TABER v R

Facts

1. The facts were before the Local Court and accordingly this court by way of a Police Fact Sheet. Clearly given some of the handwritten amendments and redactions and noting they are signed by the victim they are clearly agreed facts.
2. The appellant and the victim had been in a relationship for about 15 years. There are two children aged 10 and 5 years. The appellant and the victim had been living at an address in Lloyd, a suburb to the south of the CBD of Wagga Wagga. For some time before the offending both had been working from home because of the COVID-19 pandemic. The facts recite that in months prior to the offending there were a number of "domestic incidents" as a result of the victim's excessive consumption of alcohol.
3. Relating to sequence 1 on Monday 4 May 2020 an argument developed between the victim and appellant during which the appellant kicked the victim in the left leg causing an 8cm bruise. The victim took photographs of this injury.
4. Going to sequence 2 on 11 May 2020 an argument developed between the victim and the appellant at the home. During this argument the appellant struck the victim to the right side of the face with a closed fist. The victim sustained a black eye of which a photograph was taken.
5. Sequence 3 relates to an incident that occurred on 27 May 2020 when an argument developed between the appellant and the victim at the home. During the argument the appellant struck the victim in the forehead with a closed fist causing a small laceration to the centre of her forehead. The victim also took a photograph of this injury.
6. The events to which sequence 4 relates occurred on 30 May 2020 when a further argument developed between the appellant and the victim at the home. The appellant struck the victim several times on the left arm and kicked her several times in the buttocks. Because of these actions by the appellant the victim suffered a 5cm bruise to her arm and an 8 cm bruise to her buttocks. Photographs were taken of these injuries.
7. Moving to sequence 5, an argument developed between the appellant and victim on 10 June 2020 in the garage of the premises of the home. The appellant pushed the victim in the chest causing her to move backwards and collide with a corner of a fridge. The victim suffered a 5 cm bruise to her upper back and some minor grazing. The victim also took a photograph of this injury.
8. The facts recite in respect of sequence 6 that the victim is unable to specifically attribute the injuries that were photographed to an incident that occurred on 14th or another that occurred on the 15th June 2020. At about 9pm on Sunday 14 June 2020 an argument developed between the victim and the appellant in the kitchen of the home. The victim had consumed about half a bottle of whisky and is described in the facts as being "mildly intoxicated". The appellant approached the victim and struck her several times in the face and arm and kicked her in the buttocks. The appellant grabbed the victim by the throat and pushed her into the garage and locked the door. A short time later the appellant let the victim out of the garage and they both went to bed.
9. Then at 6.30 am on Monday 15 June 2020 another argument developed this time in the bedroom. The appellant pushed the victim back on to the bed and began to strike the victim in the head and kick her in the buttocks. The appellant grabbed the victim around the neck and forced her into the garage, locking her inside and released her a short time later. The victim took photographs of her injuries. She called her mother who attended. She then went to the Wagga Wagga Base Hospital to obtain treatment for the injuries.
10. Although the facts set out that the victim cannot determine from which of these last two incidents she received the injuries, it is appropriate that I take the last incident, i.e. the one of Monday 15 June as the one constituting the offence.
11. The photographs the victim took of her injuries are with the papers. Although some of the photographs are not particularly clear the bruising on the arms and buttocks is obvious. The bruising is substantial indicating some degree of force was used.

Assessment

1. The assaults occurred in the home of the victim and accordingly the factor of statutory aggravation within s 21A(2)(eb) is made out. However, as it was also the home of the appellant this factor does not attain the weight that it might in other circumstances.
2. Sequence 1 involves kicking the leg, producing an 8 cm bruise. In the absence of other detail, I deal with the matter on the basis that there was only one kick. In isolation the matter is moderately below mid-range. Sequence 2 involves a "strike" to the face causing a black eye. Again, I deal with the matter on the basis that there was one blow. The striking must have occurred with some degree of force given it resulted in a black eye. The fact the violence was directed towards the face makes the matter more serious. Sequence 2 is moderately below mid-range but slightly more serious than sequence 1.
3. The violence to which sequence 3 relates was also directed to the victim's face. Again, I deal with the matter on the basis that there was one blow. A minor laceration was caused. It too is moderately below mid-range but less serious than sequence 2. Sequence 4 involved a number of blows (described as strikes) to the arm and kicks to the buttocks resulting in bruising. The matter is below mid-range but is more serious than sequence 2.
4. Sequence 5 involved essentially pushing and shoving with the injury being occasioned because of the victim impacting with a fridge. The matter is well below mid-range.
5. Sequence 6 however is the most serious of all the matters. The victim was struck several times to the head and kicked to the buttocks. The victim was grabbed around the neck at one point in the incident. She was also locked in the garage for a short period of time. The matter is below mid-range but not significantly so. The general circumstances of an assault are part of the assessment of the seriousness of the matter - see for e.g. McCullough v R [2009] NSWCCA 94 at [37] per Howie J.

Criminal History

1. The appellant is 36, having been born on 25 December 1984. He has nothing recorded against him and is to be dealt with as a person of prior good character. This offending occurred over a period of about 5 or 6 weeks. The Crown submitted the appellant was not of good character by the conclusion of the offending.
2. A similar issue was the subject of consideration by the Court of Criminal Appeal in R v PGM (2008) 187 A Crim R 152. At [43] Fullerton J (Spigelman CJ, Barr J agreeing) said: "In Lozanovski v R [2006] NSWCCA 143, this Court confirmed the approach that should be taken by a sentencing court when previous good character is relied upon as a matter in mitigation. The departure point was identified by the High Court in Ryan v R [2001] HCA 21; 206 CLR 267. Justice McHugh said at [275]: 'It is necessary to distinguish between the two logically distinct stages concerning the use of character in the sentencing process. First, it is necessary to determine whether the offender is of otherwise good character. When considering this issue, the sentencing judge must not consider the offences for which the prisoner is being sentenced. Because that is so, many sentencing judges refer to the offender's "previous" or "otherwise" good character. .... Secondly, if the offender is of otherwise good character, it is necessary to determine the weight that must be given to that mitigating factor. If an offender is of otherwise good character, then the sentencing judge is bound to take that into account in the sentence that he or she imposes. The weight that must be given to the prisoner's otherwise good character will vary according to all of the circumstances." (emphasis added)'"
3. In all of the circumstances noting the offending occurred over a period of approximately 5 weeks I am prepared to deal with the matter on the basis that the offender is of prior good character.

General Deterrence and Domestic Violence

1. The offences before the court are a series of domestic violence offences. The offender gave evidence on 12 February 2021 and I will deal with that in greater detail when dealing with the subjective case. However, part of the evidence was that the offending occurred while both the appellant and the victim were at home working from home in the COVID-19 pandemic.
2. Under the heading "And What is New for 2021" in the Current Issues section of the Australian Law Journal (2021) 95 ALJ 9 Kunc J (General Editor) remarks: "The 2020 lockdowns highlighted the scourge of domestic violence…"
3. The High Court of Australia in Munda v Western Australia [2013] HCA 38 at [55] said: "…A just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol fuelled destruction of a woman by her partner. A failure on the part of the state to mete out a just punishment of violent offending may be seen as a failure by the State to vindicate the human dignity of the victim; and to impose a lesser punishment by reason of the identity of the victim is to create a group of second-class citizens, a state of affairs entirely at odds with the fundamental idea of equality before the law"
4. Munda of course, dealt with a case of manslaughter. Other issues fell for consideration. The offending in the matter presently under consideration was not alcohol fuelled. However, the matters of general principle are of wider application.
5. The Court of Criminal Appeal over the last decade or so has made a number of pronouncements about the need for general deterrence in matters of domestic violence, particularly repeated domestic violence. Those cases include Hamid [2006] NSWCCA 302 at [86]; Vragovic [2007] NSWCCA 46 at [33]; Hiron [2007] NSWCCA 336 at 32]; Eckermann [2013] NSWCCA 188 at [55] and more recently Efthiamadis v The Queen (No 2) [2016] NSWCCA 9 at [86]. See also the remarks on sentence of Fagan J in R v Biles (No 2) [2017] NSWSC 525 at [60], DPP v Darcy-Shillingsworth [2017] NSWCCA224 and Cherry v R [2017] NSWCCA 150.
6. In particular I note the remarks of Price J who gave the leading judgment in Eckermann at [55], namely: "This Court has emphasised the seriousness with which violent attacks in domestic settings must be treated: Hiron v R [2007] NSWCCA 336. Specific and general deterrence, denunciation of the offending conduct and the protection of the community are important factors in sentencing a domestic violence offender: R v Dunn (2004) 144 A Crim R 180; [2004] NSWCCA 41; R v Edigarov (2001) 125 A Crim R 551; [2001] NSWCCA 436; R v Hamid (2006) 164 A Crim R 179; [2006] NSWCCA 302. In my view, the respondent's subjective circumstances could not justify the suspension of the sentence. A full-time sentence of imprisonment was called for."
7. The offending in Eckermann was quite different to the offending with which I am dealing. However, again the matters of general principle apply.

Appellant's evidence

1. The matter came before me on 2 February 2021. I raised a number of issues with the parties, particularly Mr Tankard who appeared for the appellant, those issues being the untested assertions of the appellant in the letter that was before the learned Magistrate and the possible issue of a causal connection between a mental condition and the offending.
2. The offender gave evidence on 12 February 2021. The appellant was obviously very upset and distressed, which is to be expected given the situation in which he now finds himself, i.e. being in custody for the first time at the age of 36.
3. The appellant gave evidence to the effect that he was employed as a Traffic Planner with Transport for New South Wales where he had been working for about nine years. He was engaged in a course of study namely a Civil Engineering degree that was being undertaken remotely through the Geelong Campus of Deakin University. He was in his second year of that course.
4. Going to his personal situation the appellant said that he has two children, both girls, one aged 10 and the other 5 years who he last saw on the week end of 17 January 2021. He separated from his wife, the victim in these matters, soon after the offences were committed. He was, with the assistance of his mother in law, able to see his children in June of last year. In August of last year, he was denied access to the children. Proceedings were commenced in the Family Court and since November 2020 he has been seeing the children every second Sunday. He has not seen the children since he has been in custody. Given all of the circumstances of this case it I accept it is highly unlikely that the mother of the children would take the children to a correctional centre to visit the appellant. For the purpose of determining this appeal I am prepared to accept that he will not see the children while ever he is in custody.
5. The appellant said a number of times that he was ashamed of his conduct which he described as disgraceful. He also said a number of times that he could not believe that he conducted himself in the manner which he did. He said he was extremely stressed, that he was working from home during the pandemic and he was struggling with his wife's alcoholism. He said that after he was arrested in respect of this offending he realised that he was the one at fault and that he was hurting his wife. He accepted that there was no excuse for this conduct towards his wife.
6. Evidence was given in respect of his wife's issues with alcohol. He was aware that his wife drank to excess but while working from home during the pandemic he came to realise how significant that issue had become. He found empty alcohol bottles secreted in a number of places around the home. He went on to give evidence to the effect that his wife would spend a considerable amount of time in bed and that he was principally responsible for looking after the children.
7. In the sentence proceedings in the Local Court the appellant relied upon a report from Mr Borenstein, Clinical Psychologist. The report is dated 30 December 2020 and followed an interview done by way of audio-visual link on 29 December 2020. At p 3 of the report the author recounts a version from the appellant to the effect that in May/June 2020 he found his wife (the victim) drunk many times, that she was in bed most of the time, that she never acknowledged that she had a problem with alcohol and that he wanted to believe he was OK. This is also the theme of the letter the appellant wrote which was before the learned Magistrate. The appellant gave evidence to the effect that he was not trying to justify his actions; he was talking about how he was feeling. While I accept that the victim was drinking very considerably to excess that could never justify what the appellant did, to resort to significant and repeated domestic violence.
8. A number of times in the course of his evidence the appellant gave evidence to the effect that he was ashamed of his conduct, that he was devastated and that he took responsibility for his conduct. I accept without hesitation that the offender is remorseful.
9. The evidence continued that he had never been in custody before and it "hard" being in custody. At the time he gave evidence before me he had just completed the fourteen-day COVID isolation period where he was locked in a cell for 23.5 hours per day. He has since been moved to the general population and is sharing a cell. He is in the cell for about 12 hours per day. It was particularly difficult for him being separated from the children.
10. The appellant gave evidence that he has continued to be responsible for the mortgage repayments for the premises in which his wife and children are living. There is approximately $250,000 still owing on the mortgage. He paid child support after separation. Since the conviction and sentence was imposed in the Local Court the appellant has been suspended without pay.
11. On the issue of the appellant's employment Mr Tankard tendered before me a hard copy of an email received by him from Kerry Thomas, Professional Standards & Practices Specialist with Transport for New South Wales. The first paragraph of that communication reads: "Rebecca Taber (the appellant's sister in law) gave me some documents last week in relation to Ben Taber's charges. We still require additional information including when these offences happened, when he appeared in court etc. Unfortunately, it appears Ben has not been upfront with or honest with Transport over this matter and so without the information he should have supplied from the beginning I am trying to piece together all the information that is required for Transport to make any decision on Mr Taber's continued employment".
12. Of particular concern is the comment to the effect that it appeared that the appellant had "not been up front or honest" with his employer. The appellant later gave evidence to the effect that he had co-operated with his employer and he had given them the necessary and required information.
13. The email communication goes on to say that Transport for NSW "cannot give any specific information at the moment in regard to what Discipline action Transport will take against" the appellant as they have insufficient detail. It then goes on to say that the decision has been made to suspend the appellant without pay and that status will continue whether the appellant is in custody or not. Given the tone and contents of the email I am prepared to deal with this matter on the basis that whatever the outcome the appellant will very likely lose his employment.
14. The offender gave evidence that since the offending he has consulted a medical practitioner at the Glenrock Country Practice and has regularly consulted a psychologist. This is supported by documentation from the practice so nominated. Given his age and lack of record and the fact he has taken steps towards rehabilitation I am prepared to find on balance that the appellant is unlikely to re-offend and further that he has good prospects of rehabilitation.
15. The appellant was robustly cross-examined by the Solicitor Advocate who appeared for the Crown. A deal of the cross-examination was appropriately directed towards the assertions by the appellant that he did not realise that he was hurting his wife. During the cross examination he was taken through the injuries his wife sustained during the assaults. The appellant maintained that at the time of the offending he did not realise that it was as serious as it was.
16. Further, during cross-examination the Crown took the appellant to various aspects of Mr Borenstein's report, in particular those parts where it appeared that the appellant was attempting in his accounts of his conduct to minimise his criminality. The appellant maintained that he was attempting to tell the author of the report how he was feeling.

Mr Borenstein's report

1. The interview between Mr Borenstein and the appellant was conduct after the appellant had indicated pleas of guilty. The author sets out that the appellant presented as emotional and tearful throughout the interview/assessment. That is also how the appellant presented when giving evidence. The report goes on to detail that towards the end of 2019 the appellant became aware of his wife's issues with alcohol. In March 2020 the appellant and his wife were both working from home and it was during this time that the appellant became aware of the full extent of his wife's issues with alcohol. The appellant gave a history of there being occasions when the victim in these matters could not leave the bed, incontinent of urine and protested when Mr Taber made attempts to return her back into bed or shower her resulting in verbal arguments. The appellant also gave an account of attending to the home schooling of his daughters and attending to the household chores.
2. The report goes on to describe that the appellant gave an account of his mental state deteriorating as he attempted to maintain stability within the family and worsening symptoms of stress, depression and anxiety. The symptoms included middle insomnia fatigue and exhaustion. He became increasingly frustrated and prone to irritability.
3. At p 3 of the report the following appears: "Mr Taber describes the offences as uncharacteristic and aberrant and, on each occasion, 'it was all a bit of a blur. I never wanted to harm Rachael. I was only trying to help her either get into bed or fix her problem. I was worried about the girls'.
4. While I accept that the victim's issues with alcohol may have led to the feeling of frustration, that can never justify the domestic violence that the appellant perpetrated. An examination of the facts and the photographs indicate that it must have been obvious to the appellant that he was hurting the victim. It is difficult in the extreme to perceive how some of the violence including the striking of the victim to the head could possibly be directed towards helping the victim or getting her to bed.
5. The appellant accepted full responsibility for his actions and accepted his wrong doing. I have already found that the appellant is remorseful.
6. Further, the appellant expressed being worried about the children noting that the victim had been apprehended driving with a blood alcohol content of 0.240 with the children in the vehicle. If that is the situation that is a particularly serious example of a High Range PCA offence. The victim apparently now accepts that she has a drinking problem.
7. The appellant since being arrested in respect of this offending has conferred with a general practitioner who has prescribed anti-depressant medication.
8. The report also gives some personal details relevant to the appellant. He was born in Wagga Wagga, the youngest of four children. His parents separated in 2017 after his mother was admitted to a mental health unit suffering from a Schizoaffective Disorder originally diagnosed in 2010. His father re-partnered and now lives in New Zealand. His childhood was "pretty good" and there was no history of trauma, abuse or domestic violence. The appellant and victim met while they were both undertaking TAFE courses in Wagga Wagga. Since his arrest the appellant lives independently in central Wagga Wagga.
9. Mr Borenstein notes that the appellant's mood was depressed and affect defined by "emotionality and tearfulness". A test confirmed moderate to severe symptoms of stress. At p 9 of the report the following appears: "Based on the information provided to me, I am of the opinion Mr Taber was struggling with a known mental illness/condition leading up to and during the offending period, namely a chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood (DSM V code 309.28) with features of traumatic anxiety and stress."
10. It occurred to me when initially reading the papers that this might enliven the principles enunciated by the Court of Criminal Appeal in Tepania v R [2018] NSWCCA 247. Johnson J (Payne JA, Simpson AJA agreeing) said at [112]: "In sentencing for an offence (whether or not a standard non-parole period offence), a court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence: Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55 at 324-325 (Brennan J). Motive for the commission of an offence is an important factor on sentence: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at 55-56 [171]-[172] (Callinan J)."
11. On the issue of moral culpability, Johnson J in Tepania at [119] said: "Taking into account an offender's moral culpability on sentence may be seen as consideration of one of the many factors which bear on sentence (sometimes pulling in different directions) which form part of the exercise of instinctive synthesis that the law requires: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at 377-378 [52] (McHugh J)."
12. Mr Tankard on behalf of the appellant argued that there was a causal connection between the offending and the mental condition. Further, Mr Tankard submitted that given a causal connection between the mental condition and the offending was established, the principles enunciated by the Court of Criminal Appeal in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 especially at [177]-[178] per McClellan CJ at CL were enlivened reducing the moral culpability of the offender and reducing the impact and significance that general deterrence assumes in the sentencing exercise.
13. However, the Crown argued that I would not find that there was a causal connection. Indeed, the Crown somewhat bluntly but appropriately submitted to the effect, "causal connection to what?" The Crown went on to submit that Mr Borenstein's report contains no clear account of the appellant's offending. Upon closer consideration I accept the submissions of the Crown. In particular I note the contents of the report at p 3, namely: "Mr Taber describes the offences and uncharacteristic and aberrant and, on each occasion, 'it was all a bit of a blur. I never wanted to harm Rachael. I was only trying to help her either get into bed or fix her problem'."
14. I am fortified in this by what the appellant stated in his letter that was before the learned Magistrate. At p 2 of that letter the appellant wrote: "On a number of other occasions during this six week period I had noticed that my wife was impaired and smelled of alcohol. She would aggressively deny consuming alcohol and physically push and shove me. These occasions have escalated into physical struggles, where regrettably, I have harmed my wife".
15. Be that as it may, I accept on balance that the appellant does have the mental condition as diagnosed by Mr Borenstein. That becomes part of the subjective mix.

Sentence Assessment Report

1. The sentence assessment report (SAR) covers essentially the same issues as Mr Borenstein's report. The offender indicated to the author that his behaviour was "revolting", "shameful" and "disgraceful". This fortifies my earlier finding that the appellant is remorseful. The appellant is assessed at being at a low risk of re-offending. I have made positive findings for the appellant in this regard.
2. The author also notes that because of the offender's low risk of re-offending if the court does make an order that the appellant be supervised that Community Corrections will administratively terminate the supervision.

References

1. I have already found the appellant to be of prior good character. Before the learned Magistrate and also before this court is a volume of character references from a wide cross-section of the community. Not surprisingly they speak well of the appellant. The referees indicate that the appellant is a gentle person who is devoted to his children. At least some of them speak to the issues the victim had with alcohol. They also speak of the remorse felt by the offender.
2. It speaks well of the appellant that he is able to assemble an impressive set of references from a cross-section of the community. Those references are also part of the subjective mix.

Competing submissions

1. Mr Tankard accepted the matters were serious and conceded that the threshold within section 5(1) of the Crimes (Sentencing Procedure) Act, 1999 was crossed. This was an appropriate concession.
2. Mr Tankard went on to submit that the appellant was a person of prior good character, he was a professional and the offending was essentially one out of character episode. He emphasised the pressure the appellant was under at home because of the COVID restrictions and the situation with the appellant being responsible for the day to day care of the two children as well as the victim's excessive alcohol consumption.
3. It was accepted that the pleas of guilty were entered late. I have already dealt with this issue. It was submitted that it is significant that the appellant consulted a doctor and psychologist while he maintained pleas of not guilty. I have accepted that the appellant is remorseful, that he is unlikely to re-offend and that he has good prospects of rehabilitation.
4. Further, it was submitted that although the offending was such that the only appropriate sentence was one of imprisonment the sentence in this instance could be served by way of intensive correction order that contained a substantial component of community service.
5. Submissions were made concerning the appellant being responsible for the mortgage repayments and child support. Mr Tankard accepted that this did not reach the "truly, wholly or highly exceptional" standard (see for e.g. Hopley v R [2008] NSWCCA 105 at [37] per Johnson J) that would impact on the type of sentencing to be imposed, it was nevertheless an important part of the subjective case. I accept that this is so.
6. I have dealt with the submissions by both parties on the issue of a causal connection - or lack thereof - between the mental condition suffered by the offender and the offending.
7. The Crown emphasised the nature of the offending being domestic violence and the need for general deterrence. The Crown noted that the offending involved six different incidents.
8. Further, the Crown submitted that given the offending and the need for general deterrence an intensive correction order was not warranted in this matter and the court should confirm the sentence imposed in the Local Court. The Crown also submitted that the appellant received substantial leniency with the limited extent of partial accumulation and the very generous finding of special circumstances.
9. In that regard I note the obiter remarks of RS Hulme J in R v Boney [2008] NSWCCA 313 at [48] namely: "Altering the ratio between the non-parole and balance of term periods of a sentence from that of 3:1 embodied in s44 of the Crimes (Sentencing Procedure) Act as much as to result in a ratio of 50:50 is sufficiently unusual as to inspire examination. The only reason advanced by her Honour for finding special circumstances, and by inference for apportioning the full term of the sentence as she did, was the opinion of a psychologist that the Respondent required extensive post release supervision and assistance."
10. I merely observe that if I were hearing the matter at first instance I would have imposed a non-parole period that was no less than 60% of the head sentence.

General Remarks

1. In passing sentence, I will need to give proper effect and regard to sections 3A and 5 of the Crimes (Sentencing Procedure) Act. Section 3A sets out the purposes of punishment, namely: 1. to ensure that the offender is adequately punished for the offence, 2. to prevent crime by deterring the offender and other persons from committing similar offences, 3. to protect the community from the offender, 4. to promote the rehabilitation of the offender, 5. to make the offender accountable for his or her actions, 6. to denounce the conduct of the offender, and 7. to recognise the harm done to the victim of the crime and the community.
2. Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate. At least since the decision of Zamagias [2002] NSWCCA 17 the initial consideration is whether any other sentence is appropriate. If the answer is in the negative the next consideration is the length of the sentence followed by the consideration of how the sentence is to be served.
3. Given that there are six offences it is appropriate to invoke s 53A of the Crimes (Sentencing Procedure) Act and impose an aggregate sentence. It will therefore be necessary to indicate what sentences would have been imposed had separate sentences been imposed. Those sentences are: Sequence 1: 5 months indicating a starting point of 6 months with some minor rounding down in favour of the appellant; Sequence 2: as above (i.e. for sequence 1); Sequence 3: 6 months indicating a starting point of 8 months with rounding down in favour of the appellant; Sequence 4: 10 months indicating a starting point of 12 months with rounding down in favour of the appellant; Sequence 5: 5 months indicating a starting point of 6 months with some minor rounding down in favour of the appellant; Sequence 6: 1 year 5 months (17 months) indicating a starting point of 1 year 9 months with some rounding down in favour of the appellant.
4. If separate sentences were imposed there would need to be some partial accumulation to recognise the different offending. In this regard I note the effect of authorities such as R v Merrin [2007] NSWCCA 255.
5. In all the circumstances noting the various matters to which I have referred I am of the opinion that the appropriate total sentence would be 2 years imprisonment. However as there was no warning given conformably with Parker v DPP (1992) 28 NSWLR 282 the total sentence must be as imposed by the Local Court, i.e. 1 year 8 months (20 months).
6. The question now arises as to how the sentence of 1 year 8 months is to be served. What follows is drawn from my remarks on sentence in R v Elphick [2021] NSWDC 1.
7. Section 66 of the Crimes (Sentencing Procedure) Act provides: 66 Community safety and other considerations (1) Community safety must be the paramount consideration when the sentencing court is deciding whether to make an intensive correction order in relation to an offender. (2) When considering community safety, the sentencing court is to assess whether making the order or serving the sentence by way of full-time detention is more likely to address the offender's risk of reoffending. (3) When deciding whether to make an intensive correction order, the sentencing court must also consider the provisions of section 3A (Purposes of sentencing) and any relevant common law sentencing principles, and may consider any other matters that the court thinks relevant.
8. There has been a considerable amount of litigation on intensive correction orders, the latest decision (at least at the time of the preparation of these remarks) being Wany v DPP [2020] NSWCA 318. The controversy (for want of a better word) commenced with the decision of R v Pullen [2018] NSWCCA 264. Thereafter there was R v Fangaloka [2019] NSWCCA 173, Casella v R [2019] NSWCCA 201, Karout v R [2019] NSWCCA 253 and Cross v R [2019] NSWCCA 280. Fangaloka and Karout were subject to applications for Special Leave to the High Court - see [2020] HCASL 12 and [2020] HCASL 56 respectively - with both applications separately being dealt with "on the papers" with Gordon and Edelman JJ concluding in Fangaloka that "…The Application does not give rise to any reason to doubt the correctness of the decision of the Court of Criminal Appeal…". In Karout Gordon and Edelman JJ concluded that "…The proposed grounds…have insufficient prospects of success to warrant a grant of special leave".
9. The doctrine of precedent dictates that judges at first instance should follow Fangaloka and Karout.
10. Basten JA (Johnson & Price JJ agreeing) in Fangaloka said at [65]-[66]: "The better view is that the legislature has, appropriately, acted upon the available evidence by requiring the court to have regard to a specific consideration, namely the likelihood of a particular form of order addressing the offender's risk of reoffending. That obligation, imposed by s 66(2), is not stated to be in derogation of the more general purposes of sentencing outlined in s 3A, nor in derogation of other relevant matters: s 66(3). Nor does the legislation limit the consideration of community safety to a means more likely to address the risk of reoffending; it merely identifies that as a mandatory element for consideration. [66] There is no doubt that community safety can operate in different ways in different circumstances. It is conventionally accepted that a purpose of punishment, including by way of imprisonment, is to deter the offender from further offending; it is also accepted that removal of an offender from the community for a period may have a protective function. The purpose of s 66, on this approach, is merely to ensure that the court does not assume that fulltime detention is more likely to address a risk of reoffending than a community-based program of supervised activity. Consistently with that view, s 66 does not seek to address potentially conflicting demands of community safety in the short term, as opposed to the longer term, and the risk that leniency will be abused. In short, there is nothing in s 66 which favours an ICO over imprisonment by way of fulltime custody. Further, while s 66 expressly referred to s 3A, it did so, not by identifying it as a set of 'subordinate' considerations, but as mandatory considerations. It would be wrong for a court to treat every consideration other than the means of addressing the risk of reoffending as a subordinate consideration."
11. Hoeben CJ at CL agreed with the judgment of Fullerton J in Karout with Brereton JA dissenting. Fullerton J said at [90]: "Adopting and applying that analysis (with which I agree), I consider that were the Legislature to have intended to impose on sentencing courts an obligation to give paramount consideration to community supervised programs as a means of ensuring community safety as one of the purposes of sentencing in s 3A(c) of the Sentencing Act, or to impose on a sentencing court a statutory obligation to give reasons for concluding that the other purposes of sentencing in s 3A, alone or in combination, dictate that even where the offender's risk of reoffending is such that community protection can be sufficiently addressed by an ICO, a sentence of full-time custody is the appropriate sentencing outcome, I would have expected the Legislature would have made that plain when the 2018 amending Act was passed."
12. Her Honour went on to say at [94]: "The fact that his Honour made positive findings as to the applicant's good prospects of rehabilitation and that he was unlikely to reoffend, findings which might, in addition to a finding of special circumstances, have supported the exercise of the power in s 66 for the making of an ICO, did not dictate that an ICO was the appropriate sentencing outcome. Consistent with the obligation in s 66(3) that his Honour also take into consideration the purposes of sentencing in s 3A of the Sentencing Act and any relevant common law sentencing principles, it is clear that in declining to make an ICO the objective seriousness of the applicant's offending and the principles of general deterrence (being amongst the mandatory considerations his Honour was obliged to consider under s 66(3) in deciding whether the power to make the ICO should be exercised) overwhelmed other considerations that were in play."
13. Wany v DPP involved an appeal to the Court of Appeal from a decision from a Judge of the District Court determining an appeal from the Local Court. The Court found jurisdictional error and remitted the matter to the District Court. McCallum JA (Meagher JA, Simpson AJA agreeing) said at [64]: "That is not to say that, having reached a conclusion favouring an ICO on that issue, the sentencing court cannot still refuse to make such an order. The weight to be given to the outcome of that determination is then a matter within the discretionary judgment of the sentencing judge. So much is made plain by s 66(3); and see the remarks of Basten JA in Fangaloka at [65]. But the point of the section is to require the sentencing court to consider that question without any preconception in favour of incarceration as the only path to rehabilitation."
14. Her Honour went on to say at [68]: "Mr Game noted that, in Kirk, both the description of the offence and what was regarded as a defence in the relevant legislation were regarded as being jurisdictional, as was the fact that the offence was determined not according to the rules of evidence, because the defendant was called as a witness by the prosecution. In circumstances where Parliament has provided for different ways of serving a custodial sentence and has conferred power on the sentencing court to make the determination as to which should be adopted, I see no reason why the method of serving the sentence to be imposed should not be regarded as jurisdictional. The language of the statute is clear. Community safety "must be" the paramount consideration. When considering community safety, the sentencing court "is to" make the assessment specified. As Basten JA explained in Fangaloka, that obligation "is not stated to be in derogation of the more general purposes of sentencing outlined in s 3A, nor in derogation of other relevant matters: s 66(3)" but it is mandatory."
15. Given my findings that the offender is unlikely to re-offend and that he has good prospects of rehabilitation the criteria in subsections (1) and (2) of s 66 in reality have little work to do in this sentencing exercise. However, if necessary I am of the opinion that the offender would not present a threat to community safety. He is unlikely to re-offend. On the material available I am not able to find one way or the other whether full time custody or an intensive correction order would be more likely to address the issue of re-offending.
16. I then go to subsection (3) that requires me to apply general sentencing principles including those contained within s 3A of the Crimes (Sentencing Procedure) Act.
17. I have given this matter a great deal of consideration. Indeed, so far as I can recall this is the first time in my career of a judge of the District Court (now approaching a total of 10 years) that I have reserved on a sentence appeal.
18. Ultimately however, given the offending and the need for general deterrence I am firmly of the opinion that the sentence should be served by way of full time custody.

Orders

1. The appeal is dismissed. The orders of the learned Magistrate are confirmed in all respects. Accordingly: The appellant is sentenced to an aggregate sentence of 1 year 8 months with a non-parole period of 10 months. The non-parole period will date from 25 January 2021 and will expire on 24 November 2021. Thereafter the balance of term on parole of 10 months will commence on 25 November 2021 and expire on 24 September 2022. The appellant is to be released to supervised statutory parole at the expiration of the non-parole period.

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: 12 March 2021