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Category: Principal judgment

Parties: Anasa Vute (Applicant)
Rex (Respondent)

Representation: Counsel:
S Kluss (Applicant)
S Lind (Respondent)
Solicitors:
Ross Hill & Associate Solicitors (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2024/00120497; 2024/00278539

HEADNOTE

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

In January 2026, Anasa Vute (“the applicant”) was sentenced to an aggregate sentence of imprisonment for 2 years and 6 months in the District Court for five offences involving unlawfully entering and stealing money and property from a number of premises around Sydney in the period January to March 2024. Other stealing offences were taken into account on sentence by way of a Form 1.

The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against his sentence.

The sentencing judge, Anderson SC DCJ, did not regard any of the offending conduct as serious examples of the offences for which the applicant was convicted, noting that there was an absence of violence in the commission of the offences, albeit the offender’s use of facial coverings and gloves was indicative of some planning. His Honour also noted that the offending was aggravated by the fact the applicant had been on conditional liberty during the period the offending took place.

The sentencing judge also considered the applicant’s subjective circumstances, including the applicant’s involvement in drug use and criminality from a young age. His Honour referred to the applicant’s childhood trauma, lengthy periods of incarceration both as a juvenile and as an adult and resulting risk of institutionalisation, which was the basis of a finding of special circumstances. The sentence was also reduced by 25% on account of the applicant’s early guilty plea. The applicant’s legal representative on sentence did not contend that no penalty other than full-time imprisonment was appropriate in the circumstances, which the sentencing judge accepted.

The applicant raised four grounds of appeal: the sentencing judge failed to consider whether alternatives to full-time imprisonment were available (Ground 1), the sentencing judge failed to properly consider the institutionalisation of the applicant (Ground 2), the sentencing judge failed to properly consider the application of an intensive correction order (Ground 3), and that the sentence imposed was manifestly excessive and a different sentence is warranted at law (Ground 4).

The Court held (Cavanagh J, Price AJA and Rigg JJ agreeing), granting leave to appeal and dismissing the appeal:

As to Ground 1:

(1) The sentencing judge did not fail to consider whether alternatives to full-time imprisonment were available. There was no basis for suggesting that his Honour did not do so or that his Honour did not properly consider all possible alternatives. Indeed, his Honour stated that no penalty other than full-time imprisonment was appropriate. It is not always or even generally necessary that a sentencing judge include in the remarks on sentence all the possible alternatives that have been considered and why they may not be appropriate. Thus, the applicant did not establish any error in accordance with House v The King (1936) 55 CLR 499; [1936] HCA 40 (“House v The King”).

As to Ground 2:

(2) The sentencing judge referred to the risk of institutionalisation in his Honour’s remarks on sentence. The applicant accepts the sentencing judge did so and submits that the risk should have been given more consideration or afforded more weight in the sentencing process. An appellate court will be disinclined to interfere merely because it is suggested that more weight be given to a particular factor. Matters of weight are very much in the province of the sentencing judge. The discretion which the law gives to sentencing judges is wide and is essential to the administration of the criminal justice system.

TH v R [2025] NSWCCA 121; R v White [2025] NSWCCA 111 cited.

As to Ground 3:

(3) The question of whether to impose an intensive correction order was addressed by the sentencing judge in his Honour’s remarks on sentence with reference being made to the paramount consideration of community safety and the other purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The applicant did not contend to the contrary nor that the sentencing judge had failed to have regard to a relevant consideration in coming to that conclusion but instead submitted that the sentencing judge’s conclusion was wrong. In the circumstances, the applicant did not establish House v The King error.

As to Ground 4:

(4) Manifest excess is a conclusion which does not depend on the identification of any specific error. An applicant who seeks to challenge a sentence on the basis 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. The Court was not satisfied that the applicant had demonstrated the sentence imposed upon him was manifestly excessive.

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54; He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95; R v Elemes [2000] NSWCCA 235 cited.

JUDGMENT

1. PRICE AJA: I agree with Cavanagh J.

2. CAVANAGH J: The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) in respect of the sentence imposed upon him by Anderson SC DCJ on 23 January 2026 in the District Court at Sydney.

3. The applicant pleaded guilty to five offences committed during the period January to March 2024. I set out below a table of the offences, including the indicative sentences provided by his Honour:

| Sequence | Offence | Maximum penalty | Indicative sentence | | 5 | Enter building/land with intent to commit indictable offence – Crimes Act 1900 (NSW), s 114(1)(d) | 7 years imprisonment | Imprisonment for 7 months | | 6 | Larceny – Crimes Act, s 117 | 5 years imprisonment | Imprisonment for 7 months | | 7 | Enter building/land with intent to commit indictable offence – Crimes Act, s 114(1)(d) | 7 years imprisonment | Imprisonment for 9 months | | 9 | Break, enter and steal – Crimes Act, s 112(1)(a) | 14 years imprisonment | Imprisonment for 14 months | | 10 | Enter building/land with intent to commit indictable offence – Crimes Act, s 114(1)(d) | 7 years imprisonment | Imprisonment for 9 months |

4. On 23 January 2026, the applicant was sentenced to a total term of 2 years and 6 months in prison, with a non-parole period of 18 months. His Honour specified that the sentence was to commence on 9 July 2025 and would expire on 8 January 2028. The non-parole period expires on 8 January 2027.

5. The applicant appeals against his sentence on four grounds, being:

“Ground 1: His Honour failed to consider whether alternatives to full-time imprisonment were available.

Ground 2: His Honour failed to properly consider the institutionalisation of the appellant.

Ground 3: His Honour failed to properly consider the application of an intensive corrections order.

Ground 4: The sentence imposed was manifestly excessive and a different sentence is warranted at law.”

The circumstances of the offending

6. The circumstances of the offending are set out in the sentencing judge’s remarks on sentence.

7. Sequence 7 occurred on 5 January 2024. On that day, the applicant walked through the front door of a chiropractic and health clinic in Maroubra. He took a handbag belonging to the clinic’s owner and left through the back door. The handbag contained $1,000 in cash, car keys, makeup and a Medicare card. The handbag itself was worth $700.

8. Sequences 5 and 6 occurred on the morning of 23 February 2024. On that day, the applicant entered a restaurant in Redfern. After checking the cash register at the rear of the restaurant, the applicant walked to the front of the premises and retrieved a key from the waistband of his pants or shorts that he was wearing at the time. He returned to the register and used the key to unlock it. He stole $100 before locking the register and leaving. Later that day, the owner detected that the money had been stolen.

9. Sequence 10 occurred on 27 February 2024. On that day, the applicant entered a shop in Matraville and took the shop owner’s iPhone 14 which was contained in a clear case. The item was valued at $1,400.

10. Both sequences 7 and 10 had a charge of larceny attached on a Form 1.

11. Sequence 9 occurred on 1 March 2024 at an eyecare shop in Maroubra. On that day at approximately 5:25pm, the applicant opened the front door whilst the owner of the shop was vacuuming after the shop had closed. He walked towards the cash register, opened it and stole $300 in cash.

Remarks on sentence

12. After outlining the charges to which the applicant pleaded guilty, the sentencing judge set out the facts to which I have just referred.

13. His Honour then dealt with the objective seriousness and subjective circumstances. His Honour did not consider that any of the five matters were serious examples of the offences which they represent.

14. His Honour found that the entry into the properties had limited planning, albeit he did not accept that they had no planning at all. His Honour accepted there was some planning because, in respect of sequences 5 and 6, he was wearing a mask or bandana, a hat, and had gloves.

15. His Honour considered that sequence 9 was the most serious of the charges, observing that it also was subject to the highest maximum penalty. Having said that, his Honour accepted that the offending was very low range offending.

16. His Honour did not accept the applicant’s submission that the absence of violence would reduce the seriousness of the offending, observing that, if there had been violence, the applicant may have been charged with separate offences. Despite the general descriptions provided by his Honour, his Honour observed that he was not required to specify a range of seriousness within which the matters fell and he did not do so. His Honour emphasised that he did not regard any of the offending conduct as serious examples of the offences.

17. His Honour accepted that the applicant was on conditional liberty at the time, and that this constituted an aggravating factor.

18. His Honour noted that the applicant did not give evidence on sentence but relied on documentary evidence, and that many of the documents were very old.

19. The applicant and his family immigrated from Fiji to Australia when the applicant was a small child. The applicant became involved in drug use and criminality when he was a teenager, albeit he came from a fairly pro-social family with whom he remained in contact. He left home at a young age due to abuse he suffered at the hands of his family.

20. Since he was a juvenile, the applicant had been in and out of prison, and by 2023, he had spent 17 of the previous 23 years in custody. As his Honour found, the applicant’s life has been characterised by periods of incarceration followed by parole supervision and then re-offending. His Honour noted that the applicant accepted responsibility for the offences and hoped to break that cycle on this occasion.

21. His Honour had regard to the evidence of the applicant’s constant drug use since the age of 13. This has had long term negative impacts upon him.

22. In November 2021, the applicant agreed to participate in an intensive drug and alcohol treatment program but discharged himself from the program after seven months. The applicant felt unable to continue consequent upon grief and loss as a result of the sudden death of his brother. The applicant became eligible to participate in another program in August 2022, but he did not do so. Similarly, in September 2022, he failed to participate in another rehabilitation program. The applicant had, however, completed a number of courses designed to provide him with some employment training while in custody.

23. His Honour was in receipt of a sentencing assessment report dated 19 January 2026, being the day of the applicant’s sentence hearing. At that stage, the applicant was on bail and receiving Centrelink benefits. The report stated that the applicant was living with his mother, albeit there was some inconsistent information about that in the documentation.

24. His Honour also referred to a pre-release report from Community Corrections dated 4 April 2023. In that report it was suggested that the applicant had demonstrated a satisfactory response to his earlier period of imprisonment and that he had demonstrated a desire not to return to gaol. He wished to disconnect from his previous lifestyle.

25. However, it was suggested that the applicant had a medium to high risk of re-offending, which his Honour noted must have been accurate having regard to the offending for which his Honour was sentencing the applicant at the time. Indeed, he was only released from custody on 30 June 2023, and he first re-offended in January 2024.

26. His Honour then referred to a further report from Community Corrections dated 14 March 2024, being a breach of parole report. The report referred to the applicant’s risk factors as being drug use, aggression and violence, underpinned by a lack of protective factors including long term unemployment, antisocial attitudes and untreated mental health concerns.

27. The applicant also relied on three psychiatric and psychological reports. Again, in these reports there was reference to his childhood trauma and drug use. A psychologist, Carlene Ryder, described the applicant’s intellectual functioning as well below average. By the time of the sentence hearing, the report was three years old.

28. His Honour also referred to a report from a psychiatrist, Professor Michael Robertson. Professor Robertson refers to a series of sexual assaults inflicted upon the applicant at juvenile corrections centres. Professor Robertson stated, and his Honour accepted, that the applicant had ongoing flashbacks and anxiety symptoms, hyper-arousal, sleep disturbance, impaired concentration, as well as post-traumatic stress disorder, referrable to these events. Finally, his Honour referred to the report of a psychologist, Clair Baker, dated 16 August 2021, who opined that the applicant had met the diagnostic criteria for severe opioid use disorder and that his offending was closely related to that disorder.

29. His Honour considered that the applicant’s moral culpability was reduced, partly because of his opioid use disorder which was present at the time of the offending and having regard to his deprived and traumatic background. His Honour considered that he was a less appropriate vehicle for general deterrence, and that his time in custody would weigh more heavily upon him.

30. His Honour accepted that no penalty other than imprisonment was appropriate, noting that the applicant did not submit to the contrary. His Honour then noted that the applicant submitted that a custodial sentence of less than three years would be appropriate, and that the court should impose an intensive correction order (“ICO”), particularly having regard to the fact that the applicant had been on bail since release from custody and had not re-offended and was now on the path to rehabilitation.

31. For reasons which I will come to in considering grounds 1 and 3, the sentencing judge did not consider that an ICO was appropriate.

32. His Honour provided indicative sentences and imposed an aggregate sentence. The sentence that his Honour would have imposed was reduced by 25 per cent on account of the applicant’s plea of guilty. His Honour made a finding of special circumstances based on the risk of institutionalisation and what was described as a very strong need for the applicant to have a longer period of parole to assist with his ongoing rehabilitation and reintegration into the community.

Grounds of appeal

33. In his written submissions, the applicant makes submissions in respect of each ground of appeal. The applicant relied on his written submissions on the hearing of the appeal but approached the oral submissions more generally suggesting that there was a fundamental error in the approach of the sentencing judge to the determination of whether a sentence other than full-time imprisonment was warranted, and then whether an ICO was appropriate.

34. Although the applicant accepted that his legal representative on sentence had agreed that the threshold in s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”) had been crossed, (as recorded by the sentencing judge), the applicant submitted that in determining the aggregate sentence the sentencing judge should have firstly provided indicative sentences for each of the offences, in doing so making a separate determination for each of the offences as to whether a sentence other than imprisonment was warranted.

35. The applicant submitted that the sentencing judge had “jumped to the conclusion” that the s 5 threshold had been crossed and that an ICO was not suitable and then worked backwards from an aggregate sentence with the effect that the indicative sentences were “retrofitted to fit” with the aggregate sentence.

36. The thrust of the applicant’s submissions was thus that, if the sentencing judge had firstly considered the indicative sentences and then determined the aggregate sentence, he would have found that the s 5 threshold had not been crossed (even despite the concession on behalf of the applicant), considered whether other penalties were appropriate or gone on to accept that an ICO was appropriate.

37. Whilst I will deal with this submission as it relates to each of the grounds of the appeal, I will consider each of the grounds separately.

Ground 1 – the sentencing judge failed to consider whether alternatives to full-time imprisonment were available

38. It is important to observe that the applicant does not seek to challenge any of the findings of fact made by the sentencing judge or findings as to the objective seriousness of the offending or the subjective features of the applicant’s case. Rather, the appeal is pursued on the basis of those findings.

39. As set out in s 5 of the Sentencing Act, the Court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.

40. The sentencing judge had regard to s 5 in the remarks on sentence. Indeed, his Honour said:

“Having considered all possible alternatives I am satisfied that the threshold at s 5 of the Crimes (Sentencing Procedure) Act has been crossed and that no other penalty other than imprisonment is appropriate. Mr Miller who appeared for [the applicant] did not submit to the contrary. It was submitted however on behalf of [the applicant] that a custodial sentence of less than three years would be appropriate and that the Court should impose an intensive correction order, noting the fact that [the applicant] has been on bail since his release from custody or shortly thereafter and he has not reoffended and is now on a path to rehabilitation.”

41. In my view, it is not always or even generally necessary that a sentencing judge include in the remarks on sentence all the possible alternatives that have been considered and why they may not be appropriate.

42. His Honour said that he had considered all possible alternatives. There is no basis for suggesting that he did not do so or that he did not properly consider all possible alternatives. The obligation to give reasons does not include an obligation to list all possible alternatives and explain why they might not be appropriate. His Honour was not obliged to do so in this sentencing judgment.

43. In any event, it is unsurprising that his Honour did not embark upon the process now suggested by the applicant as the applicant accepted that the s 5 threshold had been crossed.

44. On appeal, the applicant submitted that this concession, made on behalf of the applicant before the sentencing judge, should be seen in the context of the legal representative’s advocacy for an overall non-custodial penalty and that the submission was not properly made in relation to the assessment of the individual offences.

45. The applicant submits that community service orders were available as stand-alone penalties and would have been within the sentencing discretion.

46. Whether or not that is so, the effect of the applicant’s submissions is really that:

47. Although the sentencing judge said he considered all possible alternatives, his Honour must not have; and

48. Even if his Honour had, a different approach to the exercise of the sentencing discretion might have produced a different result, that is, the s 5 threshold was not crossed.

49. I do not accept these submissions. There is no basis for the contention that the sentencing judge did not do that which his Honour said he did. Further, a sentencing judge’s consideration of whether the s 5 threshold is crossed is very much part of the exercise of the sentencing discretion, having regard to the instinctive synthesis of the objective and subjective features of the case.

50. The applicant must establish error in the exercise of that discretion in accordance with House v The King (1936) 55 CLR 499; [1936] HCA 40 (“House v The King”). Suggesting that the sentencing judge could have made other findings does not establish error in the exercise of the sentencing discretion.

51. Further, in circumstances in which the applicant’s legal representative on sentence conceded the point (that is, that the s 5 threshold had been crossed), the applicant would need to establish that the sentencing judge was in error in proceeding on that basis, although again, his Honour did not merely proceed on that basis, as I said, his Honour considered the other possibilities.

52. In my view, the applicant would need to establish that the concession was made through the incompetence of counsel or has otherwise led to a miscarriage of justice: see Hamdan v R [2023] NSWCCA 80 at [40] (Wilson J, with whom Price and Dhanji JJ agreed), citing TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [79] (McHugh J).

53. The applicant makes no such submission.

54. The applicant has not established ground 1.

Ground 2 – his Honour failed to properly consider the institutionalisation of the applicant

53. The applicant submits that he has spent the majority of his adult life in prison. However, the applicant also spent a period of 18 months without offending and during that time was adhering to drug rehabilitation and treatment. On the applicant’s case, the sentencing judge failed to have regard to the tension between his apparent ability to function in custody but the difficulties he faced when being in the community, with those difficulties being untreated in custody for so long.

54. The applicant does not dispute that the sentencing judge expressly referred to the issue of institutionalisation in making a finding of special circumstances, but submits that this risk should have been given further consideration more generally and been given weight in the determination of the indicative and aggregate sentences.

55. Again, this Court is a court which deals with error. It is necessary for the applicant to establish error in circumstances in which sentencing is very much a discretionary exercise. By its very nature, the process of sentencing requires a sentencing judge to consider and give weight to many factors, some of which the judge might place particular importance on and some of which the judge might consider to be of little weight.

56. When it is apparent from a sentencing judge’s remarks on sentence, as it is in this case, that the sentencing judge has had regard to the relevant factors, this Court will be disinclined to interfere merely because it is asserted that the sentencing judge might have given more weight to a particular factor or considered that factor in another context. As Yehia J (with whom Bell CJ and Garling J agreed) said in TH v R [2025] NSWCCA 121 at [72]:

“A ground of appeal against sentence which asserts that too much or too little weight has been given to a particular feature does not raise a complaint of error of the kind described in House v The King (1936) 55 CLR 499; [1936] HCA 40 (‘House v The King’). It is well-established that merely claiming that insufficient weight, or excessive weight, was given to one factor is an unpromising basis for establishing House v The King error: R v White [2025] NSWCCA 111 at [30]-[32], [88]-[89] (Bell CJ, Payne JA and N Adams J agreeing); Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419; [2019] NSWCA 61 at [16] (Bathurst CJ and Leeming JA agreeing with Bell P); R v Baker [2000] NSWCCA 85 at [11] (Spigelman CJ, Grove and Hidden JJ agreeing); Vaiusu v R [2017] NSWCCA 71 at [29] (R A Hulme J, Bathurst CJ and Beech-Jones J agreeing). Matters of weight are very much in the province of the sentencing judge.”

57. Further, the discretion which the law gives to sentencing judges is a wide one and is essential to the administration of the criminal justice system: see R v White [2025] NSWCCA 111 at [23] (Bell CJ, with whom Payne JA and N Adams J agreed), citing Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31 and Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]. See also R v Jurisic (1998) 45 NSWLR 209 at 221 (Spigelman CJ); (1998) 101 A Crim R 259.

58. It is apparent from the remarks on sentence that his Honour was aware of the risk of institutionalisation as his Honour described it as “the very real risk of institutionalisation”. Plainly, his Honour had regard to it as an important factor, as he reduced the statutory ratio in a significant way on the basis of that risk. In other words, his Honour determined that the risk should be factored into the sentence by affording the applicant a much lengthier period on parole than otherwise would have been the case.

59. The only submission made about the risks of institutionalisation before the sentencing judge was at par (13) of the applicant’s written submissions, as follows:

“[The applicant] has a long criminal history for this kind of offending. He has spent over 21 years in gaol since he turned 18. There is a risk of [institutionalisation].”

60. The issue was not further addressed by the applicant’s legal representative at the sentence hearing in oral submissions.

61. Plainly, his Honour considered the submission, and the risk, and dealt with it.

62. Contrary to the applicant’s contention, I would not infer that his Honour failed to consider it. His Honour mentioned it and gave it some importance as he considered appropriate in the exercise of his discretion.

63. The applicant has not established ground 2.

Ground 3 – his Honour failed to properly consider the application of an intensive correction order

64. This ground is pursued in circumstances in which:

65. The issue was addressed in the applicant’s written submissions on sentence; and

66. The issue was addressed by both parties in oral submissions before the sentencing judge and was the focus of the oral exchanges between the legal representatives and the bench.

67. The sentencing judge said, “it looks to me as if the real issue is does he go inside or should he get an ICO”.

68. The legal representative for the applicant on sentence immediately addressed the issue, including stating, “I agree as Mr Cooper’s outlined the question mark is solely how is this to be served. It’s clearly crossed the threshold”.

69. The issue was covered in oral submissions before his Honour in some detail. Further, the Crown Prosecutor also dealt with the issue in some detail, responding to his Honour’s initial question by suggesting that an ICO would not adequately punish the applicant in all the circumstances.

70. The matter was then dealt with by his Honour in the remarks on sentence, with reference being made to the paramount consideration of community safety and other considerations set out in s 3A of the Sentencing Act. His Honour said:

“Notwithstanding that it is a forward-looking assessment and the power of submissions made on [the applicant’s] behalf by Mr Miller, I do not accept that an ICO would be appropriate. It would not ensure that [the applicant] is adequately punished for the offence, noting that to date he has actually spent no time in custody for these offences. Whilst an ICO is a custodial sentence, it clearly is more lenient than actual time in custody. It is very important to protect the community from [the applicant] given his significant record. It is important to promote the rehabilitation of [the applicant], to make him accountable for his actions, and denounce his conduct. An ICO in my view would not achieve these goals.”

69. The applicant submits that his Honour’s approach was similar to the problems identified in Khanat v R (Cth) [2024] NSWCCA 41; (2024) 314 A Crim R 244 and demonstrate error. It is suggested that his Honour did not consider the question of community safety except by indicating that he had no confidence in the applicant and that general and specific deterrence had the primary role in the sentencing exercise.

70. The applicant made the following submissions on appeal:

“KLUSS:

… In terms of ground 3, this is the issue of the intensive correction order which was in terms of the aggregate sentence something that was addressed by both counsel for the applicant and the Crown. Ultimately the submissions of the Crown were that an intensive correction order would not meet the needs of general and specific deterrence and would not provide a punishment, and that that was both in the proceedings and ultimately in the sentence it was adopted a submission that was indeed engaged by his Honour.

We submit that the principles of Stanley with somebody of limited intellect, mental health issues, and indeed a demonstration of some engagement with a specialist organisation such as the Langton clinic that the community safety would ultimately be far better dealt with in terms of this man being given the assistance of working in the community where the challenges are as opposed to dealing with those other requirements of the sentencing exercise being the issue of a punitive result and one which affords a greater emphasis on general and specific deterrence.

CAVANAGH J: You’re not suggesting that his Honour failed to have any regard to any particular consideration or approach it in the wrong way, but your submission is really that the conclusion he came to was wrong?

KLUSS: Yes. …”

71. It is clear from the response of counsel for the applicant to the question raised (as noted above) that the applicant does not submit in relation to ground 3 that his Honour failed to have regard to any relevant consideration or approached the issue of whether to impose a term of imprisonment by way of an ICO in the wrong way. Rather, the basis of ground 3 is merely that his Honour’s conclusion was wrong.

72. This might have been the only submission that could have been made under ground 3, because it is apparent from his Honour’s remarks on sentence that:

73. His Honour was aware of the paramount consideration of community safety;

74. His Honour stated it was very important to protect the community from the applicant given his significant record; and

75. His Honour also had regard to the other purposes of sentencing before concluding that an ICO was not appropriate.

76. Of course, a different view might have been taken and that was urged upon his Honour by the applicant, but that of itself does not demonstrate error.

77. The oral submission made on behalf of the applicant is inconsistent with the ground of appeal. The ground is that the sentencing judge failed to properly consider the application of an ICO. The applicant did not point to any particular matter which his Honour failed to consider, but rather merely submitted that his Honour should have come to a different conclusion.

78. As I have already indicated, the applicant must establish error in accordance with House v The King. The correctness standard of appellate review does not apply to this ground. A suggestion that the finding was wrong, in the sense that his Honour should have come to a different finding, without an examination of whether his Honour erred in law or failed to consider evidence, or had regard to impermissible matters, could only be successful if this Court was applying the correctness standard. We are not considering the grounds raised on the basis of the correctness standard. That is because all of the matters raised necessarily involve an assessment by the sentencing judge of a range of options and the exercise of a discretion.

79. I should also mention at this point that, in my view, there is no basis for the general submission on behalf of the applicant on commencement of submissions to the effect that the sentencing judge had in some way retrofitted the sentence. That is, that his Honour incorrectly started with the sentence his Honour wanted to impose and worked backwards from there.

80. I asked Ms Kluss whether there was any particular part of the judgment which would support that proposition. Ms Kluss responded:

“No. Because there is nothing that indicates directly that that has happened, it’s an inference that I would say is available from the remarks that are made …”

78. I would not infer that a sentencing judge has so significantly departed from the proper processes of sentencing an offender without some direct basis for doing so. The suggestion that his Honour did so is without merit.

79. Ground 3 also fails.

Ground 4 – Manifest excess

80. The applicant submits that the sentence imposed of 2 years and 6 months with a non-parole period of 18 months sits at the very high level, given the utilitarian discount applied to the indicative sentences. The applicant refers generally to the low-level nature of the offending and the applicant’s subjective case, as well as the need for the applicant to remain in the community and engage in rehabilitation.

81. Manifest excess is a conclusion. It does not depend upon identification of any specific error: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] (Gleeson CJ and Hayne J). In Kirby v R [2021] NSWCCA 162, Beech-Jones J (with whom Harrison J and I agreed) observed at [45]:

“In the case of an appeal from an aggregate sentence, the indicative sentences are not appellable in their own right but they can be a guide to whether error is established in relation to the aggregate sentence (JM v R [2014] NSWCCA 297 at [40] per RA Hulme J with whom Hoeben CJ at CL and Adamson J agreed and cases cited thereat; ‘JM’) although, even if an indicative sentence is considered excessive, that is not determinative (PD v R [2012] NSWCCA 242 at [44], [82]; BJS v R [2013] NSWCCA 123 at [252]-[254]). The ultimate question will be ‘whether [or not] the aggregate sentence reflects the totality of the criminality involved’ (JM at [40]).”

82. Relevantly, an applicant who seeks to challenge a sentence on the grounds 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”: He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 at [42] (Bell P, with whom Gleeson and McCallum JJA agreed), citing R v Elemes [2000] NSWCCA 235 at [22]-[23].

83. This ground was only addressed briefly in oral submissions and really only on the same general basis, that is, that this was low-level offending and that the applicant should have been given an opportunity to continue his progress in rehabilitation rather than being sent back to prison.

84. That submission was similar to what was said in respect of grounds 1 and 3 to the effect that his Honour should not have been satisfied that the s 5 threshold was crossed and that in any event his Honour should have ordered that the applicant serve his sentence by way of an ICO.

85. I have dealt with these matters when dealing with the specific alleged errors. It could be said, as the applicant does, that a different sentence might have been imposed, but that is not the point and that does not lead to either to a finding of specific error (grounds 1-3) or a conclusion that the sentence is plainly unjust (ground 4).

86. I am not satisfied that the sentence is plainly unjust.

87. In those circumstances, ground 4 also fails.

Orders

88. Therefore, the orders I propose are:

(1) Leave to appeal is granted.

(2) The appeal is dismissed.

89. RIGG J: I agree with Cavanagh J.

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