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Catchwords: CRIME – appeals – appeal against sentence – application of R v Henry guideline judgment – whether subjective factors were relied on in the determination of objective seriousness – finding that applicant did not accept responsibility for harm to victim- whether finding of remorse should have been made – parity where no joint criminal enterprise – manifest excess – where judgment delivered ex tempore – appeal brought out of time – extension granted – ground 1 upheld – no lesser sentence warranted – appeal dismissed

Legislation Cited: Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure Act) 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Supreme Court (Criminal Appeal) Rules 2021 (NSW)

Cases Cited: Ali v R [2010] NSWCCA
Alvares v R Farache v R [2011] NSWCCA 33
Azzi v R [2008] NSWCCA 169
Baladjam v R (2018) 341 FLR 162; [2018] NSWCCA 304
BAP v R [2024] NSWCCA 206
BC v R [2020] NSWCCA 329
Braithwaite v R [2024] NSWCCA 15
Brzozowski v R [2023] NSWCCA 129
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Butters v R [2010] NSWCCA 1
DS v R [2017] NSWCCA 37
Foaiaulima v R [2020] NSWCCA 270
Hawat v R [2020] NSWCCA 121
He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95
House v The King (1936) 55 CLR 499; [1936] HCA 40
Humphreys v R [2020] NSWCCA 144
JM v R [2014] NSWCCA 297
Kelly v R [2017] NSWCCA 82
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lee v R [2020] NSWCCA 244
Lloyd v R [2022] NSWCCA 18
Makarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
McDonald v R [2015] NSWCCA 280
Mihelic v R [2019] NSWCCA 2
Mulato v R [2016] NSWCCA 282
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA
Patel v R [2022] NSWCCA 93
Pritchard v R [2022] NSWCCA 130
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
R v Kennedy [2019] NSWCCA 242
R v Qutami [2001] NSWCCA 353
R v Speechley [2012] NSWCCA 130
R v Whyte [2002] NSWCCA 343
Saab v R [2025] NSWCCA 58
Tuncbilek v R [2020] NSWCCA 30
Windle v R [2011] NSWCCA 277

Category: Principal judgment

Parties: Jordan Towers (Applicant)
Rex (Respondent)

Representation: Counsel:
J Trevallion SC (Applicant)
B Costello (Crown)
Solicitors:
Hunter and Braddon (Applicant)
Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2023/089566

Publication restriction: Nil

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mr Jordan Towers (the applicant) sought leave to appeal against the aggregate sentence imposed on him by Abadee DCJ (the sentencing judge) on 4 March 2024. The applicant was sentenced following pleas of guilty to four offences: assault occasioning actual bodily harm, aggravated steal from person and use corporal violence, hinder or resist police officer in the execution of duty and fail to leave premises when required to do so.

The final two offences were dealt with on a s 166 certificate, and the aggregate sentence of imprisonment imposed for the first two offences was 3 years and 6 months with a non-parole period of 2 years and 5 months.

The offending arose out of the conduct of the applicant, who, alongside his sister Brittney Towers, assaulted a staff member after being asked to leave the venue.

The appeal grounds were as follows:

1. The sentencing judge erred in taking into consideration irrelevant considerations when determining the objective seriousness of the aggravated steal from person offence.
2. The sentencing judge erred in determining the applicant had not established the mitigating factor of remorse.
3. The applicant has a justifiable sense of grievance as a result of the sentence imposed upon his co-offender Brittney Towers.
4. The aggregate sentence is manifestly excessive.

The applicant required an extension of time given the appeal was filed late.

The Court (Coleman J, N Adams J at [1]-[16] and Sweeney J agreeing at [17]-[19]) held, granting leave to appeal but dismissing the appeal:

As to ground 1

5. The sentencing judge erred in taking into account subjective matters, namely the age and criminal antecedents of the applicant, in his assessment of objective seriousness for the aggravated steal from person offence: [60]-[77] (Coleman J) (N Adams J at [1] and Sweeney J at [17]).

Hawat v R [2020] NSWCCA 121 considered and applied.

House v The King (1936) 55 CLR 499; [1936] HCA 40; Mulato v R [2016] NSWCCA 282; Braithwaite v R [2024] NSWCCA 15; Salafia v R [2015] NSWCCA 141; Ali v R [2010] NSWCCA 35; Tuncbilek v R [2020] NSWCCA 30; Bap v R [2024] NSWCCA 206; R v Whyte [2002] NSWCCA 343; Foaiaulima v R [2020] NSWCCA 270; Makarian v The Queen (2005) 228 CLR 357; Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39; Azzi v R [2008] NSWCCA 169, cited.

As to ground 2

6. Discussion of the relevant principles of making a finding of genuine remorse on sentence: [2]-[13] (N Adams J).

Patel v R [2022] NSWCCA 93; Pritchard v R [2022] NSWCCA 130; Mihelic v R [2019] NSWCCA 2; House v The King (1936) 55 CLR 499; [1936] HCA 40; Alvares v R Farache v R [2011] NSWCCA 33; Butters v R [2010] NSWCCA 1; R v Qutami [2001] NSWCCA 353; Lloyd v R [2022] NSWCCA 18, applied.

7. The Court held that no error was established by reason of the sentencing judge not making a finding of remorse. Such a finding as a statutory mitigating factor was precluded as the judge found that the offender did not accept responsibility for his actions: [93]-[102] (Coleman J) (N Adams J at [1]-[13] and Sweeney J at [17]-[18] agreeing).

Brzozowski v R [2023] NSWCCA 129, cited.

As to ground 3

8. The Court accepted that because the offending of the applicant and his sister arose out of the same facts and circumstances, the parity principle was relevant. The Court held that given the markedly different and more significant criminal conduct by the applicant as compared to his sister, and the consideration of the different subjective factors found by the respective sentencing judges, the applicant did not have a justifiable sense of grievance as a result of the sentence imposed on Ms Towers: [111]-[119] (Coleman J) (N Adams J at [1] and Sweeney J at [17] agreeing).

Saab v R [2025] NSWCCA 58, applied.

As to ground 4

9. Having considered the violent nature of the offending, coupled with the pertinent subjective factors taken into account by the sentencing judge, the Court held that the sentence imposed was not manifestly excessive: [127]-[132] (Coleman J) (N Adams J at [14]-[16] and Sweeney J at [17] agreeing).

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221; He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95; JM v R [2014] NSWCCA 297 applied.

Lee v R [2020] NSWCCA 244; R v Kennedy [2019] NSWCCA 242; DS v R [2017] NSWCCA 37, cited.

As to re-sentence:

10. In its instinctive synthesis, the sentence that the Court would have imposed was slightly higher (N Adams and Coleman JJ)) or no less (Sweeney J) than that imposed by the sentencing judge. Accordingly, the appeal was dismissed: [133]-[140] (Coleman J) (N Adams J at [1] and [16] and Sweeney J at [17]-[19] agreeing).

JUDGMENT

1. N ADAMS J: I agree with the orders proposed by Coleman J for the reasons provided by his Honour. I wish to provide some additional reasons for doing so in relation to Grounds 2 and 4.

2. Ground 2 contends that the sentencing judge erred in his consideration of whether the applicant had demonstrated genuine remorse. Error in relation to consideration of the mitigating factor of remorse can be established in a variety of circumstances.

3. First, it is an error to fail to consider the sentencing factor of remorse at all if evidence capable of establishing remorse has been placed before the court: Patel v R [2022] NSWCCA 93. Although that appeal was concerned with the mandatory factors in s 16A(2) of the Crimes Act 1914 (Cth) the same principle applies to state offences.

4. Secondly, it can be an error to fail to consider the mitigating factor of remorse separately from considerations of rehabilitation and risk of reoffending. In Pritchard v R [2022] NSWCCA 130, the applicant had provided a letter of apology to the Court, expressed remorse to her psychologist and entered the witness box to give sworn evidence. The Crown conceded before the sentencing judge that remorse was a mitigating factor in this case. The sentencing judge made no finding at all about remorse, although his Honour did expressly state that he was unable to make findings that the applicant had good prospects of rehabilitation or was unlikely to reoffend. The Court (N Adams J with whom Beech-Jones CJ at CL and Price J agreed) held that the sentencing judge erred in failing to make a finding in relation to remorse.

5. Similarly, if a judge is not going to accept the expressions of remorse by an offender given in sworn testimony, that should be stated in the sentencing remarks: Mihelic v R [2019] NSWCCA 2 at [77].

6. Thirdly, a sentencing judge does not err in declining to accept an offender’s evidence of remorse as genuine remorse unless House v The King error is demonstrated: House v The King (1936) 55 CLR 499; [1936] HCA 40. That is, an applicant must establish that in declining to accept the evidence of remorse the sentencing judge acted on a wrong principle, mistook the facts, took into account an irrelevant consideration, failed to take into account a relevant consideration or made a finding that is plainly unjust or unreasonable. In Alvares v R Farache v R [2011] NSWCCA 33, Buddin J (with whom McClellan CJ at CL and Schmidt J agreed) observed that the extent of remorse, as with any question of fact, is “quintessentially a task that falls to the sentencing judge”.

7. Fourthly, although the terms of s 21A(3)(i) of the Crimes (Sentencing Procedure Act) 1999 (NSW) (“Sentencing Act”) make it incumbent on the sentencing judge to determine whether an expression of remorse is genuine before it can be relied upon as a mitigating factor, that does not mean that an offender must give sworn evidence in order to establish remorse: Butters v R [2010] NSWCCA 1 at [16]-[18] per Fullerton J (with whom McClellan CJ at CL and McCallum J agreed). This is despite the fact, as I observed in Pritchard v R at [90], that s 21A(3)(i) of the Sentencing Act was enacted in its current form to reflect concern that findings of remorse were being made on “empty” words told to a third party to obtain a lesser sentence.

8. Finally, although a sentencing judge may place less weight on unsworn assertions of remorse, there is no legal principle which requires a sentencing judge to do so. In R v Qutami [2001] NSWCCA 353, Smart AJ observed at [58] that “very considerable caution should be exercised” in relying upon statements made by a prisoner to a psychiatrist or a psychologist when the prisoner does not give evidence. His Honour observed that “in many cases only very limited weight can be given to such statements” and went on to observe the following at [59]:

“There has been a noticeable and disturbing tendency of more recent years for prisoners on a sentence hearing not to give evidence and to rely on statements made to experts. Prisoners should realise that if this course is taken great caution will be exercised in respect of the weight, if any, given to those statements.”

9. In Lloyd v R [2022] NSWCCA 18 at [45], McCallum JA (with whom Hamill and Cavanagh JJ agreed), noted the sentencing judge’s reliance on this observation in R v Qutami and observed the following:

“Smart AJ’s general observation in Qutami is sometimes mistaken for a principle. It is not. If it were, it would be a wrong principle which required correction. Leaving aside the fact that the rules of evidence do not apply to proceedings on sentence unless the court so directs, the weight to be given to particular kinds of evidence in such proceedings cannot be pre-empted as a matter of principle. The weight and cogency of the evidence is always a matter for the individual assessment of the sentencing judge.”

10. Applying these principles to the present application, Ground 2 was framed as error “in determining the applicant had not established the mitigating factor of remorse”. During the hearing of this application, it was submitted that the ground was better articulated as a complaint that the sentencing judge erred in finding there was no clear acceptance of responsibility by the applicant and in failing to find remorse.

11. I agree with Coleman J that it was open to the sentencing judge, who saw and heard the applicant give evidence, to conclude that there was no clear acceptance of responsibility for the harm his actions caused to the victim. That finding precluded his Honour from making a finding of remorse given that s 21A(3)(i) provides that the sentencing judge can only take remorse into account as a mitigating factor in determining the sentence if the offender provides evidence that he had accepted responsibility for his actions. No House v The King error was identified.

12. As Coleman J has observed, the sentencing judge delivered his reasons ex tempore. The following observations by McCallum JA in Lloyd v R at [11] are apposite in that regard:

“The judge gave his reasons ex tempore (that is, orally, immediately upon the conclusion of the sentence hearing). The pressures of a court as busy as the District Court of New South Wales require judges to do so when they can and it is commendable when they do. As noted by the Crown, it is appropriate to keep the fact that reasons were given ex tempore in mind when assessing their adequacy: Currie v R [2013] NSWCCA 267 at [49]-[51] (Johnson J) (Currie). However, that is not to say that ex tempore decisions attract a different standard of review; only that the appellate court should understand that shortcomings such as poor structure, unclear expression or failure to refer to an applicable provision or principle may find their explanation in the degree of difficulty that attends the task of mustering one’s thoughts to present an oral judgment in open court. As Simpson J explained in Rotner v R [2011] NSWCCA 207 at [57] (cited in Currie at [50]), a sentencing judgment delivered ex tempore may ‘lack the order and precision of language that can be incorporated into a judgment after the luxury of time for consideration, refinement of expression, and polishing.’”

13. Although it may have been preferable had the sentencing judge stated that the lack of clear acceptance of responsibility by the applicant for the harm his actions caused to the victim precluded his Honour from making a finding of genuine remorse, I am satisfied that such a conclusion naturally follows from his Honour’s finding.

14. As for Ground 4, as Coleman J has observed, the applicant’s conduct was captured on CCTV footage. I have viewed that footage. It depicts the seriousness of the applicant’s actions in a way that is more compelling than the description of them in the Agreed Facts. It records the initial assault on the victim in the gaming room when he was assaulted in the course of his duties. The victim had asked the applicant and his sister to leave when they refused to pay for their drinks. The footage depicts the applicant suddenly punching the victim to the head with a hook motion which caused him to stumble back. It also depicts the subsequent punch to the victim’s head which leads him to fall to the ground. The Agreed Facts record that the victim experienced a brief loss of consciousness at some point during that assault.

15. The CCTV footage goes on to depict the victim calling triple-0. It also shows the applicant punch the victim again with such force that his iPhone flies across the room. The applicant is then depicted taking the victim by surprise by punching him to the face again as he was standing with his back to the top of the entrance steps to the club causing the victim to fall back and down unconscious for some time on one of the top steps. The applicant then steals from the victim while he is lying there unconscious. The punch at the top of the steps was potentially very dangerous. The CCTV footage shows that visitors to the club at that time included elderly people and young children. A guest, who appears to be part of a wedding party, rushes to the assistance of the victim as he lies unconscious.

16. The offences were serious. The sentence imposed was not manifestly excessive. In the exercise of my sentencing discretion, I too would have imposed a slightly higher sentence on re-sentence.

17. S****WEENEY J: I agree with Coleman J and his Honour’s reasons for them.

18. Mr Towers’ expression of remorse for his victim was muted and subordinate to his assessment of the impact of his offending on himself and his family, so the sentencing judge’s finding was open to him.

19. I would not impose a higher sentence, but I would not impose a lesser sentence. Mr Towers was experiencing difficult life circumstances at the time of his offending, but he inflicted violence on the unsuspecting victim going about his work.

20. C****OLEMAN J: On 4 March 2024 Mr Jordan Towers (“the applicant”), was sentenced by Abadee DCJ (“the sentencing judge”) to an aggregate sentence of imprisonment of 3 years and 6 months with a non-parole period of 2 years and 5 months. Details of the offences for which the applicant was sentenced are set out below.

21. The applicant seeks leave to appeal his sentence pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW). The application for leave to appeal is out of time. The applicant seeks an extension of time within which the notice of appeal can be filed pursuant to s 10(1)(b) Criminal Appeal Act and Rule 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).

Extension of time

22. The Court has a discretion to extend the time for the filing of a notice of appeal. Whether an extension is granted is to be determined by the interests of justice in the particular case: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 (“Kentwell”**) at [32]. In exercising this discretion, the Court should have regard to the prospects of success of the appeal, addressed by reference to s 6(3) of the Criminal Appeal Act: Kentwell [33]-[34], as well as the explanation given for the delay: Baladjam v R (2018) 341 FLR 162; [2018] NSWCCA 304 at [93].

23. In this case, it is only a relatively brief period (22 days) for which an extension is required. Additionally, as will be seen, it cannot be said that the grounds of appeal are without merit or unarguable.

24. I consider that the interests of justice in this case warrant the extension of time being granted.

The sentences below

25. The applicant pleaded guilty to four offences: assault occasioning actual bodily harm (“AOABH”), aggravated steal from person and use corporal violence, hinder or resist police officer in the execution of duty and fail to leave premises when required to do so. The final two offences were dealt with on a s 166 certificate, and the applicant received non-custodial penalties for these matters which included a 6-month Community Correction Order (“CCO”). The aggregate sentence of imprisonment I have referred to was imposed for the offences of AOABH and steal from person. The offences, maximum penalties, and indicative terms, or actual sentence are set out in the table below:

| Charge Sequence | Offence | Maximum penalty | Indicative/actual sentence | | 9 | Aggravated (corporal violence) steal from person | 20 years imprisonment | 3 years | | 12 | Assault occasioning actual bodily harm | 5 years imprisonment | 2 years, 1 month | | 5 (On s 166 certificate) | Hinder or resist police officer in the execution of duty | 12 months imprisonment and/or 20 penalty units | CCO for 6 months | | 3 (On s 166 certificate) | Fail to leave premises when required to do so | 50 penalty units | Dismissed under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) |

Appeal grounds

26. The four grounds of appeal are as follows:

27. The sentencing judge erred in taking into consideration irrelevant considerations when determining the objective seriousness of the ‘aggravated steal from person offence’.

28. The sentencing judge erred in determining the applicant had not established the mitigating factor of remorse.

29. The applicant has a justifiable sense of grievance as a result of the sentence imposed upon his co-offender Brittney Towers.

30. The aggregate sentence is manifestly excessive.

The sentencing judgment

27. The sentence proceedings were conducted on the basis of an agreed statement of facts which were summarised in the sentencing judge’s remarks on sentence as follows:

“Both the offender and Brittney Towers attended the sports club on the evening on 18 March 2023. Mr Towers had stepped over a low gate to access the unattended concierge desk and looked around the area whilst Ms Towers kept a look out.

The offender appeared to pick up a black item from the area and take it with him. They then approached the main bar. They asked the bar attendant Ms Garnham for the ATM machine. However, they did not go to it when she told them where it was. They proceeded to order two schooners of Victoria Bitter and attempted to use unsuccessfully apparently an EFTPOS gift card. Ms Garnham asked if they had any other way of paying. He then sculled half of the schooner before replying “No”. Ms Garnham took that schooner, went to take the other however, the sister Brittney sculled the other half of the drink as well. The offender took the drink off his sister and apologised. Ms Garnham asked them to leave however, they walked towards the pokies room.

Ms Garnham asked the bar attendant Mr Doyalson to follow them to see if they were leaving.

The main victim in this offending, Keiran O’Sullivan, a bar attendant of the club, was informed of the incident in the bar section of the sports club by his manager and went to escort the offender and his sister out.

SEQUENCE 3 EXCLUDING PERSON FAILED TO LEAVE PREMISES WHEN REQUIRED

Mr O’Sullivan told the offenders to leave because they had done the wrong thing. He was initially addressing Brittney Towers but she started yelling. He put his hand up and said “Enough”, and re-directed his attention to the offender and told him “You have to go or I will call the police”. The offender ignored that instruction and continued to walk around the poker machines looking for left over money. Mr O’Sullivan got in front of the offender and used two open palms to move him away in the direction of the exit.

SEQUENCE 12 ASSAULT OCCASIONING ACTUAL BODILY HARM

The offender then threw up his arms pushing back towards Mr O’Sullivan and his sister stepped between them and started punching herself in the head. The offender then punched the victim in the head using his right hand in a hook motion causing the victim to stumble back. His sister launched towards the victim who held his arm out and faced away from the offender. The sister got between them and was pushing her brother, the offender, away from the victim before turning around slapping the victim’s face herself. Mr O’Sullivan, the victim, turned away and walked in the opposite direction, however, the offender followed him and punched him to the head again from the side causing Mr O’Sullivan to fall to the ground. Brittney Towers then started pulling the complainant across the room by his dreadlocks. The offender punched the victim’s head for a third time whilst Mr O’Sullivan was on the floor on his knees and attempted to strike him a third time. However, his sister restrained him. The victim then stood up and walked in the opposite direction. Mr O’Sullivan experienced brief loss of consciousness at some point during the first time. The offender and his sister started walking out of the room. The victim turned around to follow whilst pulling out his mobile phone.

Mr O’Sullivan advised the triple-0 operator that he had been assaulted at the sports club. On entering the foyer, the offender turned to face the victim who was following them whilst on the phone. Ms Towers who was a few paces behind turned and walked back towards them. The offender then suddenly punched the victim for the fourth time to the head with such force that the victim’s iPhone went flying across the room and hit a wall. Ms Towers ran and picked up the phone. Mr O’Sullivan attempted to chase after the sister. She punched him in the chest as he tried to get his phone back.

SEQUENCE 9 AGGRAVATED STEAL FROM PERSON AND USING

CORPORAL VIOLENCE

The offender then punched the victim for the fifth time to the head knocking him backwards. The victim hit the tile landing in the staircase leading to the club landing on his left shoulder and blacked out. A bottle opener or bar blade fell out of Mr O’Sullivan’s pocket as he fell to the ground, which the offender picked up and put in his own pocket before leaving the scene. The triple-0 operator called the victim’s phone back, the sister answered and responded “Is all good love, just a disagreement”, plainly a lie and denied there being any assault at the club and hung up. Mr O’Sullivan was later diagnosed with a soft tissue injury noting mild tenderness to the neck, injury to the head noted, pain at rest to the left maxilla and right mandible and injury to the oral cavity. Mr O’Sullivan’s father took photographs of the injuries a few days later. They showed an injury under the chin that looked like a graze, bruising to the elbow and a bruise or graze to his back or shoulder. All of what I have described is essentially picked up on CCTV footage which was displayed at today’s sentencing hearing. Police soon became involved, with Senior Constables Harvey and Thackery being nearby receiving a broadcast that persons of interest in the incident were walking along Kahibah Avenue. They saw the offender and his sister and stopped them. After various exchanges the offender explained to police that he was going back to the club to pay for the beer before he “Snapped my shit mate”, claimed to have money, and started walking away. In the meantime, Senior Constables Nickels and Curry also attended the Kahibah Sports Club and saw the victim with injuries to his face. A little later police saw the offender in an argument with a member of the public.

SEQUENCE 5 RESISTING POLICE OFFICER IN THE EXECUTION OF

DUTY

Senior Constable Harvey yelled out to the offender, put gloves on and approached and told him he was under arrest for an earlier assault. As Senior Constable Harvey attempted to handcuff the offender, the offender immediately tensed his forearm and pulled away. He also twisted his upper body and broke the officer’s grip. Senior Constable Harvey stepped back and grabbed the accused’s left wrist and upper arm. The offender again tensed it and swung his body yelling “Fuck off bro”. Senior Constable Harvey and Constable Barsley took the offender to the ground. The offender tensed his body briefly making it difficult for police to handcuff him, but they were eventually able to do so. The offender was refusing to get into the caged police vehicle and eventually the officers placed him inside it.”

28. Under a heading of “Objective Gravity” in the remarks on sentence, his Honour proceeded to make findings which may be considered relevant to the assessment of the objective gravity of the offending. I say “may be considered” because the applicant asserts, in Ground 1, that in this section of his remarks, at least with respect to the sequence 9 offence (aggravated steal from person using corporal violence), the sentencing judge erroneously included matters only relevant to the applicant’s subjective case.

29. In relation to the sequence 9 offence the sentencing judge found that the R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 (“Henry”) guideline applied. In order to understand the submissions put by the parties on Ground 1, it is appropriate to set out this part of the remarks on sentence in full:

“In relation to the stealing offence, which was sequence 9, it is common ground that the R v Henry guideline applied. There was little dispute about the particular circumstances and I substantially adopt the correctness of the Crown’s submissions. The aggravating factor was the circumstance of the single punch although, as was pointed out by the offender, this was a continuation of other earlier assaults that had occurred. There were certain similarities with the Henry guideline in the sense that there was a guilty plea albeit in the context of the strong Crown case being captured essentially all on CCTV footage, and limited planning. But there were differences also in the sense of **the offender’**s having a lengthy criminal history and the offender not being especially young. The item of property was, as the offender’s legal representative pointed out, not of much value.

The Crown submitted that the offending fell within the mid-range although, there are some similarities and certain differences between this case and the R v Henry guideline. I agree that on balance the offending fell within the mid-range.”

(bold emphasis added)

30. His Honour said he took care not to exaggerate the presence of the offender’s sister as there was no aggravating factor of the offender being in company alleged. He said her presence acted as a distraction to the victim and others in the club, not worsening the situation for the applicant, but existing as part of the context of the offending.

31. With respect to what his Honour described as the “other main offence”, namely the sequence 12 AOABH offence, his Honour accepted the Crown submission that this offence was “below the mid-range”. He said the assaults resulted in a brief loss of consciousness, but the injury was not enduring. He took into account the number of punches and the fact that it took place at the victim’s place of work.

32. The sentencing judge found, as was common ground, that the *Crimes (*Sentencing Procedure) Act 1999 (NSW) (“CSPA”) aggravating factor s 21A(2)(j) was established, given the offender was subject to four CCO’s imposed in July 2019. The Crown in their written submissions (“CWS”) at [22] submit that the sentencing judge also found that the s 21A(2)(d) factor – arising from the applicant’s record of previous convictions – to be established, accepting however that the relevant statutory provision was not cited.

33. His Honour found sequences 3 and 5, which were on the s 166 certificate, to each be at the low end of the range of objective seriousness for offences of that kind.

34. His Honour referred to the offender having given evidence at the sentence hearing, including giving some explanation for the offending. The offender said he had only recently been released from custody and had tried to stay at his mother’s house but had left “within an hour or so” of arriving. He went out with his sister knowing he had no money except perhaps some that might have been left on his key card. As his Honour said, this did not particularly assist the offender.

35. As to the applicant’s subjective case, he was 29 years of age at the time of the offending. His Honour referred to two sentencing assessment reports (“SAR”), one of which was for earlier offending prepared 21 October 2022 and one for the index offending, prepared 24 February 2024. There was also a report of 26 August 2022 from forensic psychologist Jason Borkowski. The applicant confirmed the truth of what he had told the psychologist. As there was very little challenge to what the psychologist recounted as to the applicant’s background, his Honour expressed greater confidence in accepting those factual matters.

36. The applicant was born in Queensland but grew up for the first period of his life in Western Australia. His early years were uneventful, living with his mother and her partner. He then went into foster care which he reported to have found difficult.

37. He began to use cannabis at age 17, before moving to ice. He spent time from the middle of his adolescence moving to various parts of the country with his father.

38. His Honour accepted that there was evidence that the applicant suffered from schizophrenia and that he may also suffer from borderline personality disorder and anti-social personality disorder. However, his Honour noted that the defence’s written submissions did not seek to posit any causal connection between those mental conditions and the offending. His Honour inferred in the applicant’s favor that as a result of his mental health conditions custody would be more burdensome on him.

39. His Honor said that there was a dispute between the parties as to whether the Bugmy principles applied: B**ugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. There was a finding of slightly reduced moral culpability of the applicant, indicating that the sentencing judge did accept that those principles applied at least to some extent. The finding arose as a corollary of his Honour accepting that the applicant was subject to a cycle of drug use fueled by a disadvantaged childhood characterised by the exposure to, and normalisation of, violence and drug use. His Honour concluded that in light of those findings, the sentencing principles of general and specific deterrence, denunciation and retribution were moderated, but “not to any substantial degree”.

40. Regarding the applicant’s antecedents his Honour found his criminal record showed a tendency, especially over the last 10 years, to engage in “aggressive and uncontrolled acts of personal violence”. It was accepted by the applicant’s legal representative that this record disentitled him to any leniency.

41. Given Ground 2 asserts error in his Honour not finding that the mitigating factor of remorse had been established, I will set out the relevant passage from the sentencing remarks in full:

“I have said more than once that the offender gave evidence and was subject to cross-examination. He said when he gave his evidence that he has thought about his offending every night since he has been incarcerated and explained that when reflecting upon his offending that he acted without thinking. He indicated that he was sorry for what occurred and said he learned the importance of moderate drinking. In fairness to him, and in supplementation of this evidence, at least one of the Community Corrections officers had noted that he had also recognised the psychological impact of the behaviour on his victim.

Nevertheless, I find that notwithstanding these indications there was no clear acceptance of responsibility for the harm that had occurred to the victim.”

42. On the applicant’s willingness to attend to courses addressing drug, alcohol and anger management, the sentencing judge did not find the evidence of his attempts to seek rehabilitation convincing. His Honour also turned his mind to the applicant’s family situation with respect to his parents, his sister and one year old child, and the strength of community supports (or lack of) which were available to him.

43. His Honour referred to the most recent SAR which categorised the applicant as being a high risk of re-offending. His Honour found the applicant’s prospects of rehabilitation to be no higher than guarded, concluding that he was unable to discount the possibility that he would reoffend through similar conduct.

44. His Honour noted that the applicant’s sister was “another co-offender or co-accused” being dealt with separately. He acknowledged the relevance of his remarks to any parity considerations which might apply to her.

45. In the sentencing synthesis, his Honour took into account the maximum penalties for all of the offences. He found that the applicant’s criminal history necessitated a higher need for community protection to be reflected in his sentence and for rehabilitation to be “a somewhat more subsidiary consideration”. His Honour made a relatively modest finding of special circumstances.

Appeal grounds

Ground 1: The sentencing judge erred in taking into consideration irrelevant considerations when determining the objective seriousness of the aggravated steal from person offence.

46. Whilst there were other matters set out in the applicant’s written submissions (“AWS”), as distilled in oral submissions, the gravamen of this complaint is that in assessing the objective seriousness of the aggravated steal from the person offence (sequence 9) the sentencing judge took into account the age and criminal record of the offender. These subjective matters are irrelevant to the assessment of the objective seriousness of the offending: see for example Hawat v R [2020] NSWCCA 121 (“Hawat”) at [36]; as to criminal history Kelly v R [2017] NSWCCA 82 at [58].

47. This ground arises from the passage of the sentence remarks extracted at [29] above. There, under the heading of “Objective Gravity” the sentencing judge set out the relevant factors from Henry that were present in this case from the facts as he found them. He observed there were also differences, namely the applicant’s criminal history and age. He then assessed the objective seriousness as falling within the mid-range.

Applicant’s submissions

48. The applicant submits that the sentencing judge, in effect, conflated the assessment of the objective seriousness of the offending with the applicant’s subjective features when applying the factors described in Henry*.* The applicant submits these are different concepts. He submits that a reading of his Honour’s remarks as a whole shows that he did take the applicant’s age and criminal record – both subjective matters – into account in assessing the objective seriousness of the offence. It is submitted therefore that the sentencing judge erred by taking into account irrelevant matters.

49. That submission was made in the context of the other matters raised in the AWS at [12]-[19]. These paragraphs asserted three additional matters said to support Ground 1:

50. there was a “disconnect” between the Court Attendance Notice (“CAN”) (see CAN) particularisation of the sequence 9 offence and the particularisation of that offence in the Agreed Facts on sentence;

51. the guideline judgment of Henry was not applicable to the sequence 9 matter nor was it acknowledged to be so by the legal representative for the applicant at the sentence hearing; and

52. by finding that the offence involved a single punch, was spontaneous and involved the taking of property of little value, the finding of the sentencing judge that the offending fell within the mid-range was not open to him.

53. In oral submissions, Senior Counsel for the applicant accepted that the written and oral submissions proffered to the sentencing judge by the applicant’s legal representative did not provide assistance to him on the issue of objective seriousness. Nor did the applicant’s legal representative challenge the Crown’s written submissions on sentence which considered the objective seriousness of the offending for the sequence 9 offence by reference to the features identified in Henry*.* This may explain why his Honour observed that it was common ground that the Henry guideline applied. The applicant contends, however, that this does not preclude error if the subjective factors of criminal record or age are taken into account in assessing objective seriousness.

54. In oral submissions, Senior Counsel for the applicant also accepted that certain features identified in Henry may be relevant to the determination of objective seriousness. However, he submitted that those of the criminal record and age of the offender are irrelevant to that assessment. He submitted it was clear his Honour did take those matters into account in making that assessment, albeit mentioning the criminal history of the applicant again later in his remarks when dealing with aggravating and mitigating factors.

55. Despite what is set out at [49](2) above from the AWS, in oral submissions it was conceded that the Henry guideline was applicable to the sequence 9 offence (see T 14.10).

56. Senior Counsel submitted by reason of the error of taking into account the irrelevant factors of age and criminal history in the assessment of the objective seriousness of sequence 9, his Honour erred in his finding that the offending fell at the mid-range.

Crown submissions

54. As to the asserted disconnect between the CAN and the Agreed Facts, the Crown pointed out that the sentence hearing proceeded on the basis of corporal violence being the aggravating factor. The Crown submits that given the matter proceeded with the consent of the parties and the Court, any difference in the particularisation is immaterial.

55. The Crown submitted that the impugned sentence in the judge’s remarks (see [29] above) must be read in the context of them being made at the point in those remarks where the sentencing judge was assessing the reference point of the Henry factors and the similarities and differences between the guideline and the applicant’s case. The Crown submitted that his Honour’s references to the applicant’s criminal record and age were only brief and sought to contrast the Henry guideline applying to a young offender with little or no criminal record.

56. The Crown submitted that regard must be had to the fact that the remarks on sentence were delivered in an ex tempore judgment which should be read as a whole. It submitted a degree of latitude should be extended to any analysis of the sentencing remarks: Tuncbilek v R [2020] NSWCCA 30 (“Tuncbilek”) at [49]-[50]; BAP v R [2024] NSWCCA 206 at [89].

57. Further, the Crown submits that the sentencing judge did not take into account the applicant’s record when he was assessing the objective seriousness of the offending. That conclusion is reinforced by the fact that the significance of the applicant’s record was addressed when his Honour was dealing with the subjective case of the offender. At that time his Honour said that the applicant’s antecedents were not impressive, and his record showed a tendency for aggressive and uncontrolled acts of personal violence. This record, his Honour said, disentitled the applicant to leniency and elevated the need for specific deterrence.

58. The Crown submits that when the remarks on sentence are read as a whole, it is not demonstrated that the applicant’s criminal record and age were used in his Honour’s assessment of the objective seriousness of the sequence 9 offence. Rather, his Honour had reference to the Henry guideline as a relevant consideration and guidepost in determining the sentence.

59. As to whether the finding of the offending being at the mid-range was open, the Crown pointed out that the victim was rendered unconscious by the single punch, falling onto a hard surface at the top of a staircase as a result of it. The potential for catastrophic injury was significant. Then, after the victim was rendered unconscious, the applicant opportunistically stole an item that had fallen from the victim’s pocket. The Crown submitted, in these circumstances, the finding was open to his Honour.

Consideration

60. It is well established that the evaluative determination of objective seriousness is a broadly based discretion for the trial judge and therefore, this Court will be slow to set aside such a judgment: Mulato v R [2016] NSWCCA 282 at [37], [46]; Braithwaite v R [2024] NSWCCA 15 (“Braithwaite”) at [32]; Salafia v R [2015] NSWCCA 141 (“Salafia”) at [89] citing Ali v R [2010] NSWCCA at [33].

61. If the sentencing judge did take into account irrelevant matters in the exercise of that discretion, then an error of the sort referred to in House v The King (1936) 55 CLR 499; [1936] HCA 40 (“House v The King”) at 504-505 may be identified; Braithwaite at [33]; Salafia at [90].

62. The fact that the reasons were delivered ex tempore is a relevant factor for consideration. At [26] of the CWS, reference was made to [49]-[50] of Tuncbilek. This Court there considered a sentencing judge’s reference to Henry when making findings as to objective seriousness in an ex tempore judgment. Johnson J (Meagher JA and Hamill J agreeing) said:

“49 This Court should be cautious before finding error in the evaluative process which constitutes characterisation of the objective seriousness of an offence: Mulato v R [2016] NSWCCA 282 at [37], [46]. It was reasonable for the sentencing Judge to approach an assessment of objective seriousness by reference to the guideline judgment in R v Henry, the approach upon which the Applicant’s submissions were based at first instance.

50 It is also necessary to keep in mind that the sentencing remarks were delivered ex tempore after the sentencing hearing. In R v Speechley (2012) 221 A Crim R 175; [2012] NSWCCA 130, this Court said at [34]–[35]:

“34… the remarks on sentence were delivered ex tempore immediately following the sentencing hearing on 3 February 2012. This course had the undoubted advantage that those present in Court could hear immediately the sentence which was passed and his Honour’s reasons for passing that sentence. A consequence of this approach, which is understandable in a busy court, is that remarks on sentence may not be ‘as robustly structured as they might otherwise have been’ (Simpson J in Simkhada v R [2010] NSWCCA 284 at [24]) and may ‘lack the order and precision of language that can be incorporated into a judgment after the luxury of time for consideration, refinement of expression, and polishing’ (Simpson J in Rotner v R [2011] NSWCCA 207 at [57]).

35 When considering whether error has been demonstrated in the ways alleged by the Crown, it will be necessary to fairly read his Honour’s remarks on sentence, bearing in mind the features of an ex tempore decision.”“

63. Additionally, in BAP v R Yehia J (Wright and Cavanagh JJ agreeing) said at [89]:

“…This Court has acknowledged on a number of occasions, the pressures the judges of the District Court are under in managing busy short matters lists and that ex tempore judgment should be considered with a degree of latitude: Buxton v R [2017] NSWCCA 169 at [53] per Bathurst CJ and Walton J; Aiga v R [2024] NSWCCA 175 per N Adams J at [67] (Ierace and Sweeney JJ agreeing); Eldridge v R; Mackay v R [2015] NSWCCA 127 at [93]-[95] and [102]-[105] per Johnson J (Hoeben CJ at CL and Hamill J agreeing).”

64. I have kept in mind that his Honour’s remarks were delivered ex tempore. I have also kept in mind that it is accepted by the applicant in his written submissions (at [20]) and in oral submissions on appeal by his Senior Counsel (T 4.15- 30) that there was little assistance on this issue given to the sentencing judge by the applicant’s legal representative. The applicant’s representative did not take issue with the approach put forward by the Crown in its written submissions on sentence, namely that it was appropriate to make reference to the features of the Henry guideline as a relevant reference point in assessing the objective seriousness of the sequence 9 offending. His Honour was entitled to assume that this was common ground.

65. As I have already observed, during the hearing of the appeal Senior Counsel for the applicant accepted that some of the features identified in the Henry guideline (other than subjective matters such as age and past criminal record) could be relevant to the sentencing judge’s assessment of the objective seriousness of the offending (T 3.10-17). Subject to a sentencing judge not double counting any of those features that may also be statutory aggravating factors under s 21A(2) of the CSPA, that may be accepted. Of course, those features, if present, may not be the only matters relevant to the assessment of the objective seriousness of the offending.

66. Whilst some of the factors identified in the Henry guideline may, if present, be relevant to the assessment of the objective seriousness of the offending, it is those factors and not the sentencing guideline which are relevant to that issue. The sentencing guideline in Henry is a matter to be taken into account as a check or sounding board (see R v Whyte [2002] NSWCCA 343 at [113]) by a sentencing judge dealing with an offence which falls within its purview. In cases in which the Henry guideline applies, sentencing judges must take the guideline into account as a factor to be considered, together with the other relevant statutory and common law factors, as part of the instinctive synthesis of sentencing in making a value judgement expressed in the numerical term of the sentence to be imposed: Foaiaulima v R [2020] NSWCCA 270 at [30] citing Makarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51] and Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26].

67. In any event, the error asserted in Ground 1 of the appeal is not that his Honour used the Henry guideline in an inapposite way. Rather, it is that he took into account irrelevant factors in his assessment of the objective seriousness of the sequence 9 offending, those factors being the age and prior record of the applicant.

68. I have had regard to the concessions made by Senior Counsel for the applicant at the hearing of the appeal that I have referred to at [52] and [65] above. Save for the submission which asserts that the sentencing judge took into account the irrelevant matters of age and criminal record and therefore made a House v the King error, I do not think the applicant’s submissions attacking the finding of objective seriousness should be accepted.

69. As to the alleged “disconnect” between the CAN and the Agreed Facts on sentence, I agree with the Crown submissions that this was immaterial. The parties and the Court proceeded on the basis of the Agreed Facts which supported the factual findings made by the sentencing judge and on which he made his assessment of the objective seriousness of the sequence 9 offence.

70. Senior Counsel’s concession that the Henry guideline was applicable was well made. It is a relevant reference point in relation to sentencing for an offence against s 95: Azzi v R [2008] NSWCCA 169 at [37] applied in McDonald v R [2015] NSWCCA 280 at [92] per R A Hulme J (Basten JA and Adams J agreeing).

71. There is force, however, in the submission that the sentencing judge took into account the applicant’s age and criminal record in his assessment of the objective seriousness of the sequence 9 offence. A similar argument was made in Hawat. In that case, the single ground of appeal was that “the sentencing judge erred in the manner in which he applied the sentencing guideline in R v Henry to the sentencing exercise”: Hawat at [5].

72. R A Hulme J (Hidden JA and Fagan J agreeing) referred to the two sentences in the sentencing judge’s remarks with which the appeal was concerned. The passage in those sentencing remarks appeared in the revised transcript of the ex tempore remarks under the heading “General Principles and Objective Seriousness”. The sentencing judge had described the seriousness of robbery and armed robbery offences and the need for general and specific deterrence. R A Hulme J set out the passage at [21] of the judgment in Hawat:

“In considering the matter, it is appropriate to have regard to the guideline judgment in R v Henry (1999) 46 NSWLR 346. In that case the Court of Criminal Appeal identified a range of four to five years imprisonment for the full term in respect of armed robbery offences pursuant to s 97(1) of the Crimes Act. The common features of such offences, as set out in Henry**, are of importance in assessing the** objective seriousness of the offending. Those features are…(his Honour then set out the 7 features identified in Henry, considered which were present and determined that the offending was “at or slightly above the upper end of the range identified in Henry)”…(Emphasis Added)”

73. It was submitted that the sentencing judge had conflated the Henry guideline as a tool for assessing the objective seriousness of the offending rather than as a guideline for the ultimate sentence to be imposed for an offence typified by the factors enumerated in the guideline. R A Hulme J (from [31]-[40]) rejected that argument. His Honour, citing R v Speechley [2012] NSWCCA 130 at [34], noted that ex tempore judgments may not be as robustly structured, nor possess the order or precision that they would have had with the luxury of time for consideration, refinement of expression and polishing: Hawat at [31].

74. His Honour continued:

“32 Moreover, remarks on sentence must be read fairly as a whole and without engaging in an unduly critical textual analysis or a minute scrutiny in the search for error: Tuncbilek v R at [57] (Johnson J); Grant v R [2014] NSWCA 67 at [38] (Leeming JA, Adams and Hall JJ).

33 It is sometimes overlooked that the sequence in which reasons are expressed in a judgment does not necessarily correspond with the order in which they were formulated: Fedele v R [2015] NSWCCA286 at [85] (Adamson J)…”

75. As to the asserted “conflation error” his Honour said:

“34 The sentencing judge’s inclusion of the word “objective” was inapt in the first impugned sentence in the remarks. That is readily apparent from the fact that his Honour immediately proceeded to list the features identified as a case attracting the guideline in R v Henry. They involved five matters that were objective and three matters that were clearly subjective (age, criminal history and plea). I am satisfied that what his Honour was intending to convey was that the (eight) common features of the case (which were the subject of the guideline) were important in assessing the comparative (not objective) seriousness of the case at hand.

35 The judge did not err by conflating the Henry guideline with the assessment of the objective seriousness of the offence. He concluded this section of the judgment by stating his conclusion as to a comparison of the present offending with the guideline. He did not make any finding of the relative level of objective seriousness of any of the offences. In these circumstances, it cannot be said that there was an erroneous assessment of objective seriousness because certain subjective factors were taken into account. The simple point is that there was no conflation because there was no finding as to the objective seriousness of the offences at all.

36 An offender’s age and plea are self-evidently irrelevant to the objective features of an offence. Further, Price J said in Kelly v R [2017] NSWCCA 82 at [58], that “it is well-established that a person’s prior criminal history has no part to play in determining the gravity of an offence”. That prompted his Honour to approach a complaint of error by an experienced sentencing judge “with considerable caution”. As it turned out, there was a solid basis to make a finding of error in that case.

37 The contrary is clear in the present case. The sentencing judge discussed the significance of a plea of guilty to the imposition of a lesser sentence with reference to R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] 49 NSWCCA 309. He referred to the applicant’s age and criminal history in the course of discussing various aspects which appear in the transcript under the heading, “The Offender’s Subjective Case”.

38 The applicant’s reference to Tuncbilek v R does not assist. It did not involve conflating objective seriousness and the R v Henry guideline as counsel for the applicant contended. Johnson J said (at [49]), “it was reasonable for the sentencing judge to approach an assessment of objective seriousness by reference to the guideline judgment in R v Henry”. There was no elucidation of why that was so, except for an earlier observation (at [42]) that this was the approach adopted by the applicant in the court below. The error in Tuncbilek v R was that the sentencing judge failed to determine a contested issue as to the level of objective seriousness of the offence and the offender’s moral culpability.

39 The reliance placed upon Yildiz v R by the applicant is also, with respect, misplaced. It was submitted that it was a case in which “the sentencing judge had regard to the judgment in Henry in dealing with the objective seriousness”. That is said to be apparent from the judgment of Rothman J at [39], but it is far from clear. His Honour was summarising the content of the sentencing judgment and said in that paragraph that the sentencing judge had regard to R v Henry. His Honour said in the next sentence that the judge found the objective seriousness of the offence in question was slightly below the mid-range. His Honour did not say that the latter was derived by reference to the former. There was no discussion of any issue about conflation of the two issues. The case was concerned with the judge’s failure to have appropriate regard to the age of the youth of the offender.

40 Reading the remarks on sentence full and fairly, and avoiding unduly critical textual analysis, I am not persuaded that there was any conflating of the guideline in R v Henry with an assessment of the objective seriousness of the offences.”

76. As I have said, I have kept in mind that the remarks on sentence in this case were delivered ex tempore. Nevertheless, unlike Hawat, here the sentencing judge did make a finding as to where the objective seriousness of the offending fell. This finding followed his Honour’s reference to the Henry factors, including taking into account the similarities and differences to the factors present in this case, namely the subjective matters of the applicant’s age and criminal history. His Honour did not refer again to the Henry guideline in any other part of his remarks other than in the section dealing with objective seriousness of the sequence 9 offence. Reading the remarks as a whole I consider that his Honour did err in taking into account those subjective matters in reaching his assessment of the objective seriousness of the sequence 9 offence. He therefore fell into error.

77. In my opinion, leave to appeal should be granted for Ground 1 and the ground should be upheld.

Ground 2: The sentencing judge erred in determining the applicant had not established the mitigating factor of remorse.

78. The passage of the remarks on sentence which is relevant to this ground is set out at [41] above. It can be seen that his Honour recorded that the applicant gave evidence that he thought about his offending every night since his incarceration and reflected that he had acted without thinking. His Honour said the applicant’s evidence was that he was sorry for what occurred and had learned from it. Nevertheless, his Honour found, “notwithstanding these indications” that there was no clear acceptance of responsibility for the harm he had caused to the victim.

79. The relevant evidence given in chief by the applicant at the sentence hearing was as follows:

“Q. Well, let’s turn your mind to this offending. You’ve seen the video, you’ve been reminded of what happened, all right?

A. Yeah.

Q. Were you under the influence of anything that evening?

A. I just had a beer or two, yeah, alcohol.

Q. So you think you were being a bit silly?

A. Yeah, definitely.

Q. What was going through your mind that evening, tell the Court?

A. I had nowhere to go. I only just got out of custody, I was homeless. Lots of things, I was heaps depressed, I had no money to catch a taxi or anything anywhere. Yeah. It’s like, yeah, I met up with my sister and, yeah, stuff just from, downhill from there and--

Q. Let’s speak about the almost entire year that you’ve been in custody, have you had a think about what you’ve done?

A. Yeah. Pretty much, practically every night really.

Q. Have you learnt anything?

A. Yeah, definitely.

Q. Tell the Court what you’ve learnt.

A. I learnt, I’ve learnt not to act without thinking, think before I do things. Lots of things. Like, yeah, like drink in moderation, don’t be an idiot. Like, yeah. A few things. I’ve learnt that it not only impacts me, it impacts everyone around me as well, even, even the victims and even my family as well, like, close family to me. It’s just not only, like, me that’s stuffing up, like, my life, it’s everyone around me and stuff and the victims as well. So it’s multiple things.”

80. He was then cross-examined by the Crown:

“Q. When you were talking about the things that you’ve learnt from sitting in custody and one of the things was that you said not to act without thinking, drinking in moderation, so you’re still wanting to drink alcohol when you’re released from custody?

A. No, not at all.

Q. And you also said that you learnt that it impacts everyone, not just you, close family, including the victim?

A. Yeah, and the clear understanding I know about moderation is, like, once in a blue moon, when there’s, like, I don’t know, someone’s birthday or something like that.

Q. Okay.

A. Yeah.

Q. And in your mind and in your view, how does that effect the victim?

A. Well, it wouldn’t be nice for starters. It affects them by being hurt by someone that’s a complete stranger. Lots of things.

Q. Okay. And are you just saying these things because you know that it will help you on sentence?

A. No.

Q. No. Are you actually sorry for what you’ve done?

A. Yeah”

81. There was no challenge

82. by the Crown to the last answer given by the applicant, namely, that he was sorry for what he had done. It was not suggested to him in cross-examination that he was not sorry, nor was any submission made that the sentencing judge should reject that aspect of the applicant’s evidence.

Applicant’s submissions

83. In the written submissions before the sentencing judge asserting remorse as a statutory mitigating factor, the applicant relied on his pleas of guilty, and page 3 of the SAR dated 27 February 2024. That report stated under the heading of “Insight into impact of offending” that “Mr Towers was able to identify the psychological impact that his behaviour had on the victim, and his behaviour toward authority”.

84. In oral submissions before the sentencing judge, no express reference was made to the question of remorse. However, the solicitor appearing for the applicant invited the sentencing judge to accept the evidence given by the applicant at the hearing as truthful.

85. On appeal, the applicant submits that s 21A(3)(i) of the CSPA permits a court to find remorse if the offender has provided evidence that they have accepted responsibility for their actions and they have acknowledged any injury, loss or damage caused by their actions ([21] AWS). Reference was made to the submissions on sentence I have extracted at [82] above.

86. Reference was also made to the evidence of the applicant expressing he was sorry for the things he had done and was not just saying as much for the sake of his sentence. After referring to his Honour’s remarks that are extracted at [41] above, the applicant’s written submissions referred to his mental health issues and submitted that his evidence was such that it ought to be accepted on the balance of probabilities (AWS [24]).

87. In oral submissions on this application, Senior Counsel for the applicant submitted that the ground of appeal could be better articulated by saying that the sentencing judge erred in finding that there was no clear acceptance of responsibility by the applicant. In fact, it was submitted, the sentencing judge erred in not finding both remorse and an acceptance of responsibility.

88. Ultimately, it was submitted by Senior Counsel that his Honour did not make a finding of remorse (T 8.5).

Crown submissions

89. At the sentence hearing, the Crown’s written submissions simply submitted that there was no evidence that the applicant had expressed remorse. No oral submissions were made about remorse by the Crown.

90. At CWS [37]-[39], the Crown referred to Windle v R [2011] NSWCCA 277 [41]-[42] where it was said that the sentencing judge is not obliged to accept what was said to be evidence of genuine remorse. This is particularly so where the sentencing judge had the advantage of seeing and hearing the applicant give evidence. The acceptance or rejection of such evidence is a discretionary matter to which the principles of House v The King apply. Reference was also made to BC v R [2020] NSWCCA 329 [140]-[142] and Alvares v R Farache v R [2011] NSWCCA 33 at [44].

91. The Crown submitted that on the application of these principles, no error had been identified. It was a strong Crown case, and it was submitted the applicant’s guilty pleas were no more than a recognition of the inevitable and did not necessarily support a finding of remorse.

92. Further, it was submitted that any expression of remorse in the applicant’s oral evidence lacks persuasiveness (CWS [42]). The Crown submitted that the applicant was in fact challenged during cross-examination on whether he was truly remorseful. It was submitted that little more could have been asked of the applicant without descending into argument. This point was repeated in oral submissions.

93. The Crown accepted that the sentencing judge did not find remorse (T 14.20). It was submitted, however, that there was no error in his Honour’s approach. The Crown submitted that the applicant’s evidence as to the impact on the victim was merely an afterthought (CWS [42]). It submitted that the sentencing judge was in the best place to assess whether the evidence of the applicant amounted to a genuine expression of remorse.

Consideration

94. Section 21A(2) and (3) of the CSPA set out in a non-exhaustive way statutory aggravating and mitigating factors to be taken into account by the sentencing judge, if relevant and known, in determining the appropriate sentence. Relevantly to this matter, s 21A(3)(i) provides:

(3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows—

…

(i) the remorse shown by the offender for the offence, but only if—

(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both)

95. I consider that it was open to the sentencing judge, having had the advantage of having seen and heard the applicant give his evidence, to conclude that there was no clear acceptance of responsibility for the harm his actions caused to the victim. His Honour had been referred to the SAR in submissions and the applicant was cross-examined about that.

96. This is not a case where the sentencing judge erred in making a finding that there was no remorse. In fact, he made no finding with respect to remorse at all. However, that can perhaps be explained by his Honour’s finding that the applicant did not accept responsibility for the harm his actions caused to the victim. Absent a positive finding of the acceptance of that responsibility, the terms of s 21A(3)(i) could not be satisfied to allow a finding of remorse.

97. In so far as the applicant seeks to say that his guilty pleas were evidence of his acceptance of responsibility, that submission must be rejected. Acceptance of responsibility must entail something more than a guilty plea: Brzozowski v R [2023] NSWCCA 129 (“Brzozowski*”**)* per Simpson AJA at [6] and [12].

98. Additionally, I do not accept that the applicant’s answer to the questions asked of him in cross-examination, even if taken as a statement of regret, conveys a genuine acceptance of responsibility or genuine remorse. His answer “Yeah” to the question whether he was actually sorry for what he had done, and the question itself, must be viewed in the context of the previous question. Whilst that question was not directly phrased as a proposition being put to the applicant, I consider taken in its proper context, the Crown was suggesting to the applicant that he was only saying he was sorry for what he did to help him on sentence and was not actually sorry.

99. It may have been preferable for the Crown to positively challenge the applicant on this evidence. However, I do not think the failure to do so, when taken with the finding by the sentencing judge that the applicant had not clearly accepted responsibility for the harm to the victim, means the applicant has made out this ground. As Rothman J said in Brzozowski at [51]-[52]:

“51 The specific terms of s 21A(3)(i) of the Act have been the subject of some comment. While the Court has commented that it is open to a judicial officer to decline to find remorse in circumstances where the evidence of the remorse has not been the subject of evidence by the offender, such an exercise is part of the determination by the judicial officer as to whether there is genuine remorse.

52 The subparagraphs of s 21A(3)(i) do not define remorse. Satisfaction of those factors, where relevant, is a condition precedent to the use of remorse as a mitigating factor under the section. Those conditions precedent may be satisfied without the judicial officer necessarily finding that remorse has been shown by the offender for the offence.”

100. In this case the sentencing judge made a positive finding that the applicant did not accept responsibility as required by s 21A(3)(i). As I have said, I consider that finding was open to his Honour having seen and heard the applicant give his evidence. This finding precluded any further consideration by the sentencing judge as to whether the applicant had shown genuine remorse for the offending such that the statutory mitigating factor applied.

101. I also do not consider it could be said that his Honour erred by failing to expressly make a finding of whether the applicant had shown genuine remorse. He received little assistance from the legal representatives before him. Neither addressed the evidence or the possible findings following the evidence relevant to that subject in oral submissions. The written submissions were equally of limited assistance. The Crown said in its written submissions on sentence, accurately at the time, there was no evidence of remorse. The applicant referred to the pleas of guilty and the SAR. As has been noted, more is required than just a plea of guilty. Further, it is plain from the remarks that his Honour had considered the SAR.

102. Keeping in mind the ex tempore nature of the sentencing remarks and the principles I have referred to above, and in light of his Honour’s finding that the applicant had not accepted responsibility for the harm caused, there is no error in the absence of an express finding on remorse in this case.

103. Whilst I would grant leave to argue it, I do not consider Ground 2 has been made out.

Ground 3: The applicant has a justifiable sense of grievance as a result of the sentence imposed upon his co-offender Brittney Towers

104. This ground arises by reason of the alleged disparity between the sentence he received, and that imposed on his ‘co-offender’ and sister, Brittney Towers. Ms Towers was sentenced just over five weeks later, by Anderson SC DCJ, to a CCO for sequences 10 and 11 (common assault and steal from person), for a period of 20 months. It should be noted that his Honour took into account the 220 days Ms Towers spent in custody solely referable to those offences.

Applicant’s submissions

105. The applicant conceded that it is difficult, but still possible, to establish this ground of appeal given the applicant and his sister were sentenced for separately prosecuted offences, arising out of the same set of facts without any allegation of joint criminal enterprise (AWS [26]).

106. Nonetheless, the applicant maintained that the sentences imposed on Ms Towers arose “out of the same course of conduct as the applicant” and involved the same victim (AWS [27]). It was submitted that the applicant was entitled to have a justifiable sense of grievance about the difference in the sentences.

107. The applicant referred in his written submissions to several authorities which were to the effect that the parity principle could still apply in circumstances where there were related offenders rather than strict co-offenders (see for example Humphreys v R [2020] NSWCCA 144 (“Humphreys”) at [125]-[129] cited at AWS [29] and the authorities there referred to).

108. The applicant submits that even though the offences for which he and his sister were charged and sentenced (arising from the same factual circumstances), differed, there is no relativity in the outcome. Senior Counsel submitted that even though their respective roles were different, those differences were not sufficient to explain the difference in the penalties and this ground should therefore be upheld.

Crown submissions

109. The Crown submitted that the applicant and his sister were not engaged in the same criminal enterprise, and the parity principle did not apply (CWS [48]-[51] and the authorities there cited). It was submitted that despite the applicant and his sister being described loosely as “co-offenders” they were not true co-offenders in a parity sense. The Crown submitted that a viewing of the CCTV footage of the offending showed that apart from one brief moment of violence, the applicant’s sister was predominantly trying to intervene and stop the applicant’s infliction of violence on the victim.

110. The Crown submitted that the applicant and his sister were charged with different offences because they were engaged in separate and distinct criminality. The Crown said the offences did not arise out of the same facts and circumstances; there was no common purpose or joint criminal enterprise.

111. The Crown submitted that even if the parity principle did apply, there is no justifiable sense of grievance. That is because of the significant difference in the roles of the applicant and his sister in the offending, and in particular the level of violence carried out by the applicant. This was why he was charged with two more serious charges. Additionally, the objective gravity of the applicant’s offending was far more serious than that of his sister. Further, the subjective cases of the two were markedly different. Anderson SC DCJ found both that Ms Towers was genuinely remorseful and that she had a powerful subjective case. Her mental health was found to be causative of her offending, and her moral culpability was reduced by reason of childhood disadvantage. His Honour did not consider that the s 5 threshold of the CSPA was crossed.

Consideration

112. Because of the view I have reached about the differences in the respective roles in, and seriousness of, the offending by the applicant as compared to his sister, I am prepared to accept that the parity principle does apply. Whilst there was no joint criminal enterprise and the offences with which they were each charged differed such that they could not strictly be considered co-offenders, I do not accept the Crown submission that the respective offending did not arise out of the same facts and circumstances. The respective offending arose from the applicant and his sister each getting a drink when they had no money to pay for it and then their respective (albeit different) conduct which began in the poker machine room and ended in the foyer.

113. I do not consider it necessary, therefore, to go into a detailed analysis of the precise meaning of what constitutes “the same criminal enterprise” as described in Humphreys and the authorities there referred to. I am prepared to accept that the respective relatively contemporaneous offending of the applicant and his sister, at the same premises and involving the same victim, is sufficient to attract the parity principle.

114. The well-known principles were summarised by Yehia J (Ward P and myself agreeing) in Saab v R [2025] NSWCCA 58 at [60]-[62] as follows:

“60 There is no dispute about the relevant legal principles. The principles relevant to the application of the parity principle were summarised by me (Wilson and Dhanji JJ agreeing) in Keen v R [2024] NSWCCA 157 at [143]-[146] (cited with approval in Zahed v R [2024] NSWCCA 171 at [18] (per Fagan, N Adams and Faulkner JJ)):

“[143] The principles of parity are well-established. They are helpfully summarised in the decision of this Court, Vujinovic v R [2024] NSWCCA 10 by Weinstein J (Davies and Button JJ agreeing) at [48]-[52]:

‘[48] The principles with respect to parity are well-established and need not be repeated at length. There must not be a marked disparity between the sentences imposed on co-offenders such as to give rise to a justifiable sense of grievance or the appearance that justice has not been done: Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 at 609 – 610 per Gibbs CJ.

[49] In Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28], French CJ, Crennan and Kiefel JJ said:

“Consistency in the punishment of offences against the criminal law is ‘a reflection of the notion of equal justice’ and ‘is a fundamental element in any rational and fair system of criminal justice’. It finds expression in the ‘parity principle’ which requires that like offenders should be treated in a like manner. As with the norm of ‘equal justice’, which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances.”

(Citations removed)

[50] In DS v R [2014] NSWCCA 267 at [39], the Court (Bathurst CJ, Fullerton and Davies JJ) described the approach to be adopted in addressing a complaint of parity:

“The sense of grievance complained of when the sentence for one offender is compared relative to that of a co-offender or co-offenders, is to be assessed objectively governed by considerations of substance rather than form. It is only triggered where differences in the sentences imposed on co-offenders is disproportionate to relevant distinctions in the role each played in the commission of the offence (even if the roles might be differently described or involve different conduct) and in an offender’s subjective circumstances. There are necessarily degrees of both similarity and difference in the criminal conduct of co-offenders and in their subjective circumstances. In some cases this requires that different sentences be imposed. However, it is only where the discrepancy between sentences is not reasonably explained by the degree of difference between co-offenders and their offending that the disparity is such that appellate intervention is required. For there to be a justifiable sense of grievance, the disparity must be ‘gross’, ‘marked’ or ‘glaring’ (see the discussion by Howie J in Crystal Lee England v R [2009] NSWCCA 274 at [61]-[67]).”

[51] In Jaafar v R [2022] NSWCCA 254, Yehia J (with whom Harrison and Fagan JJ agreed) said at [42] that:

“Merely pointing to some difference between the two subjective cases of co-offenders who commit the same crime would not of itself establish a justifiable sense of grievance. Ultimately, the question is whether the sentencing discretion miscarried, not whether this Court would have imposed a different sentence to that imposed the first instance: Moran v R [2022] NSWCCA 217 at [29].”

[52] I accept, as was submitted by the Crown, that the question for an appellate Court is whether the degree of disparity is unreasonable or irrational in some way so as to indicate that the sentencing discretion miscarried. In Lloyd v R [2017] NSWCCA 303, R A Hulme J (with whom Payne JA and Garling J agreed) said at [97]:

“In short, it is not a question for this Court to second-guess the primary judge and to consider what we would have done: see Lowndes v The Queen (1999) 195 CLR 665 at 671-672 [15]; [1999] HCA 29. The question may be bluntly stated: was the differentiation made by the judge one that was open to her in the exercise of her discretion?”

See also Lupica v R [2024] NSWCCA 111 at [66] per McNaughton J (Harrison CJ at CL and Cavanagh J agreeing); Ooi v R [2023] NSWCCA 97 at [21]-[27]; Giles-Adams v R; Preca v R [2023] NSWCCA 122 at [123] per Yehia J (Wright and Chen JJ agreeing).

[144] In Hung v R [2023] NSWCCA 172 at [32] Leeming JA (Rothman and McNaughton JJ agreeing) stated the appropriate test to be applied in determining a justifiable sense of grievance and expressly rejected the necessity of finding a “gross, marked or glaring” discrepancy:

‘The question is whether the sentence imposed on a co-offender is reasonably justified in light of those differences, bearing in mind the qualitative and discretionary judgments required of the sentencing judge: C v R [2022] NSWCCA 285 at [33]; Z v R [2022] NSWCCA 286 at [31]-[32]; Labban v R [2022] NSWCCA 275 at [24]. It is not necessary to find a “gross, marked or glaring” discrepancy: Miles v The Queen [2017] NSWCCA 266 at [9], [38], [67]. Instead, it is better to use the expressions of the High Court, namely, “marked disparity” or “marked and unjustified disparity”: Fenech v R [2018] NSWCCA 160 at [30]; Weiss v R [2020] NSWCCA 188 at [89].’…

61 More recently, in the decision of Mohr v R [2024] NSWCCA 197, Bell CJ (with Davies and Wright JJ agreeing) emphasised that while the disparity in question must be ”marked”, it need not be ”gross” or ”glaring” to attract appellate intervention: at [15], citing Miles v R [2017] NSWCCA 266 at [9]; Cameron v R [2017] NSWCCA 229 at [79]-[90]; Daw v R [2017] NSWCCA 327 at [19]; Fenech v R [2018] NSWCCA 160 at [30]; Borg v R [2019] NSWCCA 129 at [90]-[91]; Downes v R [2020] NSWCCA 167 at [40], [57]; Weiss v R [2020] NSWCCA 188 at [89]-[90] cf. Afu v R [2017] NSWCCA 246 at [15]; Tuivaga v R [2015] NSWCCA 145 at [56].

62 Bell CJ went on to say:

“[21] The parity principle does not and should not involve a mechanical or mere mathematical process of comparison: Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [49]. It is necessarily far more nuanced: see, for example, Adams v R [2018] NSWCCA 139 at [85], citing Tran v R [2017] VSCA 346 at [24]. Both logic and reality are at play: Lowe at 613; Green at [32]. More is involved than a simple comparison of head sentences: Postiglione at 302. A comparison of all relevant factors, including antecedents, may support a difference in terms of the sentences imposed, although it may not support the extent of the difference in the sentences under consideration.”“

115. In my opinion, for the reasons submitted by the Crown which I have summarised at [111] above, I do not consider that the applicant has established that there is a justifiable sense of grievance arising from the different penalties received. The offending conduct was captured on CCTV footage which I have viewed. It is plain that there is a very marked difference between the conduct and resultant criminality of the applicant compared to his sister. The applicant’s violence toward the victim was materially more serious, posing greater risks of harm to the victim, compared to that of his sister. It involved a violent blow to the victim that rendered him unconscious.

116. The conduct of his sister on the other hand, save for a brief moment of minor violence toward the victim, was as the Crown describes more akin to her trying to intervene to prevent her brother from further assaulting the victim.

117. It was this marked difference in criminal behaviour which understandably resulted in the different and more serious charges being proffered against the applicant.

118. I also accept that their subjective cases were found by the respective sentencing judges to have been of different impact on the sentencing synthesis in the manner described by the Crown. There is no challenge to the sentencing judge’s findings in this regard. The applicant’s moral culpability was reduced slightly by reason of his background but there was no asserted causative connection between his mental health issues and his offending or contention that those issues materially contributed to that offending. He had a prior criminal record described as “not impressive” which showed a tendency towards “aggressive and uncontrolled acts of personal violence” which disentitled him to leniency and increased the need for specific deterrence.

119. By contrast, the applicant’s sister’s significant level of childhood deprivation and the material contribution of her mental health meant her moral culpability was lowered. I observe that the sentencing judge in Ms Towers’ case referred to the issue of parity with the applicant. His Honour said the applicant’s sentence may be regarded as stern; however, he accepted that he was not aware of his subjective case whereas Ms Towers’ subjective case was powerful. His Honour also noted the applicant was charged with different offences with significantly higher penalties and the injuries caused by the applicant were significant as was the level of violence perpetrated on the victim as contrasted with Ms Towers. His Honour said that whilst he had taken the sentence imposed on the applicant into account in setting the sentence for Ms Towers, he did not consider there was much in the sense of commonality between the offences and their respective conduct. With respect to his Honour, each of those observations and conclusions were well made.

120. I would grant leave to argue this ground, but in my opinion Ground 3 is not made out.

Ground 4: The aggregate sentence is manifestly excessive

Applicant’s submissions

121. After referring to the well-known principles to be considered in assessing whether a sentence is manifestly excessive, which are set out below, the applicant submitted that in this case there were a number of subjective matters of significance that should not have lost their force or been diluted in effect in the assessment of the aggregate sentence (AWS at [35]). Those matters were:

(a) the applicant being a 30-year-old man diagnosed with serious mental illness; (b) material disclosing a highly dysfunctional upbringing; (c) the need to guard against institutionalisation; (d) his time in custody being more burdensome due to his mental illness; and (e) his lower moral culpability due to level of disfunction and mental illness.

122. The applicant in his written submissions then submitted it was “curious” that the indicative sentence for the AOABH offence, said to have been objectively “below the mid-range”, was in fact above the mid-range (AWS at [36]). It was submitted that the aggregate sentence was excessive having regard to the objective criminality of the applicant’s conduct and his underlying subjective circumstances.

123. In oral submissions, whilst accepting this was not raised before the sentencing judge, Senior Counsel for the applicant submitted that, in addition to the matters going to his reduction in moral culpability, there was a significant risk of institutionalisation. He said the applicant has spent just over 3 years in the community over the last 13 years of his adult life.

Crown submissions

124. The Crown submitted this ground had not been made out. It said that over the period of one and a half minutes the applicant inflicted five punches on the victim who suffered a loss of consciousness. It was noted that the catalyst for the violence was the applicant taking exception to being asked to leave the premises after he could not pay for his drink.

125. The Crown said that three of the punches were inflicted on the victim when he was facing away from the applicant, one of those when the victim was on his knees. Four punches were referable to the AOABH offence and one to the steal from person offence, with the victim narrowly avoiding falling down nearby stairs after the last punch. The Crown submitted the stealing from victim offence was a significant example of an aggravated steal from person offence even if the item stolen was of little value as the act of corporal violence that preceded the theft was an entirely unjustified and demonstrably dangerous punch (CWS [65]).

126. The Crown submitted that the applicant’s subjective case did not assist him in a significant way on sentence. He had only been out of custody for five days at the time of this offending. He had been in custody for other acts of violence for like offending after he had been asked to leave a licenced premises (CWS [66]). He was subject to a CCO for a different assault for failing to leave a licenced premises and was also subject to three additional CCO’s for other offending (CWS [66]).

127. The Crown submitted that protection of the community, personal deterrence and denunciation were deserving of significant weight in the sentencing exercise (CWS [66]). Proper weight was given to the pleas of guilty and the Crown submitted that the aggregate sentence imposed only involved a modest degree of accumulation. There was also a finding of special circumstances reducing the non-parole period to 69% of the head sentence (CWS [67]). The Crown submitted the sentence could not be characterised as manifestly excessive.

Consideration

128. The relevant principles applicable to an assessment of manifest excess are well known. They were stated by R A Hulme J (Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing) in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] as follows:

“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; 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.”

129. In He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95, Bell P (Gleeson and McCallum JJA agreeing) stated at [42]:

“42 To this oft-cited summary of principles, may be added the following:

(1) Sentencing is an ”exercise of intuitive synthesis of all of the material before the sentencer in order to serve purposes that often pull in different directions” – Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51]; Tammer-Spence v R [2013] NSWCCA 297 at [56].

(2) Each case has to be considered on its own merits, and no case is entirely similar to any other – Windle at [61].

(3) There is a wide discretion to impose a sentence that seems to the sentencing judge to be just and appropriate – Windle at [61].

(4) An applicant seeking to challenge a sentence on the ground of manifest excess has a ”very heavy practical burden”, and must show a kind of disproportion which is so ”manifest on its face as to be indicative of, not a mere difference of idiosyncratic opinions, but, rather, of substantive error of law” – R v Elemes [2000] NSWCCA 235 at [22]-[23].

(5) The basis for appellate intervention is in accordance with the principles set out in House v The King (1936) 55 CLR 499; [1936] HCA 40 – Matthews v ASIC [2009] NSWCA 155 at [181]; Dowling at [59].

(6) The starting point of the analysis as to whether a sentence is manifestly excessive is to identify the nature of the offence(s) – Turner at [68].

(7) Whether a sentence is manifestly excessive is a conclusion, and it is not necessary to identify any particular error in the process – Dinsdale at [6]; Simmons at [30].

(8) Whilst a history of sentencing might establish a range of sentences imposed, it does not establish that such a range is the correct range, nor does it establish that the upper and lower limits are the correct upper and lower limits of such a range – Martinez v R [2020] NSWCCA 250 at [39].

(9) Thus, the use of statistics is a somewhat blunt instrument when seeking to establish manifest excess, and statistics may be of limited utility in a particular case and should not be given undue weight – Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [54]; Fogg v R [2011] NSWCCA 1 at [59]-[60]; Windle at [62]; Furia v R [2010] NSWCCA 326 at [74].

(10) Instead of a comparison of the sentences with statistics, when assessing whether a particular sentence is manifestly excessive, it is important to consider the specific findings as to the objective seriousness of the offence and the culpability of the offender – Holloway v R [2011] NSWCCA 23 at [85]; Windle at [64].”

130. In my opinion, the Crown submissions should be accepted. In so far as the applicant’s submissions proceeded on a premise that the sentencing judge did not, or did not adequately, take into account the matters identified above at [120], I do not accept that is a fair reading of his Honour’s remarks. I consider those matters were appropriately taken into account in the sentencing exercise.

131. I consider that the Crown has accurately summarised the level of violence of the offending in its submissions I have set out at [123]-[124]. I agree with the characterisation of the offending in the Crown submissions. The CCTV footage I have referred to captures the unprovoked and violent assaults by the applicant on the victim.

132. I do not accept the applicant’s submissions that the indicative sentence for the AOABH offence was “curious” by virtue of the fact that the sentencing judge assessed the offending as being below the mid-range. Implicit in that submission is that this has led to an error in the aggregate sentence. It is well established that the principle focus of the determination of a ground alleging manifest inadequacy or excess will be whether the aggregate sentence reflects the totality of the criminality: JM v R [2014] NSWCCA 297 (“JM”) at [40]. Excessive indicative sentences of themselves do not necessarily result in an excessive aggregate sentence: Lee v R [2020] NSWCCA 244 at [32], R v Kennedy [2019] NSWCCA 242 at [78]; DS v R [2017] NSWCCA 37 at [63]-[64]; JM at [40]. I do not consider that the applicant has established that the sentence, albeit a stern one, is manifestly excessive.

133. I would grant leave to argue this ground, but I do not consider it should be upheld.

Re-sentence

134. Error has been established for Ground 1. Accordingly, the applicant must be resentenced unless in the exercise of the sentencing discretion afresh, this Court is of the opinion that no lesser sentence is warranted at law: s 6(3) Criminal Appeal Act; Kentwell at [42]-[43].

135. At the hearing of the appeal, an unsworn affidavit of the applicant was handed up to be read on the usual basis. A sworn version was to be filed.

136. In that affidavit, the applicant says that in June 2024, whilst in custody, he was notified that his father had died. He says he found this hard to deal with. He was unable to attend the funeral. He says he was also notified that his former girlfriend, and partner at the time of his arrests, had been diagnosed with a brain tumour. Additionally, he has learned that this sister had been diagnosed with leukemia. These matters, he said, made his time in custody more onerous. So much can be accepted.

137. In the affidavit he also expresses remorse for what he has done. He says he is sorry for the impact on the victim’s life and for any hurt he has caused to him and the venue where the offending occurred. He says he is deeply remorseful for what he has done.

138. Having regard to the matters I have set out above detailing the facts of the offending, particularly when dealing with the manifest excess ground, I have formed the view that the appropriate sentence is slightly higher than that imposed by the sentencing judge. I reach that conclusion taking into account the matters raised in the applicant’s affidavit which I have set out.

139. Whilst I consider that the sentencing judge erred in taking into account the subjective matters of the applicant’s age and criminal record in his assessment of the objective seriousness of the sequence 9 offence, my assessment of the objective seriousness of that offending is the same as that reached by his Honour. It is a serious example of that type of offence. I would not impose any different indicative sentence for this sequence.

140. Even accepting that the applicant has now taken responsibility for the harm he has done to the victim and is genuinely remorseful for his actions, I do not think that that mitigating factor would, having regard to all of the other matters in the instinctive synthesis of the sentencing exercise, alter the conclusion that the sentence I would impose would be slightly higher. As has been described and as can be seen from the CCTV footage, the offending involved an unprovoked and violent attack on the victim who was, albeit briefly, rendered unconscious. The offending occurred when the applicant had only just been released from custody for similar offending and was subject to CCO’s. He has a poor criminal history. I agree with the sentencing judge that any reduction in his moral culpability by reason of his childhood history is only slight.

141. I have reached the conclusion that the appropriate aggregate sentence that I would impose, having regard to all of the purposes of sentencing, particularly those of specific deterrence, denunciation and protection of the community and on my assessment of the overall criminality of the offending and the application of the principles of totality and accumulation, would be slightly higher than that imposed below. Having reached this conclusion, I am not required to re-sentence as this amounts to a conclusion that no lesser sentence than that imposed by his Honour is warranted in law: Kentwell at [43].

Orders

142. For these reasons, the orders I would propose are:

143. Extend the time for the filing of the Notice of Appeal;

144. Grant leave to appeal;

145. Dismiss the appeal.

**********

Amendments

17 September 2025

Typographical amendment at [115].