Dennis v The King

[2024] NSWCCA 137

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Dennis v R [2024] NSWCCA 137

Hearing dates:

29 May 2024

Date of orders:

26 July 2024

Decision date:

26 July 2024

Before:

Harrison CJ at CL at [1]
Garling J at [2]
McNaughton J at [93]

Decision:

See [92]

Catchwords:

CRIME – Appeals – Appeal against sentence – Application for leave to appeal – Whether the sentencing judge mistook facts in finding aggravating circumstances for a Form 1 offence – Whether the sentencing judge erred in admitting on sentence, and having regard to, the applicant’s criminal history for offences committed as a child.

Legislation Cited:

Children (Criminal Proceedings) Act 1987

Crimes Act 1900

Crimes (Domestic and Personal Violence) Act 2007

Cases Cited:

Dungay v R [2020] NSWCCA 209

Fayad v R [2017] NSWCCA 81

Ibbotson (a pseudonym) v R [2020] NSWCCA 92

Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601

Newman (a pseudonym) v R [2019] NSWCCA 157

Texts Cited:

Not Applicable

Category:

Principal judgment

Parties:

Zack Dennis (Applicant)
Crown (Respondent)

Representation:

Counsel:
S Fraser (Applicant)
P Hogan (Respondent)

Solicitors:
Aboriginal Legal Service (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2021/71933

Publication restriction:

Publication of names and any information or material that may lead to the identification of the applicant or the victims is prohibited: Crimes Act 1900 (NSW), s 578A; Children (Criminal Proceedings) Act 1987 (NSW), s 15A

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

22 May 2023

Before:

Turnbull SC DCJ

File Number(s):

2021/71933

HEADNOTE

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

On 31 August 2022, Zachary Dennis (the applicant) was sentenced to an aggregate sentence of 7 years and 6 months imprisonment, with a non-parole period of 4 years and 2 months.

The applicant had pleaded guilty to two offences. Count 1 was an offence of aggravated sexual intercourse without consent contrary to s 61J(1) Crimes Act 1900. For this offence, the applicant asked the Court to take into account, on a Form 1, an offence of intimidation intending to cause fear of physical or mental harm contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007. Count 2 was an attempt to commit the offence of aggravated sexual intercourse without consent contrary to s 61J(1) and s 344A(1) of the Crimes Act 1900.

The sentencing judge found that the intimidation offence, which was taken into account on a Form 1, took place at the home of the victim and was proximate to a child, which was considered to be an aggravating feature.

The sentencing judge with the consent of the parties admitted as material on sentence, the juvenile criminal history of the applicant, and made findings favourable to the applicant by reference to that record.

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: the Court mistook the facts when finding that the intimidation offence was aggravated by the offending being proximate to, and in the home of, a child;

Ground 2: the Court erred in admitting into evidence, and having regard to, entries on the applicant’s Children’s Court criminal history;

Ground 3: the sentence is manifestly excessive.

The Court (per Garling J; Harrison CJ at CL and McNaughton J agreeing) granted leave to appeal and held:

1. It was an error of fact for the sentencing judge to treat a statement made by CD, which was part of the circumstances surrounding the offence of intimidation, that there was a child in the home, as being the equivalent of an agreed admission that as a matter of fact there was a child in the home when the intimidation offence occurred [41]-[42]. It was an error for the sentencing judge to find that the objective seriousness of the intimidation was greater than it was because of this erroneous fact finding [44].

2. It was an error for the sentencing judge to admit into evidence the applicant’s juvenile criminal history records in the sentence proceedings because to do so was contrary to s 15 of the Children (Criminal Proceedings) Act 1987 [64]. That is so, even if the contents of the juvenile history are used by the applicant in an attempt to mitigate a sentence [63].

The Court quashed the sentence imposed by the District Court and substituted an aggregate sentence of 7 years, with a non-parole period of 3 years and 9 months.

JUDGMENT

1. HARRISON CJ at CL: I agree with the judgment of Garling J.

2. GARLING J: The applicant, Zachary Dennis seeks leave to appeal from an aggregate sentence imposed upon him by Turnbull SC DCJ, to whom I will refer to as the Judge, on 31 August 2022 in the District Court at Orange.

Proposed Grounds of Appeal

3. Should leave be granted, the applicant relies upon three grounds of appeal:

1. the Court mistook the facts when finding that the intimidation offence was aggravated by the offending being proximate to, and in the home of, a child;

2. the Court erred in admitting into evidence, and having regard to, entries on the applicant’s Children’s Court criminal history;

3. the sentence is manifestly excessive.

4. The applicant was sentenced for two offences. Count 1 was an offence of aggravated sexual intercourse without consent contrary to the provisions of s 61J(1) Crimes Act 1900. The offence was aggravated because the applicant inflicted actual bodily harm on the victim, who was referred to in the proceedings as SI. The maximum penalty for this offence was 20 years imprisonment and it carried a standard non-parole period of 10 years.

5. In being sentenced for this offence, the applicant asked the Court to take into account, on a Form 1, an offence contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 of intimidation intending to cause fear of physical or mental harm. The victim of this offence was referred to in the proceedings as CD.

6. Count 2 was an offence contrary to s 61J(1) and s 344A(1) of the Crimes Act being an attempt to commit the offence of aggravated sexual intercourse without consent. Again, the aggravating factor was the infliction of actual bodily harm on the victim SI.

7. The maximum penalty for this offence is 20 years imprisonment and no standard non‑parole period is fixed.

8. In respect of both of these offences, the applicant pleaded guilty in the Local Court. He maintained that plea when he appeared before the Judge in the District Court. As a consequence, the applicant was entitled to a 25% discount on any sentence indicated for the offences.

9. His Honour indicated a term of imprisonment of 6 years and 9 months for Count 1, including the Form 1 offence, with a non-parole period of 3 years and 9 months. For Count 2, his Honour indicated a sentence of 6 years.

10. Having indicated those sentences, his Honour proceeded to impose an aggregate sentence which comprised a total of 7 years and 6 months with a non‑parole period of 4 years and 2 months, which was to date from 13 March 2021 – being the date when the applicant was first taken into custody.

Remarks on Sentence

11. It is unnecessary at this stage to review in detail the entirety of his Honour’s Remarks on Sentence because Ground 1 of the proposed appeal raises a single error of fact with respect to Count 1, and so it will only be necessary to review the Judge’s findings of fact in that respect.

12. His Honour noted that each of the victims (SI and CD), who were partners, had one evening attended a local hotel in the Bathurst area, where they met the applicant and two other men, who were not known to each other. The group consumed alcohol over the course of their interactions at the hotel. They remained there enjoying themselves until the hotel closed in the early hours of the morning. They left the hotel at about 3.55am.

13. The victims invited the three men to their home unit to continue socialising.

14. The applicant and SI, the victim of the first offence, left the unit to walk to a nearby convenience store to purchase cigarette papers. As they were returning from the convenience store, the applicant started grabbing SI in an attempt to push her into an unlit area which had a number of bushes in it. A struggle occurred and SI recalled that at one point the applicant bent her over a fence, which was described as a low brick fence with horizontal metal bars on top of it.

15. The applicant began thrusting against SI from behind. At that stage, SI felt pain to her anus, and thought she felt the applicant’s hand. She grabbed his arm and tried to hold it to stop him from hurting her. She screamed hoping that it would attract attention and that someone would come to her assistance. She turned around to face the applicant, who then forced his hand down the front of her jeans and digitally penetrated her vagina causing her pain. This conduct constituted Count 1. SI’s next memory is of lying on some grass on the side of the road with the applicant on top of her, feeling as though she was being pinned to the ground with a hand around her neck. At this stage, the applicant attempted to insert his penis into her anus, causing a red mark on her skin in the peri-anal area. This conduct constituted Count 2. SI was able to break free and she started running away from the applicant. Although she stumbled and fell at one stage, SI was able to get back up and return to her unit where she banged on the door until it was opened.

16. The applicant returned to the unit and demanded that his shoes, which he had left there, be returned to him. He was told that he should leave.

17. It is at this stage that the intimidation offence, which was placed on the Form 1, occurred, the circumstances of which were noted by the Judge in this way.

18. After he was told to leave, the applicant spoke to CD, SI’s partner, and said:

“This is my land. I don’t have to leave. I’m going to jump on you. Get my things or I get the mob here.”

19. The applicant began repeatedly running back and charging at CD, raising his closed fist each time as if he was going to punch her in the face, but stopping his fist just centimetres from her face each time.

20. There was further conversation, including the applicant demanding that the males who were still in the unit come out and fight him. In the course of the verbal exchanges, CD told the applicant that her son also lived at the unit, and she did not want any trouble. At that point, the applicant began crying and walked away.

21. SI and CD attended the Bathurst Police Station at about 6.55am that morning and reported what had occurred.

22. The police attended at the unit where SI and CD lived. They made various observations, took photographs and obtained such evidence as they needed.

23. Investigations included taking DNA from various swabs of SI’s body in the areas where she had been assaulted, or where there had been an attempted assault. DNA matching that of the applicant was detected in those areas of SI’s body, on the interior of the rear of the black jeans being worn by SI, and on a pair of white socks which were located in the bedroom.

24. A Statement of Agreed Facts was put before the Court. For the facts relating to the intimidation offence, the victim of which was CD who had remained at home, there was no agreed fact that there was any child present in the home, or else in the immediate vicinity of the home. Indeed, there was no agreement as to whether either of the victims was the mother of a child, let alone one who was present in the unit at the time the intimidation offence occurred.

25. There was a reference in a later text message between the applicant and CD which included the following words at a time shortly after the offence had occurred. The context was that the applicant was attempting to retrieve his belongings – including his shoes.

26. The text read:

“You are welcome to get your things but not bring arguments and drama to my house. This is my sons home. I will leave them in the driveway next to the white house on the right.”

27. The facts which have been set out above are those upon which the Judge sentenced the applicant with respect to the two offences for which sentences were being imposed.

28. In describing the facts and circumstances surrounding the intimidation offence in his Remarks, the Judge said:

“Amidst all that, this criminal returns to the door and makes demands. The demands were punctuated by swearing and yelling and threats, including retribution from his ‘mob’. The charging and fist-raising, seemingly at the door at her own home, but certainly within its curtilage, which is an aggravating feature here for that matter, by a man who just sexually assaulted her partner, reflects a very serious state of affairs indeed. [CD] showed astonishing courage and staunchly stood between the offender and her home and heart [scil: hearth], and while she said she wasn’t scared of him, she must’ve been. To be called a racist by this man in these circumstances is really quite outrageous when all she was wanting to do was to have him leave and seemingly report what had occurred to the police.

To further engage by way of threats another occupant of the house confirms how out of control the offender was in and about the home of these women. It seems to me to be also an inevitable inference that I must draw that it was the abode of a child as well.” (emphasis added)

29. His Honour then went on to assess the objective seriousness of each of the charged offences. With respect to the first offence, his Honour accepted the Crown’s submission that it fell at the lower end of the mid-range of objective seriousness. He expressed his conclusion that the second offence also fell at that same level of objective seriousness.

30. The Judge then went on to say this:

“As I have already indicated, the Form 1 matter evidently raises an enhanced need to recognise personal deterrence and denunciation in the sentence for the events to which it attaches. I’ve noted there the aggravating feature in the home of the victim and seemingly proximate to a child.”

31. Later in his Remarks, the Judge said that the sentences which he indicated respectively for the two offences, were different because the sentence for the first offence:

“… principally will reflect the Form 1 component, given, as I do, I find that the indicted charges seem to fall at the same level of objective seriousness.

There was to be some accumulation, but really not substantial given totality and the related circumstances however that Form 1 is the key distinction.”

32. These Remarks immediately preceded the imposition of the aggregate sentence and the indication of the respective sentences for the two offences, which I have set out at [9]-[10] above.

Ground 1 – Error of Fact

33. The applicant made no complaint about the way in which his Honour approached the sentencing task where an offence is taken into account on a Form 1, namely, that such an offence may give rise to an enhanced need for denunciation and personal deterrence. It is inevitable, as the Judge acknowledged in that case, that the penalty will be different.

34. The applicant submitted that in assessing the need for personal deterrence and denunciation, the facts constituting the offence and the assessment of the objective seriousness of the conduct relating to the Form 1 offence must affect, and be a tangible enhancement of, the penalty imposed for the principal offence to which the Form 1 offence attaches.

35. He draws attention to the judgment of this Court in Fayad v R [2017] NSWCCA 81 at [48] where N Adams J said:

“… It is well established that a sentence can be increased to take into account matters on a Form 1: … The seriousness of a Form 1 offence is pertinent to the extent to which a sentence would be increased to take the offence into account.”

36. As the sentence being imposed for the principal offence is evaluated by the instinctive synthesis method, it is inevitable as the decision in Fayad says, that the more serious the Form 1 offence is assessed to be as a matter of objective fact, then it would follow that the need for personal deterrence would be heightened. Certainly, it is a significant factor to be taken into account in the sentencing process and may be considered as a matter which would affect the length of the sentence.

37. In this case, the applicant submits, particularly in light of the Judge’s Remarks referred to at [30]-[31] above, it is apparent that the effect of the assessment of the seriousness of the Form 1 offence, was manifest because of the differential between the two indicative sentences for Counts 1 and 2.

38. The applicant submitted that the Judge had made an error in finding the circumstance of aggravation of the Form 1 offence as being that there was a child in the house at the time of the offences, in circumstances where there was no evidence or an agreed fact that this was so.

39. The Crown submitted that whilst it was correct that there was no evidence that a child lived in the unit occupied by the two victims, nor was there any evidence that anyone else of whatever age lived in the unit, the finding of fact occurred only when the Judge was recounting the relevant facts and context, and that it was not seen to be, or else found beyond reasonable doubt to be, an aggravating factor in the assessment of the objective seriousness of the Form 1 offence.

40. The Crown submitted that the Judge had carefully chosen the expression “seemingly proximate to a child” to indicate that there was some uncertainty about the matter and that, accordingly, it could not be said that a positive finding that a child was present had been made.

41. It seems to me to be quite clear that the sentencing Judge conflated the difference between the agreed position that a statement was made by CD, was as a part of the circumstances surrounding the offence of intimidation, that there was a child in the home, and that as a matter of fact that was so. Put differently, the Judge treated the conversation as being the equivalent of an agreed admission that as a matter of fact there was such a child in the home where, and at the time, the offence of intimidation occurred.

42. This was an error of fact. There was no agreed fact, nor any other evidence, that either of the two victims had a child, nor that there was a child living, nor being present, at their home unit at the time of the offences.

43. It also seems to me to be clear from the terms in which the Judge expressed his Remarks, that he regarded the presence of a child in the home unit, being in close proximity to the intimidation offence taking place, as being a factor which aggravated the objective seriousness of the Form 1 offence. There was a clear finding by the Judge that there was a child living in the home. This finding is set out at [28] above. The finding was expressed, in my view, clearly to be an aggravating factor in the passage at [30].

44. His Honour has held, wrongly in my view, that the objective seriousness of the intimidation offence was greater than in truth it was because of his erroneous fact finding.

45. Even though the finding of objective seriousness of the principal offence accorded with the submissions of counsel for the applicant at the sentence hearing, there was no consensus about the objective seriousness of the Form 1 offence, nor the extent to which the Form 1 offence would affect the sentence to be imposed for Count 1.

46. In those circumstances, I am unable to say that the error of fact had no effect whatsoever on the ultimate sentence which was imposed, with the consequence that the error having been identified, this Court must proceed to re‑sentence the applicant in accordance with Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601.

Ground 2 – Children’s Court Criminal History

47. With respect to Ground 2, the applicant submits that it was an error of law for the Judge to admit into evidence for the purposes of sentencing, and then have regard to, entries on the applicant’s criminal history insofar as they related to offences committed by the applicant whilst he was a juvenile, or which were dealt with in the Children’s Court.

47. A part of Exhibit A tendered by the Crown in the proceedings on sentence was the applicant’s overall criminal history. It is clear that there were many entries which recorded findings of guilt for offences, and penalties being imposed, in a number of Children’s Courts. The applicant’s juvenile criminal history was far more extensive than that as an adult.

48. It is appropriate to note, in light of this ground, that no objection was taken by counsel for the applicant during the sentencing proceedings, to the tender of the applicant’s criminal history in its entirety, including the juvenile offending.

49. The Judge referred to the applicant’s criminal history in this way, in his Remarks:

“The [applicant’s] criminal record has no sexual offences and so does not disentitle him to leniency in that respect. Despite a period of persistent but relatively low-level offending from childhood, the [applicant] did have a period where he committed no offences, from 2016 to 2021, and that reflects well upon his prospects of not reoffending and rehabilitation, if as he must now accept and understand, he eschews or abandons drugs and alcohol.”

51. The applicant submits that the admission into evidence, and the taking into account of the applicant’s Children’s Court criminal history was an error of law because s 15(1) of the Children (Criminal Proceedings) Act 1987 (“CCP Act”) prohibits the Judge so doing.

52. Section 15(1) of the CCP Act is in the following terms:

“(1)   The fact that a person has pleaded guilty to an offence in, or has been found guilty of an offence by, a court (being an offence committed when that person was a child) shall not be admitted in evidence (whether as to guilt or the imposition of any penalty) in any criminal proceedings subsequently taken against the person in respect of any offence if –

(a)   a conviction was not recorded against the person in respect of the first-mentioned offence, and

(b)   the person has not, within the period of 2 years prior to the commencement of proceedings for the other offence, been subject to any judgment, sentence or order of the court whereby the person has been punished for any other offence.”

53. The two pre-conditions were satisfied in this case. The Crown accepted that no convictions had been recorded against the applicant in respect of any of his juvenile offences by reason of the provisions of s 14 of the CCP Act, in circumstances where all of those offences had been dealt with summarily in the Children’s Court. Accordingly, the first pre-condition in s 15(1)(a) of the CCP Act was satisfied.

54. The second pre-condition in s 15(1)(b) of the CCP Act was also satisfied, as the Crown accepted. That is because the applicant was charged in relation to the present offending on 13 March 2021. Prior to that he was last sentenced by the Bathurst Local Court on 31 January 2017. He was sentenced at that time to a number of s 9 “good behaviour” bonds for a maximum period of 10 months. These had all expired about three and a half years prior to the present offending. Accordingly, the provisions of s 15(1) of the CCP Act were applicable to preclude the admission into evidence in the proceedings on sentence.

55. Finally, the applicant submitted that even though the material was used for his benefit in mitigation of any sentence which was to be imposed, it was simply not admissible in the sentence proceedings and that an error of law had occurred by reason of the fact that the material had been admitted and was before the Judge.

56. The Crown accepted that the effect of s 15 of the CCP Act is that evidence of offences committed by the applicant before he turned 16 was inadmissible. However, the Crown qualified this submission, relying upon a passage in the judgment of N Adams J in Dungay v R [2020] NSWCCA 209 at [88] that the records were admissible in some circumstances, namely:

“… in the sense that it could not be used against the applicant but might properly be before the Court for other purposes …”

57. The Crown noted that before the Judge, the applicant’s submissions on sentence contained references to offending by the applicant as a juvenile, and then drawing by way of a submission to the applicant’s benefit, that he had not committed any offences in the five years leading up to the offences for which the applicant was being sentenced. The Crown noted that the applicant, in his sentencing submissions to the Judge, relied upon such absence of offending as providing an assurance for a positive finding that the applicant had good prospects of rehabilitation and was unlikely to commit further serious sexual offences.

58. As well, the Crown noted that the evidence of expert medical practitioners that was relied upon as being mitigating for the purposes of sentence, contained extensive references to the applicant’s record as a juvenile, the fact that he had spent time in custody whilst still a school student, and the fact that he had spent time in juvenile detention. Some other documents referred to specific details of the charges which were set out on the applicant’s juvenile criminal history.

59. Ultimately, the Crown submitted that the references to the offending by the applicant whilst he was a juvenile, were “a significant part of the applicant’s case on sentence”. The material was used to illustrate the on-set and significance of the applicant’s problems with alcohol and drugs and to provide the circumstances of early evidence of mental health issues and, as earlier noted, used as the basis of the submission about prospects of rehabilitation.

60. Finally, the Crown submitted that it was of importance to note that the matters which were inadmissible by reason of s 15 of the CCP Act, were taken into account by the Judge in a way which was advantageous to the applicant.

61. It is convenient to set out here the relevant passage to which the Crown referred in Dungay together with other passages of the judgment. N Adams J said:

“[88]   Regrettably, it is not uncommon for adult offenders to come before this Court with criminal histories spanning back to when they were children. Such records can be before the Court for different reasons. In the present case it was said to be relevant to show the applicant’s disadvantaged childhood, in other cases it may be relevant for other purposes of sentencing. When such records are tendered by the Crown it is important to be aware of the statutory provisions in the Children (Criminal Proceedings) Act which limit the circumstances in which matters on a child’s criminal history dealt with in the Children’s Court can be used against them when later being sentenced as an adult.

…

[92] The practical effect of s 15 is that if a child is found guilty in the Children’s Court but without any conviction entered and the offender is not subject to any other judicially imposed punishment for a period of two years then the finding of guilt is not admissible in any subsequent criminal proceedings.

…

[95] Although the relevance of ss 14 and 15 of the Act was brought to the attention of the sentencing judge …, her Honour went on to refer to some of these matters as convictions in her Sentencing Remarks when she observed that the applicant had a ‘record’ for offences, including ‘a serious offence of breaking and entering’ as a juvenile. The applicant was not convicted of these offences. They were not admissible in the sentence proceedings. …

[96]   The Crown conceded that error is established under this ground. …

[97]   I am satisfied that the Crown concession was properly made and should be accepted.”

62. The Crown submissions relied upon the statement that her Honour made in [88] to the effect that records of the Children’s Court could be used for different purposes. However, it seems to me that in that paragraph, her Honour was giving a general description of the broad circumstances pertaining to proceedings where juvenile criminal histories may be relevant. It is quite apparent that when one views those parts of her Honour’s judgment which I have set out above, there is no warrant for an interpretation of anything which her Honour has said as permitting the tender into evidence of Children’s Court criminal histories contrary to the provisions of s 15 of the CCP Act. To the contrary, her Honour specifically accepted the Crown’s concession of error, by reason of the admission of a juvenile’s criminal history, as being correct, as it plainly was.

63. The provisions of s 15 of the CCP Act do not permit any derogation from the prohibition on admissibility of a person’s past juvenile criminal offending history where the facts and circumstances demonstrate that the pre‑conditions set out in (a) and (b) of s 15(1) are fulfilled. That is so, even if the contents of the juvenile history are to be used by the applicant in an attempt to mitigate any sentence which is to be imposed.

64. It was an error in the sentence proceedings for the Judge to have admitted the applicant’s criminal history records.

65. It seems that his Honour’s error followed upon the failure of counsel either for the Crown or the applicant, to draw his Honour’s attention to the provisions of the CCP Act. These proceedings ought stand as a salutary reminder of the obligations of counsel appearing in matters to ensure that their clients are not in breach of applicable legislation and that any relevant legislation is drawn to the attention of the sentencing Judge.

66. The actual effect of this error in this case is unnecessary for this Court to determine. It is sufficient to note that the error had the capacity to affect the sentence imposed: Newman (a pseudonym) v R [2019] NSWCCA 157 at [11]; Ibbotson (a pseudonym) v R [2020] NSWCCA 92.

67. Whether such an error, if standing alone, would result in the need for an applicant to be re-sentenced will be a matter to be determined by reference to all of the facts and circumstances of each case. As the applicant has succeeded on Ground 1, which requires him to be re-sentenced, it would be otiose for the Court in this case to proceed to determine whether a re‑sentence is required as if Ground 2 was the only successful ground.

Ground 3 – Manifest Excess

68. In light of the fact that the Court is required to re-sentence the applicant by reason of the errors in respect of Grounds 1 and 2, there is no need to examine this Ground which relied upon latent rather than patent error. However, the submissions made respectively by the parties with respect to this Ground will be appropriate to be considered as part of the re-sentencing process.

Re-Sentence

69. I have earlier noted the terms of the legislation governing the offences to which the applicant pleaded guilty. I have noted that in respect of each offence, the maximum penalty is 20 years imprisonment, and that insofar as the first offence is concerned, there is a standard non-parole period of 10 years. There is no standard non-parole period for the second offence. The maximum penalty and the standard non-parole periods are each a statutory guidepost to which regard is to be had in the task of assessing the appropriate sentence.

70. The Judge noted that there ought to be a 25% discount on any indicative sentence. No challenge was made to this conclusion. I accept that this discount ought to be applied on resentence.

71. As well, the Judge assessed the objective seriousness of each of the two offences as falling at the lower end of the mid-range of objective seriousness. I agree with this assessment and would adopt it for the purpose of re‑sentencing.

72. The Form 1 offence was committed against the victim CD, who was not the victim of the two offences. It must have been a very frightening experience for CD, particularly as the applicant’s closed fist was only stopped within centimetres of her face on each occasion when the applicant charged at her.

73. Having regard to the circumstances in which the intimidation offence occurred, and the surrounding facts and matters, I would assess the objective seriousness of this offence as being below the mid-range of objective seriousness.

74. The Judge set out in detail the subjective circumstances of the applicant, which I broadly accept, but I exclude from such acceptance any finding of the Judge relating to the applicant’s criminal history as a juvenile.

75. The applicant was found to be very remorseful, and that he had to a significant extent taken responsibility for his offending behaviour. There was a significant period of five years prior to his offending during which he had not offended at all. These are matters which the Judge found, and I agree, were mitigating factors and provided some optimism for the applicant’s future in the community.

76. The applicant is an Indigenous man, who had had no real connection in his upbringing with his father, and who had no male guidance or role modelling at all. He had, and has, a close relationship with his mother who provides ongoing significant support to the applicant whilst he is in custody. The applicant’s family upbringing did not involve domestic violence or abuse. His brothers provided strong parental figures. The applicant has good relationships with both of them.

77. Notwithstanding this relatively stable family upbringing, there was a degree of financial deprivation, and the applicant had a number of early mental health challenges. As he grew into adolescence, the applicant, at least by the age of 14, had commenced to take drugs and his mother was unsuccessful in keeping him away from those drugs.

78. His academic studies reflected his inability to concentrate, his inattention and general frustration with school classes. He is not a well-educated person. He had a disrupted education, largely due to his intellectual disability and his Attention Deficit Hyperactivity Disorder (“ADHD”). He was not stabilised on ADHD medication and that continued to affect him.

79. The applicant is presently 26 years old and was 23 years old at the time the offences occurred. He has completed a number of TAFE courses and obtained various certificates whilst in custody. Prior to re-entering custody, he had a job as a technician, gathering soil samples for a geotechnical organisation.

80. Having observed the applicant give evidence, having heard from the applicant’s mother, and having regard to the report of a psychologist Dr Dorman, the Judge concluded:

“… the [applicant] is not a high-functioning individual, and his capacities have been further compromised by long-term abuse of cannabis and alcohol. His educational history is seemingly reflective of sporting contributions. I note that his capacity to read and write is not of the highest order; it is evident in fact that the various reports that he adopted in his evidence as being true and correct, have all been read to him.”

81. I accept these observations. Dr Ellis, psychiatrist, also gave expert evidence and confirmed the psychological diagnosis of Substance Use Disorder and Post-Traumatic Stress Disorder, as well as some features of Anti-Social Personality Disorder. Dr Ellis did not feel able to conclude at the time of the applicant’s sentencing that he was suffering from a major mental illness such as Schizophrenia. Dr Ellis suggested that the applicant should be monitored in case such a serious mental illness emerged.

82. The sentencing Judge considered that the applicant’s likelihood of re‑offending was low, although he accepted that one necessarily had to be somewhat guarded because such assessment depended upon his not using alcohol or drugs. I accept that finding.

83. The sentencing Judge also considered that the applicant’s moral culpability was diminished as a result of his upbringing as I have earlier described. I too would accept that finding.

84. In addition to the material before the sentencing Judge, further material was put before this Court to be considered in the event that the Court came to re‑sentence the applicant.

85. In his affidavit, the applicant noted the courses which he had commenced and completed whilst in custody. The evidence recorded that the applicant had taken on a mentoring role for other Indigenous inmates. He had started Aboriginal art classes every Sunday at the Correctional Centre where he is presently incarcerated, which have now continued for almost a year. The art classes have proved very popular and are well-attended by other inmates. The applicant deposed to the fact that he no longer uses drugs or alcohol, that he has completed a series of self-help programs and set out what he wished to do upon release. He deposed to the fact that he had been in contact with his old boss, who has told him that there is work available for him upon his release.

86. These are all matters which indicate that the applicant is making good progress whilst in custody and provides further support for an optimistic view of the applicant’s future, particularly his rehabilitation and low likelihood of re‑offending.

87. Whilst the applicant’s subjective case is important, and I give it full weight, it cannot be allowed to result in any sentence which does not reflect the serious criminality of the applicant’s offending.

88. It is appropriate to impose an aggregate sentence. That aggregate sentence is imposed in respect of the two offences with which the applicant was charged. In assessing the appropriate aggregate sentence with respect to the two offences, I keep in mind the offence of intimidation which is to be taken into account by the Form 1 procedure with respect to the first of the two offences. The effect of this offence is to enhance the need for the consideration of specific deterrence and safety of the community.

89. Taking all of these matters into account and applying the principles of sentencing to which it is necessary to have regard, I would assess an appropriate aggregate sentence as being 7 years imprisonment, with a non‑parole period of 3 years and 9 months.

90. I am satisfied that there should be a finding of special circumstances by reason of the need to ensure that the applicant has an extended time in the community to ensure his abstinence from drugs and proper rehabilitation.

91. It is necessary to indicate sentences for each of the two offences. With respect to the first offence, which includes the Form 1 offence, I would indicate a sentence after applying a 25% discount of 6 years with a non‑parole period of 3 years. For the second offence after applying the discount of 25% I would indicate a sentence of 5 years.

Orders

92. I propose the following orders:

1. Grant leave to appeal.

2. Quash the sentence imposed in the District Court of NSW on 22 May 2023.

3. In lieu thereof, impose a sentence of 7 years, with a non‑parole period of 3 years and 9 months.

4. Such sentence to commence on 13 March 2021. The earliest date upon which the appellant will be eligible for release is 13 December 2024

93. MCNAUGHTON J: I agree with Garling J.

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Decision last updated: 26 July 2024