Brown v The King

[2024] NSWCCA 143

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Brown v R [2024] NSWCCA 143

Hearing dates:

24 June 2024

Date of orders:

05 August 2024

Decision date:

05 August 2024

Before:

Harrison CJ at CL at [1]
Garling J at [5]
Faulkner J at [70]

Decision:

(1)   Grant leave to appeal.

(2)   Appeal dismissed.

Catchwords:

CRIME – Appeals – Appeal against sentence – Application for leave to appeal – Whether the sentencing judge erred in finding that factors contributing to the disadvantage and mental health of the applicant increased the importance of community protection – Whether such disadvantage and mental health factors ought to have moderated the moral culpability of the offender – Whether the sentencing judge erred in the assessment of the indicative sentence – Whether the sentence was manifestly excessive.

Legislation Cited:

Crimes Act 1900

Crimes (Domestic and Personal Violence) Act 2007

Criminal Appeal Act 1912

Cases Cited:

JM v R [2014] NSWCCA 297

Obeid v R [2017] NSWCCA 221; (2017) 96 NSWLR 155

Texts Cited:

Not Applicable

Category:

Principal judgment

Parties:

Mitchell Brown (Appellant)
The Crown (Respondent)

Representation:

Counsel:
S Kluss (Applicant)
S Traynor (Crown)

Solicitors:
Ross Hill & Associates (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s):

2022/340385; 2023/82852

Publication restriction:

Not Applicable

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

29 February 2024

Before:

Abadee DCJ

File Number(s):

2022/340385; 2023/82852

HEADNOTE

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

On 9 February 2024, Mitchell Brown (the applicant) was sentenced to an aggregate sentence of 11 years and 6 months imprisonment, with a non-parole period of 7 years.

The applicant had pleaded guilty to six offences contrary to provisions under the Crimes Act 1900, the Firearms Act 1996, and the Crimes (Domestic and Personal Violence) Act 2007. The applicant asked for a further three offences to be taken into account on a Form 1, which were offences under the Crimes (Domestic and Personal Violence) Act 2007 and the Firearms Act 1996.

The applicant sought leave to appeal against the sentence imposed upon him by the sentencing judge, and relied upon three grounds of appeal:

Ground 1: his Honour erred in finding that the factors that contributed to the disadvantage and mental health of the applicant did not operate to effectively moderate the moral culpability of the offender, but rather operated to increase the importance of community protection;

Ground 2: his Honour erred in the assessment of the indicative sentence imposed with respect to Sequence 9 and caused error in the aggregate sentence imposed; and

Ground 3: the sentence imposed was manifestly excessive and a difference sentence is warranted at law.

The Court (per Garling J with Faulkner J agreeing; Harrison CJ at CL dissenting) granted leave to appeal and dismissed the appeal.

Per Garling J, Faulkner J agreeing:

1. It was open to the sentencing judge to impose the indicative sentence, particularly given that the sentencing judge had to take into account the two Form 1 offences, each of which were serious [63].

2. With regards to the aggregate sentence, there was no reason to allow any significant concurrency as the offences involved three separate episodes of criminality and occurred in somewhat different circumstances [64]. The aggregate sentence was not manifestly excessive or plainly unjust when viewed in the light that the offences showed significant disregard for the victim, her physical and mental health, her integrity and the safety of her home, and the attempt to persuade her to break the law for the benefit of the applicant [67].

Per Harrison CJ at CL (dissenting):

3. The aggregate sentence imposed by the sentencing judge is manifestly excessive. When considering totality, the aggregate sentence of 11 years with a non-parole period of 7 years is unreasonable and plainly unjust. The applicant should be re-sentenced to an aggregate term of imprisonment of 9 years and 3 months with a non-parole period of 5 years and 6 months.

The sentence imposed by the District Court of 11 years and 6 months imprisonment, with a non-parole period of 7 years was upheld.

JUDGMENT

1. HARRISON CJ at CL: I have had the significant advantage of reading, in draft, the judgment of Garling J. I accept his Honour’s description of the offending and his characterisation of its seriousness, as well as the undoubtedly frightening effect that it would have had upon the victim. Moreover, I consider that the s 324 Crimes Act 1900 offence was a serious example of this manner of offending.

2. I am, however, left with a distinct impression that the aggregate sentence imposed by the sentencing judge is manifestly excessive.  The applicant’s submission, summarised by his Honour Garling J at [47] of his judgment, “that the aggregate sentence was of such length that it would have a crushing effect upon the applicant, particularly considering that … he had already spent over 8½ years in custody (largely for unrelated offences), and he was just 30 years old” has considerable force. Considerations of totality in this case lead me to the conclusion that an aggregate sentence of 11 years with a non-parole period of 7 years is unreasonable and plainly unjust.  I consider that a less severe sentence is warranted and should have been passed.

3. In my opinion, adopting all of the sentencing judge’s findings, with the benefit of which I exercise afresh my sentencing discretion, the applicant should be re-sentenced to an aggregate term of imprisonment of 9 years and 3 months with a non-parole period of 5 years and 6 months.  I would nominate the following indicative sentences:

Sequence	Offence	Maximum	Indicative sentence
Charge Number: H91640532		Date: 4 & 11 Nov 2022
1	Assault occasioning actual bodily harm s 59(1) Crimes Act 1900	5 years	2 years
8	Assault occasioning actual bodily harm s 59(1) Crimes Act 1900	5 years	1 year and 6 months
9	Use offensive weapon to commit indictable offence, namely intimidation s 33B(1)(a) Crimes Act 1900	12 years	4 years and 3 months (taking into account two offences on Form 1)
2 Form 1	Stalk or intimidate with intent to cause fear of physical or mental harm s 13 Crimes (Domestic and Personal Violence) Act 2007	5 years	Taken into account on Sequence 9
3 Form 1	Stalk or intimidate with intent to cause fear of physical or mental harm s 13 Crimes (Domestic and Personal Violence) Act 2007	5 years	Taken into account on Sequence 9
6	Acquire pistol subject to firearms prohibition order s 74(1) Firearms Act 1996	14 years	1 year (taking into account one offence on Form 1)
5 Form 1	Possess unauthorised pistol s 7 Firearms Act 1996	14 years	Taken into account on Sequence 6
Charge Number: H93083872		Date: 18 Nov 2022 to 31 Dec 2022
1 (s 166 offence)	Contravene Apprehended Domestic Violence Order s 14(1) Crimes (Domestic and Personal Violence) Act 2007	2 years	1 year
29	Attempt to influence witness with intent to procure acquittal of serious indictable offence s 324 Crimes Act 1900	14 years	3 years

4. I consider that the following orders should be made:

1. Grant leave to appeal against sentence.

2. Allow the appeal and quash the sentence imposed by Abadee SC DCJ on 9 February 2024.

3. In lieu thereof, sentence the applicant to an aggregate term of imprisonment of 9 years and 3 months commencing on 12 November 2022 with a non-parole period of 5 years and 6 months expiring on 11 May 2028 and a balance of term expiring on 11 February 2032.

4. The first date upon which the applicant will become eligible for release to parole is 11 May 2028.

5. GARLING J: This judgment deals with an application for leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 by Mr Mitchell Brown (“the applicant”) against an aggregate sentence imposed upon him by Abadee DCJ (“the Judge”), on 9 February 2024, sitting in the District Court at Gosford.

6. If granted leave to appeal, the applicant seeks to rely upon three grounds, which are that:

1. his Honour erred in finding that the factors that contributed to the disadvantage and mental health of the applicant did not operate to effectively moderate the moral culpability of the offender, but rather operated to increase the importance of community protection;

2. his Honour erred in the assessment of the indicative sentence imposed with respect to Sequence 9 and caused error in the aggregate sentence imposed; and

3. the sentence imposed was manifestly excessive and a different sentence is warranted at law.

7. At the commencement of the oral submissions, counsel for the applicant accepted that the proper approach with respect to these three grounds of appeal was for this Court to consider that Grounds (1) and (2) were matters to be considered by the Court when it considered Ground (3) as a stand‑alone ground. She accepted that the first two grounds were not capable of being separate grounds of appeal. These concessions were properly made.

8. Set out below is a table reproduced from the submissions of the Crown which records the offences to which the applicant pleaded guilty, those offences which the applicant asked to be taken into account on a Form 1, the relevant maximum penalties, and the sentences indicated by the Judge for each offence.

9. I note that the indicative sentences were reached after the Judge allowed a 25% discount for the applicant’s early pleas of guilty. I also note that no standard non-parole period is fixed for any of the offences set out in the table below.

Sequence	Offence	Maximum	Indicative sentence
Charge Number: H91640532		Date: 4 & 11 Nov 2022
1	Assault occasioning actual bodily harm s 59(1) Crimes Act 1900	5 years	2 years and 3 months
8	Assault occasioning actual bodily harm s 59(1) Crimes Act 1900	5 years	2 years and 6 months
9	Use offensive weapon to commit indictable offence, namely intimidation s 33B(1)(a) Crimes Act 1900	12 years	6 years (taking into account two offences on Form 1)
2 Form 1	Stalk or intimidate with intent to cause fear of physical or mental harm s 13 Crimes (Domestic and Personal Violence) Act 2007	5 years	Taken into account on Sequence 9
3 Form 1	Stalk or intimidate with intent to cause fear of physical or mental harm s 13 Crimes (Domestic and Personal Violence) Act 2007	5 years	Taken into account on Sequence 9
6	Acquire pistol subject to firearms prohibition order s 74(1) Firearms Act 1996	14 years	2 years (taking into account one offence on Form 1)
5 Form 1	Possess unauthorised pistol s 7 Firearms Act 1996	14 years	Taken into account on Sequence 6
Charge Number: H93083872		Date: 18 Nov 2022 to 31 Dec 2022
1 (s 166 offence)	Contravene Apprehended Domestic Violence Order s 14(1) Crimes (Domestic and Personal Violence) Act 2007	2 years	1 year
29	Attempt to influence witness with intent to procure acquittal of serious indictable offence s 324 Crimes Act 1900	14 years	3 years

10. The applicant was sentenced to an aggregate sentence of 11 years and 6 months imprisonment with a non-parole period of 7 years. That sentence was ordered to commence on 12 November 2022, with the result that the applicant is first eligible for parole on 11 November 2029. His sentence will expire on 11 May 2034.

Statement of Agreed Facts (Charge Number: H91640532)

11. The Statement of Agreed Facts which was tendered to the Judge related to four offences for which the applicant entered guilty pleas and three Form 1 offences in respect of which the applicant admitted his guilt and asked for them to be taken into account on sentence. These offences occurred on 4 and 11 November 2022.

12. The applicant, who was then aged 29, was in a domestic relationship with the victim who was the same age. They lived together and had a child together, who was seven months old at the time of this offending.

13. The victim had three children by a previous relationship, who would ordinarily live at the residence, but they were not present at the house on either 4 or 11 November 2022.

14. The background recounted in the Agreed Facts included that, in November 2015, Police had served the applicant with a Firearms Prohibition Order and a Weapons Prohibition Order. Those orders remained in place at the time of the offending.

15. On 4 November 2022, in the late afternoon, the victim returned home having attended the Wyong Hospital because of nausea and vomiting. When she arrived home, at about 6.30pm, the applicant became agitated. The victim took their child from the applicant, sat down and began to breastfeed him.

16. The applicant then walked over to the victim, took their child away from her and placed him on the ground nearby. He then walked to the front door of the home and locked it. The applicant then approached the victim and told her that he was going to kill her (which constituted the offence in Sequence 2) and then attempted to choke her (which constituted the offence in Sequence 1). The victim sustained bruising to her neck as a result of this offence. There was a short physical scuffle, and the victim managed to push the applicant off her body. The applicant walked away and returned with a hunting knife. He then pinned the victim down on her back, waved the knife in her face and told her that he was going to stab her with it (which constituted the offence in Sequence 9).

17. The victim freed herself and ran up the hallway in the direction of the front door. The applicant ran after her and stopped her before she reached the door. He began hitting her in the head, causing her to fall to the floor and striking the side of the lounge as she fell. This resulted in the victim having a black eye, bruising to her chin and a lump on the back of her head. The applicant then kicked the victim in her torso area, which winded the victim and resulted in bruising and soreness to her ribs (which constituted the offence in Sequence 8).

18. In the week following these assaults, the victim felt unwell and was bed‑ridden for most of that time.

19. On 11 November 2022, Sequence 3 (which was a Form 1 offence) occurred in circumstances where there was a lengthy exchange by text message between the applicant and the victim, during which the victim took their child, walked out of the house and locked herself in their motor vehicle. Shortly afterwards, the applicant walked out of the house and told the victim that he was going to “fucking kill you”. The applicant re-entered the house and returned to the car with a knife. He walked up to the car and began yelling at the victim to come inside. He eventually stopped yelling and went back inside the house. The victim contacted the Police and sought assistance from them and from the ambulance because she was feeling unwell. The Police attended the premises. The applicant denied any domestic dispute or conduct on his part which may have had any adverse effect on the victim.

20. With the consent of the victim, the police undertook a search of the residence where, amongst other things, they found the hunting knife to which reference has earlier been made and, within a set of drawers in the garage, they found the gel-blaster pistol which resembled a Glock 17 pistol, and which was reasonably capable of being raised and fired. The applicant, when asked about the Glock 17-style gel-blaster, told the Police that he had been given it about six weeks earlier by a friend and that he did not believe that it was in working order. Curiously, when asked why he had it, the applicant told the Police that he got it for protection because his friend had been robbed and he was afraid that bikies were going to attack him. These facts gave rise to the offences in Sequences 5 and 6.

Statement of Agreed Facts (Charge Number: H93083872)

21. The applicant also pleaded guilty to two further charges (Sequences 1 and 29) in respect of which there was an Agreed Statement of Facts. The Agreed Facts in respect of these two charges are relatively brief. The first charge of contravention of an Apprehended Domestic Violence Order (“ADVO”) occurred after the applicant was arrested for the offences to which I have just made reference. At the time of his arrest, the Police served a provisional ADVO on the applicant. That provisional ADVO contained a prohibition on approaching or contacting the victim of the first set of offences or their son unless the contact was made through a lawyer and dealt only with the subject matter of contact with children.

22. In the period between 18 November 2022 and 23 November 2022, the applicant telephoned the victim from jail on 42 occasions, most calls lasting for somewhere in the vicinity of six minutes at a time. In one of the calls, on 23 November 2022, the applicant and the victim discussed the existence of the ADVO, and the applicant told the victim that she should let the Police know that she did not want an ADVO in place. These phone calls constituted the offence of contravening a prohibition or restriction in the ADVO.

23. On 24 November 2022, the applicant called the victim 19 times in a seven‑hour period starting at about 7.30am.

24. In one of the calls, which occurred at about 1.15pm, the applicant told the victim that she had to prepare a statement which had to be witnessed by a Justice of the Peace and provide it to her lawyer. He told her that the new statement had to say that she had lied about the events leading up to his arrest and that what she had told the Police in her earlier statement was untrue.

25. The victim was instructed to give that statement to the applicant’s lawyer so that he could produce it as evidence. An extract of that conversation includes the following:

“Victim:   … because they even said to me, without me going there, well my statement or anything they have nothing.

[Applicant]:   Yeah, well even say just fucking even just say none of it happened.

Victim:   Yeah.

[Applicant]:   Just say that was from me falling over… like he was at work those days.

Victim:   Yeah.

[Applicant]:   You know what I mean, just come up with something

Victim:   Yeah.

[Applicant]:   Just do the best you can because I’m just admitting to the gel‑blaster, that’s it.

Victim:   Yeah

…

[Applicant]:   Yeah cause she, yeah, no because you said you were afraid to talk to him in front of me, I remember the lawyer saying that, so just say you were out of it on fucking drugs babe, babe.”

26. In a later conversation, the applicant went through the detail of what the victim was required to do to ensure that the statement was correctly signed and then given to his lawyers.

27. After that exchange, between 25 November 2022 and for the next month or so to 27 December 2022, the applicant regularly telephoned the victim, speaking to her on many occasions during the course of the day, including up to 17 times. Different numbers were used to contact the victim.

28. As well, the applicant corresponded with the victim on a number of occasions. In December 2022, he sent a seven-page letter to the victim using a false name. That letter included these words:

“… it’s 10 x harder this time around, but it’s all in your hands now to get the AVO [varied] so we can talk and hopefully see each other. I can’t do anything nor can my lawyer. It’s seriously in your hands and if you don’t do anything about it, then we don’t get to talk or see each other ‘period’.”

29. Later in that same letter, the applicant seems to sheet home responsibility for his conduct and his being in custody to the victim. The conduct described about the applicant persuading the victim to change her story to a version which both he, and she, knew to be untrue amounted to the offence in Sequence 29 which was doing an act with intent to influence a witness, procure acquittal of a serious indictable offence.

Remarks on Sentence

30. Having set out the charges and the Facts, the Judge moved to assess the objective gravity of the offending. He assessed each offence by reference to the particular facts, and the legislation against which the applicant had offended.

31. No issue was taken by the applicant with any of the assessments, save with respect to Sequence 9. This was an offence contrary to s 33B(1)(a) of the Crimes Act of using an offensive weapon to commit an indictable offence, namely intimidation. The Judge noted that the offending occurred in the context of a scuffle which the applicant sought to prolong. He found that the knife was itself a substantial implement which was capable of instilling fear. He found that the applicant waving the knife in front of the victim’s face added to that fear. He found that violence accompanied that offending by way of pinning the victim down and verbally threatening to stab her. He concluded that this offence was within the mid-range. In the course of his Remarks, the Judge noted that, together with the other offences committed on 4 and 11 November 2022, this offence was aggravated by the fact that it occurred in the victim’s home where she was entitled to feel safe and secure.

32. When imposing the sentence for Sequence 9, the Judge was asked to take into account two further offences on a Form 1, each of which was contrary to s 13 of the Crimes (Domestic and Personal Violence) Act 2007. Of these two offences, the Judge said:

“42   I take the additional offences as ordinarily, even presumptively, elevating the weight to be accorded to specific deterrence and retribution to the relevant primary offences.

43.   But this had more effect in relation to the sentencing for the offence of using an offensive weapon (to intimidate). The first of the additional offences (on 4 November) involved a threat to kill. The second additional offence, which occurred on the later date (11 November) indicated that the nature or extent of the verbal abuse was such as to cause the victim to lock herself in a car with her baby and call 000. I agree with the Crown that the effect of the additional offences is to materially increase the penalty for the primary offence of using the offensive weapon to commit a serious indictable offence.”

33. His Honour turned to consider the applicant’s subjective case. His Honour noted that at the date of the offending, the applicant was 29 years of age. He also noted that the applicant had been treated by way of medication for ADHD, depression and anxiety. He also noted that the Crown’s documents recorded a past history of mental illness, including Bipolar Affective Disorder and Schizophrenia.

34. He noted that the applicant grew up with both parents at home and four siblings. His Honour noted that the applicant’s father was, at the time of sentencing, terminally ill and receiving palliative care.

35. It appears that the applicant had a difficult childhood. He was abused physically and mentally by his father. He observed his father perpetrating domestic violence against his mother. His behaviour had led to a disrupted education, and he had been either suspended or expelled from a number of schools.

36. One of the matters which had exacted a significant toll upon the applicant was that he had been sexually assaulted on many occasions by a single perpetrator whilst he was in juvenile detention. He also had, during his adolescent years, an extensive history of drug taking, injecting heroin and ice. He had had a patchy work history.

37. A clinical psychologist, Dr Pusey, whose report was before the Judge, diagnosed the applicant as having several mental abnormalities at the date of the offending, being a Major Depressive Disorder, Post-Traumatic Stress Disorder and a Co-Morbid Substance Use Disorder which impaired the applicant’s judgment and behaviour.

38. The Judge accepted that the applicant’s past history, which I have briefly alluded to, moderated his culpability for the offences and lessened the full force given to general and specific deterrence, and associated considerations. However, the Judge was not satisfied that there was a clear connection between the applicant’s mental disorders and childhood disadvantage to the particular offences. His Honour expressed this view:

“His record indicates an endemic or entrenched inability to control violent impulses and in such circumstances, the consideration of protecting the community assumes increased importance.”

39. The Judge found that his past record of offending, as an adult, disentitled the applicant to leniency and augmented the weight to be given to specific deterrence.

40. The Judge concluded that the applicant showed only a partial acceptance of responsibility for the offences, that he showed limited insight into his offending and continued to hold that a large measure of attribution of responsibility for his offences should fall upon the victim. The Judge concluded that the applicant had no true remorse.

41. The Judge noted that the applicant’s rehabilitation prospects were guarded and concluded that the applicant had a high likelihood of re-offending.

42. The Judge, as earlier indicated, found that the early guilty pleas by the applicant entitled him to a 25% discount on indicative sentences.

43. The Judge came to a short summary of the offending. He said this:

“In the course of assessing the gravity of offending, for some offences I alluded to decisions which, for the relevant offence, had typically emphasised certain of the considerations in s 3A of the CSP Act. Overall, the sentence must reflect the contextual circumstances that the [applicant] is a violent man and committed the offences against the victim in a domestic violence setting. Considerations of general and specific deterrence, denunciation and retribution (moderated only slightly because of a disadvantaged childhood or mental abnormalities), imposing a sentence that reflects the harm to the victim (in whatever manifestation) and protection of the community loom large in this exercise. I have however, also taken into account the consideration of enhancing the [applicant’s] rehabilitation, though this has its subordinate force in the circumstances.”

44. The Judge then set out the indicative sentences. He considered totality, noted that there was scope for significant concurrency in relation to the offences which occurred on 4 November 2022, and also the two offences which occurred after the applicant was taken into custody.

45. The Judge found special circumstances and then came to impose the aggregate sentence to which earlier reference has been made.

Applicant’s Submissions

46. On the hearing of this application, the applicant submitted that the aggregate sentence was of such length that it would have a crushing effect upon the applicant, particularly considering that as at the time of the sentence he had already spent over 8½ years in custody (largely for unrelated offences), and he was just 30 years old at that time. The applicant submitted that the aggregate sentence was of such a length as would induce a feeling of hopelessness and destroy any expectation of a useful life after release. The applicant pointed to the fact that this increased the effect of the severity of the sentence.

47. The applicant submitted that having regard to the fact that the offending largely occurred in limited, quite short episodes, only two of which were violent, there had been insufficient attention paid by the Judge to the principal of totality.

48. Ultimately, the applicant submitted that error was to be inferred in the application of the totality principle, and such error had resulted in a manifestly excessive sentence which had the significant potential of institutionalisation of the applicant.

49. As well, the applicant’s submissions drew attention to the indicative sentence for Sequence 9. The applicant noted that the Judge had found the offence in Sequence 9 to be in the mid-range and that, including having regard to the fact that there were two Form 1 offences, which the applicant submitted were really part of the same course of criminal conduct, an assessed indicative sentence of 6 years (which involved a notional sentence of 8 years prior to the reduction on account of the 25% discount for the guilty plea) was excessively high with the consequence that such an excessively high indicative sentence must have affected the aggregate sentence.

50. The applicant recognised that there could be no appeal against an indicative sentence but sought to rely upon the length of the indicative sentence for this sequence as explaining how it was that a manifestly excessive sentence had been imposed.

51. Whilst acknowledging the limitation of sentencing statistics, the applicant drew attention to the fact that the records kept by the Judicial Information Research System (“JIRS”) indicated that the indicative sentence for Sequence 9 was at the top of the range of sentences which had been imposed and which range largely centred upon a term of about one half of the indicative sentence.

52. The applicant acknowledged that the JIRS statistics were not a complete demonstration of the excessiveness of the sentence but, nevertheless, contended that they were of use.

Crown Submissions

53. Having drawn attention to the relevant principles with respect to sentences which were said to be manifestly excessive, the Crown accepted that the indicative sentence for Sequence 9 was at the higher end of the ordinary range of such sentences. The Crown noted that, with respect to the first five offences, having regard to the aggregate sentence imposed, there was obviously significant concurrence allowed for by the Judge for those offences.

54. However, the Crown drew attention to the fact that the aggregate sentence imposed needed to reflect the totality of criminality which included three distinct episodes of serious offending. The Crown submitted that the first episode related to the offences of domestic violence, which included actual bodily harm, threats and the use of a weapon. In particular, the Crown drew attention to the seriousness of the Sequence 9 offence as involving the use of a hunting knife with the accompanying threat to stab the victim.

55. The second episode of serious offending, the Crown submitted, was the unrelated offence involving the possession of a gel-blaster pistol contrary to a Firearms Prohibition Order. The Crown submitted that there was no relationship between this offence and the other offences for which the applicant was to be sentenced. And it noted that the offence showed that the applicant was quite unable to comply with any form of compulsive order.

56. The Crown noted that the third distinct episode of offending encompassed a public justice offence of a serious kind because the applicant was seeking to persuade a victim of domestic violence to change her evidence for his benefit. The Crown submitted that because this was a public justice offence, the mere fact that it was against the same victim as the earlier domestic violence offences meant that there should not be a high degree of concurrence. The Crown submitted that a high degree of accumulation was warranted because this was a clear separate episode of offending, which also demonstrated an ongoing attempt to control the behaviour of the victim.

57. The Crown pointed to the ongoing course of conduct in contravention of the ADVO where the applicant had contacted the victim over 260 times in a period of about 40 days.

58. The Crown accepted that there were subjective factors in the applicant’s favour but submitted that they were limited. It submitted that the mere fact that the applicant had a difficult upbringing did not of itself and without more, mean that his moral culpability ought to be significantly reduced. The Crown submitted that the Judge had carefully attended to this issue.

Discernment

59. The principles to which this Court must adhere in considering whether a sentence is manifestly excessive are well known. Appellate intervention is not justified simply because the sentence imposed in the Court below is markedly different from sentences imposed in other like matters; 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 in the reasons of the sentencing Judge, or where the sentence imposed is so far outside the range of sentences available, there must have been an error; it is not to the point that the Court of Criminal Appeal 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; and it is for the applicant to establish that the sentence was unreasonable or plainly unjust: see Obeid v R [2017] NSWCCA 221 at [443]; (2017) 96 NSWLR 155.

60. It is of relevance to the determination of this appeal to note that the only challenge which can be made on the basis of the manifest excess of a sentence is to the aggregate sentence. The indicative sentences may be a guide to whether error is established, however even if an indicative sentence is assessed to be excessive, that does not necessarily mean that the aggregate sentence is excessive: JM v R [2014] NSWCCA 297 at [40].

61. The applicant pointed to the 6-year indicative sentence (after 25%) for a mid‑range offence for Sequence 9 as indicating that that sentence was obviously excessive and not open to the Judge, and that it must have affected the aggregate sentence. I note that the maximum penalty for an offence contrary to s 33B(1)(a) is 12 years imprisonment, and that the Court was asked to take into account two other offences on a Form 1 of stalking or intimidating with the intention of causing fear of physical or mental harm, the maximum penalty for each of which is 5 years imprisonment.

62. The sentence indicated for Sequence 9 is one of significance for the purpose of the aggregate sentence. Whilst the JIRS statistics show that it was a high sentence, they also confirm that it was within the range of sentences previously imposed for such offences.

63. My conclusion is that that indicative sentence was open to his Honour to impose particularly given that his Honour had to take into account the two Form 1 offences, each of which were themselves serious.

64. In considering the aggregate sentence, I accept the Crown’s submissions that the Judge was considering three separate episodes of criminality and, in respect of two of those episodes, there was no reason to allow any significant concurrency because they were separate offences occurring in somewhat different circumstances. In particular, the Crown drew attention to the seriousness of the public justice offence which struck at the heart of the justice system and represented an ongoing attempt by the applicant to control the behaviour of his victim.

65. As well, in my view, the first set of offences show a serious course of domestic violence in which each episode was quite sustained. The use of a weapon accompanied by a threat to kill must have been particularly frightening given that these offences occurred in the victim’s home, and in the presence, or perhaps in the vicinity, of her young child. The victim attempted to reason with the applicant during these offences but received no rational response. The irrationality of the applicant’s conduct must also have contributed to the victim’s fear for her own safety and that of her young son.

66. The findings of the Judge which are not challenged, about the high likelihood of reoffending and the lack of remorse, emphasise that sentencing considerations such as denunciation and community protection were entitled to significant weight.

67. The sentence imposed has to be viewed in the light that, leaving aside the firearms offence, the other offences showed significant disregard for the victim, her physical and mental health, her integrity and the safety of her home, and then, finally, the attempt to persuade her to break the law for the benefit of the applicant. In my view, the aggregate sentence was within the range of sentences which were available, and the applicant has not established that the sentence is manifestly excessive or plainly unjust.

68. Since the appeal is to be dismissed, it is unnecessary for me to consider the additional material which was put before the Court in the event of re-sentence. Accordingly, I express no opinion upon the issue of whether a letter to this Court from the victim of the offences was capable of being taken into account by the Court in the event that it came to re-sentence the applicant.

Orders

69. I proposed that following orders be made:

1. Grant leave to appeal.

2. Appeal dismissed.

70. FAULKNER J: I agree with Garling J.

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Decision last updated: 05 August 2024