Day v The King

[2023] ACTCA 39

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:

Day v R

Citation: 

[2023] ACTCA 39

Hearing Date: 

17 August 2023

Decision Date: 

11 October 2023

Before:

McCallum CJ, Loukas-Karlsson and Abraham JJ

Decision: 

The appeal is dismissed.

Catchwords: 

APPEAL – CRIMINAL LAW – Appeal against sentence – whether sentencing judge failed to consider the subjective circumstances of the offender – whether sentence manifestly excessive – whether sentencing judge failed to consider principle of totality – appeal dismissed

Legislation Cited: 

Crimes (Sentencing) Act 2005 (ACT) ss 31(1), 34(1)(c), 35(1)(m)

Crimes Act 1900 (ACT) ss 28(2)(a), 30, 116(3), 374, 374(9)

Family Violence Act 2016 (ACT) s 43(2)

Cases Cited: 

Bugmy v The Queen [2013] HCA 37; 249 CLR 571

Carr v R [2020] NSWCCA 214

Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41

Director of Public Prosecutions v Dalgliesh [2017] HCA 41; 262 CLR 428

Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520

Imbornone v R [2017] NSWCCA 144

Regina v Baker [2000] NSWCCA 85

R v UG [2020] ACTCA 8; 281 A Crim R 291

R v Potts [2018] ACTSC 299

R v Green [2021] ACTSC 13

R v Qutami [2001] NSWCCA 353; 127 A Crim R 369

The Queen v Pham [2015] HCA 39; 256 CLR 550

The Queen v Omari [2022] ACTCA 4

Tracey v The Queen [2020] ACTCA 51

Parties: 

Benjamin Paul Day ( Appellant)

The King ( Crown)

Representation: 

Counsel

Mr J White SC ( Appellant)

Mr T Hickey (Crown)

Solicitors

Legal Aid ACT ( Appellant)

ACT Director of Public Prosecutions ( Respondent)

File Number:

ACTCA 1 of 2023

Decision Under Appeal:

Court:    Supreme Court of the ACT

Before:   Kennett J

Date of Decision:       16 December 2022

Case Title:                 R v Day (No 2)

Citation: [2022] ACTSC 352

Court File Numbers:   SCC 1 of 2022

  SCC 2 of 2022

THE COURT:

Introduction

1․On 16 December 2022, the appellant was sentenced as follows (having been found guilty of the first four of these offences by a jury after trial, and having been found guilty of the fifth offence by the sentencing judge at sentencing): 

(a)Count 1 (choke, suffocate or strangle, contrary to s 28(2)(a) of the Crimes Act 1900 (ACT) (Crimes Act): imprisonment for one year, three months (commencing 13 March 2022 and expiring 12 June 2023);

(b)Count 2 (choke, suffocate or strangle, contrary to s 28(2)(a) of the Crimes Act): imprisonment of two years, six months (commencing 1 September 2022 and expiring 28 February 2025);

(c)Count 3 (threat to kill, contrary to s 30 of the Crimes Act): three years, six months (commencing 1 February 2023 and expiring 31 July 2026);

(d)Count 4 (contravene family violence order contrary to s 43(2) of the Family Violence Act 2016 (ACT) (Family Violence Act): imprisonment for one year (commencing 13 September 2025 and expiring 12 September 2026); and

(e)Transfer offence (damage property, contrary to s 116(3) of the Crimes Act): fine of $500 to be paid within 12 months.

2․The total effective head sentence was imprisonment for 4 years and 6 months, with a nonparole period of 2 years and 10 months imposed.

3․The maximum penalty for each of counts 1 and 2 was 5 years imprisonment. For count 4, it was 5 years imprisonment, a penalty of $80,000, or both. For count 3, it was 10 years imprisonment.

4․The appellant advanced five grounds of appeal in relation to the four counts on which he was found guilty by the jury. Those grounds allege that the sentencing judge failed to take into account the appellant’s subjective circumstances; the accumulation of the individual sentences was excessive or the sentencing judge failed to take into account totality; and that the individual sentences, the aggregate sentence and the nonparole period imposed were manifestly excessive.

5․For the reasons below, the appeal is dismissed.

Factual overview

6․The sentencing judge’s factual findings as to the basis of the offences are not challenged.

7․These offences occurred in a domestic violence context. The appellant and the victim had a short relationship in 2015 or 2016, which ended acrimoniously. In 2019, the appellant and victim started seeing each other again, albeit, they had separated briefly on a number of occasions in the months leading up to the offending.

8․The offences occurred on the night of 1 September 2021. During the afternoon and that evening, the appellant and the victim watched TV together. After dinner, they did so lying on a mattress on the floor between the couch and the TV in the lounge room. Shortly after 11:00pm, the appellant asked for the TV to be turned off, which the victim did and they settled down to bed.

9․Around 20 minutes later, the appellant started muttering under his breath, saying words to the effect of “I hate you, I hate you”. He said he was not going to work in the morning nor having any Suboxone (which is a prescription medicine used to treat persons with opioid misuse). After around 30 seconds to a minute, the appellant pushed the victim off the mattress and onto the ground (which was a distance of around 30cm). He then stood up and walked around the bed to where the victim was lying on her side. He turned on the lights. He put either one or both of his hands on the sides of the victim’s neck, and applied a level of force that the victim ranked as “about a 5” (where “10” is somebody squeezing as hard as possible) for around 10 or 20 seconds. It did not restrict the victim’s breathing and she considered it “just like a warning”. This formed count 1. 

10․Some hours later, between 3:00am and 4:00am, the appellant started telling the victim to “get out”. She was scared he might assault her if she picked up and took his keys, and so she asked him whether he was sure. The appellant again told her to leave. However, while the victim was opening the front door the appellant grabbed her from behind, attempting to prevent her from leaving. The victim leaned forward and the two tumbled through the door. The victim crawled a couple of metres along the ground to a pole (that supported the roof of a pergola) and while still on the ground, she wrapped her right leg around the pole and grabbed it with her hands. The appellant then placed two hands around her neck and tried to pull her off the pole and back to the house. He was applying so much pressure to the victim’s throat that she could not breathe (describing it as being 8 out of 10). In order to get a better grip to pull the victim, the appellant put one hand under her arm while keeping the other against her throat (the level of force against her throat at this time was 6 out of 10). This formed the basis of count 2.

11․While the offender was changing position from having two hands around the victim’s neck to having only one, the victim attempted to shout “help”, but her voice was muffled. She said she tried to shout a number of further times but was not very loud. The offender said words to the effect of “[t]hat’s it. You’re fucked. I am dragging you back inside right now, and you are dead. The police are coming. We’re both gonna die tonight”. This is the basis of count 3.

12․The appellant ran into his house, and the victim ran across the road where neighbours called the police. The victim estimated there was only around a minute, to a minute and a half, between when she escaped out of the house to when she ran across the road.

13․On 27 November 2020, a family violence order (FVO) had been made that prohibited the appellant from being within 100 meters of the victim and engaging in behaviour that constitutes family violence against her. The conduct described above constituted the contravention of the FVO. This is count 4.

14․The sentencing judge was satisfied beyond reasonable doubt that the appellant also took the victim’s mobile telephone out of her handbag that night, and damaged it. This is the transferred offence.

15․As to the objective seriousness of the offences, the sentencing judge made the following findings.

16․In respect to counts 1 and 2 at [41]-[43]:

41.Factors such as duration, amount of force, extent of obstruction of breath, resulting injuries and surrounding circumstances are relevant to a consideration of the objective seriousness of offences of this kind.

42.The first count falls in the low range of objective seriousness but the upper end of that range. It was unprovoked and occurred just after the victim was pushed out of bed. The duration was short relative to the comparative cases, but far from fleeting. The amount of force used was described as being approximately five out of 10. It did not restrict the victim’s breathing but must have caused some fear. Increasing this act’s objective seriousness is the fact that it was accompanied by verbal abuse and, as noted above, in circumstances where the victim was isolated and vulnerable.

43.The second count was more serious. It involved a significant degree of force and resulted in the victim being unable to breathe. It was accompanied by a threat to kill and attempts to drag the victim back inside the house from which she was attempting to flee. I consider that this falls within the mid-range of objective seriousness of offences of this kind, but the lower end of that range. The duration was relatively short and there is no evidence the victim suffered from effects such as dizziness.

17․In respect to count 3 at [44]-[45]:

44.The circumstances surrounding the making of a threat to kill are very relevant to an assessment of the threat’s seriousness: R v Williams [2016] ACTSC 389, [45].

45.The fact there was no weapon involved at the time the threat was made makes this offending less serious than it would otherwise have been, but not greatly so. The surrounding circumstances were such that the victim would have considered the threat quickly realisable. She had just been choked to the point of being unable to breathe. Inside the house, where the offender was trying forcibly to take her, were a number of items capable of being used as weapons. I consider this offence to be a serious offence of its kind.

18․In respect to count 4 at [49]:

I find that the relevant conduct falls in the upper end of the mid-range of objective seriousness for offences of this kind. However, because the acts relied upon constitute elements of other offences, there will be significant periods of concurrency in the sentence I impose in relation to this offence.

19․The transfer offence was found at [50] to be at the lower range of objective seriousness for offences of its type.

20․There is no specific ground of appeal challenging the correctness of those findings.

Ground (a): the sentencing judge failed to take into account the appellant’s subjective circumstances

21․This appellant submitted that there are three errors in the way the sentencing judge approached the appellant’s subjective circumstances, with the cumulative effect that his Honour “failed to give proper weight to the appellant’s subjective circumstances in the sentencing exercise”. The purported errors are as follows.

22․First, the sentencing judge erred in refusing to accept statements made by the appellant concerning his subjective circumstances to the author of the pre-sentence report (PSR). The appellant criticised his Honour’s conclusion that “I have reservations about accepting at face statements made to the author of the pre-sentence report, untested in cross-examination” without identifying which aspect, save for the appellant’s drug taking. He submitted that harbouring a reservation on that did not justify the general expression of reservation in respect of all “untested” statements, and there was no warrant to make such a finding. The prosecution did not challenge the contents of the report. The appellant also referred to s 34(1)(c) Crimes (Sentencing) Act 2005 (ACT) (CSA), where the fact an offender did not give evidence is an irrelevant consideration in sentencing.

23․Second, his Honour erred in finding that the appellant “displayed a confusing and concerning attitude to his offences to the author of the pre-sentence report”: at [66]. The appellant submitted this finding denied him the benefit on sentence that his insight into his offending behaviour should have afforded him; and was tantamount to penalising the appellant for his failure to accept his guilt (referring to s 31(1)(f) and (w) of the CSA). He submitted that it should be borne in mind when assessing the appellant’s attitude recorded in the PSR that it was based on the police statement of facts which did not reflect the evidence actually given in the trial. Further, it would be an error to ignore the offender’s insight into the offending behaviour, and his evident remorse, just because he maintained his innocence of the charges against him. It would also be an error to take into account against the appellant his supposed “concerning” attitude.

24․Third, the appellant’s subjective circumstances were much more compelling and pro-social than his Honour appeared to allow. Having referred to s 35(1)(m) of the CSA, the appellant submitted that because of the scepticism of the evidence by the sentencing judge, he did not identify or analyse subjective characteristics which were favourable to the appellant, and which were relevant to the amelioration of any sentence. The appellant identified what he said those matters were, as well as further matters he said were relevant to putting the offending behaviour in context.

25․The respondent submitted that the sentencing reasons, properly read, demonstrate that it is apparent that those grounds are not established, that the identified matters were taken into account, and the findings were well open. The respondent submitted that the appellant is putting a case different to that advanced below, and not established on the evidence.

Consideration

26․We have recited the appellant’s submissions in relative detail, because it reflects that in reality, despite assertions to the contrary, this ground is directed to the weight that the sentencing judge gave to the appellant’s subjective circumstances. The submissions reflect no more than disagreement with the sentencing judge’s assessment.

27․A failure to “properly” acknowledge or consider what are now said to be relevant considerations is not capable of providing a basis for appellate intervention, unless the appellant established that there was a failure to take those matters into account. Further, an allegation going to “weight” is incapable of establishing a specific error for appellate intervention: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [53], and see for example, Carr v R [2020] NSWCCA 214 at [47]-[49]; Regina v Baker [2000] NSWCCA 85 at [11]. Weight is quintessentially a matter for the sentencing judge.

28․The appellant has not established that the subjective matters were not taken into account.

29․The sentencing judge summarised the appellant’s subjective case at [51]-[70]. This was based on the PSR, material tendered by the appellant and submissions.

30․It is to be recalled that although it is incumbent upon a sentencing judge to explain their findings, it does not follow that a failure to refer to a fact or topic permits an inference that the matter has not been taken into account amounting to a finding of error on appeal. What, if any inference can be drawn will depend on the facts of the particular case.

31․Addressing a similar submission, this Court in R v UG [2020] ACTCA 8; 281 A Crim R 291 at [63]-[64] observed:

63.Neither the Sentencing Act nor the general law requires a sentencing judge to give lengthy reasons.  The delivery of ponderous reasons that rehearse every conceivable consideration should be avoided as it is inimical to the prompt sentencing of offenders in a manner that is clearly communicated to the community and victim.  We agree with the following observations of the Court of Appeal in Chin-Charles v The Queen [2019] EWCA Crim 1140, albeit that the observations concern sentencing within a different statutory framework (at [7]–[8]):

There has been a tendency in recent years, understandable but unnecessary, to craft sentencing remarks with the eye to the Court of Appeal rather than the primary audience identified by Parliament.  This has led to longer and longer remarks.  It is not unusual to find the equivalent of a judgment, with extensive citation of authority, detailed discussion of the relevant guidelines, expansive recitation of the various arguments advanced and a comprehensive explanation of the resolution of factual and legal issues.  This should be avoided.  …

The task of the Court of Appeal is not to review the reasons of the sentencing judge as the Administrative Court would a public law decision.  Its task is to determine whether the sentence imposed was manifestly excessive or wrong in principle.  Arguments advanced on behalf of the appellants that this or that point was not mentioned in sentencing remarks, with an invitation to infer that the judge ignored it, rarely prosper.  Judges take into account all that has been placed before them and advanced in open court and in many instances, have presided over a trial.  The Court of Appeal is well aware of that.

64.There was no error in the way in which the sentencing judge expressed his reasons for sentence.  The fact that there was no reference to some matters and only brief reference to others does not, of itself, permit an inference that his Honour failed to take into account all the evidence that was relevant to an assessment of the objective seriousness of the offending conduct.

32․It is plain from the sentencing remarks that his Honour was conversant with the material before him relating to the appellant’s subjective circumstances. No inference can be drawn from the failure to refer to a particular fact, which the appellant now considers to be particularly important to support him, that the sentencing judge was not aware of that fact, or that was not considered.

33․In any event, the matters identified by the appellant as “strikingly pro-social” going to rehabilitation, which he submitted were not identified or taken into account in sentencing, or not having been dealt with appropriately were, save for one limited matter, expressly identified by the sentencing judge. It may be accepted that they were not referred to with the emphasis or in the manner that the appellant might have desired, but the references reflected the material before the sentencing judge. The matter not referred to is that he has had a stable housing record since 2016 and has a positive relationship with his neighbours. It is unclear how, in the context of family violence offences, this matter could be characterised as strikingly pro-social conduct such as to materially impact on the sentencing.

34․Moreover, the appellant’s submissions, in some respect elevate the matters relied on to a level not supported by the evidence. For example, one of the matters identified was that the appellant had “a particularly strong employment history”, whereas the PSR described the appellant as reporting a “fairly consistent employment history since leaving school outside of his periods in custody”. There was a submission that there was “strong engagement with the PSR author”, whereas the PSR states that the appellant “reported as directed and engaged satisfactorily with the assessor”.

35․Further, the matters now advanced include many not referred to below in submissions. Nor was there any submission at first instance that there were a number of “strikingly pro-social” matters in his subjective case. Emphasis is now placed on matters which did not have that prominence before the sentencing judge. This tells against the appellant’s submission regarding the significance of those matters and their impact on the exercise of the sentencing discretion, in the circumstances of this case. The appellant’s approach taken before the sentencing judge is not surprising given the offending, the appellant’s prior history, the material before the sentencing judge, and the fact the material itself expressed various reservations.

36․The appellant’s submissions generally described the subjective features at a level not borne out by the material, particularly considered in its proper context. There is an artificiality about the appellant’s approach on appeal. This is also illustrated by the purported first and second errors.

37․The passages that underpin those purported errors are [66] and [68] of the sentencing reasons. Those passages must be considered in context. Having summarised the appellant’s subjective case, the sentencing judge said at [66] and [68]-[69]:

66.The offender displayed a confusing and concerning attitude to his offences to the author of the pre-sentence report. He claimed to have accepted the decision of the Court, but also maintained he did not commit the offences. He attributed his actions to emotional turmoil he was experiencing after his separation from his former partner. He also stated that his actions were unjustified, that he was seeking support for mental health issues and that he felt guilty for what he had done. It was noted by the author of the pre-sentence report that these statements appear to be in direct contradiction [to] the offender’s belief that the offences did not occur. I agree, and also note that the offender separated from his former partner almost two years prior to the offending.

…

68.The offender bears the burden of proving on the balance of probabilities matters which are submitted in his favour: Filippou v The Queen [2015] HCA 29; 256 CLR 47 (Filippou) at [64], [66]. Although the rules of evidence do not apply in this proceeding (Evidence Act 2011 (ACT), s 4(2)), I have reservations about accepting at face statements made to the author of the pre-sentence report, untested in cross-examination.

69.This is especially the case, given the disclaimer in the report referred to above, where statements appear self-serving. I note that in at least two instances there was evidence adduced at trial that is inconsistent with the offender’s statements to the author of [the] pre-sentence report. The victim gave evidence that she asked the offender for some cannabis and that he said she “wasn’t allowed to have any of the good stuff that we had, that I had to smoke the leaf, that the good stuff was for him.” The victim also repeatedly denied that she had ever bought heroin for the offender to assist him commit suicide, though she had, on her version of events, repeatedly bought him heroin. In these circumstances I do not accept that the offender ceased using drugs five or six years ago. I do, however, accept that the offender had a difficult upbringing.

38․There is other context. As observed by the sentencing judge at [69], the PSR came with a disclaimer that “much of the information contained in this report was unable to be verified due to Mr Day failing to provide a suitable contact for verification”. This disclaimer appears at the outset of the report. Moreover, the contents of the PSR were not necessarily positive for the appellant’s prospects of rehabilitation, with the author reporting a number of facts adverse to the appellant. Although the author referred to some positive protective factors which the appellant “appears to have”, the author also at times expressed scepticism of what he had said.

39․For example, in the opinion section of the PSR the author said that:  

It is possible that Mr Day's exposure to aggression at a young age has shaped his attitude towards violence as an adult. While Mr Day has espoused statements that appear to demonstrate a level of victim empathy, his dismissive comments of the victim's behaviour when combined with his denying culpability of his offences are of concern. His attitude to the victim indicates a need to protect the victim of the offences from potential violence or harassment from the offender. The level of risk to the victim and other women that Mr Day associates with, may be reduced if he completes a specific family violence program. It is noted that ACT Corrective Services has a 40-hour spousal abuse program available in both custody and the community.

40․The PSR also details the appellant’s prior involvement with Corrections, referring to his criminal history dating back to 1994. The sentencing judge refers to it as a significant criminal history, which includes “repeated family violence offences and other offences involving violence”: at [81], and see [71]. He has previous convictions for serious family violence offences. Recently, he had been convicted of two contraventions of FVOs (one on 25 January 2022, and another on 5 June 2020) as well as one common assault that was committed in the context of family violence: at [71].

41․The appellant’s submission appears to proceed on the basis that, absent the prosecution challenging the contents of the PSR, the sentencing judge was bound to accept whatever the appellant told the author. That submission cannot be accepted. The PSR on its face raises matters of concern.

42․The appellant’s approach that the judge was bound to accept his statements at their highest is clearly illustrated by his tendency to overstate the PSR’s assistance to his case. He submitted his “recorded attitude to the offences disclosed significant insight into the offending and the impact upon the victim”. However, as with other submissions by the appellant, this assertion is not supported by his statements as recorded in the PSR. As reflected in the PSR in the passage recited above (amongst others), the PSR author does not support that conclusion.

43․The appellant’s submission which is that he is being denied the benefit of the contents of the PSR also ignores that not all the contents are favourable to his submission. There is no submission which is directed to why the sentencing judge is required to accept the statements of the appellant recorded in the report, yet ignore the unfavourable references, and the issues of concern held by the author.

44․The appellant had an opportunity to address the matters in the PSR that raise concerns in the sentencing hearing, but chose not to. Given the context and content of the concerns, that reflects a forensic decision by the appellant. Again, this reflects on the manner in which the appellant is now advancing his case, being inconsistent to the approach below. It is correct, as the sentencing judge observed, that the onus is on the appellant to establish matters which he submits are favourable to him.

45․The reasons reflect that the impugned conclusion was reached given his Honour’s consideration of the content of the material relied on. As his Honour explained, there is inconsistency in the material. As to the explanation provided by the appellant for his conduct as reflected in [66] of the sentencing reasons, his Honour correctly states that the offender separated from his former partner almost two years prior to the offending. We note also that the appellant’s statements as to his attitude to the offences are given in a context where he has repeated offences of serious family violence.

46․In the circumstances, the sentencing judge was entitled to have reservations about the untested statements. The sentencing judge immediately thereafter referred at [69] to inconsistencies between the evidence at the trial and the appellant’s statements in the PSR in relation to drug taking. His Honour was entitled to do so.

47․A sentencing judge is not required to say how much weight is attached to each aspect of the subjective circumstances advanced by an offender. A fair reading of the sentencing reasons reflects those matters of concern being addressed by the sentencing judge.

48․The appellant has not established any error of approach in [66] or [68]. Rather, there is an evident and proper foundation for the conclusions.

49․The sentencing judge was not obliged to unquestioningly accept the material relied on by the appellant (favourable to him). Indeed, on a proper reading of the material and the sentencing reasons, as the respondent submitted, his Honour’s reservations about accepting at face value the appellant’s statements is unsurprising.

50․The appellant has not established this ground of appeal.

Grounds (b)-(e): The sentences are manifestly excessive and fail to consider totality

51․The appellant contends that the individual sentences are manifestly excessive, as is the total sentence and the nonparole period.

52․In large part, this submission is advanced on the basis of statistics from sentences in the Magistrates Court in relation to these offences. On that basis, he submitted that these cases are generally dealt with in the Magistrates Court, and the range of sentences is much lower than the sentences imposed in the present matter. The appellant submitted that in relation to the first two offences, accepting the sentencing judge’s characterisation as to objective seriousness, the sentences were significantly discordant with current sentencing practice, and were otherwise manifestly excessive. He noted the offences appeared to last seconds rather than longer. In relation to count 3, the sentencing judge erred in characterising this offence as being a serious offence of its kind. The duration of the offence was short (a minute to a minute and a half), and the victim immediately ran to the safety of the neighbours who contacted police. He submitted that when one compares this to the events in R v Potts [2018] ACTSC 299 (Potts) and R v Green [2021] ACTSC 13 (Green) (both of whom received lesser sentences for markedly more serious conduct), the manifest excess of the current sentence can be seen. As to count 4, the appellant submitted that very few offenders received greater sentences for this offence, which sits uncomfortably with his Honour’s characterisation of the offence as being of mid-range objective seriousness.

Consideration

53․The principles relating to a claim of manifest excess are well known, and were recently summarised by this Court in Tracey v The Queen [2020] ACTCA 51 at [37]-[38]:

37.The principles in relation to assessing whether a sentence is manifestly excessive are well-established. Appellate intervention is not justified simply because an appellate court may have a different view as to the most appropriate sentence (Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15]; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [28]) or where the sentence is markedly different from sentences that have been imposed in other cases (Wong v The Queen [2001] HCA 64; 207 CLR 584 at [58] (Wong); Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [58] (Hili)). Rather, the appellant must demonstrate that the sentence is such that it may be inferred that there was a misapplication of principle by the sentencing judge, although when and how the error occurred is not apparent from the judge’s reasons: Wong at [58]; Hili at [58]–[59], [75]–[76].

38.To determine whether a sentence is manifestly excessive, it is necessary to view it in the context of the maximum sentence prescribed for the offence, the standards of sentencing customarily observed with respect to the offence, the relative objective seriousness of the particular offence, and the personal circumstances of the offender.

54․In Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 (Hili), in respect to the relevance of previous sentences, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ at [53]-[54] observed:

53.Next, in seeking consistency, sentencing judges must have regard to what has been done in other cases. In the present matter, the prosecution produced detailed information, for the sentencing judge and for the Court of Criminal Appeal, about sentences that had been passed in other cases... Care must be taken, however, in using what has been done in other cases.

54.In Director of Public Prosecutions (Cth) v De La Rosa Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: "Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts." But the range of sentences that have been imposed in the past does not fix "the boundaries within which future judges must, or even ought, to sentence". Past sentences "are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence" (emphasis added). When considering past sentences, "it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned".

(Footnotes omitted.)

55․Relevantly, in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428, Kiefel CJ, Bell and Keane JJ at [49] observed:

In Elias v The Queen, French CJ, Hayne, Kiefel, Bell and Keane JJ said: "[t]he administration of the criminal law involves individualised justice". The imposition of a just sentence on an offender in a particular case is an exercise of judicial discretion concerned to do justice in that case. It is also the case that, as Gleeson CJ said in Wong v The Queen: "[t]he administration of criminal justice works as a system ... It should be systematically fair, and that involves, amongst other things, reasonable consistency." As was explained by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Hili v The Queen: "[t]he consistency that is sought is consistency in the application of the relevant legal principles."

(Footnotes omitted.)

See also The Queen v Pham [2015] HCA 39; 256 CLR 550 at [28] per French CJ, Keane and Nettle JJ.

56․Recently, in The Queen v Omari [2022] ACTCA 4 at [57], this Court observed:

Although consideration of sentences imposed in comparable cases may be useful, care must be taken with respect to the range revealed by the cases referred to, noting that current patterns of sentencing do not cap the upper and lower ranges of a possible sentence: Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41: 262 CLR 428 at [83]; and Barbaro v The Queen [2014] HCA 2; 253 CLR 58 at [40]‑[41]. Further, care must be taken to consider whether cases referred to are truly comparable, given the objective and subjective differences between cases and the need to render individual justice: R v Todoroski [2010] NSWCCA 75 at [26]. See generally R v Duffy where this Court observed:

[92]Comparable cases from the relevant jurisdiction are of most interest because, even where the maximum available penalties in different jurisdictions are the same, 'unifying principles' may be expressed slightly differently and sentencing patterns may differ between jurisdictions. Further, a sentencing pattern that is disclosed by comparable cases from the relevant jurisdiction is not determinative because consistency in sentencing is not demonstrated by, and does not require, numerical equivalence: Hili. Nevertheless, current sentencing patterns can provide some evidence of the usual sentencing range and may provide some support for an argument that the sentence under appeal fell outside the available sentencing range.

57․In light of the appellant’s reliance on statistics it is appropriate to refer to Hili at [55], where the Court cited the following statement from the plurality in Wong at [59] with approval:

[R]ecording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were.

(Emphasis in the original.)

58․That passage reflects why the appellant’s submissions based on statistics, from another Court, does not assist in this case. In addition to not articulating the circumstances of the offences or the offenders, some of the statistics relate to indictable offences dealt with summarily: s 374 of the Crimes Act. Where that occurs, s 374(9) limits the penalty that can be imposed, relevantly to imprisonment for two years.

59․Moreover, although the appellant acknowledges that consistency in sentencing is directed to consistency in the application of principle, he nonetheless compares his conduct favourably to that in Potts and Green.

60․His Honour concluded at [78], that “[s]pecific deterrence is a prominent sentencing purpose given the offender’s criminal history. Other relevant purposes include general deterrence, adequate punishment, the need for accountability and recognition of the harm done to the community”. At [80] his Honour rejects the appellant’s application for an intensive correction order:

… Given the offender’s criminal antecedents I do not consider that a community-based sentence would adequately fulfil the sentencing purposes outlined above, particularly that of general deterrence. In any event, an ICO is not an available sentencing option because the term of imprisonment that I have concluded is appropriate is longer than four years.

61․At [81], the sentencing judge states:

In view of the offender’s fairly lengthy criminal history, which includes repeated family violence offences and other offences involving violence persisting into his forties, his prospects of rehabilitation must be regarded with caution. The nonparole period that I will fix will, it is to be hoped, give him an incentive to pursue opportunities for rehabilitation.

62․Given the circumstances of the offences and the appellant, those conclusions are well open and properly made.

63․Current sentence practice is only one sentencing consideration. The shortcomings in the appellant’s reliance on statistics is referred to above. The Crown referred the sentencing judge to a number of other cases during the sentencing hearing but observed that they were not really comparable. Simply because a case has different features does not mean it may not provide assistance generally as to the range of sentences being imposed. Factually comparable cases are difficult to find, as the facts of the offence and the offender are both relevant. Given that reality, a sentence imposed in a factually more serious case (or less serious case) may, with other cases, provide some guidance. The assistance depends on the facts of the given cases. This is bearing in mind, the relevant inquiry for manifest excess is not just a comparison between cases. His Honour considered the cases referred to, analysing the circumstances in which the sentences were imposed.

64․As noted above at [59․], on appeal the appellant referred to other cases, including Potts, submitting the facts were more serious in that case, yet the sentence imposed for the threat to kill was less than in the present case.

65․In so far as the appellant suggests under this ground that there is an error in his Honour’s characterisation of count 3, the threat to kill, we note that there is no ground of appeal alleging this error rendered his Honour’s conclusion not open. In any event, the conclusion was plainly open. The appellant’s submissions fail to recognise the context in which the threat was made, as correctly explained by the sentencing judge at [45], recited above at [17․]. His Honour’s characterisation is correct.

66․Given the nature of the offences and relevant sentencing principles, it has not been demonstrated that the individual sentences, the aggregate sentence or the nonparole period imposed were outside the range of sentences properly available.

67․The principles in relation to concurrency and accumulation were conveniently summarised in Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41 at [27]:

In any event there 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.

68․The sentencing judge ordered a substantial degree of concurrency between the offences. Indeed, the result is that the sentence on count 2 is entirely subsumed with other sentences. The fourth count is also nearly subsumed. In addition, there is also approximately four months’ concurrence between counts 1 and 3.

69․The appellant’s submission that the judge failed to consider the principle of totality cannot be accepted. Although it may be accepted that the principle was not expressly referred to, the sentencing remarks read fairly, reflect the sentencing judge did consider the totality of the sentence. As apparent from [80], recited above, the sentencing judge considered that the appropriate total sentence warranted was longer than four years. This reflects that his Honour turned his mind to and did consider the issue of totality.

70․The appellant has not established that the sentencing judge failed to consider the principle of totality.

71․The offending conduct, a violent attack on his partner is very serious. This occurred in the context of a history of previous acts of domestic violence. There is little in terms of mitigating factors. General and personal deterrence must play a significant role in any sentence imposed. Although the total sentence may be described as stern, the appellant has not established that in the circumstances of this case that it is manifestly excessive.

72․Grounds (b)-(e) are not established.

Conclusion

73․As the appellant has not established any of the grounds, the appeal is dismissed.

******************

Amendments

12 October 2023        Replace “counts 1 and 2” with “counts 1 and 3”       Paragraph [68]

I certify that the preceding seventy-three [73] numbered paragraphs are a true copy of the Reasons for Judgment of the Court.

Associate:

Date: 12 October 2023