Wonnocott v R

Decision: (1) Grant leave to appeal against sentence.
(2) Dismiss the appeal.

Catchwords: CRIME – appeal against sentence – use carriage service to threaten to kill a person with the intention that the person would fear the threat would be carried out – use carriage service in a way that reasonable persons would regard as being in all the circumstances menacing and/or offensive – whether primary judge erred in determining suitability of an ICO – whether primary judge erred by failing to consider a Recognizance Release Order – effect of mental health on offending – degree of notional accumulation – sentence not manifestly excessive – appeal dismissed

Legislation Cited: Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Code (Cth)

Cases Cited: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Director of Public Prosecutions (DPP) (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Vamadevan v R (2024) 116 NSWLR 195; [2024] NSWCCA 223

Category: Principal judgment

Parties: David Wonnocott (Applicant)
Rex (Respondent)

Representation: Counsel:
A Bow (Applicant)
R Ranken SC with G Westgarth (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2021/147429
2023/126003

Publication restriction: No

HEADNOTE

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

David Wonnocott (the applicant) sought leave to appeal his aggregate sentence for two offences contrary to ss 474.15(1) and 474.17(1) of the Criminal Code (Cth). The first offence, using a carriage service to make to a person a threat to kill that person with the intention that the person would fear the threat would be carried out, was committed on 11 April 2022. The second offence, using a carriage service in a way that reasonable persons would regard as being in all the circumstances menacing and/or offensive, was a rolled up charge concerning 45 social media messages between 27 July 2022 and 21 February 2023. Following pleas of guilty the applicant was sentenced in the District Court to an aggregate term of 3 years and 2 months imprisonment with a non-parole period of 1 year and 4 months.

The applicant sought leave to appeal against his sentence on five grounds: first, that the primary judge erred in his assessment of whether the sentence should be served by way of an Intensive Correction Order (ICO); secondly, that the primary judge erred by failing to consider the availability of a Recognizance Release Order (RRO) pursuant to s 20(1)(b)(i) of the Crimes Act 1914 (Cth) (Crimes Act) with the applicant to be released after serving a specified period of imprisonment; thirdly, that the primary judge erred in his consideration of the applicant’s mental health both at the time of the offending and at the time of sentencing and/or failed to give adequate reasons in that regard; fourthly, that the primary judge erred in determining the degree of accumulation of the indicative sentences in setting the head aggregate sentence and, fifthly, that the sentence imposed on the applicant was manifestly excessive.

The Court (Ward P, Price AJA and Fagan J) held, granting leave to appeal against sentence, but dismissing the appeal:

(1) The sentencing judge departed from the correct sequence by considering the suitability of an ICO before determining the length of the appropriate aggregate sentence. However, this only resulted in a redundant evaluation of suitability. When the judge subsequently determined that a sentence of 3 years and 2 months was called for, the redundant evaluation had no consequence and did not cause the exercise of the sentencing discretion to miscarry: at [27]

Vamadevan v R (2024) 116 NSWLR 195; [2024] NSWCCA 223.

(2) As the sentence exceeded 3 years, the sentencing judge was required to fix a single non-parole period pursuant to s 19AB of the Crimes Act. Section 20(1)(b) of the Crimes Act, providing for Recognizance Release Orders, was therefore not applicable: at [29]-[30].

(3) It was open to the sentencing judge to have found that the applicant’s depressive symptoms had a very limited connection with the offending and to make only small adjustments in the weight to be given to general deterrence and moral culpability, without purporting to quantify those adjustments: at [36].

(4) The sentencing judge correctly identified the distinct offending conduct that was involved in the two counts, respectively. By reference to that consideration, the degree of notional accumulation fell within the range of sentencing discretion: at [41].

(5) Taking all sentencing considerations into account, the aggregate sentence imposed was not manifestly excessive: at [42].

JUDGMENT

1. THE COURT: The applicant seeks leave to appeal against an aggregate sentence imposed by Pickering SC DCJ on 19 February 2025. The two charges to which he pleaded guilty were as follows, with the maximum penalties and the indicative sentences nominated by his Honour as shown:

1 On 11 April 2022 use a carriage service to make to a person a threat to kill that person with the intention that the person would fear the threat would be carried out, contrary to s 474.15(1) of the Criminal Code (Cth). Maximum 10 years imprisonment; indicative sentence 1 year and 10 months imprisonment.

2 Between 27 July 2022 and 21 February 2023 use a carriage service in a way that reasonable persons would regard as being in all the circumstances menacing and/or offensive, contrary to s 474.17(1) of the Criminal Code. Maximum 5 years imprisonment; indicative sentence 1 year and 6 months imprisonment.

2. In both indicative sentences a discount of 25% was allowed for the applicant’s plea of guilty at the first opportunity. The aggregate sentence was imprisonment for 3 years and 2 months with a non-parole period of 1 year and 4 months. The sentence commenced on 19 February 2025. The applicant will be eligible for release to parole on 18 June 2026 and the head sentence will expire on 18 April 2028.

3. At the same time, the applicant was sentenced to a wholly concurrent fixed term of 9 months for breach of a recognizance that had been imposed for an earlier contravention of s 474.17(1) of the Criminal Code, committed on 1 May 2021. He had initially been sentenced in the Local Court for that matter on 15 October 2021. On a severity appeal to the District Court the recognizance was imposed on 26 April 2022. A condition of the recognizance was that the appellant would not, for 12 months, commit any further offence against s 474.17(1). Breach was constituted by the commission of count 2. The 9 months fixed term imposed by Pickering SC DCJ is not the subject of the application for leave to appeal.

4. The grounds of appeal, so far as they were pressed at the hearing of the application, are as follows:

1. The primary judge erred in his assessment of whether the sentence should be served by way of an Intensive Correction Order.

2. The primary judge erred by failing to consider the availability of a Recognizance Release Order (RRO) pursuant to s 20(1)(b)(i) of the Crimes Act 1914 (Cth) with the applicant to be released after serving a specified period of imprisonment.

3. The primary judge erred in his consideration of the applicant’s mental health both at the time of the offending and at the time of sentencing; and/or failed to give adequate reasons in that regard.

4. The primary judge erred in determining the degree of accumulation of the indicative sentences in setting the head aggregate sentence.

6. The sentence imposed on the applicant was manifestly excessive.

Facts of the offending

5. The agreed facts of count 1 were that in April 2022 Mr David Sharaz was the partner of Ms Brittany Higgins, who was widely known to have alleged that she was sexually assaulted by Mr Bruce Lehrman at Parliament House, Canberra in early 2019. Mr Sharaz had a public Instagram page. On about 11 April 2022 the applicant sent a private message to Mr Sharaz on his Instagram account, followed by further messages as Mr Sharaz responded. The exchange was as follows:

Applicant: She’s a useless lying cunt who wasn’t raped.

Sharaz: Aren’t you charming? You know I don’t believe you, so why send this crap? Clearly a bot account as well. Just so pathetic. Haha.

Applicant: Because I know the truth, cunt. I’m going to pay you a visit.

Sharaz: Pay me a visit?

Applicant: See you soon.

Sharaz: And do what?

Applicant: You see [emoji of a skull and cross bones, emoji of a coffin] I’ll bury you both.

Sharaz: Seems threatening.

Applicant: I will kill you both when you least expect it.

Sharaz: Do you know where I am?

Applicant: Yes.

Sharaz: ?

Applicant: I’m going to chop Kingston up into little pieces. I will follow you home from work and destroy you all. Bye for now [love heart emoji].

Kingston was Mr Sharaz and Ms Higgins’ pet dog. Mr Sharaz had posted photographs of the dog on his Instagram page.

6. Mr Sharaz and Ms Higgins reported the threats to police, providing screenshots of the messages. They took police advice regarding their personal safety and installed security cameras and alarms at their home. Mr Sharaz reported the threats to his workplace so that precautions could be taken.

7. Count 2 was a rolled up charge concerning messages sent or posted by the applicant to various people and businesses, on social media, on 45 separate occasions. He used three accounts, on Instagram and Facebook platforms. Examples of the messages, sent to various online participants are as follows:

Do you guys know anyone I can join who can supply me with guns to kill some of these fucking tranny cunts? (27 July 2022)

If I had a gun I’ll be killing so many trannies it’s not funny. […] Fucking social media run by the leftist LGBTQ ideological propaganda machine, all a bunch of cunts who need to be executed. (20 December 2022)

We will find and kill you … You will burn in hell for eternity [fire emojis] you piece of shit. (31 December 2022)

gays are to be put to death and they shall burn in hell for eternity (8 January 2023)

I’m going to find you and cut your fucking head off you piece of shit (13 January 2023)

Do the world a favour and kill yourself cunt (sent to approximately eight recipients on 19-20 February 2023)

Fucking faggots need a bullet to the head (20 February 2023)

8. On about 21 February 2023, Mr Alex Greenwich MP, who is referred to in the statement of agreed facts on sentence as “an openly gay man, and a political advocate for homosexual rights”, received six messages in the space of two minutes on his Instagram page from the applicant:

Me and my mates want to take you for a walk at North Head

Please get Mpox or full blown AIDS

Enjoy hell, you muppets

You will be sorry [sad face emoji], very sorry [sad face emoji].

Abomination against God

Mpox to get you all

9. The applicant was arrested on 25 February 2023 and charged in relation to the messages sent to Mr Greenwich. On 19 April 2023 he was again arrested and this time charged with the additional offending described above. The applicant was on bail until sentence was passed by Pickering SC DCJ.

Subjective circumstances

Personal background

10. The applicant was 48 years old at the date of these offences and 51 when sentence was passed. The learned sentencing judge accepted the history of his personal background provided in reports of Ms Sarah Campbell, psychologist and Dr Kristy MacDonald, forensic psychiatrist. He reported having been sexually abused by two adult male relatives at the age of about 4 or 5 years. He was shy and socially isolated in childhood. He sought, but was unable to attain, acceptance by peers. After leaving school the applicant acquired only limited skills. He commenced but did not complete an apprenticeship.

11. At the age of about 20 years, in approximately 1994, the applicant was accused of sexual assault of a female, which he denied and for which he was not charged. The applicant did not form any lasting relationship with a member of the opposite sex. He was living with his elderly parents at the time of the offences.

12. The applicant drank alcohol to excess, on binges, for most of his adult life. While the applicant was employed by Woolworths in a warehouse position, in about 2014 at the age of 40, he got into significant and persistent interpersonal conflict with managers and other employees. He appears to have reacted to this conflict with paranoid suspicions and increased abuse of alcohol. In the context of that period of personal stress, memories of his abuse in childhood resurfaced and exacerbated his depressed mood, sleeping difficulty, poor self-esteem, feelings of helplessness and long-standing tendencies to anger and irritability. The applicant became unemployed in 2015, apparently as a result of the workplace conflict, and he remained without work until about nine weeks before he was sentenced.

13. The applicant was admitted to the Central Coast Mental Health Unit in 2014 and 2015, with symptoms of stress, depression, anxiety and paranoia in the context of alcohol abuse. Discharge notes from 19 November 2015 record that he experienced a brief and transient psychosis, that was either organic or secondary to alcohol abuse. Thereafter he saw three counsellors or psychologists intermittently over the next six years up to 2021. At times he was treated with anti-depressant medication for periods of a few weeks.

14. The applicant described to Ms Campbell his rigid opposition to liberal social acceptance of homosexuality and transsexuals. He asserted to her that he would never follow through with the threats that he posted on social media and he denied any history of physical violence, which is consistent with his criminal record. He told the psychologist that he is typically “more passive in his face-to-face interactions”, compared to his online posts.

Professional assessments of mental state

15. Dr MacDonald diagnosed the applicant with a persistent depressive disorder, which was in early remission by the date of her report, being 22 December 2024. She found that his alcohol use disorder was in sustained remission. He ceased drinking to excess from 2016 and he has abstained altogether since December 2023. Dr MacDonald identified long-term personality traits of rigidity, inflexibility and a sense of persecution by others.

Prior offending

16. The applicant’s criminal record showed offences of stalking and intimidating from August 2017, April 2018 and April 2019. The last mentioned instance, at least, involved use of a carriage service. He was convicted of a further offence of menacing, harassing or offending by use of carriage service, committed in March 2019. As the learned sentencing judge noted, the Local Court dealt with the applicant’s repeat offending of this nature in each of those instances with restraint, by imposing bonds, aggregate Intensive Correction Orders and Community Correction Orders.

17. In the Local Court, his further offence of using a carriage service on 1 May 2021 was initially dealt with by way of 9 months imprisonment, to be released after 3 months on recognizance. The offence was constituted by posting a highly offensive message supportive of the massacre of Islamic worshippers at a New Zealand mosque. Pickering SC DCJ observed that the Local Court had, up to that point, attempted to deal with the applicant’s repeat offending in a way that would enhance rehabilitation and that that object had apparently not been achieved. His Honour noted that, while the applicant’s appeal from the Local Court sentence was pending and less than two weeks before the appeal was heard (on 26 April 2022), the applicant committed the offence in count 1 of posting threatening messages to Mr Sharaz. The District Court judge who heard the appeal allowed it, reducing the penalty to a recognizance for the full 9 months, unaware of the applicant’s further offending in the meantime.

Acceptance of responsibility, remorse, prospects of rehabilitation

18. The applicant did not give evidence in the sentence proceedings. A Sentence Assessment report recorded that he “did not appear to minimise his offending”; he agreed that his actions had caused fear to others and that he should have acted differently and respected others’ views; he acknowledged his anger “as an issue in the past” and he stated that he was engaged in mental health treatment. The author of the report confirmed that professional psychological intervention was underway and accepted that the applicant “has made sound progress in managing his mental health”.

19. On the basis of that report the learned judge accepted “that there is a degree of remorse and insight into [the applicant’s] offending in relation to this matter”. Based upon the entrenchment of the applicant’s views, particularly about the gay community, his Honour expressed “concerns generally about whether [the applicant] would reoffend in the future, and just quite what the extent of [his] remorse is”. However, his Honour made the following favourable findings:

He must also, as I said, get significant credit for actually making some efforts to really move forward since his arrest in this matter. After he made full admissions and he pleaded guilty, he has clearly attended a number of sessions with psychologists and he has taken his medication, he has gained employment education and this is the most positive aspect of where he has moved forward in this matter and the risk that imprisonment does to his rehabilitation is one of concern. But he must get significant aspects of support in that respect.

Ground 1 – error in determining suitability of an ICO

20. The power of the District Court to order that a sentence of imprisonment be served in the community under an ICO arises under the following sections of the Crimes (Sentencing Procedure) Act 1999 (NSW):

5 Penalties of imprisonment

(1) A 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.

7 Intensive correction orders

(1) A court that has sentenced an offender to imprisonment in respect of 1 or more offences may make an intensive correction order directing that the sentence or sentences be served by way of intensive correction in the community.

(2) If the court makes an intensive correction order directing that a sentence of imprisonment be served by way of intensive correction in the community, the court is not to set a non-parole period for the sentence.

(3) This section does not apply to an offender who is under the age of 18 years.

(4) This section is subject to the provisions of Part 5.

21. Section 20AB of the Crimes Act 1914 (Cth) permits the District Court of New South Wales to make an ICO in respect of a person convicted before it of a federal offence, in circumstances where, under the law of this State, the District Court “is empowered to […] make such an order, in respect of a State [..] offender” in a corresponding case. The way in which the ICO provisions of the Crimes (Sentencing Procedure) Act are to be applied in sentencing for federal offences is explained in Vamadevan v R (2024) 116 NSWLR 195; [2024] NSWCCA 223. Two important sections of the Crimes (Sentencing Procedure) Act that are discussed in that decision are ss 66 and 68, as follows:

66 Community safety and other considerations

(1) Community safety must be the paramount consideration when the sentencing court is deciding whether to make an intensive correction order in relation to an offender.

(2) When considering community safety, the sentencing court is to assess whether making the order or serving the sentence by way of full-time detention is more likely to address the offender’s risk of reoffending.

(3) When deciding whether to make an intensive correction order, the sentencing court must also consider the provisions of section 3A (Purposes of sentencing) and any relevant common law sentencing principles, and may consider any other matters that the court thinks relevant.

68 Intensive correction orders not available where imprisonment exceeds limits

(1) An intensive correction order must not be made in respect of a single offence if the duration of the term of imprisonment imposed for the offence exceeds 2 years.

(2) An intensive correction order may be made in respect of an aggregate sentence of imprisonment. However, the order must not be made if the duration of the term of the aggregate sentence exceeds 3 years.

(3) Two or more intensive correction orders may be made in respect of each of 2 or more offences. However, the orders must not be made if—

(a) the duration of the term of any individual term of imprisonment exceeds 2 years, and

(b) the duration of the term of imprisonment imposed for all the offences exceeds 3 years.

22. In Vamadevan v R a bench of five judges of this Court held as follows;

[9] The correct construction of s 66 of the NSW Sentencing Act in the context of imposing an intensive correction order on a person guilty of an offence against NSW law was settled by the High Court in Stanley v Director of Public Prosecutions (NSW) (2023) 296 ALJR 107; [2023] HCA 3. The majority in Stanley explained at [59] that there are three steps to be undertaken by a sentencing court prior to the final order by which a sentence of imprisonment is imposed under the NSW Sentencing Act:

(1) First, “a determination that the threshold in s 5(1) … is met”. That is, a determination that no sentence other than a sentence of imprisonment is available;

(2) Secondly, a “determination of the appropriate term of the sentence of imprisonment”; and

(3) Thirdly, “where the issue arises, consideration of whether or not to make an ICO”.

[10] The use of the phrase “where the issue arises” is instructive. As the majority in Stanley again noted at [62], “[t]he possibility of an ICO does not arise unless and until the sentencing court has first determined that no penalty other than imprisonment is appropriate and has sentenced an offender to imprisonment” (emphasis added). Only once the first two steps have been taken can the court consider the application of the disentitling provisions contained in the NSW Sentencing Act relating to intensive correction orders. These are identified in the following paragraph. If those disentitling provisions do not apply; i.e. where after the taking of the first and second step “the issue arises”, the third step, consideration of whether or not to make an intensive correction order, can be taken.

[11] The first stage in making an intensive correction order requires a court, having considered all possible alternatives, to conclude that imposition of a sentence of imprisonment is appropriate: s 5(1). There are several other limitations on the availability of this power in the NSW Sentencing Act (which we have earlier described as disentitling provisions):

(1) s 68(2) – the appropriate term of the sentence of imprisonment be no more than three years. This can necessarily only be determined after the second stage has been conducted;

(2) s 4B – an intensive correction order not an available order for a domestic violence offender. A domestic violence offence has the same meaning as that given in s 11 Crimes (Domestic and Personal Violence) Act 2007 (NSW);

(3) s 7(3) – an intensive correction order not available to offender under 18 years old;

(4) s 17D(1)-(1A) – an intensive correction order not available unless an assessment report has been obtained or the court is satisfied there is sufficient information to make the order without an assessment report; and

(5) s 67 – an intensive correction order not an available order in respect of a large number of Crimes Act and Criminal Code offences1.

[12] Once the first and second steps have been taken and it has been determined that the disentitling provisions are not engaged, a court sentencing a person for an offence under NSW law will come under a duty to consider making an intensive correction order: Stanley at [65]. The majority in Stanley emphasised that once the power to make an intensive correction order is enlivened, the sentencing court must address the requirements in the NSW Sentencing Act relevant to the imposition of such an order: Stanley at [66].

23. At pp 23-26 of the learned judge’s remarks on sentence his Honour stated his conclusions on the factors specified in s 16A of the Crimes Act, to which he was required to have regard by force of subs (2) of that section. Immediately following his evaluation of those matters, his Honour said this:

It’s to be acknowledged here that it is difficult to see in all of the circumstances how the threshold of a custodial sentence is not inevitably crossed in this matter. After all the opportunities previously given, and with the seriousness of the offences before the Court, it’s inevitable that there has to be a threshold crossed in this matter. The question then of how potentially the matter could be dealt with. Of course, there has been a change in the assessment of Intensive Corrections Orders for Commonwealth matters. It is simply a question of considering all of those matters in s 16A of the Act, in the determination of whether an intensive corrections order is appropriate.

It is difficult to see why an Intensive Corrections Order is appropriate here. I would not even be satisfied he would comply with the conditions that I would impose. But also, in my view, it does not reflect the purposes of sentencing in this particular exercise.

24. After some further consideration of sentencing factors at pp 26-27, his Honour expressed the following conclusions:

I am satisfied that the only sentence is one of full time custody and I will now announce the sentence. I am now going to announce the sentence for the individual matters that I have to sentence first, to explain why I ended up taking the approach that I have done. I am going to sentence by way of an aggregate sentence, I will indicate the indicative sentences first.

His Honour nominated the indicative sentences and proceeded as follows:

I am of the view that with significant accumulation the appropriate head sentence is one of 3 years and 2 months. However, I have decided to impose a non-parole period of 1 year and 4 months.

25. In support of ground 1 the applicant made the following submission in writing:

38. The primary judge was required to determine the appropriate aggregate sentence after which [he] should have then assessed whether the disentitling provisions for an ICO were applicable. If not, his Honour was then required to consider whether the term of imprisonment is to be served as an ICO.

39. Instead, his Honour rejected the appropriateness of an ICO before setting the aggregate head sentence after expressing intolerance of the applicant’s previous breaches of court orders.

26. Those paragraphs were followed by criticism of the basis upon which the learned judge decided that an ICO would be unsuitable. The submissions on ground 1 concluded in the following terms:

44. Finally, his Honour, after determining that an ICO is not appropriate, reinforces that finding by then pronouncing an aggregate sentence that only very slightly exceeds the threshold for an ICO or [Recognizance Release Order pursuant to s 20(1)(b)(i) of the Crimes Act].

27. Undoubtedly, the learned judge departed from the correct sequence of reasoning towards whether the sentence he was to fix should be served in the community under an ICO. The correct sequence, as dictated by the Crimes (Sentencing Procedure) Act and as explained in Vamadevan v R, would have been to determine the appropriate length of the aggregate sentence first. If he had done that, his determination that the aggregate sentence should be for a term longer than 3 years would have immediately engaged the “disentitling provision” in s 68(2) so that an order for the applicant to serve the sentence in the community under an ICO was simply not available. No consideration of the suitability of an ICO would have been necessary. As a result of departing from the correct sequence, his Honour undertook a redundant evaluation of the considerations relevant to ordering an ICO. That part of his Honour’s remarks is surplusage, to be disregarded. It had no consequence. It did not cause the exercise of the sentencing discretion to miscarry and it does not justify intervention by this Court.

28. Ground 1 is not sustainable.

Ground 2 – error in failing to consider a Recognizance Release Order

29. Section 20(1)(b) of the Crimes Act permits, in certain cases, that a court dealing with a person convicted of a federal offence may sentence the person to imprisonment but order that he or she be released upon entering into a recognizance to be of good behaviour. Section 19AC provides that where a sentence, or multiple sentences imposed at the same sitting, do not exceed 3 years, the court must make a single recognizance release order in respect of the sentence or sentences unless one of the exceptions provided for in subs (4) applies. Typically, sentence is passed and an order is made for release on recognizance either immediately or after some part of the sentence has been served in full-time custody. Section 19AB provides that where a sentence, or the aggregate of multiple sentences passed at the same sitting, exceeds 3 years, the court must fix a single non-parole period – subject to the exceptions provided for in subs (3) of s 19AB.

30. As the learned judge passed an aggregate sentence of 3 years and 2 months for the two federal offences in counts 1 and 2, s 19AB of the Crimes Act was engaged. His Honour was required to fix a non-parole period and s 20(1)(b) concerning recognizance release orders was not applicable. There is no substance to the applicant’s complaint in ground 2.

Ground 3 – error in consideration of applicant’s mental health

31. Doctor MacDonald expressed the following opinion:

His depressive symptoms, long-standing anger and preoccupation around wrongful accusations of sexual assault, appear to have distorted his ability to rationalise his decisions. These have impacted on his ability to understand the consequences of his actions and resulted in a defect in his reasoning. In my opinion this offending occurred as a direct nexus to his impaired mental state.

32. The applicant’s proposed ground 3 is based upon the following passage of the learned judge’s sentencing remarks:

The mental condition is perhaps the hardest one to determine here. In some respects it is difficult to see, even though there may have been judgment issues with his depression, why there is a significant link with his underlying mental health issues and this offending, although I accept that there is some link. In that respect there must be, to a small degree, a reduction of the aspect of general deterrence for what otherwise are significant moral culpability offences, some small reduction in moral culpability as well.

33. The applicant’s argument is encapsulated in the following paragraph of his written submissions:

[66] The primary judge did not elucidate how that small reduction was manifested in the aggregate sentences which were later imposed. His Honour also did not set out his consideration of some of the matters listed in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]; and on the occasions in which he did they appear to be treated with a degree of lip service […]

34. The above submission is followed by purported examples, taken from the remarks on sentence, of the learned judge allegedly paying mere “lip service” to the principles in Director of Public Prosecutions (DPP) (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194. We do not accept that characterisation of his Honour’s consideration of the mental health issue. It is not necessary to reproduce the passages to which the applicant refers.

35. Doctor MacDonald’s statement that the applicant’s “offending occurred as a direct nexus to his impaired mental state” was made in the context of her survey of the applicant’s long-standing issues of anger, irritability, alcoholism and anxiety. Those were features of his conduct and habits of life, not symptoms of mental illness. Doctor MacDonald’s reference to “impaired mental state” was not confined to the persistent depressive disorder that she diagnosed. It was open to the learned judge to conclude that the applicant’s diagnosed disorder, of itself, made a very limited contribution to his commission of the offences, which his Honour expressed by reference to no more than “some link” warranting “to a small degree, a reduction of the aspect of general deterrence [… and] some small reduction in moral culpability as well”.

36. In the Court’s view, no fault can be found with that reasoning. His Honour was not required to quantify the degree of allowance that he would make for a reduced requirement of general deterrence or reduced moral culpability. On his Honour’s findings it was appropriate to make only a limited adjustment to the degree of weight to be given to those sentencing factors. The real contribution to the offending conduct from any diagnosable mental disorder was difficult to disentangle from the applicant’s choice, over a significant period of time, to indulge his resentments, hostilities and bigotry by venting on social media, rather than reflecting upon the impact on others and exercising self-control, with the assistance of counselling as necessary.

37. No error has been identified in ground 3.

Ground 4 – error in the degree of notional accumulation

38. Ground 4 is directed to the following passage, towards the end of his Honour’s remarks on sentence, after the indicative sentences had been nominated:

There must be significant accumulation, they are completely different offences aimed at a completely different victim and actually capturing completely different form of criminality.

39. The sum of the two indicative sentences would have been 3 years and 4 months. The aggregate imposed, of 3 years and 2 months, involved concurrence of only 2 months. His Honour’s non-parole period of 1 year and 4 months was only 42% of the full term, which ameliorated the severity of the sentence overall.

40. The applicant complains that, contrary to his Honour’s remarks, the conduct involved in the two offences was not “completely different” and that the learned judge should have had regard to whether they “captured different forms of criminality”. We do not detect error in this respect. On a fair reading, the sentencing judge was noting that in count 1 the very personal, targeted death threat to Mr Sharaz and Ms Higgins, pressed through a series of posted messages to them alone, was offending of a different character from the generalised spray of bigotry that he issued to a public figure, Mr Greenwich MP, and otherwise to all and sundry.

41. His Honour was right to identify the difference between the offending conduct in the respective counts and to treat it as calling for significant accumulation. The degree of accumulation that was applied fell within the range of his Honour’s sentencing discretion. No error of principle with respect to accumulation is apparent from the remarks on sentence.

Ground 6 – manifest excess

42. A conclusion that a sentence is manifestly excessive is only to be drawn if it is “plainly apparent” and, having been drawn, it may “not admit of amplification”: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]. Counts 1 and 2 were significantly grave offences of their type. The applicant had no claim to leniency. He had committed several prior offences of the same nature over a period of four years. He did not desist from misuse of social media messaging despite constructive sentencing dispositions on earlier occasions. The previous moderate sentencing orders were intended to facilitate rehabilitation and should have done so if the opportunities thereby accorded to the applicant had been taken up. The learned judge’s findings on subjective circumstances, including reduced risk of reoffending and a measure of remorse were favourable. Taking all things into account, the Court does not perceive the aggregate sentence imposed to have been manifestly excessive.

Orders

43. The orders of the Court are:

44. Grant leave to appeal against sentence.

45. Dismiss the appeal.

**********