Thorp v R

Court of Criminal Appeal (NSW)|2022-03-16|Before: Bell CJ, Bellew J, Ierace J

Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (NSW) (Crown) File Number(s): 2019/117281 Decision under appeal Court or tribunal: District Court Date of Decision: 17 December 2020 Before: Weinstein SC DCJ File Number(s): 2019/117281

Judgment

BELL CJ: I agree with Ierace J.
BELLEW J: I agree with Ierace J.
IERACE J: The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal a sentence of imprisonment imposed by Judge Weinstein SC ("the sentencing judge") in the District Court on 17 December 2020, following pleas of guilty, for the following two offences: 1. Aggravated detain for advantage contrary to s 86(2)(b) of the Crimes Act 1900 (NSW) ("the detain offence"), which has a maximum penalty of 20 years; 2. Contravening an apprehended domestic violence order ("ADVO") contrary to s 14(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW) ("CDPV Act") ("the contravene ADVO offence"), which has a maximum penalty of 2 years.
An offence of intimidation, contrary to s 13(1) of the CDPV Act, was taken into account in relation to the sentence imposed for the detain offence, pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the CSP Act") ("the Form 1 (intimidation) offence"). It has a maximum penalty of 5 years imprisonment and/or a fine of $5,500. The circumstance of aggravation for the detain offence was that, at the time of the commission of the offence, actual bodily harm was occasioned to the victim.
The applicant received an effective overall sentence of imprisonment of 3 years and 5 months, commencing on 17 December 2020 and expiring on 16 May 2024, with a non-parole period of 1 year and 11 months. He will be eligible for release to parole on 16 November 2022. The sentence was comprised of a fixed term sentence of 2 months for the contravene ADVO offence and a wholly consecutive sentence of 3 years and 3 months with a non-parole period of 1 year and 9 months for the detain offence.
The applicant sought leave to appeal his sentence on two grounds, which are as follows: "1. [The sentencing judge] erred by doubly punishing the applicant for his breach of the [ADVO], such double punishment manifesting in: (a) the assessment of the objective seriousness of the detain offence including the fact that it constituted a contravention of the ADVO; and (b) an entirely consecutive sentence being imposed for the contravene ADVO offence. 2. The sentence imposed for the detain offence was manifestly excessive."

The offences

The circumstances of the offences were set out in a statement of agreed facts that was tendered by the Crown and which the sentencing judge incorporated into his remarks on sentence, which was to the following effect.
At the time of the offences, the applicant and the victim had been in an on again/off again domestic relationship for approximately three years. There was an ADVO in place, which prohibited the applicant from doing the following: "(1) You must not do any of the following to [the victim], or anyone she has a domestic relationship with (a) assault or threaten her, (b) stalk, harass or intimidate her, or (c) intentionally or recklessly destroy or damage any property that belongs to or is in the possession of [the victim]. (2) You must not approach [the victim] or contact her in any way unless the contact is through a lawyer. (3) You must not go within 200 metres of any place where [the victim] lives or any place where she works or any of the following [specific places were listed]."
On the evening of 8 April 2019, the victim and the applicant were travelling alone in the applicant's vehicle. The victim was driving and the applicant was seated in the front passenger seat. The victim noticed that the applicant was agitated and asked him what was wrong. He replied, "Give me your phone" which the victim did. The applicant inspected her phone and became angry that she had been sending text messages to a girlfriend. An electric stock prod was in the car and known to be in the car by both the applicant and the victim.
The applicant said to the victim, "Don't stop driving until I tell you" and "Don't fucking stop until I tell you". The applicant was screaming at the victim, "You're gone" and "I should break both your legs so you can't run anywhere". This conduct constituted the Form 1 (intimidation) offence.
The victim drove the car to Unanderra and pulled into a car park located near the rear of a restaurant. The applicant was going through the victim's phone and continued yelling at her, "Don't fucking move anywhere". The victim said, "I'm just standing up for a minute" and exited the vehicle. The applicant yelled at the victim to "Get the fuck back in the car".
The victim started running away from the car, screaming for help. She ran through the car park towards the restaurant. The applicant exited the vehicle and chased her. He caught up to the victim and tackled her from behind onto the bitumen. The applicant pulled the victim off the ground by grabbing her torso and underarms from behind and dragged the victim back to his vehicle. The victim sustained injuries to her knees, arms and hands. This was captured on CCTV.
An employee of the restaurant heard the victim screaming and walked out the back of the restaurant. He observed the victim on the ground in the middle of the car park with the applicant standing over her. He observed the applicant picking the victim up and dragging her towards the vehicle. He ran back inside and called out to some of his colleagues to come and help, and then he and three other men ran towards the victim and the applicant. By this time, the applicant and the victim were in an adjoining car park. The applicant still had hold of the victim and was dragging her into his car.
All four men yelled at the applicant words to the effect of "What the fuck are you doing?" The applicant let go of the victim, causing her to fall onto the bitumen, and entered the driver's seat of his vehicle. The victim was assisted up by one of the staff members and they hid between parked vehicles for safety. The applicant reversed and attempted to drive his car out of the car park. He initially went the wrong way and drove quickly to exit the car park. Two of the men believed that they were going to be struck by the applicant's vehicle. Police and ambulance were called to the scene. The victim was conveyed to Wollongong Hospital where an X-ray of her right hand was taken and her injuries were treated. An electric stock prod was located in the car park near where the applicant's vehicle had been parked.
Police attended a number of addresses where the applicant was known to frequent in an attempt to arrest him, without success. On 16 September 2019, the applicant and his father attended Young Police Station regarding the matter and the applicant was arrested.

The sentence hearing

The applicant was aged 28 at the time of the offences and 30 when he was sentenced, on 17 December 2020. He had been on bail since his arrest.

Exhibits tendered by the Crown

The Crown tendered a sentence bundle, without objection, which included the CCTV video, a bundle of photographs of the victim's injuries, a victim impact statement and a sentencing assessment report.

The CCTV video

The video is 34 seconds in length. The view is looking down onto the car park and there is no sound. Seven seconds after it commences, the victim runs quickly into view from the right side and towards the camera, the applicant running immediately behind her. He appears to grab her with both hands on her shoulders and push her face-down onto the ground, with him dropping on top of her. From there, he immediately jumps onto his feet, pulling her up as he does so by his hands under her armpits. He drags her backwards in the direction from where they had emerged, and then turns her around and quickly frog-marches her out of sight. At that moment, four adult males emerge into view from the left and jog after the applicant and the victim, disappearing from sight.

The bundle of photographs

The bundle of photographs depicts abrasions to the victim's arms, hands, knees, left foot and left shoulder, and bruises to various parts of her shoulders, legs and hands.

A victim impact statement

A statement composed by the victim was read out in court. She referred to the escalation of the applicant's bad behaviour against her over the period of their relationship from name-calling to, ultimately, the violence of the offences. She explained the fear that she endured during the assault as the applicant was "starting to rage", to the point that she believed that she was going to die. She described how she stopped the car, got out and "ran screaming for help". She wrote: "I cannot explain how petrified I was and the mental torment I face every day thinking what would have happened to me if those men were not there to help me."
The victim wrote that, consequent to the trauma, "I also lost my job, my financial security, my car, friends, and the relationships with my children". She is "seeking counselling" and is taking medication for anxiety, post-traumatic stress disorder and depression. She continued to feel that "I deserved what happened and that it was my fault. I am tired of feeling ashamed for actions I [did not] take".

The applicant's criminal record

The applicant had prior convictions for domestic violence related offences. In 2009, when he was aged 18, he was convicted of a count of assault occasioning actual bodily harm in a domestic violence context, for which he received a good behaviour bond for a period of 12 months. In 2012 when aged 21, and again in 2017 when he was aged 26, the applicant was convicted of stalking or intimidation with the intention of instilling fear in a domestic violence context. For the 2012 offence, he received a good behaviour bond with supervision for 12 months. For the 2017 offence, he received a sentence of imprisonment for a period of 13 months with a non-parole period of 4 months. His release was subject to supervision and him participating in domestic violence programs and anger management programs, as directed.
The most serious of the applicant's criminal convictions that is not domestic violence related is a conviction in 2013, when he was aged 22, for recklessly inflicting grievous bodily harm in company. He received a sentence of imprisonment of 2 years with a non-parole period of 1 year, to be released subject to supervision. Other entries as an adult include a conviction for resist or hinder police in 2010, for which he received a bond for 12 months, and possessing prohibited drug convictions in 2012 (a fine of $100) and 2013 (conviction with no other penalty). He has convictions in Queensland in 2018, the most serious being possession of a shortened firearm (a shotgun), for which he received a sentence of imprisonment of "time already served", which was 100 days, without any further punishment. He has multiple entries as a juvenile, the most serious being an entry for assault occasioning actual bodily harm when he was aged 16, for which he received 12 months probation.

The sentencing assessment report

The sentencing assessment report, dated 8 December 2020, was prepared by a Community Corrections Officer ("the Officer"). The Officer interviewed the applicant and spoke to his father, who was also his employer. At the time of the report, the applicant was residing with his father in Young. The Officer briefly canvassed the applicant's background, which was to the effect that he was raised in a household "marred by domestic violence". His parents separated when he was about 12 years old. He had limited education. At the time of the report, he was employed full-time by his father in an earth-moving business.
The applicant informed the Officer that, at the time of the offences, his life was "in turmoil, due to his drug use, homelessness, un-medicated mental health and poor relationship issues". He admitted to having "an anger issue" and a history of cannabis and amphetamine use which commenced about the time his parents separated. His father told the Officer there had been "a major positive change" in the applicant since his medication for depression and anxiety was re-assessed and increased, which was about 12 months before the date of the report. The applicant had recently engaged with a psychologist to deal with his anger issues, although ongoing contact had been impaired by his employment commitments elsewhere in the State.
The Officer was encouraged by the applicant's past response to supervision concerning his drug, mental health and domestic violence/aggression issues, which included his completion of the domestic abuse program. She noted that, during the applicant's contact with Community Corrections in 2018, he "presented with some insight into the negative [e]ffects of his actions".
The applicant expressed remorse to the Officer for the offences, acknowledging that: "… in hindsight his actions were wrong and extremely disrespectful and would have had a negative impact on the victims, creating within them increased stress."

Exhibits tendered by the applicant

The applicant tendered reports by a forensic psychologist and treating psychiatrist and brief references from his father and an employment contractor.

The forensic psychologist's report

Sarah Van De Velde, forensic psychologist, assessed the applicant over two interviews in person in October 2020. Ms Van De Velde related in some detail the applicant's history of childhood exposure to domestic violence, including physical violence between his parents, which culminated in a difficult separation, when he was aged 12. His mother had a severe gambling problem at the time and his father was the subject of an ADVO.
The applicant was expelled from school in Year 7 at the age of 13, for behavioural issues. He said he felt "angry" with everyone. He spent short periods in Juvenile Justice detention.
When he was aged 16, the applicant commenced a relationship that lasted nine years and produced two children ("his first relationship"). His relationship with the victim lasted four years ("his second relationship"). He admitted verbal fighting in the first relationship to the point of yelling and screaming, and sending his partner "abusive messages when angry". He admitted to shouting in the second relationship. He denied he was physically abusive in either relationship. He said the second relationship became "toxic" and that he and the victim would consume methylamphetamine together. Ms Van De Velde observed, in respect of the applicant's attitude to both relationships, that the applicant: "… appeared to minimise or deny intimate partner violence, indicating that his former partners had falsely accused him of offending for their own benefit, reporting mistrust towards women, and using derogatory terms for his ex-partners."
The applicant reported symptoms from the age of 13 that Ms Van De Velde regarded as being consistent with a history of depression, which intensified in about 2012, when his first relationship became problematic for him. He related a history of diagnoses for anxiety and depression, for which he had received drug therapy.
In relation to the applicant's anger issues, Ms Van De Velde noted that his anger issues commenced at about the same time as his parents' separation: "[The applicant] described a history of difficulty in controlling his anger that began after his parents separated. … He described past angry and violent rumination about people who had hurt himself or his loved ones. He reported ongoing angry rumination about [the victim's] behaviour. He described intense physical symptoms of anger, rumination and shouting, threats, fighting, swearing and, historically, breaking and throwing objects. This is consistent with observations by his father … that [the applicant] 'can't control his anger … about little things'."
Ms Van De Velde noted that the applicant had participated in anger management treatment programs and engaged with a counsellor or psychologist in 2017 or 2018 but ceased those sessions "because he returned to his partner". She considered that the applicant "demonstrated insight into his mental health and anger".
The applicant's use of drugs and alcohol also commenced about the time of his parents' separation. When he was aged about 12, he started associating with substance-using peers and from then until he was aged 16, he drank alcohol daily. He first used cannabis when aged 13, using it daily until he was about 25 years old. He told Ms Van De Velde that he ceased using cannabis in late 2019 but had relapsed three months before she interviewed him. He first used amphetamines when aged 14 and between 2010 and 2014, that is, between the ages of approximately 20 and 24 years, he took methylamphetamine daily. He ceased using methylamphetamine in 2014 but relapsed in 2017. By 2018, he was using it every few days. He said that he last used methylamphetamine more than 12 months before the assessment. He reported engaging in drug and alcohol counselling in 2017 and 2018, claiming that his illicit substance use reduced in that period.
The applicant's account of the offences, as related by Ms Van De Velde, was as follows: "[The applicant] described unemployment, illicit substance use, depression and sleeping in his car due to conflict with [the victim] at the time of the offences. He stated that the offences occurred when he realised that that [the victim] was communicating with people he disapproved of and felt anxious, angry and paranoid when he 'saw the phone going off … about me'. He said that he told her to keep driving while he looked at her phone and that they were 'both yelling'. He stated that [the victim] stopped the car, sprayed him with pepper spray and fled and he 'just reacted ... took off after her'. He acknowledged that he had signed the agreed facts, but indicated that event as shown on CCTV footage differed from his recollection that he 'tripped'. He stated that he 'could hear voices ... panicked ... tried to pull her up ... put her in car ... she started screaming' and that he then panicked and left. With regards to his feelings about his offending behaviour, [the applicant] demonstrated some insight into his behaviour and stated that he felt 'disgusted ... regret that could put me in jail.' He reported that since the offence he has 'changed my life, medication, routine, work' and expressed a desire to avoid future offending behaviours."
Ms Van De Velde administered a range of tests. The Personality Assessment Inventory ("PAI") is a self-report test that is intended to detect clinical syndromes and personality pathology, and identify treatment considerations. The applicant's clinical profile revealed the possible presence of a depressive disorder, significant anxiety and tension, and "moderately elevated" characteristics associated with schizophrenia and suicidal ideation. Ms Van De Velde noted: "During assessment, he reported some paranoia and suspicion in the context of feeling anxious and concerns about his former partner's behaviour". As to the applicant's personality pathology, Ms Van De Velde reported that his scores on a scale that assessed features of borderline personality disorder and antisocial personality disorder were "moderately elevated". The issue of anger management was central to treatment considerations: "[The applicant's] scores on a scale examining aggression [were] markedly elevated, indicating being easily provoked, considerable difficulty in managing anger, verbal and aggressive outburst[s] and aggressive behaviour. … However, his scores indicate that he acknowledges major life difficulties and a need for treatment." (emphasis in original)
Ms Van De Velde assessed the applicant's level of risk for future offending generally, utilising a psychological tool known as the Level of Service Inventory - Revised ("LSI-R"). The result was a finding that he presented a "low/moderate risk of reoffending". She also administered the Spousal Assault Risk Assessment Version 3 ("SARA-V3"), which is designed to assess an individual's risk for future intimate partner violence ("IPV"). Ms Van De Velde cautioned that the results were qualified by her not having been provided with a victim impact statement or an opportunity to interview the victim. On that qualified basis, the test indicated that the applicant was at a "moderate" risk of engaging in IPV. Another test administered was the SAPROF, which is a structured assessment guideline that assesses the presence of 17 factors found to reduce a person's risk for violent or sexual reoffending (protective factors). The applicant was in the "moderate" range of protective factors against future violent offences.
Ms Van De Velde referred to a body of research to the effect that exposure to parental conflict and abuse, carer separation and other adverse childhood experiences, can significantly alter developmental trajectories and lead to a host of maladaptive cognitive, emotional, physical, and social outcomes, including negatively influencing social and romantic relationships. She found a nexus between the applicant's childhood experiences and his perpetration of domestic violence as an adult. She concluded: "The current assessment identified the presence of substance abuse, depressive and anxiety disorders, a broader pattern of emotional dysregulation, difficulty controlling anger, and of aggressive, threatening and antisocial behaviour that appeared to develop after witnessing parental conflict and separation. Additionally, he appeared to minimise his IPV and to externalise blame to his ex-partners to a degree. Based on the available information, it is my opinion that his exposure to [adverse childhood experiences] contributed to his poor mental health [and] a general pattern of emotional dysregulation, anger and reactivity when perceiving dishonesty or rejection, which, in turn contributed to his anger and reactive aggression during the offences. Additionally, it is my opinion that it is likely that his minimisation of his behaviour and tendency to attribute blame to his ex-partner likely reinforced and perpetuated his behaviour."
Ms Van De Velde made the following diagnoses: major depressive disorder with the descriptors "unspecified, recurrent episode", generalised anxiety disorder, stimulant use disorder with the descriptors "Amphetamine-Type Substance, sustained remission, moderate", and cannabis use disorder with the descriptors "early remission, moderate".

A treating psychiatrist's report

The applicant tendered a brief report by his treating psychiatrist, Dr Karthik Modem, who diagnosed the applicant as having a major depressive disorder. Dr Modem also noted that the applicant "meets criteria for an Antisocial Personality Disorder History provided", which I assume to mean that this diagnosis was made on the basis of the applicant's provided history.
It is apparent from the history taken from the applicant and noted in the report that the victim of the assault occasioning actual bodily harm, for which he was convicted when he was aged 18 in 2012, was the partner in his first relationship. The history also afforded further information in relation to the Form 1 (intimidation) offence in 2017, which concerned the applicant "sending threatening text messages to [his] ex-partner".

The references

The applicant tendered a letter from his father, who confirmed that he was employing the applicant in his business. The applicant's father stated that he had received "excellent feedback" about the applicant's work performance and that he had observed the applicant's: "… remorse for his actions. I have also witnessed him build increased maturity as he takes steps to deal with his emotions and maintain up to date child support payments."
A brief reference from a contractor of the applicant's father's business was tendered, that confirmed the applicant is a good worker.

Crown submissions

The Crown submissions before the sentencing judge underscored the particular relevance of general and personal deterrence, denunciation and the protection of the victim in sentencing individuals who have committed domestic violence offences. Reliance was placed on Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [54]-[55] and R v Dunn (2004) 144 A Crim R 180; [2004] NSWCCA 41 per Adams J at [47].
The objective seriousness of the offences was submitted to be considerable, having regard to the maximum penalty for the principal offence (20 years imprisonment), and the relevant factors. The Crown submitted that there was a particular need for specific deterrence in light of his limited expressions of remorse and poor prospects of rehabilitation.
The Crown submitted that the events that occurred within the car before the victim escaped were reflected in the Form 1 (intimidation) offence, and therefore its criminality would more than nominally increase the penalty for the detain offence. The Crown submitted that the objective seriousness was "around the mid-range".

The applicant's submissions

The central thrust of the submissions made on behalf of the applicant was that an aggregate sentence of imprisonment of 3 years or less was within range, which would permit consideration of the imposition of an intensive correction order ("an ICO"): s 68(2) of the CSP Act. An ICO would adequately reflect an application of the relevant sentencing principles and meet the need for protection of the victim, since she and the applicant no longer resided in the same part of the state. An ICO would allow the applicant to pursue treatment of his mental health issues and anger management in the community, through continuing with counselling with his psychologist. It was submitted that special circumstances existed to justify an adjustment of the ratio of the non-parole period to the full term of the prison sentence, pursuant to s 44 of the CSP Act ("special circumstances"), to enable a longer period of supervision in order to enhance the applicant's prospects of rehabilitation.
The applicant submitted that the objective seriousness of the offence was "well below mid-range to low range for offences of this type".

An exchange with the parties

During the course of submissions, the sentencing judge referred to the contravene ADVO offence as "a significant matter … the criminality cannot be subsumed and probably calls for a separate non-concurrent sentence of some sort".

The remarks on sentence

The sentencing judge delivered the sentence following the hearing. The sentencing judge acknowledged that, pursuant to s 86(2)(b) of the Crimes Act, the circumstance of aggravation of the detain offence was the infliction of actual bodily harm. The form of contravention that was relied upon by the Crown for the contravene ADVO offence was "by way of violence". His Honour recounted the agreed facts and noted, in relation to the applicant's criminal record, that he had "some significant matters pertinent to this particular offending … as an adult". Turning to the victim impact statement, his Honour said: "It is fair to say that the incident caused the victim both physical and psychological harm. Whilst the evidence does not disclose that there are any lasting physical injuries, [the victim's] statement demonstrates how serious these matters are, because she identifies some lasting psychological harm ... [The victim] did nothing wrong. [The victim] should not be ashamed for any actions she did not take. The consequence of [the applicant's] actions on this particular day have in fact caused long-lasting harm to the victim."
The sentencing judge reviewed the three reports that had been tendered by the parties, placing particular weight on Ms Van De Velde's report, stating: "… I am inclined to place greater reliance on her report than I may otherwise have placed on other representations that are made to third parties in other matters. That is because in this particular case Ms Van De Velde saw [the applicant] on two occasions and assessed him both clinically and for psychometric testing for a total of about five hours. She performed three risk assessments. [The applicant] allowed her to access his medical records and she was provided with a psychiatric assessment by Dr Modem. [The applicant] permitted her to speak with his father for 30 minutes via telephone. In addition, in my opinion, the report when looked at as a whole is fair and balanced, in that Ms Van De Velde expresses some opinions and makes some observations that are adverse to [the applicant]. In those circumstances I accord this document some weight."
The sentencing judge canvassed Ms Van De Velde's report in detail, noting the applicant's dysfunctional childhood, the trauma of his parents' separation, his poor education, his long-standing mental health issues, his drug and alcohol history, his minimisation of intimate partner violence and his difficulties coping with life outside prison. His Honour considered the results of the tests that Ms Van De Velde administered, and their implications for the safety of the victim and the applicant's rehabilitation. The sentencing judge also reviewed the contents of the much shorter psychiatric report and the two references.
The sentencing judge turned to an assessment of the objective seriousness of the detain offence, acknowledging a submission by the Crown to the effect that the period, circumstances, and purpose of the detention, as well as the person being detained, are relevant to that exercise: R v Newell [2004] NSWCCA 183 at [32]. His Honour continued: "That is not controversial. [The Crown] accepted that the period of detention itself was relatively short due to the involvement of the persons who came to the victim's aid. [The Crown] notes that the victim had to run from [the applicant's] car and [the applicant] gave chase and tackled her and dragged her back to the car and so much was evident on the CCTV footage. The duration, however, of the detention [the Crown] says is not the only matter and will not necessarily diminish the objective gravity. [The Crown] says that the following facts and circumstances are also relevant: these are matters with which [the applicant's] solicitor … agreed: that the offence was committed against a background of domestic violence, that an apprehended domestic violence order was in place protecting the victim from [the applicant] and the detain offence breached that order, [the applicant's] motivation was to exert control over her, that the detention involved threats of violence, abuse and physical force, the victim was evidently terrified in that she tried to flee and was screaming for help, and I note the matters in the victim impact statement."
The sentencing judge separately considered the need for general deterrence and denunciation in sentencing the applicant for the contravene ADVO offence: "The criminality of breaching the apprehended violence order rests in the disregard for a Court order, which is conduct having the practical effect of undermining the authority of the Courts themselves and preventing Courts from extending effective protections to persons that are at risk of harm from one another. If the authority of Courts in making these orders is ignored, as the offender did, the law and the Courts are diminished, and the Court's capacity to protect vulnerable persons, such as the person in need of protection, the victim in this case, is impeded. Because it involves disobedience of a Court order, it must by itself be treated as serious and ordinarily it is separately punished, having regard to the requirements of the totality principle."
The sentencing judge noted the Crown's submission that the objective seriousness fell "somewhere about the mid-range for offending of this sort" and that the applicant put a different emphasis on the relevant factors, in particular the length of the detention, and concluded that "to the extent that it is necessary to make any such finding, I would find that it sits somewhere below the mid-range for offending of this type".
As to aggravating factors, the sentencing judge found that s 21A(2)(d) of the CSP Act was applicable, namely, that the applicant was being sentenced for a serious personal violence offence and had a record of previous convictions for such offences, and that the latter factor was limited to intended or reasonably foreseeable injuries: R v Wickham [2004] NSWCCA 193 at [25].
The sentencing judge determined that the Form 1 (intimidation) offence was "not entirely subsumed by the primary offence". The sentencing judge acknowledged the applicant's entitlement to a discount of 25 per cent for his early guilty plea and the evidence of his remorse. In addition, his Honour acknowledged the yardstick of the maximum penalty and the need for general and specific deterrence and denunciation in determining the appropriate sentence.
The sentencing judge gave "full weight" to the applicant's disadvantage as detailed in Ms Van De Velde's report, in particular, the link between his "childhood exposure to violence" and later offending, in the sense required by the majority in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [43], [44] and in related authorities, by expressly reducing, although not eliminating, the applicant's moral culpability on sentence. The sentencing judge found that "there [were] indicia of disadvantage in this case which the Courts have long recognised". His Honour continued: "… [those indicia] are that [the applicant] came from a violent and abusive home, and his mother was a gambler; that he experienced homelessness from a very young age intermittently; and that he was expelled from school in year 7 which meant that he had a very limited education, and at that time but not coincidentally is when he commenced taking drugs and having mental health issues."
As to the applicant's prospects of rehabilitation, his Honour noted prosocial factors; that the applicant was employed, he had largely abstained from illicit substances in the previous year, and he intended to continue with psychological counselling. However, taking into account "the matters that are set out in Ms Van de Velde's report which show less self-awareness than one would otherwise hope", his Honour found that the applicant's "prospects are guarded".
The sentencing judge noted that the Form 1 (intimidation) offence would "increas[e] slightly" the applicant's sentence that otherwise would have been imposed, to "recognise … the community's entitlement to retribution" for that offence.
The sentencing judge determined that only a sentence of imprisonment was appropriate. Contrary to submissions of defence counsel, his Honour found that an ICO was not an appropriate punishment because such an order would not "adequately" address "community safety" or provide adequate protection for the victim. The sentencing judge found that special circumstances existed, on the basis of the finding of disadvantage and the need for the applicant to engage with mental health and other services when he is eventually released to parole.
His Honour acknowledged relevant principles for the formulation of a sentence pursuant to s 3A of the CSP Act and the common law, and handed down the sentence which, as noted, was an effective overall sentence of imprisonment of 3 years and 5 months with a non-parole period of 1 year and 11 months, comprised of a fixed term sentence of 2 months for the contravene ADVO offence and a wholly consecutive sentence of 3 years and 3 months with a non-parole period of 1 year and 9 months for the detain offence. The ratio of the non-parole period to the balance of term of the sentence of imprisonment imposed for the detain offence was 54 per cent, and for the overall sentence the ratio was 56 per cent.

[The sentencing judge] erred by doubly punishing the applicant for his breach of the [ADVO], such double punishment manifesting in:

(a) the assessment of the objective seriousness of the detain offence including the fact that it constituted a contravention of the ADVO; and

(b) an entirely consecutive sentence being imposed for the contravene ADVO offence

The applicant's submissions

The applicant's first ground of appeal is that the sentence constituted double punishment of the applicant, by the sentencing judge finding that a matter relevant to the objective seriousness of the detain offence was that it constituted a contravention of the ADVO but his Honour then imposed an entirely consecutive sentence for the contravene ADVO offence.
In support of this ground, the applicant relied upon Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at 623, per McHugh, Hayne and Callinan JJ: "To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts."
The applicant submitted that since the sentencing judge had structured the sentence with discrete consecutive sentences, rather than sentences that were partly concurrent and partly consecutive, there was no scope to infer that the sentence for the contravene ADVO offence reflected only the aspects of that offence that were not already taken into account with the sentence for the detain offence.

The respondent's submissions

The respondent submitted that the passage relied upon by the applicant from Pearce stated the principle against double punishment but was not prescriptive as to how a sentence should be structured so as to avoid the principle being contravened. The respondent noted that in Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1, Howie J (Adams and Price JJ agreeing) observed, at [27]: "In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both."
The respondent submitted that it is necessary to examine the sentencing judge's remarks in order to determine whether the sentence has breached the principle. In this case, the sentencing judge's remarks disclose that his Honour delineated between the relevance of the contravention of the ADVO as a matter to be taken into account in the detain offence and the discrete criminality that attached to the contravene ADVO offence, which entailed the breaching of a court order that was intended to protect a vulnerable person.

Consideration

As noted in the passage from the remarks on sentence that is extracted at [54] above, the sentencing judge took into account the contravention of the ADVO for the purpose of assessing the gravity of the seriousness of the detain offence, by the observation "that an apprehended domestic violence order was in place protecting the victim from [the applicant] and the detain offence breached that order".
Later in his remarks, in the passage extracted at [55] above, his Honour considered the significance of a contravention of an ADVO as a discrete offence. It is apparent from the terms of that passage that his Honour focussed on the gravity of the offence as a breach of a court order that is intended to protect a person who is at risk of harm from another. An unpunished breach of such an order diminishes the authority of the court to protect vulnerable persons, thus underscoring the need for general deterrence for such offences. In the latter part of that passage, his Honour acknowledged how he intended to address that criminality, namely, that it would be "separately punished", but "having regard to the requirements of the totality principle".
There is no reason to think that the manner in which the sentence was structured did not reflect that intention. In my view, the sentencing judge clearly explained that the contravention of the ADVO contributed to the seriousness of the detain offence but also warranted discrete punishment for contravening the court order by an act of violence. The relatively short sentence of 2 months fixed term imprisonment is consistent with it reflecting primarily the criminality of the breach of a court order.
I would grant leave to appeal the sentence on ground 1, but dismiss the appeal.

The sentence imposed for the detain offence was manifestly excessive

The applicant's submissions

The applicant submitted that the sentence was demonstrated to be manifestly excessive in light of the fleeting nature of the detention, which on the basis of the CCTV video would have been about 30 seconds, the minor nature of the injuries and the objective seriousness being fixed at "somewhere below the mid-range for offending of this type" which, the applicant submitted, necessarily involved a conclusion that the sentencing judge had found the offence to be in the low range, or at least, that it was not inconsistent with it being in the low range.
The applicant referred to a graph provided through the Judicial Information Research System ("JIRS") that demonstrated that of 24 sentences of imprisonment that were imposed following a guilty plea for the same offence, 58.1 per cent received a higher sentence than that imposed on the applicant. The applicant submitted that this is consistent with the proposition that the sentence imposed was more consistent with one that was mid-range in terms of objective seriousness.
The applicant referred to two comparative sentences that involved aggravated detain for advantage offences: Salvaggio v R [2007] NSWCCA 136 and Jibran v R [2020] NSWCCA 86.
In Salvaggio, the applicant sought leave to appeal a sentence of imprisonment for 4 years, with a non-parole period of 3 years 6 months, that was imposed following his conviction at trial for a count of aggravated detain for advantage and two counts of assault occasioning actual bodily harm. The applicant and victim had been in a relationship. The applicant detained the victim for about an hour, during which time he kicked her in the mouth, stomach and abdomen, injured her arm by hitting it with a piece of wood which was aimed at her face, and pressed a burning cigarette into one of her shoulders. The detention only ended when neighbours became concerned by the victim's screams and called the police.
The applicant had significant drug and alcohol issues and prior convictions for matters of violence, being common assault, escape from lawful custody, stalking and contravening an ADVO, for which he received an aggregate sentence of 6 months periodic detention the year before.
Although the Court (Smart AJ, Campbell JA and James J agreeing) was troubled by the structure of the sentence, it declined to intervene, noting: "36 Turning to the sentences imposed in the present case the sentence imposed by the judge for the detention offence of three years non-parole period and one year balance of term was, on the facts at the bottom of the permissible range. 37 Similarly the sentences of fixed terms of two years for each of the assaults was at the bottom of the permissible range. 38 The problems and error lie in the structure of the sentences and the manner of accumulation. As a matter of practical convenience it is often best to impose the longest sentence at the end of the chain of sentences."
In Jibran, the applicant challenged a sentence of an aggregate term of imprisonment for 4 years, with a non-parole period of 3 years, for three offences, being an offence of aggravated detain for advantage (causing actual bodily harm) contrary to s 86(2)(b) of the Crimes Act, driving whilst disqualified and damaging property, that was imposed following pleas of guilty. The indicative sentences were: (a) aggravated detain for advantage - 3 years imprisonment; (b) disqualified driving - 9 months imprisonment; and (c) damage property - 4 months imprisonment.
Briefly stated, the circumstances of the offence were that while the applicant and victim were out driving, the victim decided to go home but the applicant would not permit her to do so. The victim, while outside the car, rang Triple Zero for assistance. The applicant placed his hand over her mouth and forced her into the back seat of the vehicle, locked it and got into the driver's seat. He swung his arm at the victim, but it did not connect. He drove off, throwing her phone out of the window. The victim jumped out of the car while it was moving, sustaining a cut and grazes, and took refuge in the backyard of a house. The applicant attempted to access the backyard, but the occupants rang Triple Zero and assisted the victim.
The applicant succeeded on a ground of appeal that the sentencing judge erred in finding that the driving whilst disqualified offence occurred on the occasion of the other two offences, which were committed at the same time. In the circumstances of this case, this constituted appealable error: Jibran at [165]-[175]. The applicant was re-sentenced to an aggregate sentence of imprisonment for 3 years and 10 months and a non-parole period of 2 years and 10 months. The indicative sentence for the aggravated detain for advantage offence was unchanged, being 3 years imprisonment.

The respondent's submissions

The respondent submitted that the sentencing judge acknowledged that the detention was short, and only because of the intervention of others. The victim was nevertheless subjected to fear and violence. The respondent submitted that the duration of the detention is only one of the factors to be taken into account in assessing the gravity of a detention offence. The circumstances and purpose of the detention, as well as the person being detained, are also relevant to that exercise: Newell at [32].
The respondent submitted that when the broader picture of factors relevant to the sentencing exercise are weighed, the sentence is demonstrably not manifestly excessive. The detain offence and the Form 1 (intimidation) offence were committed in breach of an ADVO and the applicant had a significant criminal record that included multiple prior domestic violence offences. The comparative cases can be distinguished from the present case.

Consideration

The relevant principles that apply to a determination of whether a sentence is manifestly excessive were stated in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 by R A Hulme J, at [443]: "When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King at 505; [1] 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 (2010) 242 CLR 520; [2010] HCA 45 at [59]: • Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. • Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. • It is not to the point that this Court might have exercised the sentencing discretion differently. • There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. • It is for the applicant to establish that the sentence was unreasonable or plainly unjust."
The sentencing judge's determination that the objective seriousness fell "somewhere below the mid-range for offending of this type", in my view, is not equivalent to a finding that it was in the low range. There is no reason as to why it should not be accepted with its inherent imprecision, that is, it lay somewhere below mid-range for offences of that type.
As noted at [56] above, his Honour expressed a reservation about the utility of making a finding in terms of a range at all. The offence did not have a standard non-parole period, so a finding of objective seriousness was not required by s 54A(2) of the CSP Act: see Tepania v R [2018] NSWCCA 247 at [132]; R v Sivell [2009] NSWCCA 286 at [2]. For all offences, the assessment of the objective gravity of an offence is a necessary part of the sentencing process: see for example Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118 at [71]. Although it was unnecessary for the sentencing judge to make a finding of objective seriousness, there was no error in his Honour making such a finding: PW v R [2019] NSWCCA 298 at [19]; although the exercise when not required has sometimes been regarded as undesirable: R v Harris (2015) 70 MVR 412; [2015] NSWCCA 81 at [57]. Whether required or not, the scale of objective seriousness is not uniform and may be imprecise to the point of lacking utility: Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266 at [82]; see also R v Dakkak [2020] NSWSC 1806 per Hamill J at [18].
Although the period of detention is a relevant consideration in determining the gravity of the offence, in R v Speechley (2012) 221 A Crim R 175; [2012] NSWCCA 130, Johnson J (McClellan CJ at CL and Hammerschlag J agreeing), at [106], noted that when the period of detention does not end at the choosing of the captor it is of limited assistance in the assessment of objective gravity. In this case, in the short period before the restaurant employees freed the victim, the applicant had threatened to "break [her] legs" to stop her from leaving, he had demonstrated by the use of force occasioning injury that he would not countenance her leaving, and this was done in the context of an ADVO to not approach, assault, threaten, harass or intimidate her. Accordingly, the brevity of the detention, although relevant, is of limited assistance to the applicant.
In my view, the two comparative sentences which relate to aggravated detain for advantage do not assist the applicant. In Salvaggio, the length of detention before the outside intervention and the nature of the injuries inflicted on the victim rendered the circumstances of Salvaggio significantly more serious than in this case. Although the total sentence imposed was only 7 months longer than in this case, the sentence in Salvaggio, as noted at [78] above, was found by this Court to be at the bottom of the range.
In Jibran, there were some striking similarities with the instant case. The victim was being held in a car and was rescued by the intervention of others while attempting to escape. The period of detention was not dissimilar, and the injuries suffered by the victim were comparable. Although the indicative sentence of 3 years imprisonment is three months less than the indicative sentence imposed for that offence in this case, that difference is not so great as to suggest that the indicative sentence in this case reflected a misapplication of principle.
A reading of the sentencing judge's remarks on sentence discloses a strong concern, based on Ms Van De Velde's report, that although the applicant had commenced the process of addressing his drug misuse and poor anger management, his deep-seated relationship and anger issues were intransigent, so that the protection of society and the safety of the victim were of particular importance. A significant total sentence and a ratio of the overall non-parole period to the balance of term of 56 per cent was the means of achieving that result.
Accordingly, I am not persuaded that the sentence imposed was manifestly excessive. I would grant leave to appeal the sentence on ground 2, but dismiss the appeal.
I propose the following orders: (1) Leave to appeal against sentence granted; (2) Appeal against sentence dismissed.

Endnote

(1936) 55 CLR 499; [1936] HCA 40. 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: 31 August 2022

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