Chaouk v R

[2017] NSWCCA 295

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Chaouk v R [2017] NSWCCA 295
Hearing dates:	6 October 2017
Decision date:	04 December 2017
Before:	Macfarlan JA at [1] Fullerton J at [2] Fagan J at [72]
Decision:	1. Leave to appeal granted. 2. The appeal is allowed. 3. Quash the sentence imposed in the District Court on 16 September 2016. 4. In lieu thereof, the applicant is sentenced to an aggregate term of imprisonment of 20 years comprising a non-parole period of 14 years commencing on 3 April 2014 and expiring on 2 April 2028, with a balance of term of 6 years expiring on 2 April 2034.
Catchwords:	CRIMINAL LAW – appeal against sentence – assault with intent to rob whilst armed with an offensive weapon – robbery whilst armed with a dangerous weapon – discharge firearm with intent to cause grievous bodily harm – whether aggregate sentence failed to properly apply principle of totality – whether sentencing judge failed to provide adequate reasons for aggregate sentence imposed – whether sentencing judge failed to sentence in accordance with the principle of instinctive synthesis – whether sentence was “crushing – whether sentence was manifestly excessive
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW)
Cases Cited:	Beale v R [2015] NSWCCA 120 JM v R [2014] NSWCCA 297 JT v R [2012] NSWCCA 133 Kerr v R [2016] NSWCCA 218 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Pizzimenti v R [2017] NSWCCA 231 Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 R v Camp [2004] NSWCCA 264 R v Van Ryn [2016] NSWCCA 1 Trad v R [2009] NSWCCA 56 ZA v R [2017] NSWCCA 132
Category:	Principal judgment
Parties:	Ali Chaouk (Applicant) The Crown (Respondent)
Representation:	Counsel: J Glissan QC (Applicant) F Veltro (Crown)   Solicitors: Hajjar Legal (Applicant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2014/101215
Decision under appeal	Court or tribunal: District Court Date of Decision: 16 September 2016 Before: Woodburne SC DCJ File Number(s): 2014/101215

Judgment

1. MACFARLAN JA: I agree with Fullerton J.

2. FULLERTON J: The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal the aggregate sentence imposed by Woodburne DCJ on 16 September 2016.

The proceedings on sentence

3. On 8 October 2015, following his committal for trial on 29 January 2015, the applicant entered pleas of guilty in the District Court to four offences committed on 26 March 2014 in the course of his involvement in a robbery in company with two other men. One of his co-offenders, Omar Hariri, was sentenced in the same proceedings. A second co-offender, Youssif Chami, was sentenced separately. No issue of parity arises on the applicant’s sentence appeal.

4. The offences in the indictment to which the applicant pleaded guilty are as follows:

Count 1: Assault with intent to rob whilst armed with an offensive weapon and at the time of the assault the infliction of grievous bodily harm contrary to s 98 of the Crimes Act 1900 (NSW). This offence carries a maximum penalty of 25 years imprisonment with a standard non-parole period of 7 years.

The sentencing judge nominated an indicative sentence of 10 years and 2 months imprisonment with a non-parole period of 7 years and 3 months.

Count 3: Robbery whilst armed with a dangerous weapon contrary to s 97(2) of the Crimes Act. This offence carries a maximum penalty of 25 years imprisonment.

The sentencing judge nominated an indicative sentence of 7 years and 3 months imprisonment.

Count 5: Assault with intent to rob whilst armed with a dangerous weapon contrary to s 97(2) of the Crimes Act. The offence also carries a maximum penalty of 25 years imprisonment.

The sentencing judge nominated an indicative sentence of 6 years and 9 months.

Count 7: Discharge firearm with intent to cause grievous bodily harm contrary to s 33A(1)(a) of the Crimes Act. This offence carries a maximum penalty of 25 years imprisonment.

The sentencing judge nominated an indicative sentence of 17 years imprisonment.

5. After a finding of special circumstances the applicant was sentenced to an aggregate term of 27 years imprisonment with a non-parole period of 20 years. The sentence was backdated to the date of the applicant’s arrest.

6. The applicant relies on five grounds of appeal:

1. The aggregate sentence imposed failed to properly apply the principle of totality;

2. The sentencing judge failed to provide adequate reasons for the aggregate sentence imposed;

3. The sentencing judge failed to sentence in accordance with the principle of instinctive synthesis;

4. The sentence imposed was “crushing"; and

5. The sentence imposed was manifestly excessive.

The sentence hearing

7. A statement of agreed facts was tendered and reproduced in the sentencing judgment. The Crown also tendered expert medical reports relating to the gunshot injuries sustained by the victims of Counts 1 and 7. The applicant tendered a report from Dr Olav Nielssen and various documents relating to his Corrective Services record. He also tendered a letter addressed to the Court and the victims of his offending in which he expressed remorse for his offending and, in particular, for the pain and suffering he had caused to the two men he shot and their families.

The facts for sentencing purposes

8. The offences the subject of Counts 1, 3 and 5 were committed on 26 March 2014 in the execution of a planned robbery of three young men, Rhynal Nand (aged 18), Zade Wilson (aged 17) and his brother, Zane Wilson (aged 18). The victim of Count 7, Graeme Hunt, was alerted to the robbery after hearing shots fired from a car parked in the street outside his home. He was shot in the chest at close range as the applicant was leaving the scene of the robbery with one of his co-offenders. Mr Hunt sustained catastrophic injuries to his spinal cord and was rendered a paraplegic.

9. On 19 March 2014 Zane Wilson attended an address in Merrylands to purchase a mobile phone Youssif Chami had advertised for sale for $550 on the website “Gumtree”. Zane Wilson was driven to Merrylands by Rhynal Nand.

10. On 26 March 2014 Chami telephoned Zane Wilson and offered to sell him another mobile phone at the same price. Zane Wilson agreed to purchase the phone. That evening Nand drove Zane Wilson and his brother Zade towards Merrylands, stopping at Villawood McDonalds en route. Zane was seated in the front passenger seat and his brother in the rear passenger’s seat. At Villawood Chami telephoned Zane Wilson and asked him to drive to Merrylands and meet him where the previous transaction had taken place.

11. On arrival Nand and Zane Wilson recognised Chami standing on the street and stopped the car near him. Chami got into the back seat of the car next to Zade Wilson and directed Nand to where the applicant and a co-offender were standing on the street a short distance away. At this time, Chami got out of the back seat and the applicant got in. He produced a small silver and black pistol which he waved around demanding money. He then placed the pistol to Zade Wilson’s head. Zane Wilson gave the applicant his wallet, which contained $600 cash and cards, and his phone. This is the conduct the subject of Count 3.

12. The applicant then made a similar demand of Zane Wilson. He told the applicant that he did not have any money and that he would need to go to an ATM. The applicant held the gun to his head and told him to get out of the car. He refused. This is the conduct the subject of Count 5.

13. By this time Chami had approached the driver’s door holding his jumper out in front of him simulating a hidden firearm. He demanded money of Nand. Nand told Chami that he only had $50 in cash. From the rear seat the applicant punched Nand to the back of the head and said “fuck you” before firing three shots, hitting Nand in the right arm, chest and abdomen. This is the conduct the subject of Count 1.

14. Nand managed to drive to a service station from where he was conveyed to Westfield Hospital by ambulance. He was treated for multiple gunshot wounds.

15. The Expert Certificate of Dr Ahmed reported that upon hospitalisation chest drains were inserted on both sides of Nand’s chest wall. An emergency laparotomy was then performed which identified the point of entry in the right upper quadrant of the abdomen, with the bullet passing the rectus sheath before exiting through the left iliac fossa. Nand was returned to theatre for a brachio-brachio bypass to repair laceration to the brachial artery in the right arm as a result of a second bullet entering the right posterior shoulder and exiting through the left chest wall. His abdominal staples were removed the day he was discharged. Over a number of weeks he had follow-up in the trauma clinic and with a vascular surgeon. He was referred for nerve conduction studies as an outpatient at Westmead Hospital. As a result of injury to the nerves in his right arm, he was referred for outpatient treatment with an orthopaedic surgeon. There was no evidence updating the progress of his recovery. No victim impact statement was tendered and none from Zane and Zade Wilson.

16. Graeme Hunt was inside his home when he heard arguing coming from the street. He went outside where he heard three loud noises he believed to be gunshots. As he walked towards the street he saw the applicant and one of his co-offenders moving away from a parked car. When he asked the applicant if everything was alright the applicant responded, “What’s it got to do with you, you fucking dog” and immediately fired the gun at close range at Mr Hunt’s chest.

17. Neighbours attended to Mr Hunt who was conveyed by ambulance to Westmead Hospital. Emergency surgery identified lacerations to the liver and diaphragm secondary to a gunshot wound to his chest. A burst fracture of the T11 vertebral body and a T10 spinous facture were also identified. The bullet which had lodged in Mr Hunt’s spine was not able to be surgically removed due to the risk of further spinal injury or death. He was hospitalised for 16 months. As a result of his paraplegia he is confined to a wheelchair.

18. Mr Hunt provided a victim impact statement in which he detailed the extent of the physical and emotional consequences of his injury, including the challenges of adjusting to his paraplegia.

19. At the time of the shooting, he was aged 62 and three years from retirement as a truck driver. In his retirement he planned to travel and to pursue his interests as a swimmer and surfer. His employment was terminated as a result of his injuries. His paraplegia has also resulted in significant financial pressure associated with the remodelling of his home. Attending to his personal care and hygiene occupies many hours each day, dressing and undressing can take him up to an hour. The physiological impact of adjusting to the restrictions on his mobility inside and outside the home is a source of constant struggle. He has difficulty accessing many locations. While he expressed gratitude for the support of his family and friends in the immediate aftermath of the shooting, he also said that maintaining friendships has been difficult.

The applicant’s subjective circumstances

20. The applicant was aged 23 at the time of the offending and 25 at the time of sentence. The sentencing judge found that although the applicant had a criminal history, it was not significant. Apart from driving matters as a juvenile, he had committed only one offence as an adult, being an offence of larceny when he was 21 years of age for which no conviction was recorded. He had however spent 1 year and 22 days on remand between June 2012 and July 2013 before being released to bail. There was no evidence before the sentencing court, or this Court, concerning the charge the subject of that remand or of its resolution. The applicant told Dr Nielssen that the charges had been dismissed. This appears to be borne out by the applicant’s criminal record.

21. The applicant’s father was born in Australia of Lebanese heritage. The applicant’s mother moved from Lebanon to marry his father. He is the second of seven children. His father left the family home when the applicant was 7 years of age after which his older brother assumed a quasi-parental role.

22. The applicant left school at the end of Year 10 and was working as a carpenter prior to his arrest in June 2012 and his subsequent remand until July 2013.

23. About three months prior to the subject offending the applicant sustained a fracture to the L4 vertebrae in a car accident and was unable to continue work. He was prescribed the opiate pain relieving medication Endone. The medication made him drowsy and, after having been introduced to methamphetamine by a friend, he began using that drug to stay awake. He told Dr Nielssen that over a three month period prior to the date of his offending he was using 1-1.5 grams of methamphetamine daily. He did not seek out or participate in any drug counselling prior to his arrest. He told Dr Nielssen that on the day of the offending he had been “up for two weeks” and that he had also been taking (unprescribed) anxiety relieving tablets. He said he was “off his face” on the day of the robbery.

24. He told Dr Nielssen that he purchased the pistol during a methamphetamine transaction. He said he did not remember any discussion with Chami about taking the pistol with him to the robbery or that there was any plan that he would use it in the robbery. He said his memory of the entire incident was patchy. He said he had no memory of the person he shot or of discharging the gun, although he was aware he had used it because he told Dr Nielssen that the sound of it had scared him and he knew he had done something wrong.

25. Dr Nielssen assessed the applicant as suffering from a substance abuse disorder prior to his arrest on the basis of his regular use of drugs known to have harmful psychological effects. The substance abuse disorder was described by Dr Nielssen as in remission due to the applicant's detention in a relatively drug-free environment in the two years prior to sentence and his reported participation in drug counselling treatment programs in custody. The applicant reported being drug-free since his arrest and volunteered to Dr Nielssen, “I won't touch it again".

26. Dr Nielssen was of the opinion that the applicant’s involvement in the robbery and his use of the pistol was related to his substance abuse and that the effect of a protracted lack of sleep on memory function, which can produce a form of toxic delirium with visual and other illusions, is also well recognised in the medical literature.

27. A further diagnosis of a depressive illness was made on the basis of the applicant’s account of symptoms of depression following his arrest, coupled with an assessment by a mental health worker on reception into custody and the prescription of antidepressant medication which he has taken over the period of his remand prior to sentence. Dr Nielssen reported that the applicant requires more intensive and long term treatment for his depression which he considered might be related to an inherited vulnerability to that condition.

28. Dr Nielssen described the applicant as a person of normal intelligence who had the capacity to make the most of any counselling and educational opportunities offered to him in custody.

29. In a letter addressed to the Court and to the victims received in the sentencing proceedings the applicant accepted responsibility for his actions. He described his personal circumstances at the time of the offending consistently with what he told Dr Nielssen. He described the impact on him of his father being imprisoned overseas and his brothers being imprisoned, and that the strain of being responsible for his family’s well-being in their absence “broke him down”. He said it was at that time that he had injured his back and had started using highly addictive prescription and non-prescription drugs. He expressed remorse for the harm he had caused the victims, especially Mr Hunt, their families and his own family. He said that he wished he could take back his actions and that he wished he could tell his younger self to “wake up”. He said that he did not have “control of his brain” when he was offending because of the drugs but acknowledged that this did not operate to excuse his actions.

30. Despite the late pleas of guilty, the sentencing judge was satisfied from the content of the applicant's letter and his interview with Dr Nielssen that he had accepted responsibility for his offending; that he had a gathering insight into the context in which the offending occurred and that his remorse was genuine. Her Honour allowed a discount of 15 per cent by reason of the pleas of guilty in the appointment of the indicative sentences.

The sentencing judge’s assessment of the objective seriousness of each of the offences

31. Her Honour noted that each of the offences to which the applicant pleaded guilty attracted a maximum of 25 years imprisonment - the highest maximum penalty prescribed by the legislature short of life imprisonment - and that Count 1 attracted a standard non-parole period of 7 years as an additional legislative guidepost in the assessment of an appropriate indicative non-parole period for that offence. Her Honour also observed that although the objective seriousness of each offence was to be determined according to the facts and circumstances particular to each offence, there were some features that were common in Counts 1, 3 and 5 in that they were each committed in company in the course of the commission of a joint criminal enterprise to rob, and in each case a pistol was involved, being the “dangerous weapon” the subject of the offences against s 97(2) of the Crimes Act and the “offensive weapon” the subject of the offence against s 98. The same weapon was also discharged at Mr Hunt with intent to cause him grievous bodily harm, the offence against s 33A(1)(a) (Count 7).

The objective seriousness of the offences under s 97(2) of the Crimes Act (Counts 3 and 5)

32. In considering the objective seriousness of Counts 3 and 5 (being the armed robbery of Zade Wilson and the assault with intent to rob Zane Wilson respectively), the sentencing judge noted that although they involved different offending, including that no property was taken from Zane Wilson, the s 97(2) offence is not simply a property offence but one which involves the engendering of fear in the person the subject of the robbery by the presentation of an offensive weapon, in this case a loaded pistol. Although the applicant was the only person in the car demanding money of the occupants, and the only offender who was armed, one of the features the sentencing judge was satisfied operated to increase the objective seriousness of both s 97(2) offences was that they were committed in the physical company of Chami, one of the co-offenders in the joint criminal enterprise to rob the occupants and the offender who had lured the boys to the place where the assault and robbery occurred and who remained in the immediate vicinity of the car during the robbery.

33. The sentencing judge was satisfied that although the robbery was not planned with any degree of sophistication, it was neither spontaneous nor opportunistic. For that reason, she determined to take the fact of the robbery being planned into account in the assessment of objective seriousness without treating it as an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

34. Her Honour accepted that it was not permissible to have additional regard to the fact that the applicant used the pistol in a threatening fashion in the commission of the s 97(2) offences, given that being armed with the pistol was an element of the offences charged in Counts 1 and 3, but she did find that placing the pistol to Zade Wilson’s head heightened the level of seriousness of Count 3. In the assessment of objective seriousness, her Honour also took into account that the pistol was authentic and loaded which placed both Zade Wilson and his brother in considerable danger of being harmed.

32. None of Zade Wilson’s property was recovered.

33. On sentence the applicant’s counsel accepted that the offending the subject of Counts 3 and 5 was serious but submitted that each offence would fall slightly below the mid-range of objective seriousness while the Crown submitted that both offences were in the upper end of that range. The sentencing judge assessed both offences as well above the mid-range, noting, in particular, that the applicant escalated the course of what was a planned robbery by arming himself with the pistol and producing it.

The objective seriousness of the offence under s 98 of the Crimes Act (Count 1)

37. The features of the offending the sentencing judge took into account in her assessment of Count 1 as above the mid-range of objective seriousness (an assessment with which the applicant’s counsel did not disagree) included that a loaded pistol was the offensive weapon used in the robbery and that, although her Honour found the shooting was a spontaneous response to Nand claiming he had no money, she also found that the applicant used the gun deliberately with the intention of inflicting grievous bodily harm when he repeatedly discharged it at Mr Nand at close range.

38. The sentencing judge accepted that there was no evidence that Mr Nand suffered any permanent disability form the gunshots wounds.

The objective seriousness of the offence under s 33A(1)(a) of the Crimes Act (Count 7)

39. Although the actual infliction of grievous bodily harm is not an element of an offence under s 33A(1)(a), it was open to the sentencing judge to find that the seriousness of the offending constituted by the applicant shooting at Mr Hunt at close range with the intention of causing him grievous bodily harm, in circumstances where he presented no threat or impediment to the applicant leaving the area, was aggravated by the gravity of the injury Mr Hunt suffered as provided for in s 21A(2)(g) of the Crimes (Sentencing Procedure) Act.

40. The sentencing judge ultimately found that the s 33A(1) offence was at the high end of the range of seriousness. On sentence, the applicant did not submit otherwise.

The applicant’s subjective circumstances

41. The sentencing judge was not satisfied that the applicant’s drug use reduced his moral culpability for any of the offending. She did, however, take the applicant’s history of drug use, including his addiction to methamphetamine at the time of the offending, into account in the context of him commencing to use drugs following his back injury.

42. The sentencing judge accepted Dr Nielssen’s diagnosis of depression and that a custodial sentence would weigh more heavily on the applicant than it would on a person in normal health and, for that reason, she would take it into account in the determination of an appropriate aggregate sentence. Her Honour noted that there was nothing to suggest that the applicant’s treatment needs could not be met in custody.

43. The sentencing judge did not regard the applicant’s age as a mitigating factor, but accepted that he was a young man without an entrenched criminal history and that he had taken steps towards rehabilitation.

44. The sentencing judge found that the applicant’s acceptance of responsibility for his offending; his progress in custody; his history of employment and lately re-established family support as reflected by his father’s attendance at the sentencing proceedings, together with the fact that the applicant was still relatively young, allowed for a finding that his prospects of rehabilitation were reasonable and that he was unlikely to reoffend.

45. The sentencing judge found that any risk of reoffending was closely linked to his substance abuse disorder, and the need for him to successfully participate in custody-based vocational training and other courses designed to prepare him for release into the community at the expiration of the aggregate non-parole period.

The sentencing judge’s approach to totality

46. The sentencing judge referred to the need to ensure compliance with totality principles citing what RA Hulme J said in R v Van Ryn [2016] NSWCCA 1 at [228]-[230]:

[228] Street CJ described the principle of totality in sentencing in R v Holder; R v Johnston [1983] 3 NSWLR 245 at 260 as follows:

"The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences."

[229] In R v Harris [2007] NSWCCA 130; 171 A Crim R 267 at [46], the Court (McClellan CJ at CL, Hulme and Hislop JJ) emphasised the need to maintain public confidence in the administration of justice when sentencing for multiple offences by endorsing the remarks of Sully J in the two-judge bench decision in R v Wheeler [2000] NSWCCA 34 at [36]-[37]:

"... (There) is the need to ensure public confidence in the administration of criminal justice; and, in particular, to ensure that there does not emerge in the community at large a perception that there is not all that much to choose between the person who commits one or two offences, and the person who commits six or seven offences, for the reason that somehow or other they all manage to finish up with effective sentences between or among which there is hardly anything in practical terms to choose.

It needs to be clearly understood by all concerned that a person who commits a deliberate series of discrete offences, - and the present applicant's case, is a good example of the kind, - he must not be left with the idea that by intoning references to the principle of totality as though it were some magic mantra, he can escape effective punishment for the offences which follow successively one upon another throughout the whole course of a studied and deliberate course of criminal behaviour."

[230] In R v XX (2009) 195 A Crim R 38 at [52], Hall J set out a number of propositions derived from the case law concerning the discretionary exercise of ordering sentences to be served concurrently or cumulatively in accordance with the principle of totality. They included reference to the following passage in the judgment of Howie J in R v Cahyadi [2007] NSWCCA 1; 168 A Crim R 41at [27]:

"… [T]here is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both." (Emphasis added)

47. The sentencing judge then said:

I recognise that the offences were committed within a very short space of time and that there were some features in common. However, the only appropriate course is to make the sentences partly cumulative. The failure to do otherwise would result in a failure to appropriately acknowledge and mark the fact that there were four victims of these four serious offences. I do not consider that the sentence for one offence could comprehend and reflect the criminality of the other offences.

48. Her Honour then moved to indicate sentences for each of the four offences and to impose the aggregate sentence.

49. After having made a finding of special circumstances (seemingly having regard to the applicant’s relative youth and the fact that the sentence would be his first time in custody as a sentenced prisoner), her Honour determined that there would be only a minor adjustment in the ratio between the aggregate sentence and non-parole period, and that the balance of term of 7 years was an appropriate period within which the applicant’s rehabilitation could be promoted and supervised in the community.

The applicant’s submissions on the hearing of the appeal

50. Although five separate grounds of appeal were filed, in the applicant’s written submissions supplemented by oral submissions on the hearing of the appeal, the primary contention is that error in the application of totality principles (Ground 1), coupled with the failure of the sentencing judge to provide adequate reasons as to the way the various factors relevant to the process of instinctive synthesis were accounted for in the appointment of an aggregate sentence (Grounds 2 and 3), has resulted in a “crushing” aggregate sentence that is “unreasonable” or “plainly unjust” (Grounds 4 and 5).

51. The applicant did not submit the sentencing judge’s approach to or assessment of the objective seriousness of the individual offences was productive of error in the sentences that were indicated. The applicant’s counsel did submit, however, that even accepting the gravity of the offending the subject of Count 7, the indicative sentence of 17 years for that offence was so excessive as to be suggestive of error in the ultimate appointment of the aggregate sentence, although not determinative of it (see JM v R [2014] NSWCCA 297 at [40]).

52. He submitted that an undiscounted sentence of 20 years against a maximum of 25 years (being 80 per cent of the maximum period of imprisonment for that offence) was strongly suggestive of her Honour having given preponderant weight to the permanence of Mr Hunt’s catastrophic injuries in such a way that she failed to take into account all relevant factors bearing upon the appointment of an indicative sentence, including the finding that the applicant was genuinely remorseful, that he had favourable prospects of rehabilitation given his age and circumstances, that he had no relevant criminal or violent history, and that this was contrary to the approach mandated in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25.

53. The applicant submitted that although the offending the subject of Count 7 was objectively of the greatest seriousness and that, subject to the principle of totality, some degree of notional accumulation upon the indicative sentences for the other three offences was warranted for that reason, the basis for the degree of notional accumulation across all four indicative sentences such as to arrive at an aggregate sentence of 27 years could not be discerned from the sentencing reasons. In particular, there was nothing in her Honour’s reasons that would serve to illuminate the basis upon which she concluded that the totality of the offending of all four offences required an aggregate term of that length.

The Crown’s submissions on the appeal

54. The Crown emphasised that it is for the applicant to demonstrate that the aggregate sentence was “unreasonable” or “plainly unjust” and that an appellate court may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised the sentencing discretion in a different way (see Kerr v R [2016] NSWCCA 218 at [113] per Bathurst CJ, with whom Hoeben CJ at CL and Price J agreed).

55. The Crown submitted that the indicative sentences imposed for Counts 3 and 5 were well within the range of sentences imposed for offences under s 97(2) of the Crimes Act, and that even were the indicative sentences for Counts 5 and 7 regarded as high, even excessive, it would not necessarily follow that the aggregate sentence was manifestly excessive.

56. The Crown submitted that the sentencing judge specifically acknowledged the need to address the question of accumulation and concurrence of the indicative sentences in the appointment of the aggregate sentence given the short timeframe in which the offences occurred and that the offences had common features, but that she specifically found the sentence for one offence could not comprehend and reflect the criminality of the other offences. This, the Crown submitted, was an entirely orthodox approach to the principle of totality consistent with the observations of Rothman J in JT v R [2012] NSWCCA 133 where his Honour said at [71]:

… The application of the principle of totality is an exercise of discretion, intuitive or instinctive synthesis, and cannot be conducted arithmetically…

57. The Crown also submitted that for this Court to attempt to analyse the extent of accumulation in an aggregate sentence would be speculative, since it may be derived from an almost infinite variation in the dates of commencement of the various sentences it comprises. In that context, counsel relied on the remarks of McCallum J, with whom Bathurst CJ and Hoeben CJ at CL agreed, in Pizzimenti v R [2017] NSWCCA 231 at [17]-[18] that there is no requirement for sentencing judges to state the degree to which indicative sentences are accumulated.

58. The Crown also emphasised the objective seriousness of each of the four offences and the need for the aggregate sentence to reflect general deterrence. While the Crown acknowledged that the aggregate sentence was “stern”, it submitted that it remained a sentence reflective of a sound exercise of her Honour’s sentencing discretion for a course of very grave criminal offending.

59. With respect to special circumstances, the Crown submitted that in accordance with the principle as set out in R v Camp [2004] NSWCCA 264 at [31] and Trad v R [2009] NSWCCA 56 at [33], the degree or extent of any adjustment of the “statutory ratio” was also within the discretion of the sentencing judge.

Consideration

60. I have concluded that the applicant has made good his challenge to the aggregate sentence of 27 years with a non-parole period of 20 years as manifestly excessive, largely as a result of what I am satisfied is error in the application of the principle of totality. I am also satisfied that to avoid the consequences of what I consider to be a crushing sentence this Court should intervene and re-sentence.

61. Despite what I accept is the objective gravity of each of the offences to which the applicant pleaded guilty, and the seriousness of the totality of the applicant’s offending conduct in the course of which those offences were committed, in my view an aggregate sentence of 27 years with a non-parole period of 20 years does not bear a sufficiently reasonable proportionality to the totality of that criminality.

62. Although her Honour was not required to make explicit, or to specify with precision the degree to which the indicative sentences would be accumulated, since to require that of sentencing judges would be tantamount to expressing commencement dates for each offence contrary to one of the rationales for the introduction of s 53A of the Crimes (Sentencing Procedure) Act (see Beale v R [2015] NSWCCA 120 at [4]), having made no assessment of the total criminality reflected in the overall offending, the rationale according to which some or all of the indicative sentences should be partially accumulated was not clear. In addition, there is nothing in the sentencing reasons to illuminate the basis upon which the aggregate sentence of 27 years was assessed as just and proportionate to the overall offending so as to avoid the imposition of a crushing sentence as required in the proper application of the totality principle (see Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 at 304, 307-308 and 313-314).

63. While I accept that questions of accumulation and concurrency are intuitive, in this case the relative severity of the individual sentences indicated by the sentencing judge (in particular the sentence of 17 years for the s 33A(1)(a) offence) called for a far greater degree of notional concurrency in the imposition of the aggregate sentence in order to avoid the imposition of a crushing sentence on a relatively young man who had a subjective case that was worthy of some greater weight in mitigation of sentence. In my view, the aggregate sentence is unreasonable and plainly unjust for that reason.

64. In ZA v R [2017] NSWCCA 132 at [74], Johnson J and I observed:

The significance of an aggregate sentence reflecting “the total criminality comprised in the totality of offences” has been emphasised recently by the High Court. As Gageler, Nettle and Gordon JJ observed in Nguyen v The Queen at 677 [64]:

“Ultimately the object of the sentencing exercise is to impose individual sentences that, so far as possible, accurately reflect the gravity of each offence while at the same time rendering a total effective sentence which, so far as possible, accurately reflects the totality of criminality comprised in the totality of offences. That is an exercise which involves a significant measure of discretionary moderation and accumulation of individual sentences according to the particular circumstances of each case. Up to a point, therefore, it is something about which sentencing judges might take different views of which neither could be said to be wrong. Generally speaking, however, the imposition of less severe individual sentences may call for a greater degree of accumulation in order to reflect total criminality whereas more severe individual sentences may necessitate a greater degree of concurrency.”

Exercise of the sentencing discretion afresh

65. There was no evidence additional to the evidence before the sentencing judge relied upon in the event of re-sentence.

66. My approach to an assessment of the objective seriousness of the individual offences does not differ from that of the sentencing judge. However, I have come to a different conclusion as to the sentence that should be indicated for the offence against s 33A(1)(a), Count 7 on the indictment.

67. I accept, without reservation, that for the applicant to have deliberately discharged the pistol at close range at Mr Hunt’s chest in the circumstances that are reflected in the agreed facts is an extremely grave example of an offence of its type. That said, absent the discount for the plea of guilty, and proceeding on the assumption that the applicant’s remorse and favourable prospects of rehabilitation were afforded appropriate weight in fixing the indicative sentence, as they should have been, a starting point of 20 years against the statutory maximum of 25 years is excessive. After allowing a discount of 15 per cent for the plea of guilty, and after giving what I consider to be appropriate weight to the applicant’s subjective circumstances, I would propose an indicative sentence of 14 years and 6 months for Count 7 – that is a starting point of 17 years before applying the discount for the plea of guilty.

68. The indicative sentences for all counts are reflected in the table below.

Count	Section	Indicative Sentence
1	98	10 years 2 months
3	97(2)	7 years 3 months
5	97(2)	6 years 9 months
7	33A(1)(a)	14 years 6 months

69. Consistent with what I regard as the need for considerable moderation in the degree of notional accumulation of the indicative sentences for each of Counts 1, 3 and 5 to reflect the fact that they were committed effectively within minutes of each other in the execution of the planned robbery of the three young men who happened to be the occupants of the car, and some moderation in the degree of notional accumulation of those sentences with the sentence I have indicated as appropriate for Count 7 (an offence marginally separate in time from that course of offending and unrelated to the preplanning of the robbery), I have concluded that an aggregate sentence of 20 years with a non-parole period of 14 years meets the range of sentencing objectives embodied in s 3A of the Crimes (Sentencing Procedure) Act, including general deterrence and the need to ensure that the applicant’s criminal conduct is soundly denounced without ignoring the need to provide for his ultimate reintegration into the community to consolidate the progress he has made to date in confronting his use of drugs and in remaining drug free.

69. I acknowledge that the balance of the aggregate term I propose exceeds one third of the non-parole period. This is consistent with my finding that there are special circumstances warranting an alteration in the statutory ratio provided for in s 44(2) of the Crimes (Sentencing Procedure) Act, albeit to a modest degree. Those circumstances include that this is the applicant’s first custodial sentence as a young man and the need to enhance the prospects of his rehabilitation in the community by providing for an extended period of supervision and support at the expiration of a lengthy non-parole period.

Orders:

71. I propose the following orders:

1.    Leave to appeal granted.

2.   The appeal is allowed.

3.   Quash the sentence imposed in the District Court on 16 September 2016.

4.   In lieu thereof, the applicant is sentenced to an aggregate term of imprisonment of 20 years comprising a non-parole period of 14 years commencing on 3 April 2014 and expiring on 2 April 2028, with a balance of term of 6 years expiring on 2 April 2034.

72. FAGAN J: I agree with Fullerton J.

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Decision last updated: 04 December 2017