Tepania v R

Some Findings in the Sentencing Remarks

1. Having regard (in particular) to the first ground of appeal, it is appropriate to refer to a number of findings made by the sentencing Judge in his sentencing remarks of 2 November 2017.
2. His Honour referred to the Applicant's position at the time of the offences (at [74]-[75]): "74 His conduct in drinking himself, effectively into oblivion, in combination with the ingestion of what presumably was a quantity of ecstasy or similar, may properly be seen as an aberration insofar as his conduct during 2014 and 2015 would appear to have been. A blood sample was taken from the offender the day after his arrest as well as a urine sample. The urine sample confirmed the prior ingestion of methamphetamine. Whilst recognising that his socially disadvantaged upbringing may have contributed in some way to what ultimately transpired, he had had the opportunity of substantial re-education insofar as parenting skills were concerned and had also taken substantial steps to remedy his abuse of alcohol and drugs. 75 Against that background, however, the clinical psychologist has expressed the opinion that it is only since the more recent events that he has finally recognised the insidious effect of substance abuse on his own persona, not merely when he is in the actual presence of children but the effect that it has had upon his life more generally."
3. In passages that came under particular scrutiny in this Court in the context of the first ground of appeal, his Honour made the following findings (at [76]-[77]): "76 There is accordingly, some reduction in his moral culpability as contrasted with an offender from a more advantaged upbringing. However, a substantial contributor to the recklessness of his conduct and his anger in physically assaulting the infant is more readily to be found in what was undoubtedly, in colloquial terms, 'the mother of all hangovers' brought about by his own voluntary ingestion of an extraordinary amount of alcohol as well as the presumed ecstasy tablets which he had taken the previous day and night. The Court must not take the self-induced intoxication of the offender or its aftermath into account as a mitigating factor. 77 No doubt the impairment under which the offender was labouring as a result of such a hangover was exacerbated by his apparent level of intellectual functioning. Dr Quinn noted the earlier assessment that he was 'intellectually impaired to borderline range of intelligence'. This also is a factor which is relevantly to be considered in an assessment of his moral culpability. The High Court made reference to the significance of a determination of intellectual functioning in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120. The evidence in the present matter regarding the intellectual function and capacity of the offender to some degree lessens his moral culpability. The retributive and denunciatory aspects of sentence, as well as the significance of general deterrence, may also be reduced to some extent."
4. Before specifying the indicative sentences and passing the aggregate sentence, his Honour explained his approach to sentence in the following way (at [84]-[88]) (emphasis added): "84 In determining an appropriate sentence in this matter I have had regard to the aggravating and mitigating factors which I have identified earlier in these Remarks. An additional aggravating factor is that the offender was on conditional liberty pursuant to the section 10 bond on which he had been placed at Katoomba Local Court in [March] 2014. I note that his behaviour under that bond had been of such an exemplary nature that he had been discharged from the supervisory component by Community Corrections. Nonetheless, he remained subject to good behaviour requirements. 85 I have taken into account, to a limited extent, evidence given of the circumstance that the offender has been placed in segregation and on protection. The nature of the offence with which he is charged gave rise to separate incidents of assaults upon him in the custodial setting into which he had been placed when bail was refused. The first, perhaps predictably, involved hot water being thrown into his face by another inmate. In the offender's evidence before me he indicated that in addition to the hot water it had been mixed with jam which was intended to exacerbate any consequent burning. The matter was reported. Fortunately for the offender this aspect of extra-curial punishment did not result in any severe or lasting injury. On another occasion he was physically assaulted by other inmates. I accept, on the basis of the material before me, that the circumstance of his being placed on protection will render his incarceration to some degree more onerous than an offender in the general prison population. 86 I have had recourse to the statistics maintained by the Judicial Commission for offences prosecuted under the same section. The variation of the factual scenarios evident in cases prosecuted under the same provision are so differing in nature that the statistics do not provide any meaningful guide. I have perused some cases involving injuries being sustained by babies and small infants including R v Lolesio [2014] NSWCCA 219; R v Smith [2005] NSWCCA 286 and the more recent matter of R v Nolan [2017] NSWCCA 91. I have also had regard to an earlier matter which was before me involving the severe scalding of a baby in R v BJ [2017] NSWDC 234. Needless to say, each of those cases turn on their own individual facts and circumstances. 87 I am ultimately of the view that each of the two offences before the Court in this matter fall within the broad mid-range of objective seriousness. I have taken into account the need for general deterrence in such cases and I heed the words of Cole JA, in R v Pitcher (unrep, 19 February 1996, NSWCCA): 'The courts must make clear by their sentences that acts of violence on young children, whether within or without a custodial situation, will not be tolerated in our society, and that criminal acts of violence against young children will result in appropriately severe sentences. Deterrence through the severity of sentence, is the only way in which young children can be protected'. 88 I have taken into account the subjective features which I have identified earlier in these Remarks and I am of the view that special circumstances are established. I have regard to the maximum penalties which are prescribed by the Legislature and the standard non-parole period which is specified with respect to the first count before me as legislative guideposts with respect to the appropriate sentences to be passed."

Ground 1 - The Sentencing Judge Erred in his Determination of the Objective Seriousness of the Offences The Applicant's Submissions

1. Under the first ground of appeal, Mr Wilson, counsel for the Applicant, submitted that the sentencing Judge had erred in two ways: 1. by failing to take into account the reduction in the Applicant's moral culpability due to his background of profound disadvantage and his intellectual impairment; 2. by determining a level of objective seriousness which, on all the relevant facts found by the Judge, was not open.
2. With respect to the complaint in 71, counsel noted the findings of the sentencing Judge that each of the s.35(2) and s.59(1) offences fell "within the broad mid-range of objective seriousness". It was submitted by reference to the structure of the sentencing remarks that the sentencing Judge had excluded from the concept of "objective seriousness" matters which ought to have been taken into account in that respect, in particular the Applicant's reduced moral culpability due to his background of profound disadvantage and his intellectual impairment.
3. In support of this submission, counsel referred to the decisions of this Court in Biddle v R [2017] NSWCCA 128 and Yun v R [2017] NSWCCA 317. Counsel noted that neither party at first instance referred his Honour to Biddle v R and that there was no specific discussion on the question of objective seriousness during the course of oral submissions. It was submitted, however, that given the sentencing Judge's findings with respect to reduction of the Applicant's moral culpability, the Court ought to have taken into account that aspect in determining the objective seriousness of the Applicant's offences and that error resulted because his Honour did not do so.
4. With respect to the complaint in 71, it was submitted further for the Applicant that, particularly in light of the finding of reduced moral culpability, it was not open to the sentencing Judge to find that the Applicant's offending was in the "broad mid-range".
5. It was submitted that offences of causing grievous bodily harm whilst reckless as to causing actual bodily harm contrary to s.35(2) can be committed in a very wide variety of circumstances and that, in the present case, the conduct of the Applicant in committing the s.35(2) offence was not violent, no harm was intended and harm of the severity actually caused was not contemplated. It was noted that the injuries, whilst severe, had healed completely. Had the victim not been an infant, it was submitted that the Applicant's criminality would have been towards the lower end of the scale for offences of this type. Whilst acknowledging that the vulnerability of the victim and the Applicant's responsibility for him significantly elevated the criminality, it was submitted that, in light of the Applicant's reduced moral culpability, the s.35(2) offence cannot be elevated into the mid-range of seriousness.
6. It was submitted for the Applicant that offences of assault occasioning actual bodily harm under s.59(1) may also be committed in a wide variety of circumstances. In this case, it was submitted that the Applicant's spontaneous actions in forcing the bottle into the baby's mouth and striking him were not capable of amounting to an offence in the mid-range of objective seriousness. Submissions of the Crown
7. With respect to the first leg of Ground 1 (at 71), the Crown submitted that the Applicant's moral culpability was properly taken into account as part of the instinctive synthesis in the process of sentencing so that no error had infected the sentencing process. The Crown submitted further that, in the circumstances of this case, the Applicant's disadvantaged background and the evidence of his intellectual impairment was not such as to reduce the objective seriousness of the offence.
8. The Crown submitted that, contrary to the Applicant's submissions, the decisions in Biddle v R and Yun v R do not support the proposition that the reduced moral culpability of an offender must be taken into account in an assessment of the objective seriousness of the offence. Nor did they support the contention that the sentence would be vitiated by error if this had not occurred.
9. It was submitted that objective seriousness and moral culpability are different concepts: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at 132 [27], 139 [54]; Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38 at 621 [57]. It was submitted that some matters which are relevant to the assessment of the objective seriousness of an offence may also be relevant to the assessment of an offender's moral culpability, but that this did not mean that a finding of reduced moral culpability will, of itself, reduce the objective seriousness of the offence. The Crown submitted that there will be no error in accordance with House v The King (1936) 55 CLR 499; [1936] HCA 40 in failing to take into account an offender's "moral culpability" in the assessment of the objective seriousness of the offence, provided that all relevant matters are taken into account in the determination of the sentence to be imposed.
10. It was submitted that the sentencing Judge took into account all relevant matters in determining the sentence to be imposed including the Applicant's disadvantaged background and intellectual impairment.
11. The Crown submitted that the Applicant did not point to any particular aspect of his reduced moral culpability that lowered the objective seriousness of the offending. Rather, the Applicant appears to contend that the finding of reduced moral culpability should, of itself, reduce the objective seriousness of the offence. The Crown pointed to the statement in Muldrock v The Queen at 132 [27] that the objective seriousness of an offence is to be determined "without reference to matters personal to an offender" but rather "it is to be determined wholly by reference to the nature of the offending". In the circumstances of this case, the Crown submitted that the Applicant's deprived background and intellectual impairment were properly considered to be matters personal to him rather than as matters relating to the nature of the offending. The Crown pointed to the finding of the sentencing Judge (R v Tepania at [76] reproduced at [69] above) concerning the substantial contribution of self-induced intoxication to the offences, with that factor to be placed to one side because of s.21A(5AA) Crimes (Sentencing Procedure) Act 1999.
12. With respect to the second leg of Ground 1 (at 71), the Crown submitted that it was open to the sentencing Judge to find that each of the s.35(2) and s.59(1) offences fell within the broad mid-range of objective seriousness. It was submitted that the offences were committed against a completely vulnerable 10-month old infant by a person who was acting in loco parentis and occupied a position of trust and responsibility. The offences were committed in the victim's home. In the case of the s.35(2) offence, the injuries suffered by the baby were severe. Although the burns ultimately healed without scarring and the prognosis was good, the Crown noted that the baby suffered burns to 40% of his body and was hospitalised for 26 days with the injuries being life-threatening in nature.
13. With respect to the s.59(1) offence, the Crown submitted that this was a serious example of an offence of this type with the Applicant intentionally striking in anger the 10-month old baby in the area of his head and face at a time when the infant was suffering second degree burns to 40% of his body, after injuring his mouth by repeated insertion of the bottle.
14. The Crown submitted that the necessarily evaluative exercise involved in an assessment of objective seriousness did not demonstrate error in this case. Decision
15. At the outset, it is necessary to observe that the s.35(2) offence carries a standard non-parole period, but the s.59(1) offence does not. This distinction requires that separate consideration be given to the two offences for the purpose of determining this ground of appeal. The s.35(2) Offence
16. With respect to the s.35(2) offence, it is necessary to refer to the decision in Muldrock v The Queen and subsequent legislative amendments made to the standard non-parole period provisions following that decision of the High Court of Australia.
17. At the time of the decision in Muldrock v The Queen in 2011, s.54A and s.54B provided as follows (emphasis added): "54A What is the standard non-parole period? (1) For the purposes of this Division, the standard non-parole period for an offence is the non-parole period set out opposite the offence in the Table to this Division. (2) For the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences in the Table to this Division. 54B Sentencing procedure (1) This section applies when a court imposes a sentence of imprisonment for an offence, or an aggregate sentence of imprisonment with respect to one or more offences, set out in the Table to this Division. (2) When determining the sentence for the offence (not being an aggregate sentence), the court is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period. (3) The reasons for which the court may set a non-parole period that is longer or shorter than the standard non-parole period are only those referred to in section 21A. (4) The court must make a record of its reasons for increasing or reducing the standard non-parole period. The court must identify in the record of its reasons each factor that it took into account. (4A) When determining an aggregate sentence of imprisonment for one or more offences, the court is to indicate, for those offences to which a standard non-parole period applies, the standard non-parole period (or a longer or shorter non-parole period) that it would have set in accordance with subsections (2) and (3) for each such offence to which the aggregate sentence relates had it set a separate sentence of imprisonment for that offence. (4B) If the court indicates that it would have set a longer or shorter non-parole period for an offence under subsection (4A), it must make a record of the reasons why it would have increased or reduced the standard non-parole period. The court must identify in the record each factor that it would have taken into account. (5) The failure of a court to comply with this section does not invalidate the sentence."
18. In Muldrock v The Queen, the High Court said at 132 [27] (footnotes omitted): "Section 54B(2) and s 54B(3) oblige the court to take into account the full range of factors in determining the appropriate sentence for the offence. In so doing, the court is mindful of two legislative guideposts: the maximum sentence and the standard non-parole period. The latter requires that content be given to its specification as 'the non-parole period for an offence in the middle of the range of objective seriousness'. Meaningful content cannot be given to the concept by taking into account characteristics of the offender. 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."
19. After considering the proper construction of s.54B(2) and s.54B(3) Crimes (Sentencing Procedure) Act 1999, their Honours moved (at 137 [50]ff) to address general sentencing principles with respect to the sentencing of mentally retarded offenders. In the course of considering the role of general deterrence in that respect, their Honours said at 139 [54] (footnotes omitted): "The principle is well recognised. It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap. A question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community."
20. These two paragraphs from Muldrock v The Queen have attracted considerable attention in cases which have sought to apply that decision to standard non-parole period offences. It must be kept in mind that the two paragraphs relate to different topics, the first concerning the proper construction of the statutory provisions and the second being a broader consideration of common law sentencing principles.
21. Following the decision in Muldrock v The Queen, the New South Wales Law Reform Commission ("NSWLRC") considered the operation of the standard non-parole period offence scheme in Report 134, "Sentencing - Interim Report on Standard Minimum Non-Parole Periods" (May 2012) as part of the Commission's reference on sentencing. The NSWLRC referred again to this topic in Report 139, "Sentencing" (July 2013), Chapter 7.
22. Following the reports of the NSWLRC, amendments were made to s.54A and s.54B by the Crimes (Sentencing Procedure) Amendment (Standard Non-Parole Periods) Act 2013. The amendments enacted in 2013 did not use the terms of the draft provision proposed by the NSWLRC. After amendments made by the 2013 Act, s.54A and s.54B provided (and continue to provide) as follows (emphasis added): "54A What is the standard non-parole period? (1) For the purposes of this Division, the standard non-parole period for an offence is the non-parole period set out opposite the offence in the Table to this Division. (2) For the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the Table to this Division that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness. 54B Consideration of standard non-parole period in sentencing (1) This section applies when a court imposes a sentence of imprisonment for an offence, or an aggregate sentence of imprisonment with respect to one or more offences, set out in the Table to this Division. (2) The standard non-parole period for an offence is a matter to be taken into account by a court in determining the appropriate sentence for an offender, without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence for an offender. (3) The court must make a record of its reasons for setting a non-parole period that is longer or shorter than the standard non-parole period and must identify in the record of its reasons each factor that it took into account. (4) When determining an aggregate sentence of imprisonment for one or more offences, the court is to indicate and make a written record of, for those offences to which a standard non-parole period applies, the non-parole period that it would have set for each such offence to which the aggregate sentence relates had it set a separate sentence of imprisonment for that offence. (5) If the court indicates under subsection (4) that it would have set a non-parole period for an offence that is longer or shorter than the standard non-parole period for the offence, the court must make a record of the reasons why it would have done so and must identify in the record of its reasons each factor that it took into account. (6) A requirement under this section for a court to make a record of reasons for setting a non-parole period that is longer or shorter than a standard non-parole period does not require the court to identify the extent to which the seriousness of the offence for which the non-parole period is set differs from that of an offence to which the standard non-parole period is referable. (7) The failure of a court to comply with this section does not invalidate the sentence."
23. The Explanatory Memorandum for the 2013 Bill said: "[Clause 54A(2)] makes it clear that a standard non-parole period represents the non-parole period not for the actual offence for which an offender is to be sentenced but for an offence of the same kind that is in the middle of the range of seriousness, and that this is determined by taking into account only objective factors that affect its relative seriousness (and without reference to matters personal to a particular offender or class of offenders). [Clause 54B] makes it clear that a standard non-parole period is a matter to be taken into account in determining the appropriate sentence for an offender (as a 'legislative guidepost'). The amendment does not affect a court's usual sentencing practice of assessing the relative seriousness of an offence taking into account objective and subjective factors and does not limit the other matters that a court is required or permitted to take into account in determining the appropriate sentence for an offender."
24. In the second reading speech with respect to the Crimes (Sentencing Procedure) Amendment (Standard Non-Parole Periods) Act 2013, the Attorney General, Mr Smith, said (Hansard, Legislative Assembly, 18 September 2013) (emphasis added): "While the decision in Muldrock clarified the role of the standard non-parole period as a guidepost in sentencing, the decision left two significant issues unsettled: first, the extent to which the subjective factors of an offender may be taken into account in assessing the objective seriousness of a standard non-parole period offence; and, second, whether a sentencing court is required or permitted to classify a standard non-parole period offence by reference to its position in a range of objective seriousness. The NSW Law Reform Commission considered the operation of the scheme following the decision in Muldrock in its 'Interim Report on Standard Non-parole Periods'. The commission recommended that the scheme should be retained, but that legislative amendments should be made to clarify the provisions in accordance with Muldrock and provide guidance on the issues that remain unsettled as a result of the decision. The commission confirmed this recommendation in the recently released 'Report 139: Sentencing'. This bill implements the Law Reform Commission's recommendation by clarifying a number of aspects of the scheme. I will now outline each of the amendments in turn. Item (2) of schedule 1 clarifies section 54A of the Crimes (Sentencing Procedure) Act, which describes the standard non-parole period. The question for the court at this stage is simply: What does the standard non-parole period mean? The court must give some meaning to the standard non-parole period in each particular case so that it can be taken into account as a guidepost. This amendment clarifies that the standard non-parole period represents the non-parole period not for the actual offence for which the offender is to be sentenced, but for an offence of the same kind that is in the middle of the range of seriousness, taking into account only the objective factors affecting its relative seriousness. The amendment arises from the statement of the High Court that: meaningful content cannot be given to [the concept of an offence in the middle of the range of objective seriousness] by taking into account characteristics of the offender. The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. Since the High Court's decision, there has been uncertainty as to the extent to which the above statement limits the court's ability to consider matters personal to the offender when sentencing for a standard non-parole period offence. The amendment clarifies that limiting consideration to the objective factors applies only when giving meaning to the hypothetical 'middle of the range' offence described in section 54A. It does not prevent courts from taking into consideration all relevant factors, including those personal to the offender, when determining the appropriate sentence under section 54B. The amendments adopt the language of section 21A of the Crimes (Sentencing Procedure) Act 1999, which refers to 'objective or subjective factors that affect the relative seriousness of the offence'. There has been extensive consideration in the courts of whether particular factors are objective factors affecting the relative seriousness of an offence, or whether they should be seen as purely personal factors. The amendments ensure that these common law concepts apply to the consideration of objective and subjective factors in the sentencing process."
25. Amendments made by the 2013 Act extended to offences committed before the commencement of the amendment on 29 October 2013, but did not affect any sentence imposed before the commencement of the amendment: Clause 65, Schedule 2, Crimes (Sentencing Procedure) Act 1999.
26. In approaching decisions of this Court since amendments were made to s.54A and s.54B in 2013, it is necessary to keep in mind that it is the statute in its present form which is to be considered and applied, with statements made by the High Court in Muldrock v The Queen to be considered with that important qualification in mind.
27. A number of decisions of this Court have addressed the assessment of objective seriousness for standard non-parole period offences before the amendments made by the 2013 Act. Some of these decisions were referred to by Bellew J (Bathurst CJ and Simpson J agreeing) in Cowan v R [2015] NSWCCA 118 at [61]-[62]: "61 Moreover, as I have observed in respect of ground 1, his Honour failed to take into account and apply the principles relevant to sentencing a mentally ill offender, a consideration of which formed part of the assessment of objective seriousness. In McLaren v R [2012] NSWCCA 284 McCallum J (with whom McClellan CJ at CL and I agreed) said (at [29]): 'The decision in Muldrock does not, however, derogate from the requirement on a sentencing judge to form an assessment as to the moral culpability of the offending in question, which remains an important task in the sentencing process. That this assessment is also sometimes referred to as the 'objective seriousness' of the offence perhaps contributes to the misconception. I do not understand the High Court to have suggested in Muldrock that a sentencing judge cannot have regard to an offender's mental state when undertaking that task (as an aspect of his or her instinctive synthesis of all of the factors relevant to sentencing).' 62 In Elturk v R [2014] NSWCCA 61 Beazley P (with whom RA Hulme and Schmidt JJ agreed), said in reference to the decision in McLaren (at [34]): 'Her Honour's analysis is, respectfully, not only correct, but aptly captures the relevance of moral culpability in the sentencing process'."
28. The decision of this Court in Biddle v R does not refer to the amendments made to s.54A and s.54B by the 2013 Act. The arguments proceeded by reference to the decision of the High Court in Muldrock v The Queen directed to the provisions in their form in 2011. Mr Biddle had been sentenced for murder on 28 October 2011 so that his appeal fell to be determined by reference to the terms of s.54A and s.54B as they stood before the commencement of the 2013 amendments (see [95] above). The Court in Biddle v R was considering the statutory provisions as construed in Muldrock v The Queen.
29. In Biddle v R, Hoeben CJ at CL (Price J agreeing) said at [66]-[70]: "66 The proposition that an offender's mental health should be taken into account when assessing the objective seriousness of the offending is not without difficulty. There is a tension between what the High Court said at [27] and [54] in Muldrock v The Queen. 67 The position has not been assisted by the more recent observations of the High Court (Bell, Gageler, Keane, Nettle and Gordon JJ) in The Queen v Kilic [2016] HCA 48; 91 ALJR 131) where the Court said: '18 What is meant by an offence falling within the 'worst category' of the offence is that it is an instance of the offence which is so grave that it warrants the imposition of the maximum prescribed penalty for that offence. Both the nature of the crime and the circumstances of the criminal are considered in determining whether the case is of the worst type. Once it is recognised that an offence falls within the 'worst category', it is beside the point that it may be possible to conceive of an even worse instance of the offence. … 19 Where, however, an offence, although a grave instance of the offence, is not so grave as to warrant the imposition of the maximum prescribed penalty - as the offending was agreed to be here − a sentencing judge is bound to consider where the facts of the particular offence and offender lie on the 'spectrum' that extends from the least serious instances of the offence to the worst category, properly so called. …' [Footnotes omitted] 68 Despite those difficulties, it is clear that this Court has followed the approach that an offender's mental condition, which must impact upon moral culpability, is a matter to be properly taken into account when assessing the objective seriousness of an offence. A statement of that principle can be seen in the judgment of McCallum J (with whom McClellan CJ at CL and Bellew J agreed) in McLaren v Regina where her Honour said: '29 The decision in Muldrock does not, however, derogate from the requirement on a sentencing judge to form an assessment as to the moral culpability of the offending in question, which remains an important task in the sentencing process. That this assessment is also sometimes referred to as the 'objective seriousness' of the offence perhaps contributes to the misconception. I do not understand the High Court to have suggested in Muldrock that a sentencing judge cannot have regard to an offender's mental state when undertaking that task (as an aspect of his or her instinctive synthesis of all of the factors relevant to sentencing).' 69 Observations to similar effect were made by Price J (with whom Hidden and Schmidt JJ agreed) in Martin v R where his Honour said: '53 It is evident from these opinions that the applicant's mental disorders may have contributed to his offending. Although a specific submission was not made by the applicant's counsel on this issue, the focus of the applicant's case on sentence was his mental health. In my respectful opinion, the judge was obliged to expressly make some assessment as to whether the applicant's moral culpability for the serious crimes that he committed was reduced by his mental condition. In assessing the objective seriousness of the offences, her Honour did not make any reference to the applicant's mental health and erred in not doing so.' 70 Those statements of principle have been approved in Elturk v R and Cowan v R."
30. In a separate judgment in Biddle v R, Rothman J said at [121]-[125]: "121 As to the manner in which an impairment of mind or mental state may be utilised, I adopt, with respect, the comments of McCallum J, Harrison J and of Simpson J to which Hoeben CJ at CL has referred and which he has recited above. 122 In my view, there is no tension in the principles established by the High Court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39. Nor is there tension between the reasons for judgment in Muldrock, supra, and The Queen v Kilic (2016) 91 ALJR 131; [2016] HCA 48. There remains a distinction between the objective seriousness of an offender's conduct and the categorisation of the offence as a whole. 123 Further, factors peculiar to a particular offender are relevant to objective seriousness when those factors ameliorate culpability. Such may be the case in mental illness. 124 Whatever be the objective seriousness, mental illness will be a subjective factor that may ameliorate (or sometimes exacerbate) the need for punishment, the opportunities for reform and rehabilitation, the need to protect society and the appropriateness of the offender as a vehicle for general deterrence. 125 Whether or not one took account of the suggested mental impairment of this offender in either task, it would have made no difference to his Honour's result. In my view, no error has been identified and no error is manifest."
31. In Yun v R, the applicant had been sentenced by the Court of Criminal Appeal for murder on 2 June 2008. Accordingly, his case fell to be determined by reference to the pre-2013 provisions as considered in Muldrock v The Queen (see [95] above). In Yun v R, Latham and Bellew JJ referred to a number of decisions of this Court (including Biddle v R) and concluded at [46]-[47]: "46 The issue in Biddle was whether the sentencing judge erred in failing to find that the offender's mental illness was causally related to the commission of the offence. This Court held that no such error had been established, but took the opportunity to set out the relevant principles in light of the appellant's counsel in Biddle submitting that it was necessary to take into account an offender's mental illness when assessing the objective seriousness of an offence. 47 It is apparent that this Court has invariably determined since Muldrock (with the possible exception of Badans and Subramaniam) that an offender's mental condition at the time of the commission of the offence is a critical component of 'moral culpability' which in turn affects the assessment of 'objective seriousness'. For these reasons, and in the absence of clear guidance from the High Court, the appellant's contention that an assessment of objective seriousness of a standard non-parole period offence, post Muldrock, precludes consideration of the offender's mental state, duress, provocation, and mental illness (where causally related to the commission of the offence) must be rejected."
32. In a separate judgment in Yun v R, Campbell J noted the existence of the 2013 Act and continued at [50]-[60]: "50 It must be accepted that when sentencing for Division 1A offences (at least those committed before the commencement of the Crimes (Sentencing Procedure) Amendment (Standard Non-Parole Periods) Act 2013 (NSW)), there is a need for some purposes to distinguish between 'characteristics of the offender', on the one hand, and 'the nature of the offending', on the other. This distinction was important for the purpose of ss 54A and 54B as they formerly stood, which is the form applicable to the case at hand. (It remains important for the legislation in its current form.) It is well to bear in mind that s 54A(2) then provided, in part, 'the standard non-parole period represents the non-parole period for an offence in the middle range of objective seriousness for offences' to which the Division applies. The unanimous High Court said (at 132 [27]): 'Meaningful content cannot be given to the concept by taking into account characteristics of the offender. 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. 51 As the joint reasons of Latham and Bellew JJ make clear, differences of opinion have arisen as to the matters covered by the expression 'characteristics of the offender' which are to be eschewed when determining 'the nature of the offending'. I accept the accuracy of the analysis of Latham and Bellew J summarised at [47] above. To the exceptions of Badans and Subramaniam, I would add GN v R [2012] NSWCCA 96 at [12] by Basten JA (Blanch J agreeing). 52 The reason why differences of opinion have arisen, with respect, is that the High Court did not precisely articulate the type of 'facts, matters and circumstances' falling into each category. Reading the judgment as a whole, one is left with the impression that Mr Muldrock's significant intellectual disability was treated as a 'characteristic of the offender', or a matter 'personal to a particular offender'. As Hoeben CJ at CL pointed out in Biddle at [66], in Muldrock at [54] the High Court spoke of Mr Muldrock's intellectual disability substantially lessening his moral culpability for the offence. And at [55], the Justices referred to the causal relation between his disability and the offending. The Justices also referred to his superficial understanding that it was wrong to engage in sexual contact with a child and that he told 'childish lies' to shift blame. Their Honours said (at [55]) these 'were not reasons to assess his criminality as significant', inter alia. I confess it's not clear to me whether their Honours were equating the significance of the criminality with the objective seriousness of the offence, or whether that was a conclusion derived from the synthesis of all of the facts, matters and circumstances bearing upon the judgment about the appropriate sentence to be imposed, including as one of those considerations the assessment of the objective seriousness of the offending. Nor is the relationship between an offender's moral culpability and the objective seriousness of the offending stated. 53 In Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at 621 [57], a unanimous High Court distinguished between moral culpability and objective seriousness. Their Honours said: 'The circumstance that the appellant has been affected by an environment in which the abuse of alcohol is common must be taken into account in assessing his personal moral culpability, but that consideration must be balanced with the seriousness of the appellant's offending.' (See also Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at 44 - 46; Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at 476 - 477). 54 As the plurality pointed out in Veen (No 2), the one relevant factor may have 'two countervailing effects' (at 477). 55 The fundamental principle established by Muldrock is that, even in the case of offences to which Division 1A applies, an instinctive synthesis of all relevant facts, matters and circumstances is the only permissible approach to sentencing. This requires 'the judge to identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed' (at 132 [29]). This being so, and bearing in mind that any single 'fact, matter or circumstance' might be relevant for more than one purpose, it may make little sense to search for a bright line dividing the nature of the offending from circumstances personal to the offender. 56 I agree with Latham and Bellew JJ that there is a clear relationship between 'moral culpability' and 'objective seriousness' and the assessment of one may affect the assessment of the other. But they are not the same thing. A particular circumstance personal to the offender may reduce his or her moral culpability for what is clearly an objectively serious example of the type of offending under consideration. Such a conclusion does not necessarily lead to a reduced sentence; but it may. 57 It is not necessary for present purpose to decide whether the decision in The Queen v Kilic, especially at [18] - [19] (see [45] above), throws any light upon the distinction between the nature of the offending and the personal characteristics of the offender for the purpose of the application of Division 1A. The reference to 'the nature of the crime and the circumstances of the criminal' in [18] somewhat strongly suggests that Kilic is addressing a quite separate point; it is concerned with the final judgment which is the product of the instinctive synthesis by which the sentence is fixed. This same judgment must be formed in every case whether Division 1A applies or not. I do not see any inconsistency between Muldrock at [27] and Kilic at [18] - [19]. They are concerned with different things. 58 Whatever should be derived from Muldrock at [27] - [29] about what is covered by the expressions 'objective circumstances' and 'personal characteristics' respectively, the thrust of the argument of Ms Roy of Counsel was that the mental element of murder fell into the category of a characteristic personal to the applicant rather than the category of the nature of the offending. With respect, this must clearly be wrong. There is no offending without the relevant mental element. 59 In any event, there is authority of this Court that the mental state of the offender at the time of the commission of the offence goes to objective seriousness: Subramaniam at [57]; SKA v R; R v SKA [2009] NSWCCA 186 at [134]. That SKA was decided before Muldrock does not lessen the force of Simpson J's (as her Honour then was) analysis. Nor is it diminished by the consideration that her Honour's reasoning involves a distillation of the detailed reasoning in R v Way. Her Honour was well aware of the need 'to separate circumstances or features that were relevant to the objective gravity of the offence as distinct from the personal circumstances or features of the offender' for the purpose of Division 1A (SKA at [133]). Examples of personal circumstances, in her Honour's judgment, included youth and being subject to prior sexual abuse. Such circumstances 'impinge upon moral culpability' but do not affect the evaluation of objective seriousness of the offending (SKA at [135]). 60 Muldrock may be taken to have overruled the staged or stepped approach to sentencing for Division 1A offences summarised at 191 [117] - [121] of R v Way: Muldrock at 131 [25] and 132 [28]. It does not follow from this that everything said by this Court in R v Way, and in particular everything said about the interrelationship between 'objective seriousness' and 'matters personal to the offender', should be taken to have been disapproved of by the High Court. I repeat, what the High Court overruled is the two-staged approach, because it tended to undermine the instinctive synthesis approach described by McHugh J in Markarian v The Queen (see [22] above by Latham and Bellew JJ). Had the Justices meant to be understood as disapproving of the analysis in R v Way at 186 [84] - 187 [87] - [88] they would have said so clearly."
33. The task for the sentencing Judge in this case was to apply the terms of s.54A and s.54B, as amended by the 2013 Act, in sentencing for the standard non-parole period offence under s.35(2).
34. The 2013 amendments removed the concept of "an offence in the middle of the range of objective seriousness" from the definition in s.54A(2). In its place, the standard non-parole period now represents the non-parole period for an offence "that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness".
35. Section 54B(2), as amended in 2013, makes clear that the standard non-parole period is "a matter to be taken into account by a court in determining the appropriate sentence for an offender …". In this way, the 2013 amendments give effect to the High Court's characterisation in Muldrock v The Queen at 132 [27] of the standard non-parole period as a legislative guidepost to be taken into account on sentence.
36. Perhaps curiously, this Court has not been called upon to construe s.54A and s.54B as amended by the 2013 Act. It may be that an assumption was made that the 2013 amendments did not alter materially the approach adopted in Muldrock v The Queen. However, the terms of the sections have been changed and it is for the Court to direct attention to those provisions in determining the present case.
37. Before moving to consider these provisions, a general observation is appropriate. Assessment of the objective gravity of an offence forms a significant part of the sentencing process with respect to all offences. As Simpson J (Davies J and Grove AJ agreeing) said in Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118 at 523 [71]: "Assessment of the objective gravity of any offence has traditionally been an essential element of the sentencing process: R v Geddes (1936) 36 SR (NSW) 554; R v Dodd (1991) 57 A Crim R 349. It should not be doubted that any sentencing decision calls for attention to be paid to the objective gravity of the offence: Markarian v R [2005] HCA 25; 228 CLR 357."
38. In Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44, with the concurrence of McClellan CJ at CL, I said at 473 [46]: "The process of instinctive synthesis to be undertaken by a sentencing court involves the sentencing judge identifying all the factors that are relevant to the sentence and then making a value judgment as to the appropriate sentence in all the circumstances of the case: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 377-378 [51]; Muldrock v The Queen at 1162 [26]. Assessment of the objective gravity of an offence has traditionally been an essential element of the sentencing process: R v Dodd (1991) 57 A Crim R 349 at 354; Khoury v R [2011] NSWCCA 118 at [71]. It is an essential element of the process of instinctive synthesis, a purpose of which is the imposition of a proportionate sentence, which adequately punishes an offender: s.3A(a) Crimes (Sentencing Procedure) Act 1999."
39. The wide range of factors which bear upon the sentencing task were noted by the High Court in Muldrock v The Queen at 128-129 [18]-[20], 138-142 [53]-[61]. The issue remains how the 2013 amendments to s.54A and s.54B leave the sentencing task with respect to standard non-parole period offences.
40. The following propositions arise with respect to the legislation as amended in 2013: 1. s.54B applies wherever a court imposes a sentence of imprisonment for a standard non-parole period offence and s.54B must be read as a whole: Muldrock v The Queen at 131-132 [26]; 2. the standard non-parole period is a matter to be taken into account by a court as part of a single-stage (and not two-stage) process "in determining the appropriate sentence for an offender", without limiting the matters that are otherwise required or permitted to be taken into account in the process of instinctive synthesis: s.54B(2); Muldrock v The Queen at 131-132 [26]; 3. the concept of a standard non-parole period, as explained in s.54A(2), is an abstract one - it includes only "the objective factors affecting the relative seriousness of that offence" and "is in the middle of the range of seriousness"; 4. in construing s.54B as a whole, it is important to keep in mind the new s.54B(6) - a sentencing court is not required to identify the extent to which the seriousness of the offence in question differs from the abstract, notional or theoretical offence referred to in s.54A(2) - a process of comparing and contrasting the actual offence with the abstract one is not necessary; 5. an assessment of the objective gravity of the offence is necessary as required at common law (see [107]-[108] above), but the sentencing Judge is not required to undertake a process of identifying features of the offence which were taken into account (or not taken into account) in considering the role of the standard non-parole period in the particular case; 6. the task of the sentencing court is to take into account all factors which bear upon the process of instinctive synthesis in the particular case (s.54B(2)) including the two legislative guideposts constituted by the maximum penalty and the standard non-parole period: Muldrock v The Queen at 132 [27].
41. The purpose of the 2013 Act, as explained by the Attorney General in the second reading speech and in the Explanatory Memorandum, appears to have been to clarify and simplify the process of sentencing for standard non-parole period offences. The amendments were not intended to expand factors under s.54A(2) so as to include in the abstract or notional concept of a standard non-parole period features which were personal to the offender whether connected to the commission of the offence or more generally. If that was the statutory purpose, clear words would have been required to achieve it, particularly in light of the construction given to the section in Muldrock v The Queen. Further, such an approach would have created a concept of indeterminate meaning which would obscure, rather than assist, the sentencing process.
42. 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).
43. The concept of "moral culpability" was used by the sentencing Judge in this case and in submissions to this Court. The term "moral culpability" has been used (in a somewhat flexible way) as part of the general law of sentencing. The term may be found in several decisions of the High Court. In Veen v The Queen (No. 2) (1987-1988) 164 CLR 465; [1988] HCA 14, it was observed (at 476-477) that a mental abnormality may diminish moral culpability and an antecedent criminal history may illuminate moral culpability.
44. In Muldrock v The Queen (at 140 [58]), it was observed that the applicant's limited moral culpability may mean that retribution and denunciation did not require significant emphasis.
45. In Munda v State of Western Australia (at 621 [57]), it was said that the circumstances of the appellant being affected by an environment in which the abuse of alcohol is common must be taken into account in assessing his personal moral culpability, but that must be balanced with the seriousness of his offending.
46. In Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ said at 595-596 [44] (footnotes omitted and emphasis added): "44 Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving 'full weight' to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender."
47. In Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29, French CJ, Bell, Keane and Nettle JJ said at 72 [70]: "Certainly, a sentencing judge must do his or her best to find the facts which determine the nature and gravity of the offending, including the facts which inform the offender's moral culpability."
48. In Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194, McClellan CJ at CL (at 43 [177]) observed that, where a person's mental health contributed to the commission of an offence in a material way, the person's moral culpability may be reduced.
49. 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).
50. The sentencing Judge in this case was required to have regard to all factors required by s.54B(2), including the standard non-parole period as explained in s.54A(2). This did not require a close analysis of factors to explain the role of the standard non-parole period in this case (see [110] above).
51. The sentencing Judge addressed a range of matters before making the finding that the offences "fall within the broad mid-range of objective seriousness" (R v Tepania at [87] at [70] above). It is necessary to read fairly, and as a whole, his Honour's sentencing remarks.
52. His Honour made a number of factual findings concerning the s.35(2) offence. Critically, for the purpose of this ground, his Honour said: 1. that the Applicant's "socially disadvantaged upbringing may have contributed in some way" to the offence (R v Tepania at [74] at [68] above); 2. there was "some reduction in his moral culpability as contrasted with an offender from a more advantaged upbringing" (R v Tepania at [76] at [69] above); 3. "a substantial contributor to the recklessness of his conduct and his anger" was the self-induced intoxication by alcohol and drugs which was not to be taken into account (R v Tepania at [76] at [69] above); 4. the evidence regarding the Applicant's "intellectual function and capacity … to some degree lessens his moral culpability" (R v Tepania at [77] at [69] above).
53. It has not been demonstrated that the sentencing Judge failed to have regard to the Applicant's profound deprivation and intellectual impairment. His Honour explained their role in this case.
54. Although it was a contributing factor to the offence, the Applicant's self-induced intoxication was a factor excluded from operating as a mitigating factor by s.21A(5AA) Crimes (Sentencing Procedure) Act 1999.
55. In the second reading speech concerning the Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 which introduced s.21A(5AA), the then Premier, Mr O'Farrell, said (Hansard, Legislative Assembly, 30 January 2014): "To make it clear that drugs and alcohol are not an excuse for violent behaviour, voluntary intoxication by drugs or alcohol will be removed as a mitigating factor when courts determine sentences in future. This change reflects the view that the choice to become intoxicated should not lead to reduced culpability. Self-induced intoxication is no excuse for violence."
56. In R v Loveridge (2014) 243 A Crim R 31; [2014] NSWCCA 120, this Court said at 59 [220]: "The Respondent's intoxication did not assist him at all on sentence. Of course, the Respondent was sentenced before the commencement of s.21A(5AA) Crimes (Sentencing Procedure) Act 1999 on 31 January 2014. That section now excludes by statute self-induced intoxication being taken into account as a mitigating factor on sentence. However, the law at the time when the Respondent was sentenced was to a similar effect. Although an offender's intoxication, whether by alcohol or drugs, could explain an offence, it ordinarily did not mitigate the penalty: Bourke v R [2010] NSWCCA 22; 199 A Crim R 38 at 44 [26]. Courts around Australia have consistently rejected the proposition that intoxication can mitigate the seriousness of an offence or reduce an offender's culpability. Although an 'out of character' exception has been acknowledged to exist, it has almost never been applied: R v GWM at [82]; ZZ v R [2013] NSWCCA 83 at [110]. The Respondent could not have called in aid the 'out of character' exception. In truth, the Respondent's awareness of his aggression issues, in the context of alcohol use, meant that his intoxication was capable of operating adversely to him on sentence."
57. To the extent that the law prior to enactment of s.21A(5AA) permitted a sentencing court to have regard to intoxication for the purpose of determining the degree of deliberation involved in an offender's breach of the law (R v Coleman (1990) 47 A Crim R 306 at 327), s.21A(5AA) now operates to prevent self-induced intoxication operating as a mitigating factor because of its impact upon the degree of deliberation of an offender. The enactment of s.21A(5AA) meant that the Applicant's self-induced intoxication could not assist him on sentence.
58. It has not been demonstrated that the sentencing Judge fell into error in the manner asserted in the first leg of this ground (at 71). His Honour had regard to these features of the case in making a broad finding of objective seriousness or gravity. They were not overlooked in the exercise of instinctive synthesis.
59. With respect to the second leg (at 71), it is correct to observe that a wide range of conduct may be encompassed within a s.35(2) offence. After making due allowance for all factors which bear upon objective gravity of the s.35(2) offence, I am satisfied that it was open to the sentencing Judge to find that that offence fell "within the broad mid-range".
60. The victim was an infant under the care and control of the Applicant. Although the s.35(2) offence occupied a relatively short period of time, a significant degree of recklessness was demonstrated by his conduct in placing the baby in a bath into which very hot water was placed. Life threatening injuries were caused to the baby although, as it happens, he has made a good recovery.
61. In assessing the objective seriousness of the s.35(2) offence, it is important not to have regard to factors (such as the absence of intention to cause injury) which would, if they existed, have rendered the Applicant liable to conviction and punishment for a more serious offence. In the circumstances of this case, the finding made by the sentencing Judge with respect to objective seriousness was open for this offence. The s.59(1) Offence
62. An offence under s.59(1) does not carry a standard non-parole period. This Court has said that it is not necessary to make a finding with respect to "objective seriousness" (using the pre-2013 s.54A(2) formula) for offences which fell outside the standard non-parole period system: Sivell v R [2009] NSWCCA 286 at [5], [32]; Georgopolous v R [2010] NSWCCA 246 at [3], [30]; R v Field [2011] NSWCCA 13 at [49].
63. Reference was made earlier (at [107]-[108]) to applicable general law principles concerning findings of objective gravity for all offences.
64. A broad range of conduct may fall within an offence of assault occasioning actual bodily harm contrary to s.59(1) Crimes Act 1900: McIntyre v R (2009) 198 A Crim R 549; [2009] NSWCCA 305 at 558 [43]-[44].
65. The s.59(1) offence in this case involved both the forceful (and misguided) acts of the Applicant in inserting the bottle on a number of occasions into "Mark's" mouth, and also an intentional striking of the child in anger or frustration. This offence was committed against a 10-month old victim in the care of the Applicant who was, at the time of this offence, already suffering substantial injuries from the prior s.35(2) offence.
66. This was a substantial offence of assault occasioning actual bodily harm in these circumstances. His Honour's finding that this offence fell "within the broad mid-range of objective seriousness" was open in the circumstances of this case.
67. I would reject the first ground of appeal.

Ground 2 - The Sentence is Manifestly Excessive The Applicant's Submissions

1. The Applicant submitted that, allowing for the 25% discount for the plea of guilty, the indicative sentence for the s.35(2) offence was one of six years, being 60% of the maximum penalty. The notional discounted non-parole period was about three years and six months, being 88% of the standard non-parole period of four years.
2. It was submitted that given the Applicant's very powerful subjective case, the sentence was outside the appropriate range even by reference to the two legislative guideposts contained in the maximum penalty and the standard non-parole period and that this was so even allowing for the finding that the offence lay within the "broad mid-range of objective seriousness".
3. It was submitted for the Applicant that the Form 1 offence involving the assault upon the ambulance officer was minor and, if dealt with separately, would not have called for a custodial sentence so that no significant increase in sentence for the s.35(2) offence was warranted for that reason.
4. Counsel for the Applicant relied upon sentencing statistics for s.35(2) offences in both the Local Court and the District Court. It was submitted that consideration of those statistics supported a conclusion that the sentence in this case was manifestly excessive.
5. Counsel for the Applicant noted that there was not a large cohort of appellate decisions involving causing grievous bodily harm to children. Reference was made to the decision of this Court in R v Lolesio [2014] NSWCCA 219 in support of the argument that the sentence here was manifestly excessive.
6. Reliance was placed as well upon sentencing statistics for offences of assault occasioning actual bodily harm whether prosecuted in the Local Court or the District Court.
7. It was submitted for the Applicant that there was a sentence which involved a significant degree of notional accumulation as a result of the s.59(1) offence, with the aggregate sentence being six months longer and the aggregate non-parole period being four months longer than that relating to the s.35(2) offence. It was submitted that this aspect fortified a conclusion that the aggregate sentence was manifestly excessive. Submissions of the Crown
8. The Crown submitted that both offences were objectively very serious having been committed against a vulnerable, defenceless 10-month old infant in the boy's home by an offender who was in a position of trust with respect to the infant and which resulted in hospitalisation of the infant for 26 days with injuries which carried the risk of life-long injury to the victim.
9. In addition, the Crown submitted that it was an aggravating feature that both offences were committed whilst the Applicant was in breach of conditional liberty.
10. It was submitted that the Form 1 offence of assault on the ambulance officer was itself serious being committed against a vulnerable student ambulance officer who was involved in the treatment of the victim.
11. The Crown submitted that, even where offences against children are committed through lapses of control, deterrence and denunciation are important considerations on sentence: R v Smith [2005] NSWCCA 286 at [54].
12. Whilst acknowledging that the role of general deterrence on sentence for an offender with a socially deprived background and an intellectual impairment is reduced, the Crown submitted that general deterrence and denunciation remained purposes of punishment although moderated in favour of other purposes of punishment: Kiernan v R [2016] NSWCCA 12 at [63].
13. The Crown submitted that the relationship between self-induced intoxication and a deprived background did not operate substantially in the Applicant's favour on sentence in this case: Munda v State of Western Australia at 620-621 [56]-[57].
14. It was submitted that neither the statistics nor the cases relied upon by the Applicant demonstrated that the indicative sentences or the aggregate sentence were manifestly excessive. The Crown submitted that the s.35(2) offence was of such a level of seriousness that it was appropriately prosecuted in the District Court so that Local Court sentencing statistics for that offence did not assist. Further, it was submitted that sentencing statistics for s.35(2) offences do not assist in a case involving an offence against an infant by a person in a position of trust.
15. The Crown submitted that the Applicant's reliance upon the decision of this Court in R v Lolesio could not operate to assist on this ground of appeal. It was a single decision in a Crown appeal with respect to a different offence so that it could not operate to fortify a conclusion of manifest excess in this case.
16. It was submitted that some notional accumulation as between the s.35(2) and s.59(1) offences was appropriate in this case given the additional criminality involved in the latter offence.
17. The Crown submitted that the ground asserting manifest excess had not been made good in this case. Decision
18. The Applicant contends that the aggregate sentence was manifestly excessive. In Newman v R [2018] NSWCCA 208, the Court observed at [47]: "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]: (1) appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases; (2) 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; (3) it is not to the point that this Court might have exercised the sentencing discretion differently; (4) 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; and (5) it is for the applicant to establish that the sentence was unreasonable or plainly unjust."
19. I do not consider that the Applicant is assisted by sentencing statistics for s.35(2) offences either in the Local Court or in the District Court. As this Court has recognised frequently, bare sentencing statistics are of limited use in support of a ground of manifest excess. The s.35(2) offence in this case was of such a level of seriousness that it was always bound to be prosecuted on indictment in the District Court. Local Court sentencing statistics were not pertinent. District Court sentencing statistics for s.35(2) offences provide no real assistance where the case in hand involves an offence committed by a person in the position of trust against a 10-month old baby where very serious injuries were caused to the child even allowing for the satisfactory recovery which has since occurred.
20. Sentencing statistics do not assist the Applicant with respect to the s.59(1) offence either. This was an offence committed against an infant who was already suffering from severe injuries and was assaulted by the Applicant in two different ways with one form of assault being the use of force out of anger and frustration directed to the baby.
21. I do not think that the Applicant's argument is assisted by reference to R v Lolesio. That was a Crown appeal with respect to a different offence and does not operate to suggest any range or even a useful guidepost for the purpose of determining the present ground of appeal.
22. The Applicant's s.35(2) offence involved significant recklessness albeit extending over a short period of time. If the period involved had been longer, than the consequences may well have been far more dire for the Applicant. As it happens, the baby suffered severe burns arising from the Applicant's offence.
23. The Applicant had a history of offences of violence all of which had been dealt with by non-custodial penalties, probably in recognition of his deprived background and his intellectual impairment.
24. The Applicant was subject to conditional liberty at the time of these offences.
25. The sentencing Judge had proper regard to the Applicant's profoundly disadvantaged upbringing and his intellectual impairment. Appropriate regard was had as well to the progress which the Applicant had made in his life before the events surrounding the commission of the present offences.
26. The Form 1 offence of assault upon the student ambulance officer was taken into account on sentence for the s.35(2) offence. It involved an assault upon a young health worker and arose because of the victim's occupation so as to constitute an aggravating factor under s.21A(2)(a) Crimes (Sentencing Procedure) Act 1999.
27. The question for the Court is not whether some other sentence might be imposed if this Court was itself moving to sentence the Applicant for these offences. The task for the Applicant is to satisfy the demanding test of manifest excess which requires the Court to conclude that the aggregate sentence was unreasonable or plainly unjust.
28. I accept that the aggregate sentence was a substantial one. However, the reasons of the sentencing Judge serve to explain the sentencing outcome and this conclusion was open in all the circumstances of the case.
29. The Applicant has not demonstrated that either the indicative sentences or the aggregate sentence were manifestly excessive. I would reject the second ground of appeal.

Conclusion

1. The Applicant has not made good either ground of appeal.
2. I propose that leave to appeal against sentence be granted, but that the appeal be dismissed.

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: 02 November 2018