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Texts Cited: Nil

Category: Principal judgment

Parties: Wi Michael Tuhi (Applicant)
Rex (Respondent)

Representation: Counsel:
A Isaacs (Respondent)
Solicitors:
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2021/00286922

Publication restriction: Nil

HEADNOTE

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

On 22 February 2024, following a jury trial in the District Court the applicant was sentenced to an aggregate sentence of 5 years with a non-parole period of 3 years for the following offences, all occurring in the same evening:

(1) one count of detain with intent to obtain an advantage, namely psychological satisfaction, against the applicants then partner, contrary to s 86(1) of the Crimes Act 1900 (NSW) (count 2).

(2) three counts of common assault contrary to s 61 of the Crimes Act, two of which were against his then partner (counts 3 and 7), and one of which was against his then housemate (count 8).

The applicant was also sentenced for two related offences that came before the Court on a s 166 certificate following a guilty plea. These sentences were to be served wholly concurrently with the aggregate sentence for the principal offences.

The applicant sought leave to appeal from the aggregate sentence imposed for the principal offences. His notice of appeal advanced a single ground of manifest excess but in his written submissions he raised a related complaint concerning the application of the totality principle and alleged a number of errors in the assessment of his subjective case. The alleged errors concerned the finding that he was not remorseful, the weight given to certain evidence, and the observation that there were inconsistencies in the documents tendered on sentence concerning his ability to work following a back injury.

The Court (Mitchelmore JA, Ierace J agreeing at [48] and Coleman J agreeing at [51]) held, granting leave to appeal but dismissing the appeal:

As to the assessment of the applicant’s subjective case:

(1) To the extent that the applicant sought to rely on evidence of his present circumstances in support of the allegation of error by the sentencing judge, it is not open to this Court to have regard to such evidence for that purpose.

Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509, applied.

(2) The finding that the applicant was not remorseful was not an error; it reflected the state of the evidence before the sentencing judge and was consistent with submissions made by the applicant’s counsel on sentence. Insofar as the applicant alleged error in the weight given to particular evidence, the assessment of the significance or importance of various pieces of evidence is a matter for the sentencing judge and is not an appealable error. In relation to the material tendered by the applicant on sentence, in the part of the sentencing remarks that the applicant relied on as showing error the sentencing judge was doing no more than summarising the material before her, and there was nothing in the reasons to suggest that her Honour’s approach was impacted by this material.

Ahmad v R [2021] NSWCCA 30; R v Sara [2020] NSWCCA 119, applied.

As to manifest excess*,* totality and accumulation*:*

(3) The sentence of 18 months indicated for count 8 was excessive in light of the assessment of the objective seriousness of that count as “just below the mid-range” and the maximum sentence of the relevant offence provision (2 years imprisonment). However, it does not follow that the aggregate sentence was manifestly excessive.

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221; JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528; Kliendienst v R [2020] NSWCCA 98; AA v R [2024] NSWCCA 132, applied.

(4) Having regard to the applicant’s limited subjective case, the need to emphasise general deterrence, the not insignificant degree of notional accumulation, and the adjustment to the non-parole period to reflect the applicant’s prospect of rehabilitation, the sentence was not unreasonable or plainly unjust.

Per Coleman J:

(5) Although the indicative sentence given for count 8 is of concern, an indicative sentence is not a sentence amenable to appeal, nor does an error in an indicative sentence necessarily point to an error in the aggregate sentence. The critical question is whether the aggregate sentence properly reflects the overall criminality of the offending, noting that sentencing judges are to be allowed as much flexibility as is consistent with principle. Although the sentence imposed was a stern one, it was not unreasonable or plainly unjust.

Mulato v R [2006] NSWCCA 282; JM v R; Kliendienst v R, applied.

Per Ierace J:

(6) There is an incongruity between the sentencing judge's assessment of the objective seriousness of count 8 and the indicative sentence given for that count. However, having regard to all the evidence before her Honour and the reasons given, the aggregate sentence is not manifestly excessive.

JUDGMENT

1. MITCHELMORE JA: On 24 October 2023, the applicant was found guilty after a trial in the District Court before Judge English sitting with a jury at Lismore of the following offences:

2. one count of detain with intent to obtain an advantage, namely psychological satisfaction, contrary to s 86(1)(b) of the Crimes Act 1900 (NSW) (count 2); and

3. three counts of common assault contrary to s 61 of the Crimes Act (counts 3, 7 and 8).

4. On 22 February 2024, Judge English sentenced the applicant for the above offences as well as two further offences to which he pleaded guilty and which were before her Honour as related offences pursuant to s 166 of the Criminal Procedure Act 1986 (NSW), being:

5. a charge of intimidate with the intention of causing fear of physical or mental harm (DV), contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW); and

6. intentionally or recklessly damage property (DV), contrary to s 195(1)(a) of the Crimes Act.

7. On the charges of which the applicant was convicted following trial, her Honour sentenced the applicant to an aggregate sentence of 5 years with a non-parole period of 3 years, to date from 25 October 2023. Her Honour separately sentenced the applicant on the further two offences (the applicant having pleaded guilty at a time entitling him to a 10% discount) to 12 months imprisonment and 9 months imprisonment respectively, both of which commenced on 25 October 2023 and were thus served wholly concurrently with the aggregate sentence.

8. The applicant sought leave to appeal against the sentence imposed. The single ground of appeal that he advanced was:

“Undue severity. No consideration for mitigating circumstances.”

5. The applicant, who represented himself, addressed the ground of appeal and raised additional complaints about the sentencing judge’s approach in his written submissions. He made brief oral submissions at the hearing that were directed to some of the matters in his written submissions. I have considered all of the matters that the applicant raised.

6. For the following reasons, I would grant the applicant leave to appeal but I would dismiss the appeal.

Background to the appeal

The Offending

7. The sentencing judge made the following findings regarding the offending, which took place on 7 October 2021 and occurred between the hours of 7 pm and 10 pm. There were two victims. The victim of counts 2, 3, and 7 was the applicant’s then partner. The victim of count 8 was the applicant’s then housemate.

8. The applicant and his partner met on a dating application in July 2021 and commenced a sexual relationship on 22 September 2021. As at the date of the offences the applicant was 34 years old and his partner was 23 years old.

9. On 7 October 2021, the applicant and his partner went bowling together, consuming alcohol and becoming intoxicated. They returned to the applicant’s residence and continued to drink as well as smoke cannabis, before attending the Pier Hotel at around 7 pm. When at the hotel, the applicant’s partner recognised a group of men in the front bar and walked over to them. When the applicant saw her talking to the men he made a series of hostile gestures towards her indicating that he was angry. She joined the applicant in the bistro area and they began to argue, before they moved to the poker machine area and continued to argue. The applicant’s partner told the applicant that they should go home, so they left the hotel and returned to the applicant's residence. When they entered the unit, the second victim, the applicant’s housemate, was sitting in the living room.

10. The applicant yelled abuse at his partner, and they went into the applicant’s bedroom and closed the door. The conduct constituting count 2 followed. Her Honour found that once inside the bedroom, the applicant’s partner sat on the bed and began to cry, and told the applicant that she wanted to leave. As she stood up, the applicant stood in front of the door, blocking her exit, and pushed her onto the bed. The applicant was saying things like, “Why are you lying to me? Why don’t you love me? You never loved me. If you want to leave just fuck off.” She repeatedly tried to get up off the bed, and the applicant repeatedly pushed her back onto the bed. The sentencing judge found beyond reasonable doubt that in addition to yelling at his partner that she was not leaving, the applicant prevented her from leaving the bedroom. Her Honour also found that he pushed her on to the bed a number of times, with an increasing level of ferocity. The applicant at the time was “clearly enraged” as well as being intoxicated.

11. The applicant then punched the wardrobe with his fist, punched himself in the head, and hit himself over the head with a bottle. His partner picked up some scissors and threatened to cut her wrists in an attempt to calm the applicant’s anger towards her. She then got up from the bed and the applicant pushed her into the wardrobe, causing her to fall to the floor. The applicant grabbed hold of her and pulled her up, ripping her shirt off completely and leaving her naked from the waist up. This is the conduct upon which the applicant was found guilty of count 3.

12. The applicant started picking up his partner’s belongings and threatened to throw them away if she did not sit back down on the bed and talk to him. His partner, who had been yelling out to the applicant’s housemate for help and asking him to call the police, told the applicant to return her belongings so that she could go home. He said he would return her things if she left the unit. However, when she walked out the door, the applicant closed and locked it, causing her to kick the door and yell out to him that she needed her belongings in order to leave. He eventually opened the door and she entered the loungeroom. The applicant grabbed hold of her with both hands and, in the words of the sentencing judge, “threw her with force like a ragdoll so that she landed body first onto the floor”. These were the facts constituting count 7.

13. At this point, the applicant’s housemate said to the applicant that if the police were called he would not lie about what he had seen. This caused the applicant to become enraged with his housemate, calling him a “Fake cunt” and telling him to get his computer out of the lounge room or he would destroy it. The applicant then left the premises for a short time, and the housemate began helping the applicant’s partner search for her belongings around the perimeter of the unit block using his phone torch for light. He then gave her his phone and she called triple zero.

14. While she was on the phone, the applicant returned to the vicinity. After telling her to get off the phone and go home, the applicant approached his housemate and got angry with him for lending his phone. The applicant threatened his housemate, saying, “You’re a fake cunt, I’m going to fucking kill you.” This conduct constituted the intimidation offence on the s 166 certificate.

15. The applicant pushed his housemate multiple times and put his arms up as if he (the applicant) was going to hit his housemate, while the latter had his hands up in a defensive stance and walked backwards away from the offender. The applicant continued to follow him, pushing him and holding his hands up as if he was going to hit him. The applicant then threw an actual punch at his housemate which skimmed past his ear, striking him and causing him pain. This was the conduct that constituted count 8.

16. When the applicant walked back into the unit, he destroyed a wall partition that belonged to his housemate. This constituted the destroy property offence on the s 166 certificate. He continued to yell abuse at both his partner and his housemate. Eventually police sirens could be heard and the applicant left the unit.

17. When police attended the unit, the two victims made statements. The applicant presented to Coffs Harbour Police Station the following day. He was conveyed to hospital to treat a broken bone in his right hand (sustained when he punched the wardrobe the night before) before returning to the police station and participating in a recorded interview.

Objective Seriousness

18. The sentencing judge found that the detain for advantage offence fell below the mid-range of objective seriousness. The offence involved verbal abuse, intimidation and physical violence and continued over a period of time, although her Honour was unable to determine for just how long the detention occurred. It was committed within an intimate, domestic relationship, in premises where the victim had been staying on occasion. The advantage sought was psychological, and the offence ceased when the applicant determined that she should be allowed to leave.

19. The first of the assault counts involving the same victim (count 3) was also domestic violence related, and followed the victim being pushed into a wardrobe and falling to the floor. The offence involved a high degree of humiliation as the victim’s shirt was ripped violently from her body, leaving her naked from the waist up, in premises where she had been staying. It occurred while the applicant was enraged and intoxicated. In light of all of these matters, the sentencing judge determined the objective seriousness was toward the mid-range.

20. In relation to the second of the assault counts involving the same victim, in which she was thrown to the floor, the sentencing judge noted that it occurred while the victim was trying to retrieve her belongings which the applicant had hidden and which was preventing her, to her mind, from leaving. Her Honour noted that the victim was only 23 years old, while the applicant was considerably older at 34 and “certainly much larger and stronger”. Her Honour considered that the conduct involved a significant degree of violence and was a serious example of common assault and fell in the upper end of the scale of seriousness.

21. The sentencing judge found that count 8, which involved the applicant’s housemate, fell just below the mid-range of objective seriousness. Her Honour had regard to the fact that the assault was committed against him in his home where he should have been safe, in circumstances where he was intervening to prevent the applicant from continuing his assaults and abuse of his partner. The victim was clearly fearful of the offender, backing away, holding his hands up in a submissive manner to avoid confrontation or being assaulted as transpired.

Subjective Circumstances

22. Her Honour described the applicant’s record as disentitling him to leniency, summarising it as follows:

“He has convictions for contravening a prohibition in an apprehended domestic violence order for which he was placed on a conditional release order. He breached that order and was called up and was placed on a community corrections order. He was also placed on a community corrections order for an offence of stalk/intimidate, and another offence of contravening a prohibition in an apprehended domestic violence order. He has convictions for special category drive, drive with special range prescribed concentration of alcohol and drive with a low range prescribed concentration of alcohol, and driving under the influence of alcohol.”

23. Her Honour noted that the applicant had maintained that the incidents were the victims’ fault, admitting only to the property damage and intimidation offences. Her Honour found that the latter, which involved a threat on the applicant’s part to kill his housemate, was “a serious threat in light of the level of anger and violence being displayed by the offender throughout the evening from approximately 7pm until 10pm when the police arrived”.

24. Her Honour summarised the content of the sentencing assessment report, which described the applicant as having accepted some responsibility for his actions, albeit rationalising them by attributing blame to the victims. The applicant described himself as self-medicating following the death of his parents, using alcohol and other drugs to cope with his grief and unresolved mental health issues. After some encouragement from the community corrections officer he was able to see that he was acting selfishly at the time of the offending and was not thinking about the victims or how they would have felt in response to his anger. The author of the report assessed the applicant’s risk of reoffending as medium-low, noting that he had been abstinent from drugs and alcohol since 2021 and was receiving treatment in custody from a psychologist.

25. The sentencing judge also summarised the material that the applicant tendered on sentence, which included case notes from the system maintained by Corrective Services; references from family and friends, including his current partner; and the report of Dr Thea Gumbert, psychologist, who expressed the opinion that the applicant met the diagnostic criteria for major depressive disorder recurrent episodes and alcohol use disorder of a mild to moderate severity in sustained remission. After reviewing all of this material, her Honour stated:

“In mitigation I find the offender is neither remorseful nor contrite, maintaining that the fault lay with the victims rather than himself, only expressing with the benefit of hindsight and some encouragement that he was acting ‘selfishly’ at the time, stating that he was being ‘reactive’ and not considering how the victims would have been feeling in the circumstances, acknowledging belatedly that he was acting out in anger.

His prospects for rehabilitation are reasonable, particularly if he does attend courses and counselling to develop insight into his domestic violence related offending and the reasons for him to offend repeatedly in that way, to learn to regulate his emotions and to reduce his consumption of alcohol, which I find was a significant contributing factor to this violent outburst, but not a circumstance of mitigation.

It is now some three years since these offences were committed. He spent two years on bail, he did not breach his bail. He has expressed a willingness to undergo counselling to deal with issues of depression which have been longstanding. The likelihood of him reoffending will be significantly reduced if he addresses the issues giving rise to his violent behaviour on this occasion, including a reduction in his consumption of illicit substances and alcohol.”

Sentence

26. After noting the maximum penalties (14 years imprisonment for the detain offence, 2 years imprisonment for each offence of common assault) and the purposes of sentencing, her Honour stated:

“This is yet another example of a perpetrator of domestic violence having an irrational belief of being wronged by the victim and who believes his actions were justified by detaining her so he could resolve his insecurities about the nature of their relationship, and then by assaulting her in order to remove her from his premises and abusing her physically and verbally over a sustained period of time. Unfortunately, despite the best efforts of the Government, domestic violence is on the increase. There was not a week in 2023 without the news of a death of [a] woman who was the victim of domestic violence.

The criminal justice system must play a part in protecting those who have been or may be victims of domestic violence, and appropriate sentences must be imposed to maintain public confidence in the administration of justice, particularly when sentencing a repeat offender.”

27. Her Honour found that nothing other than full time custodial sentences would suffice, and that in respect of each of the offences the s 5 threshold had been crossed. Her Honour also made a finding of special circumstances to allow for an extended period of supervision on parole to enhance the applicant’s prospects of rehabilitation and to minimise the risk of reoffending.

28. The sentencing judge provided indicative sentences for each of the primary offences for which the applicant was sentenced. For the detain count (count 2), her Honour indicated a sentence of 4 years. For the three assault counts, her Honour indicated sentences of 15 months (count 3), 21 months (count 7) and 18 months (count 8). Her Honour described the aggregate sentence as involving accumulation as recognising the principle of totality and that the applicant was being sentenced for offences against two victims. As the sentences for the two offences on the s 166 certificate were to be served entirely concurrently with the aggregate sentence imposed for the primary offences, the sentencing judge did not set a non-parole period.

The application for leave to appeal against sentence

29. Although the applicant formulated a single ground of appeal, his written submissions advanced a number of errors. At the outset of the submissions the applicant referred to seeking a review of the following:

“1. The Non-Parole Period initially handed down and for it to reflect a 50-50 term served/time on parole breakdown rather than the existing 60-40.

2. The Accumulation of the Sentencing.

3. Inconsistency in considering my mental health issues, work and relationship issues.

This appeal submission will argue that the severity of the heavy prison time weighting is detrimental and counterproductive to what should be the goals of the corrective system which should be geared to allowing me to rehabilitate and set my life course on a path that allows me to atone for and work towards redemption behaviours to society for my past actions.”

30. In the balance of his written submissions, the applicant made a number of points about his present circumstances, including his level of remorse (Argument 1), his ongoing abstinence from drugs and alcohol (Argument 3), his excellent behaviour and progression in custody and his employment therein (Argument 4), and his ongoing willingness to engage in treatment and therapy and his plans for the future (Argument 5). He relied on these matters in support of the sentencing judge having erred both in sentencing him to imprisonment and the length of the sentence. However, it is not open to this Court to have regard to them for that purpose. Evidence of events or circumstances or facts following sentence cannot be taken into account in determining whether the sentencing judge erred, no matter how compelling they may be. Simpson J summarised the position in Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509 at [110] (Davies J and Grove AJ agreeing):

“A fundamental pre-condition to the exercise of the power of the Court to quash a sentence and pass another sentence is the formation of the opinion that some other sentence is warranted in law and should have been passed. In other words, this Court, as a matter of law, cannot interfere with a sentence passed at first instance unless it has identified some error, either in the sentencing process or in the outcome of the sentencing process. That has this additional implication: axiomatically, evidence of events or circumstances or facts that have arisen entirely since sentencing cannot be taken into account, no matter how compelling they may be. If the facts did not exist at the time of sentencing, it cannot have been an error for the sentencing judge not to have taken them into account. In those circumstances, the impact on the sentence is a matter for the executive government: R v Munday [1981] 2 NSWLR 177.”

(Emphasis in original.)

The applicant’s subjective case

31. The applicant submitted that the sentencing judge erred in finding that he was not remorseful for what he had done. Her Honour also did not give any weight, or insufficient weight, to his subjective circumstances including his abstinence from drugs and alcohol since October 2021 and his behaviour and achievements while in custody (before sentence).

32. It is necessary to approach the assessment of this aspect of the applicant’s complaint with some caution, given his reliance on materials that post-date the sentence. In relation to remorse, the Crown pointed out that during the sentencing hearing, the applicant’s then representative made a submission that there was no request for her Honour to find contrition or remorse, “except maybe in relation to the damaged property and some general remorse about how the situation unfolded”. That submission was consistent with the material in the sentencing assessment report to the effect that while the applicant accepted some responsibility for his offences he rationalised them by attributing blame to the victims’ own behaviour, although ultimately he accepted that his poor decision making was a contributing factor and expressed remorse. The submission was also consistent with the limited material in Dr Gumbert’s report about the offences, with Dr Gumbert being instructed not to explore the applicant’s account of the offending. Dr Gumbert did note that he made some statements that externalised responsibility for his offending. The sentencing judge’s finding regarding remorse, which I have summarised at [24] above, reflected the state of the evidence before her Honour.

33. The applicant also submitted that the sentencing judge did not take sufficient account of his abstinence from drugs and alcohol and his custodial record, and did not give appropriate weight to the evidence of Dr Gumbert (as contained in her report) that he had strong prospects of rehabilitation, in light of his strong pro-social family network and willingness to engage in a course of treatment. This led her Honour to determine the non-parole period to be 60% of the total aggregate sentence when it should instead have been set at 50% of the total aggregate sentence.

34. The sentencing judge referred in some detail to Dr Gumbert’s report, including her diagnosis of the applicant as having an alcohol use disorder “in sustained remission”. Her Honour also referred to the applicant’s compliance with his bail conditions over a two year period and his willingness to undergo counselling and engage in programs. Her Honour’s findings that the applicant’s prospects of rehabilitation were reasonable and as to special circumstances were informed by these matters, in particular his willingness to attend courses and counselling to develop insight into his domestic violence related offending and the reasons for him to offend, to learn to regulate his emotions, and to reduce his consumption of alcohol.

35. In so far as the applicant’s submissions involved a complaint about the weight that the sentencing judge gave to these matters and in particular the material in Dr Gumbert’s report, “merely claiming that insufficient weight has been given to a factor is not a proper ground of appeal”: Ahmad v R [2021] NSWCCA 30 at [18], citing Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419; [2019] NSWCA 61 at [16]. In R v Sara [2020] NSWCCA 119 at [114], Harrison J (Bathurst CJ and Hoeben CJ at CL agreeing) described a ground taking issue with the weight that the sentencing judge gave to a particular factor as subverting “the fact that the assessment of the significance or importance of various pieces of evidence is both a matter for the particular sentencing judge to consider as well as something about which informed minds might reasonably differ”.

36. The applicant also submitted that the sentencing judge erred in her Honour’s summary of case notes prepared by Corrective Services which were in evidence. In the part of the reasons in which the relevant passage appears, her Honour was summarising the evidence that was tendered on behalf of the Crown and the applicant. The applicant’s then-representative tendered the case notes and made submissions about the absence of any custodial sanction since the applicant was taken into custody and his engagement in the sentencing assessment process. Her Honour said the following about those case notes:

“A mental health assessment report prepared following his reception into custody in which it states, ‘Has not worked out in two years and have (sic) become reclusive since the abusive relationship’. That is inconsistent with the other material before the Court, such as entering a new relationship. Also inconsistent with his work in 29 hours a week on light duties. There was an assertion that he was also in receipt of Jobseeker payments from Centrelink at that time. He also stated he was fit and able to participate in indoor and outdoor work activities whilst in custody, also inconsistent with a history of a work-related neck injury which caused him to cease his employment which was then confirmed by review of radiology results. The offender had nerve impingement at C5-6 causing him to suffer migraines for which he was medicated, receiving muscle relaxants and anti-inflammatory medications and medication for the migraine[s].”

37. Apart from this summary of the material, the case notes do not otherwise feature in her Honour’s reasons, and the applicant has not pointed to any particular statement in the reasons that suggests the sentencing judge’s approach was impacted by any of the material in this summary. Further, at the end of the paragraph her Honour observed that the applicant was in fact injured in the manner described, as confirmed by radiology results. It follows that even if the applicant were right that some of the inconsistencies her Honour identified in the paragraph should not have been found, the material ultimately referred to was correct, and in circumstances where her Honour was doing no more than summarising evidence no error in the exercise of the sentencing discretion is disclosed. In so far as the applicant included further information about his workplace injury in the written submissions, for the reasons set out above this Court has not taken that into account in considering whether the sentencing judge erred in the manner alleged.

Totality, accumulation and the allegation of manifest excess

38. As I noted above, the applicant’s ground of appeal included that the sentence was unduly severe, which he confirmed at the hearing was an allegation that the sentence was manifestly excessive. In his written submissions, the applicant also submitted that the sentencing judge misapplied the totality principle by not applying a greater degree of concurrency between the sentences.

39. The principles to be applied when a sentence is alleged to be manifestly excessive were summarised by RA 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], in a passage that has been cited with approval in many subsequent cases:

“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.”

40. The sentence in the present case was an aggregate sentence. In JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [39]-[40], RA Hulme JA identified a number of propositions that had emerged at that time from the applicable legislative provisions and the cases that had considered aggregate sentencing, including, in [40]:

“…11. The indicative sentences recorded in accordance with s 53A(2) are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence: R v Brown, supra, at [17]; Nykolyn v R, supra, at [58]; PD v R [2012] NSWCCA 242 at [44]; R v Rae [2013] NSWCCA 9 at [32]-[33], [42]-[43]; Truong v R; R v Le; Nguyen v R; R v Nguyen, supra, at [218], [227]; Subramaniam v R, supra, at [28]; SHR v R, supra, at [40]; R v Clarke, supra, at [56]; Martin v R [2014] NSWCCA 124 at [47]; JL v R [2014] NSWCCA 130 at [17]; Stoeski v R, supra, at [43]; CL v R [2014] NSWCCA 196 at [53]-[55].

12. Even if the indicative sentences are assessed as being excessive, that does not necessarily mean that the aggregate sentence is excessive: PD v R at [44],[82]; BJS v R [2013] NSWCCA 123 at [252]-[254].

13. A principal focus of determination of a ground alleging manifest inadequacy or excess will be whether the aggregate sentence reflects the totality of the criminality involved: R v Brown, supra, at [37]; R v Rae, supra, at [42]-[46], [62], [69]. This Court is not in a position to analyse issues of concurrence and accumulation in the same way that it can analyse traditional sentencing structures: Truong v R; R v Le; Nguyen v R; R v Nguyen, supra, at [231]; Martin v R, supra, at [33]-[41]. …”

41. Referring to these principles and other authorities in Kliendienst v R [2020] NSWCCA 98, N Adams J observed at [84] that it was clear that the totality principle still applies to an aggregate sentence, although it was also clear that “the same transparency regarding the degree of accumulation and concurrence that is available when an offender is sentenced separately on each offence is not apparent when an aggregate sentence is imposed, with one exception: when an aggregate sentence is imposed for only two offences there is some transparency”. Her Honour further observed that although it is not possible to ascertain the degree of concurrence and accumulation in an aggregate sentence by reference to the indicative sentences, it is not impermissible to have regard to the indicative sentences when looking at whether error is disclosed in the aggregate sentence: at [103].

42. Specifically in relation to indicative sentences, in AA v R [2024] NSWCCA 132, Ward P and Wilson J stated at [4]:

“…Although it is not axiomatic, where there is clear error in an indicative term, it may signal error in the aggregate term. Much will depend upon the circumstances of the individual case and the level of notional concurrence and accumulation involved in the determination of the aggregate sentence. In some cases, any error in an indicative term will be subsumed and overtaken by the application of the principle of totality such that there is no discernible capacity for the error to have had an impact upon the aggregate sentence. In others, it will be found to have contributed to or occasioned error in the sentencing order of the court.”

43. In the present case, the sentencing judge was dealing with one count of detain for advantage and two counts of common assault involving the applicant’s former partner, and one count of assault involving the applicant’s former housemate. As was raised with the Crown during the hearing, the indicative sentence that her Honour imposed for the latter assault count is of concern. Her Honour assessed the objective seriousness of the offending the subject of that count as falling just below the mid-range. The assault involved the applicant, having previously feigned a number of punches, throwing a punch at his housemate which glanced his ear. Considered in the circumstances in which it took place, in particular that it occurred at the victim’s home, the assessment of the objective seriousness as just below the mid-range was within her Honour’s discretion as the sentencing judge, and indeed the applicant did not seek to impugn it. However, the indicative sentence that her Honour gave for that count was 18 months imprisonment, the maximum being two years imprisonment.

44. The respondent submitted that it was open to her Honour to reach the conclusion on the indicative sentence that she did for that count, noting that the assault took place at the victim’s place of residence and having regard to what counsel described as the nature and ferocity of what occurred. The latter aspect of that submission involved some overstatement in light of the conduct that constituted the assault. Even accepting the balance of the submission, the indicative sentence for that count is excessive having regard to her Honour’s assessment of the objective seriousness. By way of contrast, for the second of the two assaults that the applicant committed against his former partner, which involved the applicant throwing her across the room “like a ragdoll” and which her Honour assessed as at the upper end of the scale of objective seriousness, her Honour indicated a sentence of 21 months imprisonment.

45. Consistently with the authorities to which I have referred, it does not follow from the indicative sentences being assessed as excessive that the aggregate sentence is manifestly excessive. Her Honour was correct to emphasise the need for general deterrence, and the applicant’s subjective case was limited. The sentence imposed for the counts following trial meant there was no available discount; the applicant’s criminal record disentitled him to leniency and including two convictions for breaching a prohibition in an apprehended domestic violence order; and at the time of sentence he showed no remorse and limited insight. Although the sentencing judge acknowledged that the offending involved two victims, the more serious offending involved the applicant’s former partner with whom he was in an intimate relationship at the time. The aggregate sentence involved a not insignificant degree of notional concurrency, consistently with the offences taking place as part of one course of offending in a single evening. The sentencing judge’s acceptance that the applicant had reasonable prospects of rehabilitation found reflection in the significant adjustment to the non-parole period, to support that endeavour.

46. The aggregate sentence that the sentencing judge imposed in the present case is undoubtedly a stern one. However, the question is whether the sentence is manifestly excessive in the sense that it is “unreasonable or plainly unjust”. Not without some hesitation, I do not consider that the aggregate sentence imposed in the present case meets that description.

Conclusion

47. I propose the following orders:

48. The application for leave to appeal against sentence is granted.

49. The appeal is dismissed.

50. IERACE J: I am grateful for Mitchelmore JA's judgment in which her Honour has canvassed the material that was before the sentencing court and the remarks of the sentencing judge. I have also had the benefit of reading the judgment of Coleman J.

51. I note the incongruity between the sentencing judge's assessment of the objective seriousness of count 8 and the indicative sentence for that count, which is three quarters of the maximum sentence for that offence; but having considered the evidence that was before the sentencing judge and her Honour's reasoning, I also conclude, for the reasons advanced by Mitchelmore JA and Coleman J, that the aggregate sentence, although stern, was not manifestly excessive.

52. Accordingly, I concur with the orders proposed by Mitchelmore JA.

53. COLEMAN J: I have had the considerable advantage of reading the reasons of Mitchelmore JA in advance. I am grateful to her Honour for detailing the facts of the offending, her summary of the sentencing judge’s remarks and distillation of the applicant’s arguments.

54. Like her Honour, I regard the indicative sentence for the assault count against the applicant’s flatmate (count eight) as being of concern. It must be accepted that the assessment of the objective seriousness of that offending was within the sentencing judge’s discretion. That evaluative exercise, which is classically within the role of the sentencing judge when performing the task of finding facts and drawing inferences from those facts, should not quickly be interfered with on appeal: Mulato v R [2006] NSWCCA 282 at [37], [46].

55. Having reached that assessment, it is not clear to me how the sentencing judge arrived at the indicative sentence she did for this count. Nevertheless, as the authorities Mitchelmore JA has referred to at [40]-[42] above state, indicative sentences are themselves not sentences amenable to appeal: JM v R at [40]. Further, those authorities make plain that an error in an indicative sentence does not necessarily point to an error in the aggregate sentence. The critical question is whether the aggregate sentence properly reflects the overall criminality of the offending: JM v R at [40].

56. Whilst I consider the aggregate sentence imposed as being a very stern one, it was for four counts, three of which were domestic violence related which had the aggravating features identified by the sentencing judge. The sentencing judge took into account the offender’s subjective features in so far as they were before her in undertaking the sentencing synthesis. There appears to have been significant notional concurrence of the sentences no doubt to reflect the relatively short period of time over which the offending occurred. When an aggregate sentence is imposed, this court cannot analyse the adequacy of the application by the sentencing judge of the principles of cumulation and concurrency as it would in a traditional sentence: JM v R at [40]; Kliendienst v R at [84].

57. My conclusion that the aggregate sentence was a very stern one, even one which I may not have imposed, does not without more lead to the conclusion that the sentence is manifestly excessive. I am unable to conclude from a reading of the sentencing judge’s remarks as a whole and having regard to the accepted position that sentencing judges are to be allowed as much flexibility in sentencing as consistent with principle, that the sentence imposed was unreasonable or plainly unjust.

58. I agree with the orders proposed by Mitchelmore JA.

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