[2023] NSWCCA 133
Bugmy v The Queen (2013) 249 CLR 571
Cahyadi v R [2007] NSWCCA 1
(2007) 168 A Crim R 41
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
[2010] NSWCCA 194
El Masri v R [2022] NSWCCA 27
Elias v The Queen (2013) 248 CLR 483
[2013] HCA 31
Elsaj v R [2017] NSWCCA 124
Greenyer v R [2016] NSWCCA 272
Hili v The Queen (2010) 242 CLR 520
Source
Original judgment source is linked above.
Catchwords
[2023] NSWCCA 133
Bugmy v The Queen (2013) 249 CLR 571
Cahyadi v R [2007] NSWCCA 1(2007) 168 A Crim R 41
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1[2010] NSWCCA 194
El Masri v R [2022] NSWCCA 27
Elias v The Queen (2013) 248 CLR 483[2013] HCA 31
Elsaj v R [2017] NSWCCA 124
Greenyer v R [2016] NSWCCA 272
Hili v The Queen (2010) 242 CLR 520[2010] HCA 45
House v The King (1936) 55 CLR 499[1936] HCA 40
JM v R [2014] NSWCCA 297(2014) 246 A Crim R 528
Johnson v The Queen [2004] HCA 15[2005] HCA 25
Moodie v R [2020] NSWCCA 160(2020) 284 A Crim R 87
Nguyen v The Queen (2016) 256 CLR 656[2016] HCA 17
Obeid v R (2017) 96 NSWLR 155[2017] NSWCCA 221
Paterson v R [2021] NSWCCA 273
R v Holder [1983] 3 NSWLR 245
R v MMK [2006] NSWCCA 272(2006) 164 A Crim R 481
Shannon v R [2022] NSWCCA 41
Shavali v R [2022] NSWCCA 178
Wong v The Queen (2001) 207 CLR 584[2001] HCA 64
Zreika v R [2012] NSWCCA 44
Judgment (9 paragraphs)
[1]
Introduction
The applicant argues that the sentence imposed was manifestly excessive "having particular regard to the [a]pplicant's subjective case". In aid of this overall argument, the applicant raises four matters that were argued to support the inference of definite, but undisclosed, error by the sentencing judge. Those matters were as follows (applicant's submissions at [24]):
1. First, that in relation to sequence 3, the sentencing judge failed to make reference to the maximum penalty;
2. Secondly, the manner in which the sentencing judge dealt with "childhood disadvantage and the mental health conditions that flowed from that" (J22) "conflated issues" relating to the applicant's deprived upbringing and mental health, with the consequence that the applicant was deprived of an assessment of moral culpability "that was deservedly less" than that found (applicant's submissions at [33]);
3. Thirdly, the applicant submitted that when the sentencing judge imposed an aggregate sentence, he "misarticulated issues pertaining to totality"; and
4. Fourthly, comparative cases demonstrate "the ultimate sentence is excessive".
[2]
Manifest excess: principles
There was no dispute about the relevant principles that apply to a challenge to a sentence on the ground that it was manifestly excessive. The parties each referred to the well-known summary of those principles in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443]:
When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].
Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.
Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.
It is not to the point that this Court might have exercised the sentencing discretion differently.
There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.
It is for the applicant to establish that the sentence was unreasonable or plainly unjust.
[3]
Discussion and consideration: the applicant's arguments
Having identified the relevant principles that apply to an appeal against a sentence imposed that is argued to be manifestly excessive, I will next address the applicant's submissions - each of the arguments raised - said to justify the inference of undisclosed error and a conclusion that the sentence imposed was unreasonable or unjust, and thus within the second category of error formulated in House v The King (1936) 55 CLR 499, 505; [1936] HCA 40.
[4]
The omission to refer to the maximum penalty for sequence 3
By this argument, the applicant pointed out that, unlike all the other counts, the sentencing judge failed to refer to the maximum penalty for sequence 3 - being the offence of aggravated enter dwelling with intent to commit a serious indictable offence - submitting that the "oversight cannot simply be overlooked; the maximum penalty marks an important guidepost in sentencing" (applicant's submissions at [27]).
Although not explicitly stated, the logical extension of this submission was this: by the failure to expressly refer to the maximum penalty, it should be inferred that the sentencing discretion miscarried for this count such that a manifestly excessive aggregate sentence has resulted from a legally flawed indicative sentence: JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40] Kresovic v R [2018] NSWCCA 37 at [42].
It is clear that the sentencing judge omitted to refer to the maximum penalty for sequence 3. Notwithstanding, I do not accept that the omission to refer to the maximum penalty was anything other than an inconsequential slip in what was otherwise a thorough and comprehensive sentencing judgment delivered essentially ex tempore: the sentencing judge had before him the Crown Sentence Summary which clearly set out the offences and the maximum penalties and the most likely inference is that sequence 3 was inadvertently skipped over when his Honour was delivering his reasons. In my view, no inference is available to be drawn that the applicant was sentenced without regard to the maximum penalty for this offence. I will explain, briefly, why I consider this to be so.
It may be accepted, as the applicant submitted, that when sentencing an offender "careful attention to maximum penalties will almost always be required": Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [30]-[31]; Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31 at [27]. However, I am satisfied that the omission to refer to the maximum penalty does not permit an inference to be drawn that the applicant was erroneously sentenced without regard to it. In my view, the only inference able to be drawn, having regard to the findings and the sentencing judgment as a whole, is that the sentencing judge fixed the indicative sentence having regard to the maximum penalty for this offence, despite not mentioning it. That inference, I consider, derives from the following.
[5]
Assessment of moral culpability for "all offending"
By this argument, the applicant submitted that the sentencing judge "conflated" two issues - being his childhood deprivation and his mental health conditions - which was argued to result in having "the potential to deprive the [a]pplicant of an assessment of moral culpability that was deservedly less" and "an aggregate sentence that is excessive" (applicant's submissions at [24] and [33]).
Before dealing with the substance of these arguments, it is useful to identify the two principles invoked.
The first relates to the existence of a mental illness or disorder, and its relevance to the sentencing exercise. It is well-established that (relevantly here) where such an illness or disorder "contributes to the commission of the offence in a material way; the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence": De La Rosa at [177]. Furthermore, in that situation, it may have the consequence "that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed" and it "may reduce or eliminate the significance of specific deterrence": De La Rosa at [177]. The second relates to the effect of childhood deprivation, and its relevance to the sentencing exercise. It is well-established that "full weight" should be given to an offender's deprived background in every sentencing decision given the effects of "profound childhood deprivation do not diminish with the passage of time and repeated offending": Bugmy at [44]. An assessment of the applicant's moral culpability includes a consideration of these matters: Bugmy at [40] and [44]; Paterson v R [2021] NSWCCA 273 at [31].
The applicant submitted that his "deprived upbringing and mental health were separately relevant", and both operated to reduce his moral culpability (applicant's submissions at [37]). That submission may generally be accepted. The applicant's related submission, which was the centrepiece of this argument, was that the sentencing judge "conflated" these issues, thereby potentially denying the applicant a more favourable assessment in connection with his moral culpability for the offending. The applicant, in advancing this argument, accepted that whilst consideration of "these two issues together may not always lead to error", nevertheless submitted that the inference of undisclosed error should be drawn by this Court in the circumstances of this case and that a manifestly excessive aggregate sentence resulted (applicant's submissions at [33]).
[6]
Undisclosed error in connection with the principle of totality
By this argument, the applicant submitted that there was an error relating to the principle of totality, and the manner of its application by the sentencing judge.
The focus of this argument was upon the following finding by the sentencing judge - namely, that "[s]ignificant concurrency is warranted, given that there were two victims and distinct offences" (J29).
The applicant accepted that the sentencing judge's reference to "[s]ignificant concurrency" was either a slip or an incorrect transcription (applicant's submissions at [42]): given the context, it is clear that his Honour was intending to express that "significant cumulation (or accumulation) is warranted". As was fairly accepted during submissions by Mr Rajalingam, who appeared for the applicant, the word used in the sentence was no more than a "mixing up [of] the terminology when dealing with totality", and an irregularity which was not material to, nor determinative of, the applicant's ground of appeal (Tcpt, 25 September 2024, p 1(29)-(34)). I agree.
The applicant's substantive argument relating to the principle of totality, and said to support an inference of undisclosed error, was that from "a totality perspective, the sentence appears excessive in that all offences occurred on the same day and against victims" who the applicant had known for some period of time, and that the offending itself was "short to moderate in duration and all reflective of the [a]pplicant's dysfunction" (applicant's submissions at [46]).
Before dealing with the applicant's argument, it is useful to identify the principle that the applicant argues was, in the result, erroneously applied - the principle of totality. By that principle, a sentencing court, when sentencing for a series of offences and imposing an aggregate sentence, must 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] ('MMK'). Given the argument, three matters relating to that principle should be noted. First, it is the application of that principle "that will generally determine the extent to which a particular sentence is to be served concurrently or cumulatively": MMK at [11]. Secondly, there is "no general rule that determines whether sentences ought to be imposed concurrently or consecutively": Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27] ('Cahyadi'). Rather, this issue is to be resolved by the application of the principle of totality and requires an assessment of whether the "sentence for one offence [can] comprehend and reflect the criminality for the other offence": Cahyadi at [27]; Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 at [37] and [64]. Thirdly, when determining issues of concurrence and cumulation, a sentencing judge is vested with a "broad discretion": Greenyer v R [2016] NSWCCA 272 at [40]; Shannon v R [2022] NSWCCA 41 at [16].
[7]
Comparative sentencing decisions
By this argument, the applicant although acknowledging that the sentencing judge "was not given the benefit of any comparative cases to consider", nevertheless relied upon a series of cases that were said to demonstrate "a useful yardstick or range against which to consider the sentence at hand" (applicant's submissions at [47] and [51]). The "range" said to be discerned from these decisions was not identified in the written submissions, and the written submissions themselves were not developed during the course of argument in this Court. From a summary table relied upon by the applicant, it is apparent that the comparative cases were relied upon in connection with two offences only - being the offence the subject of sequence 7 (use offensive weapon with intent to commit an indictable offence) and the offence the subject of sequence 3 (aggravated enter dwelling with intent to commit a serious indictable offence).
It is presently sufficient to note two relevant principles that apply when comparative sentencing is sought to be deployed as a basis for demonstrating that an aggregate sentence is manifestly excessive. The first is that whilst consistency of sentencing is promoted by the proper and careful use of comparative sentencing, what is sought to be derived is consistency in the application of legal principle, rather than mathematical equivalence: Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [48]-[49]. To this end, a conclusion of manifest excess is "not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases": Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]. The second is that when reliance is placed upon sentencing outcomes for the same, or similar offences, it is critical to pay careful attention to the degree of similarity between the cases relied upon and the sentence that is the subject of review: Moodie v R [2020] NSWCCA 160; (2020) 284 A Crim R 87 at [89].
In my view, there are considerable limits in seeking to demonstrate that the aggregate sentence was manifestly excessive based upon the sentencing decisions identified by the applicant and they do not demonstrate that the aggregate sentence was of that character. That is for the following reasons.
First, in relation to the offence the subject of sequence 7 - use offensive weapon with intent to commit an indictable offence (namely, intimidation) - the applicant identified only one decision, the decision in Shavali v R [2022] NSWCCA 178 ('Shavali'). Thus, contrary to what was argued, such a confined sample size does not, in my view, provide any "yardstick or range against which to consider the sentence at hand". Separately, even if regard is had to that decision and the indicative sentences (there were two use offensive weapon with intent offences for which the offender was being sentenced), it could not be said that the indicative sentence in the present case (and, by extension, the aggregate sentence) was manifestly excessive: the indicative sentences in Shavali were 2 years and 6 months imprisonment and 2 years and 10 months imprisonment respectively, each of which had been discounted by 15% by virtue of a guilty plea (at [15] and [44]). Thus, without considering the detail that lay behind these indicative sentences (discounted or otherwise), there is nothing that would permit an inference that the indicative sentence for sequence 7 in this case (2 years and 3 months imprisonment) was manifestly excessive.
[8]
Orders
For the above reasons, I propose the following orders:
1. Grant leave to the applicant to appeal against the sentence imposed on 25 March 2024.
2. Dismiss the appeal against the sentence.
[9]
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: 16 October 2024
DAVIES J: I agree with Chen J for the reasons his Honour gives.
In relation to the reliance by the applicant in this Court on comparable cases which, as the applicant acknowledges, were never cited to the sentencing judge, in El Masri v R [2022] NSWCCA 27 I said (Beech-Jones CJ at CL and Bellew J agreeing) at [79]:
It is entirely unsatisfactory that the sentencing judge was not provided with the statistics and comparable cases that were made available to this Court on the hearing of this appeal. Had that occurred, there is every prospect that this appeal could have been avoided. What was said by Johnson J in Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [79]-[82] is as relevant to the manner in which the sentence hearing is conducted by counsel as it is to the issues which are put forward in relation to the sentence to be imposed.
The basis for Johnson J's remarks in Zreika was that this Court is a court of error and not a place "for the revision and reformulation of the case presented below" (at [79] and [81]). Reliance on comparable cases, subsequently discovered, is precisely that. Further, District Court judges do not have the leisure to search for comparable cases if they are not put forward by counsel. Error is not ordinarily demonstrated by reliance on comparable cases in this Court in such circumstances.
GARLING J: I agree with the orders proposed by Chen J, and with his Honour's reasons. I also agree with the additional remarks of Davies J.
CHEN J: On 18 October 2023, following pleas of guilty entered in the Local Court at Newcastle, Scott Henry Felix Rowland ('the applicant') was committed to the District Court to be sentenced for six offences, as follows:
1. One count of assault occasioning actual bodily harm in company, contrary to s 59(2) of the Crimes Act 1900 (NSW) (sequence 2). The maximum penalty for this offence is 7 years imprisonment;
2. One count of enter dwelling with intent to commit a serious indictable offence (namely, intimidation) in circumstances of aggravation (namely, being armed with an offensive weapon), contrary to s 111(2) of the Crimes Act (sequence 3). The maximum penalty for this offence is 14 years imprisonment;
3. One count of use offensive weapon with intent to commit an indictable offence (namely, intimidation), contrary to s 33B(1)(a) of the Crimes Act (sequence 7). The maximum penalty for this offence is 12 years imprisonment;
4. Two counts of stalk/intimidate with intent to cause fear of physical or mental harm, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (sequences 8 and 13). The maximum penalty for this offence is 5 years imprisonment and/or 50 penalty units; and
5. One count of demand property in company with menaces with intent to steal, contrary to s 99(2) of the Crimes Act (sequence 11). The maximum penalty for this offence is 14 years imprisonment.
On 25 March 2024, the applicant was convicted and sentenced by Abadee DCJ ('the sentencing judge') to an aggregate term of imprisonment of 5 years and 6 months, with a non-parole period of 3 years, commencing on 26 March 2023. The non-parole period expires on 25 March 2026 and the head sentence on 25 September 2028.
The applicant seeks leave to appeal, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), against the sentence imposed arguing, as the sole ground of appeal, that it was manifestly excessive.
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 sentencing judge noted that it was not in dispute that the applicant was entitled to a 25% discount for his guilty plea in respect of each offence (J2). His Honour then proceeded to make findings of fact about the offending conduct in line with the agreed facts, as outlined above.
In considering the objective gravity of the offending, the sentencing judge observed that in connection with the offences for which the applicant was part of a joint criminal enterprise, the significant considerations include the applicant's particular role and involvement in the offending, citing Lowe v The Queen (1984) 154 CLR 606. His Honour accepted the applicant's submission that there was an insufficiency of evidence to indicate that the applicant and the co-offender were engaged in an enterprise directly to assault Mr Perry or Ms Moores, but that it was more likely that the pair understood that the two victims would each be confronted and the use of violence "was viewed by the [applicant] as a possible consequence of events that would occur in the enterprise" (J11). That being so, his Honour noted that "sentencing should proceed on the basis of a common purpose being very proximate to the acts of assault against both victims" (J11).
The sentencing judge then proceeded to make findings about the objective seriousness of the offending. In relation to sequence 7 (the use offensive weapon offence in relation to Mr Perry), the sentencing judge found that the offending fell "within the low end of the range for this type of offence" (J11). In this regard, it was noted that nothing was known about the type of weapon that was used (and therefore the harm that it might have occasioned); that the use of the weapon was limited, in that it was only pressed against the victim's neck; and that intimidation is not the most serious of indictable offences. However, the offending was aggravated by virtue of the fact that it was committed in the victim's home (J11-12).
For sequence 8 (the intimidation offence in regard to Mr Perry), the sentencing judge noted that the agreed facts were "scarce", but that it did occur in the context of the earlier offending involving the weapon, which was more likely to make the victim alarmed, if not terrified. It was also aggravated by virtue of it being committed in the victim's home and in company. The offending was found to be "below the mid-range for offending of this kind" (J12).
For sequence 2 (assault occasioning actual bodily harm regarding Ms Moores), it was observed by the sentencing judge that the victim's injuries were "serious as a manifestation of 'actual bodily harm'"; she was attacked in a vulnerable part of the body, being the head; and the assault was unprovoked. However, having regard to the limited scope of the applicant's involvement, the objective seriousness was determined to be "falling at the lower end of the range" (J12).
The sentencing judge, relevant to the argument advanced by the applicant, made a number of key findings - none of which are challenged - two of which should be emphasised: the first was that the offending, across all counts, was found to be "highly serious" and that the "threshold" in s 5 of the CSP Act had been crossed (J29); the second was that the objective seriousness of the offending in sequence 3 was assessed as falling "below the midrange" (J13). Having made these findings, the sentencing judge then considered the applicant's subjective case (including moderating matters such as the applicant's reduced moral culpability for the offending and general and specific deterrence), then incorporated the discount for the guilty pleas in accordance with s 53A(2)(b) of the CSP Act (see also Elsaj v R [2017] NSWCCA 124 at [56]; AC v R (2023) 111 NSWLR 514; [2023] NSWCCA 133 at [97]), before indicating a sentence of 2 years and 7 months imprisonment (J29). The indicative sentence - with or without the sentencing discount for the guilty plea - is entirely consistent not only with the findings but with the maximum penalty for this offence (being imprisonment for 14 years): it does not, in any way, bespeak any kind of error as the applicant argued. It follows, there is no basis to infer error in the aggregate sentence imposed.
The applicant, although arguing that there was latent - not patent - error, focused upon part of the sentencing judge's reasons which were argued, in the course of submissions, to demonstrate where the "deprived upbringing and mental health" condition "gets diluted" (Tcpt, 25 September 2024, p 4(18)) - as follows (J22):
Ultimately, however, I agree with the Crown that to some extent the debate about the salience of his having mental health conditions is somewhat arid in circumstances where the [applicant] will receive the benefit of a finding of childhood disadvantage and the mental health conditions that flowed from that.
I do not accept the applicant's argument that there is undisclosed, but definite, error in the way the sentencing judge dealt with these issues in the challenged passage, or elsewhere. That is for the following reasons, and their combination.
I will start with the passage that was the focus of the applicant's submissions. In my view, those reasons do not betray the (implied) error argued. What his Honour was dealing with, in that part of the sentencing judgment (and in the lead up to it), was a submission by the Crown that the applicant's mental health conditions did not contribute to the offending, but that the offending was the result of the applicant's self-induced intoxication and ingestion of drugs (J21). The sentencing judge did not accept that submission, finding "that his mental health condition was a contributing factor; even if in a small way" (J22). The simple explanation for why his Honour found that "to some extent" any debate "about the salience of his having mental health conditions is somewhat arid" was not to deny the materiality of those conditions to an assessment of the applicant's moral culpability for the offending, but merely to recognise that those mental health conditions had their genesis in the applicant's deprived upbringing and childhood disadvantage - which the sentencing judge accepted did reduce the applicant's moral culpability for the offending (J22).
To express the matter a little differently. The applicant secured a favourable finding in relation to childhood deprivation: the finding was that the "Bugmy principles were engaged" (J21) and, as later expressed but broadly to the same end, the sentencing judge made a finding "of childhood disadvantage and the mental health conditions that flowed from that" (J22). Additionally, the applicant also secured a favourable finding in relation to his mental health conditions: the finding was that the applicant's "mental health condition was a contributing factor [to the offending]; even if in a small way" (J22). In turn, these findings were the basis for the sentencing judge's further findings that the applicant's moral culpability for the offending was not only reduced, but also operated to "moderate the weight to be given to general and specific deterrence and the associated conditions of denunciation and retribution" (J22; J28). Put simply, the sentencing judge reduced the applicant's moral culpability for the offending based on his deprived upbringing and, separately, the applicant's mental health conditions, as well as moderating the other matters, as part of the instinctive synthesis. Thus, there is nothing in the approach of the sentencing judge, or the outcome itself, that would permit an inference that, in some unspecified way, there was error by the sentencing judge in his treatment of the moral culpability of the applicant for his offending, as argued.
I add the following. In my view, it was not only open to, but plainly correct for, the sentencing judge to deal with the applicant's deprived upbringing and mental health conditions in the way he did given the relationship between them - namely, to essentially find that it was the "childhood disadvantage" that was the cause of the applicant's mental health conditions and, in particular, the complex PTSD. To so hold, as the sentencing judge did, conforms entirely with the opinion expressed by Dr Gilligan (upon which the finding is clearly based) that the applicant's "early childhood traumas collectively contributed to the emergence of symptoms of Complex PTSD" (emphasis added). The symptoms of that condition, as Dr Gilligan explained, include "an affective disturbance of anxious arousal and reactivity associated with an exaggerated fight or flight response" and that these in turn have "disrupted his development, resulting in maladaptive personality changes" that have formed into diffuse traits of personality dysfunction.
In short, the evidence was that the totality of the applicant's early childhood traumas - which included what Dr Gilligan described as "Bugmy-like conditions" - were material contributors to the applicant's overall mental health conditions and, as the Crown emphasised in submissions in this Court, the sentencing judge appropriately considered them together and had regard to their overall effect when assessing the applicant's moral culpability for the offending. Not only did this approach conform entirely with the evidence, but it was expressly accepted by counsel who appeared for the applicant before the sentencing judge that there was such an "overlap" between these conditions (Tcpt, 25 March 2024, p 14(29)-(31)). In any event, as I have said, the sentencing judge nevertheless separately considered, and made findings about, the applicant's childhood deprivation and his mental health conditions, both of which lessened his moral culpability for the offending.
The applicant's essential argument was that there should have been greater concurrency because the features of the offending - notably, because the offending occurred on the same day, was short to moderate in duration and the victims were known to the applicant - warranted this, with the result that this Court should infer error in the application of the principle of totality.
I do not accept this argument. The fact that the sentencing judge took a different view of the facts and the nature of the offending does not, in and of itself, justify an inference of undisclosed error requiring this Court to intervene. On the contrary, I consider that it was well open to conclude, as the sentencing judge did, that as there were acts of independent criminality separated in time (albeit occurring on the same day: in the afternoon for sequences 7 and 8, and late that night for the remaining sequences), one of which was committed at a different location, and involving two victims (Mr Perry and Ms Moores), that a degree of accumulation was required because the sentences for each count could not comprehend the criminality of the others. Indeed, the applicant accepted that "there was a requirement for partial accumulation which was appropriate and could not be challenged" (applicant's submissions at [42]).
In my view, there is nothing in the analysis of the sentencing judge's reasons nor in a consideration of the degree of accumulation that supports any inference that there is an undisclosed error in connection with his application of the principle of totality.
Secondly, in relation to the offence the subject of sequence 3 - aggravated enter dwelling with intent to commit a serious indictable offence (namely, intimidation) - the applicant relied upon a series of cases. In relation to them, the undiscounted indicative sentences ranged between 2 years and 3 months imprisonment and 4 years and 5 months imprisonment. Thus, without considering the detail that lay behind these indicative sentences, there is nothing that would permit an inference that the undiscounted indicative sentence in this case for sequence 3 (approximately 3 years and 5 months) was manifestly excessive.
Thirdly, for the series of comparative cases relied upon in connection with sequence 3, as the Crown submitted, the subjective cases were, not unexpectedly, varied and the applicant did not identify that any one - or indeed any number - were sufficiently comparable or like the present one as a step towards demonstrating that the indicative sentence (and, in turn, the aggregate sentence) in respect of this count was manifestly excessive.
Finally, and for completeness, I wish to record my agreement with the additional remarks of Davies J.
For sequence 11 (the demand property with menaces offence in relation to Ms Moores' iPhone), it was noted that the value of the property was low and it was the co-offender who ran after the victim and took her mobile phone. However, his Honour noted that the applicant encouraged the co-offender and the offending was motivated by his interest. It was accepted that the offending "fell at the lower end of the range" (J12-13).
For sequence 3 (the aggravated enter dwelling offence), the sentencing judge accepted the Crown submission that the offending fell below the mid-range. It was noted, in relation to the aggravating factor of being armed with an offensive weapon, that the status of the weapon was unknown - thereby lessening the significance of that factor. The sentencing judge found, notwithstanding the offending was brief in duration, that this did not lessen the seriousness of the offending (J13).
For sequence 13 (the intimidation offence relating to Ms Moores), the sentencing judge noted that the Crown accepted that the applicant's role was less significant than the co-offender and found the objective seriousness to be below the mid end of the range (J13).
In relation to all offences, it was noted by the sentencing judge that the offending was aggravated by the fact that the applicant was serving a term of imprisonment by way of intensive correction at the time of the offending conduct (J14).
The sentencing judge then proceeded to consider the subjective circumstances of the applicant. The sentencing judge noted that the applicant was about 41 years of age at the time of the offending conduct and that he suffers from physical ill-health, in the form of a diagnosis of ischaemic cardiomyopathy (J14).
The sentencing judge considered the report of Dr Derek Gilligan, clinical and forensic psychologist, dated 17 March 2024 tendered by the applicant and a Sentencing Assessment Report prepared for previous proceedings dated 5 November 2021 contained within the Crown material. The sentencing judge undertook a detailed examination of the report from Dr Gilligan. Given the nature of the applicant's challenge, reflected in the argument that an inference of undisclosed error should be drawn based upon the manner in which the sentencing judge dealt with the applicant's childhood deprivation and his mental health conditions, it is appropriate to set out in some detail the way in which these issues were addressed by the sentencing judge.
In relation to the offending conduct, the applicant explained to Dr Gilligan that his memory of the relevant events is piecemeal, having been intoxicated by a combination of alcohol and methylamphetamines. However, for the offending directed towards Mr Perry, he reportedly explained that he had been informed that the victim had "exposed" himself to a friend of his daughter's and his purpose in visiting the victim's home was to interrogate him. The sentencing judge found that the fact that the applicant "saw himself as somewhat acting like Don Quixote… in a sense, reduces the seriousness of the offending [and] reduces the need for specific deterrence and the significance of denunciation" (J15).
The sentencing judge referred extensively to the background of the applicant as contained in the report of Dr Gilligan (J15-J20). This included that the applicant identified as a Wiradjuri man through his paternal lineage. During his childhood, the applicant's family struggled financially and his father was an alcoholic whose frequent intoxication resulted in erratic and abusive behaviour (J16). The applicant reported to Dr Gilligan that his father "had been raised to sort things out by fighting", which the sentencing judge noted "bore some apparent salience to the events that are the subject of the index offending in circumstances where it appears the [applicant] took to dealing with his victims by way of violence and aggression as the means of resolving disputes" (J16).
The applicant told Dr Gilligan that on two occasions in primary school, the applicant was subject to sexual abuse by a schoolteacher and thereafter, "everything went downhill" (J17). The applicant did not disclose the abuse for a long time but has now engaged a lawyer to make a civil claim for compensation.
The sentencing judge noted that "[t]he immediate manifestation of trauma that was experienced by the [applicant] was his engaging in maladaptive solutions including commencing fighting with peers and starting to use substances", leading to his eventual expulsion from school in year 8. Since this time, the applicant has only engaged in brief periods of casual labouring type work and has mostly relied on social security benefits (J17). The sentencing judge noted that the applicant has a "protracted history of substance misuse" since his experience of sexual abuse. Prior to the offending conduct, the applicant had relapsed into a pattern of using methylamphetamines daily and drinking spirits to excess intermittently (J19). The sentencing judge found, however, that the applicant has "shown the capacity to abstain, including evidence that he had given in court today about his period of abstinence whilst being in custody" (J18).
The sentencing judge noted the diagnosis made by Dr Gilligan of symptoms of complex post-traumatic stress disorder, a persistent major depressive disorder (dysthymia with anxiety), mixed traits of personality disorder (predominantly anxious-avoidant) and a substance use disorder (J20). Dr Gilligan also considered that the symptoms of the applicant's mental health condition were "likely contributory to the [applicant's] offensive behaviour" (J21).
Noting the Crown's concession on this point, the sentencing judge accepted that the principles in Bugmy v The Queen (2013) 249 CLR 571 ('Bugmy') applied in the present case. The Crown submitted that the principles in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 ('De La Rosa') were not engaged on the basis that it was the applicant's self-induced intoxication which caused the offending, and not his mental health conditions. However, the sentencing judge rejected this submission, accepting the opinion of Dr Gilligan that the applicant's mental health condition was a contributing factor, even if in a small way (J22). His Honour accepted that to some extent, the debate was "somewhat arid", given that he had already made a finding of childhood disadvantage and the mental health conditions that flowed from that, which worked to reduce the applicant's moral culpability and the weight to be given to general and specific deterrence (and the associated principles of denunciation and retribution) (J22).
The sentencing judge noted, in relation to the applicant's antecedents, that he had a substantial criminal history, but that the offences were generally on the minor side. His Honour found that the applicant's record disentitled him to leniency (J23).
In relation to the remorse shown by the applicant, the sentencing judge referred to a handwritten letter of apology written by the applicant and his expressions of remorse and disgust to Dr Gilligan. The sentencing judge nonetheless found that the applicant was "most concerned about the consequences for himself of his actions" and that "[t]here was scarcely any direct recognition of the harm and other consequences caused by his actions" (J24). The sentencing judge ultimately found that "he is remorseful but that is to a limited degree" (J24).
As to the applicant's prospects of rehabilitation, the sentencing judge took into consideration the applicant's stated aspirations to reconnect with community support services and counselling; the insight he had displayed; his previous period of abstinence whilst being fully employed; and the community support demonstrated by the testimonials provided to the Court (J25-26). A significant matter in his favour was his recent disclosure of the childhood sexual abuse (J26). It was noted, however, that given his skill base was limited to labouring, his physical condition likely prevented him from future employment. The sentencing judge's ultimate finding was that the applicant's "prospects are no higher than guarded", which his counsel did not contest (J27). Given the applicant's criminal record and the opinions of others regarding his disposition towards aggression "when his buttons are pressed", the sentencing judge was also "unable to say that he is unlikely to reoffend" (J27).
The sentencing judge made a finding that the applicant is "likely to sustain particular hardship" in custody given his mental health conditions and physical ill-health, each of which would make his time in custody more burdensome (J28).
In regard to the sentencing considerations in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('CSP Act'), and noting the reduction in the applicant's moral culpability and its consequential reduction on the significance of general and specific deterrence, the sentencing judge found that the "pattern of aggression identified by others and a history of anti-social and violent offending" elevated the significance of community protection (J28). His Honour also noted that the sentence imposed must take into account the harm suffered by the victims and acknowledged the applicant's need for close rehabilitation, in his interests as well as that of the community more broadly (J28-29).
The sentencing judge was satisfied that the threshold in s 5(1) of the CSP Act had been crossed and indicated the following sentences (taking into account the applicant's guilty pleas) (J29):
1. For sequence 2: 1 year 2 months imprisonment.
2. For sequence 3: 2 years 7 months imprisonment.
3. For sequence 7: 2 years 3 months imprisonment.
4. For sequence 8: 1 year 8 months imprisonment.
5. For sequence 11: 1 year imprisonment.
6. For sequence 13: 1 year imprisonment.
In applying the totality principle, the sentencing judge found that "[s]ignificant concurrency (sic) is warranted, given that there were two victims and distinct offences. However, there is a requirement for partial accumulation" (J29). His Honour also made a finding of special circumstances under s 44(2) of the CSP Act to take into account the applicant's need for rehabilitation and the fact that this was his first substantial period in custody and his health condition (J30). The finding of special circumstances resulted in a significant adjustment to the statutory ratio - to slightly under 55%.
As noted above, the sentencing judge imposed an aggregate term of imprisonment of 5 years and 6 months, with a non-parole period of 3 years.