. As I have shown, it occurred only a few months after the first count.
Again, the applicant as organiser tasked two co-offenders with kidnapping the second victim. Digital surveillance showed the centrality of his role.
A minor motor vehicle collision was manufactured in order to provide the opportunity for the kidnapping. When the second victim stopped as a result of the collision, the co-offenders attempted to carry him forcefully into their motor vehicle, but he struggled and screamed for help. Bystanders came out onto the street. The second victim was choked by one of the co-offenders grabbing a gold chain around his neck in an effort to keep him from escaping.
The second victim was able to free himself, and fled. He suffered cuts and abrasions, and an injury to a shoulder and a bicep. Those injuries required surgery. Yet again, the police were able to piece together what had happened, including before the short period of detention, without much difficulty.
As for the Form 1 tracking device offence, two days before the commission of the second offence described above, such a device was deployed on the motor vehicle of the second victim. No doubt, that was in order to facilitate the soon to be implemented kidnapping.
As for the second Form 1 offence, it pertained only to the role of the applicant in the second offence.

Subjective features

Turning now from the offences to the offender, telephone intercepts showed that his motivation for the offending was financial trouble.
The applicant was born in Tripoli, Lebanon. He unfortunately had a tumultuous childhood, affected greatly by the Lebanese Civil War after his family moved to Beirut. The applicant was exposed to distressing instances of violence. He witnessed people injured and killed in rocket attacks and shelling. His maternal uncle was kidnapped and never seen again. Eventually, his family was sponsored to join relatives living in Australia, and moved into the suburb of Mount Druitt in Sydney's west.
While living in Australia, the applicant attended public school. He transferred from Granville Boys High School to Marist Brothers on a rugby league scholarship. His career in that sport ended, however, following a major knee injury which resulted in him requiring knee reconstruction.
At home, the applicant was subjected to harsh physical punishments by his father. He left both school and his parents' house at 16, and was effectively homeless until a friend offered him a job working for a concrete pumping company six months later.
At 23, he met his ex-wife. They married a few years later and had two daughters. As a result of the applicant's struggle with depression, however, the marriage subsequently ended. Following their divorce, the applicant engaged in heavy poly-substance abuse. He reported drinking a bottle of vodka daily, and would regularly use cocaine and Xanax at that time. His addiction resulted in large debts. On top of this, the applicant had also accrued a significant tax debt before his arrest.
At approximately 9-years-old, the applicant had been sexually abused by a replacement minister at a Christian church. He continued to suffer from flashbacks as an adult when triggered by any reminders of the incident, and reported feeling like "less of a man" as a result of the abuse. The applicant would turn to substance abuse to block out distressing memories. He also reported suffering from intense depression and anxiety for many years prior to his arrest.
In custody, the applicant had experienced long periods of significant depression, and often suffered panic attacks, chest pain, shortness of breath and a racing heartbeat. On multiple occasions his panic attacks required admission to hospital. He had since been further diagnosed with Type 2 diabetes and asthma in custody, though reported struggling to obtain proper medical attention. Like many prisoners, the applicant also suffered many of the isolating restrictions that applied in custody due to the COVID-19 pandemic.
Finally, the applicant does have a prior history of violent offending, including offences of common assault, stalk and intimidate, and breaching a domestic violence order. It is noteworthy that, in 2013, he was given a two-year suspended sentence for the offence of take and detain in company.

Positions at first instance

In order to understand the proposed ground in context, it is necessary to set out quite a bit of what occurred in the District Court. All of the following focuses only on the first count.
Written submissions for the Crown on sentence, dated 17 November 2021, expressly submitted that the "level of violence used" on the victim, as well as the "extent of injury incurred by the victim", should be considered "noteworthy factors" when determining the objective seriousness of such an offence.
The violence inflicted on the victim was "substantial" and "ongoing", and it fell "at the high end of actual bodily harm" on the Crown's submissions. In determining the seriousness of the offending conduct, "it [was] appropriate to take into account the consequences of the offence, and particularly the harm resulting from the offence" (emphasis added).
In written submissions on behalf of the applicant, filed on the same date, it was conceded that the offending was "objectively very grave". Under the heading "objective seriousness", and under a subsection specifically referring to Count 1, counsel for the applicant wrote: [the offending] involved the kidnap, infliction of serious injury and detention for a period of time. The victim was left at the Shanes Park address until the next morning when he was located by real estate agents. (emphasis added)
On the other hand, it was also said that: Although it must be conceded that the actions of a co-offender can never be predicted or ultimately controlled, to suggest that the offender planned or ordered the methodology attached to the offending conduct, would be unsustainable beyond reasonable doubt.
On 18 November 2021, during the proceedings on sentence, counsel for the applicant conceded, again, that the level of injury inflicted upon the victim was: a very significant factor in [the sentencing judge's] determination of the objective seriousness of the offending given that a very low level of injury, such as bruising or scratching or the like, would satisfy the elements of the offence…Although he is responsible for it in the sentencing exercise because they're the injuries that were occasioned your Honour still has to consider, in my submission, the role played by this offender and the fact that he did not inflict those injures, and did not direct that level of injury to be inflicted. (emphasis added)
The Crown, building on that concession, reiterated orally that the victim's injuries render the objective seriousness of the offending conduct more severe: My friend's conceded that the injurie (sic) sustained were substantial and fall at the high end of actual bodily harm [injuries]. And one of the things I seek to do, your Honour, beyond providing your Honour with fairly detailed written submissions, is to speak to the consequences of the offending conduct which is something that your Honour should place significant weight on so far as your Honour's sentencing exercise.
No issue was subsequently taken by counsel for the applicant with the above submission.
On 21 November 2021, with her Honour reserved, further submissions on sentence were filed by the Crown (if that was done without invitation from her Honour, it is to be discouraged). Though it had been submitted orally just days earlier that the first victim's injuries were to be taken into account only with regard to the assessment of objective seriousness, the Crown's supplementary submissions now stated that the "substantial injury and emotional harm" suffered by the victim gave rise to an aggravating factor pursuant to s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the CSPA"). The nature of the injuries inflicted, it was argued, was "significantly more deleterious than 'actual bodily harm' and clearly establish grievous bodily harm". The emotional and physical harm suffered by the victim, it was submitted, were "so substantial, that they go well beyond what would be expected as a commonplace consequence of a kidnapping, thus well and truly satisfying s.21A(2)(g)".
Approaching the putative circumstance of aggravation in that way, it was said, could not transform the first count into a more serious offence, as there are no kidnapping offences that involve the infliction of grievous bodily harm pursuant to the Crimes Act. There was therefore no danger, it was submitted, of imposing a penalty for a more serious offence than the one charged, or breaching the well-known principal discussed in The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 at 389.
On 26 November 2021, the applicant's solicitor responded in writing to these further submissions of the Crown. Any consideration of the additional aggravating factor under s 21A(2)(g), it was argued, would be "an error": The Crown submits that the Court can reason that because an offence under s. 86(3) merely requires the infliction of ABH and no more serious offence exists at law, this does not offend that principle. However, that submission fails to have regard to the fact that crucially, the Court can only have regard to the consequences of an offence that were intended or could have reasonably been foreseen - Josefski v R (2010) 217 A Crim R 183 at [4], [38]-[39] … There is no evidence to warrant a finding that he was aware that the co-offender would be armed with a firearm or indeed that the level of violence inflicted upon Mr Kassouf would be inflicted."
As can be seen, this point of contention - founded upon a radical change of position by the Crown - was all about whether the level of injury to the first victim could be regarded as a circumstance in aggravation. The solicitor for the applicant firmly resisted that; he did not, however, resile from anything that counsel had said about reflecting on the level of injury in the assessment of objective seriousness of the first offence.
For completeness, on 3 December 2021, the proceedings on sentence continued briefly before the imposition of sentence, but nothing relevant to the ground took place.

Crucial portions of remarks on sentence

I now set out the parts of the remarks on sentence that seem to me relevant to the proposed ground.
When providing an initial summary of the objective features of the first count, including the possession by a co-offender of the pistol, the rendering of the first victim unconscious, and the infliction of grievous bodily harm, the sentencing judge said the following: I pause to note that on the material before me I cannot be satisfied beyond reasonable doubt that this offender was aware that a co-offender would be armed with a pistol. Notwithstanding the fact that it was this offender who organised the criminal activity and recruited the co-offenders, I cannot infer from those facts, to the requisite degree, that he was aware or reasonably foresaw the possibility that the co-offender would be armed and use the weapon in the course of the kidnapping. (emphasis added)
Later, under the heading in the written sentencing judgement of "Objective Seriousness", her Honour said: Sequences 1 and 2 are very serious examples of specially aggravated take and detain in company and attempt specially aggravated take and detain in company. In each case, there was a degree of planning and coordination involved. In respect of sequence 1, there was some effort made to hide the identity of the offenders by borrowing a car and covering the registration plates, however, those attempts were relatively unsophisticated. In respect of that offence, the victim was exposed to repeated violence by two offenders acting jointly, and the incident took place over an extended period of time. His injuries were significant. In supplementary written submissions filed on behalf of the Crown, the Crown resiled from the position taken during the sentence proceedings. During the course of oral submissions, the Crown did not rely upon substantial injury and emotional harm as an aggravating factor pursuant to s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW). However, in supplementary submissions dated 21 November 2021, the Crown submits that [the first victim's] emotional and physical injuries are so substantial that they go well beyond what would be expected as a commonplace consequence of a kidnapping, thus constituting an aggravating factor. The Crown further submits that the physical injury inflicted upon this victim falls at the higher end of the range of actual bodily harm and, indeed, constitutes grievous bodily harm. The Crown submits that I would not be falling into error in taking into account the grievous bodily harm inflicted because the circumstance of aggravation raised cannot translate into a more serious offence at law, given that there are no kidnapping charges that involve grievous bodily harm. On behalf of the offender, it is submitted that the Crown can only have regard to the consequences of an offence that was intended, or could have been reasonably foreseen. In this case, the offender was not proximate to the initial abduction, and there is no evidence to warrant a finding that he was aware that the co-offenders would be armed with a firearm, or that the level of violence inflicted upon this victim would be as serious as constituting grievous bodily harm. As indicated above, I am not satisfied to the requisite standard that this offender was aware, or reasonably foresaw the possibility, that the co-offender, Mr Taufua, would be armed with a pistol. Nor am I satisfied to the requisite standard that this offender intended the degree of injury inflicted upon the victim. I am not satisfied that the skull fracture was an injury that this offender reasonably foresaw as a consequence of the abduction. I am not, therefore, persuaded that s 21A(2)(g) is enlivened and do not proceed upon the basis that substantial injury and emotional harm gives rise to an aggravating factor. That said, I have taken into account the degree of violence inflicted upon Mr Kassouf in determining the objective seriousness of the offence. I also acknowledge both the physical harm and emotional and psychological harm that has been inflicted upon Mr Kassouf, as set out in his victim impact statement. (emphasis added)
It is the last four sentences of that extract that form the nub of this application.
Immediately after that passage, the sentencing judge assessed the objective seriousness of the first count as being "above the middle of the range of objective seriousness, but not at the highest end of that range". As for the second count, the assessment was that the offence fell "in the middle of the range of objective seriousness for this offence category".

Written submissions of applicant in this Court

The applicant asserted that the sentencing judge erroneously considered the violence inflicted upon the victim when determining the objective seriousness of the offending. As extracted above, her Honour remarked that she had not been satisfied beyond reasonable doubt the applicant was aware the co-offender would be armed with a pistol (which was, it is to be recalled, the implement that struck the initial blow to the head of the first victim). Yet her Honour also said the following: …I have taken into account the degree of violence inflicted upon [the first victim] in determining the objective seriousness of the offence.
Since her Honour did not find that the first victim's injuries were a consequence intended or reasonably foreseen by the applicant (thereby not engaging s 21A(2)(g) of the CSPA), it was submitted that the degree of violence inflicted on the first victim was nevertheless incorrectly taken into account when determining the objective seriousness of the applicant's offending.
Counsel for the applicant submitted that, as a legal principle, a sentencing judge may only consider the consequences of an offence that were intended, or reasonably foreseen: see, for example, Josefski v R [2010] NSWCCA 41; (2010) 217 A Crim R 183 at [21]-[39]. The degree of violence inflicted on the victim could have been referred to by her Honour by way of background, but could not, it was submitted, be "[factored] into the assessment of objective seriousness, since this violence was not intended or foresee by [the applicant] according to her Honour's findings".
Ultimately, it was argued that the objective seriousness of the applicant's offending was determined erroneously. This error, it follows, must have indirectly affected the aggregate sentence imposed by her Honour.

Oral submissions of applicant

During oral submissions, it was conceded that counsel for the applicant at first instance had accepted the level of injury inflicted on the victim was a "significant factor" to be considered by the sentencing judge. Even so, it was argued that this concession was "wrong", and inconsistent with the sentencing judge's finding that it had not been proven beyond reasonable doubt that the applicant knew the injuries inflicted would be as serious as they were. The applicant, it was contended, could not be held responsible for the full extent of the injuries, because he did not foresee or intend that they would be inflicted.
At the hearing, counsel was asked by the Bench to consider whether, speaking hypothetically, if injuries inflicted upon a victim were less than what was intended or foreseen by an offender, a higher level of injury must, on his thesis, need to be considered as opposed to the outcome that had actually occurred purely because the actual, less serious, outcome was unintended. Counsel for the applicant accepted that the hypothetical offender could not be punished for harm which did not actually occur. However, the assessment of objective seriousness when sentencing an offender, it was submitted, must only relate to the objective seriousness of that offender's conduct and what they intended or foresaw. The objective reality of what actually happened to the victim in the present case, must be disregarded.
Focusing upon the sentencing judge's refusal to apply the s 21A(2)(g) aggravating factor, counsel for the applicant argued that her Honour's subsequent consideration of the victim's injuries in assessing objective seriousness was inconsistent: Her Honour has rejected the Crown submission as to the statutory aggravating factor, but has accepted the Crown's submission that it can be taken into account in assessing objective seriousness. Of course that gives rise to the question, "Well, why should the principles apply any differently for these two different sentencing tasks?" Plainly they can't and, if her Honour was not satisfied beyond reasonable doubt that the offender had foreseen the fracturing of the skull, the smashing of the head with the pistol and so on, well then it was quite proper for her Honour to decline to apply the aggravating factor and it would have been correct for her Honour then to exclude that matter from her Honour's assessment of the objective seriousness. But, her Honour didn't do so, in my submission, according to the sentencing remarks read fairly and in the context of the sentence that was imposed, number one, and the submissions and exchanges that were made during the hearing.
Having said all that, it was ultimately accepted that it would have been proper for the sentencing judge to take the victim's injuries into account in a "general contextual way". It clearly needed to be recorded as part of the objective narrative, though counsel for the applicant nevertheless asserted that the level of harm suffered was not part of the objective seriousness of the applicant's offending.

Submissions for the Crown

Written submissions for the Crown argued that the complaint "raised hinges on the use of a single sentence in the judgment". When the judgment is read as a whole, it was asserted, the error contended for the applicant was simply not made out.
It was submitted that, immediately preceding the contentious phrase, her Honour appropriately excluded the following from her consideration: 1. The use of the handgun; 2. The degree of injuries sustained by the victim generally; and 3. Any aggravation by substantial injury and emotional harm.
The Crown argued that the subsequent words, "That said, I have taken into account the degree of violence" thus implied that the above matters were excluded. Other violence, as reasonably foreseen by the applicant, were appropriate for her Honour to consider. Had the use of the handgun, the infliction of grievous bodily harm or further aggravation by serious injury been considered in determining the objective seriousness of the first count, however, the Crown submitted that a finding approaching the upper end of the range of objective seriousness would have been expected.
In oral submissions, the Crown further proposed that the use of the term "That said" as a transitional phrase has a "neutral" effect; it should not be read as meaning "despite that", but as merely acknowledging her findings and building them into her Honour's subsequent deliberations.

Determination

Dealing with two preliminary matters first, contrary to the submission of the Crown in this Court, discussed above, I believe that the sentencing judge was drawing the distinction for which the applicant contends. The extent of the injury was taken into account with regard to objective seriousness, but was not taken into account as an explicit aggravating feature. I think that the plain meaning of the last few sentences of the lengthy extract provided by me above demonstrates that.
To the extent that the Crown made a contingent concession (if its reading were not accepted) that a matter not taken into account as an aggravating feature should also not be taken into account regarding objective seriousness, I respectfully do not accept that concession, for reasons that I shall provide shortly.
As a starting point of discussing the merit of the ground itself, it can readily be seen that the proposed ground flies in the face of a concession made at first instance by counsel (who happened at the time to be a very senior junior criminal law specialist) many times: in writing, orally, and implicitly by making no reply immediately after the final oral submissions of the prosecutor in the proceedings on sentence.
And that concession was confirmed subsequently (at the least implicitly) in writing by a solicitor who also happened to be a criminal law specialist.
This Court has discouraged applications for leave to appeal against sentence that are directly contrary to concessions made to busy District Court judges who are seeking to deal with a very significant sentencing caseload, and who understandably rely upon the legal profession to focus upon the real legal and factual disputes in the proceedings on sentence: for one of many examples, see the judgment of Johnson J (with whom McClellan CJ at CL and Rothman J agreed; Rothman J with additional reasons) in Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [81].
That state of affairs could in itself constitute a ground for refusing leave to appeal against sentence. For (at least) systemic reasons, I do not believe that it is appropriate - except in quite unusual circumstances - for the criminal justice system to operate in such a way whereby counsel can repeatedly concede a proposition in proceedings on sentence, orally and in writing, and thereafter that concession can not only be withdrawn, but even directly attacked in this Court.
Having said that, there will certainly be cases of wrongly entered concessions, based on misunderstandings of law or fact by counsel at first instance, that lead to injustices and that will constitute exceptions to the above approach. Because counsel for the applicant submitted that this was such a case, I shall proceed to deal with the ground on its merits, albeit briefly.
As I have shown, counsel for the applicant himself explicitly conceded in oral submissions in this Court that the degree of injury occasioned to the first victim was something that be reflected upon by the sentencing judge in the remarks on sentence; in other words, he did not submit that it was to be disregarded completely. His position was that it was neither a subjective feature, nor an aggravating factor, nor indeed - on his thesis - an objective feature of the offending. His submission was that it was in some form of fourth category - "one of these sentencing factors which actually doesn't affect and cannot affect the imposition of the sentence."
I do not accept that submission. The injury done to the first victim was part of the objective reality of the consequences of the offence that the applicant had organised. It was, literally, an objective feature of the offending. And it is important to my analysis not only that actual bodily harm to the first victim was an element of the first offence - an element for which the applicant explicitly took responsibility, by way of his plea of guilty - but also that there was no "greater" offence (such as kidnapping or detention in company with the infliction of grievous bodily harm) that explicitly engaged the principles discussed forty years ago in The Queen v De Simoni, because it was a part of a structure of increasingly aggravated forms of the offence.
The broad submission for the applicant can be tested by the following simplified example. An offender persuades the co-offender to inflict physical injury on the victim. The strong suggestion given by the first offender is to inflict a 1 cm cut. In fact, the co-offender inflicts a 3 cm cut. The first offender pleads guilty to being an accessory before the fact to assault occasioning actual bodily harm. Is the 3 cm cut - as a matter of objective reality, actually inflicted upon the victim - to be disregarded as an objective feature of the offending, and put in some other, ineffectual category, whereby it is neither that, nor (obviously) a subjective feature, nor, on the approach of the sentencing judge here, an aggravating feature to be taken into account against the first offender? Is the objective seriousness of the offence to be assessed on the basis that only a 1 cm cut was inflicted, quite contrary to objective reality? That is not, I believe, the approach to sentencing for unintended and unforeseen outcomes adopted in New South Wales, whatever the mental element of the offence in question, at the least when those outcomes constitute an element of the offence. The answer, I believe, to both questions is in the negative.
That does not mean, of course, that sentencing judges should adopt an unsophisticated or simplistic approach that focuses merely on outcomes of offences, whether those outcomes are elements or not. Certainly, the "degree of distance" between a planned offence and its ultimate adverse outcome can often be relevant considerations on sentence. And whatever the consequences of an offence, the state of knowledge, belief, intention, recklessness, other form of foresight, or other states of mind (including complete inadvertence) on the part of an offender constitute important questions on sentence that certainly feed into the question of degrees of culpability and the appropriate punishment. And there may also be cases in which an outcome that is undoubtedly part of the objective reality of the consequences of the offence is even so not to be "sheeted home" to an offender as an aggravating feature pursuant to statute.
But all of that is unexceptionable; indeed, I would have thought orthodox. And as I have shown, it is precisely what happened here: her Honour identified the degree of harm done to the first victim as an objective feature, but declined to take it into account against the applicant as an explicit aggravating feature.
Separately, with regard to the decision of Josefski v R, in which Howie J returned to consider further the correctness of what his Honour had said in the decision of this Court in R v Wickham [2004] NSWCCA 193, three aspects of the judgments in that appeal are immediately noteworthy.
First, the relevant ground of appeal there contended "that his Honour erred in finding matters of aggravation in respect of each of the offences": at [9].
In other words, the fundamental context in which the judgment of Howie J (with whom James J and Davies J agreed) was delivered was consideration of whether unintended, unforeseen, and not reasonably foreseeable consequences of an offence could be matters in aggravation, not whether they may be aspects of the objective seriousness of an offence.
Secondly, the aspects of the offences under consideration in that appeal were not elements of the offences for which Mr Josefski was to be sentenced. The first charge was aggravated break, enter and steal, and the circumstance of aggravation relied upon by the Crown was being in company: see [19] of the judgment. The second charge was robbery in company, which speaks for itself. The controversial factors taken into account as circumstances of aggravation by the sentencing judge in that case were emotional harm caused to a victim, and the presence of a child under the age of 18 years.
That, of course, can be sharply contrasted with the situation here: the proposed appeal is based upon taking into account the severity or degree of gravity of an element of the first count, namely, the degree of actual bodily harm inflicted upon the first victim.
Thirdly, that distinction is amply emphasised by the fact that, after a discussion of authorities from Tasmania, Victoria, and South Australia, Howie J said "it seems that this Court should as a matter of comity apply the common law as pronounced in South Australia and Victoria": at [39].
And yet the very last authority from those jurisdictions from which his Honour quoted was that of Director of Public Prosecutions v Arvanitidis [2008] VSCA 189, in which Redlich JA said: [52] The consequence of conduct is punishable, though not intended or foreseen, where an element of the offence is the consequences of the act. The law has for some time distinguished such offences from those which had unintended and unforeseen consequences which were not an ingredient of the offence. Where the offence is of the latter kind, if the consequences of the offender's acts are not such as would reasonably have been foreseen, the consequences are not generally to be used against the offender. (Footnote omitted, emphasis added)
In other words, the authority of this Court relied upon by the applicant was in truth delivered in the context of a very different ground of appeal, and in any event reflected upon circumstances that were not an element of the offence, in sharp contrast to the matter under discussion. And the ultimate destination of Howie J was to accept the approach extracted above, contrary to the submission for the applicant.
In short, I do not believe that the authority of Josefski v R advances the arguments of the applicant; if anything, it tends to the contrary.

Proposed orders

As I have shown, the ground directly contradicts a considered concession, repeatedly made, on behalf of the applicant at first instance by his then-counsel and implicitly maintained by his solicitor.
I also consider that that concession was correct; indeed, inescapable.
Finally, I do not believe that the taxonomy put forward by the applicant in this Court is correct, at the very least when discussing the severity of an element of an offence.
All of that, I respectfully think, suggests that leave should be refused.
Nevertheless, in order to avoid any possibility of re-agitation of this matter, I propose the following orders: 1. Leave to appeal against sentence granted. 2. Appeal against sentence dismissed.
MCNAUGHTON J: I have been provided with the reasons of Adamson JA and Button J in draft. Button J has set out the background, the submissions and a summary of the sentencing judge's reasons for judgment, which I gratefully adopt. Central to the reasons of both Adamson JA and Button J is the decision of this Court in Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460, especially at [81] which discourages applications for leave to appeal against sentence which involve a ground which is directly contrary to concessions made before the primary sentencing judge.
Intervention by this Court is of course appropriate if there has been a serious injustice and this Court is satisfied that the concession ought plainly not to have been made or accepted. However, for the reasons set out by Button J, this is clearly not such a case, and the ground of appeal has not been made out.
I agree with the orders Button J proposes.

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Crimes Act 1900(NSW)ss 86(3), 93T(1A)

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